Full opinion text
GARDNER, Judge. This case was filed on November 5, 1941, under the authority of and pursuant to the provisions of the Act of Congress approved May 21, 1934, 48 Stat. 1361, and the amendment thereto of August 10, 1939, 53 Stat. 1532. (Court’s memorandum, p. 1 and 2.) The complaint alleged that the Playa de Flor Land and Improvement Company was an unincorporated association of individuals, setting forth the names of the individuals and their interests, and stated that they were joint owners and had acquired title and rights of ownership to specific real property, which was described as Tracts Nos. 1, 2, 3, and 4. After alleging their muniments of title, there is a plea of prescription that the joint owners, under the name of the Playa de Flor Land and Improvement Company, their predecessors in interest and title and those under whom they claimed, had been and were in the actual open, notorious, and adverse possession, use, and cultivation of the lands described, without violence, concealment, or interruption, for a period of more than forty years prior to the Treaty between the United States of America and the Republic of Panama, which was ratified February 26, 1904, 33 Stat. 2234, and for a period of more than fifty years prior to their forcible dispossession on February 1, 1912. It was further alleged that plaintiffs were forcibly and unlawfully evicted and dispossessed of the lands and improvements on the 1st day of February 1912, by the then duly-constituted authority of the representatives of the United States of America within the territory of the Canal Zone and that the joint owners had not been paid nor received compensation for the property taken from them. The further allegation was made in the complaint that the lands described as fronting on the Bay of Limón and extending in depth eight hundred feet from the shoreline comprised an area of 228.2 acres and that the fair and average market value of said sea-front area at the time of taking was $298,942; that the balance of the lands described in the complaint as lying contiguous and adjacent to the area having sea frontage at the time of the taking thereof was of a total value of $91,461; that the improvements, including fruit trees, on Tracts Nos. 1 and 2 were of the reasonable value of $24,500; and that the improvements, including fruit trees, on Tract No. 3 were of the reasonable value at the time of taking of $7,671.50. It was further alleged that the total value of the lands and improvements thereon, as set forth in the complaint, at the time of the taking thereof was the sum of $422,574.50, with interest on said sum at the rate of six per cent per annum from the 1st day of February 1912, and judgment was prayed against the United States of America for said sum., ' Summons was issued by the Clerk of Court and, on December 13, 1941, the acting United States. District Attorney filed defendant’s motion to quash summons, service, and return. As previously set forth in the Court’s statement herein, counsel for the plaintiffs, who had instituted the suit by mailing the complaint, etc., to the clerk of this court, was in Washington, D. C. There was some delay in the trial of this motion as a result, the case being continued from time to time in order that counsel might properly present the question and be heard. The motion came on for trial on the 24th day of June, 1942, and, it appearing that counsel for plaintiffs and plaintiffs had attempted informal service on an assistant District Attorney in the Canal Zone and by delivering a copy to an attorney of the Claims Division of the Department of Justice in Washington, D. C., the motion was sustained. The Court might mention in this connection that, assuming that plaintiffs and their counsel were familiar with the history of this litigation, by attempting this informal service they convicted themselves of being incurable optimists. The case was continued and alias summons awarded, and service was had on same, as the law required. April 17, 1942, defendant filed its motion that the attorney of record for plaintiffs produce his authority to act in the name of the plaintiffs and to file suit and, in default of same, to dismiss the case. Again there was delay because counsel for the plaintiffs had no counsel associated with them in the Canal Zone in the practicing of the case, and at that particular time, as set forth in the attached statement, not only were communications slow and uncertain between the Canal Zone and the United States but transportation was also in the same condition. Counsel for plaintiffs submitted their brief, and, on the 20th day of November, 1942, the defendant appeared by the District Attorney and a special assistant to the District Attorney; the plaintiffs William E. Weigle and C. P. Fairman appeared and testified for the plaintiffs, and this motion was heard and was very promptly overruled on the same day. The Court, realizing the difficulties of plaintiffs proceeding with the case in the absence of local counsel, made the suggestion as set forth in the Court’s statement herein, and local associate counsel appeared. December 22, 1942, the District Attorney moved the Court for an extension of time to plead, for the reasons and upon the grounds that he was awaiting instructions from the Attorney General of the United States. There was no objection to the motion, and it was sustained and the defendant was given until the 16th day of February 1943, to plead. February 11, 1943, counsel for the defendant filed a demurrer to the complaint setting forth six grounds, as follows: “1. That the allegations in said complaint do not show that plaintiffs had legal capacity to sue. “2. That there is a defect of parties plaintiff. “3. That the complaint does not state facts sufficient to constitute a cause of action. “4. That the complaint is ambiguous. “5. That the complaint is unintelligible.' • “6. That the complaint is uncertain.” A voluminous brief was also filed on the same day in support of the demurrer, but only the first ground of the demurrer, as set forth above, was mentioned. March 9, 1943, plaintiffs responded to defendant’s demurrer and filed a brief in support of their response, or answer. March 19, 1943, defendant filed a reply memorandum in support of its demurrer. On the same day the demurrer came on regularly for trial. The plaintiffs appeared by associate counsel C. P. Fairman, and the defendant appeared by the District Attorney and Brice Toole, attorney of the Department of Justice, Washington, D. C. The Court heard the argument of counsel and, having in mind an order that it desired to formulate, deferred a decision on same until it could prepare the order. The demurrer was overruled for the reasons stated in the order, and plaintiffs were immediately ordered to prepare and file their amended complaint making parties plaintiff all the parties owning an interest in the land, as set forth in the complaint, not only for themselves but on behalf and for the benefit of all others who might have an interest or claim in the lands described and in controversy. The defendant was given sixty days to plead further. April 22, 1943, defendant filed a demurrer to the amended complaint, and a memorandum in support of same, the grounds of which were the same as those urged in the demurrer to the complaint. May 18, 1943, the demurrer to the amended complaint came on to be heard, was overruled, and counsel for defendant then moved that it be given thirty days to file an answer, which motion was sustained. June 15, 1943, the defendant made another motion for an extension of time to file its answer; there being no objection, it was given until and including June 21, 1943, to file answer. June 1.6, 1943, answer was filed controverting all the material allegations of the complaint. Practically all the denials were based on lack of information sufficient to form a belief. Pursuant to agreement of counsel, the case was continued and set for trial on October 20, 1943; however, on August 17, 1943, by agreement of counsel, the trial was re-set for the 17th day of November, 1943. Non-resident counsel were notified by the Court that we desired to have a meeting of the attorneys in the nature of a pretrial conference a week before the trial. We fully expected by doing so to confine the issues, lessen the labors of the trial, and, most important of all, to straighten out the records and the exhibits. Counsel being present in the Canal Zone, we met with them in Cristobal. After surveying the situation in informal conferences for a day or two, we realized it was a vain hope to dispose of any matters connected with the case until the trial. Nothing was accomplished. November 9, 1943, counsel for defendant offered an amended answer in which was set forth the decision of the Supreme Court of the Canal Zone in the old case of Villalobos v. Foleston et al., No. 66 which case involved Tract No. 1 in plaintiffs’ complaint herein, and pleaded same as res judicata. No reasons were given why this matter should not have been plead long before this nor as to why it should be offered just on the eve of the trial. There can be no question but that the Court would have been clearly justified in refusing to allow the amendment to be filed at that time, but the Court had already concluded that it wanted to dispose of this case and all matters connected with it upon the trial and therefore allowed the amendment to be filed. November 17, 1943, the case came on regularly for trial and continued through the 17th, 18th, and the morning of the 19th of November. Necessarily, there were frequent recesses for the purpose of allowing counsel to procure, prepare, arrange, and introduce their exhibits. There was oral testimony of only four witnesses. (Evidence in full, Memo. p. 116.) Upon the conclusion of the trial, counsel stated that they preferred to file written briefs instead of orally arguing the case. Plaintiffs were allowed sixty days to prepare and submit their brief; defendant was given forty days thereafter to file its brief; plaintiffs were given twenty days thereafter to file a reply brief; and defendant was given, if required, ten days to file rejoinder brief. The Court deferred its decision and took the matter under advisement until said briefs could be filed. January 20, 1944, plaintiffs’ brief was filed, and, on February 2, 1944, counsel for defendant moved for further time to file its brief, and the time was extended thirty days. March 29, 1944, defendant’s brief was filed. ' On the same day defendant filed a motion to strike plaintiffs’ exhibits and evidence from the record. April 10, 1944, defendant filed a supplemental motion to strike certain evidence. April 15, 1944, plaintiffs filed reply brief, and defendant filed answer to plaintiffs’ reply brief on the same day. April 20, 1944, we stated the situation and the history of the case and asked counsel to brief further. On June 20, 1944, memorandum was filed by counsel for plaintiffs in accordance with the Court’s order. (Statement of Court, p. 9) July 17, 1944, defendant filed a reply to memorandum on behalf of plaintiffs. It will be observed that the last memorandum, or brief, was filed on July 17, 1944. Long before and since that time this Court, its law clerk and its secretary have been busy going over this record and trying to assemble it and identify it so that the Court could decide the case and give its reasons for its decision. Situated as we are and knowing that the Court of Claims and other courts are grinding out decisions every day and that possibly the Court had overlooked some decision pertinent to this case, we directed a communication to counsel for both parties stating the situation and suggesting that, if they had additional authorities, we would be glad if they would informally submit same in a letter and that adversary counsel would be advised of any authorities submitted. Counsel for plaintiffs did submit a letter containing some authorities not cited in the brief, but they were not new authorities and, in our opinion, are not necessary to the decision in this case. Counsel for the defendant stated they had no other authorities to submit. The Court has prepared a statement and a memorandum, which are attached hereto and will be adopted as a part of this opinion and decision by reference only. The memorandum gives a complete, comprehensive, and, we believe, accurate history of the litigation in which the lands in controversy herein were the subject of litigation. Many questions, both as to law and fact, are discussed, and the facts are found and the law decided in said memorandum. The exhibits and the evidence herein are set forth at length and described. The Acts of Congress, Executive Orders, proceedings of the Isthmian Canal Commission, opinions and decisions of Courts, and other pertinent matters are also included in the memorandum, and such matters appearing therein will not be restated again in this opinion except where it may become necessary. The memorandum has been indexed, and the Acts of Congress, Executive Orders, laws of the Canal Zone, and opinions of Courts have been specifically set forth in said index. References to the Court’s memorandum will be hereinafter indicated in this opinion and decision as (Memo. p.-). Defendant’s motion and supplemental motion to strike evidence and exhibits from the record of this case has heretofore been overruled, for the reasons stated on page 121 of the Court’s memorandum. The defendant contends that “plaintiff is not a proper party herein.” The Court, in overruling the demurrer to the amended complaint and the complaint as amended, decided that the plaintiffs are proper parties, and has no reason to change that decision. No contention is made in defendant’s brief that, after the amendment was filed making all the parties owning an interest in the land plaintiffs, not only for themselves but on behalf and for the benefit of all others who might have an interest in the land, the plaintiffs did not have the right to prosecute this action nor that the Canal Zone ’Code, t. 4, sec. 138, did not apply to the situation. Counsel for defendant, in his brief, re-argues the questions involved upon the trial of the demurrer, especially as to the status of the Playa de Flor Land and Improvement Company as to whether it is a de facto corporation and arrives at the conclusion that it is not. This Court has stated in its memorandum (memo. p. 113) that the Playa de Flor Land and Improvement Company is a de facto corporation and also a special partnership; however, since counsel is so insistent, the Court will again state that there was a law in effect in the Canal Zone, viz., chapter 2, title 7, of the Code of Commerce, and title 27 of the Civil Code providing for corporations and for special partnerships and that the plaintiffs complied in .good faith with every requirement of said law. Furthermore, the Court is of the opinion that the plaintiffs had the right to institute and to prosecute this case, as set forth in the complaint, for the following reasons: The applicable provisions of the Canal Zone Code, t. 4, secs. 132, 138, and 144, are literal adoptions from the California Code. In that state, long before the adoption of the present Canal Zone Code, the courts of California had decided that the statute authorizing suits against unincorporated associations by their common name recognized an unincorporated association as a distinct legal entity. 3 Cal.Jur. 358. Where, under a statute, an association is recognized as a legal entity, it has the implicit right to sue in its association name. 7 C.J.S., Associations, § 35 p. 84. See Law et al. v. Crist et al., Cal.App., 107 P.2d 953. Hansel et al. v. Purnell et al., 1 F.2d 266, 267, is an opinion of the Circuit Court of Appeals for the Sixth Circuit. In it the Court stated that “a voluntary association is a distinct entity, which may sue and be sued in a federal court, and where it has appeared and answered as a defendant it is subject to whatever decree may be entered in the suit.” In the case of Citizens’ Loan & Savings Association et al. v. Krickenberger, 46 Ohio App. 228, 188 N.E. 396, in which the situation was very similar to the present one, the Ohio court held that the plaintiff was not a corporation and the only status it could assume was that of a special partnership, and, as such partnership, it could maintain the action, and the plaintiff was not precluded from maintaining an action under the circumstances disclosed by the record. We have no doubt as to the plaintiffs’ right to maintain this action, and we are certain that the Court can properly distribute the proceeds of any judgment to those whose interest may appear and fully protect the defendant from any future action. See Stearns Coal & Lbr. Co. v. Van Winkle et al., 6 Cir., 221 F. 590; Watts et al. v. Vanderbilt, 2 Cir., 45 F.2d 968. (Memo, p. 101.) Before considering and deciding the issues of the case, we think it would clarify the situation to dispose of some questions and contentions raised by the defendant in its brief. It is stated on page 58 of brief submitted by defendant’s counsel: “* * * As the Court is aware, the Harrison-Arosemena map has long been recognized by the courts, and the interested governmental agencies in Panama, as an authentic delineation of the lands it covers. * * In the defendant’s reply brief to “Memorandum on behalf of plaintiffs,” it is further stated: “* * * What plaintiff asks the Court to do does violence to the well established rule that ancient documents are proper evidence of the matters therein set out, and this rule is of particular force in a case such as this where the ancient document in question has been relied upon by private parties, the general public, and Governmental Agencies for almost eighty years. The accuracy of the Harrison-Arosemena map has never before been questioned, and the plaintiff is in no position to question it now * * *” (Italics supplied.) There is no evidence in this record to support the above statements, and they are certainly at variance with the history and record of the map. On the other hand, ject of pronounced and prolonged conflict this map, or plat or plan, has been the sub- (Memo, p. 106) It is not difficult to trace the origin of the map and its history from the record of this case. (Memo, p. 25 et seq.) As stated in the Court’s memorandum, there is no record of the appointment of commissioners to make a map and no record of any report as to what they did while making it. But, on September 7, 1863, the representative of the Railroad Company addressed a communication to the President of the State of Panama in which it was stated that a map had been completed of the public lands which the Company had asked to have adjudicated to it. (Memo, p. 29.) Presumably, the map referred to was the Harrison-Arosemena map. There is a total absence of any evidence or even a suggestion that there was a survey made preparatory to the making of a map, but evidently some lines were measured or surveyed. There is not a scintilla of proof that any of the private lands included in the area were surveyed or measured, as the grant and concession required. The Court’s conclusions are that the map substantially sets forth the outside lines of the area of what is known as Lot No. 1, which area included a total of more than sixteen thousand acres. Both plaintiffs and defendant have introduced it in the instant and various related cases, and undoubtedly it has historical as well as geographical evidential value, but we are of the opinion that it is more of a diagram, a plan, or a chart than it is an accurate map. The Court is of the opinion that, when taken with the other evidence and the record in this case, the map is historically and geographically helpful. For example, the following detached statements were made by counsel for the defendant in his brief: “The description in plaintiffs’ exhibit 7 bears no ascertainable relation to the description in the denouncement and in the claim filed with the map commissioners except that they start at a ‘Playa de Flor.’ But, according to Dr. Galindo, ‘Playa de Flor’ covered that whole district, and is so shown on the Harrison-Arosemena map. * * * “As shown above, the whole area on the northwest side of the Bay of Limón was known as ‘Playa de Flor,’ and tltat whole area is so designated on the HarrisonArosemena map. * * * “But the term ‘Playa de Flor’ could cover all the land on the point northwest of the Bay of Limón as shown on the Harrison-Arosemena map. * * * “However, as shown above, the entire point northwest of Limón Bay was known as ‘Playa de Flor’ and was so denominated on the Harrison-Arosemena map. * * *” Evidently these statements were made without a careful examination of the Harrison-Arosemena map, because it so happens that on all copies of the map, while the colors may be different, there is an exceedingly small spot appearing on the seashore, or beach, which bears the Spanish designation el lugar llamada Playa de Flor, which, translated, means “the place called Playa de Flor (Beach of Flowers).” It is true that there is another area on the map — but not connected with that mentioned above and a considerable distance from the seashore — which bears the designation “Playa de Flor 28 hectares.” The following statement is also made in the brief mentioned above: “* * * The two instruments then conclude the attempted description ‘to the land (place) known by the name of Santa Rita.’ Where is the ‘place called Santa Rita’ ? * * * ” (Italics supplied.) An examination of the Harrison-Arosemena map shows that, in a southwesterly direction from the little point designated as “the place called Playa de Flor,” there is an area which counsel for defendant evidently overlooked and which bears the Spanish designation el lugar denominado Sta. Rita, which means literally “the place known by the name of Santa Rita.” We believe further that this record shows that there was never any intention on the part of those who prepared the Harrison-Arosemena map to show the quantities, areas, limitations, or boundaries of privately-owned or privately-claimed lands, because the proceedings instituted by the Panama Railroad Company to have the lands adjudicated to it shows conclusively that the Panamanian authorities, after receiving the denouncement of the Railroad Company, requested that Company to furnish them a copy of the plat or plan the Company had suggested in its denouncement and that they would give public notice of same and that those appearing to claim lands would be required to present title to the property in due form, or present the testimony of witnesses to their claims and, after four months, that the agent of the Company would be informed as to individuals who claimed dominion to the lands situated within the area and as to the documents they might have presented. Furthermore, the proceeding shows that claimants did appear, and their appearance and the evidence they offered was set forth, and that on March 14, 1856, a representative of the Railroad Company was given a full copy of the report of the proceeding showing that thirty-one claimants had appeared and presented their muniments of title or their witnesses. The whole proceeding was published in the Gaceta de Panama, No. 34, March 15, 1856. This was six years before the date of the Harrison-Arosemena map. The Railroad Company and the makers of that map had before them Qaim No. 17 made by Feliciano Villalobos, and the description of the claim is so plain that no one could misunderstand it, to wit: “17th. Feliciano Villalobos, as the possessor of the land called Playa de Flor, the boundaries of which are: ‘By the sea front of Playa de Flor, in all its extension up to los Pescaderitos; and in its depth, a straight line from one to the other extreme to the place known by the name of Santa Rita.’ He has presented the testimony of four witnesses, taken before the Judge of the District of Colon, in December, 1855.” (Italics supplied.) The small area designated on the Harrison-Arosemena map as “the place' called Playa de Flor” certainly could not have -covered this area, and the makers of the map and the Railroad Company fully understood it. In our opinion, any marks on that map indicating privately-owned lands are not evidence of the quantities, areas, limitations, or boundaries of such lands, and we fully agree with what was said by the Court in the case of Morales et al. v. Arcia et al. (Memo, p. 110 et seq.) In the brief of counsel for defendant the contention is made that the private landholders either caused to be plotted on the map the areas shown there, or that they failed to object to same and therefore they are limited in their claims .by the areas designated on the map. It will be observed that, while setting forth the number of hectares in some designations, the map does not give the metes, bounds, or distances or any other description of privately-owned or claimed lands. In this connection it must be remembered that it was the duty of the Railroad Company to measure these lands and to set forth correctly the areas of same and the limitations and to mark the boundaries, but there is not a scintilla of evidence to show that this was done. It is also well to remember that the claimants appeared before the authorities of the State of Panama and on or before March 14, 1856, made their claims and furnished their proof, all of which was reported to the Railroad Company. The whole history of this alleged adjudication is set forth in the Court’s Memorandum, page 28, et seq. It will be remembered that the law of 1861 (defendant’s exhibit 4), provided that the limits of the individual property would be traced in connection with the titles or other supplemental proof, but when the topographical position of the limits • was not clearly expressed in the title or proofs, geometrical lines were to be traced on the map to permit the fixing of posts, fences, or other means of indicating the limitation or boundaries. (Memo, p.- 28.) It then set forth the time within which the map should be completed, where it would be kept for the examination of those interested, and that its purpose was to serve as a basis in all questions which might arise as to land limits. (Memo, p. 28.) It was further stated that those who did not consider that the property had been traced exactly might appear before the commissioners during a certain period of time, and the commissioners would make necessary corrections in the map, or plan. (Memo, p. 28.) There certainly is nothing in this record to indicate that any such map, plan, survey, or measurement of the lands as provided by the original grant, or as provided for in the law mentioned above, was ever made, and there is a total absence of proof that those who made the map, chart, or plan, ever at any time made themselves available to any claimant who desired to call the commissioners’ attention to any corrections; however, in Morales et al. v. Arcia et al., Civil No. 289 in the Third Circuit, it did appear that a protest had been made by a private land owner and that the same was ignored. If there was ever anything done by the commissioners subsequent to the making of the map, this record does not disclose it. Furthermore, there is nothing in this record to show who these two men were; the Court does not even know whether they were surveyors, but whatever they did must have been complicated by the conflicting instructions they received, as this record will show. In the communication of March 14, 1856, referred to, in which the Panamanian.authorities transmitted to the representative of the Railroad Company information as to the persons who had appeared and claimed portions of the land which the Company had undertaken to denounce, appears the name of one Gerónimo Bracho, Claim 10, whose lands were adjacent to and on the south of the lands involved in this action. His lands were generally described, but no boundaries, acreage, or distances were given in the description by the claimant. The makers of the map indicated the lands on their map by the designation “Rio Indio,” and the lands are shown as comprising an area of 2,145 hectares, or 5,200 acres. Afterwards, a suit was brought about this land, Third Circuit, Civil No. 289, (Memo, p. Ill), and the Isthmian Canal Commission and the Panama Railroad Company entered their appearance and litigated the case, and, of course, they contended that the heirs of Gerónimo Bracho were only entitled to the hectares or acres shown on the Harrison-Arosemena map. They were not successful in this contention, however, and the Court, by its judgment, awarded to the heirs of Bracho a much larger area, which included a part of the village of Mount Hope, adjacent to the railroad tracks. In a case before the Joint Land Commission, Docket No. 276, June 24, 1913, a portion of the land shown on the Harrison-Arosemena map as public lands was claimed by private persons, and the Commission upheld their claim, saying that the negative evidence of the map should not receive the same weight as positive evidence submitted and that, had the surveyors of 1862 been in possession of all the facts, they would undoubtedly have entertained doubt as to whether the lands in question were indisputably public lands, and the Commission took the position that the title to the lands had been perfected by the acts of the Colombian authorities, the decision of the Canal Zone courts, and the principle of prescriptive right. (See Interim Report, Joint Commission, p. 9, appendix Case 53.) The decision of the Circuit Court of the Canal Zone referred to in the report of the Commission mentioned above was an opinion by Judge F. Mutis Duran, first chief justice of the Supreme Court of the Canal Zone, who was an outstanding authority on Spanish, Colombian, and Panamanian Laws, as this record shows, and who was thoroughly conversant with the history of the Harrison-Arosemena map. The contention is made many times, and often repeated, in defendant’s brief that the description, as shown by the title papers and the complaint herein, is vague and uncertain and that no exact boundaries are given and that the lands could not be properly identified from the descriptions. A sufficient answer to that argument is that the lands have been properly identified for about thirty-five years, and there is absolutely no proof to the contrary. It should be remembered, however, that, although these lands are now within the -Canal Zone and under the dominion of the United States for more than three centuries prior to 1904 they had been under the dominion of Spain and other Spanish-speaking sovereigns, whose systems of laws were entirely different, from those of the United States or England, and that this was true in regard to land titles and to conveyances of land. (Memo, p. 3.) It would be unreasonable, therefore, to expect that precision in muniments of title with respect to these lands as would be found in the United States, where there have been surveys made and maps and atlases prepared which accurately fix the divisions of counties, townships, municipalities, and land boundaries of private parties. See Reavis v. Fianza, 215 U.S. 16, 30 S.Ct. 1, 54 L.Ed. 72. The Court has examined the document referred to above in which the Secretary of State of Panama reported to the Railroad Company as to the thirty-one claimants and the proof submitted by same (Defendant’s exhibit 2). In no instance was the quantity of land, nor the calls, courses, or distances mentioned, except in a general way. Furthermore, that report shows the custom long practiced in Spanish-speaking countries of the Western Hemisphere of transferring lands by deeds or title papers only by describing the local name attached to or used when referring to property. The setting forth of the calls, distances, and limitation of boundaries, as applied to conveyances in the United States, was practically unknown to the system of land transfers under the laws of Spain or Latin American countries. We might add that, after examining the above mentioned report, we have arrived at the conclusion that, of the several descriptions of lands or claimants included in that report, the one by which the land could have been the most readily identified was that describing Claim No. 17 of Feliciano Villalobos, Tract No. 1 in controversy in this action. The engineer who surveyed these lands was undoubtedly competent. He had long been employed on the Isthmus. He was thoroughly acquainted with the lands on Toro Point Peninsula. He had no difficulty — and no one would have — in finding the points designated m the Villalobos denouncement and the De la Parra title. Both of them stated how far the land extended back from the seashore, and the only possible uncertainty would be the north and the south boundaries. It is to be remembered that the original claim of the plaintiffs consisted of Tracts 1 and 2, and the remainder of the land involved in this case was acquired at the instance and suggestion of those representing the Railroad Company. (Memo, p. 75.) This is not an action in ejectment or to quiet title, but it is a compensatory action for taking the land. This is important when it is considered that the sea-front boundary is accurately described and that the sea-front land is by far the most valuable, and this would be the same in any event. Having surveyed Tract No. 1 first under the circumstances as shown by the evidence, and when the adjoining landholders were there and when the engineer could see the lines that they had established between the lands, he could not go far astray, because he knew he had to run to a place called Santa Rita. After that survey and after surveying Cerezo’s land, with his knowledge of the country and with the assistance of the natural objects shown, the only mistake an engineer ' could have made — since the depth of the land back from the seashore was known — would have been to have gone in the wrong direction or at the wrong angle. The area of the land would be approximately the same regardless of the angle at which the land extended back from the seashore, and this is true as to the De la Parra title. There are’ no other claims or titles involved in the action, so that, in any event, the vagueness and uncertainty urged so confidently by counsel for the defendant could prejudice no one. It has never been claimed th^t the. surveys, as made, conflicted with the Railroad Company’s lease to Hyatt to the north or with a purported lease of the Railroad Company to the south. It is somewhat significant that neither the United States nor its predecessors in title ever introduced those leases nor described the lands covered by same. These lands have been in litigation for thirty-five years, and this is the first time that any contention has ever been made as to the vagueness and uncertainty of the descriptions ; however, contentions have been made that the claimants and their predecessors in title did not own any land, but if they did, that the descriptions included more land than they owned. The latter contention has largely been based on the grants to the Railroad Company and the Harrison-Arosemena map. We assume that the Court has a right to take judicial knowledge of the fact that, since 1904, the Isthmus and the Canal Zone have been teeming with capable engineers employed by the Panama Railroad Company, the Isthmian Canal Commission, and the Government of the United’States, but not one engineer has ever testified that an accurate survey of the lands could not have been made and established by the documents which have been in evidence since the beginning of the litigation involving the lands, and the Court has not overlooked the testimony of defendant’s witness Jones, which will be referred to hereafter. Counsel for defendant, on page 16 of his brief, directs the Court’s attention to what he calls the “vague and inconclusive description” as contained and compared in plaintiffs’ exhibits 7 and 7-A, also 8 and 9. If we can understand counsel’s contention, it is that these exhibits do not all give the same description. There is however, a very sufficient explanation as to why they do not: Exhibits 7 and 7-A are descriptions contained in deeds executed by the Villalobos family to some of the plaintiffs to what is known as Tract No. 1 in this action. While the descriptions in these conveyances describe the natural objects and boundaries of the land, they are more minute and specific as to the calls and distances. Exhibit 8 is a conveyance of but seven acres of the land, conveyed as mentioned above, by Fairman and Hyatt to Leo Erdwurm. Exhibit 9 is a deed to the same parcel of land from Erdwurm to Edward Bischoff. The parcel of land covered by exhibits 8 and 9 is described in the conveyances exactly and minutely by metes and bounds, and there can be no question about the specific description. This is the same land for which Bischoff brought suit against the plaintiffs to recover the purchase price. While the description given in plaintiffs’ title papers may not fully conform to the standards of the United States, we are of the opinion, after considering the situation, the nature of this action, and the custom and usage of the Countries which had sovereignty over these lands until 1904, that they furnish a sufficient description for the lands to be properly identified and valued. While discussing defective descriptions, it would not be amiss to say that the defendant offered exhibits in this case, viz., the so-called “quitclaim deed” from the Panama Railroad Company to the defendant United States, that does not give any description of the property proposed to be conveyed, also certain leases and conveyances executed to the Panama Railroad Company and the United States in 1911 and 1914 which contain no description which the Court or anyone else could identify as having any connection with the lands in controversy. Counsel for the defendant, in his brief, challenges the accuracy and authenticity of plaintiffs’ exhibits 3% and 4. Plaintiffs’ exhibit 3% was made by the civil engineer Patterson in 1907 and is a map of the lands known in this action as Tracts 1 and 2. Plaintiffs’ exhibit 4 is a map prepared by an engineer named William Hull and is compiled from surveys made by Hull and Patterson and from all available maps and data. The property lines are as given in the original descriptions. In the ’brief it is also stated -that these maps have not been published and that they have no intrinsic evidential value. We-agree that maps, surveys, and plats are not necessarily of themselves independent evidence and are therefore to be received only so far as they are shown to be correct by other testimony in any case, furthermore, that ordinarily a map made anywhere at any time is only evidentially valuable when it is proved to be made by one competent to do so and present to verify his work. We also agree that maps should be simple enough to be understood by a plain, ordinary man, and that means not only a delineation of the lands included but also such full and accurate notes and data as are necessary to this understanding. As this Court understands the term “published,” it means to “make public, to make known to people in general,” as well as to publish in a newspaper. If it is meant by counsel for defendant that these maps have never been published in a newspaper or government document of which the Court takes judicial notice, that is true; 'but the same contention is true with regard to the Harrison-Arosemena map. Nothing in this record indicates that the Harrison-Arosemena map has ever been published in any newspaper or that it has ever been published or adopted in any public document of the United States. Many copies have been made of it, of course, and these copies, as the Court has seen, vary to some extent, but we believe it has been made public and that it is known to people in a general way. Exhibit 3% was filed in a court of the Canal Zone almost thirty-five years ago, exhibit 4, about seventeen years ago, and they have remained in the records of the Clerk’s Office from that time, unless wrongfully removed with other papers 'by counsel for the Government in a former case. (Memo, p. 41) No. 3% has been introduced in all related cases since it was made thirty-five years ago, and No. 4 has been introduced in all the related cases since 1928. The Court is therefore of the opinion that these maps have been made public and that they are known, at least to those who have been interested in the litigation. So far as the Court has been able to discover from this record, there has never been any testimony offered to disprove that both of these exhibits accurately describe the lands shown on same. We believe that it would be fair and reasonably safe, in order to establish the evidential value, the verity, and the integrity of these exhibits, to recite the evidence in this record as to the mapmakers and the maps identified as exhibits 3% and 4 in the instant case. Mr. Patterson, as heretofore stated, was a civil engineer, and he prepared exhibit 3%. He collaborated with Hull, another engineer, who prepared exhibit 4 from surveys made by himself and Patterson. This map (Ex. 4) included on it notes and data showing what it is and explaining it. Patterson came to the Isthmus in 1905 as an engineer and was employed in that capacity by the Panama Railroad Company or the United States for about eight years. Undoubtedly he was a competent engineer, for the record shows that his qualifications were admitted by opposing counsel in related cases. He was thoroughly familiar with the lands, and his testimony shows that he had made many surveys in the Toro Point Peninsula and the river areas. He was also thoroughly familiar with the locations of buildings or houses on the lands; the villages nearby; the site of old Fort San Lorenzo;. the distances, marks, or points and places; the boundaries; the topography; the vegetation which grew on the lands and also the timber thereon; the amount of land under cultivation and the crops growing thereon, and the appearance of the land as to former cultivation or former timberlands. A reviewing court might have some question as to why one working for the Government or the Railroad Company in 1907 would have made a map for the use of claimants to private lands within the Canal Zone, especially in such a fiercely-controverted matter as this has proven to be. There is some question in the Court’s mind as to whether or not there was any controversy at that time; however, the explanation is that it has been the practice and custom in the Canal Zone from the earliest days of sovereignty by the United States for professional employees of the various governmental agencies, when not on duty or when on vacation locally, to accept temporary appointment with private parties. This custom and practice is also true as to the legal profession. Therefore, we have at this bar what is commonly known as the “sundown lawyer,” who prepares and practices his cases when not engaged in his regular employment. Patterson has appeared as a witness in the cases involving the lands in controversy on three occasions. His first appearance as a witness was in 1908 in the old Circuit Court Case No. 66. What is now identified as exhibit 3% was introduced and verified 'by him in that case. The accuracy of the map was not questioned, but, on the contrary, witnesses were able to identify the lands from same. Furthermore, there was positive and unequivocal testimony that he ascertained the landmarks and the points to start the survey from the description given in the denouncement of Feliciano Villalobos, which was published in the Gaceta de Panama in 1856. Upon that trial Dr. Galindo, a witness for the intervenor, when shown the petition giving the description of the land as it appeared from the denouncement published as mentioned, stated that the map was in accordance with the description. Patterson next appeared in the abortive trial on January 29, 1910, in the old Circuit Court Case 118, afterwards designated as case No. 1 in the District Court. His qualification was admitted by opposing counsel. He testified in that proceeding as to the Villalobos and Cerezo lands, which he had mapped, being Tracts 1 and 2 in this case. He stated the circumstances of making the map, which was introduced, and described the lands included therein. He next appeared as a witness in 1928 in the District Court cases 1 and 3 consolidated. Again his qualification was admitted by opposing counsel. He stated at that time that he had been employed by the Panama Railroad Company from 1905 to 1913 as a civil engineer, part of the time as land engineer for that Company, that he knew the parties and those interested in the litigation, and then explained the maps now identified as plaintiffs’ exhibits 3% and 4. Counsel for the Railroad Company ad-. mitted the authenticity and the accuracy of the maps, his only objection being to the method of proving the issues in the case, namely, the title to lands. The objection was overruled, and the Court admitted the exhibits. The statement is repeatedly made in the brief of counsel for defendant that the Court sustained an objection and refused to let the witness testify when the following question was asked: “Direct Examination by Mr. Fairman: “Q. Mr. Patterson, I exhibit to you a document marked Plaintiff’s Exhibit No. 7, and ask you to read the description of the land contained therein. (Witness examines exhibit.) I refer you to plaintiff’s Exhibit No. 3, being the map prepared by you and ask you to state whether or not the description contained in Exhibit No. 7 is a correct description of the land on this map marked ‘property of the surviving heirs of Feliciano Villalobos’ ? A. It is.” (Tr. Nos. 1 and 3, p. 17.) While there is some confusion in the transcript, not only in this but in all other respects, a careful reading of it discloses that the witness was shown certain exhibits appearing in the case and then asked the question whether or not the descriptions contained in the exhibits were the correct descriptions of the land ar, shown on the maps which had been admitted in evidence. When the question was asked, the witness answered without objection, but counsel for defendant did object immediately following a subsequent question and the objection was sustained and counsel for plaintiffs explained the question and the Court undertook to give its reasons for sustaining the objection. As we gather from the explanation in the transcript, the reason was that counsel was asking the witness to say that which it was the duty of the Court to ascertain. The Court stated in part, “You are asking him to state a conclusion which it is the province of the court to say from the facts.” We submit that it was about time someone was going to decide something in the ancient actions. The records show that the Court considering the case never did. Counsel has also stated in the brief that this ruling of the Court was correct. We can not agree with him. The maker of the map, who was admittedly competent— in fact, it had been admitted in the litigation that he was an expert — was present and testifying. The question was simple and, after all, an engineering or surveying question of fact and not a question of law. Certainly the maker of the map, who was present to verify his work should have been allowed to answer that question. The Court, in its memorandum and its reasons for overruling defendant’s motion to strike, has set forth in full (p. 118 et seq.) the history of the weird proceeding as contained in the transcript of that trial and does not wish to repeat same. The 'Court is of the opinion that the question asked the witness was proper and that he should have been allowed to answer it, but, in any event, the maps which were identified by the witness are proper evidence in the instant case. It is stated in brief for the defendant that it is apparent that Patterson made a gross error which ignored an applicable law limiting the area that could be acquired by cultivators and did not follow the description of the land as published by Villalobos in 1856, and that the maps are therefore valueless as an aid to the Court in determining the metes and bounds of the Villalobos tract of land. We have no doubt that counsel has convinced himself of the correctness of his contentions, but he certainly has not convinced this Court that the descriptions of the lands as published in 1856 and as contained in the De la Parra deed were so vague and uncertain that the lands could not be identified, and he has not convinced the Court that the maps identified as plaintiffs’ exhibits 3% and 4 are valueless as evidence in this case, and neither has he convinced the Court that an engineer making a survey should have been familiar with the applicable law limiting the land that could be acquired by cultivators. Not only would an engineer not be familiar with that law, but it can safely be stated that but few of the Isthmian lawyers would be familiar with the land laws applicable and current in this much-troubled and ever-changing country. In this connection it may be remembered that, in all the cases involving the lands in controversy, the United States and the Railroad Company have never introduced but two expert witnesses as to the laws of Panama, Colombia, and Spain, both of whom are mentioned and quoted from in the brief of counsel for defendant. The first of these, Dr. Galindo, testifying in old case 66 (1908), stated plainly and emphatically that the Railroad Company never did own the lands, because it did not perfect its title in accordance with the laws. The second is Dr. Chiari, who testified in 1943 in the instant case and who stated just as emphatically that no one else except the Railroad 'Company had ever owned the land after the grant by the Colombian Government and the subsequent proceeding, as offered in evidence by the defendant, adjudicating the lands to it. It is contended by counsel for defendant that Patterson, when he surveyed the boundaries of the lands as between the different tracts, merely accepted the statements of the parties and made the survey accordingly. We do not belive the record will support this contention. The natural objects called for in the papers were easily accessible and could be identified and observed, and the distance the lands ran from the sea was set forth. Patterson testified that, when he surveyed the line between Tracts 1 and 2, all the claimants and others were there and showed him the point which they recognized as the dividing line of their lands. He further stated that they had an old boundary line they had cut out and cleared and that he followed the boundary line as it was shown. Practically the same thing occurred as to the survey when he surveyed the line between Tract 1 and the land on the north occupied by Hyatt under the lease from the Panama Railroad Company. In defendant’s reply brief to memorandum on behalf of plaintiffs, it is stated that counsel for plaintiffs would have the Court believe that Mr. Collins waived all objections to the Patterson-Hull map and to the accepting of it as evidence of plaintiffs’ title and that it is inconceivable that Mr. Collins would have done such a thing and that he did not do so is proved by the fact that he vigorously defended the Government’s interest in cases 1 and 3 as long as he had anything to do with them. It is suggested 'by counsel that a fair reading of the entire transcript in these cases — not the quoting of a few lines of testimony — would convince the Court that Mr. Collins had accepted the map only as a delineation of plaintiffs’ claim and that he had made no admission that the map proved title in plaintiffs, that it was evidence of foundation of title, or that it was admissible for that purpose. We have read not only the transcript in 1 and 3 but all those of the related cases, not once but many times. We have applied to them all the understanding and the acumen that we possess. We will agree with counsel that Mr. Collins made no admission that the map proved title in the plaintiffs, that it was evidence of foundation of title, or that it was admissible for that purpose; on the other hand, there can be no question, from reading the record, but that he affirmatively stated that he did not object to the accuracy or the authenticity of said maps. Furthermore, we think the record shows that he agreed that the maps were accurate and that they were authentic. Our reason for this statement is that, at the conclusion of the abortive trial of 1928, the following colloquy between Court and counsel occurred: “Mr. Collins: The defendant would like permission to withdraw its Exhibit M, which is map 60 60-1. In looking it over last Saturday I found an error in there I would rather not have go into any permanent record. “The Court: There being no objection, defendant’s Exhibit M is withdrawn. “Mr. Fairman: And you will adopt the map of the plaintiff? “Mr. Collins: Yes, we have admitted your map is O.K.” (Tr. 1 & 3, p. 64.) Having withdrawn his map and having made the statement as quoted above, the Court considering the case and counsel for the plaintiffs were certainly justified in believing and accepting his statement and acting on same, and so is this 'Court. The Court will state further that, although these maps have been admitted as exhibits in the related cases, as set forth above, and have been testified to by the witness Patterson, neither before the statement made Mr. Collins in his capacity as counsel for the Railroad Company nor since has a witness been called by the Railroad Company or the defendant United States to show that the maps were not accurate, authentic, or that they did not show what it was claimed they showed, and this in spite of the fact, as stated above, that the Government and the Railroad Company have many competent engineers in their employ and available as witnesses in the Canal Zone. Certainly this was a question of fact susceptible of proof, which would have been more convincing than argument. The Court has also examined the decision in the case of Johnston v. Jones et al. 66 U.S. 209, Black 209, 17 L.Ed. 117, which has been cited by counsel for the defendant in support of his contentions, and the Court is of the opinion that there is nothing in the case that supports the contentions. The only reference in the whole decision that the Court finds is the following statement: “The facts disclosed in the testimony show that Allen’s map was not itself original and reliable evidence, and calculation founded upon it was therefore clearly inadmissible. * * *” (Italics supplied.) In the instant cease the defendant introduced Jones, a civil engineer employed by the Office Engineering Division, Section of Surveys, of the Panama Canal since 1928. Mr. Jones stated that he had not been rated as engineer during all this time, as he had not taken his final degree in engineering until 1932. We have no hesitancy in saying that we believe Mr. Jones is a competent engineer. The Court has heretofore stated (Memo, p. 129) that, so far as the testimony connected with the evidence in this case is concerned, the evidence he gave was not important and that Exhibit 15 that he offered is very questionable, under the rules of evidence. The Court will, however, again state its reasons for these conclusions. The witness stated that the documents which he examined were the descriptions in the complaint and the amended complaint herein, which showed the conveyance of the lands at various times, also Document 204, which is a deed of the De la Parra property, to which reference has heretofore been made. He also stated that, considering the natural objects and measuring the lands accordingly, there would be 197 acres more than if he only considered the calls of courses and distances. (Memo, p. 129.) This witness stated that he had never been on the land and had never made a survey of the land, but afterwards stated that he had been on the land, presumably not for the purpose of making any survey. He stated that the exact location of the lands could be found from an actual survey on the ground and that Tracts 1 and 2 had adjacent boundaries and a natural object marking that boundary and that all descriptions in the complaint were hinged upon the plotting of Tract 1, and as much as Tract 1 was off, the other tracts were off correspondingly. He next stated that he had used the Harrison-Arosemena map to get the natural objects, concerning some of which there could be no doubt. He then presented defendant’s exhibit 15, which was admitted and which has been referred to. (Memo, p. 129.) When asked by the Court what map he had used in making this calculation he stated he had used the McClure map. While the Court was interrogating the witness as to what map he had made his calculations from, the following occurred: “By the Court: “Q. But you made a calculation from the other maps? A. No, sir, from this map only. “Q. And also from the Deed? A. Yes, sir. “Mr. Toole: And he took the natural objects shown on this map which is Defendant’s Exhibit 15 for identification, and from the old Harrison-Arosemena, which is in evidence. A. (Continued) I might say that this map, known as the McClure map of 1913, is considered fairly accurate as of 1913. “Q. What map is that? A. McClure.” It will be observed that at no time in his evidence did he state that he used any map in making his calculations except Exhibit 15, the McClure map, and, further, notwithstanding the attempt of counsel to testify at the time the Court was interrogating the witness, that he at no time stated he had used the Harrison-Arosemena map as a basis for or in connection with his calculations. The physical appearance of Exhibit 15 indicates that it is composed of two sections of a map which have been placed together on heavy paper and on the Map the witness had superimposed lines, letters, and numerals. The Court desired, in order properly to consider this testimony, to compare the exhibit with the -original McClure map, as it assumed that the map was a part of the records of The Panama Canal. We discovered another copy of the McClure map among miscellaneous paper which presumably had been mingled with the record when it was returned to the Clerk’s Office at Cristobal after having been removed. (Memo, pp. 41, 42.) We discovered that the map had been prepared in a manner similar to the map offered as Exhibit 15, and undoubtedly had been prepared for the purpose of being offered or used in the trial of civil case No. 772. Upon the map, an engineer by the name of Jones (but not the witness in the instant case) had superimposed certain lines, and it is stated on the face of the map that the lines were plotted from the Harrison-Arosemena map and the records of the Land Office, Ancon, Canal Zone. After discovering the map among the papers, we requested the witness who had prepared and introduced Exhibit 15 to furnish a copy of the McClure map which did not bear lines or other matters superimposed upon it. He furnished us with the two sections of the map which composed the exhibit, which do not bear the improvisations made by the two engineers on the two copies of the map referred to above, and we have joined the two sections in the original map in the same manner as Exhibit 15 is joined and have attached it and the other copy of the map to Exhibit 15 and marked them “A” and “B” and have considered same in connection with the testimony of the witness and Exhibit 15. It will be observed on the McClure map secured by the Court that the location o