People v. La Sociedad McCormick, Alcaide & Co., S. en C.

Mr. Justice Belaval,

dissenting.

On April 19, 1950, The People of Puerto Rico condemned, a parcel of land belonging to Carlos J. Torres and his wife-Estela Alcaide de Torres, situated in the ward of Hoyos. Muías of the municipality of Carolina, Puerto Rico, on which certain structures were erected. The People deposited in the-former Court of Eminent Domain the following amounts: $1,528.52 for the land and $17,747.50 for certain structures, and improvements existing on the parcel. Part of the land, taken and the existing structures were leased to the Sociedad McCormick Alcaide & Co., S. en C., a partnership actually controlled by the spouses owners of the land. Since we are-concerned with reversionary interests, we shall study the issue from the standpoint that there is an identity of interests between the Sociedad McCormick Alcaide & Co., S. en C., and the Torres-Alcaide spouses as respects any possible liability to the last lessee, the Floor Coverings Company of Puerta-Rico, Inc. The property leased to Sociedad McCormick Al-caide & Co., S. en C., was in turn leased by the latter to Floor Coverings Company of Puerto Rico, Inc., under a written, contract which was not recorded in the Registry of Property and which would expire some time in September 1951..

There is no question that any rights which the last lessee may have in this case were not reckoned in the appraisal made-by The People of Puerto Rico for the purpose of fixing the compensation to be deposited in court, and, therefore, the-possible lease value of the Floor Coverings Company of Puerto* Rico, Inc., was hot included in the sum deposited.

The position taken by The People of Puerto Rico is that,, since the amount deposited was the physiocratic value of the-property, it should be understood to include any claim of the-lessee against the lessor or against the owners of the land,, and, therefore, that such claims should be paid out of the sum deposited as just compensation. The position taken by the-condemnees is that the compensation received by them did. not include any amount representing the possible value of.' *923the last lease; and that, in the event it was included and it was their duty to pay the same, the leasehold had no market value. The position taken by Floor Coverings Company of Puerto Rico, Inc., the lessee, is that someone must compensate it for the value of the lease; that if The People failed to take it into consideration when fixing the value of the condemned property, The People was bound to deposit an additional amount, within the reasonable compensation of the property, for the value of the last lease; that, on the contrary, if the value had been included in the appraisal and was included in the compensation withdrawn by the owners of the land, the owners were bound to pay the leasehold value. We agree that the respective theories of the parties are not expounded in the written debate of the proceeding as clearly as they should have been, for a better elucidation of the case. Yet, the brief abstract made by us in the preceding paragraph presents more or less the true' position taken by the parties, during the proceedings.

The trial judge concluded that the leasehold of Floor Coverings Company of Puerto Rico, Inc. was compensable and that it was not included in the appraisal of the property on which the compensation deposit was based, and rendered judgment ordering The People of Puerto Rico to pay a certain sum which constituted the market value of the last lease. On appeal, The People of Puerto Rico maintains that the former Court of Eminent Domain of Puerto Rico erred in concluding that the sum deposited by The People of Puerto Rico as representing the value o f the property did not include the rights of the second lessee, and that it erred in holding that The People of Puerto Rico was bound to appraise the leasehold and to pay for it. The condemnees and owners appeal from that part of the judgment holding that the lease contract made by McCormick Alcaide & Cía., S. en C., and Floor Coverings of Puerto Rico, Inc. had terminted by virtue of the condemnation of the land and the buildings on April 19, 1950, and *924that the lessor had no right to collect rent on the uncondem-ned portion of the leased property. The second lessee appeals from that part of the judgment which denies it'the right to recover the expenses of moving industrial equipment from the condemned premises, loss sustained as a result of the suspension of its industrial activities during the time taken in moving its industrial machinery, and costs for reinstallation in its new premises, and denies it the right to recover from the Torres-Alcaide spouses the proportionate part of the cost of the improvements made by the corporation on the condemned estate.

The law involved in this case is § 2, ninth paragraph, of the Organic Act of Puerto Rico of 1917, which provides: “Private property shall not be taken or damaged for public use except upon payment of just compensation ascertained, in the manner provided by law”; § 282 of the Civil Code of Puer-to Rico, 1930 ed., as amended by Act No. 300 of April 12, 1946 (Sess. Laws, p. 774) which provides: “No person shall be deprived of his ownership except it be by a competent authority and for a justified purpose of public utility or social benefit, and upon payment of just compensation which shall be fixed in the manner provided by law” The law establishing the manner for fixing the compensation is the Condemnation Act of 1903 (Sess. Laws, p, 50), as amended by the Act of March 11, 1908 (Sess. Laws, p. 94), the Act of March 12,1908 (Sess. Laws, p. 96), Act No. 68 of September 3,1910 (Spec. Sess. Laws, p. 41), Act No. 73 of July 20, 1921 (Sess. Laws, p. 674), Act No. 50 of April 28, 1930 (Sess. Laws, p. 400), Act No. 44 of August 6, 1935 (Spec. Sess. Laws, p. 508), Act No. 2 of April 1, 1941 (Sess. Laws, p. 284), Act No. 19 of November 30, 1942 (Spec. Sess. Laws, p. 82), Act No. 216 of March 27, 1946 (Sess. Laws, p. 422), Act No. 105 of May 7, 1948 (Sess. Laws, p. 240), Act No. 148 of April 29, 1949 (Sess. Laws, p. 394), and Act No. 286 of March 12, 1949 (Sess. Laws, p. 844).

*925The first problem confronting us is this: In a condemnation case, are the rights of an unrecorded lease compensable? The lease is one of the group of rights inhering in a juridical thing, which as a whole constitute the ownership right to a specific thing. In the concept of our Civil Code as well as in the concept of our Condemnation Act of 1903, as subsequently amended, it has been established that the ownership right is not absolute, Unitarian, to which all other property rights, comprised in the power to dispose of the property, are subjected, but a group of all rights constituted or inhering in a juridical thing, in pursuance of law. The absolute concept of ownership, called dominion, or simple ownership, has not been favored by any school of juridical thought and has been relegated as a medievalism proper of the feudal mentality. In his Compendio del Derecho Civil de España, Felipe Gon-zález Rojas’ ed., Marco Tulio states at pp. 168 and 169 the following: “Ownership has been defined in several ways, among the many existing definitions, [and] we shall confine ourselves to the following: 1. Of the Roman Law: Tower exercised over a corporeal thing, from which emerges the right of using, disposing of, and vindicating a thing (jus utendi, abutendi, et vindicandi) ’; 2. Of the Ley de Partida: ‘Dominion (sonorie) is the power which one has over the things that belong to him; to do with them as he thinks fit, according to the law of God and man’; 3. Of the Civil Code: ‘Ownership is the right to enjoy and dispose of a thing without further limitations than those established by law’; In fact, from a comparison of these definitions we find none as precise as the Roman law: “ ‘the right to use, to dispose of, and to vindicate,’ said the Romans, expressing with those words the real essence of the ownership right, which permits the owner of a thing to do with it as he sees fit, but not in an irrational way, abusing it as some have translated the word abutendi, but using it in consonance with its nature; we have said the right to use a thing jus utendi to indicate that one may use it, enjoy it, take the profits of it, etc., in such manner as he may *926.see fit; jus abutendi, to express that in the use of the thing one may even consume it, if it is one of those things which .are consumed by use; jus disponendi, or the right to dispose of the thing as one wishes, either by conveyance to someone •else, or alienation, or encumbrance, or mortgage, etc.; and jus vindicandi, to indicate that one has the right to exclude anyone from the possession of the thing, that he may revendicate it from any possessor who may have it in his possession; the modern definitions do not define the concept of ownership with the same precision as the Roman Law, because they have tended to reconcile the powers inherent in the ownership or dominion with the indispensable limitations for the sound use of the things; hence, it has been stated in the Civil Code as well as in the Code Napoleon that it is the right to enjoy .and dispose of a thing without further limitations than those prescribed by law; that is, that the idea of limitation prevails.” In this connection, see 3 Manresa 130 (6th ed. by Editorial Reus) (1934).

In the case of a lease contract recorded in the Registry of Property, the ownership right secured by the thing, represented by the recorded lease, becomes a real encumbrance which affects not only the owner’s right to dispose of the leased property, but also the real property or corporeal thing itself on which the lease is constituted. In this case the value of the leasehold, capitalized like any other real right, is a part of the value of the thing, as is a mortgage, an annuity, .a real property right of use or habitation.

In the case of an unrecorded lease contract, the situation :is different. Section 1461 of the Civil Code of Puerto Rico, 1930 ed., provides that “the purchaser of a leased estate has .a right to terminate the lease in force at the time of making the sale, unless the contrary is stipulated and the provisions ■of the Mortgage Law prevent. If the purchaser should make use of this right, the lessee may demand that he be permitted to gather the fruits of the crop corresponding to the •current agricultural year and that he be indemnified by the *927vendor for the losses and damages he may have suffered.” .From all of which it follows that if the termination of an unrecorded lease is brought about by a voluntary act of the former owner, such owner is bound to compensate the damages caused to the lessee, who must vacate the leased premises before the legal expiration of his contract.

However, where the leased object or thing is taken for public purpose, there is no question that the termination of the unrecorded lease is not due to a voluntary act of the former owner but to the action of a person having a social right paramount to that of the former owner and to that of the lessee himself. Yet, this paramount social right may not he exercised by the State without duly compensating all persons having a title of ownership or interest in the condemned object or thing, and all persons sustaining damages as a result of such taking. Theoretically, there may arise the problem of the condemnor’s liability viewed from two aspects: (1) the State, upon acquiring all the property rights to the ■object or thing taken, is substituted for the former owner in all liabilities of the latter to the lessee; (2) the State, in the ■exercise of its paramount social right, is bound by constitutional provision to compensate the right of the owner of the thing as well as the interest which any person may have therein, and the damages which any person may suffer by virtue of the acquisition of possession of the thing. Therefore, whether it is a case of subrogation or a case of extin-guishment of a right by the prior payment of the corresponding compensation, the State becomes liable for payment for the owner’s right as well as for the right of the person having ■an interest in the thing, and for the damages caused to the lessee who holds the premises under an unrecorded lease.

The twofold aspect of the State’s liability will be better understood by studying the original concordance of our Condemnation Act of 1908 with the Civil Code of Puerto Rico of 1902. Section 335 of the 1902 ed. of the Civil Code of Puerto Rico, which became § 282 of the 1930 ed. and to which ref*928erence is made in § 1 of the Condemnation Act of 1903, provided that: “No person shall be deprived of his ownership, except it be by a competent authority and for a justified purpose of public utility, and after having been properly indemnified ; if this requirement has not been complied with, the district courts shall protect and, in proper cases, replace the owner in possession of the expropriated property; the indemnification shall comprise, not only the value of the thing whereof the owner is deprived, but also a compensation for any damages and injuries which may be caused him by the deprivation of the property,” such as the compensation which the owner would be bound to pay to the lessee for the termination of an unrecorded lease before expiration. As has been noted, in the original wording of § 335 of the Civil Code of Puerto Rico, on which our Condemnation Act of 1903 is based, a distinction was clearly made between the physiocratic value of the thing, as real or corporeal property, and the value of the other profits affected by the taking and the other damages caused by it. It is true that after the Amendment of this section by Act No. 300 of April 12, 1946, its provisions read as follows: “No person shall be deprived of his ownership except it be by a competent authority and for a justified purpose of public utility or social benefit, and upon payment of just compensation which shall be fixed in the manner provided by law.”

Still, upon examination of § 4 of the Condemnation Act of 1903, as amended by Act No. 105 of May 7, 1948, which includes a further provision to the effect that “The complaint may be directed against the owners of the estate, the occupants thereof, and all other persons having a right or interest therein; or it may be directed against the property itself. In this latter case, the complaint shall recite, as far as it may be possible for the plaintiff to determine, the names of all persons who as owners, occupants, or holders of any right or interest in the estate, must be served with notice of the proceedings, to the end of any right they may have to the compen*929sation fixed for the value of the condemned property, or to any damages that may arise from the proceedings,” once more legislative will sanctions the former concept of considering the value of the thing taken as something separate and independent of the value of other rights therein, which is consonant with the original provision of § 5 as to that portion excluded from the amendments to § 5, which reads: “All persons in occupation of, or having or claiming an interest in any of the property described in the complaint, or in the damages for the taking thereof,.. . may appear, plead and defend, each in respect to his own property or interest or that claimed by him. . .in the complaint.” (Italic ours.)

Conclusion: The compensation provided by the Condemnation Act of 1903 is greater than the compensation for the mere physiocratic value of the thing, and, hence, the following are compensable: (1) the value of the thing as real property, and (2) the other grouped property rights inhering in the thing, such as the rent, the mortgage, the use, the habitation, the lease. Where leased property is condemned, the lease recorded in the Registry constitutes a real encumbrance which affects the value of the thing and should be reckoned as part of its value. If the lease is not recorded, compensation will be required for the damages to the lessee.

The two major obligations of the Puerto Rican State in a case of condemnation of private property are (1) the payment of just compensation to all persons having an ownership right or any interest in the thing condemned, or who suffer any damage, or both, as result of the taking, as already seen, and (2) the notice required not only by the statute but also by due process of law, in order that all persons affected by the condemnation may appear to assert their respective rights. In the instant case it seems to have been assumed that the State was bound to compensate only the owner of the condemned property, or the owners of the real rights recorded in the Registry of Property, and no notice was given to the lessee. There is evidence that the owners of the land and *930buildings informed the condemning officers, both in writing and verbally, of the existence of the lease. In United States v. Certain Parcels of Land, 40 F. Supp. 436, 444 (Chesnut, 1941), it was held that the interests of unnamed and unknown parties are not concluded by the proceedings, even though the government has taken title and possession to the land and the fund has been fully distributed by the court because the general principle of due process is that no person is bound by court proceedings who has not been a party to the proceedings. Regarding the need to notify any person of the disposition to be made of the compensation, even if such person has failed to appear in the proceeding after being summoned, see People v. 632 Sq. Meters of Land, 74 P.R.R. 897, 915 (Snyder, 1953). See, also, Musanti v. State, 131 N.Y.S. 20, 21 (Roden-beck, 1911).

After fixing the value of the property, of the rights of every person having an interest therein, and of the resulting damages to the occupants, possessors, usuaries, or lessees, the next important step of the condemnation proceeding is the notice. In Puerto Rico it should not be difficult to determine the true owners of a property, since there is an official record in the Registries of Property as to the condition of the titles and other real rights. In the case of unrecorded properties, the condemnor should be guided not only by the information obtained from wrongful tenants (precaristas), occupants, usuaries, or lessees, but also by the procedure of summons by edicts of all other unnamed or unknown persons who may have an interest in the condemned property or who may suffer some damage by the condemnation. As a matter of law, the State’s liability continues until all the rights of all persons having a title, share, or interest therein have been adjudicated within the condemnation proceeding.

Although the State, by subrogating itself to the liabilities of the owner or of the sublessor, is bound to compensate the owner of an unrecorded lease for the damages that might have been foreseen at the time of contracting the obligation *931and which may be a necessary consequence of its nonperformance, it is not bound to compensate all the damages suffered by the lessee. The damages which it is bound to compensate are those mentioned in § 1461 of the Civil Code of Puerto Rico. The Judgment of November 3, 1892 of the Supreme Court of Spain, commented on in 10 Manresa 660, 5th rev. ed. of 1950 by Instituto Editorial Reus, establishes that “The damages for which the vendor of a leased estate is liable to the lessee are those foreseen, or that might have been foreseen at the time of incurring the obligation and which are a necessary consequence of its nonperformance. Section 1107 [our § 1060] is therefore applicable, and the vendor is considered a debtor in good faith. The question involved was the eviction of a photographer, and the vendor was ordered to compensate only: (1) the moving expenses; (2) the dismounting and installation of the premises used in the industry; (3) the dismounting and reinstallation of the portal for publicity; and (4) the cost of the materials rendered useless.”

In view of the failure of the Condemnation Act of 1903, as amended, to specify what damages are compensable, we must apply § 1461 of the Civil Code of Puerto Rico in order to determine what damages are actually compensable in the case of an unrecorded lease. It has been seen that the vendor of the leased property is considered a debtor in good faith, unless it is otherwise established, a principle which seems very logical where the subrogated vendor is the State, the presumption being that it is acting for the public benefit.

Applying this principle to the modern realities of manufacturing plants, the following are compensable: (1) moving expenses from the condemned manufacturing plant to the new plant leased or constructed; (2) expénses of dismounting the machinery in the condemned manufacturing-plant and of remounting in the new plant leased or constructed; (3) the industrial material rendered useless by the change or moving from one plant to another, in the case of *932machinery or artifacts manufactured or constructed to be installed in a specific area.

By the same token, damages will not be allowed for interruption of the industrial activities, or for the loss of some of the annexes erected to facilitate the use of the leased premises, or for the loss of time or money spent in training a new group of industrial workers in a different zone, since the foreseen damages are those of the “anticipated eviction.”

Regarding the improvements made by the lessee in the condemned industrial plant, the contract made by the second lessor and the second lessee, intervener herein, specified that the improvements would inure to the benefit of the lessor at the expiration of the lease. The only effect of the condemnation was to anticipate by one year more or less the legal expiration of the lease. The compensation would be for the loss of the use of the improvements made in the plant. The evidence established that the improvements were made jointly by the lessor and the lessee; that the improvements were permanent for the purpose of converting a barn into an industrial factory; that the lessee spent $4,176.66 for its portion of the improvements under the contract. In fact, this damage is not properly comprised in the compensation allowed to the lessee of an unrecorded lease contract, terminated by the condemnation proceeding. This is an unsual case in which the ownership of the improvement belongs to the owners and the use to the lessee. The lessee may therefore be regarded, in addition to lessee, as an usuary of the improvement. As usuary, it would be entitled to a compensation wholly independent of and apart from the compensation to which it would be entitled as lessee. The trial judge considered it as money invested and unexpended, and, in order to compensate it, he divided the amount invested by the lessee in the improvements by the number of months comprised in the full term of the contract. After obtaining the cost of the improvements per month, he multiplied the same by the number of months remaining at the time of the condemnation, a *933formula which seems more logical and sane in this particular case, in order to determine the proximate value of the use. We note, however, a slight error in estimating the number of months which had yet to run. As admitted by factory manager Molina (Tr. Ev. 56), the factory was operated until the first week of July 1950. The contract was to expire.on July 31, 1951, or 13 months in all. The money spent by the lessee in the improvements was $4,176.66. Dividing this sum by 60 months, the life of the lease, the result is a monthly investment of $69.61 in addition to the rent. Multiplying this sum by the remaining 13 months of the contract, gives $904.94. Since the interruption in the use of the improved property is caused by the condemnation, it is only fair that the State rather than the lessor pay the compensation.

Another matter tangent to the appraisal is the contention of the owners or lessors that, since the condemnation was not total because a dwelling occupied by the directors or employees of the lessee as a residence was not taken, the lease contract remained in effect as to the dwelling and it was the lessee’s duty to pay to the condemnees or lessor partnership the proportionate rent of the dwelling. The lessee alleges, on the contrary, that the lease contract was necessarily rescinded in its entirety, since the house, without the manufacturing plant, was of no use to it. Although we have refused to allow compensation for any damages in the case of unrecorded leases other than those anticipated at the time of making the contract, we cannot overlook the fact that there is involved another germane issue, posed within the proceeding, by reason of the fact that the trial judge admitted evidence on this point and expressed his opinion thereon, and that it was assigned as error by the owners and the lessor. Moreover, if we were to hold that the owners or lessors are entitled to receive that rent, there is no question that we would have to consider damages caused by aggravation and to which the lessee would be entitled as damages independent of *934the anticipated eviction. Let us see whether, as a question of law, the owners or lessors are right.

Section 1458 of the Civil Code of Puerto Rico, 1930 ed., equivalent to § 1568 of the Spanish Civil Code, provides that “If the thing leased is lost or any of the contracting parties do not comply with what has been stipulated, the provisions of sections 1136, 1137, 1054 and 1077 shall be respectively observed.” Of these four sections, the one actually bearing on this point is § 1077, which provides that “The right to rescind the obligations is considered as implied in mutual ones, in case one of the obligated persons does not comply with what is incumbent upon him. The person prejudiced may choose between exacting the fulfilment of the obligation or its rescission, with indemnity for damages and payment of interest in either case. . .” In legal substance, condemnation produces the compulsory nonperformance of all the obligations affecting the condemned property. In cases of leases on the condemned property, where the lessor must of necessity fail to comply with the conditions of the lease and the condemned property is lost or partially destroyed, we must determine whether “that essential change of condition which renders it unfit for the purpose for which it was devoted” has taken place. 10 Manresa 632 (ed. cit.) In the instant case the principal real property was the factory. The dwelling was occupied by the directors or employees so they could live near the manufacturing plant. Once the factory is destroyed, the dwelling undergoes an essential change of condition which renders it unfit for the purpose to which it was devoted. This being so, the lessee could rescind the lease in its entirety as a result of the unavoidable failure to comply as well as of the change undergone by the leased property, and the owners-lessors have no right to continue receiving rent for the use of the house and the land on which it is erected, it being the duty of the owners-lessors to pay over to the State the rent received from the moment the court issued the order to surrender the condemned property.

*935The judgment should therefore be modified awarding to the lessee and intervener Floor Coverings Company of Puerto Rico the following amounts:

1. For the interrupted use of the improvements made by it.■. $904.94
2. Five-hundred hours moving labor at 35 cents per hour (Tr. Ev. 68). 175. 00
3. Twenty-two 12-mile trips, or 264 miles, at 15 cents, and $40 wages to the chauffeur.... 79. 60
4. Rent of lift truck for 5 days at $20 per day (Tr. Ev. 70). 100. 00
5. Rent of long machinery, winches, and block-ings (Tr. Ev. 70). 100. 00
6. Supervision of work, 2 weeks (Tr. Ev. 70) . . 300. 00
7. Frame which could not be used because of inadequacy of new premises.:2, 000. 00

which should be paid by The People of Puerto Rico with legal interest from July 1, 1950.

The majority opinion, arriving at a different result, contains a series of assertions with which I cannot agree. Assuming, without deciding, that our condemnation proceeding were always in rem, it would only mean that the claims by persons with a right or interest in the property, instead of being directed against the property, should be directed against the funds which substitute it. This purely procedural aspect of condemnation does not affect the rights against the fund. United States v. Petty Motor Co., 327 U. S. 372, 376, 90 L. Ed. 729, 734 (Reed, 1946).

Again I fail to see how the right to compensation may be affected by the type of title acquired by the State. The assertion in the opinion of the majority that what the Govern-' ment condemns is the absolute dominion title to the property taken but not the diverse interests of defendants specifically, seems to bear the implication itself that the “absolute dominion title” does not include any of the rights or interests of the usuaries, lessees, usufructuaries, annuitants, mortgagees, *936or any other persons with real or contractual rights to the thing taken. This statement is so serious that I have decided to expand my previous analysis as to what constitutes the right of ownership, in order to determine the true meaning of the concept of “absolute dominion title.”

The Condemnation Act of Puerto Rico has only two sources of inspiration: the Condemnation Act of January 10, 1879 of Spain, coordinated as to its terminology and definition of rights with the Spanish civil law, and Public Law 736 of February 26, 1931 of the United States Congress, relating rather to only one aspect of our condemnation proceeding: the order to take and deliver, coordinated as to its terminology and definition of rights with the federal decisions. There can be no doubt of the coordination of the principles of our Condemnation Act with our Civil Code. Our Condemnation Act does not purport to define any of the rights therein referred to, but: rather employs them in the generic acception which they have in our Civil Code.

Our Condemnation Act does not define the meaning of “absolute dominion title”. In the Spanish and Puerto Rican legislations, which are contemporaneous with the Spanish and Puerto Rican condemnation laws, the concept of absolute dominion title mancipium (spoils of war), dominium (quiritary title, seigniory) does no exist, as would have been understood in the age of the Gothic monarchy or the Arab rule, which was the actual feudal period of the Spanish law. It may be asserted with absolute certainty that since 1811 in the Spanish civil law, after which our law is patterned, the territorial and manorial seigniories were reduced to mere rights of individual ownership. The same may be said of family estates, abolished since 1820. When our Civil Code speaks of ownership (dominion) its divisibility is consecrated according to the transformation of the old manorial servitude: dominium directum, dominium utile, or it is considered as one, among others, of the real rights. (Section 545 of the Civil Code of Puerto Rico, 1930 ed.) In the Spanish Civil Code and the *937Civil Code of Puerto Rico in force at present, the accepted term is ownership right (proprietas), as already stated, which is considered as a group of property rights inhering in the thing which is the object of the contract. Ill — I Puig Peña, Tratado de Derecho Civil Español 66 (ed. by Revista de Derecho Privado). That is why, in referring above to the •ownership right, we consecrated its divisibility among the rights to use, abuse, dispose of, and vindicate the thing, following Marco Tulio’s commentaries.

The federal jurisprudence has long since set aside the theory of that type of English agnatic family estate, derived from the Roman system of feudum talliatum (fee tail), and adopted the theory of fee simple, a group of rights inhering in the thing. In United States v. General Motors Corp., 323 U. S. 373, 377-78, 89 L. Ed. 311, 318 (Roberts, 1945), the concept of fee simple was defined as follows: “The correctness ■of the decision of the court below depends upon the scope and meaning of the constitutional provision: ‘nor shall private property be taken for public use, without just compensation’. The critical terms are ‘property,’ ‘taken,’ and ‘just compensation.’ It is conceivable that the first was used in its vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. On the other hand, it may have been employed in a more accurate sense to denote the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and ■dispose of it. In point of fact, the construction given the phrase has been the latter. When the sovereign exercises the power of eminent domain it substitutes itself in relation to the physical thing in question in place of him who formerly bore the relation to that thing, which we denominate ownership. In other words, it deals with what lawyers term the individual’s ‘interest’ in the thing in question. That interest may comprise the group of rights for which the shorthand term is ‘a fee simple’ or it may be the interest known as an ‘estate or tenancy for years,’ as in the present instance.” *938(Italics ours.) In that case it is also held that the constitutional provision of just compensation is addressed to every1 sort of interest the citizen may possess. 323 U.S., at 378;: 89 L.Ed., at 318.

Whether the concept “absolute dominion title” is considered as a group of property rights inhering in a thing, according to the civil-law theory, or as a group of rights inhering in the citizen's relation to the physical thing, it is clear that the absolute dominion title (fee simple) is not a right integrated in itself, capable of immobilizing other property rights, according to its medieval conception, but all the property rights to the thing which is the object of the contract. The significance of defining clearly and accurately the scope as well as the meaning of this concept, in condemnation matters, lies in the fact that it is intrinsically related to the distribution of the just compensation. The divisibility of the title entails the divisibility of the right or interest and, hence,, the divisibility of the compensation.

Condemnation laws are, however, essentially procedural laws. The nature, definition, and scope of the rights recognized therein are not defined in those laws. Therefore, in order to find such nature, definition, and scope we must look to the substantive laws, which ordinarily provide everything concerning those rights.

Section 1461 of the Civil Code of Puerto Rico (1930) expressly provides that “the purchaser of a leased estate has a right to terminate the lease in force at the time of making the sale, unless the contrary is stipulated, and the provisions of the Mortgage Law prevent. If the purchaser should make' use of this right, the lessee may demand that he be permitted to gather the fruits of the crop corresponding to the current agricultural year and that he be indemnified by the vendor for the losses and damages he may have suffered.”

At first glance, this section, as drawn up, seemingly applies to rural leases exclusively. But this is not so. It applies to *939rural and to urban leases as well. Judgment of September 27, 1905 of the Supreme Court of Spain.

As may be seen, pursuant to the Civil Code a lessee under a fixed-term contract, not recorded in the Registry of Property, is entitled, at the time the property is sold by the owner, to be indemnified for the damages he may have suffered by the vendor, former lessor. In a condemnation case the sale is compulsory and, hence, the State “is substituted for the lessor and pays the compensation which the latter may be bound to pay because of the termination of the lease contract.”' 10 Plañid Ripert, Derecho Civil Francés, 836-37. The fact that the compensation is for damages presents no problem, since our former Organic Acts as well as our present Constitution provided just compensation for the value of the thing' itself as well as for the damages caused by the taking. People v. García, 66 P.R.R. 478, 484 (De Jesús, 1946); People v. Soc. Agric. Mario Mercado e Hijos, 72 P.R.R. 740, 746 (Todd, Jr., 1951).

Summing up our local law, it has been held by the majority opinion that, when dealing with the condemnation of a property leased for a fixed term without a recorded lease, the compensation to the lessee must be computed on the market value of the lease rather than on the damages suffered. The supporting authorities are characteristic of those cases wherein the lessee’s right to compensation for damages resulting from a compulsory sale of the leased property was not regulated by the local law, as is the case in Puerto Rico. Some of them deal with leases containing automatic-expiration clauses in the event of condemnation. Those authorities are not therefore of such strict application as to lead us to reason differently the literal interpretation of our law. The appraisal of unrecorded leases on the basis of the market value would result in a more cumbersome burden to the State than the burden which an individual must bear by reason of the breach of an unrecorded private lease contract.

For the reasons stated, I must dissent.