G.R. No.

L-29910

April 25, 1969

ANTONIO C. FAVIS, plaintiff-appellant,

vs.
THE CITY OF BAGUIO and THE SHELL COMPANY OF THE
PHILIPPINES, LIMITED, defendants-appellees.
Juan L. Fontanilla for plaintiff-appellant.
Lichauco, Picaso and Agcaoili and Roman Mabanta, Jr. for
defendant-appellee Shell Company.
The City Attorney for defendant-appellee City of Baguio.

Resolution No. 115, Series of 1947, of the City Council of Baguio

leased this Lot 25 to Shell for a ten-year period renewable for
another ten years. Shell constructed thereon a service station of
about 335 square meters.
On May 10, 1961, the City Council of Baguio passed Resolution No.
132 authorizing the City thru its Mayor to lease to Shell two parcels
of land described as follows:
A parcel of land, known as Lot No. 25 of the Market
Subdivision and shown as "Lot A" on Sketch Plan ... marked
"Exhibit A" and made a part hereof, situated in the City of
Baguio, containing an area of 335 sq. m....

SANCHEZ, J.:
Key targets in plaintiff's complaint for the restoration of the original
measurement 8 meters wide of the dead end of Lapu-Lapu
Street are: (1) Resolution No. 132, Series of 1961, authorizing the
lease by the City of Baguio (hereinafter referred to as the City) to
Shell Company of the Philippines, Limited (Shell, for short) of Lot 25
of the Baguio Market Subdivision and a portion of Lapu-Lapu Street
abutting said lot; and (2) Resolution No. 215, Series of 1961,
amending the first mentioned resolution by authorizing the vacation
of the leased portion of Lapu-Lapu Street and the conversion of the
remainder by the side thereof into an alley of 5 meters wide (4
meters in actual use). Plaintiff wants these resolutions stricken down
as invalid. The court below ruled in the negative. This appeal is the
offshoot.
The facts are as follows:
On April 30, 1957, Antonio Favis bought a parcel of land of about
1,000 square meters Lot 2-E-3-B-3-B-2 of the subdivision plan
(LRC) Psd-2179 from the Assumption Convent, Inc. Said lot is
bounded on the southwest by Lot 2-E-3-B-3-B-1 (proposed road),
owned by Assumption Convent, Inc. and part of subdivision plan
Psd-2179.
Simultaneous with the sale, Assumption donated to the City "for
road purposes" the lot indicated in its subdivision plan as the
proposed road Lot 2-E-3-B-3-B-1 aforesaid. This donated road is
used by Favis as his means of egress and ingress from his residence
to a public street called Lapu-Lapu Street.
Lapu-Lapu Street is actually Lot 27 in the amendatory plan (Bcs-56Amd 2, Residence Section "B") And is a portion of a big tract of land
registered in the name of the City, known as Baguio Market
Subdivision, for all of which the City holds Transfer Certificate of
Title No. 2209. branches out to various parts of the market
subdivision. From its intersecting point with Dagohoy Street and
1
going northward, Lapu-Lapu Street is eight (8) meters wide; it
abruptly ends as it meets portions of two lots the donated road
aforementioned and the lot owned by Olmina Fernandez (Lot 2-E-3B-1-A, Bsd-26963). Fernandez' lot is fenced, with buildings; and
there is a sharp depression of at least 2 meters at the precise point it
meets Lapu-Lapu Street. Ocular inspection conducted by the trial
court disclosed that at the exact connecting point of Lapu-Lapu
Street and the donated road (which leads to appellant's land), the
road opening is only 2.5 meters wide.
Lot 25 of the Baguio Market Subdivision is northernmost in said
subdivision and contains an area of approximately 400 square
meters. Immediately next to it, to the north, is the lot of Olmina
Fernandez aforesaid. As far back as June, 1947, the City, by virtue of

and
Also a parcel of land containing an area of 100 sq. m. more
or less, marked as "Lot B" on Sketch Plan...
Lot 25 (Lot A), it is to be noted, is the same lot leased to Shell way
back in June, 1947 and the lease of Lot B is merely an addition
thereto. This additional area taken from Lapu-Lapu Street is five (5)
meters wide and twenty (20) meters long and abuts Lot 25.
About three weeks later, the City, thru its Mayor entered into a
2
formal contract of lease with Shell.
Shell filed an application with the Office of the City Engineer of
Baguio for a building permit for the construction of a new and bigger
gasoline station on the leased premises. Said office, in a letter to the
City Council thru the City Mayor dated June 30, 1961, noted that the
leased "[1] to 'B' which consists of 100 square meters is exactly
within the road right-of-way of Lapu-Lapu Street," is for public use,
and may not be leased.
On July 5, 1961, appellant Antonio C. Favis lodged a letter-protest
against the additional lease made in favor of Shell. He claimed that it
would diminish the width of Lapu-Lapu Street to five meters only;
that it would destroy the symmetry of the said street thus making it
look very ugly; and that the City was bereft of authority to lease any
portion of its public streets in favor of anyone.
Apparently to obviate any and all objections to the lease of the
additional area to Shell, the City Council of Baguio, on July 19, 1961,
passed Resolution No. 215, amending Resolution No. 132, Series of
1961, by converting that "portion of Lapu-Lapu Street lying
southeast from Lot B of the sketch plan prepared March 10, 1961 by
Private Land Surveyor Perfecto B. Espiritu, beginning at this portion's
intersection with Dagohoy Street, into an alley 5.00 meters wide (4
m. now in actual use); declaring for this purpose, that said Lot B shall
not be a part of this alley."
On November 29, 1961, Favis commenced suit for the annulment of
the lease contract with damages in the Court of First Instance of
3
Baguio. He prayed that (1) defendants be ordered to stop, remove
and/or demolish whatever constructions had been introduced at the
additional leased area on Lapu-Lapu Street; (2) the building permit
and contract of lease entered into by and between the defendants
be cancelled and revoked for being null and void; and (3) defendants
be directed to pay, jointly and severally, actual, compensatory,
corrective and consequential damages totalling P50,000, attorneys'
fees in the sum of P2,000, and the costs.

After hearing, the lower court, on May 21, 1962, rendered judgment
uphelding the two questioned resolutions and dismissing the
complaint, with costs.
We first address ourselves to the preliminary questions raised in the
appeal.lawphi1.nt
1. Amongst these is appellant's charge that the resolutions directing
the partial closing of Lapu-Lapu Street and the lease thereof are
invalid. Because, so appellant avers, those resolutions contravene
the City Charter. He relies on subsection (L) of Section 2553 of the
Revised Administrative Code. It provides that the powers granted to
the City including the power to close streets shall be carried
"into effect by ordinance."
This objection is directed at form, not at substance. It has been held
that "even where the statute or municipal charter requires the
municipality to act by ordinance, if a resolution is passed in the
manner and with the statutory formality required in the enactment
of an ordinance, it will be binding and effective as an
4
ordinance." Such resolution may operate regardless of the name by
5
which it is called.
Resolutions No. 132 and 215, Series of 1961, were unanimously
approved with all the councilors present and voting, carried the seal
of the city council, were signed by the City Vice-Mayor, the Presiding
Officer, approved by the City Mayor, and attested by the City
Secretary. With the presumption of validity of the resolution and the
other presumption that official duty has been regularly performed,
the embattled resolutions are just as good as ordinances and have
the same force.
2. Appellant cites lack of advertisement or direct notice to owners of
contiguous properties whose rights might be affected, as another
ground to show invalidity of the resolutions. The pertinent provision
of the charter reads, thus: .
... to carry into effect by ordinance the powers
hereinbefore granted in this subsection, but no ordinance
shall provide for more than one project of any of the kinds
named herein, nor create more than one district,
assessment, and fund necessary and appropriate therefor,
and in each and every such ordinance provision shall be
made for notice to any and all persons interested, giving
them and each of them not less than two weeks from and
after the date of depositing a notice in the post-office at
Baguio in a securely sealed postpaid wrapper addressed to
each person affected thereby and assessed thereunder at
his last known place of residence, or at Baguio if no place
of residence is known, or to an agent who may be or may
have been appointed by such person in writing, in which to
appear and file objection to either the work itself, the
method or manner of assessment, the time or times and
method of payment therefor, or to all thereof and such
other and further objection or objections as may seem to
any such person or persons reasonable and proper in the
premises: such notice shall set forth the nature of the
proposed improvement, the estimated cost therefor, the
total amount of the assessment to be levied therefor, and
the amount to be levied upon each parcel of the property
or possession of the addressee; any and every such
appearance and objection shall be made and heard only
before the city council, and council may, at any such

hearing alter, modify, or increase the area of such district,

the total assessment thereof, or any individual area or
assessment objected to therein, and shall decide any and
every such objection within ten days after the filing
thereof and give notice of such decision to the person or
persons interested in the manner hereinbefore provided
for notice of such assessment within five days
6
thereafter....
The requirement of notice specified in the aforequoted provision of
the city charter is not applicable to the case at bar. It will be
observed that the notice is to be given "to any, and all persons
interested", to be placed in a securely sealed postpaid wrapper
addressed "to each person affected thereby and assessed
thereunder." The accent is on the word and. The person "affected"
must also be "assessed". And then, "such notice shall set forth the
nature of the proposed improvement, the estimated cost therefor,
the total amount of the assessment to be levied therefor, and the
amount to be levied upon each parcel of the property or possession
of the addressee." In turn, the council, after hearing objections, may
"alter, modify, or increase the area of [the] district, the total
assessment thereof, or any individual area or assessment objected
to therein."
Clearly then, this method of giving notice applies only when an
ordinance calls for an assessment. So that where no assessment has
been made or is to be made, such notice need not be given.
In the case at bar, the resolutions in question do not at all call for
any kind of assessment against appellant or his land. Hence, the
notice that appellant would want to have, need not be given.
Besides, appellant did actually protest Resolution 132 authorizing
the lease to Shell. Such protest was, however, overruled. And the
council passed Resolution 215, in effect, confirming the lease. The
purpose of notice on the assumption that appellant is entitled
thereto is subserved. Appellant has no cause for complaint.
3. We now direct attention to appellant's plaint that the questioned
resolutions narrowed down, much to his prejudice, the width of
Lapu-Lapu Street at its connecting point with the donated road
which, in turn, leads to his land. The reduction of the usable width
from 8 meters to 4 meters cannot be done, so he argues, because
said resolutions violate Executive Order No. 113, Series of 1955,
issued by President Ramon Magsaysay, particularly the following:
IV. MUNICIPAL ROADS:
All highways not included in the above classifications,
Municipal and city roads shall have a right-of-way of not
less than ten (10) meters; provided that the principal
streets of town sites located on public lands shall have a
width of sixty (60) meters and all other streets a width of
7
not less than fifteen (15) meters.
We do not go along with appellant. First, because the 2.5 meter
opening connecting the donated road and Lapu-Lapu Street has
always been that wide since the donated road was opened. The fact
that this opening is 2.5 meters, is confirmed by the ocular inspection
personally made by the trial judge himself. The occupancy by Shell
of a portion of the road right-of-way did not in any way put
appellant to any more inconvenience than he already had. His outlet
to Lapu-Lapu Street of 2.5 meters still remains the same.

In the second place, the resolutions in question do not have the

effect of decreasing the width of the opening because said opening
is far from the leased portion of Lapu-Lapu Street. The said leased
portion is on the left side of Lapu-Lapu Street, whereas the opening
lies on the right uppermost part of Lapu-Lapu Street. That leased
strip does not reach said opening. In fact, while the lease contract
authorized Shell to take 5 meters wide of Lapu-Lapu Street, Shell
8
occupied only 4 meters wide.
Thirdly, the executive order could not have been violated because
even before its promulgation, Lapu-Lapu Street was only 8 meters
wide, and the said executive order did not demand widening to 10
meters of existing streets. For it to have so ordered would have
entailed huge expenditure not only on the part of Baguio City but
many other municipal corporations as well which have streets less
than 10 meters wide. For, compensation for the expropriation of
private property would have to be given.
4. The main thrust of appellant's arguments is that the city council
does not have the power to close city streets like Lapu-Lapu Street.
He asserts that since municipal bodies have no inherent power to
vacate or withdraw a street from public use, there must be a specific
grant by the legislative body to the city or municipality concerned.
Considering that "municipal corporations in the Philippines are mere
creatures of Congress; that, as such, said corporations possessed,
and may exercise, only such power as Congress may deem fit to
9
grant thereto", a reference to the organic act of the City of Baguio
appears to be in order. In subsection (L) of Section 2558 of the
Review Administrative Code (Baguio Charter), the language of the
grant of authority runs thus
(L) To provide for laying out, opening, extending, widening,
straightening, closing up, constructing, or regulating, in
whole or in part, any public plaza, square, street, sidewalk,
trail, park, waterworks, or water remains, or any
cemetery, sewer, sewer connection or connections, either
10
on, in, or upon public or private property; ....
Undoubtedly, the City is explicitly empowered to close a city street.
We may drive home the point by presenting here the converse of
the rule as set forth in Unson vs. Lacson, supra. There, as here, the
municipal board passed an ordinance (No. 3470) withdrawing the
northern portion of Callejon del Carmen from public use, declaring it
patrimonia property of the City of Manila and authorizing its lease to
Genato Commercial Corporation. Unson had a lot bordering Callejon
del Carmen on which several buildings stood. One of such buildings
was known as "Commerce Building". Prior to the construction of
Genato's building on the leased premises, Unson's lot had on its
southern boundary two exits on Callejon del Carmen which had to
be closed upon the construction of said building. Unson went to
court alleging that the ordinance and the contract of lease with
Genato were illegal. The trial court upheld the city's authority to
withdraw such alley for public use and to convert it into patrimonial
property. But, on appeal, we held:
In this connection, respondents have been unable to cite
any legal provision specifically vesting in the City of Manila
the power to close Callejon del Carmen. Indeed, section
18(x) of Republic Act No. 409 upon which appellees rely
authorizes the Municipal Board of Manila "subject to
the provisions of existing laws, to provide for the laying

out, construction and improvement ... of streets, avenues,

alleys ... and other public places," but it says nothing about
the closing of any such places. The significance of this
silence becomes apparent when contrasted with section
2246 of the Revised Administrative Code,
explicitly vesting in municipal councils of regularly
organized municipalities the power to close any
municipal road, street, alley, park or square, provided that
persons prejudiced thereby are duly indemnified, and that
the previous approval of the Department Head shall have
been secured. The express grant of such power to the
aforementioned municipalities and the absence of said
grant to the City of Manila lead to no other conclusion
than that the power was intended to be withheld from the
11
latter.
5. So it is, that appellant may not challenge the city council's act of
withdrawing a strip of Lapu-Lapu Street at its dead end from public
use and converting the remainder thereof into an alley. These are
acts well within the ambit of the power to close a city street. The
city council, it would seem to us, is the authority competent to
determine whether or not a certain property is still necessary for
12
public use.
Such power to vacate a street or alley is discretionary. And the
discretion will not ordinarily be controlled or interfered with by the
courts, absent a plain case of abuse or fraud or collusion.
Faithfulness to the public trust will be presumed. So the fact that
some private interests may be served incidentally will not invalidate
13
the vacation ordinance.
Deemed as material factors which a municipality must consider in
deliberating upon the advisability of closing a street are: "the
topography of the property surrounding the street in the light of
ingress and egress to other streets; the relationship of the street in
the road system throughout the subdivision; the problem posed by
the 'dead end' of the street; the width of the street; the cost of
rebuilding and maintaining the street as contrasted to its ultimate
value to all of the property in the vicinity; the inconvenience of
those visiting the subdivision; and whether the closing of the street
14
would cut off any property owners from access to a street."
We now take a look at the factors Considered by the City Council of
Baguio in vacating a portion of Lapu-Lapu Street. These appear in
the resolution (Resolution 215) itself, thus:
WHEREAS, that portion of the road right-of-way of LapuLapu Street, Baguio, beginning with its intersection, with
Dagohoy Street does not have much traffic, being in fact a
dead end street;
AND WHEREAS, the conversion of this portion of LapuLapu Street into a five-meter alley would neither prejudice
nor damage any person or property;
AND WHEREAS, in the subdivision scheme of the burned
area of the City Market Subdivision, already approved by
the City Council, provision was made for another road
behind Lapu-Lapu Street interesting Dagohoy Street.
Besides, there are the specific findings by the trial court that the "2.5
opening is sufficient for Plaintiff to enter and exit from the lot he
purchased from Assumption Convent, Inc."; that the "present road

right of way was rendered narrow by surrounding properties and

is sufficient for the needs of the Plaintiff"; and that the "portion
leased to Shell Company was not necessary for public use." We are
bound by these findings of fact.
By the embattled resolutions, no right of the public is overwhelmed,
none defeated. Public interest was not at all disregarded. On the
contrary, some benefit did flow from the withdrawal of a portion of
the street and the lease thereof. The City saves from the cost of
maintenance, gets some income yet.
Given the precept that the discretion of a municipal corporation is
broad in scope and should thus be accorded great deference in the
spirit of the Local Autonomy Law (R.A. 2264), and absent a clear
abuse of discretion, we hold that the withdrawal for lease of the
disputed portion of Lapu-Lapu Street and the conversion of the
remainder of the dead-end part thereof into an alley, does not call
for, and is beyond the reach of, judicial interference.
6. From the fact that the leased strip of 100 square meters was
withdrawn from public use, it necessarily follows that such leased
portion becomes patrimonial property. Article 422 of the Civil Code
indeed provides that property of public domain, "when no longer
intended for public use or public service, shall form part of the
patrimonial property of the State." Authority is not wanting for the
proposition that property for public use of provinces and towns are
governed by the same principles as property of public dominion of
15
the same character." There is no doubt that the strip withdrawn
from public use and held in private ownership may be given in lease.
For amongst the charter powers given the City of Baguio (Section
2541, Revised Administrative Code [Charter of the City of Baguio] ) is
to "lease ... real ... property, for the benefit of the city...."

them is 2.5 meters wide. Even appellant's allegation that by reducing

the width of Lapu-Lapu Street it is now impossible for his big trucks
to turn around is of dubious veracity on the face of his testimony
that turning around at the original Lapu-Lapu Street or at the
junction of Lapu-Lapu Street and the donated road has not been
tried before and that his trucks actually do their maneuvering at the
17
intersection of Dagohoy Street and Lapu-Lapu Street. Further, as
stated in the resolution, provision has been "made for another road
behind Lapu-Lapu Street and intersecting Dagohoy Street." It has
been said that
The Constitution does not undertake to guarantee to a
property owner the public maintenance of the most
convenient route to his door. The law will not permit him
to be cut off from the public thoroughfares, but he must
content himself route for outlet as the regularly
constituted public with such authority may deem most
compatible with the public welfare. When he acquires city
property, he does so in tacit recognition of these
principles. If, subsequent to his appreciation, the city
authorities abandon a portion of the street to which his
property is not immediately adjacent, he may suffer loss
because of the inconvenience imposed, but the public
treasury cannot be required to recompense him. Such case
18
is damnum absque injuria.
For the reasons given, the appealed judgment of the Court of First
Instance of Baguio declaring valid Resolution No. 132, Series of
1961, and Resolution No. 215, Series of 1961, both of the City
Council of Baguio, and ordering the dismissal of the complaint as
well as the counterclaim, is hereby affirmed.
Costs against plaintiff-appellant.

7. We now look into appellant's averment that by reducing the

original width of Lapu-Lapu Street, his entrance and exit to and from
his property has become very difficult; that it is now impossible for
his big trucks and trailers to turn around; that it made the area
around it very dangerous in case of fire; and that it has caused
perpetual danger, annoyance, irreparable loss and damage not only
to the public in general but especially to heroin plaintiff in particular.
For all these, he asks for damages.

Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Barredo, JJ.,

concur.
Reyes, J.B.L., Actg. C.J., concurs and certifies that the Chief Justice
voted in favor of this opinion before going on official leave.
Castro, J., is on leave.
Capistrano, J., took no part.
G.R. No. 100709 November 14, 1997

First to the governing principle: "The general rule is that one whose
property does not abut on the closed section of a street has no right
to compensation for the closing or vacation of the street, if he still
has reasonable access to the general system of streets. The
circumstances in some cases may be such as to give a right to
damages to a property owner, even though his property does not
abut on the closed section. But to warrant recovery in any such case
the property owner must show that the situation is such that he has
sustained special damages differing in from those sustained by kind,
16
and not merely in degree, the public generally."
In the case at bar, no private right of appellant has been invaded. No
special damage or damages he will incur by reason of the closing of
a portion of Lapu-Lapu Street at its dead-end. His property does not
abut that street. In fact, the court has found that the remaining
portion of Lapu-Lapu Street, which actually is 4 meters in width, is
sufficient for the needs of appellant and that the leased portion
subject of this suit "was not necessary for public use."
Furthermore, it is physically impossible to connect Lapu-Lapu Street
in its entire width 8 meters with the area donated to the City
or Assumption Convent, for the reason that the only outlet between

REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR OF

LANDS, petitioner,
vs.
COURT OF APPEALS, JOSEFINA L. MORATO, SPOUSES NENITA CO
and ANTONIO QUILATAN AND THE REGISTER OF DEEDS OF
QUEZON PROVINCE, respondents.

PANGANIBAN, J.:
Will the lease and/or mortgage of a portion of a realty acquired
through free patent constitute sufficient ground for the nullification
of such land grant? Should such property revert to the State once it
is invaded by the sea and thus becomes foreshore land?
The Case

These are the two questions raised in the petition before us assailing
1
the Court of Appeals' Decision in CA-G.R. CV No. 02667
promulgated on June 13, 1991 which answered the said questions in
2
3
the negative. Respondent Court's dismissed petitioner's appeal
4
and affirmed in toto the decision of the Regional Trial Court of
Calauag, Quezon, dated December 28, 1983 in Civil Case No. C-608.
In turn, the Regional Trial Court's decision dismissed petitioner's
complaint for cancellation of the Torrens Certificate of Title of
Respondent Morato and for reversion of the parcel of land subject
thereof of the public domain.
The Facts

complaint. In finding for private respondents,

the lower court ruled that there was no violation
of the 5-year period ban against alienating or
encumbering the land, because the land was
merely leased and not alienated. It also found
that the mortgage to Nenita Co and Antonio
Quilatan covered only the improvement and not
the land itself.
On appeal, the Court of Appeals affirmed the decision of the trial
court. Thereafter, the Republic of the Philippines filed the present
6
petition.

The petition of the solicitor general, representing the Republic of the

5
Philippines, recites the following facts:
Sometime in December, 1972, respondent
Morato filed a Free Patent Application No. III-38186-B on a parcel of land with an area of 1,265
square meters situated at Pinagtalleran, Calauag,
Quezon. On January 16, 1974, the patent was
approved and the Register of Deeds of Quezon
at Lucena City issued on February 4, 1974
Original Certificate of Title No. P-17789. Both the
free paten and the title specifically mandate that
the land shall not
be alienated nor encumbered within five years
from the date of the issuance of the patent
(Sections 118 and 124 of CA No. 141, as
amended).
Subsequently, the District Land Officer in Lucena
City, acting upon reports that respondent
Morato had encumbered the land in violation of
the condition of the patent, conducted an
investigation. Thereafter, it was established that
the subject land is a portion of the Calauag Bay,
five (5) to six (6) feet deep under water during
high tide and two (2) feet deep at low tide, and
not suitable to vegetation. Moreover, on
October 24, 1974, a portion of the land was
mortgaged by respondent Morato to
respondents Nenita Co and Antonio Quilatan for
P10,000.00 (pp. 2, 25, Folder of Exhibits). The
spouses Quilatan constructed a house on the
land. Another portion of the land was leased to
Perfecto Advincula on February 2, 1976 at
P100.00 a month, where a warehouse was
constructed.
On November 5, 1978, petitioner filed an
amended complaint against respondents
Morato, spouses Nenita Co and Antonio
Quilatan, and the Register of Deeds of Quezon
for the cancellation of title and reversion of a
parcel of land to the public domain, subject of a
free patent in favor of respondent Morato, on
the grounds that the land is a foreshore land and
was mortgaged and leased within the five-year
prohibitory period (p. 46, Records).
After trial, the lower court, on December 28,
1983, rendered a decision dismissing petitioner's

The Issues
Petitioner alleges that the following errors were committed by
7
Respondent Court:
I
Respondent court erred in holding that the
patent granted and certificate of title issued to
Respondent Morato cannot be cancelled and
annulled since the certificate of title becomes
indefeasible after one year from the issuance of
the title.
II
Respondent Court erred in holding that the
questioned land is part of a disposable public
land and not a foreshore land.
The Court's Ruling
The petition is meritorious.
First Issue: Indefeasibility of a Free Patent Title
In resolving the first issue against petitioner, Respondent Court
8
held:
. . . As ruled in Heirs of Gregorio Tengco vs. Heirs
of Jose Alivalas, 168 SCRA 198. ". . . The rule is
well-settled that an original certificate of title
issued on the strength of a homestead patent
partakes of the nature of a certificate of title
issued in a judicial proceeding, as long as the
land disposed of is really part of the disposable
land of the public domain, and becomes
indefeasible and incontrovertible upon the
expiration of one year from the date of
promulgation of the order of the Director of
Lands for the issuance of the patent. (Republic v.
Heirs of Carle, 105 Phil. 1227 (1959); Ingaran v.
Ramelo, 107 Phil. 498 (1960); Lopez v. Padilla,
(G.R. No. L-27559, May 18, 1972, 45 SCRA 44). A
homestead patent, one registered under the
Land Registration Act, becomes as indefeasible
as a Torrens Title. (Pamintuan v. San Agustin, 43
Phil. 558 (1982); El Hogar Filipino v. Olviga, 60
Phil. 17 (1934); Duran v. Oliva, 113 Phil. 144

(1961); Pajomayo v. Manipon, G.R. No. L-33676,

June 30, 1971, 39 SCRA 676). (p. 203).
Again, in Lopez vs. Court of Appeals, 169 SCRA
271, citing Iglesia ni Cristo v. Hon. Judge, CFI of
Nueva Ecija, Branch I, (123 SCRA 516 (1983)
and Pajomayo, et al. v. Manipon, et al. (39 SCRA
676 (1971) held that once a homestead patent
granted in accordance with the Public Land Act is
registered pursuant to Section 122 of Act 496,
the certificate of title issued in virtue of said
patent has the force and effect of a Torrens Title
issued under the Land Registration Act.
Indefeasibility of the title, however, may not bar
the State, thru the Solicitor General, from filing
an action for reversion, as ruled in Heirs
of Gregorio Tengco v. Heirs of Jose Aliwalas,
(supra), as follows:
But, as correctly pointed out by the respondent
Court of Appeals, Dr. Aliwalas' title to the
property having become incontrovertible, such
may no longer be collaterally attacked. If indeed
there had been any fraud or misrepresentation
in obtaining the title, an action for reversion
instituted by the Solicitor General would be the
proper remedy (Sec. 101, C.A. No. 141; Director
of Lands v. Jugado, G.R. No. L-14702, May 21,
1961, 2 SCRA 32; Lopez v. Padilla, supra). (p.
204).
Petitioner contends that the grant of Free Patent (IV-3) 275 and the
subsequent issuance of Original Certificate of Title No. P-17789 to
Respondent Josefina L. Morato were subject to the conditions
provided for in Commonwealth Act (CA) No. 141. It alleges that on
October 24, 1974, or nine (9) months and eight (8) days after the
grant of the patent, mortgaged a portion of the land" to Respondent
Nenita Co, who thereafter constructed a house thereon. Likewise,
on February 2, 1976 and "within the five-year prohibitory period,"
Respondent Morato "leased a portion of the land to Perfecto
Advincula at a monthly rent of P100.00 who, shortly thereafter,
constructed a house of concrete materials on the subject
9
land." Further, petitioner argues that the defense of indefeasibility
of title is "inaccurate." The original certificate of title issued to
Respondent Morato "contains the seeds of its own cancellation":
such certificate specifically states on its face that "it is subject to the
provisions of Sections 118, 119, 121, 122, 124 of CA No. 141, as
10
amended."
Respondent Morato counters by stating that although a "portion of
the land was previously leased," it resulted "from the fact that
Perfecto Advincula built a warehouse in the subject land without
[her] prior consent." The mortgage executed over the improvement
"cannot be considered a violation of the said grant since it can never
11
affect the ownership." She states further:
. . . . the appeal of the petitioner was dismissed
not because of the principle of indefeasibility of
title but mainly due to failure of the latter to
support and prove the alleged violations of
respondent Morato. The records of this case will
readily show that although petitioner was able

to establish that Morato committed some acts

during the prohibitory period of 5 years, a
perusal thereof will also show that what
petitioner was able to prove never constituted a
12
violation of the grant.
Respondent-Spouses Quilatan, on the other hand, state that the
mortgage contract they entered into with Respondent Morato "can
never be considered as [an] 'alienation' inasmuch as the ownership
13
over the property remains with the owner." Besides, it is the
director of lands and not the Republic of the Philippines who is the
real party in interest in this case, contrary to the provision of the
Public Land Act which states that actions for reversion should be
instituted by the solicitor general in the name of Republic of the
14
Philippines.
We find for petitioner.
Quoted below are relevant sections of Commonwealth Act No. 141,
otherwise known as the Public Land Act:
Sec. 118. Except in favor of the Government or
any of its branches, units or institutions, or
legally constituted banking corporations, lands
acquired under free patent or homestead
provisions shall not be subject to encumbrance or
alienation from the date of the approval of the
application and for a term of five years from and
after the date of issuance of the patent or
grant nor shall they become liable to the
satisfaction of any debt contracted prior to the
expiration of said period; but the improvements
or crops on the land may be mortgaged or
pledged to qualified persons, associations, or
corporations.
No alienation, transfer, or conveyance of any
homestead after five years and before twentyfive years after issuance of title shall be valid
without the approval of the Secretary of
Agriculture and Natural Resources, which
approval shall not be denied except on
constitutional and legal grounds. (As amended
by Com. Act No. 456, approved June 8, 1939.)
xxx xxx xxx
Sec. 121. Except with the consent of the grantee
and the approval of the Secretary of Agriculture
and Natural Resources, and solely for
educational, religious, or charitable purposes or
for a right of way, no corporation, association, or
partnership may acquire or have any right, title,
interest, or property right whatsoever to any
land granted under the free patent, homestead,
or individual sale provisions of this Act or to any
permanent improvement on such land. (As
amended by Com. Act No. 615, approved May 5,
1941)
Sec. 122. No land originally acquired in any
manner under the provisions of this Act, nor any
permanent improvement on such land, shall be

encumbered, alienation or transferred, except to

persons, corporations, association, or
partnerships who may acquire lands of the
public domain under this Act or to corporations
organized in the Philippines authorized therefore
by their charters.
Except in cases of hereditary successions, no
land or any portion thereof originally acquired
under the free patent, homestead, or individual
sale provisions of this Act, or any permanent
improvement on such land, shall be transferred
or assigned to any individual, nor shall such land
or any permanent improvement thereon be
leased to such individual, when the area of said
land, added to that of this own, shall exceed one
hundred and forty-four hectares. Any transfer,
assignment, or lease made in violation hereto
shall be null and void. (As amended by Com Act
No. 615, Id.).
xxx xxx xxx
Sec. 124. Any acquisition, conveyance,
alienation, transfer, or other contract made or
executed in violation of any of the provisions of
sections one hundred and eighteen, one hundred
and twenty, one hundred and twenty-one, one
hundred and twenty-two, and one hundred and
twenty-three of this Actshall be unlawful and
null and void from its execution and shall
produce the effect of annulling and cancelling
the grant, title, patent, or permit originally
issued, recognized or confirmed, actually or
presumatively, and cause the reversion of the
property and its improvements to the State.
(Emphasis supplied)
The foregoing legal provisions clearly proscribe the encumbrance of
a parcel of land acquired under a free patent or homestead within
five years from the grant of such patent. Furthermore, such
encumbrance results in the cancellation of the grant and the
reversion of the land to the public domain. Encumbrance has been
defined as "[a]nything that impairs the use or transfer of property;
anything which constitutes a burden on the title; a burden or charge
upon property; a claim or lien upon property." It may be a "legal
claim on an estate for the discharge of which the estate is liable; and
embarrassment of the estate or property so that it cannot be
disposed of without being subject to it; an estate, interest, or right in
lands, diminishing their value to the general owner; a liability resting
15
upon an estate." Do the contracts of lease and mortgage executed
within five (5) years from the issuance of the patent constitute an
"encumbrance" and violate the terms and conditions of such
16
patent? Respondent Court answered in the negative:
From the evidence adduced by both parties, it
has been proved that the area of the portion of
the land, subject matter of the lease contract
(Exh. "B") executed by and between Perfecto
Advincula and Josefina L. Morato is only 10 x 12
square meters, where the total area of the land
granted to Morato is 1,265 square meters. It is
clear from this that the portion of the land
leased by Advincula does not significantly affect

Morato's ownership and possession. Above all,

the circumstances under which the lease was
executed do not reflect a voluntary and blatant
intent to violate the conditions provided for in
the patent issued in her favor. On the contrary,
Morato was compelled to enter into that
contract of lease
out of sympathy and the goodness of her heart
to accommodate a fellow man. . . .
It is indisputable, however, that Respondent Morato cannot fully use
or enjoy the land during the duration of the lease contract. This
restriction on the enjoyment of her property sufficiently meets the
definition of an encumbrance under Section 118 of the Public Land
Act, because such contract "impairs the use of the property" by the
grantee. In a contract of lease which is consensual, bilateral, onerous
and commutative, the owner temporarily grants the use of his or her
17
property to another who undertakes to pay rent therefor. During
the term of the lease, the grantee of the patent cannot enjoy the
beneficial use of the land leased. As already observed, the Public
Land Act does not permit a grantee of a free patent from
encumbering any portion of such land. Such encumbrance is a
ground for the nullification of the award.
Morato's resort to equity, i.e. that the lease was executed allegedly
out of the goodness of her heart without any intention of violating
the law, cannot help her. Equity, which has been aptly described as
"justice outside legality," is applied only in the absence of, and never
against, statutory law or judicial rules of procedure. Positive rules
18
prevail over all abstract arguments based on equity contra legem.
Respondents failed to justify their position that the mortgage should
not be considered an encumbrance. Indeed, we do not find any
support for such contention. The questioned mortgage falls squarely
within the term "encumbrance" proscribed by Section 118 of the
19
Public Land Act. Verily, a mortgage constitutes a legal limitation
on the estate, and the foreclosure of such mortgage would
20
necessarily result in the auction of the property.
Even if only part of the property has been sold or alienated within
the prohibited period of five years from the issuance of the patent,
such alienation is a sufficient cause for the reversion of the whole
estate to the State. As a condition for the grant of a free patent to
an applicant, the law requires that the land should not be
encumbered, sold or alienated within five years from the issuance of
the patent. The sale or the alienation of part of the homestead
21
violates that condition.
The prohibition against the encumbrance lease and mortgage
included of a homestead which, by analogy applies to a free
22
patent, is mandated by the rationale for the grant, viz.:
It is well-known that the homestead laws were
designed to distribute disposable agricultural
lots of the State to land-destitute citizens for
their home and cultivation. Pursuant to such
benevolent intention the State prohibits the sale
or incumbrance of the homestead (Section 116)
within five years after the grant of the patent.
After that five-year period the law impliedly
permits alienation of the homestead; but in line
with the primordial purpose to favor the
homesteader and his family the statute provides

that such alienation or conveyance (Section 117)

shall be subject to the right of repurchase by the
homesteader, his widow or heirs within five
years. This section 117 is undoubtedly a
complement of section 116. It aims to preserve
and keep in the family of the homesteader that
portion of public land which the State had
gratuitously given to him. It would, therefore, be
in keeping with this fundamental idea to hold, as
we hold, that the right to repurchase exists not
only when the original homesteader makes the
conveyance, but also when it is made by his
widow or heirs. This construction is clearly
deducible from the terms of the statute.
By express provision of Section 118 of Commonwealth Act 141 and
in conformity with the policy of the law, any transfer or alienation of
a free patent or homestead within five years from the issuance of
the patent is proscribed. Such transfer nullifies said alienation and
constitutes a cause for the reversion of the property to the State.
The prohibition against any alienation or encumbrance of the land
grant is a proviso attached to the approval of every
23
application. Prior to the fulfillment of the requirements of law,
Respondent Morato had only an inchoate right to the property; such
property remained part of the public domain and, therefore, not
susceptible to alienation or encumbrance. Conversely, when a
"homesteader has complied with all the terms and conditions which
entitled him to a patent for [a] particular tract of public land, he
acquires a vested interest therein and has to be regarded an
24
equitable owner thereof." However, for Respondent Morato's title
of ownership over the patented land to be perfected, she should
have complied with the requirements of the law, one of which was
to keep the property for herself and her family within the prescribed
period of five (5) years. Prior to the fulfillment of all requirements of
the law, Respondent Morato's title over the property was
incomplete. Accordingly, if the requirements are not complied with,
the State as the grantor could petition for the annulment of the
patent and the cancellation of the title.
Respondent Morato cannot use the doctrine of the indefeasibility of
her Torrens title to bar the state from questioning its transfer or
encumbrance. The certificate of title issued to her clearly stipulated
that its award was "subject to the conditions provided for in Sections
118, 119, 121, 122 and 124 of Commonwealth Act (CA) No. 141."
Because she violated Section 118, the reversion of the property to
the public domain necessarily follows, pursuant to Section 124.
Second Issue: Foreshore Land
Revert to the Public Domain
There is yet another reason for granting this petition.
Although Respondent Court found that the subject land was
foreshore land, it nevertheless sustained the award thereof to
25
Respondent Morato:
First of all, the issue here is whether the land in question, is
really part of the foreshore lands. The Supreme Court defines
foreshore land in the case of Republic vs. Alagad, 169 SCRA
455, 464, as follows:

Otherwise, where the rise in water level is due to, the

"extraordinary" action of nature, rainful, for instance, the
portions inundated thereby are not considered part of the bed
or basin of the body of water in question. It cannot therefore
be said to be foreshore land but land outside of the public
dominion, and land capable of registration as private property.
A foreshore land, on the other hand has been defined as
follows:
. . . that part of (the land) which is between high
and low water and left dry by the flux and reflux of the
tides . . . . (Republic vs. C.A., Nos. L-43105, L-43190,
August 31, 1984, 131 SCRA 532; Government vs. Colegio
de San Jose, 53 Phil 423)
The strip of land that lies between the high and low
water marks and that is alternatively wet and dry
according to the flow of the tide. (Rep. vs. CA,supra,
539).
The factual findings of the lower court regarding the nature of the
parcel of land in question reads:
Evidence disclose that the marginal area of the land
radically changed sometime in 1937 up to 1955 due to a
strong earthquake followed by frequent storms
eventually eroding the land. From 1955 to 1968,
however, gradual reclamation was undertaken by the
lumber company owned by the Moratos. Having thus
restored the land thru mostly human hands employed
by the lumber company, the area continued to be
utilized by the owner of the sawmill up to the time of
his death in 1965. On or about March 17, 1973, there
again was a strong earthquake unfortunately causing
destruction to hundreds of residential houses fronting
the Calauag Bay including the Santiago Building, a
cinema house constructed of concrete materials. The
catastrophe totally caused the sinking of a concrete
bridge at Sumulong river also in the municipality of
Calauag, Quezon.
On November 13, 1977 a typhoon code named "Unding"
wrought havoc as it lashed the main land of Calauag, Quezon
causing again great erosion this time than that which the area
suffered in 1937. The Court noted with the significance of the
newspaper clipping entitled "Baryo ng Mangingisda Kinain ng
Dagat" (Exh. "11").
xxx xxx xxx
Evidently this was the condition of the land when on or
about December 5, 1972 defendant Josefina L. Morato
filed with the Bureau of Lands her free patent application.
The defendant Josefina Morato having taken possession of
the land after the demise of Don Tomas Morato, she
introduced improvement and continued developing the
area, planted it to coconut tree. Having applied for a free
patent, defendant had the land area surveyed and an
approved plan (Exh. "9") based on the cadastral survey as
early as 1927 (Exh. "10") was secured. The area was
declared for taxation purposes in the name of defendant
Josefina Morato denominated as Tax Declaration No. 4115

(Exh. "8") and the corresponding realty taxes religiously

paid as shown by Exh. "8-A"). (pp. 12-14, DECISION).
Being supported by substantial evidence and for
failure of the appellant to show cause which
would warrant disturbance, the aforecited
findings of the lower court, must be respected.
Petitioner correctly contends, however, that Private Respondent
Morato cannot own foreshore land:
Through the encroachment or erosion by the ebb and flow of
the tide, a portion of the subject land was invaded by the
waves and sea advances. During high tide, at least half of the
land (632.5 square meters) is 6 feet deep under water and
three (3) feet deep during low tide. The Calauag Bay shore has
extended up to a portion of the questioned land.
While at the time of the grant of free patent to respondent
Morato, the land was not reached by the water, however, due to
gradual sinking of the land caused by natural calamities, the sea
advances had permanently invaded a portion of subject land. As
disclosed at the trial, through the testimony of the courtappointed commissioner, Engr. Abraham B. Pili, the land was
under water during high tide in the month of August 1978. The
water margin covers half of the property, but during low tide,
the water is about a kilometer (TSN, July 19, 1979, p. 12). Also, in
1974, after the grant of the patent, the land was covered with
vegetation, but it disappeared in 1978 when the land was
reached by the tides (Exh. "E-1", "E-14"). In fact, in its decision
dated December 28, 1983, the lower court observed that the
erosion of the land was caused by natural calamities that struck
26
the place in 1977 (Cf. Decision, pp. 17-18).
Respondent-Spouses Quilatan argue, however, that it is "unfair and
unjust if Josefina Morato will be deprived of the whole property just
because a portion thereof was immersed in water for reasons not
27
her own doing."
As a general rule, findings of facts of the Court of Appeals are
binding and conclusive upon this Court, unless such factual findings
are palpably unsupported by the evidence on record or unless the
28
judgment itself is based on a misapprehension of facts. The
application for a free patent was made in 1972. From the
undisputed factual findings of the Court of Appeals, however, the
land has since become foreshore. Accordingly, it can no longer be
subject of a free patent under the Public Land Act. Government of
29
the Philippine Islands vs. Cabagis explained the rationale for this
proscription:

Article 1, case 3, of the law of Waters of August

3, 1866, provides as follows:
Art. 1. The following are part of the national
domain open to public use.
xxx xxx xxx
3. The Shores. By the shore is understood that
space covered and uncovered by the movement
of the tide. Its interior or terrestrial limit is the
line reached by the highest equinoctal tides.
Where the tides are not appreciable, the shore
begins on the land side at the line reached by the
sea during ordinary storms or tempests.
In the case of Aragon vs. Insular Government (19
Phil. 223), with reference to article 339 of the
Civil Code just quoted, this Court said:
We should not be understood, by this decision,
to hold that in a case of gradual encroachment
or erosion by the ebb and flow of the tide,
private property may not become "property of
public ownership." as defined in article 339 of
the code, where it appear that the owner has to
all intents and purposes abandoned it and
permitted it to be totally destroyed, so as to
become a part of the "playa" (shore of the sea),
"rada" (roadstead), or the like. . . .
In the Enciclopedia Juridica Espaola, volume XII,
page 558, we read the following:
With relative frequency the opposite
phenomenon occurs; that is, the sea advances
and private properties are permanently invaded
by the waves, and in this case they become part
of the shore or breach. The then pass to the
public domain, but the owner thus dispossessed
does not retain any right to the natural products
resulting from their new nature; it is a de
facto case of eminent domain, and not subject to
indemnity.
In comparison, Article 420 of the Civil Code provides:
Art. 420. The following things are property of
public dominion:

Article 339, subsection 1, of the Civil Code, reads:

Art. 339. Property of public ownership is
1. That devoted to public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State,
riverbanks, shores, roadsteads, and that of a similar
character.
xxx xxx xxx

(1) Those intended for public use, such as roads,

canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores,
roadsteads, and others of similar character;
(2) Those which belong to the State, without
being for public use, and are intended for some
public service or for the development of the
national wealth.
When the sea moved towards the estate and the tide invaded it, the
invaded property became foreshore land and passed to the realm of

the public domain. In fact, the Court in Government

30
vs. Cabangis annulled the registration of land subject of cadastral
proceedings when the parcel subsequently became foreshore
31
land. In another case, the Court voided the registration decree of
a trial court and held that said court had no jurisdiction to award
32
foreshore land to any private person or entity. The subject land in
this case, being foreshore land, should therefore be returned to the
public domain.

The City of Paraaque (the City) opposed the application for land
registration, stating that it needed the property for its flood control
program; that the property was within the legal easement of 20
meters from the river bank; and that assuming that the property
was not covered by the legal easement, title to the property could
not be registered in favor of the applicants for the reason that the
property was an orchard that had dried up and had not resulted
3
from accretion.

WHEREFORE, the petition is GRANTED. This Court hereby REVERSES

and SETS ASIDE the assailed Decision of Respondent Court and
ORDERS the CANCELLATION of Free Patent No. (IV-3) 275 issued to
Respondent Morato and the subsequent Original Certificate of Title
No. P-17789. The subject land therefore REVERTS to the State. No
costs.

Ruling of the RTC

SO ORDERED.
Romero, Melo and Francisco, JJ., concur.
Narvasa, C.J., is on leave.
G.R. No. 160453

November 12, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
ARCADIO IVAN A. SANTOS III, and ARCADIO C. SANTOS,
JR., Respondents.
DECISION
BERSAMIN, J.:
By law, accretion - the gradual and imperceptible deposit made
through the effects of the current of the water- belongs to the
owner of the land adjacent to the banks of rivers where it forms. The
drying up of the river is not accretion. Hence, the dried-up river bed
belongs to the State as property of public dominion, not to the
riparian owner, unless a law vests the ownership in some other
person.
Antecedents
Alleging continuous and adverse possession of more than ten years,
respondent Arcadio Ivan A. Santos III (Arcadio Ivan) applied on
March 7, 1997 for the registration of Lot 4998-B (the property) in
the Regional Trial Court (RTC) in Parafiaque City. The property,
which had an area of 1,045 square meters, more or less, was located
in Barangay San Dionisio, Paraaque City, and was bounded in the
Northeast by Lot 4079 belonging to respondent Arcadio C. Santos, Jr.
(Arcadio, Jr.), in the Southeast by the Paraaque River, in the
Southwest by an abandoned road, and in the Northwest by Lot
1
4998-A also owned by Arcadio Ivan.
On May 21, 1998, Arcadio Ivan amended his application for land
registration to include Arcadio, Jr. as his co-applicant because of the
latters co-ownership of the property. He alleged that the property
had been formed through accretion and had been in their joint
open, notorious, public, continuous and adverse possession for
2
more than 30 years.

On May 10, 2000, the RTC granted the application for land
registration, disposing:
WHEREFORE, the Court hereby declares the applicants, ARCADIO
IVAN A. SANTOS, III and ARCADIO C. SANTOS, JR., both Filipinos and
of legal age, as the TRUE and ABSOLUTE OWNERS of the land being
applied for which is situated in the Barangay of San Dionisio, City of
Paraaque with an area of one thousand forty five (1045) square
meters more or less and covered by Subdivision Plan Csd-00-000343,
being a portion of Lot 4998, Cad. 299, Case 4, Paraaque Cadastre,
LRC Rec. No. and orders the registration of Lot 4998-B in their names
with the following technical description, to wit:
xxxx
Once this Decision became (sic) final and executory, let the
corresponding Order for the Issuance of the Decree be issued.
SO ORDERED.
The Republic, through the Office of the Solicitor General (OSG),
appealed.
Ruling of the CA
In its appeal, the Republic ascribed the following errors to the
5
RTC, to wit:
I
THE TRIAL COURT ERRED IN RULING THAT THE PROPERTY SOUGHT
TO BE REGISTERED IS AN ACCRETION TO THE ADJOINING PROPERTY
OWNED BY APPELLEES DESPITE THE ADMISSION OF APPELLEE
ARCADIO C. SANTOS JR. THAT THE SAID PROPERTY WAS NOT
FORMED AS A RESULT OF THE GRADUAL FILLING UP OF SOIL
THROUGH THE CURRENT OF THE RIVER.
II
THE TRIAL COURT ERRED IN GRANTING THE APPLICATION FOR LAND
REGISTRATION DESPITE APPELLEES FAILURE TO FORMALLY OFFER
IN EVIDENCE AN OFFICIAL CERTIFICATION THAT THE SUBJECT
PARCEL OF LAND IS ALIENABLE AND DISPOSABLE.
III
THE TRIAL COURT ERRED IN RULING THAT APPELLEES HAD
SUFFICIENTLY ESTABLISHED THEIR CONTINUOUS, OPEN, PUBLIC AND
ADVERSE OCCUPATION OF THE SUBJECT PROPERTY FOR A PERIOD
OF MORE THAN THIRTY (30) YEARS.

On May 27, 2003, the CA affirmed the RTC.

The Republic filed a motion for reconsideration, but the CA denied

7
the motion on October 20, 2003.
Issues
Hence, this appeal, in which the Republic urges that:

I
RESPONDENTS CLAIM THAT THE SUBJECT PROPERTY IS AN
ACCRETION TO THEIR ADJOINING LAND THAT WOULD ENTITLE
THEM TO REGISTER IT UNDER ARTICLE 457 OF THE NEW CIVIL CODE
IS CONTRADICTED BY THEIR OWN EVIDENCE.
II
ASSUMING THAT THE LAND SOUGHT TO BE REGISTERED WAS
"PREVIOUSLY A PART OF THE PARAAQUE RIVER WHICH BECAME
AN ORCHARD AFTER IT DRIED UP," THE REGISTRATION OF SAID
PROPERTY IN FAVOR OF RESPONDENTS CANNOT BE ALTERNATIVELY
JUSTIFIED UNDER ARTICLE 461 OF THE CIVIL CODE.

On the basis of the evidence presented by the applicants, the Court

finds that Arcadio Ivan A. Santos III and Arcadio C. Santos, Jr., are the
owners of the land subject of this application which was previously a
part of the Paraaque River which became an orchard after it dried
up and further considering that Lot 4 which adjoins the same
property is owned by applicant, Arcadio C. Santos, Jr., after it was
obtained by him through inheritance from his mother, Concepcion
Cruz, now deceased. Conformably with Art. 457 of the New Civil
Code, it is provided that:
"Article 457. To the owners of the lands adjoining the bank of rivers
belong the accretion which they gradually receive from the effects
9
of the current of the waters."
The CA upheld the RTCs pronouncement, holding:
It could not be denied that "to the owners of the lands adjoining the
banks of rivers belong the accretion which they gradually receive
from the effects of the current of the waters" (Article 457 New Civil
Code) as in this case, Arcadio Ivan Santos III and Arcadio Santos, Jr.,
are the owners of the land which was previously part of the
Paraaque River which became an orchard after it dried up and
considering that Lot 4 which adjoins the same property is owned by
the applicant which was obtained by the latter from his mother
10
(Decision, p. 3; p. 38 Rollo).

III
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
RULING THAT THE FAILURE OF RESPONDENTS TO FORMALLY OFFER
IN EVIDENCE AN OFFICIAL CERTIFICATION THAT THE SUBJECT
PROPERTY IS ALIENABLE AND DISPOSABLE IS FATAL TO THEIR
APPLICATION FOR LAND REGISTRATION.
IV
THE FINDING OF THE COURT OF APPEALS THAT RESPONDENTS HAVE
CONTINUOUSLY, OPENLY, PUBLICLY AND ADVERSELY OCCUPIED THE
SUBJECT PROPERTY FOR MORE THAN THIRTY (30) YEARS IS NOT
SUPPORTED BY WELL-NIGH INCONTROVERTIBLE EVIDENCE.
To be resolved are whether or not Article 457 of the Civil Code was
applicable herein; and whether or not respondents could claim the
property by virtue of acquisitive prescription pursuant to Section
14(1) of Presidential Decree No. 1529 (Property Registration
Decree).
Ruling
The appeal is meritorious.

The Republic submits, however, that the application by both lower

courts of Article 457 of the Civil Code was erroneous in the face of
the fact that respondents evidence did not establish accretion, but
instead the drying up of the Paraaque River.
The Republics submission is correct.
Respondents as the applicants for land registration carried the
burden of proof to establish the merits of their application by a
preponderance of evidence, by which is meant such evidence that is
of greater weight, or more convincing than that offered in
11
opposition to it. They would be held entitled to claim the property
as their own and apply for its registration under the Torrens system
only if they established that, indeed, the property was an accretion
to their land.
Accretion is the process whereby the soil is deposited along the
12
banks of rivers. The deposit of soil, to be considered accretion,
must be: (a) gradual and imperceptible; (b) made through the
effects of the current of the water; and (c) taking place on land
13
adjacent to the banks of rivers.
Accordingly, respondents should establish the concurrence of the
elements of accretion to warrant the grant of their application for
land registration.

I.
The CA grossly erred in applying Article 457 of the Civil Code to
respondents benefit
Article 457 of the Civil Code provides that "(t)o the owners of lands
adjoining the banks of rivers belong the accretion which they
gradually receive from the effects of the currents of the waters."
In ruling for respondents, the RTC pronounced as follows:

However, respondents did not discharge their burden of proof. They

did not show that the gradual and imperceptible deposition of soil
through the effects of the current of the river had formed Lot 4998B. Instead, their evidence revealed that the property was the driedup river bed of the Paraaque River, leading both the RTC and the
CA to themselves hold that Lot 4998-B was "the land which was
previously part of the Paraaque River xxx (and) became an orchard
after it dried up."

Still, respondents argue that considering that Lot 4998-B did not yet
exist when the original title of Lot 4 was issued in their mothers
name in 1920, and that Lot 4998-B came about only thereafter as
the land formed between Lot 4 and the Paraaque River, the
unavoidable conclusion should then be that soil and sediments had
meanwhile been deposited near Lot 4 by the current of the
Paraaque River, resulting in the formation of Lot 4998-B.

that rivers and their natural beds are public dominion of the
18
State. It follows that the river beds that dry up, like Lot 4998-B,
continue to belong to the

The argument is legally and factually groundless. For one,

respondents thereby ignore that the effects of the current of the
river are not the only cause of the formation of land along a river
bank. There are several other causes, including the drying up of the
river bed. The drying up of the river bed was, in fact, the uniform
conclusion of both lower courts herein. In other words, respondents
did not establish at all that the increment of land had formed from
the gradual and imperceptible deposit of soil by the effects of the
current. Also, it seems to be highly improbable that the large volume
of soil that ultimately comprised the dry land with an area of 1,045
square meters had been deposited in a gradual and imperceptible
manner by the current of the river in the span of about 20 to 30
years the span of time intervening between 1920, when Lot 4 was
registered in the name of their deceased parent (at which time Lot
4998-B was not yet in existence) and the early 1950s (which
respondents witness Rufino Allanigue alleged to be the time when
he knew them to have occupied Lot 4988-B). The only plausible
explanation for the substantial increment was that Lot 4988-B was
the dried-up bed of the Paraaque River. Confirming this
explanation was Arcadio, Jr.s own testimony to the effect that the
property was previously a part of the Paraaque River that had dried
up and become an orchard.

II

We observe in this connection that even Arcadio, Jr.s own Transfer

Certificate of Title No. 44687 confirmed the uniform conclusion of
the RTC and the CA that Lot 4998-B had been formed by the drying
up of the Paraaque River. Transfer Certificate of Title No. 44687
recited that Lot 4 of the consolidated subdivision plan Pcs-13002563, the lot therein described, was bounded "on the SW along
14
line 5-1 by Dried River Bed."
That boundary line of "SW along line 5-1" corresponded with the
location of Lot 4998-B, which was described as "bounded by Lot
4079 Cad. 299, (Lot 1, Psu-10676), in the name of respondent
15
Arcadio Santos, Jr. (Now Lot 4, Psd-13-002563) in the Northeast."
The RTC and the CA grossly erred in treating the dried-up river bed
as an accretion that became respondents property pursuant to
Article 457 of the Civil Code. That land was definitely not an
accretion. The process of drying up of a river to form dry land
involved the recession of the water level from the river banks, and
the dried-up land did not equate to accretion, which was the gradual
and imperceptible deposition of soil on the river banks through the
effects of the current. In accretion, the water level did not recede
and was more or less maintained. Hence, respondents as the
riparian owners had no legal right to claim ownership of Lot 4998-B.
Considering that the clear and categorical language of Article 457 of
the Civil Code has confined the provision only to accretion, we
should apply the provision as its clear and categorical language tells
us to. Axiomatic it is, indeed, that where the language of the law is
clear and categorical, there is no room for interpretation; there is
16
only room for application. The first and fundamental duty of courts
17
is then to apply the law.
The State exclusively owned Lot 4998-B and may not be divested of
its right of ownership. Article 502 of the Civil Code expressly declares

State as its property of public dominion, unless there is an express

law that provides that the dried-up river beds should belong to some
19
other person.

Acquisitive prescription was

not applicable in favor of respondents
The RTC favored respondents application for land registration
covering Lot 4998-B also because they had taken possession of the
property continuously, openly, publicly and adversely for more than
30 years based on their predecessor-in-interest being the adjoining
owner of the parcel of land along the river bank. It rendered the
20
following ratiocination, viz:
In this regard, the Court found that from the time the applicants
became the owners thereof, they took possession of the same
property continuously, openly, publicly and adversely for more than
thirty (30) years because their predecessors-in-interest are the
adjoining owners of the subject parcel of land along the river bank.
Furthermore, the fact that applicants paid its realty taxes, had it
surveyed per subdivision plan Csd-00-000343 (Exh. "L") which was
duly approved by the Land Management Services and the fact that
Engr. Chito B. Cainglet, OICChief, Surveys Division Land Registration
Authority, made a Report that the subject property is not a portion
of the Paraaque River and that it does not fall nor overlap with Lot
5000, thus, the Court opts to grant the application.
Finally, in the light of the evidence adduced by the applicants in this
case and in view of the foregoing reports of the Department of
Agrarian Reforms, Land Registration Authority and the Department
of Environment and Natural Resources, the Court finds and so holds
that the applicants have satisfied all the requirements of law which
are essential to a government grant and is, therefore, entitled to the
issuance of a certificate of title in their favor. So also, oppositor
failed to prove that the applicants are not entitled thereto, not
having presented any witness.
In fine, the application is GRANTED.
As already mentioned, the CA affirmed the RTC.
Both lower courts erred.
The relevant legal provision is Section 14(1) of Presidential Decree
No. 1529 (Property Registration Decree), which pertinently states:
Section 14. Who may apply. The following persons may file in the
proper [Regional Trial Court] an application for registration of title to
land, whether personally or through their duly authorized
representatives:
(1) Those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive and notorious
possession and occupation of alienable and disposable lands of the

public domain under a bona fide claim of ownership since June 12,
1945, or earlier.
xxxx
Under Section 14(1), then, applicants for confirmation of imperfect
title must prove the following, namely: (a) that the land forms part
of the disposable and alienable agricultural lands of the public
domain; and (b) that they have been in open, continuous, exclusive,
and notorious possession and occupation of the land under a bona
fide claim of ownership either since time immemorial or since June
21
12, 1945.
The Republic assails the findings by the lower courts that
respondents "took possession of the same property continuously,
22
openly, publicly and adversely for more than thirty (30) years."
Although it is well settled that the findings of fact of the trial court,
especially when affirmed by the CA, are accorded the highest degree
of respect, and generally will not be disturbed on appeal, with such
23
findings being binding and conclusive on the Court, the Court has
consistently recognized exceptions to this rule, including the
following, to wit: (a) when the findings are grounded entirely on
speculation, surmises, or conjectures; (b) when the inference made
is manifestly mistaken, absurd, or impossible; (c) when there is grave
abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the findings of fact are
conflicting; (f) when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the admissions of
both the appellant and the appellee; (g) when the findings are
contrary to those of the trial court; (h) when the findings are
conclusions without citation of specific evidence on which they are
based; (i) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by respondent;
and (j) when the findings of fact are premised on the supposed
24
absence of evidence and contradicted by the evidence on record.
Here, the findings of the RTC were obviously grounded on
speculation, surmises, or conjectures; and that the inference made
by the RTC and the CA was manifestly mistaken, absurd, or
impossible. Hence, the Court should now review the findings.
In finding that respondents had been in continuous, open, public
and adverse possession of the land for more than 30 years, the RTC
declared:
In this regard, the Court found that from the time the applicant
became the owners thereof, they took possession of the same
property continuously, openly, publicly and adversely for more than
thirty years because their predecessor in interest are the adjoining
owners of the subject parcel of land along the river banks.
Furthermore, the fact that the applicant paid its realty taxes, had it
surveyed per subdivision plan Csd-00-000343 (Exh. "L") which was
duly approved by the Land Management Services and the fact that
Engr. Chito B. Cainglet, OIC Chief, Surveys Division Land
Registration Authority, made a Report that the subject property is
not a portion of the Paraaque River and that it does not fall nor
overlap with Lot 5000, thus, the Court opts to grant the application.
The RTC apparently reckoned respondents period of supposed
possession to be "more than thirty years" from the fact that "their
predecessors in interest are the adjoining owners of the subject
parcel of land." Yet, its decision nowhere indicated what acts

respondents had performed showing their possession of the

property "continuously, openly, publicly and adversely" in that
length of time. The decision mentioned only that they had paid
realty taxes and had caused the survey of the property to be made.
That, to us, was not enough to justify the foregoing findings,
because, firstly, the payment of realty taxes did not conclusively
prove the payors ownership of the land the taxes were paid
25
for, the tax declarations and payments being mere indicia of a
26
claim of ownership; and, secondly, the causing of surveys of the
property involved was not itself an of continuous, open, public and
adverse possession.
The principle that the riparian owner whose land receives the
gradual deposits of soil does not need to make an express act of
possession, and that no acts of possession are necessary in that
instance because it is the law itself that pronounces the alluvium to
belong to the riparian owner from the time that the deposit created
27
by the current of the water becomes manifest has no applicability
herein. This is simply because Lot 4998-B was not formed through
accretion. Hence, the ownership of the land adjacent to the river
bank by respondents predecessor-in-interest did not translate to
possession of Lot 4998-B that would ripen to acquisitive prescription
in relation to Lot 4998-B.
On the other hand, the claim of thirty years of continuous, open,
public and adverse possession of Lot 4998-B was not even validated
or preponderantly established. The admission of respondents
themselves that they declared the property for taxation purposes
28
only in 1997 and paid realty taxes only from 1999 signified that
their alleged possession would at most be for only nine years as of
the filing of their application for land registration on March 7, 1997.
Yet, even conceding, for the sake of argument, that respondents
possessed Lot 4998-B for more than thirty years in the character
they claimed, they did not thereby acquire the land by prescription
or by other means without any competent proof that the land was
already declared as alienable and disposable by the Government.
Absent that declaration, the land still belonged to the State as part
of its public dominion.
Article 419 of the Civil Code distinguishes property as being either of
public dominion or of private ownership. Article 420 of the Civil
Code lists the properties considered as part of public dominion,
namely: (a) those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and others of similar character; and (b) those
which belong to the State, without being for public use, and are
intended for some public service or for the development of the
national wealth. As earlier mentioned, Article 502 of the Civil Code
declares that rivers and their natural beds are of public dominion.
Whether the dried-up river bed may be susceptible to acquisitive
prescription or not was a question that the Court resolved in favor of
29
the State in Celestial v. Cachopero, a case involving the registration
of land found to be part of a dried-up portion of the natural bed of a
creek. There the Court held:
As for petitioners claim of ownership over the subject land,
admittedly a dried-up bed of the Salunayan Creek, based on (1) her
alleged long term adverse possession and that of her predecessorin-interest, Marcelina Basadre, even prior to October 22, 1966,
when she purchased the adjoining property from the latter, and (2)

the right of accession under Art. 370 of the Spanish Civil Code of
1889 and/or Article 461 of the Civil Code, the same must fail.
Since property of public dominion is outside the commerce of man
and not susceptible to private appropriation and acquisitive
prescription, the adverse possession which may be the basis of a
grant of title in the confirmation of an imperfect title refers only to
alienable or disposable portions of the public domain. It is only after
the Government has declared the land to be alienable and
disposable agricultural land that the year of entry, cultivation and
exclusive and adverse possession can be counted for purposes of an
imperfect title.
A creek, like the Salunayan Creek, is a recess or arm extending from
a river and participating in the ebb and flow of the sea. As such,
under Articles 420(1) and 502(1) of the Civil Code, the Salunayan
Creek, including its natural bed, is property of the public domain
which is not susceptible to private appropriation and acquisitive
prescription. And, absent any declaration by the government, that a
portion of the creek has dried-up does not, by itself, alter its
inalienable character.
xxxx
Had the disputed portion of the Salunayan Creek dried up after the
present Civil Code took effect, the subject land would clearly not
belong to petitioner or her predecessor-in-interest since under the
aforementioned provision of Article 461, "river beds which are
abandoned through the natural change in the course of the waters
ipso facto belong to the owners of the land occupied by the new
course," and the owners of the adjoining lots have the right to
acquire them only after paying their value.
And both Article 370 of the Old Code and Article 461 of the present
Civil Code are applicable only when "river beds are abandoned
through the natural change in the course of the waters." It is
uncontroverted, however, that, as found by both the Bureau of
Lands and the DENR Regional Executive Director, the subject land
became dry as a result of the construction an irrigation canal by the
National Irrigation Administration. Thus, in Ronquillo v. Court of
Appeals, this Court held:
The law is clear and unambiguous. It leaves no room for
interpretation. Article 370 applies only if there is a natural change in
the course of the waters. The rules on alluvion do not apply to manmade or artificial accretions nor to accretions to lands that adjoin
canals or esteros or artificial drainage systems. Considering our
earlier finding that the dried-up portion of Estero Calubcub was
actually caused by the active intervention of man, it follows that
Article 370 does not apply to the case at bar and, hence, the Del
Rosarios cannot be entitled thereto supposedly as riparian owners.
The dried-up portion of Estero Calubcub should thus be considered
as forming part of the land of the public domain which cannot be
subject to acquisition by private ownership. xxx (Emphasis supplied)
Furthermore, both provisions pertain to situations where there has
been a change in the course of a river, not where the river simply
dries up. In the instant Petition, it is not even alleged that the
Salunayan Creek changed its course. In such a situation,
commentators are of the opinion that the dry river bed remains
property of public dominion. (Bold emphases supplied)

Indeed, under the Regalian doctrine, all lands not otherwise

appearing to be clearly within private ownership are presumed to
30
belong to the State. No public land can be acquired by private
persons without any grant, express or implied, from the
Government. It is indispensable, therefore, that there is a showing
31
of a title from the State. Occupation of public land in the concept of
owner, no matter how long, cannot ripen into ownership and be
32
registered as a title.
Subject to the exceptions defined in Article 461 of the Civil Code
(which declares river beds that are abandoned through the natural
change in the course of the waters as ipso facto belonging to the
owners of the land occupied by the new course, and which gives to
the owners of the adjoining lots the right to acquire only the
abandoned river beds not ipso facto belonging to the owners of the
land affected by the natural change of course of the waters only
after paying their value), all river beds remain property of public
dominion and cannot be acquired by acquisitive prescription unless
previously declared by the Government to be alienable and
disposable. Considering that Lot 4998-B was not shown to be
already declared to be alienable and disposable, respondents could
not be deemed to have acquired the property through prescription.
Nonetheless, respondents insist that the property was already
classified as alienable and disposable by the Government. They cite
as proof of the classification as alienable and disposable the
33
following notation found on the survey plan, to wit:
NOTE
ALL CORNERS NOT OTHERWISE DESCRIBED ARE OLD BL CYL. CONC.
MONS 15 X 60CM
All corners marked PS are cyl. conc. mons 15 x 60 cm
Surveyed in accordance with Survey Authority NO. 007604-48 of the
Regional Executive Director issued by the CENR-OFFICER dated Dec.
2, 1996.
This survey is inside L.C. Map No. 2623, Proj. No. 25 classified as
alienable/disposable by the Bureau of Forest Devt. on Jan. 3, 1968.
Lot 4998-A = Lot 5883} Cad 299
Lot 4998-B = Lot 5884} Paranaque Cadastre.
Was the notation on the survey plan to the effect that Lot 4998-B
was "inside" the map "classified as alienable/disposable by the
Bureau of Forest Development on 03 Jan. 1968" sufficient proof of
the propertys nature as alienable and disposable public land?
To prove that the land subject of an application for registration is
alienable, an applicant must conclusively establish the existence of a
positive act of the Government, such as a presidential proclamation,
executive order, administrative action, investigation reports of the
Bureau of Lands investigator, or a legislative act or statute. Until
then, the rules on confirmation of imperfect title do not apply.
As to the proofs that are admissible to establish the alienability and
disposability of public land, we said in Secretary of the Department
34
of Environment and Natural Resources v. Yap that:

The burden of proof in overcoming the presumption of State

ownership of the lands of the public domain is on the person
applying for registration (or claiming ownership), who must prove
that the land subject of the application is alienable or disposable. To
overcome this presumption, incontrovertible evidence must be
established that the land subject of the application (or claim) is
alienable or disposable.There must still be a positive act declaring
land of the public domain as alienable and disposable. To prove that
the land subject of an application for registration is alienable, the
applicant must establish the existence of a positive act of the
government such as a presidential proclamation or an executive
order; an administrative action; investigation reports of Bureau of
Lands investigators; and a legislative act or a statute. The applicant
may also secure a certification from the government that the land
claimed to have been possessed for the required number of years is
alienable and disposable.
In the case at bar, no such proclamation, executive order,
administrative action, report, statute, or certification was presented
to the Court. The records are bereft of evidence showing that, prior
to 2006, the portions of Boracay occupied by private claimants were
subject of a government proclamation that the land is alienable and
disposable. Absent such well-nigh incontrovertible evidence, the
Court cannot accept the submission that lands occupied by private
claimants were already open to disposition before 2006. Matters of
land classification or reclassification cannot be assumed. They call
for proof." (Emphasis supplied)
35

In Menguito v. Republic, which we reiterated in Republic v.

36
Sarmiento, we specifically resolved the issue of whether the
notation on the survey plan was sufficient evidence to establish the
alienability and disposability of public land, to wit:
To prove that the land in question formed part of the alienable and
disposable lands of the public domain, petitioners relied on the
printed words which read: "This survey plan is inside Alienable and
Disposable Land Area, Project No. 27-B as per L.C. Map No. 2623,
certified by the Bureau of Forestry on January 3, 1968," appearing
on Exhibit "E" (Survey Plan No. Swo-13-000227).
This proof is not sufficient. Section 2, Article XII of the 1987
Constitution, provides: "All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. x x x."
For the original registration of title, the applicant (petitioners in this
case) must overcome the presumption that the land sought to be
registered forms part of the public domain. Unless public land is
shown to have been reclassified or alienated to a private person by
the State, it remains part of the inalienable public domain. Indeed,
"occupation thereof in the concept of owner, no matter how long,
cannot ripen into ownership and be registered as a title." To
overcome such presumption, incontrovertible evidence must be
shown by the applicant. Absent such evidence, the land sought to be
registered remains inalienable.
In the present case, petitioners cite a surveyor-geodetic engineers
notation in Exhibit "E" indicating that the survey was inside alienable
and disposable land. Such notation does not constitute a positive
government act validly changing the classification of the land in
question. Verily, a mere surveyor has no authority to reclassify lands
of the public domain. By relying solely on the said surveyors

assertion, petitioners have not sufficiently proven that the land in

question has been declared alienable. (Emphasis supplied)
37

In Republic v. T.A.N. Properties, Inc., we dealt with the sufficiency

of the certification by the Provincial Environmental Officer (PENRO)
or Community Environmental Officer (CENRO) to the effect that a
piece of public land was alienable and disposable in the following
manner, viz:
x x x it is not enough for the PENRO or CENRO to certify that a land is
alienable and disposable. The applicant for land registration must
prove that the DENR Secretary had approved the land classification
and released the land of the public domain as alienable and
disposable, and that the land subject of the application for
registration falls within the approved area per verification through
survey by the PENRO or CENRO. In addition, the applicant for land
registration must present a copy of the original classification
approved by the DENR Secretary and certified as a true copy by the
legal custodian of the official records. These facts must be
established to prove that the land is alienable and disposable.
Respondent failed to do so because the certifications presented by
respondent do not, by themselves, prove that the land is alienable
and disposable.
Only Torres, respondents Operations Manager, identified the
certifications submitted by respondent.1wphi1 The government
officials who issued the certifications were not presented before the
trial court to testify on their contents. The trial court should not
have accepted the contents of the certifications as proof of the facts
stated therein. Even if the certifications are presumed duly issued
and admissible in evidence, they have no probative value in
establishing that the land is alienable and disposable.
xxxx
The CENRO and Regional Technical Director, FMS-DENR,
certifications do not prove that Lot 10705-B falls within the alienable
and disposable land as proclaimed by the DENR Secretary. Such
government certifications do not, by their mere issuance, prove the
facts stated therein. Such government certifications may fall under
the class of documents contemplated in the second sentence of
Section 23 of Rule 132. As such, the certifications are prima facie
evidence of their due execution and date of issuance but they do not
constitute prima facie evidence of the facts stated therein.
(Emphasis supplied)
These rulings of the Court indicate that the notation on the survey
plan of Lot 4998-B, Cad-00-000343 to the effect that the "survey is
inside a map classified as alienable/disposable by the Bureau of
Forest Devt" did not prove that Lot 4998-B was already classified as
alienable and disposable. Accordingly, respondents could not validly
assert acquisitive prescription of Lot 4988-B.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of
the Court of Appeals promulgated on May 27, 2003; DISMISSES the
application for registration of Arcadio C. Santos, Jr. and Arcadio Ivan
S. Santos III respecting Lot 4998-B with a total area of 1,045 square
meters, more or less, situated in Barangay San Dionisio, Paraaque
City, Metro Manila; and DECLARES Lot 4998-B as exclusively
belonging to the State for being part of the dried--up bed of the
Parat1aque River.
Respondents shall pay the costs of suit.

SO ORDERED.
G. R. No. 185124

January 25, 2012

REPUBLIC OF THE PHILIPPINES, represented by the NATIONAL

IRRIGATION ADMINISTRATION (NIA),Petitioner,
vs.
RURAL BANK OF KABACAN, INC., LITTIE SARAH A. AGDEPPA, LEOSA
NANETTE AGDEPPA and MARCELINO VIERNES, MARGARITA
TABOADA, PORTIA CHARISMA RUTH ORTIZ, represented by LINA
ERLINDA A. ORTIZ and MARIO ORTIZ, JUAN MAMAC and GLORIA
MATAS, Respondents.
DECISION
SERENO, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Rules of Court, seeking the reversal of the 12 August 2008
Court of Appeals (CA) Decision and 22 October 2008 Resolution in
CA-G.R. CV No. 65196.
The assailed issuances affirmed with modification the 31 August
1999 "Judgment" promulgated by the Regional Trial Court (RTC),
Branch 22, Judicial Region, Kabacan, Cotabato. The RTC had fixed the
just compensation for the value of the land and improvements
thereon that were expropriated by petitioner, but excluded the
value of the excavated soil. Petitioner Republic of the Philippines is
represented in this case by the National Irrigation Authority (NIA).

On 11 July 1995, NIA filed an Amended Complaint to include Leosa

Nanette A. Agdeppa and Marcelino Viernes as registered owners of
4
Lot No. 3039.
On 25 September 1995, NIA filed a Second Amended Complaint to
allege properly the area sought to be expropriated, the exact
address of the expropriated properties and the owners thereof. NIA
further prayed that it be authorized to take immediate possession of
the properties after depositing with the Philippine National Bank the
5
amount of P 19,246.58 representing the provisional value thereof.
On 31 October 1995, respondents filed their Answer with
6
Affirmative and Special Defenses and Counterclaim. They alleged,
inter alia, that NIA had no authority to expropriate portions of their
land, because it was not a sovereign political entity; that it was not
necessary to expropriate their properties, because there was an
abandoned government property adjacent to theirs, where the
project could pass through; that Lot No. 3080 was no longer owned
by the Rural Bank of Kabacan; that NIAs valuation of their
expropriated properties was inaccurate because of the
improvements on the land that should have placed its value at P 5
million; and that NIA never negotiated with the landowners before
taking their properties for the project, causing permanent and
7
irreparable damages to their properties valued at P 250,000.
On 11 September 1996, the RTC issued an Order forming a
committee tasked to determine the fair market value of the
expropriated properties to establish the just compensation to be
paid to the owners. The committee was composed of the Clerk of
Court of RTC Branch 22 as chairperson and two (2) members of the
8
parties to the case.

The Facts
NIA is a government-owned-and-controlled corporation created
under Republic Act No. (R.A.) 3601 on 22 June 1963. It is primarily
responsible for irrigation development and management in the
country. Its charter was amended by Presidential Decree (P.D.) 552
on 11 September 1974 and P.D. 1702 on 17 July 1980. To carry out
its purpose, NIA was specifically authorized under P.D. 552 to
1
exercise the power of eminent domain.
NIA needed some parcels of land for the purpose of constructing the
Malitubog-Marigadao Irrigation Project. On 08 September 1994, it
filed with the RTC of Kabacan, Cotabato a Complaint for the
expropriation of a portion of three (3) parcels of land covering a
2
total of 14,497.91 square meters. The case was docketed as Special
Civil Case No. 61 and was assigned to RTC-Branch 22. The affected
parcels of land were the following:
1) Lot No. 3080 covered by Transfer Certificate of Title
(TCT) No. T-61963 and registered under the Rural Bank of
Kabacan
2) Lot No. 455 covered by TCT No. T-74516 and
registered under the names of RG May, Ronald and
Rolando, all surnamed Lao
3) Lot No. 3039 registered under the name of Littie Sarah
3
Agdeppa

On 20 September 1996, in response to the expropriation Complaint,

respondents-intervenors Margarita Tabaoda, Portia Charisma Ruth
Ortiz, Lina Erlinda Ortiz, Mario Ortiz, Juan Mamac and Gloria Matas
filed their Answer-in-Intervention with Affirmative and Special
Defenses and Counter-Claim. They essentially adopted the
allegations in the Answer of the other respondents and pointed out
that Margarita Tabaoda and Portia Charisma Ruth Ortiz were the
new owners of Lot No. 3080, which the two acquired from the Rural
Bank of Kabacan. They further alleged that the four other
respondents-intervenors were joint tenants-cultivators of Lot Nos.
9
3080 and 3039.
On 10 October 1996, the lower court issued an Order stating it
would issue a writ of possession in favor of NIA upon the
determination of the fair market value of the properties, subject of
10
the expropriation proceedings. The lower court later amended its
ruling and, on 21 October 1996, issued a Writ of Possession in favor
11
of NIA.
On 15 October 1996, the committee submitted a Commissioners
12
Report to the RTC stating the following observations:
In the process of ocular inspection, the following were jointly
observed:
1) The area that was already occupied is 6x200 meters
which is equivalent to 1,200 square meters;
2) The area which is to be occupied is 18,930 square
meters, more or less;

3) That the area to be occupied is fully planted by gmelina

trees with a spacing of 1x1 meters;
4) That the gmelina tress found in the area already
occupied and used for [the] road is planted with gmelina
with spacing of 2x2 and more or less one (1) year old;
5) That the gmelina trees found in the area to be occupied
are already four (4) years old;

2. That the NIA shall pay to the defendants the amount

of P 1,230,450 for the 18,930 square meters expropriated
in proportion to the areas so expropriated;
3. That the NIA shall pay to the defendant-intervenors,
owners of Lot No. 3080, the sum of P 5,128,375.50,
representing removed earthfill;

6) That the number of banana clumps (is) two hundred

twenty (220);
7) That the number of coco trees found (is) fifteen (15).

1. That 18,930 square meters of the lands owned by the

defendants is hereby expropriated in favor of the Republic
of the Philippines through the National Irrigation
Administration;

13

The report, however, stated that the committee members could not
agree on the market value of the subject properties and
recommended the appointment of new independent commissioners
14
to replace the ones coming from the parties only. On 22 October
15
1996, the RTC issued an Order revoking the appointments of Atty.
Agdeppa and Engr. Mabang as members of the committee and, in
their stead, appointed Renato Sambrano, Assistant Provincial
Assessor of the Province of Cotabato; and Jack Tumacmol, Division
16
Chief of the Land Bank of the PhilippinesKidapawan Branch.
On 25 November 1996, the new committee submitted its
Commissioners Report to the lower court. The committee had
agreed that the fair market value of the land to be expropriated
should be P 65 per square meter based on the zonal valuation of the
Bureau of Internal Revenue (BIR). As regards the improvement on
the properties, the report recommended the following
compensation:
a. P 200 for each gmelina tree that are more than four (4)
years old
b. P 150 for each gmelina tree that are more than one (1)
year old
c. P 164 for each coco tree

4. That the NIA shall pay to the defendants, owners of Lot

No. 3039, the sum of P1,929,611.30 representing earthfill;
5. To pay to the defendants the sum of P 60,000 for the
destroyed G-melina trees (1 year old);
6. To pay to the defendants the sum of P 3,786,000.00 for
the 4-year old G-melina trees;
7. That NIA shall pay to the defendants the sum
of P 2,460.00 for the coconut trees;
8. That all payments intended for the defendant Rural
Bank of Kabacan shall be given to the defendants and
intervenors who have already acquired ownership over
21
the land titled in the name of the Bank.
NIA, through the Office of the Solicitor General (OSG), appealed the
Decision of the RTC to the CA, which docketed the case as CA-G.R.
CV No. 65196. NIA assailed the trial courts adoption of the
Commissioners Report, which had determined the just
compensation to be awarded to the owners of the lands
expropriated. NIA also impugned as error the RTCs inclusion for
compensation of the excavated soil from the expropriated
properties. Finally, it disputed the trial courts Order to deliver the
payment intended for the Rural Bank of Kabacan to defendantsintervenors, who allegedly acquired ownership of the land still titled
22
in the name of the said rural bank.

17

d. P 270 for each banana clump

The Ruling of the Court of Appeals

On 03 December 1997, the committee submitted to the RTC another

report, which had adopted the first Committee Report, as well as the
formers 25 November 1996 report. However, the committee added
to its computation the value of the earthfill excavated from portions
18
of Lot Nos. 3039 and 3080. Petitioner objected to the inclusion of
the value of the excavated soil in the computation of the value of
19
the land.
The Ruling of the Trial Court
20

On 31 August 1999, the RTC promulgated its "Judgment," the

dispositive portion of which reads:
WHEREFORE, IN VIEW of all the foregoing considerations, the court
finds and so holds that the commissioners have arrived at and were
able to determine the fair market value of the properties. The court
adopts their findings, and orders:

On 12 August 2008, the CA through its Twenty-First (21st) Division,

23
promulgated a Decision affirming with modification the RTC
Decision. It ruled that the committee tasked to determine the fair
market value of the properties and improvements for the purpose of
arriving at the just compensation, properly performed its function.
The appellate court noted that the committee members had
conducted ocular inspections of the area surrounding the
expropriated properties and made their recommendations based on
official documents from the BIR with regard to the zonal valuations
24
of the affected properties. The CA observed that, as far as the
valuation of the improvements on the properties was concerned,
the committee members took into consideration the provincial
assessors appraisal of the age of the trees, their productivity and
25
the inputs made. The appellate court further noted that despite
the Manifestation of NIA that it be allowed to present evidence to
rebut the recommendation of the committee on the valuations of
26
the expropriated properties, NIA failed to do so.

The assailed CA Decision, however, deleted the inclusion of the

value of the soil excavated from the properties in the just
compensation. It ruled that the property owner was entitled to
compensation only for the value of the property at the time of the
27
taking. In the construction of irrigation projects, excavations are
necessary to build the canals, and the excavated soil cannot be
valued separately from the land expropriated. Thus, it concluded
that NIA, as the new owner of the affected properties, had the right
to enjoy and make use of the property, including the excavated soil,
28
pursuant to the latters objectives.
Finally, the CA affirmed the trial courts ruling that recognized
defendants-intervenors Margarita Tabaoda and Portia Charisma
Ruth Ortiz as the new owners of Lot No. 3080 and held that they
were thus entitled to just compensation. The appellate court based
its conclusion on the non-participation by the Rural Bank of Kabacan
in the expropriation proceedings and the latters Manifestation that
29
it no longer owned Lot No. 3080.
On 11 September 2008, the NIA through the OSG filed a Motion for
Reconsideration of the 12 August 2008 Decision, but that motion
30
was denied.
Aggrieved by the appellate courts Decision, NIA now comes to this
Court via a Petition for Review on Certiorari under Rule 45.
The Issues
The following are the issues proffered by petitioner:
The Court of appeals seriously erred in affirming the trial courts
finding of just compensation of the land and the improvements
thereon based on the report of the commissioners.
The court of appeals erred in ruling that the payment of just
compensation for lot no. 3080 should be made to respondents
31
margarita taboada and Portia charisma ruth Ortiz.

The records show that the trial court dutifully followed the
procedure under Rule 67 of the 1997 Rules of Civil Procedure when
it formed a committee that was tasked to determine the just
compensation for the expropriated properties. The first set of
committee members made an ocular inspection of the properties,
subject of the expropriation. They also determined the exact areas
affected, as well as the kinds and the number of improvements on
34
the properties. When the members were unable to agree on the
valuation of the land and the improvements thereon, the trial court
selected another batch of disinterested members to carry out the
task of determining the value of the land and the improvements.
The new committee members even made a second ocular inspection
of the expropriated areas. They also obtained data from the BIR to
determine the zonal valuation of the expropriated properties,
interviewed the adjacent property owners, and considered other
factors such as distance from the highway and the nearby town
35
center. Further, the committee members also considered
Provincial Ordinance No. 173, which was promulgated by the
Province of Cotabato on 15 June 1999, and which provide for the
value of the properties and the improvements for taxation
36
purposes.
We can readily deduce from these established facts that the
committee members endeavored a rigorous process to determine
the just compensation to be awarded to the owners of the
expropriated properties. We cannot, as petitioner would want us to,
oversimplify the process undertaken by the committee in arriving at
its recommendations, because these were not based on mere
conjectures and unreliable data.
37

In National Power Corporation v. Diato-Bernal, this Court

emphasized that the "just"-ness of the compensation could only be
attained by using reliable and actual data as bases for fixing the
value of the condemned property. The reliable and actual data we
referred to in that case were the sworn declarations of realtors in
the area, as well as tax declarations and zonal valuation from the
BIR. In disregarding the Committee Report assailed by the National
Power Corporation in the said case, we ruled thus:

The Courts Ruling

On the first issue, the Petition is not meritorious.
In expropriation proceedings, just compensation is defined as the
full and fair equivalent of the property taken from its owner by the
expropriator. The measure is not the taker's gain, but the owner's
loss. The word "just" is used to intensify the meaning of the word
"compensation" and to convey thereby the idea that the equivalent
to be rendered for the property to be taken shall be real,
32
substantial, full and ample. The constitutional limitation of "just
compensation" is considered to be a sum equivalent to the market
value of the property, broadly defined as the price fixed by the seller
in open market in the usual and ordinary course of legal action and
competition; or the fair value of the property; as between one who
receives and one who desires to sell it, fixed at the time of the actual
33
taking by the government.
In the instant case, we affirm the appellate courts ruling that the
commissioners properly determined the just compensation to be
awarded to the landowners whose properties were expropriated by
petitioner.

It is evident that the above conclusions are highly speculative and

devoid of any actual and reliable basis. First, the market values of
the subject propertys neighboring lots were mere estimates and
unsupported by any corroborative documents, such as sworn
declarations of realtors in the area concerned, tax declarations or
zonal valuation from the Bureau of Internal Revenue for the
contiguous residential dwellings and commercial establishments.
The report also failed to elaborate on how and by how much the
community centers and convenience facilities enhanced the value of
respondents property. Finally, the market sales data and price
listings alluded to in the report were not even appended thereto.
As correctly invoked by NAPOCOR, a commissioners report of land
prices which is not based on any documentary evidence is manifestly
hearsay and should be disregarded by the court.
The trial court adopted the flawed findings of the commissioners
hook, line, and sinker. It did not even bother to require the
submission of the alleged "market sales data" and "price listings."
Further, the RTC overlooked the fact that the recommended just
compensation was gauged as of September 10, 1999 or more than
two years after the complaint was filed on January 8, 1997. It is
settled that just compensation is to be ascertained as of the time of

the taking, which usually coincides with the commencement of the

expropriation proceedings. Where the institution of the action
precedes entry into the property, the just compensation is to be
ascertained as of the time of the filing of the complaint. Clearly, the
recommended just compensation in the commissioners report is
38
unacceptable.
In the instant case, the committee members based their
recommendations on reliable data and, as aptly noted by the
appellate court, considered various factors that affected the value of
39
the land and the improvements.
Petitioner, however, strongly objects to the CAs affirmation of the
trial courts adoption of Provincial Ordinance No. 173. The OSG, on
behalf of petitioner, strongly argues that the recommendations of
the committee formed by the trial court were inaccurate. The OSG
contends that the ordinance reflects the 1999 market values of real
properties in the Province of Cotabato, while the actual taking was
40
made in 1996.
We are not persuaded.
We note that petitioner had ample opportunity to rebut the
testimonial, as well as documentary evidence presented by
respondents when the case was still on trial. It failed to do so,
however. The issue raised by petitioner was adequately addresses
by the CAs assailed Decision in this wise:
A thorough scrutiny of the records reveals that the second set of
Commissioners, with Atty. Marasigan still being the Chairperson and
Mr. Zambrano and Mr. Tomacmol as members, was not arbitrary
and capricious in performing the task assigned to them. We note
that these Commissioners were competent and disinterested
persons who were handpicked by the court a quo due to their
expertise in appraising the value of the land and the improvements
thereon in the province of Cotabato. They made a careful study of
the area affected by the expropriation, mindful of the fact that the
value of the land and its may be affected by many factors. The duly
appointed Commissioners made a second ocular inspection of the
subject area on 4 September 1997; went to the BIR office in order to
get the BIR zonal valuation of the properties located in Carmen,
Cotabato; interviewed adjacent property owners; and took into
consideration various factors such as the location of the land which
is just less than a kilometer away from the Poblacion and half a
kilometer away from the highway and the fact that it is near a
military reservation. With regard to the improvements, the
Commissioners took into consideration the valuation of the
Provincial Assessor, the age of the trees, and the inputs and their
productivity.
Thus, it could not be said that the schedule of market values in
Ordinance No. 173 was the sole basis of the Commissioners in
arriving at their valuation. Said ordinance merely gave credence to
their valuation which is comparable to the current price at that time.
Besides, Mr. Zambrano testified that the date used as bases for
41
Ordinance No. 173 were taken from 1995 to 1996.
Moreover, factual findings of the CA are generally binding on this
Court. The rule admits of exceptions, though, such as when the
factual findings of the appellate court and the trial court are
contradictory, or when the findings are not supported by the
42
evidence on record. These exceptions, however, are not present in
the instant case.

Thus, in the absence of contrary evidence, we affirm the findings of

the CA, which sustained the trial courts Decision adopting the
committees recommendations on the just compensation to be
awarded to herein respondents.
We also uphold the CA ruling, which deleted the inclusion of the
value of the excavated soil in the payment for just compensation.
There is no legal basis to separate the value of the excavated soil
from that of the expropriated properties, contrary to what the trial
court did. In the context of expropriation proceedings, the soil has
no value separate from that of the expropriated land. Just
compensation ordinarily refers to the value of the land to
compensate for what the owner actually loses. Such value could only
be that which prevailed at the time of the taking.
43

In National Power Corporation v. Ibrahim, et al., we held that

rights over lands are indivisible, viz:
*C+onsequently, the CAs findings which upheld those of the trial
court that respondents owned and possessed the property and that
its substrata was possessed by petitioner since 1978 for the
underground tunnels, cannot be disturbed. Moreover, the Court
sustains the finding of the lower courts that the sub-terrain portion
of the property similarly belongs to respondents. This conclusion is
drawn from Article 437 of the Civil Code which provides:
ART. 437. The owner of a parcel of land is the owner of its surface
and of everything under it, and he can construct thereon any works
or make any plantations and excavations which he may deem
proper, without detriment to servitudes and subject to special laws
and ordinances. He cannot complain of the reasonable requirements
of aerial navigation.
Thus, the ownership of land extends to the surface as well as to the
subsoil under it.
xxx

xxx

xxx

Registered landowners may even be ousted of ownership and

possession of their properties in the event the latter are reclassified
as mineral lands because real properties are characteristically
indivisible. For the loss sustained by such owners, they are entitled
to just compensation under the Mining Laws or in appropriate
expropriation proceedings.
Moreover, petitioners argument that the landowners right extends
to the sub-soil insofar as necessary for their practical interests
serves only to further weaken its case. The theory would limit the
right to the sub-soil upon the economic utility which such area offers
to the surface owners. Presumably, the landowners right extends to
such height or depth where it is possible for them to obtain some
benefit or enjoyment, and it is extinguished beyond such limit as
there would be no more interest protected by law.
Hence, the CA correctly modified the trial courts Decision when it
ruled thus:
We agree with the OSG that NIA, in the construction of irrigation
projects, must necessarily make excavations in order to build the
canals. Indeed it is preposterous that NIA will be made to pay not
only for the value of the land but also for the soil excavated from
such land when such excavation is a necessary phase in the building

of irrigation projects. That NIA will make use of the excavated soil is
of no moment and is of no concern to the landowner who has been
paid the fair market value of his land. As pointed out by the OSG, the
law does not limit the use of the expropriated land to the surface
area only. Further, NIA, now being the owner of the expropriated
property, has the right to enjoy and make use of the property in
accordance with its mandate and objectives as provided by law. To
sanction the payment of the excavated soil is to allow the
landowners to recover more than the value of the land at the time
when it was taken, which is the true measure of the damages, or just
compensation, and would discourage the construction of important
44
public improvements.

the plaintiff can enter upon the property, or retain it for the public
use or purpose if entry has already been made.

On the second issue, the Petition is meritorious.

Hence, the appellate court erred in affirming the trial courts Order
to award payment of just compensation to the defendantsintervenors. There is doubt as to the real owner of Lot No. 3080.
Despite the fact that the lot was covered by TCT No. T-61963 and
was registered under its name, the Rural Bank of Kabacan
manifested that the owner of the lot was no longer the bank, but
the defendants-intervenors; however, it presented no proof as to
the conveyance thereof. In this regard, we deem it proper to
remand this case to the trial court for the reception of evidence to
establish the present owner of Lot No. 3080 who will be entitled to
receive the payment of just compensation.

The CA affirmed the ruling of the trial court, which had awarded the
payment of just compensation intended for Lot No. 3080
registered in the name of the Rural Bank of Kabacan to the
defendants-intervenors on the basis of the non-participation of the
rural bank in the proceedings and the latters subsequent
Manifestation that it was no longer the owner of that lot. The
appellate court erred on this matter.

WHEREFORE, the Petition is PARTLY GRANTED. The 12 August 2008

CA Decision in CA-G.R. CV No. 65196, awarding just compensation to
the defendants as owners of the expropriated properties and
deleting the inclusion of the value of the excavated soil, is hereby
AFFIRMED with MODIFICATION. The case is hereby REMANDED to
the trial court for the reception of evidence to establish the present
owner of Lot No. 3080. No pronouncements as to cost.

It should be noted that eminent domain cases involve the

45
expenditure of public funds. In this kind of proceeding, we require
trial courts to be more circumspect in their evaluation of the just
compensation to be awarded to the owner of the expropriated
46
property. Thus, it was imprudent for the appellate court to rely on
the Rural Bank of Kabacans mere declaration of non-ownership and
non-participation in the expropriation proceeding to validate
defendants-intervenors claim of entitlement to that payment.

SO ORDERED.

The law imposes certain legal requirements in order for a

conveyance of real property to be valid.1wphi1 It should be noted
that Lot No. 3080 is a registered parcel of land covered by TCT No. T61963. In order for the reconveyance of real property to be valid,
47
the conveyance must be embodied in a public document and
registered in the office of the Register of Deeds where the property
48
is situated.
We have scrupulously examined the records of the case and found
no proof of conveyance or evidence of transfer of ownership of Lot
No. 3080 from its registered owner, the Rural Bank of Kabacan, to
defendants-intervenors. As it is, the TCT is still registered in the
name of the said rural bank. It is not disputed that the bank did not
participate in the expropriation proceedings, and that it manifested
that it no longer owned Lot No. 3080. The trial court should have
nevertheless required the rural bank and the defendantsintervenors to show proof or evidence pertaining to the conveyance
of the subject lot. The court cannot rely on mere inference,
considering that the payment of just compensation is intended to be
awarded solely owner based on the latters proof of ownership.
The trial court should have been guided by Rule 67, Section 9 of the
1997 Rules of Court, which provides thus:

G.R. No. 168967

February 12, 2010

CITY OF ILOILO represented by HON. JERRY P. TREAS, City

Mayor, Petitioner,
vs.
HON. LOLITA CONTRERAS-BESANA, Presiding Judge, Regional Trial
Court, Branch 32, and ELPIDIO JAVELLANA, Respondents.
DECISION
DEL CASTILLO, J.:
It is arbitrary and capricious for the government to initiate
expropriation proceedings, seize a persons property, allow the
order of expropriation to become final, but then fail to justly
compensate the owner for over 25 years. This is government at its
most high-handed and irresponsible, and should be condemned in
the strongest possible terms. For its failure to properly compensate
the landowner, the City of Iloilo is liable for damages.
This Petition for Certiorari under Rule 65 of the Rules of Court with a
prayer for the issuance of a temporary restraining order seeks to
overturn the three Orders issued by Regional Trial Court (RTC) of
Iloilo City, Branch 32 on the following dates: December 12, 2003 (the
1
First Assailed Order), June 15, 2004 (the Second Assailed
2
Order), and March 9, 2005 (the Third Assailed Order) (the three
aforementioned Orders are collectively referred to as the Assailed
3
Orders).
Factual Antecedents

SEC. 9. Uncertain ownership; conflicting claims. If the ownership

of the property taken is uncertain, or there are conflicting claims to
any part thereof, the court may order any sum or sums awarded as
compensation for the property to be paid to the court for the
benefit of the person adjudged in the same proceeding to be
entitled thereto. But the judgment shall require the payment of the
sum or sums awarded to either the defendant or the court before

The essential facts are not in dispute.

4

On September 18, 1981, petitioner filed a Complaint for eminent

domain against private respondent Elpidio T. Javellana (Javellana)
and Southern Negros Development Bank, the latter as mortgagee.
The complaint sought to expropriate two parcels of land known as

Lot Nos. 3497-CC and 3497-DD registered in Javellanas name under

Transfer Certificate of Title (TCT) No. T-44894 (the Subject Property)
5
to be used as a school site for Lapaz High School. Petitioner alleged
that the Subject Property was declared for tax purposes in Tax
Declaration No. 40080 to have a value of P60.00 per square meter,
or a total value of P43,560.00. The case was docketed as Civil Case
No. 14052 and raffled to then Court of First Instance of Iloilo, Branch
7.
6

On December 9, 1981, Javellana filed his Answer where he admitted

ownership of the Subject Property but denied the petitioners
avowed public purpose of the sought-for expropriation, since the
City of Iloilo already had an existing school site for Lapaz High
School. Javellana also claimed that the true fair market value of his
7
property was no less than P220.00 per square meter.
On May 11, 1982, petitioner filed a Motion for Issuance of Writ of
Possession, alleging that it had deposited the amount of P40,000.00
with the Philippine National Bank-Iloilo Branch. Petitioner claimed
that it was entitled to the immediate possession of the Subject
8
Property, citing Section 1 of Presidential Decree No. 1533, after it
had deposited an amount equivalent to 10% of the amount of
compensation. Petitioner attached to its motion a Certification
issued by Estefanio C. Libutan, then Officer-in-Charge of the Iloilo
9
City Treasurers Office, stating that said deposit was made.
Javellana filed an Opposition to the Motion for the Issuance of Writ
10
of Possession citing the same grounds he raised in his Answer
that the city already had a vast tract of land where its existing school
site was located, and the deposit of a mere 10% of the Subject
Propertys tax valuation was grossly inadequate.
11

On May 17, 1983, the trial court issued an Order which granted
petitioners Motion for Issuance of Writ of Possession and authorized
the petitioner to take immediate possession of the Subject Property.
The court ruled:
Premises considered, the Motion for the Issuance of a Writ of
Possession dated May 10, 1982, filed by plaintiff is hereby granted.
Plaintiff is hereby allowed to take immediate possession, control and
disposition of the properties known as Lot Nos. 3497-CC and 349712
DD x x x.
13

Thereafter, a Writ of Possession was issued in petitioners favor,

and petitioner was able to take physical possession of the properties
sometime in the middle of 1985. At no time has Javellana ever
denied that the Subject Property was actually used as the site of
Lapaz National High School. Aside from the filing by the private
14
respondent of his Amended Answer on April 21, 1984, the
expropriation proceedings remained dormant.
Sixteen years later, on April 17, 2000, Javellana filed an Ex Parte
Motion/Manifestation, where he alleged that when he finally sought
to withdraw the P40,000.00 allegedly deposited by the petitioner,
he discovered that no such deposit was ever made. In support of this
contention, private respondent presented a Certification from the
Philippine National Bank stating that no deposit was ever made for
15
the expropriation of the Subject Property. Private respondent thus
demanded his just compensation as well as interest. Attempts at an
amicable resolution and a negotiated sale were unsuccessful. It
bears emphasis that petitioner could not present any evidence
whether documentary or testimonial to prove that any payment
was actually made to private respondent.

Thereafter, on April 2, 2003, private respondent filed a

16
Complaint against petitioner for Recovery of Possession, Fixing and
Recovery of Rental and Damages. The case was docketed as Civil
Case No. 03-27571, and raffled to Branch 28 of the Iloilo City
Regional Trial Court. Private respondent alleged that since he had
not been compensated for the Subject Property, petitioners
possession was illegal, and he was entitled to recovery of possession
of his lots. He prayed that petitioner be ordered to vacate the
Subject Property and pay rentals amounting to P15,000.00 per
month together with moral, exemplary, and actual damages, as well
as attorneys fees.1avvphi1
17

On May 15, 2003, petitioner filed its Answer, arguing that Javellana
could no longer bring an action for recovery since the Subject
Property was already taken for public use. Rather, private
respondent could only demand for the payment of just
compensation. Petitioner also maintained that the legality or
illegality of petitioners possession of the property should be
determined in the eminent domain case and not in a separate action
for recovery of possession.
Both parties jointly moved to consolidate the expropriation case
(Civil Case No. 14052) and the case for recovery of possession (Civil
18
Case No. 03-27571), which motion was granted by the trial court in
19
an Order dated August 26, 2003. On November 14, 2003, a
commission was created to determine the just compensation due to
20
Javellana.
On November 20, 2003, private respondent filed a
Motion/Manifestation dated November 19, 2003 claiming that
before a commission is created, the trial court should first order the
condemnation of the property, in accordance with the Rules of
Court. Javellana likewise insisted that the fair market value of the
Subject Property should be reckoned from the date when the court
orders the condemnation of the property, and not the date of actual
taking, since petitioners possession of the property was
21
questionable. Before petitioner could file its Comment, the RTC
22
issued an Order dated November 21, 2003 denying the Motion.
Undeterred, Javellana filed on November 25, 2003, an Omnibus
Motion to Declare Null and Void the Order of May 17, 1983 and
to Require Plaintiff to Deposit 10% or P254,000.00. Javellana claimed
that the amount is equivalent to the 10% of the fair market value of
the Subject Property, as determined by the Iloilo City Appraisal
Committee in 2001, at the time when the parties were trying to
23
negotiate a settlement.
First Assailed Order
On December 12, 2003, the RTC issued the First Assailed Order,
which nullified the Order dated May 17, 1983 (concerning the
issuance of a writ of possession over the Subject Property). The trial
court ruled:
x x x the Order dated May 17, 1983 is hereby declared null and void
and the plaintiff [is] hereby ordered to immediately deposit with the
PNB the 10% of the just compensation after the Commission shall
have rendered its report and have determined the value of the
property not at the time it was condemned but at the time the
24
complaint was filed in court. (Emphasis ours)
Second Assailed Order

25

Neither party sought reconsideration of this Order. Nonetheless,

about six months later, the RTC issued the Second Assailed Order,
which it denominated as an "Amended Order". The Second Assailed
Order was identical to the first, except that the reckoning point for
just compensation was now the "time this order was issued," which
is June 15, 2004.
x x x the Order dated May 17, 1983 is hereby declared null and void
and the plaintiff [is] hereby ordered to immediately deposit with the
PNB the 10% of the just compensation after the Commission shall
have rendered its report and have determined the value of the
property not at the time it was condemned but at the time this
order was issued. (Underscoring in original text)
This time, petitioner filed a Motion for Reconsideration claiming that
there was no legal basis for the issuance of the Second Assailed
26
Order. Javellana opposed, arguing that since the May 17, 1983
Order and the Second Assailed Order were interlocutory in
character, they were always subject to modification and revision by
27
the court anytime.

1981 - at the
time the
complaint was
filed

P110.00/s
qm

P79,860.
00

based on three or more

recorded sales of similar types
of land in the vicinity in the
same year

1981 at the
time the
complaint was
filed

P686.81/s
qm

P498,625
.22

Appraisal by Southern Negros

Development Bank based on
market value, zonal value,
appraised value of other banks,
recent selling price of
neighboring lots

2002

P3,500.00
/sqm

P2,541,0
00.00

Appraisal by the City Appraisal

Committee, Office of the City
Assessor

2004

P4,200.00
/sqm

PhP3,049
,200.00

Private Appraisal Report (Atty.

Roberto Cal Catolico dated April
6, 2004)

Hence, the present petition.

Third Assailed Order
Petitioners Arguments
After the parties were able to fully ventilate their respective
28
positions, the public respondent issued the Third Assailed Order,
denying the Motion for Reconsideration, and ruling as follows:
The Order dated June 15, 2004 among other things stated that
parties and counsels must be bound by the Commissioners Report
regarding the value of the property not at the time it was
condemned but at the time this order was issued.

Petitioner is before us claiming that (1) the trial court gravely abused
its discretion amounting to lack or excess of jurisdiction in
overturning the Order dated May 17, 1983, which was already a final
order; and (2) just compensation for the expropriation should be
based on the Subject Propertys fair market value either at the time
of taking or filing of the complaint.
Private Respondents Arguments

This is true inasmuch as there was no deposit at the PNB and their
taking was illegal.
The plaintiff thru [sic] Atty. Laurea alleged that this Court had a
change of heart and issued an Amended Order with the same
wordings as the order of December 12, 2003 but this time stated not
at the time it was condemned but at the time the order was
issued. Naturally, this Court in the interest of justice, can amend its
order because there was no deposit by plaintiff.
The jurisprudence cited by plaintiff that the just compensation must
be determined as of the date of the filing of the complaint is true if
there was a deposit. Because there was none the filing was not in
accordance with law, hence, must be at the time the order was
issued.
The allegation of defendant thru [sic] counsel that the orders
attacked by plaintiff thru [sic] counsel saying it has become final and
executory are interlocutory orders subject to the control of the
Judge until final judgment is correct. Furthermore, it is in the
29
interes[t] of justice to correct errors.
In the meantime, on April 15, 2004, the Commission submitted its
Report, providing the following estimates of value, but without
30
making a proper recommendation:

Reckoning
Point

Value per
square
meter

Fair
Market
Value

Basis

31

Private respondent filed his Comment on October 3, 2005, arguing

that (1) there was no error of jurisdiction correctible by certiorari;
and (2) that the Assailed Orders were interlocutory orders that were
subject to amendment and nullification at the discretion of the
court.
Issues
There are only two questions we need answer, and they are not at
all novel. First, does an order of expropriation become final? Second,
what is the correct reckoning point for the determination of just
compensation?
Our Ruling
Expropriation proceedings have two stages. The first phase ends
with an order of dismissal, or a determination that the property is to
32
be acquired for a public purpose. Either order will be a final order
33
that may be appealed by the aggrieved party. The second phase
34
consists of the determination of just compensation. It ends with
an order fixing the amount to be paid to the landowner. Both
35
orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the
question of whether or not the plaintiff has properly and legally
36
exercised its power of eminent domain. Once the first order
becomes final and no appeal thereto is taken, the authority to
expropriate and its public use can no longer be
37
questioned. 1avvphi1

Javellana did not bother to file an appeal from the May 17, 1983
Order which granted petitioners Motion for Issuance of Writ of
Possession and which authorized petitioner to take immediate
possession of the Subject Property. Thus, it has become final, and
the petitioners right to expropriate the property for a public use is
no longer subject to review. On the first question, therefore, we rule
that the trial court gravely erred in nullifying the May 17, 1983
Order.

Such pecuniary loss entitles him to adequate compensation in the

form of actual or compensatory damages, which in this case should
be the legal interest (6%) on the value of the land at the time of
taking, from said point up to full payment by the MIAA. This is
based on the principle that interest "runs as a matter of law and
follows from the right of the landowner to be placed in as good
position as money can accomplish, as of the date of the taking x x x.
xxxx

We now turn to the reckoning date for the determination of just

compensation. Petitioner claims that the computation should be
made as of September 18, 1981, the date when the expropriation
complaint was filed. We agree.
In a long line of cases, we have constantly affirmed that:
x x x just compensation is to be ascertained as of the time of the
taking, which usually coincides with the commencement of the
expropriation proceedings. Where the institution of the action
precedes entry into the property, the just compensation is to be
38
ascertained as of the time of the filing of the complaint.
When the taking of the property sought to be expropriated
coincides with the commencement of the expropriation
proceedings, or takes place subsequent to the filing of the complaint
for eminent domain, the just compensation should be determined as
39
of the date of the filing of the complaint. Even under Sec. 4, Rule
67 of the 1964 Rules of Procedure, under which the complaint for
expropriation was filed, just compensation is to be determined "as
of the date of the filing of the complaint." Here, there is no reason
to depart from the general rule that the point of reference for
assessing the value of the Subject Property is the time of the filing of
40
the complaint for expropriation.
Private respondent claims that the reckoning date should be in 2004
because of the "clear injustice to the private respondent who all
these years has been deprived of the beneficial use of his
properties."
We commiserate with the private respondent. The school was
constructed and has been in operation since 1985. Petitioner and
the residents of Iloilo City have long reaped the benefits of the
property. However, non-payment of just compensation does not
entitle the private landowners to recover possession of their
41
expropriated lot.
Concededly, Javellana also slept on his rights for over 18 years and
did not bother to check with the PNB if a deposit was actually made
by the petitioner. Evidently, from his inaction in failing to withdraw
or even verify the amounts purportedly deposited, private
respondent not only accepted the valuation made by the petitioner,
but also was not interested enough to pursue the expropriation case
until the end. As such, private respondent may not recover
possession of the Subject Property, but is entitled to just
42
compensation. It is high time that private respondent be paid what
was due him after almost 30 years.
We stress, however, that the City of Iloilo should be held liable for
damages for taking private respondents property without payment
of just compensation. In Manila International Airport Authority v.
43
Rodriguez, the Court held that a government agencys prolonged
occupation of private property without the benefit of expropriation
proceedings undoubtedly entitled the landowner to damages:

For more than twenty (20) years, the MIAA occupied the subject lot
without the benefit of expropriation proceedings and without the
MIAA exerting efforts to ascertain ownership of the lot and
negotiating with any of the owners of the property. To our
mind, these are wanton and irresponsible acts which should be
suppressed and corrected. Hence, the award of exemplary
44
damages and attorneys fees is in order. x x x. (Emphasis supplied)
WHEREFORE, the petition is GRANTED. The Orders of the Regional
Trial Court of Iloilo City, Branch 32 in Civil Case No. 14052 and Civil
Case No. 03-27571 dated December 12, 2003, June 15, 2004, and
March 9, 2005 are hereby ANNULLED and SET ASIDE.
The Regional Trial Court of Iloilo City, Branch 32 is DIRECTED to
immediately determine the just compensation due to private
respondent Elpidio T. Javellana based on the fair market value of the
Subject Property at the time Civil Case No. 14052 was filed, or on
September 18, 1981 with interest at the legal rate of six percent
(6%) per annum from the time of filing until full payment is made.
The City of Iloilo is ORDERED to pay private respondent the amount
of P200,000.00 as exemplary damages.
SO ORDERED.
G.R. No. 173520

January 30, 2013

NATIONAL POWER CORPORATION, Petitioner,

vs.
SPOUSES RODOLFO ZABALA and LILIA BAYLON, Respondents.
DECISION
DEL CASTILLO, J.:
Legislative enactments, as well as executive issuances, fixing or
providing fix the method of computing just compensation are
tantamount to impermissible encroachment on judicial
1
prerogatives. Thus they are not binding on courts and, at best, are
treated as mere guidelines in ascertaining the amount of just
2
compensation.
3

This Petition for Review on Certiorari assails the July 10, 2006
4
Decision of the Court of Appeals (CA) in CA-G.R. CV No. 85396
5
which affirmed the June 28, 2004 Partial Decision of the Regional
Trial Court (RTC), Branch 2, Balanga City in an eminent domain
6
case, ordering petitioner National Power Corporation ( Napocor) to
pay respondents spouses Rodolfo Zabala and Lilia Baylon (spouses
Zabala) just compensation ofP-150.00 per square meter for the
6,820-square meter portion of the spouses' property which was
traversed by transmission lines of Napocor under its 230 KV LimayHermosa Permanent Transmission Lines Project.

Factual Antecedents
The facts of this case as found by the CA and adopted by Napocor
are as follows:
On October 27, 1994, plaintiff-appellant National Power Corporation
("Napocor" x x x) filed a complaint for Eminent Domain against
defendants-appellees Sps. R. Zabala & L. Baylon, Tomas Aguirre,
Generosa de Leon and Leonor Calub ("Spouses Zabala", "Aguirre"
"de Leon", and "Calub," respectively x x x) before the Regional Trial
Court, Balanga City, Bataan alleging that: defendants-appellees
Spouses Zabala and Baylon, Aguirre, de Leon, and Calub own parcels
of land located in Balanga City, Bataan; it urgently needed an
easement of right of way over the affected areas for its 230 KV
Limay-Hermosa Transmission Line[s]; the said parcels of land have
neither been applied nor expropriated for any public use, and were
selected in a manner compatible with the greatest public good and
the least private injury; it repeatedly negotiated with the
defendants-appellees for the acquisition of right of way easement
over the said parcels of land but failed to reach an agreement with
the latter; it has the right to take or enter upon the possession of the
subject properties pursuant to Presidential Decree No. 42, which
repealed Section 2, Rule 67 of the Rules of Court upon the filing of
the expropriation complaint before the proper court or at anytime
thereafter, after due notice to defendants-appellees, and upon
deposit with the Philippine National Bank of the amount equal to
the assessed value of the subject properties for taxation purposes
which is to be held by said bank subject to the orders and final
disposition of the court; and it is willing to deposit the provisional
value representing the said assessed value of the affected portions
of the subject property x x x. It prayed for the issuance of a writ of
possession authorizing it to enter and take possession of the subject
property, to demolish all the improvements x x x thereon, and to
commence with the construction of the transmission lines project on
the subject properties, and to appoint not more than three (3)
commissioners to ascertain and report the just compensation for the
said easement of right of way.

tension wires would endanger the life and limb of the inhabitants
within the area, and decrease the value of their subject property;
the complaint does not show that the installation of the proposed
transmission wires on their property is the most direct, practical and
least burdensome means to achieve public good; the assessed value
of P1,636.89 stated in Tax Declaration No. 1646 is insufficient
because it has been revised and cancelled by Tax Declaration No.
11052 which shows a higher assessment value for the said property;
and plaintiff-appellant Napocor did not exert earnest efforts toward
the direct purchase of the needed portion of their property before
filing a complaint before the lower court.
On March 4, 1996 and March 7, 1996 plaintiff-appellant Napocor
and defendants-appellees Spouses Zabala filed their respective PreTrial Briefs.
On December 4, 1997, the Commissioners submitted their
Report/Recommendation fixing the just compensation for the use of
defendants-appellees Spouses Zabalas property as easement of
right of way at P150.00 per square meter without considering the
consequential damages.
Plaintiff-appellant Napocor prayed in its Comment to the
commissioners report, that the report be recommitted to the
commissioners for the modification of the report and the
substantiation of the same with reliable and competent
documentary evidence based on the value of the property at the
time of its taking. On their part, defendants-appellees Spouses
Zabala prayed, in the Comments, for the fixing of the just
compensation at P250.00 per square meter.
On February 25, 1998, the lower court recommitted the report to
the Commissioners for further report on the points raised by the
parties.
On August 20, 2003, the Commissioners submitted their Final Report
7
fixing the just compensation at P500.00 per square meter.

xxxx
On January 11, 1995, defendant-appellee Spouses Zabala moved to
dismiss the complaint averring that: the Balanga City proper is
already crowded and x x x needs additional space to meet the
housing requirements of the growing population; the only direction
the city proper could expand is the side where their subject property
is located; they incurred a considerable expense in the preparatory
development of the subject property into a subdivision to serve the
interest and well being of the growing population of Balanga; the
said growing need for housing and said preparatory development
would necessarily increase the value of the said property; the just
compensation would be higher if the proposed transmission lins of
plaintiff-appellant Napocor is installed or made to pass or traverse
through their property rather than through the parcels of land
farther from the existing city proper and away from their property
which was tapped to meet the expansion requirements of the
Balanga City proper; the transfer of the proposed transmission lines
from their property to a farther location is more economical and less
expensive to plaintiff-appellant Napocor and it would better serve
the interest of the people of Balanga because said location is less
developed, not needed for the expansion requirements of Balanga
City proper, the lots that would be traversed command a lower price
and less compensation would be paid by plaintiff-appellant Napocor;
the traversing of the transmission lines through their property would
impact negatively on the housing expansion in Balanga, the high

Since the Commissioners had already submitted their Final

8
Report on the valuation of the subject property, spouses Zabala
moved for the resolution of the case insofar as their property was
concerned. Thus, on June 28, 2004, the RTC rendered its Partial
9
Decision, ruling that Napocor has the lawful authority to take for
public purpose and upon payment of just compensation a portion of
spouses Zabalas property. The RTC likewise ruled that since the
spouses Zabala were deprived of the beneficial use of their property,
they are entitled to the actual or basic value of their property. Thus,
it fixed the just compensation at P150.00 per square meter. The
dispositive portion of the RTCs Partial Decision reads:
WHEREFORE, premises considered, the Court having determined
that Napocor has a lawful right to take the subject properties in the
exercise of the power of eminent domain upon payment of just
compensation, the petition is hereby granted.
Accordingly, Napocor is hereby ordered to pay defendant Spouses
Rodolfo Zabala and Lilia Baylon the amount of Php 150.00 per
square meter for the 6,820 square meters taken from the latters
property, as the just compensation fixed and recommended by the
commissioners determined as of the date of the taking of the
property.

As regards x x x the properties of the other defendants, the

determination of x x x just compensation is hereby held in abeyance
until the submission of the commissioners report.
SO ORDERED.

10

Napocor appealed to the CA. It argued that the Commissioners

reports upon which the RTC based the just compensation are not
supported by documentary evidence. Necessarily, therefore, the just
compensation pegged by the RTC at P150.00 per square meter also
lacked basis. Napocor likewise imputed error on the part of the RTC
11
in not applying Section 3A of Republic Act (RA) No. 6395 which
limits its liability to easement fee of not more than 10% of the
market value of the property traversed by its transmission lines.
On July 10, 2006, the CA rendered the assailed Decision affirming
the RTCs Partial Decision.
Issue
Hence, this Petition anchored on the ground that:
THE COURT OF APPEALS ERRED IN AFFIRMING THE PARTIAL
DECISION DATED JUNE 28, 2004 AND THE ORDER DATED FEBRUARY
7, 2005 OF THE TRIAL COURT FIXING THE AMOUNT OF P150.00 PER
SQUARE METER AS THE FAIR MARKET VALUE OF THE SUBJECT
PROPERTY SINCE THE SAME IS NOT SUPPORTED BY DOCUMENTARY
12
EVIDENCE.
Napocor contends that under Section 3A of RA No. 6395, it is not
required to pay the full market value of the property when the
principal purpose for which it is actually devoted will not be
impaired by its transmission lines. It is enough for Napocor to pay
easement fee which, under the aforementioned law, should not
exceed 10% of the market value of the affected property. Napocor
argues that when it installed its transmission lines, the property of
spouses Zabala was classified as riceland and was in fact devoted to
the cultivation of palay. Its transmission lines will not, therefore,
affect the primary purpose for which the subject land is devoted as
the same only pass through it. The towers to which such lines are
connected are not even built on the property of spouses Zabala,
who will remain the owner of and continue to enjoy their property.
Hence, the RTC and the CA, according to Napocor, both erred in not
applying Section 3A of RA No. 6395.
Napocor further argues that even assuming that spouses Zabala are
entitled to the full market value of their property, the award
of P150.00 per square meter as just compensation lacks basis
because the recommendation of the Commissioners is not
supported by documentary evidence.
Our Ruling
The petition is partially meritorious.
Section 3A of RA No. 6395 cannot
restrict the constitutional power of the
courts to determine just compensation.

In insisting that the just compensation cannot exceed 10% of the

market value of the affected property, Napocor relies heavily on
Section 3A of RA No. 6395, the pertinent portions of which read:
Sec. 3A. In acquiring private property or private property rights
through expropriation proceedings where the land or portion
thereof will be traversed by the transmission lines, only a right-ofway easement thereon shall be acquired when the principal purpose
for which such land is actually devoted will not be impaired, and
where the land itself or portion thereof will be needed for the
projects or works, such land or portion thereof as necessary shall be
acquired.
In determining the just compensation of the property or property
sought to be acquired through expropriation proceedings, the same
shall:
(a) With respect to the acquired land or portion thereof,
not to exceed the market value declared by the owner or
administrator or anyone having legal interest in the
property, or such market value as determined by the
assessor, whichever is lower.
(b) With respect to the acquired right-of-way easement
over the land or portion thereof, not to exceed ten
percent (10%) of the market value declared by the owner
or administrator or anyone having legal interest in the
property, or such market value as determined by the
assessor whichever is lower.
xxxx
Just compensation has been defined as "the full and fair equivalent
of the property taken from its owner by the expropriator. The
measure is not the taker's gain, but the owners loss. The word just
is used to qualify the meaning of the word compensation and to
convey thereby the idea that the amount to be tendered for the
13
property to be taken shall be real, substantial, full and ample." The
payment of just compensation for private property taken for public
use is guaranteed no less by our Constitution and is included in the
14
Bill of Rights. As such, no legislative enactments or executive
issuances can prevent the courts from determining whether the
right of the property owners to just compensation has been
violated. It is a judicial function that cannot "be usurped by any
15
other branch or official of the government." Thus, we have
consistently ruled that statutes and executive issuances fixing or
providing for the method of computing just compensation are not
binding on courts and, at best, are treated as mere guidelines in
16
ascertaining the amount thereof. In National Power Corporation v.
17
Bagui, where the same petitioner also invoked the provisions of
Section 3A of RA No. 6395, we held that:
Moreover, Section 3A-(b) of R.A. No. 6395, as amended, is not
binding on the Court. It has been repeatedly emphasized that the
determination of just compensation in eminent domain cases is a
judicial function and that any valuation for just compensation laid
down in the statutes may serve only as a guiding principle or one of
the factors in determining just compensation but it may not
substitute the courts own judgment as to what amount should be
18
awarded and how to arrive at such amount.
19

This ruling was reiterated in Republic v. Lubinao, National Power

20
Corporation v. Tuazon and National Power Corporation v.

21

Saludares and continues to be the controlling doctrine. Notably, in

all these cases, Napocor likewise argued that it is liable to pay the
property owners for the easement of right-of-way only and not the
full market value of the land traversed by its transmission lines. But
we uniformly held in those cases that since the high-tension electric
current passing through the transmission lines will perpetually
deprive the property owners of the normal use of their land, it is
only just and proper to require Napocor to recompense them for the
full market value of their property.
The just compensation of P150.00 per
square meter as fixed by the RTC is not
supported by evidence.
It has likewise been our consistent ruling that just compensation
cannot be arrived at arbitrarily. Several factors must be considered,
such as, but not limited to, acquisition cost, current market value of
like properties, tax value of the condemned property, its size, shape,
and location. But before these factors can be considered and given
weight, the same must be supported by documentary evidence.
In the case before us, it appears that the Commissioners November
22
28, 1997 Report/Recommendation is not supported by any
documentary evidence. There is nothing therein which would show
that before arriving at the recommended just compensation
of P150.00, the Commissioners considered documents relevant and
pertinent thereto. Their Report/Recommendation simply states that
on November 17, 1997, the Commissioners conducted an ocular
inspection; that they interviewed persons in the locality; that the
adjacent properties have market value ofP150.00 per square meter;
and, that the property of Nobel Philippine which is farther from the
Roman Expressway is being sold for P200.00 per square meter. No
documentary evidence whatsoever was presented to support their
report that indeed the market value of the adjacent properties
are P150.00 and that of Nobel Philippine is P200.00.

develop the property into a subdivision, as they already

fenced and contained the area.
5. At present, another property which is very far from the
Roman Expressway was subdivided, known as the St.
Elizabeth Country Homes. Lots are being sold there
at P1,700.00 per square meter.
6. The property of the Sps. Zabala is only some meters
away from the Roman Expressway compared to the St.
Elizabeth Country Homes which is very far from the
highway.
7. Moreover, the other subdivisions, Maria Lourdes and
Vicarville which are within the vicinity sell their lots now
ranging from P1,800.00 per square meter to P2,500.00.
8. As already stated, the property of the Sps. Zabala is
within the built-up area classified as residential,
commercial and industrial.
9. In its earlier reports in 1998, the commission
recommended a just compensation of P150.00 per square
meter.
10. But considering the considerable lapse of time and
increase in the valuation of the properties within the area,
the commissioners are impelled to increase the
recommended valuation to P500.00 per square meter.
WHEREFORE, it is recommended to the Honorable Court that the
owners of the property affected and traversed by the transmission
28
lines of the NPC be compensated at P500.00 per square meter.
29

Napocor objected to the Report/Recommendation of the

Commissioners and pointed out that the same is not supported by
23
documentary evidence. spouses Zabala likewise commented
thereon and argued that their property should be valued at P250.00
24
per square meter. Accordingly, the RTC recommitted the
Report/Recommendation to the Commissioners for further
25
evaluation of the points raised by the parties.
In April 1998, the Commissioners submitted a Supplemental
26
Report. Then on August 20, 2003, the Commissioners submitted
27
their Final Report recommending a compensation of P500.00 per
square meter. But like their earlier reports, the Commissioners Final
Report lacks documentary support. It reads:
1. Further ocular inspection was conducted on the
property under consideration of the Honorable Court.
2. To date the land is properly secured, contained and
fenced with concrete hollow blocks.
3. The property is not tenanted and the area covered and
affected by the transmission lines has not been tilled and
planted x x x.
4. Upon inquiry from the landowners, the Sps. Rodolfo and
Lilia Zabala, they intimated that they are proposing to

In Republic v. Santos, we ruled that a commissioners land

valuation which is not based on any documentary evidence is
manifestly hearsay and should be disregarded by the court, viz:
The statement in the 1970 report of the commissioners that
according to the owners of adjoining lots the prices per square
meter ranged from P150 to P200 and that subdivision lots in the
vicinity were being sold at P85 to P120 a square meter was not
based on any documentary evidence. It is manifestly hearsay.
Moreover, those prices refer to 1970 or more than a year after the
30
expropriation was effected.
The same ruling was arrived at in National Power Corporation v.
31
Diato-Bernal, where we overturned the ruling of the trial court and
the CA adopting the findings of the commissioners sans supporting
documentary evidence therefor. Thus:
It is evident that the above conclusions are highly speculative and
devoid of any actual and reliable basis. First, the market values of
the subject propertys neighboring lots were mere estimates and
unsupported by any corroborative documents, such as sworn
declarations of realtors in the area concerned, tax declarations or
zonal valuation from the Bureau of Internal Revenue for the
contiguous residential dwellings and commercial establishments.
The report also failed to elaborate on how and by how much the
community centers and convenience facilities enhanced the value of
respondents property. Finally, the market sales data and price
32
listings alluded to in the report were not even appended thereto.

33

Under Section 8, Rule 67 of the Rules of Court, the trial court may
accept or reject, whether in whole or in part, the commissioners
report which is merely advisory and recommendatory in character. It
may also recommit the report or set aside the same and appoint
new commissioners. In the case before us, however, in spite of the
insufficient and flawed reports of the Commissioners and Napocors
objections thereto, the RTC eventually adopted the same. It
shrugged off Napocors protestations and limited itself to the
reports submitted by the Commissioners. It neither considered nor
required the submission of additional evidence to support the
recommended P150.00 per square meter just compensation. Ergo,
insofar as just compensation is concerned, we cannot sustain the
RTCs Partial Decision for want of documentary support.1wphi1
Lastly, it should be borne in mind that just compensation should be
computed based on the fair value of the subject property at the time
of its taking or the filing of the complaint, whichever came
34
first. Since in this case the filing of the eminent domain case came
ahead of the taking, just compensation should be based on the fair
market value of spouses Zabalas property at the time of the filing of
Napocors Complaint on October 27, 1994 or thereabouts.
WHEREFORE, the instant Petition is PARTIALLY GRANTED. This case
is REMANDED to the Regional Trial Court, Branch 2, Balanga City for
the proper determination of just compensation.
SO ORDERED.
G.R. No. 161107

March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of

Marikina City, JOSEPHINE C. EVANGELIST A, in her capacity as
Chief, Permit Division, Office of the City Engineer, and ALFONSO
ESPIRITU, in his capacity as City Engineer of Marikina
City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMYMARIKINA, INC., Respondents.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45
of the Rules of Court, which seeks to set aside the December 1, 2003
1
Decision of the Court of Appeals (CA) in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholasticas College (SSC) and St. Scholasticas
Academy-Marikina, Inc. (SSA-Marikina) are educational institutions
organized under the laws of the Republic of the Philippines, with
principal offices and business addresses at Leon Guinto Street,
Malate, Manila, and at West Drive, Marikina Heights, Marikina City,
2
respectively.
Respondent SSC is the owner of four (4) parcels of land measuring a
total of 56,306.80 square meters, located in Marikina Heights and
covered by Transfer Certificate Title (TCT) No. 91537. Located within
the property are SSA-Marikina, the residence of the sisters of the
Benedictine Order, the formation house of the novices, and the
retirement house for the elderly sisters. The property is enclosed by

a tall concrete perimeter fence built some thirty (30) years ago.
Abutting the fence along the West Drive are buildings, facilities, and
3
other improvements.
The petitioners are the officials of the City Government of Marikina.
On September 30, 1994, the Sangguniang Panlungsod of Marikina
4
City enacted Ordinance No. 192, entitled "Regulating the
Construction of Fences and Walls in the Municipality of Marikina." In
5
6
1995 and 1998, Ordinance Nos. 217 and 200 were enacted to
amend Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND
WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise
known as the Local Government Code of 1991 empowers the
Sangguniang Bayan as the local legislative body of the municipality
to "x x x Prescribe reasonable limits and restraints on the use of
property within the jurisdiction of the municipality, x x x";
WHEREAS the effort of the municipality to accelerate its economic
and physical development, coupled with urbanization and
modernization, makes imperative the adoption of an ordinance
which shall embody up-to-date and modern technical design in the
construction of fences of residential, commercial and industrial
buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the
National Building Code of the Philippines, does not adequately
provide technical guidelines for the construction of fences, in terms
of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide
more efficient and effective enforcement of laws on public safety
and security;
WHEREAS, it has occurred in not just a few occasions that high
fences or walls did not actually discourage but, in fact, even
protected burglars, robbers, and other lawless elements from the
view of outsiders once they have gained ingress into these walls,
hence, fences not necessarily providing security, but becomes itself
a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment of
prohibited or unlawful acts earlier enumerated, and as guardian of
the people of Marikina, the municipal government seeks to enact
and implement rules and ordinances to protect and promote the
health, safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of
the government, lowering of fences and walls shall encourage
people to plant more trees and ornamental plants in their yards, and
when visible, such trees and ornamental plants are expected to
create an aura of a clean, green and beautiful environment for
Marikeos;

WHEREAS, high fences are unsightly that, in the past, people planted
on sidewalks to "beautify" the faade of their residences but,
however, become hazards and obstructions to pedestrians;

line and the building line of commercial and industrial

7
establishments and educational and religious institutions.
Section 6. Exemption.

WHEREAS, high and solid walls as fences are considered "unneighborly" preventing community members to easily communicate
and socialize and deemed to create "boxed-in" mentality among the
populace;
WHEREAS, to gather as wide-range of opinions and comments on
this proposal, and as a requirement of the Local Government Code
of 1991 (R.A. 7160), the Sangguniang Bayan of Marikina invited
presidents or officers of homeowners associations, and commercial
and industrial establishments in Marikina to two public hearings
held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance
were fully presented to the attendees and no vehement objection
was presented to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN
OF MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of all
fences, walls and gates on lots classified or used for residential,
commercial, industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard refers to the area of the lot fronting a
street, alley or public thoroughfare.
b. Back Yard the part of the lot at the rear of the
structure constructed therein.
c. Open fence type of fence which allows a view of "thrusee" of the inner yard and the improvements therein.
(Examples: wrought iron, wooden lattice, cyclone wire)
d. Front gate refers to the gate which serves as a passage
of persons or vehicles fronting a street, alley, or public
thoroughfare.
Section 3. The standard height of fences or walls allowed under this
ordinance are as follows:
(1) Fences on the front yard shall be no more than one
(1) meter in height. Fences in excess of one (1) meter shall
be of an open fence type, at least eighty percent (80%)
see-thru; and
(2) Fences on the side and back yard shall be in
accordance with the provisions of P.D. 1096 otherwise
known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas specifically
reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five (5)
meter parking area allowance located between the front monument

(1) The Ordinance does not cover perimeter walls of

residential subdivisions.
(2) When public safety or public welfare requires, the
Sangguniang Bayan may allow the construction and/or
maintenance of walls higher than as prescribed herein and
shall issue a special permit or exemption.
Section 7. Transitory Provision. Real property owners whose existing
fences and walls do not conform to the specifications herein are
allowed adequate period of time from the passage of this Ordinance
within which to conform, as follows:
(1) Residential houses eight (8) years
(2) Commercial establishments five (5) years
(3) Industrial establishments three (3) years
8

(4) Educational institutions five (5) years (public and

privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of
this Ordinance shall be demolished by the municipal government at
the expense of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly
implement this ordinance, including the issuance of the necessary
implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace
period herein provided.
Section 10. Repealing Clause. All existing Ordinances and
Resolutions, Rules and Regulations inconsistent with the foregoing
provisions are hereby repealed, amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local
executive orders, rules and regulations or parts thereof in conflict
with this Ordinance are hereby repealed and/or modified
accordingly.
Section 12. Effectivity. This ordinance takes effect after publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to
the respondents ordering them to demolish and replace the fence of
their Marikina property to make it 80% see-thru, and, at the same
time, to move it back about six (6) meters to provide parking space
9
for vehicles to park. On April 26, 2000, the respondents requested
10
for an extension of time to comply with the directive. In response,
the petitioners, through then City Mayor Bayani F. Fernando,
insisted on the enforcement of the subject ordinance.

Not in conformity, the respondents filed a petition for prohibition

with an application for a writ of preliminary injunction and
temporary restraining order before the Regional Trial Court,
Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-38111
MK.
The respondents argued that the petitioners were acting in excess of
jurisdiction in enforcing Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987 Constitution. That
demolishing their fence and constructing it six (6) meters back would
result in the loss of at least 1,808.34 square meters, worth
aboutP9,041,700.00, along West Drive, and at least 1,954.02 square
meters, worth roughly P9,770,100.00, along East Drive. It would also
result in the destruction of the garbage house, covered walk, electric
house, storage house, comfort rooms, guards room, guards post,
waiting area for visitors, waiting area for students, Blessed Virgin
Shrine, P.E. area, and the multi-purpose hall, resulting in the
permanent loss of their beneficial use. The respondents, thus,
asserted that the implementation of the ordinance on their property
would be tantamount to an appropriation of property without due
process of law; and that the petitioners could only appropriate a
portion of their property through eminent domain. They also
pointed out that the goal of the provisions to deter lawless elements
and criminality did not exist as the solid concrete walls of the school
12
had served as sufficient protection for many years.

had no basis in their case. Moreover, it held that the purpose of

beautification could not be used to justify the exercise of police
power.
It also observed that Section 7 of Ordinance No. 192, as amended,
provided for retroactive application. It held, however, that such
retroactive effect should not impair the respondents vested
substantive rights over the perimeter walls, the six-meter strips of
land along the walls, and the building, structures, facilities, and
improvements, which would be destroyed by the demolition of the
walls and the seizure of the strips of land.
The RTC also found untenable the petitioners argument that
Ordinance No. 192 was a remedial or curative statute intended to
correct the defects of buildings and structures, which were brought
about by the absence or insufficiency of laws. It ruled that the
assailed ordinance was neither remedial nor curative in nature,
considering that at the time the respondents perimeter wall was
built, the same was valid and legal, and the ordinance did not refer
to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to
expropriate the subject property through eminent domain.
The RTC, thus, disposed:

The petitioners, on the other hand, countered that the ordinance

was a valid exercise of police power, by virtue of which, they could
restrain property rights for the protection of public safety, health,
morals, or the promotion of public convenience and general
13
prosperity.
On June 30, 2000, the RTC issued a writ of preliminary injunction,
enjoining the petitioners from implementing the demolition of the
14
fence at SSCs Marikina property.

WHEREFORE, the petition is GRANTED. The writ of prohibition is

hereby issued commanding the respondents to permanently desist
from enforcing or implementing Ordinance No. 192, Series of 1994,
as amended, on petitioners property in question located at
Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.

16

Ruling of the RTC

Ruling of the CA
15

On the merits, the RTC rendered a Decision, dated October 2,

2002, granting the petition and ordering the issuance of a writ of
prohibition commanding the petitioners to permanently desist from
enforcing or implementing Ordinance No. 192 on the respondents
property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in Marikina
and to move it back six (6) meters would amount to an
appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not
take the respondents property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners contention that the parking
space was for the benefit of the students and patrons of SSAMarikina, considering that the respondents were already providing
for sufficient parking in compliance with the standards under Rule
XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run
counter to the respondents right to privacy, considering that the
property also served as a residence of the Benedictine sisters, who
were entitled to some sense of privacy in their affairs. It also found
that the respondents were able to prove that the danger to security

In its December 1, 2003 Decision, the CA dismissed the petitioners

appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No. 192
did not justify the exercise of police power, as it did not only seek to
regulate, but also involved the taking of the respondents property
without due process of law. The respondents were bound to lose an
unquantifiable sense of security, the beneficial use of their
structures, and a total of 3,762.36 square meters of property. It,
thus, ruled that the assailed ordinance could not be upheld as valid
as it clearly invaded the personal and property rights of the
respondents and "[f]or being unreasonable, and undue restraint of
17
trade."
It noted that although the petitioners complied with procedural due
process in enacting Ordinance No. 192, they failed to comply with
substantive due process. Hence, the failure of the respondents to
attend the public hearings in order to raise objections did not
amount to a waiver of their right to question the validity of the
ordinance.
The CA also shot down the argument that the five-meter setback
provision for parking was a legal easement, the use and ownership
of which would remain with, and inure to, the benefit of the

respondents for whom the easement was primarily intended. It

found that the real intent of the setback provision was to make the
parking space free for use by the public, considering that such would
cease to be for the exclusive use of the school and its students as it
would be situated outside school premises and beyond the school
administrations control.
In affirming the RTC ruling that the ordinance was not a curative
statute, the CA found that the petitioner failed to point out any
irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction in
the Code should be properly undertaken by the Congress and not by
the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal
is DENIED.1wphi1 The October 2, 2002 Decision and the January
13, 2003 Order of the Regional Trial Court (RTC) of Marikina City,
Branch 273, granting petitioners-appellees petition for Prohibition
in SCA Case No. 2000-381-MK are hereby AFFIRMED.

The ultimate question before the Court is whether Sections 3.1 and
5 of Ordinance No. 192 are valid exercises of police power by the
City Government of Marikina.
"Police power is the plenary power vested in the legislature to make
statutes and ordinances to promote the health, morals, peace,
education, good order or safety and general welfare of the
21
people." The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of
the State. This delegation of police power is embodied in Section
22
16 of the Local Government Code of 1991 (R.A. No. 7160), known
23
as the General Welfare Clause, which has two branches. "The first,
known as the general legislative power, authorizes the municipal
council to enact ordinances and make regulations not repugnant to
law, as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by law. The
second, known as the police power proper, authorizes the
municipality to enact ordinances as may be necessary and proper for
the health and safety, prosperity, morals, peace, good order,
comfort, and convenience of the municipality and its inhabitants,
24
and for the protection of their property."
25

SO ORDERED.

White Light Corporation v. City of Manila, discusses the test of a

valid ordinance:

18

Aggrieved by the decision of the CA, the petitioners are now before
this Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DECLARING THAT CITY ORDINANCE NO.
192, SERIES OF 1994 IS NOT A VALID EXERCISE OF POLICE
POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE AFOREMENTIONED
ORDINANCE IS AN EXERCISE OF THE CITY OF THE POWER
OF EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DECLARING THAT THE CITY VIOLATED
THE DUE PROCESS CLAUSE IN IMPLEMENTING ORDINANCE
NO. 192, SERIES OF 1994; AND
4. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE ABOVE-MENTIONED
ORDINANCE CANNOT BE GIVEN RETROACTIVE
19
APPLICATION.
In this case, the petitioners admit that Section 5 of the assailed
ordinance, pertaining to the five-meter setback requirement is, as
20
held by the lower courts, invalid. Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also contend that Section 3,
relating to the 80% see-thru fence requirement, must be complied
with, as it remains to be valid.

The test of a valid ordinance is well established. A long line of

decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3)
must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy;
26
and (6) must not be unreasonable.
Ordinance No. 192 was passed by the City Council of Marikina in the
apparent exercise of its police power. To successfully invoke the
exercise of police power as the rationale for the enactment of an
ordinance and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest. Under intermediate review,
governmental interest is extensively examined and the availability of
less restrictive measures is considered. Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means
27
for achieving that interest.
Even without going to a discussion of the strict scrutiny test,
Ordinance No. 192, series of 1994 must be struck down for not
being reasonably necessary to accomplish the Citys purpose. More
importantly, it is oppressive of private rights.

Ruling of the Court

Under the rational relationship test, an ordinance must pass the
following requisites as discussed in Social Justice Society (SJS) v.
28
Atienza, Jr.:

As with the State, local governments may be considered as having

properly exercised their police power only if the following requisites
are met: (1) the interests of the public generally, as distinguished
from those of a particular class, require its exercise and (2) the
means employed are reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon individuals. In short,
there must be a concurrence of a lawful subject and lawful
29
method.
Lacking a concurrence of these two requisites, the police power
measure shall be struck down as an arbitrary intrusion into private
30
rights and a violation of the due process clause.
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue
at hand, to wit:
Section 3. The standard height of fences of walls allowed under this
ordinance are as follows:
(1) Fences on the front yard shall be no more than one (1) meter in
height. Fences in excess of one (1) meter shall be an open fence
type, at least eighty percent (80%) see-thru;
xxx

xxx

xxx

Section 5. In no case shall walls and fences be built within the five (5)
meter parking area allowance located between the front monument
line and the building line of commercial and industrial
establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from
requiring them to (1) demolish their existing concrete wall, (2) build
a fence (in excess of one meter) which must be 80% see-thru, and
(3) build the said fence six meters back in order to provide a parking
area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the
five-meter setback of the fence to provide for a parking area. The
petitioners initially argued that the ownership of the parking area to
be created would remain with the respondents as it would primarily
be for the use of its students and faculty, and that its use by the
public on non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in fact, invalid
31
for being repugnant to the Constitution.
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the
public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a
provision on eminent domain, provides that private property shall
not be taken for public use without just compensation.
The petitioners cannot justify the setback by arguing that the
ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of title
nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner that

inquiry should be made to determine whether the impairment of a

property is merely regulated or amounts to a compensable
32
taking. The Court is of the view that the implementation of the
setback requirement would be tantamount to a taking of a total of
3,762.36 square meters of the respondents private property for
public use without just compensation, in contravention to the
Constitution.
Anent the objectives of prevention of concealment of unlawful acts
and "un-neighborliness," it is obvious that providing for a parking
area has no logical connection to, and is not reasonably necessary
for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement, it
has long been settled that the State may not, under the guise of
police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic
33
appearance of the community. The Court, thus, finds Section 5 to
be unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for
aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is
invalid.
The petitioners, however, argue that the invalidity of Section 5 was
34
properly cured by Zoning Ordinance No. 303, Series of 2000, which
classified the respondents property to be within an institutional
zone, under which a five-meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has
no bearing to the case at hand.
The Court notes with displeasure that this argument was only raised
for the first time on appeal in this Court in the petitioners Reply.
Considering that Ordinance No. 303 was enacted on December 20,
2000, the petitioners could very well have raised it in their defense
before the RTC in 2002. The settled rule in this jurisdiction is that a
party cannot change the legal theory of this case under which the
controversy was heard and decided in the trial court. It should be
the same theory under which the review on appeal is conducted.
Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be ordinarily
considered by a reviewing court, inasmuch as they cannot be raised
for the first time on appeal. This will be offensive to the basic rules
35
of fair play, justice, and due process.
Furthermore, the two ordinances have completely different
purposes and subjects. Ordinance No. 192 aims to regulate the
construction of fences, while Ordinance No. 303 is a zoning
ordinance which classifies the city into specific land uses. In fact, the
five-meter setback required by Ordinance No. 303 does not even
appear to be for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303,
"cure" Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by
the respondents is Ordinance No. 192 and, as such, the precise issue
to be determined is whether the petitioners can be prohibited from
enforcing the said ordinance, and no other, against the respondents.
80% See-Thru Fence Requirement

The petitioners argue that while Section 5 of Ordinance No. 192 may
be invalid, Section 3.1 limiting the height of fences to one meter and
requiring fences in excess of one meter to be at least 80% see-thru,
should remain valid and enforceable against the respondents.

unintentionally omitted, and giving said educational institutions five

(5) years from the passage of Ordinance No. 192 (and not Ordinance
40
No. 217) to conform to its provisions. The petitioners argued that
the amendment could be retroactively applied because the assailed
ordinance is a curative statute which is retroactive in nature.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners
must show the reasonable relation between the purpose of the
police power measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will
36
not be permitted to be arbitrarily invaded.
The principal purpose of Section 3.1 is "to discourage, suppress or
prevent the concealment of prohibited or unlawful acts." The
ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to private
rights. The petitioners have not adequately shown, and it does not
appear obvious to this Court, that an 80% see-thru fence would
provide better protection and a higher level of security, or serve as a
more satisfactory criminal deterrent, than a tall solid concrete wall.
It may even be argued that such exposed premises could entice and
tempt would-be criminals to the property, and that a see-thru fence
would be easier to bypass and breach. It also appears that the
respondents concrete wall has served as more than sufficient
protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as
previously discussed, the State may not, under the guise of police
power, infringe on private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court cannot perceive
how a see-thru fence will foster "neighborliness" between members
of a community.
Compelling the respondents to construct their fence in accordance
with the assailed ordinance is, thus, a clear encroachment on their
right to property, which necessarily includes their right to decide
how best to protect their property.
It also appears that requiring the exposure of their property via a
see-thru fence is violative of their right to privacy, considering that
the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be
protected from intrusion or constraint. The right to privacy is
37
essentially the right to be let alone, as governmental powers
should stop short of certain intrusions into the personal life of its
38
citizens. It is inherent in the concept of liberty, enshrined in the Bill
of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of
39
the 1987 Constitution.
The enforcement of Section 3.1 would, therefore, result in an undue
interference with the respondents rights to property and privacy.
Section 3.1 of Ordinance No. 192 is, thus, also invalid and cannot be
enforced against the respondents.

Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be

enforced against the respondents, it is no longer necessary to rule
on the issue of retroactivity. The Court shall, nevertheless, pass upon
the issue for the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to
validate legal proceedings which would otherwise be void for want
of conformity with certain legal requirements. They are intended to
supply defects, abridge superfluities and curb certain evils. They are
intended to enable persons to carry into effect that which they have
designed or intended, but has failed of expected legal consequence
by reason of some statutory disability or irregularity in their own
action. They make valid that which, before the enactment of the
statute was invalid. Their purpose is to give validity to acts done that
would have been invalid under existing laws, as if existing laws have
been complied with. Curative statutes, therefore, by their very
41
essence, are retroactive."
The petitioners argue that Ordinance No. 192 is a curative statute as
it aims to correct or cure a defect in the National Building Code,
namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the
petitioners attempt to add lacking provisions to the National
Building Code. This is not what is contemplated by curative statutes,
which intend to correct irregularities or invalidity in the law. The
petitioners fail to point out any irregular or invalid provision. As
such, the assailed ordinance cannot qualify as curative and
retroactive in nature.
At any rate, there appears to be no insufficiency in the National
Building Code with respect to parking provisions in relation to the
issue of the respondents. Paragraph 1.16.1, Rule XIX of the Rules
and Regulations of the said code requires an educational institution
to provide one parking slot for every ten classrooms. As found by
the lower courts, the respondents provide a total of 76 parking slots
for their 80 classrooms and, thus, had more than sufficiently
complied with the law.
Ordinance No. 192, as amended, is, therefore, not a curative statute
which may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus,
invalid and cannot be enforced against the respondents.
Nonetheless, "the general rule is that where part of a statute is void
as repugnant to the Constitution, while another part is valid, the
valid portion, if susceptible to being separated from the invalid, may
42
stand and be enforced." Thus, the other sections of the assailed
ordinance remain valid and enforceable.
Conclusion

No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by
including the regulation of educational institutions which was

Considering the invalidity of Sections 3.1 and 5, it is clear that the

petitioners were acting in excess of their jurisdiction in enforcing
Ordinance No. 192 against the respondents. The CA was correct in

affirming the decision of the RTC in issuing the writ of prohibition.

The petitioners must permanently desist from enforcing Sections 3.1
and 5 of the assailed ordinance on the respondents' property in
Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002 Decision
of the Regional Trial Court in SCA Case No. 2000-381-MK is
AFFIRMED but MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently desist
from enforcing or implementing Sections 3.1 and 5 of Ordinance No.
192, Series of 1994, as amended, on the petitioners' property in
question located in Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 177807

October 11, 2011

EMILIO GANCAYCO, Petitioner,

vs.
CITY GOVERNMENT OF QUEZON CITY AND METRO MANILA
DEVELOPMENT AUTHORITY, Respondents.

Ordinance No. 2904 required the relevant property owner to

construct an arcade with a width of 4.50 meters and height of 5.00
meters along EDSA, from the north side of Santolan Road to one lot
after Liberty Avenue, and from one lot before Central Boulevard to
the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No. 2904
was passed by the city council, there was yet no building code
passed by the national legislature. Thus, the regulation of the
construction of buildings was left to the discretion of local
government units. Under this particular ordinance, the city council
required that the arcade is to be created by constructing the wall of
the ground floor facing the sidewalk a few meters away from the
property line. Thus, the building owner is not allowed to construct
his wall up to the edge of the property line, thereby creating a space
or shelter under the first floor. In effect, property owners relinquish
the use of the space for use as an arcade for pedestrians, instead of
using it for their own purposes.
The ordinance was amended several times. On 8 August 1960,
properties located at the Quezon City-San Juan boundary were
exempted by Ordinance No. 60-4477 from the construction of
arcades. This ordinance was further amended by Ordinance No. 604513, extending the exemption to commercial buildings from Balete
Street to Seattle Street. Ordinance No. 6603 dated 1 March 1966
meanwhile reduced the width of the arcades to three meters for
buildings along V. Luna Road, Central District, Quezon City.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177933
METRO MANILA DEVELOPMENT AUTHORITY, Petitioner,
vs.
JUSTICE EMILIO A. GANCAYCO (Retired), Respondent,
DECISION
SERENO, J.:
Before us are consolidated Petitions for Review under Rule 45 of the
1
Rules of Court assailing the Decision promulgated on 18 July 2006
2
and the Resolution dated 10 May 2007 of the Court of Appeals in
CA-G.R. SP No. 84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel
3
of land located at 746 Epifanio delos Santos Avenue (EDSA), Quezon
City with an area of 375 square meters and covered by Transfer
Certificate of Title (TCT) No. RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No.
2904, entitled "An Ordinance Requiring the Construction of Arcades,
for Commercial Buildings to be Constructed in Zones Designated as
Business Zones in the Zoning Plan of Quezon City, and Providing
4
Penalties in Violation Thereof."
An arcade is defined as any portion of a building above the first floor
projecting over the sidewalk beyond the first storey wall used as
5
protection for pedestrians against rain or sun.

The ordinance covered the property of Justice Gancayco.

Subsequently, sometime in 1965, Justice Gancayco sought the
exemption of a two-storey building being constructed on his
property from the application of Ordinance No. 2904 that he be
exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice
Gancaycos request and issued Resolution No. 7161, S-66, "subject
to the condition that upon notice by the City Engineer, the owner
shall, within reasonable time, demolish the enclosure of said arcade
6
at his own expense when public interest so demands."
Decades after, in March 2003, the Metropolitan Manila
Development Authority (MMDA) conducted operations to clear
obstructions along the sidewalk of EDSA in Quezon City pursuant to
Metro Manila Councils (MMC) Resolution No. 02-28, Series of
7
2002. The resolution authorized the MMDA and local government
units to "clear the sidewalks, streets, avenues, alleys, bridges, parks
and other public places in Metro Manila of all illegal structures and
8
obstructions."
On 28 April 2003, the MMDA sent a notice of demolition to Justice
Gancayco alleging that a portion of his building violated the National
9
Building Code of the Philippines (Building Code) in relation to
Ordinance No. 2904. The MMDA gave Justice Gancayco fifteen (15)
days to clear the portion of the building that was supposed to be an
10
arcade along EDSA.
Justice Gancayco did not comply with the notice. Soon after the
lapse of the fifteen (15) days, the MMDA proceeded to demolish the
party wall, or what was referred to as the "wing walls," of the
ground floor structure. The records of the present case are not
entirely clear on the extent of the demolition; nevertheless, the fact
of demolition was not disputed. At the time of the demolition, the
affected portion of the building was being used as a restaurant.

11

On 29 May 2003, Justice Gancayco filed a Petition with prayer for a

temporary restraining order and/or writ of preliminary injunction
before the Regional Trial Court (RTC) of Quezon City, docketed as
Civil Case No. Q03-49693, seeking to prohibit the MMDA and the
City Government of Quezon City from demolishing his property. In
12
his Petition, he alleged that the ordinance authorized the taking of
private property without due process of law and just compensation,
because the construction of an arcade will require 67.5 square
meters from the 375 square meter property. In addition, he claimed
that the ordinance was selective and discriminatory in its scope and
application when it allowed the owners of the buildings located in
the Quezon City-San Juan boundary to Cubao Rotonda, and Balete to
Seattle Streets to construct arcades at their option. He thus sought
the declaration of nullity of Ordinance No. 2904 and the payment of
damages. Alternately, he prayed for the payment of just
compensation should the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance was
a valid exercise of police power, regulating the use of property in a
business zone. In addition, it pointed out that Justice Gancayco was
already barred by estoppel, laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek
the nullification of an ordinance that he had already violated, and
that the ordinance enjoyed the presumption of constitutionality. It
further stated that the questioned property was a public nuisance
impeding the safe passage of pedestrians. Finally, the MMDA
claimed that it was merely implementing the legal easement
13
established by Ordinance No. 2904.
The RTC rendered its Decision on 30 September 2003 in favor of
14
Justice Gancayco. It held that the questioned ordinance was
unconstitutional, ruling that it allowed the taking of private property
for public use without just compensation. The RTC said that because
67.5 square meters out of Justice Gancaycos 375 square meters of
property were being taken without compensation for the publics
benefit, the ordinance was confiscatory and oppressive. It likewise
held that the ordinance violated owners right to equal protection of
laws. The dispositive portion thus states:
WHEREFORE, the petition is hereby granted and the Court hereby
15
declares Quezon City Ordinance No. 2094, Series of 1956 to be
unconstitutional, invalid and void ab initio. The respondents are
hereby permanently enjoined from enforcing and implementing the
said ordinance, and the respondent MMDA is hereby directed to
immediately restore the portion of the party wall or wing wall of the
building of the petitioner it destroyed to its original condition.

Even with the requirement of the construction of arcaded sidewalks

within his commercial lot, appellee still retains the beneficial
ownership of the said property. Thus, there is no "taking" for public
use which must be subject to just compensation. While the arcaded
sidewalks contribute to the public good, for providing safety and
comfort to passersby, the ultimate benefit from the same still
redounds to appellee, his commercial establishment being at the
forefront of a busy thoroughfare like EDSA. The arcaded sidewalks,
by their nature, assure clients of the commercial establishments
thereat some kind of protection from accidents and other hazards.
Without doubt, this sense of protection can be a boon to the
17
business activity therein engaged.
Nevertheless, the CA held that the MMDA went beyond its powers
when it demolished the subject property. It further found that
Resolution No. 02-28 only refers to sidewalks, streets, avenues,
alleys, bridges, parks and other public places in Metro Manila, thus
excluding Justice Gancaycos private property. Lastly, the CA stated
that the MMDA is not clothed with the authority to declare, prevent
or abate nuisances. Thus, the dispositive portion stated:
WHEREFORE, the appeals are PARTLY GRANTED. The Decision dated
September 30, 2003 of the Regional Trial Court, Branch 224, Quezon
City, is MODIFIED, as follows:
1) The validity and constitutionality of Ordinance No.
18
2094, Series of 1956, issued by the City Council of
Quezon City, is UPHELD; and
2) The injunction against the enforcement and
implementation of the said Ordinance is LIFTED.
SO ORDERED.
This ruling prompted the MMDA and Justice Gancayco to file their
19
respective Motions for Partial Reconsideration.
On 10 May 2007, the CA denied the motions stating that the parties
did not present new issues nor offer grounds that would merit the
20
reconsideration of the Court.
Dissatisfied with the ruling of the CA, Justice Gancayco and the
MMDA filed their respective Petitions for Review before this Court.
The issues raised by the parties are summarized as follows:
I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED
FROM ASSAILING THE VALIDITY OF ORDINANCE NO. 2904.

IT IS SO ORDERED.
The MMDA thereafter appealed from the Decision of the trial court.
On 18 July 2006, the Court of Appeals (CA) partly granted the
16
appeal. The CA upheld the validity of Ordinance No. 2904 and
lifted the injunction against the enforcement and implementation of
the ordinance. In so doing, it held that the ordinance was a valid
exercise of the right of the local government unit to promote the
general welfare of its constituents pursuant to its police powers. The
CA also ruled that the ordinance established a valid classification of
property owners with regard to the construction of arcades in their
respective properties depending on the location. The CA further
stated that there was no taking of private property, since the owner
still enjoyed the beneficial ownership of the property, to wit:

II. WHETHER OR NOT ORDINANCE NO. 2904 IS

CONSTITUTIONAL.
III. WHETHER OR NOT THE WING WALL OF JUSTICE
GANCAYCOS BUILDING IS A PUBLIC NUISANCE.
IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED
THE PROPERTY OF JUSTICE GANCAYCO.
The Courts Ruling
Estoppel

The MMDA and the City Government of Quezon City both claim that
Justice Gancayco was estopped from challenging the ordinance,
because, in 1965, he asked for an exemption from the application of
the ordinance. According to them, Justice Gancayco thereby
recognized the power of the city government to regulate the
construction of buildings.
To recall, Justice Gancayco questioned the constitutionality of the
ordinance on two grounds: (1) whether the ordinance "takes"
private property without due process of law and just compensation;
and (2) whether the ordinance violates the equal protection of rights
because it allowed exemptions from its application.
On the first ground, we find that Justice Gancayco may still question
the constitutionality of the ordinance to determine whether or not
the ordinance constitutes a "taking" of private property without due
process of law and just compensation. It was only in 2003 when he
was allegedly deprived of his property when the MMDA demolished
a portion of the building. Because he was granted an exemption in
1966, there was no "taking" yet to speak of.
Moreover, in Acebedo Optical Company, Inc. v. Court of
21
Appeals, we held:
It is therefore decisively clear that estoppel cannot apply in this case.
The fact that petitioner acquiesced in the special conditions imposed
by the City Mayor in subject business permit does not preclude it
from challenging the said imposition, which is ultra vires or beyond
the ambit of authority of respondent City Mayor. Ultra vires acts or
acts which are clearly beyond the scope of one's authority are null
and void and cannot be given any effect. The doctrine of estoppel
cannot operate to give effect to an act which is otherwise null and
void or ultra vires. (Emphasis supplied.)
22

Recently, in British American Tobacco v. Camacho, we likewise

held:
We find that petitioner was not guilty of estoppel. When it made the
undertaking to comply with all issuances of the BIR, which at that
time it considered as valid, petitioner did not commit any false
misrepresentation or misleading act. Indeed, petitioner cannot be
faulted for initially undertaking to comply with, and subjecting itself
to the operation of Section 145(C), and only later on filing the
subject case praying for the declaration of its unconstitutionality
when the circumstances change and the law results in what it
perceives to be unlawful discrimination. The mere fact that a law has
been relied upon in the past and all that time has not been attacked
as unconstitutional is not a ground for considering petitioner
estopped from assailing its validity. For courts will pass upon a
constitutional question only when presented before it in bona
fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be
raised later. (Emphasis supplied.)
Anent the second ground, we find that Justice Gancayco may not
question the ordinance on the ground of equal protection when he
also benefited from the exemption. It bears emphasis that Justice
Gancayco himself requested for an exemption from the application
of the ordinance in 1965 and was eventually granted one. Moreover,
he was still enjoying the exemption at the time of the demolition as
there was yet no valid notice from the city engineer. Thus, while the
ordinance may be attacked with regard to its different treatment of

properties that appears to be similarly situated, Justice Gancayco is

not the proper person to do so.
Zoning and the regulation of the
construction of buildings are valid
exercises of police power .
23

In MMDA v. Bel-Air Village Association, we discussed the nature of

police powers exercised by local government units, to wit:
Police power is an inherent attribute of sovereignty. It has been
defined as the power vested by the Constitution in the legislature to
make, ordain, and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be
for the good and welfare of the commonwealth, and for the subjects
of the same. The power is plenary and its scope is vast and
pervasive, reaching and justifying measures for public health, public
safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the
National Legislature. It cannot be exercised by any group or body of
individuals not possessing legislative power. The National
Legislature, however, may delegate this power to the President and
administrative boards as well as the lawmaking bodies of municipal
corporations or local government units. Once delegated, the agents
can exercise only such legislative powers as are conferred on them
by the national lawmaking body.
To resolve the issue on the constitutionality of the ordinance, we
must first determine whether there was a valid delegation of police
power. Then we can determine whether the City Government of
Quezon City acted within the limits of the delegation.
It is clear that Congress expressly granted the city government,
through the city council, police power by virtue of Section 12(oo) of
24
Republic Act No. 537, or the Revised Charter of Quezon City, which
states:
To make such further ordinances and regulations not repugnant to
law as may be necessary to carry into effect and discharge the
powers and duties conferred by this Act and such as it shall deem
necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort, and
convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this section.
Specifically, on the powers of the city government to regulate the
construction of buildings, the Charter also expressly provided that
the city government had the power to regulate the kinds of buildings
and structures that may be erected within fire limits and the manner
25
of constructing and repairing them.
With regard meanwhile to the power of the local government units
to issue zoning ordinances, we apply Social Justice Society v.
26
Atienza. In that case, the Sangguniang Panlungsod of Manila City
enacted an ordinance on 28 November 2001 reclassifying certain
areas of the city from industrial to commercial. As a result of the

zoning ordinance, the oil terminals located in those areas were no

longer allowed. Though the oil companies contended that they
stood to lose billions of pesos, this Court upheld the power of the
city government to pass the assailed ordinance, stating:
In the exercise of police power, property rights of individuals may be
subjected to restraints and burdens in order to fulfil the objectives
of the government. Otherwise stated, the government may enact
legislation that may interfere with personal liberty, property, lawful
businesses and occupations to promote the general
welfare. However, the interference must be reasonable and not
arbitrary. And to forestall arbitrariness, the methods or means used
to protect public health, morals, safety or welfare must have a
reasonable relation to the end in view.
The means adopted by the Sanggunian was the enactment of a
zoning ordinance which reclassified the area where the depot is
situated from industrial to commercial. A zoning ordinance is
defined as a local city or municipal legislation which logically
arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection
of needs. As a result of the zoning, the continued operation of the
businesses of the oil companies in their present location will no
longer be permitted. The power to establish zones for industrial,
commercial and residential uses is derived from the police power
itself and is exercised for the protection and benefit of the residents
of a locality. Consequently, the enactment of Ordinance No. 8027 is
within the power of theSangguniang Panlungsod of the City of
Manila and any resulting burden on those affected cannot be said to
be unjust... (Emphasis supplied)

Section 102. Declaration of Policy. It is hereby declared to be the

policy of the State to safeguard life, health, property, and public
welfare, consistent with the principles of sound environmental
management and control; and to this end, make it the purpose of
this Code to provide for all buildings and structures, a framework of
minimum standards and requirements to regulate and control their
location, site, design quality of materials, construction, occupancy,
and maintenance.
Section 1004 likewise requires the construction of arcades whenever
existing or zoning ordinances require it. Apparently, the law allows
the local government units to determine whether arcades are
necessary within their respective jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in front
of his property line, and the arcade should be constructed above
that sidewalk rather than within his property line. We do not need
to address this argument inasmuch as it raises the issue of the
wisdom of the city ordinance, a matter we will not and need not
delve into.
To reiterate, at the time that the ordinance was passed, there was
no national building code enforced to guide the city council; thus,
there was no law of national application that prohibited the city
council from regulating the construction of buildings, arcades and
sidewalks in their jurisdiction.
The "wing walls" of the building are not
nuisances per se.

In Carlos Superdrug v. Department of Social Welfare and

27
Development, we also held:
For this reason, when the conditions so demand as determined by
the legislature, property rights must bow to the primacy of police
power because property rights, though sheltered by due process,
must yield to general welfare.
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will
suffer loss of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence demonstrating
the alleged confiscatory effect of the provision in question, there is
no basis for its nullification in view of the presumption of validity
which every law has in its favor. (Emphasis supplied.)
In the case at bar, it is clear that the primary objectives of the city
council of Quezon City when it issued the questioned ordinance
ordering the construction of arcades were the health and safety of
the city and its inhabitants; the promotion of their prosperity; and
the improvement of their morals, peace, good order, comfort, and
the convenience. These arcades provide safe and convenient
passage along the sidewalk for commuters and pedestrians, not just
the residents of Quezon City. More especially so because the
contested portion of the building is located on a busy segment of
the city, in a business zone along EDSA.
28

Corollarily, the policy of the Building Code, which was passed after
the Quezon City Ordinance, supports the purpose for the enactment
of Ordinance No. 2904. The Building Code states:

The MMDA claims that the portion of the building in question is a

nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an
exemption from constructing an arcade is an indication that the
wing walls of the building are not nuisances per se. The wing walls
do not per se immediately and adversely affect the safety of persons
and property. The fact that an ordinance may declare a structure
illegal does not necessarily make that structure a nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else that
(1) injures or endangers the health or safety of others; (2) annoys or
offends the senses; (3) shocks, defies or disregards decency or
morality; (4) obstructs or interferes with the free passage of any
public highway or street, or any body of water; or, (5) hinders or
impairs the use of property. A nuisance may be per se or per
accidens. A nuisance per se is that which affects the immediate
safety of persons and property and may summarily be abated under
29
the undefined law of necessity.
Clearly, when Justice Gancayco was given a permit to construct the
building, the city council or the city engineer did not consider the
building, or its demolished portion, to be a threat to the safety of
persons and property. This fact alone should have warned the
MMDA against summarily demolishing the structure.
Neither does the MMDA have the power to declare a thing a
nuisance. Only courts of law have the power to determine whether a

thing is a nuisance. In AC Enterprises v. Frabelle Properties

30
Corp., we held:
We agree with petitioner's contention that, under Section
447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local
Government Code, the Sangguniang Panglungsod is empowered to
enact ordinances declaring, preventing or abating noise and other
forms of nuisance. It bears stressing, however, that the Sangguniang
Bayan cannot declare a particular thing as a nuisance per se and
order its condemnation. It does not have the power to find, as a fact,
that a particular thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the extrajudicial condemnation
and destruction of that as a nuisance which in its nature, situation or
use is not such. Those things must be determined and resolved in
the ordinary courts of law. If a thing be in fact, a nuisance due to the
manner of its operation, that question cannot be determined by a
mere resolution of the Sangguniang Bayan. (Emphasis supplied.)
MMDA illegally demolished
the property of Justice Gancayco.
MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series
of 2002, it is empowered to demolish Justice Gancaycos property. It
insists that the Metro Manila Council authorized the MMDA and the
local government units to clear the sidewalks, streets, avenues,
alleys, bridges, parks and other public places in Metro Manila of all
illegal structures and obstructions. It further alleges that it
demolished the property pursuant to the Building Code in relation to
Ordinance No. 2904 as amended.
However, the Building Code clearly provides the process by which a
building may be demolished. The authority to order the demolition
of any structure lies with the Building Official. The pertinent
provisions of the Building Code provide:
SECTION 205. Building Officials. Except as otherwise provided
herein, the Building Official shall be responsible for carrying out the
provisions of this Code in the field as well as the enforcement of
orders and decisions made pursuant thereto.
Due to the exigencies of the service, the Secretary may designate
incumbent Public Works District Engineers, City Engineers and
Municipal Engineers act as Building Officials in their respective areas
of jurisdiction.
The designation made by the Secretary under this Section shall
continue until regular positions of Building Official are provided or
unless sooner terminated for causes provided by law or decree.
xxx xxx xxx
SECTION 207. Duties of a Building Official. In his respective
territorial jurisdiction, the Building Official shall be primarily
responsible for the enforcement of the provisions of this Code as
well as of the implementing rules and regulations issued therefor.
He is the official charged with the duties of issuing building permits.
In the performance of his duties, a Building Official may enter any
building or its premises at all reasonable times to inspect and
determine compliance with the requirements of this Code, and the
terms and conditions provided for in the building permit as issued.

When any building work is found to be contrary to the provisions of

this Code, the Building Official may order the work stopped and
prescribe the terms and/or conditions when the work will be
allowed to resume. Likewise, the Building Official is authorized to
order the discontinuance of the occupancy or use of any building or
structure or portion thereof found to be occupied or used contrary
to the provisions of this Code.
xxx xxx xxx
SECTION 215. Abatement of Dangerous Buildings. When any
building or structure is found or declared to be dangerous or
ruinous, the Building Official shall order its repair, vacation or
demolition depending upon the degree of danger to life, health, or
safety. This is without prejudice to further action that may be taken
under the provisions of Articles 482 and 694 to 707 of the Civil Code
of the Philippines. (Emphasis supplied.)
MMDA v. Trackworks Rail Transit Advertising, Vending and
31
Promotions, Inc. is applicable to the case at bar. In that case,
MMDA, invoking its charter and the Building Code, summarily
dismantled the advertising media installed on the Metro Rail Transit
(MRT) 3. This Court held:
It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks' billboards, signages and other advertising
media. MMDA simply had no power on its own to dismantle,
remove, or destroy the billboards, signages and other advertising
media installed on the MRT3 structure by Trackworks.
In Metropolitan Manila Development Authority v. Bel-Air Village
Association, Inc., Metropolitan Manila Development Authority v.
Viron Transportation Co., Inc., and Metropolitan Manila
Development Authority v. Garin, the Court had the occasion to rule
that MMDA's powers were limited to the formulation, coordination,
regulation, implementation, preparation, management, monitoring,
setting of policies, installing a system, and administration. Nothing in
Republic Act No. 7924 granted MMDA police power, let alone
legislative power.
Clarifying the real nature of MMDA, the Court held:
...The MMDA is, as termed in the charter itself, a "development
authority". It is an agency created for the purpose of laying down
policies and coordinating with the various national government
agencies, people's organizations, non-governmental organizations
and the private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its functions are
administrative in nature and these are actually summed up in the
charter itself, viz:

Sec.2. Creation of the Metropolitan Manila Development Authority.xxx.

The MMDA shall perform planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory
authority over the delivery of metro-wide services within Metro
Manila, without diminution of the autonomy of local government
units concerning purely local matters.
The Court also agrees with the CA's ruling that MMDA Regulation
No. 96-009 and MMC Memorandum Circular No. 88-09 did not apply
to Trackworks' billboards, signages and other advertising media. The

prohibition against posting, installation and display of billboards,

signages and other advertising media applied only to public areas,
but MRT3, being private property pursuant to the BLT agreement
between the Government and MRTC, was not one of the areas as to
which the prohibition applied. Moreover, MMC Memorandum
Circular No. 88-09 did not apply to Trackworks' billboards, signages
and other advertising media in MRT3, because it did not specifically
cover MRT3, and because it was issued a year prior to the
construction of MRT3 on the center island of EDSA. Clearly, MMC
Memorandum Circular No. 88-09 could not have included MRT3 in
its prohibition.
MMDA's insistence that it was only implementing Presidential
Decree No. 1096 (Building Code) and its implementing rules and
regulations is not persuasive. The power to enforce the provisions of
the Building Code was lodged in the Department of Public Works
and Highways (DPWH), not in MMDA, considering the law's
following provision, thus:
Sec. 201. Responsibility for Administration and Enforcement. The administration and enforcement of the provisions of this Code
including the imposition of penalties for administrative violations
thereof is hereby vested in the Secretary of Public Works,
Transportation and Communications, hereinafter referred to as the
"Secretary."

MMDA acted on its own and should be held solely liable for the
destruction of the portion of Justice Gancaycos building.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals in CA-G.R. SP No. 84648 is AFFIRMED.
SO ORDERED.
G.R. No. L-43938 April 15, 1988
REPUBLIC OF THE PHILIPPINES (DIRECTOR OF FOREST
DEVELOPMENT), petitioner,
vs.
HON. COURT OF APPEALS (THIRD DIVISION) and JOSE Y. DE LA
ROSA, respondents.
G.R. No. L-44081 April 15, 1988
BENGUET CONSOLIDATED, INC., petitioner,
vs.
HON. COURT OF APPEALS, JOSE Y. DE LA ROSA, VICTORIA,
BENJAMIN and EDUARDO, all surnamed DE LA ROSA, represented
by their father JOSE Y. DE LA ROSA, respondents.
G.R. No. L-44092 April 15, 1988

There is also no evidence showing that MMDA had been delegated

by DPWH to implement the Building Code. (Emphasis supplied.)
Additionally, the penalty prescribed by Ordinance No. 2904 itself
does not include the demolition of illegally constructed buildings in
case of violations. Instead, it merely prescribes a punishment of "a
fine of not more than two hundred pesos (P200.00) or by
imprisonment of not more than thirty (30) days, or by both such fine
and imprisonment at the discretion of the Court, Provided, that if
the violation is committed by a corporation, partnership, or any
juridical entity, the Manager, managing partner, or any person
charged with the management thereof shall be held responsible
therefor." The ordinance itself also clearly states that it is the regular
courts that will determine whether there was a violation of the
ordinance.
As pointed out in Trackworks, the MMDA does not have the power
to enact ordinances. Thus, it cannot supplement the provisions of
Quezon City Ordinance No. 2904 merely through its Resolution No.
02-28.
Lastly, the MMDA claims that the City Government of Quezon City
may be considered to have approved the demolition of the
structure, simply because then Quezon City Mayor Feliciano R.
Belmonte signed MMDA Resolution No. 02-28. In effect, the city
government delegated these powers to the MMDA. The powers
referred to are those that include the power to declare, prevent and
32
abate a nuisance and to further impose the penalty of removal or
demolition of the building or structure by the owner or by the city at
33
the expense of the owner.
MMDAs argument does not hold water. There was no valid
delegation of powers to the MMDA. Contrary to the claim of the
MMDA, the City Government of Quezon City washed its hands off
34
the acts of the former. In its Answer, the city government stated
that "the demolition was undertaken by the MMDA only, without
the participation and/or consent of Quezon City." Therefore, the

ATOK-BIG WEDGE MINING COMPANY, petitioner,

vs.
HON. COURT OF APPEALS, JOSE Y. DE LA ROSA, VICTORlA,
BENJAMIN and EDUARDO, all surnamed DE LA ROSA, represented
by their father, JOSE Y. DE LA ROSA, respondents.

CRUZ, J.:
The Regalian doctrine reserves to the State all natural wealth that
may be found in the bowels of the earth even if the land where the
1
discovery is made be private. In the cases at bar, which have been
consolidated because they pose a common issue, this doctrine was
not correctly applied.
These cases arose from the application for registration of a parcel of
land filed on February 11, 1965, by Jose de la Rosa on his own behalf
and on behalf of his three children, Victoria, Benjamin and Eduardo.
The land, situated in Tuding, Itogon, Benguet Province, was divided
into 9 lots and covered by plan Psu-225009. According to the
application, Lots 1-5 were sold to Jose de la Rosa and Lots 6-9 to his
children by Mamaya Balbalio and Jaime Alberto, respectively, in
2
1964.
The application was separately opposed by Benguet Consolidated,
Inc. as to Lots 1-5, Atok Big Wedge Corporation, as to Portions of
Lots 1-5 and all of Lots 6-9, and by the Republic of the Philippines,
3
through the Bureau of Forestry Development, as to lots 1-9.
In support of the application, both Balbalio and Alberto testified that
they had acquired the subject land by virtue of prescription Balbalio
claimed to have received Lots 1-5 from her father shortly after the
Liberation. She testified she was born in the land, which was
4
possessed by her parents under claim of ownership. Alberto said

he received Lots 6-9 in 1961 from his mother, Bella Alberto, who
declared that the land was planted by Jaime and his predecessors-ininterest to bananas, avocado, nangka and camote, and was enclosed
with a barbed-wire fence. She was corroborated by Felix Marcos, 67
years old at the time, who recalled the earlier possession of the land
5
by Alberto's father. Balbalio presented her tax declaration in 1956
6
and the realty tax receipts from that year to 1964, Alberto his tax
declaration in 1961 and the realty tax receipts from that year to
7
1964.
Benguet opposed on the ground that the June Bug mineral claim
covering Lots 1-5 was sold to it on September 22, 1934, by the
successors-in-interest of James Kelly, who located the claim in
September 1909 and recorded it on October 14, 1909. From the
date of its purchase, Benguet had been in actual, continuous and
exclusive possession of the land in concept of owner, as evidenced
by its construction of adits, its affidavits of annual assessment, its
geological mappings, geological samplings and trench side cuts, and
8
its payment of taxes on the land.
For its part, Atok alleged that a portion of Lots 1-5 and all of Lots 6-9
were covered by the Emma and Fredia mineral claims located by
Harrison and Reynolds on December 25, 1930, and recorded on
January 2, 1931, in the office of the mining recorder of Baguio.
These claims were purchased from these locators on November 2,
1931, by Atok, which has since then been in open, continuous and
exclusive possession of the said lots as evidenced by its annual
assessment work on the claims, such as the boring of tunnels, and its
9
payment of annual taxes thereon.
The location of the mineral claims was made in accordance with
Section 21 of the Philippine Bill of 1902 which provided that:
SEC. 21. All valuable mineral deposits in public
lands in the philippine Islands both surveyed and
unsurveyed are hereby declared to be free and
open to exploration, occupation and purchase
and the land in which they are found to
occupation and purchase by the citizens of the
United States, or of said islands.
The Bureau of Forestry Development also interposed its objection,
arguing that the land sought to be registered was covered by the
Central Cordillera Forest Reserve under Proclamation No. 217 dated
February 16, 1929. Moreover, by reason of its nature, it was not
10
subject to alienation under the Constitutions of 1935 and 1973.
The trial court * denied the application, holding that the applicants
had failed to prove their claim of possession and ownership of the
11
land sought to be registered. The applicants appealed to the
respondent court, * which reversed the trial court and recognized
the claims of the applicant, but subject to the rights of Benguet and
12
Atok respecting their mining claims. In other words, the Court of
Appeals affirmed the surface rights of the de la Rosas over the land
while at the same time reserving the sub-surface rights of Benguet
and Atok by virtue of their mining claims.
Both Benguet and Atok have appealed to this Court, invoking their
superior right of ownership. The Republic has filed its own petition
for review and reiterates its argument that neither the private
respondents nor the two mining companies have any valid claim to
the land because it is not alienable and registerable.

It is true that the subject property was considered forest land and
included in the Central Cordillera Forest Reserve, but this did not
impair the rights already vested in Benguet and Atok at that time.
The Court of Appeals correctly declared that:
There is no question that the 9 lots applied for are within the June
Bug mineral claims of Benguet and the "Fredia and Emma" mineral
claims of Atok. The June Bug mineral claim of plaintiff Benguet was
one of the 16 mining claims of James E. Kelly, American and mining
locator. He filed his declaration of the location of the June Bug
mineral and the same was recorded in the Mining Recorder's Office
on October 14, 1909. All of the Kelly claims ha subsequently been
acquired by Benguet Consolidated, Inc. Benguet's evidence is that
it had made improvements on the June Bug mineral claim
consisting of mine tunnels prior to 1935. It had submitted the
required affidavit of annual assessment. After World War II,
Benguet introduced improvements on mineral claim June Bug, and
also conducted geological mappings, geological sampling and
trench side cuts. In 1948, Benguet redeclared the "June Bug" for
taxation and had religiously paid the taxes.
The Emma and Fredia claims were two of the several claims of
Harrison registered in 1931, and which Atok representatives
acquired. Portions of Lots 1 to 5 and all of Lots 6 to 9 are within the
Emma and Fredia mineral claims of Atok Big Wedge Mining
Company.
The June Bug mineral claim of Benguet and the Fredia and Emma
mineral claims of Atok having been perfected prior to the approval
of the Constitution of the Philippines of 1935, they were removed
from the public domain and had become private properties of
Benguet and Atok.
It is not disputed that the location of the mining claim under
consideration was perfected prior to November 15, 1935, when the
Government of the Commonwealth was inaugurated; and
according to the laws existing at that time, as construed and
applied by this court in McDaniel v. Apacible and Cuisia (42 Phil.
749), a valid location of a mining claim segregated the area from
the public domain. Said the court in that case: The moment the
locator discovered a valuable mineral deposit on the lands located,
and perfected his location in accordance with law, the power of the
United States Government to deprive him of the exclusive right to
the possession and enjoyment of the located claim was gone, the
lands had become mineral lands and they were exempted from
lands that could be granted to any other person. The reservations
of public lands cannot be made so as to include prior mineral
perfected locations; and, of course, if a valid mining location is
made upon public lands afterwards included in a reservation, such
inclusion or reservation does not affect the validity of the former
location. By such location and perfection, the land located is
segregated from the public domain even as against the
Government. (Union Oil Co. v. Smith, 249 U.S. 337; Van Mess v.
Roonet, 160 Cal. 131; 27 Cyc. 546).
"The legal effect of a valid location of a mining claim is not only to
segregate the area from the public domain, but to grant to the
locator the beneficial ownership of the claim and the right to a
patent therefor upon compliance with the terms and conditions
prescribed by law. Where there is a valid location of a mining claim,
the area becomes segregated from the public domain and the
property of the locator." (St. Louis Mining & Milling Co. v. Montana
Mining Co., 171 U.S. 650; 655; 43 Law ed., 320, 322.) "When a
location of a mining claim is perfected it has the effect of a grant by

the United States of the right of present and exclusive

possession, with the right to the exclusive enjoyment of all the
surface ground as well as of all the minerals within the lines of the
claim, except as limited by the extralateral right of adjoining
locators; and this is the locator's right before as well as after the
issuance of the patent. While a lode locator acquires a vested
property right by virtue of his location made in compliance with the
mining laws, the fee remains in the government until patent
issues."(18 R.C.L. 1152) (Gold Creek Mining Corporation v. Hon.
Eulogio Rodriguez, Sec. of Agriculture and Commerce, and Quirico
Abadilla, Director of the Bureau of Mines, 66 Phil. 259, 265-266)
It is of no importance whether Benguet and Atok
had secured a patent for as held in the Gold
Creek Mining Corp. Case, for all physical
purposes of ownership, the owner is not
required to secure a patent as long as he
complies with the provisions of the mining laws;
his possessory right, for all practical purposes of
ownership, is as good as though secured by
patent.
We agree likewise with the oppositors that
having complied with all the requirements of the
mining laws, the claims were removed from the
public domain, and not even the government of
the Philippines can take away this right from
them. The reason is obvious. Having become the
private properties of the oppositors, they cannot
be deprived thereof without due process of
13
law.
Such rights were not affected either by the stricture in the
Commonwealth Constitution against the alienation of all lands of the
public domain except those agricultural in nature for this was made
subject to existing rights. Thus, in its Article XIII, Section 1, it was
categorically provided that:
SEC. 1. All agricultural, timber and mineral lands
of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of
potential energy and other natural resources of
the Philipppines belong to the State, and their
disposition, exploitation, development, or
utilization shall be limited to citizens of the
Philippines or to corporations or associations at
least 60% of the capital of which is owned by
such citizens, subject to any existing right, grant,
lease or concession at the time of the
inauguration of the government established
under this Constitution. Natural resources with
the exception of public agricultural lands, shall
not be alienated, and no license, concession, or
lease for the exploitation, development or
utilization of any of the natural resources shall
be granted for a period exceeding 25 years,
except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than
the development of water power, in which case
beneficial use may be the measure and the limit
of the grant.
Implementing this provision, Act No. 4268, approved on November
8, 1935, declared:

Any provision of existing laws, executive order,

proclamation to the contrary notwithstanding,
all locations of mining claim made prior to
February 8, 1935 within lands set apart as forest
reserve under Sec. 1826 of the Revised
Administrative Code which would be valid and
subsisting location except to the existence of
said reserve are hereby declared to be valid and
subsisting locations as of the date of their
respective locations.
The perfection of the mining claim converted the property to
mineral land and under the laws then in force removed it from the
14
public domain. By such act, the locators acquired exclusive rights
over the land, against even the government, without need of any
further act such as the purchase of the land or the obtention of a
15
patent over it. As the land had become the private property of the
locators, they had the right to transfer the same, as they did, to
Benguet and Atok.
It is true, as the Court of Appeals observed, that such private
property was subject to the "vicissitudes of ownership," or even to
forfeiture by non-user or abandonment or, as the private
respondents aver, by acquisitive prescription. However, the method
invoked by the de la Rosas is not available in the case at bar, for two
reasons.
First, the trial court found that the evidence of open, continuous,
adverse and exclusive possession submitted by the applicants was
insufficient to support their claim of ownership. They themselves
had acquired the land only in 1964 and applied for its registration in
1965, relying on the earlier alleged possession of their predecessors16
in-interest. The trial judge, who had the opportunity to consider
the evidence first-hand and observe the demeanor of the witnesses
and test their credibility was not convinced. We defer to his
judgment in the absence of a showing that it was reached with grave
17
abuse of discretion or without sufficient basis.
Second, even if it be assumed that the predecessors-in-interest of
the de la Rosas had really been in possession of the subject
property, their possession was not in the concept of owner of
the mining claim but of the property asagricultural land, which it
was not. The property was mineral land, and they were claiming it as
agricultural land. They were not disputing the lights of the mining
locators nor were they seeking to oust them as such and to replace
them in the mining of the land. In fact, Balbalio testified that she
18
was aware of the diggings being undertaken "down below" but
she did not mind, much less protest, the same although she claimed
to be the owner of the said land.
The Court of Appeals justified this by saying there is "no conflict of
interest" between the owners of the surface rights and the owners
of the sub-surface rights. This is rather doctrine, for it is a wellknown principle that the owner of piece of land has rights not only
to its surface but also to everything underneath and the airspace
19
above it up to a reasonable height. Under the aforesaid ruling, the
land is classified as mineral underneath and agricultural on the
surface, subject to separate claims of title. This is also difficult to
understand, especially in its practical application.
Under the theory of the respondent court, the surface owner will be
planting on the land while the mining locator will be boring tunnels
underneath. The farmer cannot dig a well because he may interfere

with the operations below and the miner cannot blast a tunnel lest
he destroy the crops above. How deep can the farmer, and how high
can the miner, go without encroaching on each other's rights?
Where is the dividing line between the surface and the sub-surface
rights?
The Court feels that the rights over the land are indivisible and that
the land itself cannot be half agricultural and half mineral. The
classification must be categorical; the land must be either
completely mineral or completely agricultural. In the instant case, as
already observed, the land which was originally classified as forest
land ceased to be so and became mineral and completely mineral
20
once the mining claims were perfected. As long as mining
operations were being undertaken thereon, or underneath, it did
not cease to be so and become agricultural, even if only partly so,
because it was enclosed with a fence and was cultivated by those
who were unlawfully occupying the surface.
What must have misled the respondent court is Commonwealth Act
No. 137, providing as follows:
Sec. 3. All mineral lands of the public domain and
minerals belong to the State, and their
disposition, exploitation, development or
utilization, shall be limited to citizens of the
Philippines, or to corporations, or associations,
at least 60% of the capital of which is owned by
such citizens, subject to any existing right, grant,
lease or concession at the time of the
inauguration of government established under
the Constitution.
SEC. 4. The ownership of, and the right to the
use of land for agricultural, industrial,
commercial, residential, or for any purpose other
than mining does not include the ownership of,
nor the right to extract or utilize, the minerals
which may be found on or under the surface.

once minerals are discovered in the land, whatever the use to which
it is being devoted at the time, such use may be discontinued by the
State to enable it to extract the minerals therein in the exercise of its
sovereign prerogative. The land is thus converted to mineral land
and may not be used by any private party, including the registered
owner thereof, for any other purpose that will impede the mining
operations to be undertaken therein, For the loss sustained by such
owner, he is of course entitled to just compensation under the
21
Mining Laws or in appropriate expropriation proceedings.
Our holding is that Benguet and Atok have exclusive rights to the
property in question by virtue of their respective mining claims
which they validly acquired before the Constitution of 1935
prohibited the alienation of all lands of the public domain except
agricultural lands, subject to vested rights existing at the time of its
adoption. The land was not and could not have been transferred to
the private respondents by virtue of acquisitive prescription, nor
could its use be shared simultaneously by them and the mining
companies for agricultural and mineral purposes.
WHEREFORE, the decision of the respondent court dated April 30,
1976, is SET ASIDE and that of the trial court dated March 11, 1969,
is REINSTATED, without any pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Gancayco and Grio-Aquino, JJ., concur.
G.R. No. 158687

January 27, 2006

FRISCO F. DOMALSIN, Petitioner,

vs.
SPOUSES JUANITO VALENCIANO and AMALIA
VALENCIANO, Respondents.
DECISION
CHICO-NAZARIO, J.:

SEC. 5. The ownership of, and the right to extract

and utilize, the minerals included within all areas
for which public agricultural land patents are
granted are excluded and excepted from all such
patents.
SEC. 6. The ownership of, and the right to extract
and utilize, the minerals included within all areas
for which Torrens titles are granted are excluded
and excepted from all such titles.
This is an application of the Regalian doctrine which, as its name
implies, is intended for the benefit of the State, not of private
persons. The rule simply reserves to the State all minerals that may
be found in public and even private land devoted to "agricultural,
industrial, commercial, residential or (for) any purpose other than
mining." Thus, if a person is the owner of agricultural land in which
minerals are discovered, his ownership of such land does not give
him the right to extract or utilize the said minerals without the
permission of the State to which such minerals belong.
The flaw in the reasoning of the respondent court is in supposing
that the rights over the land could be used for both mining and nonmining purposes simultaneously. The correct interpretation is that

Before Us is a petition for review which seeks to set aside the

1
decision of the Court of Appeals in CA-G.R. SP No. 69415 dated 20
2
August 2002 which reversed and set aside the decision of Branch 63
of the Regional Trial Court (RTC) of La Trinidad, Benguet, in Civil Case
No. 01-CV-1582(150) dated 23 January 2002, which affirmed the
3
decision of the Municipal Circuit Trial Court (MCTC) of Tuba-Sablan,
Tuba, Benguet, in Civil Case No. 150 dated 20 November 2000,
declaring petitioner Frisco F. Domalsin the actual possessor of the
lot in dispute and ordering, inter alia, respondent spouses Juanito
and Amalia Valenciano to vacate and deliver the physical possession
4
thereof to the former, and its Resolution dated 20 May 2003
denying petitioners motion for reconsideration.
The respective allegations of the parties as contained in the
complaint and answer are substantially summarized by the Court of
Appeals as follows:
The property subject of this action for forcible entry is a parcel of
land located at sitio Riverside, Camp 3, Tuba, Benguet. Respondent
Frisco B. Domalsin claims to be the lawful owner and possessor of
said parcel of land since 1979 up to the present. He declared it for
taxation purposes in 1983 as (per) Tax Declaration No. 9540 issued
on September 12, 1983 by the Municipal Assessor of Tuba Benguet.

He allegedly introduced improvements consisting of levelling,

excavation, riprapping of the earth and a private road to the river,
fruitbearing trees and other agricultural plants of economic value.
He was in continuous, adverse possession and in the concept of an
owner for the past nineteen (19) years.
On August 1, 1998, petitioners Spouses Juanito Valenciano and
Amalia Valenciano (Sps. Valenciano, for brevity) allegedly entered
the premises to construct a building made of cement and strong
materials, without the authority and consent of respondent, by
means of force and strategy, and without a building permit from the
Department of Public Works and Highways (DPWH, for brevity).
Respondent protested and demanded that petitioners Sps.
Valenciano halt construction of said building, but the latter refused
to do so. Hence, he filed the instant case.
Petitioners Sps. Valenciano, on the other hand, claimed that the
ongoing construction was with the consent and conformity of the
DPWH and in fact the improvements found in the property were
introduced by the residents thereof, including its first residents,
William and Gloria Banuca, and not by respondent. The premises on
which petitioners Sps. Valenciano are constructing their house were
leveled after the earthquake in 1990 by the Banuca spouses.
Petitioners Sps. Valenciano are just starting the construction
5
because the permission was only given now by Gloria Banuca.
On 18 August 1998, petitioner filed before the MCTC of Tuba,
Benguet, a complaint for Forcible Entry with Prayer for Preliminary
Mandatory Injunction with Application for Issuance of a Temporary
6
Restraining Order plus Damages. The complaint was amended on
7
27 August 1998. Per Order dated 19 August 1998, a Temporary
Restraining Order (TRO) was issued ordering respondents to desist
and cease and refrain from continuing the construction of a house
8
on the land in question.
On 27 August 1998, respondent spouses Juanito and Amalia
Valenciano filed their Answer with Opposition to the Prayer for
9
Issuance of Writ of Preliminary Injunction. On 07 September 1998,
10
they filed an Answer to the Amended Complaint to which
11
petitioner filed a Reply.
On 15 September 1998, the MCTC issued another TRO.

12

The pre-trial order dated 6 November 1998 contained, among other

things, petitioners admission that he was temporarily not operating
any business in the area, and respondents admission regarding the
issuance of Tax Declarations on the property in dispute in
13
petitioners name.
Trial ensued. Petitioner presented Mariano Suyam and Tonsing
Binay-an, two of his former truck drivers from 1981 to 1985 in his
business of hauling sand, gravel and other aggregates at Riverside,
Camp 3, Tuba, Benguet.
Mariano Suyam testified that sometime in 1981, petitioner caused
the construction of a private road leading to the Bued River from
Kennon Road. He added that petitioner constructed two houses, the
first was located along the road-right-of-way of Kennon Road where
respondents are now constructing their house, while the second was
located below the private road around 40 to 60 meters down from
Kennon Road. He explained that the first house was used for
sleeping quarters and resting center for laborers, while petitioner
used the second one as his quarters. He said William Banuca was

hired as foreman in 1983 and that the latter and his family stayed in
the second house.
Tonsing Binay-an corroborated the testimony of Suyam as regards
the two houses constructed by petitioner and added that petitioner
was the manager of Salamander Enterprises and had a concession
permit from the Bureau of Mines to haul gravel and sand.
Petitioner testified that he is a lawyer-businessman formerly
engaged in trucking business, hauling sand and gravel, and operated
14
under the name Salamander Enterprises. He narrated that while he
was passing Kennon Road, he discovered that a portion of the Bued
River, Camp 3, Tuba Benguet, can be a potential source of supplies
for his business. Though the area was steep and deep, he scouted a
place where he can construct a road from Kennon Road to the Bued
River. In the course of cleaning the area, his workers noticed that
the place had been tilled. A certain Castillo Binay-an appeared
informing him that he was the occupant of the site of the proposed
private road. After agreeing on the consideration, the former
15
executed a Deed of Waiver and Quitclaim over the land in his
favor.
Thereafter, the Office of the Highway District Engineer of Baguio,
Ministry of Public Highways (now Department of Public Works and
Highways [DPWH]) issued a permit in favor of petitioner to extract
16
construction materials at Camp 3, Tuba, Benguet, which was
followed by the issuance on 1 October 1981 of Commercial Permit
No. 147 by the Office of the Mines Regional Officer, Mineral Region
17
No. 1, Bureau of Mines and Geo-Sciences (Bureau of Mines). The
Commercial Permit, which was renewable every year, was last
18
renewed in 1987.
Based on the Deed of Waiver and Quitclaim executed by Castillo
Binay-an, petitioner was able to apply for, and was issued, a tax
declaration over the land covering one hectare. Tax Declaration No.
19
9540 dated 12 September 1983 was issued to petitioner describing
the land bounded on the North by Bued River, on the South by
Kennon Road, on the East by Kennon Road, and on the West by a
Creek. With the revision of the fair market value and assessed value
of lands, Tax Declaration No. 94-004-00327 dated 12 November
20
1994 was issued to him. From 1983 up to 1998, petitioner has
been regularly paying real property taxes over the land.
Petitioner disclosed that in 1983, William Banuca applied for, and
21
was accepted, as foreman. Due to the nature of his job, Banuca
was permitted to stay in the second house beside the private
22
road. Banuca now lives permanently in said house after petitioner
gave it to him. Petitioner revealed that the houses his former
laborers constructed were awarded to them as a kind gesture to
them. As to the land he occupied along the Kennon Road where the
first house was erected, he claims that same still belongs to him.
This house, which his laborers and drivers used as a resting area,
was cannibalized and leveled, and the land over which it once stood
was taken possession by respondents who are now building their
house thereon.
Gloria Banuca testified for respondents. She disclosed that it was
she who invited respondents to come and reside at Riverside, Camp
3, Tuba, Benguet. She said she knew petitioner to be engaged in the
sand and gravel business in Tuba, Benguet, from 1981 to 1985, and
that the latter stopped in 1985 and never returned to haul sand and
gravel at the Bued River. She claimed she never saw petitioner
introduce any improvements on the land he claimed he bought from

Castillo Binay-an, and that it was she and the other residents who
introduced the existing improvements.
She narrated that in 1983, she planted fruit-bearing trees in the area
where respondents were constructing their house which is located
along the Kennon Roads road-right-of-way, fronting petitioners
property. After the earthquake of 1990, the private road
constructed by petitioner became impassable and it was she who
hired the equipment used to clear the same. She even leveled the
area where respondents were building their home. Based on the
ocular inspection, she said this area is within the 15-meter radius
from the center of the road. This area, she claims, was sold to her by
the Spouses Jularbal. However, the agreement between them shows
that what was sold to her were the improvements near her house
which was 40 meters down from Kennon Road and the
23
improvements along Kennon Road.
Agustin Domingo next testified for respondents. He testified that in
1986, upon the invitation of Gloria Banuca, he transferred his
residence to sitio Riverside because of its proximity to his place of
work. He stayed there for good and even buried his father near his
house. He said that in 1990, the private road constructed by
petitioner was covered by boulders, soil and rocks, and it was Mrs.
Banuca who initiated the clearing of the road. Finally, he declared
that since 1986, he never saw petitioner introduce any improvement
in the area.
Respondent Juanito Valenciano revealed that he is the cousin of
Gloria Banuca. He narrated that in 1984, he went to Riverside to see
the latter whose husband, William Banuca, was working as foreman
of petitioner. At that time, the lot under litigation was still a hill. It
was Gloria Banuca who leveled the hill and told him to construct his
house there. Finding the place to be an ideal place to build his
house, he paid the Banucas P10,000.00 for the improvements.
He explained that before he started building his house, he sought
the permission of the Benguet District Engineer, DPWH, which the
24
latter granted. In August 1998, he received a notice to stop and
desist from continuing the construction of a permanent one-storey
house made of hollow blocks and cement since the condition was
only to utilize light materials. Thereafter, a letter dated 22 January
1999 was sent to him informing him that the temporary permit
issued to him for the improvement/utilization of a portion of the
national road along Kennon Road had been revoked for nonsubmission of the waiver as required by the Office of the District
Engineer and his non-compliance with the condition that no
permanent structures are to be constructed within the road-right-ofway. He, however, denied receiving said letter.
Juan de Vera, a retired DPWH foreman, testified last for the
respondents. He claimed he witnessed the execution of the
25
document regarding the sale by Adriano Jularbal to Gloria Banuca
of improvements found near the house of the latter in the amount
of P1,000.00.
The MCTC found that what is being contested is the possession of a
portion of the road-right-of way of Kennon Road which is located in
front of a parcel of land that petitioner bought by way of Deed of
Waiver and Quitclaim from Castillo Binay-an. It held that petitioner
had prior material possession over the subject land. It ruled that the
destruction of his house built thereon by the earthquake in 1990,
and later cannibalized without being reconstructed was not
tantamount to abandonment of the site by the petitioner because it

was destroyed by a fortuitous event which was beyond his control. It

explained that his possession over the land must be recognized by
respondents who came later after the earthquake. It brushed aside
respondents allegation that the land in dispute was abandoned by
the latter after he stopped operating his sand and gravel business in
1985 and never returned anymore, and when the house erected on
it was destroyed during the 1990 earthquake, it was no longer
reconstructed and was subsequently leveled or demolished by
Gloria Banuca. However, it pronounced that respondents action to
occupy the land was done in good faith considering that their
occupation of the land was with the assurance of the seller (Gloria
Banuca) and that they were armed with the permit issued by the
DPWH for him to construct his house thereon.
On 20 November 2000, the MCTC came out with its decision, the
decretal portion of which reads:
WHEREFORE PREMISES CONSIDERED, decision is hereby rendered in
favor of plaintiff, FRISCO DOMALSIN, and against defendants,
JUANITO VALENCIANO and AMALIA VALENCIANO, with the
following:
1. Order to declare the injunction permanent.
2. Order the plaintiff as the actual possessor of the lot in
question.
3. Order the defendant(s) to vacate and deliver the
physical possession voluntarily of the disputed land to
plaintiff within 60 days from receipt of this decision.
4. Order defendant(s) to remove his structure within from
receipt of this decision.
5. Order the defendant(s) to (sic) plaintiff the amount of
P10,000.00, as litigation expenses.
6. Order defendant(s) to pay the cost of suit

26

27

Respondents appealed the decision to the RTC. In affirming the

decision in toto the RTC ratiocinated:
It may be well to consider that even after plaintiffs business ceased
operation, he religiously paid the taxes due thereon.
Appellants theory that the plaintiff-appellee abandoned the
property does not sit well and finds no support in the record. Notice
that since 1985 up to mid-1990, the Banucas never laid claim over
the property taking into consideration that they were already
residents of the place. This only goes to show that they
acknowledged and respected the prior possession of the plaintiffappellee. Besides, what right has Gloria to cause the leveling of the
property destroying the natural contour thereof, to presume that
plaintiff-appellee abandoned it and to invite and allow other persons
to settle thereat? Absolutely none. Knowing fully well that the
plaintiff-appellee has prior possession of the property, Glorias
actions are unjustified, to say the least. Her consummated act of
leveling the property without the knowledge of the plaintiff-appellee
is viewed as a test to determine whether or not the latter is still
interested in the property. From then on until 1998 (but before the
construction), the Banucas still recognize the plaintiffs possession.
But as Gloria claims to have heard no word from the plaintiff, she

unilaterally declared that the place is now abandoned as she

"invited and allowed" the defendants to live and construct their
house thereat.
Contrary to the assertion of the appellants, there was no
abandonment simply because plaintiff-appellee continuously paid
the corresponding taxes due thereon and that he promptly objected
to the construction of the defendants-appellants house. These are
clear manifestations of his intention not to abandon the property.
Sad to say though that here is a former employer. By passing off
such property to be hers is so unkind, unfair and against social order.
It is very clear that the Banucas knew of the prior possession of the
plaintiff way back then so that they themselves never personally
build construction over the property. If they honestly believe that
they now "own" the land, why will they still have to invite other
people who are not their relatives to settle thereat? Why the
preference of strangers over relatives? The Court does not believe
that they did not receive any compensation for having "allowed"
strangers, the defendants included, to settle on the land.
From all the foregoing, Gloria is clearly in bad faith. And her being in
bad faith must be corrected and if warranted, must be meted
appropriate penalty. If the Banucas are in bad faith, then the
appellants cannot have better rights either. The Banucas transferred
nothing to them. Defendants-appellants cannot even be considered
as builders in good faith. It must be noted that they were prohibited
by the plaintiff from going further but they ignored it. They shall lose
what was built (Art. 449, Civil Code). Again, if the Banucas believe
that they have an action or a right to deprive the plaintiffs
possession, why did they not invoke judicial interference as required
under Art. 536 of the same code? Nonetheless, notwithstanding the
fact of leveling without the knowledge of the plaintiff-appellee, the
28
same did not affect his possession (Art. 537, Civil Code).
Via a petition for review, respondents appealed to the Court of
Appeals. The Court of Appeals made a sudden turn-around and
reversed the decision under review. Its decision dated 20 August
2002 reads in part:
[T]here is a need to clarify a few things. What is undisputed are the
identity and nature of the property subject of the action for forcible
entry. The subject of the action concerns a portion of the road-rightof-way along Kennon Road just above the private road constructed
by respondent. The problem, however, is that petitioners Sps.
Valenciano started constructing a house on the same spot where a
house belonging to respondent once stood. Both parties are now
asserting that they are entitled to the possession of said lot. But the
decision of the lower court seems to imply that respondents right to
possess the subject property stems from his acquisition of the onehectare property below it. That is not the case.
We must emphasize that the subject of the deed of quitclaim and
waiver of rights of Castillo Binay-an was not the road-right-of-way
but the sloping terrain below it. This was the property acquired by
the respondent to have access to the sand and gravel on the Bued
River. It did not include the road-right-of-way. As regards Gloria
Banucass claims, the evidence show that her agreement with
Jularbal involved only the improvements near her residence down
the private road and not the road-right-of-way. Since the subject
property is a road-right-of-way, it forms part of the public dominion.
It is not susceptible to private acquisition or ownership. Prolonged
occupation thereof, improvements introduced thereat or payment
of the realty taxes thereon will never ripen into ownership of said
parcel of land. Thus, what We have are two parties, neither of which

can be owners, only possessors of the subject property. Beyond

these two, only the government has a better right to the subject
property which right it may exercise at any time. This bears
emphasizing because if either party has possessory rights to the
subject property, it is not predicated on ownership but only on their
actual possession of the subject property.
xxxx
There is no doubt that respondent had prior physical possession of
the subject property. He entered and acquired possession of the
subject property when he built his house thereon. The house was
destroyed during the 1990 earthquake and respondent did not
rebuild it. The mound on which it stood was later leveled by Gloria
Banuca and in 1998 petitioners Sps. Valenciano began construction
thereat. Petitioners Sps. Valenciano claim there was abandonment,
but the lower court ruled that respondent did not abandon the
subject property as he continued to pay the realty taxes thereon and
objected to petitioners Sps. Valencianos construction. We believe,
and so hold, that at this point in time, it is immaterial whether or not
there was abandonment by respondent. The fact remains that Gloria
Banuca took possession of the subject property soon after the
earthquake. She leveled the mound and the ruins of respondents
house, yet respondent remained silent. Respondent objected only
after petitioners Sps. Valenciano started construction of the house
on the subject property. Respondent cannot now interpose an
action for forcible entry against petitioners Sps. Valenciano, which
he should have filed against Gloria Banuca, petitioners Sps.
Valencianos predecessor-in-interest. But more than a year had
passed and his right to do so lapsed. Thus, respondents prior
possession is material only as against Gloria Banuca and only within
a period of one year from the time she wrested possession of the
property from respondent.
We view with distate Gloria Banucas ingratitude toward her
husbands former employer. Her actions smack of the proverbial
hand being offered in aid but the person to whom it is offered would
rather have the whole arm instead. This is an instance where it is the
employees who commit injustice against their employer.
Nonetheless, petitioners Sps. Valenciano should not suffer because
of Gloria Banucas ingratitude for the former came across the
property in good faith.
But respondent is also reminded that he only has himself to blame.
His failure to assert his right for an unreasonable and unexplained
length of time allowed Gloria Banuca to wrest possession from him.
Especially in this case where they do not and cannot own the subject
29
property, actual possession becomes particularly important.
The case was disposed as follows:
WHEREFORE, in view of the foregoing, the petition is GRANTED and
the decision of the Municipal Circuit Trial Court of tuba-Sablan dated
November 20, 2000 as affirmed by the Regional Trial Court on
30
January 23, 2002 is hereby REVERSED and SET ASIDE.
The Motion for Reconsideration filed by petitioner was denied in a
31
resolution dated 20 May 2003.
Petitioner is now before us seeking redress. He assigns the following
as the errors committed by the Court of Appeals:
I.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

PRIVATE RESPONDENT (NOW PETITIONER) FRISCO DOMALSIN
ABANDONED THE PROPERTY SUBJECT OF THE LITIGATION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN REVERSING AND
SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL COURT OF LA
TRINIDAD, BENGUET, BRANCH 63 WHICH AFFIRMED THE DECISION
OF THE MUNICIPAL CIRCUIT TRIAL COURT OF TUBA-SABLAN.
At the outset, it must be made clear that the property subject of this
case is a portion of the road-right-of way of Kennon Road which is
located in front of a parcel of land that petitioner bought by way of
32
Deed of Waiver and Quitclaim from Castillo Binay-an. The
33
admission of petitioner in his Amended Complaint that
respondents started constructing a building within the Kennon Road
road-right-of-way belies his claim that the lot in question is his.
In light of this exposition, it is clear that neither the petitioner nor
the respondents can own nor possess the subject property the same
being part of the public dominion. Property of public dominion is
defined by Article 420 of the Civil Code as follows:
ART. 420. The following things are property of public dominion:
(1) Those intended for public use such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and other of similar character.
(2) Those which belong to the State, without being for public use,
and are intended for some public service or for the development of
the national wealth.
Properties of public dominion are owned by the general
34
public. Public use is "use that is not confined to privileged
35
individuals, but is open to the indefinite public." As the land in
controversy is a portion of Kennon Road which is for the use of the
people, there can be no dispute that same is part of public
dominion. This being the case, the parties cannot appropriate the
land for themselves. Thus, they cannot claim any right of possession
over it. This is clear from Article 530 of the Civil Code which
provides:
ART. 530. Only things and rights which are susceptible of being
appropriated may be the object of possession.
Notwithstanding the foregoing, it is proper to discuss the position of
the Court of Appeals for comprehensive understanding of the facts
and the law involved.
Petitioner maintains that the Court of Appeals erred when it ruled
that he abandoned the land being disputed contrary to the rulings of
the MCTC and RTC. The MCTC found there was no abandonment of
the land because the house erected thereon was destroyed by a
fortuitous event (earthquake), while the RTC ruled there was no
abandonment because petitioner paid taxes due on the land and
that he promptly objected to the construction of respondents
house which are clear manifestations of his intention not to
abandon the property.

A reading of the decision of the Court of Appeals shows that it did

not reverse the two lower courts on the issue of abandonment. It
merely declared that such issue is not material in the resolution of
the case at bar. It faulted petitioner for not asserting his right for a
long time allowing Gloria Banuca to wrest the possession of the land
in question from petitioner by leveling the house he built thereon
and pronounced that actual possession becomes important in a case
where parties do not and cannot own the land in question.
From the foregoing it appears that the Court of Appeals did not give
weight or importance to the fact that petitioner had prior physical
possession over the subject land. It anchored its decision on the fact
that the parties do not and cannot own the land and that
respondents now have actual possession over it.
Ejectment proceedings are summary proceedings intended to
provide an expeditious means of protecting actual possession or
right to possession of property. Title is not involved. The sole issue
to be resolved is the question as to who is entitled to the physical or
36
material possession of the premises or possession de facto.
The Court of Appeals erred when it preferred the present and actual
possession of respondents vis--vis the prior possession of petitioner
on the ground that the parties do not and cannot own the lot in
question. Regardless of the actual condition of the title to the
property, the party in peaceable, quiet possession shall not be
thrown out by a strong hand, violence or terror. Neither is the
unlawful withholding of property allowed. Courts will always uphold
respect for prior possession. Thus, a party who can prove prior
possession can recover such possession even against the owner
himself. Whatever may be the character of his possession, if he has
in his favor prior possession in time, he has the security that entitles
him to remain on the property until a person with a better right
37
lawfully ejects him.
The fact that the parties do not and cannot own the property under
litigation does not mean that the issue to be resolved is no longer
priority of possession. The determining factor for one to be entitled
to possession will be prior physical possession and not actual
physical possession. Since title is never in issue in a forcible entry
case, the Court of Appeals should have based its decision on who
had prior physical possession. The main thing to be proven in an
action for forcible entry is prior possession and that same was lost
through force, intimidation, threat, strategy and stealth, so that it
behooves the court to restore possession regardless of title or
38
ownership.
Inasmuch as prior physical possession must be respected, the Court
of Appeals should have ruled squarely on the issue of abandonment
because it gave precedence to the actual present possession of
respondents. If, indeed, there was abandonment of the land under
consideration by petitioner, only then should respondents be given
the possession of the same since abandonment is one way by which
39
a possessor may lose his possession.
Abandonment of a thing is the voluntary renunciation of all rights
which a person may have in a thing, with the intent to lose such
40
thing. A thing is considered abandoned and possession thereof lost
if the spes recuperandi (the hope of recovery) is gone and the
41
animus revertendi (the intention of returning) is finally given up.
In the case before us, we find that petitioner never abandoned the
subject land. His opposition to the construction of respondents

house upon learning of the same and the subsequent filing of the
instant case are clear indicia of non-abandonment; otherwise, he
could have just allowed the latter to continue with the construction.
Moreover, the fact that the house petitioner built was destroyed by
the earthquake in 1990, was never rebuilt nor repaired and that
same was leveled to the ground by Gloria Banuca do not signify
abandonment. Although his house was damaged by the earthquake,
Gloria Banuca, the person who supposedly demolished said house,
had no right to do the same. Her act of removing the house and
depriving petitioner of possession of the land was an act of forcible
entry. The entry of respondents in 1998 was likewise an act of
forcible entry.
The next question is: Was the action filed the correct one and was it
timely filed?
Well-settled is the rule that what determines the nature of the
action as well as the court which has jurisdiction over the case are
42
the allegations in the complaint. In actions for forcible entry, the
law tells us that two allegations are mandatory for the municipal
court to acquire jurisdiction: First, the plaintiff must allege prior
physical possession of the property. Second, he must also allege that
he was deprived of his possession by any of the means provided for
43
in Section 1, Rule 70 of the Rules of Court. To effect the ejectment
of an occupant or deforciant on the land, the complaint should
embody such a statement of facts as to bring the party clearly within
the class of cases for which the statutes provide a remedy, as these
proceedings are summary in nature. The complaint must show
enough on its face to give the court jurisdiction without resort to
44
parol evidence.
A look at the Amended Complaint filed by petitioner clearly shows a
case for forcible entry. Petitioner alleged therein that he has been in
possession of the subject land for the last nineteen years and that
respondents, in the first week of August 1998, without his
permission and consent, entered the land by means of force,
strategy and stealth and started the construction of a building
thereon; and upon being informed thereof, he requested them to
stop their construction but respondents refused to vacate the land
forcing him to file the instant case to recover possession thereof.
The Court of Appeals pronounced that petitioner cannot interpose
an action for forcible entry against respondents and that the same
should have been filed against Gloria Banuca. It added that the right
to file against the latter had already lapsed because more than a
year had passed by from the time she wrestled possession of the
property from the petitioner.
We find such pronouncement to be flawed. An action of forcible
entry and detainer may be maintained only against one in
possession at the commencement of the action, and not against one
45
46
who does not in fact hold the land. Under Section 1, Rule 70 of
the Rules of Court, the action may be filed against persons
unlawfully withholding or depriving possession or any person
claiming under them. Considering that respondents are the ones in
present actual possession and are depriving petitioner of the
possession of the land in question, it is proper that they be the ones
to be named defendants in the case. The fact that Gloria Banuca was
supposedly the one who first committed forcible entry when she
allegedly demolished the house of petitioner does not make her the
proper party to be sued because she is no longer in possession or
control of the land in controversy.

As regards the timeliness of the filing of the case for forcible entry,
we find that same was filed within the one-year prescriptive period.
We have ruled that where forcible entry was made clandestinely,
the one-year prescriptive period should be counted from the time
the person deprived of possession demanded that the deforciant
desist from such dispossession when the former learned
47
thereof. As alleged by petitioner in the Amended Complaint, he
was deprived of his possession over the land by force, strategy and
stealth. Considering that one of the means employed was stealth
because the intrusion was done by respondents without his
knowledge and consent, the one-year period should be counted
from the time he made the demand to respondents to vacate the
land upon learning of such dispossession. The record shows that
upon being informed that respondents were constructing a building
in the subject land sometime in the first week of August 1998,
petitioner immediately protested and advised the former to stop;
but to no avail. The one-year period within which to file the forcible
entry case had not yet expired when the ejectment suit was filed on
18 August 1998 with the MCTC.
Despite the foregoing findings, this Court finds that the MCTC and
the RTC, as well as the Court of Appeals, to be in error when they
respectively declared that petitioner and respondents to be entitled
to the possession of the land in dispute. The parties should not be
permitted to take possession of the land, much more, claim
ownership thereof as said lot is part of the public dominion.
WHEREFORE, the foregoing considered, the instant petition is
hereby PARTIALLY GRANTED. Nonetheless, there being a finding that
the subject property is a part of the public dominion, of which
neither party is entitled to own nor possess, the decisions of the
Court of Appeals dated 20 August 2002, the Regional Trial Court of
La Trinidad, Benguet, dated 23 January 2002, and the Municipal
Circuit Trial Court of Tuba-Sablan, Tuba, Benguet, dated 20
November 2000 are SET ASIDE. Respondents Juanito and Amalia
Valenciano are ordered to remove their structure on the subject
land within sixty (60) days from receipt of this decision, and to
vacate and deliver the physical possession thereof to the Office of
the District Engineer, Benguet Engineering District, Department of
Public Works and Highways.
SO ORDERED.