See how, beyond the normative support, the public domain character (carácter demanial) of water is a necessary consequence of the imperative requirement it presents for human life, which entails that the internal normative north is based on Article 21 of the Constitution. At the infra-constitutional level, its public domain status (demaniabilidad) is initially regulated in the Water Law (Ley de Aguas), number 276, of August twenty-sixth, nineteen forty-two:
\\\"Article 1.- The following are waters of the public domain: // I.- Those of the territorial seas in the extent and terms established by international law; // II.- Those of the lagoons and estuaries of the beaches that communicate permanently or intermittently with the sea; // III.- Those of interior lakes of natural formation that are directly linked to constant currents; // IV.- Those of rivers and their direct or indirect tributaries, streams, or springs (manantiales) from the point where the first permanent waters spring forth to their mouth in the sea or lakes, lagoons, or estuaries; // V.- Those of constant or intermittent currents whose channel, in all or part of its extension, serves as a limit to the national territory, the dominion of such currents being subject to what has been established in international treaties concluded with neighboring countries and, in the absence thereof, or regarding what is not provided for, to what is stipulated in this law; // VI.- Those of any current that directly or indirectly flows into those listed in fraction V; // VII.- Those extracted from mines, with the limitation indicated in Article 10; // VIII.- Those of the springs that emerge on the beaches, maritime zones, channels, basins, or banks of national property and, in general, all those that are born on lands of the public domain; // IX.- Those underground waters whose extraction is not done by means of wells; and // X.- Rainwaters that flow through gullies or wadis whose channels are of the public domain.
Article 2.- The waters enumerated in the preceding article are of national property and the dominion over them is neither lost nor has been lost when, due to the execution of artificial works or prior exploitation, the natural characteristics are altered or have been altered.
Excepted are the waters that are exploited by virtue of contracts granted by the State, which shall be subject to the conditions authorized in the respective concession (concesión). .\\\"
Law 258 of August eighteenth, nineteen forty-one, Law of the National Electricity Service (Ley del Servicio Nacional de Electricidad), which stated:
“Article 1: All waters of the Republic, which are not private domain in accordance with the current Water Law (Ley de Aguas), … are inalienable and under the dominion, government, and vigilance of the State”
Supporting what has been said is the provision of Article 4 of the Mining Code (Código de Minería) (Law 6797 of October 4, 1982), which states:
“Article 4.- …. underground and surface waters are reserved for the State and may only be exploited by the latter, by private parties in accordance with the law, or through a special concession (concesión especial) granted for a limited time and in accordance with the conditions and stipulations established by the Legislative Assembly.
The natural resources existing in the soil, subsoil, and the waters of the seas adjacent to the national territory, in an extension of up to two hundred miles from the low-water line, along the coasts, may only be exploited in accordance with what is established in subsection 14) (last paragraph) of Article 121 of the Political Constitution.”
VI.- ON THE ADMINISTRATION OF THE WATER RESOURCE: The repealed Law number 258 of August eighteenth, nineteen forty-one, created the National Electricity Service (Servicio Nacional de Electricidad) to exercise dominion, exploitation, utilization, government, and vigilance over various resources, including all waters. Empowering it in numeral six to grant concessions or water rights (derechos de aguas), a norm that is consistent with the aforementioned Water Law (Ley de Aguas), which in Article 17 establishes that “Authorization is necessary for the exploitation of public waters, especially dedicated to enterprises of public or private interest. That authorization shall be granted by the National Electricity Service in the manner prescribed in this Law..”, which is reaffirmed by Article 70 of Law 16 of October thirty, nineteen forty-one. For its part, Law No. 2726 of April fourteenth, nineteen sixty-one and its amendments—especially those of Law No. 5915 of July 12, 1976—\"Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers (Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados)\" indicates:
\\\"Article 1.- With the objective of directing, setting policies, establishing and applying norms, carrying out and promoting planning, financing, and development, and of resolving everything related to the supply of potable water and collection and evacuation of black water and liquid industrial waste, as well as the normative aspect of stormwater sewer systems in urban areas, for the entire national territory, the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados) is created, as an autonomous institution of the State.” (Thus amended by Law No. 5915 of July 12, 1976, Article 1)
As can be extracted from the articles transcribed above and from the comprehensive reading of the respective laws, the S.N.E. had the purpose in this field to represent and exercise, in the name of the State, dominion over the country's water resource, in order to ensure its preservation and hierarchical utilization according to the importance of needs. For its part, AyA has the purpose of planning, building, and operating the infrastructure necessary to supply potable water and of overseeing the planning, construction, and operation of the same carried out by private parties for the indicated purpose. As can be observed, representing the State in concession contracts (contratos de concesión) was one of the mechanisms that allowed the S.N.E. to fulfill its legal purpose (as will be seen, that competence was later transferred). Established expressly in its constitutive law as well as in the Water Law (Ley de Aguas). For those years, it was clear that the granting of the connection was its own responsibility, which included the corresponding contract; while AyA has the competence to plan, design, build, operate, and maintain water supply works for a population, as well as the adaptation to its recommendations of the indicated works when carried out by private parties—Law No. 16 of October 30, 1941, No. 809 of November 2, 1949, and the General Law of Potable Water (Ley General de Agua Potable), among others—a function that has never entailed granting concessions (concesiones) for the exploitation of public domain waters, even when these are destined, as is the case at hand, to provide potable water to a defined population. Based on said norms, especially the AyA Law (as well as Articles 266 and 276 of the General Health Law, Law No. 5395 of October 23, 1973), it is clear that, with the exception of the latter, only the municipalities, the Public Services Company of Heredia, Community Development Associations (through the Rural Aqueduct Committees) or other local bodies with which AyA may enter into an agreement for this purpose, are there no other bodies empowered to administer public aqueducts. Thus, a private party is not authorized by the legal system to provide the public service of population supply of potable water and sanitary sewerage, with the exception of the Administrator Associations of Aqueducts and Sewers (Asociaciones Administradoras de Acueductos y Alcantarillados, ASADAS) as managers of the public service. Consequently, the Ministry of Environment, Energy and Telecommunications (Ministerio del Ambiente, Energía y Telecomunicaciones) (which assumed the functions of granting water concessions (concesiones de agua) upon the transformation of SNE into ARESEP), prior to granting the concession, would be under the legal obligation to verify that the private party has the prior authorization of AyA and the Ministry of Health for the private company to provide the potable water service to the population, as well as the sanitary sewer system. In the case of ASADAS that act by delegation from AyA, their legal nature arises from the Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers, in which the latter was empowered to delegate the administration, operation, and maintenance of the aqueduct and sewer systems—entrusted to it by the legislator—to groups duly formed for such effect, as can be deduced from Article 2, subsection g) of the cited law, by expressly stating “The institution is empowered to agree with local bodies on the administration of such services or to administer them through administrator boards of mixed integration between the Institute and the respective communities, whenever this is appropriate for the better provision of the services and in accordance with the respective regulations.” Based on the norm transcribed previously, the Executive Branch issued several regulations, with the Regulation of Administrator Associations of Communal Aqueduct and Sewer Systems (Reglamento de las Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales), (Decree No. 32529 of February 2, 2005) being the current norm, which latter regulation provides in its Article 3:
‘Article 3. A y A, through an agreement signed for this purpose, with the prior favorable agreement of its Board of Directors, may delegate the administration, operation, maintenance, and development of communal aqueduct and/or sewer systems, in favor of associations duly constituted and registered in accordance with the Associations Law (Ley de Asociaciones) No. 218 of August 8, 1939, its amendments, and respective Regulation, Executive Decree No. 29496-J, published in La Gaceta No. 95 of May 21, 2001. ..”
From the transcribed norm, it follows that the Administrator Associations of Aqueducts and Sewers constitute legal entities of a private nature, given that their creation must be governed by the Associations Law. For this reason, the constitution of said associations must be carried out with absolute respect for the right of free association and, consequently, they are entities of private and not public law, notwithstanding that their operation is subject to the requirements and requisites demanded by the regulations governing them, since they were entrusted with the exercise of a special activity through the figure of public service management (gestión de servicio público) and are involved in the provision of public services for the benefit of a community. In this regard, the Constitutional Chamber (ruling 3041-97 of 4:00 p.m. on June 3, 1997) has highlighted that the delegation of that responsibility to administer the aqueduct and/or sanitary sewer system entails a clear \"concession\" of public service management, which, from a technical standpoint of administrative law, is not entirely correct, in the understanding that a concession (except for cases granted by the Legislative Assembly) presupposes a competitive bidding procedure, which does not occur with respect to ASADAS. So, what might be possible to maintain is that said groups present an authorization in the management of the service, insofar as they administer that public service by agreement with the Costa Rican Institute of Aqueducts and Sewers, they are, by law, in a position of power over the users and exercise, for that purpose, a series of public competencies and functions (Constitutional Chamber, Ruling No. 2006-01651 from sixteen hours and thirty-nine minutes on February fourteenth, two thousand six). Regarding the regulatory property regime for assets destined for the aqueduct system, numeral 18 of the aforementioned Law 2726 states that all properties and installations of State bodies destined for the provision of services related to the collection, treatment, and distribution of potable waters are national patrimony. Likewise, Regulation 32529 states that all movable and immovable property used by the ASADAS in the administration, operation, maintenance, and development of the aqueduct and sewer systems are considered public domain, they may not be disposed of (Article 18 and Article 21(10)), and in the event of termination of the delegation agreement or dissolution of the ASADAS (numeral 21(13)), they shall be delivered to AyA, which shall inventory, register, and record them in its name, assuming ownership to destine them to that public service (Article 22(11)). For its part, the Water Law (Ley de Aguas), number 276 of August twenty-seventh, nineteen forty-one, in its articles 99 and following, states that to exploit public waters that pass through private properties, the imposition of a forced easement (servidumbre forzosa) of aqueduct shall be resorted to, with prior compensation. For its part, on this important topic, the Constitutional Chamber established in ruling 5606-2006 of fifteen hours and twenty-one minutes on April twenty-sixth, two thousand six, that in the case of water, the services had originally been given to the Municipalities by the General Law of Potable Water (Ley General de Agua Potable), number 1634 of September eighteenth, nineteen fifty-three, and that subsequently, with the creation of the Institute, that function passed to the Costa Rican Institute of Aqueducts and Sewers, which turns the water situation into a national and not a local problem.
VII.- ON ACQUISITIVE PRESCRIPTION (PRESCRIPCIÓN ADQUISITVA) AND DONATION: Prescription (prescripción) in the dual phase with which it is traditionally presented is an institute of legal order that stabilizes relations of Law, making them unassailable with the passage of time. The foundation of prescription (prescripción), as well as the true foundation of any legal institution, lies in a problem of life, a problem of interests that poses a demand for Law to which it must respond. In the present case, we find a fact: the inertia of the active subject of a legal relationship; such inertia projects onto the plane of the interests of a particular problem. This can be schematized in the following terms: with the passage of time, coupled with the aforementioned inertia, a growing situation of uncertainty develops (which, as such, carries a negative axiological charge for Law, given that certainty is one of its pillars). Because there is an interest in certainty, that is, because certainty is a legal value of our system, the solution to the problem must be sought in function of it. The means to obtain it is the establishment of a term beyond which the uncertain interest becomes an irrelevant interest, meaning that it is in the community's interest to set a temporal limit with which the situation of uncertainty ends. In all cases, prescription (prescripción) functions as a means of order, tranquility, and social security, because it prevents, after the time the law provides, the arising of lawsuits and controversies of difficult resolution. It is said that prescription (prescripción) is of a social order of presumption of abandonment or renunciation, which safeguards the certainty of legal situations, which responds to the social demand for certainty and public order. Social peace is sought, it aims to give stability and firmness to transactions, to dissipate the uncertainties of the past and to put an end to the indecision of rights, which, if they had no term, would be the cause of constant unrest and controversy. There are two distinct classes of prescription (prescripción): the first is called positive, acquisitive prescription or usucapion (usucapión); and the other negative, extinctive, or liberatory prescription. Although both modes of prescription (prescripción) differ in substance, and for this reason should be treated separately in their respective places, the positive among the modes of acquiring property and the negative in the part of obligations referring to the way they end or are extinguished; nonetheless, it has always been customary to study both forms together, as both are conditioned by the passage of time, since both are based on analogous considerations of general interest. Usucapion (usucapión) or acquisitive prescription (prescripción adquisitiva) of ownership is a legal institution that consists of recognizing as owner of a property the one who possessed it, using it as if he were the real owner, during the term indicated by the same law. Positive prescription (prescripción positiva) or usucapion (usucapión) has a double effect: extinctive (by producing the loss of ownership of the original owner) and constitutive (by giving birth to a new right of property for the usucaptor (usucapiente)); thus, the substantial difference with respect to negative prescription lies in that the latter only presents a suppressive effect, while the positive one exhibits two effects. The origin of the institute is based in Roman law and has as its basis the exercise of possession by a third party that was neglected by its owner. Pursuant to Article eight hundred fifty-three of the Civil Code, the requirements of the figure are the existence of at least three elements: title translative of ownership, good faith (buena fe), and possession. On its part, the following canon clarifies: “ARTICLE 854.- He who alleges prescription (prescripción) is obliged to prove the just title (justo título), except in the case of easements (servidumbres), the right to possess, or movable property, in which cases, the fact of possession presumes the title, until the contrary is proven.” Case law, clarifying the norm, has indicated as requirements: a thing susceptible (cosa hábil), that is, susceptible to private property; located within commerce; just title (justo título); good faith (buena fe); possession and the passage of time, exercised in the capacity of owner, continuously, publicly, peacefully, and for ten years or more. If any one of these is missing, acquisitive prescription (prescripción adquisitiva) does not operate. Regarding the first of the requirements, the susceptibility of being acquired, it must be remembered that public domain assets (bienes demaniales) are outside the commerce of men and cannot be acquired through the passage of time. With respect to good faith (buena fe), Article two hundred eighty-five of the Civil Code establishes that in: “all cases in which the law requires possession in good faith (buena fe), one who, at the act of taking possession, believed he had the right to possess, is considered a possessor in good faith (buena fe). If there was sufficient reason for him to doubt that such right corresponded to him, he should not be considered a possessor in good faith (buena fe); but if the possession was in good faith (buena fe) at its beginning, it does not lose that character by the mere fact that the possessor later doubts the legitimacy of his right” Which generates as a consequence that good faith (buena fe) ceases at the moment of acquiring certainty that one possesses improperly, and also ceases from the notification of the lawsuit in which another claims the right to possess.\n\nRegarding just title, Article 854 of the same regulatory body establishes that “Whoever alleges prescription is obligated to prove the just title, except in the case of easements, the right to possess, or movable property, in which cases, the fact of possession presumes the title, until proven otherwise.” On the subject of just title, the First Chamber of the Supreme Court of Justice has held varying positions regarding the necessity of said requirement to acquire by adverse possession (usucapir), which led to the issuance, in agrarian matters, of Voto 92-91, in which it was noted, in relevant part: “In this case, the title is confused with the possession insofar as the title is the possession itself. Its character as 'just' lies in its being licit and, for the case ad usucapionem, that is, the possession meeting the requirements of being continuous, public, and peaceful, with the possessor behaving as its true owner...\\\" Apart from that position specific to agrarian law, which is not the subject we are addressing at this moment, the highest civil court has repeatedly stated, with respect to civil adverse possession (prescripción adquisitiva):
“ III.- In the first objection, it is tacitly alleged that there was an indirect violation due to erroneous valuation of evidence concerning numeral 854 of the Civil Code, from which the appellant seeks to derive that the absence of a just title can be substituted by the effective possession of the property to be acquired by adverse possession. That legal precept establishes: “Whoever alleges prescription is obligated to prove the just title, except in the case of easements, the right to possess, or movable property, in which cases, the fact of possession presumes the title, until proven otherwise”. In contrast to the interpretation made by the cassation appellant, that numeral in no way releases the possessor of a real estate property, if they wish to acquire its ownership by adverse possession in this matter, from the need for the requirement of a just title, established in article 853 of the same legal body. As can be deduced from its reading, this, also called a translative title of ownership, can only be omitted when “...it concerns easements, the right to possess, or movable property...”, in other words, when one seeks to acquire any of those rights by adverse possession, but, as an exception to the general rule, it does not include the positive prescription of the right of ownership over real estate property, in this matter. The just title consists of the fact that the possessor of a property, if they wish to become its owner, must have exercised their possession based on a legal foundation that authorized them to do so. Therefore, there must have been a legal transaction (negocio jurídico) through which the individual was authorized to exercise possessory acts regarding the specific real estate, that is, an act through which the ownership (dominio) of the property was transferred to them, but their title is unregistrable or suffers from some deficiency that prevents its effectiveness, principally because the transferor was not the owner of the property, whereby the possessor enters into the condition of a purchaser a non domino. Thus, under the concept of just title, a possession initiated from a translative act that would have permitted the transfer, had it emanated from the true owner, would be required. That is, that the transaction had the appearance of one by which the ownership of a real estate property is normally acquired; a contract that transfers the property of the land under normal conditions. Likewise, the translative act cannot be vitiated by absolute nullity, which could be raised by any interested party, or even ex officio, and would prevent the legal transaction from producing effects. It is different with relative nullity, because since this is rectifiable, it could be ratified by the affected party and, therefore, the title created in favor of the possessor could subsist. Furthermore, it must coincide with good faith, defined in Article 285 of the Civil Code, from which it is necessary, for anyone arguing they possess as owner, to have had the belief of having the right to do so. It is in response to the described situation that the law establishes the possibility of acquiring a real estate property by adverse possession, once ten years of quiet, public, and peaceful possession have elapsed. The Code Napoléon, the French civil codification, which served as a foundation for the legislator of 1886, establishes two ways of acquiring real estate property by adverse possession. The first, contemplated in its article 2262, establishes a 30-year term to positively prescribe property, mere possession being sufficient. That is, under that legislation, whoever possesses for more than that period may acquire the property, regardless of whether they were a bad-faith possessor or lacked any justification for holding the plot. This is classified as ordinary prescription. Article 2265 of the Napoleonic Code establishes the so-called abbreviated prescription, which operates when the possessor acts in good faith and based on a just title, which, however, fails to be effective for specific reasons. This shall be for 10 or 20 years, depending on the location where the registered owner has their domicile. The dual possibility for acquiring by adverse possession is also gathered by Spanish civil legislation, with the variation of calling ordinary usucapion the 10-year one, when a just title exists (or 20 years when the owner is absent), and extraordinary usucapion the 30-year one, according to the tenor of articles 1957 and 1959 of the Spanish Civil Code. However, the Costa Rican legislator decided to omit the French ordinary prescription (extraordinary according to the Spanish one) and limit itself to the abbreviated usucapion, calling it ordinary in accordance with the Iberian nomenclature, which establishes the 10-year term as provided by the Civil Code. Regarding the necessity of the just title, the Chamber indicated in judgment No. 45 of 15 hours 5 minutes of May 22, 1996, the following: “ Civil law doctrine has dealt with specifying the requirements of the \\\"title\\\" to be able to serve, together with the other assumptions provided by law, as an acquisitive cause of possessable real rights. In the first place, it must be a translative title, as qualified by Article 853 of the Civil Code; that is, a legal transaction (negocio jurídico) which, under normal conditions, would be suitable for transferring ownership (dominio), but, because it is an act carried out by a subject who is not the right holder, it could not produce the translative phenomenon immediately. In effect, as the ruling that will be cited at the end expresses, \\\"... in ordinary usucapion, the translative title of ownership that the law requires must be a non domino, that is, it must emanate from someone who is not the owner. The thing was acquired from another, who behaved and was reputed as the owner, without being so; the transferor is a non-owner, either because they never held title, or because their right has been extinguished or resolved, or because the one they hold is insufficient to produce the transfer; in this last case is, for example, the usufructuary who appears transferring the property. And even though in Roman Law, usucapion served to acquire dominium ex iure quiritium and with it, the consequences of other modes of acquisition that had proved defective were also corrected, in modern law, as a general rule, it is said that the only defect of the title that usucapion purges is the acquisition from the non-owner, and that is why the defect that usucapion corrects is precisely in the title. What the law remedies with ordinary usucapion is only the non-acquisition, the defect resulting from the fact that the one from whom the possessor obtained their right did not have ownership. In summary, usucapion operates when the title of transfer or acquisition is a non domino, from one who is not the owner, but not when it is a domino or a verus domino, that is, when it emanates from the owner or true owner, because in this case, if the title is perfect it immediately produces all its effects, and if it has some defect of another nature, since it emanates from the true owner, its validation could be produced by the negative or extinctive prescription of the nullity action and not by the acquisitive prescription or usucapion ...\\\" (Judgment No. 16, of 16:00 hours of March 23, 1982, of the First Chamber of the Supreme Court of Justice).
More recently, it added:
Possession acquired by virtue of a non-translative title is not suitable for civil usucapion. If, for example, possession was entered into by virtue of a lease or by mere tolerance, the requirement of the title is not met, and if it concerns a real right different from ownership, as could be, for example, usufruct, this could be acquired by usucapion, but not the ownership right.” (No. 607, of 9 hours of July 23, 2004, of the First Chamber of the Supreme Court of Justice).
These aspects are relevant to resolve the present conflict and will therefore be taken up again at the appropriate time.
VIII.- ON THE MERITS OF THE CASE: Based on the evidence visible in the case file, for this Chamber, it is unquestionable that the water storage tanks within the aqueduct of […], located on the property registered in the name of the defendant company, correspond to a public domain asset (bien de dominio público) administered by the A y A according to the law, and that a delegation has been generated towards the plaintiff ASADA. This is a real estate property currently indispensable as part of the system, which cannot be dismembered without losing the functionality of the entire aqueduct at this moment. Proof of what has been said is how, from the storage tank underlying the conflict, the community receives the supply of the precious liquid. It concerns a property dedicated to public use (the part where the tanks are located) , recalling in this regard the principle of initial registration (inmatriculación) that governs the matter. Although the defendants do not fully recognize these conditions and make the veracity of said aspects subject to the evidence visible in the case file, the evidentiary elements turn out to be consistent in that sense. Despite what has been said, the Tribunal must be very emphatic in indicating that, just as has been pointed out on prior occasions, despite the public domain character (carácter demanial) of the asset at this moment, it is clear that under the protection of Article 45 of the Constitution, the right of property cannot be destroyed by a de facto route to the detriment of the private individual without the corresponding compensation, because that would imply that to remove an asset from commerce, it is sufficient to affect it in fact with public domain status. Consequently, under the protection of the fundamental charter, when a private asset passes to public use, some consensual mechanism between the parties for the transfer of public ownership (such as a sale or donation fulfilling the legal requirements ) must have been used, or failing that, through the legally regulated expropriation procedure. This leads to the necessary consequence regarding the nonexistence of a normative assumption exempting from the just title in cases of public domain assets when they originally presented private ownership, which appears to be, in a veiled manner, the plaintiff's reasoning. As the defendants' lawyers pointed out, the lawsuit is manifestly improper since it is impossible for a usucapion to be consolidated in favor of the association, by virtue of its condition as a mere administrator of assets owned by the A y A, a position that in itself is not unreasonable; despite this, and as will be seen, even under the plaintiff's own reasoning, most of the lawsuit has no reason to exist; not without first warning that, as a private entity and for its own benefit, an ASADA could well constitute a positive prescription to the extent that it satisfies all the requirements established by the legal system itself. If it is possible for public entities to accept the existence of a dual capacity to act (as a private entity and as a public one), with greater reason it is possible to assert that an ASADA, whose legal nature is not strictly public (even though it contributes to a public service), can subject itself to private law schemes to acquire assets. Now, returning to the specific claim, the plaintiff association claims for itself part of the disputed property, specifically where the aforementioned tanks are located, due to the occurrence of acquisitive prescription (prescripción adquisitiva). From the evidentiary elements, it is fully accredited that the possession has occurred, initially under the community development association based on the actions of the local Water Committee, which in turn was the basis for the now plaintiff Association ; it is not a case of mere holding of another's property (tenencia), because they considered themselves owners of the property (in the part corresponding to the tanks under the indicated terms), supposedly because part of the real estate had been donated and because the other part had been sold (exchanged) for some water services that were generated from the same tank . Consequently, regarding the first tank, it is possible to sustain a possession of at least thirty-five years, and regarding the second, a period of around fifteen years, which benefits the ASADA as a manifestation of community activity. Said possession has been public, peaceful, and continuous and for more than ten years, as described by the association's witnesses, an aspect that is duly accredited; although the evidence brought by the defendants sought to show that it was a matter of mere tolerance (holding (tenencia) in civil terms), the truth is that this evidentiary element fails to convince the Tribunal, as it manifested a complacent tendency; on the contrary, the plaintiff's evidence was fully credible to this jurisdictional body regarding this topic. On the contrary, the Chamber is inclined to think that there was a will to carry out activities in coordination between the plaintiff and the defendant, but the former always considering themselves owners, as the witnesses offered by it indicated. Regarding the condition of owner as already indicated , it was possible to verify how the ex-members of the plaintiff association acted under the conviction that this area of land belonged to them, which was reasonable if it was donated or received for the benefit of the locality. Regarding good faith, this is presumed in the absence of evidence to the contrary. However, it can be identified that an indispensable requirement to consolidate positive prescription is missing, namely the just title. In the initial pleading of the lawsuit, the plaintiff focuses on indicating the existence of the possession without justifying what the enabling title was, which would necessitate the rejection of the lawsuit without further procedure, by virtue of the totality of the requirements being indispensable, and not just some of them. We are not in the presence of movable property, where possession counts as title; instead, we are facing cases where the title was imperative according to the legal order. Now then, in the oral and public trial, it directed this in two senses: on the one hand, the existence of a donation regarding the land for the first tank by the original owner of the real estate, and on the other, the sale of the land where the second asset sits, based on having granted four water services whose consumption was not even charged for at least several years. Regarding the first of the legal acts, we must remember that the donation – according to Articles 1393 and following of the Civil Code – is a formal, written act and through a notarized document (documento cartulario) (Article 1397 of the Civil Code), and it is improper to perform the act verbally. Even accepting the possibility of the act's existence, given that the current owner is different from that one, it is not possible to impose it on a third party who acquired under the protection of public registral faith and where there is no guiding evidence to suggest knowledge of that alleged agreement. Meanwhile, with respect to the possibility of the existence of a sale, the testimonial and documentary evidence points in that direction, which would open the possibility, especially since a purchase-sale contract is consensual in nature. However, all of the evidence is oriented from the perspective of one of the parties (the plaintiff); thus, we have what the directors thought and recorded in supporting documents, but there is no clarity on what was thought by the other party (the defendant), who could have been understanding that it was dealing with mere civil tolerance. Indeed, the terms the parties used (as the witnesses narrated) could just as well be interpreted in one sense or the other. These conditions prevent the legal transaction (negocio jurídico) from being considered proven. It should be noted in this regard that Article 317 of the Civil Procedure Code, applicable to the case in accordance with Article 220 of the Contentious-Administrative Procedure Code, obliges the party making an assertion to prove its statement, and this procedural obligation is not satisfied in this case, to the corresponding detriment of the plaintiff's interests. Having carried out this analysis against the claims, it can be seen that the first primary claim supports the existence of a usucapion, which is not consolidated under the protection of the current legal norms; while the first subsidiary claim seeks to consolidate a co-ownership regime between the plaintiff and defendant, which is also not consolidated given the lack of a just title. Consequently, regarding both claims (the first primary and the subsidiary), we are in cases of lack of right, which must be declared. The Chamber cannot fail to warn that it is legally impossible to accept the existence of an agreement under which the defendants are not charged for the water supply, no matter how much good will might exist between the parties and especially among the aqueduct administrators, as one of the witnesses insinuated; therefore, if this situation persists to date, the association must proceed to rectify the situation. Finally, a claim is established with respect to Mr. Nombre317, in his personal capacity and as representative of the defendant company, to refrain from disturbing the plaintiff's property right. It is evident that the association lacks the property right, under the terms already stated; however, it does present at least one of the attributes, namely the right of possession, which, as indicated, it has exercised for many years as owner, in a public, peaceful, and uninterrupted manner, a fact known to Mr. Nombre317 in his dual capacity. It is clear that by virtue of the company Paraíso Tropical Inc S. A. holding the property right over the property underlying the conflict, it may claim that attribute (possession) for itself when it sees fit, but the de facto route is not the legal mechanism for this purpose. Having allowed this right to become consolidated over time, the proper reivindicatory action (proceso reivindicativo) must be brought by way of an action, with the corresponding recognition of any improvements (mejoras) that may have been made. Under these conditions and regarding the possession right, it is in accordance with the law to grant the invoked claim, declaring it with merit with the clarification indicated in accordance with Article 122 of the Contentious-Administrative Procedure Code.
IX.- CONSIDERATIONS FOR THE A Y A: The Tribunal cannot fail to point out that it is of deep concern internally to the Chamber that, having the A y A the legal powers and competencies to establish the necessary easements (servidumbres) and legal expropriations, it has allowed so many years to pass without taking the necessary measures. For such purposes, it is irrelevant from where the necessary fund must be sourced to compensate both the now defendant company and the other owners of the bordering properties through which the aqueduct passes. What is important in the sub júdice is how the absence of registration within the public patrimony of the properties or parts thereof and corresponding easements where the aqueduct runs represents a risk to the public water supply service in Puente Salas that cannot be accepted. We do not even want to consider if any of the persons dwelling in these tanks had contaminated the water, the public health impacts that could have occurred. Nor is it understandable, as was proven in this case, that the association tried to communicate with the owner of the property and that the latter did not expressly grant entry, this being the reason for the dispute before us; in short, that the possibility of providing protection or maintenance to an aqueduct should depend on whether a private individual agrees or not to grant entry is simply a situation that makes no legal sense whatsoever. Regardless of the delegation generated, the public entity is responsible before Costa Rican society for the water supply, so it is incomprehensible to us how the necessary measures have not been adopted.
\n\nFurthermore, the ASADA is nothing more than a mere administrator, by virtue of the fact that at the moment it is required, it must deliver the aqueduct with the entirety of the assets that comprise it, which, in their public domain character (carácter demanial), are property of the nation under the administration of AyA. Even accepting the budgetary limitations attributed to the entire public apparatus, we are not speaking of exaggerated items that could generate true imbalances, especially when, at the end of the day, through the tariff, those items can be recovered within reasonable timeframes. This jurisdictional body does not have the authority to order conduct against a coadjuvant party, which has not been brought forward by any of the parties explicitly or implicitly, and therefore it must limit itself to making a respectful but vehement call for the urgent constitution of the easements (servidumbres) and expropriations that prove necessary not only with respect to the defendant company but also for other properties in the area.\n\n**X.- REGARDING THE EXCEPTIONS (EXCEPCIONES).** As indicated, the defendants raised the exception of lack of right, which must indeed be upheld regarding the claims filed against the company T. S. A., since there is no legal norm that enables them in the terms presented; as a consequence of the foregoing, the lawsuit must be dismissed in what corresponds to that procedural legal relationship. For its part, regarding the claim filed against Mr. Nombre317 in his personal capacity and as representative of said company, concerning disruptive acts, the indicated exception is inappropriate. As noted in the list of proven facts, it is clear that the plaintiff association has carried out acts of possession for many years, an activity deployed publicly, peacefully, and in accordance with the law, which determines that if Mr. Nombre317, as the company representative, sought to destroy that right, in his capacity as property owner, the de facto route was not the legal mechanism to execute it. Regarding that claim, the exception must be dismissed, and on the contrary, the claim must be upheld, ordering Mr. Nombre317 not to disturb the possession held by his counterpart; he must resort to legal mechanisms should he wish to enforce the right corresponding to his represented party over that held by the ASADA.\n\n**XI.- REGARDING THE ORDERED PRECAUTIONARY MEASURE (MEDIDA CAUTELAR).** As is visible in the expediente, precautionary measure file, it is possible to verify how, by virtue of a precautionary measure ordered by this office, a series of acts have been adopted to ensure the proper functioning of the rural aqueduct in question. These are indeed acts that have already been exhausted, making it unnecessary to adopt any determination regarding them.\n\n**XII.- REGARDING COSTS (COSTAS).** Regarding costs, the Tribunal considers that we are in the presence of one of the exceptions of Article one hundred ninety-three of the Código Procesal Contencioso Administrativo, by virtue of it being possible to verify that one of the plaintiff's claims has been accepted, which demonstrates that there was no bad faith or that we are in the presence of a reckless lawsuit. On the contrary, everything seems to indicate that the parties acted in good faith and had sufficient reasons to litigate, and therefore the process is resolved without a special ruling on costs.\n\n**POR TANTO:**\n\nThe exception of lack of right is upheld for the main and secondary claims of adverse possession or co-ownership regime, sought by the plaintiff, and the process is dismissed regarding those points. The exception of lack of right is rejected regarding the defendant Nombre317, ordering him, in his personal capacity and as president of the indicated company, not to disturb by de facto means the possession held by the plaintiff. The Instituto Costarricense de Acueductos y Alcantarillados is to take note of what is indicated in Considerando IX. The indemnification claim filed by the defendant against its counterpart in the response to the lawsuit is rejected due to being inappropriate. Due to the manner in which it is resolved, it is issued without a special ruling on costs.\n\nNombre5253 .\n\nNombre40047 Nombre37769\n\n**Promotes: Asociación Administradora del Acueducto Puente Salas**\n**Against: Nombre5896. Nombre23461.**\n\n Voto de mayoría N° 33\n\n**Date:** March 29, 2012\n\n**Time:** 11:00\n\n**Panel:** Contencioso Administrative Tribunal, Section IV\n\n**Judge Writing:** Ricardo Antonio Madrigal Jiménez\n\n**Plaintiff:** Asociación Administradora del Acueducto Rural, Agua Caliente, Sarchí Norte\n\n**Defendant:** The State\n\n**Intervenor:** Nombre317\n\n**Co-Adjuvant:** Instituto Costarricense de Acueductos y Alcantarillados\n\n**Expediente:** 10-001555-1027-CA\n\n**Proceeding:** Proceso de Conocimiento\n\n**I. THE BASIS OF THE PROCEEDING:** The plaintiff association maintains that as an ASADA it is the administrator of the public drinking water aqueduct service in the locality of […]. Said aqueduct having been originally administered by the Instituto Costarricense de Acueductos y Alcantarillados, which was transferred to them under the protection of the law. In that capacity, it has maintained under its exclusive possession and enjoyment for more than forty years, the land on which two water collection and distribution tanks are **built**, located in the sector known as La Amada de […], located within the farm of the Heredia registry with Real Folio number […], described in cadastral map […], it being the case that said farm appears registered in the name of the company T. S. A., represented by Mr. M, both defendants in this proceeding. It demonstrates how the association has administered and possessed the area under dispute. In the year two thousand two, an agreement was formalized between the association and the governing public entity for the administration of the aqueduct, noting that the tanks are absolutely necessary for the water supply in the area. That as a result of time, the tanks require urgent repairs, and recently the area is occupied –especially at night– by drug addicts and homeless individuals, to the extreme of having located people cooking and butchering animals on top of the tanks. Without prejudice to the waste and garbage that endanger the public service. All of these situations prompted the ASADA to carry out security works, consisting of placing a perimeter mesh with razor wire on top, to prevent the entry of unauthorized persons. To coordinate the work, an attempt was made to speak with Mr. M through various mechanisms, but none were addressed. At the start of the works, the representative of the defendant company prevented their completion, which were concluded by virtue of a precautionary measure (medida cautelar) in this case. At the oral hearing, the arguments were expanded to state that the previous owner of the company represented by Mr. M had donated the land occupied by the first tank and that the second tank was built by virtue of an agreement between the parties, according to which two water supplies were given to the aforementioned gentleman in exchange for it. Thus, in addition to possession, the existence of two titles transferring ownership is maintained, namely donation and sale. The public domain (demanial) character of the property is also argued. The defendants acknowledge the existence of the tanks, but with the warning that the defendant company is the complete owner of the property, it being the case that the only thing that binds them is a verbal agreement of mere tolerance, which excludes any supposition of acquisitive prescription (prescripción adquisitiva). It demonstrates how the ASADA's agreement with AyA is only eight years old, which prevents the fulfillment of the usucapion (usucapión) period. It acknowledges how its cadastral map from the mid-nineties recognizes the existence of a single tank, but within the aforementioned verbal agreement. It demonstrates that Mr. M is only the representative of the defendant company and not its owner. Regarding the plaintiff, it is maintained that it cannot be subrogated to the rights and actions of past groups, especially to suppress the property right enshrined in numeral forty-five of the fundamental charter, which can only disappear in expressly indicated situations, which are not present in this case. They recognize the existence of deterioration, but they point out that they have not prevented the necessary activities for the maintenance of the infrastructure, demonstrating that it is false that the place lacked a fence, in addition to a saran cover with a wooden cover and steel cables. Regarding the presence of drug addicts and vagrants, it demonstrates that there is no record of anyone being arrested under those conditions, but it accepts that the construction of the works was prevented because they did not have any permit; but it acknowledges how the mesh was **built** by virtue of the indicated precautionary measure.\n\n**II. ON THE DEFENDANT'S CLAIM FOR DAMAGES (PRETENSIÓN INDEMNIZATORIA):** As is visible in the defendant's answer, the defendants request that their counterpart be ordered to pay the damages (daños y perjuicios) caused by reason of the precautionary measure ordered in this proceeding. In this regard, this Chamber must warn that the answer to the complaint is not any mechanism for bringing claims against the counterpart, except for what corresponds to the payment of the costs of the proceeding. Thus, a claim for damages should have been brought in a counterclaim (contrademanda), which was not generated in this case; without prejudice –of course– to being able to file it in an independent proceeding, as a legitimate exercise of the right of action which is reserved for said party for the legal period. Thus, this claim cannot be the subject of any ruling on the merits, as it is manifestly inadmissible by the avenue attempted, and the current defendants must appear in the corresponding ordinary proceeding to assert their rights, if they consider it convenient to their interests. As a consequence of the foregoing, that claim is declared inadmissible, by the avenue presented.\n\n**III. PROVEN FACTS:** Of importance for the issuance of this judgment, the following facts of relevance are taken as: **1)** By the year nineteen seventy-four, the Junta de […], with the support of civil forces, built a water storage tank on the La Amada farm with the authorization of the owner at that time, Mr. G, to supply the community's needs for the liquid (see the testimony of Mr. SV given at the oral and public hearing, which agrees in what is pertinent with the confession (confesional) of Mr. M and the testimony of Mr. F in the corresponding part). **2)** That said work was erected where it was technically appropriate, due to the conditions of height and access to the community (see the testimony of Mr. RS given at the oral and public hearing). **3)** That at the time of the construction of the tank, there was a willingness to transfer said property (the area where the tank was) to the community, but said legal act was not finalized (see the testimony of Mr. Segura Villegas). **4)** That Paraíso Tropical INC S. A. is the owner of the property with Real Folio number […] of the Heredia registry since the end of nineteen ninety-four or the beginning of nineteen ninety-five, which is a part of the old La Amada farm, being where the rural aqueduct works that are the subject of the conflict are located (a non-controversial fact and see the confession of Mr. M given at the oral and public hearing). **5)** That by nineteen ninety-four or the beginning of nineteen ninety-five, Mr. M authorized the construction of a second tank for the benefit of the aqueduct that at that time was administered by a Community Committee (Comité de la Comunidad) (see the confession of Mr. M given at the oral and public hearing). **6)** In that work, there was community and governmental effort, without contribution from the defendant persons (see the confession of Mr. M, as well as that of Messrs. F and RS). **7)** That by reason of the collaboration regarding the land on which the second tank was built, the community provided the defendants with four water services (see the testimonies of Messrs. F and RS given at the oral and public hearing and folio 13 of the minute book of the Community Committee). **8)** That the second tank was built in the place that was technically ideal, not only because it was connected to the first, but also due to height issues and direct connection with the already installed water system (see the testimonies of Messrs. F and RS). **9)** On October twenty-eighth, nineteen ninety-nine, the Instituto Costarricense de Acueductos y Alcantarillados signed a rural aqueduct administration agreement with the Asociación de Desarrollo Comunal de Puente Salas, in the actions of the Comité Administrador of the rural aqueduct of that community (see folios 26 through 28 of the precautionary measure file). **10)** That without being able to specify an exact date, but before the year two thousand two, the plaintiff association was formed, from the same community group that at one time formed the Water Committee that was part of the Community Development Association (Asociación de Desarrollo de la comunidad) (see the testimonies of Messrs. F and RS given at the oral and public hearing). **11)** On June twentieth, two thousand two, the Instituto Costarricense de Acueductos y Alcantarillados signed an administration agreement with the […] with respect to the locality's aqueduct (see folios 19 through 25 of the precautionary measure file). **12)** Before the year two thousand ten, there had been a coordinated activity between the plaintiffs and defendants for the benefit of the aqueduct that concerns us (see the testimonies of Messrs. H and C given at the oral and public hearing). **13)** The plaintiff (whether as the association or through the Committee) has exercised possession continuously, publicly, and peacefully; in addition to being known and tolerated by the defendants for more than ten years (see the testimonies of Messrs. F and RS given at the oral and public hearing). **14)** That in recent months, condoms, clothing, broken lids, cut padlocks, people cooking, among other activities that endanger the aqueduct, carried out by vagabonds and drug addicts in the area, have been found at the tanks (see the testimony of Mr. C given at the oral and public hearing, folios 18, 55 through 63 and 89, 91 through 94 of the precautionary measure file). **15)** If the tanks were to become contaminated, an affectation to the entire aqueduct would occur, as it is from there that the community is supplied (see the testimony of Mr. C given at the oral and public hearing). **16)** The ASADA requested authorization from the defendants to place a protective mesh around the tanks, but no agreement was reached in this regard (a non-controversial fact as is visible in folios 3 and 60 of the judicial file). **17)** The ASADA decided to carry out the work despite the lack of authorization from the defendants (a non-controversial fact). **18)** That at the moment of proceeding to place a protective mesh for the tanks, Mr. M prevented the completion of the work (see the testimony of Mr. C given at the oral and public hearing; as well as the confession of Mr. M, and folios 30 through 32 of the precautionary measure file). **19)** That the protective mesh was placed by virtue of the precautionary measure in this proceeding (a non-controversial fact between the parties and it is possible to extract it from folios 33 through 38 of the precautionary measure file). **20)** The placement of the mesh negatively affected the saran property of the defendant company, in that maintenance cannot be performed on three anchors of the saran owned by it (see the testimony of Mr. H given at the oral and public hearing).\n\n**IV. ON UNPROVEN FACTS:** The following are taken as such: **a)** That the defendant company has any knowledge of the desire of the previous owner of the farm subject to the conflict, that commits it to carry out said act of disposal as he had offered at the time (the court records). **b)** That the commitment between the plaintiff association and the defendant company, from the construction of the second tank, implicitly carries a transfer of ownership (dominio) in the area where it was built (the court records). **c)** That the plaintiff Association presents a valid enabling title (justo título) to consolidate an acquisitive prescription in its favor (the court records).\n\nd) That the plaintiff maintain an exception from payment for the water supply as payment for the land where the tanks are located (the case file).\n\n**V.- ON THE RIGHT TO WATER AND THE PUBLIC DOMAIN:** The Political Constitution (La Constitución Política) in Article 121, subsection 14, states: \"(...) *In addition to the other powers conferred upon it by this Constitution, it corresponds exclusively to the Legislative Assembly (Asamblea Legislativa): (...) 14) To decree the alienation or application to public uses of the property belonging to the Nation (La Nación)* (...)\". This constitutional provision has been developed in the Civil Code, in Articles 261 to 263; the first of these indicates: \"*Public things (cosas públicas) are those which, by law, are permanently destined for any service of general utility, and those which everyone can take advantage of because they are delivered to public use. All other things are private and subject to individual property, even if they belong to the State or to the Municipalities, who in such case, as civil persons, are not differentiated from any other person*\". For its part, the following canon adds: \"*Public things (cosas públicas) are outside of commerce; and they may not enter into it, unless legally provided otherwise, separating them from the public use to which they were destined*\". Thus, the public domain (dominio público) is understood as the set of goods subject to a special legal regime, distinct from that which governs the private domain, which, in addition to belonging to or being under the administration of public legal entities, are affected or destined for purposes of public utility and which manifests itself in the direct or indirect use that any person may make of them. According to the cited regulations, the State possesses both public domain and private domain goods; public goods are those to which a law gives a destination for public or general use, they are called \"demanial\" (demaniales) and are inalienable, imprescriptible, unattachable, and cannot be claimed by denunciation. The logic of public goods is that their domain precedes the State itself, so that they belong to The Nation (La Nación) as a requirement for coexistence in society; the State is limited to administering them, which as a rule of principle prevents them from leaving the public sphere. That is, they are affected by their own nature and vocation (See Constitutional Chamber (Sala Constitucional), vote 2306-91 of 2:45 p.m. on November 6, 1991). It is said that they belong to The Nation (La Nación), in such a way that the State is limited to their safeguarding and protection, without in principle being able to dispose of them. These goods are outside the commerce of men and consequently have a legal nature and regime different from private goods –which are governed by the right of property under the terms of Article 45 of the Political Constitution (Constitución Política)–, insofar as, by the express will of the legislator or by their very essence, they are affected to a special destiny of serving the community, that is, the public interest, and therefore, they cannot be the object of private property, for which reason they cannot belong individually to private parties, nor to the State, in a strict sense, since the latter is limited to their administration and guardianship. Thus, what defines the legal nature of demanial (demaniales) goods is their destiny, insofar as they are affected and are at the service of public use, as has been recognized by the doctrine on the matter, thus, Marienhoff, Miguel S., in his work Tratado de Derecho Administrativo (Volume V. Abeledo-Perrot. Buenos Aires. 1992., p. 25), considered: \"*For a good or thing to be considered as a dependency of the public domain, and to be subject to the relevant regime, it is necessary that said good or thing be affected to 'public use', direct or indirect, and it must be, in this 'latter' case, things directly affected -as 'final goods' or 'use goods'- to common utility or comfort, excluding from the public domain status goods of the State that are of a merely instrumental nature*.\" On the other hand, the private goods of the State are regulated by private law with elements characteristic of public law. These goods are within the commerce of men; they can be transferred, appropriated, and are not imprescriptible; therefore, they are susceptible to usucapion for the benefit of private parties, in accordance with Article 261 already indicated. Note that the emphasis of the differentiation is given in relation to the destiny of the good, that is, to the fact of being affected to a common use or to the service of the common good (see Constitutional Chamber (Sala Constitucional) in judgment number 2301-91, of November 6, 1991, and 2000-06903 of 3:48 p.m. on August 8, 2000). As already advanced, due to their special legal nature, they present the following attributes: they are imprescriptible, which implies that by the passage of time, the right of property over them cannot be acquired, not even mere possession, that is, they cannot be acquired through usucapion, nor can they be lost by prescription; reason for which the use permits that the Administration (la Administración) grants over them always have a precarious (precario) character, which means they can be revoked for reasons of opportunity or convenience at any time by the Administration (la Administración) –under the terms provided in Articles 154 and 155 of the General Law of Public Administration (Ley General de la Administración Pública)–; and the same concessions granted over them for their use can be canceled, through a procedure for that purpose; they are unattachable, which means they cannot be the object of any lien or attachment, neither by private parties, nor by the Administration (la Administración); and they are inalienable, which translates into the condition that they are outside the commerce of men; hence they cannot be alienated, sold, or acquired, neither gratuitously nor for consideration, neither by private parties, nor by the State, so that they are exempted from the commerce of men and subject to a special and reinforced legal regime. Furthermore, their use and exploitation is subject to the police power, insofar as, because they are goods that cannot be the object of possession, much less of property, their utilization and exploitation is only possible through duly authorized acts, that is, through a concession or use permit, granted by the competent authority; and to constant control by the Public Administration (la Administración Pública). A public good can be natural or artificial, depending on whether they are goods declared public by the legislator considering them in the state in which nature presents or offers them (a river, for example), or goods declared public by the legislator but whose creation or existence depends on a human act (construction of a street or a public park, for example). The affectation (afectación) is the act or manifestation of will of the public power, by virtue of which the thing is incorporated into the use and enjoyment of the community and can be carried out by law or by administrative act. The doctrine distinguishes between \"assignment of public character\" to a good and the \"affectation\" (afectación) of that good to the public domain (dominio público). The assignment of public character means establishing that said specific good would have demanial (demanial) quality; thus, for example, the general legal norm would say that all public roads are integral parts or dependencies of the public domain (dominio público) and this means that both current ones and those that come to be built are so. In contrast, the affectation (afectación) means that the good declared dominical is effectively incorporated into public use and this has to do with the acceptance and receipt of public works when they are built by administration or by the conclusion of the works and their official receipt, when it is a private party who carries them out (construction of a development or subdivision (fraccionamiento), for example).- It is for this reason that it is said that the affectation (afectación) can be declared by law in a generic form, or by an administrative act, which, necessarily, must conform to the legal norm that serves as its reference (principle of legality). As a consequence of what was stated in the previous point, it is manifest that the demanial (demanial) regime exists *per se*. Its existence and publicity occur autonomously from the Registry, without it being possible for the registered owner to allege ignorance as a means to distort it and counteract the affectation (afectación). The principles of inalienability and imprescriptibility that characterize the public domain (dominio público) prevent the figure of the registered third party from being wielded against it to consolidate private property illicitly removed from that regime. The public domain (demanio) has legal publicity and in many cases natural publicity. The foregoing is coupled with the principle of initial registration (inmatriculación) of the real estate components of the public domain, which have a material publicity and not necessarily a formal or registry publicity. Against the public domain (dominio público), private detentions suffer from a weakened value, however prolonged in time and even if they appear protected by entries in the Property Registry (Registro de la Propiedad). The condition of a public domain (dominio público) and public use good affects third parties, even if such quality does not appear from the Property Registry (Registro de la Propiedad). These are goods that, by their nature, do not need registry inscription (Vote 019-2009-SVII, Contentious-Administrative Tribunal, Seventh Section). Note that this principle, as an exception to the principle of registry publicity, is based on the fact that public domain (dominio público) goods enjoy material publicity and therefore their registry publicity is not necessary. Additionally, the figure of \"de-affectation\" (desafectación) exists, which is \"*the legal situation by which a good ceases to belong to the public domain (dominio público) (...) the goods that are de-affected (desafectados) become, in principle, patrimonial goods of the titular Administration (Administración), which, in its case, may alienate them (...)*\" (vote 035-2009-SVII, Contentious-Administrative Tribunal); a situation that in sound logic could only occur in those that have been declared as such by law, since in those whose condition is intrinsic, such a possibility would be barred. Before focusing the argumentation more concretely on the point that occupies us, it is manifest that when the demanial (demanial) good has been created by a private party or represents an especially intense affectation (afectación) that they are not obligated to bear, said character does not inhibit the obligation to assume responsibility on the part of the Administration (la Administración), in order to allow equilibrium in public burdens. The contrary would bring about unjust enrichment, which has no support within the national legal order. In any case, this topic will be taken up again in the following recitals. Now, with respect to water, the Constitutional Chamber (Sala Constitucional), in vote No. 5606-06, recognized the condition of a human right by stating:\n\n“**VII.- Access to potable water as a human right**. In addition to what has been indicated, and perhaps the most relevant aspect in this matter, is the nature and function of water for human life. It is not necessary to detail here an explanation about the evident and notorious reality that without water there can be no life, nor quality of life, and that therefore, with or without a nationalization law, by its very essence, this issue is not and cannot be a territorial or local issue. This Chamber itself in its constitutional jurisprudence has said that access to potable water is a fundamental human right, insofar as it constitutes an integral part of the right to health and to life. (CONSTITUTIONAL CHAMBER, judgments numbers 534-96, 2728-91, 3891-93, 1108-96, 2002-06157 2002-10776; 2004-1923). This same line has been maintained in judgments 2003-04654 and 2004-07779, which in what is of interest state: // ‘V.- // This Chamber (La Sala) recognizes, as part of the Constitution's Law, a fundamental right to potable water, derived from the fundamental rights to health, life, a healthy environment, food, and decent housing, among others, as has also been recognized in international instruments on Human Rights applicable in Costa Rica: thus, it figures explicitly in the Convention on the Elimination of All Forms of Discrimination against Women (art. 14) and the Convention on the Rights of the Child (art. 24); moreover, it is enunciated in the International Conference on Population and Development of Cairo (principle 2), and it is declared in numerous other provisions of International Humanitarian Law. In our Inter-American System of Human Rights, the country is particularly obligated in this matter by the provisions of Article 11.1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador” of 1988), which provides that: “Article 11. Right to a healthy environment 1.- Everyone has the right to live in a healthy environment and to have access to basic public services’. The lack of resources does not justify the non-fulfillment of the duties of public administrations in the provision of this basic service. (CONSTITUTIONAL CHAMBER, resolutions 2003-04654 and 2004-007779). // For its part, as both the Attorney General's Office (Procuraduría) and the representative of AyA rightly acknowledge in their reports, in the international field the recognition of water as a human right and as a necessary precondition for all our human rights is also the majority view. It is maintained that without equitable access to a minimum requirement of potable water, other established rights would be unattainable - such as the right to an adequate standard of living for health and for well-being, as well as other civil and political rights. In November 2002, the United Nations Committee on Economic, Social and Cultural Rights affirmed that access to adequate amounts of clean water for domestic and personal use is a fundamental human right of every person. Likewise, in General Comment No. 15 on the fulfillment of Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, the Committee noted that ‘the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights’. It is also emphasized that the State parties to the International Covenant have the duty to progressively realize, without any discrimination, the right to water, which entitles everyone to enjoy sufficient, physically accessible, safe, and acceptable water for domestic and personal use. // For their part, several international conferences have been held, among which the United Nations Water Conference held in Mar del Plata in 1977 stands out, which recognized that all peoples have the right to access to potable water to satisfy their basic needs. Also, the Declaration on the Right to Development, adopted by the UN General Assembly (Asamblea General de la ONU) in 1986, includes a commitment by States to ensure equality of opportunity for all to enjoy basic resources. // The concept of meeting basic water needs was further strengthened during the 1992 Earth Summit in Rio de Janeiro. In Agenda 21, governments agreed that \"in developing and using water resources, priority must be given to meeting basic needs and conserving ecosystems. Similarly, in the Plan of Implementation adopted at the Johannesburg Summit in 2002, governments committed to \"employ all policy instruments, including regulation, monitoring..... and cost recovery of water services,\" without the cost recovery objectives becoming a barrier to poor people's access to clean water. Likewise, there are dozens of international instruments that directly and indirectly have to do with water as a human right of all persons and peoples, in such a way that it is not only an issue that by its nature tends towards nationalization, but towards the internationalization of its use and exploitation”.\n\nSee how beyond the normative support, the demanial (demanial) character of water is a necessary consequence of the imperative requirement it presents for human life, which entails that the internal normative direction is based on Article 21 of the Constitution. At the infra-constitutional level, its demaniality (demaniabilidad) is initially regulated in the Water Law (Ley de Aguas), number 276, of August twenty-sixth, nineteen hundred forty-two:\n\n\"**Article 1.-** Waters of the public domain (dominio público) are: // I.- Those of the territorial seas in the extension and terms established by international law; // II.- Those of the lagoons and estuaries of the beaches that communicate permanently or intermittently with the sea; // III.- Those of the interior lakes of natural formation that are directly linked to constant currents; // IV.- Those of the rivers and their direct or indirect tributaries, streams, or springs (manantiales) from the point where the first permanent waters emerge to their mouth in the sea or lakes, lagoons, or estuaries; // V.- Those of constant or intermittent currents whose course, in all or part of its extension, serves as a boundary to the national territory, with the domain over those currents subject to what has been established in international treaties entered into with neighboring countries and, in the absence thereof, or regarding unforeseen matters, to the provisions of this law; // VI.- Those of any current that directly or indirectly flows into those listed in subsection V; // VII.- Those extracted from mines, with the limitation indicated in Article 10; // VIII.- Those of the springs (manantiales) that emerge on the beaches, maritime zones, courses, beds, or banks of national property and, in general, all those that originate on lands of the public domain (dominio público); // IX.- Subterranean waters whose extraction is not done by means of wells; and // X.- Rainwater that flows through ravines or wadis whose courses are of the public domain (dominio público).\n\n **Article 2.** \\- The waters listed in the previous article are national property and the domain over them is not lost nor has been lost when, by the execution of artificial works or previous exploitation, the natural characteristics are altered or have been altered.\n\nExcept for waters that are exploited by virtue of contracts granted by the State, which shall be subject to the conditions authorized in the respective concession. .\"\n\n Law (La Ley) 258 of August eighteenth, nineteen hundred forty-one, Law of the National Electricity Service, which stated:\n\n \"*Article 1: All the waters of the Republic (la República), which are not private domain in accordance with the current Water Law (Ley de Aguas), … are inalienable and of the domain, governance, and vigilance of the State*\"\n\nWhat is provided by Article 4 of the Mining Code (Código de Minería) (Law 6797 of October 4, 1982) supports what has been said, which states:\n\n **“Article 4.-** ... . subsurface and surface waters are reserved for the State and may only be exploited by it, by private parties in accordance with the law, or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly (la Asamblea Legislativa).\n\nThe natural resources existing in the soil, subsoil, and in the waters of the seas adjacent to the national territory, within an extension of up to two hundred miles from the low-water line, along the coasts, may only be exploited in accordance with the provisions of subsection 14) (last paragraph) of Article 121 of the Political Constitution (la Constitución Política).”\n\n**VI.- ON THE ADMINISTRATION OF THE WATER RESOURCE (RECURSO HIDRICO):** The repealed Law number 258 of August eighteenth, nineteen hundred forty-one, created the National Electricity Service to exercise the domain, exploitation, utilization, governance, and vigilance of several resources, among them all waters. Section six empowered it to grant concessions or water rights, a norm that is consistent with the aforementioned Water Law (Ley de Aguas) which in Article 17 establishes that “*Authorization is necessary for the exploitation of public waters, especially dedicated to public or private interest enterprises. Such authorization shall be granted by the National Electricity Service in the manner prescribed in this Law..*”, which is reaffirmed by Article 70 of Law sixteen of October thirty, nineteen hundred forty-one. For its part, Law No. 2726 of April fourteenth, nineteen hundred sixty-one and its amendments -especially those of Law No.\n\n5915 of 12 July 1976—, the \"Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers\" states:\n\n*\"Article 1.— For the purpose of directing, setting policies, establishing and applying standards, carrying out and promoting planning, financing, and development, and resolving everything related to the supply of drinking water and the collection and evacuation of wastewater and liquid industrial waste, as well as the regulatory aspect of storm sewer systems in urban areas, for the entire national territory, the Costa Rican Institute of Aqueducts and Sewers is created, as an autonomous institution of the State.\" (As amended by Law No. 5915 of 12 July 1976, article 1)*\n\nAs can be gleaned from the articles transcribed above and from a comprehensive reading of the respective laws, the purpose of the S.N.E. in this field was to represent and exercise, on behalf of the State, dominion over the country's water resources, in order to ensure their preservation and prioritized use according to the importance of needs. For its part, AyA has the purpose of planning, constructing, and operating the infrastructure necessary to supply drinking water and overseeing the planning, construction, and operation of the same when carried out by private parties for the indicated purpose. As observed, representing the State in concession contracts was one of the mechanisms that allowed the S.N.E. to fulfill its legal purpose (as will be seen, that competence was later transferred). This was expressly established in its constitutive law as well as in the Water Law. For those years, it was clear that the granting of the connection was proper to it, including the corresponding contract; while AyA has the competence to plan, design, construct, operate, and maintain works for supplying water to a population, as well as the adaptation of said works to its recommendations when carried out by private parties—Law No. 16 of 30 October 1941, No. 809 of 02 November 1949, and the General Law of Drinking Water, among others—a function that has never entailed that of granting concessions for the exploitation of public domain waters, even when these are destined, as in the case at hand, to provide drinking water to a defined population. Based on the aforementioned regulations, especially the AyA Law (as well as articles 266 and 276 of the General Health Law, Law No. 5395 of 23 October 1973), it is clear that with the exception of the latter, only the municipalities, the Heredia Public Services Company, Community Development Associations (through the Rural Aqueduct Committees), or other local organizations with which AyA may enter into an agreement for this purpose, no other entities are empowered to administer public aqueducts. Thus, a private party is not authorized by the legal system to provide the public service of population drinking water supply and sanitary sewerage, with the exception of the Administrative Associations for Aqueducts and Sewers (ASADAS) as managers of the public service. Consequently, the Ministry of Environment, Energy, and Telecommunications (which assumed the functions of granting water concessions upon the transformation of the SNE into the ARESEP), prior to granting the concession, would be under the legal obligation to verify that the private party has prior authorization from AyA and the Ministry of Health for the private company to provide drinking water service to the population, as well as the sanitary sewerage system. In the case of ASADAS that act by delegation from AyA, their legal nature arises from the Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers, which empowered it to delegate the administration, operation, and maintenance of the aqueduct and sewer systems—entrusted to it by the legislator—to groups duly formed for that purpose, as follows from article two, subsection g) of the cited law, when it expressly states: \"*The institution is empowered to agree with local organizations on the administration of such services or to administer them through administrative boards of mixed composition between the Institute and the respective communities, whenever this is appropriate for the better provision of services and in accordance with the respective regulations.*\" Based on the provision transcribed above, the Executive Branch issued various regulations, with the Regulation of Administrative Associations for Communal Aqueduct and Sewer Systems, (Decree No. 32529 of 2 February 2005) being the current norm, which this latter regulation provides in its article 3:\n\n*'Article 3. AyA, through an agreement signed for this purpose, with prior favorable agreement from its Board of Directors, may delegate the administration, operation, maintenance, and development of communal aqueduct and/or sewer systems to associations duly constituted and registered in accordance with the Associations Law No. 218 of 08 August 1939, its amendments, and respective Regulation, Executive Decree No. 29496-J, published in La Gaceta No. 95 of 21 May 2001. ..'*\n\nFrom the transcribed norm, it follows that Administrative Associations for Aqueducts and Sewers constitute legal entities of a private nature, given that their creation must be governed by the Associations Law. For this reason, the constitution of such associations must be carried out with absolute respect for the right to free association and consequently, they are entities of private and not public law, notwithstanding that their operation is subject to the requirements and demands of the regulations governing them, as they have been entrusted with the exercise of a special activity which, through the figure of public service management, involves them in the provision of public services for the benefit of a community. In this regard, the Constitutional Chamber (vote 3041-97 of 16:00 hrs. on 3 June 1997) has emphasized that the delegation of that responsibility to administer the aqueduct and/or sanitary sewer system constitutes a clear \"concession\" of public service management, which from a technical administrative law standpoint is not entirely correct, considering that a concession (except for the cases granted by the Legislative Assembly) presupposes a public bidding procedure, which does not occur with the ASADAS. Therefore, what would be possible to maintain is that these groups have an authorization in the management of the service, insofar as they administer that public service by agreement with the Costa Rican Institute of Aqueducts and Sewers, they are, in law, in a position of power over the users, and they exercise, for that purpose, a series of public competencies and functions (Constitutional Chamber, Vote No. 2006-01651 of sixteen hours and thirty-nine minutes on fourteen February two thousand six). Regarding the regulatory patrimonial regime of the assets destined for the aqueduct system, numeral 18 of Law 2726 cited above states that all properties and installations of State bodies destined for the provision of services related to the catchment, treatment, and distribution of drinking waters are national patrimony. Likewise, Regulation 32529 states that all movable and immovable property used by the ASADAS in the administration, operation, maintenance, and development of aqueduct and sewer systems are considered public domain, and they may not be disposed of (article 18 and 21, subsection 10), and in the event of termination of the delegation agreement or dissolution of the ASADAS (numeral 21, subsection 13), they shall be delivered to AyA, which will inventory, register, and inscribe them in its name, assuming ownership thereof to destine them for that public service (article 22, subsection 11). For its part, the Water Law, number 276 of twenty-seven August one thousand nine hundred forty-one, in its articles ninety-nine and following, states that to utilize public waters that pass through private properties, the imposition of a forced aqueduct easement (servidumbre forzosa de acueducto) shall be used, with prior compensation. Moreover, on this important topic, the Constitutional Chamber established in vote 5606-2006 of fifteen hours and twenty-one minutes on twenty-six April two thousand six, that in the case of water, services had originally been given to the Municipalities by the General Law of Drinking Water, number 1634 of eighteen September one thousand nine hundred fifty-three, and that later, with the creation of the Institute, that function passed to the Costa Rican Institute of Aqueducts and Sewers, which turns the water situation into a national and not local problem.\n\nVII.— REGARDING ACQUISITIVE PRESCRIPTION AND DONATION: Prescription, in the dual form in which it is traditionally presented, is a legal institution that stabilizes legal relations, rendering them unassailable with the passage of time. The foundation of prescription, like the true foundation of any legal institution, is found in a life problem, a problem of interests that poses a demand for the Law to which it must provide an answer. In the present case, we find a fact: the inertia of the active subject of a legal relationship; this inertia is projected onto the plane of interests of a specific problem. This can be outlined as follows: with the passage of time, combined with the aforementioned inertia, a growing situation of uncertainty develops (which, as such, carries a negative axiological burden for the Law, given that certainty is one of its pillars). Because there is an interest in certainty, that is, because certainty is a legal value in our system, the solution to the problem must be sought based on it. The means to obtain it is the establishment of a period beyond which the uncertain interest becomes an irrelevant interest, meaning that it is in the community's interest to establish a time limit with which the situation of uncertainty ends. In all cases, prescription functions as a means of order, tranquility, and social security, because it prevents lawsuits and controversies of difficult resolution from arising after the time the law stipulates. It is said that prescription is a social order based on a presumption of abandonment or waiver, that it protects the certainty of legal situations, that it responds to the social demand for certainty and public order. It seeks social peace, aims to give stability and firmness to transactions, to dissipate the uncertainties of the past, and to put an end to the indecision of rights, which, if it had no end, would be a cause of constant unease and controversy. There are two distinct classes of prescription: the first is called positive, acquisitive, or usucapion; and the other negative, extinctive, or liberatory. Although both modes of prescription differ in essence, and for that reason should be dealt with separately in their respective places, the positive among the modes of acquiring property and the negative in the part of obligations concerning the way they end or are extinguished; nonetheless, it has always been customary to study one and the other form together, as both are conditioned by the passage of time, since both are based on analogous considerations of general interest. Usucapion or acquisitive prescription of ownership is a legal institution that consists of recognizing as the owner of a property that person who held it, using it as if they were the real owner, for the period that the law itself indicates. Positive prescription or usucapion has a double effect: extinctive (by producing the loss of ownership of the original owner) and constitutive (by creating a new property right for the usucapient); thus, the substantial difference with regarding negative prescription lies in the fact that the latter only presents a suppressive effect, while positive prescription demonstrates two effects. The origin of the institution is rooted in Roman law and is based on the exercise of possession by a third party that was neglected by its holder. According to article eight hundred fifty-three of the Civil Code, the requirements of the figure are the existence of at least three elements: transferable title of ownership, good faith, and possession. For its part, the following canon clarifies: \"*ARTICLE 854.— He who alleges prescription is obliged to prove the just title, except for easements (servidumbres), the right to possess, or movable property, in which cases the fact of possession presumes the title, unless proven otherwise.*\" Jurisprudence, clarifying the law, has indicated the requirements as: a thing that is habile, that is, susceptible to private property; located within commerce; just title; good faith; possession and passage of time, exercised in the capacity of owner, continuously, publicly, peacefully, and for ten years or more. Should any one of these be missing, acquisitive prescription does not operate. Regarding the first requirement, susceptibility of being acquired, it must be remembered that demanial property (bienes demaniales) is outside the commerce of men and cannot be acquired by the passage of time. Concerning good faith, article two hundred eighty-five of the Civil Code establishes that: \"*in all cases where the law requires possession in good faith, a possessor in good faith is considered to be one who, at the act of taking possession, believed they had the right to possess. If there was sufficient reason to doubt that such a right belonged to them, they should not be considered a possessor in good faith; but if the possession was in good faith at its beginning, it does not lose that character by the mere fact that the possessor subsequently doubts the legitimacy of their right*\" This generates the consequence that good faith ceases at the moment of acquiring certainty that one possesses improperly, and it also ceases from the notification of the lawsuit in which another claims the right to possess. Regarding the just title, article eight hundred fifty-four of the same normative body establishes that \"*He who alleges prescription is obliged to prove the just title, except for easements, the right to possess, or movable property, in which cases the fact of possession presumes the title, unless proven otherwise.*\" On the subject of just title, the First Chamber of the Supreme Court of Justice has had variable positions regarding the necessity of this requirement to usucapt, which led to the issuance of vote 92-91 in agrarian matters, in which it was stated, as relevant: \"*In this case, the title merges with possession insofar as the title is the possession itself. Its character as 'just' lies in being licit and, for the case ad usucapionem, that is, the possession meeting the requirements of being continuous, public, and peaceful, with the one who holds it behaving as its true holder...*\" Aside from that position specific to agrarian law, which is not the subject before us at this moment, the highest civil court has repeatedly and with respect to civil acquisitive prescription, stated:\n\n\"*III.— In the first reproach, it is alleged, tacitly, the indirect violation through erroneous assessment of the evidence of numeral 854 of the Civil Code, from which the appellant intends to derive that the absence of a just title can be replaced by the effective possession of the property to be usucapted. That legal precept establishes: 'He who alleges prescription is obliged to prove the just title, except for easements, the right to possess, or movable property, in which cases the fact of possession presumes the title, unless proven otherwise.' In contrast to what was interpreted by the appellant, in no way does that numeral liberate the possessor of an immovable property, if they wish to usucapt its ownership in this matter, from the requirement of just title, established in ordinal 853 of the same legal body. As can be deduced from its reading, this, also called transferable title of ownership, can only be omitted when '...it concerns easements, the right to possess, or movable property...', in other words, when one seeks to usucapt one of those rights, but, as an exception to the general rule, positive prescription of the right of ownership over immovable property, in this matter, is not included. The just title consists of the fact that the possessor of a property, if they wish to become its owner, must have exercised their possession based on a legal foundation that authorized them to do so. Therefore, a legal transaction must have existed through which the individual was empowered to exercise possessory acts with respect to the specific immovable property, that is, an act through which ownership of the property was transferred to them, but their title is not registrable or suffers from some deficiency that prevents its effectiveness, principally because the transferor was not the owner of the property, whereby the possessor enters a condition of acquirer a non domino. In this manner, under the concept of just title, a possession initiated from a transfer act that would have permitted the transfer, had it emanated from the true owner, would be required. That is, the transaction had the appearance of one by which the ownership of an immovable property is normally acquired; a contract that transfers the property's ownership under normal conditions. Likewise, the transfer act cannot be vitiated by absolute nullity, which could be claimed by any interested party, or even ex officio, and would prevent the legal transaction from producing effects. The case differs with relative nullity, for as this is remediable, it could be ratified by the affected party and, therefore, the title created in favor of the possessor subsist. Furthermore, it must converge with good faith, defined in article 285 of the Civil Code, based on which it is necessary, for one who claims to possess as owner, to have held the belief of having the right to do so. It is in the face of the described situation that the law establishes the possibility of usucapting an immovable property, once ten years of quiet, public, and peaceful possession have elapsed. The Napoleonic Code, the French civil codification which served as a foundation for the legislator of 1886, establishes two ways of usucapting immovable property. The first, contemplated in its ordinal 2262, establishes the period of 30 years to positively prescribe a property, mere possession being sufficient. That is, in that legislation, whosoever possesses for more than that period may acquire the property, regardless of whether they were a possessor in bad faith and whether they lacked any justification for holding the land. This is termed ordinary prescription. Numeral 2265 of the Napoleonic Code comes to establish the so-called abbreviated prescription, which operates when one who possesses does so in good faith and based on a just title, which, however, fails to be effective for determined reasons. This period will be 10 or 20 years, depending on the place where the registered owner has their domicile. The double possibility for usucapting is also embraced by Spanish civil legislation, with the variation of calling the 10-year prescription, when there is a just title, ordinary usucapion (or 20 years when the owner is absent) and the 30-year one extraordinary, according to the tenor of numerals 1957 and 1959 of the Spanish Civil Code. But the Costa Rican legislator decided to omit the French ordinary prescription (extraordinary according to the Spanish), and to limit itself to the abbreviated usucapion, calling it ordinary following the Iberian nomenclature, which establishes the period of 10 years as provided for in the Civil Code. On the necessity of just title, the Chamber indicated in judgment No. 45 of 15 hours 5 minutes on 22 May 1996 the following: '*Civil law doctrine has been concerned with specifying the requirements of the \"title\" in order for it to serve, together with the other conditions provided by law, as an acquisitive cause of possessable real rights. In the first place, it must be a transfer title, as qualified by article 853 of the Civil Code; that is, a legal transaction which, under normal conditions, would be suitable for transferring ownership but, as it is an act performed by a subject who is not the holder of the right, could not produce the transfer phenomenon immediately. In effect, as expressed in the ruling indicated at the end of this citation, \"... in ordinary usucapion, the transferable title of ownership that the law requires must be a non domino, i.e., it must emanate from one who is not the owner. The thing was acquired from another, who acted and was reputed as owner, without being so; the alienating party is a non-owner, whether because they never held title, or because their right has been extinguished or resolved, or because the one they hold is not sufficient to produce the transfer; in this last category falls, for example, the usufructuary who appears to transfer the property. And even though in Roman Law usucapion served to acquire the dominium est iure quiritium and also corrected thereby the consequences of other modes of acquisition that may have been defective, in modern law, the general rule is that the sole defect of the title that usucapion purges is the acquisition from a non-owner, and therefore, the defect that usucapion remedies lies precisely in the title. The law's remedy with ordinary usucapion is only the non-acquisition, the defect that results from the fact that the one from whom the possessor obtained their right was not the owner. In summary, usucapion operates when the title of transmission or acquisition is a non domino, from one who is not the owner, but not when it is a domino or a verus domino, i.e., when it emanates from the owner or true owner, because in this case, if the title is perfect, it produces all its effects immediately, and if it has some defect of another nature, because it emanates from the true owner, its validation can occur through negative or extinctive prescription of the nullity action and not through acquisitive prescription or usucapion...*' (Judgment No. 16, of 16:00 hours on 23 March 1982 of the First Chamber of the Supreme Court of Justice).\n\nMore recently, it added:\n\n\"*Possession acquired by virtue of a non-transferable title is not suitable for civil usucapion. If, for example, possession was entered into by virtue of a lease or mere tolerance, the requirement of title is not met, and if it concerns a real right different from ownership, as could be, for example, usufruct, this could be acquired by usucapion but not that of ownership.*\" (no. 607, of 9 hours on 23 July 2004 of the First Chamber of the Supreme Court of Justice).\n\nThese aspects are relevant for resolving the present conflict, and will therefore be taken up again in due course.\n\n**VIII.- ON THE MERITS OF THE CASE:** Based on the evidence visible in the case file (*expediente*), it is unquestionable to this Chamber that the water storage tanks within the aqueduct of [...], located on the property registered in the name of the defendant company, correspond to a public domain asset under the administration of A y A in accordance with the law, and that a delegation has been made to the plaintiff ASADA. It concerns an immovable asset that is currently indispensable as part of the system, which cannot be dismembered without losing the functionality of the entire aqueduct at this time. Evidence of this is how the community receives its supply of the precious liquid from the storage tank at the heart of the conflict. It concerns an asset dedicated to public use (the part where the tanks are located), recalling in this regard the principle of registration (*inmatriculación*) that governs the matter. Although the defendants do not come to recognize these conditions and make the veracity of said aspects contingent on the evidence visible in the case file, the elements of conviction prove to be consistent in that sense. Despite what has been said, the Court must be very emphatic in indicating that, just as has been noted on previous occasions, despite the public domain character (*carácter demanial*) of the asset at this time, it is clear that under the protection of Article 45 of the Constitution, the right of property cannot be destroyed de facto to the detriment of the individual without the corresponding compensation, for this would entail that to withdraw an asset from the commerce of men, it is enough to affect it de facto with public domain status (*demaniabilidad*). Thus, under the protection of the fundamental charter, when a private asset passes into public use, some consensual mechanism between the parties for the transfer of public domain must have been used (such as a sale or a donation fulfilling the legal requirements) or, failing that, by means of the legally regulated expropriation procedure. This leads to the necessary consequence regarding the non-existence of a normative premise exempting from a just title in cases of public domain assets (*bienes demaniales*) when they originally had private ownership, which appears to be, in a veiled manner, the reasoning of the plaintiff. As the defendants' lawyers made clear, the lawsuit is manifestly inappropriate as it is impossible for adverse possession (*usucapión*) to be consolidated in favor of the association, by virtue of its condition as mere administrator of assets owned by A y A, a position that in itself is not unreasonable; despite this and as will be seen, even from the plaintiff's own reasoning, most of the lawsuit has no reason to be; not without first warning that as a private entity and for its own benefit, an ASADA could well establish positive prescription to the extent that it satisfies all of the requirements that the legal system itself establishes. If it is possible for public entities to accept the existence of the dual capacity to act (as a private and as a public entity), with greater reason it is possible to ensure that an ASADA whose legal nature is not strictly public (even though it contributes to a public service) can be subject to private law schemes for acquiring assets. Now then, returning to the specific claim, the plaintiff association claims for itself part of the disputed property, in the specific location of the already mentioned tanks, because acquisitive prescription (*prescripción adquisitiva*) has occurred. From the probative element, it is fully proven that possession has taken place, initially under the community development association in the actions of the local Water Committee, which in turn was the basis of the Association that is today the plaintiff; it is not a matter of mere holding of another's property, for they considered themselves owners of the asset (in the part corresponding to the tanks under the indicated terms), supposedly because part of the property had been donated and because the other part had been sold (exchanged) for some water services that were generated from the same tank. Thus, regarding the first of the tanks, it is possible to sustain possession of at least thirty-five years, and regarding the second, a period of around fifteen years, which benefits the ASADA as a manifestation of community activity. Said possession has been public, peaceful, and continuous and for more than ten years as the association's witnesses described, an aspect that is duly proven; although the evidence brought by the defendants sought to show that it was a matter of mere tolerance (holding in civil terms), the truth is that said probative element fails to convince the Court as it manifested a complacent tendency; on the contrary, the plaintiff's evidence proved entirely credible to this jurisdictional body in what corresponds to this topic. On the contrary, the Chamber is inclined to think that there was a will to carry out the activities in coordination between the plaintiff and the defendant, but with the former always considering themselves the owners, as the witnesses offered by her made apparent. With regard to the condition of owner, as already indicated, it was possible to verify how the former members of the plaintiff association acted under the conviction that said area of land belonged to them, which was reasonable if it was donated or received for the benefit of the locality. With regard to good faith, this is presumed given the absence of evidence to the contrary. However, it is possible to locate a missing essential prerequisite for positive prescription to be consolidated, namely just title (*justo título*). In the initial pleading of the lawsuit, the plaintiff focuses on indicating the existence of possession without justifying what the qualifying title was, which would make the rejection of the lawsuit without further proceedings necessary, by virtue of the entirety of the requirements being indispensable and not just some of them. We are not in the presence of a movable asset, where possession is equivalent to title; rather, we are facing scenarios where title was imperative in accordance with the legal system. Now then, in the public oral hearing, this was oriented in two directions: on the one hand, the existence of a donation regarding the land for the first tank on the part of the original owner of the property, and on the other, the sale of the land where the second asset sits, based on having granted four water services for which even the consumption was not charged, at least for several years. Regarding the first of the legal acts, we must remember that a donation – in accordance with articles one thousand three hundred ninety-three and following of the Civil Code – is a formal, written act by means of a public deed (article 1397 of the Civil Code), making it inappropriate to carry out the act verbally. Even accepting the possibility of the existence of the act insofar as the current owner is different from that one, it is not possible to impose it on a third party who acquired under the protection of public faith in the registry and where there is no guiding proof to think of knowledge of that supposed agreement. For its part, with respect to the possibility of the existence of a sale, the testimonial and documentary evidence points in that direction, which would open the possibility, especially since the purchase-sale contract is consensual in nature. However, all of the evidence is oriented from the vision of one of the parties (the plaintiff), so we have what the directors thought and recorded in supporting documents, but there is no clarity about what the other party (the defendant) thought, who may have been understanding that they were facing a mere civil tolerance. Even the terms that the parties used (as the witnesses narrated) could well lend themselves to interpretation in one sense or another. These conditions prevent the legal transaction from being considered proven. It should be noted in this regard that article three hundred seventeen of the Civil Procedure Code, applicable to the case in accordance with article two hundred twenty of the Contentious Administrative Procedure Code, obligates the party who affirms something to prove their statement, and this procedural obligation is not satisfied in the case, to the corresponding detriment of the plaintiff's interests. Having carried out this analysis against the claims, it is possible to see how the first principal claim sustains the existence of adverse possession (*usucapión*), which is not consolidated under the protection of current legal norms; while the first subsidiary claim requires a co-ownership regime to be consolidated between the plaintiff and defendant, which is also not consolidated due to the lack of just title. Thus, regarding both claims (first principal and subsidiary), we are in scenarios of lack of right, which must be declared. This Chamber cannot fail to warn that it is legally impossible to accept the existence of an agreement by virtue of which the defendants are not charged for the water supply, no matter how much goodwill might exist between the parties and especially from the aqueduct administrators, as one of the witnesses insinuated; so that if this situation continues to date, the association must proceed to rectify the situation. Finally, a claim is established regarding Mr. M, in his personal capacity and as representative of the defendant company, to refrain from disturbing the plaintiff's right of property. It is evident that the association lacks the right of property, in the terms already stated; however, it does present at least one of the attributes, namely the right of possession, which, as indicated, it has exercised for many years as owner, in a public, peaceful, and uninterrupted manner, a fact that is known to Mr. M in his dual capacity. It is clear that by virtue of the company Paraíso Tropical Inc S. A. holding the right of property over the property at the base of the conflict, it can reclaim that attribute (possession) for itself at the moment it deems appropriate, but the de facto route is not the legal mechanism for such purpose. Having allowed that right to be consolidated over time, it is by way of an action that the corresponding reivindicatory process can be heard, with the corresponding recognition of any improvements that may have occurred. Under these conditions and regarding the right of possession, it is indeed in accordance with the law to grant the invoked claim, being declared with merit with the indicated clarification in accordance with article one hundred twenty-two of the Contentious Administrative Procedure Code.\n\n**IX.- CONSIDERATIONS FOR A Y A:** The Court cannot fail to point out that it is a source of deep concern within this Chamber that, having A y A the legal powers and competencies to establish the necessary easements (*servidumbres*) and legal expropriations, it has allowed the passage of so many years without taking the necessary measures. For such purposes, it is irrelevant from where the necessary fund should be sourced to compensate both the company that is the defendant today and the other owners of the adjacent properties through which the aqueduct passes. What is important in the sub júdice is how the absence of registration within the public patrimony of the properties or parts thereof and corresponding easements through which the aqueduct runs represents a risk to the public water supply service in Puente Salas that cannot be accepted. We do not even want to consider if any of the persons dwelling in these tanks had contaminated the water, the potential impacts on public health that could have occurred. Nor is it understandable, as was proven in this case, that the association tried to communicate with the property owner and that the owner did not expressly grant entry, this being the reason for the dispute before us; in short, that the possibility of providing care or maintenance to an aqueduct depends on whether an individual agrees to grant entry or not is simply a situation that has no legal sense whatsoever. Regardless of the delegation made, the public entity is responsible to Costa Rican society for the water supply, so it is incomprehensible to us how the necessary measures have not been adopted. Furthermore, the ASADA is nothing more than a mere administrator, by virtue of the fact that when required, it must hand over the aqueduct with all the assets that comprise it, which, in their public domain character (*carácter demanial*), are property of the nation under the administration of A y A. Even accepting the budgetary limitations that afflict the entire public apparatus, we are not talking about exaggerated amounts that could generate true imbalances, especially when ultimately, through the tariff, these amounts can be recovered in reasonable times. This jurisdictional body does not have the powers to order conduct against an intervening party, which has not been brought forth by any of the parties explicitly or implicitly, so it must limit itself to making a respectful but vehement call for urgent action to establish the easements and expropriations that are necessary, not only with respect to the defendant company but also regarding other properties in the area.\n\n**X.- ON THE DEFENSES.** As indicated, the defendants raised the defense of lack of right, which indeed must be upheld regarding the claims brought against the company T. S. A., as there is no legal norm that enables them in the terms proposed; as a consequence of the foregoing, the lawsuit must be declared without merit in what corresponds to that procedural legal relationship. For its part, regarding the lawsuit brought against Mr. M in his personal capacity and as representative of said company, concerning disturbing acts (*actos perturbatorios*), the indicated defense is inappropriate. As noted in the list of proven facts, it is clear that the plaintiff association has carried out acts of possession for many years, activity deployed in a public, peaceful, and lawful manner, which determines that if Mr. M, as representative of the company, intended to destroy said right, in his capacity as owner of the property, the de facto route was not the legal mechanism to execute it. Regarding that claim, the defense must be declared without merit, and on the contrary, the claim must be granted, ordering Mr. M not to disturb the possession exercised by his counterpart; he must resort to the legal mechanisms in case he wishes to assert the right that corresponds to his represented party with respect to that held by the ASADA.¨\n\nIn that condition, it has maintained under its exclusive possession and enjoyment for more than forty years, the land on which are located constructed two water collection and distribution tanks, located in the sector known as La Amada de […], located within the property of the Heredia registry with Real Property Folio number […], described in cadastral map […], and said property appears registered in the name of the corporation T. S. A., represented by Mr. Nombre317, both defendants in this proceeding. It shows how the association has administered and possessed the area under dispute. In the year two thousand two, an agreement was formalized between the association and the governing public entity for the administration of the aqueduct, noting that the tanks are absolutely necessary for the water supply in the area. That as a result of time, the tanks require urgent repairs; furthermore, recently the area is occupied –especially at night– by drug addicts and indigents, to the extreme of having found people cooking and butchering animals on top of the tanks. Without prejudice to the debris and garbage that endanger the public service. All these situations motivated the ASADA to carry out security works, consisting of placing a perimeter mesh, with razor wire on the top, to prevent the entry of unauthorized persons. To coordinate the work, an attempt was made to speak with Mr. Nombre317 through various mechanisms, but none were heeded. At the start of the works, the representative of the defendant corporation prevented them from being carried out, which were concluded by virtue of a precautionary measure ordered in the case. In the oral trial, the arguments were expanded to state that the previous owner of the corporation represented by Mr. Nombre317 had donated the land occupied by the first tank and that the second tank was built by virtue of an agreement between the parties, according to which two water supplies were given to the aforementioned gentleman in exchange for it. Thus, in addition to possession, the existence of two titles transferring ownership is maintained, namely donation and sale. The public domain nature of the property in question is also argued. The defendants acknowledge the existence of the tanks, but with the caveat that the defendant corporation is the complete owner of the property, and the only thing linking them is a verbal agreement of mere tolerance, which excludes any scenario of adverse possession (prescripción adquisitiva). It shows how the ASADA's agreement with the A and Nombre529 only dates back eight years, which prevents the fulfillment of the usucapio period. It acknowledges how its cadastral map from the mid-nineties recognizes the existence of only one tank but within the aforementioned verbal agreement. It shows that Mr. Nombre317 is only the representative of the defendant corporation and not its owner. As for the plaintiff, it is maintained that it cannot subrogate the rights and actions of past groups, especially to suppress the property right enshrined in numeral forty-five of the fundamental charter, which can only disappear in expressly indicated scenarios, which are not present in this case. They acknowledge the existence of deterioration, but note that they have not impeded the necessary activities for the maintenance of the infrastructure, showing that it is false that the place lacked a fence, in addition to a saran shade cloth cover with wood covering and steel cables. Regarding the presence of drug addicts and vagrants, it shows that there is no record of anyone being arrested in those conditions, but it does accept that the construction of the works was prevented because they lacked any permit; but it acknowledges how the mesh was constructed by virtue of the indicated precautionary measure.II. REGARDING THE DEFENDANT'S CLAIM FOR DAMAGES: As is visible in the defendant's answer, the defendants request that their counterpart be ordered to pay the damages caused by reason of the precautionary measure ordered in this proceeding. In this regard, this Chamber must note that the answer to the complaint is not a mechanism for asserting claims against the counterpart, except for the corresponding payment of procedural costs. Thus, a claim for damages should have been asserted in a counterclaim (contrademanda), which was not filed in this case; without prejudice –of course– to the possibility of filing it in a separate proceeding, as a legitimate exercise of the right of action which is reserved for said party within the legal term. Therefore, this claim cannot be the subject of any decision on the merits, as it is manifestly improper through the avenue attempted, and the current defendants must resort to the corresponding ordinary proceeding to enforce their rights, if they deem it convenient to their interests. As a consequence of the foregoing, this claim is declared inadmissible, through the avenue presented.
III. PROVEN FACTS: Of importance for the issuance of this judgment, the following relevant facts are established: 1) In the year nineteen seventy-four, the Board of […], with the support of civilian forces, built a water storage tank on the La Amada property with the authorization of the owner at that time, Mr. Nombre594, to supply the community's water needs (see testimony of Mr. Nombre110945 given in the oral and public trial, which agrees in relevant part with the confession of Mr. Nombre317 and the testimony of Mr. Nombre5307 in the corresponding parts). 2) That said work was erected where it was technically appropriate, due to the conditions of elevation and access to the community (see testimony of Mr. Nombre53719 given in the oral and public trial). 3) That at the time of the tank's construction, there was an intention to transfer said property (the area where the tank was) to the community, but said legal act was not finalized (see testimony of Mr. Nombre110943). 4) That Paraíso Tropical INC S. A is the owner of the property with Real Property Folio number […] of the Heredia registry since the end of nineteen ninety-four or the beginning of nineteen ninety-five, which is a part of the former La Amada property, being where the rural aqueduct works subject to the conflict are located (uncontroverted fact and see confession of Mr. Nombre317 given in the oral and public trial). 5) That by nineteen ninety-four or the beginning of nineteen ninety-five, Mr. Nombre317 authorized the construction of a second tank for the benefit of the aqueduct, which at that time was administered by a Community Committee (see confession of Mr. Nombre317 given in the oral and public trial). 6) In said work, there was community and governmental effort, without contribution from the defendants (see confession of Mr. Nombre317, as well as that of Messrs. Nombre110944 ). 7) That by reason of the collaboration regarding the land on which the second tank was built, the community provided the defendants with four water services (see testimonies of Messrs. Nombre5307 and Nombre53719 given in the oral and public trial and page 13 of the Community Committee's minute book). 8) That the second tank was built in the technically ideal location, not only because it is connected to the first, but also due to elevation issues and direct connection with the already installed water system (see testimonies of Messrs. Nombre110944 ). 9) On October twenty-eighth, nineteen ninety-nine, the Instituto Costarricense de Acueductos y Alcantarillados entered into an administration agreement for the rural aqueduct with the Asociación de Desarrollo Comunal de Puente Salas, regarding the actions of the Administrative Committee of the rural aqueduct of that community (see pages 26 to 28 of the precautionary measure file). 10) That without being able to specify an exact date, but before the year two thousand two, the plaintiff association was formed, from the same community group that at one time formed the Water Committee that was part of the Community Development Association (see testimonies of Messrs. Nombre5307 and Nombre53719 given in the oral and public trial). 11) On June twentieth, two thousand two, the Instituto Costarricense de Acueductos y Alcantarillados entered into an administration agreement with the […] regarding the locality's aqueduct (see pages 19 to 25 of the precautionary measure file). 12) Before the year two thousand ten, there had been coordinated activity between the plaintiffs and defendants for the benefit of the aqueduct in question (see testimonies of Messrs. Nombre5832 and Nombre147 given in the oral and public trial). 13) The plaintiff (whether as the association or through the Committee) has exercised possession continuously, publicly, and peacefully; in addition to being known and tolerated by the defendants for more than ten years (see testimonies of Messrs. Nombre5307 and Nombre53719 given in the oral and public trial). 14) That in recent months, condoms, clothing, broken lids, cut padlocks, people cooking, among other activities that endanger the aqueduct, carried out by vagrants and drug addicts from the area, have been found at the tanks (see testimony of Mr. Nombre147 given in the oral and public trial, pages 18, 55 to 63 and 89, 91 to 94 of the precautionary measure file). 15) If the tanks were to become contaminated, it would affect the entire aqueduct, since the community is supplied from there (see testimony of Mr. Nombre147 given in the oral and public trial). 16) The ASADA requested authorization from the defendants to place a protective mesh around the tanks, but no agreement was reached in that regard (uncontroverted fact as visible on pages 3 and 60 of the judicial file) . 17) The ASADA decided to carry out the work despite the lack of authorization from the defendants (uncontroverted fact) . 18) That when proceeding to place a protective mesh for the tanks, Mr. Nombre317 prevented the work from being carried out (see testimony of Mr. Nombre147 given in the oral and public trial; as well as confession of Mr. Nombre317, and pages 30 to 32 of the precautionary measure file). 19) That the protective mesh was placed by virtue of the precautionary measure in this proceeding (uncontroverted fact between the parties and it can be inferred from pages 33 to 38 of the precautionary measure file). 20) The placement of the mesh negatively affected the saran shade cloth owned by the defendant corporation, since maintenance cannot be performed on three anchor points of the saran shade cloth owned by it (see testimony of Mr. Nombre5832 given in the oral and public trial).
IV. REGARDING UNPROVEN FACTS: The following are considered as such: a) That the defendant corporation has any knowledge of the desire of the previous owner of the property subject to the conflict, that would bind it to carry out said act of disposition as he had offered in his time (the court record). b) That the commitment between the plaintiff association and the defendant corporation, arising from the construction of the second tank, implicitly carries a transfer of ownership in the area where it was built (the court record). c) That the plaintiff Association presents a valid enabling title (justo título) to consolidate an adverse possession (prescripción adquisitiva) in its favor (the court record). d) That the plaintiff maintains an exception to the collection of the water supply charge as payment for the land where the tanks are located (the court record).
V.- REGARDING THE RIGHT TO WATER AND PUBLIC DOMAIN: The Political Constitution, in article one hundred twenty-one, subsection fourteen, states: \"(...) In addition to the other powers conferred by this Constitution, it corresponds exclusively to the Legislative Assembly: (...) 14) To decree the alienation or application to public uses of the Nation's own property (...).\" This constitutional provision has been developed in the Civil Code, in articles two hundred sixty-one to two hundred sixty-three; the first of them indicates: \"Public things are those that, by law, are permanently destined for any service of general utility, and those that everyone can take advantage of by being delivered to public use. All other things are private and subject to private property, even if they belong to the State or the Municipalities, who in such case, as civil persons, do not differ from any other person.\" For its part, the following provision adds: \"Public things are outside of commerce; and they may not enter into it, as long as it is not legally provided so, separating them from the public use to which they were destined.\" Thus, public domain is understood as the set of assets subject to a special legal regime distinct from that governing private domain, which, in addition to belonging to or being under the administration of public legal entities, are affected or destined for purposes of public utility and which manifests in the direct or indirect use that any person may make of them. According to the aforementioned regulations, the State possesses both public and private domain assets; public assets are those to which a law gives a destiny for public or general use, they are called \"public domain assets (demaniales)\" and are inalienable, imprescriptible, unattachable, and cannot be acquired by adverse possession (indenunciables). The logic of public assets is that their dominion precedes the State itself, such that they belong to The Nation as a requirement for coexistence in society; the State merely administers them, which as a matter of principle prevents them from leaving the public sphere. That is, they are affected by their own nature and vocation (See Constitutional Chamber, vote 2306-91 of 2:45 p.m. on November 6, 1991). It is said that they belong to The Nation , so the State is limited to their safeguarding and protection, without in principle being able to dispose of them. These assets are outside the commerce of men and consequently have a legal nature and regime different from private assets –which are governed by the right of property in the terms of article forty-five of the Political Constitution–, insofar as, by express will of the legislator or by their very essence, they are affected to a special destiny of serving the community, that is, the public interest, and because of that, they cannot be the object of private property, for which reason they cannot belong individually to private parties, nor to the State, in a strict sense, since the latter is limited to their administration and guardianship. Thus, what defines the legal nature of public domain assets is their destiny, insofar as they are affected and at the service of public use, as has been recognized by doctrine on the matter, thus, Nombre33033, Nombre36478 ., in his work Tratado de Derecho Administrativo (Volume V. Abeledo-Perrot. Buenos Aires. 1992., p. 25), considered: \"For a good or thing to be considered a dependency of the public domain, and to be submitted to the pertinent regime, it is necessary that said good or thing be affected to 'public use,' direct or indirect, it being necessary to treat, in this 'latter' case, things directly affected -as 'final goods' or 'use goods'- to common utility or comfort, excluding from the public domain nature the State's assets that are of a merely instrumental character.\" On the other hand, the State's private assets are regulated by private law with elements of public law. These assets, if they are within the commerce of men; can be transferred, appropriated, and are not imprescriptible; therefore, they are susceptible to usucapio for the benefit of private parties, in accordance with the already indicated article two hundred sixty-one. Note that the emphasis of the differentiation is given in relation to the asset's destiny, that is, to the fact of being affected to a common use or to the service of the common good (see Constitutional Chamber in judgment number 2301-91, of November 6, 1991, nineteen ninety-one, and 2000-06903 of 3:48 p.m. on August 8, 2000). As already mentioned, due to their special legal nature, they present the following attributes: they are imprescriptible, which means that with the passage of time, the right of property over them cannot be acquired, not even mere possession, that is, they cannot be acquired through adverse possession (usucapión), just as they cannot be lost by prescription; for which reason the use permits that the Administration grants over them always have a precarious character, which means they can be revoked for reasons of opportunity or convenience at any time by the Administration –in the terms provided in articles one hundred fifty-four and one hundred fifty-five of the General Law of Public Administration–; and the same concessions granted over them for their exploitation can be canceled, through a procedure for that purpose; they are unattachable, which means they cannot be the object of any lien or attachment, neither by private parties, nor by the Administration; and they are inalienable, which translates into the condition that they are outside the commerce of men; hence they cannot be alienated, sold, or acquired, neither for free nor for value, neither by private parties, nor by the State, so they are withdrawn from the commerce of men and subject to a special and reinforced legal regime. Moreover, their use and exploitation are subject to police power, insofar as, being assets that cannot be the object of possession, much less of property, their use and exploitation is possible only through duly authorized acts, whether by concession or use permit, granted by the competent authority; and to constant control on the part of the Public Administration. A public asset can be natural or artificial, depending on whether they are assets declared public by the legislator considering them in the state in which nature presents or offers them (a river, for example), or assets declared public by the legislator but whose creation or existence depends on a human act (construction of a street or a public park, for example). The act of dedicating to public use (afectación) is the act or manifestation of will of the public power, by virtue of which the thing is incorporated into the use and enjoyment of the community and can be effected by law or by administrative act. Doctrine makes the distinction between “assignment of public character” to an asset and the “act of dedicating to public use (afectación)” of that asset to the public domain. The assignment of public character means establishing that said determined asset will have public domain quality; thus, for example, the general legal norm would say that all public roads are integral parts or dependencies of the public domain and that means that the current ones and those that come to be built are. In contrast, the act of dedicating to public use (afectación) means that the asset declared public domain is effectively incorporated into public use and this has to do with the acceptance and receipt of public works when they are built by administration or by the conclusion of the works and their official receipt, when a private party carries them out (construction of an urbanization or subdivision (fraccionamiento), for example).- This is why it is said that the act of dedicating to public use (afectación) can be declared by law generically, or by an administrative act, which, necessarily, must conform to the legal norm that serves as its reference (principle of legality). As a consequence of what was stated in the previous point, it is manifest that the public domain regime exists per se. Its existence and publicity occur independently of the Registry, without it being possible for the registered titleholder to allege ignorance as a means to distort it and counteract the act of dedicating to public use (afectación). The principles of inalienability and imprescriptibility that characterize the public domain prevent the figure of a protected third-party registrant (tercero registral) from being wielded against it to consolidate private property illicitly removed from that regime.\n\nThe public domain (demanio) has legal publicity and, in many cases, natural publicity. The foregoing goes hand in hand with the principle of initial registration (inmatriculación) of immovable properties comprising the public domain, which has material publicity and not necessarily formal or registry-based publicity. In the face of the public domain, private holdings suffer from a weakened value, however prolonged they may be over time and even if they appear to be protected by entries in the Property Registry. The condition of being a public domain asset and for public use affects third parties, even if such a quality does not appear from the Property Registry. These are assets which, by their nature, do not need registry inscription (Voto 019-2009-SVII, Administrative Litigation Court, Seventh Section). Note that this principle, as an exception to the principle of registry publicity, is based on the fact that public domain assets enjoy material publicity and therefore their registry publicity is not necessary. Additionally, there is the figure of \"declassification (desafectación),\" which is \"the legal situation by which an asset ceases to belong to the public domain (...) assets that are declassified become, in principle, patrimonial assets of the holder Administration, which, where appropriate, may dispose of them (...)\" (voto 035-2009-SVII, Administrative Litigation Court); a situation which, in sound logic, could only occur for those that have been declared as such by law, since for those whose condition is intrinsic, such a possibility would be barred. Before directing the argumentation more specifically to the point at hand, it is clear that when the public domain asset has been created by a private individual or represents an especially intense burden that the individual is not obliged to bear, this character does not inhibit the Administration's obligation to assume responsibility, in order to allow for a balance in public burdens. The contrary would entail unjust enrichment, which has no support within the national legal order. In any case, this subject will be taken up again in the following recitals (considerandos). Now, regarding water, the Constitutional Chamber, in voto n.° 5606-06, recognized its condition as a human right when it stated:\n\n\"VII.- Access to drinking water as a human right. In addition to the above, and perhaps the most relevant aspect of this issue, is the nature and function of water for human life. It is not necessary to detail here an explanation of the evident and notorious reality that without water there can be no life, nor quality of life, and that therefore, with or without a nationalization law, by its very essence, this issue is not and cannot be a territorial or local issue. The Chamber itself, in its constitutional jurisprudence, has stated that access to drinking water is a fundamental human right, insofar as it forms an integral part of the content of the right to health and to life. (CONSTITUTIONAL CHAMBER, judgments numbers 534-96, 2728-91, 3891-93, 1108-96, 2002-06157 2002-10776; 2004-1923). This same line has been maintained in judgments 2003-04654 and 2004-07779, which, insofar as relevant, state: // 'V.- // The Chamber recognizes, as part of Constitutional Law, a fundamental right to drinking water, derived from the fundamental rights to health, life, a healthy environment, food, and decent housing, among others, as has also been recognized in international instruments on Human Rights applicable in Costa Rica: thus, it appears explicitly in the Convention on the Elimination of All Forms of Discrimination against Women (art. 14) and the Convention on the Rights of the Child (art. 24); furthermore, it is enunciated in the International Conference on Population and Development in Cairo (principle 2), and is declared in numerous others of International Humanitarian Law. In our Inter-American System of Human Rights, the country is particularly obligated in this matter by the provisions of Article 11.1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador” of 1988), which provides that: “Article 11. Right to a Healthy Environment 1.- Everyone shall have the right to live in a healthy environment and to have access to basic public services”. The lack of resources does not justify the non-fulfillment of the duties of public administrations in the provision of this basic service. (CONSTITUTIONAL CHAMBER, resolutions 2003-04654 and 2004-007779). // For its part, as is well recognized by both the Attorney General's Office (Procuraduría) and the representative of AyA in their reports, in the international field, the recognition of water as a human right and as a necessary precondition for all our human rights is also widespread. It is argued that without equitable access to a minimum requirement of drinking water, other established rights would be unattainable—such as the right to an adequate standard of living for health and well-being, as well as other civil and political rights. In November 2002, the United Nations Committee on Economic, Social and Cultural Rights affirmed that access to adequate quantities of clean water for domestic and personal use is a fundamental human right of every person. Also, in General Comment No. 15 on the fulfillment of Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, the Committee noted that 'the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.' It is also emphasized that the Member States of the International Covenant have the duty to progressively fulfill, without any discrimination, the right to water, which entitles everyone to enjoy sufficient, physically accessible, safe, and acceptable water for domestic and personal use. // For its part, several international conferences have been held, among which the United Nations Water Conference held in Mar del Plata in 1977 stands out, which recognized that all peoples have the right to access to drinking water to satisfy their basic needs. Also, the Declaration on the Right to Development, adopted by the UN General Assembly in 1986, includes a commitment by States to ensure equality of opportunity for all to enjoy basic resources. // The concept of satisfying basic water needs was further strengthened during the 1992 Earth Summit in Rio de Janeiro. In Agenda 21, governments agreed that \\\"in developing and using water resources, priority must be given to satisfying basic needs and conserving ecosystems.\\\" Similarly, in the Implementation Plan adopted at the Johannesburg Summit in 2002, governments committed to \\\"employ all policy instruments, including regulation, monitoring..... and cost recovery of water services,\\\" without the cost recovery objectives becoming a barrier to poor people's access to clean water. Likewise, there are dozens of international instruments that directly and indirectly deal with water as a human right of all persons and peoples, such that it is not only an issue that by its nature tends towards nationalization, but also towards the internationalization of its use and exploitation.\"\n\nSee how, beyond the regulatory support, the public domain character of water is a necessary consequence of the imperative requirement it presents for human life, which entails that the internal regulatory north is based on Article twenty-one of the Constitution. At the infra-constitutional level, its public domain status is initially regulated in the Water Law (Ley de Aguas), number 276, of August twenty-sixth, nineteen hundred and forty-two:\n\n\"Article 1º.- The following are waters of the public domain: // I.- Those of the territorial seas in the extension and terms established by international law; // II.- Those of the lagoons (lagunas) and estuaries (esteros) of the beaches that communicate permanently or intermittently with the sea; // III.- Those of the interior lakes of natural formation that are directly linked to constant currents; // IV.- Those of the rivers and their direct or indirect tributaries, streams or springs (manantiales) from the point where the first permanent waters spring forth until their mouth in the sea or lakes, lagoons, or estuaries; // V.- Those of the constant or intermittent currents whose channel, in all or part of its extension, serves as a boundary to the national territory, the domain of such currents being subject to what has been established in international treaties concluded with neighboring countries and, in the absence thereof, or regarding unforeseen matters, to the provisions of this law; // VI.- Those of any current that directly or indirectly flows into those listed in fraction V; // VII.- Those extracted from mines, with the limitation indicated in Article 10; // VIII.- Those of the springs that arise on beaches, maritime zones, channels, basins or banks of national property and, in general, all those that originate on public domain lands; // IX.- The underground waters whose extraction (alumbramiento) is not done by means of wells; and // X.- The rainwater that flows through ravines or watercourses whose channels are of the public domain.\n\nArticle 2º.- The waters listed in the previous article are national property, and the domain over them is not lost nor has been lost when, by the execution of artificial works or prior exploitation, the natural characteristics are or have been altered. Excepted are the waters that are exploited by virtue of contracts granted by the State, which shall be subject to the conditions authorized in the respective concession (concesión).\"\n\nLaw 258 of August eighteenth, nineteen hundred and forty-one, Law of the National Electricity Service (Ley del Servicio Nacional de Electricidad), which stated:\n\n\"Article 1: All waters of the Republic, which are not private domain in accordance with the current Water Law, … are inalienable and of the domain, government, and vigilance of the State\"\n\nWhat is said is supported by the provisions of Article four of the Mining Code (Código de Minería) (Law 6797 of October 4, 1982) which states:\n\n\"Article 4.- …. the underground and surface waters, are reserved for the State and may only be exploited by the latter, by private individuals in accordance with the law, or through a special concession granted for a limited time and subject to the conditions and stipulations established by the Legislative Assembly. The natural resources existing in the soil, subsoil, and waters of the seas adjacent to the national territory, within an extension of up to two hundred miles from the low-water line, along the coasts, may only be exploited in accordance with the provisions of subsection 14) (last paragraph) of Article 121 of the Political Constitution.\"\n\nVI.- ON THE ADMINISTRATION OF WATER RESOURCES: The repealed Law number 258 of August eighteenth, nineteen hundred and forty-one, created the National Electricity Service (Servicio Nacional de Electricidad) to exercise the domain, exploitation, utilization, government, and vigilance of several resources, including all waters. Empowering it in numeral six to grant concessions or water rights, a norm that is consistent with the already mentioned Water Law which in Article seventeen establishes that \"Authorization is necessary for the exploitation of public waters, especially those dedicated to public or private interest enterprises. Such authorization shall be granted by the National Electricity Service in the manner prescribed in this Law..\", which is reaffirmed by Article seventy of Law sixteen of October thirtieth, nineteen hundred and forty-one. For its part, Law No. 2726 of April fourteenth, nineteen hundred and sixty-one and its amendments -especially those of Law No. 5915 of July 12, 1976-, \"Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers (Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados)\" indicates:\n\n\"Article 1.- For the purpose of directing, setting policies, establishing and applying norms, carrying out and promoting the planning, financing, and development, and resolving everything related to the supply of drinking water and the collection and evacuation of sewage (aguas negras) and liquid industrial waste, as well as the normative aspect of storm drainage systems in urban areas, for the entire national territory, the Costa Rican Institute of Aqueducts and Sewers is created as an autonomous institution of the State.\" (As amended by Law No. 5915 of July 12, 1976, Article 1º)\n\nAs can be extracted from the articles transcribed above and from a comprehensive reading of the respective laws, the S.N.E. had the purpose in this field of representing and exercising on behalf of the State the domain of the country's water resources, with the aim of ensuring their preservation and utilization in a hierarchical manner according to the importance of needs. For its part, AyA has the purpose of planning, building, and operating the necessary infrastructure to supply drinking water, and of supervising the planning, construction, and operation of the same carried out by private individuals for the indicated purpose. As observed, representing the State in concession contracts was one of the mechanisms that allowed the S.N.E. to fulfill its legal purpose (as will be seen, this competence was subsequently transferred). Established expressly in its constitutive law as well as in the Water Law. For those years, it was clear that the granting of the connection was its own responsibility, which included the corresponding contract; whereas AyA has competence to plan, design, build, operate, and maintain water supply works for a population, as well as the adaptation to its recommendations of the indicated works when carried out by private individuals -Law No. 16 of October 30, 1941, No. 809 of November 02, 1949, and the General Drinking Water Law (Ley General de Agua Potable), among others- a function that has never entailed that of granting concessions for the exploitation of public domain waters, even when these are destined, as in the case at hand, to provide drinking water to a defined population. Based on the said norms, especially the AyA Law (as well as Articles 266 and 276 of the General Health Law (Ley general de salud), Law No. 5395 of October 23, 1973.), it is clear that, with the exception of the latter, only the municipalities, the Public Services Company of Heredia (Empresa de Servicios Públicos de Heredia), Community Development Associations (Asociaciones de Desarrollo Comunal) (through the Rural Aqueduct Committees), or other local organizations with which AyA enters into an agreement for this purpose, there are no other bodies authorized to administer public aqueducts. Thus, a private individual is not authorized by the legal system to provide the public service of population supply of drinking water and sanitary sewerage, with the exception of the Administrative Associations for Aqueducts and Sewers (Asociaciones Administradoras de Acueductos y Alcantarillados, ASADAS) as managers of the public service. Therefore, the Ministry of Environment, Energy, and Telecommunications (Ministerio del Ambiente, Energía y Telecomunicaciones) (which assumed the functions of granting water concessions upon the transformation of the SNE into ARESEP), prior to granting the concession, would be under the legal obligation to verify that the private individual has the prior authorization of AyA and the Ministry of Health for the private company to provide the drinking water service to the population, as well as the sanitary sewerage system. In the case of the ASADAS, which act by delegation of AyA, their legal nature arises from the Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers, in which the latter was empowered to delegate the administration, operation, and maintenance of the aqueduct and sewer systems—which were entrusted to it by the legislator—to duly formed groups for this purpose, as deduced from Article two, subsection g) of the cited law, by expressly stating: \"The institution is empowered to agree with local organizations on the administration of such services or to administer them through administrative boards of mixed integration between the Institute and the respective communities, whenever this is suitable for the better provision of the services and in accordance with the respective regulations.\" Based on the norm transcribed above, the Executive Branch issued several regulations, with the Regulation of Administrative Associations for Communal Aqueduct and Sewer Systems, (Decree No. 32529 of February 2, 2005) being the current norm, which latter regulation provides in its Article 3:\n\n'Article 3. AyA, through a signed agreement to this effect, prior to a favorable agreement by its Board of Directors, may delegate the administration, operation, maintenance, and development of communal aqueduct and/or sewer systems, in favor of associations duly constituted and registered in accordance with the Associations Law No. 218 of August 08, 1939, its amendments and respective Regulation, Executive Decree No. 29496-J, published in La Gaceta No. 95 of May 21, 2001. ..\"\n\nFrom the transcribed norm, it follows that the Administrative Associations for Aqueducts and Sewers constitute legal entities of a private nature, given that their creation must be governed by the Associations Law. For this reason, the constitution of said associations must be carried out with absolute respect for the right of free association, and consequently, they are entities of private law and not public law, notwithstanding that their operation is subject to the requirements and requisites demanded by the regulations that govern them, since they were entrusted with the exercise of a special activity that, through the figure of public service management, sees them involved in the provision of public services for the benefit of a community. In this regard, the Constitutional Chamber (voto 3041-97 of 4:00 p.m. on June 3, 1997) has highlighted that the delegation of this responsibility to administer the aqueduct and/or sanitary sewer system implies a clear \"concession\" of public service management, which, from a technical standpoint of administrative law, is not entirely correct, in the understanding that a concession (except for cases granted by the Legislative Assembly) presupposes a competitive bidding procedure, which does not occur with respect to ASADAS. Thus, what would be possible to maintain is that these associations present an authorization in the management of the service, insofar as they administer that public service by agreement with the Costa Rican Institute of Aqueducts and Sewers, they find themselves, de jure, in a position of power regarding the users, and they exercise, for this purpose, a series of public competencies and functions (Constitutional Chamber, Voto No. 2006-01651 of sixteen hundred hours and thirty-nine minutes on February fourteenth, two thousand six). Regarding the regulatory patrimonial regime of the assets destined for the aqueduct system, numeral 18 of Law 2726 cited above expresses that all properties and installations of State bodies destined for the provision of services related to the catchment, treatment, and distribution of drinking water are national patrimony. Also, Regulation 32529 expresses that all movable and immovable assets used by the ASADAS in the administration, operation, maintenance, and development of the aqueduct and sewer systems are considered public domain, and they cannot be disposed of (Article 18 and 21 subsection 10), and in case of suppression of the delegation agreement or dissolution of the ASADAS (numeral 21 subsection 13), they shall be delivered to AyA, which shall inventory, register, and inscribe them in its name, assuming their ownership to destine them for that public service (Article 22 subsection 11). For its part, the Water Law, number 276 of August twenty-seventh, nineteen hundred and forty-one, in its Articles ninety-nine and following, expresses that to take advantage of public waters that pass through private estates, the imposition of a forced easement (servidumbre) of aqueduct shall be used, upon prior compensation. For its part, on this important topic, the Constitutional Chamber has established, in voto 5606-2006 of fifteen hours and twenty-one minutes on April twenty-sixth, two thousand six, that in the case of water, the services had originally been given to the Municipalities by the General Drinking Water Law, number 1634 of September eighteenth, nineteen hundred and fifty-three, and that subsequently, with the creation of the Institute, that function passed to the Costa Rican Institute of Aqueducts and Sewers, which converts the water situation into a national problem and not a local one.\n\nVII.- ON ACQUISITIVE PRESCRIPTION (PRESCRIPCIÓN ADQUISITVA) AND DONATION: Prescription, in the dual phase with which it is traditionally presented, is an institution of the juridical order that stabilizes legal relations, rendering them unassailable with the passage of time. The basis of prescription, as well as the true basis of any legal institution, is found in a problem of life, a problem of interests that poses a demand for the Law to which it must respond. In the present case, we find a fact: the inertia of the active subject of a legal relationship; such inertia is projected onto the plane of interests of a given problem. This can be schematized in the following terms: with the passage of time, together with the mentioned inertia, a growing situation of uncertainty develops (which, as such, carries a negative axiological burden for the Law, given that certainty is one of its pillars). Because there is an interest in certainty, that is, because certainty is a juridical value of our system, the solution to the problem must be sought in function of it. The means to obtain it is the establishment of a time limit beyond which the uncertain interest becomes an irrelevant interest, meaning that it is in the interest of the community that a temporal limit be established with which the situation of uncertainty ends. In all cases, prescription functions as a means of order, tranquility, and social security, because it prevents lawsuits and controversies of difficult solution from arising after the time established by law. It is said that prescription is of a social order, a presumption of abandonment or renunciation, which safeguards the certainty of legal situations, which responds to the social demand for certainty and to public order. It seeks social peace, aims to give stability and firmness to business, to dispel the uncertainties of the past, and to put an end to the indecision of rights, which, if without term, would be a cause of constant unease and controversy. There are two distinct classes of prescription: the first is called positive, acquisitive, or usucapion (usucapión); and the other negative, extinctive, or liberatory.\n\nAlthough both modes of prescription differ in substance, and for that reason should be treated separately in their respective places—positive prescription among the modes of acquiring property and negative prescription in the part of obligations concerning how they terminate or are extinguished—it has nonetheless always been customary to study both forms together, since both are conditioned by the passage of time, given that one and the other are based on analogous considerations of general interest. Usucapion or acquisitive prescription of ownership is a legal institution that consists of recognizing as the owner of a real property that person who had it, using it as if he were the true owner, for the period indicated by the law itself. Positive prescription or usucapion has a double effect: extinctive (by producing the loss of ownership by the original owner) and constitutive (by giving rise to a new property right for the usucapient); thus, the substantial difference with respect to negative prescription lies in the fact that the latter only has a suppressive effect, whereas positive prescription proves to have two effects.\n\nThe origin of the institution is based on Roman law and is founded on the exercise of possession by a third party that was neglected by its titleholder. In accordance with Article eight hundred fifty-three of the Civil Code, the requirements of the figure are the existence of at least three elements: a translative title of ownership, good faith, and possession. The following canon clarifies: “*ARTÍCULO 854.-* *Whoever alleges prescription is obliged to prove the just title, except in the case of easements (servidumbres), the right to possess, or chattels, in which cases, the fact of possession presumes the title, until the contrary is proven.*” Case law, clarifying the rule, has indicated as requirements that a thing be capable, that is, susceptible to private property; located within commerce; just title; good faith; possession and the passage of time, the possession being exercised in the capacity of owner, continuously, publicly, peacefully, and for ten years or more. If even one of these is missing, acquisitive prescription does not operate. Regarding the first of the requirements, the susceptibility of being acquired, it must be remembered that public domain assets are outside the commerce of men and cannot be acquired by the passage of time. With respect to good faith, Article two hundred eighty-five of the Civil Code establishes that: “*in all cases in which the law requires possession in good faith, a possessor in good faith is considered to be one who, at the act of taking possession, believed he had the right to possess. If there was sufficient reason for him to doubt that such a right corresponded to him, he should not be considered a possessor in good faith; but if the possession was in good faith at its beginning, it does not lose that character solely because the possessor later doubts the legitimacy of his right.*” The consequence is that good faith ceases at the moment of acquiring the certainty that one possesses improperly, and it also ceases from the notification of the lawsuit in which another claims the right to possess. Regarding the just title, Article eight hundred fifty-four of the same normative body establishes that “*Whoever alleges prescription is obliged to prove the just title, except in the case of easements (servidumbres), the right to possess, or chattels, in which cases, the fact of possession presumes the title, until the contrary is proven.*”\n\nOn the subject of just title, the First Chamber of the Supreme Court of Justice has had varying positions regarding the necessity of this requirement to be able to usucapt, which led to the issuance of vote 92-91 in agrarian matters, in which it was stated, in what is relevant: “*For this case, the title is confused with the possession, insofar as the title is the possession itself. Its character as \\\"just\\\" lies in having the character of being licit and, for the case ad usucapionem, that is, the possession meeting the requirements of being continuous, public, and peaceful, with the person who holds it behaving as its true titleholder...\\\"* Apart from this position, specific to agrarian law, which is not the topic that concerns us at this moment, the highest civil court has repeatedly and with respect to civil acquisitive prescription, stated:\n\n“ *III.- In the first reproach, it is alleged, tacitly, the indirect violation due to erroneous assessment of the evidence of numeral 854 of the Civil Code, from which the appellant seeks to derive that the absence of a just title can be substituted by the effective possession of the good to be usucapted. That legal precept establishes: “Whoever alleges prescription is obliged to prove the just title, except in the case of easements (servidumbres), the right to possess, or chattels, in which cases, the fact of possession presumes the title, until the contrary is proven.” In contrast to what is interpreted by the cassation appellant, at no time does that numeral come to free the possessor of a real property, if he wishes to usucapt its ownership in this matter, from the need for the requirement of a just title, established in ordinal 853 of the same legal body. As can be deduced from its reading, this, also called translative title of ownership, can only be obviated when “...it concerns easements (servidumbres), the right to possess, or chattels...”, in other words, when one seeks to usucapt any of those rights, but, as an exception to the general rule, the positive prescription of the right of ownership over real property in this matter is not included. The just title consists of the fact that the possessor of a property, if he wishes to transform himself into its owner, must have exercised his possession based on a legal foundation that authorized him to do so. Thus, there must have existed a legal transaction by which the individual was authorized to exercise possessory acts regarding the specific real property, that is, an act by which ownership of the farm was transferred to him, but his title is not registrable or suffers from some deficiency that prevents its efficacy, principally, because the person who transferred was not the owner of the good, whereby the possessor passes into a condition of adquirente a non domino (purchaser from a non-owner). In this way, under the concept of the just title, a possession initiated from a translative act that would have permitted the transfer, had it emanated from the true owner, would be required. That is, that the transaction had the appearance of one by which the ownership of a real property is normally acquired; a contract that transfers the ownership of the property under habitual conditions. Likewise, the translative act cannot be vitiated by absolute nullity, which could be alleged by any interested party, or even ex officio, and would prevent the emergence of effects of the legal transaction. The situation is different with relative nullity, since, being correctable, it could be ratified by the affected party and, therefore, the title arising in favor of the possessor would subsist. Moreover, it must converge with good faith, defined in Article 285 of the Civil Code, from which it is necessary, for whoever argues possession by title of owner, to have had the belief of having the right to do so. Given the described situation, the law establishes the possibility of usucapting a real property, once ten years of quiet, public, and peaceful possession have elapsed. The Code Napoléon, the French civil codification, which served as a foundation for the legislator of 1886, establishes two ways of usucapting real property. The first, contemplated in its ordinal 2262, establishes the term of 30 years to positively prescribe a good, its mere possession being sufficient. That is, in that legislation, whoever possesses for more than that period may acquire the good, regardless of whether he was a possessor in bad faith and whether he lacked any justification for holding the property. This is classified as ordinary prescription. Numeral 2265 of the Napoleonic Code comes to establish the so-called abbreviated prescription, which operates when the one who possesses does so in good faith and based on a just title, which, however, fails to be effective for specific reasons. This will be for 10 or 20 years, depending on the place where the registered owner has his domicile. The dual possibility for usucapting is also included in Spanish civil legislation, with the variation of calling the 10-year prescription ordinary, when there is a just title (or 20 years when the owner is absent), and the 30-year prescription extraordinary, according to numerals 1957 and 1959 of the Spanish Civil Code. But the Costa Rican legislator decided to omit the French ordinary prescription (extraordinary according to the Spanish), and limit itself to abbreviated usucapion, calling it ordinary in keeping with the Iberian nomenclature, which establishes the term of 10 years as provided for in the Civil Code. Regarding the necessity of the just title, the Chamber indicated in judgment No. 45 of 15 hours 5 minutes of May 22, 1996, the following: “ *Civil doctrine has occupied itself with specifying the requirements of the \\\"title\\\" in order for it to serve, together with the other assumptions provided by law, as an acquisitive cause of possessable real rights. In the first place, it must be a translative title, as Article 853 of the Civil Code qualifies it; that is, a legal transaction which, under normal conditions, would be suitable for transferring ownership, but, because it is an act carried out by a subject who is not the titleholder of the right, could not produce, immediately, the translative phenomenon. In effect, as expressed in the ruling indicated at the end of the citation, \\\"... in ordinary usucapion, the translative title of ownership that the law requires must be a non domino, that is, it must emanate from one who is not the owner. The thing was acquired from another, who behaved and was reputed as owner, without being so; the transferor is a non-owner, either because he never held the title, or because his right has been extinguished or resolved, or because the right he holds is not sufficient to produce the transmission; in this last case falls, for example, the usufructuary who appears to be transferring the property. And even though in Roman Law usucapion served to acquire dominium est iure quiritium and the consequences of other modes of acquiring that would have turned out defective were also corrected with it, in modern law, as a general rule, it is said that the only defect of the title that usucapion purges is the acquisition from a non-owner, and that is why the defect that usucapion corrects lies precisely in the title. What the law remedies with ordinary usucapion is only the non-acquisition, the defect that results from the fact of not having ownership by him from whom the possessor obtained his right. In summary, usucapion operates when the title of transmission or acquisition is a non domino, from one who is not the owner, but not when it is a domino or a verus domino, that is, when it emanates from the owner or true owner, because in that case, if the title is perfect, it produces all its effects immediately, and if it has some defect of another nature, because it emanates from the true owner, its validation can be produced by negative or extinctive prescription of the nullity action and not by acquisitive prescription or usucapion ...\\\"* (Judgment No. 16, of 16:00 hours of March 23, 1982, of the First Chamber of the Supreme Court of Justice).\n\nMore recently it added:\n\n*Possession acquired by virtue of a non-translative title is not suitable for civil usucapion. If, for example, one has entered into possession by virtue of a lease or by mere tolerance, the requirement of the title is not met, and if it concerns a real right different from ownership, as could be, for example, usufruct, this could be acquired by usucapion but not the right of property*.” (no. 607, of 9 hours of July 23, 2004, of the First Chamber of the Supreme Court of Justice).\n\nThese aspects are relevant for resolving the present conflict, and will be taken up again in due course.\n\n**VIII.- ON THE MERITS OF THE MATTER:** Based on the evidence visible in the expediente, for the effects of the Chamber, it is unquestionable that the water storage tanks within the aqueduct of […], located on the farm registered in the name of the defendant company, correspond to a public domain asset under the administration of A y A in accordance with the law, and that a delegation has been generated to the plaintiff ASADA. It concerns a real property that is indispensable at present as part of the system, which cannot be dismembered without losing the functionality of the entire aqueduct at this moment. Proof of what has been said is how the community receives its supply of the precious liquid from the storage tank that is the basis of the conflict. It concerns an asset dedicated to public use (the part where the tanks are located), recalling on this matter the principle of immatriculation that governs the subject. Although the defendants do not come to recognize these conditions and subject the veracity of these aspects to the evidence visible in the expediente, the elements of conviction prove to be in agreement in that sense. Despite what has been said, the Tribunal must be very emphatic in indicating that, just as has been pointed out on previous occasions, despite the public domain character of the asset at this moment, it is clear that under the protection of Article forty-five of the Constitution, the right of property cannot be destroyed by de facto means to the detriment of the private party without the corresponding compensation, for that would imply that to withdraw an asset from the commerce of men, it suffices to affect it de facto to public domain status. So that, under the protection of the fundamental charter, when a private asset passes to public use, some consensual mechanism must have been used between the parties for the transfer of public ownership (such as a sale or donation fulfilling the legal requirements) or, failing that, by means of the legally regulated expropriation procedure. Arriving at the necessary consequence regarding the non-existence of a normative presupposition exempting from the just title in cases of public domain assets when they originally had private ownership, which seems to be the veiled reasoning of the plaintiff. As the defendants' lawyers made clear, the lawsuit is manifestly unfounded, it being impossible for a usucapion to be consolidated in favor of the association, by virtue of its condition as mere administrator of assets owned by A y A, a position that in itself is not unreasonable; despite this and as will be seen, even from the plaintiff's own reasoning, the greater part of the lawsuit lacks reason for being; not without first warning that as a private entity and for its own benefit, an ASADA could perfectly well constitute a positive prescription to the extent that it satisfies all the requirements that the legal system itself establishes. If for public entities it is possible to accept the existence of a dual capacity to act (as a private entity and as a public one), with even greater reason it is possible to ensure that an ASADA, whose legal nature is not strictly public (even when it contributes to a public service), can be subject to private law schemes for acquiring assets. Now then, returning to the specific claim, the plaintiff association claims for itself part of the farm in dispute, in the specific location of the already mentioned tanks, on the grounds that acquisitive prescription has operated. From the probative element, it is totally proven that possession has taken place, initially under the community development association in the actions of the local water Committee, which in turn was the basis of the Association that is the plaintiff today; it does not concern mere tenancy of another's asset, because they considered themselves owners of the asset (in the part that corresponds to the tanks in the indicated terms), supposedly because part of the real property had been donated and because the other part had been sold (exchanged) for some water services that were generated from the same tank. So that, regarding the first of the tanks, it is possible to sustain a possession of at least thirty-five years, and with respect to the second, a period of around fifteen years, which benefits the ASADA as a manifestation of community activity. Said possession has been public, peaceful, and continuous and for more than ten years, according to the description by the association's witnesses, an aspect that is duly proven; although the evidence brought by the defendants sought to demonstrate that it concerned mere tolerance (tenancy in civil terms), the truth is that said probative element does not manage to convince the Tribunal, as it manifested a complacent tendency; on the contrary, the plaintiff's evidence proved totally credible to this jurisdictional body in what corresponds to this topic. On the contrary, the Chamber is inclined to think that there existed a will to carry out the activities in coordination between the plaintiff and the defendant, but always considering themselves the owners, as the witnesses offered by her made clear. In what refers to the condition of owner, as already indicated, it was possible to verify how the former members of the plaintiff association acted under the conviction that said area of land belonged to them, which was reasonable if it was donated or received for the benefit of the locality. In what refers to good faith, this is presumed in the absence of evidence to the contrary. But it is possible to locate a lack of an indispensable presupposition for positive prescription to be consolidated, namely, the just title. In the initial pleading of the lawsuit, the plaintiff focuses on pointing out the existence of possession without justifying what the enabling title was, which would make the rejection of the lawsuit without further procedure necessary, by virtue of the fact that all requirements are indispensable, and not just some of them. We are not in the presence of a chattel, where possession is worth as a title; but rather we are facing circumstances where the title was imperative in accordance with the legal system. Now then, in the oral and public trial, she directed this in two directions: on one hand, the existence of a donation regarding the land of the first tank by the original owner of the real property, and on the other, the sale of the land where the second asset is situated, based on having granted four water services for which even the consumption was not charged for at least several years. Regarding the first of the legal acts, we must recall that a donation – in accordance with Articles one thousand three hundred ninety-three and following of the Civil Code – is a formal act, in writing, and by notarized document (Article 1397 of the Civil Code), it being inappropriate to carry out the act verbally. Even accepting the possibility of the existence of the act insofar as the current owner is different from that one, it is not possible to impose it on a third party who acquired under the protection of the public faith of the registry and where there is no guiding evidence to suggest knowledge of that supposed agreement. For its part, with respect to the possibility of the existence of a sale, the testimonial and documentary evidence points in that sense, which would open the possibility, especially when the purchase-sale contract is consensual in nature. But all of the evidence is oriented from the vision of one of the parties (the plaintiff), so we have what the directors thought and recorded in supporting documents, but there is no clarity as to what was thought by the other party (the defendant), who may have understood that it was facing mere civil tolerance. Even the terms that the parties used (as narrated by the witnesses) could well lend themselves to interpretation in one way or another. These conditions prevent the legal transaction from being considered proven. It is pertinent to indicate on this matter that Article three hundred seventeen of the Civil Procedure Code, applicable to the case in accordance with Article two hundred twenty of the Contentious Administrative Procedure Code, obliges the party who affirms to prove its statement, and that said procedural obligation is not satisfied in this case, with the corresponding prejudice to the interests of the plaintiff. Having carried out this analysis against the claims, it is possible to see how the first main claim supports the existence of a usucapion, which is not consolidated under the protection of current legal norms; while the first subsidiary claim requires that a regime of co-ownership between the plaintiff and the defendant be consolidated, which also is not consolidated due to the lack of just title. So that, against both claims (first main and subsidiary), we are in circumstances of a lack of right, which must be so declared.\n\nThe Chamber cannot fail to warn that it is legally impossible to accept the existence of an agreement by virtue of which the defendants are not charged for the water supply, no matter how much goodwill might exist between the parties and especially on the part of the aqueduct administrators, as one of the witnesses insinuated; therefore, if that situation persists to date, the association must proceed to rectify the situation.\n\nFinally, a claim is established with respect to Mr. Nombre317, in his personal capacity and as representative of the defendant company, to refrain from disturbing the plaintiff's right of property (derecho de propiedad).\n\nIt is evident that the association lacks the right of property (derecho de propiedad), under the terms already stated; however, it does present at least one of the attributes, namely the right of possession (derecho de posesión) which, as indicated, it has exercised for many years as owner, in a public, peaceful, and uninterrupted manner, a fact that is known to Mr. Nombre317 in his dual capacity. It is clear that by virtue of the company Paraíso Tropical Inc S. A. holding the right of property (derecho de propiedad) over the farm at the heart of the conflict, it may claim that attribute (possession) for itself at the time it deems appropriate, but self-help (vía de hecho) is not the legal mechanism for such purpose. Having allowed that right to consolidate over time, it is through an action that the corresponding reivindicatory process can be heard, with the corresponding recognition of any improvements that may have been made. Under these conditions and regarding the right of possession (derecho de posesión), it is indeed in accordance with the law to grant the claim invoked, declaring it with merit with the clarification indicated in accordance with Article one hundred twenty-two of the Contencioso-Administrative Procedure Code (Código Procesal Contencioso Administrativo).\n\nIX.- CONSIDERATIONS FOR THE A Y A: The Court cannot fail to point out that it is a matter of deep concern within the Chamber that A y A, having the legal powers and competencies to establish the necessary easements (servidumbres) and legal expropriations, has allowed the passage of so many years without taking the necessary measures. For such purposes, it is irrelevant where the necessary fund must come from to compensate both the defendant company today, and the other owners of the adjacent farms through which the aqueduct passes.\n\nWhat is important in the sub júdice is how the absence of registration within the public domain of the farms or parts thereof and corresponding easements (servidumbres) through which the aqueduct runs represents a risk to the public service of water supply in Puente Salas that cannot be accepted.\n\nWe do not even want to consider if any of the people who dwell in these tanks had contaminated the water, the public health impacts that could have occurred. Nor is it understandable, as was accredited in this case, that the association tried to communicate with the owner of the farm and that he did not expressly grant entry, this being the reason for the dispute that occupies us; in short, that the possibility of providing safeguarding or maintenance of an aqueduct depends on whether a private individual agrees or not to grant entry is simply a situation that presents no legal sense whatsoever. Regardless of the delegation generated, it is the public entity that is responsible to Costa Rican society for the water supply, so it is incomprehensible to us how the necessary measures have not been adopted. Furthermore, the ASADA is nothing more than a mere administrator, by virtue of the fact that at the moment it is required, it must deliver the aqueduct with all the assets that comprise it, which, in their demanial character, are property of the nation under the administration of A y A. Even accepting the budgetary limitations that afflict the entire public apparatus, we are not talking about exaggerated items that could generate true imbalances, especially when in the end, through the tariff, such items can be recovered in reasonable times. This jurisdictional body does not have the powers to order conduct against a coadjuvant party, which has not been brought forward by any of the parties explicitly or implicitly, so it must limit itself to making a respectful but vehement call for the urgent establishment of the easements (servidumbres) and expropriations that are necessary not only with respect to the defendant company but also to other farms in the area.\n\nX.- ON THE EXCEPTIONS. As indicated, the defendants raised the exception of lack of right, which must indeed be accepted regarding the claims made against the company T. S. A., since there is no legal rule that enables them under the terms presented; as a consequence of the foregoing, the claim must be declared without merit as far as that procedural legal relationship is concerned.\n\nFor its part, regarding the claim brought against Mr. Nombre317 in his personal capacity and as representative of said company, concerning disturbing acts, the indicated exception is inapplicable.\n\nAs noted in the list of proven facts, it is clear that the plaintiff association has exercised acts of possession for many years, an activity carried out in a public, peaceful, and legally compliant manner, which determines that if Mr. Nombre317, as representative of the company, intended to destroy said right, in his capacity as owner of the property, self-help (vía de hecho) was not the legal mechanism to execute it.\n\nRegarding that claim, the exception must be declared without merit, and on the contrary, the claim must be granted, ordering Mr. Nombre317 not to disturb the possession (posesión) exercised by his counterpart; he must resort to the legal mechanisms in case he wishes to enforce the right that corresponds to his represented entity with respect to that held by the ASADA.\n\nXI.- ON THE PRECAUTIONARY MEASURE ORDERED. As is visible in the case file, precautionary measure dossier, it is possible to verify how, by virtue of a precautionary measure ordered by this court, a series of acts have been adopted to ensure the proper functioning of the rural aqueduct that concerns us. These are indeed acts that have already been exhausted, and it is not necessary to adopt any determination regarding them.\n\nXII.- ON COSTS. Regarding costs, the Court considers that we are in the presence of one of the exceptions of Article one hundred ninety-three of the Contencioso-Administrative Procedure Code (Código Procesal Contencioso Administrativo), by virtue of it being possible to verify that one of the plaintiff's claims has been accepted, which demonstrates that there was no bad faith or a frivolous claim.\n\nOn the contrary, everything seems to indicate that the parties acted in good faith and had sufficient grounds to litigate, and therefore the process is resolved without a special award of costs.\n\nPOR TANTO:\n\nThe exception of lack of right for the main and secondary claims of positive prescription or co-ownership regime, sought by the plaintiff, is accepted, and the process is without merit as to those aspects.\n\nThe exception of lack of right regarding the defendant Nombre317 is rejected, ordering him in his personal capacity and as president of the indicated company, that he must not disturb, through self-help (vía de hecho), the possession (posesión) held by the plaintiff. The Instituto Costarricense de Acueductos y Alcantarillados shall take note of what is indicated in considerando IX.\n\nThe indemnity claim raised by the defendant against its counterpart in the answer to the complaint is rejected as inapplicable. Due to the manner in which it is resolved, it is issued without a special award of costs.\n\n\n\nNombre5253 .\n\n\n\n\n\n\n\n\nNombre40047 Nombre37769 \n\n\n\n**Promueve:** Asociación Administradora del Acueducto Puente Salas\n\n**Contra:** Nombre5896. Nombre23461. . y Nombre317\n\n**Coadyuvante:** Instituto Costarricense de Acueductos y Alcantarillados\n\n**Expediente:** 10-001555-1027-CA\n\n**Proceso de Conocimiento**\n\n" }