dissenting.
Based on the facts set forth in the majority opinion, we express our dissent with the conclusion established in said opinion in regard to the character of the servitude. Ordinarily, the servitude of right of way is discontinuous and must be acquired by virtue of title. In regard to this particular, the jurisprudence is unanimous. However, the current servitude of right of way which courts and commentators call discontinuous, can not be mistaken with the railroad right of way, which is stable, permanent, exclusive and ostensible, and has all the characteristics of a continuous and apparent servitude. The track laid and prepared for the passage of the trains, with its rails placed parallel, occupies *216continuously a strip of land which, can not he used for any other thing than the operation of the railroad. The use of that land, therefore, has the characteristics of continuity.
This court, in Torres v. Plazuela, 24 P.R.R. 451, 452, expressed its doubts as to the nature of a servitude exactly similar to the one involved in this case. Speaking through Mr. Justice Wolf, this court expressed itself then as follows:
“There is some question as to the nature of the servitude in this case. Generally, a right of way is a non-apparent, discontinuous servitude. If this is so, the appellants are right in maintaining that under sections 546 and 547 of the Civil Code such a right can only be acquired by a written title. On the other hand, if by reason of the placing of the rails on the land the servitude becomes apparent, then there may be serious doubt if a written document is needed. Scaevola, Yol. X, p. 238. In any event, it was necessary for the appellee to prove a title of some sort. We shall briefly discuss whether the appellee, irrespective of any principle of estoppel, acquired a title in this case.”
In González v. Plazuela Sugar Co., 42 P.R.R. 676, Mr. ■ Justice Texidor, speaking for the court, reproduced the doubts expressed in the decision above quoted and added:
“Personally, the writer of this opinion would go a little further and say that this kind of servitude of passage is, by reason of its use, always of a discontinuous character. In the present ease there is no doubt that its acquisition required a written title. Section 539 of the Civil Code defines continuous and discontinuous servitudes as follows:
“ ‘Continuous servitudes are those the use of which is or may be uninterrupted, without the intervention of any human act.
“ ‘Discontinuous servitudes are those used at long or short intervals, and which depend upon human acts.’
“When a servitude is used at long or short intervals, and depends upon human acts, it can only be characterized as discontinuous, which characterization applies to an easement of way for the passage of trains transporting the crops from any particular estate.
“A discontinuous servitude, whether apparent or not, can only be acqirred by virtue of a title (section 546 of the Civil Code); and from a reading of section 547 of that Code there can be no doubt *217that the title must he one establishing a servitude, and that this species of servitude can not be acquired by prescription; which is perfectly logical, as the acts of use, not being continuous but having a commencement and an end which recur without perfect continuity, can not create a prescriptive right.”
Although. Mr. Justice Texidor appears as delivering a personal opinion, it may be said that this court accepted his viewpoint, since the decision rendered shows that it had the unanimous approval of the court. However, in Román v. Plazuela. Sugar Co., 44 P.R.R. 50, this court, in referring to the railroad track which was claimed by the defendant to constitute a servitude acquired by prescription, expressed itself as follows:
“ . . . The district court held that defendant had acquired an easement by prescription. Whether or not an easement of the sort claimed by defendant can be acquired by prescription is an interesting question. It need not be decided now. See, however, Torres v. Falgoust, 35 La. Ann. 497; Torres v. Plazuela Sugar Co., 24 P. R.R. 451; 2 Morell, Legislación Hipotecaria, 666; 10 Scaevola, Comentarios al Código Civil 260, and 4 Manresa, Comentarios al Código Civil, 599.”
It is thus seen that this court has had serious doubt and that it still is undecided and hesitant in regard to this important question, in spite of having adopted' the personal viewpoint of Justice Texidor. We do not wonder at such doubt and vacillation, because really the nature of this servitude has not yet been discussed with all the care and amplitude necessary to be able to reach a conclusion serving as a precedent and to definitely establish the viewpoint of this court.
The Spanish commentators are silent in regard to this servitude of right of way, which does not appear as having been discussed and determined by the Supreme Court of Spain. In the State of Louisiana, where like in Puerto Rico sugar cane is grown and transported to the factory, a case has been decided which directly deals with such a railroad right *218of way over a private property and for the benefit of a private undertaking. It is not possible to deny, however, the continuity of the service rendered by the land occupied for the passage of trains. It is sufficient to apply the general legal principles on servitudes to arrive necessarily at the conclusion that such service is continuous and that it is rendered constantly with or without the intervention of human acts.
In Prance it has been held, construing the Code of Napoleon, that the servitude of right of way over a macadamized road goes on being discontinuous, notwithstanding its apparent continuity, because it requires for the exercise thereof a human act. We agree that the physical act of passing must be executed by a person; but if the use is continuous and as in the present ease rails must be laid and the track prepared for the passage of engines, any servitude arising from the installation of these contrivances over which trains pass, constitute a unity including all these elements which supplement each other and are merged into a single structure.
The opinion delivered by the Supreme Court of Louisiana in the case of Ogborn v. Lower Terrebonne Refining & Mfg. Co., 129 La. 379, is interesting and deserves reading. In that case the Justice who wrote the opinion set forth a personal viewpoint and adduced arguments to show that this servitude is continuous and apparent; but he added that the majority of the court thought differently on the grounds set forth by him. At the end of its opinion the court said that in France a servitude of right of way does not cease to be discontinuous within the provisions of the code if use is made thereof by means of a macadamized road and it is added that the character of this road is as apparent and continuous as that of a railroad and that, therefore, both servi-tudes can not be distinguished. We transcribe in full the opinion rendered by the said court, as follows:
*219"Defendant is operating a tramroad across the land of plaintiff for tbe transportation of its sugar cane to its factory, and this suit is an injunction to prevent it from doing so. Defendant claims to have a servitude of passage on plaintiff’s land, by virtue of the prescription of 10 years. Plaintiff contends that such a servitude is a discontinuous servitude, and therefore not prescriptible. Whether that contention is well founded is the only question in the case.
"The writer of this opinion thinks that a servitude, the exercise of which necessitates the permanent maintenance of a railroad, consisting of roadbed, cross-ties, rails, bridges, etc., of which the dominant estate has the exclusive use, and of which the servient estate has only the burden, is a continuous apparent servitude. It is admittedly so at common law, and, in the writer’s opinion, must be so under the civil law also, because the basic principles of prescription are the same in the two systems of law. The majority of the court think differently, however, and for the following reasons:
"Article 727, C. C.:
" ‘Servitudes are either continuous or discontinuous.
" ‘Continuous servitudes are those whose use is or may be continual without the act of man.
" ‘Such are aqueducts, drain, view and the like.
" ‘Discontinuous servitudes are such as need the act of man to be exercised.
" ‘Such are the rights of passage, of drawing water, pasture and the like.’
"Art. 766:
" ‘Continuous nonapparent servitudes, and discontinuous servi-tudes, whether apparent or not, can be established only by a title.
" ‘Immemorial possession itself is not sufficient to acquire them.
" ‘Immemorial possession is that of which no man living has seen the beginning and the existence of which he has learned from his elders. ’
"In the ease of Torres v. Falgoust, 37 La. Ann. 497, where a lane connecting a populous back settlement with the river front had existed and been open to the public for well-night a century through the plantation on the river front, and been constantly used by the public, this court held that the servitude was discontinuous and im-prescriptible.
"Aubry & Bau, commenting on the articles of the Code Napoleon corresponding with the foregoing articles, has the following:
" ‘Discontinuous servitudes are those which need the act of man to be exercised. What characterizes them is that their exercise does *220not survive tbe act of man; it ceases the moment this act ceases. Such is the servitude of way; it is exercised each time the owner of-the dominant estate passes over the servient estate, and only during the time occupied in his passing. The law cites as additional examples servitudes of drawing water, of pasturing cattle.
“ ‘These servitudes continue to be discontinuous, notwithstanding that in order that they should be exercised certain apparent works have had to be established. The reading together of articles 688 and 689 shows that the Code has employed two distinct divisions, which must not be confounded, “appearance” and “continuity.” A servitude of passage which manifests itself bjr a door or gate, of which the key has been delivered to the owner of the dominant estate, or for which visible works have been constructed — for example, a road across the neighboring estate, a bridge — is none the less discontinuous, according to the classification made by the Code.’ Volume 8, p. 118, No. 248, Servitudes.
“From the standard work, Carpentier et Du Saint (volume, Passage, Nos. 56 and 57), we take the following:
“ ‘The servitude of way may be apparent. It is so if it manifests itself by some exterior work, as a gate, or a macadamized road. But it continues, nevertheless, to be a discontinuous servitude, despite its apparent continuousness, and, inasmuch as the actual action of man is necessary for its exercise, it cannot be established by prescription.’ (Citations.)
“It is thus seen that in France a servitude of passage is none the less discontinuous, within the meaning of the above-quoted article of the Code, if exercised by means of a macadamized road. A road of that character is as apparent and continuous as a railroad; and hence the two are not distinguishable in the present connection. ’ ’