DISSENTING OPINION OF
MB. JUSTICE WOLF.I regret to dissent from the opinion of the court in this case.
It is unnecessary to discuss whether or not the answer is couched in the terms prescribed by section 105 of the Code *75of Civil Procedure, but the objection made therein sufficiently draws attention to the complaint.
Be this as it may, it i.s certain that section 109 of the Code permits a court to treat and decide of its own motion whether the complaint sets up facts enough to determine a cause of action.
With this understanding of the law the court decided the case of José Caldas and others v. Manuel Castineira, the decision bearing date of the 20th of March, 1906.
The question then arises: Bid the complaint state.a cause of action?" The title of the complaint shows that the complainant is seeking “to protect the possession and use of certain land in the city of Caguas.” The attorney for appellee, at the argument, maintained that the action sought to be exercised was one of usufruct. The complaint, however, does not show that the complainant has any dominion over the land, or any right of use or usufruct. What she attempts to maintain is that she, along with the defendant, Sucesión Guarch Bios, has had for a certain number of years a right of way or servitude over the land separating the houses of the two parties.
The latter agree that the ground belongs to the municipality. The seventh paragraph of the complaint shows that each of their parties applied to the municipality for the exclusive use of the said alley, and such use was refused.
There is really no attempt in the complaint to set up a claim of use or usufruct in the alley. The complainant does not pretend to exercise any dominion over the land or to derive any fruits or enjoy the same in any way, except for the purpose of passing over it in assertion of the claim to right of way. There are several inconsistent allegations, but whatever rights the complainant has are stated in the third paragraph of the complaint, and in the seventh to tenth paragraphs of the same. So that the legal rights of the complainant, if any, would seem to lie in easement of servitude, *76but such a right is not made out by the complaint. A servitude of a discontinuous nonapparent kind such as a right of way must arise by deed, and not by prescription (sections 546 and 539 of the Code); but no deed or other title is alleged. There is not even a claim or title by prescription, but the complainant bases her right of action on the fact that she has used the land for a certain number of years without interruption, and apparently, also, on the fact that the defendant proceeded to build on the vacant land, without authority from the municipality. We think it is apparent that the complainant was‘attempting to assert some right of title of ownership or possession. In Spanish law, however, as in American law, a person who asserts a right of title to a thing must rely oh the strength of his own title.
The opinion of the court, however, does not depend upon any claim of use, usufruct or servitude, but the decision is based on the fact that the edifice constructed by the Sucesión Guarch constitutes a nuisance, and interferes with the enjoyment of the complainant’s property. The definition of a nuisance under section 277 of the Code of Civil Procedure is as follows:
“Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life, or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. ’ ’
Now the words “an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ’? cannot mean that every obstruction to the free use of property is a nuisance. For example, if I should build on my own vacant land, and so prevent my neighbor from using the same as a playground for the children, that might be an obstruction to the free use of property, but I think no one will long maintain that it would be a nuisance. *77It is evident that the words “the free nse of property” must not be understood to refer to the free nse of another person’s property.
It is not asserted here that the plaintiff is prevented from enjoying or nsing his own property to the fullest extent, bnt the claim is that she is prevented from fully using the property of the municipality of Caguas, or the 3-nieter alley. If the Sucesión G-uarch owned the alley it would not be contended that the building of the defendant and no authority to build would make its action come within the purview of section 277.
It seems to me that another test would be whether, if a third person were put in the possession of the house of Mrs. Dolores Giménez, the plaintiff, such third person would find the building so erected a nuisance to the property acquired by him. Now both parties applied to the municipality for leave to build on the vacant ground, and this application militates against the theory that the ground was essential to the use of the plaintiff’s bouhe.
Definitions of nuisance have been attempted by various authorities, but such attempts have not very clearly marked out the line that distinguishes what is a nuisance from what is not. "What is a nuisance is a matter of fact that would appeal to the intelligence of an ordinary man. Where a thing amounts to a trespass, or where anybody arbitrarily uses land in a way where he is not authorized, while we might disapprove of the arbitrary act, it would not necessarily come under the head of a nuisance.
In my judgment neither the building nor the actions of the defendant gave the complainant a cause of action lying in nuisance. But even if there was a nuisance of which the complainant had a right to complain, an inspection of the complaint shows it was not founded on any such ground, but as before indicated, on some supposed right of property resting in the complainant. The theory of the complaint is for an action totally distinct from nuisance, and there is nothing in *78tlie record before this court which should permit it to change the plaintiff’s own theory and establish for her an action which she herself did. not -seek to maintain.
For these reasons I think the judgment should have been reversed and the case sent back to the District Court of Hu-rn acao with instructions to dismiss the complaint.