Republic of the Philippines by the municipality to vacate and deliver possession of the said land, but

SUPREME COURT more than the sixty days within which they having done so to date; that
Manila the lease secured from the municipality of Cavite, by virtue whereof the
defendants occupy the land that is the subject matter of the complaint,
EN BANC is ultra vires and therefore ipso facto null and void and of no force or
effect, for the said land is an integral portion of a public plaza of public
G.R. No. L-9069 March 31, 1915 domain and use, and the municipal council of Cavite has never at any
time had any power or authority to withdraw it from public use, and to
THE MUNICIPALITY OF CAVITE, plaintiff-appellant, lease it to a private party for his own use, and so the defendants have
vs. never had any right or occupy or to retain the said land under leasehold,
HILARIA ROJAS and her husband TIUNG SIUKO, alias or in any other way, their occupation of the parcel being furthermore
SIWA, defendants-appellees. illegal; and therefore prayed that judgment be rendered declaring that
possession of the said land lies with the plaintiff and ordering the
Attorney-General Villamor for appellant. defendants to vacate the land and deliver possession thereof to said
J. Y. Pinzon for appellees. plaintiff, with the costs against the defendants.

TORRES, J.: The demurrer filed to the foregoing complaint having been overruled, with
exception on the part of the defendants, in their answer of April 10, 1912,
they admitted some of the allegations contained in the complaint but
Appeal filed through bill of exceptions by the Attorney-General,
denied that the parcel of land which they occupy and to which the
representing the plaintiff municipality of Cavite, from the judgment of
complaint refers forms and integral part of Plaza Soledad, or that the lease
March 27, 1913, whereby the Honorable Herbert D. Gale, judge, dismissed
secured by them from the municipality of Cavite was null and void
the complaint with costs against the plaintiff party, declaring that the said
and ultra vires, stating if they refused to vacate said land it was because
municipality had no right to require that the defendants vacate the land in
they had acquired the right of possession thereof. As a special defense
question.
they alleged that, according to the lease, they could only be ordered to
vacate the land leased when the plaintiff municipality might need it for
By an instrument dated December 5, 1911, afterwards amended on March
decoration or other public use, which does not apply in the present case;
14, 1912, the provincial fiscal of Cavite, representing the municipality of
and in a cross-complaint they alleged that on the land which is the subject
that name, filed a complaint in the Court of First Instance of said province
matter of the complaint the defendants have erected a house of strong
alleging that the plaintiff municipal corporation, duly organized and
materials, assessed at P3,000, which was constructed under a license
constituted in accordance with Act No. 82, and as the successor to the
secured from the plaintiff municipality; that if they should be ordered to
rights aid entity had under the late Spanish government, and by virtue of
vacate the said land they would suffer damages to the extent of P3,000,
Act No. 1039, had exclusive right, control and administration over the
wherefore they prayed that they be absolved from the complaint, or in the
streets, lanes, plazas, and public places of the municipality of Cavite; that
contrary case that the plaintiff be sentenced to indemnify them in the sum
the defendants, by virtue of a lease secured from the plaintiff
of P3,000 as damages, and to pay the costs.
municipality, occupy a parcel of land 93 square meters in area that forms
part of the public plaza known under the name of Soledad, belonging to
After hearing of the case, wherein both parties submitted parol and
the municipality of Cavite, the defendants having constructed thereon a
documentary evidence, the court rendered the judgment that he been
house, through payment to the plaintiff for occupation thereof of a rental
mentioned, whereto counsel for the municipality excepted and in writing
of P5,58 a quarter in advance, said defendants being furthermore
asked for a reopening of the case and the holding of a new trial. This
obligated to vacate the leased land within sixty days subsequent to
motion was denied, with exception on the part of the appellant, and the
plaintiff's demand to that effect; that the defendants have been required
forwarded to the clerk of this court.
It is duly proven in the record that, upon presentation of an application by
Hilaria Rojas, he municipal council of Cavite by resolution No. 10, dated
July 3, 107, Exhibit C, leased to the said Rojas some 70 or 80 square
meters of Plaza Soledad, on condition that she pay rent quarterly in
advance according to the schedule fixed in Ordinance No. 43, land within
sixty days subsequent to notification to that effect. The record shows
(receipts, Exhibit 1) that she has paid the land tax on the house erected
on the lot.
The boundary line between the properties of the municipality of Cavite
and the naval reservation, as fixed in Act No. 1039 of the Philippine
Commission, appears in the plan prepared by a naval engineer and
submitted as evidence by the plaintiff, Exhibit C of civil case No. 274 of
the Cavite court and registered in this court as No. 9071. According to said
plan, defendant's house is erected on a plat of ground that forms part of
the promenade called Plaza Soledad, and this was also so proven by the
testimony of the plaintiff's witnesses.
By section 3 of the said Act No. 1039, passed January 12, 1904, the
Philippine Commission granted to the municipality of Cavite all the land
included in the tract called Plaza Soledad. In the case of Nicolas vs. Jose (6
Phil. Rep., 589), wherein the municipality of Cavite, represented by its
president Catalino Nicolas, sought inscription in its name of the land
comprised in the said Plaza Soledad, with objection on the part of Maria
Jose et al. who is sought that inscription be decreed in their name of the
parcels of land in this plaza occupied by them, this court decided that
neither the municipality nor the objectors were entitled to inscription, for
with respect to the objectors said plaza belonged to the municipality of
Cavite and with respect to the latter the said Plaza Soledad was not
transferable property of that municipality to be inscribed in its name,
because he intention of Act No. 1039 was that the said plaza and other
places therein enumerated should be kept open for public transit;
Therefore there can be no doubt that the defendant has no right to
continue to occupy the land of the municipality leased by her, for it is an
integral portion of Plaza Soledad, which if for public use and is reserved
for the common benefit.
According to article 344 of the Civil Code: "Property for public use in
provinces and in towns comprises the provincial and town roads, the
squares, streets, fountains, and public waters, the promenades, and public
works of general service supported by said towns or provinces."
The said Plaza Soledad being a promenade for public use, the municipal
council of Cavite could not in 1907 withdraw or exclude from public use a
portion thereof in order to lease it for the sole benefit of the defendant
Hilaria Rojas. In leasing a portion of said plaza or public place to the
defendant for private use the plaintiff municipality exceeded its authority
in the exercise of its powers by executing a contract over a thing of which
it could not dispose, nor is it empowered so to do.
The Civil Code, articles 1271, prescribes that everything which is not
outside he commerce of man may be the object of a contract, and plazas
and streets are outside of this commerce, as was decided by the supreme
court of Spain in its decision of February 12, 195, which says: "Communal
things that cannot be sold because they are by their very nature outside
of commerce are those for public use, such as the plazas, streets,
common lands, rivers, fountains, etc."
Therefore, it must be concluded that the contract, Exhibit C, whereby he
municipality of Cavite leased to Hilaria Rojas a portion of the Plaza
Soledad is null and void and of no force or effect, because it is contrary to
the law and the thing leased cannot be the object of a contract. On the
hypothesis that the said lease is null and void in accordance with the
provisions of article 1303 of the Civil Code, the defendant must restore
and deliver possession of the land described in the complaint to the
municipality of Cavite, which in its turn must restore to the said defendant
all the sums it may have received from her in the nature of rentals just as
soon as she restores the land improperly leased. For the same reasons as
have been set forth, and as said contract is null and void in its origin, it
can produce no effect and consequently the defendant is not entitled to
claim that the plaintiff municipality indemnity her for the damages she
may suffer by the removal of her house from the said land.
For all the foregoing reasons we must reverse the judgment appealed
from and declare, as we do declare, that the land occupied by Hilaria
Rojas forms part of the public plaza called Soledad, and as the lease of
said parcel of land is null and void, we order the defendant to vacate it
and release the land in question within thirty days, leaving it cleared as it
was before hr occupation. There is no ground for the indemnity sought in
the nature of damages, but the municipality must in its turn to the
defendant the rentals collected; without finding as to the costs. So
ordered.
Arellano, C.J., Johnson and Araullo, JJ., concur. PACIFICO M. VALIAO, for himself November 28, 2011
Moreland, J., concurs in the result. and in behalf of his co-heirs
LODOVICO, RICARDO,
BIENVENIDO, all Surnamed
VALIAO and NEMESIO M.
GRANDEA,
Petitioners,

- versus-

REPUBLIC OF THE PHILIPPINES,

MACARIO ZAFRA, and MANUEL
YUSAY,
Respondents,

DECISION

PERALTA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the
Republic of the Philippines Rules of Court seeking to set aside the Decision [1] and Resolution[2] of the
Supreme Court Court of Appeals (CA) in CA-G.R. CV No. 54811, which reversed the
Manila Decision[3] of the Regional Trial Court (RTC) of Kabankalan, Negros
Occidental, Branch 61, in Land Registration Case No. 03, granting
THIRD DIVISION petitioners' application for registration of title over a parcel of land located
in Ilog, Negros Occidental.
The factual milieu of this case is as follows:

On August 11, 1987, petitioners [4] Pacifico, Lodovico, Ricardo, Bienvenido,

all surnamed Valiao, and Nemesio Grandea filed with the RTC of
Kabankalan, Negros Occidental an application for registration of a parcel
of land with an area of 504,535 square meters, more or less, situated in
Barrio Galicia, Municipality of Ilog, Negros Occidental.

On June 20, 1988, private oppositors Macario Zafra and Manuel Yusay filed
their Motion to Dismiss the application on the following grounds: (1) the
land applied for has not been declared alienable and disposable; (2) res
judicata has set in to bar the application for registration; and (3) the
application has no factual or legal basis.
On August 24, 1988, the Republic of the Philippines (Republic), through
the Office of the Solicitor General (OSG), opposed the application for
registration on the following grounds, among others: that neither the
applicants nor their predecessors-in-interest had been in open,
continuous, exclusive and notorious possession and occupation of the land
in question since June 12, 1945 or prior thereto; that the muniment/s of
title and/or the tax declaration/s and tax payments/receipts of applicants,
if any, attached to or alleged in the application, do/es not constitute
competent and sufficient evidence of a bona fide acquisition of the land
applied for or of their open, continuous, exclusive and notorious
possession and occupation in the concept of owner, since June 12, 1945 or
prior thereto; that the parcel of land applied for is a portion of public
domain belonging to the Republic, which is not subject to private
appropriation; and that the present action is barred by a previous final
judgment in a cadastral case prosecuted between the same parties and
involving the same parcel of land.
On July 3, 1989, the RTC denied private oppositors' Motion to Dismiss. Trial
thereafter ensued.
In support of their application for registration, petitioners alleged that they
acquired the subject property in 1947, upon the death of their uncle
Basilio Millarez (Basilio), who purchased the land from a certain Fermin
Payogao, pursuant to a Deed of Sale[5] dated May 19, 1916 entirely
handwritten in Spanish language. Basilio possessed the land in question
from May 19, 1916 until his death in 1947. Basilio's possession was open,
continuous, peaceful, adverse, notorious, uninterrupted and in the
concept of an owner. Upon Basilio's death, the applicants as co-heirs
possessed the said land until 1966, when oppositor Zafra unlawfully and
violently dispossessed them of their property, which compelled them to
file complaints of Grave Coercion and Qualified Theft against Zafra. In
support of their claim of possession over the subject property, petitioners
submitted in evidence Tax Declaration No. 9562 [6] dated September 29,
1976 under the names of the heirs of Basilio Millarez.
The RTC, in its Decision dated December 15, 1995, granted petitioners'
application for registration of the subject property, the dispositive portion
of which states:
WHEREFORE, in view of the foregoing, this Court hereby
orders and decrees registration of Lot No. 2372 subject of
the present proceedings and the registration of title thereto,
in favor of the applicants, who are declared the true and
lawful owners of said Lot No. 2372, except applicant
Lodovico Valiao, who sold his right to Macario Zafra.
Upon the finality of this decision, let the corresponding
decree of registration and Certificate of Title be issued in the
name of the applicants, Heirs of Basilio Millarez, namely:
Pacifico Valiao, Ricardo Valiao, Bienvenido Valiao and
Nemesio Grandea, subject to the rights of private
oppositors, Macario Zafra and Manuel Yusay over said lot
whose fishpond permits are declared VALID and will expire
on December 31, 2003.
No costs.
SO ORDERED.[7]
Aggrieved by the Decision, the private oppositors and the Republic,
through Assistant Prosecutor Josue A. Gatin, filed an appeal with the CA,
which reversed the trial court's findings in its Decision dated June 23,
2005. The CA ruled that the classification of lands of the public domain is
an exclusive prerogative of the executive department of the government
and in the absence of such classification, the lands remain as unclassified
until it is released therefrom and rendered open to disposition. Further,
there exists a prior cadastral case involving the same parties herein and
the same Lot No. 2372, which ruled that Lot No. 2372 belongs to the
Republic. The CA held that such judgment constitutes res judicata that
bars a subsequent action for land registration. It also ruled that the
subject property is part of the inalienable land of the public domain and
petitioners failed to prove that they and their predecessors-in-interest had
been in open, continuous, exclusive and notorious possession of the land
in question since June 12, 1945 or earlier. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, the instant appeal
is GRANTED. Accordingly, We REVERSE the Decision dated
December 15, 1995 of the Regional Trial Court, DENY the
application for registration of title filed by petitioners-
appellees, DECLARE as moot and academic any and all
claims of private oppositors-appellants over Lot No. 2372,
 and DECLARE the subject parcel of land to be inalienable and
indisposable land belonging to the public domain.
SO ORDERED.[8]
Petitioners filed a motion for reconsideration, which was denied by the CA
in a Resolution dated November 17, 2005. Hence, the present petition
with the following issues:
I domain and that petitioners' application for land registration is already
WHETHER OR NOT LOT NO. 2372 OF THE ILOG CADASTRE IS
ALIENABLE AND DISPOSABLE LAND OF THE PUBLIC DOMAIN.
II
WHETHER OR NOT THE CLAIM OF PRESCRIPTION BY THE
APPLICANT WILL LIE ON LOT NO. 2372.
III
WHETHER OR NOT THE DECISION OF THE COURT OF APPEALS
IN CAD. CASE NO. 23, ENTITLED LODOVICO VALIAO, ET, AL.,
VS. MACARIO ZAFRA, ET, AL., AC G.R. NO. CV-68873,
CONSTITUTES RES JUDICATA AS FAR AS THIS APPLICATION
FOR REGISTRATION IS CONCERNED.
IV
WHETHER OR NOT THE ALLEGED POSSESSION OF THE
APPLICANTS THROUGH THEIR PREDECESSORS-IN-INTEREST IS
SUFFICIENT TO SUSTAIN THEIR CLAIM FOR PRESCRIPTION. [9]
Petitioners claim that Lot No. 2372 is an alienable and disposable portion
of the public domain. The possession of applicants' predecessors-in
interest since 1916 until 1966 had been open, continuous and
uninterrupted; thus, converting the said land into a private land. The
subject lot had already become private in character in view of the length
of time the applicants and their predecessors-in-interest had possessed
the subject lot, which entitles them to the confirmation of their title.
Petitioners further claim that prior dismissal in a cadastral proceeding
does not constitute res judicata in a subsequent application for
registration of a parcel of land.
In its Comment, the OSG submits that the issues to be resolved in the
present petition, i.e., whether Lot No. 2372 is alienable and disposable
land of the public domain and whether petitioners have the right to have
the said property registered in their name through prescription of time are
questions of fact, which were already passed upon by the CA and no
longer reviewable by the Court, since findings of fact of the CA, when
supported by sufficient evidence, are conclusive and binding on the
parties. The OSG further claims that petitioners failed to prove that the
subject lot is part of the alienable and disposable portion of the public
barred by a prior decision in a cadastral case. Lastly, the OSG asserts that
petitioners did not present sufficient evidence to prove that their
possession over the subject lot applied for had been open, peaceful,
exclusive, continuous and adverse.
Anent the propriety of filing a petition for review under Rule 45 of the
Rules of Court, the principle is well-established that this Court is not a trier
of facts and that only questions of law may be raised. The resolution of
factual issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this
Court. This rule, however, is subject to certain exceptions. One of these is
when the findings of the appellate court are contrary to those of the trial
court.[10] Due to the divergence of the findings of the CA and the RTC, the
Court will now re-examine the facts and evidence adduced before the
lower courts.
Section 14 (1) of Presidential Decree No. (PD) 1529, otherwise known as
the Property Registration Decree provides:
SEC. 14. Who may apply. - The following persons may
file in the proper Court of First Instance 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-in-interest 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.

From the foregoing, petitioners need to prove that: (1) the land forms part
of the alienable and disposable land of the public domain; and (2) they, by
themselves or through their predecessors-in-interest, have been in open,
continuous, exclusive, and notorious possession and occupation of the
subject land under a bona fide claim of ownership from June 12, 1945 or
earlier.[11] These the petitioners must prove by no less than clear, positive
and convincing evidence.[12]
Under the Regalian doctrine, which is embodied in our Constitution, all
lands of the public domain belong to the State, which is the source of any
asserted right to any ownership of land. All lands not appearing to be
clearly within private ownership are presumed to belong to the State.
Accordingly, public lands not shown to have been reclassified or released
as alienable agricultural land or alienated to a private person by the State
remain part of the inalienable public domain. [13] Unless public land is
shown to have been reclassified as alienable or disposable to a private
person by the State, it remains part of the inalienable public domain.
Property of the public domain is beyond the commerce of man and not
susceptible of private appropriation and acquisitive prescription.
Occupation thereof in the concept of owner no matter how long cannot
ripen into ownership and be registered as a title. [14] 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 ordisposable.[15]
There must 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.[16]
No such evidence was offered by the petitioners to show that the land in
question has been classified as alienable and disposable land of the public
domain. In the absence of incontrovertible evidence to prove that the
subject property is already classified as alienable and disposable, we must
consider the same as still inalienable public domain. [17] Verily, the rules on
the confirmation of imperfect title do not apply unless and until the land
subject thereof is released in an official proclamation to that effect so that
it may form part of the disposable agricultural lands of the public domain.
With respect to the existence of a prior cadastral case, it appears
that on July 11, 1966, the petitioners filed in Cadastral Case No. 23 of the
then CFI of Negros Occidental a petition to reopen the proceedings
relative to three lots, one of which is Lot No. 2372.The lower court, in its
Order[18] dated October 20, 1980, held that Lot No. 2372 belongs to the
Republic. It found that after the subject lot was declared public land, it was
found to be inside the communal forest. On appeal, the CA, in its
Decision[19] dated August 7, 1984, found no reversible error and affirmed
the decision of the cadastral court. Thereafter, a petition elevating the
case to this Court was dismissed for lack of merit. [20] In the present case,
the CA, in its Decision dated June 23, 2005, ruled that such judgment
constitutes res judicata that will bar a subsequent action for land
registration on the same land.
In Director of Lands v. Court of Appeals,[21] the Court held that a judicial
declaration that a parcel of land is public, does not preclude even the
same applicant from subsequently seeking a judicial confirmation of his
title to the same land, provided he thereafter complies with the provisions
of Section 48[22] of Commonwealth Act No. 141, as amended, and as long
as said public lands remain alienable and disposable. In the case at bar,
not only did the petitioners fail to prove that the subject land is part of the
alienable and disposable portion of the public domain, they failed to
demonstrate that they by themselves or through their predecessors-in-
interest have possessed and occupied the subject land since June 12,
1945 or earlier as mandated by the law.
It is settled that the applicant must present proof of specific acts
of ownership to substantiate the claim and cannot just offer general
statements which are mere conclusions of law than factual evidence
of possession.23] Actual possession consists in the manifestation of acts of
dominion over it of such a nature as a party would actually exercise over
his own property.

The testimonies of Nemesio and Pacifico as to their own and their
predecessors-in-interest's possession and ownership over the subject lot
fail to convince Us. Petitioners claim that Basilio was in possession of the
land way back in 1916. Yet no tax declaration covering the subject
property, during the period Basilio allegedly occupied the subject
property, i.e., 1916 to 1947, was presented in evidence. Other than the
bare allegations of Nemesio and Pacifico that Basilio allegedly introduced
improvements on the subject property, there is nothing in the records
which would substantiate petitioners' claim that Basilio was in possession
of Lot No. 2372 since June 12, 1945 or earlier, the period of possession
required by law. Hence, petitioners' assertion that Basilio possessed the
property in question from 1916 to 1947 is, at best, conjectural and self-
serving.
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-
G.R. CV No. 54811, which reversed the Decision of the Regional Trial Court
of Kabankalan, Negros Occidental, Branch 61, in Land Registration Case
No. 03, is AFFIRMED. The application for registration of title filed by the
petitioners Pacifico Valiao, Lodovico Valiao, Ricardo Valiao, Bienvenido
Valiao, and Nemesio Grandea, over Lot No. 2372, with a total area
of 504,535 square meters, more or less, situated in Barrio Galicia,
Municipality of Ilog, Negros Occidental, is DENIED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

As regards petitioners' possession of the land in question from 1947 to

1966, petitioners could only support the same with a tax declaration dated
September 29, 1976. At best, petitioners can only prove possession since
said date. What is required is open, exclusive, continuous and notorious
possession by petitioners and their predecessors-in-interest, under a bona
fide claim of ownership, since June 12, 1945 or earlier.[25] Petitioners failed
to explain why, despite their claim that their predecessors-in-interest have
possessed the subject properties in the concept of an owner even before
June 12, 1945, it was only in 1976 that they started to declare the same
for purposes of taxation. Moreover, tax declarations and receipts are
not conclusive evidence of ownership or of the right to possess land when
not supported by any other evidence. The disputed property may have
been declared for taxation purposes in the names of the applicants for
registration, or of their predecessors-in-interest, but it does not
necessarily prove ownership. They are merely indicia of a claim
of ownership.[26]

Evidently, since the petitioners failed to prove that (1) the subject
property was classified as part of the disposable and alienable land of
the public domain; and (2) they and their predecessors-in-interest had
been in open, continuous, exclusive, and notorious possession and
occupation thereof under a bona fide claim of ownership since June 12, Republic of the Philippines
1945 or earlier, their application for confirmation and registration of the SUPREME COURT
subject property under PD 1529 should be denied. Manila

THIRD DIVISION
G.R. No. L-66575 May 24, 1988
ADRIANO MANECLANG, JULIETA, RAMONA, VICTOR, ANTONINA,
LOURDES, TEODORO and MYRNA, all surnamed
MANECLANG, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and ALFREDO MAZA,
CORLETO CASTRO, SALOME RODRIGUEZ, EDUCARDO CUISON,
FERNANDO ZARCILLA, MARIANO GABRIEL, NICOMEDES CORDERO,
CLETO PEDROZO, FELIX SALARY and JOSE PANLILIO, respondents.
Loreto Novisteros for petitioners.
Corleto R. Castro for respondents.
RESOLUTION
FERNAN, J.:
Petitioners Adriano Maneclang, et al. filed before the then Court of First
Instance of Pangasinan, Branch XI a complaint for quieting of title over a
certain fishpond located within the four [4] parcels of land belonging to
them situated in Barrio Salomague, Bugallon, Pangasinan, and the
annulment of Resolutions Nos. 38 and 95 of the Municipal Council of
Bugallon, Pangasinan. The trial court dismmissed the complaint in a
decision dated August 15, 1975 upon a finding that the body of water
traversing the titled properties of petitioners is a creek constituting a
tributary of the Agno River; therefore public in nature and not subject to
private appropriation. The lower court likewise held that Resolution No. 38,
ordering an ocular inspection of the Cayangan Creek situated between
Barrios Salomague Sur and Salomague Norte, and Resolution No. 95
authorizing public bidding for the lease of all municipal ferries and
fisheries, including the fishpond under consideration, were passed by
respondents herein as members of the Municipal Council of Bugallon,
Pangasinan in the exercise of their legislative powers.
Petitioners appealed said decision to the Intermediate Appellate Court,
which affirmed the same on April 29, 1983. Hence, this petition for review
on certiorari.
Acting on the petition, the Court required the respondents to comment
thereon. However, before respondents could do so, petitioners manifested
that for lack of interest on the part of respondent Alfredo Maza, the
awardee in the public bidding of the fishpond, the parties desire to
amicably settle the case by submitting to the Court a Compromise
Agreement praying that judgment be rendered recognizing the ownership
of petitioners over the land the body of water found within their titled
properties, stating therein, among other things, that "to pursue the case,
the same will not amount to any benefit of the parties, on the other hand
it is to the advantage and benefit of the municipality if the ownership of
the land and the water found therein belonging to petitioners be
recognized in their favor as it is now clear that after the National Irrigation
Administration [NIA] had built the dike around the land, no water gets in or
out of the land. 1
The stipulations contained in the Compromise Agreement partake of the
nature of an adjudication of ownership in favor of herein petitioners of the
fishpond in dispute, which, as clearly found by the lower and appellate
courts, was originally a creek forming a txibutary of the Agno River.
Considering that as held in the case of Mercado vs. Municipal President of
Macabebe, 59 Phil. 592 [1934], a creek, defined as a recess or arm
extending from a river and participating in the ebb and flow of the sea, is
a property belonging to the public domain which is not susceptible to
private appropriation and acquisitive prescription, and as a public water, it
cannot be registered under the Torrens System in the name of any
individual [Diego v. Court of Appeals, 102 Phil. 494; Mangaldan v.
Manaoag, 38 Phil. 455]; and considering further that neither the mere
construction of irrigation dikes by the National Irrigation Administration
which prevented the water from flowing in and out of the subject fishpond,
nor its conversion into a fishpond, alter or change the nature of the creek
as a property of the public domain, the Court finds the Compromise
Agreement null and void and of no legal effect, the same being contrary to
law and public policy.
The finding that the subject body of water is a creek belonging to the
public domain is a factual determination binding upon this Court. The
Municipality of Bugallon, acting thru its duly-constituted municipal council
is clothed with authority to pass, as it did the two resolutions dealing with
its municipal waters, and it cannot be said that petitioners were deprived
of their right to due process as mere publication of the notice of the public
bidding suffices as a constructive notice to the whole world.
IN VIEW OF THE FOREGOING, the Court Resolved to set aside the
Compromise Agreement and declare the same null and void for being
contrary to law and public policy. The Court further resolved to DISMISS
the instant petition for lack of merit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3279 March 11, 1908
THE CITY OF MANILA, petitioner-appellee, vs. THE INSULAR
GOVERNMENT, ET AL.,respondents-appellants.
Attorney-General Araneta for the Government.
Modesto Reyes for appellee.
JOHNSON, J. :
On the 11th day of November, 1904, the city of Manila, through its
attorney, filed a petition in the Court of Land Registration for the
registration of a certain parcel or tract of land described by metes and
bounds in the first paragraph of said petition as follows:
A parcel of land situated in Paco, a district of this city. It is bounded on the
north by properties belonging to Chas. M. Stone, Prudencio de Leon,
Asuncion Ventura, Petra Carnero y Garcia, Evaristo Roxas and brothers,
Silvestra Sarmiento, Evaristo Gonzalez y Valdes, Mariano Vergara,
Bernardo Yalon, Julio Gonzaga, Leoncia Maalac, Geronimo Morales,
Antonio Bautista, Doroteo Palacio, and Gualberta de los Reyes; on the
south and on the east by property owned by Miguel Fabie and brothers,
and on the west by properties belonging to Gualberta de los Reyes and
Toribia Cruz. Beginning at the intersection of the northern line of Calle Real
and the eastern line of Calle Peafrancia (new street lines), approved on
21st December, 1903, and 17th February, 1904, respectively, by the
Municipal Board, thence S. 4 degrees and 8 minutes E., 157.09 meters to
the point marked "0;) thence N., 79 degrees 37 minutes W., 1830 meters
along the southern boundary of the property owned by Evaristo Gonzalez
Valdes and Mariano Vergara to point No. 1; thence N. 11 degrees 25
minutes E., 6.20 meters along the western boundary of the property
belonging to Mariano Vergara to point No. 2; thence N. 86 degrees 38
minutes W., 29.60 meters along the southern boundary of the property
owned by Mariano Vergara to point No. 3; thence N. 4 degrees 14 minutes
E., 22.49 meters along the western boundary of the property of Mariano
Vergara, to point No. 4; thence No. 11 degrees 42 minutes W., 5.71 meters
along the western boundary of the property belonging to Bernardo Yalon
to point No. 5; thence s. 89 degrees 50 minutes W., 78.00 meters to a
stone monument along the southern boundary of the property owned by
Julio Gonzaga, Leoncia Maalac, Geronimo Morales, to point No. 6; thence
N. 89 degrees 22 minutes W., 24.17 meters along the southern boundary
of the property belonging to Antonio Bautista, to point No. 7; thence S. 55
degrees 56 minutes W., 16.81 meters along the southeastern boundary of
the property owned by Doroteo Palacio to point No. 8; thence N. 86
degrees 49 minutes W., 25.50 meters along the southern boundary of the
properties owned by Doroteo Palacio and Gualberta de los Reyes to point
No. 9; thence S. 15 degrees 30 minutes W., 16.47 meters to a stone
monument, along the eastern boundary of the property owned by
Gualberta de los Reyes and Toribia Cruz to point No. 10; thence S. 7
degrees 35 minutes W., 14.16 meters along the eastern boundary of the
property owned by Toribia Cruz to point No. 11; thence S. 75 degrees 39
minutes E., 14.37 meters along the northern boundary of the property of
Miguel Fabie and brothers to point No. 12; thence N. 88 degrees 3 minutes
E., 45.35 meters along the northern boundary of the property belonging to
Miguel Fabie and brothers to point No. 13; thence S. 89 degrees 11
minutes E., 70.15 meters to a stone monument to Miguel Fabie and
brothers to point No. 14; thence S. 86 degrees 33 minutes E., 85.07
meters to a stone monument along the northern boundary of the property
of Miguel Fabie and brothers to point No. 15; thence N. 83 degrees 8
minutes E., 14.49 meters along the northern boundary of the property
owned by Miguel Fabie and brothers to point no. 16; thence N. 47 degrees
E., 158.35 meters along the northwestern boundary of Miguel Fabie and
brothers to point No. 17; thence N. 70 degrees 22 minutes W., 40.74
meters along the southern boundary of the properties owned by Charles
M. Stone, Prudencio de Leon, and Asuncion Ventura (Looban) to point No.
18; thence N. 83 degrees 22 minutes W., 7.38 meters along a stone fence
and the southern boundary of the properties belonging to Asuncion
Ventura (Looban) and Petra Garcia to point No. 19; thence S. 30 degrees
34 minutes W., 21.12 meters along a stone fence and the western
boundary of the property owned by Petra Carnero y Garcia to point No. 20;
thence S. 74 degrees 58 minutes W., 8.70 meters along the northern
boundary of the property of Evaristo Roxas and brothers to point No. 21;
thence s. 22 degrees 4 minutes W., 34.75 meters along the eastern
boundary of the property owned by Evaristo Roxas and brothers to point
22; thence N. 68 degrees 47 minutes W., 26.40 meters along the southern
boundary of the property belonging to Evaristo Roxas and brothers to
point No. 23; thence S. 68 degrees 47 minutes W., 85.61 meters along the
eastern boundary of the properties owned by Silvestra Sarmiento and
Evaristo Gonzalez y Valdes to point No. 24; thence N. 84 degrees 58
minutes W., 12.85 meters to a stone monument along the southern
boundary of the property owned by Evaristo Gonzalez Valdes to point No.
25; thence N. 79 degrees 37 minutes W., 11.10 meters along the southern
boundary of the property owned by Evaristo Gonzalez Valdes to point No.
0, the point of the beginning. Containing 10,472.23 square meters of
extension. Bearings magnetic.
The said city alleged that it was the absolute owner of the said land; that
said land was assessed by the city of Manila in the sum of $1,780, United
States currency; that there existed no liens of whatever character against
said land; that the land was unoccupied; that the said city obtained title to
the said land by reason of being the successor to all the rights and actions
of the old city of Manila ( ayuntamiento de Manila), to which said property
formerly belonged.
To this petition of the petitioner, the Insular Government presented the
following opposition to the registration of said land:
The Solicitor-General, representing the Insular Government, appears
before the court, and states:
I. That the city of Manila, represented by its attorney, Modesto Reyes,
requests that, in compliance with the Land Registration Act, a parcel of
land situated in Paco, a district of this city, of which it claims to be the
absolute owner, and the description of which is specified in the petition be
inscribed in its name.
II. That the land in question is the property of the Government of the
United States under the control of the Insular Government.
III. That by virtue thereof, the Solicitor-General opposes the inscription
asked for, and requests the court to deny the petition with the costs.
To this petition of the petitioner one Geronimo Morales also presented the
following opposition to the registration of a portion of the land described
in the second paragraph of said petition:
Now comes the undersigned before this court and says:
1. That the city of Manila, by its attorney, Modesto Reyes, has, in
conformity with the provisions of the Land Registration Act, applied for the
registration of a certain parcel of land located in the district of Paco, of this
city, of which it alleges sole and absolute ownership, and the description
of which is included in the application.
2. That the plan and description of the said land as they appear in the
petition are incorrect, for there is included in the same a part of a building
lot belonging to the undersigned, and situated in the barrio of Rosario of
said district, with an area of 84 meters more or less, as will be seen in the
plan to be filed later.
3. Therefore, the undersigned files his opposition to the registration
applied for, as far as it has any bearing on the building lot of the
undersigned which is included in the plan and description of the applicant,
and this honorable court is requested to deny the application as far as it
relates to the said building lot, with the costs against the petitioner.
After the presentation of the petition on the part of the said petitioner, one
of the examiners of titles of the Court of Land Registration made an
examination of the title claimed by the petitioner and made the following
report to the judge of the said court of Land Registration.
The examiner of titles of this judicial district, after going over the papers
in the case of the city, represented by its attorney, Modesto Reyes, states
that:
1. The application filed by the city of Manila, is not accompanied by any
document relative to its alleged ownership, but sets forth that said city, as
the successor in rights and interest of the former ayuntamiento de Manila,
is the owner of the land described in the petition above referred to.
2. In the office of the register of deeds there is no record of any act or
contract opposing the claim of the applicant; nor does there appear, from
the investigations held, any fact contrary to those quoted in the
application. The present limits of the land in question may be held as
correct.
3. The city of Manila, in order to acquire title to the land above mentioned,
must show the ownership which the former ayuntamiento had over said
land.
OPINION.
Based on the above report, the undersigned is of the opinion that the title
of the city of Manila, represented by its attorney, Modesto Reyes, is
defective and can not be registered.
Manila, December 7, 1904.
AGUEDO VELARDE.
On the 14th of March, 1905, the cause was duly brought on for trial and
during the trial of said cause the petitioner attempted to establish by
proof the following facts
First. That said land formerly belonged to the old city of Manila
( ayuntamiento de Manila) under the sovereignty of Spain.
Second. That the present city of Manila is at present the owner of said
land by virtue of being the successor of the old city of Manila.
Third. That the old city of Manila from the year 1894 until the change of
sovereignty in the Philippine Archipelago had rented said land, had
received rents therefor, and in a general way had administered the same.
The respondent, the Central Government of the Philippine Islands,
presented no proof whatever in opposition to the claim of the petitioner,
relying the fact that the petitioner was not entitled to have said land
registered, for the following reasons:
First. That the land in question was public land, belonging to the Central
Government; that the same had never been granted to any person or
corporation or municipality by the Spanish Government.
Second. That the city of Manila, neither the present nor the old city, was
the owner of said land.
On the 15th day of February, 1906, the judge of the said court filed his
decision by which he denied the registration of the land claimed by the
said Geronimo Morales and granted the registration of the rest of said
described property in favor of the said city. Against this order allowing the
registration of said tract of land the respondent duly excepted and gave
notice of his intention to appeal.
The Attorney-General, representing the respondent in this court, made the
following assignment of error:
There is nothing in the record which justifies the conclusion of the
judgment of the court below, to the effect that the land in question is
owned by the city of Manila.
The only proof presented during the trial by the petitioner which tended in
any way to support its claim was that in the year 1894 and thereafter the
old city of Manila (ayuntamiento de Manila) rented said land and received
the rent therefor, and that the present city of Manila succeeded to the
rights of said old city. No proof was offered by the plaintiff, documentary
or other, to show in any way by what right said old city exercised this right
of control over said property.
We are of the opinion, and so hold, that the mere renting of property and
receiving the rent therefor can not, of themselves, in the absence of other
proof, support a claim of ownership of such property.
It has been argued that every pueblo organized by the Spanish
Government in its insular possessions has had granted to it, as a matter of
course, certain lands for public purposes, such as public commons,
pasture lands, etc. Our attention has not been called to any law or royal
decree in which this contention is supported and we have searched in vain
to find such a provision. Upon the contrary we have found a royal decree
of the - day of - showing that the people of the pueblo of Dilao (now the
barrio of Paco in which this very land is located) had petitioned for a grant
of a comunal, etc., and which was denied.
One of the earliest provisions of law relating to the rights of pueblos in the
insular possessions of the Spanish Government is that de las reducciones,
y pueblos de indios(settlements and pueblos of natives) of December 1,
1573, as amended by that of the 10th of October, 1618, found in Law VIII,
Title III of Book VI of the Recopilacion de las Leyes de Indias, and which it
as follows:
The sites whereon the pueblos and settlements are to be built must have
water facilities, lands, forests, entrances and exits, lands for cultivation,
and an exido(common, public land) one league long, wherein the natives
may keep their cattle, without mingling them with those owned by
Spaniards.
This provision of law seems to have been amplified in article 53 of the
Ordinances of Good Government, dated February 26, 1768, and extended
to the pueblos of the Philippine Islands by proclamation on the 11th day of
September, 1801. This article clearly indicates that these lands should be
designated by the Spanish Government for the use and benefitde las
reducciones, y pueblos de los indios. Said article 53 is in part as follows:
It is held to be comunal (common public) the territory of the settlements
and pueblos inhabited by natives, to which, from the time of their
foundation or organization, the necessary lands were alloted in conformity
with Law VII, Title III, Book VI of the Recopilacion de las Leyes de Indias,
etc.
This article 53 clearly indicates the following:
First. That the King continued to be the absolute owner of said lands;
Second. That the pueblos were only given the mere usufruct of the same;
Third. That the King might at any time annul such grant; and
Fourth. That a designation, of the particular land so granted, was a
necessary prerequisite for the holding of the same for the purposes
indicated, by the said pueblo. (See Autos Acordados, Vol. I, pp. 29, 48.)
As a further confirmation of the fact that the pueblos of the Philippine
Islands did not have, as a matter of right, a comunal, etc., unless the
same had been expressly granted, we find the following provision in the
royal decree of February 28, 1883, which is as follows:
On the recommendation of the minister for the colonies, and in conformity
with the opinion submitted by the council of the state, sitting in banc, I
hereby decree the following:
ARTICLE 1. The legua comunal for the Philippine Islands, under the
provisions of Law VIII, Title III, Book VI, of the Recopilacion de Indias, as far
as the pueblos already established and those which may be established
thereafter are concerned, shall be of an area of 20,000 feet, equivalent to
a league of 20 degrees, without regard to the geometrical figure resulting
from the topography of the locality, or to conditions relating to property
rights over the land itself or over land adjoining the same.
ART. 2. The pueblos not having said land alloted to them may apply and
obtain the same by means of the corresponding proceedings.
ART. 3. When the conditions so require, the pueblos may institute
proceedings to obtain an extension of said comunal land, in order that the
latter may be in keeping with the number of inhabitants, the number of
heads of each pueblo. Given at the palace, on February 28, 1883.
Following this royal decree we have the superior decreto of the 1st of
August, 1883, relating to the legua comunal, with the following provisions:
Legua comunal. - In order to comply with and carry out the provisions of
the royal decree of February 28 of the current year, published in
the Gaceta de Manila on June 28 last, and relating to the legua comunal,
on the recommendation of the direccion general de administracion civil, I
hereby order that the following regulations be observed:
1. The provincial chiefs shall take special care to inform
the gobernadorcillos of the towns under their control of the decree
relating to the legua comunal, making them understand that the
superficial extension to be occupied by the same is that corresponding to
a square, the sides of which measure 20,000 feet, equivalent to a square
league, ( de veinte al drado), and that the land should be uncultivated or
untilled.
2. The towns not having said portion of land assigned may apply for the
same to this central government through the chief of the province or
district, inclosing with the petition a report of the principalia, stating the
said circumstance and as many particulars as may exist in their archives
regarding the matter.
3. The said documents shall be forwarded to the direccion general de
administracion civil, through the provincial chief, and the said office, upon
the information from the bureau of forestry, shall recommend to me what
it may deem proper.
4. After the " legua comunal" has been granted by this Government, the
bureau of forestry shall proceed to the setting up of the boundary marks
of the same, executing a certificate of the land, which, after being signed
by the officer conducting the proceedings and by the principalia of the
town, will be submitted for my approval through the direccion general de
administracion civil.
5. For the legua comunal uncultivated land will be selected, whenever
possible, which may be in proper condition for the pasture of cattle and
cultivation of building timber and the necessary industries to meet the
requirements of the inhabitants.
6. In order to increase the said communal land, when the requirements of
the towns may demand, it will be necessary to institute new proceedings,
which will be annexed to a statement signed by the principalia, showing
the number of the inhabitants of the town, the kind and number of the
extension of the lands which, bearing in mind the local conditions, they
may deem necessary to meet the requirements of the former and
nourishment for the latter.
7. These statements will be forwarded to the direccion general by the
chief of the province, together with his opinion, in which he will state
whether or not he considers the petition to be unreasonable.
8. The offices under the department of finance will furnish the direccion
general de administracion with the necessary documents for verifying the
truth of the declarations made by the principalias of the towns, regarding
the number of the inhabitants and heads of cattle.
9. The direccion general de administracion civil, with the report of the
bureau of forestry and, should it be deemed necessary, of the board of
agriculture, shall recommend to me the extension to be finally marked for
the legua comunal.
10. After the area of the land has been determined by this general
government, the bureau of forestry shall proceed with the appointment
and the setting of marks of the new communal land, a certificate being
executed in the same form as previously stated.
11. The expenses arising from the proceedings, as well as those arising
from the setting up of boundary marks of the legua comunal and its final
establishment, must be paid by the town to which the concession has
been granted. (Gazette No. 42, August 11.)
By the royal decree of the 23rd of December, 1870, it was made
necessary by monuments or otherwise to mark the division lines of the
different pueblos of the Philippine Islands. (Gaceta de Madrid, February
24.)
By the royal order of the 17th of January, 1885, it was provided that, when
a pueblo should show to the Government of the Philippine Islands that
its legua comunal was insufficient, it might, upon petition, have such lines
increased. ( Gaceta de Madrid, March 15, 1885.)
The royal decree of the 19th of May, 1893, relating to the municipal
government ( Gaceta de Madrid, May 22, 1893) contains no provisions
with reference to the granting to pueblos of the legua comunal, etc.
The question of the right of pueblos in the insular possessions of the
Spanish Government to public lands has come before the Supreme Court
of the United States several times in its relation to pueblos in the territory
acquired by the United States from the King of Spain.
In the case of Grisar vs. McDowell (6 Wallace, 363, 373) Justice Field in
discussing this question said:
These laws provided for the assignment to the pueblos, for their use and
the use of their inhabitants, of land not exceeding in extent 4 square
leagues. Such assignment was to be made by the public authorities of the
Government upon the original establishment of the pueblo, or afterwards
upon the petition of its officers or inhabitants; and the land to be
measured off in a square or prolonged form, according to the nature and
condition of the country. All lands within the general limits stated, which
had previously become private property or were required for public
purposes, were reserved and accepted from the assignment.
 Until the lands were thus definitely assigned and measured off, the right
or claim of the pueblo was an imperfect one. It was a right which the
Government might refuse to recognize at all, or might recognize in a
qualified form; it might be burdened with conditions, and it might be
restricted to less limits than the 4 square leagues, which was the usual
quantity assigned.
In the case of United States vs. Santa Fe (165 U. S., 707), in which this
same question was involved, Justice White of the Supreme Court of the
United States said:
It cannot be doubted that under the law of Spain it was necessary that the
proper authorities should particularly designate the land to be acquired by
towns or pueblos before a vested right or title to the use thereof could
arise.
Elizondo, in his work entitled Practica Universal Forense (vol. 5, p. 226),
makes the following statement relating to the question presented here:
There is nothing whatever designated by law as belonging to towns, other
than that which by royal privilege, custom, or contract between man and
man is granted to them, so that although there be assigned to the towns
at the time of their constitution territorio or pertinencias, which may be
common to all the residents, without each one having the right to use
them separately, it is a prerogative reserved to the sovereigns to divided
the terminos of the provinces and towns, assigning to these the use and
enjoyment, but the domain remaining in the sovereigns themselves.
Chief Justice Fuller, speaking for the court in the case of United States vs.
Sandoval and in the case of Morton vs. United States (167 U.S., 278, 297),
said:
"Under the laws of the Indies, lands not actually allotted to setters
remained the property of the King, to be disposed of by him or by those on
whom he might confer that power. As Mr. Hall says (Chap. VII, 122):
"The fee of the lands embraced within the limits of pueblos continued to
remain in the sovereign, and never in the pueblo as a corporate body."
The petitioner herein not having presented proof showing that the land in
question had been granted to it by the former sovereign in these Islands,
and not having shown that it was entitled to said lands by virtue of some
law of the present sovereign of these Islands, the Court of Land
Registration was not empowered to grant the registration of said lands in
favor of said petitioner. The judgment, therefore, of the lower court is
hereby reversed. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15829 December 4, 1967
ROMAN R. SANTOS, petitioner-appellee,
vs.
HON. FLORENCIO MORENO, as Secretary of Public Works and
Communications and JULIAN C. CARGULLO, respondents-appellants.
Gil R. Carlos and Associates for petitioner-appellee.
Office of the Solicitor General for respondents-appellants.
BENGZON, J.P., J.:
THE APPEAL
The Honorable Secretary of Public Works & Communications appeals from
the decision of the Court of First Instance of Manila declaring of private
ownership certain creeks situated in barrio San Esteban, Macabebe,
Pampanga.
THE BACKGROUND
The Zobel family of Spain formerly owned vast track of marshland in the
municipality of Macabebe, Pampanga province. Called Hacienda San
Esteban, it was administered and managed by the Ayala y Cia. From the
year 1860 to about the year 1924 Ayala y Cia., devoted the hacienda to
the planting and cultivation of nipa palms from which it gathered nipa sap
or "tuba." It operated a distillery plant in barrio San Esteban to turn nipa
tuba into potable alcohol which was in turn manufactured into liquor.
Accessibility through the nipa palms deep into the hacienda posed as a
problem. Ayala y Cia., therefore dug canals leading towards the hacienda's
interior where most of them interlinked with each other. The canals
facilitated the gathering of tuba and the guarding and patrolling of the
hacienda by security guards called "arundines." By the gradual process of
erosion these canals acquired the characteristics and dimensions of rivers.
In 1924 Ayala y Cia shifted from the business of alcohol production to
bangus culture. It converted Hacienda San Esteban from a forest of nipa
groves to a web of fishponds. To do so, it cut down the nipa palm,
constructed dikes and closed the canals criss-crossing the hacienda.
Sometime in 1925 or 1926 Ayala y Cia., sold a portion of Hacienda San
Esteban to Roman Santos who also transformed the swamp land into a
fishpond. In so doing, he closed and built dikes across Sapang Malauling
Maragul, Quiorang Silab, Pepangebunan, Bulacus, Nigui and Nasi.
The closing of the man-made canals in Hacienda San Esteban drew
complaints from residents of the surrounding communities. Claiming that
the closing of the canals caused floods during the rainy season, and that it
deprived them of their means of transportation and fishing grounds, said
residents demanded re-opening of those canals. Subsequently, Mayor
Lazaro Yambao of Macabebe, accompanied by policemen and some
residents went to Hacienda San Esteban and opened the closure dikes at
Sapang Malauling Maragul Nigui and Quiorang Silab. Whereupon, Roman
Santos filed Civil Case No. 4488 in the Court of First Instance of Pampanga
which preliminarily enjoined Mayor Yambao and others from demolishing
the dikes across the canals. The municipal officials of Macabebe countered
by filing a complaint (docketed as Civil Case No. 4527) in the same court.
The Pampanga Court of First Instance rendered judgment in both cases
against Roman Santos who immediately elevated the case to the Supreme
Court.
In the meantime, the Secretary of Commerce and
Communications1 conducted his own investigation and found that the
aforementioned six streams closed by Roman Santos were natural,
floatable and navigable and were utilized by the public for transportation
since time immemorial. He consequently ordered Roman Santos on
November 3, 1930 to demolish the dikes across said six streams.
However, on May 8, 1931 the said official revoked his decision of
November 3, 1930 and declared the streams in question privately owned
because they were artificially constructed. Subsequently, upon authority
granted under Act 3982 the Secretary of Commerce and Communications
entered into a contract with Roman Santos whereby the former recognized
the private ownership of Sapang Malauling Maragul, Quiorang Silab,
Pepangebunan, Bulacus, Nigui and Nasi and the latter turned over for
public use two artificial canals and bound himself to maintain them in
navigable state. The Provincial Board of Pampanga and the municipal
councils of Macabebe and Masantol objected to the contract. However, the
Secretary of Justice, in his opinion dated March 6, 1934, upheld its legality.
Roman Santos withdraw his appeals in the Supreme Court.
With respect to the portion of Hacienda San Esteban still owned by the
Zobel family, the municipal authorities of Macabebe filed in 1930 an
administrative complaint, in the Bureau of Public Works praying for the
opening of the dikes and dams across certain streams in Hacienda San
Esteban. Whereupon, the district engineer of Pampanga and a
representative of the Bureau of Public Works conducted investigations. In
the meantime, the Attorney General, upon a query from the Secretary of
Commerce and Communications, rendered an opinion dated October 11,
1930 sustaining the latter's power to declare streams as publicly owned
under Sec. 4 of Act 2152, as amended by Act 3208.
On September 29, 1930 the investigator of the Bureau of Public Works,
Eliseo Panopio, submitted his report recommending the removal of the
dikes and dams in question. And on the basis of said report, the Secretary
of Commerce and Communications rendered his decision on November 3,
1930 ordering Ayala y Cia., to demolish the dikes and dams across the
streams named therein situated in Hacienda San Esteban. Ayala y Cia.,
moved for reconsideration, questioning the power of the Secretary of
Commerce and Communications to order the demolition of said dikes.
Days before the Secretary of Commerce and Communications rendered
his aforementioned decision, Ayala y Cia., thru counsel, made
representations with the Director of Public Works for a compromise
agreement. In its letter dated October 11, 1930, Ayala y Cia., offered to
admit public ownership of the following creeks:
Antipolo, Batasan Teracan, Biuas or Batasan, Capiz, Carbon, Cutut,
Dalayap, Enrique, Iba, Inaun, Margarita, Malauli or Budbud,
Matalaba Palapat, Palipit Maisao, Panlovenas, Panquitan, Quinapati,
Quiorang, Bubong or Malauli Malati, Salop, Sinubli and Vitas.
provided the rest of the streams were declared private. Acting on said
offer, the Director of Public Works instructed the surveyor in his office,
Eliseo Panopio, to proceed to Pampanga and conduct another
investigation.
On January 23, 1931 Panopio submitted his report to the Director of Public
Works recommending that some streams enumerated therein be declared
public and some private on the ground that they were originally dug by
the hacienda owners. The private streams were:
Agape, Atlong, Cruz, Balanga, Batasan, Batasan Matlaue, Balibago,
Baliti, Bato, Buengco Malati, Bungalin, Bungo Malati, Bungo
Maragui, Buta-buta, Camastiles, Catlu, Cauayan or Biabas, Cela,
Dampalit, Danlimpu, Dilinquente, Fabian, Laguzan, Lalap Maburac,
Mabutol, Macabacle, Maragul or Macanduli, Macabacle or Mababo,
Maisac, Malande, Malati, Magasawa, Maniup, Manulit, Mapanlao,
Maisac, Maragul Mariablus Malate, Masamaral, Mitulid, Nasi, Nigui
or Bulacus, Palipit, Maragul, Pangebonan, Paumbong, Pasco or
Culali, Pilapil, Pinac Malati, Pinac, Maragul or Macabacle, Quiorang
Silab or Malauli Maragul, Raymundo, Salamin, Salop Maisac, Salop
Maragul, Sermon and Sinca or Mabulog.
He therefore recommended revocation of the decision already mentioned
above, dated November 3, 1930 of the Secretary of Commerce and
Communications ordering the demolition of the dikes closing Malauling
Maragul, Quiorang, Silab, Pepangebonan, Nigui, Bulacus, Nasi, and Pinac.
On February 13, 1931 the Director of Public Works concurred in Panopio's
report and forwarded the same the Secretary of Commerce and
Communications.
On February 25, 1935 the municipality of Macabebe and the Zobel family
executed an agreement whereby they recognized the nature of the
streams mentioned in Panopio's report as public or private, depending on
the findings in said report. This agreement was approved by the Secretary
of Public Works and Communications on February 27, 1935 and confirmed
the next day by the municipal council of Macabebe under Resolution No.
36.
A few months later, that is, on June 12, 1935, the then Secretary of Justice
issued an opinion holding that the contract executed by the Zobel family
and the municipality of Macabebe has no validity for two reasons, namely,
(1) the streams although originally dug by Ayala y Cia., lost their private
nature by prescription inasmuch as the public was allowed to use them for
navigation and fishing, citing Mercado vs. Municipality of Macabebe, 59
Phil. 592; and (2) at the time the Secretary of Commerce and
Communications approved the said contract, he had no more power so to
do, because such power under Sec. 2 of Act 2152 was revoked by the
amending Act 4175 which took effect on December 7, 1934.
Despite the above ruling of the Secretary of Justice, the streams in
question remained closed.
In 1939 administrative investigations were again conducted by various
agencies of the Executive branch of our government culminating in an
order of President Manuel Quezon immediately before the national
elections in 1941 requiring the opening of Sapang Macanduling, Maragul
Macabacle, Balbaro and Cansusu. Said streams were again closed in 1942
allegedly upon order of President Quezon.
THE CASE
Roman Santos acquired in 1940 from the Zobel family a larger portion of
Hacienda San Esteban wherein are located 25 streams which were closed
by Ayala y Cia., and are now the subject matter in the instant controversy.
Eighteen years later, that is in 1958, Congress enacted Republic Act No.
20562 following a congressional inquiry which was kindled by a speech
delivered by Senator Rogelio de la Rosa in the Senate. On August 15, 1958
Senator de la Rosa requested in writing the Secretary of Public Works and
communications to proceed in pursuance of Republic Act No. 2056 against
fishpond owners in the province of Pampanga who have closed rivers and
appropriated them as fishponds without color of title. On the same day,
Benigno Musni and other residents in the vicinity of Hacienda San Esteban
petitioned the Secretary of Public Works and Communications to open the
following streams:
Balbaro, Batasan Matua, Bunga, Cansusu, Macabacle, Macanduling,
Maragul, Mariablus, Malate, Matalabang, Maisac, Nigui, Quiorang
Silab, Sapang Maragul and Sepung Bato.
Thereupon, the Secretary of Public Works and Communications instructed
Julian C. Cargullo to conduct an investigation on the above named
streams.
On October 20, 1958 Musni and his co-petitioners amended their petition
to include other streams. The amended petition therefore covered the
following streams:
Balbaro, Balili, Banawa, Batasan Matua Bato, Bengco, Bunga, Buta-
buta, Camastiles, Cansusu, Cela, Don Timpo, Mabalanga, Mabutol,
Macabacle, Macabacle qng. Iba, Macanduling, Maragul, Malauli,
Magasawa, Mariablus Malate Masamaral, Matalabang Maisa,
Mariablus,3 Nigui, Pita, Quiorang, Silab, Sapang Maragul, Sepung
Bato, Sinag and Tumbong.
On March 2, 4, 10, 30 and 31, and April 1, 1959, the Secretary of Public
Works and Communications rendered his decisions ordering the opening
and restoration of the channel of all the streams in controversy except
Sapang Malauling, Maragul, Quiorang, Silab, Nigui Pepangebonan, Nasi
and Bulacus, within 30 days on the ground that said streams belong to the
public domain.
On April 29, 1959, that is, after receipt of the Secretary's decision dated
March 4, 1959, Roman Santos filed a motion with the Court of First
Instance of Man for junction against the Secretary of Public Works and
Communications and Julian C. Cargullo. As prayed for preliminary
injunction was granted on May 8, 1959. The Secretary of Public Work and
Communications answered and alleged as defense that venue was
improperly laid; that Roman Santos failed to exhaust administrative
remedies; that the contract between Ayala y Cia., and the Municipality of
Macabebe is null and void; and, that Section 39 of Act 496 excludes public
streams from the operation of the Torrens System.
On April 29 and June 12, 1969, Roman Santos received the decision of the
Secretary of Public Works and Communications dated March 10 and March
30, March 31, and April 1, 1959. Consequently, on June 24, 1959 he asked
the court to cite in contempt Secretary Florendo Moreno, Undersecretary
M.D. Bautista and Julian Cargullo for issuing and serving upon him the said
decisions despite the existence of the preliminary injunction. The Solicitor
General opposed the motion alleging that the decisions in question had
long been issued when the petition for injunction was filed, that they were
received after preliminary injunction issued because they were
transmitted through the District Engineer of Pampanga to Roman Santos;
that their issuance was for Roman Santos' information and guidance; and,
that the motion did not allege that respondents took steps to enforce the
decision. Acting upon said motion, on July 17, 1959, the trial court
considered unsatisfactory the explanation of the Solicitor General but
ruled that Secretary Florencio Moreno, Undersecretary M.D. Bautista and
Julian Cargullo acted in good faith. Hence, they were merely "admonished
to desist from any and further action in this case, observe the preliminary
injunction issued by this Court, with the stern warning, however, that a
repetition of the acts complained of shall be dealt with severely."
On July 18, 1959 the trial court declared all the streams under litigation
private, and rendered the following judgment:
The Writ of preliminary injunction restraining the respondent
Secretary of Public Works & Communications from enforcing the
decisions of March 2 And 4, 1959 and all other similar decisions is
hereby made permanent.
The Secretary of Public Works and Communication and Julian Cargullo
appealed to this Court from the order of July 17, 1959 issued in connection
with Roman Santos' motion for contempt and from the decision of the
lower court on the merits of the case.
ISSUES
The issues are: (1) Did Roman Santos exhaust administrative remedies?
(2) Was venue properly laid? (3) Did the lower court err in conducting a
trial de novo of the case and in admitting evidence not presented during
the administrative proceeding? (4) Do the streams involved in this case
belong to the public domain or to the owner of Hacienda San Esteban
according to law and the evidence submitted to the Department of Public
Works and Communications?
DISCUSSION OF THE ISSUES
1. Respondents maintain that Roman Santos resorted to the courts
without first exhausting administrative remedies available to him, namely,
(a) motion for reconsideration of the decisions of the Secretary of Public
Works and Communications; and, (b) appeal to the President of the
Philippines.
Whether a litigant, in exhausting available administrative remedies, need
move for the reconsideration of an administrative decision before he can
turn to the courts for relief, would largely depend upon the pertinent
law,4the rules of procedure and the usual practice followed in a particular
office.5
Republic Act No. 2056 does not require the filing of a motion for
reconsideration as a condition precedent to judicial relief. From the context
of the law, the intention of the legislators to forego a motion for
reconsideration manifests itself clearly.1awphil.net Republic Act No. 2056
underscores the urgency and summary nature of the proceedings
authorized thereunder. Thus in Section 2 thereof the Secretary of Public
Works and Communications under pain of criminal liability is duty bound
to terminate the proceedings and render his decision within a period not
exceeding 90 days from the filing of the complaint. Under the same
section, the party respondent concerned is given not than 30 days within
which to comply with the decision of the Secretary of Public Works and
Communications, otherwise the removal of the dams would be done by
the Government at the expense of said party. Congress has precisely
provided for a speedy and a most expeditious proceeding for the removal
of illegal obstructions to rivers and on the basis of such a provision it
would be preposterous to conclude that it had in mind to require a party to
file a motion for reconsideration an additional proceeding which would
certainly lengthen the time towards the final settlement of existing
controversies. The logical conclusion is that Congress intended the
decision of the Secretary of Public Works and Communications to be final
and executory subject to a timely review by the courts without going
through formal and time consuming preliminaries.
Moreover, the issues raised during the administrative proceedings of this
case are the same ones submitted to court for resolution. No new matter
was introduced during the proceeding in the court below which the
Secretary of Public Works and Communications had no opportunity to
correct under his authority.
Furthermore, Roman Santos assailed the constitutionality of Republic Act
No. 2056 and the jurisdiction of the Secretary of Public Works and
Communications to order the demolition of dams across rivers or streams.
Those questions are not within the competence of said Secretary to decide
upon a motion for reconsideration.itc-alf They are purely legal questions,
not administrative in nature, and should properly be aired before a
competent court as was rightly done by petitioner Roman Santos .
At any rate, there is no showing in the records of this case that the
Secretary of Public Works and Communications adopted rule of procedure
in investigations authorized under Republic Act No. 2056 which require a
party litigant to file a motion for the reconsideration of the Secretary's
decision before he can appeal to the courts. Roman Santos however
stated in his brief that the practice is not to entertain motions for
reconsideration for the reason that Republic Act No. 2056 does not
expressly or impliedly allow the Secretary to grant the same. Roman
Santos' statement is supported by Opinion No. 61, Series of 1959, dated
April 14, 1959 of the Secretary of Justice.
As to the failure of Roman Santos to appeal from the decision of the
Secretary of Public Works and Communications to the President of the
Philippines, suffice it to state that such appeal could be dispensed with
because said Secretary is the alter ego of the President.itc-alf The actions
of the former are presumed to have the implied sanction of the latter. 6
2. It is contended that if this case were considered as an ordinary civil
action, venue was improperly laid when the same was instituted in the
Court of First Instance of Manila for the reason that the case affects the
title of a real property. In fine, the proposition is that since the controversy
dwells on the ownership of or title to the streams located in Hacienda San
Esteban, the case is real action which, pursuant to Sec. 3 of Rule 5 of the
Rules of Court should have been filed in the Court of First Instance of
Pampanga.
The mere fact that the resolution of the controversy in this case would
wholly rest on the ownership of the streams involved herein would not
necessarily classify it as a real action. The purpose of this suit is to review
the decision of the Secretary of Public Works and Communications to
enjoin him from enforcing them and to prevent him from making and
issuing similar decisions concerning the stream in Hacienda San Esteban.
The acts of the Secretary of Public Works and Communications are the
object of the litigation, that is, petitioner Roman Santos seeks to control
them, hence, the suit ought to be filed in the Court of First Instance whose
territorial jurisdiction encompasses the place where the respondent
Secretary is found or is holding office. For the rule is that outside its
territorial limits, the court has no power to enforce its order. 7
Section 3 of Rule 5 of the Rules of Court does not apply to determine
venue of this action. Applicable is Sec. 1 the same rule, which states:
Sec. 1. General rule. Civil actions in Courts of First Instance may
be commenced and tried where the defendant any of the
defendants residents or may be found or where the plaintiff or any
of the plaintiffs resides, at the election of the plaintiff.
Accordingly, the Petition for injunction who correctly filed in the Court of
First Instance of Manila. Respondents Secretary of Public Works and
Communications and Julian Cargullo are found and hold office in the City
of Manila.
3. The lower court tried this case de novo. Against this procedure
respondents objected and maintained that the action, although captioned
as an injunction is really a petition for certiorari to review the decision of
the Secretary of Public Works and Communications. Therefore they now
contend that the court should have confined itself to reviewing the
decisions of the respondent Secretary of Public Works and
Communications only on the basis of the evidence presented in the
administrative proceedings. On the other hand, Roman Santos now,
submits that the action is a proceeding independent and distinct from the
administrative investigation; that, accordingly, the lower court correctly
acted in trying the case anew and rendering judgment upon evidence
adduced during the trial.
Whether the action instituted in the Court of First Instance be
for mandamus, injunction or certiorari is not very material. In reviewing
the decision of the Secretary of Public Works and Communications, the
Court of First Instance shall confine its inquiry to the evidence presented
during, the administrative proceedings. Evidence not presented therein
shall not be admitted, and considered by the trial court. As aptly by this
Court speaking through Mr. Justice J.B.L. Reyes, in a similar case:
The findings of the Secretary can not be enervated by new
evidence not laid before him, for that would be tantamount to
holding a new investigation, and to substitute for the discretion and
judgment of the Secretary the discretion and judgment of the court,
to whom the statute had not entrusted the case. It is immaterial
that the present action should be one for prohibition or injunction
and not one for certiorari; in either event the case must be resolved
upon the evidence submitted to the Secretary, since a judicial
review of executive decisions does not import a trial de novo, but
only an ascertainment of whether the "executive findings are not in
violation of the Constitution or of the laws, and are free from fraud
or imposition, and whether they find reasonable support in the
evidence. . . .8
The case at bar, no matter what the parties call it, is in reality a review of
several administrative decisions of the Secretary of Public Works and
Communications. Being so, it was error for the lower court to conduct a
trial de novo. Accordingly, for purposes of this review, only the evidence
presented and admitted in the administrative investigation will be
considered in our determination of whether on the basis thereof the
decisions of the Secretary of Public Works and Communications were
correct.
4. We come to the question whether the streams involved in this case
belong to the public domain or to the owner of Hacienda San Esteban. If
said streams are public, then Republic Act 2056 applies, if private, then
the Secretary of Public Works and Communications cannot order
demolition of the dikes and dams across them pursuant to his authority
granted by said law.
First, we come to the question of the constitutionality of Republic Act No.
2056. The lower court held Republic Act No. 2056 constitutional but ruled
that it was applied by respondents unconstitutionally. That is, it held that
Roman Santos was being deprived of his property without due process of
law, for the dikes of his fishponds were ordered demolished through an
administrative, instead of a judicial, proceeding. This conclusion and
rationalization of the lower court amount in effect to declaring the law
unconstitutional, stated inversely. Note that the law provides for an
expeditious administrative process to determine whether or not a dam or
dike should be declare a public nuisance and ordered demolished. And to
say that such an administrative process, when put to operation, is
unconstitutional is tantamount to saying that the law itself violates the
Constitution. In Lovina vs. Moreno, supra, We held said law constitutional.
We see no reason here to hold otherwise.
Discussing now the applicability of Republic Act 2056, the same applies to
two types of bodies of water, namely (1) public navigable rivers, streams,
coastal waters, or waterways and (b) areas declared as communal fishing
grounds, as provided for in Section 1 thereof:
Sec. 1. . . . the construction or building of dams, dikes or any other
works which encroaches into any public navigable river, stream,
coastal waters and any other navigable public waters or waterways
as well as the construction or building of dams, dikes or any other
works in areas declared as communal fishing grounds, shall be
ordered removed as public nuisances or as prohibited constructions
as herein provided: . . .
We are not concerned with communal fishing grounds because the
streams here involved have not been so declared, but with public
navigable streams. The question therefore is: Are the streams in Hacienda
San Esteban which are mentioned in the petition of Benigno Musni and
others, public and navigable?
Respondents contend that said streams are public on the following
grounds:
(1) Hacienda San Esteban was formerly a marshland and being so, it is not
susceptible to appropriation. It therefore belongs to the State.
Respondents rely on Montano vs. Insular Government, 12 Phil. 572.
(2) The streams in question are natural streams. They are tributaries of
public streams. Cited are the cases ofSamson vs. Dionisio, et al., 11 Phil.
538 and Bautista vs. Alarcon, 23 Phil. 636.
(3) The streams have for their source public rivers, therefore they cannot
be classified as canals.
(4) Assuming the streams were artificially made by Ayala y Cia., said
titleholder lost ownership over them by prescription when it allowed the
public to use them for navigation for a long time. Respondents
cite Mercado vs. Municipal President of Macabebe, 59 Phil. 592.
(5) Assuming the streams in question are not mentioned as public in the
certificates of title held by Ayala y Cia., over Hacienda San Esteban, still
they cannot be considered as privately owned for Section 39 of Act 496
expressly excepts public streams from private ownership.
(6) The Panopio Report, which found the streams in question of private
ownership was nullified by the Secretary of Justice in his opinion dated
June 12, 1935.1awphil.net And, the contract between Ayala y Cia., and the
Secretary of Commerce and Communications agreeing on the ownership
of the streams in question is ultra vires.
The doctrine in Montano vs. Insular Government, supra, that a marshland
which is inundated by the rise of the tides belongs to the State and is not
susceptible to appropriation by occupation has no application here
inasmuch as in said case the land subject matter of the litigation was not
yet titled and precisely Isabelo Montano sought title thereon on the
strength of ten years' occupation pursuant to paragraph 6, section 54 of
Act 926 of the Philippine Commission. Whereas, the subject matter in this
case Hacienda San Esteban is titled land and private ownership
thereof by Ayala y Cia., has been recognized by the King of Spain and later
by the Philippine Government when the same was registered under Act
496.
Respondents further cite Bautista vs. Alarcon, 23 Phil. 631, where the
plaintiff sought injunction against the defendants who allegedly
constructed a dam across a public canal which conveyed water from the
Obando River to fishponds belonging to several persons. The canal was
situated within a public land. In sustaining the injunction granted by the
Court of First Instance, this Court said:
No private persons has right to usurp possession of a watercourse,
branch of a river, or lake of the public domain and use, unless it
shall have been proved that he constructed the same within in
property of his exclusive ownership, and such usurpation
constitutes a violation of the legal provisions which explicity
exclude such waterways from the exclusive use or possession of a
private party. (Emphasis supplied)
As indicated in the above-cited case, a private person may take
possession of a watercourse if he constructed the same within his
property.itc-alf This puts Us into inquiry whether the streams in question
are natural or artificial. In so doing, We shall examine only the evidence
presented before the Department of Public Works and Communications
and disregard that which was presented for the first time before the lower
court, following our ruling in Lovina vs. Moreno, supra.
(1) Sapang Macanduling Maragul or Macanduli is presently enclosed in
Fishpond No. 12 of Roman Santos. Its banks cannot anymore be seen but
some traces of them could be noted by a row of isolated nipa palms. Its
water is subject to the rise and fall of the tides coming from Guagua and
Antipolo Rivers and it is navigable by light watercrafts. Its inlet is Antipolo
River; another dike at its outlet along the Palapat River. 9 It is closed by
four dikes: One dike at its inlet along the Antipolo River; another dike at its
cutlet along the Palatpat River; and, two dikes in between. Then exist
channel at the Palapat River where the fishpond gate lies has been filled
up with dredge spoils from the Pampanga River Control Project.
(2) Sapang Macabacle is found in Fishpond No. 13. Its banks are still
evident. This stream is about 30 meters wide, two meters deep and one
and one-half to two kilometers long. Its source is Rio Cansusu. Like
Macanduli, its channel is obstructed by four dikes. One of them was
constructed by the engineers of the Pampanga River Control Project.
(3) Sapang Balbaro which is found in Fishpond No. 13, runs from Canal
Enrique near Rio Cansusu to Sapang Macabacle, a distance of about one-
half kilometer. It is passable by banca. The closures of this stream consist
of two dikes located at each ends on Canal Enrique and Sapang
Macabacle.
(4) Sapang Cansusu is a continuation of the Cansusu River. The Cansusu
River opens at the Guagua River and allegedly ends at the Palanas River
in front of Barrio San Esteban. At a point near the mouth of Sapang
Balbaro, the owners of Hacienda San Esteban built a canal leading straight
to one end of Barrio San Esteban. They called this canal "Canal Enrique."
And at the point where Canal Enrique joins Cansusu they built a dike
across Cansusu, thus closing this very portion of the river which extends
up to Palanas River where they built another closure dike. This closed
portion, called "Sapang Cansusu," is now part of Fishpond No. 1.
Sapang Cansusu is half a kilometer long and navigable by banca.
Appellant's witnesses, Beligno Musni, 41, Macario Quiambao, 96, Roman
Manansala, 55 and Castor Quiambao, 76, all residents of Barrio San
Esteban, testified that prior to their closure, Sapang Macaduli, Macabacle,
Balbaro and Cansusu were used as passageway and as fishing grounds;
that people transported through them tuba, 10wood and sasa,11 and that
the tuba was brought to the distillery in Barrio San Esteban. Macario
Quiambao testified also that said four streams "were created by God for
the town people"; and that if any digging was done it was only to deepen
the shallow parts to make passage easier. According to witness Anastacio
Quiambao said streams were navigable, even Yangco's ship "Cababayan"
could pass through. Simplicio Quiambao, 36, and Marcelino Ocampo, 55,
stated on direct examination that before closure of the above named four
streams, people from the surrounding towns of Guagua, Bacolor,
Macabebe, Masantol and Sexmoan fished and navigated in them.
Against the aforementioned, testimonial evidence Roman Santos
presented the testimony of Nicanor Donarber, 80, Mariano Guinto, 71, and
his own. Donarber, who started working as an arundin12 testified that
Ayala y Cia., dug Sapang Macanduli, Balbaro and Macabacle; that he
worked also in the construction together with other workers; and, that as
an overseer he inspected their work. Mariano Guinto testified that he
worked for Ayala y Cia., as a tuba gatherer; that in order to reach remote
nipa groves by banca, they made canals; and, that he was one of the who
worked in the construction of those canals. Roman Santos also testified
that Sapang Macanduli, Macabacle, Balbaro and Cansusu are artificial
canals excavated as far back as 1850 and due to erosion coupled with the
spongy nature of the land, they acquired the proportion of rivers; that he
joined Sapang Balbaro to Sapang Macabacle because the former was a
dying canal; and that Cansusu River is different from Sapang Cansusu
Witness Domingo Yumang likewise testified that Sapang Balbaro man-
made.
We observe that witnesses positively stated that Sapang Macanduli,
Macabacle and Balbaro were made by the owners of Hacienda San
Esteban. With respect to Sapang Cansusu none, except Roman Santos
himself, testified that Sapang Cansusu is an artificial canal. It is not one of
the streams found and recommended to be declared private in the
Panopio Report. Sapang Cansusu follows a winding course different and,
distinct from that of a canal such as that of Canal Enrique which is
straight. Moreover, Sapang Cansusu is a part of Cansusu River, admittedly
a public stream.
(5) Sapang Maragul, Mabalanga and Don Timpo are all part of Fishpond
No. 1. Maragul is 600 meters long and 30 to 35 meters wide. Mabalanga is
250 meters in length and 50 meters in width. Don Timpo is 220 meters
long and 20 meters wide. All of them are navigable by banca. Maragul and
Mabalanga open at Guagua River and join each other inside the hacienda
to form one single stream, Sapang Don Timpo, which leads to the
Matalaba River. Maragul, Mabalanga and Don Timpo, formerly ended
inside the hacienda but later Mabalanga was connected to Don Timpo.
Maragul was connected to Mabalanga and Sapang Cela was extended to
join Maragul.
Witnesses Nicanor Donarber, Mariano Ocampo and Mariano Guinto
testified that Maragul, Mabalanga and Don Timpo are artificial canals dug
by Ayala y Cia., and that they (Donarber and Mariano Guinto) worked in
said excavations.13 Witness Mariano Guinto clarified that Don Timpo was
originally dug but Mabalanga and Maragul were formerly small non-
navigable streams which were deepened into artificial navigable canals by
Ayala y Cia.14
Exhibit F, which is a map showing the streams and rivers in Hacienda San
Esteban, shows that Maragul, Mabalanga and Don Timpo are more or less
straight. From the big rivers (Guagua and Matalaba Rivers) they lead deep
into the interior of the hacienda, thus confirming the testimony that they
were built precisely as a means of reaching the interior of the estate by
banca. The weight of evidence, therefore, indicate that said streams are
manmade.
(6) Sapang Bunga, now part of Bunga fishpond, gets its water from
Sapanga Iba and empties at Sta. Cruz River. It is about 300-400 meters
long, 5-6 meters wide and 1-1.60 meters deep.
(7) Sapang Batu is found in Capiz Fishpond. About 300-400 meters long, 4-
5 meters wide and 1.50-2.20 meters deep, it starts at Capiz River and
ends at Malauling Maragul. From Capiz River until it intersects Sapang
Nigui the stream is called Sapang Batu Commencing from Sapang Nigui
and up to its end at Sapang Malauling Maragul, the stream is called
Sapang Batu. Commencing from Sapang Nigui and up to its end at Sapang
Malauling Maragul, the stream is called Sepong Batu. Sepong Batu is not
among those streams declared in the Panopio Report as private.
(8) Sapang Banawa has one end at Palanas River and the other at Sapang
Macabacle. It is about 300 meters long, 3-4 meters wide and 1.30-1.40
meters deep. Its whole length is within Fishpond No. 13 of Roman Santos.
(9) Sapang Mabutol is a dead-end stream, that is, it ends inside the
hacienda. It opens along Guagua river. Since its closure, it has become
part of Fishpond No. 1.
(10) Sapang Buta-buta, like Mabutol, dies inside the hacienda. It connects
with Cansusu River and is about 100 meters long, 3-4 meters wide and
1.2-1.5 meters deep. It is now a part of Fishpond No. 13.
(11) Sapang Masamaral, another stream which opens at Cansusu River
And ends inside the hacienda., is 100-200 meters long, 3-4 meters wide
and 1.50-2 meters deep. It now forms part of Fishpond No. 13.
The uncontradicted testimony of Marcos Guinto is that Sapang Bunga,
Batu, Sepong Batu, Banawa, Mabutol, Buta-Buta and Masamaral were
constructed by Ayala y Cia., to gain access to the nipa the, interior of the
hacienda. This testimony tallies with the findings in the Panopio Report
which will be discussed herein later. The evidence adduced in the
administrative proceeding conducted before a representative of the
Secretary of Public Works and Communications supports the contention
that said streams are merely canals built by Ayala y Cia., for easy passage
into the hinterland of its hacienda.
(12) Sapang Magasawa consists of two streams running parallel to each
other commencing from Matalaba River and terminating at Mariablus
Rivers. About 600-700 meters long, 4-5 meters wide and 1.5-2 meters
deep, these two streams are navigable by banca. They are enclosed within
Fishpond No. 1.
(13) Sapang Mariablus Malate, about 3-4 meters wide and 250 meters
long, is another stream that ends inside the hacienda and gets its water
from Guagua River. It is no part of Fishpond No. 1.
(14) Sapang Matalabang Malate or Maisac opens at Guagua River and
ends at Sapang Cela and Matalabang Maragul. This stream, which is about
800 meters long and 18 meters wide, forms part of Fishpond No. 1 of
Roman Santos.
(15) Sapang Batasan Matua about 600 meters long, three meters wide
and .80 meters deep at low tide and 1.90 meters deep at high tide crosses
the hacienda from Mariablus River to Cansusu River. It is at present a part
of Fishpond No. 1-A.
(16) Sapang Camastiles, a dead end stream of about 200 to 300 meters in
length, gets its water from Biuas River. It is within Fishpond No. 1.
(17) Sapang Cela is within Fishpond No. 1. Its whole length situated inside
the hacienda, it opens at Sapang Matalabang Malate or Maisac and ends
at Sapang Malungkot. Latter Cela was extended to connect with Sapang
Maragul. It is about 200 meters long and four meters wide.
Mariano Guinto, 71, testified without contradiction that Sapang Mariablus
Malate and Matalabang Malate were formerly small and non-navigable
streams which were dug by Ayala y Cia., 15 while Batasan Matua
Camastiles, Magasawa and Cela are original canals made by Ayala y
Cia.,16 that he was one of those who worked in the construction of said
canals; and that it took years to construct them. All these streams were
recommended in the Panopio Report for declaration as private streams.
(18) Sapang Sinag, 200 meters long, four to five meters wide, one meter
and one and one-half meters deep at low and high tides, respectively,
gets its water from Cutod River and leads inside the hacienda to connect
with Sapang Atlong Cruz, a stream declared private in the Panopio Report.
It is now inside Fishpond No. 14.
(19) Sapang Balili, also found inside Fishpond No. 14, is about 200 meters
long, three to four meters wide and one meter deep at low tide. From its
mouth at Cutod River it drifts into the interior of the hacienda and joins
Sapang Bengco.17
(20) Sapang Pita is within Fishpond Capiz. It takes water from Capiz River
but dies 250 meters inside the hacienda. It is about four to five meters
wide, and one meter deep at low tide and 1.50 meters deep at high tide.
(21) Sapang Tumbong, situated inside Capiz Fishpond, derives its water
from Sapang Quiorang Silab, a stream declared private by the Secretary
of Public Works and Communications, and ends inside the hacienda. 18
(22) Sapang Bengco is found within Fishpond No. 14.1awphil.net Two
hundred meters long, five meters wide, and one meter deep at low tide
and 1.50 meters deep at high tide it gets water from Sapang Biabas and
connects with Baliling Maisac. 19
According to Marcos Guinto, a witness for Roman Santos, Sapang Sinag,
Balili, Pita Tumbong and Bengco were excavated a long time ago by Ayala
y Cia.; and that they have a winding course because when they were
made the workers followed the location of the nipa palms. 20 On the other
hand, Marcelo Quiambao, testified that Sapang Tumbong is a natural
stream and that the reason he said so is because the stream was already
there as far back as 1910 when he reached the age of ten. No other oral
evidence was presented to contradict the testimony of Marcos Guinto that
the said five streams were artificially made by Ayala y Cia.
To show that the streams involved in this case were used exclusively by
the hacienda personnel and occasionally by members of their families,
Roman Santos introduced the testimony of Eliseo Panopio, Nicanor
Donarber, Blas Gaddi, Mariano Ocampo, Mariano Guinto, Alejandro
Manansala and himself. The witnesses categorically testified that the
public was prohibited from using the streams as a means of navigation
and that the prohibition was enforced by guards called arundines.
One and all, the evidence, oral and documentary, presented by Roman
Santos in the administrative proceedings supports the conclusion of the
lower court that the streams involved in this case were originally man-
made canals constructed by the former owners of Hacienda San Esteban
and that said streams were not held open for public use. This same
conclusion was reached 27 years earlier by an investigator of the Bureau
of Public Works whose report and recommendations were approved by the
Director of Public Works and submitted to the Secretary of Commerce and
Communications.
As stated, pursuant to Act 2152, as amended by Act 3208, the Bureau of
Public Works and the Department of Commerce and Communications
locked into and settled the question of whether or not the streams
situated within Hacienda San Esteban are publicly or privately owned. We
refer to the so-called Panopio Report which contains the findings and
recommendations of Eliseo Panopio, a surveyor in the Bureau of Public
Works, who was designated to conduct formal hearings and investigation.
Said report found the following streams, among others, of private
ownership:
Camastiles, Cela Balanga, Bato, Batasan, Bengco, Buta-buta, Don
Timpo, Mabutol, Macabacle, Macanduli, Malande Malate (Bunga),
 Magasawa, Masamaral, Maragul, Mariablus Malate, Matalaba
Malate, Nasi, Nigui, Pangebonan and Quiorang Silab
on the ground that
The preponderance of the probatory facts, . . ., shows that the
rivers, creeks, esteros and canals listed in (1) have originally been
constructed, deepened, widened, and lengthened by the owners of
the Hacienda San Esteban. That they have been used as means of
communication from one place to another and to the inner most of
the nipales, exclusively for the employees, colonos and laborers of
the said Hacienda San Esteban. That they have never been used by
the public for navigation without the express consent of the owners
of the said Hacienda.21
Bases for the above-quoted conclusion were "the reliable informations
gathered from old residents of the locality, from outsiders, the sworn
statements obtained from different persons not interested in this case and
the comparison of the three plans prepared in 1880, 1906 and 1930. 22 The
persons referred to are Martin Isip, Hilarion Lobo, Emigdio Ignacio, Castor
Quiambao, Matias Sunga facio Cruz, Inocencio Dayrit, Gabriel Manansala,
Lope Quiambao, Marcelino Bustos and Juan Lara .
On February 13, 1931 the Director of Public Works transmitted the Panopio
Report to the Secretary of Commerce and Communications recommending
approval thereof. Later, on February 27, 1935, Secretary of Public Works
and Communications De las Alas approved the agreement of Ayala y Cia.,
and the Municipality of Macabebe, concerning the ownership of the
streams in Hacienda San Esteban, for being in conformity with said
Panopio Report.
This agreement of Ayala y Cia and the Municipality of Macabebe which
was approved by the Secretary of Public Works and Communications only
on February 27, 1935, could not however bind the Government because
the power of the Secretary of Public Works and Communication to enter
thereto had been suppressed by the Philppine Legislature when it enacted
Act 4175 which effect on December 7, 1934.
Nullity of the aforesaid contract would not of course affect the findings of
fact contained in the Panopio Report.
In weighing the evidence presented before the administrative
investigation which culminated in this appeal, respondent Secretary
seemed to have ignored the Panopio Report and other documentary
evidence as well as the testimony of witnesses presented by petitioner but
instead gave credence only to the witnesses of Benigno Musni, et al. Upon
review, however, the lower court, taking into account all the evidence
adduced in the administrative hearing, including the Panopio Report, as
well as those presented for the first time before it, sustained petitioner's
averment that the streams in question were artificially made, hence of
private ownership. As stated, this conclusion of the lower court which is in
accord with the findings of Panopio as contained in his report, finds ample
support from the evidence presented and admitted in the administrative
investigation. Accordingly, we see no merit in disturbing the lower court's
findings fact.
We next consider the issue of whether under pertinent laws, the streams
in question are public or private.
We quote Articles 339, 407 and 408 of the Spanish Civil Code of 1889:
Art. 339. Property of public ownerships is
1. That devoted to public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, river banks,
shores, roadsteads, and that of a similar character;
Art. 407. The following are of public ownership:
1. Rivers and their natural channels;
2. Continuous or intermittent waters from springs or brooks running
in their natural channels and the channels themselves.
3. Waters rising continuously or intermittently on lands of public
ownership;
4. Lakes and ponds formed by nature, on public lands, and their
beds;
5. Rain waters running through ravines or sand beds, the channels
of which are of public ownership;
 6. Subterranean waters on public lands;
7. Waters found within the zone of operation of public works, even
though constructed under contract;
8. Waters which flow continuously or intermittently from lands
belonging to private persons, to the State, to provinces, or to towns,
from the moment they leave such lands;
9. The waste waters of fountains, sewers, and public institutions.
Art. 408. The following are of private ownership:
1. Waters, either continuous or intermittent rising on private etates,
while they run through them;
2. Lakes and ponds and their beds when formed by nature on such
estates;
3. Subterranean waters found therein;
4. Rain water falling thereon as long as their bounderies.
5. The channels of flowing streams, continuous or intermittent,
formed by rain water, and those of brooks crossing estates which
are not of public ownership.
The water, bed, banks, and floodgates of a ditch or aqueduct are
deemed to be an integral part of the estate or building for which the
waters are intended. The owners of estates through or along the
boundaries of which the aqueduct passes can assert no ownership
over it, nor any right to make use. of it beds or banks, unless they
base their claims on title deed which specify the right or the
ownership claimed.
Articles 71 and 72 of the Spanish Law of Waters of August 3, 1866 state:
Art. 71. The water-beds of all creeks belong to the owners of the
estates or lands over which they flow.
Art. 72. The water-beds on public land, of creeks through which
spring waters run, are a part of the public domain.
The natural water-beds or channels of rivers are also part of the
public domain.
Pursuant to Article 71 of the Spanish Law of Waters of August 3, 1866, and
Article 408(5) of the Spanish Civil Code, channels of creeks and brooks
belong to the owners of estates over which they flow. The channels,
therefore, of the streams in question which may be classified creeks,
belong to the owners of Hacienda San Esteban.
The said streams, considered as canals, of which they originally were, are
of private ownership in contemplation of Article 339(l) of the Spanish Civil
Code. Under Article 339, canals constructed by the State and devoted to
public use are of public ownership. Conversely, canals constructed by
private persons within private lands and devoted exclusively for private
use must be of private ownership.
Our attention has been called to the case of Mercado v. Municipal
President of Macabebe, 59 Phil. 592. There the creek (Batasan-Limasan)
involved was originally dug by the estate's owner who, subsequently
allowed said creek to be used by the public for navigation and fishing
purposes for a period of 22 years. Said this Court through Mr. Justice Diaz:
And even granting that the Batasan-Limasan creek acquired the
proportions which it had, before it was closed, as a result of
excavations made by laborers of the appellant's predecesor in
interest, it being a fact that, since the time it was opened as a
water route between the Nasi River and Limasan creek, the owners
thereof as well as strangers, that is, both the residents of the
hacienda and those of other nearby barrios and municipalities, had
been using it not only for their bancas to pass through but also for
fishing purposes, and it being also a fact that such was the
condition of the creek at least since 1906 until it was closed in
1928, if the appellant and her predecessors in interest had acquired
any right to the creek in question by virtue of excavations which
they had made thereon, they had such right through prescription,
inasmuch as they failed to obtain, and in fact they have not
obtained, the necessary authorization to devote it to their own use
to the exclusion of all others. The use and enjoyment of a creek, as
 any other property simceptible of appropriation, may be acquired or
lost through prescription, and the appellant and her predecessors in
interest certainly lost such right through the said cause, and they
cannot now claim it exclusively for themselves after the general
public had been openly using the same from 1906 to 1928. . . .
The petition for the opening of Sapang Malauling Maragul, Quiorang
Silab, Nigui, Pepangebunan, Nasi and Bulacus was dismissed by the
Secretary of Public Works and Communications and the case considered
closed. The said administrative decision has not been questioned in this
appeal by either party. Hence, they are deemed excluded herein.

In the cited case, the creek could have been of private ownership had not
its builder lost it by prescription. Applying the principle therein enunciated
to the case at bar, the conclusion would be inevitably in favor of private
ownership, considering that the owners of Hacienda San Esteban held
them for their exclusive use and prohibited the public from using them.
It may be noted that in the opinion, mentioned earlier, issued on June 12,
1935, the Secretary of Justice answered in the negative the query of the
Secretary of Public Works and Communications whether the latter can
declare of private ownership those streams which "were dug up
artificially", because it was assumed that the streams were used "by the
public as fishing ground and in transporting their commerce in bancas or
in small crafts without the objection of the parties who dug" them.
Precisely, Mercado v. Municipality of Macabebe was given application
therein. However, the facts, as then found by the Bureau of Public Works,
do not support the factual premise that the streams in question were used
by the public "without the objection of the parties who dug" them. We
cannot therefore take as controlling in determining the merits of this the
factual premises and the legal conclusion contained in said opinion.
All the other streams, being artificial and devoted exclusively for the use
of the hacienda owner and his personnel, are declared of private
ownership. Hence, the dams across them should not he ordered
demolished as public nuisances.
With respect to the issue of contempt of court on the part of the Secretary
of Public Works and Communications and Julian Cargullo for the alleged
issuance of a administrative decisions ordering demolition of dikes
involved in this case after the writ of injunction was granted and served,
suffice it to state that the lower court made no finding of contempt of
court. Necessarily, there is no conviction for contempt reviewable by this
Court and any discussion on the matter would be academic.
WHEREFORE, the decision appealed from is affirmed, except as to Sapang
Cansusu which is hereby declared public and as to which the judgment of
the lower court is reversed. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal. Zaldivar, Sanchez,
Castro, Angeles and Fernando, JJ.,concur.

The case at bar should be differentiated from those cases where We held
illegal the closing and/or appropriation of rivers or streams by owners of
estates through which they flow for purposes of converting them into
fishponds or other works.23 In those cases, the watercourses which were
dammed were natural navigable streams and used habitually by the
public for a long time as a means of navigation. Consequently, they
belong to the public domain either as rivers pursuant to Article 407 (1) of
the Spanish Civil Code of 1889 or as property devoted to public use under
Article 339 of the same code. Whereas, the streams involved in this
case were artificially made and devoted to the exclusive use of the
hacienda owner.

Finally, Sapang Cansusu, being a natural stream and a continuation of the

Cansusu River, admittedly a public stream, belongs to the public domain.
Its closure therefore by the predecessors of Roman Santos was illegal.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 92013 July 25, 1990
SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL
MANGLAPUS, as Secretary of Foreign Affairs, and CATALINO
MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION
TRUST CHAIRMAN RAMON T. GARCIA, AMBASSADOR RAMON DEL
ROSARIO, et al., as members of the PRINCIPAL AND BIDDING
COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF
PHILIPPINE GOVERNMENT PROPERTIES IN JAPAN, respondents.
Arturo M. Tolentino for petitioner in 92013.
GUTIERREZ, JR., J.:
These are two petitions for prohibition seeking to enjoin respondents, their
representatives and agents from proceeding with the bidding for the sale
of the 3,179 square meters of land at 306 Roppongi, 5-Chome Minato-ku
Tokyo, Japan scheduled on February 21, 1990. We granted the prayer for a
temporary restraining order effective February 20, 1990. One of the
petitioners (in G.R. No. 92047) likewise prayes for a writ of mandamus to
compel the respondents to fully disclose to the public the basis of their
decision to push through with the sale of the Roppongi property inspire of
strong public opposition and to explain the proceedings which effectively
prevent the participation of Filipino citizens and entities in the bidding
process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard
by the Court on March 13, 1990. After G.R. No. 92047, Ojeda v. Secretary
Macaraig, et al. was filed, the respondents were required to file a
comment by the Court's resolution dated February 22, 1990. The two
petitions were consolidated on March 27, 1990 when the memoranda of
the parties in the Laurel case were deliberated upon.
The Court could not act on these cases immediately because the
respondents filed a motion for an extension of thirty (30) days to file
comment in G.R. No. 92047, followed by a second motion for an extension
of another thirty (30) days which we granted on May 8, 1990, a third
motion for extension of time granted on May 24, 1990 and a fourth motion
for extension of time which we granted on June 5, 1990 but calling the
attention of the respondents to the length of time the petitions have been
pending. After the comment was filed, the petitioner in G.R. No. 92047
asked for thirty (30) days to file a reply. We noted his motion and resolved
to decide the two (2) cases.
I
The subject property in this case is one of the four (4) properties in Japan
acquired by the Philippine government under the Reparations Agreement
entered into with Japan on May 9, 1956, the other lots being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo
which has an area of approximately 2,489.96 square meters, and is at
present the site of the Philippine Embassy Chancery;
(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of
around 764.72 square meters and categorized as a commercial lot now
being used as a warehouse and parking lot for the consulate staff; and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara,
Nada-ku, Kobe, a residential lot which is now vacant.
The properties and the capital goods and services procured from the
Japanese government for national development projects are part of the
indemnification to the Filipino people for their losses in life and property
and their suffering during World War II.
The Reparations Agreement provides that reparations valued at $550
million would be payable in twenty (20) years in accordance with annual
schedules of procurements to be fixed by the Philippine and Japanese
governments (Article 2, Reparations Agreement). Rep. Act No. 1789, the
Reparations Law, prescribes the national policy on procurement and
utilization of reparations and development loans. The procurements are
divided into those for use by the government sector and those for private
parties in projects as the then National Economic Council shall determine.
Those intended for the private sector shall be made available by sale to
Filipino citizens or to one hundred (100%) percent Filipino-owned entities
in national development projects.
The Roppongi property was acquired from the Japanese government under
the Second Year Schedule and listed under the heading "Government
Sector", through Reparations Contract No. 300 dated June 27, 1958. The
Roppongi property consists of the land and building "for the Chancery of
the Philippine Embassy" (Annex M-D to Memorandum for Petitioner, p.
503). As intended, it became the site of the Philippine Embassy until the
latter was transferred to Nampeidai on July 22, 1976 when the Roppongi
building needed major repairs. Due to the failure of our government to
provide necessary funds, the Roppongi property has remained
undeveloped since that time.
A proposal was presented to President Corazon C. Aquino by former
Philippine Ambassador to Japan, Carlos J. Valdez, to make the property the
subject of a lease agreement with a Japanese firm - Kajima Corporation
which shall construct two (2) buildings in Roppongi and one (1) building in
Nampeidai and renovate the present Philippine Chancery in Nampeidai.
The consideration of the construction would be the lease to the foreign
corporation of one (1) of the buildings to be constructed in Roppongi and
the two (2) buildings in Nampeidai. The other building in Roppongi shall
then be used as the Philippine Embassy Chancery. At the end of the lease
period, all the three leased buildings shall be occupied and used by the
Philippine government. No change of ownership or title shall occur. (See
Annex "B" to Reply to Comment) The Philippine government retains the
title all throughout the lease period and thereafter. However, the
government has not acted favorably on this proposal which is pending
approval and ratification between the parties. Instead, on August 11,
1986, President Aquino created a committee to study the
disposition/utilization of Philippine government properties in Tokyo and
Kobe, Japan through Administrative Order No. 3, followed by
Administrative Orders Numbered 3-A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296 entitling
non-Filipino citizens or entities to avail of separations' capital goods and
services in the event of sale, lease or disposition. The four properties in
Japan including the Roppongi were specifically mentioned in the first
"Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the
government has been pushing, with great vigor, its decision to sell the
reparations properties starting with the Roppongi lot. The property has
twice been set for bidding at a minimum floor price of $225 million. The
first bidding was a failure since only one bidder qualified. The second one,
after postponements, has not yet materialized. The last scheduled bidding
on February 21, 1990 was restrained by his Court. Later, the rules on
bidding were changed such that the $225 million floor price became
merely a suggested floor price.
The Court finds that each of the herein petitions raises distinct issues. The
petitioner in G.R. No. 92013 objects to the alienation of the Roppongi
property to anyone while the petitioner in G.R. No. 92047 adds as a
principal objection the alleged unjustified bias of the Philippine
government in favor of selling the property to non-Filipino citizens and
entities. These petitions have been consolidated and are resolved at the
same time for the objective is the same - to stop the sale of the Roppongi
property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated by the
Philippine Government?; and
(2) Does the Chief Executive, her officers and agents, have the authority
and jurisdiction, to sell the Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the
authority of the government to alienate the Roppongi property assails the
constitutionality of Executive Order No. 296 in making the property
available for sale to non-Filipino citizens and entities. He also questions
the bidding procedures of the Committee on the Utilization or Disposition
of Philippine Government Properties in Japan for being discriminatory
against Filipino citizens and Filipino-owned entities by denying them the
right to be informed about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property
and the related lots were acquired as part of the reparations from the
Japanese government for diplomatic and consular use by the Philippine
government. Vice-President Laurel states that the Roppongi property is
classified as one of public dominion, and not of private ownership under
Article 420 of the Civil Code (See infra).
The petitioner submits that the Roppongi property comes under "property
intended for public service" in paragraph 2 of the above provision. He
states that being one of public dominion, no ownership by any one can
attach to it, not even by the State. The Roppongi and related properties
were acquired for "sites for chancery, diplomatic, and consular quarters,
buildings and other improvements" (Second Year Reparations Schedule).
The petitioner states that they continue to be intended for a necessary
service. They are held by the State in anticipation of an opportune use.
(Citing 3 Manresa 65-66). Hence, it cannot be appropriated, is outside the
commerce of man, or to put it in more simple terms, it cannot be
alienated nor be the subject matter of contracts (Citing Municipality of
Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use of the Roppongi
property at the moment, the petitioner avers that the same remains
property of public dominion so long as the government has not used it for
other purposes nor adopted any measure constituting a removal of its
original purpose or use.
The respondents, for their part, refute the petitioner's contention by
saying that the subject property is not governed by our Civil Code but by
the laws of Japan where the property is located. They rely upon the rule
of lex situs which is used in determining the applicable law regarding the
acquisition, transfer and devolution of the title to a property. They also
invoke Opinion No. 21, Series of 1988, dated January 27, 1988 of the
Secretary of Justice which used the lex situs in explaining the
inapplicability of Philippine law regarding a property situated in Japan.
The respondents add that even assuming for the sake of argument that
the Civil Code is applicable, the Roppongi property has ceased to become
property of public dominion. It has become patrimonial property because
it has not been used for public service or for diplomatic purposes for over
thirteen (13) years now (Citing Article 422, Civil Code) and because
the intention by the Executive Department and the Congress to convert it
to private use has been manifested by overt acts, such as, among others:
(1) the transfer of the Philippine Embassy to Nampeidai (2) the issuance of
administrative orders for the possibility of alienating the four government
properties in Japan; (3) the issuance of Executive Order No. 296; (4) the
enactment by the Congress of Rep. Act No. 6657 [the Comprehensive
Agrarian Reform Law] on June 10, 1988 which contains a provision stating
that funds may be taken from the sale of Philippine properties in foreign
countries; (5) the holding of the public bidding of the Roppongi property
but which failed; (6) the deferment by the Senate in Resolution No. 55 of
the bidding to a future date; thus an acknowledgment by the Senate of
the government's intention to remove the Roppongi property from the
public service purpose; and (7) the resolution of this Court dismissing the
petition in Ojeda v. Bidding Committee, et al., G.R. No. 87478 which
sought to enjoin the second bidding of the Roppongi property scheduled
on March 30, 1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on
the constitutionality of Executive Order No. 296. He had earlier filed a
petition in G.R. No. 87478 which the Court dismissed on August 1, 1989.
He now avers that the executive order contravenes the constitutional
mandate to conserve and develop the national patrimony stated in the
Preamble of the 1987 Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of
the public domain to Filipino citizens. (Sections 2 and 3, Article XII,
Constitution; Sections 22 and 23 of Commonwealth Act 141).itc-asl
(2) The preference for Filipino citizens in the grant of rights, privileges and
concessions covering the national economy and patrimony (Section 10,
Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair competition
and trade practices;
(4) The guarantee of the right of the people to information on all matters
of public concern (Section 7, Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or entities not
wholly owned by Filipino citizens of capital goods received by the
Philippines under the Reparations Act (Sections 2 and 12 of Rep. Act No.
1789); and
(6) The declaration of the state policy of full public disclosure of all
transactions involving public interest (Section 28, Article III, Constitution).
Petitioner Ojeda warns that the use of public funds in the execution of an
unconstitutional executive order is a misapplication of public funds He
states that since the details of the bidding for the Roppongi property
were never publicly disclosed until February 15, 1990 (or a few days
before the scheduled bidding), the bidding guidelines are available only in
Tokyo, and the accomplishment of requirements and the selection of
qualified bidders should be done in Tokyo, interested Filipino citizens or
entities owned by them did not have the chance to comply with Purchase
Offer Requirements on the Roppongi. Worse, the Roppongi shall be sold for
a minimum price of $225 million from which price capital gains tax under
Japanese law of about 50 to 70% of the floor price would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the fact that
the Roppongi site and the three related properties were through
reparations agreements, that these were assigned to the government
sector and that the Roppongi property itself was specifically designated
under the Reparations Agreement to house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is expressly
spelled out. It is dictated by the terms of the Reparations Agreement and
the corresponding contract of procurement which bind both the Philippine
government and the Japanese government.
There can be no doubt that it is of public dominion unless it is convincingly
shown that the property has become patrimonial. This, the respondents
have failed to do.
As property of public dominion, the Roppongi lot is outside the commerce
of man. It cannot be alienated. Its ownership is a special collective
ownership for general use and enjoyment, an application to the
satisfaction of collective needs, and resides in the social group. The
purpose is not to serve the State as a juridical person, but the citizens; it
is intended for the common and public welfare and cannot be the object of
appropration. (Taken from 3 Manresa, 66-69; cited in Tolentino,
Commentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p.
26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of private
ownership.
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 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.
ART. 421. All other property of the State, which is not of the
character stated in the preceding article, is patrimonial
property.
The Roppongi property is correctly classified under paragraph 2 of Article
420 of the Civil Code as property belonging to the State and intended for
some public service.
Has the intention of the government regarding the use of the property
been changed because the lot has been Idle for some years? Has it
become patrimonial?
The fact that the Roppongi site has not been used for a long time for
actual Embassy service does not automatically convert it to patrimonial
property. Any such conversion happens only if the property is withdrawn
from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481
[1975]). A property continues to be part of the public domain, not
available for private appropriation or ownership until there is a formal
declaration on the part of the government to withdraw it from being such
(Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned public
officials insinuating a change of intention. We emphasize, however, that
an abandonment of the intention to use the Roppongi property for public
service and to make it patrimonial property under Article 422 of the Civil
Code must be definite Abandonment cannot be inferred from the non-use
alone specially if the non-use was attributable not to the government's
own deliberate and indubitable will but to a lack of financial support to
repair and improve the property (See Heirs of Felino Santiago v. Lazaro,
166 SCRA 368 [1988]). Abandonment must be a certain and positive act
based on correct legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not
relinquishment of the Roppongi property's original purpose. Even the
failure by the government to repair the building in Roppongi is not
abandonment since as earlier stated, there simply was a shortage of
government funds. The recent Administrative Orders authorizing a study
of the status and conditions of government properties in Japan were
merely directives for investigation but did not in any way signify a clear
intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority to sell",
does not have a provision in its text expressly authorizing the sale of the
four properties procured from Japan for the government sector. The
executive order does not declare that the properties lost their public
character. It merely intends to make the properties available to foreigners
and not to Filipinos alone in case of a sale, lease or other disposition. It
merely eliminates the restriction under Rep. Act No. 1789 that reparations
goods may be sold only to Filipino citizens and one hundred (100%)
percent Filipino-owned entities. The text of Executive Order No. 296
provides:
Section 1. The provisions of Republic Act No. 1789, as
amended, and of other laws to the contrary notwithstanding,
the above-mentioned properties can be made available for
sale, lease or any other manner of disposition to non-Filipino
citizens or to entities owned by non-Filipino citizens.
Executive Order No. 296 is based on the wrong premise or assumption
that the Roppongi and the three other properties were earlier converted
into alienable real properties. As earlier stated, Rep. Act No. 1789
differentiates the procurements for the government sector and the private
sector (Sections 2 and 12, Rep. Act No. 1789). Only the private sector
properties can be sold to end-users who must be Filipinos or entities
owned by Filipinos. It is this nationality provision which was amended by
Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one
of the sources of funds for its implementation, the proceeds of the
disposition of the properties of the Government in foreign countries, did
not withdraw the Roppongi property from being classified as one of public
dominion when it mentions Philippine properties abroad. Section 63 (c)
refers to properties which are alienable and not to those reserved for
public use or service. Rep Act No. 6657, therefore, does not authorize the
Executive Department to sell the Roppongi property. It merely enumerates
possible sources of future funding to augment (as and when needed) the
Agrarian Reform Fund created under Executive Order No. 299. Obviously
any property outside of the commerce of man cannot be tapped as a
source of funds.
The respondents try to get around the public dominion character of the
Roppongi property by insisting that Japanese law and not our Civil Code
should apply.
It is exceedingly strange why our top government officials, of all people,
should be the ones to insist that in the sale of extremely valuable
government property, Japanese law and not Philippine law should prevail.
The Japanese law - its coverage and effects, when enacted, and
exceptions to its provision is not presented to the Court It is simply
asserted that the lex loci rei sitae or Japanese law should apply without
stating what that law provides. It is a ed on faith that Japanese law would
allow the sale.
We see no reason why a conflict of law rule should apply when no conflict
of law situation exists. A conflict of law situation arises only when: (1)
There is a dispute over the title or ownership of an immovable, such that
the capacity to take and transfer immovables, the formalities of
conveyance, the essential validity and effect of the transfer, or the
interpretation and effect of a conveyance, are to be determined (See
Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A
foreign law on land ownership and its conveyance is asserted to conflict
with a domestic law on the same matters. Hence, the need to determine
which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title. There is
no question that the property belongs to the Philippines. The issue is the
authority of the respondent officials to validly dispose of property
belonging to the State. And the validity of the procedures adopted to
effect its sale. This is governed by Philippine Law. The rule of lex
situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds light on
the relevance of the lex situsrule is misplaced. The opinion does not tackle
the alienability of the real properties procured through reparations nor the
existence in what body of the authority to sell them. In discussing who are
capableof acquiring the lots, the Secretary merely explains that it is the
foreign law which should determine who can acquire the properties so
that the constitutional limitation on acquisition of lands of the public
domain to Filipino citizens and entities wholly owned by Filipinos is
inapplicable. We see no point in belaboring whether or not this opinion is
correct. Why should we discuss who can acquire the Roppongi lot when
there is no showing that it can be sold?
The subsequent approval on October 4, 1988 by President Aquino of the
recommendation by the investigating committee to sell the Roppongi
property was premature or, at the very least, conditioned on a valid
change in the public character of the Roppongi property. Moreover, the
approval does not have the force and effect of law since the President
already lost her legislative powers. The Congress had already convened
for more than a year.
Assuming for the sake of argument, however, that the Roppongi property
is no longer of public dominion, there is another obstacle to its sale by the
respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which the
Government is a party. In cases in which the Government
of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any
other property the value of which is in excess of one hundred
thousand pesos, the respective Department Secretary shall
prepare the necessary papers which, together with the
proper recommendations, shall be submitted to the Congress
of the Philippines for approval by the same. Such deed,
instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of
the Philippines unless the Government of the Philippines
unless the authority therefor be expressly vested by law in
another officer. (Emphasis supplied)
The requirement has been retained in Section 48, Book I of the
Administrative Code of 1987 (Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the
Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the Philippines
but titled in the name of any political subdivision or of any
corporate agency or instrumentality, by the executive head
of the agency or instrumentality. (Emphasis supplied)
It is not for the President to convey valuable real property of the
government on his or her own sole will. Any such conveyance must be
authorized and approved by a law enacted by the Congress. It requires
executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the
deferment of the sale of the Roppongi property does not withdraw the
property from public domain much less authorize its sale. It is a mere
resolution; it is not a formal declaration abandoning the public character
of the Roppongi property. In fact, the Senate Committee on Foreign
Relations is conducting hearings on Senate Resolution No. 734 which
raises serious policy considerations and calls for a fact-finding
investigation of the circumstances behind the decision to sell the
Philippine government properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al.,
supra, did not pass upon the constitutionality of Executive Order No. 296.
Contrary to respondents' assertion, we did not uphold the authority of the
President to sell the Roppongi property. The Court stated that the
constitutionality of the executive order was not the real issue and that
resolving the constitutional question was "neither necessary nor finally
determinative of the case." The Court noted that "[W]hat petitioner
ultimately questions is the use of the proceeds of the disposition of the
Roppongi property." In emphasizing that "the decision of the Executive to
dispose of the Roppongi property to finance the CARP ... cannot be
questioned" in view of Section 63 (c) of Rep. Act No. 6657, the Court did
not acknowledge the fact that the property became alienable nor did it
indicate that the President was authorized to dispose of the Roppongi
property. The resolution should be read to mean that in case the Roppongi
property is re-classified to be patrimonial and alienable by authority of
law, the proceeds of a sale may be used for national economic
development projects including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before us
question the proposed 1990 sale of the Roppongi property. We are
resolving the issues raised in these petitions, not the issues raised in
1989.
Having declared a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a need for
legislative authority to allow the sale of the property, we see no
compelling reason to tackle the constitutional issues raised by petitioner
Ojeda.
The Court does not ordinarily pass upon constitutional questions unless
these questions are properly raised in appropriate cases and their
resolution is necessary for the determination of the case (People v. Vera,
65 Phil. 56 [1937]). The Court will not pass upon a constitutional question
although properly presented by the record if the case can be disposed of
on some other ground such as the application of a statute or general law
(Siler v. Louisville and Nashville R. Co., 213 U.S. 175, [1909], Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property should
not be sold:
The Roppongi property is not just like any piece of property. It
was given to the Filipino people in reparation for the lives and
blood of Filipinos who died and suffered during the Japanese
military occupation, for the suffering of widows and orphans
who lost their loved ones and kindred, for the homes and
other properties lost by countless Filipinos during the war.
The Tokyo properties are a monument to the bravery and
sacrifice of the Filipino people in the face of an invader; like
the monuments of Rizal, Quezon, and other Filipino heroes,
we do not expect economic or financial benefits from them.
But who would think of selling these monuments? Filipino
honor and national dignity dictate that we keep our
properties in Japan as memorials to the countless Filipinos
who died and suffered. Even if we should become paupers we
should not think of selling them. For it would be as if we sold
the lives and blood and tears of our countrymen. (Rollo- G.R.
No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
Roppongi is no ordinary property. It is one ceded by the
Japanese government in atonement for its past belligerence
for the valiant sacrifice of life and limb and for deaths,
physical dislocation and economic devastation the whole
Filipino people endured in World War II.
It is for what it stands for, and for what it could never bring
back to life, that its significance today remains undimmed,
inspire of the lapse of 45 years since the war ended, inspire
of the passage of 32 years since the property passed on to
the Philippine government.
Roppongi is a reminder that cannot should not be
dissipated ... (Rollo-92047, p. 9)
It is indeed true that the Roppongi property is valuable not so much
because of the inflated prices fetched by real property in Tokyo but more
so because of its symbolic value to all Filipinos veterans and civilians
alike. Whether or not the Roppongi and related properties will eventually
be sold is a policy determination where both the President and Congress
must concur. Considering the properties' importance and value, the laws
on conversion and disposition of property of public dominion must be
faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A
writ of prohibition is issued enjoining the respondents from proceeding
with the sale of the Roppongi property in Tokyo, Japan. The February 20,
1990 Temporary Restraining Order is made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez
and will add the following observations only for emphasis.
It is clear that the respondents have failed to show the President's legal
authority to sell the Roppongi property. When asked to do so at the
hearing on these petitions, the Solicitor General was at best ambiguous,
although I must add in fairness that this was not his fault. The fact is that
there is -no such authority. Legal expertise alone cannot conjure that
statutory permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double talk,
does not contain such authority. Neither does Rep. Act No. 6657, which
simply allows the proceeds of the sale of our properties abroad to be used
for the comprehensive agrarian reform program. Senate Res. No. 55 was a
mere request for the deferment of the scheduled sale of tile Roppongi
property, possibly to stop the transaction altogether; and ill any case it is
not a law. The sale of the said property may be authorized only by
Congress through a duly enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of
laws and not of men, where every public official, from the lowest to the
highest, can act only by virtue of a valid authorization. I am happy to note
that in the several cases where this Court has ruled against her, the
President of the Philippines has submitted to this principle with becoming
grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to
make a few observations which could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it
is Congress that lays down or determines policies. The President executes
such policies. The policies determined by Congress are embodied in
legislative enactments that have to be approved by the President to
become law. The President, of course, recommends to Congress the
approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.
The judiciary interprets the laws and, in appropriate cases, determines
whether the laws enacted by Congress and approved by the President,
and presidential acts implementing such laws, are in accordance with the
Constitution.
The Roppongi property was acquired by the Philippine government
pursuant to the reparations agreement between the Philippine and
Japanese governments. Under such agreement, this property was acquired
by the Philippine government for a specific purpose, namely, to serve as
the site of the Philippine Embassy in Tokyo, Japan. Consequently, Roppongi
is a property of public dominion and intended for public service, squarely
falling within that class of property under Art. 420 of the Civil Code, which
provides:
Art. 420. The following things are property of public dominion
:
 (1) ...
(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. (339a)
Public dominion property intended for public service cannot be alienated
unless the property is first transformed into private property of the state
otherwise known as patrimonial property of the state. 1 The transformation
of public dominion property to state patrimonial property involves, to my
mind, a policy decision. It is a policy decision because the treatment of the
property varies according to its classification. Consequently, it is Congress
which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no
such decision or declaration.
Moreover, the sale of public property (once converted from public
dominion to state patrimonial property) must be approved by Congress,
for this again is a matter of policy (i.e. to keep or dispose of the property).
Sec. 48, Book 1 of the Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the
name of the Republic of the Philippines, by the
President, unless the authority therefor is
expressly vested by law in another officer.
(2) For property belonging to the Republic of the
Philippines but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the
agency or instrumentality. (Emphasis supplied)
But the record is bare of any congressional decision or approval to sell
Roppongi. The record is likewise bare of any congressional authority
extended to the President to sell Roppongi thru public bidding or
otherwise.
It is therefore, clear that the President cannot sell or order the sale of
Roppongi thru public bidding or otherwise without a prior congressional
approval, first, converting Roppongi from a public dominion property to a
state patrimonial property, and, second, authorizing the President to sell
the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT
the temporary restraining order earlier issued by this Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi
property' has lost its nature as property of public dominion, and hence,
has become patrimonial property of the State. I understand that the
parties are agreed that it was property intended for "public service" within
the contemplation of paragraph (2), of Article 430, of the Civil Code, and
accordingly, land of State dominion, and beyond human commerce. The
lone issue is, in the light of supervening developments, that is non-user
thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it
available for sale to any interested buyer; the promulgation of Republic
Act No. 6657, the Comprehensive Agrarian Reform Law, making available
for the program's financing, State assets sold; the approval by the
President of the recommendation of the investigating committee formed
to study the property's utilization; and the issuance of Resolution No. 55 of
the Philippine Senate requesting for the deferment of its disposition it,
"Roppongi", is still property of the public dominion, and if it is not, how it
lost that character.
When land of the public dominion ceases to be one, or when the change
takes place, is a question our courts have debated early. In a 1906
decision, 1 it was held that property of the public dominion, a public plaza
in this instance, becomes patrimonial upon use thereof for purposes other
than a plaza. In a later case, 2 this ruling was reiterated. Likewise, it has
been held that land, originally private property, has become of public
dominion upon its donation to the town and its conversion and use as a
public plaza. 3 It is notable that under these three cases, the character of
the property, and any change occurring therein, depends on the actual
use to which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the
part of the Government, through the executive department or the
Legislative, to the effect that the land . . . is no longer needed for [public]
service- for public use or for special industries, [it] continue[s] to be part
of the public [dominion], not available for private expropriation or
ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road
abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw
the Roppongi property from public domain to make it alienable and a land
for legislative authority to allow the sale of the property" 7the majority lays
stress to the fact that: (1) An affirmative act executive or legislative
is necessary to reclassify property of the public dominion, and (2) a
legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of
property-whether public or patrimonial is predicated on the manner it is
actually used, or not used, and in the same breath, repudiates the
Government's position that the continuous non-use of "Roppongi", among
other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court,
among other things, that: (1) Property is presumed to be State property in
the absence of any showing to the contrary; 8 (2) With respect to forest
lands, the same continue to be lands of the public dominion unless and
until reclassified by the Executive Branch of the Government; 9 and (3) All
natural resources, under the Constitution, and subject to exceptional
cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr.
Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land
located in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter
referred to as the "Roppongi property") may be characterized as property
of public dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for
public use, and are intended for some public service -.
It might not be amiss however, to note that the appropriateness of trying
to bring within the confines of the simple threefold classification found in
Article 420 of the Civil Code ("property for public use property "intended
for some public service" and property intended "for the development of
the national wealth") all property owned by the Republic of the Philippines
whether found within the territorial boundaries of the Republic or located
within the territory of another sovereign State, is not self-evident. The first
item of the classification property intended for public use can scarcely
be properly applied to property belonging to the Republic but found within
the territory of another State. The third item of the classification property
intended for the development of the national wealth is illustrated, in
Article 339 of the Spanish Civil Code of 1889, by mines or mineral
properties. Again, mineral lands owned by a sovereign State are rarely, if
ever, found within the territorial base of another sovereign State. The task
of examining in detail the applicability of the classification set out in
Article 420 of our Civil Code to property that the Philippines happens to
own outside its own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of
laws that is, at the present time, before this Court. The issues before us
relate essentially to authority to sell the Roppongi property so far as
Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the
Roppongi property has been converted into patrimonial property or
property of the private domain of the State; and (b) assuming an
affirmative answer to (a), whether or not there is legal authority to dispose
of the Roppongi property.
I
Addressing the first issue of conversion of property of public dominion
intended for some public service, into property of the private domain of
the Republic, it should be noted that the Civil Code does not address the
question of who has authority to effect such conversion. Neither does the
Civil Code set out or refer to any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on
this point, as Justice Sarmiento has pointed out in his concurring opinion.
In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the
trial court should have declared the same no longer necessary for public
use or public purposes and which would, therefore, have become
disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:
Article 4 of the Law of Waters of 1866 provides that when a
portion of the shore is no longer washed by the waters of the
sea and is not necessary for purposes of public utility, or for
the establishment of special industries, or for coast-guard
service, the government shall declare it to be the property of
the owners of the estates adjacent thereto and as an
increment thereof. We believe that only the executive and
possibly the legislative departments have the authority and
the power to make the declaration that any land so gained by
the sea, is not necessary for purposes of public utility, or for
the establishment of special industries, or for coast-guard
service. If no such declaration has been made by said
departments, the lot in question forms part of the public
domain. (Natividad v. Director of Lands, supra.)
The reason for this pronouncement, according to this Tribunal
in the case of Vicente Joven y Monteverde v. Director of
Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily called
upon, nor indeed in a position to determine whether any
public land are to be used for the purposes specified in
Article 4 of the Law of Waters. Consequently, until a formal
declaration on the part of the Government, through the
executive department or the Legislature, to the effect that
the land in question is no longer needed for coast-guard
service, for public use or for special industries, they continue
to be part of the public domain not available for private
appropriation or ownership.(108 Phil. at 338-339; emphasis
supplied)
Thus, under Ignacio, either the Executive Department or the Legislative
Department may convert property of the State of public dominion into
patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of
the Civil Code simply states that: "Property of public dominion, when no
longer intended for public use or for public service, shall form part of the
patrimonial property of the State". I respectfully submit, therefore, that
the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts
of the Executive Department or of the Legislative Department which are
said to have effected such conversion.
The same legal situation exists in respect of conversion of property of
public dominion belonging to municipal corporations, i.e., local
governmental units, into patrimonial property of such entities.
In CebuOxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the City
Council of Cebu by resolution declared a certain portion of an existing
street as an abandoned road, "the same not being included in the city
development plan". Subsequently, by another resolution, the City Council
of Cebu authorized the acting City Mayor to sell the land through public
bidding. Although there was no formal and explicit declaration of
conversion of property for public use into patrimonial property, the
Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of petitioner's
application for registration of title was withdrawn from public
use, it follows that such withdrawn portion becomes
patrimonial property which can be the object of an ordinary
contract.
Article 422 of the Civil Code expressly provides that "Property
of public dominion, when no longer intended for public use of
for public service, shall form part of the patrimonial property
of the State."
 Besides, the Revised Charter of the City of Cebu heretofore
quoted, in very clear and unequivocal terms, states that
"Property thus withdrawn from public servitude may be used
or conveyed for any purpose for which other real property
belonging to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from
public use and its subsequent sale to the petitioner is
valid. Hence, the petitioner has a registrable title over the lot
in question. (66 SCRA at 484-; emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the
case of property owned by municipal corporations simple non-use or the
actual dedication of public property to some use other than "public use" or
some "public service", was sufficient legally to convert such property into
patrimonial property (Municipality of Oas v. Roa, 7 Phil. 20 [1906]-
Municipality of Hinunganan v. Director of Lands 24 Phil. 124 [1913];
Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).
I would also add that such was the case not only in respect of' property of
municipal corporations but also in respect of property of the State itself.
Manresa in commenting on Article 341 of the 1889 Spanish Civil Code
which has been carried over verbatim into our Civil Code by Article 422
thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en
fijar el momento en que los bienes de dominio publico dejan
de serlo. Si la Administracion o la autoridad competente
legislative realizan qun acto en virtud del cual cesa el destino
o uso publico de los bienes de que se trata naturalmente la
dificultad queda desde el primer momento resuelta. Hay un
punto de partida cierto para iniciar las relaciones juridicas a
que pudiera haber lugar Pero puede ocurrir que no haya
taldeclaracion expresa, legislativa or administrativa, y, sin
embargo, cesar de hecho el destino publico de los bienes;
ahora bien, en este caso, y para los efectos juridicos que
resultan de entrar la cosa en el comercio de los hombres,' se
entedera que se ha verificado la conversion de los bienes
patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo
italiano, por la afirmativa, y por nuestra parte creemos que
tal debe ser la soluciion. El destino de las cosas no depende
tanto de una declaracion expresa como del uso publico de las
mismas, y cuanda el uso publico cese con respecto de
determinados bienes, cesa tambien su situacion en el
dominio publico. Si una fortaleza en ruina se abandona y no
se repara, si un trozo de la via publica se abandona tambien
por constituir otro nuevo an mejores condiciones....ambos
bienes cesan de estar Codigo, y leyes especiales mas o
memos administrativas. (3 Manresa, Comentarios al Codigo
Civil Espanol, p. 128 [7a ed.; 1952) (Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by
the Government purported, expressly or definitely, to convert the
Roppongi property into patrimonial property of the Republic. Assuming
that to be the case, it is respectfully submitted that cumulative effect of
the executive acts here involved was to convert property originally
intended for and devoted to public service into patrimonial property of the
State, that is, property susceptible of disposition to and appropration by
private persons. These executive acts, in their totality if not each
individual act, make crystal clear the intent of the Executive Department
to effect such conversion. These executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a
Committee to study the disposition/utilization of the Government's
property in Japan, The Committee was composed of officials of the
Executive Department: the Executive Secretary; the Philippine
Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the
Committee recommended to the President the sale of one of the lots (the
lot specifically in Roppongi) through public bidding. On 4 October 1988,
the President approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note
informed the Japanese Ministry of Foreign Affairs of the Republic's
intention to dispose of the property in Roppongi. The Japanese
Government through its Ministry of Foreign Affairs replied that it
interposed no objection to such disposition by the Republic. Subsequently,
the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed
disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July
1987. Assuming that the majority opinion is right in saying that Executive
Order No. 296 is insufficient to authorize the sale of the Roppongi
property, it is here submitted with respect that Executive Order No. 296 is
more than sufficient to indicate an intention to convert the
property previously devoted to public service into patrimonial property
that is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or
for any other public purposes. Assuming (but only arguendo) that non-use
does not, by itself, automatically convert the property into patrimonial
property. I respectfully urge that prolonged non-use, conjoined with the
other factors here listed, was legally effective to convert the lot in
Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to
the effect that simple non-use or the actual dedication of public property
to some use other than public use or public service, was sufficient to
convert such property into patrimonial property of the local governmental
entity concerned. Also as pointed out above, Manresa reached the same
conclusion in respect of conversion of property of the public domain of the
State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from
the non-use alone especially if the non-use was attributable not to the
Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13). With
respect, it may be stressed that there is no abandonment involved here,
certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of
the public domain into property of the private domain of the State.
Moreover, if for fourteen (14) years, the Government did not see fit to
appropriate whatever funds were necessary to maintain the property in
Roppongi in a condition suitable for diplomatic representation purposes,
such circumstance may, with equal logic, be construed as a manifestation
of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive
Department for the sale of the lot in Roppongi. The circumstance that this
bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does
not, as a whole, show at least the intent on the part of the Executive
Department (with the knowledge of the Legislative Department) to
convert the property involved into patrimonial property that is susceptible
of being sold.
II
Having reached an affirmative answer in respect of the first issue, it is
necessary to address the second issue of whether or not there exists legal
authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative
Code of 1917 which reads as follows:
SEC. 79 (f). Conveyances and contracts to which the
Government is a party. In cases in which the Government
of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any
other property the value of which is in excess of one hundred
thousand pesos, the respective Department Secretary shall
prepare the necessary papers which, together with the
proper recommendations, shall be submitted to the Congress
of the Philippines for approval by the same. Such deed,
instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of
the Philippines unless the authority therefor be expressly
vested by law in another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has
been retained in Section 4, Book I of the Administrative Code of 1987
(Executive Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
 (1) For property belonging to and titled in the name of the
Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the Philippines
but titled in the name of any political subdivision or of any
corporate agency or instrumentality, by the executive head
of the agency or instrumentality. (Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of
obtaining specific approval of Congress when the price of the real
property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has
been deleted from Section 48 of the 1987 Administrative Code. What
Section 48 of the present Administrative Code refers to isauthorization by
law for the conveyance. Section 48 does not purport to be itself a source
of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on
behalf of the Government the deed of conveyance in case of such a
conveyance.
Secondly, examination of our statute books shows that authorization by
law for disposition of real property of the private domain of the
Government, has been granted by Congress both in the form of (a) a
general, standing authorization for disposition of patrimonial property of
the Government; and (b) specific legislation authorizing the disposition of
particular pieces of the Government's patrimonial property.
Standing legislative authority for the disposition of land of the private
domain of the Philippines is provided by Act No. 3038, entitled "An Act
Authorizing the Secretary of Agriculture and Natural Resources to Sell or
Lease Land of the Private Domain of the Government of the Philippine
Islands (now Republic of the Philippines)", enacted on 9 March 1922. The
full text of this statute is as follows:
Be it enacted by the Senate and House of Representatives of
the Philippines in Legislature assembled and by the authority
of the same:
SECTION 1. The Secretary of Agriculture and Natural
Resources (now Secretary of the Environment and Natural
Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine Islands,
or any part thereof, to such persons, corporations or
associations as are, under the provisions of Act Numbered
Twenty-eight hundred and seventy-four, (now Commonwealth
Act No. 141, as amended) known as the Public Land Act,
entitled to apply for the purchase or lease or agricultural
public land.
SECTION 2. The sale of the land referred to in the preceding
section shall, if such land is agricultural, be made in the
manner and subject to the limitations prescribed in chapters
five and six, respectively, of said Public Land Act, and if it be
classified differently, in conformity with the provisions of
chapter nine of said Act: Provided, however, That the land
necessary for the public service shall be exempt from the
provisions of this Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of
the private domain of the State, it must be noted that Chapter 9 of the old
Public Land Act (Act No. 2874) is now Chapter 9 of the present Public Land
Act (Commonwealth Act No. 141, as amended) and that both statutes
refer to: "any tract of land of the public domain which being neither timber
nor mineral land, is intended to be used forresidential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis
supplied).itc-asl In other words, the statute covers the sale or lease or
residential, commercial or industrial land of the private domain of the
State.
Implementing regulations have been issued for the carrying out of the
provisions of Act No. 3038. On 21 December 1954, the then Secretary of
Agriculture and Natural Resources promulgated Lands Administrative
Orders Nos. 7-6 and 7-7 which were entitled, respectively: "Supplementary
Regulations Governing the Sale of the Lands of the Private Domain of the
Republic of the Philippines"; and "Supplementary Regulations Governing
the Lease of Lands of Private Domain of the Republic of the Philippines"
(text in 51 O.G. 28-29 [1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68)
years old, is still in effect and has not been repealed. 1
Specific legislative authorization for disposition of particular patrimonial
properties of the State is illustrated by certain earlier statutes. The first of
these was Act No. 1120, enacted on 26 April 1904, which provided for the
disposition of the friar lands, purchased by the Government from the
Roman Catholic Church, to bona fide settlers and occupants thereof or to
other persons. In Jacinto v. Director of Lands(49 Phil. 853 [1926]), these
friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of
the San Lazaro Estate located in the City of Manila, which had also been
purchased by the Government from the Roman Catholic Church. In January
1916, Act No. 2555 amended Act No. 2360 by including therein all lands
and buildings owned by the Hospital and the Foundation of San Lazaro
theretofor leased by private persons, and which were also acquired by the
Philippine Government.
After the enactment in 1922 of Act No. 3038, there appears, to my
knowledge, to be only one statute authorizing the President to dispose of
a specific piece of property. This statute is Republic Act No. 905, enacted
on 20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the
National Government to the National Press Club of the Philippines, and to
other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that
Republic Act No. 905 was not an outright disposition in perpetuity of the
property involved- it provided for reversion of the property to the National
Government in case the National Press Club stopped using it for its
headquarters. What Republic Act No. 905 authorized was really
a donation, and not a sale.
The basic submission here made is that Act No. 3038 provides standing
legislative authorization for disposition of the Roppongi property which, in
my view, has been converted into patrimonial property of the Republic. 2
To some, the submission that Act No. 3038 applies not only to lands of the
private domain of the State located in the Philippines but also to
patrimonial property found outside the Philippines, may appear strange or
unusual. I respectfully submit that such position is not any more unusual
or strange than the assumption that Article 420 of the Civil Code applies
not only to property of the Republic located within Philippine territory but
also to property found outside the boundaries of the Republic.
It remains to note that under the well-settled doctrine that heads of
Executive Departments are alter egosof the President (Villena v. Secretary
of the Interior, 67 Phil. 451 [1939]), and in view of the constitutional
power of control exercised by the President over department heads
(Article VII, Section 17,1987 Constitution), the President herself may carry
out the function or duty that is specifically lodged in the Secretary of the
Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains
the power to approve or disapprove the exercise of that function or duty
when done by the Secretary of Environment and Natural Resources.
It is hardly necessary to add that the foregoing analyses and submissions
relate only to the austere question of existence of legal power or authority.
They have nothing to do with much debated questions of wisdom or
propriety or relative desirability either of the proposed disposition itself or
of the proposed utilization of the anticipated proceeds of the property
involved. These latter types of considerations He within the sphere of
responsibility of the political departments of government the Executive
and the Legislative authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in both
G.R. Nos. 92013 and 92047.
Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.
Separate Opinions
CRUZ, J., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez
and will add the following observations only for emphasis.
It is clear that the respondents have failed to show the President's legal
authority to sell the Roppongi property. When asked to do so at the
hearing on these petitions, the Solicitor General was at best ambiguous,
although I must add in fairness that this was not his fault. The fact is that
there is -no such authority. Legal expertise alone cannot conjure that
statutory permission out of thin air.
Exec. Order No. 296, which reads like so much legislative, double talk,
does not contain such authority. Neither does Rep. Act No. 6657, which
simply allows the proceeds of the sale of our properties abroad to be used
for the comprehensive agrarian reform program. Senate Res. No. 55 was a
mere request for the deferment of the scheduled sale of tile Roppongi
property, possibly to stop the transaction altogether; and ill any case it is
not a law. The sale of the said property may be authorized only by
Congress through a duly enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of
laws and not of men, where every public official, from the lowest to the
highest, can act only by virtue of a valid authorization. I am happy to note
that in the several cases where this Court has ruled against her, the
President of the Philippines has submitted to this principle with becoming
grace.
PADILLA, J., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to
make a few observations which could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it
is Congress that lays down or determines policies. The President executes
such policies. The policies determined by Congress are embodied in
legislative enactments that have to be approved by the President to
become law. The President, of course, recommends to Congress the
approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.
The judiciary interprets the laws and, in appropriate cases, determines
whether the laws enacted by Congress and approved by the President,
and presidential acts implementing such laws, are in accordance with the
Constitution.
The Roppongi property was acquired by the Philippine government
pursuant to the reparations agreement between the Philippine and
Japanese governments. Under such agreement, this property was acquired
by the Philippine government for a specific purpose, namely, to serve as
the site of the Philippine Embassy in Tokyo, Japan. Consequently, Roppongi
is a property of public dominion and intended for public service, squarely
falling within that class of property under Art. 420 of the Civil Code, which
provides:
Art. 420. The following things are property of public dominion
:
(1) ...
(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. (339a)
Public dominion property intended for public service cannot be alienated
unless the property is first transformed into private property of the state
otherwise known as patrimonial property of the state. 1 The transformation
of public dominion property to state patrimonial property involves, to my
mind, a policy decision. It is a policy decision because the treatment of the
property varies according to its classification. Consequently, it is Congress
which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no
such decision or declaration.
Moreover, the sale of public property (once converted from public
dominion to state patrimonial property) must be approved by Congress,
for this again is a matter of policy (i.e. to keep or dispose of the property).
Sec. 48, Book 1 of the Administrative Code of 1987 provides:
SEC. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
 law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the
name of the Republic of the Philippines, by the
President, unless the authority therefor is
expressly vested by law in another officer.
(2) For property belonging to the Republic of the
Philippines but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the
agency or instrumentality. (Emphasis supplied)
But the record is bare of any congressional decision or approval to sell
Roppongi. The record is likewise bare of any congressional authority
extended to the President to sell Roppongi thru public bidding or
otherwise.
It is therefore, clear that the President cannot sell or order the sale of
Roppongi thru public bidding or otherwise without a prior congressional
approval, first, converting Roppongi from a public dominion property to a
state patrimonial property, and, second, authorizing the President to sell
the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT
the temporary restraining order earlier issued by this Court.
SARMIENTO, J., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi
property' has lost its nature as property of public dominion, and hence,
has become patrimonial property of the State. I understand that the
parties are agreed that it was property intended for "public service" within
the contemplation of paragraph (2), of Article 430, of the Civil Code, and
accordingly, land of State dominion, and beyond human commerce. The
lone issue is, in the light of supervening developments, that is non-user
thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it
available for sale to any interested buyer; the promulgation of Republic
Act No. 6657, the Comprehensive Agrarian Reform Law, making available
for the program's financing, State assets sold; the approval by the
President of the recommendation of the investigating committee formed
to study the property's utilization; and the issuance of Resolution No. 55 of
the Philippine Senate requesting for the deferment of its disposition it,
"Roppongi", is still property of the public dominion, and if it is not, how it
lost that character.
When land of the public dominion ceases to be one, or when the change
takes place, is a question our courts have debated early. In a 1906
decision, 1 it was held that property of the public dominion, a public plaza
in this instance, becomes patrimonial upon use thereof for purposes other
than a plaza. In a later case, 2 this ruling was reiterated. Likewise, it has
been held that land, originally private property, has become of public
dominion upon its donation to the town and its conversion and use as a
public plaza. 3 It is notable that under these three cases, the character of
the property, and any change occurring therein, depends on the actual
use to which it is dedicated. 4
Much later, however, the Court held that "until a formal declaration on the
part of the Government, through the executive department or the
Legislative, to the effect that the land . . . is no longer needed for [public]
service- for public use or for special industries, [it] continue[s] to be part
of the public [dominion], not available for private expropriation or
ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road
abandoned and thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw
the Roppongi property from public domain to make it alienable and a land
for legislative authority to allow the sale of the property" 7the majority lays
stress to the fact that: (1) An affirmative act executive or legislative
is necessary to reclassify property of the public dominion, and (2) a
legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of
property-whether public or patrimonial is predicated on the manner it is
actually used, or not used, and in the same breath, repudiates the
Government's position that the continuous non-use of "Roppongi", among
other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court,
among other things, that: (1) Property is presumed to be State property in
the absence of any showing to the contrary; 8 (2) With respect to forest
lands, the same continue to be lands of the public dominion unless and
until reclassified by the Executive Branch of the Government; 9 and (3) All
natural resources, under the Constitution, and subject to exceptional
cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.
FELICIANO, J., dissenting
With regret, I find myself unable to share the conclusions reached by Mr.
Justice Hugo E. Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land
located in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter
referred to as the "Roppongi property") may be characterized as property
of public dominion, within the meaning of Article 420 (2) of the Civil Code:
[Property] which belong[s] to the State, without being for
public use, and are intended for some public service -.
It might not be amiss however, to note that the appropriateness of trying
to bring within the confines of the simple threefold classification found in
Article 420 of the Civil Code ("property for public use property "intended
for some public service" and property intended "for the development of
the national wealth") all property owned by the Republic of the Philippines
whether found within the territorial boundaries of the Republic or located
within the territory of another sovereign State, is not self-evident. The first
item of the classification property intended for public use can scarcely
be properly applied to property belonging to the Republic but found within
the territory of another State. The third item of the classification property
intended for the development of the national wealth is illustrated, in
Article 339 of the Spanish Civil Code of 1889, by mines or mineral
properties. Again, mineral lands owned by a sovereign State are rarely, if
ever, found within the territorial base of another sovereign State. The task
of examining in detail the applicability of the classification set out in
Article 420 of our Civil Code to property that the Philippines happens to
own outside its own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of
laws that is, at the present time, before this Court. The issues before us
relate essentially to authority to sell the Roppongi property so far as
Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the
Roppongi property has been converted into patrimonial property or
property of the private domain of the State; and (b) assuming an
affirmative answer to (a), whether or not there is legal authority to dispose
of the Roppongi property.
I
Addressing the first issue of conversion of property of public dominion
intended for some public service, into property of the private domain of
the Republic, it should be noted that the Civil Code does not address the
question of who has authority to effect such conversion. Neither does the
Civil Code set out or refer to any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on
this point, as Justice Sarmiento has pointed out in his concurring opinion.
In Ignacio v. Director of Lands (108 Phils. 335 [1960]), petitioner Ignacio
argued that if the land in question formed part of the public domain, the
trial court should have declared the same no longer necessary for public
use or public purposes and which would, therefore, have become
disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:
Article 4 of the Law of Waters of 1866 provides that when a
portion of the shore is no longer washed by the waters of the
sea and is not necessary for purposes of public utility, or for
the establishment of special industries, or for coast-guard
service, the government shall declare it to be the property of
the owners of the estates adjacent thereto and as an
increment thereof. We believe that only the executive and
possibly the legislative departments have the authority and
the power to make the declaration that any land so gained by
the sea, is not necessary for purposes of public utility, or for
 the establishment of special industries, or for coast-guard
service. If no such declaration has been made by said
departments, the lot in question forms part of the public
domain. (Natividad v. Director of Lands, supra.)
The reason for this pronouncement, according to this Tribunal
in the case of Vicente Joven y Monteverde v. Director of
Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily called
upon, nor indeed in a position to determine whether any
public land are to be used for the purposes specified in
Article 4 of the Law of Waters. Consequently, until a formal
declaration on the part of the Government, through the
executive department or the Legislature, to the effect that
the land in question is no longer needed for coast-guard
service, for public use or for special industries, they continue
to be part of the public domain not available for private
appropriation or ownership.(108 Phil. at 338-339; emphasis
supplied)
Thus, under Ignacio, either the Executive Department or the Legislative
Department may convert property of the State of public dominion into
patrimonial property of the State. No particular formula or procedure of
conversion is specified either in statute law or in case law. Article 422 of
the Civil Code simply states that: "Property of public dominion, when no
longer intended for public use or for public service, shall form part of the
patrimonial property of the State". I respectfully submit, therefore, that
the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts
of the Executive Department or of the Legislative Department which are
said to have effected such conversion.
The same legal situation exists in respect of conversion of property of
public dominion belonging to municipal corporations, i.e., local
governmental units, into patrimonial property of such entities.
In CebuOxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the City
Council of Cebu by resolution declared a certain portion of an existing
street as an abandoned road, "the same not being included in the city
development plan". Subsequently, by another resolution, the City Council
of Cebu authorized the acting City Mayor to sell the land through public
bidding. Although there was no formal and explicit declaration of
conversion of property for public use into patrimonial property, the
Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of petitioner's
application for registration of title was withdrawn from public
use, it follows that such withdrawn portion becomes
patrimonial property which can be the object of an ordinary
contract.
Article 422 of the Civil Code expressly provides that "Property
of public dominion, when no longer intended for public use of
for public service, shall form part of the patrimonial property
of the State."
Besides, the Revised Charter of the City of Cebu heretofore
quoted, in very clear and unequivocal terms, states that
"Property thus withdrawn from public servitude may be used
or conveyed for any purpose for which other real property
belonging to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from
public use and its subsequent sale to the petitioner is
valid. Hence, the petitioner has a registrable title over the lot
in question. (66 SCRA at 484-; emphasis supplied)
Thus, again as pointed out by Sarmiento J., in his separate opinion, in the
case of property owned by municipal corporations simple non-use or the
actual dedication of public property to some use other than "public use" or
some "public service", was sufficient legally to convert such property into
patrimonial property (Municipality of Oas v. Roa, 7 Phil. 20 [1906]-
Municipality of Hinunganan v. Director of Lands 24 Phil. 124 [1913];
Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).
I would also add that such was the case not only in respect of' property of
municipal corporations but also in respect of property of the State itself.
Manresa in commenting on Article 341 of the 1889 Spanish Civil Code
which has been carried over verbatim into our Civil Code by Article 422
thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en
fijar el momento en que los bienes de dominio publico dejan
de serlo. Si la Administracion o la autoridad competente
legislative realizan qun acto en virtud del cual cesa el destino
o uso publico de los bienes de que se trata naturalmente la
dificultad queda desde el primer momento resuelta. Hay un
punto de partida cierto para iniciar las relaciones juridicas a
que pudiera haber lugar Pero puede ocurrir que no haya
taldeclaracion expresa, legislativa or administrativa, y, sin
embargo, cesar de hecho el destino publico de los bienes;
ahora bien, en este caso, y para los efectos juridicos que
resultan de entrar la cosa en el comercio de los hombres,' se
entedera que se ha verificado la conversion de los bienes
patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo
italiano, por la afirmativa, y por nuestra parte creemos que
tal debe ser la soluciion. El destino de las cosas no depende
tanto de una declaracion expresa como del uso publico de las
mismas, y cuanda el uso publico cese con respecto de
determinados bienes, cesa tambien su situacion en el
dominio publico. Si una fortaleza en ruina se abandona y no
se repara, si un trozo de la via publica se abandona tambien
por constituir otro nuevo an mejores condiciones....ambos
bienes cesan de estar Codigo, y leyes especiales mas o
memos administrativas. (3 Manresa, Comentarios al Codigo
Civil Espanol, p. 128 [7a ed.; 1952) (Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by
the Government purported, expressly or definitely, to convert the
Roppongi property into patrimonial property of the Republic. Assuming
that to be the case, it is respectfully submitted that cumulative effect of
the executive acts here involved was to convert property originally
intended for and devoted to public service into patrimonial property of the
State, that is, property susceptible of disposition to and appropration by
private persons. These executive acts, in their totality if not each
individual act, make crystal clear the intent of the Executive Department
to effect such conversion. These executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a
Committee to study the disposition/utilization of the Government's
property in Japan, The Committee was composed of officials of the
Executive Department: the Executive Secretary; the Philippine
Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the
Committee recommended to the President the sale of one of the lots (the
lot specifically in Roppongi) through public bidding. On 4 October 1988,
the President approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note
informed the Japanese Ministry of Foreign Affairs of the Republic's
intention to dispose of the property in Roppongi. The Japanese
Government through its Ministry of Foreign Affairs replied that it
interposed no objection to such disposition by the Republic. Subsequently,
the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed
disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July
1987. Assuming that the majority opinion is right in saying that Executive
Order No. 296 is insufficient to authorize the sale of the Roppongi
property, it is here submitted with respect that Executive Order No. 296 is
more than sufficient to indicate an intention to convert the
property previously devoted to public service into patrimonial property
that is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or
for any other public purposes. Assuming (but only arguendo) that non-use
does not, by itself, automatically convert the property into patrimonial
property. I respectfully urge that prolonged non-use, conjoined with the
other factors here listed, was legally effective to convert the lot in
Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to
the effect that simple non-use or the actual dedication of public property
to some use other than public use or public service, was sufficient to
convert such property into patrimonial property of the local governmental
entity concerned. Also as pointed out above, Manresa reached the same
conclusion in respect of conversion of property of the public domain of the
State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from
the non-use alone especially if the non-use was attributable not to the
Government's own deliberate and indubitable will but to lack of financial
support to repair and improve the property" (Majority Opinion, p. 13). With
respect, it may be stressed that there is no abandonment involved here,
certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of
the public domain into property of the private domain of the State.
Moreover, if for fourteen (14) years, the Government did not see fit to
appropriate whatever funds were necessary to maintain the property in
Roppongi in a condition suitable for diplomatic representation purposes,
such circumstance may, with equal logic, be construed as a manifestation
of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive
Department for the sale of the lot in Roppongi. The circumstance that this
bidding was not successful certainly does not argue against an intent to
convert the property involved into property that is disposable by bidding.
The above set of events and circumstances makes no sense at all if it does
not, as a whole, show at least the intent on the part of the Executive
Department (with the knowledge of the Legislative Department) to
convert the property involved into patrimonial property that is susceptible
of being sold.
II
Having reached an affirmative answer in respect of the first issue, it is
necessary to address the second issue of whether or not there exists legal
authority for the sale or disposition of the Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative
Code of 1917 which reads as follows:
SEC. 79 (f). Conveyances and contracts to which the
Government is a party. In cases in which the Government
of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any
other property the value of which is in excess of one hundred
thousand pesos, the respective Department Secretary shall
prepare the necessary papers which, together with the
proper recommendations, shall be submitted to the Congress
of the Philippines for approval by the same. Such deed,
instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of
the Philippines unless the authority therefor be expressly
vested by law in another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has
been retained in Section 4, Book I of the Administrative Code of 1987
(Executive Order No. 292)" which reads:
SEC. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the
Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the Philippines
but titled in the name of any political subdivision or of any
corporate agency or instrumentality, by the executive head
of the agency or instrumentality. (Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of
obtaining specific approval of Congress when the price of the real
property being disposed of is in excess of One Hundred Thousand Pesos
(P100,000.00) under the Revised Administrative Code of 1917, has
been deleted from Section 48 of the 1987 Administrative Code. What
Section 48 of the present Administrative Code refers to isauthorization by
law for the conveyance. Section 48 does not purport to be itself a source
of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on
behalf of the Government the deed of conveyance in case of such a
conveyance.
Secondly, examination of our statute books shows that authorization by
law for disposition of real property of the private domain of the
Government, has been granted by Congress both in the form of (a) a
general, standing authorization for disposition of patrimonial property of
the Government; and (b) specific legislation authorizing the disposition of
particular pieces of the Government's patrimonial property.
Standing legislative authority for the disposition of land of the private
domain of the Philippines is provided by Act No. 3038, entitled "An Act
Authorizing the Secretary of Agriculture and Natural Resources to Sell or
Lease Land of the Private Domain of the Government of the Philippine
Islands (now Republic of the Philippines)", enacted on 9 March 1922. The
full text of this statute is as follows:
Be it enacted by the Senate and House of Representatives of
the Philippines in Legislature assembled and by the authority
of the same:
SECTION 1. The Secretary of Agriculture and Natural
Resources (now Secretary of the Environment and Natural
Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine Islands,
or any part thereof, to such persons, corporations or
associations as are, under the provisions of Act Numbered
Twenty-eight hundred and seventy-four, (now Commonwealth
Act No. 141, as amended) known as the Public Land Act,
entitled to apply for the purchase or lease or agricultural
public land.
SECTION 2. The sale of the land referred to in the preceding
section shall, if such land is agricultural, be made in the
manner and subject to the limitations prescribed in chapters
five and six, respectively, of said Public Land Act, and if it be
classified differently, in conformity with the provisions of
chapter nine of said Act: Provided, however, That the land
necessary for the public service shall be exempt from the
provisions of this Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of
the private domain of the State, it must be noted that Chapter 9 of the old
Public Land Act (Act No. 2874) is now Chapter 9 of the present Public Land
Act (Commonwealth Act No. 141, as amended) and that both statutes
refer to: "any tract of land of the public domain which being neither timber
nor mineral land, is intended to be used forresidential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis
supplied). In other words, the statute covers the sale or lease or
residential, commercial or industrial land of the private domain of the
State.
Implementing regulations have been issued for the carrying out of the
provisions of Act No. 3038. On 21 December 1954, the then Secretary of
Agriculture and Natural Resources promulgated Lands Administrative
Orders Nos. 7-6 and 7-7 which were entitled, respectively: "Supplementary
Regulations Governing the Sale of the Lands of the Private Domain of the
Republic of the Philippines"; and "Supplementary Regulations Governing
the Lease of Lands of Private Domain of the Republic of the Philippines"
(text in 51 O.G. 28-29 [1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68)
years old, is still in effect and has not been repealed. 1
Specific legislative authorization for disposition of particular patrimonial
properties of the State is illustrated by certain earlier statutes. The first of
these was Act No. 1120, enacted on 26 April 1904, which provided for the
disposition of the friar lands, purchased by the Government from the
Roman Catholic Church, to bona fide settlers and occupants thereof or to
other persons. In Jacinto v. Director of Lands(49 Phil. 853 [1926]), these
friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of
the San Lazaro Estate located in the City of Manila, which had also been
purchased by the Government from the Roman Catholic Church. In January
1916, Act No. 2555 amended Act No. 2360 by including therein all lands
and buildings owned by the Hospital and the Foundation of San Lazaro
theretofor leased by private persons, and which were also acquired by the
Philippine Government.
After the enactment in 1922 of Act No. 3038, there appears, to my
knowledge, to be only one statute authorizing the President to dispose of
a specific piece of property. This statute is Republic Act No. 905, enacted
on 20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the For all the foregoing, I vote to dismiss the Petitions for Prohibition in both
National Government to the National Press Club of the Philippines, and to G.R. Nos. 92013 and 92047.
other recognized national associations of professionals with academic
standing, for the nominal price of P1.00. It appears relevant to note that Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.
Republic Act No. 905 was not an outright disposition in perpetuity of the
property involved- it provided for reversion of the property to the National
Government in case the National Press Club stopped using it for its
headquarters. What Republic Act No. 905 authorized was really
a donation, and not a sale.

The basic submission here made is that Act No. 3038 provides standing
legislative authorization for disposition of the Roppongi property which, in
my view, has been converted into patrimonial property of the Republic. 2
Republic of the Philippines
To some, the submission that Act No. 3038 applies not only to lands of the SUPREME COURT
private domain of the State located in the Philippines but also to Manila
patrimonial property found outside the Philippines, may appear strange or
unusual. I respectfully submit that such position is not any more unusual
EN BANC
or strange than the assumption that Article 420 of the Civil Code applies
not only to property of the Republic located within Philippine territory but
G.R. No. L-17240 January 31, 1962
also to property found outside the boundaries of the Republic.
CLEMENCIA B. VDA. DE VILLONGCO, ET AL., petitioners-appellees,
It remains to note that under the well-settled doctrine that heads of
vs.
Executive Departments are alter egosof the President (Villena v. Secretary
HON. FLORENCIO MORENO, in his capacity as Secretary,
of the Interior, 67 Phil. 451 [1939]), and in view of the constitutional
Department of Public Works and Communications
power of control exercised by the President over department heads
and BENIGNO MUSNI, respondents-appellants.
(Article VII, Section 17,1987 Constitution), the President herself may carry
out the function or duty that is specifically lodged in the Secretary of the
Department of Environment and Natural Resources (Araneta v. E. Voltaire Garcia for petitioners-appellees.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains Office of the Solicitor General for respondents-appellants.
the power to approve or disapprove the exercise of that function or duty
when done by the Secretary of Environment and Natural Resources. LABRADOR, J.:

It is hardly necessary to add that the foregoing analyses and submissions
relate only to the austere question of existence of legal power or authority.
They have nothing to do with much debated questions of wisdom or
propriety or relative desirability either of the proposed disposition itself or
of the proposed utilization of the anticipated proceeds of the property
involved. These latter types of considerations He within the sphere of
responsibility of the political departments of government the Executive
and the Legislative authorities.
The above-entitled case involves the application and interpretation of
Republic Act. No. 2056, entitled "An Act to prohibit, remove and/or
demolish the construction of dams, dikes or any works in public navigable
waters or waterways and in communal fishing grounds, to regulate works
in such waters or waterways and in communal fishing grounds, and to
provide penalties for its violation, and for other purposes." The pertinent
provisions thereof in issue are Section 1 and the first part of Section 2,
which read as follows:
 Sec. 2. When it is found by the secretary of Public Works and
Communications, after due notice and hearing, that any dam, dike
or any other works now existing or may hereinafter be constructed
encroaches into any public navigable river, stream, coastal waters
and any other public navigable waters or waterways, or that they
are contructed in areas declared as communal fishing grounds, he
shall have the authority to order the removal of any such works and
give the party concerned a period not to exceed thirty days for the
removal of the same; Provide, That fishpond constructions or works
on communal fishing grounds introduced in good faith before the
areas were proclaimed as fishing grounds shall be exempted from
the provisions of this Act, provided such constructions or works do
not obstruct or impede the free passage of any navigable river,
stream, or would not cause inundations of agricultural areas....".
The facts involved in the case may be briefly stated as follows: On August
15, 1958, Senator Rogelio de la Rosa complained with the Secretary of
Public Works and Communications against several fishpond owners in
Macabebe, Pampanga, among whom is petitioner herein Clemencia B.
Vda. de Villongco. The complaint charges that has appropriated a portion
of the coastal waters of Pampanga, locally known as "Pantion", converting
portions of the coastal areas into fishponds. Investigations were
conducted under the authority of the Secretary, who thereafter rendered
the following decision: .
Complainants allege that the conversion of this area into a fishpond
by the respondents deprived them of the uses of the area as a
fishing ground and for navigation. On the other hand, the
respondents contend that this area is owned by them as shown by
the title above-adverted to.
A relocation survey, based on the title, was made on the area in
question to determine whether the fishpond constructions and/or
works of the respondents are within the titled property. Said survey
shows that a portion of Manila Bay covering an area of
approximately 24,860 square meters was included as part of the
fishpond by the respondents.
The defense of respondents that the area in question being a
private property, is not subject to the provisions of Republic Act
2056, deserves consideration. The area being covered by a Torrens
Certificate of Title, the respondent's title thereon is indefeasible and
imprescriptible. As sufficiently established, the area in question is a
foreshore land and is disposable under Section 59 of the Public Land
Law. However, of the enclosed portion, the area of 24,860 square
meters has been conclusively shown by the relocation survey as not
within the boundaries of the titled property. Be that as it may, this
portion is still of public ownership and the complainants should,
therefore, not be deprived of its uses as a fishing ground and
passageway.
PREMISES CONSIDERED, it is hereby ordered that the respondents
remove their fishpond works and/or constructions insofar as it
encroaches upon that portion of Manila Bay covering the area of
approximately 24,860 square meters and restore the original
condition of said coastal water within thirty (30) days from receipt
of this decision: otherwise, this Office or its duly authorized
representative shall remove the same at the expense of the
respondents within ten (10) days following the expiration of the
thirty-day period, without prejudice to instituting judicial action
against them under the provisions of Section 3 of R. A. 2056."
(Annex "C", pp. 20-21) .
Clemencia B. Vda. de Villongco filed a motion to reconsider the decision,
but the same was denied by the Undersecretary in a resolution dated
August 5, 1959. Thereupon, on August 20, 1959, petitioner herein filed the
present suit in the Court of First Instance of Rizal, calling attention to the
above proceedings, especially the decision of the Secretary and the
resolution of the Undersecretary denying the motion for reconsideration,
and arguing that Republic Act. No. 2056, under which the Secretary issued
the order above-quoted, is null and void as to conferring upon the
Secretary power to decide as to whether or not the dikes and other
constructions encroach upon coastal waters, public streams, communal
fishing grounds, etc.; that the Undersecretary acted without or in he
excess of jurisdiction in delegating reception of evidence, in causing
resurvey of the premises by a person who is not a duly licensed surveyor,
in violation of the agreement to that effect, in the absence of petitioner
Villongco; that the Secretary's order of demolition of the fishponds was
beyond the jurisdiction of said Secretary and is unconstitutional as an
encroachment upon the private rights of the petitioners, etc. Upon the
presentation of the petition, the court below issued a writ of preliminary
injunction against the enforcement of the Secretary's disputed order. Trial
of the case was had, with the submission of a stipulation of facts, with
exhibits, entered into between the parties, after which the court, through
Hon. Andres Reyes, rendered a decision declaring that the Secretary of
Public Works and Communications was in error in ordering the demolition
of the dikes and other constructions of the petitioner Vda. de Villongco, on
the ground that said dikes and other constructions fall under the exception
mentioned in Section 2 of Republic Act. No. 2056. We quote the order
herein:.
Without the necessity of resolving the various incidental issues
raised by the parties, the Court is of the opinion that the case at bar
hinges on only one vital issue-that is whether the petitioners
properly fall within the benefits of the exemption expressly provided
for under section 2 of Republic Act 2056, to wit:.
PROVIDED, That fishpond constructions on communal fishing
grounds introduced in good faith before the areas were
proclaimed as fishing grounds shall be exempted from the
provisions of this Act, provided such constructions or works
do not obstruct or impede the free passage of any navigable
river, stream, or would not cause inundations of agricultural
areas..
AND PROVIDED, FINALLY, that the removal of any such works
shall not impair fishponds completed or about to be
completed which do not encroach or obstruct any public
navigable river or stream and/or which would not cause
inundations of agricultural areas and which have been
constructed in good faith before the area was declared
communal fishing grounds.' .
A perusal of the above provisions reveals that the petitioners
herein would be entitled to the benefits of said exemptions
provided the following requisites are present: first, that the
constructions or works in question were constructed in good
faith before the areas were declared communal fishing
grounds; second, that said constructions or works would not
impede the free passage of any navigable river or stream;
and lastly, that the same would not cause inundations of
agricultural areas.
There is no question that the constructions of petitioners
would not cause inundations of agricultural areas. This was
admitted in the answer of respondent Secretary and later
included in the stipulation of facts. There is also no dispute as
to the fact that the same were constructed in good faith
before June 13, 1958 when Republic Act No. 2056 took effect
and therefore before any fishing ground could have been
declared communal." (pp. 2-3, of the decision).
The respondent Secretary has appealed from the above decision, alleging
the following errors: .
I
THE LOWER COURT ERRED IN GIVING DUE COURSE TO THE INSTANT CASE
FOR CERTIORARIAND PROHIBITION AND IN DECIDING THE SAME WITHOUT
CONSIDERING THE ISSUES INVOLVED THEREIN.
II
THE LOWER COURT ERRED IN INTERPRETING THE PROVISIONS OF
REPUBLIC ACT NO. 2056 WHICH, OTHERWISE, IS CLEAR AND
UNAMBIGUOUS, AND IN CONSTRUING THE EXEMPTING CLAUSE PROVIDED
IN SEC. 2 THEREOF TO INCLUDE FISHPOND CONSTRUCTIONS OR WORK
OUTSIDE THE AREAS DECLARED AS COMMUNAL FISHING GROUNDS.
III
THE LOWER COURT ERRED IN HOLDING THAT THE APPELLEES FAIL WITHIN
SAID EXEMPTING PROVISION OF SECTION 2 OF REPUBLIC ACT NO. 2056.
IV
THE LOWER COURT ERRED IN ISSUING EX-PARTE THE WRIT OF
PRELIMINARY INJUNCTION, AND LATER MAKING IT PERMANENT..
V
THE LOWER COURT ERRED IN GRANTING THE INSTANT PETITION
FOR CERTIORARI AND PROHIBITION.
An examination of the facts adduced at the trial shows that petitioner Vda.
de Villongco is the owner of a fishpond situated in Macabebe, Pampanga,
covered by Transfer Certificate of Title No. 7087 dated January 28, 1952,
containing an area of 90 hectares, 26 ares and 54 centares, bounded on
the SW and W by the Manila Bay and on the NW by the Manila Bay and
the Supang Maruginas (Annex B-Stipulation). A competent surveyor in the
person of the Dredge Operation Supervisor of the Department of Public
Works conducted an investigation and submitted a report (Annex E of the
Stipulation of Facts), with an accompanying sketch of the fishpond
showing the disputed portion, included within the dike of the petitioner.
The existing dike of the petitioner is a straight line from point A of Annex
E-1 to point D, and it includes a portion of public land indicated in red
(portion B-c in said Annex E-1, containing an area of 2 hectares, 48 ares
and 60 centares (24,860 square meters). The surveyor found the
following:
It seems that the average depth along the sea side of the dike A-D
as shown in the attached plan may be about one (1) foot M. L. L.
W.1wph1.t in the provinces of Pampanga, Bulacan and Rizal are waterways,
That section B-C of the dike is along the prolongation of section A-B
towards point C and that no part of dike B-C protruding towards the
sea.
That navigation along dike A-D during low tide is limited to vessels
with a draft of about one foot.
That section B-C of the dike will obstruct navigation towards a
public domain (shaded red in the attached plan) with an indicated
area of about 24,880 square meters.
In my opinion, section B-C of the dike will not obstruct navigation
along or parallel to it." (Annex E - Stipulation) .
The court below held that said portion falls under the exception of Section
2 of Republic Act No. 2056, because it does not interfere with navigation
and does not produce inundation and the dikes were constructed before
the area was a fishing ground. (The parties have stipulated that there is
yet no order declaring the area as a fishing ground.)
A study of the provisions of Republic Act No. 2056, especially the sections
we quote above disclose that the authority granted the Secretary of Public
Works and Communications is to declare that the construction or building
of dams, dikes or any other works encroaching on navigable rivers,
streams, or any other navigable public waters or waterways is prohibited
and to order their removal or demolition. The area included in the dikes of
the petitioner, indicated in the red shaded portion in the Stipulation, Exh.
E-1, was not a part of the land titled in the name of the petitioner, as
shown by the fact that the titled land bounds on the W by a line from point
1 to point 19, point 19 to point 20 and point 20 to point 21 of Lot No. 2
indicated in the plan of the land. Said red shaded portion, which contains
an area of 24,860 square meters, is clearly, therefore, a portion of the
Manila Bay area or coastal area, which the petitioner has evidently
included within her dikes, perhaps to straighten the same. As the shaded
portion has a depth of 1 foot and low tide, it is evidently navigable at high
tide for vessels of deeper draft of 1 foot and at low tide navigable to those
of 1 foot draft. It is, therefore, a part of the water ways, taking into
account that the Manila Bay area, especially those bordering the fishponds
especially used by fishermen and fishpond owners to bring in their catch
to market. The shaded area, therefore, is a public property, not
susceptible to appropriation by any private individual, not only because it
belongs to the State but also because it belongs to the State but also
because it is used as a waterway..
Article 1. The following are part of the National domain open to
public use:
xxx xxx xxx
2. The coast sea, that is, the maritime zone encircling the coasts, to
the full width recognized by international law. ...." (Art. 1,
paragraphs 1 and 2, Spanish Law of Waters; see also Insular
Government v. Aldecoa, 19 Phil. 505. 510.) .
The error of the court below lies in the fact that it considered the coast
sea as falling under the exception of Section 2. But an examination of
Section 2 shows that coastal waters or public waterways are not included
in the exception. Only those works constructed on communal fishing
grounds are exempted; constructions on coastal waters or public
waterways are not subject to the exception. Aside from that fact, no
inundation or free passage of any navigable river can take place on the
coastal waters or waterways, so coastal waters are not subject to the
exception. The exception, apparently, applies only to constructions on
navigable rivers, when these constructions do not impede or obstruct the
passage of the river and when they do not cause inundation of agricultural
areas. Coastal waters are not within the contemplation of the exception
because there is no navigable river or stream in coastal waters and
neither may there be an inundation therein.

We, therefore, find that the court below erred in its decision that the
constructions of the petitioner, subject matter of the case at bar, fall
within the exception mentioned in Sec. 2 of the Act and its order in issuing
the prohibition is therefore, unwarranted.

The other error is the failure of the petitioner to avail of the administrative
remedy, which consists in appealing from the decision of the Secretary of
Public Works and Communications to the President of the Philippines. We
find this assignment of error also to be well taken. We have, however,
chosen to consider the merits of the issue involved for the more prompt
determination of the case and for a proper understanding of the provisions
of Republic Act 2056.

WHEREFORE, the decision and the injunction issued by the court below
are hereby set aside, and the petition against the Secretary of Public
Works and Communications, dismissed, with costs against the petitioner.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Paredes, Dizon and

De Leon, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L40474 August 29, 1975
CEBU OXYGEN & ACETYLENE CO., INC., petitioner,
vs.
HON. PASCUAL A. BERCILLES Presiding Judge, Branch XV,
14th Judicial District, and JOSE L. ESPELETA, Assistant
Provincial Fiscal, Province of Cebu, representing the
Solicitor General's Office and the Bureau of
Lands, respondents.
Jose Antonio R Conde for petitioner.
Office of the Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant
Solicitor General Octavio R. Ramirez and Trial Attorney David R.
Hilario for respondents. .
CONCEPCION, Jr., J.:
This is a petition for the review of the order of the Court of First
Instance of Cebu dismissing petitioner's application for registration
of title over a parcel of land situated in the City of Cebu.
The parcel of land sought to be registered was only a portion of M.
Borces Street, Mabolo, Cebu City. On September 23, 1968, the City
Council of Cebu, through Resolution No. 2193, approved on October
3, 1968, declared the terminal portion of M. Borces Street, Mabolo,
Cebu City, as an abandoned road, the same not being included in
the City Development Plan. 1 Subsequently, on December 19, 1968,
the City Council of Cebu passed Resolution No. 2755, authorizing
the Acting City Mayor to sell the land through a public
bidding. 2 Pursuant thereto, the lot was awarded to the herein
petitioner being the highest bidder and on March 3, 1969, the City
of Cebu, through the Acting City Mayor, executed a deed of absolute
sale to the herein petitioner for a total consideration of
P10,800.00. 3 By virtue of the aforesaid deed of absolute sale, the
petitioner filed an application with the Court of First instance of
Cebu to have its title to the land registered. 4
On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a
motion to dismiss the application on the ground that the property
sought to be registered being a public road intended for public use
is considered part of the public domain and therefore outside the
commerce of man. Consequently, it cannot be subject to
registration by any private individual. 5
After hearing the parties, on October 11, 1974 the trial court issued
an order dismissing the petitioner's application for registration of
title. 6 Hence, the instant petition for review.
For the resolution of this case, the petitioner poses the following
questions:
(1) Does the City Charter of Cebu City (Republic Act No. 3857) under
Section 31, paragraph 34, give the City of Cebu the valid right to
declare a road as abandoned? and
(2) Does the declaration of the road, as abandoned, make it the
patrimonial property of the City of Cebu which may be the object of
a common contract?
(1) The pertinent portions of the Revised Charter of Cebu City
provides:
Section 31. Legislative Powers. Any provision of law and executive
order to the contrary notwithstanding, the City Council shall have
the following legislative powers:
xxx xxx xxx
(34) ...; to close any city road, street or alley, boulevard, avenue,
park or square. Property thus withdrawn from public servitude may
be used or conveyed for any purpose for which other real property
belonging to the City may be lawfully used or conveyed.
From the foregoing, it is undoubtedly clear that the City of Cebu is
empowered to close a city road or street. In the case of Favis vs.
City of Baguio, 7 where the power of the city Council of Baguio City
to close city streets and to vacate or withdraw the same from public
use was similarly assailed, this court said:
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
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
the vacation ordinance.
(2) Since that portion of the city street subject of petitioner's
application for registration of title was withdrawn from public use, it
follows that such withdrawn portion becomes patrimonial property
which can be the object of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of
public dominion, when no longer intended for public use or for
public service, shall form part of the patrimonial property of the
State."
Besides, the Revised Charter of the City of Cebu heretofore quoted,
in very clear and unequivocal terms, states that: "Property thus
withdrawn from public servitude may be used or conveyed for any
purpose for which other real property belonging to the City may be
lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public
use and its subsequent sale to the petitioner is valid. Hence, the
petitioner has a registerable title over the lot in question.
WHEREFORE, the order dated October 11, 1974, rendered by the
respondent court in Land Reg. Case No. N-948, LRC Rec. No. N-
44531 is hereby set aside, and the respondent court is hereby
ordered to proceed with the hearing of the petitioner's application
for registration of title.
SO ORDERED.
Makalintal, C.J, Fernando, Barredo and Aquino, JJ., concur.

THIRD DIVISION
[G.R. No. 100709. November 14, 1997]
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.
DECISION
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 the Court of Appeals [1] Decision in CA-G.R. CV No. 02667
promulgated on June 13, 1991 which answered the said questions in
the negative.[2] Respondent Courts Decision dismissed[3] petitioners
appeal and affirmed in toto the decision of the Regional Trial
Court[4] of Calauag, Quezon, dated December 28, 1983 in Civil Case
No. C-608. In turn, the Regional Trial Courts decision dismissed
petitioners complaint for cancellation of the Torrens Certificate of
Title of Respondent Morato and for reversion of the parcel of land
subject thereof to the public domain.
The Facts
The petition of the solicitor general, representing the Republic of the
Philippines, recites the following facts:[5]
Sometime in December, 1972, respondent Morato filed a Free
Patent Application No. III-3-8186-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 patent
and the title specifically mandate that the land shall not
be alienated norencumbered within five (5) 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 petitioners 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
petition.[6]
The Issues
Petitioner alleges that the following errors were committed by
Respondent Court:[7]
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 Courts Ruling
The petition is meritorious.
First Issue: Indefeasibility of a Free Patent Title
In resolving the first issue against petitioner, Respondent Court
held:[8]
x x x. As ruled in Heirs of Gregorio Tengco vs. Heirs of Jose Alivalas,
168 SCRA 198. x x. 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 Tengo 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, Respondent Morato, in violation of the terms 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 land.
[9]
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
amended.[10]
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
affect the ownership.[11] She states further:
x x x. 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
violation of the grant.[12]
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
over the property remains with the owner. [13] 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
Philippines.[14]
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 twenty-five 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.)
xxxxxxxxx
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, alienated 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 his 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.)
xxxxxxxxx
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 Act shall 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 presumptively, and cause the
reversion of the property and its improvements to the State.
(Underscoring 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; an
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 upon an estate.[15] 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 patent? Respondent Court answered in the negative:[16]
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, whereas 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 Moratos 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. x x x
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 property to another who undertakes to pay rent therefor.
[17]
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.
Moratos 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
prevail over all abstract arguments based on equity contra legem.[18]
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
Public Land Act.[19] Verily, a mortgage constitutes a legal limitation
on the estate, and the foreclosure of such mortgage would
necessarily result in the auction of the property.[20]
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
violates that condition.[21]
The prohibition against the encumbrance -- lease and mortgage
included -- of a homestead which, by analogy applies to a free
patent, is mandated by the rationale for the grant, viz.:[22]
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 encumbrance 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 application.
[23]
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 equitable owner thereof.
[24]
However, for Respondent Moratos 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 Moratos 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 Reverts 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
Respondent Morato:[25]
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 x x x x (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).
xxxxxxxxx
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 trees. 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
afore-cited 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 court-appointed
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 (Exhs.
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 the place in 1977 (Cf. Decision, pp.
17-18).[26]
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
her own doing.[27]
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
judgment itself is based on a misapprehension of facts. [28] 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
the Philippine Islands vs. Cabagis[29] explained the rationale for this
proscription:
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.
********
Article 1, case 3, of the Law of Waters of August 3, 1866, provides
as follows:
ARTICLE 1. The following are part of the national domain open to
public use:
********
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 Jurdica 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
beach. They 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:
(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 vs.
Cabangis[30] annulled the registration of land subject of cadastral
proceedings when the parcel subsequently became foreshore land.
[31]
In another case, the Court voided the registration decree of a
trial court and held that said court had no jurisdiction to award
foreshore land to any private person or entity. [32] The subject land in
this case, being foreshore land, should therefore be returned to the
public domain.
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.
SO ORDERED.
Romero, Melo, and Francisco, JJ., concur.
Narvasa, C.J., (Chairman), on leave.
 MUNICIPALITY OF PARAAQUE, METRO MANILA, PALANYAG
KILUSANG BAYAN FOR SERVICE, respondents.

Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.

Manuel de Guia for Municipality of Paraaque.

MEDIALDEA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court

seeking the annulment of the decision of the Regional Trial Court of
Makati, Branch 62, which granted the writ of preliminary injunction
applied for by respondents Municipality of Paraaque and Palanyag
Kilusang Bayan for Service (Palanyag for brevity) against petitioner
herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance

No. 86, Series of 1990 which authorized the closure of J. Gabriel,
Republic of the Philippines G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets
SUPREME COURT located at Baclaran, Paraaque, Metro Manila and the establishment
Manila of a flea market thereon. The said ordinance was approved by the
municipal council pursuant to MMC Ordinance No. 2, Series of 1979,
EN BANC authorizing and regulating the use of certain city and/or municipal
streets, roads and open spaces within Metropolitan Manila as sites
for flea market and/or vending areas, under certain terms and
conditions.
G.R. No. 97764 August 10, 1992
On July 20, 1990, the Metropolitan Manila Authority approved
LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Ordinance No. 86, s. 1990 of the municipal council of respondent
Metropolitan Traffic Command, petitioner, municipality subject to the following conditions:
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 1. That the aforenamed streets are not used for vehicular traffic,
62, Regional Trial Court of Makati, Metro Manila, and that the majority of the residents do not oppose the
establishment of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides
of the road shall be used by pedestrians;
3. That the time during which the vending area is to be used shall
be clearly designated;
4. That the use of the vending areas shall be temporary and shall be
closed once the reclaimed areas are developed and donated by the
Public Estate Authority.
On June 20, 1990, the municipal council of Paraaque issued a
resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter
into contract with any service cooperative for the establishment,
operation, maintenance and management of flea markets and/or
vending areas.
On August 8, 1990, respondent municipality and respondent
Palanyag, a service cooperative, entered into an agreement
whereby the latter shall operate, maintain and manage the flea
market in the aforementioned streets with the obligation to remit
dues to the treasury of the municipal government of Paraaque.
Consequently, market stalls were put up by respondent Palanyag on
the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command, ordered the
destruction and confiscation of stalls along G.G. Cruz and J. Gabriel
St. in Baclaran. These stalls were later returned to respondent
Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano wrote a
letter to respondent Palanyag giving the latter ten (10) days to
discontinue the flea market; otherwise, the market stalls shall be
dismantled.
Hence, on October 23, 1990, respondents municipality and
Palanyag filed with the trial court a joint petition for prohibition
and mandamus with damages and prayer for preliminary injunction,
to which the petitioner filed his memorandum/opposition to the
issuance of the writ of preliminary injunction.
On October 24, 1990, the trial court issued a temporary restraining
order to enjoin petitioner from enforcing his letter-order of October
16, 1990 pending the hearing on the motion for writ of preliminary
injunction.
On December 17, 1990, the trial court issued an order upholding
the validity of Ordinance No. 86 s. 1990 of the Municipality' of
Paraaque and enjoining petitioner Brig. Gen. Macasiano from
enforcing his letter-order against respondent Palanyag.
Hence, this petition was filed by the petitioner thru the Office of the
Solicitor General alleging grave abuse of discretion tantamount to
lack or excess of jurisdiction on the part of the trial judge in issuing
the assailed order.
The sole issue to be resolved in this case is whether or not an
ordinance or resolution issued by the municipal council of
Paraaque authorizing the lease and use of public streets or
thoroughfares as sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that
municipal roads are used for public service and are therefore public
properties; that as such, they cannot be subject to private
appropriation or private contract by any person, even by the
respondent Municipality of Paraaque. Petitioner submits that a
property already dedicated to public use cannot be used for another
public purpose and that absent a clear showing that the Municipality
of Paraaque has been granted by the legislature specific authority
to convert a property already in public use to another public use,
respondent municipality is, therefore, bereft of any authority to
close municipal roads for the establishment of a flea market.
Petitioner also submits that assuming that the respondent
municipality is authorized to close streets, it failed to comply with
the conditions set forth by the Metropolitan Manila Authority for the
approval of the ordinance providing for the establishment of flea
markets on public streets. Lastly, petitioner contends that by
allowing the municipal streets to be used by market vendors the
municipal council of respondent municipality violated its duty under
the Local Government Code to promote the general welfare of the
residents of the municipality.
In upholding the legality of the disputed ordinance, the trial court
ruled:
. . . that Chanter II Section 10 of the Local Government Code is a
statutory grant of power given to local government units, the
Municipality of Paraaque as such, is empowered under that law to
close its roads, streets or alley subject to limitations stated therein
(i.e., that it is in accordance with existing laws and the provisions of
this code).
xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi Macasiano, though
apparently within its power is in fact an encroachment of power
legally vested to the municipality, precisely because when the
municipality enacted the ordinance in question the authority of
the respondent as Police Superintendent ceases to be operative on
the ground that the streets covered by the ordinance ceases to be a
public thoroughfare. (pp. 33-34, Rollo)
We find the petition meritorious. In resolving the question of
whether the disputed municipal ordinance authorizing the flea
market on the public streets is valid, it is necessary to examine the
laws in force during the time the said ordinance was enacted,
namely, Batas Pambansa Blg. 337, otherwise known as Local
Government Code, in connection with established principles
embodied in the Civil Code an property and settled jurisprudence on
the matter.
The property of provinces, cities and municipalities is divided into
property for public use and patrimonial property (Art. 423, Civil
Code). As to what consists of property for public use, Article 424 of
Civil Code states:
Art. 424. Property for public use, in the provinces, cities and
municipalities, consists of the provincial roads, city streets, the
squares, fountains, public waters, promenades, and public works for
public service paid for by said provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall
be governed by this Code, without prejudice to the provisions of
special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena streets are local roads used for public service
and are therefore considered public properties of respondent
municipality. Properties of the local government which are devoted
to public service are deemed public and are under the absolute
control of Congress (Province of Zamboanga del Norte v. City of
Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence, local
governments have no authority whatsoever to control or regulate
the use of public properties unless specific authority is vested upon
them by Congress. One such example of this authority given by
Congress to the local governments is the power to close roads as
provided in Section 10, Chapter II of the Local Government Code,
which states:
Sec. 10. Closure of roads. A local government unit may likewise,
through its head acting pursuant to a resolution of its sangguniang
and in accordance with existing law and the provisions of this Code,
close any barangay, municipal, city or provincial road, street, alley,
park or square. No such way or place or any part of thereof shall be
close without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or conveyed
for any purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed. (Emphasis
ours).
However, the aforestated legal provision which gives authority to
local government units to close roads and other similar public
places should be read and interpreted in accordance with basic
principles already established by law. These basic principles have
the effect of limiting such authority of the province, city or
municipality to close a public street or thoroughfare. Article 424 of
the Civil Code lays down the basic principle that properties of public
dominion devoted to public use and made available to the public in
general are outside the commerce of man and cannot be disposed
of or leased by the local government unit to private persons. Aside
from the requirement of due process which should be complied with
before closing a road, street or park, the closure should be for the
sole purpose of withdrawing the road or other public property from
public use when circumstances show that such property is no longer
intended or necessary for public use or public service. When it is
already withdrawn from public use, the property then becomes
patrimonial property of the local government unit concerned (Article
422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). It is only then that the
respondent municipality can "use or convey them for any purpose
for which other real property belonging to the local unit concerned
might be lawfully used or conveyed" in accordance with the last
sentence of Section 10, Chapter II of Blg. 337, known as Local
Government Code. In one case, the City Council of Cebu, through a
resolution, declared the terminal road of M. Borces Street, Mabolo,
Cebu City as an abandoned road, the same not being included in
the City Development Plan. Thereafter, the City Council passes
another resolution authorizing the sale of the said abandoned road
through public bidding. We held therein that the City of Cebu is
empowered to close a city street and to vacate or withdraw the
same from public use. Such withdrawn portion becomes patrimonial
property which can be the object of an ordinary contract (Cebu
Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and
streets which are available to the public in general and ordinarily
used for vehicular traffic are still considered public property devoted
to public use. In such case, the local government has no power to
use it for another purpose or to dispose of or lease it to private
persons. This limitation on the authority of the local government
over public properties has been discussed and settled by this
Court en banc in "Francisco V. Dacanay, petitioner v. Mayor Macaria
Asistio, Jr., et al., respondents, G.R. No. 93654, May 6, 1992." This
Court ruled:
There is no doubt that the disputed areas from which the private
respondents' market stalls are sought to be evicted are public
streets, as found by the trial court in Civil Case No. C-12921. A
public street is property for public use hence outside the commerce
of man (Arts. 420, 424, Civil Code). Being outside the commerce of
man, it may not be the subject of lease or others contract
(Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing
the Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v.
Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la
Fuente, 48 O.G. 4860).
As the stallholders pay fees to the City Government for the right to
occupy portions of the public street, the City Government, contrary
to law, has been leasing portions of the streets to them. Such leases
or licenses are null and void for being contrary to law. The right of
the public to use the city streets may not be bargained away
through contract. The interests of a few should not prevail over the
good of the greater number in the community whose health, peace,
safety, good order and general welfare, the respondent city officials
are under legal obligation to protect.
The Executive Order issued by acting Mayor Robles authorizing the
use of Heroes del '96 Street as a vending area for stallholders who
were granted licenses by the city government contravenes the
general law that reserves city streets and roads for public use.
Mayor Robles' Executive Order may not infringe upon the vested
right of the public to use city streets for the purpose they were
intended to serve: i.e., as arteries of travel for vehicles and
pedestrians.
Even assuming, in gratia argumenti, that respondent municipality
has the authority to pass the disputed ordinance, the same cannot
be validly implemented because it cannot be considered approved
by the Metropolitan Manila Authority due to non-compliance by
respondent municipality of the conditions imposed by the former for
the approval of the ordinance, to wit:
1. That the aforenamed streets are not used for vehicular traffic,
and that the majority of the residents do(es) not oppose the
establishment of the flea market/vending areas thereon;
2. That the 2-meter middle road to be used as flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides
of the road shall be used by pedestrians;
3. That the time during which the vending area is to be used shall
be clearly designated;
4. That the use of the vending areas shall be temporary and shall be
closed once the reclaimed areas are developed and donated by the
Public Estate Authority. (p. 38, Rollo)
Respondent municipality has not shown any iota of proof that it has
complied with the foregoing conditions precedent to the approval of
the ordinance. The allegations of respondent municipality that the
closed streets were not used for vehicular traffic and that the
majority of the residents do not oppose the establishment of a flea
market on said streets are unsupported by any evidence that will
show that this first condition has been met. Likewise, the
designation by respondents of a time schedule during which the flea
market shall operate is absent.
Further, it is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow
the establishment of a flea market along J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran
would not help in solving the problem of congestion. We take note
of the other observations of the Solicitor General when he said:
. . . There have been many instances of emergencies and fires
where ambulances and fire engines, instead of using the roads for a
more direct access to the fire area, have to maneuver and look for
other streets which are not occupied by stalls and vendors thereby
losing valuable time which could, otherwise, have been spent in
saving properties and lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However,
its ambulances and the people rushing their patients to the hospital
cannot pass through G.G. Cruz because of the stalls and the
vendors. One can only imagine the tragedy of losing a life just
because of a few seconds delay brought about by the inaccessibility
of the streets leading to the hospital.
The children, too, suffer. In view of the occupancy of the roads by
stalls and vendors, normal transportation flow is disrupted and
school children have to get off at a distance still far from their
schools and walk, rain or shine.
Indeed one can only imagine the garbage and litter left by vendors
on the streets at the end of the day. Needless to say, these cause
further pollution, sickness and deterioration of health of the
residents therein. (pp. 21-22, Rollo)
Respondents do not refute the truth of the foregoing findings and
observations of petitioners. Instead, respondents want this Court to
focus its attention solely on the argument that the use of public
spaces for the establishment of a flea market is well within the
powers granted by law to a local government which should not be
interfered with by the courts.
Verily, the powers of a local government unit are not absolute. They
are subject to limitations laid down by toe Constitution and the laws
such as our Civil Code. Moreover, the exercise of such powers
should be subservient to paramount considerations of health and
well-being of the members of the community. Every local
government unit has the sworn obligation to enact measures that
will enhance the public health, safety and convenience, maintain
peace and order, and promote the general prosperity of the
inhabitants of the local units. Based on this objective, the local
government should refrain from acting towards that which might
prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have
a legal right to demand the demolition of the illegally constructed
stalls in public roads and streets and the officials of respondent
municipality have the corresponding duty arising from public office
to clear the city streets and restore them to their specific public
purpose.

The instant case as well as the Dacanay case, involves an ordinance

which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at this point, We find it worthy
to note that Batas Pambansa Blg. 337, known as Local Government
Lode, has already been repealed by Republic Act No. 7160 known as
Local Government Code of 1991 which took effect on January 1,
1992. Section 5(d) of the new Code provides that rights and
obligations existing on the date of effectivity of the new Code and
arising out of contracts or any other source of prestation involving a
local government unit shall be governed by the original terms and
conditions of the said contracts or the law in force at the time such
rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the

respondent Regional Trial Court dated December 17, 1990 which
granted the writ of preliminary injunction enjoining petitioner as PNP
Superintendent, Metropolitan Traffic Command from enforcing the
demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan,
Lt. Garcia Extension and Opena streets is hereby RESERVED and
SET ASIDE.

SO ORDERED.
Republic of the Philippines
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio- SUPREME COURT
Aquino, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., Manila
concur.
EN BANC
G.R. No. L-29788 August 30, 1972
RAFAEL S. SALAS, in his capacity as Executive Secretary;
CONRADO F. ESTRELLA, in his capacity as Governor of the Land
Authority; and LORENZO GELLA, in his capacity as Register of
Deeds of Manila,petitioners-appellants,
vs.
HON. HILARION U. JARENCIO, as Presiding Judge of Branch XXIII,
Court of First Instance of Manila; ANTONIO J. VILLEGAS, in his
capacity as Mayor of the City of Manila; and the CITY OF
MANILA,respondents-appellees.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor-General
Antonio A. Torres, Solicitor Raul I. Goco and Magno B. Pablo &Cipriano A.
Tan, Legal Staff, Land Authority for petitioners-appellants.
Gregorio A. Ejercito and Felix C. Chavez for respondents-appellees.
ESGUERRA, J.:p
This is a petition for review of the decision of the Court of First Instance of
Manila, Branch XXIII, in Civil Case No. 67946, dated September 23, 1968,
the dispositive portion of which is as follows:
WHEREFORE, the Court renders judgment declaring Republic
Act No. 4118 unconstitutional and invalid in that it deprived
the City of Manila of its property without due process and
payment of just compensation. Respondent Executive
Secretary and Governor of the Land Authority are hereby
restrained and enjoined from implementing the provisions of
said law. Respondent Register of Deeds of the City of Manila
is ordered to cancel Transfer Certificate of Title No. 80876
which he had issued in the name of the Land Tenure
Administration and reinstate Transfer Certificate of Title No.
22547 in the name of the City of Manila which he cancelled, if
that is feasible, or issue a new certificate of title for the same
parcel of land in the name of the City of Manila. 1
The facts necessary for a clear understanding of this case are as follows:
On February 24, 1919, the 4th Branch of the Court of First Instance of
Manila, acting as a land registration court, rendered judgment in Case No.
18, G.L.R.O. Record No. 111, declaring the City of Manila the owner in fee
simple of a parcel of land known as Lot No. 1, Block 557 of the Cadastral
Survey of the City of Mani1a, containing an area of 9,689.8 square meters,
more or less. Pursuant to said judgment the Register of Deeds of Manila
on August 21, 1920, issued in favor of the City of Manila, Original
Certificate of Title No. 4329 covering the aforementioned parcel of land.
On various dates in 1924, the City of Manila sold portions of the
aforementioned parcel of land in favor of Pura Villanueva. As a
consequence of the transactions Original Certificate of Title No. 4329 was
cancelled and transfer certificates of title were issued in favor of Pura
Villanueva for the portions purchased by her. When the last sale to Pura
Villanueva was effected on August 22, 1924, Transfer Certificate of Title
No. 21974 in the name of the City of Manila was cancelled and in lieu
thereof Transfer Certificate of Title (TCT) No. 22547 covering the residue
thereof known as Lot 1-B-2-B of Block 557, with an area of 7,490.10
square meters, was issued in the name of the City of Manila.
On September 21, 1960, the Municipal Board of Manila, presided by then
Vice-Mayor Antono J. Villegas, adopted a resolution requesting His
Excellency, the President of the Philippines to consider the feasibility of
declaring the City property bounded by Florida, San Andres, and Nebraska
Streets, under Transfer Certificate of Title Nos. 25545 and 22547,
containing a total area of 7,450 square meters as a patrimonial property
of the City of Manila for the purpose of reselling these lots to the actual
occupants thereof. 2
The said resolution of the Municipil Board of the City of Manila was
officially transmitted to the President of the Philippines by then Vice-Mayor
Antonio J. Villegas on September 21, 1960, with the information that the
same resolution was, on the same date, transmitted to the Senate and
House of Representatives of the Congress of the Philippines. 3
During the First Session of the Fifth Congress of the Philippines, House Bill
No. 191 was filed in the House of Representatives by then Congressman
Bartolome Cabangbang seeking to declare the property in question as
patrimonial property of the City of Manila, and for other purposes. The
explanatory note of the Bill gave the grounds for its enactment, to wit:
In the particular case of the property subject of this bill, the
City of Manila does not seem to have use thereof as a public
communal property. As a matter of fact, a resolution was
adopted by the Municipal Board of Manila at its regular
session held on September 21, 1960, to request the
feasibility of declaring the city property bounded by Florida,
San Andres and Nebraska Streets as a patrimonial
property of the City of Manila for the purpose of reselling
these lots to the actual occupants thereof. Therefore, it will
be to the best interest of society that the said property be
used in one way or another. Since this property has been
occupied for a long time by the present occupants thereof
and since said occupants have expressed their willingness to
buy the said property, it is but proper that the same be sold
to them. 4
Subsequently, a revised version of the Bill was introduced in the House of
Representatives by Congressmen Manuel Cases, Antonio Raquiza and
NicanorYiguez as House Bill No. 1453, with the following explanatory
note:
The accompanying bill seeks to convert one (1) parcel of land
in the district of Malate, which is reserved as communal
property into a disposable or alienable property of the
State and to provide its subdivision and sale to bona fide
occupants or tenants.
This parcel of land in question was originally an aggregate
part of a piece of land with an area of 9,689.8 square meters,
more or less. ... On September 21, 1960, the Municipal Board
of Manila in its regular session unanimously adopted a
resolution requesting the President of the Philippines and
Congress of the Philippines the feasibility of declaring this
property into disposable or alienable property of the State.
There is therefore a precedent that this parcel of land could
be subdivided and sold to bona fide occupants. This parcel of
land will not serve any useful public project because it is
bounded on all sides by private properties which were
formerly parts of this lot in question.
Approval of this bill will implement the policy of the
Administration of land for the landless and the Fifth
Declaration of Principles of the Constitution, which states that
the promotion of Social Justice to insure the well-being and
economic security of all people should be the concern of the
State. We are ready and willing to enact legislation promoting
the social and economic well-being of the people whenever
an opportunity for enacting such kind of legislation arises.
In view of the foregoing consideration and to insure fairness and justice to
the present bona fide occupants thereof, approval of this Bill is strongly
urged. 5
The Bill having been passed by the House of Representatives, the same
was thereafter sent to the Senate where it was thoroughly discussed, as
evidenced by the Congressional Records for May 20, 1964, pertinent
portion of which is as follows:
SENATOR FERNANDEZ: Mr. President, it will be re called that
when the late Mayor Lacson was still alive, we approved a
similar bill. But afterwards, the late Mayor Lacson came here
and protested against the approval, and the approval was
reconsidered. May I know whether the defect in the bill which
we approved, has already been eliminated in this present
bill?
SENATOR TOLENTINO: I understand Mr. President, that that
has already been eliminated and that is why the City of
Manila has no more objection to this bill.
SENATOR FERNANDEZ: Mr. President, in view of that
manifestation and considering that Mayor Villegas and
Congressman Albert of the Fourth District of Manila are in
favor of the bill. I would not want to pretend to know more
what is good for the City of Manila.
SENATOR TOLENTINO: Mr. President, there being no
objection, I move that we approve this bill on second reading.
 PRESIDENT PRO-TEMPORE: The biII is approved on second in twenty-four equal monthly installments from the date of
reading after several Senetors said aye and nobody said nay. liquidation.

The bill was passed by the Senate, approved by the President on June 20, Sec. 4. No property acquired by virtue of this Act shall be
1964, and became Republic Act No. 4118. It reads as follows: transferred, sold, mortgaged, or otherwise disposed of within
a period of five years from the date full ownership thereof
Lot I-B-2-B of Block 557 of the cadastral survey of the City of has been vested in the purchaser without the consent of the
Manila, situated in the District of Malate, City of Manila, Land Tenure Administration.
which is reserved as communal property, is hereby converted
into disposal or alienable land of the State, to be placed Sec. 5. In the event of the death of the purchaser prior to the
under the disposal of the Land Tenure Administration. The complete payment of the price of the lot purchased by him,
Land Tenure Administration shall subdivide the property into his widow and children shall succeed in all his rights and
small lots, none of which shall exceed one hundred and obligations with respect to his lot.
twenty square meters in area and sell the same on
installment basis to the tenants or bona fide occupants Sec. 6. The Chairman of the Land Tenure Administration shall
thereof and to individuals, in the order mentioned: Provided, implement and issue such rules and regulations as may be
That no down payment shall be required of tenants or bona necessary to carry out the provisions of this Act.
fide occupants who cannot afford to pay such down
payment: Provided, further, That no person can purchase Sec. 7. The sum of one hundred fifty thousand pesos is
more than one lot: Provided, furthermore, That if the tenant appropriated out of any funds in the National Treasury not
or bona fide occupant of any given lot is not able to purchase otherwise appropriated, to carry out the purposes of this Act.
the same, he shall be given a lease from month to month
until such time that he is able to purchase the lot: Provided, Sec. 8. All laws or parts of laws inconsistent with this Act are
still further, That in the event of lease the rentals which may repealed or modified accordingly.
be charged shall not exceed eight per cent per annum of the
assessed value of the property leased: And provided, finally, Sec. 9. This Act shall take effect upon its approval.
That in fixing the price of each lot, which shall not exceed
twenty pesos per square meter, the cost of subdivision and
Approved, June 20, 1964.
survey shall not be included.
To implement the provisions of Republic Act No. 4118, and pursuant to the
Sec. 2. Upon approval of this Act no ejectment proceedings
request of the occupants of the property involved, then Deputy Governor
against any tenant or bona fide occupant of the above lots
Jose V. Yap of the Land Authority (which succeeded the Land Tenure
shall be instituted and any ejectment proceedings pending in
Administration) addressed a letter, dated February 18, 1965, to Mayor
court against any such tenant or bona fide occupant shall be
Antonio Villegas, furnishing him with a copy of the proposed subdivision
dismissed upon motion of the defendant: Provided, That any
plan of said lot as prepared for the Republic of the Philippines for resale of
demolition order directed against any tenant or bona fide
the subdivision lots by the Land Authority to bona fide applicants. 6
occupant shall be lifted.
On March 2, 1965, the City Mayor of Manila, through his Executive and
Sec. 3. Upon approval of this Act, if the tenant or bona
Technical Adviser, acknowledged receipt of the proposed subdivision plan
fide occupant is in arrears in the payment of any rentals, the
of the property in question and informed the Land Authority that his office
amount legally due shall be liquidated and shall be payable
would interpose no objection to the implementation of said law, provided
that its provisions be strictly complied with. 7
With the above-mentioned written conformity of the City of Manila for the
implementation of Republic Act No. 4118, the Land Authority, thru then
Deputy Governor Jose V. Yap, requested the City Treasurer of Manila, thru
the City Mayor, for the surrender and delivery to the former of the owner's
duplicate of Transfer Certificate of Title No. 22547 in order to obtain title
thereto in the name of the Land Authority. The request was duly granted
with the knowledge and consent of the Office of the City Mayor. 8
With the presentation of Transfer Certificate of Title No. 22547, which had
been yielded as above stated by the, City authorities to the Land
Authority, Transfer Certificate of Title (T.C.T. No. 22547) was cancelled by
the Register of Deeds of Manila and in lieu thereof Transfer Certificate of
Title No. 80876 was issued in the name of the Land Tenure Administration
(now Land Authority) pursuant to the provisions of Republic Act No.
4118. 9
But due to reasons which do not appear in the record, the City of Manila
made a complete turn-about, for on December 20, 1966, Antonio J.
Villegas, in his capacity as the City Mayor of Manila and the City of Manila
as a duly organized public corporation, brought an action for injunction
and/or prohibition with preliminary injunction to restrain, prohibit and
enjoin the herein appellants, particularly the Governor of the Land
Authority and the Register of Deeds of Manila, from further implementing
Republic Act No. 4118, and praying for the declaration of Republic Act No.
4118 as unconstitutional.
With the foregoing antecedent facts, which are all contained in the partial
stipulation of facts submitted to the trial court and approved by
respondent Judge, the parties waived the presentation of further evidence
and submitted the case for decision. On September 23, 1968, judgment
was rendered by the trial court declaring Republic Act No. 4118
unconstitutional and invalid on the ground that it deprived the City of
Manila of its property without due process of law and payment of just
compensation. The respondents were ordered to undo all that had been
done to carry out the provisions of said Act and were restrained from
further implementing the same.
Two issues are presented for determination, on the resolution of which the
decision in this case hinges, to wit:
I. Is the property involved private or patrimonial property of
the City of Manila?
II. Is Republic Act No. 4118 valid and not repugnant to the
Constitution?
I.
As regards the first issue, appellants maintain that the land involved is a
communal land or "leguacomunal" which is a portion of the public domain
owned by the State; that it came into existence as such when the City of
Manila, or any pueblo or town in the Philippines for that matter, was
founded under the laws of Spain, the former sovereign; that upon the
establishment of a pueblo, the administrative authority was required to
allot and set aside portions of the public domain for a public plaza, a
church site, a site for public buildings, lands to serve as common pastures
and for streets and roads; that in assigning these lands some lots were
earmarked for strictly public purposes, and ownership of these lots (for
public purposes) immediately passed to the new municipality; that in the
case of common lands or "leguacomunal", there was no such immediate
acquisition of ownership by the pueblo, and the land though administered
thereby, did not automatically become its property in the absence of an
express grant from the Central Government, and that the reason for this
arrangement is that this class of land was not absolutely needed for the
discharge of the municipality's governmental functions.
It is argued that the parcel of land involved herein has not been used by
the City of Manila for any public purpose and had not been officially
earmarked as a site for the erection of some public buildings; that this
circumstance confirms the fact that it was originally "communal" land
alloted to the City of Manila by the Central Government not because it was
needed in connection with its organization as a municipality but simply for
the common use of its inhabitants; that the present City of Manila as
successor of the Ayuntamiento de Manila under the former Spanish
sovereign merely enjoys the usufruct over said land, and its exercise of
acts of ownership by selling parts thereof did not necessarily convert the
land into a patrimonial property of the City of Manila nor divest the State
of its paramount title.
Appellants further argue that a municipal corporation, like a city is a
governmental agent of the State with authority to govern a limited portion
of its territory or to administer purely local affairs in a given political
subdivision, and the extent of its authority is strictly delimited by the
grant of power conferred by the State; that Congress has the exclusive
power to create, change or destroy municipal corporations; that even if
We admit that legislative control over municipal corporations is not
absolute and even if it is true that the City of Manila has a registered title
over the property in question, the mere transfer of such land by an act of
the legislature from one class of public land to another, without
compensation, does not invade the vested rights of the City.
Appellants finally argue that Republic Act No. 4118 has treated the land
involved as one reserved for communal use, and this classification is
conclusive upon the courts; that if the City of Manila feels that this is
wrong and its interests have been thereby prejudiced, the matter should
be brought to the attention of Congress for correction; and that since
Congress, in the exercise of its wide discretionary powers has seen fit to
classify the land in question as communal, the Courts certainly owe it to a
coordinate branch of the Government to respect such determination and
should not interfere with the enforcement of the law.
Upon the other hand, appellees argue by simply quoting portions of the
appealed decision of the trial court, which read thus:
The respondents (petitioners-appellants herein) contend,
among other defenses, that the property in question is
communal property. This contention is, however, disproved
by Original Certificate of Title No. 4329 issued on August 21,
1920 in favor of the City of Manila after the land in question
was registered in the City's favor. The Torrens Title expressly
states that the City of Manila was the owner in 'fee simple' of
the said land. Under Sec. 38 of the Land Registration Act, as
amended, the decree of confirmation and registration in favor
of the City of Manila ... shall be conclusive upon and against
all persons including the Insular Government and all the
branches there ... There is nothing in the said certificate of
title indicating that the land was 'communal' land as
contended by the respondents. The erroneous assumption by
the Municipal Board of Manila that the land in question was
communal land did not make it so. The Municipal Board had
no authority to do that.
The respondents, however, contend that Congress had the
power and authority to declare that the land in question was
'communal' land and the courts have no power or authority
to make a contrary finding. This contention is not entirely
correct or accurate. Congress has the power to classify 'land
of the public domain', transfer them from one classification to
another and declare them disposable or not. Such power
does not, however, extend to properties which are owned by
cities, provinces and municipalities in their 'patrimonial'
capacity.
Art. 324 of the Civil Code provides that properties of
provinces, cities and municipalities are divided into
properties for public use and patrimonial property. Art. 424 of
the same code provides that properties for public use consist
of provincial roads, city streets, municipal streets, the
squares, fountains, public waters, promenades and public
works for public service paid for by said province, cities or
municipalities. All other property possessed by any of them is
patrimonial. Tested by this criterion the Court finds and holds
that the land in question is patrimonial property of the City of
Manila.
Respondents contend that Congress has declared the land in
question to be 'communal' and, therefore, such designation is
conclusive upon the courts. The Courts holds otherwise.
When a statute is assailed as unconstitutional the Courts
have the power and authority to inquire into the question and
pass upon it. This has long ago been settled in Marbury vs.
Madison, 2 L. ed. 60, when the United States Supreme Court
speaking thru Chief Justice Marshall held:
... If an act of the legislature, repugnant to the
constitution, is void, does it, notwithstanding its
validity, bind the courts, and oblige them to give
effect? It is emphatically the province and duty
of the judicial department to say what the law is
... So if a law be in opposition to the
 constitution; if both the law and the constitution
apply to a particular case, so that the court
must either decide that case conformable to the
constitution, disregarding the law, the court
must determine which of these conflicting rules
governs the case. This is of the very essence of
unconstitutional judicial duty.
Appellees finally concluded that when the courts declare a law
unconstitutional it does not mean that the judicial power is superior to the
legislative power. It simply means that the power of the people is superior
to both and that when the will of the legislature, declared in statutes,
stands in opposition to that of the people, declared in the Constitution, the
judges ought to be governed by the Constitution rather than by the
statutes.
There is one outstanding factor that should be borne in mind in resolving
the character of the land involved, and it is that the City of Manila,
although declared by the Cadastral Court as owner in fee simple, has not
shown by any shred of evidence in what manner it acquired said land as
its private or patrimonial property. It is true that the City of Manila as well
as its predecessor, the Ayuntamiento de Manila, could validly acquire
property in its corporate or private capacity, following the accepted
doctrine on the dual character public and private of a municipal
corporation. And when it acquires property in its private capacity, it acts
like an ordinary person capable of entering into contracts or making
transactions for the transmission of title or other real rights. When it
comes to acquisition of land, it must have done so under any of the modes
established by law for the acquisition of ownership and other real rights. In
the absence of a title deed to any land claimed by the City of Manila as its
own, showing that it was acquired with its private or corporate funds, the
presumption is that such land came from the State upon the creation of
the municipality (Unson vs. Lacson, et al., 100 Phil. 695). Originally the
municipality owned no patrimonial property except those that were
granted by the State not for its public but for private use. Other properties
it owns are acquired in the course of the exercise of its corporate powers
as a juridical entity to which category a municipal corporation pertains.
Communal lands or "leguacomunal" came into existence when a town or
pueblo was established in this country under the laws of Spain (Law VII,
Title III, Book VI, Recopilacion de las Leyes de Indios). The municipalities of
the Philippines were not entitled, as a matter of right, to any part of the
public domain for use as communal lands. The Spanish law provided that
the usufruct of a portion of the public domain adjoining municipal territory
might be granted by the Government for communal purposes, upon
proper petition, but, until granted, no rights therein passed to the
municipalities, and, in any event, the ultimate title remained in the
sovereign (City of Manila vs. Insular Government, 10 Phil. 327).
For the establishment, then, of new pueblos the
administrative authority of the province, in representation of
the Governor General, designated the territory for their
location and extension and the metes and bounds of the
same; and before alloting the lands among the new settlers,
a special demarcation was made of the places which were to
serve as the public square of the pueblo, for the erection of
the church, and as sites for the public buildings, among
others, the municipal building or the casa real, as well as of
the lands whick were to constitute the common pastures,
and propios of the municipality and the streets and roads
which were to intersect the new town were laid out, ... .
(Municipality of Catbalogan vs. Director of Lands, 17 Phil.
216, 220) (Emphasis supplied)
It may, therefore, be laid down as a general rule that regardless of the
source or classification of land in the possession of a municipality,
excepting those acquired with its own funds in its private or corporate
capacity, such property is held in trust for the State for the benefit of its
inhabitants, whether it be for governmental or proprietary purposes. It
holds such lands subject to the paramount power of the legislature to
dispose of the same, for after all it owes its creation to it as an agent for
the performance of a part of its public work, the municipality being but a
subdivision or instrumentality thereof for purposes of local administration.
Accordingly, the legal situation is the same as if the State itself holds the
property and puts it to a different use (2 McQuilin,Municipal Corporations,
3rd Ed., p. 197, citing Monagham vs. Armatage, 218 Minn. 27, 15 N. W.
2nd 241).
True it is that the legislative control over a municipal corporation is not
absolute even when it comes to its property devoted to public use, for
such control must not be exercised to the extent of depriving persons of
their property or rights without due process of law, or in a manner
impairing the obligations of contracts. Nevertheless, when it comes to
property of the municipality which it did not acquire in its private or
corporate capacity with its own funds, the legislature can transfer its
administration and disposition to an agency of the National Government to
be disposed of according to its discretion. Here it did so in obedience to
the constitutional mandate of promoting social justice to insure the well-
being and economic security of the people.
It has been held that a statute authorizing the transfer of a Municipal
airport to an Airport Commission created by the legislature, even without
compensation to the city, was not violative of the due process clause of
the American Federal Constitution. The Supreme Court of Minnessota
in Monagham vs. Armatage, supra, said:
... The case is controlled by the further rule that the
legislature, having plenary control of the local municipality,
of its creation and of all its affairs, has the right to authorize
or direct the expenditures of money in its treasury, though
raised, for a particular purpose, for any legitimate municipal
purpose, or to order and direct a distribution thereof upon a
division of the territory into separate municipalities ... . The
local municipality has no such vested right in or to its public
funds, like that which the Constitution protects in the
individual as precludes legislative interferences. People vs.
Power, 25 Ill. 187; State Board (of Education) vs. City, 56
Miss. 518. As remarked by the supreme court of Maryland
in Mayor vs. Sehner, 37 Md. 180: "It is of the essence of such
a corporation, that the government has the sole right as
trustee of the public interest, at its own good will and
pleasure, to inspect, regulate, control, and direct the
corporation, its funds, and franchises."
We therefore hold that c.500, in authorizing the transfer of
the use and possession of the municipal airport to the
commission without compensation to the city or to the park
board, does not violate the Fourteenth Amendment to the
Constitution of the United States.
The Congress has dealt with the land involved as one reserved for
communal use (terrenocomunal). The act of classifying State property
calls for the exercise of wide discretionary legislative power and it should
not be interfered with by the courts.
This brings Us to the second question as regards the validity of Republic
Act No. 4118, viewed in the light of Article III, Sections 1, subsection (1)
and (2) of the Constitution which ordain that no person shall be deprived
of his property without due process of law and that no private property
shall be taken for public use without just compensation.
II .
The trial court declared Republic Act No. 4118 unconstitutional for
allegedly depriving the City of Manila of its property without due process
of law and without payment of just compensation. It is now well
established that the presumption is always in favor of the constitutionality
of a law (U S. vs. Ten Yu, 24 Phil. 1; Go Ching, et al. vs. Dinglasan, et al.,
45 O.G. No. 2, pp. 703, 705). To declare a law unconstitutional, the
repugnancy of that law to the Constitution must be clear and unequivocal,
for even if a law is aimed at the attainment of some public good, no
infringement of constitutional rights is allowed. To strike down a law there
must be a clear showing that what the fundamental law condemns or
prohibits, the statute allows it to be done (Morfe vs. Mutuc, et al., G.R. No.
L-20387, Jan. 31, 1968; 22 SCRA 424). That situation does not obtain in
this case as the law assailed does not in any manner trench upon the
constitution as will hereafter be shown. Republic Act No. 4118 was
intended to implement the social justice policy of the Constitution and the
Government program of "Land for the Landless". The explanatory note of
House Bill No. 1453 which became Republic Act No. 4118, reads in part as
follows:
Approval of this bill will implement the policy of the
administration of "land for the landless" and the Fifth
Declaration of Principles of the Constitution which states that
"the promotion of social justice to insure the well-being and
economic security of all people should be the concern of the
State." We are ready and willing to enact legislation
promoting the social and economic well-being of the people
whenever an opportunity for enacting such kind of legislation
arises.
The respondent Court held that Republic Act No. 4118, "by converting the
land in question which is the patrimonial property of the City of Manila
into disposable alienable land of the State and placing it under the
disposal of the Land Tenure Administration violates the provisions of
Article III (Secs. 1 and 2) of the Constitution which ordain that "private
property shall not be taken for public use without just compensation, and
that no person shall be deprived of life, liberty or property without due
process of law". In support thereof reliance is placed on the ruling
in Province of Zamboanga del Norte vs. City of Zamboanga, G.R. No. 2440,
March 28, 1968; 22 SCRA 1334, which holds that Congress cannot deprive
a municipality of its private or patrimonial property without due process of
law and without payment of just compensation since it has no absolute
control thereof. There is no quarrel over this rule if it is undisputed that the
property sought to be taken is in reality a private or patrimonial property
of the municipality or city. But it would be simply begging the question to
classify the land in question as such. The property, as has been previously
shown, was not acquired by the City of Manila with its own funds in its
private or proprietary capacity. That it has in its name a registered title is
not questioned, but this title should be deemed to be held in trust for the
State as the land covered thereby was part of the territory of the City of
Manila granted by the sovereign upon its creation. That the National
Government, through the Director of Lands, represented by the Solicitor
General, in the cadastral proceedings did not contest the claim of the City
of Manila that the land is its property, does not detract from its character
as State property and in no way divests the legislature of its power to deal
with it as such, the state not being bound by the mistakes and/or
negligence of its officers.
One decisive fact that should be noted is that the City of Manila expressly
recognized the paramount title of the State over said land when by its
resolution of September 20, 1960, the Municipal Board, presided by then
Vice-Mayor Antonio Villegas, requested "His Excellency the President of
the Philippines to consider the feasibility of declaring the city property
bounded by Florida, San Andres and Nebraska Streets, under Transfer
Certificate of Title Nos. 25545 and 25547, containing an area of 7,450
square meters, as patrimonial property of the City of Manila for the
purpose of reselling these lots to the actual occupants thereof." (See
Annex E, Partial Stipulation of Facts, Civil Case No. 67945, CFI, Manila, p.
121, Record of the Case) [Emphasis Supplied]
The alleged patrimonial character of the land under the ownership of the
City of Manila is totally belied by the City's own official act, which is fatal
to its claim since the Congress did not do as bidden. If it were its
patrimonial property why should the City of Manila be requesting the
President to make representation to the legislature to declare it as such so
it can be disposed of in favor of the actual occupants? There could be no
more blatant recognition of the fact that said land belongs to the State
and was simply granted in usufruct to the City of Manila for municipal
purposes. But since the City did not actually use said land for any
recognized public purpose and allowed it to remain idle and unoccupied
for a long time until it was overrun by squatters, no presumption of State
grant of ownership in favor of the City of Manila may be acquiesced in to
justify the claim that it is its own private or patrimonial property
(Municipality of Tigbauan vs. Director of Lands, 35 Phil. 798; City of Manila
vs. Insular Government, 10 Phil. 327; Municipality of Luzuriaga vs. Director
of Lands, 24 Phil. 193). The conclusion of the respondent court that
Republic Act No. 4118 converted a patrimonial property of the City of
Manila into a parcel of disposable land of the State and took it away from
the City without compensation is, therefore, unfounded. In the last
analysis the land in question pertains to the State and the City of Manila
merely acted as trustee for the benefit of the people therein for whom the
State can legislate in the exercise of its legitimate powers.
Republic Act No. 4118 was never intended to expropriate the property
involved but merely to confirm its character as communal land of the
State and to make it available for disposition by the National Government:
And this was done at the instance or upon the request of the City of
Manila itself. The subdivision of the land and conveyance of the resulting
subdivision lots to the occupants by Congressional authorization does not
operate as an exercise of the power of eminent domain without just
compensation in violation of Section 1, subsection (2), Article III of the
Constitution, but simply as a manifestation of its right and power to deal
with state property.
It should be emphasized that the law assailed was enacted upon formal
written petition of the Municipal Board of Manila in the form of a legally
approved resolution. The certificate of title over the property in the name
of the City of Manila was accordingly cancelled and another issued to the
Land Tenure Administration after the voluntary surrender of the City's
duplicate certificate of title by the City Treasurer with the knowledge and
consent of the City Mayor. To implement the provisions of Republic Act No.
4118, the then Deputy Governor of the Land Authority sent a letter, dated
February 18, 1965, to the City Mayor furnishing him with a copy of the
"proposed subdivision plan of the said lot as prepared for the Republic of
the Philippines for subdivision and resale by the Land Authority to bona
fide applicants." On March 2, 1965, the Mayor of Manila, through his
Executive and Technical Adviser, acknowledged receipt of the subdivision
plan and informed the Land Authority that his Office "will interpose no
objection to the implementation of said law provided that its provisions
are strictly complied with." The foregoing sequence of events, clearly
indicate a pattern of regularity and observance of due process in the
reversion of the property to the National Government. All such acts were
done in recognition by the City of Manila of the right and power of the
Congress to dispose of the land involved.

Consequently, the City of Manila was not deprived of anything it owns,

either under the due process clause or under the eminent domain
provisions of the Constitution. If it failed to get from the Congress the
concession it sought of having the land involved given to it as its
patrimonial property, the Courts possess no power to grant that relief.
Republic Act No. 4118 does not, therefore, suffer from any constitutional
infirmity.

WHEREFORE, the appealed decision is hereby reversed, and petitioners

shall proceed with the free and untrammeled implementation of Republic
Act No. 4118 without any obstacle from the respondents. Without costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee and

Antonio, JJ., concur.

Barredo and Makasiar, JJ., took no part.


G.R. No. L-28379 March 27, 1929
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, applicant-
appellant,
vs.
CONSORCIA CABANGIS, ET AL., claimants-appellees.
Attorney-General Jaranilla for appellant.
Abad Santos, Camus & Delgado for appellees.
VILLA-REAL, J.:
The Government of the Philippine Islands appeals to this court from the
judgment of the Court of First Instance of Manila in cadastral proceeding
No. 373 of the Court of First Instance of Manila, G. L. R. O. Cadastral
Record No. 373, adjudicating the title and decreeing the registration of
lots Nos. 36, 39 and 40, block 3055 of the cadastral survey of the City of
Manila in favor of Consuelo, Consorcia, Elvira and Tomas, surnamed
Cabangis, in equal parts, and dismissing the claims presented by the
Government of the Philippine Islands and the City of Manila.
In support of its appeal, the appellant assigns the following alleged errors
as committed by the trial court in its judgment, to wit:
1. The lower court erred in not holding that the lots in question are
of the public domain, the same having been gained from the sea
(Manila Bay) by accession, by fillings made by the Bureau of Public
Works and by the construction of the break-water (built by the
Bureau of Navigation) near the mouth of Vitas Estero.
2. The lower court erred in holding that the lots in question formed
part of the big parcel of land belonging to the spouses Maximo
Cabangis and Tita Andres, and in holding that these spouses and
their successors in interest have been in continuous, public,
peaceful and uninterrupted possession of said lots up to the time
this case came up.
3. The lower court erred in holding that said lots existed before, but
that due to the current of the Pasig River and to the action of the
big waves in Manila Bay during the south-west monsoons, the same
disappeared.
4. The lower court erred in adjudicating the registration of the lands
in question in the name of the appellees, and in denying the
appellant's motion for a new trial.
A preponderance of the evidence in the record which may properly be
taken into consideration in deciding the case, proves the following facts:
Lots 36, 39 and 40, block 3035 of cadastral proceeding No. 71 of the City
of Manila, G. L. R. O. Record No. 373, were formerly a part of a large parcel
of land belonging to the predecessor of the herein claimants and
appellees. From the year 1896 said land began to wear away, due to the
action of the waves of Manila Bay, until the year 1901 when the said lots
became completely submerged in water in ordinary tides, and remained in
such a state until 1912 when the Government undertook the dredging of
Vitas Estuary in order to facilitate navigation, depositing all the sand and
silt taken from the bed of the estuary on the low lands which were
completely covered with water, surrounding that belonging to the
Philippine Manufacturing Company, thereby slowly and gradually forming
the lots, the subject matter of this proceeding.
Up to the month of February, 1927 nobody had declared lot 39 for the
purposes of taxation, and it was only in the year 1926 that Dr. Pedro Gil, in
behalf of the claimants and appellees, declared lot No. 40 for such
purpose.
In view of the facts just stated, as proved by a preponderance of the
evidence, the question arises: Who owns lots 36, 39 and 40 in question?
The claimants-appellees contend that inasmuch as the said lots once
formed a part of a large parcel of land belonging to their predecessors,
whom they succeeded, and their immediate predecessor in interest,
Tomas Cabangis, having taken possession thereof as soon as they were
reclaimed, giving his permission to some fishermen to dry their fishing
nets and deposit their bancas thereon, said lots belong to them.
Article 339, subsection 1, of the Civil Code, reads:
Article 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,
shorts, roadsteads, and that of a similar character.
x xx x xx x xx
Article 1, case 3, of the Law of Waters of August 3, 1866, provides as
follows:
ARTICLE 1. The following are part of the national domain open to
public use:
x xx x xx x xx
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 equinoctial 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 appears 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 seas), 'rada' (roadstead), or
the like. . . .
In the EnciclopediaJuridica Espanola, 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
beach. They 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.
Now then , when said land was reclaimed, did the claimants-appellees or
their predecessors recover it as their original property?
As we have seen, the land belonging to the predecessors of the herein
claimants-appellees began to wear way in 1896, owing to the gradual
erosion caused by the ebb and flow of the tide, until the year 1901, when
the waters of Manila Bay completely submerged a portion of it, included
within lots 36, 39 and 40 here in question, remaining thus under water
until reclaimed as a result of certain work done by the Government in
1912. According to the above-cited authorities said portion of land, that is,
lots 36, 39 and 40, which was private property, became a part of the
public domain. The predecessors of the herein claimants-appellees could
have protected their land by building a retaining wall, with the consent of
competent authority, in 1896 when the waters of the sea began to wear it
away, in accordance with the provisions of Article 29 of the aforecited Law
of Waters of August 3, 1866, and their failure to do so until 1901, when a
portion of the same became completely covered by said waters,
remaining thus submerged until 1912, constitutes abandonment.
Now then: The lots under discussion having been reclaimed from the seas
as a result of certain work done by the Government, to whom do they
belong?
The answer to this question is found in article 5 of the aforementioned
Law of Waters, which is as follows:
ART. 5. Lands reclaimed from the sea in consequence of works
constructed by the State, or by the provinces, pueblos or private
persons, with proper permission, shall become the property of the
party constructing such works, unless otherwise provided by the
terms of the grant of authority.
The fact that from 1912 some fishermen had been drying their fishing nets
and depositing their bancas on lots 36, 39 and 40, by permission of Tomas
Cabangis, does not confer on the latter or his successors the ownership of
said lots, because, as they were converted into public land, no private
person could acquire title thereto except in the form and manner
established by the law.
In the case of Buzon vs. Insular Government and City of Manila (13 Phil.,
324), cited by the claimants-appellees, this court, admitting the findings
and holdings of the lower court, said the following:
If we heed the parol evidence, we find that the seashore was
formerly about one hundred brazas distant from the land in
question; that, in the course of time, and by the removal of a
considerable quantity of sand from the shore at the back of the land
for the use of the street car company in filling in Calle Cervantes,
the sea water in ordinary tides now covers part of the land
described in the petition.
The fact that certain land, not the bed of a river or of the sea, is
covered by sea water during the period of ordinary high tide, is not
a reason established by any law to cause the loss thereof,
especially when, as in the present case, it becomes covered by
water owing to circumstances entirely independent of the will of the
owner.
In the case of Director of Lands vs. Aguilar (G.R. No. 22034), 1 also cited by
the claimants-appellees, wherein the Government adduced no evidence in
support of its contention, the lower court said in part:
The contention of the claimants Cabangis is to the effect that said
lots are a part of the adjoining land adjudicated to their deceased
father, Don Tomas Cabangis, which, for over fifty years had
belonged to their deceased grandmother, Tita Andres, and that, due
to certain improvements made in Manila Bay, the waters of the sea
covered a large part of the lots herein claimed.
The Government of the Philippine Islands also claims the ownership
of said lots, because, at ordinary high tide, they are covered by the
sea.
Upon petition of the parties, the lower court made an ocular
inspection of said lots on September 12, 1923, and on said
inspection found some light material houses built thereon, and that
on that occasion the waters of the sea did not reach the aforesaid
lots.
From the evidence adduced at the trial of this cause, it may be
inferred that Tita Andres, during her lifetime was the owner of a
rather large parcel of land which was adjudicated by a decree to her
son Tomas Cabangis; the lots now in question are contiguous to that
land and are covered by the waters of the sea at extraordinary high
tide; some 50 years before the sea did not reach said strip of land,
and on it were constructed, for the most part, light material houses,
occupied by the tenants of Tita Andres, to whom they paid rent.
Upon her death, her son Tomas Cabangis succeeded to the
possession, and his children succeeded him, they being the present
claimants, Consuelo, Jesus, Tomas, and ConsorciaCabangis.
The Government of the Philippine Islands did not adduce any
evidence in support of its contention, with the exception of registry
record No. 8147, to show that the lots here in question were not
excluded from the application presented in said proceeding.
It will be seen that in the case of Buzon vs. Insular Government and City of
Manila, cited above, the rise of the waters of the sea that covered the
lands there in dispute, was due not to the action of the tide but to the fact
that a large quantity of sand was taken from the sea at the side of said
land in order to fill in Cervantes Street, and this court properly held that
because of this act, entirely independent of the will of the owner of said
land, the latter could not lose the ownership thereof, and the mere fact
that the waters of the sea covered it as a result of said act, is not
sufficient to convert it into public land, especially, as the land was high
and appropriate for building purposes.
In the case of the Director of Lands vs. Aguilar also cited by the claimants-
appellees, the Insular Government did not present any evidence in
support of its contention, thus leaving uncontradicted the evidence
adduced by the claimants Aguilar et al., as to the ownership, possession
and occupation of said lots.
In the instant case the evidence shows that from 1896, the waves of
Manila Bay had been gradually and constantly washing away the sand
that formed the lots here in question, until 1901, when the sea water
completely covered them, and thus they remained until the year 1912. In
the latter year they were reclaimed from the sea by filling in with sand
and silt extracted from the bed of Vitas Estuary when the Government
dredged said estuary in order to facilitate navigation. Neither the herein
claimants-appellees nor their predecessors did anything to prevent their
destruction.

In conclusion, then, we hold that the lots in question having disappeared

on account of the gradual erosion due to the ebb and flow of the tide, and
having remained in such a state until they were reclaimed from the sea by
the filling in done by the Government, they are public land. (Aragon vs.
Insular Government, 19 Phil., 223; Francisco vs. Government of the
Philippine Islands, 28 Phil., 505).

By virtue whereof, the judgment appealed from is reversed and lots Nos.
36, 39 and 40 of cadastral proceeding No. 373 of the City of Manila are
held to be public land belonging to the Government of the United States
under the administration and control of the Government of the Philippine
Islands. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns and Romualdez, JJ., concur.