It was also found by the court as follows, being No. 5 of the findings: At the same time, to wit, July 17, 1898, the military forces of the United States took possession of two wharves, the Muelle Lus and the San Jose, with their warehouses and sheds, belonging to claimants, and used the same for the purpose of loading, unloading, and storing Government supplies and in facilitating the movements of troops from July 17, 1898, to March 1, 1899, a period of seven and one-half months, for which use no rental was paid, though the claimants presented bills therefor monthly; and after the Government had surrendered the possession of said wharves the chief quartermaster, Department of Santiago, offered the claimants $4,000 in full payment for the use thereof during said period, which was refused; and later payment was denied on the ground that the claim was for unliquidated damages. (See opinion Judge Advocate General, Dec. 23, 1901, p. 83, S. Doc. 318, 57th Cong., 1st sess.) During said period said wharves were not used exclusively by the United States, but commercial steamers were permitted to land there, and they were used by the merchants of the city of Santiago when such use did not interfere with the handling of Government stores. It does not appear that claimants received any compensation from commercial steamers or merchants of the city for such use during said period. From time to time said wharves and warehouses were repaired by the United States, and claimant company was employed by the United States at $32 per day to dredge alongside of same for about three months. Said wharves were returned to claimants in nearly as good condi ion as when the United States took possession of them. The reasonable value of the use of said wharves and warehouses for the period they were used by the United States forces, together with any damage caused thereto by reason of said use, was $7,300. The President's proclamation of July 13, 1898, is found as in the Herrera case. Supreme Court of the United States. NOBLE v. GALLARDO Y SEARY. Appeal from the District Court of the United States for Porto Rico. (223 U. S., 65.) No. 147. Submitted December 22, 1911. Decided January 22, 1912. SYLLABUS. A court of equity being a novelty in Porto Rico, it would be unjust to apply its doctrines to the conduct of parties during the period that was not governed by any rules peculiar to chancery courts. The right to foreclose liens on crops under a mortgage executed in 1865, which is contested on the ground of laches, should be determined according to Spanish law as it prevailed during the time when laches is claimed to have taken place, and not according to the doctrines of our equity courts. 5 Porto Rico Fed. Rep. 10, reversed. Opinion by Holmes, J. No dissenting opinion. The facts involve the construction of the law of liens on crops in Porto Rico. This is a bill to foreclose a mortgage or lien executed in December, 1865, by which one Ramon Ruiz Gandia bound himself to pay a certain sum to William Noble with the proceeds of the first crops that might be ground from the next January at a certain plantation. The defendants pleaded laches apparent on the face of the bill and different statutes of limitation. The notarial document by which the lien was created is presented only in a translation which suggests doubts whether a further lien upon succeeding crops applied to this debt or only to another that is referred to and that was due to another man. There was also a petition for leave to intervene on the part of the representative of the other creditor, referring to documents not set out, but this was not acted upon except as affected by the disposition of the principal case. The court below expressed doubts whether any of the instruments bound the land, but held that in any event the plaintiffs were barred by laches, and dismissed the bill. As we have intimated, the record leaves some doubt as to material facts, no argument was presented to us on behalf of the appellees. and upon the whole we think it will be more conducive to justice if the case be remitted to the District Court for further consideration. To that end the decree will be reversed. Supreme Court of the United States. KER & COMPANY v. COUDEN. Error to the Supreme Court of the Philippine Islands. No. 11. Argued January 27, 1912.-Decided February 19, 1912. SYLLABUS. The question of ownership under the Spanish law of accessions to the shore by accretion and alluvicn has been a vexed one. The Roman law is not like a deed or a modern code prepared uno flatu, but history has played a large part in its development. Under the civil law, the seashore flowed by the tides, unlike the banks of rivers. was public property, belonging, in Spain, to the sovereign. Under the Spanish law of waters of 1866, which became effective in the Philippines in 1871, lands added to the shore by accessions and accretions belong to the public domain unless and until the Government shall decide that they are no longer needed for public utilities and shall declare them to belong to the adjacent estates. This rule applies not only to accessions to the shore while it is washed by the tide, but also to additions which actually become dry land. The doctrine that accessions to the shore of the sea by accretion belong to the public domain and not to the adjacent estate has been adopted by the leading civil law countries, including France, Italy, and Spain. In determining what law is applicable to titles in the Philippines, this court deals with Spanish law as prevailing in the Philippines, and not with law which prevails in this country. whether of mixed antecedents or the common law. Where a case is brought up on an appeal on a single question, in regard to which there is no error, judgment below will be affirmed. The facts involve the title to land in the Philippine Islands formed by the action of the sea. This is an action brought by Ker & Co. to recover possession of land held by the defendant under a claim of title in the United States. The land is the present extremity of Sangley Point, in the Province of Cavite and Island of Luzon, projecting into Manila Bay. It has been formed gradually by action of the sea; all of it since 1811, about three-quarters since 1856, and a part since 1871. For a long time the property was used by the Spanish Navy, and it now is occupied by the present Government as a naval station, works costing more than half a million dollars having been erected upon it. The plaintiffs claim title under conveyances from the owner of the upland. The Philippine courts held that under the Partidas (III. Tit. 28, Laws 3, 4, 6, 24, and 26), and the law of waters of 1866, the title to the accretions remained in the Government, and the vexed question has been brought to this court. Supreme Court of the United States. CUEBAS Y ARREDONDO v. CUEBAS Y ARREDONDO. Appeal from the District Court of the United States for Porto Rico. (223 U. S., 376.) No. 159. Submitted January 24, 1912.-Decided February 19, 1912. SYLLABUS. Errors assigned as to finding of citizenship of a party dismissed from the suit at instance of appellant are not here for review except as to the force and effect to be given to a decree pro confesso against other defendants before dismissal of the bill Under the Foraker Act of April 12, 1900 (31 Stat. 85, c. 191), jurisdiction of the District Court of the United States was that of the District and Circuit Courts of the United States; the additional jurisdiction conferred by the act of March 2, 1901 (31 Stat. 953, c. 812), did not extend the jurisdiction so as to embrace all controversies in which any litigant on either side is a citizen of the United States or a subject of a foreign country. The District Court of the United States for Porto Rico has not jurisdiction of a cause in which the sole plaintiff is a citizen of Porto Rico and any of the defendants are citizens of Porto Rico, notwithstanding one or more of the defendants may be citizens of the United States or of a foreign country. By the act of March 2, 1901, Congress did extend the jurisdiction of the United States District Court for Porto Rico by cutting down the necessary jurisdictional amount and dispensing with diversity of State citizenship by substituting United States citizenship therefor. The final decree following a pro confesso order is only such a decree as would be authorized by the State of the pleadings when the order was entered. If a bill is fatally defective, showing that the court had no jurisdiction, it is error to allow a pro confesso; the order should be vacated and the defaulting defendant allowed to defend. Where an amendment is allowed that changes the character of the bill and creates a jurisdiction not theretofore existing, the court should set aside a default and give time to defend. A decree nunc pro tunc presupposes a decree allowed or ordered, but not entered through inadvertence of the court, or a decree under advisement when the death of a party occurs. (Mitchell v. Overman, 103 U. S. 62.) No attempt at revision having been made at any time, there is no ground to enter a decree nunc pro tunc in this case on any known ground of equity procedure. (Gray v. Brignardello, 1 Wall. 627.) 3 Porto Rico Fed. Rep. 67, affirmed. Opinion by Lurton, J. No dissenting opinion. The appellant asserting herself to be a citizen of the Island of Porto Rico, filed this bill to foreclose a mortgage upon a plantation on the island called "Carmelita." The defendants to the bill were three in number, namely, Cuebas y Arredondo, alleged to be a citizen of the United States, residing in Porto Rico; Francisco Antongiorgi, described as a citizen of and residing in Porto Rico, and El Banco Territorial y Agricola, alleged to be a corporation organized under the laws of Spain, and a citizen thereof, doing business in the Island of Porto Rico, with its principal place of business in the city of San Juan. The averments as to the title and encumbrances upon the said plantation, and the interests asserted by way of lien or mortgage by the defendants, Antongiorgi and El Banco Territorial, etc., hereafter referred to as the bank, are complex, and for the purposes of this case, upon the question now for decision, need not be stated otherwise than to say that the bill alleged that they "have or claim some interest in said mortgaged premises, or in some part thereof, as purchasers, mortgagees, or otherwise, the exact nature and extent of which interests are unknown to your orator, if any at all they have, but the same are inferior and subsequent to the lien of the mortgage of your orator and subject thereto." Aside from the usual prayer for a decree declaring and enforcing the lien of the mortgage asserted by a sale, etc., the bill asked that "the defendants and all persons claiming under them subsequent to the commencement of this suit, and all other persons although not parties to this suit who have any liens or claims thereon by or under any such subsequent judgment or decree, either as purchaser, incumbrancer, or otherwise, may be barred and foreclosed of all equity of redemption in the said premises and that your orator may have such other and further relief as the nature of the case may require, and as to this court may seen meet and agreeable to equity and good conscience." The bill was filed April 6, 1904, in the District Court of the United States for Porto Rico. On July 11, 1903, the three named defendants, though duly summoned to appear by a rule day named and make their defense, made default, and the bill was on that day taken for confessed under equity rule 19, et seq. In March, 1905, the bank was permitted to file its answer, in which it denied the equities of the bill and asserted its own superior right under mortagages, judicial sale, and by estoppel. In October, 1906, it was permitted to withdraw its answer and file. a plea to the jurisdiction. That plea was in these words, omitting the formal parts and conclusion: That this court ought not to further take cognizance of the said bill of complaint because this defendant says that at the time of the filing of the same the complainant herein was and still is a citizen of the Island of Porto Rico and resident of the same and this defendant was and is a corporation organized and doing business under and by virtue of the laws of said Island of Porto Rico and was and is a citizen of the same, and each and all of the other defendants herein are citizens and residents of the said Island of Porto Rico, and that therefore this is a suit by and between citizens and residents of the said Island of Porto Rico, of which this court has no jurisdiction. That, as shown by the said bill of complaint, the jurisdiction of this court over and of this suit is sought to be maintained not by reason of any Federal question being involved herein, but solely and only by reason of the alleged diverse citizenship of the parties herein and hereto, and that as shown by the allegation of the said bill of complaint the defendant is alleged to be a citizen of Spain, and another of the defendants, to wit, Felipe Cuebas y Arredondo, is alleged to be a citizen of the United States of America, and another of said defendants, to wit, Francisco Antongiorgi, is alleged to be a citizen of Porto Rico, and that therefore it affirmatively appears by the allegations of the said bill, if the same are true as therein alleged, that this is a case of which this court has not jurisdiction. After first overruling this plea, for reasons set out in an opinion (4 P. R. Fed Rep., 208), a rehearing was allowed and the plea sustained upon the ground that the bank was not a corporation of Spain, but one existing under the laws of Porto Rico, and a citizen of that island for jurisdictional purposes. (4 P. R. Fed. Rep., 509.) Prior to this action upon the plea of the bank, the date not appearing, the complainant voluntarily dismissed her bill as to Francisco Antongiorgi, whom the bill had averred to be a citizen of Porto Rico. The judgment on the plea of the bank, above set out, was that for lack of the requisite diversity of citizenship the bill should stand dismissed "unless within five days from this date the bill can be amended so as to give the court jurisdiction." Thereupon complainant entered an order, entitled: "Irene Cuebas y Arredondo v. Felipe Cuebas y Arredondo et al.,” which is in these words: Comes now the complainant above named, by her solicitors, F. L. Cornwell and N. B. K. Pettingill, and in pursuance of the permission granted by the court in its order of the 7th day of June, 1909, conditionally dismissing said bill of complaint, hereby amend their said bill of complaint for the purpose of retaining jurisdiction in this court by dismissing the same as to said defendant El Banco Territorial y Agricola. And in order to make said bill of complaint conform to such dismissal they hereby amend the same in the following particulars, to wit: 1. By striking from the same the last four lines of the preliminary paragraph of said bill in which the parties thereto are stated. 2. By striking out paragraph number X of said bill of complaint. 3. By striking out the name of El Banco Territorial y Agricola wherever the same appears in the prayer for relief and in the prayer for process contained in said bill. And said bill of complaint having been heretofore amended so as to dismiss one Francisco Antongiorgi as defendant therein, and being now amended so as to dismiss the same as to said El Banco Territorial y Agricola, complainant hereby elects to proceed with the same as against the defendant Felipe Cuebas as sole defendant. Thereupon the complainant moved the court for a final decree against the sole defendant, Felipe Cuebas, " as of a date prior to the death of Felipe Cuebas, so as to avoid the necessity for reviving as against his succession," etc. This the court denied, and dismissed the bill. From this decree an appeal has been prosecuted. 7345°-S. Doc. 173, 63-1-27 |