DISSENTING OPINION OP
MB. JUSTICE ALDREYCastor Colon filed suit, in 1931, in the District Court of Arecibo against Plazuela Sugar Company, a private corporation, praying the court to declare that a certain property *840of the plaintiff which is crossed by a railroad of the, defendant is free from a servitude of passage on that railroad and, accordingly, to order the defendant to remove the rails which it has on the said property. After a trial the court rendered judgment for the defendant, and thereupon the present appeal was taken.
At the commencement of the trial the plaintiff moved for a judgment on the pleadings, which are verified, and that motion having been denied, the appellant now urges as a first ground of his appeal that such ruling was erroneous. There was no error, because that motion of the plaintiff came too late. In the case of Ana María Sugar Co. v. Castro et al., 28 P.R.R. 225, we have held that such a motion should be made before the case is called for trial. Besides, the answer controverts allegations of the complaint, since it denies that the plaintiff is the owner of the acre (cuerda) of land as to which he claims that it belongs to him and also that no servitude exists thereon. Miranda v. National Fire Ins. Co., 41 P.R.R. 209.
We may now proceed to state the facts in this case as the same appear from the documentary evidence introduced by the parties, the testimony taken lacking essential importance in this connection.
Pascasia Serrano owned in 1907 a property of nine acres (cuerdas) situated in the ward Islote, municipality of Are-cibo, and as such owner she granted to Plazuela Sugar Company verbal permission for the passage over her land of a railroad, which the latter was constructing for the transportation of sugar cane to its central. On the following year, that permit was incorporated by the owner of the land and by the central into a private instrument executed before witnesses. In that instrument said owner, in consideration of the price of $25, ratified the permit which she had previously granted orally. Several years later, in 1913, the said Pascasia Serrano and the corporation Plazuela Sugar Com*841pany executed a public instrument, before a notary. Mrs. Serrano stated in the deed that she ivas the owner of a property of nine acres which was described; the corporation that its railroad, constructed in a permanent manner, crosses the property of the said Mrs. Serrano; and both parties that the boundaries of the strip of land occupied by the railroad, measuring 78 meters in length and 8 meters in width, had been established. Pascasia Serrano agreed to assign and transfer the said strip of land to the central for the use of its railroad in consideration of the enhancement in value derived by the property from the railroad, and of the payment of one dollar, the receipt of which she acknowledged; and also said that as long as the railroad existed she would do not act which would interfere with the movement of the trains of the Plazuela Sugar Company. Five years thereafter, or in 1918, Pascasia Serrano sold to Arturo G-onzález Prado a one-acre parcel of the said property for the price of $250, the receipt of which she acknowledged, and it was stated in the deed that said parcel was crossed from east to west by a railroad of the Plazuela Sugar Company, which fact was also entered by the registrar in his books when recording the property of one acre in favor of G-onzález Prado. After that record was made, Plazuela Sugar Company presented for record in the registry the deed which it had executed in 1913 together with Pascasia Serrano; but said official denied the record and entered a cautionary notice in respect to the instrument for 120 days. No appeal was taken from such refusal by the Plazuela Sugar Company as provided by law, and the deed had not been recorded at the time the action herein was brought. Subsequently, in 1927, the property of G-onzález Prado was sold by the Collector of Internal Revenue for the payment of delinquent taxes, and it was purchased by Esteban Mena Díaz. The latter also failed to pay the taxes on the property and thereupon the collector sold it to Castor Colón, who in May, 1931, recorded his tax-title in the registry of property.
*842From the foregoing it is inferred that, although Pasca-sia Serrano granted a servitude of passage for a railroad over her property of nine acres in favor of Plazuela Sugar Company, such servitude title had not been presented for' record in the registry at the time the sale of one acre had. been recorded in favor of González Prado, who therefore-purchased free from such lien, according to the registry, and. hence the instrument of servitude title executed by Pascasia. Serrano and Plazuela Sugar Company can not prejudice him.. Even though in the deed of sale of the one-acre parcel from Pascasia Serrano to González Prado, it was stated that such parcel was crossed from east to west by a railroad of Pla-zuela Sugar Company, that statement does not create a servitude title for, as was said by Mr. Manresa in his commentaries on the Spanish Civil Code (3d. ed., vol. 4, p. 613),. which on the subject agrees with our code, “the deed of sale-of a property in which it is recited that a passage-way (co-rredor) exists on the property, is not an instrument (título) creating or acknowledging an easement of view nor even of' light in favor of the tenement sold, nor may such servitude-be regarded as acquired by prescription if twenty years have-not elapsed after the hostile (obstativo) act from which such period must be computed. Judgment of December 12, 1908.”'
It is true that subsequent to the record made in favor of' González Prado and before the appellant and his predecessor of record had purchased the one-acre property at the-auction held by the Collector of Internal Revenue, Plazuela Sugar Company had presented for record the deed which it had executed with Pascasia Serrano; but the Registrar of Property refused to record it and entered instead a cautionary notice in respect thereof for 120 days as provided by law in such a case, and the defects which according to the registrar precluded the record of the instrument were not cured during such period. In conclusion, that deed has not been recorded in the registry, at least up to the commencement of this suit.
*843That the registrar erred in denying the record of the deed, as the trial court thinks, is not a question raised by the pleadings nor which could affect the rights of subsequent purchasers of the property or any part thereof, because the fact is that, whether rightly or wrongly, no record of the instrument was made, and the cautionary notice for 120 days entered by the registrar in consequence of his decision did not produce as against third persons the effects of a record, since, as stated by this court in the case of Ramis et al. v. Registrar of Property, 18 P.R.R. 74, 75, such notices are of a temporary character and expire at the end of the 120 days fixed by law for correcting the defects which preclude the admission of the title to record, and when they have expired without the correction of said defects they produce no effect whatever against third persons and have no force to destroy the civil rights of other persons, it being the duty of the registrar to cancel said cautionary notice ex officio. And in the case of Antonsanti v. The Registrar of Property, 9 P.R.R. 171, it was declared that the purpose of such notices is to secure the right of the parties interested in the record for the term of 120 days during which, should they present a new title or correct any defect which prevents the inscription, they may record their right, such record taking effect from the date of the entry of the cautionary notice. Therefore, the said cautionary notice, which expired four months after it was entered, did not prejudice subsequent purchasers, either by itself or in conjunction with the circumstance that a railroad track exists on the property, as this would be evidence of a fact but not of the existence of a right to have such track remain there. Upon this point Mr. Morell, in his commentaries on the Mortgage Law (Yol. 2, p. 667), says the following:
“It is true that an external sign of servitude is clear and visible, and that the use of the easement appears to exist. But this does not mean that the apparent servitude must always be regarded to have been lawfully constituted as such, since its appearance is not enough; *844it may be founded upon mere tolerance and it may therefore be ignored or avoided when it is not supported by any legal basis.”
This in so far as third persons are concerned, for as regards Plazuela Sugar Company and Pascasia Serrano the servitude contract exists.
As the servitude • title has not been recorded in the registry, let us see whether by reason of the existence since 1907 of the railroad track of the appellee on the property of Pascasia Serrano and on the one-acre parcel which she sold to González Prado and now belongs to the appellant, the central has acquired the right of way by prescription of twenty years.
The above question is not new in this court. In the case of Torres et al. v. Plazuela Sugar Co., 24 P.R.R. 451, it was observed that if by laying railroad tracks on the land the servitude is converted into an apparent one, it is doubtful whether a written title would be necessary. But in a later case, González v. Plazuela Sugar Co., 42 P.R.R. 676, we declared that as a railroad servitude of passage has always, because of its use, the character of a discontinuous servitude, there can be no doubt that for its acquisition a written title is required, since in defining the various classes of servitudes Section 539 of our Civil Code (Sec. 468, 1930 ed.) says that continuous servitude are those the use of which is or may be incessant without the intervention of any act of man; and that discontinuous servitude are those used at more or less long intervals and which depend upon acts of man. It was further stated: “In so far as a servitude is used at more or less long intervals and depends upon acts of man, it does not lie to classify it otherwise than as a discontinuous one, and so also with regard to a servitude for railroad purposes serving the crops of a particular estate.” It was also said: “Discontinuous servitudes, whether apparent or not, can only be acquired by virtue of a title (Sec. 546, Civil Code), and a reading of Section 547 *845of the Civil Code leaves no room for doubt that the title must establish the servitude, as also that a servitude of this kind can not be acquired by prescription — something which is perfectly logical, since the acts of use, not being incessant and have a beginning and an end which are reproduced without perfect continuity, can not establish prescription.” Mr. Manresa in his commentaries to the Civil Code, (Comentarios al Código Civil) volume 4, page 577; Scaevola in volume 10, page 157, and Morell on Mortgage Legislation (Legislación Hipotecaria), volume 1, page 341, acknowledge that the servitude of passage is a discontinuous one. As regards the question that it can not be acquired by prescription but by a title, this court had already so held in the case of Del Moral v. Muratti (correct short title should be Nadal v. Muratti), 34 P.R.R. 244, where in dealing with the acquisition of a servitude by prescription, we declared (p. 248): “The year 1890 is of decisive importance because that was the year when the Civil Code went into effect and since that time the servitude in question could be acquired only by virtue of a title, and in this case such a means of acquisition has not even been mentioned.”
The decision in Roman Catholic Church v. Combate Tobacco Corp., 42 P.R.R. 363, has no application in the instant case, because there what was involved was a continuous and apparent servitude of light which could be acquired by prescription, since according to Section 544 of the Civil Code and the holding in García v. García, 25 P.R.R. 119, it may be acquired in two ways, by a title or by prescription of twenty years, whereas the servitude with which we are dealing now is a discontinuous one, which requires for its exercise the acts of man, and for this reason, whether apparent or not, it can only be acquired by virtue of a title in accordance with Section 546 of the Civil Code. Nor is the case of Alvarez v. Municipality, 43 P.R.R. 498, germane to the one herein, because in the former case there was *846involved a servitude of aqueduct -which this court held to he apparent and continuous and which could be acquired by prescription, and because it was also held, under the evidence, that the plaintiff had notice of said servitude before he purchased the property, while in the present case there is involved a servitude which by reason of its being a discontinuous one, can only be acquired by virtue of a title, whether such servitude be apparent or not; and because although the property purchased by the plaintiff is crossed by a railroad track that fact may exist without any servitude title, by mere tolerance.
The mere fact of the existence of a railroad track on a property which is purchased does not impose any duty upon the purchaser to make inquiry as to whether the owner of such track holds any servitude title thereto or whether the latter is sufficient to establish such right of servitude. To maintain otherwise is to render unnecessary the recording of that title in the Registry of Property in order to prejudice a third person, because then the placing of the track and the existence of a servitude title even though the same is not recorded in the registry, would suffice.
Inasmuch as no recorded servitude of passage which may affect the purchase made by the appellant exists, and as the kind of servitudes to which we have referred can not be acquired by prescription, it is unnecessary to decide whether such servitude is not binding either, by reason of the appellant having acquired the one-acre property by purchase at a sale made by The People of Puerto Rico for the collection of taxes due thereon.
The judgment appealed from should be reversed and another rendered in favor of the plaintiff, without any special imposition of costs.