
    Amorós Hermanos v. Cividanes.
    Appeal from the District Court of Humacao.
    No. 73.
    Decided April 7, 1904.
    Real Estate — Summary Proceedings to Recover Possession — Property Rights. — In summary proceedings to recover the possession of real estate, no right of property in the thing in controversy is in issue, but only the question whether the person who claims the property was in possession ofrthe same and has been deprived of its enjoyment or possession, in which case he must be reinstated in such enjoyment or possession, provided the action he instituted before the expiration of one year from the commission of the act which gave rise thereto.
    Id. — Third Persons. — Decisions rendered in summary proceedings to recover the possession of real estate cannot operate to the prejudice of third persons, and claims of property in the subject-matter of the action must be determined in the appropriate legal proceedings.
    Id. — Evidence.—In summary proceedings to recover the possession of property, evidence not related to the enjoyment or possession of the subjeet-matter of the action cannot be considered.
    Costs. — The decision with regard to costs should be rendered without special imposition in eases in which the claims of the parties are disallowed.
    STATEMENT OP THE CASE.
    This is a summary proceeding to recover the possession of certain passages or lanes, instituted in the District Court of Humacao by Messrs. Amorós Hermanos, landowners and residents of Guayama, first represented in this court by Attorney Miguel Zavaleta and afterwards by Attorney Juan R. Ramos, against Manuel Cividanes, also a landowner and resident of Guayama, represented by Attorney Manuel F. Rossy. ■The case is pending before us on appeal in cassation, now ordinary appeal, taken by Cividanes from the judgment rendered, which reads as follows:
    “In the city of Humacao, August 23, 1900. The proceedings to recover the possession of certain lanes instituted by Messrs. Amorós Hermanos, represented by Attorney Miguel Zavaleta, against Manuel Cividanes, came on to be heard.
    “On May 18, 1900, Messrs. Amorós y Hermanos, the owners of the plantation ‘Reunión,’ situated in barrio ‘Jobos,’ municipal district of Guayama, instituted summary proceedings to recover the possession of property in this district court against Manuel Cividanes, the manager and possessor, in the name of his wife, Rufina Molinaris, of the plantation ‘Merced,’ basing the same on the ground that Cividanes had sent a number of the laborers of the ‘Merced’ plantation to dig holes in the lane known as Don Lino, which divides said plantations, and which lies on the east and connects with another lane on the north, which holes prevent the plaintiffs from utilizing said lane. On June 20, 1900, the said plaintiffs instituted another summary proceeding against said Cividanes to recover the possession of another lane, situated in front of the piece of land 'known as ‘Jueyes,’ and also for the recovery of twenty cuerdas joining at an angle with the lane known as Manfredo on the ocean side and tending toward the oast for a distance of ninety yards, the complaint in said action being based upon the ground that in the first days of the said month of June the laborers of the ‘Merced’ plantation, by order of Manuel Cividanes, dug more than twenty holes for a fence in the middle of the lane described, and placed large stakes in thirteen of them, and that although all the stakes were not put in, these thirteen prevent the passage of carts and the use of this means of communication and cultivation. Having tendered the testimony of witnesses to establish these facts, they- requested that Cividanes be adjudged to restore the possession of the lanes to the plaintiffs, and to the payment of the costs, losses and damages, and the return of the fruits which he may have received.
    “Upon the proceeding for the taking of testimony, the witnesses Arturo Cintron, Natividad Cintrón, Guillermo Morales, Rafael Gon-zález and Lucas Soto testified that the facts alleged in the complaints in question were true.
    “A date having been set for the holding of the oral trial, Attorney Manuel F. Rossy, on behalf of Manuel Cividanes, moved for the consolidation of both said summary proceedings, on the ground specified in article 156 of the Law of Civil Procedure and articles 161 and 162 of the same Law, to which claim the plaintiff assented, and thereupon the court ordered the requested consolidation.
    “Upon the oral trial counsel for Amorós Hermanos, Mr. Zavaleta, renewed the petition set forth in his complaints, and Attorney Manuel F. Rossy, on behalf of the defendant, Cividanes, opposed the pretensions of. the plaintiff, averring that the ‘Reunión’ and ‘Merced’- plantations hold the lanes in common, and that both plantations have enjoyed them without interruption in the possession; that in the month of May, 1900, Antonio Esteva, as the representative of Messrs. Amorós Hermanos, and the defendant, Manuel Cividanes, entered into an agreement to divide the lanes in controversy, and that the division was in fact made by Cividanes in pursuance of the agreement, Civi-danes having placed some stakes in the middle of the lanes and having made in other lanes the holes necessary for erecting the fence to serve as a boundary line; and said counsel concluded by offering the evidence of witnesses and ocular inspection and requesting the dismissal of the action against the defendants, with costs against the plaintiffs.
    .‘‘Of the witnesses produced by Messrs. Amorós Hermanos, namely, Arturo Cintrón, Lucas Soto, Natividad Cintrón, Marcelino Cintrón, Guillermo Morales, Sandalio Cintrón, Cornelio Gnal, Antonio Rivera, José Ortiz, Eduardo Díaz and José Sabater, the first testified that he knew of his own knowledge that the lanes involved in the summary proceedings have been open for many years; that the whole of the Don Lino lane is planted to sugar-cane; that on the boundary line of Cividanes there is a ditch of recent construction, and that on the boundary of Amorós there is another and older ditch; that the lanes belong to both estates, and that the shortest fence dividing the lanes was erected by Cividanes. The second witness, Lucas Soto, stated that he knew of his own knowledge that between the ‘Reunión’ and ‘Merced’ plantations exist certain lanes which were utilized by their former owners and are at present enjoyed by their actual possessors; that in the Manfredo lane there are at present certain stakes which look as though they were placed there to build a fence; that there is a fence in the Don Lino lane which was placed there by the ‘Merced’ and ‘Reunión’ estates; and that the fences which he saw are in the middle of the lanes. The witness, Natividad Cintrón, testified that he knows the lane of the ‘Reunión’ plantation called Manfredo, and also the one known as Don Lino, which have always been utilized by the ‘Reunión’ plantation; that Amorós Hermanos have been constantly in possession of said lanes; that the Manfredo lane is planted to sugarcane and is fenced in; that in the middle of the Don Lino lane there is a fence made of stakes and wire, and that he knows of his own knowledge that said fence was placed there by order of Cividanes, but he does not know whether said lanes belong to the ‘Reunión’ and ‘Merced’ plantations, and that he does not know who uses them. The witness, Maximino Cintrón, stated that he knows that the Manfredo and Don Lino lanes have existed for a long time; that he does not know who utilizes them at the present time, but he does know of his own knowledge that they were formerly used by the ‘Reunión’ and ‘Merced’ plantations; that the Don Lino lane is at present divided in half by a wire fence placed in the center and that wagons cannot pass through the same, and that the other lane is so narrow that a wagon cannot pass through; that he has seen eight holes in the middle of one or the other of the lanes and eight stakes stuck in the ground; that the holes and stakes are located in the middle of the lane, and that the two lanes belong to the ‘Reunion’ and ‘Merced’ plantations. The witness Guillermo Morales stated that he has been familiar with the Don Lino lane for forty years; that at present it has not the same length and width as formerly; that both the ‘Reunión’ and ‘Merced’ estates have utilized it, and still utilize it, although at the present time they cannot take advantage of more than one-half of the same for the reason that there is a fence in the center thereof; that Messrs. Amorós Hermanos cannot at present utilize the Manfredo lane because the portion thereof belonging to the ‘Merced’ plantation is planted to sugar-cane; that he does not know who planted the cane, and he likewise does not know who erected the fence, but he does know of his own knowledge that Manuel Cividanes is the manager of .the ‘Merced’ plantation, and he supposes that he was the one who planted the cane and set up the fence, the witness adding that these lanes belong to the ‘Reunión’ and ‘Merced’ plantations, and that they have always utilized them. The witness Sandalio Cintron asserted that he is familiar with the Don Lino lane, and that it has always been used by the plantation ‘Reunioli;’ that he also knows the Manfredo lane, and knows that it has been utilized by the plantation ‘Reunión,’ and it may be that it utilizes'it at the' present time; that since the month of May said lane has been narrower because part of it is planted to cane; that in the Don Lino lane there- are some stakes and holes in the middle which divide it into two parts; that the cane was planted by Cividanes and the fence was set up by his order; that he knows that between Cividanes and Antonio Esteva, the representative of Mr. Amorós, there was some question or dispute owing to the fact that the former had altered the lanes in question; that said lanes are used by both plantations, but he does not know whether they belong to the two; that he could not ascertain the reason for the dispute which occurred between Esteva and Cividanes, and that subsequently there was no trouble between thém and they went to their work. The witness Cornelio Gaul stated that he is familiar with the Manfredo lane; that he has seen it open for a 'long time; that át jpres-■ent it is narrower on the side of the ‘Merced’ plantation for the reason that a fence has been placed in the center; that at present the fence does not exist; that in the middle of the lane some holes have been dug as if to place some stakes therein for a fence or enclosure; that he likewise knows the Don Lino lane; that there is a fence -thereon which was ordered to be placed there by Cividanes; that between the representative of Amorós, Antonio Esteva, and Cividanes there was a dispute in connection with said fences; that both lanes have been used by the ‘Reuniop’ and ‘Mer-ced’ plantations; that the holes and the fences are located in the middle of the lanes; and that he knows that the representative of Amorós was opposed to the planting of cane and told Cividanes that he was going to file a complaint against him in court. The witness Antonio Rivera testified that he knew of his own knowledge-that between the ‘Merced’ and ‘Reunión’ estates there is a lane-called Manfredo; that he has been familiar with it for a long time; that the owners of both estates have used it in common; that at present it is more reduced in size, and the plantation ‘Reunión’ cannot use it for the reason that a fence has been set up in the center, which fence does not now exist; that he also knows the lane called Don Lino, which was likewise used by the owners of the estate ‘Reunión,’ and that they cannot now use it for the reason that in the center 0 thereof there is a wire fence, which fence he believes was ordered to be put up by Manuel Cividanes; that he knows that Cividanes and the representative of Amorós, Antonio Esteva, had some trouble on account of these lanes; that both lanes were used by the ‘Reunión’ and ‘Merced’ plantations, and belong by moieties to the owners of said plantations; that the holes 'and stakes are located in the middle of said lanes, and that the trouble between Cividanes and Esteva occurred two or three months ago. The witness José Ortiz stated that between the plantations ‘Merced’ and ‘Reunión’ there is a lane called Manfredo; that it has existed for a long time and has been used by both plantations; that a short time ago said lane was reduced in size by the placing thereon 'of a fence in the middle of the same; that he is familiar with the Don Lino lane, which was used by the plantation ‘Reunión;’ that one-half thereof is at the present time planted to cane, and there are several holes thereon as if to set up a fence; that he does not know who made the holes; that he knows that Manuel Cividanes is the manager of the ‘Merced’ estate; that these lanes have always been used by the owners of said plantations, but he does not know to whom they belong, and that he knows of his own knowledge that the holes and stakes are in the middle of the same. The witness Eduardo Diaz stated that he is familiar wi.th the Don Lino lane, which has always been used by the plantation ‘Reunión;’ that there is another lane called Manfredo, which is not as wide as it formerly was for the reason that it has been planted to sugar-cane by the plantation ‘Merced;’ that he has not seen holes or stakes in said lane, but at the present time carts are unable to pass through it; that he does not know who has obstructed the traffic, and that the holes and fence are at the side of the fence of Mr. Ramos. The witness José Sabater Rivera testified that he was a co-owner of the plantation ‘Merced;’ that there were two lanes on said plantation called Manfredo and Don Lino, respectively, which were opened by his father, and in the year 1876 the witness found them open, and in the year 1886, when the estate was alienated, they were in the same condition; that the plantation ‘Reunión’ continued to make use of them; that he had not gone there for six or eight years, and is unable to state whether the plantation ‘Reunión’ can make use of said lanes; that the same serve as a boundary to both plantations; that one-half of a lane belongs to one plantation and the other half to the other, and that while he was a co-owner of the estate ‘Merced’ both plantations made use of said lanes.
    “Among the witnesses Francisco Sauter, Gregorio Rivera, Emilio Sabater and Francisco Sabater, produced by the defendant, the first testified that he had worked on the ‘Reunión’ and ‘Merced’ plantations, and is familiar with the lanes called Manfredo and Don Lino; that the plantation ‘Reunión’ did not use the Don Lino lane, and removed its products through the lane in the center; that in the Don Lino lane there is a fence and that there are no holes in the Manfredo lane; that he was present at a conversation had between Oividanes and Esteva with reference to dividing the lanes, and that they did so in the month of May; and that thereafter Manuel Oividanes planted the cane without objection on the part of the owners of the plantation ‘Reunión.’ The witness Gregorio Rivera declared that he had worked on the plantations ‘Reunion’ and ‘Merced,’ and that he is familiar with the Manfredo and Don Lino lanes; that the same have been used by both estates for cartage purposes; that he knows of his own knowledge that Manuel Oividanes and Antonio Esteva agreed to fence in the lanes; that Oividanes agreed to put up a fence at his own expense; and that the agreement was made on the 1st of March or April on the patch of cane known as ‘Jueyes.’ The ivitness Emilio Sabater stated that he is familiar with the Man-fredo and Don Lino lanes which are now divided; that said division was made by Amorós, and that each litigant has his part; that he was present at an agreement made between Oividanes and Antonio Esteva, whereby Oividanes obligated himself to fence in the lanes in order to divide them at bis own expense; that the fence was made by Sauter, and is located in the middle of the lanes and divides both of them in half. The witness Francisco Sabater asserted that he is familiar with the Manfredo and Don Lino lanes, having worked oil the plantations ‘Reunion’ and ‘Merced;’ that the Don Lino lane is fenced in, and that the fence is in the middle of the same; that the boundary line has been destroyed; that the fence was made by Francisco Sauter, and that he was present at the agreement entered into between Civi-danes and Antonio Esteva -whereby they agreed to divide the lane, without cost to Esteva; and that said agreement was made in the patch of cane known as ‘Jueyes,’ and was also witnessed by Francisco Sauter.
    “The court having proceeded to the ‘Merced’ and ‘Reunión’ plantations and to the place known as the Manfredo lane, at the point where the same makes a curve from an easterly to a westerly direction, a piece of iron was observed in said curve marking the boundary lines between both plantations and located in the middle of the lane, and another piece of the same kind at the eastern end in traveling from west to east; and in a straight line between both pieces of iron it was observed that, on the right, on the lands of the plantation ‘Merced,’ in the cane at a distance of three yards from said line, and on the left side of the lands of the plantation ‘ Reunión, ’ there is a ditch of considerable depth along the entire extent of the lane, and at a distance of little more than a yard from said line, which becomes narrower and deeper toward the end of the lane, so that, at its termination, it is separated by scarcely a yard from the line. It is also observed that the dirt from the ditch has been thrown on both sides of the same, and at the place next to the ‘Merced’ plantation it reaches a pretty fair height; that the left side of the ditch is planted to cane of the plantation ‘Reunión,’ and that in a straight line between the dividing points a number of holes were noticed as if dug there to set up stakes. The court having thereupon repaired to the Don Lino lane, which runs from north to south, a wire fence was observed and the lands contiguous thereto, belonging to the plantation ‘Merced’ and sown to cane, as well as the unplanted lands on the other side for a a distance of about three yards.
    ‘ ‘ The opinion of the court was prepared and delivered by Mr. Justice Pedro de Aldrey y Montollo, as follows:
    “In summary proceedings to recover the possession of property, the question of title or pretended title in the subject-matter is not involved, but only tbe question whether the person who claims the property was or was not in possession of the same and has been disturbed or molested in its enjoyment or dispossessed therefrom, so that these matters being true, and the summary proceedings being instituted before the expiration of one year from the act which gave rise thereto, the person ousted must be restored to the possession or estate which he has been enjoying; and the decision, which must be rendered without prejudice to third persons, does not determine any right of property, the litigation of which must be the subject of a separate action, and not of a proceeding which is in its nature summary.
    “In view of the foregoing statements, it is not possible, in the judgment to be rendered in this ease, to take into consideration the evidence submitted with reference to the existence of a verbal contract by virtue of which it is contended that both abutting proprietors agreed to divide the Don Lino lane separating their estates, which lane was also involved in the summary proceedings instituted by Messrs. Amorós Hermanos, inasmuch as the law does not permit said evidence to be considered.
    “Plaintiff having established by the testimony of witnesses that he was in possession of the Don Lino lane, and the defendant, moreover, not having denied that the former enjoyed the possession which he now denies on the strength of a contract claimed to have been made between them, and it further appearing from a view of the premises that the one-half of said lane which belongs to the plantation managed by Manuel Cividanes is planted to sugar-cane, and that the other half is not so planted, it is proper, so far as said defendant is concerned, to sustain the summary proceedings for the recovery of possession instituted by Messrs. Amorós Hermanos.
    “Although plaintiff adduced testimony to show that he was also in the enjoyment of the lane dividing the estate, which forms an angle with the Manfredo lane and was a continuation thereof, at the time Manuel Cividanes attempted to fence them in as the middle line of the said lane, the fact is that from the view made of the premises by the court it is conclusively proved that the said angle of the Manfredo lane could not have been enjoyed by Messrs. Amorós Hermanos, since they had all along the same, and in the one-half pertaining to their lands, a ditch of considerable depth "which prevented the passage of wagons, and on the other half belonging to the plantation of Cividanes which is not ploughed or planted there is no sufficient remaining space to permit the transit oí vehicles. Possession not having been shown, therefore, the summary proceedings with reference to said lane should be dismissed.
    “The consolidated summary proceedings being disposed of in one judgment, and the plaintiff’s petition being in part rejected, said judgment should be rendered without any special imposition of costs.
    “ITaving examined articles 1649, 1650, 1651, 1654 and 1656 of the Law of Civil Procedure, and General Order No. 118 of 1899, we adjudge that we ought to declare and do declare, without prejudice to the rights of third persons, that the summary proceedings to recover the possession of the lane known as Don Lino, instituted by Messrs. Amorós- Hermanos, the owners of the estate known as ‘Bennión,’ against Manuel Cividanes, as manager of the plantation ‘Merced,’ were properly brought, the plaintiffs to be maintained in their possession and the trespasser being warned to refrain from committing such acts or other acts revealing the same design in the future, under such admonition as may be according to law; and that the plaintiffs be reinstated in the possession thereof, and the defendant being likewise adjudged to the payment of losses and damages and the return of the fruits which he may have received. We also adjudge that we should declare and do declare that the summary proceedings affecting the angle of the Manfredo lane, which also divides both estates, are dismissed without special imposition of costs, reserving to the parties such rights as they may have in the final ownership or possession of the property, which they may assert in the appropriate proceedings. Thus do we pronounce, order and sign. Juan F. Vías, Pedro de Aldrey, Bicardo la Costa.”
    Prom the foregoing judgment Manuel Cividanes prosecuted an appeal in cassation for error of law, and the record having been sent up to this court, the case was dealt with as one of ordinary appeal, in compliance with the act of the Legislative Assembly of March 12, 1903.
    The appellant duly returned the record which had been submitted to him for examination, and the respondents, upon complying with the same formality, returned the record and united in the appeal taken by the adverse party, in the exercise of the right granted by article 856 of the Law of Civil Procedure, on the ground that they were injuriously affected by the judgment rendered in so far as it denied the restitution of one of the lanes and failed to specially impose costs upon the dispossessor.
    A day was set for the hearing of the cause, at which the counsel for the parties submitted such matters as were deemed conducive to the establishment of their respective contentions.
    
      Mr. Bossy (Manuel F.), for appellant.
    
      Messrs. Zavaleta and Ramos (Juan B.), for respondents.
   Mb. Justice Figueras,

after stating the foregoing facts, delivered the opinion of the court.

The findings of fact and conclusions of law set forth in the judgment appealed from are accepted.

In view of rule 63 of General Order No. 118, series of 1899, and the legal provisions cited in the judgment appealed from, we adjudge that we should affirm and do affirm the judgment rendered in the case at bar by the Humacao court on August 23, 1900, without making any special imposition of the costs on appeal. The record is ordered to be returned to the district court with the proper certificate, for such action as may be meet in the premises.

Chief Justices Quiñones and Justices Hernández, Sulz-bacher and MacLeary concurred.  