
    Gaztambide, Plaintiff and Appellee, v. Municipality of Sabana Grande, Defendant and Appellant.
    Appeal from the District Court of Mayagiiez in an Action Concerning Boundaries of Property.
    No. 1526.
    Decided March 12, 1917.
    Boundaries — Acquiescence—Reservation iop Rights — Judgment.—When a defendant acquiesces in a complaint, asking that certain rights he reserved to him, and the other party does not object and the reservation is not contrary to law, the same should he set out in the judgment.
    Id. — Id.—Costs—Attorney Fees — Discretion op Court — Temerity.—The imposition of costs, disbursements and attorney fees lies in the sound discretion of the court which renders the judgment; hut according to the statutes governing the matter (Acts of 1908, p. 50), in order that such discretion may he exercised there must be some degree of temerity on the part of the party upon whom they are imposed. There is no degree of temerity on the part of a defendant who acquiesces in the prayer of a plaintiff that a boundary be established when it is not alleged that the former had objected to the same previously and for that reason the latter was obliged to bring the action. It is natural that the party who prays for and obtains the establishment .of the boundary in such circumstances should pay the expenses occasioned thereby.
    The facts are stated in tlie opinion.
    
      Mr. Benito Forés for the appellant.
    
      Mr. José E. Benedicto for the appellee.
   Mr. Justice del Toro

delivered the opinion of the conrt.

José Ramón Gaztambide filed a complaint in the District Court of Mayagiiez alleging that he was the owner of a house and lot, the latter measuring 17 by 35 meters; that defendant Santalis was the owner of another house erected on a lot belonging to the municipality of Sabana Grande which adjoined the plaintiff’s property, and that as there were no visible landmarks between the two properties definitely indicating and determining the respective boundaries, he found it “necessary to establish in a clear and unmistakable manner the true boundary line between his and the defendant’s property. ”

The defendant municipal council of Sabana Grande demurred to the complaint on the ground that it did not adduce facts sufficient to constitute a canse of action, but later acquiesced in tlie prayer for a survey, “reserving to itself any rights which it might have in the property of plaintiff Gaz-tambide.” Santalis was eliminated as a party defendant because his house had been destroyed by fire.

In view of the agreement between the parties, the court ordered the survey, which was made by surveyor Boucher, and no objection having been made to the surveyor’s report, the said court approved it and entered judgment holding that Gaztambide’s masonry building occupies only 14.60 meters of the 17 meters which by the deed his lot is shown to measure on the front, and, therefore, the alley separating the plaintiff’s house from the house belonging to the Santalis succession, which is about 2.40 meters wide, belongs to the plaintiff; without special imposition of costs.”

Ten days after the rendition of the' said judgment the court reconsidered the same and ordered that the bill for traveling expenses and fees presented by surveyor Boucher, amounting to fifty dollars, should be paid by the parties in equal parts.

The defendant municipality áppealed from the judgment and from the order made on reconsideration, and alleged before this court that the district court erred (1) in holding improperly regarding the property and determining the ownership of the alley between the properties surveyed, and' (2) in imposing half of the expenses of the survey upon the defendant.

1. As to the first point, we are of the opinion that the appellant is right. There was no trial of the case. The order for the survey was based on the acquiescence of the defendant in the complaint, but such acquiescence was made on the condition that the rights which the defendant might have in the plaintiff’s property, should be reserved to it. The rights of a municipality are involved and it seems that it raised no objection to the dimensions of the lot occupied by the plaintiff, bnt perhaps there might be some question as to whether the plaintiff owned the property or simply had a right of usufruct, the ownership title being in the municipality. The plaintiff did not object to the form of the defendant’s acquiescence. On the contrary, it is deduced from the record that all was well understood.

This being so, we think it just that the judgment appealed from should be modified by expressly including therein the said reservation.

2. As to the second assignment, we think that the district court exceeded its authority in requiring the defendant to pay half of the expenses.

The imposition of costs, disbursements and attorney fees rests in the sound discretion of the court which renders the judgment, but the statute governing the matter (Laws of 1908, p. 85) provides that in order to exercise such discretion there must be some degree of blame on the part of the party against whom judgment is rendered, and we are unable to discover in the present case any degree of blame on the part of the municipality which acquiesced in the claim of the plaintiff. Besides, it was not alleged in the complaint that the defendant municipality had opposed the survey and that the plaintiff, for that reason, had been obliged to resort to a court; and as the plaintiff will receive the benefits of the survey in the first place, it is natural that he should pay the expenses of the same.

In view of all the foregoing, the judgment appealed from should be modified as indicated and the amendatory order reversed, the original pronouncement “without special imposition of costs” remaining in force.

Judgment modified and order set aside.

Chief Justice Hernández and Justices Wolf, Aldrey and Hutchison concurred.  