Title: Letter from R. E. Holady, American Consul, to the Secretary of State, 26 December 1912
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Title: Letter from R. E. Holady, American Consul, to the Secretary of State, 26 December 1912
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Creator: Holaday, R. E.
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Copy Mi
Compared with 7,
No. 379

American Consulate

Santiago de Cuba, December 26, 1912.


The Honorable
The Secretary of State,

Washington.

Sir:
Referring to Department's instruction 1o. 287 of
September 27, 1912 (Pile No. 337.114 T 11), directing me
to investigate a complaint of the Taco Bay Commercial Com-

pany, of Boston, an American Company, regarding an alleged
attempt to despoil that Company of a certain part of its
property situated in the locality of Baraooa by certain

persons in Cuba, I have the honor to submit the following

report:

The complaint of the Company arises out of a judicial
survey of a certain estate or tract of land called "nE Cupey"
located in the same municipal district, Baraooa, as the

property of the Taoo Bay Commercial Company, and hioh ad-

joins the property of the Company on the west, that is, the
eastern boundary of the estate "El Cupey" corresponds to
the western boundary of the land owned by the Taoo Bay

Commercial Company, the boundary line being, according

to the accepted description of both properties, the Jiguani







-8-

river. The survey of the estate "Pl1 Cupey" was made under

Military Order No. 62, of March 5, 1902, in the years 1910
and 1911. I have not been able to secure a copy of the law

under which the survey was effeeted, but the Department can

probably obtain a copy of it from the War Department to

which it may refer, as the order was published during the

period of the first Military Intervention in Cuba.
It was necessary in order to get a clear idea of the

matter in controversy and complete the investigation for me

to go to Baraooa, the locality in which the property is
situated, to examine the proceedings for the judicial survey
of the estate or hacienda "1a Cupey." I accordingly went

to Baracoa, arriving there on December 19, 1912, at 7 o'clock

a.m., and remained until noon of the following day. Immedi-

ately upon my arrival, I went to the office of our Consular
Agent there, Dr. Arthur F. LTindley, and after having inform-

ad him of the purpose of my visit, requested him to accom-

pany me to the office of the Judge of First Instance. Upon

arriving at the office of the Judge and after having ex-

changed salutations, I informed him of the mission on which
I came and requested permission to examine the records in

the proceedings for the judicial survey of the estate or

hacienda "El Cupey," if there was no law or regulation that

prevented his allowing me to do so. The Judge readily as-
sented to my request and placed a desk in the office at my

disposal and directed the clerk or secretary to permit me to








-3-


examine all of the records in the matter of the judicial

survey of reference, and to make copies of such of the
records as I might desire. On account of the prolixity of

the proceedings and the limited time at my disposal, it

was possible for me to make cursory examination with a view

of making memorandum of those points which seemed to be
pertinent to the complaint of the Taoo Bay Commercial Com-

pany, for to make a minute examination of the entire pro-
ceedings and a comprehensive report thereofwould require

several days with the assistance of an amanuensis.

The original petition for the survey of the estate or
hacienda "El Cupey," a tenantry in common (hacienda oomunera)
was filed in the Court of First Instance (Jusgado de Primera

Instanola) June 22, 1908, by Salvador Selva, attorney in fact

for Fidel Oliveros y Perez, one of the owners or tenants in
common. In that petition the owners of the estate are given

as follows: Jaime Saturino Caballero, Fidel Oliveros, Ramon

Navarro, Juan Maria Aoosta, Donata Vargas, Crispin Turan,

Jose de Armas, Jose Santana, Miguel Pedro y Jose Maria de la

Crus, Aurelia del Rosario, Valeriana y Wenoeslaa Pileta and
Pedro del Rosario. The boundaries of the estate or hacienda

are stated to be: on the north, the sea or Atlantic ocean;

on the south, domains of the State (terrenos Realengos)j on

the east, the river Jiguani, and on the west the river Que-

sigui. The petitioner asked for a judicial survey of the







-4-

estate or hacienda under the prov isions of Military Order
No. 62 of 1902, and an apportionment thereof among the tenants
in common according to their several interests so that each

might have his part or portion inscribed in the Register of

Property with title thereto in fee. There was not attached
the petition any state en of the names of the oo-owners
or tenants in common of the adjoining properties, or the
name or names of the adjoining owner or owners of properties
fundsos, as required by subdivision (b) of Article 6 of the

law under rioh the survey was made, although the petitioner

avers in his petition that the Jiguani river forms the eat-
ern boundary of the estate, which is the same river that

separates the property from Jaragua or Santa Maria y !Miramar

that has appeared in the Register of Property as belonging

to the Taoo Bay Coraneroial Company siine 1904
It having been stated in the petition that the
southern boundary of the estate was conterminous with domain

of the State (terrenos Realengos), the Cuban Secretary of

Treasury, in a letter dated September 14, 1908, requested
information with respect to the proposed survey for the pur-
pose, as indicated, of adopting such measures as might be
deemed necessary to protect the interests of the State. The

Municipal Council of Baraooa also filed in the Court a copy

of a resolution adopted by that corporation to protect the
interests of that municipality should the proposed survey

encroach on lands belonging to it.







-5-


At this point the proceedings appear to have been

dropped by Oliveros and no further action was taken thereon
until October 21, 1910, when one Rodrigo Rodirgues, through

his attorney Rogelio Bernal y Ferrer, presented to the Court

a petition in which he represented that he had acquired by

purchase the interests of several of the owners of the estate

or hacienda "El Cupey," among which was that of Pidel Oliveros
the petitioner for judicial survey of said estate, and that
as said original petition had been presented with all the

formalities required by law in the preliminary proceedings,

he asked an order setting forth as ended the preliminary
proceedings and the formation of a second record. An order
to that wffeot was accordingly made by the Court, and an

eaiot was published in three consecutive numbers of the

Gaceta Oficial de la Republica, beginning with the issue of

date November 2, 1910. In this edict a period of thirty

days from the date of the first publication of the order was
fixed within which all the tenants in common of the estate

"El Cupey" should present their titles in Court duly proved

or authenticated, and the co-owners or tenants in common of

adjoining properties should make use of their rights, and all
other interested parties to vhich the order miglat have ref-

erence should enter their appearance. Reference is made

therein to the fact that according to the lists presented

required by paragraphs (b) and (o) of Order Vo. 62 of 1902,
the State is the only owner of land adjacent to the estate

0







-6-

or hacienda "El Cupey," the southern boundary thereof being

conterminous with domains of the State. The names of the
owners of the tenantry are recited as they appear in the
original petition. There is nothing in the edict to indi-
cate the directions and measurments according to which the
petitioner desires to have the measurement or survey effoeted.

(A copy of the Gaoeta Oficial of November 2, 1910,
containing on pages 4717 and 4718 the ediot of reference is
herewith submitted, marked, "Exhibit A.")
It is proper to state that this decree or order was

also published in the newspaper "La nesena Liberal,' a local

newspaper published at Baraooa.
Rodrigo Rodrigues filed in the Court on 7November 18,
1910, the publications above nontioned ih which this order

or decree had been published, and on the sane date the Court

made another order or decree directing that these publica-
tions should be attached to the proceedings, and also sum-
moning the owners, adjoining owners of estates in common
and all other interested parties in the judicial survey of

"l1 Cupey" to appear at the Court House in Baracoa, at

2 o'clock p.m., of December 8, 1910, for the election of
their common representatives, warning all that the proceed-
ings would oontrdue to their detriment in case they failed

to appear. This ediot was published in three consecutive

numbers of the Gaoeta Oficial de la Republioa" beginning

with the issue of November 22, 1910, a copy of which is







-7-


herewith submitted, containing on page 5390 the edict of

reference, and is marked "EXHIBTT B."

Copies of the publications in which the above men-
tioned edict had been published were subsequently filed

with the Court and made a part of the record in the pro-

ceedings.

It also appears of record that in addition to the

notification of the above edict published in the newspapers
posters or notices were fixed in various public places in

the district in which the proceedings were being carried on.

There is, however, no record of summonses having been left
~ cr~rLILI~ _. _.-- ---
in the farms and defined portions of the property and of the
adjoining ones which were inhabited. In the notifications
and calls for the convocations no mention was made of the

fact that Rodrigo Rodrigues had been subrogated to the right

of the petitioner, Fidel Oliveros, and status under mhioh

he appeared; of the grant or title presented; of the point
designated as the center from rhich the general survey

should begin. The advertisements in the newspapers and the

posters did not contain the lists of those designated by

Rodrigo Rodrigues as tenants in common (comuneros) of the

property (hacienda "Ml Cupey") or as owners end tenants in

common of the adjoining properties, giving notice that all

those who may believe they have a right to do so may appear

in the. proceedings under the title of such tenants in oormon,

although their names may not be in the list of the petitioner.







-8-


According to the records the following persons were
the only ones who appeared at the Court Rouse on December 8,

1910, in obedience to the summon referred to in the edict

of November 18, 1910: Rodrigo Rodriguez, Dr. Reyes Zamora,

Carlos Cassanova, Felipe Ramirez and Aurelio Vilato y Milhet,
Mayor of the town of Baraooa. At this meeting or convocation

Aurelio Vilato y Milhet, Mayor of Baraooa, was designated to

represent the interests of the adjoining owners; Rodrigo

Rodriguez was chosen common representative (Sindico) to rep-
resent the interests of the tenants in common of the proper-
ty haciendaa) "El Cupey;" Rafael Geno Rizo and Isaac Jaen de

las Cuevas were named by the Court principal and substitute

experts, respectively, to make the survey or damarkation of

the estate "El Cupey." These proceedings were ordered to be
published for a period of twenty days in the "faoeta Ofioial

de la Republioa" and in the local newspaper "La Ensena Lib-

eral." Copies of the newspapers containing the order are

on file in the record of the proceedings. A copy of the
Gaceta Ofioial, of date December 14, 1910, containing on
page 6210 the edict of reference is herewith submitted,

marked "EXHIBIT C."

The proceedings with respect to the election of a

syndio and a common representative appears to have been
merely a perfunctory affair for the purpose of effecting a

compliance with the provisions of the law in that respect,

as there is nothing in the records to show that either of







-9-

these functionaries performed any of the duties incidental
to the office for which he was chosen, or that they submitted
to the Court any report of their transactions.

On January 27, 1911, Pogelio Bernal y Ferrer (Register

of Property at Baracoa), as attorney In fact for Rodrigo
Rodriguez, presented to the Court a petition asking the
Court to fix a date for the selection of Referees on Title.

The Court thereupon fixed arch 18, 1911, at 2 p.m., at the

Court House in Baraooa, as the time and place where such

meeting should be celebrated. The edict was published by
posters and by publication in the local newspaper "T"a 'nsena
liberal" and in three consecutive numbers of the s aceta

Ofioial de la Republica," a copy of which latter publication

of date February 14, 1911, containing on page 1697 the edict

of reference, is herewith submitted, marked 8X PTBT D.
At this meeting designated for the selection of Ref-

erees on Title, held at the Court House in Baraooa at 2

o'clock p.m., on March 18, 1911, the following persons appear
of record to have been present: Rodrigo Rodriguez, Pranoisoo

Rodriguez, Barnebe Toriao and Juan Valiente Murrillo, lawyer.
?ranoisco Rodriguez, Barnebe Toriac and Juan Valiente

Murrillo, lawyer, were designated to act as Referees on

Titles. On May 27, 1911, the Referees on Titles submitted
their report to the Court giving the names of the owners of
the estate or haoianda "El Oupey" whose titles had been

approved by them as good and the amount of possession which







-10-

e*oh owner or tenant in conmon had or represented as follows:
Rodrigo Rodriguez e strada, 883 pesos de pesesion;
The heirs of Maroos Fernandez
or whoever may represent them, 460 pesos de posesion;

The heirs of Gregorio Reinosa or
whoever may represent them, 190 pesos de poses ions
Carlos Caesanova Moliner, 150 pesos de posesion;
Jose Marcelino Urguelles Toriao, 14 pesos de posesion;

Dona Donata Vargoe, 25 pesos de poseston:

On March 18, 1911, the Munloipal Council of Baraooa
adopted a resolution designating Failio Hinojosa, a member
of that body, attorney to defend that corporation against

any encroachment on land belong to it in the survey of

the estate "El Cupey."

On March 22, 1911, an order or decree was made by the
Court fixing May 11, 1911, as the date on which the surveyor
should begin the demarkat ion or measurement of the property.

An order was addressed by the Judge of Pirst Instance of

Baraooa to the Judge of the district of Mabujabo, in which
the estate "El Cupey" is situated, instructing him to presence
the geometrical operation of the survey of the property. The

reports of the Judge of the district of Mabujabo with respect

to the operations is herewith enclosed, numbered 1, 2, and 3.
According to the certificate numbered three (3) of the
Judge of the district of Mabujabo the survey or demarkation

was concluded on June Z, 1911, without any opposition what-

ever having been made to the operations.







-il-


On June 14, 1911, Isaac Jaen, the assistant surveyor,

appeared before the Judge of the Court at Baraooa and made
oath that the object of his appearance was to present the
plan of the survey of the estate "E1 Cupey" that he had

made or verified in fulfillment of the judicial order communi-

oated to him; that in the execution of the woir no protests
had been made by anyone; that he had not made a division of
the estate among the tenants in common or a classification

of the lands in compliance with the request of the syndic;

that in fixing the lines and effecting the plan he had

taken into account the information fwunished him by the
guides and the syndio; that he ratifies the plan as sub-

mitted and reoognizes the signature thereto as his. A copy

of the entry as it appears of record is herewith enclosed,

numbered four (4).
On the same day on which the surveyor or expert made
his report to the Court of the work of demarkation, Vil:

June 14, 1911, the Court ordered or deoreed that the same

should be exhibited in the office of the Court RecordeA for

a period of twenty days, during whidh time it might be ob-
Jeotea to by any interested party. The law provides that the
objection in this case must be based on failure to comply

with the terms on which the commission was conferred or on

technical reasons duly formulated and based on an expert

report which shall be attached.
This order or decree of the Court was posted in the








-12-

office of the Court Recorder on a board (tIblilla del Jus-

gaao) which is located in the corner of a room having two

doors, one opening on a street that passes in front of the
building, and the other on a aide street, and is so placed

that when the doors are opened it is practically concealed

from the public view. There is no record. of any other notice

of the completion of the survey and that the report and plan
of the expert or surveyor were on file in the office of the
Court Recorder where they coull be examined by interested

parties.

At the expiration of twenty days from the date on
which the Court ordered that the report of the expert or
surveyor should be exhibited in the office of the Court

Recorder, namely, July 10, 1911, the court certified in

the records that as no one had presented any objection in

due form within the period prescribed by law the proceedings

were declared ended. On August 3rd, 1911, the court rendered
a final d.eiilon in which he declared terminated the pro-

oeedinga for the survey of the hacienda 1 Cupey," the

owners of which he state to be Rodrigo Rodriguez, Antonio
eyes Zamora, Carlos Casanovas, the heirs of Reinosa, Donato
Bargos and Jose M. Arguelles, which persons had accepted the

division of the estate as shown in the plans. The court

further ordered that there should be issued to each owner

a certified copy of the part that pertained to hir together
with the plans which should serve him as a title in fee for








-13-


its inscription in the Registry of Property in that dis-

triot, t ich ineoription the court directed should be made
with the reservations contained in the sixth conclusion of
the sentence or decree. The reservation is as follows:

"Whereas, the plan of the expert Isaac Jaon having been

presented in this court and having been ratified in the

presence of the cowrt, the Secretary (olerk of the court)
set a period of 20 days within whioh the interested parties
might impugn the deinarkation operations if they saw fit,

the said 20 days having par- ed without any impugnment having

been made in due form, the city council of this city having

imply requested that, as owner of said lands adjoining
and called Duaba Arriba or Toa, it be reserved the right at

any time to assert its rights, and the Treasury Department

sta te, in a telegrza to the Director of the Subtroasury

of this city, and the latter transcribed it to the court,

that the national government does not agree to the boundary

line between the Duaba Arriba government domain and El Cupey

estate, as fixed on Iay 19 last, because the line is in

conformity with a plan to which said department does not

give credit, and that it li3wise be stated that the nation
reserves the right to ,duly impugn the boundary line which

may be fixed in said proceedings unless it recovers said

government domin." A copy of the sentence or final decree
of the court is herewith enclosed numbered 5.

With respect to the reservation of the right of the








-14-

State to impugne the survey as to the dividing line between

the State lands and the property "El Cupay," and which the

court expressly directed in the final deoree should be in-
cluded in the inscription of the property in the Register
of Property, I have to state that upon examiation of the

records in the office of the Register of Property I find

that that reservutior was omitted and that ro mention
thereof is made by the Register of Property in his inscrip-
tion of the record of the survey and plan.

Having special reference to the action of the

officials at Saracoa to protect the interests of the

State in the survey of the property "El Cupey," I beg to
enclose herewith oopiev of communications addressed by
the Adminietrador Subalterna de Rentas de Baracoa to the

Juez de Primera Instenoi., numbered "6", "7", and "8". It

is interesting to note that in the commlunioation dated

July 8, 1911, and numbered "6" herein, whioh was presented
to the court within the period fixed for making objections

to the plan of the survey as submitted by th; expert,

the Sub-Seoretary of the Tiaclenda instruated that official

"by telegram to present himself immediately in the Court
of First Instance in representation of the Secretary of

the Treasury, or Treoaury Dopartrent, for the purpose of

making known that the State di d not agroer to the .lviding

line between the State land and the property "El Cupey"

whiohwas fixed on the 19th day of May in accordance with








-15-

the or.er of the Judge ot the district of Mabujaba herein-
bofore referre.l to as enolosre numbered "2", because the

said line was rain in obedier.t to a plan to ifoh that

Department (Cearetary of the Treasury) did not concede
credit, anr at the same time to make it knomw that the
State reserved its right to Impugne the boundary line as

fixed in said proceeeUir4ns whenever it might consider it

conv(aient to do so.

1ow in regard to the objections or opposition
brought forward by the Taoo Pay Coommrcial Company, I
filn upon investigation that the first attempt of that

company to appear in the proooedings was made on or about

Augnst 2, 1911, when Mr. Walter P". Corbett, Vice residentt

A& general "nna;aer of th e Company, in cormany with 3r. Juan
ie Moya y Ouea, Publio Solicitor of Santiago de Cuba, appear-

ed at the Court of First instance in Baraooa and requested

of the Court, as an adjacent property owner, perission

to examine the proceedings in the matter of the survey of
the estate or hacienda "N1 Cu ey," which request was de-

nie ty the Court for the reason as alleged that the pro-

cesirngs for the asrvey of the property i Cupey" has been

daolared. ended, and that sail company did not appear in

sasi proeerdings as an interested rarty thereto, and that
arvc if the sai d oonpany was an adjacent property !wner
the proceedings having been declared ended no opposition

could be brought forward by it to have the boundaries of







-16-


the estate "1l Cupey" as fixed by the expert or surveyor

varied in any manner. This action by the Taco Bay Commer-

cial Company is shown to be true by declaration or protest
made before the American Consular Agent at Baracoa on

August 2, 1911, and recorded in the Miscellaneous Record

Book of the consular Agency on pages 8 and 9. A copy of

said declaration or protest is herewith enclosed numbered
"9".

It does not appear from the record of the proceed-

irgs that any objection was brought forward by the Taco

Bay Commercial Company within the period fixed in the edict

calling for the demarkation of the estate "X 1 upey" which
was published in the "Gaceta Ofcial de la Re-publioa"

beginning with the issue of date 'November 2, 1910, or in

any of the subsequent prooeedigs, not does it appear of

record in the proceedirga that the Taco Bay Commercial

Company was at any time during the sal. proceedings, or

in any of the citations relative thereto, designated as

an adjacent property owner. The commission given to

the surveyor in aooordan e with the result of the proceed-
ings designated the eastern boundary of the estate or

hacienda "_ OCupey" to be the "*iguani" River, which river

is claimed by the Taoo Bay Commercial Company to be the

western boundary of its property. If ih the execution of

his commission the expert or surveyor has taken the figuani

River as the boundary, there can be no reason for the







"-17-

objection to the survey by the Taco Bay Comrercial Company,

However, it is claimed that the expert or surveyor in the
execution of his commission did not take the true course
of the Jiguani River, but instead thereof took an eastern
branch of the river known as "Maoaguania," whereby the

Taco Bay Commercial Company is dispolled of all of the
land lying between the true course of the river JTiguani
and the tributary thereof *iioh it is alleged was taken
by the expert or surveyor in the survey of the estate or
hacienda "El Cupey."

In concluding this report I consider it proper

to state for the information of the Department that within
the past year (1912) the Taoo Bay Cobmercial Company in-
stituted proceedings for a judicial survey of its property

"Jaragua" or "Santa Maria y Miramar," in the Court of First

Instance at Baracoa, under the provisions of Military Order
No. 62, of March 5, 1902, I have not been able to obtain
all of the particulars with reference to this survey, es-

pecially the details as to the date on which the proceedings

were instituted and the various stages of the proceedings.
The survey of the property was made by Edgar W. McOormaok,
a licensed engineer, who was commissioned by the Court to
effect the geometrical operations. Mr. oMCormack, as I am

informed, concluded the work and submitted a report and

plan of the demarkation or survey of the property on or
about August 31, 1912. In effeotirn the survey Mr. Mc-







-10-


Cormaaok did not respect the line established by the ex-
part or surveyor in the demarkation of the "31 Cupey" es-
tate as forming the western boundary of "Jaragaa" or "Santa
Maria y Miramar" conterminous with the estate or hacienda
"El Cupey," but took as the boundary between the two prop-
erties the westerly branch or fork of the river Jiguani,
which is claimed by said company to be the true course of
the river.
On or about September 17, 1912, there was filed in
the Court of Baracoa, by Rodrigo Rodrigues, a protest to
the survey of the property "Jaragua" or "Santa Maria y
Miramar" made by Mr. MoGormaosk, with respect to the dividing
line between the estates "Jara&ua" and "El Cupey" as fixed
by him, stating that the dividing line between these two
estates had been fixed in the judiolal survey of the property

"El Cupey," which line Mr. McCormack, under the commission
conferred upon him by the Court for effecting the survey
of "Jaragua," was bound to respect, and asking the Court

to declare null and void and of no effect that part of
the survey of "Jaragua" as did. not respect the dividing
line established in the Judicial survey of "El Cupey." The
Court at Baracoa sustained the protest and an appeal was

taken by the Taco Bay Cormeroial Company from this de-
cision to the Audienoia where the case is, as I am informed,
now pending.
I transmit herewith a plan or uap of that territory







"-19-


or district in which the properties of reference are lo-

cated, which shows in detail all of the dining claims in

that region and the name of the Comrpnies to which they

belong. I have indicated on the blue print the surveys of

"Kl Oupey" and "Jaragua". The boundaries of "Jaragua,"

according to the survey made by 1r. Edgar W. McCormaok, are

shown by yellow lines, and those of the hacienda "El Cupey,"

lying imrrediately west, by red lines. It will be noted that

these surveys overlap each other. That part which overlaps

is the land the title to which is in isepute between the Tato

Bay Commercial Company and the owner of HRl Cupey," and is

marked on the plan ABO. I have also indleated on the plan

or blue print by a dot and dash red line the real south boun-

dary, according to information given to me by reliable engin-

eers familiar with that region, of all those properties in

that territory. This line is a straight line determined by

two fixed points which I understand were established in the

time of Spain, and can be ascertained by reference to maps

on file in the office of the Public Works Departnment? This
line constitutes the water shed of that region, the waters

to the north of it flowing into the Atlantic Ocean and those

to the south either into the Atlantie or Caribbean sea.

All of the land lying south of that line ie public domain.
As bearing on the raatter in question, I also inolose

copies of translations of agreements of purchase and sale be-

tween the Bethlehem Steel Company and Rodrigo Rodriguez,








"-20-


made before Luis ie Heohavarria, on January 6, 1911, *hioh

are numbered 16 azd 17 reopeotively.

I have the honor to be, Sir,

Your obedient seorant,

R. 3. Holaday,

American Consul.





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