Playa De Flor Land & Improvement Co. v. United States

GARDNER, Judge.

This case was filed on November 5, 1941, under the authority of and pursuant to the provisions of the Act of Congress approved May 21, 1934, 48 Stat. 1361 , and the amendment thereto of August 10, 1939, 53 Stat. 1532 . (Court’s memorandum, p. 1 and 2.)

The complaint alleged that the Playa de Flor Land and Improvement Company was an unincorporated association of individuals, setting forth the names of the individuals and their interests, and stated that they were joint owners and had acquired title and rights of ownership to specific real property, which was described as Tracts Nos. 1, 2, 3, and 4. After alleging their muniments of title, there is a plea of prescription that the joint owners, under the name of the Playa de Flor Land and Improvement Company, their predecessors in interest and title and those under whom they claimed, had been and were in the actual open, notorious, and adverse possession, use, and cultivation of the lands described, without violence, concealment, or interruption, for a period of more than forty years prior to the Treaty between the United States of America and the Republic of Panama, which was ratified February 26, 1904, 33 Stat. 2234 , and for a period of more than fifty years prior to their forcible dispossession on February 1, 1912.

It was further alleged that plaintiffs were forcibly and unlawfully evicted and dispossessed of the lands and improvements on the 1st day of February 1912, by the then duly-constituted authority of the representatives of the United States of America within the territory of the Canal Zone and that the joint owners had not been paid nor received compensation for the property taken from them.

The further allegation was made in the complaint that the lands described as fronting on the Bay of Limón and extending in depth eight hundred feet from the shoreline comprised an area of 228.2 acres and that the fair and average market value of said sea-front area at the time of taking was $298,942; that the balance of the lands described in the complaint as lying contiguous and adjacent to the area having sea frontage at the time of the taking thereof was of a total value of $91,461; that the improvements, including fruit

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trees, on Tracts Nos. 1 and 2 were of the reasonable value of $24,500; and that the improvements, including fruit trees, on Tract No. 3 were of the reasonable value at the time of taking of $7,671.50. It was further alleged that the total value of the lands and improvements thereon, as set forth in the complaint, at the time of the taking thereof was the sum of $422,574.50, with interest on said sum at the rate of six per cent per annum from the 1st day of February 1912, and judgment was prayed against the United States of America for said sum.,

' Summons was issued by the Clerk of Court and, on December 13, 1941, the acting United States. District Attorney filed defendant’s motion to quash summons, service, and return.

As previously set forth in the Court’s statement herein, counsel for the plaintiffs, who had instituted the suit by mailing the complaint, etc., to the clerk of this court, was in Washington, D. C. There was some delay in the trial of this motion as a result, the case being continued from time to time in order that counsel might properly present the question and be heard.

The motion came on for trial on the 24th day of June, 1942, and, it appearing that counsel for plaintiffs and plaintiffs had attempted informal service on an assistant District Attorney in the Canal Zone and by delivering a copy to an attorney of the Claims Division of the Department of Justice in Washington, D. C., the motion was sustained. The Court might mention in this connection that, assuming that plaintiffs and their counsel were familiar with the history of this litigation, by attempting this informal service they convicted themselves of being incurable optimists.

The case was continued and alias summons awarded, and service was had on same, as the law required.

April 17, 1942, defendant filed its motion that the attorney of record for plaintiffs produce his authority to act in the name of the plaintiffs and to file suit and, in default of same, to dismiss the case.

Again there was delay because counsel for the plaintiffs had no counsel associated with them in the Canal Zone in the practicing of the case, and at that particular time, as set forth in the attached statement, not only were communications slow and uncertain between the Canal Zone and the United States but transportation was also in the same condition.

Counsel for plaintiffs submitted their brief, and, on the

20th day

of November, 1942, the defendant appeared by the District Attorney and a special assistant to the District Attorney; the plaintiffs William E. Weigle and C. P. Fairman appeared and testified for the plaintiffs, and this motion was heard and was very promptly overruled on the same day.

The Court, realizing the difficulties of plaintiffs proceeding with the case in the absence of local counsel, made the suggestion as set forth in the Court’s statement herein, and local associate counsel appeared.

December 22, 1942, the District Attorney moved the Court for an extension of time to plead, for the reasons and upon the grounds that he was awaiting instructions from the Attorney General of the United States. There was no objection to the motion, and it was sustained and the defendant was given until the 16th day of February 1943, to plead.

February 11, 1943, counsel for the defendant filed a demurrer to the complaint setting forth six grounds, as follows:

“1. That the allegations in said complaint do not show that plaintiffs had legal capacity to sue.

“2. That there is a defect of parties plaintiff.

“3. That the complaint does not state facts sufficient to constitute a cause of action.

“4.

That the complaint is ambiguous.

“5. That the complaint is unintelligible.'

• “6. That the complaint is uncertain.”

A voluminous brief was also filed on the same day in support of the demurrer, but only the first ground of the demurrer, as set forth above, was mentioned.

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March 9, 1943, plaintiffs responded to defendant’s demurrer and filed a brief in support of their response, or answer.

March 19, 1943, defendant filed a reply memorandum in support of its demurrer.

On the same day the demurrer came on regularly for trial. The plaintiffs appeared by associate counsel C. P. Fairman, and the defendant appeared by the District Attorney and Brice Toole, attorney of the Department of Justice, Washington, D. C. The Court heard the argument of counsel and, having in mind an order that it desired to formulate, deferred a decision on same until it could prepare the order. The demurrer was overruled for the reasons stated in the order, and plaintiffs were immediately ordered to prepare and file their amended complaint making parties plaintiff all the parties owning an interest in the land, as set forth in the complaint, not only for themselves but on behalf and for the benefit of all others who might have an interest or claim in the lands described and in controversy. The defendant was given sixty days to plead further.

April 22, 1943, defendant filed a demurrer to the amended complaint, and a memorandum in support of same, the grounds of which were the same as those urged in the demurrer to the complaint.

May 18, 1943, the demurrer to the amended complaint came on to be heard, was overruled, and counsel for defendant then moved that it be given thirty days to file an answer, which motion was sustained.

June 15, 1943, the defendant made another motion for an extension of time to file its answer; there being no objection, it was given until and including June 21, 1943, to file answer.

June 1.6, 1943, answer was filed controverting all the material allegations of the complaint. Practically all the denials were based on lack of information sufficient to form a belief.

Pursuant to agreement of counsel, the case was continued and set for trial on October 20, 1943; however, on August 17, 1943, by agreement of counsel, the trial was re-set for the 17th day of November, 1943.

Non-resident counsel were notified by the Court that we desired to have a meeting of the attorneys in the nature of a pretrial conference a week before the trial. We fully expected by doing so to confine the issues, lessen the labors of the trial, and, most important of all, to straighten out the records and the exhibits.

Counsel being present in the Canal Zone, we met with them in Cristobal. After surveying the situation in informal conferences for a day or two, we realized it was a vain hope to dispose of any matters connected with the case until the trial. Nothing was accomplished.

November 9, 1943, counsel for defendant offered an amended answer in which was set forth the decision of the Supreme Court of the Canal Zone in the old case of Villalobos v. Foleston et al., No. 66 which case involved Tract No. 1 in plaintiffs’ complaint herein, and pleaded same as res judicata. No reasons were given why this matter should not have been plead long before this nor as to why it should be offered just on the eve of the trial. There can be no question but that the Court would have been clearly justified in refusing to allow the amendment to be filed at that time, but the Court had already concluded that it wanted to dispose of this case and all matters connected with it upon the trial and therefore allowed the amendment to be filed.

November 17, 1943, the case came on regularly for trial and continued through the 17th, 18th, and the morning of the 19th of November. Necessarily, there were frequent recesses for the purpose of allowing counsel to procure, prepare, arrange, and introduce their exhibits. There was oral testimony of only four witnesses. (Evidence in full, Memo. p. 116.)

Upon the conclusion of the trial, counsel stated that they preferred to file written briefs instead of orally arguing the case. Plaintiffs were allowed sixty days to prepare and submit their brief; defendant was given forty days thereafter to file its brief; plaintiffs were given twen

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ty days thereafter to file a reply brief; and defendant was given, if required, ten days to file rejoinder brief. The Court deferred its decision and took the matter under advisement until said briefs could be filed.

January 20, 1944, plaintiffs’ brief was filed, and, on February 2, 1944, counsel for defendant moved for further time to file its brief, and the time was extended thirty days.

March 29, 1944, defendant’s brief was filed. ' On the same day defendant filed a motion to strike plaintiffs’ exhibits and evidence from the record.

April 10, 1944, defendant filed a supplemental motion to strike certain evidence.

April 15, 1944, plaintiffs filed reply brief, and defendant filed answer to plaintiffs’ reply brief on the same day.

April 20, 1944, we stated the situation and the history of the case and asked counsel to brief further. On June 20, 1944, memorandum was filed by counsel for plaintiffs in accordance with the Court’s order. (Statement of Court, p. 9)

July 17, 1944, defendant filed a reply to memorandum on behalf of plaintiffs.

It will be observed that the last memorandum, or brief, was filed on July 17, 1944. Long before and since that time this Court, its law clerk and its secretary have been busy going over this record and trying to assemble it and identify it so that the Court could decide the case and give its reasons for its decision.

Situated as we are and knowing that the Court of Claims and other courts are grinding out decisions every day and that possibly the Court had overlooked some decision pertinent to this case, we directed a communication to counsel for both parties stating the situation and suggesting that, if they had additional authorities, we would be glad if they would informally submit same in a letter and that adversary counsel would be advised of any authorities submitted. Counsel for plaintiffs did submit a letter containing some authorities not cited in the brief, but they were not new authorities and, in our opinion, are not necessary to the decision in this case. Counsel for the defendant stated they had no other authorities to submit.

The Court has prepared a statement and a memorandum, which are attached hereto and will be adopted as a part of this opinion and decision by reference only. The memorandum gives a complete, comprehensive, and, we believe, accurate history of the litigation in which the lands in controversy herein were the subject of litigation. Many questions, both as to law and fact, are discussed, and the facts are found and the law decided in said memorandum. The exhibits and the evidence herein are set forth at length and described. The Acts of Congress, Executive Orders, proceedings of the Isthmian Canal Commission, opinions and decisions of Courts, and other pertinent matters are also included in the memorandum, and such matters appearing therein will not be restated again in this opinion except where it may become necessary.

The memorandum has been indexed, and the Acts of Congress, Executive Orders, laws of the Canal Zone, and opinions of Courts have been specifically set forth in said index.

References to the Court’s memorandum will be hereinafter indicated in this opinion and decision as (Memo. p.-).

Defendant’s motion and supplemental motion to strike evidence and exhibits from the record of this case has heretofore been overruled, for the reasons stated on page 121 of the Court’s memorandum.

The defendant contends that “plaintiff is not a proper party herein.” The Court, in overruling the demurrer to the amended complaint and the complaint as amended, decided that the plaintiffs are proper parties, and has no reason to change that decision.

No contention is made in defendant’s brief that, after the amendment was filed making all the parties owning an interest in the land plaintiffs, not only for themselves but on behalf and for the benefit of all others who might have an interest in the land, the plaintiffs did not have the right to prosecute this action nor that the Canal Zone ’Code, t. 4, sec. 138, did not apply to the situation.

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Counsel for defendant, in his brief, re-argues the questions involved upon the trial of the demurrer, especially as to the status of the Playa de Flor Land and Improvement Company as to whether it is a de facto corporation and arrives at the conclusion that it is not.

This Court has stated in its memorandum (memo. p. 113) that the Playa de Flor Land and Improvement Company is a de facto corporation and also a special partnership; however, since counsel is so insistent, the Court will again state that there was a law in effect in the Canal Zone, viz., chapter 2, title 7, of the Code of Commerce, and title 27 of the Civil Code providing for corporations and for special partnerships and that the plaintiffs complied in .good faith with every requirement of said law. Furthermore, the Court is of the opinion that the plaintiffs had the right to institute and to prosecute this case, as set forth in the complaint, for the following reasons:

The applicable provisions of the Canal Zone Code, t. 4, secs. 132, 138, and 144, are literal adoptions from the California Code. In that state, long before the adoption of the present Canal Zone Code, the courts of California had decided that the statute authorizing suits against unincorporated associations by their common name recognized an unincorporated association as a distinct legal entity. 3 Cal.Jur. 358.

Where, under a statute, an association is recognized as a legal entity, it has the implicit right to sue in its association name. 7 C.J.S., Associations, § 35 p. 84. See Law et al. v. Crist et al., Cal.App., 107 P.2d 953 .

Hansel et al. v. Purnell et al., 1 F.2d 266, 267 , is an opinion of the Circuit Court of Appeals for the Sixth Circuit. In it the Court stated that “a voluntary association is a distinct entity, which may sue and be sued in a federal court, and where it has appeared and answered as a defendant it is subject to whatever decree may be entered in the suit.”

In the case of Citizens’ Loan & Savings Association et al. v. Krickenberger, 46 Ohio App. 228 , 188 N.E. 396 , in which the situation was very similar to the present one, the Ohio court held that the plaintiff was not a corporation and the only status it could assume was that of a special partnership, and, as such partnership, it could maintain the action, and the plaintiff was not precluded from maintaining an action under the circumstances disclosed by the record.

We have no doubt as to the plaintiffs’ right to maintain this action, and we are certain that the Court can properly distribute the proceeds of any judgment to those whose interest may appear and fully protect the defendant from any future action. See Stearns Coal & Lbr. Co. v. Van Winkle et al., 6 Cir., 221 F. 590 ; Watts et al. v. Vanderbilt, 2 Cir., 45 F.2d 968 . (Memo, p. 101.)

Before considering and deciding the issues of the case, we think it would clarify the situation to dispose of some questions and contentions raised by the defendant in its brief.

It is stated on page 58 of brief submitted by defendant’s counsel:

“* * * As the Court is aware, the Harrison-Arosemena map has long been recognized by the courts, and the interested governmental agencies in Panama, as an authentic delineation of the lands it covers. * *

In the defendant’s reply brief to “Memorandum on behalf of plaintiffs,” it is further stated:

“* * * What plaintiff asks the Court to do does violence to the well established rule that ancient documents are proper evidence of the matters therein set out, and this rule is of particular force in a case such as this where the ancient document in question has been relied upon by private parties, the general public, and Governmental Agencies for almost eighty years. The

accuracy of the Harrison-Arosemena map has never before been questioned, and the plaintiff is in no position to question it now

* * *” (Italics supplied.)

There is no evidence in this record to support the above statements, and they are certainly at variance with the history and

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record of the map. On the other hand, ject of pronounced and prolonged conflict this map, or plat or plan, has been the sub- (Memo, p. 106)

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It is not difficult to trace the origin of the map and its history from the record of this case. (Memo, p. 25 et seq.)

As stated in the Court’s memorandum, there is no record of the appointment of commissioners to make a map and no record of any report as to what they did while making it. But, on September 7, 1863, the representative of the Railroad Company addressed a communication to the President of the State of Panama in which it was stated that a map had been completed of the public lands which the Company had asked to have adjudicated to it. (Memo, p. 29.) Presumably, the map referred to was the Harrison-Arosemena map. There is a total absence of any evidence or even a suggestion that there was a survey made preparatory to the making of a map, but evidently some lines were measured or surveyed. There is not a scintilla of proof that any of the private lands included in the area were surveyed or measured, as the grant and concession required.

The Court’s conclusions are that the map substantially sets forth the outside lines of the area of what is known as Lot No. 1, which area included a total of more than sixteen thousand acres. Both plaintiffs and defendant have introduced it in the instant and various related cases, and undoubtedly it has historical as well as geographical evidential value, but we are of the opinion that it is more of a diagram, a plan, or a chart than it is an accurate map.

The Court is of the opinion that, when taken with the other evidence and the record in this case, the map is historically and geographically helpful. For example, the following detached statements were made by counsel for the defendant in his brief:

“The description in plaintiffs’ exhibit 7 bears no ascertainable relation to the description in the denouncement and in the claim filed with the map commissioners except that they start at a ‘Playa de Flor.’ But, according to Dr. Galindo, ‘Playa de Flor’ covered that whole district, and is so shown on the Harrison-Arosemena map. * * *

“As shown above, the whole area on the northwest side of the Bay of Limón was known as ‘Playa de Flor,’

and tltat whole area is so designated on the HarrisonArosemena map.

* * *

“But the term ‘Playa de Flor’ could cover all the land on the point northwest of the Bay of Limón as shown on the Harrison-Arosemena map. * * *

“However, as shown above, the entire point northwest of Limón Bay was known as ‘Playa de Flor’ and was so denominated on the Harrison-Arosemena map. * * *”

Evidently these statements were made without a careful examination of the Harrison-Arosemena map, because it so happens that on all copies of the map, while the colors may be different, there is an exceedingly small spot appearing on the seashore, or beach, which bears the Spanish designation el lugar llamada Playa de Flor, which, translated, means “the place called Playa de Flor (Beach of Flowers).” It is true that there is another area on the map — but not connected with that mentioned above and a considerable distance from the seashore — which bears the designation “Playa de Flor 28 hectares.”

The following statement is also made in the brief mentioned above:

“* * * The two instruments then conclude the attempted description

‘to the land (place) known by the name of Santa

Rita.’ Where is the ‘place called Santa Rita’ ? * * * ” (Italics supplied.)

An examination of the Harrison-Arosemena map shows that, in a southwesterly direction from the little point designated as “the place called Playa de Flor,” there is an area which counsel for defendant evidently overlooked and which bears the Spanish designation el lugar denominado Sta. Rita, which means literally “the place known by the name of Santa Rita.”

We believe further that this record shows that there was never any intention on the part of those who prepared the Harrison-Arosemena map to show the quantities, areas, limitations, or boundaries of privately-owned or privately-claimed lands, because the proceedings instituted by the Panama Railroad Company to have the lands adjudicated to it shows conclusively that the Panamanian authorities, after receiving the denouncement of the Railroad

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Company, requested that Company to furnish them a copy of the plat or plan the Company had suggested in its denouncement and that they would give public notice of same and that those appearing to claim lands would be required to present title to the property in due form, or present the testimony of witnesses to their claims and, after four months, that the agent of the Company would be informed as to individuals who claimed dominion to the lands situated within the area and as to the documents they might have presented. Furthermore, the proceeding shows that claimants did appear, and their appearance and the evidence they offered was set forth, and that on March 14, 1856, a representative of the Railroad Company was given a full copy of the report of the proceeding showing that thirty-one claimants had appeared and presented their muniments of title or their witnesses.

The whole proceeding was published in the Gaceta de Panama, No. 34, March 15, 1856. This was six years before the date of the Harrison-Arosemena map. The Railroad Company and the makers of that map had before them Qaim No. 17 made by Feliciano Villalobos, and the description of the claim is so plain that no one could misunderstand it, to wit:

“17th. Feliciano Villalobos, as the possessor of the land called Playa de Flor, the boundaries of which are:

‘By the sea front of Playa de Flor, in all its extension up to los Pescaderitos; and in its depth, a straight line from one to the other extreme to the place known by the name of Santa Rita.’

He has presented the testimony of four witnesses, taken before the Judge of the District of Colon, in December, 1855.” (Italics supplied.)

The small area designated on the Harrison-Arosemena map as “the place' called Playa de Flor” certainly could not have -covered this area, and the makers of the map and the Railroad Company fully understood it.

In our opinion, any marks on that map indicating privately-owned lands are not evidence of the quantities, areas, limitations, or boundaries of such lands, and we fully agree with what was said by the Court in the case of Morales et al. v. Arcia et al. (Memo, p. 110 et seq.)

In the brief of counsel for defendant the contention is made that the private landholders either caused to be plotted on the map the areas shown there, or that they failed to object to same and therefore they are limited in their claims .by the areas designated on the map.

It will be observed that, while setting forth the number of hectares in some designations, the map does not give the metes, bounds, or distances or any other description of privately-owned or claimed lands. In this connection it must be remembered that it was the duty of the Railroad Company to measure these lands and to set forth correctly the areas of same and the limitations and to mark the boundaries, but there is not a scintilla of evidence to show that this was done.

It is also well to remember that the claimants appeared before the authorities of the State of Panama and on or before March 14, 1856, made their claims and furnished their proof, all of which was reported to the Railroad Company. The whole history of this alleged adjudication is set forth in the Court’s Memorandum, page 28, et seq.

It will be remembered that the law of 1861 (defendant’s exhibit 4), provided that the limits of the individual property would be traced in connection with the titles or other supplemental proof, but when the topographical position of the limits • was not clearly expressed in the title or proofs, geometrical lines were to be traced on the map to permit the fixing of posts, fences, or other means of indicating the limitation or boundaries. (Memo, p.- 28.)

It then set forth the time within which the map should be completed, where it would be kept for the examination of those interested, and that its purpose was to serve as a basis in all questions which might arise as to land limits. (Memo, p. 28.)

It was further stated that those who did not consider that the property had been traced exactly might appear before the commissioners during a certain period of time, and the commissioners would make

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necessary corrections in the map, or plan. (Memo, p. 28.)

There certainly is nothing in this record to indicate that any such map, plan, survey, or measurement of the lands

as provided by the original grant, or as provided for in the law mentioned above,

was ever made, and there is a total absence of proof that those who made the map, chart, or plan, ever at any time made themselves available to any claimant who desired to call the commissioners’ attention to any corrections; however, in Morales et al. v. Arcia et al., Civil No. 289 in the Third Circuit, it did appear that a protest had been made by a private land owner and that the same was ignored.

If there was ever anything done by the commissioners subsequent to the making of the map, this record does not disclose it. Furthermore, there is nothing in this record to show who these two men were; the Court does not even know whether they were surveyors, but whatever they did must have been complicated by the conflicting instructions they received, as this record will show.

In the communication of March 14, 1856, referred to, in which the Panamanian.authorities transmitted to the representative of the Railroad Company information as to the persons who had appeared and claimed portions of the land which the Company had undertaken to denounce, appears the name of one Gerónimo Bracho, Claim 10, whose lands were adjacent to and on the south of the lands involved in this action. His lands were generally described, but no boundaries, acreage, or distances were given in the description by the claimant. The makers of the map indicated the lands on their map by the designation “Rio Indio,” and the lands are shown as comprising an area of 2,145 hectares, or 5,200 acres.

Afterwards, a suit was brought about this land, Third Circuit, Civil No. 289, (Memo, p. Ill), and the Isthmian Canal Commission and the Panama Railroad Company entered their appearance and litigated the case, and, of course, they contended that the heirs of Gerónimo Bracho were only entitled to the hectares or acres shown on the Harrison-Arosemena map. They were not successful in this contention, however, and the Court, by its judgment, awarded to the heirs of Bracho a much larger area, which included a part of the village of Mount Hope, adjacent to the railroad tracks.

In a case before the Joint Land Commission, Docket No. 276, June 24, 1913, a portion of the land shown on the Harrison-Arosemena map as public lands was claimed by private persons, and the Commission upheld their claim, saying that the negative evidence of the map should not receive the same weight as positive evidence submitted and that, had the surveyors of 1862 been in possession of all the facts, they would undoubtedly have entertained doubt as to whether the lands in question were indisputably public lands, and the Commission took the position that the title to the lands had been perfected by the acts of the Colombian authorities, the decision of the Canal Zone courts, and the principle of prescriptive right. (See Interim Report, Joint Commission, p. 9, appendix Case 53.)

The decision of the Circuit Court of the Canal Zone referred to in the report of the Commission mentioned above was an opinion by Judge F. Mutis Duran, first chief justice of the Supreme Court of the Canal Zone, who was an outstanding authority on Spanish, Colombian, and Panamanian Laws, as this record shows, and who was thoroughly conversant with the history of the Harrison-Arosemena map.

The contention is made many times, and often repeated, in defendant’s brief that the description, as shown by the title papers and the complaint herein, is vague and uncertain and that no exact boundaries are given and that the lands could not be properly identified from the descriptions. A sufficient answer to that argument is that the lands have been properly identified for about thirty-five years, and there is absolutely no proof to the contrary. It should be remembered, however, that, although these lands are now within the -Canal Zone and under the dominion of the United States for more than three centuries prior to 1904 they had been under the dominion of Spain and other Spanish-

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speaking sovereigns, whose systems of laws were entirely different, from those of the United States or England, and that this was true in regard to land titles and to conveyances of land. (Memo, p. 3.) It would be unreasonable, therefore, to expect that precision in muniments of title with respect to these lands as would be found in the United States, where there have been surveys made and maps and atlases prepared which accurately fix the divisions of counties, townships, municipalities, and land boundaries of private parties. See Reavis v. Fianza, 215 U.S. 16 , 30 S.Ct. 1 , 54 L.Ed. 72 .

The Court has examined the document referred to above in which the Secretary of State of Panama reported to the Railroad Company as to the thirty-one claimants and the proof submitted by same (Defendant’s exhibit 2). In no instance was the quantity of land, nor the calls, courses, or distances mentioned, except in a general way. Furthermore, that report shows the custom long practiced in Spanish-speaking countries of the Western Hemisphere of transferring lands by deeds or title papers only by describing the local name attached to or used when referring to property. The setting forth of the calls, distances, and limitation of boundaries, as applied to conveyances in the United States, was practically unknown to the system of land transfers under the laws of Spain or Latin American countries.

We might add that, after examining the above mentioned report, we have arrived at the conclusion that, of the several descriptions of lands or claimants included in that report, the one by which the land could have been the most readily identified was that describing Claim No. 17 of Feliciano Villalobos, Tract No. 1 in controversy in this action.

The engineer who surveyed these lands was undoubtedly competent. He had long been employed on the Isthmus. He was thoroughly acquainted with the lands on Toro Point Peninsula. He had no difficulty — and no one would have — in finding the points designated m the Villalobos denouncement and the De la Parra title. Both of them stated how far the land extended back from the seashore, and the only possible uncertainty would be the north and the south boundaries.

It is to be remembered that the original claim of the plaintiffs consisted of Tracts 1 and 2, and the remainder of the land involved in this case was acquired at the instance and suggestion of those representing the Railroad Company. (Memo, p. 75.)

This is not an action in ejectment or to quiet title, but it is a compensatory action for taking the land. This is important when it is considered that the sea-front boundary is accurately described and that the sea-front land is by far the most valuable, and this would be the same in any event.

Having surveyed Tract No. 1 first under the circumstances as shown by the evidence, and when the adjoining landholders were there and when the engineer could see the lines that they had established between the lands, he could not go far astray, because he knew he had to run to a place called Santa Rita. After that survey and after surveying Cerezo’s land, with his knowledge of the country and with the assistance of the natural objects shown, the only mistake an engineer ' could have made — since the depth of the land back from the seashore was known — would have been to have gone in the wrong direction or at the wrong angle. The area of the land would be approximately the same regardless of the angle at which the land extended back from the seashore, and this is true as to the De la Parra title.

There are’ no other claims or titles involved in the action, so that, in any event, the vagueness and uncertainty urged so confidently by counsel for the defendant could prejudice no one.

It has never been claimed th^t the. surveys, as made, conflicted with the Railroad Company’s lease to Hyatt to the north or with a purported lease of the Railroad Company to the south. It is somewhat significant that neither the United States nor its predecessors in title ever introduced those leases nor described the lands covered by same.

These lands have been in litigation for thirty-five years, and this is the first time that any contention has ever been made as

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to the vagueness and uncertainty of the descriptions ; however, contentions have been made that the claimants and their predecessors in title did not own any land, but if they did, that the descriptions included more land than they owned. The latter contention has largely been based on the grants to the Railroad Company and the Harrison-Arosemena map.

We assume that the Court has a right to take judicial knowledge of the fact that, since 1904, the Isthmus and the Canal Zone have been teeming with capable engineers employed by the Panama Railroad Company, the Isthmian Canal Commission, and the Government of the United’States, but not one engineer has ever testified that an accurate survey of the lands could not have been made and established by the documents which have been in evidence since the beginning of the litigation involving the lands, and the Court has not overlooked the testimony of defendant’s witness Jones, which will be referred to hereafter.

Counsel for defendant, on page 16 of his brief, directs the Court’s attention to what he calls the “vague and inconclusive description” as contained and compared in plaintiffs’ exhibits 7 and 7-A, also 8 and 9.

If we can understand counsel’s contention, it is that these exhibits do not all give the same description. There is however, a very sufficient explanation as to why they do not: Exhibits 7 and 7-A are descriptions contained in deeds executed by the Villalobos family to some of the plaintiffs to what is known as Tract No. 1 in this action. While the descriptions in these conveyances describe the natural objects and boundaries of the land, they are more minute and specific as to the calls and distances. Exhibit 8 is a conveyance of but seven acres of the land, conveyed as mentioned above, by Fairman and Hyatt to Leo Erdwurm. Exhibit 9 is a deed to the same parcel of land from Erdwurm to Edward Bischoff. The parcel of land covered by exhibits 8 and 9 is described in the conveyances exactly and minutely by metes and bounds, and there can be no question about the specific description. This is the same land for which Bischoff brought suit against the plaintiffs to recover the purchase price.

While the description given in plaintiffs’ title papers may not fully conform to the standards of the United States, we are of the opinion, after considering the situation, the nature of this action, and the custom and usage of the Countries which had sovereignty over these lands until 1904, that they furnish a sufficient description for the lands to be properly identified and valued.

While discussing defective descriptions, it would not be amiss to say that the defendant offered exhibits in this case, viz., the so-called “quitclaim deed” from the Panama Railroad Company to the defendant United States, that does not give any description of the property proposed to be conveyed, also certain leases and conveyances executed to the Panama Railroad Company and the United States in 1911 and 1914 which contain no description which the Court or anyone else could identify as having any connection with the lands in controversy.

Counsel for the defendant, in his brief, challenges the accuracy and authenticity of plaintiffs’ exhibits 3% and 4.

Plaintiffs’ exhibit 3% was made by the civil engineer Patterson in 1907 and is a map of the lands known in this action as Tracts 1 and 2.

Plaintiffs’ exhibit 4 is a map prepared by an engineer named William Hull and is compiled from surveys made by Hull and Patterson and from all available maps and data. The property lines are as given in the original descriptions.

In the ’brief it is also stated -that these maps have not been published and that they have no intrinsic evidential value.

We-agree that maps, surveys, and plats are not necessarily of themselves independent evidence and are therefore to be received only so far as they are shown to be correct by other testimony in any case, furthermore, that ordinarily a map made anywhere at any time is only evidentially valuable when it is proved to be made by one competent to do so and present to verify his work. We also agree that maps should be simple enough to be understood by a plain, ordinary man, and that means not only a delineation of the lands included but

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also such full and accurate notes and data as are necessary to this understanding.

As this Court understands the term “published,” it means to “make public, to make known to people in general,” as well as to publish in a newspaper. If it is meant by counsel for defendant that these maps have never been published in a newspaper or government document of which the Court takes judicial notice, that is true; 'but the same contention is true with regard to the Harrison-Arosemena map. Nothing in this record indicates that the Harrison-Arosemena map has ever been published in any newspaper or that it has ever been published or adopted in any public document of the United States. Many copies have been made of it, of course, and these copies, as the Court has seen, vary to some extent, but we believe it has been made public and that it is known to people in a general way.

Exhibit 3% was filed in a court of the Canal Zone almost thirty-five years ago, exhibit 4, about seventeen years ago, and they have remained in the records of the Clerk’s Office from that time, unless wrongfully removed with other papers 'by counsel for the Government in a former case. (Memo, p. 41) No. 3% has been introduced in all related cases since it was made thirty-five years ago, and No. 4 has been introduced in all the related cases since 1928. The Court is therefore of the opinion that these maps have been made public and that they are known, at least to those who have been interested in the litigation.

So far as the Court has been able to discover from this record, there has never been any testimony offered to disprove that both of these exhibits accurately describe the lands shown on same.

We believe that it would be fair and reasonably safe, in order to establish the evidential value, the verity, and the integrity of these exhibits, to recite the evidence in this record as to the mapmakers and the maps identified as exhibits 3% and 4 in the instant case.

Mr. Patterson, as heretofore stated, was a civil engineer, and he prepared exhibit 3%. He collaborated with Hull, another engineer, who prepared exhibit 4 from surveys made by himself and Patterson. This map (Ex. 4) included on it notes and data showing what it is and explaining it. Patterson came to the Isthmus in 1905 as an engineer and was employed in that capacity by the Panama Railroad Company or the United States for about eight years. Undoubtedly he was a competent engineer, for the record shows that his qualifications were admitted by opposing counsel in related cases. He was thoroughly familiar with the lands, and his testimony shows that he had made many surveys in the Toro Point Peninsula and the river areas. He was also thoroughly familiar with the locations of buildings or houses on the lands; the villages nearby; the site of old Fort San Lorenzo;. the distances, marks, or points and places; the boundaries; the topography; the vegetation which grew on the lands and also the timber thereon; the amount of land under cultivation and the crops growing thereon, and the appearance of the land as to former cultivation or former timberlands.

A reviewing court might have some question as to why one working for the Government or the Railroad Company in 1907 would have made a map for the use of claimants to private lands within the Canal Zone, especially in such a fiercely-controverted matter as this has proven to be. There is some question in the Court’s mind as to whether or not there was any controversy at that time; however, the explanation is that it has been the practice and custom in the Canal Zone from the earliest days of sovereignty by the United States for professional employees of the various governmental agencies, when not on duty or when on vacation locally, to accept temporary appointment with private parties. This custom and practice is also true as to the legal profession. Therefore, we have at this bar what is commonly known as the “sundown lawyer,” who prepares and practices his cases when not engaged in his regular employment.

Patterson has appeared as a witness in the cases involving the lands in controversy on three occasions.

His first appearance as a witness was in 1908 in the old Circuit Court Case No. 66. What is now identified as exhibit 3% was introduced and verified 'by him in that case. The accuracy of the map was not ques

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tioned, but, on the contrary, witnesses were able to identify the lands from same. Furthermore, there was positive and unequivocal testimony that he ascertained the landmarks and the points to start the survey from the description given in the denouncement of Feliciano Villalobos, which was published in the Gaceta de Panama in 1856. Upon that trial Dr. Galindo, a witness for the intervenor, when shown the petition giving the description of the land as it appeared from the denouncement published as mentioned, stated that the map was in accordance with the description.

Patterson next appeared in the abortive trial on January 29, 1910, in the old Circuit Court Case 118, afterwards designated as case No. 1 in the District Court. His qualification was admitted by opposing counsel. He testified in that proceeding as to the Villalobos and Cerezo lands, which he had mapped, being Tracts 1 and 2 in this case. He stated the circumstances of making the map, which was introduced, and described the lands included therein.

He next appeared as a witness in 1928 in the District Court cases 1 and 3 consolidated. Again his qualification was admitted by opposing counsel. He stated at that time that he had been employed by the Panama Railroad Company from 1905 to 1913 as a civil engineer, part of the time as land engineer for that Company, that he knew the parties and those interested in the litigation, and then explained the maps now identified as plaintiffs’ exhibits 3% and 4.

Counsel for the Railroad Company ad-. mitted the authenticity and the accuracy of the maps, his only objection being to the method of proving the issues in the case, namely, the title to lands. The objection was overruled, and the Court admitted the exhibits.

The statement is repeatedly made in the brief of counsel for defendant that the Court sustained an objection and refused to let the witness testify when the following question was asked:

“Direct Examination by Mr. Fairman:

“Q. Mr. Patterson, I exhibit to you a document marked Plaintiff’s Exhibit No. 7, and ask you to read the description of the land contained therein. (Witness examines exhibit.) I refer you to plaintiff’s Exhibit No. 3, being the map prepared by you and ask you to state whether or not the description contained in Exhibit No. 7 is a correct description of the land on this map marked ‘property of the surviving heirs of Feliciano Villalobos’ ? A. It is.” (Tr. Nos. 1 and 3, p. 17.)

While there is some confusion in the transcript, not only in this but in all other respects, a careful reading of it discloses that the witness was shown certain exhibits appearing in the case and then asked the question whether or not the descriptions contained in the exhibits were the correct descriptions of the land ar, shown on the maps which had been admitted in evidence.

When the question was asked, the witness answered without objection, but counsel for defendant did object immediately following a subsequent question and the objection was sustained and counsel for plaintiffs explained the question and the Court undertook to give its reasons for sustaining the objection. As we gather from the explanation in the transcript, the reason was that counsel was asking the witness to say that which it was the duty of the Court to ascertain. The Court stated in part, “You are asking him to state a conclusion which it is the province of the court to say from the facts.”

We submit that it was about time someone was going to decide something in the ancient actions. The records show that the Court considering the case never did.

Counsel has also stated in the brief that this ruling of the Court was correct. We can not agree with him. The maker of the map, who was admittedly competent— in fact, it had been admitted in the litigation that he was an expert — was present and testifying. The question was simple and, after all, an engineering or surveying question of fact and not a question of law. Certainly the maker of the map, who was present to verify his work should have been allowed to answer that question.

The Court, in its memorandum and its reasons for overruling defendant’s motion to strike, has set forth in full (p. 118

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et seq.) the history of the weird proceeding as contained in the transcript of that trial and does not wish to repeat same. The 'Court is of the opinion that the question asked the witness was proper and that he should have been allowed to answer it, but, in any event, the maps which were identified by the witness are proper evidence in the instant case.

It is stated in brief for the defendant that it is apparent that Patterson made a

gross error

which ignored an applicable law limiting the area that could be acquired by cultivators and did not follow the description of the land as published by Villalobos in 1856, and that the maps are therefore valueless as an aid to the Court in determining the metes and bounds of the Villalobos tract of land.

We have no doubt that counsel has convinced himself of the correctness of his contentions, but he certainly has not convinced this Court that the descriptions of the lands as published in 1856 and as contained in the De la Parra deed were so vague and uncertain that the lands could not be identified, and he has not convinced the Court that the maps identified as plaintiffs’ exhibits 3% and 4 are valueless as evidence in this case, and neither has he convinced the Court that an engineer making a survey should have been familiar with the applicable law limiting the land that could be acquired by cultivators. Not only would an engineer not be familiar with that law, but it can safely be stated that but few of the Isthmian lawyers would be familiar with the land laws applicable and current in this much-troubled and ever-changing country.

In this connection it may be remembered that, in all the cases involving the lands in controversy, the United States and the Railroad Company have never introduced but two expert witnesses as to the laws of Panama, Colombia, and Spain, both of whom are mentioned and quoted from in the brief of counsel for defendant. The first of these, Dr. Galindo, testifying in old case 66 (1908), stated plainly and emphatically that the Railroad Company never did own the lands, because it did not perfect its title in accordance with the laws. The second is Dr. Chiari, who testified in 1943 in the instant case and who stated just as emphatically that no one else except the Railroad 'Company had ever owned the land after the grant by the Colombian Government and the subsequent proceeding, as offered in evidence by the defendant, adjudicating the lands to it.

It is contended by counsel for defendant that Patterson, when he surveyed the boundaries of the lands as between the different tracts, merely accepted the statements of the parties and made the survey accordingly.

We do not belive the record will support this contention. The natural objects called for in the papers were easily accessible and could be identified and observed, and the distance the lands ran from the sea was set forth. Patterson testified that, when he surveyed the line between Tracts 1 and 2, all the claimants and others were there and showed him the point which they recognized as the dividing line of their lands. He further stated that they had an old boundary line they had cut out and cleared and that he followed the boundary line as it was shown. Practically the same thing occurred as to the survey when he surveyed the line between Tract 1 and the land on the north occupied by Hyatt under the lease from the Panama Railroad Company.

In defendant’s reply brief to memorandum on behalf of plaintiffs, it is stated that counsel for plaintiffs would have the Court believe that Mr. Collins waived all objections to the Patterson-Hull map and to the accepting of it as evidence of plaintiffs’ title and that it is inconceivable that Mr. Collins would have done such a thing and that he did not do so is proved by the fact that he vigorously defended the Government’s interest in cases 1 and 3 as long as he had anything to do with them. It is suggested 'by counsel that a fair reading of the entire transcript in these cases — not the quoting of a few lines of testimony — would convince the Court that Mr. Collins had accepted the map only as a delineation of plaintiffs’ claim and that he had made no admission that the map proved title in plaintiffs, that it was evidence of foundation of title, or that it was admissible for that purpose.

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We have read not only the transcript in 1 and 3 but all those of the related cases, not once but many times. We have applied to them all the understanding and the acumen that we possess. We will agree with counsel that Mr. Collins made no admission that the map proved title in the plaintiffs, that it was evidence of foundation of title, or that it was admissible for that purpose; on the other hand, there can be no question, from reading the record, but that he affirmatively stated that he did not object to the accuracy or the authenticity of said maps. Furthermore, we think the record shows that he agreed that the maps were accurate and that they were authentic. Our reason for this statement is that, at the conclusion of the abortive trial of 1928, the following colloquy between Court and counsel occurred:

“Mr. Collins: The defendant would like permission to withdraw its Exhibit M, which is map 60 60-1. In looking it over last Saturday I found an error in there I would rather not have go into any permanent record.

“The Court: There being no objection, defendant’s Exhibit M is withdrawn.

“Mr. Fairman: And you will adopt the map of the plaintiff?

“Mr. Collins: Yes, we have admitted your map is O.K.” (Tr. 1 & 3, p. 64.)

Having withdrawn his map and having made the statement as quoted above, the Court considering the case and counsel for the plaintiffs were certainly justified in believing and accepting his statement and acting on same, and so is this 'Court.

The Court will state further that, although these maps have been admitted as exhibits in the related cases, as set forth above, and have been testified to by the witness Patterson, neither before the statement made Mr. Collins in his capacity as counsel for the Railroad Company nor since has a witness been called by the Railroad Company or the defendant United States to show that the maps were not accurate, authentic, or that they did not show what it was claimed they showed, and this in spite of the fact, as stated above, that the Government and the Railroad Company have many competent engineers in their employ and available as witnesses in the Canal Zone. Certainly this was a question of fact susceptible of proof, which would have been more convincing than argument.

The Court has also examined the decision in the case of Johnston v. Jones et al. 66 U.S. 209 , Black 209, 17 L.Ed. 117 , which has been cited by counsel for the defendant in support of his contentions, and the Court is of the opinion that there is nothing in the case that supports the contentions. The only reference in the whole decision that the Court finds is the following statement:

“The facts disclosed in the testimony show that Allen’s map was not itself original and reliable evidence,

and calculation founded upon it was therefore clearly inadmissible.

* * *” (Italics supplied.)

In the instant cease the defendant introduced Jones, a civil engineer employed by the Office Engineering Division, Section of Surveys, of the Panama Canal since 1928. Mr. Jones stated that he had not been rated as engineer during all this time, as he had not taken his final degree in engineering until 1932.

We have no hesitancy in saying that we believe Mr. Jones is a competent engineer. The Court has heretofore stated (Memo, p. 129) that, so far as the testimony connected with the evidence in this case is concerned, the evidence he gave was not important and that Exhibit 15 that he offered is very questionable, under the rules of evidence. The Court will, however, again state its reasons for these conclusions.

The witness stated that the documents which he examined were the descriptions in the complaint and the amended complaint herein, which showed the conveyance of the lands at various times, also Document 204, which is a deed of the De la Parra property, to which reference has heretofore been made.

He also stated that, considering the natural objects and measuring the lands accordingly, there would be 197 acres more than if he only considered the calls of courses and distances. (Memo, p. 129.)

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This witness stated that he had never been on the land and had never made a survey of the land, but afterwards stated that he had been on the land, presumably not for the purpose of making any survey.

He stated that the exact location of the lands could be found from an actual survey on the ground and that Tracts 1 and 2 had adjacent boundaries and a natural object marking that boundary and that all descriptions in the complaint were hinged upon the plotting of Tract 1, and as much as Tract 1 was off, the other tracts were off correspondingly.

He next stated that he had used the Harrison-Arosemena map to get the natural objects, concerning some of which there could be no doubt.

He then presented defendant’s exhibit 15, which was admitted and which has been referred to. (Memo, p. 129.)

When asked by the Court what map he had used in making this calculation he stated he had used the McClure map.

While the Court was interrogating the witness as to what map he had made his calculations from, the following occurred:

“By the Court:

“Q. But you made a calculation from the other maps? A. No, sir, from this map only.

“Q. And also from the Deed? A. Yes, sir.

“Mr. Toole: And he took the natural objects shown on this map which is Defendant’s Exhibit 15 for identification, and from the old Harrison-Arosemena, which is in evidence. A. (Continued) I might say that this map, known as the McClure map of 1913, is considered fairly accurate as of 1913.

“Q. What map is that? A. McClure.”

It will be observed that at no time in his evidence did he state that he used any map in making his calculations except Exhibit 15, the McClure map, and, further, notwithstanding the attempt of counsel to testify at the time the Court was interrogating the witness, that he at no time stated he had used the Harrison-Arosemena map as a basis for or in connection with his calculations.

The physical appearance of Exhibit 15 indicates that it is composed of two sections of a map which have been placed together on heavy paper and on the Map the witness had superimposed lines, letters, and numerals.

The Court desired, in order properly to consider this testimony, to compare the exhibit with the -original McClure map, as it assumed that the map was a part of the records of The Panama Canal. We discovered another copy of the McClure map among miscellaneous paper which presumably had been mingled with the record when it was returned to the Clerk’s Office at Cristobal after having been removed. (Memo, pp. 41, 42.) We discovered that the map had been prepared in a manner similar to the map offered as Exhibit 15, and undoubtedly had been prepared for the purpose of being offered or used in the trial of civil case No. 772. Upon the map, an engineer by the name of

Jones (but not the

witness in the instant case) had superimposed certain lines, and it is stated on the face of the map that the lines were plotted from the Harrison-Arosemena map and the records of the Land Office, Ancon, Canal Zone.

After discovering the map among the papers, we requested the witness who had prepared and introduced Exhibit 15 to furnish a copy of the McClure map which did not bear lines or other matters superimposed upon it. He furnished us with the two sections of the map which composed the exhibit, which do not bear the improvisations made by the two engineers on the two copies of the map referred to above, and we have joined the two sections in the original map in the same manner as Exhibit 15 is joined and have attached it and the other copy of the map to Exhibit 15 and marked them “A” and “B” and have considered same in connection with the testimony of the witness and Exhibit 15.

It will be observed on the McClure map secured by the Court that the location of the lighthouse is not shown nor is the lighthouse mentioned. Presumably the witness Jones either arbitrarily placed the lighthouse where he thought it should be or used some other map for the purpose of locating same. It will further be noted that

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the lighthouse is not shown on the Harrison-Arosemena map, and the Court is very-doubtful that there was a lighthouse there at that time. The location of the lighthouse could have been changed from 1907 to 1943.

The starting point in delineating Tract No. 1 has been described by plaintiffs in deeds and in their complaint as:

“Beginning at a point on the beach or shore of the Bay of Limón, 4254 feet south, 18 degrees, 39 minutes west (magnetic bearings, year 1907) of the lighthouse located at the place called 'Punta Toro’, on the west side of the entrance to said Bay of Limón.”

At various places in the record the point referred to has been called “Playa de Flor.”

In his testimony, C. R. Jones, the engineer introduced by the defendant, stated that calculations based on the McClure map of 1913, heretofore adverted to, showed that a point 4254 feet south, 18 degrees west of the lighthouse was not on the seashore but was some distance inland. He stated that he had made no actual measurements of the land so that if the map were incorrect his testimony would be valueless; or, since the lighthouse is not shown on the original McClure map, if he erred in his location of the lighthouse, his testimony would be valueless; further, the bearing given was taken on a magnetic compass and the witness stated that, in order for him to use it, it was necessary for him to correct it

up to date.

Since the map he was using as a basis for his calculations was made in 1913, it would seem to the Court that the bearing should only have been corrected up to 1913 in order to establish the relative position of the starting point of Tract No. 1.

The witness Jones, as will be seen on Exhibit 15, made several calculations based upon what he called various interpretations made of the descriptions given in the documents which he examined and the landmarks given in the Harrison-Arosemena map, and these interpretations appear to "be calculations of the land considered from various angles extended from the seashore. He did not survey the lands and could not have taken into consideration all the facts which Patterson had before him when he was on the land and was thoroughly familiar with it, viz, that the deed showed the following: In Tract No. 1, the Villalobos lands, the boundaries of the land ran in straight lines back from the seashore to a place called Santa Rita and that in Tracts 2, 3, and 4, the De la Parra lands, the lands were known as Nombre de Dios on the north of the Bay of Limón, the boundaries of which were comprised from Los Pescadoritos to the Morro de Limón in front of Colon, and in depth from those places to the Quebrada Honda (quebrada honda means a “deep brook”) three miles in a southerly direction. It is to be considered in this connection that, by custom and usage, the lands were identified by name, and the Harrison-Arosemena map will show an area marked “Lands known as Nombre de Dios.” The surveyor on the ground had the advantage of all these facts and could see the situation and the location.

While, of course, there might be some difference as to the angles of the north and the south boundaries of the land, the Court, after examining all the maps has arrived at the conclusion that plaintiffs’ Exhibits 3% and 4 depict the most reasonable and accurate- survey that could have been made, considering the landmarks on the sea, the name and the location of the lands, and the distance to the terminals of the land inshore. As stated before, however, this is not a suit to quiet title or in ejectment; it is a compensatory action for the taking of lands, and the lands, as surveyed and as shown on the map, do not conflict with those of any other landholder, and the lines were made and the boundaries were surveyed as set forth heretofore.

Many maps have been introduced in these related cases, but, at the beginning of the trial of the instant case, all of them had been withdrawn with the exception of the Harrison-Arosemena map and plaintiffs’ Exhibits 3% and 4.

It might be noted that the witness Jones, although a competent engineer was never shown Exhibits 3% and 4 (Patterson and Patterson-Hull maps), was never asked a single question about them, and never testified that they were not correct and did not

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conform to the descriptions given in the instruments which he examined.

Counsel for the defendant contends as follows:

“ * * * Ail examination of this map will show a small area colored purple, with the description '40 fanegadas para Dr. Ricardo de la Parra.’ It is beyond dispute that this area must have been plotted on the map by de la Parra during the time it was posted as required by law. Otherwise, there would have been no plotting in de la Parra’s name. The plot shown on the HarrisonArosemena map bears no relation to the plot described in plaintiff’s complaint, but it serves to show that plaintiff has attempted to expand an area of 40 fanegadas to 2,759.3 acres without even a shadow of foundation of facts or circumstances to justify such a procedure. * * * ” (Brief, p. 53.)

The Court can not agree with counsel in this conclusion for many reasons most of which have heretofore been set forth in this opinion as to the Villalobos lands. The Court has been unable to find anything from the proceeding undertaken to adjudicate these lands to the Railroad Company to indicate that it was the duty of the private landowner to plot his lands on the Harrison-Arosemena map; but to the contrary, we do find in defendant’s Exhibit 2 where the Panamanian authorities, replying to the agent in connection with the Railroad Company’s proposed denouncement of the lands, stated what the Company should do in order to identify and have adjudicated the lands and, specifically, that public notice would be given and the agent of the Company informed as to individuals who claimed dominion to the lands situated in the area the Company was seeking to have adjudicated to it and as to what documents such individuals had presented and then:

“7th. If the Company should recognize the rights claimed, the lands so recognized shall be excepted from the adjudication asked for by said Company. If the claims are not recognized, the question shall be submitted for adjustment to the Tribunals.”

Therefore, under the law and by the proceeding thereunder, it became the duty of the Railroad Company to do one of two things : First, to recognize the rights of the claimants, or, second, if the Company did not recognize such rights, to let it be known, and to submit the dispute to the tribunals, which meant the courts or some other body that could properly decide the question. If the Railroad Company was claiming these lands, that would have been an excellent time right then and there to have followed the procedure as set forth above.

This record shows that, when the Panamanian authorities reported to the Railroad Company the claims to the lands, the report did not contain any claim for the De la Parra land. Notwithstanding this, however, the makers of the map plotted or planned or placed the designation on the map as set forth above of “40 fanegadas para Dr. Ricardo de la Parra.” The question is: How did this happen? Why did they do it?

The Court has arrived at the conclusion that it was done because there was a deed of record showing that De la Parra owned these lands, and the reasons for its conclusions are:

1. 'Public Document 204, showing the deed and the proving of this deed after the fire in Colon.

2. Certain papers attached to the above document.

3. Other evidence in this case showing registrar’s fees paid for recording deeds and that taxes were paid on the lands. (See deposition of Eduard Espinosa G., plfs/ exhibit 41, cases 1 and 3, consolidated, now Exhibit “F.”)

4. That De la Parra was well known, as the record will show and as hereinafter referred to.

Furthermore,: according to Dr. Galindo (Memo, p. 109), the Colombian Government did not order said plan to be drawn up for the purpose of ascertaining who were the owners of the lands situated in the Canal Zone, because they needed only to apply to the office of record to learn this.

The question might be suggested: If the Panamanian authorities or the Commissioners knew of the existence of the deed, as mentioned above, why did they only include on the Harrison-Arosemena map an area

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of forty fanegadas, whereas the deed described a much larger area ?

The Court has arrived at the conclusion, which it believes the record supports beyond any question, that this adjudication was more or less an ex parte matter, and, furthermore, that the Commissioners were somewhat confused as to the instructions given to them as to how much land a cultivator or claimant was entitled to and could hold.

Counsel for defendant, in his brief, contends that one claiming title by adverse possession must show that his possession is exclusive and that the cases of Villalobos et al. v. Foleston et al., No. 66 in the old Circuit Court, and Nos. 1 and 3, consolidated, show that there were other people claiming the lands, and therefore plaintiffs’ possession was not exclusive, and in this connection, attention is called to the record wherein it is shown that there were conflicting claims also to what was known as the “De la Parra lands.”

The record shows that, in the case of Villalobos et al. v. Foleston et al., old case No. 66, the plaintiffs’ predecessors in title did, in February, 1908, file an action to quiet title and ejectment in which they alleged that certain named defendants were wrongfully trespassing on their lands without a claim of right or interest therein, and that, in the old Circuit Court case of Cerezo v. Diaz et al., No. 118, which afterwards became District Court case No. 1, the plaintiffs’ predecessors in title did bring an action against certain named defendants in which they alleged that defendants were wrongfully trespassing upon their lands and that due notice had been given to them and that the defendants persisted in their trespass. In both cases the ejectment of the trespassers and recovery of damages were prayed for.

It is true that defendants came in and filed some pleadings, but they never offered any proof. That they were trespassers, without any right, title, or interest in the land, is shown by the proof in the record herein. Furthermore, the record shows that the plaintiffs’ predecessors in title did everything they could to eject them from the land.

After all, exclusive possession only means that the claimant is holding possession of the lands for'himself as his own and not for another. It is true that in some cases it is held that the possessor must hold possession to the exclusion of all other persons, while in other cases it is held that the possession need not be exclusive of all persons but only of the true owner. See Illinois Steel Co. v. Tamms, 154 Wis. 340 , 141 N.W. 1011 , Point Mountain Coal & Lbr. Co. v. Holly Lbr. Co. et al., 71 W. Va. 21 , 75 S.E. 197 .

The mere entry of a trespasser or a casual and occasional trespass on the land by a stranger to the title does not interrupt the continuity of adverse possession. See Bloodsworth v. Murray et al., 138 Md. 631 , 114 A. 575 , 22 A.L.R. 1450 , and many cases cited in the annotations of that case, page 1458; also Word v. Colley, Tex.Civ.App., 173 S.W. 629 , Glover et al. v. Pfeuffer et al., Tex.Civ.App., 163 S.W. 984 .

The proof in this case shows that the plaintiffs’ predecessors’ title had ripened and was full and complete many years before the trespassing mentioned above.

The following statement is made in defendant’s brief:

“

* * * There is no evidence as to when the defendants named in Case No. 66 went on the land. However, at least some of them continued to reside there after 1908 when that case was tried. The Court will find in defendant’s exhibit 24 in the case at bar, deeds dated in 1911, from Thomas Anderson, John Beach, Zachaniah Bell, Thomas Grant, Francis McPherson and William Russell to the Panama Railroad Company, granting to the company-all the right, title, interest, claim, and demand, whatsoever, in and to all or any part of the land situated within the Canal Zone, which is shown on the Harrison-Arosemena map of 1862 as Lot 1. * * *” (Brief, p. 50.)

Defendant’s exhibit 24 does contain quitclaim deeds for land and improvements executed by those whose names are mentioned above. The Court, however, can not say from this record that they are the defendants in case No. 66, because they

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have not been identified as the same, and the quitclaim deeds give absolutely no description of the property which they were attempting to convey, except that it is included in Lot No. 1 as shown on the Harrison-Arosemena map of 1862. There is no proof to show that the land they were attempting to convey in the quitclaim deeds was the same land in controversy in case No. 66 as that now known as Tract 1 in the instant matter. It must also be remembered that there were over 16,000 acres in Lot No. 1, but only 518 acres involved in Tract No. 1.

There are also certain short-term leases to the Panama Railroad Company shown in defendant’s exhibit 23, and some of the grantees mentioned in the leases bear the same names as shown in defendant’s exhibit 24 above. These leases were executed after the quitclaim deeds. The leases in exhibit 23 give no description of the land except “a lot of land at Nombre de Dios.” An explanation of these quitclaim deeds and leases will be found in the Court’s memorandum, page 129.

This record discloses that, after the attempted adjudication of the lands on Toro Point in Lot No. 1 to the Railroad Company, the Company did nothing to take possession of the lands or to assert its ownership in the lands until forty-one years I'ater, when it filed an answer and cross-complaint and pleas in reconvention in the old case of Cerezo v. Diaz et al., Civil No. 118, afterwards District Court case No. 1, which was on May 19, 1910, although it must have known that the "plaintiffs’ predecessors in title were occupying and using the lands as their -own and undoubtedly knew of the instruments under which they were claiming. However, one can not go through this record carefully and escape the opinion that, from the time the litigation was instituted by plaintiffs’ predecessors in title to get rid of the trespassers, those who represented the Company were attempting to use the trespassers to muddy the waters and to complicate the title of the plaintiffs and to confuse the issues of the litigation then pending.

The statements are made in defendant’s brief that :

1. The Ünited States claims possession through prior grants to the Panama Railroad Company; and

2. If such grants were invalid, the United States is in possession through the exercise of the power of eminent domain.

The Court agrees that others have been in possession of the lands since the wrongful eviction of the plaintiffs by the Railroad Company, which was in February 1912,. but it certainly can not agree that the United States is in possession through the exercise of the power of eminent domain. No, such proceeding was ever instituted.

Defendant’s brief, page 58, contains the statement:

“* * * But the only authentic record as to what tract was called ‘Nombre de Dios’ is the Harrison-Arosemena map, and! an examination of that document shows-that a vast tract of land many times larger than Tracts, 2, 3, and 4, described in plaintiff’s complaint, was designated thereon as, ‘Nombre de Dios’ * * * and it has alleged that tracts 2, 3, and 4 comprise 2,759.3', acres. But, as stated above, the HarrisonArosemena map shows a vast area under the name of ‘Nombre de Dios,’ * * *”

We have examined the Harrison-Arosemena map very carefully, and we do not believe that it shows a “vast tract of land many times larger than tracts 2, 3, and 4.”' On the other hand, we think a fair interpretation of the map and of the designation on same as to the lands known as. Nombre de Dios would compare very closely with the area set forth in plaintiffs’ com-’ plaint, viz, 2,759.3 acres. There is a designation on the map that shows all the lands, on what might be called the Toro Point Peninsula as only 2,141 hectares, which, would be. approximately 5,288 acres, and, there is indication on the map of other-lands, including Playa de Flor and San, José and all of the land immediately adjacent to Toro Point.

In the litigation involving the lands in. controversy, the courts and counsel for the defendant and its predecessors in title have • stated many times that the lands in controversy are tierras baldías. The record:, shows, as do the dictionaries, that tierrasbaldías means “unoccupied, vacant lands.”'

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We have examined the Harrison-Arosemena map many times, and we find that there are rather large areas on it which are designated as tierras baldías. But we have also discovered that on that map neither the lands in controversy nor any of the lands in Toro Point Peninsula are designated as tierras baldías.

The engineer Patterson testified, and he has never been contradicted by any proof in this record, that the timber had been cut ■off these lands and that the lands showed present and past cultivation.

Counsel for plaintiffs in his brief, states that the value of the land taken was $422,-.574.50, or, in the alternative compromise basis agreed upon, $350,000.

We can not understand this statement, because there is no evidence in this record upon this point, and certainly the •Court could not take into consideration any offers of compromise or negotiations about a compromise as to the value of the lands.

It is also stated in plaintiffs’ brief that, in the case of Villalobos v. Foleston et al., Civil No. 66, the United States District Attorney filed an intervention petition styled ■“Revindication,” in effect, ejectment.

The statement is incorrect, because there was no United States District Attorney in the Canal Zone until 1912, and the attempted intervention was filed by a Prosecuting Attorney for the Isthmian Canal Commission; furthermore, the attempted intervention was not styled “Revindication.”

The further statement is made that the quitclaim deed made by the Panama Railroad Company to the United States of America apparently intended to relate only to the Villalobos lands and not to the De la Parra tracts. (There is no such deed in this record.)

We find nothing in this record to support that statement.

It is stated in plaintiffs’ reply brief that the old civil case No. 66 was merely in ejectment and that the Court therefore avoided any decree as to title.

The statement is incorrect. The purpose of the case was not only to eject the trespassers but to establish and quiet title of the plaintiffs, and the Court, in its judgment, granted the relief not only as to ejectment of trespassers but in establishing the title.

As we approach the decision of this case, we believe it will be helpful to state that we are of the opinion that, under the concession by the Granadian and Colombian Governments of 1850 and the subsequent adjudicating proceedings and the delivery of possession in 1869, the Panama Railroad Company obtained a fee simple title to all lands within the lots numbered 1, 3, and 5, as shown on the HarrisonArosemena map of 1862, which were not at that time subject to the claims of title and ownership arising under the Spanish laws or succeeding governments having sovereignty over the lands and that the title or rights so acquired by the Railroad Company removed the lands from any classification as public lands or government lands; furthermore, that after that time such lands or any part or portion thereof were subject to acquisition and ownership by other parties under the law of prescription in force and effect before, at the time, or thereafter. We might add that we find that this statement of the situation was conceded in plaintiffs’- brief filed in the old case of 1 and3 consolidated.

In deciding and disposing of this case, the Court will first consider Tract No. 1, as described in Plaintiffs’ complaint as amended.

Feliciano Villalobos, Sr., a predecessor in title of the plaintiffs, on December 4, 1855, instituted a proceeding before the judge of the district in which the lands were situated. This is shown by plaintiffs’ exhibit 33. (Memo, p. 126)

The initial document evidencing this proceeding shows that Villalobos stated under oath that he was “proceeding without malice and in accordance with what was necessary and right and to accredit the action and right in him to have adjudicated to him the public lands denominated Playa de Flor,” giving a description of same, viz, up to the Pescaderitos on the seashore and with a depth back up to the land known by the name of “Santa Rita,” and asked that certain named witnesses be summoned to appear to declare under oath whether it

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was true and positive that he had for many years possessed, by purchase from its former owners who had possessed and cultivated it from time immemorial, the land, and whether it was true that he in the same manner had continued to cultivate the land constantly.

The witnesses, four in number, appeared and qualified under the law of the land. All of them stated that the petitioner had owned and possessed the land for many years by purchase from its owners, who had previously possessed and cultivated it from time immemorial, and that Villalobos, the petitioner, had constantly cultivated it.

There is also inclhded in these documents a statement of a vendor of some lands, although not described, to the petitioner Villalobos, which contains the statement that the vendor had sold the land to Villalobos. t>n September 28, 1854. These documents were obtained from the National Archives of Colombia.

The evidence further shows that this denouncement was published in the official organ of Panama, the Gaceta de Panama, on March 15, 1856; further that, presumably because of the fire in Colon in 1885, the denouncement was republished in the official organ, the Gaceta de Panama, on September 14, 1898.

It is also shown (Defendant’s exhibit 2) that, on March 14, 1856, the Office of the Secretary of the Department of Government for the State of Panama, Republic of New Granada, reported to the Railroad Company, pursuant to the Company’s proposed adjudication of lands, some thirty-one claimants who had claimed lands in the area included in the Company’s denouncement. The seventeenth claim was that of Feliciano Villalobos, and it is stated that he had claimed the lands called “Playa de Flor,” which were “by the seafront of Playa de Flor in all its extensions up to Los Pescadoritos; and in depth, a straight line from one to the other extreme to the place known by the name of Santa Rita,” and that he had presented the testimony of four witnesses taken before the judge of the District of Colon in December, 1855. This report of the claimants of the lands was published in the Gaceta de Panama, No. 34, March 15, 1856.

Counsel for the defendant contends that the description given in the denouncement of Villalobos in 1855 is different from the denouncement given to the Panamanian authorities in claiming the land in the Company’s proposed denouncement.

There was no real difference in the description, because the descriptions named, identified and described the lands; however, when Feliciano Villalobos appeared before the Panamanian authorities considering the adjudication to the Railroad Company, he described the land with more particularity. Certainly the Railroad Company or its successor in title could not complain.

The next question that presents itself is: Were these documents color of title ? The proceeding Villalobos instituted recorded his title. (Memo, p. 126.) He followed the claiming of the land and the recording of title by having it published in an official publication. The claimant had to pay the costs and fees incidental to the proceeding, and there can be no question in the Court’s mind, from its knowledge of this record, but that this was a somewhat expensive proceeding. ' There can be no question but that Feliciano Villalobos believed in good faith that he had a title to the property.

A great deal has been said, not only in this but also in related cases, about the above being but the initial proceeding to have the land adjudicated. That may be true, but no law of Spain or of any succeeding government has ever been cited in any of these cases to show that there was any limitation upon the time within which a proceeding for adjudication had to be taken or concluded. There can be no question but that this was color of title. See 2 C.J. 168; 2 C.J.S., Adverse Possession, § 60 p. 580, and many other cases cited thereunder. No authorities have been cited to this Court to the contrary, and none could be.

The next question: Did Feliciano Villalobos and his successors in title claim the lands against the whole world? There can be no doubt but that they did. The record shows it without contradiction.

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Did they live on and occupy the lands? All the evidence shows that they did, and ■there is no evidence to the contrary.

Did they cultivate the lands? The evidence shows that they did, year in and year out, not part of it but all of it, and there is nothing to the contrary.

Was the possession of the property hostile? This record shows that it was, and there is no proof to the contrary.

Was the possession exclusive? The record shows it was, with the exception of itinerants and trespassers and squatters, and the owners were attempting in every lawful way to be rid of them.

Was their ownership and possession notorious? The record shows it was, both by oral and documentary proof, and there is nothing to the contrary.

Was their ownership and possession adverse? The history of this litigation shows that it was, to the whole world.

Did they economically exploit the lands? “Economically exploit,” it might be explained, under Spanish law does not have the odium and suspicion attached to it that it does in the United States, as it means “to develop and improve lands, to work or develop mines.” There is evidence beyond question that they grew large quantities of vegetables and fruits and sold them in the nearby markets year in and year out, and there is no proof to the contrary.

Was there any violence, concealment, or interruption? There certainly was not until 1912, when the plaintiffs were forcibly evicted, and the record so shows.

The Court is of the opinion, and so holds, that all of the collective facts necessary to prove adverse possession are shown in this record, viz, there was actual possession; it was open, notorious, and visible; it was selfish and exclusive; it was hostile, not only as against the Panama Railroad Company but against the world; and it was a definite possession, marked by the descriptions in the documents mentioned above, which were color of title; in addition to that, the natural boundaries were defined.

The Court is not unmindful of the insistent contention of counsel for defendant that Feliciano Villalobos, Jr., a grandson of Feliciano Villalobos, Sr., indicated to the surveyor where to make the survey; but this contention is not in accordance with the evidence. On the other hand, the witness stated plainly and unequivocally that the surveyor who made the survey got the starting points from the Gaceta de Panama. On cross-examination, several attempts were made to get him to say that he indicated where the survey had been made, and he again stated plainly that he read the description in the Gaceta de Panama to the surveyor and that the surveyor made the boundary lines. See transcript-/if evidence, old Civil case 66.

Beginning on page 34 of defendant’s brief, counsel for defendant undertakes to summarize the testimony offered in old case 66, but this Court is of the opinion that the summary does not fairly summarize the testimony, because it leaves out some very important facts which were proved beyond any question.

Counsel for defendant was certainly mistaken when he stated in his brief that the witnesses Antigua,. Lino, and Eufracia Villalobos could not identify the lands claimed; on the other hand, they did identify them and told of the natural objects and boundaries and identified the lands on the map. Further, the statement that it was utterly impossible to know what area of land Antigua Villalobos meant is certainly not accurate, because she gave a very comprehensive description. In fact, all the witnesses showed they knew all the lands and could describe them, and the witness Melendez identified the lands on both the Harrison-Arosemena and the Patterson map.

Antigua, Lino, and Fulgencio Villalobos (age sixty-one, forty-four, and forty-two respectively), all testified that they were children of Feliciano Villalobos, Sr.; that they were bprn on the land and had lived there since birth; and that, during their residence on the lands, the lands had been continuously under cultivation. All of them could describe the lands and did identify them on the map. All of them swore that the family had always claimed the lands, cultivated, occupied, and used them within their memory.

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Antigua Villalobos, sixty-one years old when she testified in 1908, stated that she had been born on the lands and that her parents and her brothers lived on the lands always; that they planted and harvested coconuts and other products, and took them to Colon to sell; that her father died in 1871 and left five children, but only three of them survived at the time she testified, and that all of them had been born on the lands; and that no one had questioned their title to or ownership of the lands. Her testimony clearly shows that she knew the natural objects that bounded the lands, and she indicated on the map the location of the lands. She stated she did not know how long her father had been on the lands prior to her birth. She further stated that her father had made a will, which was sent to Bogota, came back before his death but was burned in the Colon fire in 1885, that she saw it, and it was read in the office in Colon and that they had to pay one hundred dollars in connection with the will. She stated her father cultivated all of the land.

All of these witnesses testified that trespassers had come on their lands and told what efforts they had made to get them off of same.

Eufracia Villalobos was a daughter-in-law of Villalobos, Sr., and at the time she testified she had lived on. the lands for thirty-years and was forty-eight years old. She stated that all of her children had been born on the lands and her husband worked on the plantation. She had known Villalobos, Sr., and knew his children.

Feliciano Villalobos was twenty-nine years old and a grandson of Villalobos, Sr., and he testified that the whole family had lived on the lands for years and years and worked the lands; that he had assisted the engineer surveying the lands and that the point upon which the engineer started the survey had been taken from the Gaceta de Panama. He stated that lie knew the limits and boundaries of the lands, the locations of same, and identified same on the map. He described their trouble with trespassers and what steps had been taken to get rid of them and that the trespassers had been given written notice. He told of the crops grown on the lands and where same were marketed.

The witness Pedro Cerezo was sixty-eight years old when he testified. He stated that he had been bom in the village of Chagres; had lived at Playa de Flor for forty years; had known Villalobos, Sr., and knew that Villalobos had lived at Playa de Flor and that they had settled the country; that he knew all of the Villalobos children, because all had been born on the. lands in question.

The witness Jean Gris testified that he had lived in the city of Colon for twenty-nine years; that he knew the Villalobos family and had known them since 1879' and knew that they lived at Playa de Flor because he often went there to hunt and always went to the house; that he knew other people occupied lands adjoining the Villalobos lands; that he did not know the boundaries of the land, but he did know that the Villalobos family brought hundreds of coconuts and other produce to Colon to sell.

Governor Porfirio Melendez testified that he had been born in Panama, lived in Cristobal, was fifty-four years of age; had! known Villalobos Sr. and knew that he resided with his family at a town called Playa de Flor and had lived there all the time; had known Villalobos, Sr. since 1868, and before, and knew that he had a shanty on the beach but the farm was on the other side; that he had been on the property a hundred times, more or less, and indicated on the map that the house was between Playa de Flor and Los Pescadoritos. He referred to Santa Rita, was thoroughly familiar with the property which was described and had been there and that the Villalobos family was then living there. He stated that he did not know how much land was under cultivation but that there was a good deal of land being cultivated; that many other people had land in that vicinity, but none of them was cultivating the Villalobos lands. When asked by the Court if the cultivation began right on the seashore, whether it was all together or in patches-Melendez testified that the coconut trees were in the same place but that the Villalobos family would plant something here one year, the next year something else, put bananas in a particular location one year

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and the next year or so plant grass, and things were in different places.

There were two or three other witnesses who testified at that time, but their only testimony was as to the marketing of the crops and the notoriety of the ownership of the lands, which was proper testimony for this purpose.

There was no evidence contrary to any of the evidence as stated above, and the Court is not only of the opinion that it proved a prima facie case of adverse possession but a very strong case of continuous adverse possession, considering all the elements necessary to prove adverse possession. This would even be true if there were no color of title in this case, which there is.

Now when you consider that the plaintiffs’ predecessor in title, Feliciano Villalobos, had a paper title, one which he had given notice of possessing on many occasions and which stated that both-he and his vendor had occupied and cultivated the lands since time immemorial, and, according to the proof in this case, that he and his successors in title had lived on the lands and claimed them since 1847, a period of sixty-one years, could there be a stronger case of adverse possession? We think not.

The Panama Railroad Company, when it received its concession and grant of land in 1850, must have known of the occupancy of the Toro Point lands. Certainly in 1855 the Company had public notice of the claims of Villalobos, and in 1856 it received further notice. In any event, it certainly had notice from the time that it says the lands were finally adjudicated in 1869. But it never made a move, never undertook to possess itself of the land, never made any claim to the lands until 1910, and that is forty-one years from the time that it is said the lands were finally adjudicated to the Railroad Company.

There is another thing that is very significant in this case and which shows that the Railroad Company had notice: Long before 1910 the Railroad Company had leased to Hyatt and the Caribbean Coconut Company lands adjoining and north of the lands in controversy, and it also claims to have had a lease on the south of same, but it never undertook to lease the lands in suit before 1910. It is to be remembered that the Railroad Company had a line of railroad across the Isthmus and a terminal not over a mile and a half from these lands.

As heretofore stated in this opinion, the defendant United States interposed by amended answer a plea of res judicata as to the Feliciano Villalobos lands known in this action as Tract No. 1, a history of which will be found in the Court’s memorandum, page 49, et seq.

Perhaps it would have been better to have disposed of this plea of res judicata in the Court’s memorandum rather than to have prolonged the opinion. We believe, however, that, since the Attorney General has permitted this plea to be injected in this long-delayed case and assuming that the premises on which it is based are not known, this plea should be considered clearly in this opinion in order that any reviewing court and counsel might understand this Court’s action on same and the reasons for its action.

Before considering this plea, we will state the way and manner in which the pleas have been asserted:

The first pleading filed on behalf of plaintiffs in which an interest in Tract No. 1 is claimed was on February 16, 1922, in civil case Nos. 1 and 3, consolidated. The parties to the action at that time and until 1934 were the Playa de Flor Land and Improvement Company and the Panama Railroad Company. The United States was not a party and was vigorously opposing an attempt to make it a party; on the other hand, the Panama Railroad Company was just as vigorously urging that the United States was a necessary party.

The first mention we find of this plea is in the answer filed by the Railroad Company on February 16, 1928. This was the answer that they finally interposed after being in default for six years.

The Panama Railroad Company was not a party to the Villalobos case of 1908 (No. 66).

The plea was again urged on April 9, 1936, in civil case No. 772, and it was interposed for the third time in the present action filed in an amendment to the answer on November 9, 1943, just before the trial.

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All of the pleas have set out that the case was dismissed, but none of them pleads that the dismissal was on the merits.

The plea is based and bottomed on the following: February 13,1908, an action was instituted in the Circuit Court of the Third Judicial Circuit of the Canal Zone wherein Lino Villalobos and other heirs of Feliciano Villalobos were plaintiffs and Henry Foleston and others were defendants. The action was to eject the defendants, who were alleged to be trespassing on the lands, and to recover damages, also to quiet title to a tract of land consisting of 518.6 acres on the west shore of the Bay of Limón. The case remained on the docket for quite awhile and was finally set for trial. The day came, and the prosecuting attorney for the Canal Zone, an appointee of the Isthmian Canal Commission, who was also counsel for the Panama Railroad Company, filed the following motion:

“Comes now the United States of America, and moves the Court for leave to file a petition in intervention * * *”

The motion was evidently sustained, because three days later the prosecuting attorney filed a petition in intervention which stated in part:

“Comes now the United States of America, by its attorney G. M. Shontz, and prays to be allowed to file this its bill of intervention and become a party to said action for the purpose of protecting the title and rights of ownership of the United States of America to the land mentioned and set forth in plaintiffs’ complaint. * * *”

The intervenor’s petition alleged that the lands were public lands and that title was in the Government of Colombia, then in the Government of the Republic of Panama, and then in that of the United States of America by virtue of the Treaty of 1904.

The prayer of the petition was as follows :

“Wherefore, your intervener prays the Court that it be restored to the full possession of all the aforesaid premises, and that all proceedings by both the plaintiffs and the defendants be stayed.”

The petition was signed by G. M. Shontz, attorney for the United States of America, intervenor.

Plaintiffs answered the intervenor’s petition and denied each and every allegation of same.

The trial of the case was evidently continued until the 26th of August 1908, when the evidence of the plaintiffs was heard. At the close of plaintiffs’ case the defendants and the intervenor moved for a non-suit, which was denied. The defendants declined to, and did not, offer any evidence. Counsel for intervenor stated to the Court, however, that he had a witness who was not present and asked that the trial be adjourned until he could offer the witness.

September 10, 1908, the witness was presented to the Court and proved to be Dr. I. Galindo, who was another attorney for the Panama Railroad Company and also an advisor for the Isthmian Canal Commission. Briefs were filed by the plaintiffs and the intervenor; the defendants filed none.

May 6, 1909, the Court delivered a written opinion and findings of fact and conclusions of law which decided and disposed of every question involved in the litigation in favor of the plaintiffs. The intervenor only objected to the findings of fact and conclusions of law.

May 20, 1909, both intervenor and defendants filed motions for a new trial.

May 24, 1909, the decree was filed ejecting the trespassers and awarding damages against them and fixing and quieting the title of plaintiffs. There was no objection to this decree by either party and leave was given to the intervenor and defendants to withdraw their motions for a new trial, which was done.

On the same day oral motion for appeal was made in open court by both the defendants and the intervenor. Subsequently, the plaintiffs and appellees filed a motion to dismiss the appeal and affirm the judgment, and briefs were filed by the plaintiffs and the intervenor upon the motion. The motion was overruled.

The evidence offered on behalf of the plaintiffs showed plainly, unequivocally, and without any contradiction that the plaintiffs and their ancestor in title had claimed and had been in open, notorious, and peaceful possession, without conceal

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ment, violence, or interruption, of the lands involved in the action and now involved in the instant action as Tract No. 1, for a period of more than sixty years; and that they had been cultivating all the land through the years and marketing the products grown on same consisting of fruits and vegetables, in the market town of Colon.

July IS, 1909, counsel for the alleged intervenor moved that the record of the Court be changed with reference to his withdrawal of motion for a new trial, and for a ruling on the motion for a new trial. If any action was ever taken by the Court on this motion there is no record of it, but the brief of counsel for the alleged intervenor in the Supreme Court indicates that it was overruled.

November 10, 1910, the Supreme Court delivered an opinion and reversed the case and stated that the trial court’s decision was error for the reason that the evidence was “far from that clear, convincing, and conclusive character which the law contemplates.”

The concluding paragraph of the opinion is as follows:

“* * * It is, therefore, ordered, adjudged, and decreed that the decision of the trial court in overruling the motion made to dismiss the action at the close of the evidence offered by the complainants be and is reversed, and that the cause is hereby dismissed with judgment against the complainants for all the accumulated costs. * * *”

This is the opinion which the defendant contends is res judicata of the question of title as to Tract No. 1 in the instant action. That this contention can not be sustained seems obvious, as will be shown by the following.

The United States was not a party to the action, and it was not an adversary action as to the intervenor, and the United States would not have been bound by any judgment rendered, for the following reasons:

The Attorney General is charged with the conduct of legal proceedings on behalf of the United States, therefore no one except the Attorney General, or someone acting by his authority, can appear for the Government in any civil or criminal case or enter the appearance of the United States under any circumstances.

The alleged attorney for the United States in the intervention proceeding was a prosecuting attorney for the Canal Zone, an office created by the Isthmian Canal Commission, as follows :

“Sec. 39. The Commission shall appoint a prosecuting attorney for the Canal Zone, who shall be stationed at the seat of Government on the Canal Zone, and shall act as legal adviser for the Governor of the Canal Zone; he shall have charge of the interests of the Commission and the Government of the Canal Zone in all litigation in the courts of the Canal Zone or the Republic of Panama; he shall act as prosecuting attorney in all criminal cases in the courts of the Canal Zone; and shall perform such other services consistent with his employment as may be required of him by the Governor of the Canal Zone or by the Commission. He shall hold said office during the pleasure of the Governor of the Canal Zone. His salary shall be three thousand, six hundred ($3,600) per annum, payable monthly. During his term of office he shall be furnished a dwelling house or apartment, or in lieu thereof a sum of money equal to eight per cent (8 per cent) of his annual salary, at the option of the Commission.

“Sec. 40. The prosecuting attorney of the Canal Zone shall have authority, subject to the approval of the Governor of the Canal Zone, to appoint deputy prosecutors, not to exceed one for each judicial circuit of the Canal Zone. The salary of a deputy prosecutor shall not exceed twelve hundred dollars ($1200) per annum, payable monthly, and they shall hold their office during the pleasure of the Governor of the Canal Zone.” Laws of the Canal Zone, Act No. 1, p. 12.

The prosecuting attorney was not appointed by nor was he an employee of the Attorney General or the Department of Justice. That he was the attorney for the United States and had the right and authority to intervene for the United States was denied by the plaintiffs.

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The Court certainly should have taken knowledge of the laws of the United States and the decisions thereunder, and the enactment of the Isthmian Canal Commission, and therefore should have known that the prosecuting attorney had no authority to represent the United States, to enter its appearance, or to bind the United States in any way.

It is well established by the opinions of the courts that authority to appear in litigation and to subject the United States to the jurisdiction of a court must be clearly shown. See Carr v. United States, 98 U.S. 433 , 25 L.Ed. 209 ; United States v. Throckmorton, 98 U.S. 61 , 25 L.Ed. 93 ; Stanley v. Schwalby, 162 U.S. 255 , 16 S.Ct. 754 , 40 L.Ed. 960 ; Stanley v. Schwalby, 147 U.S. 508 , 13 S.Ct. 418 , 37 L.Ed. 259 ; Hussy v. United States, 222 U.S. 88 , 32 S.Ct. 33 , 56 L.Ed. 106 ; Sutherland v. International Insurance Company of New York, 2 Cir., 43 F.2d 969 ; Booth et al. v. Fletcher, 69 App. D.C. 351 , 101 F.2d 676 ; Calhoun County, Fla., v. Roberts, 5 Cir., 137 F.2d 130 ; United States v. Lee, 106 U.S. 196 , 1 S.Ct. 240 , 27 L.Ed. 171 .

The above cited cases show beyond any question that the United States could not have been a party by that attempted interventon nor could it be bound by it.

The record shows that, after this attorney had walked into court and stopped the trial of the case and attempted to intervene and to enter the appearance of the United States and alleged in his pleading that the Panama Railroad Company never did own the lands and then produced another attorney for the railroad as his expert witness on Spanish, Colombian, and Panamanian law to prove the Railroad Company had never owned the lands because they had never been adjudicated to it, the seriousness of the situation he had created must have been called to his attention, because such an action would seriously jeopardize the interests of the Railroad Company and the Government of the United States (the owner of the railroad) in the lands, not only in the Canal Zone but also in the Republic of Panama, received under the grant and adjudicated to it. Therefore, when the case was pending in the Supreme Court, we find the attorney disclaiming in his brief any idea of entering the appearance of the United States, as follows:

“* * * The intervener was not coming into court asking that plaintiffs and defendants, or any of them be ejected, but it did ask that ail proceedings concerning its property be dismissed, which is all it should have done; in other words, it was an intervention by way of suggestion of interest in the Government of the United States, a Government which cannot be sued without its express consent, which consent can only be given by the Congress of the United States. No action can be brought against that Government or its property without such consent * * *.

“*

*

* The suggestion of this interest in the government was not made by the attorney for the intervener because of any idea of his that any act of his would, in any manner, be binding upon the United States, but purely for the purpose of informing the court as to the true state of affairs and to offer to the court all the information he could in regard to the same.

“* * * It must be plain, from the decisions above cited, that

no one acting for the government could bind it without the proper authorisation by Congress, which as to property rights and interests of the United States Government in the Canal Zone

has never, as yet, been granted. This is, of course, as true in this court as it was in the lower court and the remarks and citations here made are, likewise, made entirely for the purpose of submitting to this court a few of the many decisions and authorities bearing on this question.

“Should Congress adopt a method of disposing of the public lands in the Canal Zone, or grant permission for the government to sue or be sued respecting the same, we are aware of nothing which has been done that could be pleaded as an estoppel, to any action directed to be instituted, or permitted to be instituted against the government. * * *” (Italics supplied.)

There is no identity of parties. The United States was not a party in the Circuit Court nor in the Supreme Court of the Canal Zone in the case of Villalobos

*321

et al. v. Foleston et al., Civil No.

66,

and, of course, in order to sustain the plea of res judicata, the judgment must have been rendered in an action between the same parties, or between those in privity with them, and the defendants in that action were certainly not in privity with the United States.

The Supreme Court of the Canal Zone had no jurisdiction of the subject matter and therefore no right to enter a judgment or to order a judgment in the premises.

We will not set forth the law as to the jurisdiction and the procedure of the Supreme Court.

The Supreme Court was created and its jurisdiction defined in Act No. 1 of the Isthmian Canal Commission, and there appears in Laws of the Canal Zone, page 4, the following:

“Sec. 8. (Jurisdiction of the Supreme Court.) — The jurisdiction of the Supreme Court shall be of two kinds:

“1. Original; and,

“2. Appellate.

“Sec. 9. (Its Original Jurisdiction.)— The Supreme Court shall have original jurisdiction to issue writs of Mandamus, Certiorari, Prohibition, Habeas Corpus, Quo Warranto, in cases warranted by the principles and usages of law, and to hear and determine controversies thus brought before it, and in other cases provided by law. Said writs may be granted by any justice of the Supreme Court in all cases where they might be granted by the Supreme Court.

“Sec. 10. (Its Appellate Jurisdiction.)— The Supreme Court shall have appellate jurisdiction of all actions and special proceedings properly brought to it from the Circuit Courts and from all other tribunals from whose judgment the law shall specially provide an appeal to the Supreme Court.”

The Code of Civil Procedure of 1907 provided for procedure in the Supreme Court, as follows:

"Sec. 533. General procedure in the Supreme Court. — The Supreme Court may, in the exercise of its appellate jurisdiction, affirm, reverse, or modify any final judgment, order, or decree of a Circuit Court, regularly entered in the Supreme Court by bill of exceptions, appeals, or writ of error, and may direct the proper judgment, order, or decree to be entered, or direct a new trial, or further proceedings to be had, and if a new trial shall be granted, the court shall pass upon and determine all the questions of law involved in the case presented by such bill of exceptions and necessary for the final determination of the action.

“Sec. 534. Hearings confined to matters of law, with certain exceptions. — In hearings upon appeals, in civil actions and special proceedings, the Supreme Court shall not review the evidence taken in the court below, nor re-try the questions of fact, except as in this section hereinafter provided; * * *.

«1. * * *

“2. If the excepting party file a motion in the Circuit Court for a new trial, upon the ground that the findings of facts are plainly and manifestly against the weight of evidence, and the judge overrule said motion, and due exception be taken to his order overruling the same, the Supreme Court may review the evidence and make such finding upon the facts, and render final judgment, as justice and equity require. But, if the Supreme Court shall be of the opinion that this exception is frivolous and not made in good faith, it may impose double or treble additional costs upon the excepting party and may order them to be paid by the counsel prosecuting the bill of exceptions, if in its opinion justice so requires.”

Now, it will be remembered that the record shows that the intervenor and the defendants filed a motion for a new trial, and in the motion it was stated that the findings of the Court were contrary to the evidence in many particulars and various questions were raised as to the evidence and the effect of the evidence and the admissibility of the evidence,

but they withdrew their motions.

The exceptions to the findings of the court, which were the basis of the appeal, followed the motion and reasons for a new trial in almost every particular.

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The defendants did not file a bill of exceptions but adopted the intervenor’s bill.

It will be observed from the statutes quoted above that the Supreme Court had original jurisdiction and appellate jurisdiction, but the action did not come within the purview of its original jurisdiction. It was, however, a case in which the Supreme Court had appellate jurisdiction, but it could not exercise that jurisdiction and had no right to review the evidence taken in the court below nor to re-try the questions of fact unless the excepting party had filed a motion in the Circuit Court for a new trial upon the ground that the findings of fact were plainly and manifestly against the weight of the evidence and the judge of the Circuit Court had overruled the motion. As there was no motion and reasons for a new trial, which, of course, prevented the judge of the Circuit Court from having an opportunity to pass or rule on same, the Supreme Court therefore had no jurisdiction to review the evidence in the case.

It has long been settled in jurisdictions having statutes similar to those of the Canal Zone that errors occurring during the trial of a case can not be considered by an appellate court unless a motion for a new trial, founded upon and including such errors, has been made by the party complaining, presented to the trial court, and by it denied. In other words, the trial court has a right to pass on the question before appeal. See 4 C.J.S., Appeal and Error, §§ 352, 353, pp. 770, 775, and cases noted thereunder from many jurisdictions.

After this attempted appeal and while the case was pending in this Supreme Court of the Canal Zone, the plaintiff appellees filed a motion to dismiss the appeal upon the grounds stated above, and filed a brief supporting said motion. In the brief the Court’s attention was called to the statute involved and that same was taken verbatim from the code in force in the Philippine Islands. Opinion after opinion of the Supreme Court of the Philippine Islands construes this statute and holds that the motion for a new trial is necessary to give the appellate court jurisdiction. There are many of these cases, and they cover every situation and every possible contention that could be made.

The brief also contained a construction of the courts of last resox-t in many jurisdictions, also of the United States Supreme Court cases reviewing state court opinions.

The attorney for the alleged intervenor filed a response and reply to plaintiff appellees’ motion and a brief in support of same. We have examined it with a good deal of interest and curiosity.

Not a single authority nor a sensible contention was made as to why plaintiffs’ motion should not be sustained; on the other hand, the response shows that counsel-for the intervenor propounded the following questions and made the following statements :

“* * * What did the intervenor want with a new trial? It had taken no part in the plaintiffs’ trial in the first place, why then should it have asked for another trial * * * A motion for a new trial may be made upon newly discovered evidence or when one party to the suit believes the findings are against the weight of the evidence. This the intervenor did believe, and still does, but a new trial could in no manner have changed it when the' intervenor never had any interest in what the -plaintiffs attempted to establish as facts. * * * Another trial might only have added to the confusion, conflictions and erroneous findings and conclusions which had already crept into the case.

“* * * The intervenor had no desire for another trial in this case, and the code under which we are now practicing does not require one to be asked for, if the appealing party does not rely on the facts fax set aside the judgment appealed from. * * ”

The Court considers the above quoted response only the flamboyant assertions of counsel trying to bluff his way through, which he did.

Regretable as it may be, however, after counsel for the plaintiffs had called the Supreme Court’s attention to the law so specifically and comprehensively, the court absolutely ignored it and gave no reason or excuse for so doing; on the other hand, it was as dumb as the proverbial oyster.

A short time after this the personnel of the Supreme Court was changed, and, in the case of Camors and Company v. Gris,

*323

decided February 26, 1913, 2 Canal Zone 176, we discover that the court decided plainly and emphatically that that court would not review evidence taken upon trial in any case nor re-try questions of fact if the appellant had not filed in the court below a motion for a new trial on the ground that the findings of fact were plainly and manifestly against the weight of the evidence.

The Court could very well rest its rejection of this plea upon what has been stated above, but we will go further.

There was. never any judgment entered pursuant to the Supreme Court’s directions.

The Code of Civil Procedure of 1907, in force and effect during the time of the pendency of this case, provided as follows:

“Sec. 543. Certificate of judgment to be remitted to the Circuit Court. — In all cases heard by the Supreme Court on bills of exception, its judgments shall be remitted to the Circuit Courts from which the actions respectively came into the Supreme Court; and for this purpose it shall be the duty of the clerk of the Supreme Court, within ten days after the close of any term, to remit to the clerks of the Circuit Courts, notices of all judgments of the Supreme Court in actions brought from the Circuit Court respectively. Upon receiving the notice so remitted, the clerk of the Circuit Court shall enter the same upon his docket and file the notice with the other papers in the action.

“The judgment so remitted shall be executed by the Circuit Court in the same manner as though the action had not been carried to the Supreme Court. But the Supreme Court may, by special order, direct any particular judgment to be remitted to the proper Circuit Court at any time, without waiting for the end of the term.”

The Court has carefully examined the minutes and the docket entries and can find nothing to indicate that any judgment was ever entered by the Circuit Court pursuant to the opinion. Nothing was ever done in the Circuit Court, except that a copy of the opinion was filed. Presumably the case lingered on the docket without any order whatever until April 11, 1912, when only the cryptic word “settled” appears. This was a short time after the Panama Railroad Company had filed a suit in the Circuit Court, No. 423, afterwards designated as District Court case No. 3.

Therefore, there was no judgment but only an opinion, and the opinion of a court will not support a plea of res judicata; the case must go to a judgment or decree. See Ashton v. Heydenfeldt, 124 Cal. 14 , 56 P. 624 ; Raun v. Reynolds, 18 Cal. 275, 290 ; Cowdery v. London

&

San Francisco Bank, 139 Cal. 298 , 73 P. 196 , 96 Am.St.Rep. 115 ; Department of Water & Power of Los Angeles v. Inyo Chemical Co., Cal.App., 100 P.2d 822 .

A judgment of reversal is never res judicata unless the appeal court expresses the intention finally to decide the case on its merits, and certainly there was no decision on the merits of this case by the appellate court. See 33 C.J. 774, 889; 48 C.J.S., Intoxicating Liquors, § 371, p. 547; Joint Stock Companies, § 21, p. 890, and many cases cited thereunder.

A judgment to be res judicata must be on the merits of the case. Judgments of dismissal or non-suit are not sufficient to sustain the plea, because they do not constitute any final conclusion of the merits of the litigation. This is necessarily true, for were the rules otherwise a party might be precluded by some technical, trivial defect. See Dickson v. Taylor, 129 Okl. 191 , 263 P. 1102 ; Armstrong v. County of Manatee, 49 Fla. 273 , 37 So. 938 ; Robb v. New York & Cleveland Gas Coal Co., 216 Pa. 418 , 65 A. 938 ; Phillips v. Phillips, 119 N.J.Eq. 497, 183 A. 222 ; Schnerb v. Caterpillar Tractor Co., 2 Cir., 24 F.2d 377 ; Lehigh Valley Railroad Co. v. Quereau, 2 Cir., 289 F. 767 ; Ploxin v. Brooklyn Heights R. Co., 2 Cir., 261 F. 854 ; Homer v. Brown, 57 U.S. 354 , 16 How. 354 , 14 L. Ed. 970 ; Gardner v. Michigan Central Railroad, 150 U.S. 349 , 14 S.Ct. 140 , 37 L.Ed. 1107 .

As a further reason why the decision is not res judicata, an examination of it shows that the issue of title was not decided by the Supreme Court. See Villalobos v. Foleston, 2 Canal Zone 34. On page 37 is found, “The evidence offered by plain

*324

tiffs in support of title was far from that clear, convincing, and conclusive character which the law contemplates.” On page 40 is found:

“*

* * Many and diverse questions were raised and presented at length in the elaborate and well-prepared briefs of counsel. Argument was offered by litigants, including the intervener, the United States Government, as to claim and interest of each in the premises; likewise the question of acquiring title by prescription as against the government; also the action of complainants in seeking double relief as prayed for in their complaint; as well as many other legal propositions; but as it is apparent, the conclusions heretofore reached (and quoted above) from the evidence offered, must decide the case,

it is tmnecessary to consider other

matters." (Italics supplied.)

The court then concluded:

“* * * It is, therefore, ordered,' adjudged, and decreed that the decision of the trial court in overruling the motion made to dismiss the action at the close of the evidence offered ‘by the complainants be and is reversed, and the cause is hereby dismissed with judgment against the complainants for all the accumulated costs. * * sfc»

Thus it is seen from the decision itself that it is not res judicata. From the language used it could not be a final decision, on the merits, of the issue of title.

As stated above, it is shown in counsel for the intervenor’s pleadings, also in his proof and his brief, that his boldly-asserted contention was that the Panama Railroad Company never did have any right, title, or interest in and to the lands in controversy, nor to any other lands, granted to it by the Colombian and Granadian Governments, because the Railroad Company had never accepted the lands and had never had the lands adjudicated to it.

The Court does not think it necessary to prolong this opinion by quoting at length from the brief filed by counsel for the alleged intervenor, because there can be no question about his contentions. However, the following excerpt from the brief is indicative of his contention:

“ * * * Subsequent to the time the Colombian Government offered to deliver possession of these lands to the Panama Railroad Company, this same Government gave the French Canal Company a similar concession to the one it had on a former occasion given to the said Railroad Company. Thus, that Government recognized that although it had offered to fulfill its contract with the Panama Railroad Company made in 18S0, the Panama Railroad Company had in no manner accepted. the offer and gained any title or rights to the land, and that it, the Colombian Government, was as free to grant to the Canal Company the concession it did grant as though it had never made any offer of delivery to the Railroad Company, for the Railroad Company had gained no rights by such offer.

* ' *

* ”

A careful examination of the record of these related cases, and all other cases in the Canal Zone, shows beyond question that never again in any court was the above contention made. On the other hand, the Railroad Company has filed pleading after pleading in many cases in which it affirmatively stated and set forth the claim that it was the owner of the lands by virtue of the concession and subsequent adjudication to it. After this there never was any attempt upon the part of counsel for the Isthmian Canal Commission and the Panama Railroad Company to intervene for the United States. Afterwards they appeared for the Isthmian Canal Commission and the Panama, Railroad.

We have carefully considered this case and the record therein, and all other cases in which the Railroad Company has asserted right, title, and ownership to the lands in the Canal Zone since then, and we are compelled to say that, in our judgment and opinion, the conduct and contentions of the attorney for the alleged intervenor and of the witness he offered were motivated by their belief that the plea of prescription asserted by the plaintiffs under color of title would be good as against any claim of ownership or title by the Railroad Company and their erroneous assumption that the lands could not be acquired by prescription against the Government. It is our delib

*325

erate opinion that this is obvious and is the whole sum and substance of the matter.

The Court might explain that, while this record does not show that the attorney for the intervenor and the witness, Dr. Galindo, were both counsel for the Railroad Company, the published reports of the Supreme Court of the Canal Zone show that they were. See Andrade v. Panama R. Co. et al., 1 Canal Zone 76, and the dockets of the Circuit Court show the same.

The Court has previously stated in its memorandum the difficulty encountered in investigating the records in the related cases, and has used the word “weird” as describing the proceedings in some instances.. The description is also very applicable in the proceeding upon which the plea of res judicata is based.

The original defendants in the case, after demurring to the petition, filed their answer more than two months after the case was filed, and in all the answers, although they claimed ownership in parcels of land, they denied specifically that the land they claimed was embraced in the description of the plaintiffs’ property. Upon the day of the trial, this allegation was withdrawn by interlineation — by striking out two words and adding one. There is a docket entry and minute showing that this was done; however, the trial court, whose opinion, findings of fact and conclusions of law show that the court had very carefully considered the case evidently did not know this, because, in the opinion, the Court made the following statement:

“ * * * The evidence shows, and the findings of the court are, that the occupation and possession of the plaintiffs have been uninterrupted since 1846 except as the defendants, Foleston et al, may have trespassed on the said land.

“They, by their answers, however, eliminate themselves from the controversy in that they deny being in possession of any of the land described in the complaint. *

x »

Furthermore, this discrepancy in the pleading as amended by the interlineation and the striking' and the statement in the Court’s opinion was never called to the Court’s attention by the motion for a new trial, which was withdrawn, the bill of exceptions, nor in any other manner.

In any event, we believe the opinion of the Supreme Court was erroneous for many reasons, and the opinion was not supported by the evidence or the law nor by right or justice.

The whole proceeding upon which the plea of res judicata is based shows that it was not in accordance with any acceptable practice and procedure. It had no law to support it, and it was, we believe, but a trick, device, and subterfuge; and we do not propose to put our seal of approval upon this doubtful and questionable practice.

In this connection, it is well to quote what Joseph White said to Henry Clay, Secretary of State, in his letter of February 4, 1829, as to the preparation of the compilation of the laws of Spain and the Indies:

“ * * * While the public domain was to be protected on the one hand, the public faith was to be preserved on the other. jji :js >;«

See Statement of Court, p. 4.

In considering this plea of res judicata, we frankly say that we have not examined the authorities cited by counsel for defendant, because we do not think they could apply to the situation involved. Furthermore, we do not believe that, if counsel for defendant had been thoroughly familiar with the proceeding, the record, and all of its implications, upon which his plea was based, he would have raised this question.

We will now consider plaintiffs’ claim as to Tracts 2, 3, and 4, which are referred to in this record and in this brief as the “De la Parra lands known as ‘Nombre de Dios’.”

The record shows that Pedro Cerezo filed an action in the Third Circuit Court on June 24, 1909 (Memo, p. 53), Civil case 118, afterwards District Court case No. 1. His action was to quiet title to certain described real estate and to eject certain named alleged trespassers. The lands described were what are known in this record as Tract No. 2.

In that action the Isthmian Canal Commission and the Panama Railroad Company undertook to enter their special appearance,

*326

although they were not originally parties to the proceeding. Subsequently, however,

the

Railroad Company was summoned.

Evidently some proof was taken in December, 1909, but the case, being set, came on regularly for trial January 29, 1910. There was default against the Panama Railroad Company, the evidence was heard for the plaintiff, but the defendants offered no testimony.

The proof showed conclusively that the plaintiff had been in possession of the land for more than forty years, claiming it as his own, living on it, occupying it, and cultivating it. He described the lands, the natural objects that marked their boundaries, and the boundaries, and identified the lands on the Patterson map. He stated that he had bought the lands from De la Parra and received a' deed for them — a public document — and that the deed was registered in Colon about the year 1860 and that the record of the deed was destroyed in the Colon fire of 1885. The evidence further showed that the plaintiff had planted coconut and fruit trees, had cleared the lands, and, further, that the plaintiff had owned other lands around Toro Point and had planted and cultivated them büt had sold them. The evidence further showed that, from 1867 until 1909, no one had disputed the plaintiff’s possession and ownership of the lands, but that in 1909 an official of the Railroad Company had come to him and endeavored to collect rent and had wanted the plaintiff to sign a document and that the plaintiff had refused either to pay the rent or to sign the document. The evidence also showed that the Panama Railroad Company had never made any claim to the lands until that time. The evidence also showed that there were trespassers on the land, and the efforts to the plaintiff to dispossess them were described.

To summarize' the testimony, it showed beyond any controversy that the plaintiff had been in possession of and had used, occupied, cultivated, and claimed the lands for more than forty years under a deed, the record of which had been destroyed in the fire in Colon, and that his possession had been open, notorious, peaceful, and exclusive, without violence, concealment, or interruption, except for trespassers who were sued in the action and who never offered '&ny testimony to support the answers they had filed.

On page 77 of defendant’s brief, counsel undertakes to summarize the testimony offered by the plaintiff Cerezo in the cases 1 and 3, consolidated, and the statement is made that Cerezo was unable to describe his lands. Counsel is certainly mistaken, because Cerezo did describe his lands and his boundaries specifically and accurately.

The evidence showed that Cerezo had a deed to the property, which deed was destroyed in the fire in Colon of 1885, and his evidence in this respect was supported by other witnesses.

Defendant, in its brief, says that the plaintiffs’ proof was utterly insufficient to show what the boundaries were claimed under color of title and that he failed to prove cultivation.

The Court is of the opinion that the evi- . dence showed without any contradiction the boundaries of the land and also intensive and active cultivation of 231 acres of land. While we believe that Cerezo had color of title, his proof shows that he had.been in possession of the land, claiming it as his own, living on it, and cultivating it to well-marked boundaries for a period of forty-two years.

There was no decision, but the proceeding was continued.

February 17, 1910, the Railroad Company, by counsel, moved to have the default set aside, which was done.

The demurrer of the Railroad Company to the petition was overruled, and, on May 19, 1910, the Railroad Company filed an “answer and cross-complaint or plea in re-convention.” In this pleading it claimed to be the one entitled to possession of the lands by reason of the grants and concessions made to it by the Granadian and Colombian Governments and subsequent proceedings thereunder. The pleading prayed for affirmative relief, viz., quieting of the title and the recovery of possession and damages against those withholding the lands.

Subsequent pleadings were filed, not necessary to mention, and on. September 13, 1910, the Compañía Agraria de Panama filed its motion to be made a party.

*327

September 29, 1910, the original defendants in the case filed an amended verified answer in which they stated they had signed leases with the Panama Railroad Company but that said leases had been secured by fraud, force, intimidation, and duress.

October 4, 1910, the Compañía Agraria de Panama filed its answer, in which it set forth that its predecessor in title, De la Parra, became the owner of the lands in 1856, and that it had acquired title from him and his successors in 1908.

After pleading for other parties, on May 4, 1911, the Compañía de Panama filed an amended answer in more detail and containing exhibits upon which it relied. (Memo, p. 55 et seq.)

The record herein does not disclose that any steps, except orders of continuance, were taken in the case for a considerable length of time, but, on March 21, 1912, the Panama Railroad Company, filed an action against Eufracia Villalobos and Porfirio Melendez, Civil No. 423, Third Circuit Court. The pleading was styled “A petition for revindication,” and alleged that the Railroad Company was the owner of a tract of land 1700 meters wide on the west shore of Limón Bay, extending from the Pilibio River to the Nombre de Dios River. (It might be mentioned in this connection that this description is rather meager.) The Company claimed the lands by virtue of the grants made by the Granadian and the Colombian Governments and subsequent adjudication.

The Villalobos defendants demurred to the petition and then answered.

The defendant Melendez filed a pleading disclaiming any interest in the land, which ended his connection with the case.

The evidence in the instant case shows that, about this time, the plaintiffs, who had acquired some interest in Tracts 1 and 2, and the representatives of the Railroad Company had negotiations about a settlement of the whole matter. It is to be noted that the titles asserted by Cerezo (Tract 2), and the widow of Jose Villalobos and their children (Tract 3), were all contained and included in documents and deeds of record of Ricardo de la Parra to the lands known as “Nombre de Dios/’ and described in this complaint as Tracts 2, 3, and 4. Pursuant to these negotiations, and at the suggestion of the Railroad Company, the plaintiffs entered into an arrangement and obligated themselves and did acquire the title to the De la Parra lands from the Compañía Agraria de Panama, and they also acquired the title to the Jose Villalobos lands (Tracts 2 and 3). The actual deeds of conveyance of the lands were not executed until later.

There can be no question but that the negotiations between the Panama Railroad Company and the plaintiffs proceeded to a final agreement and settlement as follows: The plaintiffs were to have and to hold all right, title, and interest in seventy-nine acres of land, which was described in part as extending for four thousand feet on the seashore and in depth eight hundred feet, and the Railroad Company was to have all the plaintiffs’ right in which are now known as Tracts 1, 2, 3, and 4, and that conveyance, one to the other, would be made accordingly.

That this arrangement proceeded to a final conclusion about November 1912, can not be doubted, because the negotiations were entered into by the chief law officer of the Railroad Company, who seems to have been directing its affairs; was fully approved by the president of the Railroad Company, Colonel Goethals; and a survey of the lands was ordered. See plaintiffs’ exhibit 29, defendant’s exhibit 24. However, on August 24, 1912, 37 Stat. 561 , 48 U.S.C.A. § 1304 , Congress had provided by law (Memo, p. 70) :

“Sec. 3. That the President is authorized to declare by Executive order that all land and land under water within the limits of the Canal Zone is necessary for the construction, maintenance, operation, sanitation, or protections of the Panama Canal, and to extinguish, by agreement when advisable, all claims and titles of adverse claimants and occupants. * * * ”

It seems, therefore, that the chief law officer of the Isthmian Canal Commission and the Panama Railroad Company, and the president of the Railroad Company and chairman of the Isthmian Canal Commission did not anticipate that the President would issue any Executive Order, as pro

*328

vided for by the Act of Congress; however, on December 5, 1912, the President did issue his Executive Order, by virtue of the authority vested in him by Congress, and ordered that all lands within the Canal Zone were necessary for the purposes quoted above, and further ordered the Isthmian Canal Commission to take possession of all lands in the Canal Zone on behalf of the United States and to extinguish, by agreement when advisable, all claims and titles of adverse claimants. As a result, on December

7,

1912, the head of the Law Department of the Panama Railroad Company wrote to the plaintiffs (See plaintiffs’ exhibit 24), and stated that the settlement could not be effected.

This record shows, however, that there was an attempt upon the part of the parties involved to settle the matter by compromise after this, but nothing came of these offers and counter-offers of compromise.

Pending and in view of the matters mentioned above, however, the plaintiffs had acquired all right, title, and interest in all conflicfing parties to all the lands, which consisted of the lands known as those of Feliciano Villalobos, Pedro Cerezo, Jose Villalobos, and De la Parra, namely, Tracts 1, 2, 3, and 4.

A Joint Land Commission having been appointed by the respective governments in 1913 (Memo, p. 83), plaintiffs filed their claims before the Commission.

The plaintiffs subsequently withdrew their claims, because the Joint Commission adopted a rule arbitrarily fixing compensation of all lands on their value in 1903, the date of the Treaty, and also because a question of title was involved.'

In view of the foregoing situation, as shown by the record, there can certainly be no question but that the plaintiffs and their predecessors in title were in good faith and had color of title. We therefore conclude that, as to Tract No. 2, known as the “Pedro Cerezo lands,” the proof shows without contradiction not only a prima facie case but a good title by adverse possession.

The remaining inquiry is as to the Jose Villalobos lands and as to what are known as the “De la Parra lands.” It is, of course, to be remembered in this connection that the De la Parra lands, and the documents under which they were claimed, included Tracts 2, 3, and 4. (Memo, p. 34 — A.)

The record, of course, shows that all the cases involving all the lands in controversy, viz., Nos. 1 and 3, were consolidated in 1921; that in 1922 the plaintiffs filed appropriate pleadings in the consolidated case, setting forth that they were the owners and claiming all the lands in controversy, in the instant action, namely, Tracts 1, 2, 3, and

4;

and that, six years afterwards, the Railroad Company filed an answer and there was a trial, beginning in February, 1928, or, at least, a hearing of the evidence. (Memo, p. 41.) Upon this trial the plaintiffs offered their evidence, including the title papers to what are known as the “De la Parra lands,” also evidence as to why the plaintiffs acquired said lands.

At that time the plaintiffs had acquired all right, title, and interest to the Jose Villalobos lands (Tract 3), and had also acquired, long before, all right, title, and interest to the De la Parra lands (Tracts 2, 3, and 4). Only two witnesses were introduced as to the occupation and possession of the Jose Villalobos lands. Eighteen years had passed since the action had been instituted, and presumably the witnesses had either died or the plaintiffs were relying upon their title to the De la Parra lands, which included the Jose Villalobos lands, (Tract 3), and which they had acquired at the instance of the Panama Railroad Company.

We will now consider the ownership of the De la Parra lands. The evidence consists largely of documents, and we will now proceed to examine the proof.

Ricardo de la Parra seems to have been a man of some importance in New Granada, Colombia, and Panama and was evidently a soldier.

In defendant’s, exhibit 13, “Public Land Laws of Colombia, 1821-1905,” a decree of June 18, 1851' concedes to Ricardo de la Parra and Benjamin Blagge an exclusive privilege to open a canal by way of the Atrato and San Juan Rivers and a concession of lands which might be necessary for a canal or railroad, or both. ■ This decree

*329

recites a concession of a minimum of fifty thousand fanegadas of land and provides that the company could dispose of the lands in any way it desired, except it could not sell the lands to'a foreign government.

Upon the trial of this case, plaintiffs’ exhibit 14, which is a copy of a deed dated November 16, 1852 from Messrs. Antonio Maria Pradillo and Ricardo de la Parra to Dr. Manuel Laverde, could not be found, but, as it had been placed on record in the Registrar’s Office of the Canal Zone, the record was introduced.

The original exhibit has since been discovered and will be made a part of this record and designated “Exhibit G.” This instrument recites that the vendors sold and conveyed the lands described as follows:

One half of the island called “El Muerto,” situated in the province of Chiriqui of the Isthmus of Panama, which island had been acquired by the vendors by adjudication of the Republic made to them.

The fifth part of twelve thousand fanegadas of uncultivated land purchased from Dr. M. M. Saldría and which they had a right to claim in the most favorable places in the province of Panama or of the entire Isthmus.

The fifth part of seven thousand fanegadas of land, at least, on the Atlantic coast of the Isthmus of Panama, situated between the Bay of Limón, Aspinwall of Colon, and Almirante Bay, which lands constituted five farms or landed properties each of which was susceptible of being converted into a hacienda (large estate).

Included in the seven thousand fanegadas last mentioned above was the land called “Nombre de Dios,” which was described in the exhibit as follows:

“ * * * The first of said tracts called ‘Nombre de Dios’, in which there have already been made some agricultural works, is found on the very Bay of Limón itself at a distance, more or less, of one mile from the City of Aspinwall or Colon. * * * ”

It is further stated in the document:

“ * * * These five tracts form pasture lands appropriate for the raising of cattle, and Nombre de Dios is a good place to fatten them and feed them. These five have been acquired by legitimate titles transferring dominion and ownership. * * * ”

The deed is quite a lengthy document and recites the consideration for the lands and various conditions and limitations. It also describes the adaptability of the lands for certain purposes, and refers to other instruments and also to rights acquired into the lands by De la Parra by denouncement during the administration of a General Mosquera.

This was a general warranty conveyance. It was executed in Spanish, but an English translation is attached. It is on stamped paper, and a certificate shows that a notary and other officers were paid fees and that it was inscribed in the 27th Book of Registry on page 246 under No. 2626 at Bogota on November 20, 1352. It is also recited that the document is a second copy and in conformity with the original.

The next document for consideration is Public Document 204, now exhibit “A.” The Court has already described this document in its memorandum (Memo, p. 129 et seq.), and it suffices to say that it shows conclusively that there was a public deed of record executed before the notary public of Colon on the 12th of January, 1856, which deed showed that Ricardo de la Parra had purchased in 1852 from Manuel Jose Furnier, Lino Mayalle, and Francisco Miranda, residents of Chagres, the land described as follows:

“ * * * the lands known as ‘Nombre de Dios’, on the north of the Bay of Limón, the boundaries of which are comprised from ‘Los Pescadoritos’, to the ‘Morro de Limón’, in front of this city; and in depth from this place up to the ‘Quebrada Honda’, three miles in a southerly direction, the same that they acquired by virtue of law, having cultivated them for more than ten years, but as in the date above set forth, there was no notary in Chagres, or public registrar or stamped paper for the execution of the proper instrument in favor of the purchaser, today they find in this city the above mentioned Ricardo de la Parra and they proceed to verify it in the manner most solemn and legal. * * *”

The complaint herein shows the successive conveyances by which the plaintiffs be

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came vested of title to the De la Parra lands; however, we will state that the record herein and the various documents introduced as exhibits show the devolution of title as follows: A conveyance recorded on January 12, 1856, in Colon, which recites that the conveyance had taken place in 1852. In the instrument it is shown that De la Parra purchased the right of Manuel Jose Furnier, Lino Mayalle, and Francisco Miranda to the lands known as “Nombre de Dios,” on the north of the Bay of Limón, the boundaries of which were comprised from Los Pescadoritos to the Morro de Limón in front of the city and in depth from that place up to the Quebrada Honda, three miles in a southerly direction, the same that they had acquired by virtue of law, having cultivated the land for more than ten years. It is recited in the instrument that there was no notary or public registrar or stamped paper for the execution of the proper instrument in favor of the purchaser at Chagres at that time, but “today they find in this city the above mentioned Ricardo de la Parra and they proceed to verify it in the manner most solemn and legal.” Plaintiffs’ exhibit 12 and exhibit “A”, recorded in Canal Zone Property Book 8, 283.

November 15, 1852, which presumably was after the purchase of the lands by De la Parra, as set forth above, De la Parra and Pradillo conveyed to Laverde an interest in certain lands in Panama, as set forth in exhibit “G”.

June 16, 1855, in the city of Bogota, Colombia, a document was executed (plaintiffs’ exhibit 14) which shows the organization of a sociedad anónima o comandita (joint stock company) of what was designated “Laverde, Latorre & Company,” and the conveyance of various tracts and parcels of land in Panama, including conveyances from De la Parra, Pradillo, Laverde, and others, to the company. Among other properties conveyed by this instrument were seven thousand fanegadas of land situated between the Bay of Limón, where Colon and Aspinwall were situated, and Almirante Bay, constituting five landed properties, or farms, the first of which was designated as“Nombre de Dios,” in which some agricultural work had already been performed and which was situated on the Bay of Limón at a distance of two miles, more or less, from Colon or Aspinwall. The original exhibit introduced in related cases heretofore was not to be found on the trial of the instant matter but has since been found and is designated exhibit “H”.

June 15, 1903, the successors and assigns of Laverde, Latorre & Company formed a corporation under the laws of the Republic of Colombia, and to which reference is made in Public Document 890 dated November 21, 1908, in the name of the Compania Agraria de Panama. The lands known in this action as Tracts 2, 3, and 4, and as the “Nombre de Dios,” or “De la Parra” lands, were conveyed and constituted the capital stock of said organization, together with other lands. All conveyances were duly registered.

The company and shareholders of the Compania Agraria de Panama nominated and appointed Eduardo Espinosa G. as attorney in fact for said company, with full power to sell or otherwise dispose of the lands of the company.

A substitute power of attorney was executed by Eduardo Espinosa G. to Horace R. McRae on December 4, 1912, and was recorded in the

office

of the Registrar of Property of the Canal Zone in Book 7, page 293. A copy of this instrument was filed in civil case No. 772.

A conveyance executed by the attorney in fact Horace R. McRae for the Compania Agraria de Panama to the plaintiffs, Playa de Flor Land and Improvement Company, dated December 1, 1913, is recorded in the office of the Registrar of Property of the Canal Zone in Book 7, page 294. A copy of same was annexed to the complaint in civil case No. 772. See exhibits “I” and “J”.

The deposition of Eduardo Espinosa G. was taken September 29, 1919, before the Joint Land Commission, exhibit “F.” (Memo, p. 132.) It is hardly accurate to say that the deposition was taken by the Commission, because a reading of it discloses that the Commissioners had very little to do with the matter and that the proceeding was largely conducted by counsel for the Commission and, due to his objections, assertions as to the law and the'

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Commission’s duties, and his quibbling, the Court can hardly see how any comprehensive statement could have been made by the witness. The deposition, however, does show that the witness was a Colombian, born in Bogota, a man of some prominence and engaged in commercial and diplomatic missions for his government; that he was acquainted with the property known as “Nombre de Dios” and that his family had been interested in the property since 1852 and that the family had been actively represented as to its interest in the property by a brother of the witness, Rafel Espinosa G., who had been in Panama a few years before but had recently died; that the witness was not acquainted with Ricardo de la Parra during his lifetime but knew of him, had seen him two or three times when the witness was but a boy; that he understood that De la Parra had died in David, Panama; that, after the death of Rafel Espinosa G., the witness had examined some papers which the witness had brought with him and which he believed to be of value to the interest of the family. (These papers proved to be either the exhibits or copies of the exhibits introduced in the instant case. Among others was the deed of 1852 referred to above, which the witness stated was recorded at the proper office in Bogota.) The witness further stated that Don Rafael Reyes and Dr. Juan A. Henriquez had also looked after the property for the owners.

Deponent’s counsel also introduced certain exhibits showing the payment of fees for registering deeds and conveyances in Panama, including deeds to the Ricardo de la Parra lands.

The witness stated that he arrived on the Isthmus for the first time in 1876, that he was acquainted with the lands in question in the action and known by the name of “Nombre de Dios,” and that he considered them to be valuable lands; that the lands began to have considerable value about the time the French took up the building of the canal, dropped in value for a time when the French effort failed, and then, when it was known that the United States had taken up the matter and that there would be a canal eventually, the lands had a value “such as they have now/’ which was at the time of the taking of the deposition in 1919.

He stated that the company had tried to dispose of the lands, and at one time tried to get someone to go to the United States or to Europe to endeavor to get someone interested in the lands, then decided to wait and see if a canal would be built, and then decided to do nothing but just wait.

Some of the exhibits are still attached to the deposition and show the payment of recording fees and also show that the shareholders of the company had been assessed to pay the expenses of same, amounting to $2,240; that there had been paid for registration fees on a deed of sale and conveyance of certain lands, executed by Ricardo de la Parra and others in behalf of Manuel Laverde, the sum of eighty dollars, and that there had been paid taxes as per Decree 181 of October, 1886, the sum of $5.60. Also attached is a letter from the then governor of Panama, Alejandro Posada, to Rafael Espinosa G., showing that the Governor had advanced and paid the sum of $85.60, as mentioned above, and requesting that the bearer of the letter, his son, be reimbursed for the $85.60 the Governor had spent.

We have already stated that, when the Panamanian authorities reported to the Railroad Company the claims made and ' the proof in support of same, thirty-one in number, De la Parra’s claim was not mentioned. The whole proceeding by which the lands were denounced and subsequently adjudicated is set forth in the Court’s memorandum, page 24 et seq.

In an attempt to clarify the situation, we will again state that the initial proceeding to denounce the lands was in 1854 (defendant’s exhibit 2), and, pursuant to this action of the Railroad Company, that the office of the Superior Chief of Panama, on August 29, 1855, advised the Company as follows:

“1st. The Company, or its agents, will transmit to this Office six copies of the plan or map in which is shown the area of land from which the public lands are solicited.”

The communication also stated that the copies of the plan, or map, obtained should be posted at certain places for four months

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and that during such time those claiming the dominion of any portion of the land situated, within the area denounced by the Company would appear before the office of the Superior Chief and claim such dominion and present titles to the property in due form, or, in default of this, they would present the testimony of witnesses to the effect that the claimants had been in possession in good faith for at least ten years; that the Secretary’s Office would note in a special pamphlet all the proofs that might be presented in conformity with the requirements set forth, and all other important circumstances bearing on the object of the resolution; that, after four months, the agent of the Company would be informed of the individuals who claimed dominion to the lands situated in the area and as to what documents they might have presented.

Furthermore — and very important — it was provided that, if the Company should recognize the rights claimed, the lands so recognized would be excepted from the adjudication asked for by the Company, but if the claims were not recognized, the question should be submitted for adjustment to the tribunals; that such part of the land was ndt in question, for the reason that no dominion claimant to same appeared, should be measured at the cost of the Company and should be adjudicated to it up to the number of hectares to which it was entitled; and that the resolution was purely administrative and would not prejudice at any time the true owners of the land, if any be found, within the area denounced by the Company, which owners would always have their rights excepted in accordance with the law.

On March 14, 1856, the Secretary of State of Panama, Republic of New Granada, reported to the representative of the Railroad Company the claims, thirty-one in number, and the proof offered by each claimant. This was published in the Gaceta de Panama, No. 34, March 15, 1856. (See defendant’s exhibit 2.)

Now, on the Harrison-Arosemena map, presumably prepared by the commissioners six years after the proceedings noted above, there was designated “De la Parra 40 fanegadas.” The question naturally presents itself: Why was this done ? There can he but one answer: That his titles were recorded in Panama and Colombia, and, after the fire in Colon in 1885, a judgment of the court had re-established, registered, and recorded the titles; the name of the lands, “Nombre de Dios,” was well known and appeared upon the map; his ownership of the lands was notorious in the capitols of Panama and Colombia; and his ownership of the lands was well known to the commissioners.

If the above be true, the question might be asked: Why was the area confined to forty fanegadas? The answer is as follows: The Law'of the Legislative Assembly of the State of Panama of the 26th of October, 1861 (defendant’s exhibit 4), was long after the office of the Superior Chief had reported to the official of the Railroad Company the private landholders’ claims, thirty-one in number, and had furnished the proof offered in support of the claims (defendant’s exhibit 2). There were no commissioners until after the Law of

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