with whom
Mr. Justice Ramírez Bages concurs, dissenting.*698I regret to dissent from the majority opinion in this case. This is a case of accession but it is also a case of what Iher-ing, Castán Tobeñas and others have called the realization of the law. That is, to take in each the law that is written on paper and make it a reality. The realization is the life of the law. As Castán has written “the Law is to serve life, or, more exactly, pursues the realization of justice in life” and adds “this realization of the law may be conceived, and has been actually understood, in various times, in two different ways : as mere application of an abstract rule to concrete cases, or as the true and proper realization or elaboration of the Law.” a Of the two modes mentioned by Castán, I prefer the second and I believe that the Court in this case took the path of the first. I believe that it was induced to error by conceptualist jurisprudence of the Nineteenth Century, which jurisprudence pursued the form rather than the substance and which was wont to offer specious reasoning to support juridical thinking which actually needed an honest and rational reexamination.b But let us turn to the facts of the case and we shall return later to this matter which we now lay aside.
I
In the case at bar we had to decide whether natural, immovable and fluvial accession took place. After the trial the case was submitted to the Superior Court on documentary evidence consisting in plats and aerial photographs and on stipulations on which the parties agreed at a pretrial con*699ference. In addition, the court made an inspection of the premises.
The facts proved and stipulated are simple: In 1935 the defendant acquired a property in the municipality of Carolina which was bounded on the south by the river “Rio Grande de Loiza.” In 1948 the plaintiff acquired the property located south of defendant’s property, so that the river became the common boundary between both estates. The evidence reveals that in the course of several years the river changed its course towards the south entering plaintiff’s property and dividing it in such a way as to leave on its northern side a parcel of 7.40 cuerdas of land separated from the main property and which parcel now is adjacent to defendant’s property. The trial court expressed it thus:
“Since the year 1914 the river Rio Grande de Loiza began to change its course gradually, particularly in that region where the parcel of land in dispute is located. Hence, prior to the gradual change of the direction of the river’s channel, the 'perimeter of land of 7.4-0 cuerdas described in the preceding paragraph formed part of plaintiff’s property and was south of the river, but as a result of said gradual change of direction of the river’s course, the perimeter of land of 7.4-0 cuerdas toas gradually separated from the rest of plaintiff’s property and it is at present north of the river and adjacent to defendant’s property on its southern side. As we have been able to notice, the river has receded little by little in this region and has been depositing washouts on the banks.” Finding of Fact No. 5 of the Superior Court. (Italics ours.)
Defendant has taken possession of the aforesaid parcel. There is no dispute as to its area because its description, size, boundaries, courses and distances were proved and stipulated. The complaint contains a detailed and technical description of this parcel by distances in meters, courses by degrees, etc., which I deem unnecessary to reproduce here. We need only remember the fact.
*700Plaintiff filed an action of revendication to recover the possession of the aforesaid parcel, to which the defendant objected on the ground that it had acquired said land by right of accession and relied on § 302 of the Civil Code, 81 L.P.R.A. § 1169, the text of which we shall examine shortly. The trial court accepted the reasoning of the defendant, declared that §'§ 302 of the Civil Code and 47 of the Law of Waters, 12 L.P.R.A. ‘§ 638, were applicable and dismissed the complaint. To review that judgment plaintiff appealed to the Supreme Court and maintains that § 309, and not § 302 of the Civil Code applies.
The right of accession is governed by a Chapter of the Civil Code which embraces § § 287 to 318 (31 L.P.R.A. § § 1131-1199) and as to the fluvial accession several sections of the Law of Waters contained in the Subchapter of that Law entitled “Accretions, Relictions, and Sediments of Waters,” 12 L.P.R.A. § § 631-642, are also applicable. The provisions of the Law of Waters on this matter are similar to those of the Civil Code.
The first section of the Civil Code which governs this matter, § 287, provides that “The ownership of property, whether movable or immovable, carries with it the right, by accession, to everything which is produced thereby, or which is united thereto or incorporated therewith, either naturally or artificially.” 31 L.P.R.A. § 1131. PuiG Peña explains that the word accession comes from the latin word accessio, which is in turn derived from ad (towards) and cedo (to approach) , which presupposes the idea of approach of a thing, of adherence, of incorporation.1
Traditionally physical accession has been classified by the civilian writers into two categories, since it might result from a within to outside movement (accession by production) or from an outside to within movement (accession by union). Accession by union is also known as continuous accession. *701The latter is subdivided into immovable or movable, according to whether it is formed to benefit an immovable or a movable, and in natural and industrial or artificial, according to whether the increase is due to a natural force or the work of man.2
Our Civil Code recognizes, among others, the continuous, immovable, natural and fluvial accession in its four classical forms of alluvion, avulsion (to be defined shortly) or force of river, change of channel and formation of islands. With respect to accession it also provides for lands adjacent to ponds and lakes; also when the current of a river divides itself into branches; and when a portion of land is separated from the main property by the current. In the discussion that follows it will be noted that all these instances which we have mentioned (alluvion, avulsion, etc.) do not bear the same consequences with respect to the right of ownership. Some of those physical phenomena produce the juridical accession and others do not; or, in other words, some grant ownership and others do not. On this point the ancient civil law and our present Civil Code and the Law of Waters recognize the corresponding differences which are dictated by right reason and the sense of justice and equity.
We shall define each one of the cases we have mentioned but we shall consider lastly the cases of alluvion and of land separated from the main property by the current, because those are the two cases involved herein. The avulsion takes place when the current of a river, rivulet or torrent, separates from a tenement a known portion of land and moves it to another tenement. In this case the owner of the property to which the segregated portion belongs retains ownership thereof.3 By avulsion the increase received by the riparian *702tenement is not due to the sedimentation of the waters.4 In that case, Manresa says, the law does not permit the effects of accession, because the owner of the segregated portion is known and because the two lands which shall thereafter be adjacent have not merged.5
The change of channel occurs, as the phrase itself indicates, when because of the natural change of the course of the waters, a river abandons its channel and takes a new one.6 In this respect § 306 of our Civil Code provides that if a river should open itself a new bed, leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnity, the former bed of the river, every one in proportion to the quantity of land he has lost. 31 L.P.R.A. § 1173.
An the Law of Waters states in its § 41 that the channels of the rivers “which are abandoned through the natural deviation of the course of the waters belong, throughout their entire length, to the owners of the riparian lands. If the abandoned channel separated estates belonging to different owners, the new dividing line shall run at an equal distance from both.” 12 L.P.R.A. § 632.
As to the land adjacent to ponds and lakes it is sufficient to state that pursuant to the Civil Code and the Law of Waters the owners of tenements adjacent to ponds or lakes do not acquire the land left dry by the natural decrease of the waters nor lose that inundated thereby in the floods.7
The type known as formation of islands includes several possibilities: (a) The formation or birth of islands in the seas adjacent to the coasts; (b) the formation of islands in navigable rivers; (c) islands formed in non-navigable rivers by successive accumulation of relictions; (d) islands formed *703when the current of a river divides itself into branches.8 Section 371 of the Spanish Civil Code provides that the islands formed in the seas adjacent to the coasts and in navigable rivers belong to the State. As to the islands formed in non-navigable rivers, § 373 of the Spanish Code grants the accession in terms similar to ours. The Puerto Rican Code, § 308, makes no distinction and refers in general to the islands formed “in rivers.” It provides:
“Islands which, through successive accumulations of descending alluviums, are slowly formed in rivers, belong to the owners of the banks or shores nearest to each of them, or to those of both shores if the island is in the middle of the river, and they shall then be divided longitudinally in halves. If a single island thus formed be more distant from one bank than from the other, then the owner of the nearest bank shall be the sole owner thereof.” Section 308; 31 L.P.R.A. § 1175.
The Law of Waters has a similar provision in its § 46; 12 L.P.R.A. § 637.
We now arrive at the two theoretical situations involved in this case: the alluvion and when a portion of land is separated from the main property by the current of the river. Therefore, we must examine these two cases in detail. Al-luvion is established in § 302 of the Civil Code and § 47 of the Law of Waters. It is on this § 302 that the defendant relies. The trial court relied on both. The plaintiff relies on § 309 of the Civil Code. Let us examine the texts of those sections. Section 302 of the Civil Code (alluvion) provides:
“The augmentation which the banks of a river gradually receive from the effects of the current of waters belong to the owners of the tenements adjacent to such banks.” 31 L.P.R.A. § 1169.
*704Section 47 of the Law of Waters reads as follows:
“The gradual increase of lands adjoining creeks, streams, rivers, and lakes caused by accretion or detritus shall belong to the riparian owners. Mineral sediments which are to be used as such must be applied for in accordance with the provisions of the mining laws.” 12 L.P.R.A. § 688.
The Civil Code, § 309, provides for: (a) when the current of a river divides itself into branches, and (b) when a portion of land is separated by the current from the main property, as follows:
“When the current of a river divides itself into branches, leaving a tenement or a part thereof isolated, the owner of such tenement retains his ownership. He also retains it, if a piece of land becomes separated by the current.” (Italics ours.) 31 L.P.R.A. § 1176.
The situations pertaining to immovable fluvial accession regulated by positive law and the rules established therefor once examined, we now ask which is the criterion used by the Civil Code and the Law of Waters to grant or refuse the juridical accession, that is, the right of ownership, in each one of those situations? Except in the case of the islands formed in the sea and in the navigable rivers, which the Spanish Civil Code in good public policy declares to be public property, we may answer the preceding question by saying that the problem hinges on whether or not the natural forces have created a new property, the res nova (new thing) of which the civilian writers speak.9 As a consequence of that criterion or parallel thereto, an important role is also played by the fact of whether the owner of the land in question is known.
Note that in the cases where the waters have not created new territory but a detachment has occurred, as in the case of avulsion (§ 304), or an isolation or separation of part of *705the property by the current of the waters (§ 309), no legal accession takes place; the former owner retains the ownership of the land detached, isolated or separated. On the contrary, juridical accession occurs in those cases where due to the gradual action of the waters (Civil Code) and their sedimentation (Law of Waters), new property has been created, without a known owner, as in the cases of alluvion (§ 302), and of formation of islands. In other words, the Code does not provide for the dispossession of an owner because of the fortuitous event that a torrent fractioned his property. What the Code does is to establish a series of convenient rules for such cases where the slow sedimentation of the waters has created a new surface, adhered and incorporated to a bank or in the middle of a river. Inversely, when the property affected by the action of the waters is old and has an owner (as in the cases of avulsion and separation of land) the owner retains his right of ownership over the land so affected.
The case at bar does not involve “sediments carried by the currents to the shores of the river bed.” 10 This is not the case of new property, recently formed, of res nova, free to be taken by anyone. Nor is it land of unknown origin without a known owner, which must be added to the property of the adjacent owner. It is a parcel of 7.40 cuerdas which already existed in 1935 when respondent acquired the property; it is property that in 1948 was acquired by plaintiff as part of the property purchased by her at that time.
What has happened is that formerly the river passed on the northern side of that parcel, and as a result of having changed its course, today it passes on the southern side thereof. Straining defendant’s argument, if the river had invaded further to the south and would now run along the southern boundary of plaintiff’s property (as it previously ran along its northern boundary), would that mean that *706plaintiff would have been left entirely without property and that her whole property would have become the defendant’s?. The answer is clearly in the negative. Our law does not. recognize fluvial expropriation without compensation and • for private purposes. • ¡
PüiG Brutau, in his comment on § 374 of the Spanish Code (equivalent to 309 of our Code), which deals with a situation like the one at bar, states: “Rather than a case of accession, it is a rule meant to reaffirm the right of the-original owner who already was such owner of the portion separated.”11 The same view is shared by Scaevola,12 Pedreira Castro,13 Puig Peña,14 Castán,15 ■ and Man-RESA.16
In the inspection made by the trial judge he observed that the land in question had gravel, sand and stone. It is natural that it be so. The river, upon passing for a certain period of time over that land, must have washed away the mould or humus leaving uncovered whatever stones were there; besides it is natural that at the same time it should have-deposited sand and gravel. But the controlling fact is that this was done by the river on land already existing there: the river did not create those 7.40 cuerdas.
II
My point is that the sections of the Civil Code regulating this matter do not do so arbitrarily: there is a reasoning behind it. That is, when the property affected by the water already exists and has a known owner, the owner retains his property; this is the fair solution. The Code does not au-r thorize the dispossession by the fortuitous action of the wa*707ters. Examples of this are the sections previously discussed in this opinion: § 303 (case of ponds), § 304 (avulsion), § 305 (trees carried by the current), §'3,06. (riyer.that abandons its channel), § 307 (new channel of the river), and § 309 (land isolated or separated by the river). On the, contrary,, when the waters, by sedimentation, create property which ,did not exist, the problem arises as to who is the owner of this new property. The Code provides certain rules to solve the problem. Such are the cases of § § 302 (alluvion) and 308 (formation of islands in rivers by accumulation of reliction).
In the case at bar, as above mentioned, we are dealing with a parcel of land which existed there, with exact description and dimensions, known to and stipulated by the parties and having a known owner before the defendant took possession thereof. Said parcel was isolated from the main property by the action of the river. To regulate such a situation there is a provision in the Civil Code; an express law based on rational and justice-oriented grounds. It should be noted that the majority opinion begins by declaring that the river has changed its course, which situation is governed by § 309 of the Civil Code. That clear and concrete reality of this case, which we have previously described, cannot be hidden behind a curtain of citations, some of which are theoretical discussions in abstract and others, decisions, some suitable to other facts while others are remains of certain ■jurisprudential tendencies of the old analytical school which (as Pound indicates in his above-mentioned work), was prone to try, not the case, but the theory. As the Supreme Court of the United States has had occasion to point out, the problems brought to the courts are not solved by a collection of citations, but according to the realities of the record. ■ Indianapolis v. Chase National Bank, 314 U.S. 63, 69 (1941).
'. The majority opinion sets forth that the author Santa-maría enumerates the conditions that should exist in order *708to establish alluvion and it states that they are (a) that the tenement be riparian, (b) that the alluvion be attached to the tenement and (c) that it be formed-naturally and'slowly. Based on this enumeration the Court finds that in the case at bar those conditions exist and- concludes that therefore it is a case of alluvion. But it omits a condition, which because it is so obvious, it is implied in the discussion of Santamaría and that is that land to be adjudicated by right of accession cannot be, at any previous time, the property of another. If it belongs to another, as in the present case, there is no juridical alluvion by virtue of § 309, as we already explained.
Typically, as it happens when a case is approached exclusively from an analytical standpoint, the majority opinion does not go into the merits of the case. (Is the land occupied by defendant the property of someone else? Under $ 302, is someone dispossessed of his property? Is that just and reasonable? ) The opinion hinges on one word: the word “gradually” used in § 302. It is not the specific factual situation of the case what seems important, the “important and controlling” fact, says the majority opinion, is that the process be “gradual.” I believe that such an interpretation of said section is erroneous. The law does not require that the change of course by a river that isolates a portion of land be sudden or gradual. A river may change its course at different degrees of speed. Whether the isolation of the portion of land be slow or rapid, its owner retains his ownership, § 309. The alluvion, wherever it takes place and forms the res nova (which is not the case at bar), shall be gradual because sedimentation is slow by its very nature. The decisive criterion is not, therefore, whether the separation of the portion of land from the main property was rapid or slow, but (1) whether the res nova was formed by alluvion (in which case juridical alluvion would take place) or (2) whether what occurred- was separation from the main prop*709erty (in which case the owner of the separated parcel retains his ownership).
What I propose is that those sections of the Civil Code and of the Law of Waters he construed as a whole and that' their purpose be borne in mind. In construing § 302 apart from the rest of the sections of that chapter of the Civil Code, the Court, in my opinion, reaches an erroneous conclusion. As Holmes would say, “It is a fallacy to break the fagot stick by stick.” Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U.S. 28, 29 (1919).
Unfortunately, in my opinion, the Court, as if drawn by the magic of the word “gradually” took the path that led it to one of those pitiless decisions of which Justice Cardozo spoke. Since in Cardozo not only the Law but also the English language reached one of its summits, I shall not try to translate the paragraph (into Spanish) and I quote:
“Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity ... I suspect that many of these sacrifices would have been discovered to be needless if a sounder analysis of the growth of law, a deeper and truer comprehension of its methods, had opened the priestly ears to the call of other voices. We should know, if thus informed, that magic words and incantations are as fatal to our science as they are to any other.” 17
Because of the reasons above stated I believe that this is not a case of accession by alluvion but a case in which a portion- of land was separated from the main property by the river and the owner should retain his property, pursuant to *710the provision of § 309 of the Civil Code which is also the just and reasonable thing to do.
I am authorized to state that Mr. Justice Ramírez Bages concurs in this opinion.
Castán, Teoría de la Aplicación e Investigación del Derecho 1, Instituto Editorial Reus (Madrid 1947); III Ihering, L’esprit du Droit Roman dans les Diverses Phases de son Development 15 et seq., trans. of Meulenaere, Paris, 1877, and cited in Castán, Ibid.
Some of those theories had their reason of being when they were born but once their ends were achieved, it became necessary to reexamine them, which has generally been done. For a critique of this jurisprudence of conceptions, see I Pound, Jurisprudence 91-117, West Publ. Co., St. Paul, Minn., 1959.
III PuiG Peña, Tratado de Derecho Civil Es-pañol 116.
II Castán, Derecho Civil Español, Común y Foral 233 (9th ed.).
Section 304 of the Civil Code, 31 L.P.R.A. § 1171; § 44 of the Law of Waters, 12 L.P.R.A. $ 635.
CASTÁN, Ibid., p. 238.
III Maneesa, Comentarios al Código Civil Español 244 (6th ed.).
Sections 306 and 307, Civil Code, 31 L.P.R.A. 1173 and 1174; §$ 41 and 42, Law of Waters, 12 L.P.R.A. §§ 632 and 633.
Section 303, Civil Code, 31 L.P.R.A. § 1170; § 40 Law of Waters, 12 L.P.R.A. § 631.
Castán, Ibid., pp. 240-41; III Puig Brutau, Fundamentos de Derecha Civil 233 (1963) ; Puig Peña, Ibid., pp. 126-28; Manresa, Ibid., pp. 254-56 and 259-64.
Pure Peña, Ibid., p. 116; Castán, Ibid., p. 235; PuiG Brutau, Ibid., p. 215.
Puig Peña, op. cit., p. 121.
Puig Brutau, op. cit., p. 233 in fine.
VI Civil Code 640-41 (6th ed.).
1 El Código Civil a Través de la Jurisprudencia 498.
Op: cit., p. 128.
Op. cit., p. 241.
Op. cit., p. 266.
Cardozo, Growth of the Law 66; also in Selected Writings of Benjamin N. Cardozo 215 (ed. by Margaret E. Hall, 1947).