CLAIM

on behalf of

WILLIAM GERALD CHASE

DOCKET REGISTRY NO. 10

Syllabus

1. The Commission found, as a fact, that loss of property by the claimant was not attributable to wrongful acts of the Panamanian authorities.

2. "The fact that the Minister of the United States in Panama had acted as mediator on his [claimant's] behalf with full powers from him in the negotiations which led up to the settlement gave that settlement the character of a diplomatic solution and prevented the later bringing of a claim."

SUMMARY OF FACTS

The United States contended in this case that the claimant was unlawfully deprived of his lands in the Province of Chiriqui, Panama, as the result of a series of wrongful acts on the part of executive officials of the Panamanian Government.

The property, known as " Hato del Sito de San Juan ", was acquired by one Capt. Juan Diaz de la Palma by a grant from the Spanish Government in the year 1705, and seems to have remained the property of his successors until it was acquired by the claimant in 1912. The first question of fact upon which Panama took issue in the present claim was whether or not Captain de la Palma had acquired ownership of the tract, as contended by the United States. Panama contended that no "adjudica

tion" of the San Juan tract appeared in any known grant emanating from the Spanish Crown. The United States submitted as proof of the original grant, the Gaceta de Panama of April 8, 1893, which set forth the titles of ownership of all lands within the ancient Province of Veraguas, within which San Juan was formerly situated. It appeared from that document that the subdelegate of the Spanish Crown had been authorized to sell and delimit the lands in Veraguas, and that in 1702 the councilmen of the cities of Santiago and Remedios, the latter of which was the town nearest San Juan, had offered to pay 250 pesos for a grant of lands for the municipality "excepting therefrom el auto [Hato] del sitio de San Juan which Captain Juan Diaz de la Palma possessed". This document also recited that Captain de la Palma had, on October 3, 1704, made payment of 100 pesos to the Crown of Spain as his share of the 3,000 pesos payable to the Crown for the grant of all the lands in the Province. A decree of December 10, 1705, had declared that those persons who contributed proportionately for the payment of the 3,000 pesos were "lords and owners in perpetuity of the lands possessed and occupied by them.

The United States contended that various subsequent legislative enactments recognized the private character of the lands of San Juan. The Sovereign State of Panama, for example, enacted Law 14 of January 26, 1878, for the adjudication of commons (tierras indultadas), article 3, section 3 of the law having specifically exempted from such adjudication "the lands of Hato del Sito de San Juan belonging to Captain Juan Diaz de la Palma or to his representatives ". The Republic of Panama had also enacted Law 3 of January 2, 1909, relating to the adjudication of common lands (tierras indultadas), which had again specifically excepted San Juan from its provisions as private lands. Again, Law 20 of January 31, 1913, concerning public and common lands (sobre tierras baldías e indultadas), had similarly excepted San Juan from its provisions. Furthermore, Law 63 of December 15, 1917,

amending the Fiscal Code of 1917, specifically excepted San Juan from the category of tierras indultadas. The United States contended that, in the absence of evidence to the contrary and in view of the evidence of the original grant, these legislative enactments were conclusive on the question of the private character of the lands of San Juan as distinguished from baldías or indultadas (public) lands. The Government of Panama contended that the legislature had been in error in the above-indicated references to San Juan as shown by the alleged fact that the former occupants of San Juan had not considered themselves owners of the tract, citing a deed of 1834 from Antonio Calancha to Pedro de Obarrio conveying the cattle on San Juan together with the use of the lands. The United States contended that this document, which constituted merely the alienation of a use, was prima-facie evidence that there was at the time of that conveyance a dominant estate in the property, although there is no direct evidence as to the identity of the dominant owner.

The next link in the chain of title was the will of Don Nicholas Aguilar, made in the city of Panamá on June 22, 1845, in which he stated that he possessed the Hacienda San Juan as his own, and that he bequeathed it to his only child, Manuela Aguilar. The evidence indicated that the latter had inherited the property under that will some time prior to 1848. Panama contended that Aguilar's testamentary statement was not a declaration of ownership, and issue was taken upon this point.

Manuela Aguilar, the sole heir, married D. Agustín Jované in 1848. On August 24, 1872, the two spouses protocolized an agreement providing for the separation of their community property, which agreement was approved by the appropriate court on March 29, 1873. The agreement provided that the wife should have, as her share of the community property, inter alia, the cattle "of the hacienda of San Juan, obtained by inheritance from her deceased father, Don Nicholas Aguilar". The Agent for Panama contended that the separation agreement, which

177402-34-23

made no provision for the partition of the lands of San Juan, constituted an admission that the spouses were not owners of the lands, but merely of the cattle pastured thereon. The United States joined issue, alleging that although the agreement contained no express claim of ownership, nevertheless neither of the spouses declared that he or she did not own the lands, and, moreover, since Manuela Aguilar inherited the lands prior to her marriage in 1848, she retained the Hacienda as her separate property; it did not go into the community property by virtue of the laws then in force in Panama, and was, therefore, properly excluded from the agreement separating only community property.

Jované and his wife both died intestate in 1893, and on September 12, 1893, the Circuit Court of Chiriqui decreed seven petitioners, all children of the deceased, to be the legitimate heirs. During the years 1896-97, the court ordered the partition of certain property listed in an inventory submitted by the heirs, including only part of the San Juan tract. The Government of Panama contended that this fact showed that the heirs did not claim ownership of the whole tract. The United States took issue, contending that the heirs had continued to hold the uninventoried portion pro indiviso, until they sold the tract to Chase in 1912.

Moreover, it was pointed out by the United States that in 1896 action had been instituted against the heirs with a view to obtaining a judicial declaration that the lands were the property of certain municipalities and that, in defending their rights, the heirs had claimed ownership in themselves and in their ancestors for a long period. It was also shown by the United States that in 1911 the same heirs had instituted judicial proceedings seeking the delimitation of the San Juan lands, of which they claimed the ownership.

In the year 1912, the claimant, acting for and on behalf of the firm of Field and Chase, contracted to buy from the Jované-Aguilar heirs, their right, title, and interest in and

to the lands known as the "Hato del Sito de San Juan". One of the heirs, Señora Jované de Obaldía, refused to sell her one-fifth interest in the property, and she and the claimant, who is the successor of Field and Chase, held the property as joint owners of one fifth and four fifths, respectively. The deeds of transfer from the heirs to Mr. Chase were duly registered in the Province of Chiriqui in 1912 and 1913.

The series of wrongful executive acts which form the basis for this claim began several months after Mr. Chase purchased San Juan. Law 20 of 1913 provided for the organization of Provincial Land Commissions to demarcate the boundaries of public and common lands, as well as private property bordering thereon, and to issue evidence of title to qualified owners of such private borderlands. The law provided that owners of lands which bordered on public lands should, when called upon to do so, present to the Provincial Land Commission their original titles and evidence of ownership, which should be considered by the land officials in fixing boundaries.

The claimant immediately presented a petition to the Chiriqui Land Commission, praying the delimitation of the boundaries of San Juan and the issuance of titles thereto. The petition was neither granted nor denied by the commission, which took no action whatever (to the prejudice of the claimant's rights), despite the legal mandate of Law 20 of 1913.

The same law also required the executive branch of the Government to draw up a map of each district of the Republic showing the extent and location of all privately and publicly owned lands. In view of the chaotic state of the records regarding titles to lands in Panama, the same law also directed the executive to obtain from the archives of Spain and Colombia the records evidencing title to such lands. The United States contended that the failure of the executive to comply with either of these provisions was in derogation of the rights of the claimant.