García v. Díaz

33 P.R. 98

Opinion

Me. Justice Wole

delivered the opinion of the court.

In an injunction proceeding to recover possession of a piece of real estate the District Court of Ponce rendered judgment against complainant.

We do not find that the court was in error in holding that the land was insufficiently described, if, as purported in the complaint, the defendant deprived complainant of a distinct portion of the land. The complainant merely said that defendant deprived her of a piece of land, putting a fence around it and setting off the number of meters.

The appellant insists, however, that the court should have sustained the demurrer to her complaint on this ground and given her a chance to amend. Appellant cites no authority and we are under the impression that the demurrer •was a sufficient notice to complainant and she can hardly be heard to complain of the lack of attention to her own deficiency. The appellant maintains tliat tlie defect in the complaint was cnred by the evidence.

The court was not bound to take a view. This is dis-cretional and no abuse of discretion was shown.

The appellant insists that the case really turned on acts of disturbance and violence of defendant, rather than on a change in the possession. Appellee counters by saying that this is a change of the trial court’s theory. The contention of appellee , is justified by an examination of the complaint, and appellant does not show that appellee stood by and permitted the variance to such a point as to bring him within principles of waiver as indicated by sections 136-138 of the Code of Civil Procedure.

The evidence tends to show tliat the complainant bought a piece of land of defendant; that the parties never successfully defined the boundaries; that with the consent, if not at the instance, of complainant, after one abortive attempt years before, the surveyor (Bias Silva) made a survey, and that defendant caused a fence to be put up running along the boundary lines, and that part of this fence ran up to the balcony of complainant.

The appellant however did not show that she was deprived of any part of the house or that her ingress to - or egress from the house was prevented and there was no satisfactory proof that she was in possession of any part of the land over which the fence runs.

The judgment must be

Affirmed.

Chief Justice Del Toro - and Justices Aldrey, Hutchison and Franco Soto concurred.