
    Martínez, Appellant, v. American Railroad Company of Porto Rico, Respondent.
    Appeal from the District Court of Mayagüez.
    No. 978.
    Decided June 28, 1913.
    Servitude — Apparent Sign — Segregations from Larger Property. — The provisions of section 548 of the Revised Civil Code recognizing and sanctioning the well-established theory of the apparent sign as a title for acquiring servi-tudes are applicable to the case of one single property divided into two or more parts.
    Damages — Doubtful Evidence — Remand for Review. — According to section 306 of the Code of Civil Procedure as amended by Act of March 8, 1906, when, as in the case at bar, the evidence upon which to fix the amount of the damages claimed is doubtful, the Supreme Court may remand the case to the lower court for review as regards the points in doubt.
    The facts are stated in the opinion.
    The appellant appeared pro se.
    
    
      Mr. Federico G. Pérez Almiroty for respondent.
   Mr. Justice del Toro

delivered the opinion of the court.

We have examined carefully the pleadings, the evidence and the findings of fact of the trial court, and to onr mind the following is clearly shown:

That about the year 1876 Francisco Molina purchased a property of 11 cuerdas, more or less, in the ward of Alga-rrobo of the municipal district of Mayagiiez. In 1889, while owner thereof, Molina segregated therefrom and sold to the defendant, a railroad company doing business in Porto Rico, a parcel of land of 3.54 cuerdas. Molina likewise segregated and sold four cuerdas of the same property to Zenón Bellido, in 1893. The said four citerdas descended from Bellido to his heirs, who conveyed it to Juan Cnmpiano, who conveyed it to the plaintiff, Rogelio Martínez Castro, in the year 1911. The original property and the portions segregated and sold are described in the complaint. The parcels segregated bound each other. All the transfers of ownership were witnessed by public deeds.

During Molina’s ownership of the entire 11 cuerdas he opened two roads which, crossed the property and terminated at a public-road. When Molina sold to the defendant the 3.54 cuerdas segregated from the said 11 cuerdas no mention was made in the deed of the existence of said .roads nor were the said roads closed prior to the execution of the deed.

About seven or eight years ago the defendant closed one of the said roads with a wire fence and later, in the year 1911, closed also the other road, thereby preventing all access to the public road from the plaintiff’s lands, which are so situated that the only means of reaching the public road is over the lands of the defendant.

The district court held that when Molina segregated the land which he sold to the defendant company he voluntarily deprived the rest of the property, which now belongs to the plaintiff, of the right of way to and from the public road, because the vendor did not reserve such right in the deed of sale; that section 571, and not section 548, of the Revised Civil Code was applicable to the case and that, therefore, the complaint should and would be dismissed without considering whether the damages alleged had been proven. The judgment was entered on February 4, 1913, and the present appeal was taken therefrom.

The appellant alleges that the district court erred in not applying section 548 of the' Civil Code and that, in any event, it erred also in not rendering judgment in favor of the plaintiff under section 571 of said code which the court itself considered applicable.

Let us consider the first error alleged.

Section 548 of the Revised Civil Code, which is the same as section 541 of the Spanish Civil Code, reads as follows:

“Section 548. — The existence of -any apparent sign of servitude between two tenements established by the owner of both of them, sba.11 be considered, if one of them be alienated, as a title, in order that the servitudes may continue actively and passively, unless, at the time of the division of the ownership of both tenements, the contrary be expressed in the deed of conveyance of either of them, or if the said sign is removed before the execution of such instrument.”

Prior to this legislation the Supreme Court of Spain had applied the theory of the apparent sign. In its judgment of September 14, 1867, 16 Civil Jurisprudence, 107, the Supreme Court said:

“The provisions of Law XIY, Title XXXI, Partida III, treating of the creation of servitudes, are not in conflict with the principle that when a person sells part of a property belonging to him without covenanting in the deed that the tenure of the purchaser shall be different from that of the vendor, it is understood that the land was sold with the servitudes necessary for its use and enjoyment.”

In its judgment of November 7, 1883, 53 Civil Jurisprudence, 208, the said court expressed itself as follows:

‘'‘According to the doctrine established by this court, the provisions of Law XIY, Title XXXI, Partida III, relative to the manner of establishing servitudes, are not in conflict with the principle that when an estate is divided between two different persons and there is no covenant in the deed that their tenures thereof shall be different from that of the original owner of the whole, it is understood that the servitudes necessary for its use and enjoyment subsist and that the apparent sign thereof is a title for their continuance unless at the time of the division of the property the contrary was expressed, which is what happens in the present case. The property which is the subject-matter of this action was adjudicated to Juan Pérez Charueco in satisfaction of his judgment and after his death it was divided between his children, Juan and María Francisca, without any covenant regarding a different tenure, therefore the judgment appealed from, decreeing that Eafaela Liaño recognize the servitude of a right of way for cattle and carts, which is the object of the complaint, does hot violate Law XIY, Title XXXI, Partida III, as alleged in the first ground of appeal.”

In the judgment of October 21, 1892, 72 Civil Jurisprudence, 242, the court said:

“As has been held repeatedly by the Supreme Court, the provisions of Law XIY; Title XXXI, Partida III, relative to the manner of establishing servitudes, are not in conflict with the principle that when a property is divided among different persons and there is no covenant in tbe deed of sale providing that the tenure thereof shall be different from that of the original owner of the whole, the servi-tudes necessary for its use and enjoyment shall be understood to continue. ’ ’

At first sight the construction given by the District Court of Mayagüez to section 548 of tbe Revised Civil Code is correct, but if tbe legal precedents and tbe facts are taken into account and said section is tborougbly studied, it will be seen that it contains nothing in opposition to tbe fact that tbe theory of tbe apparent sign is applicable to tbe case of a single property which is divided into two or more parts.

According to tbe facts alleged and proved at tbe trial,, tbe road opened by tbe owner of tbe whole property existed when tbe part sold to tbe defendant was segregated and one-of tbe roads continued in existence for many years thereafter until it was closed by tbe defendant in 1911. It was not a secret easement. Tbe vendor continued working his farm, and carrying Ms products to tbe public highway in tbe same manner as be did when be owned the entire property — that is, over the roads previously opened by him and now passing-through tbe part sold to tbe defendant. No servitudes can be said to have existed while tbe vendor was tbe owner of tbe whole property. Tbe idea of a servitude always presupposes a dominant and a servient estate. Tbe servitude went into full effect from the moment tbe estate was divided. Tbe vendor ceased to be tbe owner of tbe part sold, but tbe road — tbe. apparent sign of tbe servitude — continued to exist and to be used as such.

Under such circumstances, tbe conclusion is unavoidable that when tbe defendant company acquired tbe parcel of land described in tbe complaint it acquired tbe same subject to a clear and apparent servitude of right of way in favor of tbe property of which tbe plaintiff is tbe present owner.

One of tbe roads was closed by tbe defendant about seven years ago and'it does not appear that tbe owners of tbe dominant tenement made any objection but rather that they abandoned their right. The closing of the other road in 1911 was what really gave rise to the present action. The road closed in 1911 was sufficient to satisfy the needs of the plaintiff’s property as a means of communication with the public highway.

Por the foregoing reasons we are of the opinion that the district court erred in not rendering a judgment decreeing that the defendant company recognize the servitude of right of way existing on its property in favor of the property of which the plaintiff is the owner.

We have examined the evidence in regard to the claim for damages and it does not appear to be convincing. Therefore, in accordance with section 306 of the Code of Civil Procedure, as amended in 1906 (Acts of 1906, p. 163), we think the ends of justice will be better met by remanding the case to the lower court for revision as to this point.

Judgment should be rendered in accordance with the principles laid down in this opinion.

Reversed, judgment rendered for the appellant and the case remanded to the trial court for review as regards damages.

Chief Justice Hernandez and Justices Wolf and Aldrey concurred.

Mr. Justice MacLeary did not take part in the decision of this case.  