Mr. Justice Hutchisow
delivered the opinion of the court.
Félix Solis appeals from an order for the examination and survey of certain property belonging to him, entered in a proceeding instituted under the authority of section 286 of the Code of Civil Procedure, and insists that—
“1. The court erred in overruling the demurrer filed by defendant Félix Solis in this suit.
“2. The court erred in making its final order, but it does not appear from the record that the prior demand required by section 286 of the Code of Civil Procedure was ma’de.
“3. The court erred in admitting in evidence deed No. 138 executed by Francisco Rivera, Artigues in favor of Alejandro Laborde Quintero.
“4. The court erred in ordering a survey of the property of defendant Félix Solis because the evidence examined is not sufficient to support such an order. ’ ’
The grounds of demurrer, as specified in the court below, were:
“That the petition in this case does not state facts sufficient for ordering a survey under section 286 of the Code of Civil Procedure.
“That there is misjoinder of parties defendant, inasmuch as persons are sued and properties are described which are not contiguous to that of the plaintiff.
“That the petition is ambiguous and uncertain, for it does not [784]*784point out clearly the property with, which the boundaries are confused, and this would be necessary in order that a party might properly defend.”
The essential averment of the amended complaint, omitting descriptions of the thirteen properties enumerated therein as belonging to the different defendants, are as follows:
“Second: That the plaintiff is the owner of the following property:
“Rural property, high land, situated in the ward of Guayanés of the Municipality of Yabueoa, consisting approximately of sixty acres of land and bounded on the south by the sea-shore; on the north by Miaría Limardo; on the east by Marcos Solis, and on the west by lands of Roberto de la Cruz, Succession of Pendás and Domingo Figueroa. ’ ’
“Third: That defendants, some by inheritance from their ancestor Marcos Solis and others by purchase from some of the heirs of the said ancestor, are the owners of several parcels of land in the ward of Guayanés, of the Municipality of Yabueoa, which they now possess, and making a total of two hundred and twenty-seven and ninety-six hundredths acres which are described as follows: * * *
“Fourth: That according to the knowledge and belief of the plaintiff, the boundaries of his property and those of that of the defendants are so confused.that the said defendants are using a part of the plaintiff’s property without any title thereto and therefore to the prejudice of the plaintiff. And the plaintiff alleges that in order to define the said boundaries and claim whatever land the said defendants are illegally withholding it is necessary that an examination and survey be made of all of the properties now in the possession of the said defendants in the aforesaid ward of Guayanés.
“Fifth: That on February 17th, 1920, the said defendants were duly requested to allow an examination and survey by the plaintiff of all of the aforesaid properties in the said ward and that notwithstanding the time elapsed, they have neither authorized nor refused to consent to the said examination and survey of their aforesaid properties.”
The theory of the contention as to the alleged failure to state a canse of action is that a mere confusion of boundaries does not. justify a resort to the procedure prescribed [785]*785by section 286 of the Code of Civil Procedure, and the cases of McCormick v. Molinari, 16 P. R. R. 409, and Blasini v. Colón, 24 P. R. R. 336, are cited in support of this proposition. But the complaint herein alleges not only a confusion of boundaries, but also that the defendants “are utilizing a portion of plaintiff’s property, without right thereto,” and further that in order “to assert a claim to (reclamar) whatever land may be unlawfully in the possession of the said defendants an examination and survey of all the properties now possessed by the said defendants, within the aforesaid barrio of G-uayanés, is necessary.” It follows that the cases cited are not in point.
In support of the second ground of demurrer, section 104 of the Code of Civil Procedure is cited, but that section refers to the joinder of several causes of action in one complaint, and there is no suggestion that plaintiff herein has attempted to state more than one cause of action. Title IV, sections 51-74, inclusive, of the Code of Civil Procedure is devoted exclusively to the matter “of the parties to civil actions,” and section 63 provides that “any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of the question involved therein.” It may be, and no doubt often happens in cases like the one now before us, where a large property has been subdivided into many small parcels which have passed into the hands of different owners, that a survey of more than one or all of such segregations is necessary to the location and identification of .the shortage resulting from a survey of lands adjoining such larger original tract. If this be true, as plaintiff herein alleges to be the fact, it would seem to be immaterial whether or not the property of plaintiff adjoins each and every of the smaller parcels originally contained in the larger tract and now owned by the respective defendants. The question is not one of contiguity, but of [786]*786interest and of reasonable necessity as a means to the discovery of evidence to be used in the contemplated suit. In the case at bar the existence of an interest in the larger tract out of which the various parcels now in possession of the several defendants were carved, is undisputed, and the necessity of a survey of all subdivisions in order to determine the area and true boundary of the larger tract, or of integral portions thereof adjoining the lands of plaintiff, .■supplies whatever interest the statute may require in each «.of such segregations.
Likewise, as to the third ground of demurrer, it should he borne in mind that this is not a suit for the recovery of land, but merely a preliminary investigation for the purpose of ascertaining facts to be used as evidence in the proposed action when instituted. In so far as the question here sought to be raised has not been disposed of already, it will suffice to add that, in the descriptions of four of the thirteen parcels alleged to belong to different defendants, Alejandro Laborde is referred to as an adjoining owner. Of the seven subdivisions owned by appellant, one is bounded on the west and another on the north by lands of Domingo Figueroa mentioned in the description of plaintiff’s property as adjoining the' same on the west. Another of these seven properties, which is also one of the four above mentioned, is described as bounded on the north by Alejandro Laborde.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Hutchisow
delivered the opinion of the court.
Félix Solis appeals from an order for the examination and survey of certain property belonging to him, entered in a proceeding instituted under the authority of section 286 of the Code of Civil Procedure, and insists that—
“1. The court erred in overruling the demurrer filed by defendant Félix Solis in this suit.
“2. The court erred in making its final order, but it does not appear from the record that the prior demand required by section 286 of the Code of Civil Procedure was ma’de.
“3. The court erred in admitting in evidence deed No. 138 executed by Francisco Rivera, Artigues in favor of Alejandro Laborde Quintero.
“4. The court erred in ordering a survey of the property of defendant Félix Solis because the evidence examined is not sufficient to support such an order. ’ ’
The grounds of demurrer, as specified in the court below, were:
“That the petition in this case does not state facts sufficient for ordering a survey under section 286 of the Code of Civil Procedure.
“That there is misjoinder of parties defendant, inasmuch as persons are sued and properties are described which are not contiguous to that of the plaintiff.
“That the petition is ambiguous and uncertain, for it does not [784]*784point out clearly the property with, which the boundaries are confused, and this would be necessary in order that a party might properly defend.”
The essential averment of the amended complaint, omitting descriptions of the thirteen properties enumerated therein as belonging to the different defendants, are as follows:
“Second: That the plaintiff is the owner of the following property:
“Rural property, high land, situated in the ward of Guayanés of the Municipality of Yabueoa, consisting approximately of sixty acres of land and bounded on the south by the sea-shore; on the north by Miaría Limardo; on the east by Marcos Solis, and on the west by lands of Roberto de la Cruz, Succession of Pendás and Domingo Figueroa. ’ ’
“Third: That defendants, some by inheritance from their ancestor Marcos Solis and others by purchase from some of the heirs of the said ancestor, are the owners of several parcels of land in the ward of Guayanés, of the Municipality of Yabueoa, which they now possess, and making a total of two hundred and twenty-seven and ninety-six hundredths acres which are described as follows: * * *
“Fourth: That according to the knowledge and belief of the plaintiff, the boundaries of his property and those of that of the defendants are so confused.that the said defendants are using a part of the plaintiff’s property without any title thereto and therefore to the prejudice of the plaintiff. And the plaintiff alleges that in order to define the said boundaries and claim whatever land the said defendants are illegally withholding it is necessary that an examination and survey be made of all of the properties now in the possession of the said defendants in the aforesaid ward of Guayanés.
“Fifth: That on February 17th, 1920, the said defendants were duly requested to allow an examination and survey by the plaintiff of all of the aforesaid properties in the said ward and that notwithstanding the time elapsed, they have neither authorized nor refused to consent to the said examination and survey of their aforesaid properties.”
The theory of the contention as to the alleged failure to state a canse of action is that a mere confusion of boundaries does not. justify a resort to the procedure prescribed [785]*785by section 286 of the Code of Civil Procedure, and the cases of McCormick v. Molinari, 16 P. R. R. 409, and Blasini v. Colón, 24 P. R. R. 336, are cited in support of this proposition. But the complaint herein alleges not only a confusion of boundaries, but also that the defendants “are utilizing a portion of plaintiff’s property, without right thereto,” and further that in order “to assert a claim to (reclamar) whatever land may be unlawfully in the possession of the said defendants an examination and survey of all the properties now possessed by the said defendants, within the aforesaid barrio of G-uayanés, is necessary.” It follows that the cases cited are not in point.
In support of the second ground of demurrer, section 104 of the Code of Civil Procedure is cited, but that section refers to the joinder of several causes of action in one complaint, and there is no suggestion that plaintiff herein has attempted to state more than one cause of action. Title IV, sections 51-74, inclusive, of the Code of Civil Procedure is devoted exclusively to the matter “of the parties to civil actions,” and section 63 provides that “any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of the question involved therein.” It may be, and no doubt often happens in cases like the one now before us, where a large property has been subdivided into many small parcels which have passed into the hands of different owners, that a survey of more than one or all of such segregations is necessary to the location and identification of .the shortage resulting from a survey of lands adjoining such larger original tract. If this be true, as plaintiff herein alleges to be the fact, it would seem to be immaterial whether or not the property of plaintiff adjoins each and every of the smaller parcels originally contained in the larger tract and now owned by the respective defendants. The question is not one of contiguity, but of [786]*786interest and of reasonable necessity as a means to the discovery of evidence to be used in the contemplated suit. In the case at bar the existence of an interest in the larger tract out of which the various parcels now in possession of the several defendants were carved, is undisputed, and the necessity of a survey of all subdivisions in order to determine the area and true boundary of the larger tract, or of integral portions thereof adjoining the lands of plaintiff, .■supplies whatever interest the statute may require in each «.of such segregations.
Likewise, as to the third ground of demurrer, it should he borne in mind that this is not a suit for the recovery of land, but merely a preliminary investigation for the purpose of ascertaining facts to be used as evidence in the proposed action when instituted. In so far as the question here sought to be raised has not been disposed of already, it will suffice to add that, in the descriptions of four of the thirteen parcels alleged to belong to different defendants, Alejandro Laborde is referred to as an adjoining owner. Of the seven subdivisions owned by appellant, one is bounded on the west and another on the north by lands of Domingo Figueroa mentioned in the description of plaintiff’s property as adjoining the' same on the west. Another of these seven properties, which is also one of the four above mentioned, is described as bounded on the north by Alejandro Laborde. In the circumstances we can not say that the complaint, however defective it may be in other respects, is ambiguous and uncertain in the matter of indicating the points of contact or alleged overlapping as between the property of plaintiff and the different parcels in the possession of the respective defendants.
The writing complained of in the second assignment reads thus:
“Humacao, P. R., February 17, 1920. — Messrs. Félix Solis, Antonio Cruz, Estebanía Rosi, Marcelina Solis, Manuel García, Vellón [787]*787and Valentina Gautier. — Wards of Guayanés and Oandelero Abajo of Humaeao and Yabueoa, P. R.
“Dear Sirs: — This is to inform you that I am the owner of a property adjacent to the one you have in the wards of Humaeao and Yabueoa and also the lawful representative of the Succession of Pen-dás, who are also adjacent property owners.
“That after having made a survey of my property as well as of that of said succession we have found a great shortage in our lands, and inasmuch as orders have been given by you to your peons to destroy the fences at points where we think our properties are bounded by yours, we desire to make a survey of the property possessed by you in order to ascertain the exact amount of land in your possession which forms part of our property.
“We make this request under the provisions of section 286 of the Code of Civil Procedure, as we really believe that the missing portion of our properties is included in the divisory lines or demarcation that you ordered to be destroyed. — Respectfully, (Sd.) A. La-borde.”
Tlie argument as to the alleged, insufficiency of this notice proceeds along the same lines as that in support of the third ground of demurrer to the complaint, and the document in question, like the complaint, leaves much to be desired; but we can not say that it is so vague and uncertain as to justify appellant in ignoring it altogether. If any of the details omitted apparently upon the assumption that they were within the knowledge of defendants were not so known to them, any further information desired in this regard no doubt would have been forthcoming on request. In any event, neither prejudice nor a disposition to accommodate plaintiff by permitting a survey of any of the lands in possession of appellant, whether adjoining those of plaintiff or otherwise, is shown.
In the brief we are told that the instrument referred to in the third assignment neither appears to have been recorded in the registry of property nor does it set forth the manner in which the vendor acquired the property therein transferred to plaintiff. The deed in question is not before us, and,' at [788]*788the time of objecting* to its admission as evidence, no mention was made of its failure to disclose the source of the vendor’s title. The trial judge, in his ruling* upon the objection as made, on admitting* the document for what it was worth in its bearing upon the right of plaintiff to a survey, called attention to the fact that the proceeding then in progress was not a suit for the land, and the brief for appellant discloses no very cogent reason wli3T an unrecorded deed should be rejected as evidence of such right in plaintiff.
As to the fourth assignment, it will suffice to say that although the proof, like both the complaint and the previous demand in writing, is not very satisfactory, yet no evidence was introduced by the defense, and if the trial judge believed the witnesses for plaintiff, as apparently he did, we can not say that the prima facie showing so made is insufficient to support the conclusion reached below.
The order appealed from must be
Affirmed.
Chief Justice Hernández and Justices Wolf, Del Toro and Aldrey concurred.