Mendez v. Bowie

• Decision Date: 19 March 1941
• Docket Number: No. 3578.,3578.
• Citation: 118 F.2d 435
• Parties: MENDEZ v. BOWIE et al.
• Court: U.S. Court of Appeals — First Circuit

118 F.2d 435 (1941)

MENDEZ v. BOWIE et al.

No. 3578.

Circuit Court of Appeals, First Circuit.

March 19, 1941.

Henry G. Molina, of San Juan, P. R., for appellant.

E. T. Fiddler, of San Juan, P. R. (Fiddler, McConnell & Gonzalez, of San Juan, P. R., on the brief), for appellees.

Before MAGRUDER and MAHONEY, Circuit Judges, and HARTIGAN, District Judge.

MAHONEY, Circuit Judge.

The appeal in this case is from a decree of the United States District Court for Puerto Rico dismissing the bill of complaint. The suit, entitled a bill for denial of servitude, was filed January 17, 1939, by the plaintiff, owner of certain land in Puerto Rico known as Mercedes. In the complaint it was alleged that on May 22, 1917, the plaintiff's father, Manuel Mendez Dueno, who was then owner of the Mercedes land and other parcels, by deed No. 133 granted a perpetual right of way for a railroad line upon and across all and every one of the designated parcels in favor of the property known as Central Juncos as dominant tenement, without any restrictions whatsoever, and that the defendants, now owners of the dominant tenement, have been wrongfully using the said right of way by using it for the benefit of lands other than the dominant tenement. It prayed for a decree denying to the defendants a right of way across the Mercedes land to and from, and for the benefit of, any property other than the dominant tenement, for a perpetual injunction enjoining them from making said wrongful use of the right of way, and for an accounting of the rents and profits.

The defendants in their answer denied that the right of way was for the sole benefit of the Central Juncos property and alleged that it was granted without limitation as to the properties that might be benefited. They denied that the use was wrongful, and alleged that it was authorized by deeds Nos. 132 and 133 of May 22, 1917. They further averred that the plaintiff was aware of the use which had been made of the right of way for many years and had made no objection thereto, and that the right of way has no rental value.

In addition the defendants filed three separate defenses. The trial court struck out the first defense. It allowed the second and third to remain. The second was not considered by the court below nor was it urged before us. The third separate defense alleged that on or about June 1, 1935, the defendants filed in the federal district court for Puerto Rico a bill to quiet their title to a portion of the right of way of the said railroad over property of the plaintiff known as Islote, and that the plaintiff herein filed a cross-complaint alleging that the defendants herein had no title whatsoever to a right of way over that property there involved, and praying that the present defendants be enjoined from using or traversing the said property. It is further alleged that the court entered a final decree on January 14, 1936, adjudging that the defendants herein had a perpetual right of way over Islote, the land there in question, under deeds Nos. 132 and 133, and enjoined the plaintiff from interfering with the defendants' use. This decree was affirmed by this court in Mendez v. Eastern Sugar Associates, 1 Cir., 1937, 89 F.2d 399. The defendants claim that by said decree the issues in this suit were finally adjudicated and that the plaintiff is barred from maintaining this suit.

The district court found that The Juncos Central Company formerly owned the sugar mill known as Central Juncos and considerable farm land in the vicinity of the mill, including the property known as Mercedes. It had, some time prior to 1910, established a railroad line from Rincon between the towns of Caguas and Gurabo running in a northeasterly direction over the Mercedes property, at that time owned by The Juncos Central Company, and several other parcels of land, to the sugar mill Central Juncos, and beyond the Central Juncos in an easterly direction branching out later into two lines, one of which ended near Las Piedras and the other at Mascalbo. It had other small branches. For a long time prior to 1917 and after it was used to haul sugar cane to be ground at Central Juncos, to haul coal to the mill, and to haul sugar and fertilizer to the farms located near the railroad.

On May 22, 1917, The Juncos Central Company sold Mercedes and several other parcels of land to the plaintiff's father, Manuel Mendez Dueno. The deed, No. 132, recited that the purchaser "establishes and grants in favor of The Juncos Central Company, over all his rural properties, a perpetual right of way for the railroad lines of said corporation. The said Mr. Mendez Dueno for himself and as attorney in fact for his wife agrees and obligates himself to grant to the Juncos Central Company a right of way for railroad lines, over his properties Caloca, San Luis, Rincon Mercedes and Emilia, which easements shall be evidenced by another deed."

On the same day, Manuel Mendez Dueno, by Deed No. 133, granted The Juncos Central Company an easement for a railroad right of way over Mercedes and several other parcels of land as follows:

"Fourth: The parties having agreed to constitute a servitude for the passage of a railroad they carry out the contract and execute this deed in the manner expressed in the following clauses:

"First: Manuel Mendez Dueno for himself and as attorney in fact for his wife, Micaela Rios Morales, grants to The Juncos Central Company, its successors or assignees, a perpetual right of way for a railroad line through, upon and across all and every one of the parcels hereinbefore described in paragraph two of this deed, * * * and the parties state that in all of the described properties the railroad has been installed for a long time. * * * The aforesaid servitude, as has been stated, is perpetual in character and is constituted in favor of the rural property Juncos Central property described in the third paragraph of the expositive part (of this document) as dominant tenement, and which is owned by The Juncos Central Company, the cars and engines of The Juncos Central Company being permitted in virtue of said servitude to run freely over the roads established without any restriction whatsoever, and said railroad may be repaired and conserved as required by the necessities of the service."

After this deed, the right of way over Mercedes continued to be used by the Juncos Central Company for many years in substantially the same manner that it had been used theretofore.

In 1928 the United Porto Rican Sugar Company acquired substantially all the assets of The Juncos Central Company and of several other sugar companies and connected the railroad systems of these companies into one system. That company and the defendants, its successors, have used the connected railroad line which now runs from Caguas east to the sea at Humacao Playa, to haul cane not only to the mill on the dominant tenement, but to all their various mills, to haul sugar from these several mills to Humacao, and to haul fertilizer and other materials from Humacao Playa west to these mills and other properties.

It was further found that Manuel Mendez Dueno must have been familiar with the use made of the right of way over Mercedes in 1917 when he acquired the property from The Juncos Central Company and granted the latter the easement for the railroad. His son, the plaintiff, having lived in plain view of the railroad since 1928, was also found to have had knowledge of the use. The plaintiff never complained of the use of the right of way over Mercedes until about the time this suit was brought, and the court found that there was no showing that any of his predecessors in title had ever raised any question as to the use of the right of way.

In 1917 Manuel Mendez Dueno sold the parcel Mercedes to Antonio Roig, who in 1920 sold it to the plaintiff and Manuel Mendez, his brother, as partners. In 1935, upon the dissolution of the partnership, the plaintiff became the sole owner of Mercedes.

The court also found that on June 1, 1935, the defendants in this suit brought suit in the federal district court for Puerto Rico against the plaintiff and his brother to quiet title to the right of way for the railroad here involved over a parcel of property known as Islote. The right of way there in question was granted by the same deed and under the same terms as the one here involved. The use then made of that right of way was the same as the use made at the present time on that right of way and the right of way over Mercedes here involved.

The present plaintiff denied that the present defendants had any right of way over the property known as Islote, and he and his brother filed a cross-complaint praying that the present defendants be enjoined from using or traversing in any way the alleged right of way across Islote, and that the court determine and allow to the plaintiff the damages caused by the defendants because of the use of the alleged right of way. On January 14, 1936, a final decree was entered in favor of the present defendants declaring that they had a permanent easement across the Islote property and enjoining the plaintiff from interfering with the defendants' use of such right of way. As previously stated, this decree was affirmed by us in Mendez v. Eastern Sugar Associates, supra. The court below in the present case found that in that earlier suit the plaintiff did not complain specifically of the particular use of which he now complains, but objected to any use of the right of way.

After finding the facts as above, the district court dismissed the complaint on the ground that the proper construction of Deed No. 133 gave to the defendants a right of way across Mercedes which was unrestricted and need not be used solely for the benefit of the dominant tenement expressed in the deed. No ruling was made on the defense of res judicata. The plaintiff has appealed.

After the appeal had been filed the plaintiff sold the Mercedes property....