DISSENTING -OPINION OP
ME. JUSTICE DEL TORO.After a comprehensive discussion of all the questions involved in this appeal it has been concluded by a majority of the justices of this court that the judgment appealed from should be reversed. I am unable to agree with them. Looking into the essence of the matter, in my opinion the attitude of the defendant company appears to be so notoriously unjust that it should not have the support of the court. What has occurred in this case should be fixed permanently in the minds of the officials who are intrusted with the disposal of the public wealth by means of franchises so that they will grant them with the proper reservations and restrictions.
For the sake of greater clearness I should begin my opinion by transcribing the petition for an injunction. But inasmuch as the said petition is copied into the opinion of the court, I will omit it in order to avoid repetition.
*410The appellant corporation assigned the following errors-as committed by the district court:
I
“The facts alleged in the complaint or petition do not establish a canse for issuing a writ of injunction and the court erred in issuing-the writ based on such facts.
II
“The court erred in holding that the evidence shows that the place where the crossing was established was a space reserved fora road or public thoroughfare.
III
“The court erred in not holding that the plaintiff is estopped from asserting as against this defendant that the said crossing-place-is within a zone reserved for the highway.
IV
“The court erred in admitting in evidence Exhibits 1, 2, 6 and' 7 of: the petitioner.
V
“The court erred in allowing questions to be put to witness Larri-naga, over the objection of the respondent, regarding the meaning of a report (exception p. 48 of the transcript).
VI
“The court erred in allowing the questions of the plaintiff regarding reputation (exceptions pp. 49, 50, 53, 54 and 56 of the-transcript). ’ ’
1. I will consider the first assignment. In discussing it the appellant subdivides it into four parts, designated by the letters a, b, c and d.
a. The appellant contends that “in the supposition that it was the duty of the defendant to construct the crossing, according to the terms of the franchise of 1909, at the order of the Commissioner of the Interior, or to allow such crossing to be established, a mandamus, and not an injunction, is the proper and appropriate remedy.”
*411To this the appellee correctly replied:
"The wording of the two sections or clauses from which it is sought to deduce the impropriety of the remedy prayed for is perfectly clear and it may be seen from them that the obligation imposed upon the defendant is not an absolute obligation or duty, but is subject to the following alternative: If the company should fail to act, then the Government itself may construct the crossing which the defendant refused to construct and collect the cost from the latter. So that, assuming a refusal on the part of the defendant, the same result that would be obtained by a mandamus may be obtained by the Government by virtue of the franchise itself, which unquestionably would mate the remedy by mandamus improper, not only because an absolute obligation or duty is not established, but also because it would be a remedy obviously unnecessary, ineffective and unauthorized. ’ ’
b. "No irreparable injury is shown from the facts alleged in the complaint” and therefore, contends the appellant, “the writ of injunction should not be granted.”
The law in force in Porto Eieo authorizing writs of injunction (Comp, of 1911, p. 272) is quite comprehensive. Section 3 specifies seven cases in which this “strong arm of equity”-may be employed. One of them is “when it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. ’ ’
The petition shows the maimer in which the plaintiff and appellee alleged the irreparable injury at the end thereof. The word “irreparable” has acquired a meaning in the law of injunctions which perhaps is not in harmony with the derivation of the word or the literal meaning thereof, according to 14 E. C. L. 346. Besides, the statute does not refer exclusively to irreparable injury but also to great injury, and it cannot be denied that if the claim of The People of Porto Eico is just in this case, it would suffer, if not an irreparable injury, at least a great injury in being compelled to *412use another road, the conditions of which I shall have occasion to refer to later, for the passage of its garbage wagons.
c. “The terms of the franchise,” alleges the appellant, “on which the plaintiff’s petition is based, do not oblige the defendant to construct and maintain a crossing over the track at the place referred to in the complaint by order of the Commissioner of the Interior, or to allow such crossing to be constructed and maintained.”
In my opinion, the appellant is partly right on this point. A careful perusal of the clauses of the franchise transcribed in the petition easily justifies the conclusion that the obligation of the defendant company to maintain the road-bed between the tracks and for a space of one and one-half feet on either side thereof wherever the said rails cross or rest upon the road or other public thoroughfare, in a condition satisfactory to the Commissioner of the Interior, does not carry with it the obligation to construct the crossing under consideration in the present case.
If the right conferred upon the Commissioner of the Interior by the said clauses were the only right pertaining to The People in this case, the judgment appealed from should be reversed and the petition for the writ of injunction denied in toto.
d. “The writ of injunction,” finally contends the appellant in support of the first assignment of error, “did not lie because the complaint did not show that the plaintiff had a clear, lawful or equitable right.”
I shall state my opinion as to this in considering the second assignment of error.
2. Are the defendant’s tracks within the highway, or the space reserved therefor, at the place where the crossing in question is, or are they not?
The district court held that they were within the zone reserved for the highway. The appellant maintains that they are not within the highway, because it was never wide enough to include them; that neither are they within the so-called *413zone reserved for the highway, for such zone never existed,, and that if the limits thereof were ever fixed it was done without the knowledge of the appellant and therefore can not affect it.
It clearly appears from the record that on February 18, 1878, the Spanish Government granted the necessary franchise to Pablo Ubarri to lay a railroad track between the capital of Porto Rico and the town of Río Piedras. The track was actually built and a section of it was within the highway maintained by the State and which then connected and now connects the capital, which is built on a small island, with the main island of Porto Rico. At the place where the crossing which forms the subject-matter of this action exists the track was within the highway.
Some time passed and Ubarri asked for and obtained from the Spanish Government leave to make certain changes in the plan of the railroad. One of these changes was to remove the tracks from the highway and place them outside of and parallel to it for almost its entire length. At the place involved in this action the tracks were taken up and laid upon an embankment constructed expressly by Ubarri on the right, going towards Santurce, of the row of trees which marked the highway.
Therefore the appellant is right in maintaining that the tracks of its predecessor Ubarri, after the changes made in the plan referred to, lay outside the highway, which, according to the law then in force, was eight meters wide. II Es-criche, 162, and the law cited.
Years passed, the change of sovereignty took place and the railroad belonging to Ubarri was sold, the purchaser naturally acquiring all the rights of Ubarri.
On May 6, 1909, the Executive Council of Porto Rico granted to the San Juan Light & Transit Company, the successor of Ubarri, the right to own, construct and operate an electric railway between San Juan and Río Piedras. The franchise was approved by the Governor on May 11, 1909, *414and by the President on the 21st of the same month and year. It contains thirty-three sections, in which reference is made to the original concession and its modifications, to the regulations of the Military Government of the new sovereignty and of the Municipal Government, and to other particulars, and it may be said that with that a new life began 'for the railroad whereby from that date electric cars have run and continue to run instead of cars drawn by steam locomotives. Sections 10 and 11 of the franchise were translated into Spanish and copied into the complaint, and it is to be noted that in the last paragraph of section 11 the words “of within the space reserved therefor,” which should have been inserted between the words “public” and “shall have” of the said paragraph, were omitted. By the new franchise the grantee was authorized to lay a double track at the place referred to in this action,' among others.
The defendant company, the Porto Eico Eailway, Light and Power Company, acquired the said franchise and others, and on March 17, 1911, the Executive Council approved the transfer and gave new force and vigor to the former concessions under certain conditions, which were plainly expressed, and its action was approved by the Governor of Porto Eico and by the President of the United States on March 21 and March 30, 1911, respectively.
Before granting the franchise of 1909 persons duly authorized by both Governments surveyed the lands of the island of San Juan for the purpose of determining what part belonged to The People of the United States and what part to The People of Porto Eico. Plans were made and the width of the highway at the place in question was fixed at twenty meters.
According to the testimony of F. W. Teale, a witness for the defendant, the double track authorized by the franchise of 1909 was laid in 1910. To do this it was necessary to widen the embankment, lessening the distance between it and the highway, and the row of trees which lined the right side of *415the highway, going in the direction of Santurce, was cut down. The double track did not encroach upon the macadamized part of the highway, or the old zone of eight meters, but it was within the space of twenty meters fixed by the survey referred to.
At the trial the plaintiff introduced evidence to show that from the time of the former sovereignty the road at the place in question was always considered to be twenty meters wide. The trial court admitted and gave credence to that evidence, but I shall disregard it entirely and base all of my conclusions upon the fact that the width of the highway during the former sovereignty was eight meters; that these eight meters, after the change in the plan of the original track by Ubarri, were never encroached upon by Ubarri or by his successors at any time, and that the only document ■officially fixing the width of the highway at twenty meters was the survey mentioned.
To get a clear view of this action it is necessary to know ■exactly who are the owners of the land on which the track is laid and of the adjacent land. This land first belonged "to the Spanish Government, then, by the Treaty of Paris, to the American Government, and, finally and now, to the Island of Porto Eico by grant from the American Government. These are facts admitted by both parties.
On the left of the defendant’s double track, going in the direction of Santurce, are the highway, now completed, and the grounds of the Insular Pair belonging to The People of Porto Eico and bounded on the north by the Atlantic Ocean. On the right is another strip of land belonging to The People of Porto Eico, then the track of the American Eailroad Company of Porto Eico, and then the refuse dump of the Sanitation Department of the Insular Government, which is bounded on the south by the waters of the Port of San Juan, Porto Eico. The land on which the tracks of the defendant are laid also belong at present, as already slated, to The People of Porto Eico.
*416Did tlie Spanish Government in granting to Ubarri the right to lay a track on this section of its property and the Executive Council in ratifying such grant renounce their rights to the strip of land occupied by the grantee’s tracks to such an extent as to make it necessary to obtain the consent of the grantee before they could establish connections between the lands situated on either side of the track 1
In my opinion the answer should be decidedly in the negative. All of that part of the island of San Juan up to the San Antonio bridge was known as the third line of defense of the fortified city of San Juan, and it cannot be supposed for a moment that.it was the intention of the Spanish Government to obstruct in any way its means of communication'.
A right of way was granted and that right, fixed in accordance with local conditions, is the only' right which must be respected. The defendant company goes too far. I agree with it that its franchise should be respected tod that its right of way should not be obstructed, but I can not agree with its contention that it is the arbiter to grant or refuse a crossing over its tracks to The People of Porto Eico, the owner of the land over-which the said tracks are laid and of all the adjacent land at the place in question, bounded, as we have seen, by the ocean on the north and by the bay on the south and which forms, as a whole, a relatively narrow strip of the small island on which the capital of Porto Eico is situated.
Eeduced to its proper terms, the case is simple. It is only necessary to determine whether the actual rights of the defendant have been impaired; that is, whether the authority which the defendant unquestionably possesses to operate its electric railroad has been interfered with in any way by the acts of The People. In this regard the ocular inspection made by the court, the photographic views introduced by the defendant itself and the plans produced by both parties, are important.
A careful study of all of these shows that the trial 'court *417was justified in concluding that the crossing at the place where it is in no way interfered with the free and safe passage of the defendant’s cars, and as‘this essentially constitutes the right which it possesses, it cannot he held that the grant made to it has been violated.
As may be seen, according to the opinion which I have formed of the case the fact of whether or not the defendant’s tracks are within the space reserved for the highway is not decisive. But inasmuch as this question was so fully discussed at the trial, I will say that as the Governments represented by the Federal and Insular officials are the exclusive owners of all the land in question, they had the right to determine the future width of the highway connecting the capital with the Island without obtaining the consent of the defendant. Manifestly, in putting these plans into practice it will be necessary to take into consideration the rights acquired by the defendant. When the1 time comes, if the defendant’s franchise should still be in force, then The People must reach an understanding with it regarding the changes it may be necessary to make. To destroy the embankment raised by the defendant, or to change the plan of its tracks in such a manner that its cars could not run properly, would be to violate the right of way granted to it; but to cross its tracks as often as necessary, especially as in this case, for the purpose of performing a public service, without interfering with the proper operation of its ears, is something different.
3. In considering the second assignment of error I believe that I have stated with sufficient clearness and detail my estimation of the case, which in some respects .is different from that of the trial court. However, we have arrived at the same conclusion by different routes.
The opinion which I have formed renders it unnecessary to consider the errors assigned by the appellant .under Ños. 3, 4, 5 and 6, for all of the evidence objected to. by the said *418.appellant may be disregarded and yet the judgment appealed from may be sustained.
In conclusion,-1 will say only that an examination of any one of the Various plans presented in evidence which includes the third line of defense of the city of San Juan, Porto Rico, will show that in crossing with its garbage wagons the tracks of' the defendant at the place in question the Government reaches the dumping-ground in an almost direct route, whereas if compelled to use the old unmacadamized road it would have to make a long turn along partly sandy and partly marshy ground, to the detriment of its entire service.
In view of the foregoing, I am of the opinion that although the defendant company is not itself bound to construct the crossing in question or to reimburse the Government for the cost of its construction, it is bound to respect it and can not oppose the passage thereover of the Government’s garbage wagons, always provided that such passage does not interfere in a practical and effective manner with its right of way which has been acknowledged and ratified on divers occasions.