Mb. Chief Justice Hebuastdez
delivered the opinion of the court.
On March 8 of last year (1909), Jnan Carlos MacCor-mick Hartmann, with his legitimate wife, Avelina Murdoch Cora, Enrique MacCormiek Hartmann, and the estate, of the deceased Guillermo MacCormiek Hartmann, consisting of his wife, Sara Noble, and his minor children named Josefa Adela and Gloria Ethelnerga MacCormiek Noble, filed a complaint in the District Court of Gnayama against Rufina Molinari Sán-chez, Enriqueta Díaz Anés, María Hortensia Díaz Molinari, and María Esperanza Díaz Molinari, accompanied by their respective husbands, Manuel Cividanes, Fernando Calimano, Antonio Arguellas, and Manuel Texidor, and against the Estate of Concepción Díaz Fraticelli de Palés, consisting of her husband, Domingo Palés, and his children named Mercedes Palés y Díaz de Albertini, Lucila, Rafael, Luisa, Enriqueta, Eduardo, and Jesús Palés, alleging in support thereof the following fundamental facts:
1. That the plaintiffs are the owners and legitimate possessors of two adjoining estates named ‘'Reunión” and “Ca-yures,” both of them situated in barrio “Jobos,” within the municipal district of Guayama, with the area and metes and bounds described in the complaint.
2. That the defendants named are the coowners or sole possessors of another estate called “Merced,” likewise situated in barrio “Jobos,” within the municipal district of Gua-yama, the area and metes and bounds of which are also described in the complaint.
3. That the adjacent estates of the plaintiffs and that of the defendants adjoin each other, the boundaries thereof, being confused, having disappeared, or been forgotten or xinknown through natural causes, fortuitous accidents, or voluntary acts on the part of some persons.
[391]*3914. That the peisons interested in the adjoining estates have not been able to reach a private definite agreement in order to put an end to the innumerable inconveniences and prejudices due to such confusion of boundaries.
The complaint closes with the prayer that final judgment be rendered directing the following:
1. The survey and demarcation of estates “Reunión” and “Cayures” belonging to the plaintiffs, with the citation of the adjoining owners.
2. That the survey and demarcation be made in accordance with the titles of each owner, and in the absence of sufficient titles, in accordance with the possession of the adjoining owners.
3. That along the boundaries or division lines between estates “Reunión” and “Cayures” on the one hand, and “Merced” on the other, the plaintiffs have a right to fence in their property by means of walls, ditches, hedges, live or dead, or in any other manner, placing the proper marks in a visible, permanent, and unalterable manner.
4. That with regard to the dividing line or lines between estates “Reunión” and “Cayures” and “Merced,” that they be determined, established and fixed, taking into consideration old marks, posts, and signs which each farmer may have fixed.
5. That the litigant opposing the complaint pay the costs and expenses.
In answering the complaint- María Esperanza Díaz Moli-nari acquiesced in the demand of the plaintiffs, setting forth that it was the first time she had heard of it, and prayed that she be held to agree to the survey requested,' without any costs being taxed against her.
The defendant, Enriqueta Díaz Anés, accompanied by her husband, Fernando Calimano, answered that she agreed to the petition in the complaint as to the survey and demarcation of the estates referred to in the same, with respect to her interest therein, adding that had she previously had notice [392] of the demand of tlie plaintiffs she would have acquiesced therein, without the necessity of a judicial action, for which reason she prayed that she be held to have acquiesced, without costs.
The defendants, Domingo Palés, Luisa María Palés de Ber-nardini, Mercedes, Rafael, and Eduardo Palés Díaz, and Luci-la, Enriqueta, and Jesús María Palés Díaz, the last three being minors and represented by their legitimate father, Domingo Palés, alleged in their answer that they did not and never had opposed the plaintiffs in making the survey and demarcation of the estates belonging to them, the complaint to which they made answer being the first notice that they had, as to the claim of the plaintiffs; but they understand that the proceedings instituted are not the proper proceedings inasmuch as an ordinary declaratory action had been availed of 'instead of the proceedings prescribed for cases of this character by section 286 of the Code of Civil Procedure, for which reason they prayed the court that, if it so held, it be pleased to dismiss the complaint, with the costs against the plaintiffs, or otherwise render judgment in accordance with the petition of the complaint, but reserving their rights as coowners of the estate “Mercedes.”
The defendant, Rufina Molinari, alleged in her answer that she opposed the complaint in every respect because it does not conform to the procedure established, for cases of survey, by section 286 of the Code of Civil Procedure, and that without prejudice to such opposition, she accepts as true the facts alleged in the complaint and does not object to the plaintiffs making the survey and demarcation of their property and fencing the same, wherefore she prays that the complaint be dismissed on the ground that the proceedings are not proper, with the costs against the plaintiffs; and, if this prayer is not granted, that the survey be permitted in the manner requested, reserving her right of possession, without any special taxation of costs.
[393] María Hortensia Díaz and ]ier husband, Antonio Argue-llas, absent and residing in the city of Oviedo (Spain), were summoned by publication, and, having failed to appear, their default was entered.
Upon holding the trial on the day set therefor, November 26, 1909, the court rendered the following judgment: ■
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Mb. Chief Justice Hebuastdez
delivered the opinion of the court.
On March 8 of last year (1909), Jnan Carlos MacCor-mick Hartmann, with his legitimate wife, Avelina Murdoch Cora, Enrique MacCormiek Hartmann, and the estate, of the deceased Guillermo MacCormiek Hartmann, consisting of his wife, Sara Noble, and his minor children named Josefa Adela and Gloria Ethelnerga MacCormiek Noble, filed a complaint in the District Court of Gnayama against Rufina Molinari Sán-chez, Enriqueta Díaz Anés, María Hortensia Díaz Molinari, and María Esperanza Díaz Molinari, accompanied by their respective husbands, Manuel Cividanes, Fernando Calimano, Antonio Arguellas, and Manuel Texidor, and against the Estate of Concepción Díaz Fraticelli de Palés, consisting of her husband, Domingo Palés, and his children named Mercedes Palés y Díaz de Albertini, Lucila, Rafael, Luisa, Enriqueta, Eduardo, and Jesús Palés, alleging in support thereof the following fundamental facts:
1. That the plaintiffs are the owners and legitimate possessors of two adjoining estates named ‘'Reunión” and “Ca-yures,” both of them situated in barrio “Jobos,” within the municipal district of Guayama, with the area and metes and bounds described in the complaint.
2. That the defendants named are the coowners or sole possessors of another estate called “Merced,” likewise situated in barrio “Jobos,” within the municipal district of Gua-yama, the area and metes and bounds of which are also described in the complaint.
3. That the adjacent estates of the plaintiffs and that of the defendants adjoin each other, the boundaries thereof, being confused, having disappeared, or been forgotten or xinknown through natural causes, fortuitous accidents, or voluntary acts on the part of some persons.
[391]*3914. That the peisons interested in the adjoining estates have not been able to reach a private definite agreement in order to put an end to the innumerable inconveniences and prejudices due to such confusion of boundaries.
The complaint closes with the prayer that final judgment be rendered directing the following:
1. The survey and demarcation of estates “Reunión” and “Cayures” belonging to the plaintiffs, with the citation of the adjoining owners.
2. That the survey and demarcation be made in accordance with the titles of each owner, and in the absence of sufficient titles, in accordance with the possession of the adjoining owners.
3. That along the boundaries or division lines between estates “Reunión” and “Cayures” on the one hand, and “Merced” on the other, the plaintiffs have a right to fence in their property by means of walls, ditches, hedges, live or dead, or in any other manner, placing the proper marks in a visible, permanent, and unalterable manner.
4. That with regard to the dividing line or lines between estates “Reunión” and “Cayures” and “Merced,” that they be determined, established and fixed, taking into consideration old marks, posts, and signs which each farmer may have fixed.
5. That the litigant opposing the complaint pay the costs and expenses.
In answering the complaint- María Esperanza Díaz Moli-nari acquiesced in the demand of the plaintiffs, setting forth that it was the first time she had heard of it, and prayed that she be held to agree to the survey requested,' without any costs being taxed against her.
The defendant, Enriqueta Díaz Anés, accompanied by her husband, Fernando Calimano, answered that she agreed to the petition in the complaint as to the survey and demarcation of the estates referred to in the same, with respect to her interest therein, adding that had she previously had notice [392] of the demand of tlie plaintiffs she would have acquiesced therein, without the necessity of a judicial action, for which reason she prayed that she be held to have acquiesced, without costs.
The defendants, Domingo Palés, Luisa María Palés de Ber-nardini, Mercedes, Rafael, and Eduardo Palés Díaz, and Luci-la, Enriqueta, and Jesús María Palés Díaz, the last three being minors and represented by their legitimate father, Domingo Palés, alleged in their answer that they did not and never had opposed the plaintiffs in making the survey and demarcation of the estates belonging to them, the complaint to which they made answer being the first notice that they had, as to the claim of the plaintiffs; but they understand that the proceedings instituted are not the proper proceedings inasmuch as an ordinary declaratory action had been availed of 'instead of the proceedings prescribed for cases of this character by section 286 of the Code of Civil Procedure, for which reason they prayed the court that, if it so held, it be pleased to dismiss the complaint, with the costs against the plaintiffs, or otherwise render judgment in accordance with the petition of the complaint, but reserving their rights as coowners of the estate “Mercedes.”
The defendant, Rufina Molinari, alleged in her answer that she opposed the complaint in every respect because it does not conform to the procedure established, for cases of survey, by section 286 of the Code of Civil Procedure, and that without prejudice to such opposition, she accepts as true the facts alleged in the complaint and does not object to the plaintiffs making the survey and demarcation of their property and fencing the same, wherefore she prays that the complaint be dismissed on the ground that the proceedings are not proper, with the costs against the plaintiffs; and, if this prayer is not granted, that the survey be permitted in the manner requested, reserving her right of possession, without any special taxation of costs.
[393] María Hortensia Díaz and ]ier husband, Antonio Argue-llas, absent and residing in the city of Oviedo (Spain), were summoned by publication, and, having failed to appear, their default was entered.
Upon holding the trial on the day set therefor, November 26, 1909, the court rendered the following judgment: ■
“To-day, the 26th of November, 1909, being the day set for the hearing of this suit, the plaintiff appeared by his counsel, Mr. López Landrón, and the defendants by their counsel, Messrs. Muñoz Morales, Texidor and Bernardini. Whereupon the complainant reproduced his complaint and requested from the court that he be allowed to amend the first title of said complaint, adding thereto the name of Enrique MacCormick, to which motion the attorney for the opposite party objected, and then the court, after considering section 140 of the Code of Civil Procedure and the cases of Acquittal et al. v. Crowell et al., 1 Cal., 191; Polk and Hanley v. Coffin and Swain, 9 Cal., 56, granted the authorization prayed for by the plaintiff to make the proposed amendment, thereupon the oral and written evidence of the plaintiff was introduced, and the defendants filed their answer to the complaint. In this case the attorney, Muñoz Morales, assisted by the other counsel for the defendants, made a motion for the dismissal of this suit for, the reasons orally stated; the adverse party made objection to the motion, and the court, after hearing the motion and the objection of the plaintiff, is of the opinion that the proceeding resorted to by the plaintiff to obtain the establishment of boundaries and landmarks of the properties referred to in the complaint is not the proper one in cases of this kind, which must conform to the requirements of section 286 of the Code of Civil Procedure. It does not appear from the face of the complaint that the defendants have refused to authorize the fixing' of the boundaries prayed for, and from the face of the answer it appears that they agree with the petition made by the defendant. Up to this stage there is no controversy about the matter. We are trying an.action where no issues are joined, without any controverted facts which may warrant a judicial order. If the defendants have not refused to authorize the fixing of the boundaries, they should not have been brought to court, and in case they make any refusal, then proceedings may be instituted in accordance with our Law of Civil Procedure. For the reasons aforesaid, the court, considering that the proceeding is not the proper one, orders the dismissal of this suit, with costs against the plaintiffs. ’ ’
[394] The plaintiffs took an appeal from said, judgment to this Supreme Court.
We understand that section 286 of the Code of Civil Procedure, which has been invoked by the lower court in its decision, is not applicable to this case.
The first paragraph of this section provides in substance that any person having a bona fide claim to the possession, title of, or interest in, any real property or mining claim which is in the possession of another may privately ask the latter for permission to make an examination or survey of his property, if it were necessary to ascertain, enforce or protect such rights, and if the person so in possession thereof fails or refuses for three days after demand in writing is made upon him, to permit such a survey or examination to be made, the party desiring the same may apply to the court or judge thereof, whether he has an action concerning such property pending in such court or not, for an order for such examination and survey.
The plaintiffs in this case do not claim the possession, title of, or interest in the estate of the defendants, “Merced,” and the survey which they request is not for the ascertainment, enforcement, or protection of such rights, and, therefore, there is no reason for the application of section 286.
The second paragraph of said section provides the formalities to be observed in making the petition for the order of examination or survey, which formalities include the description of the property in which the party is interested, and the statement that the property in question is in the possession of another party, who must be named.
It does not appear from the complaint that the property of the plaintiffs is in the possession of the defendants, and we see no reason for compelling the former to make a petition for survey in the manner prescribed by law.
The third paragraph determines the procedure to be observed in the hearing on the petition for the examination or survey.
[395] Paragraphs 4, 5 and 6 contain provisions relating to the issue of the order for the examination, survey and other investigations which the court may deem just, to the powers of the court with respect to the execution of works sought to he made and the bond to be furnished to answer for the damages which may be caused the adverse party by reason of such works.
Prom a perusal of section 286, it is to be deduced that the purpose of the legislator was to place any person in a position to examine and even survey the real property of another to which he may believe himself entitled, after securing private permission or, failing this, an order from the court, for the purpose of acquiring exact and indispensable data to permit him to exercise successfully an action for the ascertainment or protection of his right or to successfully prosecute the action brought to this end, since the first paragraph of said section provides that the order for the examination or survey may be applied for whether or not there is any litigation pending as to the rights in controversy.
It is alleged in the complaint that the plaintiffs and the defendants have not been able to reach a private and definite agreement to put an end to the innumerable inconveniences and prejudices caused by the confusion of boundaries, and this agreement cannot be other than the agreement of all persons interested in the determination of the common dividing-limits, for which reason it cannot be affirmed that it does not appear on the face of the complaint that the defendants had refused to authorize the survey applied for in the complaint.
The defendants have not acquiesced in absolute terms to all the claims of the complaint, because one of them is absent and in default, and others have prayed, in the first place, that it be held that the proceeding initiated is not the proper and adequate proceeding for the ends sought.
Under these circumstances the case should not be dismissed, but the action should be prosecuted under the ordi[396] nary procedure until judgment deciding the rights of the parties is rendered.
■ For the foregoing reasons, we are of the opinion that the judgment appealed from should he reversed and the judge ordered to continue the proceedings until final judgment is rendered.
Reversed.
Justices Wolf and del Toro concurred.
Mr. Justice MacLeary dissented.
Mr. Justice Figureras did not sit at the hearing of this case.