DECISION

The Commission decides that this claim should be disallowed.

Done at Washington, D.C., this 27th day of June, 1933.

D. W. VAN HEECKEREN

Presiding Commissioner ELIHU ROOT, Jr.

Commissioner

H. F. ALFARO

Commissioner

COMMENT

It will be noted that the Decision in this case holds that the giving effect by local courts to an alleged will without specific compliance with the provisions of local law for the prior probate of such will was not a "manifest violation of law". The Commission apparently either disagreed with the claimant Government's contention that the "general result" of the decisions in this case was the "ultimate denial" of claimant's rights or found, to its satisfaction, that there could be no such "general result" without a "manifest violation of law or . . . .manifest bad faith in the application of law or in weighing the evidence filed by the parties". The Decision, therefore, appears to constitute somewhat of a contrast with the conclusion reached by the American-British Claims Commission in the Burt case, which is reported in Nielsen's Report (588) at page 595.

CLAIM

on behalf of

JOHN W. BROWNE

DOCKET REGISTRY NO. 14

Syllabus

The Commission held that there was no basis for the claim for indemnity for the taking of private land belonging to an alien for the purpose of constructing a road, when the original grant of the land by the Government contained a reservation of the right to do so, there being no evidence that, in exercising that right, the owner's interests were improperly affected.

SUMMARY OF FACTS

This claim was made because of the alleged illegal taking of a portion of the claimant's land for the widening of a road through his property and for damages resulting to other property from the improper construction and repair of the road.

John W. Browne and his brother, George A. Browne, purchased a tract of land in the District of Boquete, Republic of Panama, in 1928. In November 1929 the claimant, John W. Browne, who managed the property, conveyed an 8-foot right of way across his land to the Government of Panama, for the construction of a road for which the Government paid Browne $552. On October 15 and 16, 1930, a portion of the road was washed out, allegedly because of its faulty construction, causing damage to the claimant's property and coffee trees.

523

Several days later, workmen, acting under the orders of the Acting Alcalde to repair the road, were said to have taken about 200 additional square feet of the claimant's lands for the extension of the roadway and in the course of the repairs dumped stones upon the coffee finca thereby injuring trees and damaging property.

The Government of Panama contended that the property was originally indultado land and that the nation had expressly reserved its right to construct a highway across the land; that the road was not poorly constructed, but that the washout was due to the nature of the land and the tropical rains in that region; and that the damage to trees from rolling stones was the result of a landslide for which the Government was not responsible.

In its Brief, Panama contended that the American citizenship of the claimant had not been established and that the Commission had no jurisdiction over the claim because the alleged damage occurred after the signing of the claims convention.1

EXTRACTS FROM BRIEF OF UNITED STATES 2

The respondent Government relies upon article 102 of Law 20 of 1913 to show that the property, since it was once baldío land, was subject to the right of the Government to take portions of it for roads. However, an examination of the article relied upon by the respondent Government fails to sustain that contention, and the action of the respondent Government negatives the validity of such a contention. The article in translation reads as follows:

"In all titles of ownership which may be issued to baldío or indultado lands, there shall be included the express condition that

1

[This latter point was decided by the Commission adversely to this contention, in the Noyes claim, Registry No. 5, ante, p. 190.-[AMERICAN AGENT.] [The Brief of the United States was devoted chiefly to a discussion of the facts and the evidence which gave rise to the principal issues in this claim.— AMERICAN AGENT.]

the Nation is entitled, without giving any compensation or indemnity, to the right of way necessary for the construction of railroad lines, street car lines, bridle-paths (caminos de herradura), telegraph and telephone lines, and to the use of such lands as may be indispensable for the construction of bridges and wharves, provided the operation of such lines or works is for the account of the Nation and not of private enterprisers."

It is perfectly evident that the law makes no reservation of right of ways for roads in article 102 relied upon by the respondent Government. This matter is covered by article 101 of the same law, which provides in translation as follows:

"101. The easements of right of way shall be gratuitous for land adjudicated in accordance with this law, when they are denounced [i.e. when petition is filed for such right of way] before the expiration of five years counted from the date of the adjudication of the land which needs it [which requires the right of way]. If this period of time should pass, the easement shall be governed in accordance with the Civil Code or by means of an agreement between the interested parties."

Since there is evidence that no right of ways were "denounced " in the claimant's property within 5 years after the adjudication of the land (see inscription 1, annex to the Answer), Browne's property was in 1929 no longer subject to transitory rights without indemnification. The land was originally adjudicated to private owners in 1915. That this was the actual situation is fully confirmed by the fact that the Government of Panama did pay Browne in 1929 for the 8-foot right of way which it built through his property in that year. It follows that any additional land which the Panamanian Government took for the same purpose should be paid for by that Government. The Panamanian Constitution and laws fully protect private property rights and, if it is necessary to take such property for public purposes, said Constitution and laws provide that adequate compensation must be made therefor. The generally accepted principle of international law in this