
    Estate of Bianchi v. The Municipality of Añasco.
    Appeal from the District Court of Mayagüez.
    No. 155.
    Decided April 19, 1904.
    Municipal Law. — Neighborhood Boads — Powers oe Municipal Councils. — According to the Municipal Law of 1896 the obligations and powers of municipal councils refer to the construction and maintenance of neighborhood roads, and compel persons interested in rural roads to maintain and repair the same, and municipal councils have no power to define the nature of such roads, nor to order the opening or reopening thereof.
    Id. — Municipal councils have jurisdiction with reference to the continuance of the existing control of rural roads, and with respect to the observance of the general rule of rural police, the ordinary courts having jurisdiction with respect to the property in, and the situation of, such roads and of servitudes created upon the same.
    Costs.. — Costs should be imposed upon the party whose demands have been in all things denied.
    STATEMENT OF THE CASE.
    A bearing was bad in tbis declaratory action prosecuted in tbe District Court of Mayagüez by Jnan Biancbi y Pagan, as plaintiff, now bis estate, consisting of bis widow, Rosario Rosafá y Estrada, and bis legitimate children, Francisco, Esr tela, Jnan and Rosario, of legal age, tbe former a resident of Añasco, and the others residents of Mayagüez, represented by Attorney José de Diego y Martinez, against tbe municipality of Añasco, represented by Attorney José de Guzmán Beni-tez, to secure tbe annulment of a resolution and other matters, which case is pending before us on appeal taken by tbe defendant from a judgment rendered by tbe aforesaid district court, which reads as follows:
    “Judgment. — In tbe city of Mayagüez, June 23, 1903. An oral and public bearing was bad in this declaratory action prosecuted by Juan Bianchi y Pagan, now his estate, consisting of his widow, Rosario Rosafá y Estrada, and his legitimate children, Francisco, Estela, Juan and Rosario, of legal age, the former a resident of Añasco, and the other two residents of this city, as plaintiffs, represented by Attorney José de Diego, against the municipality of Añasco, as defendant, represented by Attorney Fernando Vazquez, to secure the annulment of an ordinance and other matters.
    '“Attorney José de Diego, as counsel for the aforesaid plaintiff, filed a complaint in this court against the municipality of Añasco, basing the same upon the following facts: That the sugar plantation, now the property of the estate of Juan Bianchi Pagan, which is bounded on the north by the road leading from Añasco to' San Sebastián, and upon the west by the old Añasco road, and being crossed on the south by the neighborhood road leading to barrio ‘Orejas,’ these being the only roads that cross or touch the tract of land described in the complaint, and for several years there has been no other neighborhood or rural road or passage forming a servitude entering the lands of the aforesaid plantation, nor are such roads necessary to the public traffic or for the carting of fruits, because the aforesaid roads furnish all the necessary means of communication in the said place; th'at twenty-five or thirty years since, in certain places upon the property now composing the said plantation, there were two roads connecting the numerous parts into which the said plantation was divided, which roads in reality possess no other character than that of a private servitude; that Mr. Bianchi having acquired these different parcels of land which constitute the sugar plantation, these roads were destroyed by river currents, heavy rains anj dense vegetation, and after a long time the said servitudes were extinguished and the said roads which formerly existed became obliterated; that the one of the said passages, which was frequently called ‘Boca de Casey,’ crossed by the lands of the old hacienda ‘Josefa, ’ which now forms a part of the plantation, having become impassable, was closed by a resolution of the municipal council of Añas-co sometime between the years 1878 and 1880; and that the other road called ‘La ceiba,’ which crossed a tract of land, now entirely situated within the plantation, and which was then the property of Don Miguel del Río López y Marin, was abandoned many years ago, for which reason and because it was of no practical use, the same municipal council of Añasco finally closed the said passage; that Don Ignacio Sein é Isasa, who owns a tract of. land near the sugar plantation, although he can use a nearby road which is open to the public for the carting of cane to his property, wishes at all hazards to enter the property of Bianchi, now his estate, and cross the sugar plantation with profit to himself and annoyance to others; and for this purpose he made and suseribed, together with other persons, an application directed to the municipal council of Añasco asking for the opening of the alleged rural roads ‘Boca de Casey’ and ‘La Ceiba,’ which roads are already destroyed and closed as has herein-before been stated; that the municipality then appointed a commission to investigate the matter, and after a long time had elapsed and a close study had been made, the said commission presented a report in every respect unfavorable' to the aforesaid application; but the said report having been rejected and another commission appointed, among the members of which were the alcalde and the petitioner Sein, the latter made a report favorable to himself and the other members of the commission also reported in favor of the said Sein, the municipality thereupon resolving to open the roads at a session held on the 7th of April of the year last past; that not waiting for the expiration of the time which the law prescribes for the prosecution of an appeal praying for the suspension of the resolution, the same was carried into effect two days after its passage by authority of the alcalde with the assistance of the police force, as if it were absolutely necessary that the injured parties should suffer the consequences of the said illegal resolution without delay; that upon the opening of these roads they were laid out wherever the alcalde desired, inasmuch as only in certain places could traces or tracks of the old roads be found hidden and destroyed by the action of the weather; that Mr. Bianchi having taken an appeal under date of April 12 of the same year to the Secretary of Porto Rico, this official, after receiving the report' of the alcalde, and notwithstanding that he decided that the hearing and decision of this controversy properly came under the jurisdiction of the ordinary courts, suspended the resolution appealed from for the period of two months, while the appellant Bianchi filed a complaint in the ease, the said secretary ordering that in the meantime things should be restored to their former condition; and the plaintiff finally prayed that after the proper proceedings had been had, judgment be rendered sustaining the complaint decreeing the nullity of the resolution of the municipal council and granting the other prayers contained in the said complaint; and in an additional prayer he .asked that the execution of the said resolution be- suspended until after the decision of the suit filed, thus affirming the order of the Secretary of Porto Rico, which appears from the documents attached, imposing the costs upon the defendant corporation.
    “The complaint having been admitted and the suspension of the resolution applied for therein having been decreed, and the defendant corporation having been served with a copy of the said complaint, through its alcalde, and he having been notified of the suspension of the resolution referred to, counsel for the said municipality filed a demurrer to the complaint alleging want of capacity in the defendant to answer the said complaint, because according' to the Municipal Law in force the powers of the municipalities, which are only legislative, are defined in section 23, and among them no-reference is made to rural or neighborhood roads, as was the case in the Municipal Law repealed on the 31st of December, 1896, and stated several facts relative to the complaint and the other grounds-, of the action; and in answer to the complaint set out as facts that in the municipality of Añasco there existed a road from time immemorial called ‘Boca de Casey,’ which was used by the residents of' barrios 'Casey Arriba,’ ‘Casey Abajo’ and ‘Ovejas;’ that there was: also within the said municipality another road which had existed from time immemorial called ‘La Ceiba,’ and which was also used by the residents of the aforesaid barrios ‘Casey Arriba,’ ‘Casey Abajo’ and ‘Ovejas;’ that a dispute having arisen in regard to the road called ‘La Ceiba’ between Juan Manuel del Río and Francisco López, a commission appointed by the commander-in-chief of the department was heard, together with the arbitrators who were also appointed, and the interested parties themselves, as well as several adjoining property owners, and by an act drawn up on the 25th' of February, 1847, before the public clerk by royal appointment, José María Padilla, and taking into account that the road in question had been in use from time immemorial, the same was definitely laid out as it would be opened by Juan del Río and Francisco López, in which act appear the words, ‘it is well understood that this new road should remain and shall remain perpetually opened for general use and the present owners, as well as those who may own adjoining lands in the future, shall be obliged to enclose the same with a hedge, or in whatsoever manner they may choose, in order to preserve their pasture and crops, since the road cannot be obstructed or blocked in any manner whatsoeverthat the roads referred to are the ones acknowledged by Juan Bianchi Pagán in the fourth allegation of the complaint, there being no resolution of the municipal council of Añasco ordering the closing of the roads a short time since, they having been closed by Bianchi on his own authority. The defendant reproduced the first, second and third paragraphs of the demurrer in the fifth allegation of the answer to the complaint, and finally prayed the court to hold that the defendant lacks the capacity to answer the same and that the complaint be dismissed, and that in either case the costs be taxed against the plaintiff.
    “The parties having been summoned for the proposal of evidence, they both having so requested it, counsel for plaintiff proposed as documentary evidence that of comparison of documents, the testimony of experts and of witnesses. The counsel for the defendant also proposed as documentary evidence the comparison of documents, the testimony of experts and'of witnesses, and all of the evidence proposed being admitted a day and hour was set for the oral hearing.
    “Counsel for both parties appeared at the oral hearing, and a demurrer having been filed by the defendant, and it being necessary first to dispose of said demurrer, the court, in accordance with article 62 of General Order No. 118, series of 1899, through the presiding-judge, granted the attorney interposing the demurrer an opportunity to be heard and he, in his argument, made such allegations as he deemed proper, and proposed as evidence that the document •appearing at folio 88 of the record be read. Counsel for the plaintiff having been heard, he made such allegations in his argument as he deemed pertinent to the claim of his client, and finally prayed the court to overrule the demurrer, with costs, and proposed the same evidence as that offered by opposing counsel, and the clerk having read said document the ease was continued for the necessary tima, in order that the court might dispose of the demurrer. The hearing having then been resumed a unanimous decision was rendered by an order made at the time, to the effect that the complaint filed by Juan Bianchi Pagan, now his estate, against the municipality of Añasco, involves several points and that precisely at the time the same was filed, although the law to divide Porto Rico into road districts and providing for the construction thereof had been promulgated, as appears from the communication of the Commissioner of the Interior, the board of inspectors alluded to in that law was constituted on January 12, 1903, it was to be deduced that the said complaint was filed against a person who possessed the character and representation under which he was sued, overruling the demurrer interposed, with costs against the defendant, and ordering the hearing of the case to be proceeded with. Counsel for defendant took an exception to said ruling of the court, and his exception was entered upon the minutes by order of the court. The hearing having been proceeded with, the evidence offered by plaintiff was taken, the first being the expert testimony, Ricardo Skerrett testifying in reply to questions propounded by counsel for the plaintiff that having gone to barrio ‘Carreras,’ in the municipality of Añasco, accompanied by Agustín Pesante, the alcalde of said town, Ignacio Sein, Jose Reyes and José Leocadio García, he proceeded to make an examination of the land which is involved in this litigation, the result of said examination being that no signs were found which would indicate that the said roads called ‘Boca de Casey’ and ‘La Ceiba,’ which were said to have crossed the said land, had been open to the public during the two years last past, the said expert witness being of the opinion that the said roads had been abandoned for the last ten years, there being no evidence that any work whatever had been done upon them. The said expert witness for the defendant testified, among other things, that he had not found the roads called ‘Boca de Casey’ and ‘La Ceiba,’ involved in this litigation. Counsel for plaintiff requested that the written report of the expert witness and the drawing of the property presented at the hearing be attached to the record, counsel for the defendant objecting for the reasons which he then stated. After consultation the court overruled the exception and ordered that the documents be so attached to the record, to which ruling counsel for defendant excepted, and his exception was entered upon the minutes of the court. To questions propounded by counsel for defendant, the expert witness testified that the aforesaid roads ‘Boca de Casey’ and ‘La Ceiba’ did not exist, he having found no tracks or signs which would indicate their existence, and making other statements relative to the examination which he made. Upon the hearing of the testimony of the witnesses for the plaintiffs, Ernesto Esteves testified that he is acquainted with the lands belonging to the Central Bianchi and has been an adjoining landowner for twenty or twenty-five years; that many years ago two roads called ‘Boca de Casey’ and ‘La Ceiba,’ subject to a servitude, crossed the said lauds; that the former has not been open to the use of the public for twenty-seven or twenty-eight years, and that he has never used the said roads; that recently the municipality of Añasco attempted to open that road by a route which never existed; that the road called ‘La Ceiba’ had not been open to the use of the public for eight or ten years. The witness made several other statements in reply to questions propounded by opposing counsel and by the court in regard to the road in -question. The testimony of the other witnesses was the same as the foregoing except that of the last two, one of whom testified that he only knew of a lane called ‘Los Ríos,’ and the other witness, that he knew a lane called ‘La Ceiba,’ both witnesses testifying that the said lanes are closed and have been so closed for the last eight or ten years, respectively.
    “The testimony of the witnesses for the defendant having been likewise taken, Felipe Velez testified that he knew a public road called ‘Boca de Casey’ over which every one traveled, and that he knows of his own knowledge that the same is now closed. The testimony of the other witnesses was to the same effect, except that one of them added that he had traveled over the said road, and another one that he had gone over the said road six or seven months before and that he had seen the same closed; not knowing by whose order it was so closed. The last witness testified that the aforesaid road was open during the gathering of this year’s crop, and that it had been a public road ever since the year 1856, it now being closed, witness not knowing for what cause. All the evidence being in, counsel for both parties made such oral arguments as they deemed proper in support of the contentions of their respective clients.
    “On the day and hour designated this judgment was rendered by unanimous vote taken in open court.
    “All the legal formalities have been complied with in the conduct of the proceedings herein. Associate Judge Enrique Gonzalez Darder prepared the opinion of the court.
    “From the expert testimony and the testimony of witnesses introduced by the plaintiff, and even the documentary evidence, such as the certificate which appears on folios 59 and 60 of the record, and which contains the report of the commission first appointed by the municipal council of Añasco to report upon the opening of the roads in litigation, it appears that if these roads were ever open to the public and were not private rights of way between the adjoining estates, they were closed and abandoned for a period of time in excess of twenty years in regard to the so-called ‘Boca de Casey’ road, and for eight years with respect to the one called ‘La Ceiba. ’
    “Aside from the legal character of those roads or paths, and the effects of the period of time during which they were abandoned or closed, it clearly appears from all of the evidence taken together, that the defendant municipality adopted a resolution the annulment of which is requested by the plaintiff, and the alcalde of Añasco effected the opening of said roads which were closed to the public traffic during the period of time above indicated, the said corporation thus arrogating to itself powers which it does not possess under the laws creating the same and governing the operation thereof at the time of the adoption of the resolution attacked.
    “The obligations imposed and the consequent powers conferred upon municipal councils by article 77 of the Municipal Law, promulgated on December 31, 1886, and in force on April 7, 1902, which is the date upon which the said resolution was adopted, refer only to the construction and maintenance of neighborhood roads and compels persons interested in rural roads to' maintain and repair the same from the beginning of the existence thereof in every case, as appears from the spirit and the letter of article 77, and the municipalities are not thereby vested with the powers which 'appertain only to courts of justice, i. e., to define the nature of alleged rural roads or old roads, closed to the public, or to order the opening or reopening thereof.
    “The Royal Order of February 4, 1887, cited by both parties in support of their respective claims, was also based upon the principles hereinbefore set forth. This royal order provides that the administration has a limited jurisdiction with reference to the continuance of the existing control of rural roads and in the general rules of rural police, the ordinary courts having jurisdiction with respect to the property in and the situation of said roads, and of everything conducive to the interests of private servitudes, and in no way affecting the public interest, and in the case at bar the abandonment and closing of the roads in litigation for a long period of time, which constitutes the existing control, could in no wise be altered or changed by the defendant corporation.
    “The resolution adopted by the municipal council of Añasco, in contravention of article 77 of the Municipal Law above cited, and of the substantive civil provisions which govern property rights and possession, is null and void according to article 4 of the Civil Code.
    “The validity or nullity of the aforesaid resolution has been the essential subject in dispute, it being an established fact between the. parties before the commencement of the judicial controversy that the ownership and possession of the said roads is in Juan Bianchi, who filed the complaint, as appears from the certificates, resolutions, and records of the municipality of Añasco, and the committees appointed thereby to report upon the opening of the roads, as also from the administrative proceedings had prior to the commencement of this judicial proceeding.
    “Neither were the ownership and the possession of the lands occupied and crossed by the said roads denied; but on the contrary they were acknowledged by the defendant, as appears from the first allegation of the answer to the complaint' and demurrer interposed, and which first allegation is reproduced in the fifth allegation of the answer to the complaint itself, and the ninth allegation thereof is based upon these facts, which were acknowledged by the parties, and all of the expert testimony and the testimony of witnesses introduced by the parties is upon this same point, concerning the ownership and the possession of said lands.
    “Whether the court exercises or does not exercise the- power conferred upon it by article 689 of the Law of Civil Procedure, the fact referred to in the foregoing allegation is clearly established.
    “The resolution attacked is null and void, and matters must be restored to their former status, and no decision being reached in this judgment which affects the servitudes, or the rights of any other character appertaining to the persons interested in the declaration respecting the opening of the alleged road or paths, such rights as the said parties may believe themselves to possess in the premises are hereby reserved to them, in accordance with the request of the plaintiff contained in fourth prayer of the complaint.
    “The costs in all cases should be paid by the litigants whose claims have been dismissed.
    “In view of the legal provisions cited, and such others as are applicable to the case at bar, we adjudge that we should sustain and do. sustain this complaint, and therefore hold that the resolution involved herein is null and void, as well as that the ownership and possession of the lands occupied and crossed by the said alleged roads are in the heirs or successors of Juan Bianchi Pagán, matters being restored to their former condition, and the said roads, whose opening was ordered by the municipal council of Añasco, are hereby ordered to be closed; reserving to the interested parties, in the judicial declaration relative to servitudes and other analogous rights, the right to prosecute such actions as may be proper in the premises, and the costs of this proceeding are taxed against the defendant corporation.
    ‘1 Thus by this our judgment, finaUy adjudging, do we pronounce, command and sign. Arturo Aponte, J. A. Erwin, Enrique González Darder. ’ ’
    From this judgment the municipal council of Añasco, through its counsel, took an appeal, which was allowed both for a review and stay of proceeding, and the record having been sent up to this court, and the parties cited, and they having made their appearance herein, the proceedings were properly conducted and a day set for the hearing, which duly took place, counsel for the parties being present at the same.
    
      Mr. Guzmám Benitez {José), for appellant.
    
      Mr. ele Biego, for respondent.
   Me. Chief Justice Quiñones,

after making the foregoing statement of facts, rendered the opinion of the court.

The findings of fact and all of the conclusions of law, except the sixth, seventh, eighth and tenth, contained in the judgment from which this appeal was taken, are accepted.

Although the evidence which appears in the record is sufficient to prove that Juan Bianchi y Pagán and his estate have been in possession of the lands occupied by the roads involved in this litigation, it is not sufficient to warrant us in holding that the ownership of these lands is in said estate, since no evidence whatever upon this point has been concretely and specifically introduced by the plaintiff estate.

In accordance with section 63 of General Order No. 118, series of 1899, costs should be imposed upon the litigant whose demands are in all things dismissed, and that in other cases the court should assess the same in accordance with equity.

In view of the legal provisions cited in the said judgment and applicable to the case, we adjudge- that we should affirm and do affirm the judgment appealed from, except in so far as it is held therein that the ownership of the land occupied and crossed by the roads in question is in the plaintiff estate, upon which point the complaint is hereby dismissed, no special imposition being made of the costs in the proceedings.

Justices Hernández, Higueras, Sulzbacher and MacLeary concurred.  