Emmanuel v. Porto Rico , 5 P.R. Fed. 89 ( 1909 )

Rodey, Judge,

delivered tbe following opinion:

This is an extraordinary sort of a case. It is a suit brought by tbe plaintiff to recover damages from tbe People of Porto Rico for having, as be claims, deprived him of the use of a little over 4,000 cuerdas of land, of which he was the owner, situated near Lares on this island, for a period of about five years from 1900 to 1905. The suit was originally filed in this court in July, 1908. A demurrer was interposed and at first we felt very much inclined to sustain it, but finally concluded, for the reasons stated in a memorandum sent to the files under date of February 16th, 1909, to take all the proofs, as the parties had stipulated that it should be tried before the court without a jury, so that we might, if possible, ascertain the real merits of the case by having the whole matter before us.

In June, 1909, the trial was had, and the evidence was fully submitted by both sides. Thereafter the case was argued at length orally by counsel for the respective parties, and they supplemented this by painstakingly written arguments and briefs.

The facts of the case briefly stated are about as follows:

In the year 1900, shortly after American occupation of Porto Rico, one J. H. Hollander, who it appears was at that time ttie treasurer of the island, for some reason or other came to the conclusion that this tract of land out near Lares did not belong to the plaintiff, who claimed to have inherited it from the Duchess of Mahon Crillon, of Prance, and he, the treasurer, therefore, caused all the tenants living on the land to be so notified, and caused the property to be registered in the registry of property as belonging to the people of Porto Eico, and had the tenants, at least as to taxes, return the same in their own individual names. Naturally, the present plaintiff, who, as stated, at this time had become the owner of the land, protested vigorously against this but without immediate result. However, in a short time he produced such evidences of title to Mr. Hollander as that the latter wrote him that he had better file a suit against the people of Porto Eico and have the matter judicially determined. The plaintiff did file such a suit in the district court at San Juan, and it was a most elaborate proceeding, wherein the Attorney General of the island and his assistants appeared against the plaintiff, but the decision was for the plaintiff. Prom this decision the Attorney General on the part of the people, took an appeal to the supreme court of the island, where the case was again presented and argued at great length, and finally, in June, 1904, was again decided in favor of the plaintiff, — the supreme court affirming the decision of the lower court. See tbe report of tbe case Emmanuel v. People, 2 Porto Pico, pp. 103 et seq., where tbe entire bistory of tbe case, from tbe original grant of tbe land by Charles III. of Spain, in 1776, to tbe Duke of Mahon, is fully set forth. The grant was originally of 4 square leagues, but at tbe time of this controversy had, for one cause or another, become reduced to an area of about 4,100 cuerdas.

It transpired that, from tbe time Mr. Plollander thus arbitrarily registered tbe property in tbe name of tbe people of Porto Pico, to tbe time tbe plaintiff was again put in possession of tbe land, in tbe latter part of 1905, all of tbe tenants refused absolutely to pay tbe plaintiff any rent, and tbe entire sum was lost to him, save about something over 800 pesos, which be managed to collect after having been put to a lot of expense in bringing ejectment and other suits against many of tbe tenants, both before and after tbe decision in tbe supreme court of tbe island.

From all tbe evidence presented before us, which we have gone over carefully, as it has since tbe time of tbe trial all been written out from the stenographer’s notes, we find the fact to be, that previous to the action of this insular official, Mr. Hollander, this property brought a rental revenue varying from 3,000 to 3,500 pesos per annum to its owner. We further find from tbe evidence that tbe hurricane of 1899 devastated that section of tbe country so that tbe land itself was not so easily rented, nor was it as productive, nor were tbe tenants, even bad nothing occurred, in a position thereafter to rent land or pay their rent as promptly as they would have done bad no such disaster befallen that section of tbe island'. From all of tbe evidence we therefore find that only about 2,750 cuerdas of tbe land was possessed by tenants, or could have been rented to, or paid for, by them during the five years that plaintiff was so out of possession. We further find that the reasonable rental value of this land during that period of time (1900 to 1905) is the sum of 60 cents gold per cuerda, or in all $1,650 per an-num, which for the five years would make $8,250, from which is to be deducted about $800 of back rent that it is admitted was collected by the agents of plaintiff, after the decision in the supreme court, thus reducing his net loss to the sum of $7,450 gold. It is quite apparent that plaintiff sustained much greater loss than this on account of expenses of litigation, travel, counsel fees, etc., but as to this no proof was introduced and, anyway, it perhaps is matter that ought to have been settled in the suits in the insular courts.

We have devoted a good deal of time to this case because of tire very able manner in which it was presented and urged by the learned counsel for the respective parties, but still we have the gravest doubts about the right of plaintiff to recover at ail in this or any other court, because his remedy would ordinarily be before the legislative assembly. See Langford v. United States, 101 U. S. 341, 25 L. ed. 1010. We have these doubts for many reasons, among them being, because, as we recently held in the case of Elkins v. People, post, — , the insular government cannot be sued without its consent, and because the matter of these damages ought, perhaps, to have been settled in the suit for the recovery of the land in the insular district or supreme court, and furthermore, because it is unquestioned, we think, from the record, that the island itself never actually received any rent, profit, or usufruct from this land or any portion of it. Mechem, Pub. Off. § 849. See also New Orleans v. Gaines (New Orleans v. Christmas) 131 U. S. 191, 33 L. ed. 99, 9 Sup. Ct. Rep. 745. The injury which the government unquestionably did to plaintiff, being to deprive him of the right to the use and enjoyment of his property for about five years, because of this deliberate but unauthorized registering of the land in the name of the people of Porto Pico, and by such action inducing his tenants to thereafter refrain, desist, and refuse, as they did, from paying him his usual rentals, — surely this is a wrong for which plaintiff ought to be compensated!

If the plaintiff can legally recover, it must be, we submit, under subsec. 4 of § 1804 of the Civil Code of 1902, which provides that “the state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding section (that is, that the party himself must respond) shall be applicable.”

It is probaly true that even if Mr. Hollander was not such a special agent as is contemplated by the section just quoted, still the island as a government thoroughly and completely ratified his acts by refusing to restore his land to him, and by requesting and obliging him to bring a suit in the district court to establish his rights, and then, by defending the suit to a final judgment, even to the supreme court of the island, as vigorously as it did, and hence we think that in all fairness it is too late at this time for the island to plead or insist on its privilege of exemption .from suit. We are also of the belief that under the circumstances the court ought not to hold that the claim is barred by the one-year statute of limitations, and of course no other is applicable to the facts.

We are aware that the Supreme Court of Spain, in a sentencia of May 18, 1904, 98 Jurisprudencia Civil 390, beld with reference to § 1903 of the Spanish Code, which is the same as § 1803 of the Porto Pican Code, that the responsibility of the state can only occur when a special agent is particularly employed and particularly authorized to do the particular act, and not where he does an act that he is not specially authorized to do while being generally employed as an agent or employee of the government. This is its language: -“Que la responsabilidad del estado se limita por el articulo 1903 al caso en que obre por mediación de un agente especial, y agente especial en el sentido en que se emplean estas palabras es el que recibe un mandato ó comisión concreta ó determinada ajena al ejercicio de su cargo si es fun-cionario publico, para que en representación del estado, y obli-gándole como mandatario suyo, cumpla el encargo que se le con-fie; concepto que no puede alcanzar á un agente ejecutivo, que es un empleado de la administración activa, y que bajo su responsabilidad ejerce las funciones naturales y propias de su cargo, reguladas por la ley y por los reglamentos.”

But, as stated, we are constrained to think that Mr. Hollander, in fact, was a special agent for the purpose at the time; and in any event his action was ratified as pointed out.

In our opinion in the Elkins suit filed simultaneously herewith, we pointed out that to render a judgment against the island is one thing, but as to the way it should be collected or satisfied is quite another, and, as we are of opinion that providing the means of payment of a judgment in this sort of a case is entirely matter for the legislature, no execution will be permitted to issue as, of course, on the judgment we shall authorize. In fact, the rendition of any judgment in the cause is, in a sense, rather advisory to the legislature than anything else.

It is reasonable to suppose that had this claim been presented to the legislative assembly in the first instance it would have been paid, because the injury to the plaintiff is manifest, and he has been guilty of no wrong.

Having read all the exhibits, and gone over the record with. great care, and listened to the testimony presented and the arguments of the learned counsel for the respective sides, we unhesitatingly say that the equities are entirely with the plaintiff, and that the insular authorities did cause damage to him in at least the sum of $7,450 gold, as before stated, and therefore judgment for that amount will be entered with costs, the latter to include the stenographer’s fee for transcribing the testimony, but execution therein will be stayed to give the insular authorities or the legislative assembly an opportunity to act in the premises.