Baetjer v. Garzot, 3855.

• Decision Date: 18 June 1943
• Docket Number: No. 3855.,3855.
• Parties: BAETJER et al. v. GARZOT et al.
• Court: U.S. Court of Appeals — First Circuit

136 F.2d 453 (1943)

BAETJER et al. v. GARZOT et al.

No. 3855.

Circuit Court of Appeals, First Circuit.

June 18, 1943.

E. T. Fiddler, of San Juan, P. R., for appellants.

Nelson Gammans, of New York City, and Rogelio Fernandez Garzot and Henry G. Molina, both of San Juan, P. R., for appellees.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

In our former opinion in this case (124 F.2d 920), we held that a certain deed in the defendants' chain of title to 8.81 cuerdas of land in Naguabo, Puerto Rico, known as Central Triunfo, gave the plaintiffs the right to acquire that property from the defendants upon payment to them of $1,762. But we also held that under § 382¹ of the Civil Code of Puerto Rico the plaintiffs were not entitled to a conveyance of the property until in addition to the above sum they also paid to the defendants not only the "necessary expenses", but also either the "useful expenses" or the increase in the value of the property in consequence thereof, as they might elect. The first holding above was in affirmation of the court below; the second one was not.

After our mandate went down the defendants moved in the District Court for judgment thereon and submitted a draft of a judgment which included a provision "that the plaintiffs pay to the defendants the sum of $15,000, value of the improvements located on the property". The plaintiffs opposed this motion and asked for a hearing to determine both the amount of the useful expenses and the amount by which the value of the property was increased thereby so that they might intelligently exercise their election to choose one or the other as allowed by the Civil Code. The District Court thereupon took a view of the premises and held a hearing.

From the evidence introduced at this hearing it appears that on August 21, 1916, the same day that the Central Triunfo tract was conveyed to the defendants' ancestor in title, the corporation Garzot y Fuertes, the same grantors deeded two rights of way over their adjacent farms to that corporation "for a railroad track in favor of" Central Triunfo. The purpose of these conveyances of rights of way was to make possible the construction of a railroad to transport sugar cane from the grantors' farms to the sugar mill to be built on the property conveyed. A railroad was subsequently built, approximately 2¼ kilometers of which lay on the Central Triunfo property itself and approximately 14½ kilometers of which lay on the rights of way.

The court below found: (1) That the useful expenses laid out upon Central Triunfo included the amounts spent for the erection and maintenance of buildings, erections, roads, fence, pipes and that part of the railroad which was physically located thereon; (2) that such useful expenses also included the cost of acquiring the two rights of way appurtenant to Central Triunfo as the dominant tenement; (3) that the useful expenses did not include the cost of constructing those parts of the railroad built on the rights of way over the servient tenements; (4) that Central Triunfo was increased in value in the amount of $26,000 by reason of the useful expenses laid out upon it; (5) that there was no need to determine the amount of the useful expenses since they greatly exceeded the amount by which the property was increased in value by reason thereof; and (6) that the defendants, or their predecessor Riverside Corporation, had expended $48,106.97 to redeem Central Triunfo from a tax sale. Ruling that the amount spent to redeem the property from the tax sale was not an expense within the meaning of § 382 of the Civil Code the court entered a judgment² in conformity with its findings and the plaintiffs deposited $27,762 in the registry of the court. The defendants thereupon appealed and on motion, which was not opposed, the court ordered the amount deposited returned to the plaintiffs.

The principal question presented is whether the cost of building the 14½ kilometers of railroad on the rights of way was a useful expense which should have been considered by the court in determining the amount by which the value of Central Triunfo was increased. The defendants contend that it is. The court below, however, as we have seen, concluded otherwise, saying in its memorandum opinion: "I have been unable to agree with defendants in their contention that the cost of the railroad constructed upon the servitudes appurtenant to the 8.81 cuerdas, but not physically upon the 8.81 cuerdas property itself should be considered as one of the useful expenses referred to in section 382 of the Civil Code. There is a close connection between section 382 of the Civil Code and the sections of the Code defining the right of accession, so that the improvement which did not become part of the land by accession would not appear to be an improvement of the class for which the owner is obliged to pay in accordance with section 382. It is my opinion that railroad tracks, ties, roadbed, bridges, etc., located on servient tenements are not properly considered as part of the dominant tenement by accession."

Undoubtedly, as the appellants argue and as the court below concluded, the servitudes are inseparable from the dominant tenement and would, in fact could only, be transferred with it. See § 470 of the Civil Code of Puerto Rico; Mendez v. Bowie, 1 Cir., 118 F.2d 435, 442. They thus became part of the dominant tenement by accession and from this it logically follows that the cost of acquiring them was a useful expense. But the question remains whether the cost of building the railroad upon them was also a useful expense, and the answer to this question, as the court below indicated, depends upon whether or not it, as well as the servitudes upon which it was built, also became by accession a part of the dominant tenement.

Section 294 of the Civil Code provides that "Whatever is built, planted or sown on another's land, and the improvements or repairs made thereon, belong to the owner thereof, subject to what is prescribed in the following sections." And section 297 provides: "The owner of the land which has been built upon, sown, or planted in good faith, has the right to appropriate as his own, the work, sowing or planting, by previously paying the indemnity specified in sections 382 and 383 of this Code, and to oblige the person who has built or planted to pay him the value of the land, and the person who sowed, to pay the corresponding rent."

Looking upon the plaintiffs as the owners of the land included in the Central Triunfo tract by reason of the right of repurchase reserved to them in the deed of the property to the defendants' ancestor in title (the deed of August 21, 1916), the foregoing provisions obligate them under § 382 to pay either the cost of the railroad built on the property itself or else the amount by which the part of the railroad there located increased the value of that property. This is the conclusion of the court below to which the...