Appendix — Sociedad De Mario Mercado E Hijos v. Puerto Rico
Supreme Court brief1966
Ask Donna
What actually matters in this document.
Text
PS PENIG OR I OD at
° .
.
la eee dit
barn APPENDIX += -°
E: 1
No. 99
Approved April 18, 1952
AN ACT TO AMEND CLAUSE (g) OF SECTION 10 OF
ACT NO. 188, APPROVED MAY 11, 1942, AS SUB-_
SEQUENTLY AMENDED, -KNOWN AS THE
PUERTO RICO INDUSTRIAL DEVELOPMENT
“COMPANY ACT;-TO ADD CLAUSES (n),. (0)
AND (p) TO SAID SECTION 10, — FOR OTHER
PURPOSES.. |
STATEMENT OF Morrves
The industrialization of Puerto Rico to its maximum |
capacity and the speediest acceleration possible is an im- ~
portant part of the policy of the Government of Puerto
Rico as a practical means of providing new sources of em-
ployment and wealth for the’ —e population of the
island.
To the end of abdune that objective, an sileguiite and
well planned distribution of industrial plants throughout
the Island becémes necessary and for sueh purpose it is
_ necessary to facilitate the acquisition of those lands which
the Puerto Rico Planning Board may deem it advisable to -
allot Exp ea for industrial purposes, with the rapidity
which the adequate momentum of the industrial develop-
ment program may demand and upon payment for such
lands at a reasonable price, not subject to speculation on
' the part-of the owners thereof.
One of the most serious problems which the Puerto Rico
Industrial Development Company: is confronting in the
development of its said industrialization program is pre-
cisely the difficulty ‘encountered in acquiring by: purchase
through direct negotiation the lands needed by it therefor, ©
2a
mostly due to apathy or " the express refusal to sell on
the part of the owners, and in other cases, because of diffi-
culties in reaching an agreement with them as regards rea-
sonable prices for said lands.
The Legislature of Puerto. Rico, conscious of the im-
portance the success of the intensified industrialization pro- ~
gram sponsored by the government through the Industrial
Development Company entails to the economic life of all
Puerto Rico, desires to declare, as it hereby declares, that
said program is one of prime importance in the economic
reconstruction of the island, and that,.theyefore, it partici- -
pates of.the nature of a public utility and necessity.
For such reason and in order to enable the said govern-
ment agency to fulfill that mission of the, utmost’ public
‘interest with the required. rapidity, efficacy and efficiency,
_ the Legislature of Puerto. Rico feels that it is its duty ex-
pressly to grant hereby to'the Puerto ‘Rico Industrial De-
velopment Company, through the pertinent amendments to
its organic Act, the necessary powers to enable said agency
to acquire by condemnation those properties which in: its
judgment are required in order fully to develop its activi-
ties within its aforesaid program.
Bg Ir — By Tue LEGISLATURE Or PUERTO Rico ::
. Section 1.—Clause: (g) of Section 10 of Act No. 188, ap. .
- proved May 11, 1942, as subsequently amended, known as’
the Puerto Rico Industrial Development Company Act, is
tas hereby amended to read as follows:
““(g¢) To scaniee in’ any lawful manner, including, but
without limitation, acquisition by purchase, condemnation,
lease, bequest, devise or gift, and to hold, maintain, use and
operate any property, real, personal, or mixed, tangible or
intangible, including, but without limitation, securities and
other personal property or any interest therein, deemed ©
by.it to be necessary or desirable for carrying out the pur- |
; 3a
poses of the Company. The power to acquire property by -
condemnation shall not apply to the acquisition of buildings
wherein enterprises of a commercial, industrial or agricul-
tural nature are being: operated i in good faith.’’ -
Section 2.—Three new clauses which shall be known as’
clauses (n), (0), and (p) are hereby added to Section 10
. of Act No. 188, approved May 11, 1942, as subsequently
amended, known as Puerto Rico Industrial Development
Act, to read as follows: *
- **(n)- When in the judgment of the Company it should
. be necessary to take immediate possession of the properties:
to be. condemned, the Company shall request from athe
Governor of Puerto Rico, to acquire, by purchase, Gon-
demnation, or by any other lawful means, for the use and
benefit ‘of the Company, all real property’ and property
Tights necessary «nd convenient for carrying out the ends
and purposes thereof. The Company shall place before-
hand at the disposal. of The People of Puerto Rico the
necessary funds estimated as the value of the: property
or rights to be acquired. The difference in value which
' may be decreed by the Court may be paid from the public
_ treasury, but the Company shall be under obligation | to
_ reimburse said difference. After reimbursement in ‘full is
made, title to said property shall be transferred to the.
Company, upon order of the court to that effect. The
power hereby conferred shall not limit or restrained in. any
wise ‘whatsoever the inherent. power of the cad to
acquire property”
**(o) All. real and sal property and all rights or
interest therein which the Company may deem necessary to |
acquire for carrying out its purposes, are hereby declared
of public utility, and the same may be’ condemned by the
Company, or at the request and for the use. and benefit
thereof, by The-People of Puerto Rico, represented by the |
Governor, without the lees declaration of public utility
ee
4a
provided in Section 9 of the General Law of Eminent
-Domain’., —_- : an,
**(p) Condemnation proceedings instituted by virtue of
the provisions of. clauses -(g), (n) and (0) of this Section
shall be carried out in accordance with the provisions of
the General Law of Eminent Domain of March 12, 1903,
as amended, and to such effect the Company shall enjoy all
the rights“and assume all the obligations prescribed by said
Act with respect to all expropriating authority.”’ |
Section 3.—This Act, being of an urgent and necessary
eharacter, shall take effect immediately after its approval.
Approved, April 18, 1952." ~
Fs
5a
Exhibit A
SUPERIOR COURT OF PUERTO RICO
EMINENT DOMAIN SECTION
Case No. E59-823 to E59-825
THE ComMMON WEALTH or Pugrto Rico, represented by its
na . governor, wes de
Wy,
70.8397 cuerdas of ‘land located in Bo. Canas, Ponce and
Mario Mercapo £ H1ysos, et al., Defendants.
ConDEMNATION
‘Motion to Set Aside Order of Delivery and Material Acquisition -
Hon. Court: —
Now comes Sociedad Mario Mercado e Hijos er its”
undersigned counsel and respectfully states:
1. That in this case the Commonwealth of Puerto Rico,
at the request of the Puerto Rico Industrial Development
Company and for the latter’s use and benefit, has instituted
condemnation proceedings to acquire 70.8397 cuerdas of
land in Barrio Canas, Ponce, which belong to the iit
appearing herein.
_- 2. That according to the second paragraph « of ang com-
plaint filed in this case, the Puerto Rico Etonomie De-
velopment Administrator has deemed that the aforesaid
parcel of land is useful, necessary, and desirable for dedi-
cation to industrial purposes in Barrio Canas, Fence,
Puerto Rico.
3. That at the present the condemned parcel of land is
dedicated to the planting of sugar cane for industrial pur-
poses by Sociedad Mario Mercado.e Hijos, owner and oper-
ator of Central Rufina, Guayanilla, Puerto Rico.
4. That in one of the ‘‘whereases’’ of the Order of Sep-
tember 11, 1959, ordering delivery of the title to and im-"-.
a,
Ed
6a
mediate. possession and use of the property to plaintiff
within a 30-day period of time, this Hon, Court provides _
as follows:
‘Wamnas, the ‘purpose for which the property in-
volved in this proceeding is sought to be .condemned,
to wit: enabling the Puerto Rico Industrial Develop-
-ment Company to carry out the ends and purposes for _
which it was created and, more specifically, for indus-
trial purposes in Bo. Canas, Ponce, Puerto Rico, .in
order to provide new sources of employment and wealth _
for the increasing population of Puerto Rico through
its industrialization program, is comprised within the
_ restrictions prescribed by the statutes under which the
- instant ons is being litigated ;’”- .
5. That at present the aforeggid parcel. is dedicated and
has been dedicated for time immemorial to industrial pur-
poses by a Puerto Rican industry, i.e., Central Rufina which
is engaged in the-manufacture of sugar, a vital product in
in connection with the necessities of the American nation
in times of peace as well.as in times of. war and which must ©
necessarily have priority over any product sought to be,
manufactured in whatever plants may be established*in the
condemned parcel. This industry, which has been estab-
lished for over 50 years, provides -thousands of laborers
in the southern coast of the Island with work, pays consid-:
erable sums of money into the public treasury as land taxes,
_ income taxes, in addition to other taxes.imposed on it for
the benefit of the workers of this indystry in general, and
pays a considerable amount of money to the Water Re-
sources Authority for consumption of electric current for its
irrigation pumps.
6. That Sociedad Mario Mercado e Hijos has on numer-
ous occasions requested the Governor of Puerto Rico. and
-the Industrial Development Company to desist from the
aforesaid condemnation alleging that a native industry
7a
would be deprived of its raw-material source, there being
other lands, available, in order to benefit other private in-
dustries yet to be established, and that such action consti-_
tuted a discrimination among industries.
7. That Sociedad Mario Mercado e Hijos offered other
jands located in the same area, not dedicated to sugar cane,
_and the se were arbitrarily rejected insisting on the con-
demnation’ of the lands planted with sugar cane.
8. That the action of the Government and of the Indus-
’ trial Development Company in this case constitutes and un--
lawful exercise of the power of condemnation for pane
purposes. ’
9, That through thecondemnation of lands planted with —
sugar cane for industrial purposes so. that Industrial De-
velopment may assign them thereafter to other industries,
. defendant is being deprived of its property without due
process of law, a discrimination among industries, is estab-
lished, and the private property of a person is) delivered
to another private entity for its own use and benefit.
10. That the purpose striven for by means of this con-
demnation i is not a public purpose.
11. That in selecting. the land to be condemned, the .
Puerto Rico Industrial Development Company has abused’
its discretion, arbitrarily rejecting other lands with iden- —
tical soil and in‘the same area that had been offered to it
without even going to examine them. The fact that it was
only recently that they went over to examine and study the
condemned lands, is proof of this.
12. That neither the Government of Puerto Rico nor
Industrial Development may legally or constitutionally de-
prive a private industry of its lands-lands which enjoy a
water right granted by the Spanish Crown for industrial
purposes and protected by the Treaty of Paris, and which
are the lands on which its raw material is located—to de-
liver them to other private companies for use by the latter.
8a
- Wuererore we pray the Hon. Court to set aside the order
of September 11, 1959, decreeing the acquisition and de-
livery of the condemned paréel and to set this motion for
hearing.
"That pending decision of this motion, the term within
which to answer the complaint be arrested.
~ Ponce, Puerto Rico, September 30, 1959.
| Respectfully requested,
Prpro M. Porrata and
CuariEs R. Cuprint .
Counsel for Defendant
by: (s) CHartes R. Currie
Of Counsel
Box 1.224, Ponce, P. R
Exhibit B
IN THE SUPERIOR COURT OF PUERTO RICO
EMINENT DOMAIN SECTION
Case No. E59-823 to E59-825
THE ComMMONWEALTH OF PuERTO-Rico, represented by its
Governor, Plaintiff, - .
Vv.
70.8397 euerdas of land located in Bo. Canas, Ponce, and _
Mario Mercapo £ Hisos, Apridn MERcapo Riera, Ev-
FEMIA Riera Dvusoce, Puerto Rico RaiRoap AND Lanp ’
DEVELOPMENT Corporation, Porto Rico TELEPHONE
Co., Joun Dor anv Ricuarp Rog, Defendants.
CONDEMNATION
Order
On October 8, 1959, defendant filed a motion to set aside
the order issued by this Court on September 11, 1959, order-
9a
ing the acquisition and delivery of the. property condemned >
in the above-entitled case, and in connection therewith it
set forth the following grounds:
‘1, The. condemnation in this case does not. consti-
tute a public use as contemplated in the Fifth Amend-
' ment to the Constitution of the United States of
_ America, incorporated in the Fourteenth. Amendment
‘of that same Constitution:
**2. The use of the power to condemn, depriving an
established industry of its raw material source in order
to deliver such lands to private enterprises for the.op-
eration of industrial establishments, is an illegal and
unconstitutional exercise of the aforesaid power.
‘*3. The determination made in the selection of the
’ lands in this case ts completely arbitrary and. preju-
dicial not only to the owner’s interests, but to the com-
munity in general, and deprives defendant of its prop- °
erty with the due process of law.’’ .
1. With regard to the first ground it is enough to say
that our Honorable Supreme Court, in Commonwealth v.
Fajardo Suger Co., 79 P.R. R. 303, where the same issues
were raised, decided that they lacked merit.
2. The fact that the sugar industry has been recognized
by the legislature as the backbone of our economy and that,
inasmuch as it partakes of a great public interest, it may
be regulated by the Commonwealth; does not overcome or
lessen the supreme prerogatives of sovereignty inherent.
.in the Commonwealth. itself to acquire private property for
public use, by means of just compensation.
No one can doubt the authority of our Legislature to
determine what are public necessities, or the power it has ©
to delegate in organizations, agencies and instrumentalities
of the executive branch the power to enforce its mandate.
Among others, it has the power to select the necessary prop-
erty to carry out the public purpose embodied in pertinent
laws. a |
10a
Q . |
In this specific case the governmental agency in question .
is the Industrial Development Company, whose adminis-
trator deemed it useful, necessary, and desirable in order
to carry out its industrial purposes in Barrio Canas, Ponce,
to acquire the parcel described in the complaint, and this
determination received the ore of the Puerto Rico
Planning Board.
The only restriction imposed on the Industrial Develop-
ment Company to acquire properties for public use refers
to buildings wherein. enterprises of a commercial, indus- °
trial, or agricultural nature are being operated in good
faith.
During the discussion of these issues and by means of
evidence it was established that there was a cane planta-
tion on the condemned parcel and that certain irrigation
canals were located thereon; that since the one and the
others were necessary for the operation of an industrial
enterprise, the Company was legally estopped from acquir-
ing them by condemnation.
The Act refers to buildings. ‘‘Building’’ is defined as
‘‘work or construction built with dwelling or similar pur-
. poses; as a. house, temple, theater, ete.”” ‘‘To build’’ is
the act or. action of building. :
Definitively, irrigation canals do not fit these meanings.
‘Act No. 99 of 1952 does not éven mention plantations of
- fruits as a bar for the acquisition of lands « on. which the
_ former stand.
3. Defendant: tells us that the action of the Industrial -
Development Company and of the Planning Board in ac-
quiring the parcel involved in this proceeding was arbi-
trary, which fact, according to defendant, was proved by
means of the evidence introduced at the hearing of Novem-
ber 23, 1959. 3
.: We do not even remotely attach walk scope to the evi-
’ dence introduced. The fact that next to the condemned
lla ,
property is another property deemed by defendant to be
more convenient to the Commonwealth and that this other
parcel has been offered to the condemning party, and that
» this offer has not been considered or accepted by plaintiff,
- eannot be characterized as arbitrary or capricious.
Defendant’s motion is hereby denied and it is given a -
period of ten days to answer the complaint.
Let this order be served.
San Jt uan, Puerto Rico, March 93, 1960.
(s) P. Santos Borces
- dudge.
———
Exhibit ‘C
IN THE SUPERIOR COURT OF PUERTO RICO ¥
EMINENT DOMAIN SECTION
Cases No. E-59-823 to E-59-825
- CoNDEMNATION |
THE Coisdaneanciacel oF Purerto Rico, REPRESENTED BY
’ ts Governor; Plaintiff
: ; Rare
v.
70.8397 CUERDAS OF LAND LocaTED In Bo. C'anas, Ponce,
AnD Mario Mercapo E H1J0s, et Au., Defendants.
To the Hon. Court:
Now comes defendant Mario Mercado e Hijos, through
. - its undersigned counsel, and respectfully states and prays:
1. The first fact of the complaint is denied. _
__ 2. The second fact of the complaint is denied.
12a
oe 3. The third fact of the complaint is denied.
4. The fourth fact of the complaint is denied for lack of
Sufficient information to accept it. .
5. Defendant denies that the .sum of $125,455.90 consti-
tutes fair and reasonable compensation for the condemned
lands and alleges, to the contrary, that the properties
condemned in this proceeding are valued at not less than
$10,000 per cuerda.
6. Defendant denies the existence of eax pereons or
entities with an interest in the. condemned lands, only
‘- defendant Mario Mercado e Hijos having an interest on
‘those lands. .
SpeciaL DEFENSES
’ As special defenses defendant alleges that:
1. The condemnation in this case does not constitute a
‘public use as contemplated in the Fifth Amendment to .
the Constitution of the United States of America, incor-
porated in the Fourteenth Amendment of that same
Constitution. |
2. The use of the. power to condemn, depriving an estab-
lished industry of its raw material source in order to deliver ®
such lands to private enterprises for the operation of
industrial establishments, is an illegal and unconstitutional ia
exercise of the aforesaid power. |
3. The determination made i in the selection of the lands
in this case is completely arbitrary and prejudicial not only
to the owner’s interests, but to the community in general,
and deprives defendant of its property with the due process
of law.
4, The order issued byt this Hon. Court depriving defend-
ant of the immediate possession and title to its property
o . oa is 8
\
13a
‘without first determining the fair and reasonable value
thereof is null and void because it violates the provisions
of ‘the Constitution of the Comnionwealth of Puerto Rico
and ef the .Federal Constitution.
Wikanom, defendant respectfully prays this Hon. Court
to enter judgment pursuant to law dismissing the complaint
filed in this case; and should dismissal not lie, to enter
judgment declaring that the just and reasonable value of -
the condemned property in this case is $10,000 per cuerda
of the condemned land, ordering plaintiff to deposit the
difference between the value deposited and the value .
alleged herein, with any ‘other pronouncements proper in.
law. “0
Ponce, Puerto — ne 16, 1960. ie
| Respectfully ena;
Pzpro M. Porrata and. ,
Cartes R. CuPRILL ©
Counsel for Defendant
By: (s) Cuanzes R. Currm.
Of Counsel :
Concordia & Lyna Streets
Ponce, Puerto Rico
‘ I Certiry: That on this same date I deposited in the post —
office in Ponce, Puerto Rico, a duly-stamped envelope
addressed to Mr. A. Sandin del Manzano, counsel for
plaintiff in this case, to his address at the Department of
Justice of Puerto Rico, containing a true and faithful copy
of the preceding Answer: That between Ponce and San
- Juan, Puerto Rico, there is a regular, daily mail service. ,
operated by the Federal Government. |
Ponce, Puerto Rico, April 16, 1960.
| (s) Coarntes R. Currin
fk ee een Of Counsel -
|
/
/
/
l4a
Exhibit D
(same TITLE)
Motion for Withdrawing. of Funds
Hon. Court:
Now comes defendant through, its undersigned counsel ©
and respectfully states and prays:
1. That in. this ¢ase the sum of'$121,827. 40 ¥ was as deposited
as the fair value‘of the condemned land, and this sum has
not. been withdrawn by defendant.
2. That defendant wishes to withdraw the aforesaid sum.
without prejudice to its allegations in this case.
Wuererore, we pray the Hon. Court to issue. a check i in
favor of Mario Mercado e Hijos in’ the amount of
$121, 827.40, deposited in its name in this case.
e Ponce, Puerto Rico, February 13, 1961.
Respectfully requested,
Pepro M. Porrata and :
Cuar.es R. Currie
Counsel for Defendant
Bei (s) Cuartes R. CuPRILL
Of Counsel
42 ' -
I Certiry: That on this same date I mailed, post paid,
-a copy of this motion to the Hon. Secretary of Justice of
Puerto Rico, counsel for plaintiff in this case, and that
between Ponce and San J uan, Puerto Rico, there is a
regular and daily mail service’ — by the Federal
Government.
a Puerto Rico, February 13, 1961.
(s) Carus R. Cupriti
Of Counsel ©
lda . ;
(SAME TITLE)
"Minutes of Hearing
This case was heard and plaintiff appeared through
Mr. Sandin del Manzano, and defendants, through Mr.
Charles Cuprill. -
Defendarits appear solely to withdraw the funds
deposited.
The Court, after. deciaring extinguished Se death of the ©
beneficiary the pension of $5,000.00 per annum in favor of
Eufemia Riera; the. notice of complaint against the
sociedad; the attachment for income taxes, ete., and John -
Doe and Richard Roe, orders the office of the Clerk to issue
a check in favor of the defendant in the sum of $121,827.40
and deliver it to Mr. Cuprill.
¢
I Certiry: That the foregoing i is a true and-faithful copy —
_- of the contents of page No. 204, Minute Book of this Section,
' the Hon. Judge P. Santos-Borges presiding: and Mr.
Rogelio Carrién acting as stenographer.
And to be attached té the above-entitled case, I issue
these presents in San Juan, Puerto.Rico, on this 17th day. °
| of March, 1961.
Luis M..CapaNas |
~. Clerk
By: (s) V. Avités
Assistant Clerk
16a
Exhibit DD
| | (SAME TITLE)
a Amended Answer to the Complaint
" To the Honorable Court:
Now comes the defendant Mario Mercado e Hijos through
its* ‘undersigned counsel and respectfully states and prays:
1. The defendant admits that the proceeding of con-
demnation is initiated by the Commonwealth of Puerto Rico, °
represented by the Governor of Puerto Rico, upon request
from the Puérto Rico Industrial Development Company,
for its use and benefit, and admits that the proceeding “a
purportedly initiated under the provisions and authority
.. granted by law 188 of May 11, 1942, as amended by law 99
be of April 18, 1952, Reorganization Plan Number 10 of 1950 -
aiid. the General Condemnation law of March 12, 1903, as —
amended ; but the defendant denies that any of the said
_ laws authdtizes this proceeding of condemnation. |
(2. Paragraph two of the complaint is denied.
i Paragraph three of the complaint is accepted.
“* Paragraph four of the complaint i is denied for lack of
information to be accepted. oe
5. The defendant denies that the fair and just compensa-
tion for the lands condemned is the sum of $125,455.90 as
_ Stated in paragraph 5 of the complaint, and alleges to the
contrary that the value of the.lands is far in excess of this
amount.
a The defendant neither admits nor ‘dénios the siiedh.
tions contained in paragraph 6 of the complaint, for lack .
vd knowledge of the facts stated therein. ‘
Legal Defenses
As legal or special defenses defendant alleges:
1. Neither the statutory provisions cited in paragraph 1
of the complaint nor any, other statutes of the Cammon- |
wealth of Puerto Rico authorize this expropriation..
17a or
2. The statutes cited in paragraph 1 of the complaint.as
applied to this land and this defendant in this proceeding
deprive the defendant of property without dug process of
law in violation of Article II, Section 7 of the Constitution
of Puerto Rico and in violation of the Fifth and Fourteenth
Amendments to ‘the‘Constitution of the United States in
,that this expropriation is not for a public purpose.
3. The expropriation in this case of this particular tract
of land is arbitrary, capricious, unreasonable and irrational ©
and thus deprives defendant of its property without due
process of law in violation of Article II, Section 7 of the
Constitution of Puerto Rico and in violation of the Fifth
-and Fourteenth Amendments to ‘the Constitution of the
~ United States.
4, The expropriation in this case constitutes a taking of
private property for a non-public use in violation of
Article II, Section 9 of the Constitution of Puerto Rieo and
in violation of the Fifth and Fourteenth Amendments to °
the Constitution of the United States.
5. Law Number 99 of April 18, 1952, contains insufficient
standards to guide the administrative exercise of the power
to acquire land by expropriation and thus constitutes an
unlawful delegation of legislative power in violation of
Article III, Section 1 of the Constitution of Puerto Rico.
6. So much of. Law Number 99 of April 18, 1952 as
authorizes -expropriation of property by or on behalf of
the Puerto Rico Industrial Development Company is un-
constitutionally vague, and thus its application to this land
and this defendant deprives defendant of property without —
due process of law in violation of Article II, Section 7 of
the Constitution of Puerto Rico and in violation of the Fifth
and Fourteenth Amendments to the Caastitution of the
United States. ;
7. The land setenoiiaeh in this case is an Saibiead suiet
of a larger tract of land owned by the defendant devoted
8a
to agricultural and industrial use. This expropriation has |
caused damage to defendant’s remaining land and to the
agriculturel, commercial and industrial enterprise con-
nected therewith.
WHEREFORE, defendant to this Hon. tials prays that on
due dafe and after all pertinent steps have been taken, to-
enter a judgment dismissing the complaint in this case and
ordering title revested in. the defendant; and’ if dismissal
and revesting title are not in order, then to enter judgment
for the just and fair compensation for the property con-
demned plus an additional amount for damage to defend-
ant’s remaining land, all in such amounts as determined
by the Court to be just and proper, and ordering the plain-
tiff to deposit the difference between the amount already.
deposited and the value and damage here alleged with any
other pertinent pronouncement.
Lesa Puerto Rico, this 17th day of March, 1961.
ee Respectfully submitted,
Pepro M. Porrata &
Cuartes R. CuprRit.
_ Attorneys for defendant
By: (s) Cartes R. Curr
Of counsel
+ Currmt & Witson
Suite 425, Gonzalez Building
_ Ponce, Puerto Rico
a H. Morty, Esquire
Morrn, OwEns, McLavcHiin |
&O’Reniy
19 Congress Street
Boston 9, Massachusetts
19a
Exhibit E -
7 (SAME TITLE)
Interrogatories to Plaintiff
Defendant Mario Mercado e Hijos submits the following
- Interrogatory pursuant to the provisions of Rule 30 of the
Rules of Civil Procedure, to be answered by plaintiff.
1. State the name of the expert or experts employed in
the appraisal of the lands involved in this case.
2. State the name of the persons ‘who took part in the
selection of the lands i in this case.
3. State the procedure - employed in this ease for the
selection of the condemned lands and on what basis was
. their public usefulness determined.
4. State whether plaintiff was not offered, prior to the
condemnation, other lands in the same farm, not planted
with cane.
5. What factors were employed to reach the conclusion
that. the. condemned lands were better? 7
6. State. how plaintiff arrived at the conclusion that the
condemned land ‘is worth $125,455. 90 and what elements or
factors were utilized.
7. Furnish copy of the appraisers’ report in this case.
8. Furnish copy of sales or. transactions employed to
_. reach that conclusion and state which do you intend-to use
in the case.
9. State whether plaintiff took into consideration the
impact.on Central Rufina and on the sugar industry in
- &
_ continguous to a first-rate highway.
20a
- general upon condemning 70 cuerdas of land planted with
"cane. :
10. State whether upon making the selection of the lands, .
the Department of Agriculture of P. R. was consulted, and
if 80, what was its answer.
11. How does plaintiff explain that wis on the one hand
‘the Legislature of Puerto Rico spends millions of dollars
as incentive for the planting ‘of canes, on the other hand
plaintiff strips a farmer of 70 cuerdas of cane, ~~
approximately 3,000 tons of cane?
12. Furnish a list of industrial propositions which plain-
tiff intends to carry out in the condemned land and the
type of activity to which they would be devoted, indicating
the number of workers to be employed, annual payroll, and
materials to be used.
13. State whether soil ae were made and * in which
places. Furnish copy of the report.
14. Furnish a copy of, the report of the Planning Board
approving the acquisition of the lands. ©
15. Furnish a copy of the requirement referred to ‘in .
paragraph No. 1 of the complaint.
16. State whether the condemned lands are adjacent and
A
17. State whether there are facilities of electricity,
power, and telephone i in that locality.
18. State the distance between the condemned lands and
San Antonio Urbanization, Grillars Urbanization, Parque
Atlético Montaner, Dr. Pila _ School, the Vocational
School, Hostos Avenue.
21a .
19. State whether or not the condemned land is flat.
Ponce, Puerto Rico, May 11, 1961. *
Respectfully submitted,
Pepro M. Porrata »
* Cantos Romero Bakceé’
Caries R. Curritu
_. By: (s) CHartes R. Curritt
Of Counsel. -
SERVICE
‘I Cerriry: That on this same date I mailed, post paid,
_a copy of this motion to Mr. Arturo Estrella, counsel for
plaintiff and Assistant Solictor General of Puerto Rico, to
his address in San Juan, Puérto Rico. ; ;
Ponce, Puerto Rico, May 11, 1961.
By: (s) CHarzes R. Cupriti
Of Counsel
Exhibit F
ae (SAME TITLE)
Objections and Answer to Defendant's cael
To the Hon. Court:
Now comes plaintiff, through its undersigned eounsel and
respectfully submits to the Hon. Court the following objec-
tions and answer to the Interrogatory filed by defendant:
OxszcTions AND ANSWER TO INTERROGATORY
1. The name of the expert used in the appraisal of the
' lands involved in this case is Francisco A. Felid.
2. We object to the second question inasmuch as the ©
manner or method of selecting the condemned lands is not
22a.
inaitertol or relevant to determine value and, in addition,
because this question has been already decided against
defendant.
3. This question is objected to on the same ‘grounds as °
the second question.
4. It is objected to on the same grounds set forth as to
the second and third questions.
_ §. It is. objected to on the same grounds set forth as to
the second, third, and fourth questions.
6. The factors involved i in plaintiff’ S conclusions regard-
ing value consisted in comparable sales.
7. This question is objected to because defendant’ Ss re-
quest. concerning the — of plaintiff’s appraiser is
improper.
8. The following sales or transactions were taken into
consideration with respect to the conclusions as to value in
the instant case: ;
(a) Sucesién de Desiderio Canales sells to Félix S.
Serrallés 60.5520 cuerdas on October 19, 1957 (page 171,
volume 682, property 19386).
(b) Reparada Development sells.to Cooperativa de
Hogares de la Perla del Sur 21.636 cuerdas on June 26,
1958 (Deed No. 570 before Notary: Public Jorge
Bartolome).
(c) Industrial Development Company sells to Insul-
dyne Corp. 9.441 cuerdas of land at the end of 1957
(page 129, volume 676, property No. 19252).
(d) Industrial Developmeftt Company sells to Shut
Mix Corp. 3.39 cuerdas on March 17, 1957 (page 166, -
volume 587, property No, 17514, 1st éntry).. -
- (e) Inmaculada Bota Canet: sells to Puerto Rico
' Road Constructors Inc. 96.578 cuerdas on September
“28a | \" wa
36, 1957 (Deed No. 67 before Notary Public tiene
Lagarde Garcés).
These or any wer future ieapsiiitile _ will be
utilized by plaintiff at the hearing.
9. Question No..9 is objected to for the reason that the
matter involved therein is immaterial and irrelevant -in
this case and, in addition, because this question has: been
already decided in a previous incident in connection with
this case. :
10. Question No. 10 is objected to because the matter in-
volved therein is irrelevant and immaterial as regards
_ appraisal and, in addition,- because this question was _
decided against defendant in an incident: that took place
in connection with the instant case.
11. Question No. 11 is objected to because the question
raised therein is irrelevant and immaterial to determine
value.
12. Defendant? s request.in this question-i is immaterial and
irrelevant to determine value, for which reason we object
thereto. ,
13. Concerning this question, it is the Industrial Develop-
ment Company that defendant should address with regard
thereto.
14. The information requested “= Aiteniiaas in this ques-
tion. is at its disposal i in the Puerto Rico Planning Board
and it is incumbent ‘on defendant to obtain it from said
instrumentality.
15. Question No. 15 of defendant’s interrogatory is
objected to.
-16. The information wanna * defendant i in question
No. 16, if true, is within defendant’s reach and may be -
easily obtained by it.
24a
17. Likewise, the. information requested by defendant in
question No. 17 is | within its name and might be. easily
obtained.
18. The information requested by question No..18 of the
interrogatory is within defendant’ S reach and may be easily
obtained by it.
19. The topography of the lands the object of condemna-
tion in this case is level. ©
WHEREFORE, we respectfully submit to. the Court this .
Answer to the Interrogatory.
San J uan, Puerto Rico, June 14, 1961.
FRANcIsco Esprnosa, JR.
Acting Georetary: ty) f Justice
' Arturo E'sTRELLA See
Assistant Solicitor General
V. M. Sncuez FernAnvez °
Head, Land Division
(s) A. Sanpfiv pz Manzano
Counsel, Department of Justice
I, A. Sandin del Manzano, of age, an attorney-at-law,
married, and a resident of this city, do under oath declare:
That my name and personal circumstances are as above
stated; that I am one of the plaintiff’s counsel in this case;
that I have prepared the foregoing Answer to the Inter-
- rogatory and that I think in good faith that the answers are
true, after having examined the record of the case.
In Witness Wuerror I subscribe and swear to these
presents in San Juan, Puerto Rico, June 14, 1961.
. (s) A. Sanvin. pet Manzano
Counsel, Department of Justice
25a
‘Subscribed and sworn to before me by A. Sandin del
_ Manzano, of the above-mentioned personal circumstances,
who is to me personally known, in San Juan, Puerto Rico,
June 14, 1961.
(s) Luis M. Cabanas
| (Seal of the Superior Cowrt) _ Acting Clerk
’ SERVICE
I Certiry: That as of today I mailed a true and faithful |
copy of the foregoing Answer to the Interrogatory in a
duly sealed and stamped envelope to Mr. Charles R. Cuprill,
- - counsel for defendant in this case to his address, Box 1224,
Ponce, Puerto Rico. ;
San J wan, Puerto Rico, June 14, 1961.
" (s) A.. ‘Sanpin DEL Manzano :
Counsel, Department of Justice
(SAME TITLE)
a ; ,
On May 11, 1961, defendant submitted a set of inter- -
rogatories which were answered in part and partly objected
to by plaintiff. . , :
In order to hear the parties with regard to the merits of
the objections raised, a hearing was set and held on June 20, -
1961,-at which the parties submitted without — the
questions raised i in the objections: —
For the reasons stated in our orders of March 23, 1960, 6
and March 3, 1961, the objections raised by ae, are
hereby sustained.
Let this. order be served. :
Issued in San Juan, Puerto Rico, June 21, 1961:
Be je SanTos Borces
. ; cee a J udge a.
Parties served today 6/22/61. ae
” 26a
Exhibit G
_ IN THE SUPREME COURT OF PUERTO RICO
——2867 -
CoNDEMNATION
oa : : ele
Mario Mercapo E Hisos, Petitioner
\ . . ee
\ Vv.
SUPERIOR Covas or Purrto Rico, Eminent Domarx
SECTION, Hox. P. Santos Bonem, J UDGE, —
_ \ Petition for Certiorari —
To the. Hon. Court:’
Now comes petitioner Mario Mercado e Hijos through its
‘ undersigned attorneys and respectfully states and prays:
1. That on September 4, 1959, the Commonwealth of
Puerto Rico, represented by its Hon. Governor,’ filed in ©
the Superior Court of Puerto Rico, Eminent Domain
Section, an: action to condemn 70.8397 cuerdas: of land
belonging to defendant Mario Mercado e Hijos in Barrio —
Canas, Ponce, ewaete eae under No. E-59-823 of - said
Court.
rogatory pursuant to the provisions of Rule 30 of the Rules
of Civil Procedure of Puerto Rico. In said interrogatory
petitioner submits a set of questions in connection with the
procedure followed by plaintiff to select and appraise the
_ condemned lands, 70.8397 cuerdas of cane land expropriated
from petitioner who is the owner of and operates a sugar
mill in the Scuthern coast of Puerto Rico.
_ 3.-Upon being served with the aforesaid interrogatory,
plaintiff duly submitted a list of objections to some of the
questions and answered others.
.
_ 2. That-on May 11, 1961, allied herein submitted to |
plaintiff, the Commonwealth of Puerto, Rico, an inter- |
‘7a
We attach hereto and make a part hereof a copy of the
Interrogatory submitted to plaintiff as well as the latter’s
objections and answers thereto. |
4. The trial court set a hearing, held on June 20, 1961, to
discuss. the objections raiséd by plaintiff to the inter-
‘rogatory. The issue was submitted to the trial court and
the latter, by order dated June 21, 1961, sustained the
objections raised by plaimtiff on the grounds set forth by
the same Court’ in the orders entered on March 23, 1960,
and Marelr 3, 1961,.in this same case. We attach hereto a
copy of the order of the trial court, dated June 21, 1961. _
d. The orders on whose grounds the trial court relied to
sustain the objections to the Intetrogatory were entered in .
connection with petitioner’s request for permission to take
a deposition of plaintiff’s expert, to which plaintiff objected
alleging that it was not proper in law. Thereupon the trial.
court denied the request of March 3, 1961. We attach hereto -
a copy of said order of March 3, 1961.
The remaining order to which tlie trial court refers in
its order which is the object of this petition is the one
dated March 23, 1960. That-order: resulted from a request
made by defendant, petitioner herein, to set aside the order
_for the immediate delivery of the condemned property. In
its motion and as grounds for its request, petitioner alleged
that the condemnation did not constitute a public purpose
as contemplated in the Fifth Amendment to the Federal
- Constitution petitioner’s right to the discovery of evidence’
pursuant to Rule 30 of the Rules of Civil Procedure of
+ Puerto Rico. ; |
The information requested is not privileged, inasmuch as.
it does not affect the security of the Commonwealth. Nor
‘are the interrogatories oppressive, onerous, or unfair.
(Sterra, Sec: of Labor v. Superior Court, 81 P.R.R. 540),
‘The action of the trial court is utterly devoid of a reason-
able ground and seriously prejudices the substantial rights
28a |
of this party. In condemnation proceedings the burden of
proof rests with defendant and the Government’s appraiser
must not be perniitted to sit down and listen to testimonies -
so that he can later adjust his own testimony to the trial,
while this défendant has been denied access to the informa-
tion in its possession, by virtue of which it was deprived. ~
of its property. |
"he
We do not think that allowing a situation’ as that just
described is a liberal procedure.. Such situation is
> extremely pdvantageous for the Commonwealth and its
praiser as~against the rights of defendant to a day in
Court. The Commonwealth has all the advantages. i in this
kind of action. The laws. recognize its right to enter the
property in ordef/to examine it; they permit it to take —
-immediate title and to be given immediate delivery by .
. Means of the deposit of a-sum unilaterally fixed by its |
“agents. Then, at the trial, all these advantages notwith- _.
standing, it has the most irnportant advantage, to wit, it is si
the other party who. must prove that it is not right. :
In the ‘face of this situation we think it is more reason-
able and fairer to give defendant:the right to the discovery °
of evidence -by means of depositions or interrogatories
addressed to the Government’s appraiser. -
It cannot be held that the information obtained by said
appraiser, which provided thé basis for the acquisition of :
.. the property, is privileged. See Shell Co. v. District Court, .
73 P.R.R. 413; Tiedman v. American Pigment Corporation,
*, 253 F. 2d 803 ; U.. 8S. v. Procter & Gamble, 356 U.S. 677,;
Roviaro v. U. S., 353 U.S. 53; U. S.v. ‘Reynolds, 345 U.S. 1;
Remedies Against U. 8. ond) its Officials, 70 Harv. L. Rev.
‘827, 934-38; ‘Sierra, Sec. of. Labor v. Sanat: Court, 81
P.R.R. 540. . }
Said information does not affect the Conimonwealth,
. rather, it affects defendant’s property, the object of con- ‘
a demppation, | |The informetion requested j is — ma i arek
val val lal |
29a ’
for the preparation of. defendant’s case (Shell: v. District
Court, 73 P.R:R. 413;. Hickman v. Taylor, 329 U.S. 495;
4 Moore’s, §§ 26.15 and 33.10-33.22). Plaintiff is caused no
harm if obliged to answer. (See Baker v. Procter & Gamble,
17 FR Serv. 30b.352, case No. 1.)
For THE Reasons STaTED we respectfully pray this ‘Hon,
Court to issue a writ ofcertiorari to review the action of
the trial court in this case, ordering that the record of the
ease be sent to this Court, and to enter judgment setting
aside the order appealed from,.and, consequently, to order
plaintiff to answer, defendant’s interrogatory. —
| seat Puerto Rico, July 7; 1961.
: Respectfully prayed,
CHarezs R. nine and |
Pepro M. Porrata |
Coumsel for Petitioner
- Box 1224, Ponee, Puerto Rico:
a. (s) Cuanzes R. CuPRILL
Of Counsel
9
I, Charles R. Cuprill, state and declare under oath:
That my name is as above set forth, I'am of legal ‘age,
married, an attorney-at-law, and a resident of Ponce, Puerto
Rico. That I am one of petitioner’s counsel and as such I
_ prepared the preceding petition and the ‘facts therein
alteged are-true and known to'me of my own and personal —
knowledge. :
Ponce, Puerto Rico, July 7, 1961.
(s) Crartzs R. Curr.
Affiant
- 30a
Subscribed and sworn to before me by Charles R. Cuprill,
of the personal circumstances above mentioned, and to me
personally known. I attest. Ponce, Puerto Rico, this ..
day of July 1961.
(s) Parrick J. Wison
‘Notary Public
(SAME — |
Order
Otviebon composed of Mr. Justice Blanco-Lugo as Chief
Judge of Division, Mr. J ustice Rigau, and Mr. Justice
% Davila. x
‘San Juan, ical ret J uly 14, 1961. :
‘The Secretary shall isshe a writ of weitlovest addressed
to the Superior Court, Eminent Domain Section, Hon. Pedro.
Santos-Borges, Judge, instructing it to send to the Secretary —
_ of this Court, as soon as possible, the original record, or
a certified copy thereof, of case No. E-59-823, Condemnar _
‘tion, instituted by the Commonwealth of Puerto Rico, etc.,
plaintiff, v. Mario Mercado e Hijos, defendant, referred
to in the petition filed in this case, in order to review the
proceedings and to decide in accordance with law. The
alia shall comply with Rule 15 of the Rules of this Court. |
“It was so decreed by the Court as witnesses the signature
of the Acting Chief J ustice.
&@) Luts Buanco-Lugo
Acting Chief Justice
' Tattest: 5
4 s) Icnacto Rivera
Secretary
. Bla
Exhibit H ©
(SAME TITLE)
. Division composed of Mr. Justice Blanco-Lugo, as Chief
Judge of Division, Mr. Justice Rigau, and Mr. Justice
Davila:
Mr.. Justice Buango Luco delivered the opinion of the
- Court:
At the request of the -Puerto Rican Development Com- .
pany, a condemnation proceeding was instituted on Sep-
- Hijos and others for the purpose of acquiring a parcel of
70.8397 cuerdas of land located in the ward of Canas, Ponce,
to be used for industrial purposes.. Two-days later a
decision was issued, ordering: the material delivery of the
parcel.and vesting the Commonwealth of Puerto Rico with
title in fee simple over said property. ~
Respondent requested to set aside the order for actual —
delivery of the condemned parcel, setting forth in synthesis,
the following grounds: 1. the condemnation does not con-
stitute a public use; 2. the exercise of the power to condemn
and to deprive an established industry of its source of raw
_ material and then to deliver those lands to. private entities
for the ongration of industrial establishments is unlawful
- and unconstitutional and, 3. the determination made in the
selection of the lands is arbitrary and prejudicial to the.
interests of the owner, as well as of the community in
general. After a hearing during which documentary and
oral evidence were introduced, the court by an order of
March 23, 1960 dismissed the motion. An appeal was filed
which we dismissed on June 6 of that same year. Common-
wealth of Puerto’ Rico v. Mario Mercado e Hijos, appeal
No. 12800. The answer reproduced as special defense that
defense relative to the selection of the condemned lands,
and in'an amended answer it was' specifically alleged that
‘3 .
:
Ik
[ |
i }
L (pleas
tember 9, 1959 against the corporation Mario Mercado e |
32a
the: condemnation was arbitrary, capricious, unreasonable.
and irrational, therefore depriving it of its property without |
due process of law. ae fa ©
Respondent wand the State a sheet: of interrogatories
‘which required the following information:
‘1, State the name of the expert or experts employed
in the appraisal of the lands involved in this case.
‘2. State the name of the persons which took part
in the selection of the lands i in this case.
**3. State the procedure employéd in this case for
the selection of the condemned lands and on what basis
was their public, usefulness determined. °
‘4, State ‘whether plaintiff was not offered, prior i
to the condemnation, other lands 1 in the same > farm, not
planted with cane.
‘‘5. What factors were employed to reach the con-
clusion that the condemned lands were betters,
“6. State how plaintiff arrived at the conclusion
that the condemned land is worth $125,455.90 and what
3 elements or factors were utilized.
as Furnish copy of the appraisers’ nme in this
case.
“eg. — copy of sales or ‘anenetioie seine |
. to reach that conclusion and state which do you: intend’
to use in this case. |
**9. State whether plaintiff took -into consideration *
the impact on Central Rufina and on the sugar industry -
in general upon condemning 70 ar Cae of land planted
with cane. - — .
**10. State whether upon making. the. sihniien of
_ the lands, the Department. of Agriculture or P. R. was
consulted, and if so, what was its answer. ~ 3
‘611, How does plaintiff explain that while on the
one ‘hand the Legislature of Puerto Rico spends
“ millions of dollars, as ineentive for the Yeon ‘of
canes, on the other hand — rigs 6 — of
33a ©
70 cuerdas of cane, yielding siiidiclieeaaaiis 3,000 tons
of cane?
‘12. Furnish a list of industrial sii which
plaintiff intends to carry. out in the condemned land
and the type of‘activity to which they would be devoted,
indicating the number of workers to be employed,
annual payroll, and materials to be used.
‘613. State whether soil tests were made and in which
places. Furnish copy. of the report.
- “14, Furnish a copy of: the report of the —
Board approving the acquisition of the lands.
‘615. Furnish a copy of the requirement referred to
in paragraph No. 1 of the complaint.
se ‘616. State whether the condemned lands are adjacent
and contiguous to a first-rate highway.
“17. State whether there are facilities of electricity’
power, and telephone in that locality. .
**18. State the distance between the condemned lands
and San Anteni# Urbanization, Grillasca Urbanization,
from Parque Atlético Montaner, Dr. Pila High Sehool,
_ the Vocational School, Hostos Avenue.
a Me ag ‘State whether or not the condemned land is
flat. :
Plaintiff furnished the information as : és hie name of the
expert appraiser ‘employed for the appraisal of the land
(interrogatory No. 1), the factors utilized to verify the .°
appraisal (interrogatory No. 6), the report of similax sales
considered for the appraisal (interrogatory No. 8) and the
topography of the land (interrogatory No. 19). It objected
- to the rest on the following grounds: as to interrogatories
Nos. 2 to 5, because an ident: al issue—the challenge of the
selection of the lands—has yes been decided in two
‘ previous occasions in a way contrary to the pretensions
of the defendant corporation; as to interrogatory No. 7,
which required a copy of the report of appraisal, because
it was inappropriate; as to interrogatories Nos.-9 to 12,,
34a ‘ bd
because they. concerned irrelevant matter; and as to the
rest, because they concern matter which is easily available
_to the proponent and within its reach. These objections
were sustained, and in order to review the action of ‘the.
. Condemnation Court we granted certiorari:
‘‘ In M artinez v. Superior Court, 85 P.R.R. 1, we ater
the rule of permitting—under certain conditions—the dis- .
covery of expert evidence in cases of condemnation. We
specifically authorized that the inspection or copy of, the
report of the expert appraiser be permitted when, as in the
case at bar, the taking of his deposition was not authorized.
Respecting interrogatory No. 7. the trial court erred -in
sustaining that the delivery to defendant ofa copy of the
report of the appraiser Felia was inappropriate. However,
in the order it shall render, it may impose whatever condi-
tions might safeguard the opportunities which the State
should have of adequately preparing itself for the hearing |
of the case, specially if defendant intends to use later the
testimony of experts to challenge the aforesaid report of
appraisal.
2. Interrogatories Nos. 2, 3, 4, 5, 9, 10, 11, and 12 are
directed towards obtaining information j in order to support
the allegation that the selection of the land was capricious
and arbitrary. Even when this same issue was decided.
adversely to the defendant corporation—after introducing
evidence to that effect—we prefer to discuss it so as ‘to
clearly establish the rule which should be. observed for the
* purpose of determining the appropriateness of this*allega- ©
tion and its limitations. |
In the brief filed before this Court, the intervene® admits that
.. the trial court committed error in sustaining the objections to inter- .
- rogatories 16, 17 and 18, because although they ‘dealt with infor- —
mation within the knowledge of the proponent, the object. pursued,
to obtain admissions, is one of the acknowledged ends in this pro-
cedure of| discovery of evidence. | We' icky his riterion. |
a res an ate
\
i
amie
ae
35a = |
In general terms it has been held that since the power
to condemn is an attribute inherent to the sovereignty of |
the State, the. only limitations that may be acknowledged
— to its exercise are that the property be devoted to public
‘use or purpose and that defendant be paid a just compensa-
tion therefor. Any doubt that might lurk as a consequence
of the language used in the opinion of United States v.
Carmack, 329 U.S. 230, 247 (1946), seems to vanish after
Berman v. Parker, 348 U.S. 26, 36 (1954), in which it was ©
recognized that an urban development agency had power
to acquire not only the dilapidated buildings, but also the
éntire area in which they are located for the purposes of a
“project to éliminate slums. It was stated that “‘It is not
for the courts . . . to sort.and choose among the various
pareels selected for condemnation,’’ and it was ‘added that
‘*The rights of these property owners are satisfied when
they receive that just compensation which the Fifth Amend-
ment exacts as the price of the taking.’* In fact, it has
been held that once it has been established that the use for
which the condemned property is destined constitutes a
public purpose, it is not for the. courts to review. deter-
minations on the nature.or scope of the right to be acquired,
the amount of land to be condemned, the necessity or the
‘adequacy of the place in particular, because this power
resides in the legislature and may either be exercised by
the legislature or delegated by it to public officers or
agencies. Rindge Co. v. Los Angeles County, 262 U.S. 700,
709 «(1923) ; Joslin Mfg. Co. v. City of Providence, 262U.S.
668 (1923); Bragg v. Weaver, 251 U.S. 57, 58 (1919);
Shoemaker v. United States, 147 U.S. 282, 298 (1893);
Boom Co. v. Patterson, 98 U.S. 400, 406° (1878) ; United
', States v. South Dakota, 212 F. 2d 14 (C.A. 8, 1954);
| ant: v. United States, 199 F. 2d 305, 306-07 (C.A. 9, —
3 For a detailed analysis of this opinion see foutante 50 of the
opinion delivered in Commonwealth v. Aguavo, 8a: P.R.R. 534,
583 (1958). ’ a ie a
oe |
baat ee x |
36a
1952) ; United States v. State of New York, 160 F. 2d 479,
480 (C.C.A. 2, 1947), cert. denied, 331 U.S. 832 (1947);
United States v. Meyer, 113 F. 2d 387 (C.C:A. 7, 1940),
‘cert. denied, 311 U.S. 706 (1940). See also, 48 Cal. L. Rev.
164 (1960) ; 12 Okla. L. Rev. 163 (1959) ; 42 Iowa L. Rev..
290 (1958) ; 17 N. Dame Law. 35 (1941); 24 Minn. L. Rev.
870 (1940). - In some places it is ‘acknowledged that the
selection of the property to be condemned may be challenged
~ when such selection is manifestly arbitrary, capricious or
unreasonable or when fraud or bad faith are shown,
Johnson et al. v. Consolidated Gas, Elec. Light and Power’
Co., 50 A. 2d 918, 923 (Md. 1947) ; Patterson Orchard Co. '
v. Southsoest Arkansas Corp.,.18 S.W..2d 1028, 1032 (Ark.
1929); State v. McCook, 147 Atl. 126, 128 (Conn. 1929);
Wilton v. St. Johns County, 123 So. 527, 535: (Fla. 1929) ;
City of Charlotte v. Heath, 40 8.E. 2d 600, 603 (N.C. 1946),
but a careful analysis will reveal: that this doctrine derives
its basis mainly from cases in which the state has delegated
its power to condemn to private entities which are dedicated
to public or quasi-public purposes, such as railroad, power
and electricity or public service companies. Such is not
the case at bar, since it concerns a condemnation under-
taken by a public agency for obvious public purposes, that.
is, for industrial development. Admitting that the purpose
is public, Commonwealth v. Fajardo Sugar Co., 79 PRR.
303 (1956) ; McCormick v. Marrero, Judge, 64 PRR. 250
(1944) ; People v. Eastern Sugar Associates, 156 F. 2d 316
(C.C.A. 1, 1946), cert. denied in 329 U.S. 772 (C.C.A’. 1,
1946), it is not up to us to review the exercise of wieainin-
trative discretion in the selection of the condemned lands
or their adaptability for the specific public use to which
they are destined. In Southern Ry. Co. v. City of Memphis,
148 S.W. 662 (Tenn, 1912), it is stated ‘‘But all other
incidents of the taking [with the exception of the purpose
’ of the condemnation and the fixing of the just.compensa-.
tion] are political questions, for the determination of the
sovereign; and aes judicial — ai the determination .
ps
-
37a
‘of the courts. Selecting the property to be taken, as contra-
distinguished from similar property in the same locality,
determining its suitableness for the use to which it is pro-
posed to put it, as well as_deciding the quantity required,
are all political questions, ‘which inhere in and constitute
the chief value. of the power to take. This power would
be a vain and empty thing, if the owner could contest the
advisability of taking his property rather. than his neigh- '
bor’s, or if he could interpose as a defense of the taking
that other property could be found ‘which would suit the
public purposes better or that he, the owner, was of opinion
- and could prove that the public needed more or less than
the quantity proposed to’ be taken.”’
But be it as it may, petitioner in this appeal i is mnie
at this stage of the proceedings from raising the defense
we have discussed, since an examination of the record
reveals that the withdrawal of the amount deposited by
the State as just compensation was sought and the cor-
responding check for the sum of $121,827.40 was actually
. drawn ‘in favor of: the corporation. ‘Mais being so, the
acceptance by respondent of the amount d@posited precludes
him from ger ig any other issue which does not relate
exclusively to the amount of the compensation. . Williams
v. City of La Grange, 98 S.E. 2d 617 (Ga. 1957) ; State v.
Highway Dept. v. H. G. Hastings Co., 199 S.E. 793 (Ga.
1938); Central of. Georgia Ry. Co. v. "Bibb Brick Co., 99
S.E. 126 (Ga. 1919). A party may not voluntarily accept
the deposited amount as just and reasonable. value of its
_* property and continue litigating the right of the otate to
condemn. :
3. Interrogatory No. 13 requires information on the test-
ing of the soil and copy of the reports which we assume
refer to the subsoil’s quality. Such a request is not in-
" appropriate, Martinez v. Superior Court, supra.
ion Part, * June 21, 1961 sha]l be modified i in the sense
| a eas
- The decision rendered by the.Superior Court, Condemna-
. a
38a ie
. \
of dismissing the ° presented \to interrogatories
Nos. 7, 13, 16, 17, and 18, and plaintiff shall be ordered to
answer them within the term and under the reasonable
conditions fixed by the trial court. As thus modified, it is
affirmed. 3
Exhibit I
a SAME TITLE) |
at judgment
; Division composed of he. Justice Blanco-Lugo as Chief
Judge of Division, Mr. Justice — and Mr. Justice
Davila. .
San- ae Peeis Rico, May 4, 1962
“For the reasons stated: in the ‘opinion delivered on this
date, the order issued on June 21, 1961 by the Superior
Court, Eminent Domain Section, is hereby modified in the
sense of dismissing the objections raised to interrogatories
Nos. 7, 13, 16, 17, and.18, and | as thus modified it is hereby
affirmed.
It was so ordered and decreed by the Court as. witnesses ,
the signatare of the Chief Justice.
(s) Luis Negron Ferninpez
Chief Justice
ae . I attest:
- (s) IGNACIO Brvees
Secretary
: ee.
_ Exhibit J
(Filed May 14, 1962)
(SAME TITLE)
Motion for Reconsideration”
To the Hon. Court: |
Now comes petitioner through its ; ciotanie counsel
and moves for reconsideration of the judgment rendered
_on May 4, 1962, insofar as the denial of interrogatories
Nos. 2, 3, 4, 5, 9, 10, 1, and 12 is concerned.
Our motion is based on. the facts clearly established :
in the record of this case, tending to show that when peti-
tioner challenged the selection of the lands in the trial
court, it-did so on the bagis of the oral and documentary
evidence introduced, whiGi undoubtedly proved its allega-
tion, whereas plaintiff, to wit, the Commonwealth, in- .
troduced no evidence and merely relied on the pleadings.
’ We understand that in actordance with the decisions
in United States v. Carmack, 329 U.S. 230, 67 S. Ct. 252,
L. ed. 209, and UnitedgStates v. Willis, 211 F.2d 1, if it
is shown that the government or agency in charge has
acted in an arbitrary nggmner, as happened i in this case, the
Court has jurisdiction to interfere in connection with
stich determination. The -doctrine established is in the
sense that when the designated officials act in bad faith
or so capriciously and arbitrarily that their action is
without adequate determining principle, the selection made
may be set aside by the Court entertaining the proceeding.
In Berman v. Parker, 348 U.S. 26; involving the exercise
of the ‘police power to protect the health of citizens, the
interpretation had undoubtedly to be more favorable to the
State, but i in the case with whieh we are concerned it can-
not be |said'that it is precisely the sic wins power bee is
' Y . \
|
a lh > . : Fs - 40a
involved, rather, it is a government program approved
by the Exvislature of Puerto Rico authorizing an agency to
condemn lands with the purpose of carrying out the pro-
gram, And that program, as we have proved here, is in
conflict with the development of agriculture in Puerto Rico.
. Petitioner also maves for reconsideration of the portion of
the judgment holding that petitioner is barred from raising
the afore-mentioned defense because it asked for the with-
drawal of the sum deposited by the Commonwealth as just
compensation, and that once it accepted the amount de-
posited it is estopped from arguing any other question not
exclusively related to: the amount of the indemnity. The ‘
Court overlooks the fact that-in the motion to withdraw,
funds it was expressly. stated that withdrawal was with-
out prejudice to the allegations made in the case. If the
_ Commonwealth surrendered the funds despite the manner
‘in which the motion for withdrawal is worded, the Com-
' monwealth, not the party who requested it under those con- .
ditions, is: the — party.
We also move for reconsideration of the portion of
the judgment in which the Court states that it is not proper
for the Court ‘to interfere once it is established that the
uge to which the property i iS intended i is a public purpose.
In United States v. Certain Real Estate, etc., 217 F.2d" -
-920, it is established that courts’ have power to ‘determine
whether the use for which the private property is to be
‘taken, under legislative authorization, is in fact a public
use. We think that the fact that the agency or the Legis-
lature should have determined that the purpose to which
the condemned parcel is to be dedicated is a public
~ use does not divest the Court of authority to determine
whether or not it is in fact. This is a judicial, not a
legislative, function. |
™ > fla
WHerEFOoRE, we move for reconsideration of the judg-
.ment insofar as the negative to answer the above-mentioned
interrogatories is concerned.
site Puerto Rico, May 11, 1962. .
Respettfully, Tin
Pepro M. Porrata |
- Cuartes R. Cupriti |
: (s) CHARLES R. Cuprit
“ Guinier : That on this same date I mailed, post paid,
-acopy of this motion for reconsideration to the Hon. Secre- ,
tary of Justice of Puerto Rico, counsel for respondent in
~ this case, to his address in San Juan, Puerto Rico.
Ponce, Puerto Rico, May 11, 1962. . .
(s) CHartes R. Currin
(SAME TITLE) —
o Order
| Division composed of Mr. Justice Blanco-Lugo as : Chief
Judge of Division, Mr: J ustice seaia and Mr..Justice.
Davila. |
ion. J van, ‘Puerto Rico, May 28, 1962 -
The foregoing motion for reconsideration is hereby
denied.
It was so ordered by the Court as witnesses the signa-
ture of the Acting Chief Justice. ¢ 3
. (s) Pepro Pérez PIMENTEL
: Acting Chief Justice
I attest : |
(s) Ignacio Rivera © o.
Secretary
%
ae ; . : : 42a Ge
Exhibit L
IN THE SUPERIOR COURT OF. PUERTO RICO,
EMINENT DOMAIN SECTION
Case No. E59-823
Sa
E59-825
CoNnDEMNATION
THe CoMMONWEALTH OF -PuERTO Rico, represented by
its Governor, Plaintiff
Vv.
70.8397 CurrpAs or Lanp located ,in Bo. Canas, Ponce and 7
Mario Mercapo £ Hisos, ET AL., Defendants
Findings of Fact, Conclusions of Law‘and J udgment
-At the. request. of the Puerto Rico ‘Industrial Develop- i
ment Company, on September 9, 1959, the Commonwealth
of Puerto Rico filed a complaint for condemnation against
Sociedad Mario Mercado e Hijos, seeking acquisition of the
_ property hereinafter described, and deposited the sum of .
$121,827. 40 as the estimated compensation to be ae there-
for.
On September 30 of. that’ nin year detwnitant moved to
_ set aside our order of acquisition and material delivery of .
the property to plaintiff.
We set November 9 to hear the parties in connection with
the merits of the motion, but at defendant’s request we
continued the hearing for the 23rd of that same month. In.
the order of continuance we deéreed that, if after hearing
the case on its merits, we should grant defendant an addi-
tional sum as compensation, such additional sum ‘would
not accrue interest from the daté the continuance was
prayed for until the date trial should ‘begin.
.
We held the hearing on the date’ set, evidence was’ in-
troduced; we gave the parties time to file briefs and on
43a °
March 23, 1960, we: entered an order dismissing the mo-
tion, giving defendant 10 days to answer the. complaint,
which, following an &xtension of _time granted, was an-
swered on April-16 of that same year.
On April 8 defendant appealed to the Hon. Supreme
' Court from our order and this: appeal was dismissed on —
plaintiff-appellee’ s motion on J une 6, 1960.
After the filing of other ehotionn regarding several
incidents, extending periods ,of time, filing of briefs, de-.
_fendant requested ‘the withdrawal of the funds deposited |
and subsequent to a hearing held on March 17, 1961, we
ordered the delivery of said sum.
We set May 8, 1961 for the trial, and gave adie ‘to the
parties on March 24. On the 30th of this month defendant .
filed an amended'answer.and on May 4 it moved for a con-
tinuance’ which was granted by us.
On May 11 plaintiff -was served by defendant with an i
interrogatory and it was objected to in part and answered
in part on-June 14. On June 21 we held a hearing and
after hearing the parties on the objections raised, we sus-
’- tained the objections, save for Nos. 7, 13, 16, 17 and 18 and
we ordered these answered.” It was not until June 20, 1963,
that these questions were answered.
On October 11 of this year we again st Denton 10
: to hold the trial but on account of the illness of defend- -
ant’s counsel, Mr. Charles R. Cuprill, we approved a stipu- -
lation of the parties agreeing to a continuance and again
we set January 31, 1963, to hear the case. On the latter
date the trial was finally begun, extending throughout Feb-
ruary 1, 26, 27 and 28; March 1, May 13, 14, 15 and 16.
After weighing the evidence introduced; both expert and :
documentary, and taking into. consideration our personal
experience during the inspection, these are our:
- 44a. |
FINDINGS QF FACT
Mar Puoseney
»
(1) The main puenecty from which the three condemned a
pareels hereinafter described dre segregated, known as
Hacienda Matilde, recorded at page 41, over, of volume 74,
of Pence, Puerto Rico, 29th entry, number 1, has an area
of approximately 4,000 cuerdas of which, 514 cuerdas have
‘for the past one hundred years been dedicatéd to the culti-
vation of : ‘sugar cane and the rest to natural pasture. It —
is located in Bo. Canas in the municipality of Ponce and
faces for along a considerable distance Commonwealth
Highway No. 2 leading from Ponce to Guayanilla. (See
Defendant’s Exhibit a, b and ¢ introduced at the session
of November. 23, 1959). . )
Conpenewe. PaRcELs -. ——_—--———
EE
Description:
(2) The parcels acquired by means of this Eminent Do-
main Proceeding are described as follows:
(a) Parcel No. 1—has an area of 26.8857 cuerdas and is }
adjacent on the North, along 374.04 linear meters, to the
former servitude of Compaiiia de los Ferrocarriles de Puer-
to Rico which, at the _time of the-eondemnation, b belonged :
to Puerto Rico Railroad Land and Development Company;
on the South, along 339.99 meters,-to Commonwealth High-
“way No. 2 leading from’ Ponce to Guayanilla; on the East,
along 353.37 meters, to lands of the main property; and on
_. the West along 259.40 meters, to Insuldyne Corporation.
It is almost rectangular in shape. (Defendant’s Exhibit |
1.). It is separated from No. 2 by a parcel of 9:58 cuerdas
_ belonging to Insuldyne Corporation, and from No. 4, by a
. strip of land belonging to P. R. Railroad Land and Develop-
ment Corporation.
_ Its topography is slanted from South to North, its mini-
mum elevation being towards the. South East - and the i
- 45a - :
maximum, towards the North. Between the highest point—
is 11 meters above sea level—and the lowest point—6 meters
‘below sea level—there: is a difference of six meters in
altitude.
It is crossed from East to West by two lateral irrigation
canals which, in addition to-irrigating it as well’ as part of
parcel No. 2, irrigated approximately 125 cuerdas located
on its Kast side. Two vertical irrigation canals crossed it
: from North. to South.
-(b) ‘Parcel No. 2—is a in shape and. was prac-,
tically subdivided, sinee it was. separated from parcel No. 1
by lands of the Insuldyne Corp. on its East side, from No. _
4, by the strip of the railroad, and faced. Highway No. 2
‘ on. its South side along 300 linear meters, The apex of the
triangle lay | on the West side.
It has an area of 7.7566 ouries and its catiiaie § is
slanted from South to.North, with a minimum elevation on
the South East section of 9 meters above sea level and the .
maximum of 12 meters ‘along its boundary with the strip |
of the railroad, on the North. —
Four. irrigation canals ereanell it from North to South.
“Another from North East-to South East, passing at:a dis-
tance of 6 meters from and parallel to the servitude of the
railroad. In addition to an artificial lake located on parcel
No. 4, hereinafter described in detail, there are two canals -
running towards the South below the strip of the railroad,
entering parcel No. 2 through the portion located at the
North East corner of the triangle, later turning towards
the East, entering the parcel of Insuldyne Corp., and going
on to irrigate parcel No. 1 and 125 cuerdas situated East of -
the latter, which form part of the main property.
(¢) Parcel No. 4—has an area of 33.6930 cuerdas and is
irregularly shaped. It is separated from parcels Nos. 1
and 2 by the strip of the railroad. Except for its South
and South East, boundaries? which are straight, the »re-
7 po
rad *
46a |
maining are irregular: On its: North side it. is adjacent to
a brook known as ‘‘Quebrada del Agua’’ and to Jands of —
_ defendant’s main property along.414.77 linear meters; on
« the South, along 154.24-meters, to Commonwealth Highway
No, 2; on the East, which is really the South East, along
861. 39 meters, to the strip of land of P. R. Railroad Land &
Development o.; and on the West, which must be: called
North West, along 712.17 meters, to lands of the Common-
. wealth, assigned to the Administration of Social ron,
where Rural, Canas Development i is located.
-With a slanting topography from South to. North, it has
on the North West a maximum elevation of 16 meters above
sea level'and a minimum elevation of the South East,
where it bounds on the. — del Agua” of 10 meters
above séa level.
Itis on this parcel that the artificial lake utilized to sup-
ply the various areas subject to irrigation, composed by the
three condemned parcels and the 125 cuerdas above men-.
tioned, located to.the East of Nos. 1 and 4, is located. It
oceupies an area of 3.70 cuerdas, equivalent to 14,600 square —
- meters and occupies a volume of 39,000 cubic’ meters. The .
soil and. subsail of the three saint is 8 firm, compact and
consistent.
?
_ ZONING
(3) None of the three parcels acquired lay within the
urban zone of the city of.Ponce nor had they been zoned
by the Puerto Rico Planning. Board. The point in the zoned —
area in Ponce closest to the condemned parcels is at a dis-
_tance of one and a half kilometers. —
‘Pusiic SERVICES
Ta
(4) Along Highway No. 2 there are accessible electric
- energy lines to bring this service to the three condemned
par¢els.”” ‘Telephone ‘lines pass through the strip of land
_ belonging to the P. R. Railread Land & Development Com-
—<
- a
“sence xt me : +
"pany. " ‘These _parcels lacked either pluvial or sanitary
sewer system and aqueduct. service.
In April 1960, 6,170 motor vehicles, public and private,
moved daily along Commonwealth Highway No. 2.
j - Vionner
-_ * .
(5) On September 11, 1959, that is, when title to the
- condemned parcels vented in the Commonwealth, the only
existing developments in its immediate vicinity were the
following: 7
(a) On its West side and adjacent to parcel No. 4, the
Social Programs Bureau,of the Department of “griculture
had established a rural community, known as ‘‘ Comunidad
. Canas’’ on a one hundred-cuerda farm.that had been sub-.
divided into 205 parcels and where approximately 1,000
persons of low income live in small frame houses lacking —
pluvial or. sanitary sewer, paved streets, for the latter are
dirt roads, and having no sidewalks or curbs. They only
have electric light facilities, because they obtain water
from faucets jointly used by. all the snhaiytante,
(b) Between parcels 1 and:2 there i is an industrial build-
: ing, the only one in the immediate vicinity of the three par-
_-eels. It is located on a parcel of approximately nine cuerdas:
belonging to Insuldyne Corporation. It is only at a dis-
tance of 1,600 linear meters, in the intersection of the Ponce
By Pass and former Highway No. 2, which is included
within the urban area zoned by the Planning Board, that
we find an industrial area. |
(ce) Ata distance of 250 linear meters, on the East side
of pareel No. 1, runs the ‘‘Quebrada del Agua,” crossing
below Highway No. 2, at a place where there is 4 depres-
sion. During heavy rains and twice or three times a year,
the water in the brook rises and floods the highway, inter- ~
rupting traffic for two or three hours. jag :
48a
iA
(d) Perla del Sur and San Antonio Developments are
the ‘closest residential areas to the three parcels and are
at a distance of approximately two. ‘kilometers and seven
‘hectometers.
*UNpEVELOPED Ursan LANDS
.*
(6) Within. the urban limits of the city of Ponce, zoned
for residential and industrial purposes, there are 4.900
Y “uerdas of land that at the time of the condemnation had .
not been developed, and most of them are still unde-
veloped to date. Of this number, of euerdas, 1,000
have been, classified as R-3 and 3,900 as R-1. Approx-
‘ imately 1,500 cuerdas are’ more tanniectpit is - located
Peay FAG, Bo onc scccectWeeccccccess 1,600 meters
From the. intersection of Los Ptepenes :
Highway and thé Ponce By Pass ....... 2,000 meters
‘From Santa Maria Catholic University . ,. .3,000 meters’
From Perla del Sur. Development ........ 2,400 meters
- From San Antonio Development ...<....2,700 meters
From Hostos Avenue ........ ‘sp eeeees++- 0,000 meters
‘From Villa: Grillasca Development psane ees 2,700 meters
ee
than the three condemned. parcels.
For heavy: industrial development purposes approxi-
mately 250 cuerdas have been zoned; and for light industry, -. ae
approximately 450 cuerdas.
Location 3
(7) The property with which we are concerned is located
between the city of. Ponce and the town of Guayanilla,
within the rural zone of the former. Wé list below the dis-
tances from the points indicated:
From the intersection of the Ponce By Pass and
From Interior Avenue at the point nearest
to FRAG (NO. BD on cies cessscecccces 2,700 meters
From the Plaza de Recreo of Ponce located. ee
_ North I East of the Se eee 4,600 meters
490
From Dr. Pila High. School, North of
BY ED cn cccucdeécdeiwkesncess 2,800 meters
From the Ponce Commercial Center, located
~. near the Plaza*de Recreo and Atocha
SS EE ee ae aie ks can 4,800 meters
From the port area ...... yesscgseccesss¢s6000 meters -
From the Ponce Shopping Center iskeanke 3,800 meters
- All the points mentioned are located within the urban
area or limits’ of the city of Ponce. :
. . . :
e:* Tarnc. ‘ 3 ;
(8) According to a research made in 1960 by_the Puerto -
Rico Department of Public Works,-in eooperation with —
’ the Federal Department of Public Works, as shown ina
- plan drawn up by these agencies (Plaintiff’s Exhibit No.
4), the heaviest motor-vehicle traffic was in front of. the
_Plaza de Recreo of*Ponce with 13,090 units daily, and in
order of intensity, it is followed by: Hostos Avenue, near
Interior Avenue, 11,980 ‘vehicles; ‘highway leading -from.:
Ponce to Juana Diaz, in front of La Rambla Development,
11,280 vehicles; Villa Street, close to its intersection with,
former Highway No. 2, 10;100 vehicle; this same road,
in front of San Antonio Development, 800 vehicles ; Com-
-monwealth ‘Highway® No. 1, in its intersection with ‘the .
Ponce By Pass, 7,790 vehicles; and in front of the con-.
~ demned parcels, Highway No. 2, from Ponce to a,
6,170 vehicles,
Pista Pissiaer | or Aquepuct anD SEwER SERVICES
(9) From the main pipe of the’ size considered as most
adequate to install a pipe 8 inches in diameter, needed to
bring water service to the condemned ‘parcels, there is a
distance of 2,300 linear meters. The distance between the
sanitary sewer main pipe, 30 inches in diameter, from the
crossing of Pampanos and Guayanilla Highway,- up to-
parcel No. 4, es is the farthest, is — linear meters.
50a
‘Best Use es
(10) ‘aking into ‘consideration. its location, its vicinity, .
the fact that it.is part of a property located 3 in the Ponce
rural area; that it had not been zoned, its lack of water
and sewer services; taking also into account that within .
- the urban zone of the city and zoned by the Planning Board
for residential and industrial purposes, theré were approxi-.
mately 4,900 undeveloped cuerdas of land, we conclude that
the best use of the:condemned property at the time title
thereto vested in the Commonwealth, to wit, September 9,
1959, was agricultural, but with an increased value for .
these purposes: in view of the possibility that within a
reasonable period of time it could be dedicated to industrial »
or residential development purposes. Although it is quite.
hard to estimate how long it-would take for this potentiality .
to become a reality, we. dare conclude that, due to the
dynamic rhythm of the growth of the economy from a com-
mercial and industrial point of view, in Ponce and its sur-
roundings, a five-year period might be considered as rea-
. gonable.*
bd
Coer OF Urpan iat iene OF Gouvenaus PARCELS:
(11) The determination of the teat use of the condemned
land, as indicated in the preceding paragraph, not only
compels us to analyze the sales of lands contemporaneous
with fhe date of their taking, but also obliges us to examine
its development for urban purposes in the event its owner
or any voluntary purchaser had risked ees it in
September 1959.
t
1 From Siateilinn 9, 1959, on which date the three parcels were
taken, until the day we made the inspection, towards the end of
May 1963, close to four years have gone by. We notice that of the .
68 cuerdas taken, there still remained a large undeveloped tract
of land. Likewise, adjacent lands, on the East side of the parcels
: , and to the West of Canas Community, along Highway No. 2, _were
still being dedicated to ee ae.
{
ee
a
5la |
-In the first place, it was indispensable to bring aqueduct
and sewer facilities to the three -parcels. Extending the
pipes 8” in diameter for 2,300 linear meters, in order to
: bring water service to 400 lots, which would have resulted"
for dwelling purposes in the 68 cuerdas, would have cost
$60,000.00. Bringing pipes for sanitary sewer service, to- «
gether with pumps, ete., would have cost $165,000.00. Over
‘and above the value of ‘the land, in the condition it was at
the time it. was taken, these two investments would have
increased the cost per cuerda by $950.00 and $2,400.00, re-
spectively. The Public Works Department. required, in
order that the parcels could bé developed, the widening of
the right of way of Highway No. 2 by 2.54: meters wide and —
815 meters long. Cutting the ground, filling, and paving
the required strip cost $6,904.00, increasing the cost by
$100.00 per cuerda, more or less.
It would have been necessary to relocate the various irri-
gation canals in order to continue this service with regard:
to the 125 cuerdas above mentioned. The cost of this. reloca-
tion? would. have reached $26,483.00. 'Phis expenditure is
equivalent to an additional cost of $385.00 per cuerda.
Filling, tamping, and suiting the area occupied by the
lake so that it could be integrated to any proposed urban
development, and relocating it somewhere else on the main
property, hoc have cost approximately. aia cel This
?The Industrial Development anes relocated . the: aforesaid
canals. investing the amount indicated. . Hence, the 125-cuerda
parcel to which we have referred has sulleved no harm in this
concept as a result of the condemnation.
3 Notice that the actual cost of relocating the lake amounted to
, $4,675.00, as stipulated by the parties when the trial was nearing
its end. The principal investment ‘would have been the filling of
the existing‘lake. In addition to the soil‘on its banks that could
be remaved for. this purpose, an additional filling of approximately
50,000 cubic meters was required, and it had to be loaded and trans- -
ported from another place at.a cost‘of 50¢ per cubic meter.
52a
.
-
increases the cost of the ‘nad by approximately $435.00 per :
cuerda.
This condition could not- have essaped any capable and
informed potential urbanizer, He‘ would have had to con-
sider that to the price per cuerda paid by him he would
have to add the sum of $4,270.00.
Notice that this investment does not include the complete
construction of the project, inasmuch as.it is later that the ©
land is begun to be replanted, streets traced and con-
structed, including sidewalks, curb, and paving ; water, light
and sewer connected to each lot, in addition to the financing
expenses and reasonable profit of the urbanizer for the
construction of the work.
Sates |
¢ :
(12) In order to be able to determine the additional value
- of the parcels over and above their agricultural value on
the date of their acquisition, due to the fact that in a rea-
* sonably future period its best use might be for urban, de-
velopment, thus obtaining a better financial use thereof, we
must examine sales of other lands located in the area of °
the city of Ponce. We shall make -adjustments. insofar as
pertinent, and in the comparison process we shall deter-
mine the differences and similarities existing between those
and the ae parcels. Let us see:
ie * (Defendant’ s Exhibit No. 6.) On. March 8, 1958,
José and Francisco Salich sold to Puerto Rico Metallic
Works a: parcel of land of 3.89 cuerdas at the rate of ©
. $4,062.00 per cuerda. On September 17 of the same year
the Planning Board approved a resolytion (Plaintiff’s Ex-
hibit No. 7) by virtue of which it declared that the best use
thereof was industrial. As a matter of fact, that was its
best use at the time of the sale, for it was practically ad-
jacent to other industries, such as Ponce Caney Corpora-
tion and Buena Vista Dairy. . | . :
53a
These are its bounidarions
North: Vallas Road and a Sanctuary, ry
’ South and West: Bucana River,
East: Old Road leading to La Playa.
It is very near to ‘Commonwealth Highway. No. 1 where
the latter intersects the Ponce By Pass. It is at a distance
of 320 linear meters from Mercedita Development; 600
meters from Buena Vista; 300 meters from Constancia ;
2,300 meters from the Plaza de Recreo of Ponce, ‘and ap-
proximately 7 kilometers from the condemned parcels.
The main pipe to which the sanitary sewer pipes could »
be connected was at a distance of 350 linear meters; and it
had. light and electric er aqueduct water; and cal
phone services. —
Because it was in fact a subdivided parcel, becuues it was —
practically » integrated into an industrial and residential
area, because of its proximity to the city of Ponce, because .
it had light and electric energy, water, telephone services,
and because the sewer system was readily accessible, be- —
cause of its smaller size, and beeause it did not require any |
extraordinary expenses to be developed, this parcel of land |
exceeded the condemned parcels by far as to value.
| b. (Defendant’s Exhibit No. 11.) The parcel we are
about to examine belonged to Tomas and Maria Inmaculada
Bota, and by Deed No. 22, executed before Notary Public
Lorenzo Lagarde Garcés, on September 26, 1957, the former
sold his share of 20.15657. cuerdas to Puerto Rico. Road
Contractors at the rate of. $4,834.83. His sister, Maria
Inmaculada, sold her share of 76.42173 cuerdas on the same
date, by Deed No. 77, executed in Porice, Puerto Rico, be-
fore Notary Public Rafael Hernandez Matos, to the same —
corporation at the same price per cuerda.
_ It is adjacent, on the North to Villa Divad~ens of the .
most important arteries in Ponce—-to Roosevelt Street,
Camino de los Tendales, Miguel Martiné, lands of the Ponce
54a
Municipal Housing Authority, Commonwealth Highway
leading from Ponce to Guayanilla, lands of Dr. Pila High
School, and lands of Ponce Cement Corporation; on the
South, to .lands of Ponce Cement Corporation, Los
Pampanos dirt road, lands of Paquito Montaner Athletic
Park, and, again, Ponce Cement Corporation; and on the
West, to Ponce Cement Corporation, Carlos M. Santiago,
Los Pampanos dirt road, and lands of Miguel Martiné.
We notice that this property was within the urban limits
of the city of Ponce and had been zoned to be developed
for residential purposes. In addition to begin adjacent to
the aforesaid streets, on the date of the sale it had already
been planned to construct Interior Avenue of Ponce, 33.60
linear meters wide, which, starting on Hostos Avenue runs -
towards the West, crosses in front of Santa Maria Catholic
University, passes in frent-ef Villa Grillasca, goes on to
intersect highway No. 2 and to cross ‘San Antonio Develop-
ment. In the future said avenue will reaeh highway No.
432 leading from Ponce to Pefiuelas. This avenue occupies
a strip 700 linear meters long and 33.60 wide belonging to
the Bota Canet parcel the object of this analysis.
The parcel had water, light, electric energy, and ‘tele-
- “phone service, and the sanitary sewer pipes could be con-
~ nected through a strip of land 10 meters wide and 151.81
‘meters long located between the lands of Dr. Pila High
School and the lands of Baldorioty Development.and lead-
ing to highway No. 2 on which one of the main pipes of the
sewer system of Ponce, 30 inches in diameter, is located.
-In our judgment, and we so hold, the parcel involved _
in this sale was far better than the condemned parcels
because it-is within the urban zone of Ponce, was dlready
zoned for residential development; because it had water,
light, and telephone service, needing a small expense in
connection with the sanitary sewer; because of-its vicin- °
ity and location; because it was crosived by a first-rate
pis highway, etc., ete.
00a
e. (Defendant’s. Exhibit No. 7.) On February 14, 1958, .
Sucesién Rosaly sold to Ponce Builders Corp. a parcel
of land having an area of 51.72 cuerdas at the rate of .
$5,020.00. per cuerda. Located Northwest of the city and—
zoned as R-3, it is within the Ponce urban area. It is
an extension of La Rambla Development, of which seven °
streets ended on the parcel involved in this sale. It had
water, light, sewer, and telephone, and these services
- were extended when this parcel was developed and inte-
grated into the original La Rambla Development.
As previously noted, in front of La Rambla there is a
daily traffic of 10,040 vehicles. A commercia] area of a
~ local nature extending for iigtienaniind 400 linear meters _.
is established there. —__ a
—
a
~ Because of its location, vicinity, ‘urban nature, and
zoning ; because of the public facilities and services it has; -
because it is near a local commercial area established
‘right in its front; because the cost of developing it is
less and because it -lacks the physical liens affecting the
condemned properties, the. value of this parcel is greater
by far than the value of the parcels acquired by means of
this proceeding. ©. -
d. (Defendant’s Exhibit No. 8.) On June ‘26, 1958,
- Reparada Development Corporation sold to Cooperative de
Hovares Perla del Sur a parcel having an area of 21.636
cuerdas, at the rate of $8,000.00 per cuerda. It is adjacent
on the North, along 123 linear meters, to lands of the seller
‘Reparada Development Corporation; on -the South, to
Ponce Exterior Avenue, also known as Ponce By Pass,
along 123 meters; on the East, to Villa Grillasca De- -
velopment: along 683.41 meters; and on the West, along -
677.74 meters, to more lands of the seller. Three streets
of Villa Grillasea Development ended at this parcel, and
said streets-.carried light and electric energy lines; aque-
duct and sewer pipes, and telephone lines, which services
could easily be extended if the parcel were developed.
e ia
=
56a
It is only 140 linear’ meters away from Ponce Interior
Avenue, but through other streets it had access. to.said
avenue which in turn meets Exterior Avenue through
Capitan Correa Street. It is located 400 meters away
from Santa Maria Catholic University, 150 meters from
Santa Maria Development, 150. meters fram Mariani and_
Mariani Extension Developments; 600 meters ~froi the
Ponce Shipping Center, Dr. Pila School, and Vocatjonal
School; 700 meters from the ball park.
_ The condemned parcels are at a distance of 3,000 linear -
meters from the parcel now. being described.
Because of the condition of the aforesaid parcel when
the sale took place; because it was -integrated into
an area intensively devéloped; because of its enviable
‘vieinity; because it had every public service; because it. -
lay within the urban zone and had been zoned as R-3, in
short, because of its excellent and wonderful location, this
parcel was an extremely better value than the condemned
‘parcels, :
-e. (Defendant’s Exhibit No. 9.) Natalio Encarnacién
sold to Luis Colén Alustize on October 27; 1959, a farm
of €.85 cuerdas at the rate. of -$1,700.00 per cuerda. It is
adjacent, on the North and East, to highway No. 132
leading from Ponce to Peiiuelas, and on the South and West
to Marruefos River. It is level and is flooded during
heavy rains. |
The parcel was not zoned at the time of the sale which,
we note in passing, is contemporaneous with the date on
which the condemned parcels were acquired. It is three
kilometers away from the Ponce zoned area. The site
service it had was electricity.
In value it was somewhat lower . than the condemned
parcels.
f. (Defendant 's | Exhibit No. 10) The parcel involved —
in this sale constitutes an extension of the urbanization
developed on the parcel previously described in subdivision
57a = *
~
c¢que Defendant’s Exhibit 8, also known as Perla del Sur
a Development. It was sold by Reparada Development Cor-
poration to Cooperative Perla-del Sur in August 1960; also —
at the rate of $8,000.00. It is modified‘by-the same factors
~as the parcel precedingly described, for which reason we
need not. repeat now.
g. (Defendant’s Exhibit No. 12.) On May 26, 1959,
Reparada Development Corporation sold to’ Southern
Realty Corporation a parcel of Jand of 20 cuerdas at the .
rate of $9,500.00 per-cuerda. Facing Exterior Avenue
along 307.798 linear meters, it is located in front of Villa
Grillaseca Development, close to Catholic University, was
zoned as R-3-and had all the public scrvices and facilities
described under subdivisions ‘‘e’’ and ‘‘f”. Therefore, its
value is greater than the value of the condemned parcels.
h. (Plaintiff’s Exhibit No. 12.) On October 19, 1957,
Mrs. Maria Monserrate Canals Arriba sold to Félix Juan
Serrallés Sanchez and others a parcel. of land having an
area of 60.55 cuerdas for the sum of $215,000.00, that is,
at the rate of $3,550.67 per cuerda. -It is adjacent, on the .
_ North, to Bucand River; on the South; along 400 linear
meters, to Exterior Avenue or Ponce By Pass; on the East,.
‘to Tenerfas. dirt road, which separates it from lands ofe
Allah, Marino Torres, and Juan Bota Flores, and to lands
of Sucesién Juan ‘Torruella Cortada; and on the West, to
lands of Emilio Fagot. (See Exhibit.‘‘A’’ of both parties. )
The parcel is located north of the city, in front of Buena
Vista Development and is adjacent to La Alhambra De-
velopment, one of the most exclusive developments in
Pénce. It is also near Mercedita Development and is 500
linear meters away from the intersection of Commonwealth
Highway No. 1 and Ponce By Pass. —
_ It is level all throughout. The sanitary sewer system
‘ran along its front and it had every other public service ©
‘and facility. Unlike the condemned parcels it had no filling -
problem, it was within the urban zone, and its best use was
58a
: being developed for urban purposes. For all these reasons
it'was better than the parcels in —— and had a a greater
value than the latter.
STIPULATION . ae
(13) Near the end of the trial the parties presented a —
- stipulation, that was approved by us, in the sense that if .
after weighing the evidence we should reach the conclu-
sion that the best use of the parcel, on the date of its ac-
quisition, was agricultural, which value increased by t
potentialities of being urbanized in a reasonably near! fu-
ture, plaintiif would be bound to pay the cost of relocating ;
_ the lake located on parcel No. 4,
The aforesaid relocation was. carried out by defendant |
ata cost of $4,675.00. > ;
CONCLUSIONS ‘OF LAW
' 1.°The Superior Court of Puerto Rico, Eminent Domain
Section, has jurisdiction over the parties and over the sub- —
Ject-matter in question.
2. The Commonwealth of Puerto Rico is authorized by
"law to acquire this. property by eminent domain for public
use and the purpose § for which it was acquired is. a public
use.
3. By order of. March 23, 1960, we dismissed the allega-
tions, objections, and pleadings raised by defendant against
-the complaint. Defendant reproduced the same pleadings
and -objections as special defenses in the ‘answer it filed
on April 16 of that same year. We ratified our order, not
only on the same grounds advanced at that-time but also
because defendant, in withdrawing the funds that had been
deposited in court and which represented the amount of the ur
appraisal of the condemned property, waived those objec- -
tions and pleadings, thereby leaving for decision merely :
the controversy in éonnection with the valuation.
59a
4. Inasmuch as the only question in issue is the amount
that plaintiff is bound to. pay to the other party fox the
property, defendant came_te_secupy the position of plain-
tiff and as such it had the burden to prove by means of ,
authentic and convincing evidence that it was entitled to .
collect an amount greater than the one deposited by plain-
tiff as the value of the property. This issue was thus de-
cided in People v. Garcia, 66 P.R.R. 478, iri which it was
also held as follows: ?
‘... The rationale of.this rule is that, as to the
'. amount which petitioner has deposited as just com-
pensation, there is no controversy, and the only ques-
_ tion is ~whether the compensation is more than the
amount deposited. Therefore, the issue consists of the
owner’s contention to the effect that the compensation
should be greater than the amount deposited and the’
denial of this assertion by the petitioner. ... .”’. (66.
P.R.R. 478, 481 to 482.) |
Defendant’s wiihioien ‘has not convinced us that it is
entitled to an amount larger than the sum deposited. Had
_ we held any doubt as to this conclusion, which is not the
‘ease, such doubt would have been dispelled when we con-
sidered and compared the lands involved herein and those
sold by Mrs: Maria Monserrate Canals Arriba to Félix
J uan; Serrallés and others as well as the price paid there-
for. (See our Finding of Fact No. 13, subdivision H.)
In consideration of the foregoing findings of fact and
conclusions. of law, the complaint is hereby granted and.
judgment is entered with the following pronouncements: _
| JUDGMENT
1. We hereby declare and decree that title to the con-
demned property in fee simple absolute vests in the Com-
monwealth of Puerto Rico for the use and benefit of the
Industrial. Development Company of Puerto Rico.
‘ |
60a
_ 2. Defendant’s argument in-the sense that the value of
the condemned property at the time of its acquisition
amounted to $409,250.00 and not to $121,827.40, which was
the sum deposited in the office of the Clerk of this Court, |
is hereby dismissed. .
3. Plaintiff is ordered to oe in this Court the sum >
of $4,675.00, representing defendant’s -investment .in the.
relocation- of the lake lecated on Parcel No. 4. This sum |
shall be deposited with interest at the rate of 6% per
annum computed from September 9, 1959, until Novem-
ber 9, 1959, on which date defendant, for the first time, re-
quested a continuance of the trial; thereafter, from May
. 26, 1961, on which date plaintiff moved for an extension of -
time to answer the interrogatories, until the date on which —
said additional ‘sum shall be’ deposited.
4. It is hereby declared that co-defendants Eufemia
. Riera Duborg; the Commonwealth, by reason of the com-
plaint filed against Mario Mercado e Hijos for dissolution
of sociedad; the latter, by reason of the attachment levied _
to secure the payment of $137,506.20 as income taxes, con-
sidering that the Secretary of the Treasury approved,a
payment plan therefor; and the latter, by reason of de-
linquent ‘land taxes, considering. that it has been proved
that these had been paid to June 30, 1960, have no interest
whatsoever in.the funds: deposited ; and the elimination of
John Doe and Richard Roe is hereby ordered inasmuch as
-they have no interest whatsoever. in this case. | :
_This judgment is entered without costs.
Let this judgment.be filed and served.
Entered in San Juan, Puerto Rico, on this 11th day of
September 1963.
. @ FP. Santos Bonces
neuen Judge
I attest: .
Clerk
a™
x.
.
6la
Exhibit M -—
(Same TITLE) ;
Notice of Appeal |
! To the Clerk of the Superior Court of Puerto Rico, Emi-*
nent Domain Section, and to Plaintiff: ;
~ You are hereby notified that defendant, Mario Mercado
e Hijos, feeling aggrieved by the judgment entered by this
~ Honorable Court in the instant case on September 11, 1963, ~
~ APPEALS therefrom to the Honorable Supreme Ccurt of
Puerto a ; Ti
The following constitutional questions : are present? in this
appeal: .
. The judgment appealed from deprives appéllant of its
property without’ proper compensation.
The Court, in determining i in its judgment that the best
use of the condemned property was agricultural, did so
against the evidence introduced, without .any basis there-
for in the record, arbitrarily and capriciously, denying ap-
pellant’s.right, guaranteed by the Constitution of the
_ United States of America as well as by the ee
of the Commonwealth, to a fair and impartial trial.
In its judgment the Court, disbelieving Siaadepeel-
lant’s evidence without justification, denied it the due
process of law.and deprived it of its property in violation
of the due process clause of the Federal Constitution and |
‘of the Constitution of the Commonwealth of Puerto Rico.
In this case, the condemnation does not constitute a pub- —
lic use as contemplated in the Fifth Amendment to the
Constitution of the United States of America incorporated .
in the Fourteenth. Amendment of that same Constitution.
The use of the power of condemnation to depri e an
established industry of its source of raw material i in order
62a
to later deliver the lands in question to private enterprises
for the operation of industrial establishments, is an un-
lawful exercise of the power of condemnation and the ac- *
tion of the Development Company constitutes a violation
of the restriction included in | the Act authorizing it to
expropriate.
Ponee, Puerto Rico, Odtober 3, 1963.
~~ Respectfully submitted,
v7?
Pepro M. Porrata and
Cuarues R. Currin
‘Counsel for Sociedad Mario
Mercado.e Hijos,
» Defendant and Appellant
By: |
(s) Cuartes R. Cupra
Of Counsel |
Box 1224, Ponce, P. R.
I Centtry: That on this same date I mailed, post paid,
.a copy of this Notice of Appeal to the Hon. Secretary of
Justice of Puerto Rico, counsel for plaintiff-appellee in
this case, to his address in San Juan, Puerto Rico. That
in this’ city of Ponce there is a regular, and daily mail
service between the city of Ponce and the city of San
_ Juan, operated by the ‘Federal Government.
Ponce, Puerto Rico, October 3, 1963.
(s) Cuartes R. Cupritn
Counsel for Defendant and
Appellant
63a
- Exhibit N
IN THE SUPREME COURT OF PUERTO RICO
Appeal from the Superior Court, Eminent Domain Section
| AP-64-24
‘CoMMONWEALTH OF PuERTO Rico, etc., Plaintiff-A ppellee
Up wd ° Vv.
tee)
SocrepaD DE Mario MERCADO E Hisos, Defendants-A ppellants
CoNDEMNATION ~
Division composed’ of Mr. Justice Pérez-Pimentel. as ©
Chief Judge of Division, Mr. Justice Blanco-Lugo, and
Mr. Justice Davila
Judgment
San Juan, Puerto Rico, May 13, 1965
The first three errors assigned by appellant were ad-
versely decided to it in Mario Mercado e Hijos v. Superior
Court, 85 P.R.R. 354 (1962), especially considering the .
withdrawal of the sum deposited by the Commonwealth in
order to obtain the’ declaration of title and delivery of the
possession of the condemned ‘parcels.
It remains only to consider the fourth error _assigned
challenging the weighing of the evidence by%the trial court
- regarding the valuation aspect. Appellant’s argument
rests on the allegation that the best use of the lands if for
residential, nof agricultural purposes. However, after
reading the opinion delivered, it is apparent that the judge
did not merely fix the agricultural ‘value,, but that he also
considered the increase in this value on account of the pos- .
sibility-that within a reasonable period of time estimated
by him at five years, it might be. dedicated to industrial’
or residential development purposes. As usually happens
in these cases, the opinion of two informed persons is in-
64a
volved, each one attempting to lay stress on those factors
which in his opinion favor -his personal conclusion. Al-
‘though we are free to adopt our own views insofar as
evidence of an expert nature is concerned, Commonwealth
v. Fonalledas, 84 P.R.R. 552 (1962), the opinion delivered
_- by a magistrate specialized in these matters, deserves a
special deference, especially when it reveals a careful
analysis and’ wise pondering of the evidence. After read-—
ing the testimonies of the experts, it cannot be said that
appellant was prejudiced in connection with the valuation,
The judgment entered by the Superior Court, San Juan .
Part, on September -11, 1963, is hereby affirmed.
It was.so ordered and decreed by the Court as witnesses .
the signature of 7” Acting Chief Justice.
(s) PEDRO PéREZ PIMENTEL -
A@ing Chief Justice
I attest: és
(s) Ienacto Rivera
Secretary
(Filed: May 26, 1965)
oa (SAME TITLE) | as ;
7 Motion for Reconsideration
Hon. Court:
Now comes defendant-appellant _— through its under-
signed counsel and respectfully-states and prays: -»
1. That on May 20, 1965, an order was entered in this
ease denying the retention of the mandate.
- 2. That defendant- appellant moves for reconsideration
of said order on the following ee |
65a
a. In the answer to.the complaint in this case sub- °
stantial questions were raised under the Constitution
of the United States.
.b. This case involves the condemnation of private.
property for a so-called public use which always in-
_yolves a constitutional question under the’ Federal
Constitution.
c. te this case the property is condemned for a use
that appellant alleges is not the public use contem-
plated by the Constitution of the United States, that
is, private property is condemned in order to give it |
to other private individuals for the establishment of
private industries. ‘
d. That in this case there is no need to give a bond
because the property was delivered te plaintiff-ap-
_ pellee when the complaint was filed and the =
presents no harm for it. —
|
e. That in this case a substantial federal question is
involved.
WHEREForE, we pray the Hon. Court to reconsider its
order denying the retention of the mandate. © ;
Ponce, Puerto Rico, May 24, 1965.
nn requested,
|
Yepro M. Porrata and
Sale se a Caries R. Curr
Counsel for Defendant i
Appellant ©
By:
(s) Cartes R. Cupritn
Of Counsel
Box 1224
Ponce, Puerto Rico
| 66a
_. (SAME TITLE)
Division composed of Mr. Justice Pérez-Pimentel as Chief
Judge of Division, Mr. Justice Blanco-Lugo, and ‘Mr.
Justice Davila
Order
San Juan, Puerto Rico, May 27, 1965
Inasmuch as the constitutional questions referred to by
defendant-appellant were waived when it withdrew the
.sum deposited by the Commonwealth as just compensation,
Mario Mercado e Hijos v. Superior Court, 85 P.R.R. 354
(1962), the motion for reconsideration is hereby denied.
It was so ordered by the Court as witnesses the signature - ©
of the Acting Chief Justice.
_(s) Pepro Pérez-PIMENTEL
_< -- Acting Chief Justice
I attest: are |
(s) Ienacto Rivera
Secretary
_ Exhibit O
(SAME TITLE)
(Filed: June 4, 1965, Supreme Court of Puerto Rico)
Notice of Appeal
CoMEs Now Mario Mercado e Hijos thrvigh its under: _
signed attorneys and serves notice that it appeals to the ©
Supreme Court of the United States of America from the.
judgment rendered by the Supreme Court of Puerto Rico
in Civil Case No. 64-24, Condemnation Proceedings ap-
pealed from the Superior Court of Puerto Rico, Eminent
Domain Section.
67a
Ss
Mario Mercado e Hijos, appellant herein, is a partner-
ship organized under the Civil Code of Puerto Rico and it
owns and operates a sugar mill known as Central Rufina in.
the town. of Guayanilla, in the southern coast of Puerto
‘Rico. Appellant owns several thousand acres of land for
the cultivation of sugar cane to be processed into sugar
at the said mill.
The appellee is the Commonwealth of Puerto Rico, plain-
tiff, in the lower courts, represented by its Governor.
This appeal is taken .on the judgment entered ‘by the -
Supreme Court of Puerto Rico in--Civil Case No. 64-24,
Commonwealth of Puerto Rico v. Mario Mercado e Hijos,.
Condemnation Proceedings, on May 13, 1965, and which
was notified to the appellant on that same date.
Said judgment was entered by the Supreme Court of -
Puerto Rico affirming the judgment of the Superior Court
_ of Puerto Rico, Eminent Domain Section,. condemning
68.3353 cuerdas of land from appellant and transferring
title to the’ Commonwealth of Puerto Rico.
I
The following portions of the record will be en
to this appeal and must be certified by the Clerk of the
Supreme Court of Puerto Rico and filed with the Clerk of
_the Supreme.Court of the United States:
3s Complaint filed in the Superior Court, Eminent Do-
main Section, Motion of plaintiff for immediate acqui-
sition and ruling of the Court. '
2. Motion filed by defendant set aside taking.
3. Transcript of hearing on this motion.
os Ruling of the Superior Court on the above motion.
— nett =
ee Oe
see
68a
6. Writ of Review of thé above ruling to the Supreme
Court of Puerto Rico filed by defendant. —
6. Reply and amended reply filed by defendant i in the
Superior Court.
7. Interrogatories served on plaintiff.
8. Objections to the said interrogatories.
— 9, Ruling of the Superior Court on the objections.
10. Writ of Review to the Supreme Court of Puerto Rico
_ filed by defendant..
11. Ruling of the Supreme Court of Puerto Rico on the
above Writ of Review — at vol. 85 P.R.R.
354).
11(a). Motion for withdrawal of funds filed by appellant.
12. Testimonial. and documentary evidence -presented
during the hearing of the case including rulings of
the Superior Court.
13. Judgment of the Superior Court entered on Sites:
ber 11, 1963 in the case.
-. 14. Notice of Appeal to the Supreme. Court of Puerto |
Rico on the above judgment.
| 15. Judgment: of the Supreme Court of Puerto Rivo on
said appeal affirming judgment of the lower court,
which is the judgment herein appealed from.
16. Motion to withhold mandate filed by appellant before
the Supreme Court of Puerto Rico. -
: 17. Ruling of the Supreme Court of Puerto Rico on above
motion.
18. Motion for Reconsideration of the above ruling filed
. by appellant.
19. Ruling of the Supreme Court of Puerto Rico on above
motion. “* é
69a
* Jurisdiction of the Supreme Court of the United States
is invoked. under the provisions of Section 1258, par. 2,
Title 28 U.S.C.A. The Supreme Court of Puerto Rico has
the status of a State Court in matters of appeal to the Su-
preme Court of the United States (Pub. Law §87- 189
(1961)). |
The validity of Law. No. 99 of Apel 18, 1952 ‘tken of
Puerto Rico Annotated, Vol. 23, Sec. 278 (g) and (n))
which authorizes the condemnation of private property by
the Governor of Puerto Rico on behalf of the Puerto Rico
Industrial Development Company to be sold or leased to
private individuals for the purpose of setting industries
(tax exempted) on such properties is in issue in this ap-
peal as being repugnant to the Constitution of the United
States of America.
TI | a
In this case the Commonwealth of Puerto Rico con-
demned 70.8397, cuerdas of land on behalf of the Puerto -
Rico Industrial “Development Company in 1959 of which |
_ 68.3353 were the property of Mario Mercado e Hijos, ap-
pellant herein. The government depésited $121,827.40.
The condemned land was to be used by the Puerto Rico
- Industrial Development Company as an industrial site for
tax- exempt plants. The government filed-a motion for
immediate acquisition and possession was given by -the
Court of Eminent Domain. When the case finally came up
for a hearing in 1962 there were several plants already in
operation. ;
Appellant herein raised several constitutional issues in
the lower court alleging that the proposed use was not a
public use as it is contemplated in the Constitution -of .the
_ United States_of America and that arbitrary action had
been taken in the selection of the land to be condemned.
As a final defense it was alleged that the-compensation
‘deposited was not the just and fair value of the land. }
70a
~ Appellant operates a sugar mill and it raised part of
its raw material (sugar cane) on the land condemned. This
land formed part of the fields under sugar cane cultiva-
tion. To deprive appellant of this land and to give it to
a private individual for his own private use, is an abuse
of the right to condemn land.
In affirming the judgment of the Superior Court, the
Supreme Court of Puerto Rico have held that the use is
a public one and the compensation awarded is just arid fair.
‘In so doing the Supreme Court has committed grror that
must be reversed by. the Supreme Court of the United
States.
- A copy of this Notice of dane has been ante on
the Commonwealth of Puerto Rico, appellee, through its
attorneys of record, the Secretary of Justice of Pyerto
Rico, Mr. Hiram Cancio and Mr. Américo Serra, by de-
positing the same at the U.‘S., Post Office, Ponce, Puerto
Rico, first-class postage prepaid and addressed to their
office at Fortaleza St., San Juan, Puerto Rico.
Ponce, Puerto Rico, this 3rd day of June 1965.
Pepro M. Porrata and:
Cuartes R. Curprnt _-
Attorneys for Appellant
P. O. Box 1224
Ponce, Puerto Rico.
By: . : .
‘(s) CHartes R. Cuprinn
Of Counsel
_ (SAME TITLE)
Order -
: San Juan, Prerte Rico, June 11, 1965
besties Considering the notice of appeal ‘filed in this case by
- © appellants to the Supreme Court of the United States, the
’ Secretary shall recall from the trial court the original
record hereof, for the preparation of the record on appeal
referred to in the notice of appeal by said appellants.
It was so ordered by the Court as witnesses the signature
of the Chief Justice, who. took no part.
(s) Luis Necron FERNANDEZ’
. — Justice
I attest:
(s) Letanns RIvERA
| Secretary
ExhibitQ —
(SAME TITLE) |
‘ Order
San in Puerto Rico,. flaptendber 30, 1985
_ Considering the foregoing motion, the appellant i is here- ©
_ by granted until November 1, 1965 to file before the Su-
preme Court of the United States -. record, on —
of the above-captioned case.
It. was so ordered by the Court as Witnesses’ the. signa-
_ ture ie the Chief Justice, who took no. part.
. (s) Luis Necr6n FernANpEz
Chief Justice
I attest:
(s) Ignacio Rivera
Secretary
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.