
    Nogueras, née Alvarez, Plaintiff and Appellee, v. Fernández et al., Defendants (García, Defendant and Appellant).
    Appeal from tlie District Court of Humacad in an Action of Denial of Servitude.
    No. 1537.
    Decided April 10, 1917.
    Servitude — Denial of Servitude — Burden oe Proof. — In an action oí denial of a servitude, after tlie owner of tire servient tenement has. proved his title the burden is on the defendant to show the existence of the servitude.
    Id. — Id.—Findings of Fact. — When in an action of denial of a servitude the appellant fails to furnish this court with an analysis of the proof, for the purpose of overcoming the finding of the lower court that up to the time of the sale the property had had a single owner and lienee that no question of servitude could arise, and that the said sale took place about forty years before the trial, which was proved positively by the defendant’s own witnesses, the judgment rendered in favor of the plaintiff should be affirmed.
    Tlie facts are stated in tlie opinion.
    
      Mr. Francisco Gonzales for the appellant.
    
      Mr. M. Toils iSoto for tlie appellee.
   Mr. Justice WdLP

delivered the opinion of the court.

The action in this case was to obtain a judicial denial of the existence of a servitude (negatoria de servidumbre). It is conceded that in such an action, after the servient tenement has proved the title the burden of proof rests on the defendant to show the existence of the said servitude. The case went to trial and the court found in favor of the' complainant.

The appellant, Carlos García Buso, assigns three errors. 1st. That the court erred in not finding' that the defendant liad proved a use of the disputed right of way. 2nd. That the court misapplied section 547 of the Civil Code. The court, maintains the appellant, found that he was relying on a verbal contract where, according to appellant, in fact he was relying on an immemorial use and merely adduced the oral agreement to show a ratification. 3rd. Under this assignment of error the appellant concedes that his defence of a way of necessity to reach the public highway was not tenable in this kind of action if lie relied on such bare necessity, bnt be maintains tbat tbe existence of sncb a necessity in itself shows such an immemorial use.

In the ultimate analysis all three of these assignments of error depend upon the1 question of whether the proof in point of fact tended to show such an immemorial use. Appellee cites jurisprudence to show that a time' immemorial must be longer than forty years and we have applied that jurisprudence in the case of Cividanes v. Amorós Hermanos, 8 P. R. R. 558. With regard to the question of- fact we may say that the appellant in his brief has furnished us with no analysis of the proof to overcome the finding of the court The latter found that up to the time of the sale in this case the property had had a single owner and hence no servitude could arise, and that the said sale took place about forty years before the date of the trial. This period of about forty years was definitely proved by the defendant’s own witnesses and hence we find nothing against the conclusion of the court and the judgment must be

A -¡firmed.

Chief Justice Hernández and Justices del Toro, A Id rey and Hutchison concurred.  