FIRST
DIVISION
JOSE
ARGUELLES,
Plaintiff-Appellee,
G.
R.
No. 9717
July
21,
1915
-versus-
TORIBIA
MONTALVO,
Defendant-Appellant.
D
E C I S I
O N
ARELLANO,
C.J.:
The lands of the plaintiff
and the defendant herein adjoin and, by an act of the defendant, a
question
has arisen relative to a portion of one of these properties, measuring
4 meters north and south, and 7 meters, 10 centimeters east and west,
valued
at P200, of which strip defendant took possession. Plaintiff asks that
he be declared to be the owner of this portion and that it be restored
to him, with indemnity for the losses and damages he has suffered to
the
amount of P100, and the costs of the suit.
The question at issue
is merely one of fact.
"Plaintiff's
allegations,
says the Court of First Instance of Batangas which tried the case, are
strongly supported by his own positive testimony, corroborated by that
of the witnesses Graciano Babao and Gavino del Rosario, and also by
Exhibits
A, B and C, presented by plaintiff and admitted in evidence. Hence,
there
is no room for doubt that the fence which plaintiff built on the
northern
boundary of his lot described in the complaint is the true dividing
line
between his lot and that of the defendant, inasmuch as this fence was
erected
on the remains of the old one that previously stood in the same place.
Consequently, the court has arrived at the conclusion that the portion
of the lot in litigation is an integral part of plaintiff's lot
described
in the complaint. With respect to the sum of P100 claimed by plaintiff
as the amount of losses and damages caused him by defendant, there is
evidence
in support of this claim, and the court believes that said sum should
be
paid to the plaintiff." [Bill of Exceptions, pp. 12 and 13].
By
reason of this evidence,
which the Court deemed to be preponderant, the judge ordered defendant
to restore to plaintiff the possession of the parcel of land in
litigation,
as being an integral part of plaintiff's lot, and to pay the latter
P100
as losses and damages, and the costs of the suit.
Defendant appealed.
As held by the trial
court, the preponderance of evidence is in accord with the merits of
the
case. It is a proven fact that plaintiff erected his fence on the line
where the old fence formerly stood, and that defendant never made any
complaint
with respect to the old fence. Every property owner has the right to
inclose
his property by means of walls, ditches, growing or dead hedges; and in
the present case plaintiff inclosed his land with a growing hedge of
madre
cacao trees, as, without protest, it had been enclosed before. [Civil
Code,
Art. 388].
Plaintiff presented
his property titles, Exhibits A, B, and C, the first two of which
describe
the land as measuring 22½ varas in length and the third as
21½
varas in the direction of north and south. By cutting off a piece four
meters in length, running north and south, a considerable part of the
frontage
of plaintiff's land would be taken away from him. And this measurement,
set forth in the titles, must be taken as correct, so long as the
contrary,
or some other measurement, is not proven by means of the property
titles
of the adverse party, or by other proof such as might destroy the
effect
of said public documents presented at the trial. In an action to fix
boundaries,
to which the action hereby brought is equivalent, the law prescribes
that
the boundaries shall be fixed in accordance with the titles of each
owner.
[Civil Code, Art. 385]. Plaintiff stated in two parts of
his
testimony, and without contradiction by defendant, that he endeavored
to
make the latter show his property titles, but defendant did not do so.
The judgment appealed
from is affirmed, with costs in this instance. So ordered.
Torres, Johnson,
Carson,
Trent and Araullo, JJ., concur. |