
    Amorós v. Cividanes.
    Appeal from the District Court of Humacao.
    No. 86.
    Decided April 4, 1904.
    Beal Estate — Summary Proceedings to Betain or Becover Possession oe —Evidence.—In proceedings to retain or recover tie possession of real estate, the evidence should be clearly and exclusively confined to the right of the plaintiff to be in possession of or to hold the property involved in the controversy, and to the fact of his having been disturbed therein or deprived of Ms possession or tenancy, designating in each case the person responsible for such disturbance or dispossession, without which requisites the proceedings will not lie.
    STATEMENT OE THE CASE.
    This is a summary proceeding to recover possession of certain lands, instituted in the District Court of Huma-cao by Pedro Amorós, as plaintiff, represented in this Supreme Court successively by Attorneys Miguel Zaváleta and Juan Ramón Ramos, against Manuel Cividanes, as defendant, represented by Attorney Luciano Ortiz Antón, which case is now pending before us on appeal taken by counsel for the plaintiff from the. judgment rendered by the aforesaid district court. Said judgment reads as follows:
    “Judgment. — In the city of Humacao, April 4, 1903. An oral and public hearing was had of this summary action to recover possession of certain lands, prosecuted by Pedro Amorós, represented by Attorney Miguel Zavaleta, plaintiff, against Manuel Cividanes, represented by Attorney Luciano Ortiz Antón, defendant.
    ! ‘ Attorney Miguel Zavaleta, on behalf of and as the representative of Pedro Amorós, under date of March 9 of the present year,’ presented a written statement to this court wherein it was set forth that his client is owner of the estate ‘Cayures,’ in the lands of which are included some six or seven cuerdas of palm-grove and cultivated pasture ; that the owner of said estate ‘ Cayures ’ has always been in possession of said palm-grove, and enjoyed its fruits and pasture, the property having been acquired by his client as part and parcel of the estate, precisely as his predecessors in interest, Messrs. Amorós Hermanos, had acquired it from Severiano Virella, with the significant detail that it was the said Mateo Amorós who made the last planting of eocoanut-palms; that Manuel Cividanes, who, as manager, has charge of the’adjoining estate ‘Mercedes,’ which, by the way, has no palm-grove, at the beginning of December, last year, erected, or to be more precise, ordered to be erected, a fence enclosing, as'if belonging to the estate he manages, one and one-fifth cuerdas, which happen to contain the oldest palms and a great number of those planted upon the said plantation of Mateo; that the deforciant has acted with evident malice, inasmuch as he had on a previous occasion attempted to build said fence, and, upon being required to do so, ordered the same to be removed, and now, in repeating the deforcement, he pretends that the fence is erected provisionally, until the boundaries with the estates ‘Reunion’ and ‘Cayures’ are determined — prompted thereto, no doubt, by the alluring hope, that while the aggrieved owner is absent in Europe, the prescribed period of one year and one day may expire. After adducing as grounds of law the acquisition of possession by dominion title, section 448 of the revised Civil Code, the jurisdiction of the court as determined by the situation of the property, section 2 of title II of the Law of Civil Procedure, and article 1656 thereof, he proposed a preliminary examination of witnesses according to a list of interrogatories prepared by him; prayed the court to admit the complaint, and after taking the evidence to order the hearing to be held; that in due time the summary proceedings be sustained, his client directed to be reinstated in the possession of the land in question, and that Manuel Cividanes be adjudged to pay the costs and damages incurred and to restore the products, under such admonition as may be called for.
    “The complaint as formulated having been admitted, by a decree issued on the day it was filed, the proposed preliminary inquiry was ordered to be made, for which purpose letters mandatory were addressed to the municipal judge of Guayama. At said inquiry the witnesses Arturo Cintron Rivera, Natividad Cintron Soto, Pedro Diaz Rodríguez and Guillermo Morales Lugo, all of legal age and residents of Guayama, — the first, second and fourth married, the third a widower, the first two, merchants, the second a property-owner, and the fourth, a tradesman, — upon being examined under oath testified as to their own knowledge of the facts set forth in the list of interrogatories (1) that it was true that Pedro Amorós, from the time he had acquired the estate ‘Cayures’ had been possessing, cultivating and exploiting the fruits and pasture of a palm-grove measuring from six to seven cuerdas, bounded on the north and west by the estate ‘Reunion,’ on the south by the maritime zone and barrio ‘Mareas,’ and on the east by the estate ‘Mercedes;’ (2) that the 'above described palm-grove had been formerly in the possession of Messrs. Amorós Hermanos, from whom he derived his right, as it had in the same manner belonged to the latter’s predecessor in interest. Severiano Yirella Cassagues and bis father, all of whom had attended to its planting and cultivation and utilized its fruits and pasture, said palm-grove having always been known as forming an integral part of the estate ‘Cayures’ and being conterminous to the estate ‘Mercedes,’ the landmarks whereof they knew and supposed were still standing; (3) that during the first part of December of last year,, the laborers of said estate ‘Mercedes,’ by order of Manuel Cividanes, who directs and inspects everything there, raised a fence by which the estate ‘Cayures’ was deprived of more than one cuerda of the' palm-grove in question, planted in part by Mateo Amorós, managing-partner of the firm of Amorós Hermanos.
    “In view of the result of the inquiry had, the parties were summoned to appear before the court on March 26 last, at 10 a. m., for the purpose of holding the verbal hearing which, after citation of the defendant Manuel Cividanes, took place on the above-mentioned day, in the presence of counsel for plaintiff, who reproduced the complaint and prayed that, after taking the evidence he has to submit, the summary action to recover possession be sustained; and also of Attorney Luciano Ortiz Antón, on behalf of the defendant Manuel Civi-danes, w;ho declared that his client was ready to remove the fence, but reserving his right to make a claim against the plaintiff Amorós, inasmuch as said fence had been built with the latter’s consent, denying that there had been any dispossession, and offering evidence to establish the fact alleged. The plaintiff proposed as evidence in support of his claim the plan of the estate ‘Cayures,’ a certificate of the survey thereof, the testimony of witnesses and ocular inspection; while the defendant offered oral evidence consisting of an examination of the witnesses José María Banc, Tomás Cintrón Cordero, Santiago Cintron Cordero-, Justo Dávila Figueroa and Manuel Texidor.
    “The oral and documentary evidence proposed being declared pertinent, and the court reserving its decision as to that of expert testimony, the following witnesses for the plaintiff were examined: Gregorio Ortiz Santiago, who testified that during the time he had been on the estate ‘Mercedes,’ there was a-fence between said estate and that of the ‘Cayures’ in.a direct line as far as the sea, and the remainder formed part of the ‘Cayures’ estate, and stated that two years ago he was Cividanes’ overseer; Avelino Quirindongo y Cin-trón, who testified that the palm-grove standing between the estates ‘Mercedes’ and ‘Cayures’ had always been considered by him as belonging to the estate ‘Cayures’; that-it is now two months since he saw a fence on the lands of said palm-grove; that said fence runs from south to north, and he does not know whether or not it has been placed there with thfe consent of the person representing the ‘ Cayures’ estate; Juan Pablo Vega y Diaz, who stated that the piece of land that has been fenced between the estates ‘Mercedes’ and ‘Cayures’ had been looked upon by him as the property of the estate ‘ Cayures; ’ that the enclosure was of recent date; that the portion occupied by said fence belongs to the ‘Cayures’ estate, and that through part of the fence access is had to the estate ‘ Cayures; ’ Eustasio Cintron, who declared that the palm-grove land belongs to the ‘Cayures’ estate; that a portion of the latter has been cut off by a fence that was built by Cividanes, said portion being incorporated with the estate ‘Mercedes,’ the same not being wholly fenced in, for there is an open space giving access thereto, which is the pathway leading to the estate ‘ Reunion; ’ Concepción Ayala y Marcano, who testified that the estate ‘Cayures’ had been cultivating as its own the land on which stands the palm-grove, and that he had seen a fence dividing said land from the estate ‘Mercedes,’ the palm-grove land being now on the ‘Mercedes’ side, and through said fence there is an entrance to the estate ‘Mercedes;’ Guillermo Morales Lugo, who testified that the pasture-lands lying between ‘Mercedes’ estate and the ‘Cayures’ estate belong to the latter; that he has seen a fence on those lands; that as a result of this enclosure said lands are now on the ‘Mercedes’ side, and that he has not followed up said fence, but while passing by has noticed that it runs'from south to north; Pedro Diaz Ortiz, who said that between the ‘Cayures’ and ‘Mercedes’ estates there is a tract of pasture-lands which he has known for many years as belonging to the ‘Cayures’ estate; that he has seen a fence on those lands, as a result of which they now lie on the ‘Mercedes’ side; that since the cyclone he has not been over those lands, and from a distance he had seen part of a fence; Arturo Cintron Rivera, who testified to' the effect that he had always looked upon the pasture lands in question as belonging to the estate ‘ Cayures; ’ that he has seen a fence on those lands whereby they were made to lie on the ‘Mercedes’ side, and that he had not examined said fence; Natividad Cintrón y Soto, who testified that between the estates ‘Cayures’ and ‘Mercedes’ there is a tract of land planted with palm-trees, which he has always considered as belonging to the estate ‘Cayures;’ that on said land a fence has been raised which joins it to the estate ‘Mercedes;’ that he has not followed up said fence and has only seen it from a distance
    
      “Upon taking np the oral evidence proposed by the defendant, the following witnesses appeared: Tomás Cintrón y Cordero, who testified that in December he was directed to build a fence, together with two other laborers, on land belonging to the estates ‘Mercedes’ and ‘ Cayures, ’ and'after commencing the work he was ordered to suspend the same by Miguel Alemani and’ two overseers from the estates ‘Reunión’ and ‘Cayures;’ that shortly after there came along Manuel Cividanes, accompanied by two of his overseers, and it was agreed between him and Alemani that the building of the fence should be stopped until the surveyor had marked out the boundaries of both estates, and in ease this had not been done in the course of one week, Cividanes could set up the fence as a temporary measure; that a fortnight having elapsed, deponent and two other laborers proceeded to build the fence, and during the day they were at work they were observed by Miguel Alemani and two overseers of the estates ‘Reunión’ and ‘ Cayures, ’ who said nothing against the building of such fence; Justo Dávila y Figueroa, whose testimony was the same as that of the preceding witness; Jesús Maria Banc, an overseer of Cividanes, who likewise testified to the same effect as the others. Attorney Zava-leta abstained from cross-examining the witnesses of the adverse party.
    “The court, upon considering the proof of ocular inspection proposed by the plaintiff, decided not to admit the same, inasmuch as it was not of the class prescribed by the law in summary proceedings, and, on the other hand, held it to be necessary, in view of article 340 of the Law. of Civil Procedure. Counsel for the plaintiff objected to the admission of tb.e oral evidence proposed by the defendant and taken at the trial. Counsel for he parties then argued in support of their respective claims, plaintiff praying that the summary action be sustained, and defendant that it be dismissed, with costs against the plaintiff, after which the trial was brought to a close, the 4th instant being set for delivery of the judgment, which was voted on that day.
    “In the conduct of this case all the legal formalities have been observed.
    “Judge Charles Foote prepared the opinion of the court, as follows:
    “Although from the preliminary inquiry had it appears that the plaintiff was disturbed in the possession of the lands constituting the subject-matter, of this controversy, it was done with the consent of the representatives of tbe defendant (?), as shown by tbe evidence introduced at tbe oral trial by tbe latter.
    “Tbe fact alleged by the plaintiff having occurred under tbe circumstances mentioned, it cannot be considered sufficient as grounds upon which to base tbe summary action instituted by him, no disturbance or dispossession being possible when the act said to have given rise thereto was acquiesced in by the party claimant.
    “Costs should be taxed against the litigant who loses his case on all points.
    “In view of the legal provisions applicable in the premises, we adjudge that we should declare and do declare that the summary proceedings to recover possession of the aforesaid lands, instituted by Pedro Amorós, do not lie, and impose upon him the costs.
    “This judgment is ordered to be published and notice thereof given to the parties. Thus, finally adjudging, do we pronounce, command and sign. Salvador Fulladosa, José A. Aponte, Charles E. Foote. ’ ’
    Prom, this judgment counsel for the plaintiff, Pedro Amorós, took an appeal, which was allowed for a review and stay of proceedings, and the record having been forwarded to this Supreme Court, with citation of the parties, upon their appearance the case was conducted under the proper procedure and a day set for the hearing, at which counsel for both parties were present.
    
      Messrs. Zavaleta and Ramos (Juan R.), for appellant.
    
      Mr. Ortiz, for respondent.
   Mr. Chief Justice Quiñohes,

after making the above statement of facts, delivered the opinion of the court.

The findings of fact contained in the judgment appealed from are accepted.

According to article 1654 of the Law of Civil Procedure, in summary proceedings to retain or recover possession of property, the evidence should be clearly and exclusively confined to the two issues referred to in article 1650 of said law; that is to say, to the fact of the plaintiff’s being in possession or tenancy of the property constitnting the subject-matter of the summary proceedings, and of his having been disturbed in or deprived of said possession or tenancy, indicating in every ease the party guilty of such disturbance or dispossession; and upon examination of the oral evidence introduced by the plaintiff at the verbal hearing, 'it appears that all the witnesses have confined themselves to testifying that the palm-grove in question had always been considered by them as belonging to the estate “Cayures,” without clearly and precisely stating, as required by the law, that the plaintiff, Pedro Amorós, had been in possession or tenancy of said palm-grove ; whence it is to be inferred that the evidence introduced at the trial, and offered by the plaintiff, does not establish the two essential matters necessary for the admission of a summary action to recover possession.

In view of articles. 1649, 1650 and 1654 of the Law of Civil Procedure, and sections 63 and 72 of General Order No. 118 of August 10, 1899, we adjudge that we should affirm and do affirm the judgment appealed from, with costs against the appellant Pedro Amorós.

Justices Hernández, Figueras, Sulzbacher and MacLeary concurred.  