rejection in New York of the contract which was proffered and rejected there before the claimant went to Panama. This Decision is to be contrasted, in some respects with the Decisions in the Manzo, Ruiz, and Díaz claims, post, pp. 693, 636, and 651, respectively.

This was one of four cases which, by order of the Commission, were submitted on memoranda and without oral arguments.

CLAIM

on behalf of

CAROLINE FITZGERALD SHEARER

DOCKET REGISTRY NO. 3

Syllabus

I. Claim for alleged confiscation of real estate resting upon title by prescription was held not to have been established in the absence of a satisfactory showing that, under local law, such prescription had been perfected without tradition of possession by registration at or before the beginning of the prescriptive period.

SUMMARY OF FACTS

The United States, on behalf of the estate of Mr. George Fitzgerald, deceased, based this claim upon allegedly unlawful confiscation of his property, in 1905, by Panamanian authorities.

The tract in question is situated on the Island of Carenero, off the coast of the Province of Bocas del Toro, Republic of Panama. The evidence showed that it was occupied about 1847 by one Tinsley, who planted a cocoanut grove and built his residence on the island, and that the property remained uninterruptedly in the possession of Tinsley and his successors until 1886, when it was conveyed to Mr. Fitzgerald by deed for a cash consideration. The deed of conveyance was not made out until March 5, 1891, and was recorded in the Colombian Consular Office in San José, Costa Rica, where the vendor of the land then

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resided. There was no evidence to show that any of the conveyances had been recorded in the local notarial offices as required by law. The facts with respect to the succession of interest in the property are set out in the Decision of the Commission.

The basic question involved was that as to whether Fitzgerald and his predecessors had obtained title to the government-owned property by prescription. According to the decision of the Supreme Court of Panama in the Oscar Muller case, Registro Judicial, vol. V, no. 82, p. 49, such prescription was possible during the period 1872-82, provided that there was concurrence of "just title " (i.e., any document showing acquisition in any proper form without respect, however, to seller's legal title), good faith, and continuous possession for a period of 10 years. The United States contended that these conditions had been completely complied with by Fitzgerald's predecessors in interest, so that he had, in 1886, acquired valid title. Mr. Fitzgerald operated a lumber-and-ship yard on the property, leased parcels to various persons, and collected rent from his lessees. During the entire period of his uninterrupted possession, viz, from 1886 until his expulsion from the land in 1905, decedent regularly paid taxes on the property.

About the year 1887, the Colombian Government passed a law requiring owners of lands in the municipality of Bocas del Toro to make application for title to their lands. Fitzgerald thereupon applied through his attorney for proper title to certain lots he owned in Bocas del Toro, and also to his property on the Island of Carenero. The Government granted him title to the mainland lots, but refused to register the title to the Carenero tract on the ground that "the Government would not give papers for any land outside the town". He nevertheless remained in possession of the land, paid taxes on it, and improved it from time to time, and received assurances from various high government officials, including the Minister of

Finance, Dr. Espriella, that he would be protected in his possession of his property on Carenero.

In the year 1905, shortly after the independence of the Government of the Republic of Panama, the Governor of the Province of Bocas del Toro arrived on Mr. Fitzgerald's property with surveyors, and, without prior notice, proceeded to subdivide the land into lots and streets in such a manner as to form nine beach lots and nine inland lots. The Governor instructed Mr. Fitzgerald's tenants to cease paying rent, which order they obeyed. Thereafter, the municipality of Bocas del Toro claimed ownership of the lots not bordering on the sea, and the Republic of Panama asserted a claim to the others, all of which were then offered for sale.

Mr. Fitzgerald applied for the registration of the property in his own name, but this was refused and he was informed that no one person could acquire more than two lots. The Government of Panama, however, offered him three lots, provided he would pay $2,500 in silver for each of the lots. Upon his refusal to accede to these terms, the Government sold all the lots except two, including the improvements thereon. The decedent actively protested against this conduct and presented his complaint to Panamanian officials as well as to the American Minister to Panama. No settlement was obtainable however. principal defense of the Panamanian Government was the alleged failure of the complainant to exhaust local remedies.

The

Claim was made for arbitrary deprivation of the property, especially of improvements thereon since local law seems to require the owner of property to pay for improvements placed upon his own property by a trespasser if he has acquiesced in the making of such improvements.

EXTRACTS FROM BRIEF OF UNITED STATES

II. THE FACTS MENTIONED IN POINT I WERE SUFFICIENT, UNDER THE PROVISIONS OF THE APPLICABLE LAW, TO ESTABLISH, AND THEY DID ESTABLISH, IN GEORGE FITZGERALD TITLE AND OWNERSHIP OF THE PROPERTY IN QUESTION.

During the period mentioned in point I, the Island of Carenero, upon which the lands now in question are situated, passed, for certain purposes, under four successive jurisdictions, namely:

From 1847 to 1855, the jurisdiction of New Granada (Colombia);

From 1855 to 1885, the jurisdiction of the Sovereign State of Panama (which was one of the States comprising the United States of Colombia); From 1885 to 1903, the jurisdiction of the Republic of Colombia;

From 1903 to date, the jurisdiction of the Republic of Panama.

During the entire period 1847 to 1903, however, the Island of Carenero, for the purposes of this case, was within the jurisdiction of the National Government of Colombia as national lands.

Article 878 of the Fiscal Code of Colombia, which was originally enacted as Law 106 of 1873, and which, so far as concerns present inquiries, is understood to have been expressive of preexisting law on this subject, provided: "878. There shall be designated as 'baldíos' and consequently of national ownership:

"3. The deserted coasts of the Republic.

"4. The islands, in either sea, within the jurisdiction of the nation, which are not occupied by organized settlements or by individual settlers with just title."

Carenero Island came within this legal designation and, consequently, the nature of the rights of Fitzgerald, in the