
    RITA ECHCANDIA AND HER HUSBAND, BRAULIO CABALLERO, Plffs., v. MUNICIPALITY OF SAN SEBASTIAN, Dft.
    San Juan,
    Equity,
    No. 978.
    IN THE MATTEK OE PRELIMINARY INJUNCTION.
    Jurisdiction — Citizenship.
    1. A Porto Eican woman who was married to a Spanish subject prior to the American occupation, and whose husband made the necessary declaration to preserve his Spanish citizenship after the Treaty of Paris, in the name of himself and his wife, is a Spanish subject.
    Equity — Preliminary Injunction.
    2. A preliminary injunction will not he granted where the right is not clear, and where it would greatly prejudice the public without greatly benefiting the plaintiff; a road open to the public for nine years will not be closed upon preliminary injunction where plaintiff’s right is doubtful.
    Opinion filed August 9, 1916.
    
      Mr. F. H. Dexter- for plaintiffs.
    
      Mr. Miguel Querrá for defendant.
   IIaMiltoN, Judge,

delivered tbe following opinion:

In this cause complainant alleges that she owns a certain tract of land within the municipal limits of San Sebastian, and that the said municipality has, against her will and without legal proceedings and without payment of damages, opened a public road through the property. She asks that the municipality be enjoined and the road closed until proper proceedings for condemnation and payment therefor.

The defendant in the first place denies that the plaintiff has the requisite citizenship to bring this suit, and sets up that she is a Porto Pican and therefore cannot sue a Porto Pican corporation in this court. The question was provisionally decided at the hearing, but has received subsequent consideration. It hinges upon the status of a woman born in Porto Pico and married there before the American occupation, to a Spaniard, native of the peninsula. The general principle of the common law of marriage is that the wife acquires and follows the status of the husband. In the case at bar both husband and wife were Spanish subjects before the American occupation in 1898. The treaty of Paris in art. 9 permitted Spanish subjects, natives of the peninsula, residing in Porto Pico, to preserve their allegiance to the Crown of Spain by making before a court of record, within a year from the date of exchange of ratification of the theaty, declaration of their intention to preserve their allegiance, in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. 1911 Compilation of Revised Statutes and Codes of Porto Pico, p. 1031. It is shown that the husband of plaintiff made due declaration of his intention to remain Spanish by appearing before a municipal judge of the proper municipality, and the certificate certified by such official shows that he made this declaration on behalf of himself and his wife. The argument of counsel is that the Treaty only covered tbe case of natives of tbe peninsula, wbicb tbe wife confessedly was not, and therefore tbe declaration did not affect ber.

Tbe actual procedure under tbis article of tbe Treaty was .defined by G. 0. No. 132 of tbe Headquarters, Department of Porto Pico, found in Part 4' of tbe Laws and Orders effective in Porto Pico, published by tbe Government Printing Office in 1909, p. 2261. Tbis provides: “II. For tbe purpose of permanent record and tbe protection of the parties concerned, a document will be prepared in duplicate in each case by tbe municipal judge setting forth tbe following facts: (a) Tbe name and surname of tbe interested party, bis or ber age, nationality (specifying tbe province), civil status and profession, trade or occupation; (b) names of wife and children, should there be any, and tbe names of tbe applicant’s parents; (c) tbe date in wbicb tbe declaration is made and signed. Tbis document shall be subscribed by tbe applicant and witnessed by tbe signatures of tbe municipal judge and tbe secretary of bis court.”

Tbe actual construction of tbis clause of tbe Treaty therefore by tbe officers in charge of tbe declaration proceedings was that tbe husband could act for tbe wife. No other provision is found in tbis general order as to a married woman. Moreover, it is inconceivable that tbe framers of tbis Treaty intended to divorce husband and wife so far as citizenship was concerned, making tbe husband of one nationality and tbe wife of another. Tbis objection to tbe jurisdiction must therefore be overruled.

Tbe plaintiff relies upon § 544 of tbe Civil Code, wbicb provides: “Continuous and apparent servitudes are acquired, either by virtue of a title or by prescription after twenty years.” Section 1831 of the Civil Code provides: “Ownership and other property rights are acquired by prescription in the manner and under the conditions specified by law.” The distinction between acquisitive prescription, which is in point here, and limitation of actions, is given in Gonzalez v. San Juan Light & Transit Co. 17 P. R. R. 124. This being a case of concurrent jurisdiction, a court of equity will consider itself bound by the Statute of Limitations which governs courts of law in such cases. Godden v. Kimmell, 99 U. S. 201, 25 L. ed. 431. She contends that not only had there been no sufficient length of time to give rise to the prescription, but that the acts in question were not of the nature required to give rise to such a right. “Acts merely tolerated and those clandestinely executed, without the knowledge of the possessor of a thing, or with violence, do not affect possession.” Civ. Code, § 446. “Acts of a possessory character, performed by virtue of a license, or by mere tolerance on the part of the owner, aré of no effect for establishing'possession.” Civ. Code, § 1843.

On the other hand, the defendant’s sworn answer denies the clandestine and permissive nature of the acts in question. The proof on the rule to show cause is not clear on this point. The proof of the plaintiff has not been established by a preponderance of the evidence. Matthews v. Warner, 112 U. S. 600, 28 L. ed. 851, 5 Sup. Ct. Rep. 312. The contention of the defendant is that not only has this road been known since June 30, 1907, as road No. 7, but that it was established with the knowledge and consent of the plaintiff, her father being than a member of the municipal government. The Municipal Law of 1906 governing the case requires that the local government “cause to be recorded as municipal roads in the office of the commissioner of tbe interior all highways which have become such by usage, dedication, abandonment to the public, or by any other means provided by law.” § 65, ¶'4. Dedication therefore seems to be set up by the defendant over against the prescription claimed by the plaintiff as necessary in the case.

It cannot be said that the evidence is satisfactory either way, and as this is a case which would affect the public by closing up a road which had been in use, whether lawfully or unlawfully, for nine years, and would probably cause serious public inconvenience, the better plan seems to be not to grant a preliminary injunction. 22 Cyc. 184, 785 and 946. Turner v. People’s Ferry Co. 22 Blatchf. 272, 21 Fed. 90. Of course this is by no means prejudging the result of a final hearing. At that time it may well be that the proof will be more satisfactory. At present it is merely decided that after waiting nine years the plaintiff will probably be less injured by waiting a few months longer than the public would be by an injunction of closure pendente lite before the facts and the law are fully developed.

The rule to show cause is therefore discharged and the case will take its usual course for hearing on the merits. The preliminary injunction is denied.

It is so ordered.  