5 P.R. Fed. 492 | D.P.R. | 1910
delivered the following opinion:
This is another of what have come to be known as the Caño de Tiburones cases. It is said that several similar cases have been, or are, pending in the insular courts. The first of them with which we had to do in this court was that of Rubert y Catala v. Grahame, 4 Porto Rico Fed. Rep. 538, where a statement of the supposed facts surrounding the situation can be found. To repeat them in about the same form, they are about as follows:
Prom time immemorial there has existed along the north shore of the island of Porto Rico, parallel to the Atlantic ocean, and only separated from it by a spit of land from a few hundred years to about a mile wide, a slough or swamp known in early days as “El Caño de Tiburones,” and later as “El Caño or Laguna de Tiburones.” The slough or swamp is about 12 miles long, reaching from near Bareeloneta, on the east, to Arecibo, on the west. It was pretty well established by the evidence that there is within it a channel or channels of open water for a short distance on the east end, and for a slightly longer distance on the west end; but the evidence was in great conflict as to whether any such open water existed through the remaining 7 or 8 miles of the middle portion or body of it. In width this caño or swamp varies from several hundred yards to a mile and a half or more. It is almost entirely covered by what the
It was fully established in evidence that for several years past, and probably from time immemorial, this Caño de Tibur-ones and more or less of the swamp lands surrounding it have been considered as public land, which it is said was owned by the government in Spanish times, and which of course passed to the United States under the treaty of Paris, and was afterwards, under § 13 of the Foraker law (31 Stat. at L. 80, chap. 191), turned over to the island, to be administered by the local government for the benefit of the people of Porto Eico. The local legislature was given full power to legislate with regard to all such public property.
In December, 1907, the local legislature leased or gave a concession or franchise for all of the land embraced in this Caño
We are concerned with but two pieces of abutting property
A trial of the issues was had in open session by the court itself without the intervention of an examiner or master, which occupied five or six days, beginning February 28, 1910. "While the suit is against John A. Wilson as an individual, naturally, the island being interested in delivering the land it claims to own, to the respondent Borda, under its concession to him, the attorney general’s office represented him in the suit, and within the month following the trial fifty-page carefully prepared briefs and arguments were filed by both sides, setting forth their respective legal contentions. Whilst it involved considerable labor to examine the record and these briefs, still it was interesting, owing to the range counsel took in their views of the situation. However, we have come to see the law of the case in a much simpler light than at first.
The bill as originally filed set out that complainants had
The two tracts that are in dispute here are situated 2 or 3 kilometers west of Barceloneta, opposite the little station of Citrus, on the American Railroad. They are parcels of land carved out of a collection of fruit faiuns known as the Cummings plantations, which were started some few years ago on the south shore of the caño at that place. They are not contiguous, because a tract of land known as parcel No. 13 on the plat referred to, belonging to the Cameron heirs, comes in between them. So far as the record shows, there appears to be no dispute as to this Cameron tract, that estate not claiming to own beyond the line demarked by the government for Borda as the south boundary of the Caño or Laguna de Tiburones. The width of parcel No. 72 from east to west is probably fotir or five hundred yards, and that of parcel No. 74 somewhat more.
Complainants start their titles back many years, probably half a century, from two original tracts of 480 and 420 cuerdas respectively, and from which they claim the two parcels in controversy, one of 156 cuerdas and the other of 145 cuerdas, are carved or segregated, and they claim that the north line of these tracts respectively runs many hundreds of yards out.in this swamp or cortadera to this alleged open channel or center line, one of them, that north of parcel No. 74, having been surveyed a year or so ago, and, as it is said, stakes put out at
A fact worth mentioning also is that no deed introduced in evidence by complainants describes the north boundary as anything save the caño de Tiburones until a year after the date of the original lease or concession to Borda by the commissioner of the interior of the island and the legislature, and several months after the extension thereof, and after the actual beginning of dredging operations, when the deeds under which these complainants claim change the north boundary without apparent reason, and describe the land as part swampy and part pasture lands. This occurs for the first time in the deed of Cummings Brothers to one Knight, who, in a few days, conveys to complainants Mercelis and Greene under the same description. But in all the older deeds for the larger tracts from which the disputed parcels were carved, the land is described as pasture land. The complainant Greene transferred the 156 cuerdas of
We have many times since occupying this bench, when considering land titles, endeavored without result to ascertain the system by which land in Porto Eico left the sovereign and became vested in the subjects of the King of Spain. We were quite familiar with the system in vogue regarding the many millions of acres involved in the land grants emanating from the Spanish and Mexican governments in New Mexico previous to American occupation thereof, and were accustomed to have the actual Spanish grants (mercedes), expedientes, and archives introduced in evidence as the source of all such titles, but have seen nothing of that kind here, yet it is said such expedientes exist. Thus, we were not certain how the title to land in Porto Rico now held in private ownership left the sovereign.. However, in this case respondents introduced in evidence a copy of what is known as the real cédula de Carlos III., which is a land cédula or royal edict of King Carlos III., made January 14th in the year 1778, or, at least, what is said' to be a copy of it, which with a translation thereof is inserted at the end of this opinion. It seems that in that year (two years after American independence), the King made up his mind to vest the holders of land in Porto Rico with a sort of conditional title thereto; and, as can be seen, instructed his governor general to make an investigation in that record, and grant such titles to the people; and, at the same time, mentioned a grant of 4 leagues of land he had previously made to thé Duque de Mahon, and required that it be located and segregated. This latter merced is the only positive royal grant of land made di
It will be seen from the terms of this .real cédula that in a general sense the King of Spain, at that relatively recent date, did not concede that at least the ordinary farmer or vassal in Porto Pico had any title to the land he was occupying, but that the fee was still in the Crown. It will also be seen that in and by the cédula it was intended to ’foster agriculture and-cattle raising in Porto Pico, and only those were to be given title to their lands, or permitted to hold what they then were occupying, who should show themselves industrious, and who in fact made proper use of such lands. It will also be seen that there were certain waste lands apart from the agricultural and pasture lands and drinking places, that still remained to the King. It will also be seen that the King had in mind at the time the town of Arecibo, near which the lands we are now discussing are located, because by that very cédula he created it and other places into “villas.”
The government of the island, in support of its lessee’s claim to the possession of the land in controversy here, did not produce anything such as would ordinarily be expected in the way of proofs, such as plats, maps, lists of public land, deeds, ex-pedientes, or other muniments of title, showing that the caño or laguna in question was in fact public land. In fact, no real satisfactory evidence or lists of the public lands of the island,
After an impartial consideration of the whole case, we are constrained to believe and to hold that this Caño de Tiburones in all its extent has been, from time immemorial, save where specifically granted away by the King, or under his laws or order, and still is, .public property, and that none of the deeds to land in that vicinity that use the Caño de Tiburones as a boundary include any of the swamp land in question, but that the boundary of all such private land ends at the edge thereof.
As to tract No. 74 which complainant Greene recently conveyed to complainant Domeneeh, we think the survey of the 156 acres in question out into the swamp was a pure act of aggression, and that none of the deeds upon which the same is claimed to be based call for any of that land as being included within the description. We are of opinion that, as time passed, this
Therefore an independent surveyor will at once be named by the court, to proceed to the tracts of land in question, Nos. 72 and 74, as described in exhibit Q for complainants, and he shall demark and stake out the boundary line between the parties as to each of the tracts as here intended, leaving the springs in each instance, together with not less than 10 feet of ground north of the edges thereof at such places to the complainants respectively, and shall meander the boundary from such points respectively to conform to the actual swamp across the front of each tract, and within the actual swamp as intended by this opinion.
It is our view that both parties are to blame for this litigation, —the complainants for claiming more land than ■ they are in fact entitled to, and respondents for doing exactly the same thing; hence, each party will be required to pay their own costs respectively, and those of the surveyor to be so sent to the
SECRETARIA GENERAL DEL SUPERIOR GOBIERNO, CAPITANIA GENERAL Y SUPERINTENDENCIA DELEGADA DE REAL HACIENDA DE PUERTO RICO.
Real Cédula de 14 de Enero de 1778 para el Repartimiento de Terrenos.
El Rey:
Con presencia de lo representado por mi gobernador y eapitan general de la isla de San Juan de Puerto Rico y del cavildo secular y vecinos hacendado de ella, en que manifiestan estar prontos aquellos naturales á proporcionar un arbitrio con que costear el vestuario y armamento del las milicias disciplinadas de aquella isla, para lo cual propusieran como mas conveniente el impuesto de real y cuartillo por cada cuerda de tierra de las de estancias, y tres cuartillos de real en cada cuerda de' hato, si se les •concedía la propiedad de tierras que hasta ahora han tenido en uso los vecinos de allí. Deseoso yo siempre de facilitar á mis fieles vasallos todos los auxilios posibles, he venido en conceder á los vecinos de la expresada isla, la propiedad de tierras que solicitan, con objeeto de escitar 8. aquellos naturales la aplicacón al mayor cultivo de ellos, con tal que lo verifiquen con la contribución anual de un real y cuartillo por cada cuerda de estancia, y la de tres cuartillos de real por la de cuerdas de hatos, con el fin espresado
DEPARTMENT OF THE GENERAL SECRETARY OF THE SUPERIOR GOVERNMENT. OFFICE OF THE CAPTAIN GENERAL AND DELEGATED SUPERINTENDENT OF THE ROYAL TREASURY OF PORTO RICO.
Royal Decree of January 14th, 1778, foe the Distribution of Lands.»
The King:
In view of the representations made by my governor and captain general of the island of Porto Rieo, and of the secular municipal council and resident planters thereof, in which they state that the said citizens are about to levy a license tax wherewith to pay for the uniforming and arming of the disciplined militia of that island, for. which purpose they propose as most advisable the imposition of a tax of a “real” and a “cuartillo” upon each cuerda of land comprising' the hatos,” if a grant were made to them of the ownership'of-the lands which the residents thereof have, up to the present time, had in use. Always being desirious of affording my faithful vassals all the assistance possible, I hereby grant to the residents of the said island the ownership of the lands for which they ask, with the object in view of encouraging the said residents to apply themselves to the greatest possible cultivation of the said lands, provided they do so by the payment of an annual tax of one “real” and a “cuartillo” upon each cuerda of estancia lands and a tax of three “cuartillos” of a “real” upon each cuerda of hato lands, for the said purpose of paying the expenses of uniforming and arming the disciplined militia of the said island, and in order to facilitate the administration of these two industries, that is to say, cattle raising and agriculture, which are the principal industries of the island, with a just proportion of the lands adapted to each, and in order that the greater development of one may not decrease the other, I order that the governor of the island, after the appointment of intelligent persons, by the landowners engaged in the two industries, agriculture and stock raising, with the assistance of Don Pedro Vicente de.la Torre, that of the solicitor syndic first, and that of another councilman of the city, with two persons of probity, to be designated by the governor, to attend and authorize the transaction, proceed to make an examination and ocular inspection of all the lands within the island, designating the lands which are best suited for cultivation, and the kind of products, if any, which shall be grown upon each, according to the usefulness of each; second, also formally designating the lands which are suitable for grazing and the raising of all kinds of live stock, having in mind the most beneficial and
Copy.
(There is an illegible signature.)