inasmuch as it is established for anyone who exercises the possession or tenure of a property to be able to claim protection of that possession before the jurisdictional authority, against acts that imply potential or effective disturbance with the intention of despoilment; which requires detailing whether the prerequisites of that possession are met, in accordance with the provisions of articles 279, second paragraph, 284 and 285 of the Civil Code, that is, an occupation that is uninterrupted, public, peaceful, annual and in good faith; it being understood that a possessor in good faith is one who does not know the defect that invalidates the title on which their possession is based, and consequently, a possessor in bad faith is one who does know that circumstance, and one who possesses without any title. A corollary of the foregoing is that it can well be concluded that for the protection of the possessory interdict (interdicto) to proceed, a presumption of legitimacy in the action is required, precisely because it is a summary proceeding (supposedly expeditious and simple), established precisely to protect possession (legitimate) in a primary manner, pending a possible discussion of the right, in an ordinary proceeding; otherwise, the legal system would be protecting situations of arbitrary and violently motivated despoilment, which is foreign to the guiding principles of Law. Therefore, it is so important to determine whether the element of good faith exists (whether the possessor knew or not of the defect in their title - the legal cause giving rise to the right of possession) in conflicts that usually occur over possession, because \\\"naturally, he who possesses a thing with full knowledge that he has no right to it commits a punishable act that cannot help but place him in a disadvantageous situation; and, conversely, he who proceeds without malice, ignorant of the poor quality of his title, deserves no punishment; and it is even necessary, to establish legal balance, to limit the damages he suffers, as far as is compatible with the right of his adversary.\\\" (Name60957, . Op. Cit. p.44.) In second place, the protection afforded is with respect to \\\"acts that disturb and manifest the intention of despoilment\\\", which makes it inapplicable against the actions of the holder of the right to recover their right, or, in the case of public goods, the actions of the Administration to recover its domain. In third place, it is extremely important to note that this type of process is only applicable with respect to immovable property under a private property regime, that is, they are ineffective in relation to goods of a public nature or communal goods, inasmuch as they cannot be possessed by private individuals, as provided in articles 261 and 262 of the Civil Code:
\\\"Article 261.- Public things are those that, by law, are permanently destined for any service of general utility, and those of which everyone can take advantage, being entrusted to public use.
All other things are private and objects of private property, even if they belong to the State, or to the Municipalities, who in such case, as civil persons, are not differentiated from any person.\\\"
\\\"Article 262.- Public things are outside of commerce; and they may not enter into it, while it is not legally so provided, separating them from the public use to which they were destined.\\\"
It is based on the foregoing considerations that the possessory interdicts (interdictos) filed will be analyzed.
VI.- ON THE INAPPLICABILITY OF THE POSSESSORY INTERDICTS FILED DUE TO THE NATURE OF THE PROPERTIES.- As indicated in the preceding Considering, the protection of possession does not proceed against public domain (dominio público) assets, since there is no right of possession on the part of private individuals, but rather a right of use, through permits and concessions granted in accordance with the law; hence, possession -as an attribute of the right of possession- can only be exercised by the entities holding the right, without any private subject being able to legally claim possessory acts -except if these were carried out before the public Institution acquired the property, and only for the purposes of eventual compensation-. In the case under study, the expropriation proceedings denote the special nature of the farms (fincas) over which the declaration of possession is sought, inasmuch as, as the appellant (Municipality of Alajuela) correctly asserts, these are properties subject to a special regime, comprising the public domain (demanio público), which that local corporation administers, and therefore, not subject to possession by private individuals. As the Constitutional Chamber (Sala Constitucional) has considered in various precedents (among others, judgments number 5399-93, 3145-96, 5027-97, 2988-99, 2000-10466, 2002-8321; 2003-3480; 2005-7158 can be consulted), by demanial or dominical assets must be understood the set of assets –both immovable and movable– that have a nature and legal regime virtually opposed to private ones, inasmuch as, by the express will of the constituent or the legislator, they are affected by a special destiny of serving the community, that is, the public interest, and that for this reason, they cannot be the object of private property nor of possession, so that they are outside the commerce of men, that is, they cannot belong individually to private individuals, nor to the State –in a strict sense–, since it is limited to their administration and guardianship. Thus, public domain assets and the private domain assets of the State (fiscal) are differentiated by their purpose and the titular subject, inasmuch as what defines the legal nature of the former is the destiny given to this type of asset, that is, inasmuch as they are affected and are at the service of public use, under the terms provided in article 261 of the Civil Code. (In this same sense, judgments number 2306-91 and 2988-99, among others, both from the Constitutional Chamber, can be consulted.) Thus, entering into this category –without it constituting a closed list– are the maritime-terrestrial zone, the forest or natural heritage of the State –protected areas– (comprised of national parks, forest reserves, biological reserves, protective zones, wildlife refuges, wetlands and natural monuments –article 32 of the Organic Law of the Environment, number 7554, of the eighteenth of September of nineteen ninety-five–), the hydrographic protection zones –article 33 of the Forestry Law (Ley Forestal)– (adjacent to springs, to the banks of rivers and lakes), the bordering zones (article 10 of the Vacant Lands Law, number 13, of the tenth of January of nineteen thirty-nine), the right of way (derecho de vía), railway lines, indigenous reserves, the historical-architectural heritage, mining resources, the archaeological heritage, parks and green zones, etc. These are assets that, inasmuch as by their vocation and destiny they are outside the commerce of men, are therefore inalienable, imprescriptible and unattachable, such that their domain or possession is not possible, neither gratuitously nor for consideration; they cannot be lost by prescription, nor gained by usucapion (usucapión), so that they permanently retain their legal validity; and they are not susceptible to judicial attachment (embargo), under the terms of Civil Law; in addition to being subject to police power, regarding their exploitation and use, since their private use is conditioned on the granting of the respective licenses and permits and on the control and supervision by the Administration; and the Administration holds sufficient powers for their recovery, without needing to resort to the jurisdictional route, nor even to an administrative procedure, as there exists on the part of the \\\"occupant\\\" no subjective right or legitimate interest, so that the administrative action substitutes for possessory interdicts (interdictos) for their restitution. Therefore, the legal regime of public domain assets is special and differentiated according to the type of assets in question. The distinction between private goods or things and public goods and things is made to depend, in the first place, on the \\\"ownership\\\" or \\\"domain\\\" of the asset, since the differentiated nature and legal regime is defined by this element; and consequently, on the applicable law, inasmuch as the former is subject to private law, and the latter to public law. Thus, the national regime of public domain assets places them outside the commerce of men and therefore the permits that are granted will always be on a precarious and revocable basis by the Administration, unilaterally, when reasons of necessity or general interest so require, for the preservation of the natural use of the public thing. By virtue of which, it is not possible to infringe or injure the right of property, enshrined in article 45 of the Political Constitution, given that it involves a totally diverse legal regime, where the law establishes conditions through which use and enjoyment by private individuals is possible. Thus, whoever attempts by unauthorized means to exercise a private use of that zone will be barred from consummating it, since it is also acceptable, from time immemorial, that these are imprescriptible assets in favor of private individuals and that are outside of commerce, principles set forth in articles 261 and 262 of the Civil Code, which dates from eighteen eighty-six.
VII.- Thus, the possessory interdicts (interdictos) filed are inapplicable, due to the special nature of the farms (fincas) over which this process is filed. Indeed, having been proven that the cause of public interest for the expropriations carried out by the Municipality of Alajuela from the deceased Name70527 of the farms registered in the Public Registry of Property, under the folio real (folio real) system, with registration numbers Placa11500, Placa11498, 122.604 and Placa11502, located in District: four, San Antonio; Canton: Alajuela; Province of Alajuela, was to destine them for the construction of a sports citadel, this implies that these are communal goods (bienes comunales), by destiny and vocation, under the advocacy of green zones, understanding by such, the assets belonging to the municipalities (inasmuch as they hold the bare ownership of the asset) destined for neighborhood use, that is, they are arranged for the enjoyment of the neighbors (Name70535, Name70536, Los Bienes Comunales en la Legislación de Régimen local. Editorial Tecnos, S.A. Address4451. . 1994. p. 35), which enjoy the characteristics of public domain assets, as the Constitutional Chamber (Sala Constitucional) asserted in judgment number 4605-96, in the case of communal areas derived from the urbanization process:
\\\"XXII. Green areas destined for public use, by virtue of their use and nature, are part of the community's heritage and must remain under the jurisdiction of municipal entities so that they may administer them as public domain assets, with which they participate in the legal regime of these assets, which makes them inalienable, imprescriptible and unattachable, that is, they cannot be the object of private property by the urbanizer or subdivider (fraccionador), as provided in article 40 of the Urban Planning Law. (...)\\\"
The truth is that in the case under study, the sports fields that were built on the farms subject to this litigation are in disuse, and that it seems the properties are abandoned, without having been destined for the purpose for which they were expropriated; however, it is not therefore possible to ignore their public domain status (demanialidad) (judgment number 2006-0382 of the Constitutional Chamber), since the affectation is of transcendental importance in this type of asset, to such a point that the Constitutional Chamber itself has annulled the modification of destiny or declassification, for example in judgment number 2000-4332, under the following considerations:
\\\"The local municipality cannot freely eliminate the destiny of the lands dedicated to parks, nor could the legislator do so -without defining in exchange a space that compensates for the loss of the park area- since that would make the agreement or law unconstitutional, for disrespecting the essential content of the neighbors' right to enjoy those recreational areas, which, as indicated, are part of the quality of life that the Constitution guarantees them. The term 'communal facilities' does not have the breadth that is intended to be implied. It is obvious to this Chamber that it refers to constructions indispensable for the communal enjoyment of the asset destined as a green area, park and recreation; consequently, the construction of buildings for public services such as, for example, libraries, schools, communal halls, etc., are incompatible with the destiny of park areas and green zones that the legislator has required for some lands, and, without a doubt, so that the interested associations can undertake the construction of buildings such as those that are of their interest, they must bear the costs, which involves all the members or neighbors of the locality who will benefit from the public and general use of the property -the cost of the same. The Chamber cannot admit that through donations or construction authorizations (sic) such as those being attempted, the right of the plaintiff neighbors to enjoy the land that integrally belongs to the community of Cipreses as a green zone and park, and that the Municipality only possesses in administration of local interests, is disregarded.\\\"
It was also proven that the Municipality paid the totality of the corresponding compensation, which denotes that it is a legitimate possession, not only due to its vocation (or destiny), but also because it occurs in full respect of article 45 of the Constitution. Likewise, another portion of the farm registered in folio real (folio real) under registration number Placa11498 (supra indicated), specifically a strip of land of three thousand four hundred fifty square meters, is also a public domain (dominio público) asset, having been expropriated by the Ministry of Public Works and Transport (Ministerio de Obras Públicas y Transportes, MOPT) for the construction of the railway interconnection in Alajuela (FECOSA), so that it is affected for the right of way (derecho de vía). It must be remembered that in accordance with the provisions of the final paragraph of subsection 14) of article 121 of the Political Constitution, in its ordinance 121, the demanial character is granted to the railway -along with other assets-, a condition that is maintained in article 4 of the General Railways Law, number 5066, of nineteen seventy-two. Regarding the right of way (derecho de vía), it is clarified that it implies a physical space where the railway activity is carried out, in such a way that the limitations and prohibitions exist with respect to the same regarding third parties, typical of public domain assets, by reason of their destiny or vocation, as follows from articles 46, 52 and 53 of the General Railways Law.
VIII.- ON THE EXERCISE OF POSSESSION OVER THE CLAIMED PROPERTIES.- In addition to what has been indicated in the foregoing Considering paragraphs, this Court considers that the request made is inapplicable because the Municipality of Alajuela exercises tenure of the farms over which the process is being promoted, as has been proven in the testimonies rendered, in that it has exercised the police power inherent to the Administration in defense of the public domain (demanio público), to such a degree that, in the face of the plaintiffs' cleaning attempts, the municipality's action has been practically immediate, preventing them from carrying them out, which is why it was forced to erect a wall, which was the subject of this suit; which leads to the conclusion that, far from being \\\"disturbing\\\", the actions of the defendant local government are absolutely legitimate and in accordance with the law. The Mayor of Alajuela is correct in pointing out that the alleged cleaning actions -worth clarifying- failed by reason of the state of the properties (according to the report of the various inspections carried out), due to the defense action of the defendant authority itself, cannot be considered as possessory acts that support this process, since they have not been continuous, nor quiet, but rather occasional, drawing this jurisdictional body's attention to being carried out, beginning in the year two thousand (without specifying an exact date), as a consequence of the succession process that the siblings Name70526 promoted upon the death of their parents, in which they inventoried as heritage the farms that had been expropriated, both by the Municipality of Alajuela and by the Ministry of Public Works and Transport (MOPT); the title of their registry possession being precisely the inheritance. This shows a clearly reckless action and claim, especially if it is taken into account that the same siblings Name70526 filed a request for reversion (retrocesión) of the expropriation carried out by the Municipality of Alajuela over the farms registered in folio real (folio real) in the Public Registry of Property, in the Province of Alajuela, numbers 120.442, 126.604, 13.326 and 98.418, which demonstrates their knowledge that such lands do not belong to them, nor does their possession.
IX.- ON COSTS (COSTAS).- The appellant requests the revocation of the judgment on this point as well.
\n\nPursuant to the provisions of article 221 of the Civil Procedure Code, applicable supplementarily as provided for in article 103 of the Regulatory Law of the Contentious-Administrative Jurisdiction, the losing party must be ordered to pay personal and procedural costs. Since the appealed judgment is being revoked and dismissed in its entirety, the plaintiffs must be ordered to pay costs, as we are not in any of the exception scenarios provided for in article 98 of the Regulatory Law of this Jurisdiction, given that reckless conduct (actuación temeraria) is observed on the part of the petitioners, who attempted to profit from their own fraud (dolo) since the matter involves a public domain asset (bien de dominio público).\n\nPOR TANTO:\n\nThe evidence submitted by the petitioners for a better resolution (copy of the probate proceedings of Nombre70528 and Nombre70527, processed under file 00-001758-638-CA, before the Civil Court of Higher Amounts of Alajuela) and by the respondent municipality (expropriation proceedings, processed under file 3061-75 and copy of the reversion (retrocesión) request filed by the managers of this interdict before the Municipality of San José) is admitted. The challenged decision is revoked to instead deny the filed interdicts in all their aspects. The siblings Nombre70526 are warned against carrying out acts that disturb\n\nThe plaintiffs are ordered to pay personal and procedural costs, the latter including those of the filed appeal.\n\n\n\n\n\nSilvia Consuelo Fernández Brenes\n\n\n\nNombre70537 Nombre8483 Sandra María Quesada Vargas\n\nExp.01-002278-638-CI\n\nInterdicto\n\nNombre70522 and others against the Municipalidad de Alajuela\n\namv\n\nTherefore, it is of such great importance to determine whether the element of good faith (buena fe) is present (whether the possessor knew or did not know of the defect in their title -the legal cause giving rise to the right of possession-) in conflicts that often occur over possession, because \"naturally, he who possesses a thing with full knowledge that he has no right to do so, commits a punishable action that cannot help but place him in a disadvantageous situation; and, on the contrary, he who acts without malice, ignorant of the poor quality of his title, deserves no punishment; and it is even necessary, to establish legal equilibrium, to limit the harm he suffers, insofar as it is compatible with the right of his adversary.\" (BRENES CÓRDOBA, Alberto. Op. Cit. pag.44.) Secondly, the protection provided is regarding \"acts that disturb and manifest the intention of dispossession\", which makes it inadmissible against actions by the right-holder to recover their right, or, in the case of public property, the actions of the Administration to recover their property. Thirdly, it is extremely important to note that this type of proceeding is only admissible regarding real estate under a private property regime, that is, they are inapplicable in relation to property of a public nature or common property, as they cannot be possessed by private individuals, pursuant to the provisions of articles 261 and 262 of the Civil Code: \"Article 261.- Public things are those that, by law, are permanently destined for any service of general utility, and those that everyone can take advantage of because they are dedicated to public use. All other things are private and objects of private property, even if they belong to the State, or to the Municipalities, who in that case, as civil persons, do not differ from any ordinary person.\" \"Article 262.- Public things are outside of commerce; and they may not enter into it, as long as it is not legally disposed otherwise, separating them from the public use to which they were destined.\" It is based on the foregoing considerations that the filed possessory interdicts (interdictos) will be analyzed. VI.- ON THE INADMISSIBILITY OF THE POSSESSORY INTERDICTS FILED DUE TO THE NATURE OF THE PROPERTIES.- As indicated in the preceding Whereas Clause, the protection of possession (amparo de posesión) is not admissible against public domain property (bienes de dominio público), since private individuals do not have a right of possession, but a right of use, through permits and concessions granted according to law; hence, possession—as an attribute of the right of ownership—can only be exercised by the entities holding the right, without any private subject being able to legally claim possessory acts—unless these were carried out before the public Institution acquired the property, and solely for purposes of eventual compensation—. In the case under study, the expropriation proceedings denote the special nature of the properties over which the declaration of possession is sought, as, as the appellant (Municipalidad de Alajuela) rightly asserts, they are properties subject to a special regime, comprising the public domain (demanio público) that this local corporation administers, and therefore, not subject to possession by private individuals. As the Constitutional Chamber (Sala Constitucional) has considered in various precedents (among others, judgments number 5399-93, 3145-96, 5027-97, 2988-99, 2000-10466, 2002-8321; 2003-3480; 2005-7158 may be consulted), public domain properties (demaniales or dominicales) must be understood as the set of goods—both immovable and movable—that have a nature and legal regime virtually opposite to private ones, since by express will of the constituent or the legislator, they are affected by a special destiny of serving the community, that is, the public interest, and therefore, cannot be objects of private property or possession, so that they are outside the commerce of men, that is, they cannot belong individually to private individuals, nor to the State—in the strict sense—since the State is limited to their administration and guardianship. Thus, public domain property and the State's private property (fiscales) are differentiated by their purpose and the titular subject, as what defines the legal nature of the former is the destiny given to this type of property, that is, insofar as they are affected by and are in the service of public use, in the terms provided in article 261 of the Civil Code. (In this same sense, judgments number 2306-91 and 2988-99, among others, both from the Constitutional Chamber (Sala Constitucional), may be consulted.) It is thus that this category includes—without constituting a closed list—the maritime-terrestrial zone, the forest or natural heritage of the State—protected areas—(comprised of national parks, forest reserves, biological reserves, protective zones, wildlife refuges, wetlands, and natural monuments—article 32 of the Ley Orgánica del Ambiente, number 7554, of September eighteen, nineteen ninety-five—), water protection zones—article 33 of the Ley Forestal—(adjacent to springs (nacientes), riverbanks, and lakes), border zones (article 10 of the Ley de Terrenos Baldíos, number 13, of January ten, nineteen thirty-nine), the right-of-way (derecho de vía), railway lines, indigenous reserves, historical-architectural heritage, mining resources, archaeological heritage, parks and green zones, etc. These are properties which, insofar as by their vocation and destiny they are outside the commerce of men, are inalienable, imprescriptible, and unattachable, so that their ownership or possession is not possible, neither gratuitously nor for consideration; they cannot be lost by prescription, nor can they be gained by adverse possession (usucapión), so that they permanently retain their legal validity; and they are not susceptible to attachment, in the terms of Civil Law; in addition to being subject to police power, regarding their exploitation and use, since their exclusive use is conditioned upon the granting of the respective licenses and permits and the control and supervision by the Administration; and the Administration holds sufficient powers for their recovery, without needing to resort to judicial channels, nor even an administrative procedure, because the \"occupant\" does not have any subjective right or legitimate interest, so that administrative action replaces possessory interdicts for their restitution. Therefore, the legal regime for public domain property is special and differentiated according to the type of property involved. The distinction between private property or things and public property or things is made to depend, first of all, on the \"ownership\" or \"dominion\" of the property, since this element defines its differentiated nature and legal regime; and consequently, on the applicable law, as the former is subject to private law, and the latter to public law. Thus, the national regime for public domain property places them outside the commerce of men, and therefore the permits granted will always be on a precarious and revocable basis by the Administration, unilaterally, when reasons of necessity or general interest so require, for the preservation of the natural use of the public thing. By virtue of which, the infringement or injury of the right of property, enshrined in article 45 of the Political Constitution, is not possible, as it involves a totally different legal regime, where the law merely establishes conditions through which use and enjoyment by private individuals is possible. Thus, anyone who attempts by unauthorized means to exercise exclusive use of that zone will be barred from the possibility of consummating it, since it is also acceptable, from time immemorial, that these are properties imprescriptible in favor of private individuals and that are outside of commerce, principles set forth in numerals 261 and 262 of the Civil Code, which dates from eighteen eighty-six. VII.- This being the case, the filed possessory interdicts are inadmissible, due to the special nature of the properties over which this proceeding is filed. Indeed, having been accredited that the cause of public interest for the expropriations carried out by the Municipalidad de Alajuela on the late Carmelina Arrieta Rodríguez of the properties registered in the Public Registry of Property, under the registered title system, with registration numbers 12.442, 98.418, 122.604 and 13.326, located in District: four, San Antonio; Canton: Alajuela; Province of Alajuela, was to destine them for the construction of a sports citadel, this implies that they are communal property (bienes comunales), by destiny and vocation, under the designation of green zones, understanding by such, property belonging to municipalities (as they hold the bare ownership of the property) destined for neighborhood use, that is, they are arranged for the enjoyment of the neighbors (COLOM PIAZUELO, Eloy, Los Bienes Comunales en la Legislación de Régimen local. Editorial Tecnos, S.A. Madrid. España. 1994. pag. 35), which enjoy the characteristics of public domain property, as the Constitutional Chamber (Sala Constitucional) affirmed in judgment number 4605-96, in the case of communal areas derived from the urbanization process: \"XXII. Green areas destined for public use, by virtue of their use and nature, are part of the community's patrimony and must remain under the jurisdiction of municipal entities so that they administer them as public domain property, thus sharing the legal regime of these properties, which makes them inalienable, imprescriptible, and unattachable, that is, they cannot be objects of private property of the developer or subdivider, as provided in article 40 of the Ley de Planificación Urbana. (...)\" It is true that in the case under study the sports fields that were built on the properties subject to this litigation are in disuse, and it seems that the properties are abandoned, without having been destined for the purpose for which they were expropriated; however, it is not thereby possible to disregard their public domain nature (demanialidad) (judgment number 2006-0382 of the Constitutional Chamber (Sala Constitucional)), since the affectation is of transcendental importance in this type of property, to such a point that the Constitutional Chamber itself has annulled the modification of destiny or its de-affectation, for example in judgment number 2000-4332, under the following considerations: \"The local municipality cannot freely eliminate the destiny of the land dedicated to a park, nor could the legislator do so—without defining in exchange a space that compensates for the loss of the park area—because this would make the agreement or law that so ordered unconstitutional, for disrespect of the essential content of the neighbors' right to enjoy these recreation zones, which, as indicated, form part of the quality of life that the Constitution guarantees them. The term 'community facilities' does not have the breadth that is being implied. It is obvious to this Chamber that it refers to constructions indispensable for the communal enjoyment of the property destined as a green area, park, and recreation; consequently, the construction of buildings for public services, for example libraries, schools, community halls, etc., are incompatible with the destiny of park areas and green zones that the legislator has required for some lands, and, without doubt, for the interested associations to be able to undertake the construction of buildings such as those that are of their interest, they must bear the costs, which involves all the members or neighbors of the locality who are going to benefit from the public and general use of the property—the cost of the same. The Chamber cannot admit that by means of donation or construction authorizations (sic) such as those being attempted, the right of the petitioning neighbors to enjoy the land that in its entirety belongs to the community of Cipreses as a green zone and park, and that the Municipalidad only possesses in administration of local interests, be disregarded.\" It was also accredited that the Municipalidad paid the totality of the compensation corresponding to its indemnification, which indicates that it is a legitimate possession, not only due to its vocation (or destiny), but also because it is carried out in full respect of constitutional article 45. Similarly, another portion of the property registered under registered title with registration number 98.418 (indicated supra), specifically a strip of land of three thousand four hundred fifty square meters, is also public domain property, having been expropriated by the Ministerio de Obras Públicas y Transportes for the construction of the railway interconnection in Alajuela (FECOSA), so it is affected for the right-of-way (derecho de vía). It is necessary to recall that pursuant to the provisions in the final paragraph of subsection 14) of article 121 of the Political Constitution, in its ordinal 121, public domain character is granted to the railway—along with other properties—, a condition that is maintained in article 4 of the Ley General de Ferrocarriles, number 5066, of nineteen seventy-two. Regarding the right-of-way, it is clarified that it implies a physical space where railway activity is realized and carried out, in such a way that there exist regarding it the limitations and prohibitions with respect to third parties, characteristic of public domain property, due to its destiny or vocation, as is inferred from articles 46, 52, and 53 of the Ley General de Ferrocarriles.\n\nIn accordance with articles 457, 459, 461, and 463 of the Civil Procedure Code—fully applicable in this matter as permitted by article 103 of the Law Governing this Jurisdiction—the present summary possessory interdict action, in its modality of protection of possession, filed by Nombre70522, Nombre70523, Nombre70524, Nombre70525, Nombre70526, and Nombre70526 against the Municipalidad de Alajuela, is declared with merit. In accordance with article 463 of the Civil Procedure Code, the plaintiffs are ordered to be maintained in possession of the properties subject to this interdict. Likewise, the Municipalidad de Alajuela is ordered to henceforth refrain from disturbing the plaintiffs' possession of the properties subject to this interdict, under the warning that, should it do otherwise, the representatives and officials of said municipal corporation who fail to comply with what is ordered in this judgment will be tried for the crime of disobedience to authority. The defendant, Municipalidad de Alajuela, is ordered to pay both sets of costs of this action\" (folios 771 and 772).\n\n**4.-** Disagreeing with the decision of the lower court, the Mayor of the defendant Municipality appeals, a recourse that was admitted, and by virtue of which this Court hears the matter on appeal.\n\n**5.-** The mandatory procedural requirements have been observed in the proceedings, without noting grounds for nullity capable of invalidating what has been done, and judgment is rendered, after deliberation; and,\n\n**Drafted by Judge Fernández Brenes; and,**\n\n**CONSIDERING:**\n\n**I.- OF THE EVIDENCE OFFERED FOR BETTER PROVISION.-** By means of a brief filed on April 5, 2002 (visible at folio 149), the claimants in this interdict provide certification of the probate proceeding processed in case file number 00-001758-638-CI, before the Juzgado Civil de Mayor Cuantía de Alajuela (folios 151 to 229); in order that it be taken as evidence for better resolution; and likewise, the defendant local government, in memorials of April 17 (folio 230) and June 13 (folio 679), both memorials from 2002, presents a certified copy of the expropriation proceedings that were processed in case file 3061-75 regarding properties 120,442, 98,418, 122,604, and 13,326 (folios 231 to 668 verso) and of the petition filed by the Nombre70526 siblings before that institution (folios 650 to 687), where they request the reversion of the properties expropriated from their deceased mother by that corporation. Pursuant to article 331 of the Civil Procedure Code, the pertinence of its admission is reserved to the degree of influence it has on the decision of the ruling; so that, having brought the referred evidence to the attention of the parties involved in this process (resolution of seven hours fifty minutes on November 28, 2002, of the Juzgado Civil de Mayor Cuantía del Primer Circuito Judicial de Alajuela, visible at folio 710), and having analyzed it at this instance, **this Court considers that said evidence is indeed pertinent to the outcome of this decision**, since, despite the fact that in possessory interdict proceedings the discussion is limited to the possession of the property and not to the better right one may have over it (article 457 of the Civil Procedure Code), the truth is that from this evidence it is possible to derive, **the special nature of the properties over whose possession the declaration is sought to be made, as they are public domain assets**, in view of the indicated expropriation process.\n\n**II.- OF THE PROVEN FACTS.-** The facts taken as proven are substituted due to a series of omissions and inconsistencies in their recording, so that they are taken as follows: **1.)** That the **Municipalidad de Alajuela decided to expropriate the properties of the Partido de Alajuela, with registration numbers Placa11500, Placa11498, Placa11501, and Placa11502**, located at Dirección7894: , ; Cantón: Alajuela; Provincia de Alajuela, **for the construction of a sports complex (ciudadela deportiva)** (statement of defense, folios 95 and 96, Article II of the ordinary session 14 of the Concejo de Alajuela, of February 21, 1974, and Article 14 of the ordinary session 43, of April 17, 1975, folios 246 to 249, and 251 to 252); **2.)** That, the owner—Nombre70527—having opposed the amount of compensation given in the administrative appraisal, she filed expropriation proceedings, which were processed before the Juzgado Segundo de lo Contencioso Administrativo y Civil de Hacienda, in case file number 3061-75 (folios 240 to 244); **3.)** That while these expropriation proceedings were underway, **a strip of land measuring three thousand four hundred and fifty square meters was expropriated from Mrs. Nombre70527, from the farm registered in the folio real system under registration number Placa11498, for the construction of the railway interconnection in Alajuela (FECOSA)**; leaving two remnants, which jointly measure one thousand one hundred and eighty-seven square meters and forty-one square decimeters, sixty square centimeters, the compensation for which was set in an administrative appraisal at the sum of two hundred and forty-one thousand colones, which was accepted by the expropriated party (study and administrative appraisal, folios 356 to 367, and judgment of ten hours on August 5, 1988, of the Juzgado Primero de lo Contencioso Administrativo y Civil de Hacienda, folios 401 to 404); **4.)** That the **amount of compensation for farms 12,442, 98,418, 122,604, and 13,326**, located in Distrito: cuatro, San Antonio; Cantón: Alajuela; Provincia de Alajuela, less the strip expropriated for the Alajuela railway interconnection, was set at **six million three hundred forty-four thousand four hundred seventy-six colones and twenty céntimos (¢ 6,344,476.20)**, with interest to be paid at six percent annually on the set compensation, starting from the entry into possession of the properties, (judgments number 6, of 9:45 a.m. on January 6, 1986, issued by the Juzgado Segundo de lo Contencioso Administrativo y Civil de Hacienda and number 2743, of 5:20 a.m. on August 1, 1986, of the Sección Segunda of the Tribunal Contencioso Administrativo, folios 417 to 423 and 523 to 525); **5.)** That the Municipalidad de Alajuela **paid the entirety of the principal debt and accrued interest** (judicial deposit of the administrative appraisal, number 932,290, of October 21, 1976, for the amount of two hundred five thousand three hundred sixty-eight colones and fifty-five céntimos—¢ 205,368.55—; judicial deposit number 707,831, of August 19, 1987, for the amount of six million one hundred thirty-nine thousand one hundred eight colones—¢ ...299—; judicial deposit number 622047c, for the sum of five hundred sixty-eight thousand two hundred seventy-two colones and ninety-one céntimos—¢ 568,272.91—; and judicial deposit 858332 CH, for forty-five thousand four hundred seven colones and eighty-seven céntimos—¢ 45,407.87—, and resolution of 9:00 a.m. on February 22, 1991, of the Juzgado Segundo de lo Contencioso Administrativo y Civil de Hacienda; folios 263, 567 and 568, 626 and 627, 660, 665, respectively), to **Nombre70528**, to whom Mrs. Nombre70527 had ceded the rights derived from the expropriation proceedings, with the knowledge of her children, given that Nombre70522 signs on behalf of the transferor due to her poor health, and Nombre70523 and Nombre70526, both Nombre70526, appear as witnesses (brief visible at folio 415) (testimony of Nombre70529, folios 129 front and verso); **6.)** That at 9:15 a.m. on September 30, 1988, the Municipality was placed in possession of the expropriated farms (record of placement in possession, folios 611 and 612); **7.)** That in the resolution of 1:30 p.m. on July 9, 2001, the Juzgado Segundo Civil y de Trabajo de Mayor Cuantía del Primero Circuito Judicial de Alajuela, in the succession of Nombre70528 and Nombre70527—which was processed in case file 00-001758-638-CI—declared their children Nombre70522, Nombre70523, Nombre70526, Nombre70524, Nombre70525, and Nombre70526, all with the surnames Nombre70526, as the sole and universal heirs of the decedents, having inventoried as part of the hereditary estate or assets the properties of the Partido de Alajuela, with registration numbers Placa11500, Placa11498, 122,604, and Placa11502, located in Distrito: cuatro, San Antonio; Cantón: Alajuela; Provincia de Alajuela, \"without prejudice to third parties of better right\" (folios 169 front and verso, 189 to 196); **7.)** That **the Nombre70526 siblings appear registered as owners of the properties of the Partido de Alajuela, with registration numbers Placa11500, Placa11498, 122,604, and Placa11502**, located in Distrito: cuatro, San Antonio; Cantón: Alajuela; Provincia de Alajuela, as of September 3, 2001, with the cause of acquisition recorded as **inheritance (herencia)** (property certifications at folios 5 to 76 of the judicial file); **8.)** That on the farms whose possession is disputed, sports activities were carried out, building for this purpose a baseball field, a motocross track, with its control tower included, and a children's playground, facilities that are in disuse, so the lots are overgrown with weeds and partly trimmed, over which the municipality exercises surveillance control, for which reason it erected part of a wall (judicial inspection folio 121 and 122, testimonies of Nombre70530, Nombre70531, Nombre70532, Nombre70533, Nombre70534, folios 123 verso; 125 front, 126 front; 127 front and 128 front and 735; 130 verso and 131 verso; 133 front and verso, 134 front and verso, 135 front and verso, respectively); **9.)** That starting in the year 2000, without specifying the exact date, the Nombre70526 siblings tried to carry out cleaning work on the farms subject to this interdict, work that was interrupted by the municipal police (testimonies of Nombre70530, Nombre70531, Nombre70532; Nombre70534, folios 123 verso and 728; 125 front and verso and 726 front; 126 verso, 127 front and 128 front; 133 verso, 134 verso, 135 front and verso, 735, respectively); **10.)** That the neighbors of the place had knowledge of the expropriation proceedings by the Municipalidad de Alajuela, for the construction of a sports complex and of the eviction of the Nombre70526 family, on the occasion thereof (testimonies of Nombre70531, Nombre70532, and Nombre70530, folios 125 front, 126 front; 128 verso and 735; 728, respectively); **11.)** That some goats and horses graze on the land (judicial inspection conducted at 9:00 a.m. on March 15, 2002, testimonies of Nombre70530, Nombre70531, Nombre70532, folios 123 verso and 728; 125 verso and 727 front; 128 front, respectively); **12.)** That on **April 5, 2002**, the Nombre70526 siblings filed a petition for reversion of the expropriation carried out by the Municipalidad de Alajuela over the farms registered in folio real in the Registro Público de la Propiedad, in the Province of Alajuela, numbers 120,442, 126,604, 13,326, and 98,418 (folios 681 to 687); and, **13.)** That in a **proceeding for suspension of work (diligencia de suspensión de obra)** on the properties subject to this interdict, conducted at 7:30 a.m. on October 22, 2001, the following could be observed: \"*It is a property fronting a public street on the west side. Some trees are observed on it and it is quite overgrown with weeds. On the west boundary of said property exactly at points 1-2, there is a recently built fence, made of barbed wire and concrete posts, this fence is approximately one and a half meters high; at points 2-4 no fence has been erected to date. Then, where the land ends, that is towards the south, there is a fence about fifteen and a half meters long, erected with mesh and tubes, which is two meters ten centimeters high, and which has been erected for several years. Since there is no person whatsoever performing work on the land, the requested suspension of work is not decreed at this time*\" (record, folio 83).\n\n**III.- OF THE GRIEVANCES OF THE APPELLANT.-** Despite the fact that the Mayor of Alajuela does not formulate grievances before this Court, when the case file was submitted, it is true that she made an expression of them at the time of filing her appeal against resolution number 377-07, of three thirty p.m. on March 20, 2007, before the Juzgado Contencioso Administrativo, so that the following are taken as such: **a.)** **for having declared inadmissible the evidence offered for better resolution**—a certified copy of the expropriation file of the corporation she represents against Nombre70527, mother of the claimants in this interdict—, without assessing that the evidence relates precisely to the main fact of the cause of this process, \"*which is precisely to establish and demonstrate who holds possession of the properties in question in order to determine who has the right to perform possessory acts over them*\"; proceedings in which it is proven that since 1988 the Municipalidad de Alajuela has been the possessor of those properties, by resolution of the Juzgado Segundo Contencioso Administrativo, a judicial act that is ignored by the Trial Judge, which denotes that the plaintiffs were the ones who have been disturbing the right of this institution to exercise its right of possession, and that they were aware of that expropriation; **b.)** **an erroneous assessment of the evidence, which violates the principle of objectivity that governs the jurisdictional function**, because it takes excerpts from the testimonies given and without attending to the testimonial and documentary evidence offered by her client, which leads it not to detail that the cleaning acts were casual, and therefore can in no way support the claimed possession, but rather should be viewed as acts of disturbance of the right of the Municipalidad de Alajuela; the witnesses' knowledge of the expropriation of the lands; the sports activities carried out on them; as well as the witnesses' lack of knowledge of who the true possessor of the properties is; and **c.)** **the impact on the interests of the community—not just of the defendant municipality—as these are public domain assets (bienes de dominio público)**, which endow them with particular characteristics, such as immunity from seizure (inembargabilidad), inalienability (inalienabilidad), and being outside of commerce, a theory that the lower court—contrary to law—classified as \"*immaterial*\" to this case. By virtue of the foregoing, it requests that the appeal filed be declared with merit and that the contested judgment be completely revoked, for which purpose, the admission for its consideration of the documentary and testimonial evidence provided by the Municipality must be ordered, for a new resolution.\n\n**IV.- OF THE FIRST AND SECOND GRIEVANCES OF THE APPELLANT.-** The appellant is correct in relation to the first two grievances she makes, to which mention has been made in Considering sections I.- and II.- of this judgment, insofar as, in the first of them, **the evidence offered for better resolution by both parties was admitted**, that is, the certified copies of the files relating to the **succession of Nombre70528 and Nombre70527**, processed in case file number 00-001758-638-CI, before the Juzgado Civil de Mayor Cuantía de Alajuela (folios 151 to 229)—provided by the plaintiffs—and of the **expropriation proceedings (diligencias de expropiación)** that were processed in case file 3061-75 regarding properties 120,442, 98,418, 122,604, and 13,326 (folios 231 to 668 verso) and of the petition filed by the Nombre70526 siblings before that institution, in which they request the reversion of the expropriation (folios 650 to 687)—provided by the Municipalidad de Alajuela—. The admission of this evidence caused **the factual framework supporting this decision to be modified**, which is reflected in the indicated Considering section II.\n\nBelow is an analysis of the possessory claim filed, in accordance with the remaining grievances, that is, in light of the special nature of the property in question, the plaintiffs' knowledge of the expropriation of the properties, which entails the right to possession of their represented party and the acts disturbing that holding, as it is not possible to derive from casual cleaning tasks the right to declare the requested protection.\n\n**V.- OF THE PROTECTION PROVIDED FOR IN THE INTERIM POSSESSORY PROCEEDINGS (INTERDICTOS DE AMPARO DE POSESIÓN).-** In possessory proceedings (procesos interdicales), the only matters discussed are problems arising from the disturbance or dispossession of the possession or holding of real property, or from a new work that affects a property, the purpose of which is to obtain a judicial decision that protects or restitutes possession or orders the definitive suspension or demolition of the work; hence, the various types of possessory actions (interdictos) regulated in our legal system are those for protection of possession (amparo de posesión), restitution (restitución), replacement of boundary markers (reposición de mojones), suspension of new work (suspensión de obra nueva), and demolition (derribo); thereby, any claim regarding the ownership or definitive possession of said property is excluded -Article 457 of the Civil Procedure Code (Código Procesal Civil)-. It is important to make several clarifications about the admissibility of this type of proceeding: **First**, they were designed to protect \"possession (posesión)\", understood as \"the holding of a thing under the power and will of a person, or the enjoyment of a right\" (Nombre60957 , . Tratado de los Bienes. Librería e Imprenta Lehmann.Tercera edición. San José. Costa Rica. 1940. p. 41); so that indispensable for their admissibility are de facto power over the object (*corpus*) and the will to retain it under one's dependence (*animus*), whereby, possession (posesión) is acquired \"from the moment there exists the actual and exclusive possibility of exercising material acts of enjoyment, use, or transformation over a thing, even if none have yet been positively exercised\" (Ídem); or (even) the \"holding (tenencia)\", understood as \"(T)he mere possession of a thing, its corporeal occupation, without title to enjoy it or appropriate it\" (Nombre60167, . Diccionario Enciclopédico de Derecho Usual. Tomo VIII T-Z. Editorial Heliasta S.R.L. 21a. edición, revisada, actualizada y ampliada. Buenos Aires, Argentina. 1989, pag. 33); which implies an assimilation of the concepts used. So that, in the case of the **interim possessory proceeding for protection of possession (interdicto de amparo de posesión)** (Article 461 of the Civil Procedure Code), it **is designed for the protection of possession (posesión)**, as stated by the cited Nombre60957\n\n> \"The possessor of real property or of real rights of easement (servidumbre), usufruct, use, or habitation, may cause the disturbances directed against his possession to cease, by resorting to the interim possessory proceeding for protection (interdicto de amparo)\" (Op. Cit. pag. 64);\n\nsince it is provided for so that whoever exercises possession (posesión) or holding (tenencia) of a property, can claim before the jurisdictional authority the protection of that possession, against acts that imply a potential or effective disturbance with the intention of dispossession; which requires detailing whether the requirements of that possession are met, in accordance with the provisions of Articles 279 subsection two, 284 and 285 of the Civil Code (Código Civil), that is, an occupation that is quiet, public, peaceful, annual, and in good faith; understanding that a **possessor in good faith (poseedor de buena fe)** is one who does not know of the defect that invalidates the title on which he bases his possession, and consequently, one in **bad faith (mala fe)**, is one who does know of that circumstance, and one who possesses without any title. A corollary of the foregoing is that it can be concluded that for the protection of the possessory action (interdicto) to be granted, a presumption of legitimacy in the proceeding is required, precisely because it is a summary proceeding (supposedly expeditious and simple), provided precisely to safeguard possession (posesión) (legitimate) in a primary manner, pending an eventual discussion of the right, in an ordinary proceeding; otherwise, the legal system would be protecting arbitrary and violent dispossession situations, which is alien to the guiding principles of Law. Therefore, it becomes so important to determine whether the element of good faith is present (whether the possessor knew or not of the defect in his title -the legal cause giving rise to the right of possession-) in the conflicts that usually occur over possession, because \"naturally, he who possesses a thing with full knowledge that no right assists him to do so, commits a punishable action that cannot but place him in a disadvantageous situation; and, on the contrary, he who proceeds without malice, ignorant of the poor quality of his title, deserves no punishment; and it is even necessary to establish legal balance, to limit the damages he suffers, as far as is compatible with the right of his adversary.\" (Nombre60957 , . Op. Cit. pag.44.) **Second**, the protection that is given is regarding \"acts that disturb and manifest the intention of dispossession\", which makes it inadmissible against the actions of the right holder to recover their right, or, in the case of public property, the actions of the Administration to recover its domain. **Third**, it is of the utmost importance to note that this type of proceeding is only admissible regarding real property under a private property regime, that is, they are ineffective in relation to **property of a public nature (bienes de carácter público)** or **common property (comunes)**, insofar as they cannot be possessed by private individuals, in accordance with the provisions of Articles 261 and 262 of the Civil Code:\n\n> \"**Article 261.-** Things are public which, by law, are permanently destined for any service of general utility, and those which everyone can take advantage of because they are dedicated to public use.\n>\n> All other things are private and the object of particular property, even if they belong to the State, or to the Municipalities, who in that case, as civil persons, are no different from any person.\"\n\n> \"**Article 262.-** Public things are outside of commerce; and they shall not enter into it, while it is not legally so provided, separating them from the public use to which they were destined.\"\n\nIt is with support in the foregoing considerations that the filed possessory actions (interdictos) will be analyzed.\n\n**VI.- OF THE INADMISSIBILITY OF THE POSSESSORY ACTIONS (INTERDICTOS) FILED DUE TO THE NATURE OF THE PROPERTIES.-** As indicated in the preceding Recital (Considerando), **the protection of possession (amparo de posesión) is not admissible against public domain property (bienes de dominio público)**, since private individuals do not have a right of possession, but of use, through the permits and concessions granted according to the law; hence, **possession (posesión) -as an attribute of the right of ownership- can only be exercised by the entities holding the right**, without any private subject being able to legally claim possessory acts -unless these were carried out before the public Institution acquired the property, and solely for the purposes of a potential compensation-. In the case under study, the expropriation proceedings denote the special nature of the properties over which the declaration of possession is sought, insofar as, as the appellant (Municipalidad de Alajuela) correctly affirms, **these are properties subject to a special regime, comprising the public domain (demanio público) administered by that local corporation**, and therefore, **not subject to possession by private individuals**. As the Constitutional Chamber (Sala Constitucional) has considered in various precedents (among others, decisions number 5399-93, 3145-96, 5027-97, 2988-99, 2000-10466, 2002-8321; 2003-3480; 2005-7158 may be consulted), public domain property (demaniales) or state-owned property (dominicales) should be understood as the set of goods –both real and personal property– that have a nature and legal regime virtually opposite to private ones, **insofar as by the express will of the constituent power or the legislator, they are dedicated to a special purpose of serving the community, be it the public interest, and for that reason, cannot be the object of private property or possession**, so that they are outside of commerce among men, that is, they cannot individually belong to private individuals, nor to the State –in the strict sense–, as the latter is limited to their administration and guardianship. Thus, public domain property (bienes de dominio público) and the private domain property of the State (fiscales) are differentiated by their purpose and the owning subject, insofar as **what defines the legal nature of the former is the purpose given to this type of property, be it, insofar as they are dedicated and are at the service of public use**, in the terms provided in Article 261 of the Civil Code. (In this same sense, decisions number 2306-91 and 2988-99, among others, both from the Constitutional Chamber, may be consulted.) It is thus that this category includes –without this constituting a closed list– the maritime-terrestrial zone (zona marítimo terrestre), the forest or natural heritage of the State –protected areas– (made up of national parks, forest reserves, biological reserves, protective zones, wildlife refuges, wetlands, and natural monuments –Article 32 of the Organic Law of the Environment, number 7554, of September eighteenth, nineteen ninety-five–), the hydrographic protection zones –Article 33 of the Forestry Law (Ley Forestal)– (contiguous to springs (manantiales), to the banks of rivers and lakes), the border zones (Article 10 of the Vacant Lands Law, number 13, of January tenth, nineteen thirty-nine), the **right-of-way (derecho de vía)**, railway lines, indigenous reserves, the historical-architectural heritage, mineral resources, the archaeological heritage, parks and green zones, etc. These are property that, insofar as by their vocation and purpose they are outside of commerce among men, are **inalienable, unseizable by adverse possession (imprescriptibles), and unattachable (inembargables)**, so that their ownership or possession is not possible, whether gratuitously or for consideration; they cannot be lost by statute of limitations (prescripción), nor gained by usucapion (usucapión), so that **they permanently retain their legal validity**; and they are not susceptible to attachment (embargo), under the terms of Civil Law; in addition, they **are subject to police power, regarding their use and exploitation**, since their private use is conditional upon the granting of the respective licenses and permits and the control and oversight by the Administration; and the **Administration holds sufficient powers for their recovery**, without needing to resort to judicial channels, nor even to an administrative procedure, because the \"occupant (ocupante)\" has no subjective right or legitimate interest, so that **administrative action substitutes for the possessory actions (interdictos) for their restitution.** Therefore, the legal regime of public domain property is special and differentiated in accordance with the type of property in question. The distinction between private property or things and public property and things depends, in the first place, on the \"ownership\" or \"domain\" of the property, because this element defines its differentiated nature and legal regime; and consequently, on the applicable law, insofar as the former is subject to private law, and the latter to public law. Thus, the national regime of public domain property places them outside of commerce among men, and therefore, the permits that are granted will always be precarious and revocable by the Administration, unilaterally, when reasons of necessity or general interest so require, for the preservation of the natural use of the public thing. By virtue of which, **the infringement or injury of the right of property, enshrined in Article 45 of the Political Constitution (Constitución Política), is not possible**, because it involves a totally different legal regime, where the law establishes conditions through which use and enjoyment by private individuals is possible. Thus, **whoever intends by unauthorized means to exercise a private use of that zone will be barred from consummating it, as it is also acceptable, since time immemorial, that they are property unseizable by adverse possession (imprescriptibles) in favor of private individuals and that they are outside of commerce**, principles set forth in numerals 261 and 262 of the Civil Code, which dates from eighteen eighty-six.\n\n**VII.-** Thus, **the possessory actions (interdictos) filed are inadmissible, due to the special nature of the properties over which this proceeding is filed.** Indeed, having been accredited that the cause of public interest for the expropriations carried out by the Municipalidad de Alajuela from the deceased Nombre70527 of the properties registered in the Public Property Registry (Registro Público de la Propiedad), under the real folio system, with registration numbers Placa11500, Placa11498, 122.604 and Placa11502, located in District: four, San Antonio; Canton: Alajuela; Province of Alajuela, **was to destine it for the construction of a sports citadel**, this implies that **it concerns communal property (bienes comunales), by purpose and vocation, under the designation of green zones (zonas verdes)**, understanding such to mean, the property belonging to the municipalities (insofar as they hold the bare ownership of the property) destined for neighborhood use, that is, they are arranged for the enjoyment of the residents (Nombre70535 , Nombre70536, Los Bienes Comunales en la Legislación de Régimen local. Editorial Tecnos, S.A. Dirección4451. . 1994. pag. 35), which **enjoy the characteristics of public domain property (bienes de dominio público)**, as the Constitutional Chamber asserted in decision number 4605-96, dealing with communal areas derived from the urbanization process:\n\n> \"**XXII.** Green areas destined for public use, by virtue of their use and nature, are part of the community's heritage and must remain under the jurisdiction of municipal entities so that they administer them **as public domain property, thereby they partake in the legal regime of these property, which makes them inalienable, unseizable by adverse possession (imprescriptibles), and unattachable (inembargables)**, that is, they cannot be the object of private property of the urbanizer or subdivider, as provided in Article 40 of the Urban Planning Law (Ley de Planificación Urbana). (...)\"\n\nThe truth is that in the case under study, the sports fields that were built on the properties subject to this litigation are in disuse, and it seems that the properties are abandoned, without having been destined for the purpose for which they were expropriated; however, **it is not possible for this reason to disregard their public domain character (demanialidad)** (decision number 2006-0382 of the Constitutional Chamber), since the designation (afectación) is of transcendental importance in this type of property, to such a point that the Constitutional Chamber itself has annulled the modification of purpose or its release from designation (desafectación), for example, in decision number 2000-4332, under the following considerations:\n\n> \"The local municipality cannot freely eliminate the purpose of the lands dedicated to a park, nor could the legislator do so -without defining in exchange a space that compensates for the loss of the park area- since this would render unconstitutional the agreement or law that so provided, for disrespect of the essential content of the residents' right to enjoy those recreation areas, which as indicated, are part of the quality of life that the Constitution guarantees them. The term 'communal facilities' does not have the breadth that is intended to be implied. It is obvious to this Chamber that it refers to constructions indispensable for the communal enjoyment of the property destined to a green area, park, and recreation; consequently, the construction of buildings for public services, by way of example, libraries, schools, community halls, etc., are incompatible with the purpose of park and green zone areas that the legislator has required for some lands, and, without a doubt, for the interested associations to be able to undertake the construction of buildings such as those that are of their interest, they must cover the costs, which involves all the members or residents of the locality that are to benefit from the public and general use of the property -the cost thereof-.\n\nThe Chamber cannot accept that, by way of donation or construction authorizations (sic) such as those being attempted, the right of the neighboring plaintiffs to enjoy the land that integrally belongs to the community of Cipreses as a green zone and park, and which the Municipality possesses solely as administrator of local interests, be ignored.\"\n\nIt was also established that the Municipality paid the entirety of the compensation corresponding to its indemnification, which indicates that this is a legitimate possession, not only because of its designation (or purpose) but also because it is carried out in full respect of Art. 45 of the Constitution. Likewise, another portion of the property inscribed in folio real with registration Placa11498 (indicated above), specifically a strip of land measuring three thousand four hundred fifty square meters, is also a public domain asset (bien de dominio público), having been expropriated by the Ministerio de Obras Públicas y Transportes for the construction of the railway interconnection in Alajuela (FECOSA), meaning it is encumbered by a right-of-way (derecho de vía). It is necessary to recall that pursuant to the final paragraph of subsection 14) of Art. 121 of the Political Constitution, in its article 121, the railway —along with other assets— is granted demanial character, a condition maintained in Art. 4 of the General Railway Law, number 5066, of nineteen hundred and seventy-two. Regarding the right-of-way, it is clarified that it involves a physical space where railway activity is carried out and takes place, such that limitations and prohibitions with respect to third parties, characteristic of public-domain assets, exist regarding it by reason of its destination or designation, as inferred from Articles 46, 52, and 53 of the General Railway Law.\n\n**VIII.- REGARDING THE EXERCISE OF POSSESSION OVER THE CLAIMED PROPERTIES.-** In addition to what is indicated in the preceding Considerandos, this Court finds that the request made is inadmissible due to the fact that the *Municipalidad de Alajuela exercises tenure of the properties over which the proceeding is brought*, as has been established in the testimonies rendered, in which it has exercised its administrative police power in defense of the public demesne, to such an extent that in the face of the plaintiffs' attempts to clean the property, the municipality's action has been practically immediate, preventing them from doing so, which is why it was forced to erect a wall, which itself became the object of this lawsuit. This leads to the conclusion that, far from being \"disturbing,\" the actions of the defendant local government are absolutely legitimate and in accordance with the law. The Mayor of Alajuela is correct in pointing out that the supposed cleaning actions —which, it is worth clarifying, were unsuccessful due to the state of the properties (as reported in the various inspections carried out) and the defense actions of the defendant authority itself— cannot be considered possessory acts that sustain this proceeding, since they have not been continuous, nor peaceful, but rather occasional. This Court notes they were carried out starting in the year two thousand (without specifying an exact date), as a consequence of the succession proceeding that the Nombre70526 siblings promoted upon the death of their parents, in which they inventoried as estate assets the properties that had been expropriated by both the Municipalidad de Alajuela and the Ministerio de Obras Públicas y Transportes; the basis for their registered possession being precisely the inheritance. This demonstrates a clearly reckless action and lawsuit, especially considering that the same Nombre70526 siblings filed a reversion of expropriation petition regarding the expropriation carried out by the Municipalidad de Alajuela on the properties inscribed in folio real in the Public Property Registry, in the Province of Alajuela, numbers 120,442, 126,604, 13,326, and 98,418, which demonstrates their knowledge that such lands do not belong to them, nor is their possession theirs.\n\n**IX.- REGARDING COSTS.-** The appellant requests the revocation of the judgment on this point as well. Pursuant to the provisions of Art. 221 of the Code of Civil Procedure, applicable supplementarily as provided in Art. 103 of the Law Regulating the Contentious-Administrative Jurisdiction, the losing party must be ordered to pay personal and procedural costs. As the appealed judgment is being revoked to be denied in all its aspects, it is appropriate to impose costs on the plaintiffs, as we find ourselves in none of the exception scenarios provided for in Art. 98 of the Law Regulating this Jurisdiction, given that a reckless action by the petitioners is observed, who attempted to benefit from their own fraud, as the property in question is a public-domain asset.\n\n**POR TANTO:**\n\nThe evidence for better resolution offered by the petitioners (copy of the succession proceeding of Nombre70528 and Nombre70527, processed under expediente 00-001758-638-CA, before the Civil Court of Greater Quantities of Alajuela) and by the defendant municipality (expropriation proceedings, processed under expediente 3061-75 and copy of the reversion petition filed by the petitioners of this injunction before the San José Municipality) is admitted. The challenged resolution is revoked and instead, the filed injunctions are denied in all their aspects. The Nombre70526 siblings are warned against carrying out actions that disturb\n\nThe plaintiffs are ordered to pay personal and procedural costs, the latter including those of the filed appeal.\n\n\n\n\n\n**Silvia Consuelo Fernández Brenes**\n\n\n\n\n\n**Nombre70537 Nombre8483 Sandra María Quesada Vargas**\n\n*Exp.01-002278-638-CI*\n\n*Injunction (Interdicto)*\n\n*Nombre70522 and others against the Municipalidad de Alajuela*\n\n*amv*" }