Mr. Justice Audrey
delivered the opinion of the court.
This is an appeal taken by the plaintiff from a judgment dismissing his complaint on the merits in which he alleges to be the owner of certain rural properties, free from any servitude of right of way in favor of the defendant, for which reason he prayed the court for an order directing Central Cambalache to remove the railroad track which it has over the said properties.
The complaint referred to three tracts of land, the first measuring 7 acres, the second 1.56 acres, and the third 4 acres, but after the answer to the complaint had been filed the plaintiff moved the court to consider him as having withdrawn his claim in regard to the 7-acre tract and after the trial of the case had commenced the district court, with the acquiescence of the defendant, granted the motion. For this reason the complaint was confined to two rural tracts, one containing 1.56 acre and the other 4 acres, both of them located in the ward of Sabana Hoyos of the municipal district of Arecibo.
The defendant is the private corporation Central Camba-lache, which in its answer to the complaint made a geneial denial of the averments thereof and pleaded several defenses.
[210]*210The complaint was filed in May 1930, and the case was tried in March 1931. The plaintiff, in order to prove his title to the two tracts, introduced at the trial two judicial decisions rendered on April 15, 1930, declaring the plaintiff to he in possession of the 1.56 and 4-acre tracts, he having purchased the former in 1929 from Bemigio Martinez Badia, who had bought the same more than twenty years before from Plácido Sanz and José Dolores Varela, and the 4-acre tract having been bought from the same Bemigio Martinez Badia who had purchased it from Epifania Bodriguez in 1920. Those titles are recorded in the registry of property and were admitted as evidence at the trial, without objection on the part of the defendant and without the latter introducing any evidence to contradict them. In spite of that evidence, the lower court held that Bemigio Martinez Badia was the real owner of the two tracts because, as he had been an employee of the defendant in 1910, when the track was built, and having consented to its passage over those two tracts, he would be estopped from making any claim. We think that that finding is not based on any evidence and that the same is not justified if the said tracts are not subject to a servitude of right of way for a railroad.
The fact of the railroad track crossing those two tracts is acknowledged by the defendant when in referring to them in its answer to the complaint it says: “The railroad track laid on the lands to which the complaint refers,” and it is so declared by the trial court when stating in the opinion written in support of its judgment that “the trier has to conclude that the railroad track of the defendant really crosses those tracts.” Having established the foregoing, let us see whether the defendant has any title or right to operate its railroad track over the two tracts of the plaintiff.
In its answer to the complaint Central Cambalache pleaded that the railroad track is laid over the two tracts of the plaintiff, partly by reason of the servitude and partly because it had bought a strip of land measuring 434.10 square [211]*211meters from Plácido Sauz, who segregated it from a larger tract. In support of this averment, the defendant introduced in evidence at the trial a public deed executed in 1912, whereby Patricio Sanz Cintrón and his wife, as the owners of a piece of land measuring 0.337 acre, sold to Central Camba-lache a strip of land measuring 72.35 meters long by 6 meters wide or an area of 434.10 square meters, which crosses the tract from which it is segregated in a north to south direction since the main tract adjoins the said strip on the east and on the west.
When the instrument was introduced at the trial, the plaintiff objected to its admission because it had no relation to the tracts described in the complaint, but the court admitted said instrument and, as a ground for its judgment, it says that the 1.56-acre tract formerly was part of another tract of 20 acres belonging to G-regoria Serrano and if this were not so it would be necessary to conclude that it was from it that the defendant bought the strip of land of 434.10 square meters from Plácido Sanz, when the latter bought it from Higinio Bonet, who is one of the predecessors in interest of Martinez Badia.
The boundaries of the tract from which the said strip of land was segregated are different from those of the two tracts of the plaintiff, except on the west, where both are contiguous to lands of Agustín Serrano, but not to lands of Josefa Candelaria, whose property adjoins on the west the 1.56-acre tract. .The fact that the said 1.56-acre tract and the tract of Plácido Sanz from which was segregated the strip bought by Central Cambalache formerly belonged to Higinio Bonet is sufficient for concluding that the strip of land so bought is within the 1.56-acre tract.
In regard to the 4-acre tract, it was declared by the lower court that it proceeds from another of 20 acres of Gregoria. Serrano, because Remigio Martínez Badia had bought it from Epifania Rodriguez, who acquired it from Gregoria. Serrano in 1919. Although the 4-acre tract and the 20-acre [212]*212tract of Gregoria Serrano have only the names of two persons as common and adjoining owners, albeit in different directions, since Inocencia Picón, who is one of the adjoining owners on the north of the 4-acre tract appears to the south of the 20-acre tract, and Juan Serrano Molleno, who lies to the east of the small tract, lies to the east of the larger one, for which reason the plaintiff’s tract can not be' placed within that of Gregoria Serrano, we may concede that the former proceeds from the other, because that fact has no important bearing upon the point of law arising in the present case, as we shall see later on.
Gregoria Serrano, as the owner of the 20-acre tract, subscribed under oath before a notary in 1910 a document in which she states that she constitutes a servitude of right of way for life and gratuitously on the Sabana Hoyos tract in favor of Central Cambalache for the laying down of a railroad track. That instrument is typewritten, with blank spaces which have been filled in handwriting, which is not that of Gregoria Serrano; and that part in which it has been typewritten that a consideration has been given for the servitude, has been crossed out and the word “gratuitously” has been handwritten.
The loAver court says in its opinion that although it appears from this instrument that the grant was a gratuitous one, however it was shown that the defendant paid Gregoria Serrano the sum of $130 as compensation. The statement of the court rests on the claim that some witnesses for the defendant testified, and it appears from its books, that the Central paid to Gregoria Serrano $130 as compensation for the fruits to be destroyed in order to lay the track across her lands and for the expenses of removing her house to another place, because it stood at the place to be occupied by the railroad track; but this evidence does not justify the conclusion that said sum was given to her as a consideration for the servitude which she had granted gratuitously. Nor could the defendant alter the terms of the document signed [213]*213by Gregoria Serrano. Sarria v. Alvarez, 38 P.R.R. 813; Villanueva v. Suárez, 41 P.R.R. 39.
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Mr. Justice Audrey
delivered the opinion of the court.
This is an appeal taken by the plaintiff from a judgment dismissing his complaint on the merits in which he alleges to be the owner of certain rural properties, free from any servitude of right of way in favor of the defendant, for which reason he prayed the court for an order directing Central Cambalache to remove the railroad track which it has over the said properties.
The complaint referred to three tracts of land, the first measuring 7 acres, the second 1.56 acres, and the third 4 acres, but after the answer to the complaint had been filed the plaintiff moved the court to consider him as having withdrawn his claim in regard to the 7-acre tract and after the trial of the case had commenced the district court, with the acquiescence of the defendant, granted the motion. For this reason the complaint was confined to two rural tracts, one containing 1.56 acre and the other 4 acres, both of them located in the ward of Sabana Hoyos of the municipal district of Arecibo.
The defendant is the private corporation Central Camba-lache, which in its answer to the complaint made a geneial denial of the averments thereof and pleaded several defenses.
[210]*210The complaint was filed in May 1930, and the case was tried in March 1931. The plaintiff, in order to prove his title to the two tracts, introduced at the trial two judicial decisions rendered on April 15, 1930, declaring the plaintiff to he in possession of the 1.56 and 4-acre tracts, he having purchased the former in 1929 from Bemigio Martinez Badia, who had bought the same more than twenty years before from Plácido Sanz and José Dolores Varela, and the 4-acre tract having been bought from the same Bemigio Martinez Badia who had purchased it from Epifania Bodriguez in 1920. Those titles are recorded in the registry of property and were admitted as evidence at the trial, without objection on the part of the defendant and without the latter introducing any evidence to contradict them. In spite of that evidence, the lower court held that Bemigio Martinez Badia was the real owner of the two tracts because, as he had been an employee of the defendant in 1910, when the track was built, and having consented to its passage over those two tracts, he would be estopped from making any claim. We think that that finding is not based on any evidence and that the same is not justified if the said tracts are not subject to a servitude of right of way for a railroad.
The fact of the railroad track crossing those two tracts is acknowledged by the defendant when in referring to them in its answer to the complaint it says: “The railroad track laid on the lands to which the complaint refers,” and it is so declared by the trial court when stating in the opinion written in support of its judgment that “the trier has to conclude that the railroad track of the defendant really crosses those tracts.” Having established the foregoing, let us see whether the defendant has any title or right to operate its railroad track over the two tracts of the plaintiff.
In its answer to the complaint Central Cambalache pleaded that the railroad track is laid over the two tracts of the plaintiff, partly by reason of the servitude and partly because it had bought a strip of land measuring 434.10 square [211]*211meters from Plácido Sauz, who segregated it from a larger tract. In support of this averment, the defendant introduced in evidence at the trial a public deed executed in 1912, whereby Patricio Sanz Cintrón and his wife, as the owners of a piece of land measuring 0.337 acre, sold to Central Camba-lache a strip of land measuring 72.35 meters long by 6 meters wide or an area of 434.10 square meters, which crosses the tract from which it is segregated in a north to south direction since the main tract adjoins the said strip on the east and on the west.
When the instrument was introduced at the trial, the plaintiff objected to its admission because it had no relation to the tracts described in the complaint, but the court admitted said instrument and, as a ground for its judgment, it says that the 1.56-acre tract formerly was part of another tract of 20 acres belonging to G-regoria Serrano and if this were not so it would be necessary to conclude that it was from it that the defendant bought the strip of land of 434.10 square meters from Plácido Sanz, when the latter bought it from Higinio Bonet, who is one of the predecessors in interest of Martinez Badia.
The boundaries of the tract from which the said strip of land was segregated are different from those of the two tracts of the plaintiff, except on the west, where both are contiguous to lands of Agustín Serrano, but not to lands of Josefa Candelaria, whose property adjoins on the west the 1.56-acre tract. .The fact that the said 1.56-acre tract and the tract of Plácido Sanz from which was segregated the strip bought by Central Cambalache formerly belonged to Higinio Bonet is sufficient for concluding that the strip of land so bought is within the 1.56-acre tract.
In regard to the 4-acre tract, it was declared by the lower court that it proceeds from another of 20 acres of Gregoria. Serrano, because Remigio Martínez Badia had bought it from Epifania Rodriguez, who acquired it from Gregoria. Serrano in 1919. Although the 4-acre tract and the 20-acre [212]*212tract of Gregoria Serrano have only the names of two persons as common and adjoining owners, albeit in different directions, since Inocencia Picón, who is one of the adjoining owners on the north of the 4-acre tract appears to the south of the 20-acre tract, and Juan Serrano Molleno, who lies to the east of the small tract, lies to the east of the larger one, for which reason the plaintiff’s tract can not be' placed within that of Gregoria Serrano, we may concede that the former proceeds from the other, because that fact has no important bearing upon the point of law arising in the present case, as we shall see later on.
Gregoria Serrano, as the owner of the 20-acre tract, subscribed under oath before a notary in 1910 a document in which she states that she constitutes a servitude of right of way for life and gratuitously on the Sabana Hoyos tract in favor of Central Cambalache for the laying down of a railroad track. That instrument is typewritten, with blank spaces which have been filled in handwriting, which is not that of Gregoria Serrano; and that part in which it has been typewritten that a consideration has been given for the servitude, has been crossed out and the word “gratuitously” has been handwritten.
The loAver court says in its opinion that although it appears from this instrument that the grant was a gratuitous one, however it was shown that the defendant paid Gregoria Serrano the sum of $130 as compensation. The statement of the court rests on the claim that some witnesses for the defendant testified, and it appears from its books, that the Central paid to Gregoria Serrano $130 as compensation for the fruits to be destroyed in order to lay the track across her lands and for the expenses of removing her house to another place, because it stood at the place to be occupied by the railroad track; but this evidence does not justify the conclusion that said sum was given to her as a consideration for the servitude which she had granted gratuitously. Nor could the defendant alter the terms of the document signed [213]*213by Gregoria Serrano. Sarria v. Alvarez, 38 P.R.R. 813; Villanueva v. Suárez, 41 P.R.R. 39. That evidence does not justify the conclusion of the court and, therefore, that document must still be considered as a gratuitous grant of servitude, that is to say, without consideration. Said concession is not recorded in the registry of property nor could be recorded there, because it lacks the requisites prescribed by the Mortgage Law, and consequently it does not prejudice third per-, sons.
The so-called gratuitous servitude of right of way which Gregoria Serrano granted to the defendant did not create any right of servitude in favor of Central Cambalache for lack of consideration; therefore, it becomes a mere permit or tolerance which does not affect the possession, according to section 446 of the Civil Code, and that it is revocable because such consent does not mean that the owner of the property has renounced forever his full ownership. Torres v. Plazuela Sugar Co., 24 P.R.R. 451; Colón v. Plazuela Sugar Co., 31 P.R.R. 299. The holding in the case of Gaztambide v. Guánica Centrale, 26 P.R.R. 724, which the lower oourt cites in its opinion when referring to an estoppel in equity to deny the servitude, has no application to the present ease because in the latter what is involved is a railroad track of a private corporation for its exclusive use, whereas in the former the railroad track involved was for the public use. Torres v. Plazuela, supra.
As the defendant has not introduced any evidence of a servitude other than the one set forth in the unilateral private instrument signed by Gregoria Serrano, which does not constitute a servitude, let us see if it has acquired such right by prescription, because its railroad track has been laid on the lands of the plaintiff for more than twenty years.
Although the presence of the defendant’s railroad track over the plaintiff’s land may show the existence of an apparent servitude of right of way, it does not mean that said servitude can be acquired by prescription, since the same [214]*214being a discontinuous servitude because it is used at long or short intervals, depending on human acts, it must necessarily be acquired by virtue of title, pursuant to the express provisions of section 475 of the Civil Code (1930 ed.), according to which continuous and non-apparent servitudes and discontinuous ones, whether apparent or not, can only be acquired by virtue of a title.
This question was decided in González v. Plazuela Sugar Co., 42 P.R.R. 676, in which we declared in the opinion written by the late Justice Texidor that as a servitude of right of way for a railroad track is, by reason of its use, always of a discontinuous character, there is no doubt that it must be acquired by virtue of a title, since when defining in section 539 of our Civil Code (section 468, 1930 ed.) the classes of servitude, it is stated that continuous servitudes are those the use of which is or may be uninterrupted, without the intervention of any human act; and that discontinuous servi-tudes are those used at long or at short intervals, and which depend upon human acts.
It was also said: “When a servitude is used at long or short intervals, and depends upon human acts, it can only be characterized as discontinuous servitude, which characterization applies to an easement of way for the passage of trains transporting the crops from any particular estate.” It was likewise stated: “A discontinuous servitude, whether apparent or not, can only be acquired by virtue of a title (section 546 of the Civil Code); and from a reading of section 547 of that Code there can be no doubt that the title must be one establishing a servitude and that this species of servitude can not be acquired by prescription; which is perfectly logical, as the acts of use, not being continuous but having a commencement and an end which recur without perfect continuity, can not create the prescriptive right.”
Manresa, in his Commentaries on the Civil Code, volume 4, page 577; Seaevola in volume 10, page 157, and Morell in “Legislación Hipotecaria,” volume 1, page 341, recognize [215]*215that the servitude of right of way is a discontinuous one. That it can not he acquired by prescription but by virtue of title has been decided also by this court in the case of Del Moral v. Muratti, 34 P.R.R. 244, in which, in regard to the acquisition of a servitude by prescription, we expressed ourselves as follows: “The year 1890 is of decisive importance because that was the year when the Civil Code went into effect and since that time the servitude in question could be-acquired only by virtue of a title, and in this case such a means of acquisition has not even been mentioned.”
By virtue of the foregoing and as the defendant has failed to show that the strip of land bought by it and over which the railroad track has been laid is enclosed within the 1.56-acre tract, and as no valid title of servitude has been shown in regard to the property of Cfregoria Serrano, of which the 4-acre tract of the plaintiff is said to be a segregation, the judgment appealed from must be reversed and. another rendered instead sustaining the complaint and adjudging the defendant to remove within six months, counted, from the date of this judgment, the railroad track which it has laid over the two tracts of the plaintiff, without special imposition of costs.