Republic of the Philippines about three inches high, it could not be determined with certainty to whether said
SUPREME COURT adobe stone was placed purposely or not, as the place abounds with this kind of
Manila
EN BANC
G.R. No. L-15334 January 31, 1964
BOARD OF ASSESSMENT APPEALS, CITY ASSESSOR and CITY TREASURER OF QUEZON
CITY, petitioners,
vs.
MANILA ELECTRIC COMPANY, respondent.
Assistant City Attorney Jaime R. Agloro for petitioners.
Ross, Selph and Carrascoso for respondent.
PAREDES, J.:
From the stipulation of facts and evidence adduced during the hearing, the following appear:
On October 20, 1902, the Philippine Commission enacted Act No. 484 which authorized the
Municipal Board of Manila to grant a franchise to construct, maintain and operate an electric
street railway and electric light, heat and power system in the City of Manila and its suburbs
to the person or persons making the most favorable bid. Charles M. Swift was awarded the
said franchise on March 1903, the terms and conditions of which were embodied in
Ordinance No. 44 approved on March 24, 1903. Respondent Manila Electric Co. (Meralco for
short), became the transferee and owner of the franchise.
Meralco's electric power is generated by its hydro-electric plant located at Botocan Falls,
Laguna and is transmitted to the City of Manila by means of electric transmission wires,
running from the province of Laguna to the said City. These electric transmission wires which
carry high voltage current, are fastened to insulators attached on steel towers constructed by
respondent at intervals, from its hydro-electric plant in the province of Laguna to the City of
Manila. The respondent Meralco has constructed 40 of these steel towers within Quezon City,
on land belonging to it. A photograph of one of these steel towers is attached to the petition
for review, marked Annex A. Three steel towers were inspected by the lower court and
parties and the following were the descriptions given there of by said court:
The first steel tower is located in South Tatalon, España Extension, Quezon City. The
findings were as follows: the ground around one of the four posts was excavated to
a depth of about eight (8) feet, with an opening of about one (1) meter in diameter,
decreased to about a quarter of a meter as it we deeper until it reached the bottom
of the post; at the bottom of the post were two parallel steel bars attached to the
leg means of bolts; the tower proper was attached to the leg three bolts; with two
cross metals to prevent mobility; there was no concrete foundation but there was
adobe stone underneath; as the bottom of the excavation was covered with water
1
stone; and the tower carried five high voltage wires without cover or any insulating
materials.
The second tower inspected was located in Kamuning Road, K-F, Quezon City, on
land owned by the petitioner approximate more than one kilometer from the first
tower. As in the first tower, the ground around one of the four legs was excavate
from seven to eight (8) feet deep and one and a half (1-½) meters wide. There being
very little water at the bottom, it was seen that there was no concrete foundation,
but there soft adobe beneath. The leg was likewise provided with two parallel steel
bars bolted to a square metal frame also bolted to each corner. Like the first one,
the second tower is made up of metal rods joined together by means of bolts, so
that by unscrewing the bolts, the tower could be dismantled and reassembled.
The third tower examined is located along Kamias Road, Quezon City. As in the first
two towers given above, the ground around the two legs of the third tower was
excavated to a depth about two or three inches beyond the outside level of the
steel bar foundation. It was found that there was no concrete foundation. Like the
two previous ones, the bottom arrangement of the legs thereof were found to be
resting on soft adobe, which, probably due to high humidity, looks like mud or clay.
It was also found that the square metal frame supporting the legs were not
attached to any material or foundation.
On November 15, 1955, petitioner City Assessor of Quezon City declared the aforesaid steel
towers for real property tax under Tax declaration Nos. 31992 and 15549. After denying
respondent's petition to cancel these declarations, an appeal was taken by respondent to the
Board of Assessment Appeals of Quezon City, which required respondent to pay the amount
of P11,651.86 as real property tax on the said steel towers for the years 1952 to 1956.
Respondent paid the amount under protest, and filed a petition for review in the Court of Tax
Appeals (CTA for short) which rendered a decision on December 29, 1958, ordering the
cancellation of the said tax declarations and the petitioner City Treasurer of Quezon City to
refund to the respondent the sum of P11,651.86. The motion for reconsideration having been
denied, on April 22, 1959, the instant petition for review was filed.
In upholding the cause of respondents, the CTA held that: (1) the steel towers come within
the term "poles" which are declared exempt from taxes under part II paragraph 9 of
respondent's franchise; (2) the steel towers are personal properties and are not subject to
real property tax; and (3) the City Treasurer of Quezon City is held responsible for the refund
of the amount paid. These are assigned as errors by the petitioner in the brief.
The tax exemption privilege of the petitioner is quoted hereunder:
PAR 9. The grantee shall be liable to pay the same taxes upon its real estate,
buildings, plant (not including poles, wires, transformers, and insulators),
machinery and personal property as other persons are or may be hereafter
required by law to pay ... Said percentage shall be due and payable at the time
 stated in paragraph nineteen of Part One hereof, ... and shall be in lieu of all taxes
and assessments of whatsoever nature and by whatsoever authority upon the
privileges, earnings, income, franchise, and poles, wires, transformers, and
insulators of the grantee from which taxes and assessments the grantee is hereby
expressly exempted. (Par. 9, Part Two, Act No. 484 Respondent's Franchise;
emphasis supplied.)
The word "pole" means "a long, comparatively slender usually cylindrical piece of wood or
timber, as typically the stem of a small tree stripped of its branches; also by extension, a
similar typically cylindrical piece or object of metal or the like". The term also refers to
"an upright standard to the top of which something is affixed or by which something is
supported; as a dovecote set on a pole; telegraph poles; a tent pole; sometimes, specifically a
vessel's master (Webster's New International Dictionary 2nd Ed., p. 1907.) Along the streets,
in the City of Manila, may be seen cylindrical metal poles, cubical concrete poles, and poles of
the PLDT Co. which are made of two steel bars joined together by an interlacing metal rod.
They are called "poles" notwithstanding the fact that they are no made of wood. It must be
noted from paragraph 9, above quoted, that the concept of the "poles" for which exemption
is granted, is not determined by their place or location, nor by the character of the electric
current it carries, nor the material or form of which it is made, but the use to which they are
dedicated. In accordance with the definitions, pole is not restricted to a long cylindrical piece
of wood or metal, but includes "upright standards to the top of which something is affixed or
by which something is supported. As heretofore described, respondent's steel supports
consists of a framework of four steel bars or strips which are bound by steel cross-arms atop
of which are cross-arms supporting five high voltage transmission wires (See Annex A) and
their sole function is to support or carry such wires.
The conclusion of the CTA that the steel supports in question are embraced in the term
"poles" is not a novelty. Several courts of last resort in the United States have called these
steel supports "steel towers", and they denominated these supports or towers, as electric
poles. In their decisions the words "towers" and "poles" were used interchangeably, and it is
well understood in that jurisdiction that a transmission tower or pole means the same thing.
In a proceeding to condemn land for the use of electric power wires, in which the law
provided that wires shall be constructed upon suitable poles, this term was construed to
mean either wood or metal poles and in view of the land being subject to overflow, and the
necessary carrying of numerous wires and the distance between poles, the statute was
interpreted to include towers or poles. (Stemmons and Dallas Light Co. (Tex) 212 S.W. 222,
224; 32-A Words and Phrases, p. 365.)
The term "poles" was also used to denominate the steel supports or towers used by an
association used to convey its electric power furnished to subscribers and members,
constructed for the purpose of fastening high voltage and dangerous electric wires alongside
public highways. The steel supports or towers were made of iron or other metals consisting of
two pieces running from the ground up some thirty feet high, being wider at the bottom than
at the top, the said two metal pieces being connected with criss-cross iron running from the
bottom to the top, constructed like ladders and loaded with high voltage electricity. In form
and structure, they are like the steel towers in question. (Salt River Valley Users' Ass'n v.
Compton, 8 P. 2nd, 249-250.)
2
The term "poles" was used to denote the steel towers of an electric company engaged in the
generation of hydro-electric power generated from its plant to the Tower of Oxford and City
of Waterbury. These steel towers are about 15 feet square at the base and extended to a
height of about 35 feet to a point, and are embedded in the cement foundations sunk in the
earth, the top of which extends above the surface of the soil in the tower of Oxford, and to
the towers are attached insulators, arms, and other equipment capable of carrying wires for
the transmission of electric power (Connecticut Light and Power Co. v. Oxford, 101 Conn. 383,
126 Atl. p. 1).
In a case, the defendant admitted that the structure on which a certain person met his death
was built for the purpose of supporting a transmission wire used for carrying high-tension
electric power, but claimed that the steel towers on which it is carried were so large that their
wire took their structure out of the definition of a pole line. It was held that in defining the
word pole, one should not be governed by the wire or material of the support used, but was
considering the danger from any elevated wire carrying electric current, and that regardless
of the size or material wire of its individual members, any continuous series of structures
intended and used solely or primarily for the purpose of supporting wires carrying electric
currents is a pole line (Inspiration Consolidation Cooper Co. v. Bryan 252 P. 1016).
It is evident, therefore, that the word "poles", as used in Act No. 484 and incorporated in the
petitioner's franchise, should not be given a restrictive and narrow interpretation, as to
defeat the very object for which the franchise was granted. The poles as contemplated
thereon, should be understood and taken as a part of the electric power system of the
respondent Meralco, for the conveyance of electric current from the source thereof to its
consumers. If the respondent would be required to employ "wooden poles", or "rounded
poles" as it used to do fifty years back, then one should admit that the Philippines is one
century behind the age of space. It should also be conceded by now that steel towers, like the
ones in question, for obvious reasons, can better effectuate the purpose for which the
respondent's franchise was granted.
Granting for the purpose of argument that the steel supports or towers in question are not
embraced within the term poles, the logical question posited is whether they
constitute real properties, so that they can be subject to a real property tax. The tax law does
not provide for a definition of real property; but Article 415 of the Civil Code does, by stating
the following are immovable property:
(1) Land, buildings, roads, and constructions of all kinds adhered to the soil;
xxx xxx xxx
(3) Everything attached to an immovable in a fixed manner, in such a way that it
cannot be separated therefrom without breaking the material or deterioration of
the object;
xxx xxx xxx
 (5) Machinery, receptacles, instruments or implements intended by the owner of
the tenement for an industry or works which may be carried in a building or on a
piece of land, and which tends directly to meet the needs of the said industry or
works;

xxx xxx xxx

The steel towers or supports in question, do not come within the objects mentioned in
paragraph 1, because they do not constitute buildings or constructions adhered to the soil.
They are not construction analogous to buildings nor adhering to the soil. As per description,
given by the lower court, they are removable and merely attached to a square metal frame by
means of bolts, which when unscrewed could easily be dismantled and moved from place to
place. They can not be included under paragraph 3, as they are not attached to an immovable
in a fixed manner, and they can be separated without breaking the material or causing
deterioration upon the object to which they are attached. Each of these steel towers or
supports consists of steel bars or metal strips, joined together by means of bolts, which can
be disassembled by unscrewing the bolts and reassembled by screwing the same. These steel
towers or supports do not also fall under paragraph 5, for they are not machineries,
receptacles, instruments or implements, and even if they were, they are not intended for
industry or works on the land. Petitioner is not engaged in an industry or works in the land in
which the steel supports or towers are constructed.

It is finally contended that the CTA erred in ordering the City Treasurer of Quezon City to
refund the sum of P11,651.86, despite the fact that Quezon City is not a party to the case. It is
argued that as the City Treasurer is not the real party in interest, but Quezon City, which was
not a party to the suit, notwithstanding its capacity to sue and be sued, he should not be
ordered to effect the refund. This question has not been raised in the court below, and,
therefore, it cannot be properly raised for the first time on appeal. The herein petitioner is
indulging in legal technicalities and niceties which do not help him any; for factually, it was he
(City Treasurer) whom had insisted that respondent herein pay the real estate taxes, which
respondent paid under protest. Having acted in his official capacity as City Treasurer of
Quezon City, he would surely know what to do, under the circumstances.

IN VIEW HEREOF, the decision appealed from is hereby affirmed, with costs against the
petitioners.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and
Regala, JJ., concur.
Makalintal, J., concurs in the result.
Dizon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

3
 FIRST DIVISION NORTH: By No. 6, Ardoin Street

G.R. No. L-50008 August 31, 1987 SOUTH: By No. 2, Ardoin Street

PRUDENTIAL BANK, petitioner, EAST: By 37 Canda Street, and

vs.
HONORABLE DOMINGO D. PANIS, Presiding Judge of Branch III, Court of First Instance of WEST: By Ardoin Street.
Zambales and Olongapo City; FERNANDO MAGCALE & TEODULA BALUYUT-
MAGCALE, respondents.
All corners of the lot marked by
conc. cylindrical monuments of
PARAS, J.: the Bureau of Lands as visible
limits. ( Exhibit "A, " also Exhibit
This is a petition for review on certiorari of the November 13, 1978 Decision * of the then "1" for defendant).
Court of First Instance of Zambales and Olongapo City in Civil Case No. 2443-0 entitled
"Spouses Fernando A. Magcale and Teodula Baluyut-Magcale vs. Hon. Ramon Y. Pardo and Apart from the stipulations in the printed portion of
Prudential Bank" declaring that the deeds of real estate mortgage executed by respondent the aforestated deed of mortgage, there appears a
spouses in favor of petitioner bank are null and void. rider typed at the bottom of the reverse side of the
document under the lists of the properties mortgaged
The undisputed facts of this case by stipulation of the parties are as follows: which reads, as follows:

... on November 19, 1971, plaintiffs-spouses Fernando A. Magcale and AND IT IS FURTHER AGREED that
Teodula Baluyut Magcale secured a loan in the sum of P70,000.00 from in the event the Sales Patent on
the defendant Prudential Bank. To secure payment of this loan, plaintiffs the lot applied for by the
executed in favor of defendant on the aforesaid date a deed of Real Estate Mortgagors as herein stated is
Mortgage over the following described properties: released or issued by the Bureau
of Lands, the Mortgagors hereby
l. A 2-STOREY, SEMI-CONCRETE, residential building with warehouse authorize the Register of Deeds to
spaces containing a total floor area of 263 sq. meters, more or less, hold the Registration of same until
generally constructed of mixed hard wood and concrete materials, under this Mortgage is cancelled, or to
a roofing of cor. g. i. sheets; declared and assessed in the name of annotate this encumbrance on
FERNANDO MAGCALE under Tax Declaration No. 21109, issued by the the Title upon authority from the
Assessor of Olongapo City with an assessed value of P35,290.00. This Secretary of Agriculture and
building is the only improvement of the lot. Natural Resources, which title
with annotation, shall be released
in favor of the herein Mortgage.
2. THE PROPERTY hereby conveyed by way of MORTGAGE includes the
right of occupancy on the lot where the above property is erected, and
more particularly described and bounded, as follows: From the aforequoted stipulation, it is obvious that
the mortgagee (defendant Prudential Bank) was at
the outset aware of the fact that the mortgagors
A first class residential land Identffied as Lot No. 720,
(plaintiffs) have already filed a Miscellaneous Sales
(Ts-308, Olongapo Townsite Subdivision) Ardoin
Application over the lot, possessory rights over which,
Street, East Bajac-Bajac, Olongapo City, containing an
were mortgaged to it.
area of 465 sq. m. more or less, declared and
assessed in the name of FERNANDO MAGCALE under
Tax Duration No. 19595 issued by the Assessor of Exhibit "A" (Real Estate Mortgage) was registered
Olongapo City with an assessed value of P1,860.00; under the Provisions of Act 3344 with the Registry of
bounded on the Deeds of Zambales on November 23, 1971.

4
 On May 2, 1973, plaintiffs secured an additional loan
from defendant Prudential Bank in the sum of
P20,000.00. To secure payment of this additional loan,
plaintiffs executed in favor of the said defendant
another deed of Real Estate Mortgage over the same
properties previously mortgaged in Exhibit "A."
(Exhibit "B;" also Exhibit "2" for defendant). This
second deed of Real Estate Mortgage was likewise
registered with the Registry of Deeds, this time in
Olongapo City, on May 2,1973.
On April 24, 1973, the Secretary of Agriculture issued Miscellaneous Sales
Patent No. 4776 over the parcel of land, possessory rights over which
were mortgaged to defendant Prudential Bank, in favor of plaintiffs. On
the basis of the aforesaid Patent, and upon its transcription in the
Registration Book of the Province of Zambales, Original Certificate of Title
No. P-2554 was issued in the name of Plaintiff Fernando Magcale, by the
Ex-Oficio Register of Deeds of Zambales, on May 15, 1972.
For failure of plaintiffs to pay their obligation to defendant Bank after it
became due, and upon application of said defendant, the deeds of Real
Estate Mortgage (Exhibits "A" and "B") were extrajudicially foreclosed.
Consequent to the foreclosure was the sale of the properties therein
mortgaged to defendant as the highest bidder in a public auction sale
conducted by the defendant City Sheriff on April 12, 1978 (Exhibit "E").
The auction sale aforesaid was held despite written request from plaintiffs
through counsel dated March 29, 1978, for the defendant City Sheriff to
desist from going with the scheduled public auction sale (Exhibit "D")."
(Decision, Civil Case No. 2443-0, Rollo, pp. 29-31).
Respondent Court, in a Decision dated November 3, 1978 declared the deeds of Real Estate
Mortgage as null and void (Ibid., p. 35).
On December 14, 1978, petitioner filed a Motion for Reconsideration (Ibid., pp. 41-53),
opposed by private respondents on January 5, 1979 (Ibid., pp. 54-62), and in an Order dated
January 10, 1979 (Ibid., p. 63), the Motion for Reconsideration was denied for lack of merit.
Hence, the instant petition (Ibid., pp. 5-28).
The first Division of this Court, in a Resolution dated March 9, 1979, resolved to require the
respondents to comment (Ibid., p. 65), which order was complied with the Resolution dated
May 18,1979, (Ibid., p. 100), petitioner filed its Reply on June 2,1979 (Ibid., pp. 101-112).
Thereafter, in the Resolution dated June 13, 1979, the petition was given due course and the
parties were required to submit simultaneously their respective memoranda. (Ibid., p. 114).
On July 18, 1979, petitioner filed its Memorandum (Ibid., pp. 116-144), while private
respondents filed their Memorandum on August 1, 1979 (Ibid., pp. 146-155).
5
In a Resolution dated August 10, 1979, this case was considered submitted for decision (Ibid.,
P. 158).
In its Memorandum, petitioner raised the following issues:
1. WHETHER OR NOT THE DEEDS OF REAL ESTATE MORTGAGE ARE VALID; AND
2. WHETHER OR NOT THE SUPERVENING ISSUANCE IN FAVOR OF PRIVATE RESPONDENTS OF
MISCELLANEOUS SALES PATENT NO. 4776 ON APRIL 24, 1972 UNDER ACT NO. 730 AND THE
COVERING ORIGINAL CERTIFICATE OF TITLE NO. P-2554 ON MAY 15,1972 HAVE THE EFFECT
OF INVALIDATING THE DEEDS OF REAL ESTATE MORTGAGE. (Memorandum for Petitioner,
Rollo, p. 122).
This petition is impressed with merit.
The pivotal issue in this case is whether or not a valid real estate mortgage can be constituted
on the building erected on the land belonging to another.
The answer is in the affirmative.
In the enumeration of properties under Article 415 of the Civil Code of the Philippines, this
Court ruled that, "it is obvious that the inclusion of "building" separate and distinct from the
land, in said provision of law can only mean that a building is by itself an immovable
property." (Lopez vs. Orosa, Jr., et al., L-10817-18, Feb. 28, 1958; Associated Inc. and Surety
Co., Inc. vs. Iya, et al., L-10837-38, May 30,1958).
Thus, while it is true that a mortgage of land necessarily includes, in the absence of
stipulation of the improvements thereon, buildings, still a building by itself may be mortgaged
apart from the land on which it has been built. Such a mortgage would be still a real estate
mortgage for the building would still be considered immovable property even if dealt with
separately and apart from the land (Leung Yee vs. Strong Machinery Co., 37 Phil. 644). In the
same manner, this Court has also established that possessory rights over said properties
before title is vested on the grantee, may be validly transferred or conveyed as in a deed of
mortgage (Vda. de Bautista vs. Marcos, 3 SCRA 438 [1961]).
Coming back to the case at bar, the records show, as aforestated that the original mortgage
deed on the 2-storey semi-concrete residential building with warehouse and on the right of
occupancy on the lot where the building was erected, was executed on November 19, 1971
and registered under the provisions of Act 3344 with the Register of Deeds of Zambales on
November 23, 1971. Miscellaneous Sales Patent No. 4776 on the land was issued on April 24,
1972, on the basis of which OCT No. 2554 was issued in the name of private respondent
Fernando Magcale on May 15, 1972. It is therefore without question that the original
mortgage was executed before the issuance of the final patent and before the government
was divested of its title to the land, an event which takes effect only on the issuance of the
sales patent and its subsequent registration in the Office of the Register of Deeds (Visayan
Realty Inc. vs. Meer, 96 Phil. 515; Director of Lands vs. De Leon, 110 Phil. 28; Director of Lands
vs. Jurado, L-14702, May 23, 1961; Pena "Law on Natural Resources", p. 49). Under the transaction, however, would be subject to whatever steps the Government may take for the
foregoing considerations, it is evident that the mortgage executed by private respondent on reversion of the land in its favor.
his own building which was erected on the land belonging to the government is to all intents
and purposes a valid mortgage. PREMISES CONSIDERED, the decision of the Court of First Instance of Zambales & Olongapo
City is hereby MODIFIED, declaring that the Deed of Real Estate Mortgage for P70,000.00 is
As to restrictions expressly mentioned on the face of respondents' OCT No. P-2554, it will be valid but ruling that the Deed of Real Estate Mortgage for an additional loan of P20,000.00 is
noted that Sections 121, 122 and 124 of the Public Land Act, refer to land already acquired null and void, without prejudice to any appropriate action the Government may take against
under the Public Land Act, or any improvement thereon and therefore have no application to private respondents.
the assailed mortgage in the case at bar which was executed before such eventuality.
Likewise, Section 2 of Republic Act No. 730, also a restriction appearing on the face of private SO ORDERED.
respondent's title has likewise no application in the instant case, despite its reference to
encumbrance or alienation before the patent is issued because it refers specifically to
encumbrance or alienation on the land itself and does not mention anything regarding the
improvements existing thereon.

But it is a different matter, as regards the second mortgage executed over the same
properties on May 2, 1973 for an additional loan of P20,000.00 which was registered with the
Registry of Deeds of Olongapo City on the same date. Relative thereto, it is evident that such
mortgage executed after the issuance of the sales patent and of the Original Certificate of
Title, falls squarely under the prohibitions stated in Sections 121, 122 and 124 of the Public
Land Act and Section 2 of Republic Act 730, and is therefore null and void.

Petitioner points out that private respondents, after physically possessing the title for five
years, voluntarily surrendered the same to the bank in 1977 in order that the mortgaged may
be annotated, without requiring the bank to get the prior approval of the Ministry of Natural
Resources beforehand, thereby implicitly authorizing Prudential Bank to cause the annotation
of said mortgage on their title.

However, the Court, in recently ruling on violations of Section 124 which refers to Sections
118, 120, 122 and 123 of Commonwealth Act 141, has held:

... Nonetheless, we apply our earlier rulings because we believe that as

in pari delicto may not be invoked to defeat the policy of the State neither
may the doctrine of estoppel give a validating effect to a void contract.
Indeed, it is generally considered that as between parties to a contract,
validity cannot be given to it by estoppel if it is prohibited by law or is
Republic of the Philippines
against public policy (19 Am. Jur. 802). It is not within the competence of
SUPREME COURT
any citizen to barter away what public policy by law was to preserve
Manila
(Gonzalo Puyat & Sons, Inc. vs. De los Amas and Alino supra). ... (Arsenal
vs. IAC, 143 SCRA 54 [1986]).
EN BANC
This pronouncement covers only the previous transaction already alluded to and does not
pass upon any new contract between the parties (Ibid), as in the case at bar. It should not G.R. No. L-26278 August 4, 1927
preclude new contracts that may be entered into between petitioner bank and private
respondents that are in accordance with the requirements of the law. After all, private LEON SIBAL , plaintiff-appellant,
respondents themselves declare that they are not denying the legitimacy of their debts and vs.
appear to be open to new negotiations under the law (Comment; Rollo, pp. 95-96). Any new

6
EMILIANO J. VALDEZ ET AL., defendants.
EMILIANO J. VALDEZ, appellee.
J. E. Blanco for appellant.
Felix B. Bautista and Santos and Benitez for appellee.
JOHNSON, J.:
The action was commenced in the Court of First Instance of the Province of Tarlac on the 14th
day of December 1924. The facts are about as conflicting as it is possible for facts to be, in the
trial causes.
As a first cause of action the plaintiff alleged that the defendant Vitaliano Mamawal, deputy
sheriff of the Province of Tarlac, by virtue of a writ of execution issued by the Court of First
Instance of Pampanga, attached and sold to the defendant Emiliano J. Valdez the sugar cane
planted by the plaintiff and his tenants on seven parcels of land described in the complaint in
the third paragraph of the first cause of action; that within one year from the date of the
attachment and sale the plaintiff offered to redeem said sugar cane and tendered to the
defendant Valdez the amount sufficient to cover the price paid by the latter, the interest
thereon and any assessments or taxes which he may have paid thereon after the purchase,
and the interest corresponding thereto and that Valdez refused to accept the money and to
return the sugar cane to the plaintiff.
As a second cause of action, the plaintiff alleged that the defendant Emiliano J. Valdez was
attempting to harvest the palay planted in four of the seven parcels mentioned in the first
cause of action; that he had harvested and taken possession of the palay in one of said seven
parcels and in another parcel described in the second cause of action, amounting to 300
cavans; and that all of said palay belonged to the plaintiff.
Plaintiff prayed that a writ of preliminary injunction be issued against the defendant Emiliano
J. Valdez his attorneys and agents, restraining them (1) from distributing him in the
possession of the parcels of land described in the complaint; (2) from taking possession of, or
harvesting the sugar cane in question; and (3) from taking possession, or harvesting the palay
in said parcels of land. Plaintiff also prayed that a judgment be rendered in his favor and
against the defendants ordering them to consent to the redemption of the sugar cane in
question, and that the defendant Valdez be condemned to pay to the plaintiff the sum of
P1,056 the value of palay harvested by him in the two parcels above-mentioned ,with interest
and costs.
On December 27, 1924, the court, after hearing both parties and upon approval of the bond
for P6,000 filed by the plaintiff, issued the writ of preliminary injunction prayed for in the
complaint.
The defendant Emiliano J. Valdez, in his amended answer, denied generally and specifically
each and every allegation of the complaint and step up the following defenses:
7
(a) That the sugar cane in question had the nature of personal property and was
not, therefore, subject to redemption;
(b) That he was the owner of parcels 1, 2 and 7 described in the first cause of action
of the complaint;
(c) That he was the owner of the palay in parcels 1, 2 and 7; and
(d) That he never attempted to harvest the palay in parcels 4 and 5.
The defendant Emiliano J. Valdez by way of counterclaim, alleged that by reason of the
preliminary injunction he was unable to gather the sugar cane, sugar-cane shoots (puntas de
cana dulce) palay in said parcels of land, representing a loss to him of P8,375.20 and that, in
addition thereto, he suffered damages amounting to P3,458.56. He prayed, for a judgment (1)
absolving him from all liability under the complaint; (2) declaring him to be the absolute
owner of the sugar cane in question and of the palay in parcels 1, 2 and 7; and (3) ordering
the plaintiff to pay to him the sum of P11,833.76, representing the value of the sugar cane
and palay in question, including damages.
Upon the issues thus presented by the pleadings the cause was brought on for trial. After
hearing the evidence, and on April 28, 1926, the Honorable Cayetano Lukban, judge,
rendered a judgment against the plaintiff and in favor of the defendants —
(1) Holding that the sugar cane in question was personal property and, as such, was
not subject to redemption;
(2) Absolving the defendants from all liability under the complaint; and
(3) Condemning the plaintiff and his sureties Cenon de la Cruz, Juan Sangalang and
Marcos Sibal to jointly and severally pay to the defendant Emiliano J. Valdez the
sum of P9,439.08 as follows:
(a) P6,757.40, the value of the sugar cane;
(b) 1,435.68, the value of the sugar-cane shoots;
(c) 646.00, the value of palay harvested by plaintiff;
(d) 600.00, the value of 150 cavans of palay which the defendant was not
able to raise by reason of the injunction, at P4 cavan. 9,439.08 From that
judgment the plaintiff appealed and in his assignments of error contends
that the lower court erred: (1) In holding that the sugar cane in question
was personal property and, therefore, not subject to redemption;
 (2) In holding that parcels 1 and 2 of the complaint belonged to Valdez, as well as
parcels 7 and 8, and that the palay therein was planted by Valdez;
(3) In holding that Valdez, by reason of the preliminary injunction failed to realized
P6,757.40 from the sugar cane and P1,435.68 from sugar-cane shoots (puntas de
cana dulce);
(4) In holding that, for failure of plaintiff to gather the sugar cane on time, the
defendant was unable to raise palay on the land, which would have netted him the
sum of P600; and.
(5) In condemning the plaintiff and his sureties to pay to the defendant the sum of
P9,439.08.
It appears from the record:
(1) That on May 11, 1923, the deputy sheriff of the Province of Tarlac, by virtue of
writ of execution in civil case No. 20203 of the Court of First Instance of Manila
(Macondray & Co., Inc. vs. Leon Sibal),levied an attachment on eight parcels of land
belonging to said Leon Sibal, situated in the Province of Tarlac, designated in the
second of attachment as parcels 1, 2, 3, 4, 5, 6, 7 and 8 (Exhibit B, Exhibit 2-A).
(2) That on July 30, 1923, Macondray & Co., Inc., bought said eight parcels of land,
at the auction held by the sheriff of the Province of Tarlac, for the sum to
P4,273.93, having paid for the said parcels separately as follows (Exhibit C, and 2-A):
Parcel
1 .....................................................................
2 .....................................................................
3 .....................................................................
4 .....................................................................
5 .....................................................................
6 .....................................................................
7 with the house thereon ..........................
8 .....................................................................
==========
(3) That within one year from the sale of said parcel of land, and on the 24th day of
September, 1923, the judgment debtor, Leon Sibal, paid P2,000 to Macondray &
Co., Inc., for the account of the redemption price of said parcels of land, without
specifying the particular parcels to which said amount was to applied. The
redemption price said eight parcels was reduced, by virtue of said transaction, to
P2,579.97 including interest (Exhibit C and 2).
The record further shows:
(1) That on April 29, 1924, the defendant Vitaliano Mamawal, deputy sheriff of the
Province of Tarlac, by virtue of a writ of execution in civil case No. 1301 of the
Province of Pampanga (Emiliano J. Valdez vs. Leon Sibal 1.º — the same parties in
the present case), attached the personal property of said Leon Sibal located in
Tarlac, among which was included the sugar cane now in question in the seven
parcels of land described in the complaint (Exhibit A).
(2) That on May 9 and 10, 1924, said deputy sheriff sold at public auction said
personal properties of Leon Sibal, including the sugar cane in question to Emilio J.
Valdez, who paid therefor the sum of P1,550, of which P600 was for the sugar cane
(Exhibit A).
(3) That on April 29,1924, said deputy sheriff, by virtue of said writ of execution,
also attached the real property of said Leon Sibal in Tarlac, including all of his rights,
interest and participation therein, which real property consisted of eleven parcels
of land and a house and camarin situated in one of said parcels (Exhibit A).
(4) That on June 25, 1924, eight of said eleven parcels, including the house and the
camarin, were bought by Emilio J. Valdez at the auction held by the sheriff for the
sum of P12,200. Said eight parcels were designated in the certificate of sale as
parcels 1, 3, 4, 5, 6, 7, 10 and 11. The house and camarin were situated on parcel 7
P1.00 (Exhibit A).
2,000.00 (5) That the remaining three parcels, indicated in the certificate of the sheriff as
120.93 parcels 2, 12, and 13, were released from the attachment by virtue of claims
presented by Agustin Cuyugan and Domiciano Tizon (Exhibit A).
1,000.00
(6) That on the same date, June 25, 1924, Macondray & Co. sold and conveyed to
1.00
Emilio J. Valdez for P2,579.97 all of its rights and interest in the eight parcels of land
1.00 acquired by it at public auction held by the deputy sheriff of Tarlac in connection
with civil case No. 20203 of the Court of First Instance of Manila, as stated above.
150.00 Said amount represented the unpaid balance of the redemption price of said eight
parcels, after payment by Leon Sibal of P2,000 on September 24, 1923, fro the
account of the redemption price, as stated above. (Exhibit C and 2).
1,000.00
The foregoing statement of facts shows:
4,273.93
8
 (1) The Emilio J. Valdez bought the sugar cane in question, located in the seven
parcels of land described in the first cause of action of the complaint at public
auction on May 9 and 10, 1924, for P600.
(2) That on July 30, 1923, Macondray & Co. became the owner of eight parcels of
land situated in the Province of Tarlac belonging to Leon Sibal and that on
September 24, 1923, Leon Sibal paid to Macondray & Co. P2,000 for the account of
the redemption price of said parcels.
(3) That on June 25, 1924, Emilio J. Valdez acquired from Macondray & Co. all of its
rights and interest in the said eight parcels of land.
(4) That on June 25, 1924, Emilio J. Valdez also acquired all of the rights and interest
which Leon Sibal had or might have had on said eight parcels by virtue of the
P2,000 paid by the latter to Macondray.
(5) That Emilio J. Valdez became the absolute owner of said eight parcels of land.
The first question raised by the appeal is, whether the sugar cane in question is personal or
real property. It is contended that sugar cane comes under the classification of real property
as "ungathered products" in paragraph 2 of article 334 of the Civil Code. Said paragraph 2 of
article 334 enumerates as real property the following: Trees, plants, and ungathered
products, while they are annexed to the land or form an integral part of any immovable
property." That article, however, has received in recent years an interpretation by
the Tribunal Supremo de España, which holds that, under certain conditions, growing crops
may be considered as personal property. (Decision of March 18, 1904, vol. 97, Civil
Jurisprudence of Spain.)
Manresa, the eminent commentator of the Spanish Civil Code, in discussing section 334 of
the Civil Code, in view of the recent decisions of the supreme Court of Spain, admits that
growing crops are sometimes considered and treated as personal property. He says:
No creemos, sin embargo, que esto excluya la excepcionque muchos autores hacen
tocante a la venta de toda cosecha o de parte de ella cuando aun no esta cogida
(cosa frecuente con la uvay y la naranja), y a la de lenas, considerando ambas
como muebles. El Tribunal Supremo, en sentencia de 18 de marzo de 1904, al
entender sobre un contrato de arrendamiento de un predio rustico, resuelve que su
terminacion por desahucio no extingue los derechos del arrendario, para recolectar
o percibir los frutos correspondientes al año agricola, dentro del que nacieron
aquellos derechos, cuando el arrendor ha percibido a su vez el importe de la renta
integra correspondiente, aun cuando lo haya sido por precepto legal durante el
curso del juicio, fundandose para ello, no solo en que de otra suerte se daria al
desahucio un alcance que no tiene, sino en que, y esto es lo interesante a nuestro
proposito, la consideracion de inmuebles que el articulo 334 del Codigo Civil
atribuge a los frutos pendientes, no les priva del caracter de productos
pertenecientes, como tales, a quienes a ellos tenga derecho, Ilegado el momento de
su recoleccion.
9
xxx xxx xxx
Mas actualmente y por virtud de la nueva edicion de la Ley Hipotecaria, publicada
en 16 de diciembre de 1909, con las reformas introducidas por la de 21 de abril
anterior, la hipoteca, salvo pacto expreso que disponga lo contrario, y cualquiera
que sea la naturaleza y forma de la obligacion que garantice, no comprende los
frutos cualquiera que sea la situacion en que se encuentre. (3 Manresa, 5. edicion,
pags. 22, 23.)
From the foregoing it appears (1) that, under Spanish authorities, pending fruits and
ungathered products may be sold and transferred as personal property; (2) that the Supreme
Court of Spain, in a case of ejectment of a lessee of an agricultural land, held that the lessee
was entitled to gather the products corresponding to the agricultural year, because said fruits
did not go with the land but belonged separately to the lessee; and (3) that under the Spanish
Mortgage Law of 1909, as amended, the mortgage of a piece of land does not include the
fruits and products existing thereon, unless the contract expressly provides otherwise.
An examination of the decisions of the Supreme Court of Louisiana may give us some light on
the question which we are discussing. Article 465 of the Civil Code of Louisiana, which
corresponds to paragraph 2 of article 334 of our Civil Code, provides: "Standing crops and the
fruits of trees not gathered, and trees before they are cut down, are likewise immovable, and
are considered as part of the land to which they are attached."
The Supreme Court of Louisiana having occasion to interpret that provision, held that in some
cases "standing crops" may be considered and dealt with as personal property. In the case
of Lumber Co. vs. Sheriff and Tax Collector (106 La., 418) the Supreme Court said: "True, by
article 465 of the Civil Code it is provided that 'standing crops and the fruits of trees not
gathered and trees before they are cut down . . . are considered as part of the land to which
they are attached, but the immovability provided for is only one in abstracto and without
reference to rights on or to the crop acquired by others than the owners of the property to
which the crop is attached. . . . The existence of a right on the growing crop is a mobilization
by anticipation, a gathering as it were in advance, rendering the crop movable quoad the
right acquired therein. Our jurisprudence recognizes the possible mobilization of the growing
crop." (Citizens' Bank vs. Wiltz, 31 La. Ann., 244; Porche vs. Bodin, 28 La., Ann., 761;
Sandel vs. Douglass, 27 La. Ann., 629; Lewis vs. Klotz, 39 La. Ann., 267.)
"It is true," as the Supreme Court of Louisiana said in the case of Porche vs. Bodin (28 La. An.,
761) that "article 465 of the Revised Code says that standing crops are considered as
immovable and as part of the land to which they are attached, and article 466 declares that
the fruits of an immovable gathered or produced while it is under seizure are considered as
making part thereof, and incurred to the benefit of the person making the seizure. But the
evident meaning of these articles, is where the crops belong to the owner of the plantation
they form part of the immovable, and where it is seized, the fruits gathered or produced
inure to the benefit of the seizing creditor.
A crop raised on leased premises in no sense forms part of the immovable. It
belongs to the lessee, and may be sold by him, whether it be gathered or not, and it
 may be sold by his judgment creditors. If it necessarily forms part of the leased
premises the result would be that it could not be sold under execution separate and
apart from the land. If a lessee obtain supplies to make his crop, the factor's lien
would not attach to the crop as a separate thing belonging to his debtor, but the
land belonging to the lessor would be affected with the recorded privilege. The law
cannot be construed so as to result in such absurd consequences.
In the case of Citizen's Bank vs. Wiltz (31 La. Ann., 244)the court said:
If the crop quoad the pledge thereof under the act of 1874 was an immovable, it
would be destructive of the very objects of the act, it would render the pledge of
the crop objects of the act, it would render the pledge of the crop impossible, for if
the crop was an inseparable part of the realty possession of the latter would be
necessary to that of the former; but such is not the case. True, by article 465 C. C. it
is provided that "standing crops and the fruits of trees not gathered and trees
before they are cut down are likewise immovable and are considered as part of the
land to which they are attached;" but the immovability provided for is only one in
abstracto and without reference to rights on or to the crop acquired by other than
the owners of the property to which the crop was attached. The immovability of a
growing crop is in the order of things temporary, for the crop passes from the state
of a growing to that of a gathered one, from an immovable to a movable. The
existence of a right on the growing crop is a mobilization by anticipation, a
gathering as it were in advance, rendering the crop movable quoad the right
acquired thereon. The provision of our Code is identical with the Napoleon Code
520, and we may therefore obtain light by an examination of the jurisprudence of
France.
The rule above announced, not only by the Tribunal Supremo de España but by the Supreme
Court of Louisiana, is followed in practically every state of the Union.
From an examination of the reports and codes of the State of California and other states we
find that the settle doctrine followed in said states in connection with the attachment of
property and execution of judgment is, that growing crops raised by yearly labor and
cultivation are considered personal property. (6 Corpuz Juris, p. 197; 17 Corpus Juris, p. 379;
23 Corpus Juris, p. 329: Raventas vs. Green, 57 Cal., 254; Norris vs. Watson, 55 Am. Dec., 161;
Whipple vs. Foot, 3 Am. Dec., 442; 1 Benjamin on Sales, sec. 126; McKenzie vs. Lampley, 31
Ala., 526; Crine vs. Tifts and Co., 65 Ga., 644; Gillitt vs. Truax, 27 Minn., 528; Preston vs. Ryan,
45 Mich., 174; Freeman on Execution, vol. 1, p. 438; Drake on Attachment, sec. 249; Mechem
on Sales, sec. 200 and 763.)
Mr. Mechem says that a valid sale may be made of a thing, which though not yet actually in
existence, is reasonably certain to come into existence as the natural increment or usual
incident of something already in existence, and then belonging to the vendor, and then title
will vest in the buyer the moment the thing comes into existence. (Emerson vs. European
Railway Co., 67 Me., 387; Cutting vs. Packers Exchange, 21 Am. St. Rep., 63.) Things of this
nature are said to have a potential existence. A man may sell property of which he is
potentially and not actually possessed. He may make a valid sale of the wine that a vineyard
10
is expected to produce; or the gain a field may grow in a given time; or the milk a cow may
yield during the coming year; or the wool that shall thereafter grow upon sheep; or what may
be taken at the next cast of a fisherman's net; or fruits to grow; or young animals not yet in
existence; or the good will of a trade and the like. The thing sold, however, must be specific
and identified. They must be also owned at the time by the vendor. (Hull vs. Hull, 48 Conn.,
250 [40 Am. Rep., 165].)
It is contended on the part of the appellee that paragraph 2 of article 334 of the Civil Code
has been modified by section 450 of the Code of Civil Procedure as well as by Act No. 1508,
the Chattel Mortgage Law. Said section 450 enumerates the property of a judgment debtor
which may be subjected to execution. The pertinent portion of said section reads as follows:
"All goods, chattels, moneys, and other property, both real and personal, * * * shall be liable
to execution. Said section 450 and most of the other sections of the Code of Civil Procedure
relating to the execution of judgment were taken from the Code of Civil Procedure of
California. The Supreme Court of California, under section 688 of the Code of Civil Procedure
of that state (Pomeroy, p. 424) has held, without variation, that growing crops were personal
property and subject to execution.
Act No. 1508, the Chattel Mortgage Law, fully recognized that growing crops are personal
property. Section 2 of said Act provides: "All personal property shall be subject to mortgage,
agreeably to the provisions of this Act, and a mortgage executed in pursuance thereof shall
be termed a chattel mortgage." Section 7 in part provides: "If growing crops be mortgaged
the mortgage may contain an agreement stipulating that the mortgagor binds himself
properly to tend, care for and protect the crop while growing.
It is clear from the foregoing provisions that Act No. 1508 was enacted on the assumption
that "growing crops" are personal property. This consideration tends to support the
conclusion hereinbefore stated, that paragraph 2 of article 334 of the Civil Code has been
modified by section 450 of Act No. 190 and by Act No. 1508 in the sense that "ungathered
products" as mentioned in said article of the Civil Code have the nature of personal property.
In other words, the phrase "personal property" should be understood to include "ungathered
products."
At common law, and generally in the United States, all annual crops which are
raised by yearly manurance and labor, and essentially owe their annual existence to
cultivation by man, . may be levied on as personal property." (23 C. J., p. 329.) On
this question Freeman, in his treatise on the Law of Executions, says: "Crops,
whether growing or standing in the field ready to be harvested, are, when
produced by annual cultivation, no part of the realty. They are, therefore, liable to
voluntary transfer as chattels. It is equally well settled that they may be seized and
sold under execution. (Freeman on Executions, vol. p. 438.)
We may, therefore, conclude that paragraph 2 of article 334 of the Civil Code has been
modified by section 450 of the Code of Civil Procedure and by Act No. 1508, in the sense that,
for the purpose of attachment and execution, and for the purposes of the Chattel Mortgage
Law, "ungathered products" have the nature of personal property. The lower court, therefore,
committed no error in holding that the sugar cane in question was personal property and, as
such, was not subject to redemption.
All the other assignments of error made by the appellant, as above stated, relate to questions
of fact only. Before entering upon a discussion of said assignments of error, we deem it
opportune to take special notice of the failure of the plaintiff to appear at the trial during the
presentation of evidence by the defendant. His absence from the trial and his failure to cross-
examine the defendant have lent considerable weight to the evidence then presented for the
defense.
Coming not to the ownership of parcels 1 and 2 described in the first cause of action of the
complaint, the plaintiff made a futile attempt to show that said two parcels belonged to
Agustin Cuyugan and were the identical parcel 2 which was excluded from the attachment
and sale of real property of Sibal to Valdez on June 25, 1924, as stated above. A comparison
of the description of parcel 2 in the certificate of sale by the sheriff (Exhibit A) and the
description of parcels 1 and 2 of the complaint will readily show that they are not the same.
The description of the parcels in the complaint is as follows:
1. La caña dulce sembrada por los inquilinos del ejecutado Leon Sibal 1.º en una
parcela de terreno de la pertenencia del citado ejecutado, situada en Libutad,
Culubasa, Bamban, Tarlac, de unas dos hectareas poco mas o menos de superficie.
2. La caña dulce sembrada por el inquilino del ejecutado Leon Sibal 1.º, Ilamado
Alejandro Policarpio, en una parcela de terreno de la pertenencia del ejecutado,
situada en Dalayap, Culubasa, Bamban, Tarlac de unas dos hectareas de superficie
poco mas o menos." The description of parcel 2 given in the certificate of sale
(Exhibit A) is as follows:
2a. Terreno palayero situado en Culubasa, Bamban, Tarlac, de 177,090 metros
cuadrados de superficie, linda al N. con Canuto Sibal, Esteban Lazatin and Alejandro
Dayrit; al E. con Francisco Dizon, Felipe Mañu and others; al S. con Alejandro Dayrit,
Isidro Santos and Melecio Mañu; y al O. con Alejandro Dayrit and Paulino Vergara.
Tax No. 2854, vador amillarado P4,200 pesos.
On the other hand the evidence for the defendant purported to show that parcels 1 and 2 of
the complaint were included among the parcels bought by Valdez from Macondray on June
25, 1924, and corresponded to parcel 4 in the deed of sale (Exhibit B and 2), and were also
included among the parcels bought by Valdez at the auction of the real property of Leon Sibal
on June 25, 1924, and corresponded to parcel 3 in the certificate of sale made by the sheriff
(Exhibit A). The description of parcel 4 (Exhibit 2) and parcel 3 (Exhibit A) is as follows:
Parcels No. 4. — Terreno palayero, ubicado en el barrio de Culubasa,Bamban,
Tarlac, I. F. de 145,000 metros cuadrados de superficie, lindante al Norte con Road
of the barrio of Culubasa that goes to Concepcion; al Este con Juan Dizon; al Sur con
11
Lucio Maño y Canuto Sibal y al Oeste con Esteban Lazatin, su valor amillarado
asciende a la suma de P2,990. Tax No. 2856.
As will be noticed, there is hardly any relation between parcels 1 and 2 of the complaint and
parcel 4 (Exhibit 2 and B) and parcel 3 (Exhibit A). But, inasmuch as the plaintiff did not care
to appear at the trial when the defendant offered his evidence, we are inclined to give more
weight to the evidence adduced by him that to the evidence adduced by the plaintiff, with
respect to the ownership of parcels 1 and 2 of the compliant. We, therefore, conclude that
parcels 1 and 2 of the complaint belong to the defendant, having acquired the same from
Macondray & Co. on June 25, 1924, and from the plaintiff Leon Sibal on the same date.
It appears, however, that the plaintiff planted the palay in said parcels and harvested
therefrom 190 cavans. There being no evidence of bad faith on his part, he is therefore
entitled to one-half of the crop, or 95 cavans. He should therefore be condemned to pay to
the defendant for 95 cavans only, at P3.40 a cavan, or the sum of P323, and not for the total
of 190 cavans as held by the lower court.
As to the ownership of parcel 7 of the complaint, the evidence shows that said parcel
corresponds to parcel 1 of the deed of sale of Macondray & Co, to Valdez (Exhibit B and 2),
and to parcel 4 in the certificate of sale to Valdez of real property belonging to Sibal, executed
by the sheriff as above stated (Exhibit A). Valdez is therefore the absolute owner of said
parcel, having acquired the interest of both Macondray and Sibal in said parcel.
With reference to the parcel of land in Pacalcal, Tarlac, described in paragraph 3 of the
second cause of action, it appears from the testimony of the plaintiff himself that said parcel
corresponds to parcel 8 of the deed of sale of Macondray to Valdez (Exhibit B and 2) and to
parcel 10 in the deed of sale executed by the sheriff in favor of Valdez (Exhibit A). Valdez is
therefore the absolute owner of said parcel, having acquired the interest of both Macondray
and Sibal therein.
In this connection the following facts are worthy of mention:
Execution in favor of Macondray & Co., May 11, 1923. Eight parcels of land were attached
under said execution. Said parcels of land were sold to Macondray & Co. on the 30th day of
July, 1923. Rice paid P4,273.93. On September 24, 1923, Leon Sibal paid to Macondray & Co.
P2,000 on the redemption of said parcels of land. (See Exhibits B and C ).
Attachment, April 29, 1924, in favor of Valdez. Personal property of Sibal was attached,
including the sugar cane in question. (Exhibit A) The said personal property so attached, sold
at public auction May 9 and 10, 1924. April 29, 1924, the real property was attached under
the execution in favor of Valdez (Exhibit A). June 25, 1924, said real property was sold and
purchased by Valdez (Exhibit A).
June 25, 1924, Macondray & Co. sold all of the land which they had purchased at public
auction on the 30th day of July, 1923, to Valdez.
As to the loss of the defendant in sugar cane by reason of the injunction, the evidence shows
that the sugar cane in question covered an area of 22 hectares and 60 ares (Exhibits 8, 8-b
and 8-c); that said area would have yielded an average crop of 1039 picos and 60 cates; that
one-half of the quantity, or 519 picos and 80 cates would have corresponded to the
defendant, as owner; that during the season the sugar was selling at P13 a pico (Exhibit 5 and
5-A). Therefore, the defendant, as owner, would have netted P 6,757.40 from the sugar cane
in question. The evidence also shows that the defendant could have taken from the sugar
cane 1,017,000 sugar-cane shoots (puntas de cana) and not 1,170,000 as computed by the
lower court. During the season the shoots were selling at P1.20 a thousand (Exhibits 6 and 7).
The defendant therefore would have netted P1,220.40 from sugar-cane shoots and not
P1,435.68 as allowed by the lower court.

As to the palay harvested by the plaintiff in parcels 1 and 2 of the complaint, amounting to
190 cavans, one-half of said quantity should belong to the plaintiff, as stated above, and the
other half to the defendant. The court erred in awarding the whole crop to the defendant.
The plaintiff should therefore pay the defendant for 95 cavans only, at P3.40 a cavan, or P323
instead of P646 as allowed by the lower court.

The evidence also shows that the defendant was prevented by the acts of the plaintiff from
cultivating about 10 hectares of the land involved in the litigation. He expected to have raised
about 600 cavans of palay, 300 cavans of which would have corresponded to him as owner.
The lower court has wisely reduced his share to 150 cavans only. At P4 a cavan, the palay
would have netted him P600.

In view of the foregoing, the judgment appealed from is hereby modified. The plaintiff and his
sureties Cenon de la Cruz, Juan Sangalang and Marcos Sibal are hereby ordered to pay to the
defendant jointly and severally the sum of P8,900.80, instead of P9,439.08 allowed by the
lower court, as follows:

P6,757.40 for the sugar cane;

1,220.40 for the sugar cane shoots;

323.00 for the palay harvested by plaintiff in parcels 1 and 2;

600.00 for the palay which defendant could have raised.

Republic of the Philippines
SUPREME COURT
8,900.80 Manila
============
EN BANC
In all other respects, the judgment appealed from is hereby affirmed, with costs. So ordered.
G.R. No. L-40411 August 7, 1935
Street, Malcolm, Villamor, Romualdez and Villa-Real., JJ., concur.
DAVAO SAW MILL CO., INC., plaintiff-appellant,
vs.
APRONIANO G. CASTILLO and DAVAO LIGHT & POWER CO., INC., defendants-appellees.

12
Arsenio Suazo and Jose L. Palma Gil and Pablo Lorenzo and Delfin Joven for appellant.
J.W. Ferrier for appellees.
MALCOLM, J.:
The issue in this case, as announced in the opening sentence of the decision in the trial court
and as set forth by counsel for the parties on appeal, involves the determination of the
nature of the properties described in the complaint. The trial judge found that those
properties were personal in nature, and as a consequence absolved the defendants from the
complaint, with costs against the plaintiff.
The Davao Saw Mill Co., Inc., is the holder of a lumber concession from the Government of
the Philippine Islands. It has operated a sawmill in the sitio of Maa, barrio of Tigatu,
municipality of Davao, Province of Davao. However, the land upon which the business was
conducted belonged to another person. On the land the sawmill company erected a building
which housed the machinery used by it. Some of the implements thus used were clearly
personal property, the conflict concerning machines which were placed and mounted on
foundations of cement. In the contract of lease between the sawmill company and the owner
of the land there appeared the following provision:
That on the expiration of the period agreed upon, all the improvements and
buildings introduced and erected by the party of the second part shall pass to the
exclusive ownership of the party of the first part without any obligation on its part
to pay any amount for said improvements and buildings; also, in the event the party
of the second part should leave or abandon the land leased before the time herein
stipulated, the improvements and buildings shall likewise pass to the ownership of
the party of the first part as though the time agreed upon had expired: Provided,
however, That the machineries and accessories are not included in the
improvements which will pass to the party of the first part on the expiration or
abandonment of the land leased.
In another action, wherein the Davao Light & Power Co., Inc., was the plaintiff and the Davao,
Saw, Mill Co., Inc., was the defendant, a judgment was rendered in favor of the plaintiff in
that action against the defendant in that action; a writ of execution issued thereon, and the
properties now in question were levied upon as personalty by the sheriff. No third party claim
was filed for such properties at the time of the sales thereof as is borne out by the record
made by the plaintiff herein. Indeed the bidder, which was the plaintiff in that action, and the
defendant herein having consummated the sale, proceeded to take possession of the
machinery and other properties described in the corresponding certificates of sale executed
in its favor by the sheriff of Davao.
As connecting up with the facts, it should further be explained that the Davao Saw Mill Co.,
Inc., has on a number of occasions treated the machinery as personal property by executing
chattel mortgages in favor of third persons. One of such persons is the appellee by
assignment from the original mortgages.
13
Article 334, paragraphs 1 and 5, of the Civil Code, is in point. According to the Code, real
property consists of —
1. Land, buildings, roads and constructions of all kinds adhering to the soil;
xxx xxx xxx
5. Machinery, liquid containers, instruments or implements intended by the owner
of any building or land for use in connection with any industry or trade being
carried on therein and which are expressly adapted to meet the requirements of
such trade of industry.
Appellant emphasizes the first paragraph, and appellees the last mentioned paragraph. We
entertain no doubt that the trial judge and appellees are right in their appreciation of the
legal doctrines flowing from the facts.
In the first place, it must again be pointed out that the appellant should have registered its
protest before or at the time of the sale of this property. It must further be pointed out that
while not conclusive, the characterization of the property as chattels by the appellant is
indicative of intention and impresses upon the property the character determined by the
parties. In this connection the decision of this court in the case of Standard Oil Co. of New
York vs. Jaramillo ( [1923], 44 Phil., 630), whether obiter dicta or not, furnishes the key to
such a situation.
It is, however not necessary to spend overly must time in the resolution of this appeal on side
issues. It is machinery which is involved; moreover, machinery not intended by the owner of
any building or land for use in connection therewith, but intended by a lessee for use in a
building erected on the land by the latter to be returned to the lessee on the expiration or
abandonment of the lease.
A similar question arose in Puerto Rico, and on appeal being taken to the United States
Supreme Court, it was held that machinery which is movable in its nature only becomes
immobilized when placed in a plant by the owner of the property or plant, but not when so
placed by a tenant, a usufructuary, or any person having only a temporary right, unless such
person acted as the agent of the owner. In the opinion written by Chief Justice White, whose
knowledge of the Civil Law is well known, it was in part said:
To determine this question involves fixing the nature and character of the property
from the point of view of the rights of Valdes and its nature and character from the
point of view of Nevers & Callaghan as a judgment creditor of the Altagracia
Company and the rights derived by them from the execution levied on the
machinery placed by the corporation in the plant. Following the Code Napoleon,
the Porto Rican Code treats as immovable (real) property, not only land and
buildings, but also attributes immovability in some cases to property of a movable
nature, that is, personal property, because of the destination to which it is applied.
"Things," says section 334 of the Porto Rican Code, "may be immovable either by
 their own nature or by their destination or the object to which they are applicable."
Numerous illustrations are given in the fifth subdivision of section 335, which is as
follows: "Machinery, vessels, instruments or implements intended by the owner of
the tenements for the industrial or works that they may carry on in any building or
upon any land and which tend directly to meet the needs of the said industry or
works." (See also Code Nap., articles 516, 518 et seq. to and inclusive of article 534,
recapitulating the things which, though in themselves movable, may be
immobilized.) So far as the subject-matter with which we are dealing — machinery
placed in the plant — it is plain, both under the provisions of the Porto Rican Law
and of the Code Napoleon, that machinery which is movable in its nature only
becomes immobilized when placed in a plant by the owner of the property or plant.
Such result would not be accomplished, therefore, by the placing of machinery in a
plant by a tenant or a usufructuary or any person having only a temporary right.
(Demolombe, Tit. 9, No. 203; Aubry et Rau, Tit. 2, p. 12, Section 164; Laurent, Tit. 5,
No. 447; and decisions quoted in Fuzier-Herman ed. Code Napoleon under articles
522 et seq.) The distinction rests, as pointed out by Demolombe, upon the fact that
one only having a temporary right to the possession or enjoyment of property is
not presumed by the law to have applied movable property belonging to him so as
to deprive him of it by causing it by an act of immobilization to become the
property of another. It follows that abstractly speaking the machinery put by the
Altagracia Company in the plant belonging to Sanchez did not lose its character of
movable property and become immovable by destination. But in the concrete
immobilization took place because of the express provisions of the lease under
which the Altagracia held, since the lease in substance required the putting in of
improved machinery, deprived the tenant of any right to charge against the lessor
the cost such machinery, and it was expressly stipulated that the machinery so put
in should become a part of the plant belonging to the owner without compensation
to the lessee. Under such conditions the tenant in putting in the machinery was
acting but as the agent of the owner in compliance with the obligations resting
upon him, and the immobilization of the machinery which resulted arose in legal
effect from the act of the owner in giving by contract a permanent destination to
the machinery.

xxx xxx xxx

FIRST DIVISION
The machinery levied upon by Nevers & Callaghan, that is, that which was placed in
the plant by the Altagracia Company, being, as regards Nevers & Callaghan, G.R. No. 150413 July 1, 2003
movable property, it follows that they had the right to levy on it under the
execution upon the judgment in their favor, and the exercise of that right did not in
a legal sense conflict with the claim of Valdes, since as to him the property was a REPUBLIC OF THE PHILIPPINES, petitioner,
part of the realty which, as the result of his obligations under the lease, he could vs.
not, for the purpose of collecting his debt, proceed separately against. (Valdes vs. ALEXANDRA LAO, respondent.
Central Altagracia [192], 225 U.S., 58.)
YNARES-SANTIAGO, J.:
Finding no reversible error in the record, the judgment appealed from will be affirmed, the
costs of this instance to be paid by the appellant. This petition for review assails the decision1 of the Court of Appeals in CA-G.R. CV No. 56230,
which affirmed the judgment2 of the Regional Trial Court of Tagaytay City, Branch 18, in Land
Villa-Real, Imperial, Butte, and Goddard, JJ., concur. Registration Case No. TG-719.

14
On September 4, 1995, respondent Alexandra Lao filed with the Regional Trial Court of
Tagaytay City, Branch 18, an application for the registration of title over a parcel of land
designated as Lot No. 3951, Cad. 452-D, Silang Cadastre, Plan Ap-04-007770, consisting of
nine thousand three hundred forty nine (9,349) square meters under Presidential Decree No.
1529, otherwise known as the Property Registration Decree. Respondent alleged that she
acquired the land by purchase from the siblings Raymundo Noguera and Ma. Victoria A.
Valenzuela, who inherited it from Generosa Medina. The latter, in turn, inherited the land
from her father, Jose Medina, who acquired the same from Edilberto Perido by transfer.
In the alternative, respondent prayed that the land be awarded to her under the provisions of
Commonwealth Act No. 141, as amended, also known as the Public Land Act, based on her
and her predecessor’s open, public, actual, continuous, exclusive, notorious and adverse
possession and occupancy under bona fide claim of ownership for more than thirty (30)
years.
At the hearing in the lower court, respondent presented the following witnesses: Candido
Amoroso, who testified on the ownership of the land by Edilberto Perido in 1932; Vicente
Laudato, who testified on respondent’s purchase of the property from Raymundo and Ma.
Victoria; and Fina Victoria So-Liwanag, who assisted respondent in her application for
registration. Respondent likewise presented in evidence the Deed of Absolute Sale 3 dated
April 19, 1994 executed by Raymundo and Victoria in her favor, the survey plan and technical
description of the property, and the tax declarations in the name of respondent as well as her
predecessors-in-interest.
On June 28, 1996, the trial court made the following findings, to wit:
x x x the applicant acquired the subject parcel of land by purchase from Raymundo
Noguera and Ma. Victoria A. Valenzuela in 1994, and that applicant and her
predecessors-in-interest have been in continuous, uninterrupted, open, public,
adverse and in the concept of an owner possession of the subject parcel of land for
more than thirty (30) years now; and that the same parcel was declared for taxation
purposes; that the realty taxes due thereon have been duly paid; that the land
involved in this case is not covered by any land patent. Likewise, this Court could
well-discern from the survey plan covering the same property, as well as technical
description and other documents presented, that the land sought to be registered
is agricultural and not within any forest zone or public domain; and that tacking her
predecessors-in-interest’s possession to hers, applicant appears to be in continuous
and public possession thereof for more than thirty (30) years. 4
The dispositive portion of the decision reads:
WHEREFORE, this Court hereby approves this application for registration and thus
places under the operation of Act 141, Act 496 and/or P.D. 1529, otherwise known
as Property Registration Law, the land described in Plan Ap-04-007770 and
containing an area of nine thousand three hundred forty-nine (9,349) square
meters as supported by its technical description now forming part of the record of
this case, in addition to other proofs adduced in the name of ALEXANDRA A. LAO, of
15
legal age, married to NELSON O. LAO, Filipino citizen, with residence at 1648 Yakal
Street, Sta. Cruz, Manila.
Once this Decision becomes final and executory, the corresponding decree of
registration shall forthwith issue.
SO ORDERED.5
Petitioner Republic of the Philippines, represented by the Office of the Solicitor General,
appealed to the Court of Appeals which was docketed as CA-G.R. CV No. 56230. On October
15, 2001, the appellate court affirmed the judgment of the trial court. 6 Hence, this petition
for review raising the following errors:
THERE IS NO SUFFICIENT EVIDENCE TO WARRANT THE ORIGINAL REGISTRATION OF
TITLE OF SUBJECT PROPERTY IN THE NAME OF RESPONDENT.7
A. RESPONDENT FAILED TO COMPLY WITH THE LEGALLY REQUIRED PERIOD AND
ACTS OF POSSESSION.8
B. THE TAX DECLARATIONS PRESENTED BY RESPONDENT DO NOT CORROBORATE
HER CLAIM OF THE LEGALLY REQUIRED PERIOD OF POSSESSION. 9
C. RESPONDENT FAILED TO PRESENT A CERTIFICATION FROM THE APPROPRIATE
GOVERNMENT AGENCY THAT THE LAND SUBJECT OF HER APPLICATION FOR
REGISTRATION IS ALIENABLE AND DISPOSABLE LAND OF THE PUBLIC DOMAIN. 10
In sum, the issues presented before us are (a) whether or not respondent was able to prove,
by the quantum of evidence mandated by law, that she met the required period of open,
exclusive, continuous and notorious possession, in the concept of an owner, of the subject
parcel of land; and (b) whether or not respondent was able to show that the land subject of
her application was disposable and alienable land of the public domain.
Section 14 (1) of Presidential Decree No. 1529 states:
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 predecessor-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.
On the other hand, Section 48 (b) of Commonwealth Act No. 141, as amended by Section 4 of
Presidential Decree No. 1073, provides:
 The provisions of Section 48(b) and Section 48(c), Chapter VIII, of the Public Land
Act are hereby amended in the sense that these provisions shall apply only to
alienable and disposable lands of the public domain which have been in open,
continuous, exclusive and notorious possession and occupation by the applicant
himself or thru his predecessor-in-interest, under a bona fide claim of acquisition of
ownership, since June 12, 1945.
Thus, before one can register his title over a parcel of land, the applicant must show that (a)
he, by himself or through his predecessors-in-interest, has been in open, continuous,
exclusive and notorious possession and occupation of the subject land under a bona fide
claim of ownership since June 12, 1945 or earlier; and (b) the land subject of the application
is alienable and disposable land of the public domain.
Respondent submits that Section 48 (b) of CA 141 was amended by Republic Act No. 6940,
which reduced the required period of possession to thirty years immediately prior to the
filing of the application. Said law became effective on April 15, 1990. However, petitioner
maintains that the required period of possession remained the same. RA 6940 explicitly
states that its provisions amended sections 44, 45 and 47 of CA 141. Nothing in RA 6940
amends Section 48 (b). In other words, the requisites for judicial confirmation of imperfect or
incomplete title set forth therein remains the same, namely, (1) possession of the subject
land from June 12, 1945, and (2) the classification of the land as alienable and disposable
land of the public domain. In Public Estates Authority v. Court of Appeals, 11 we held that:
Under the public land act, judicial confirmation of imperfect title required
possession en concepto de dueño since time immemorial, or since July 26, 1894.
Under C.A. No. 141, this requirement was retained. However, on June 22, 1957,
Republic Act No. 1942 was enacted amending C.A. No. 141. This later enactment
required adverse possession for a period of only thirty (30) years. On January 25,
1977, the President enacted P.D. No. 1073, further amending C.A. No. 141,
extending the period for filing applications for judicial confirmation of imperfect or
incomplete titles to December 31, 1987. Under this decree, "the provisions of
Section 48 (b) and Section 48 (c), Chapter VIII, of the Public Land Act are hereby
amended in the sense that these provisions shall apply only to alienable and
disposable land of the public domain which have been in open, continuous,
exclusive and notorious possession and occupation by the applicant himself or thru
his predecessors-in-interest under a bona fide claim of acquisition of ownership,
since June 12, 1945.
The aforequoted ruling was reiterated in Republic v. Court of Appeals, 12 thus:
This Court has held in Republic vs. Doldol [295 SCRA 359, (1998)] that, originally,
"Section 48(b) of C.A. No. 141 provided for possession and occupation of lands of
the public domain since July 26, 1894. This was superseded by R.A. No. 1942 which
provided for a simple thirty-year prescriptive period of occupation by an applicant
for judicial confirmation of imperfect title. The same, however, has already been
amended by Presidential Decree No. 1073, approved on January 25, 1977." As
amended Section 48 (b) now reads:
16
(b) Those who by themselves or through their predecessors-in-interest have been in
open, continuous, exclusive and notorious possession and occupation of
agricultural lands of the public domain, under a bona fide claim of acquisition or
ownership, since June 12, 1945, or earlier, immediately preceding the filing of the
application for confirmation of title, except when prevented by wars or force
majeure. Those shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be entitled to a certificate of
title under the provisions of this chapter.
Petitioner argues that respondent failed to prove by incontrovertible evidence that she had
been in open, continuous, exclusive and notorious possession and occupation of the subject
land, in the concept of an owner, since June 12, 1945 or earlier. According to petitioner,
respondent’s witnesses did not state the exact period when respondent’s predecessors-in-
interest started occupying the subject land. They only made sweeping statements to the
effect that respondent had been in possession of the property for more than thirty years.
Hence, it can not be conclusively determined whether respondent and her predecessors-in-
interest have truly been in possession of the property since June 12, 1945 or earlier.
Furthermore, respondent failed to show how the property was transferred from Generosa
Medina to Raymundo Noguera and Ma. Victoria A. Valenzuela. No extrajudicial settlement of
property was established. Consequently, respondent can not tack her possession with those
of Generosa Medina and her predecessors-in-interest.
There is merit in the petition.
Candido Amoroso, respondent’s first witness, testified that he first knew of the property in
1932 and that it was owned by a certain Edilberto Perido. However, no evidence was
presented to support his claim. Respondent submitted the tax declarations in the name of her
predecessors-in-interest, including that of Edilberto. However, the earliest of these
documents pertained to the year 1948 only, three years short of the required period.
Respondent’s other witness, Vicente Laudato, claimed that he had known about the property
since he was ten years old, which was in 1945, and that Edilberto Perido owned the property.
On cross-examination, however, he testified that he based his information on Edilberto’s
ownership of the land on the fact that the latter used to greet him and his family whenever
he passed by their house. Vicente later on admitted that he did not know with certainty
whether Edilberto was indeed the owner and possessor of the property. 13
Finally, respondent failed to present the extrajudicial settlement or other document
evidencing the transfer of the land from Generosa Medina to Raymundo Noguera and Ma.
Victoria A. Valenzuela. She likewise did not show the relationship between these parties. She
only presented the deed of sale between her and the latter, where it was stated that
Raymundo and Ma. Victoria inherited the property from Generosa. Hence, respondent can
not tack her possession with those of Generosa and her predecessors-in-interest. At most,
respondent’s possession can only be reckoned from the time that Raymundo and Ma. Victoria
claimed possession of the property.
Respondent having thus failed to show by incontrovertible evidence that her possession of confirmation of imperfect title. The applicant shoulders the burden of overcoming
the land commenced on June 12, 1945 or earlier, she failed to meet the first requisite under the presumption that the land sought to be registered forms part of the public
the pertinent provisions of PD 1529 and CA 141. domain.

Petitioner further submits that respondent failed to show that the land subject of her
application is classified as alienable and disposable land of the public domain. Under the
Regalian doctrine which is embodied in our Constitution, 14 all lands of the public domain
belong to the State, which is the source of any asserted right to ownership of land. 15 All lands
not appearing to be clearly within private ownership are presumed to belong to the
State.16 Unless public land is shown to have been reclassified or alienated to a private person
by the State, it remains part of the inalienable public domain. 17 To overcome this
presumption, incontrovertible evidence must be established that the land subject of the
application is alienable or disposable.18
In De Ocampo v. Arlos,19 it was held that:
x x x a title may be judicially confirmed under Section 48 of the Public Land Act only
if it pertains to alienable lands of the public domain. Unless such assets are
reclassified and considered disposable and alienable, occupation thereof in the
concept of owner, no matter how long, cannot ripen into ownership and be
registered as a title. Verily, Presidential Decree No. 1073 clarified Section 48 (b) of
the Public Land Act by specifically declaring that the latter applied only to alienable
and disposable lands of the public domain.
Moreover, the absence of opposition from the government agencies is of no moment
because the State cannot be estopped by the omission, mistake or error of its officials or
agents.22
It bears stressing at this point that declassification of forest land and its conversion into
alienable or disposable land for agricultural or other purposes requires an express and
positive act from the government.23 It cannot be presumed; but must be established by
convincing proof. 24
WHEREFORE, in view of the foregoing, the petition is GRANTED. The decision of the Court of
Appeals in CA-G.R. CV No. 56230 is REVERSED and SET ASIDE. The application for original
registration of title over Lot No. 3951, Cad. 452-D, Silang Cadastre, Plan Ap-04-007770, which
was docketed as Land Registration Case No. TG-719 before the Regional Trial Court of
Tagaytay City, Branch 18, is DENIED.
SO ORDERED.

In the case at bar, no certification from the appropriate government agency or official
proclamation reclassifying the land as alienable and disposable was presented by respondent.
Respondent merely submitted the survey map and technical descriptions of the land, which
contained no information regarding the classification of the property. These documents are
not sufficient to overcome the presumption that the land sought to be registered forms part THIRD DIVISION
of the public domain.
[G.R. No. 142595. October 15, 2003.]
Respondent argues that she was not required to present any certification stating that the land
is open for disposition because no opposition to her application was ever made by the RACHEL C. CELESTIAL, Petitioner, v. JESSE CACHOPERO, Respondent.
appropriate government agencies. She claims that in the absence of any proof to the
contrary, lands of the public domain are agricultural in nature and thus susceptible to private DECISION
ownership.

As an applicant for registration of a parcel of land, respondent had the initial obligation to CARPIO MORALES, J.:
show that the property involved is agricultural. Being the interested party, it was incumbent
upon her to prove that the land being registered is indeed alienable or disposable. She cannot
rely on the mere presumption that it was agricultural and, therefore, alienable part of the In the instant appeal by petition for review on certiorari, 1 petitioner Rachel Cachopero Celestial
public domain.20 Thus, in Director of Lands v. Funtilar, 21 we held: assails the February 15, 1999 Decision of the Court of Appeals in CA-G.R. SP No. 45927, "Jesse C.
Cachopero v. Regional Executive Director of DENR, Region XII and Rachel C. Celestial," which
reversed and set aside the Order of the Regional Trial Court (RTC) of Midsayap, Cotabato, Branch
It was rather sweeping for the appellate court to rule that after an applicant files his
18 dismissing respondent’s petition for certiorari, prohibition and mandamus, and mandated the
application for registration, the burden shifts totally to the government to prove
Regional Executive Director of the Department of Environment and Natural Resources (DENR),
that the land forms part of the unclassified forest zone. The ruling in Heirs of
Region XII to process the Miscellaneous Sales Application (MSA) of respondent Jesse Cachopero
Amunategui v. Director of Forestry (126 SCRA 69) governs applications for

17
in DENR Claim No. XII-050-90 to which petitioner filed a protest.chanrob1es virtua1 1aw 1ibrary
Respondent, brother of petitioner, filed an MSA (Plan No. (XII-6)-1669) with the Bureau of Lands
covering a 415 square meter parcel of land located at Barrio 8, Midsayap, Cotabato and formerly
part of the Salunayan Creek in Katingawan, Midsayap.
In his MSA, respondent alleged that he had, since 1968, been occupying the land whereon he
built a residential house and introduced other improvements.
Petitioner filed a protest against respondent’s MSA, claiming preferential right over the land
subject thereof since it is adjacent to, and is the only outlet from, her residential house situated
at Lot No. 2586-G-28 (LRC) Psd-105462, Poblacion 8, Midsayap.
Following an ocular inspection, the Bureau of Lands, finding the land subject of respondent’s
MSA to be outside the commerce of man, dismissed petitioner’s protest and denied
respondent’s MSA, to wit:chanrob1es virtual 1aw library
In the ocular inspection, it was verified that the land in dispute with an area of 415 square
meters was formerly a part of the Salunayan Creek that became dry as a result of the
construction of an irrigation canal by the National Irrigation Administration. However, it was
certified by Project Engineer Reynaldo Abeto of the said office in his certification dated May 19,
1982, that only a portion of the same containing an area of 59.40 square meters more or less
was taken as part of the National Irrigation Administration service road. It was also ascertained
that the P20,000.00 residential house wherein Jesse Cachopero and his family are living is not
within the 69-meters width of the national highway. However, per the certification of the local
office of the District Engineer for Public Works and Highways, the government may need the
area where the house stands for expansion in the future. Moreover, it was also certified by the
Office of Municipal Mayor that the whole area covered by the miscellaneous sales application of
Jesse Cachopero is needed by the municipal government for future public improvements.
From the foregoing facts, it is clear that the subject land is outside the commerce of man and
therefore, not susceptible of private acquisition under the provision of the Public Land Act.
However, in keeping with the policy of our compassionate society in tilting the balance of social
forces by favoring the disadvantaged in life, we may allow Jesse Cachopero to temporarily
occupy the land in dispute, after excluding therefrom the portion needed for the existing right of
way being claimed by Rachel Celestial to be [the] only adequate outlet to the public highway
until such time that the land is needed by the government for expansion of the road.
WHEREFORE, it is ordered that this case, be, as hereby it is, dismissed and this case (sic),
dropped from the records. The Miscellaneous Sales Application (New) of Jesse Cachopero is
hereby rejected and in lieu thereof, he shall file a revocable permit application for the land in
question after excluding from the southern part of the land the area of five (5) meters for right of
way purposes as shown in the sketch drawn at the back of this order. The segregation survey of
the area shall be at the pro-rata expense of the parties.
SO ORDERED. 2 (Emphasis and Italics supplied)
Petitioner thereafter instituted an action for ejectment against respondent and his wife before
the Municipal Trial Court of Midsayap, Cotabato, docketed as Civil Case No. 711. A judgment
18
based on a compromise was rendered in said case under the following terms and
conditions:chanrob1es virtual 1aw library
That Spouses Jesse Cachopero and Bema Cachopero, defendants in this case, are going to vacate
the premises in question and transfer the old house subject of this ejectment case at the back of
Lot No. 2586-G-28 (LRC) Psd-105462, located at 8, Midsayap, Cotabato, within eight (8) months
from today, but not later than April 30, 1990;
x x x
That plaintiff is willing to give a two (2)-meter wide exit alley on the eastern portion of said lot as
road-right-of-way up to the point of the NIA road on the west of Lot No. 2586-G-28, (LRC) Psd-
105462;
That defendants hereby promise to remove all their improvements introduced fronting the
residence of the plaintiff before August 31, 1989; and the plaintiff shall likewise remove all her
existing improvements on the same area;
x x x 3 (Emphasis supplied)
Subsequently or on May 21, 1991, respondent filed another MSA with the DENR Regional Office
of Cotabato involving a portion of the same lot subject of his first MSA, covering an area of 334
square meters, more or less (the subject land), and docketed as DENR-XII-Claim No. 050-90. This
time, the MSA was supported by a certification 4 dated January 9, 1989 issued by the Office of
the Mayor of Midsayap and an Indorsement 5 dated January 16, 1989 by the District Engineer of
the Department of Public Works and Highways stating that the subject land is suitable for
residential purposes and no longer needed by the municipal government.
Petitioner likewise filed a protest against her brother-respondent’s second MSA, alleging a
preferential right over the subject land, she being the adjacent and riparian owner, and
maintaining that it is her only access to the national highway. She thus reiterated her demand for
a five (5)-meter road right of way through the land.chanrob1es virtua1 1aw 1ibrary
After another investigation of the subject land, DENR Regional Executive Director Macorro
Macumbal issued an Order dated February 17, 1994 stating that it was suitable for residential
purposes but that, in light of the conflicting interest of the parties, it be sold at public auction.
Respondent’s second MSA was accordingly dismissed, viz:chanrob1es virtual 1aw library
In the ocular investigation of the premises, it was established that the said property is a dried
bed of Salunayan Creek resulting from the construction of the irrigation canal by the National
Irrigation Administration; that it is suitable for residential purpose . . .
x x x
It is evident that under the law, property of the public domain situated within the first (1st) to
fourth class municipalities are disposable by sales only. Since municipality of Midsayap, Cotabato
is classified as third (3rd) class municipality and the property in dispute, Lot no. (MSA-XII-6)-
1669, is situated in the poblacion of Midsayap, Cotabato, and considering the conflicting interest
of the herein parties, it is therefore equitable to dispose the same by sale at a public auction
pursuant to Section 67, C.A. No. 141, as amended, pertinent clause of which
provides:chanrob1es virtual 1aw library
. . . sale shall be made through oral bidding; and adjudication shall be made to the highest
bidder, . . .
WHEREFORE, in view of all the foregoing, it is ordered as hereby is ordered that the instant
protest is dismissed and dropped from the records, and the Miscellaneous Sales Application
(New) of Jesse C. Cachopero is rejected and returned unrecorded. Accordingly, the CENR Officer
of CENRO XII-4B shall cause the segregation survey of a portion of five (5) meters in width
running parallel to line point C-1 of the approved survey plan (MSA-XII-6)-1669, sketch is shown
at the dorsal side hereof, as a permanent easement and access road for the occupants of Lot No.
2386-G-28, (LRC) Psd-105462 to the national highway. Thereafter, and pursuant to paragraph
G.2.3 of Department Administrative Order No. 38, Series of 1990, the CENRO XII 4B shall dispose
the remaining area of the lot in question through oral bidding.
SO ORDERED." 6 (Emphasis and Italics supplied)
Respondent filed a Motion for Reconsideration of the above-said order of the DENR Regional
Executive Director, but it was denied by Order of February 27, 1995 by the OIC Regional
Executive Director of Region XII, Cotabato City in this wise:chanrob1es virtual 1aw library
A meticulous scrutiny of the records disclosed that Civil Case No. 711 for ejectment, decided on
the basis of compromise agreement of the parties dated August 10, 1989, involved "transfer of
the house from Lot No. MSA XII-6-1669 to the litigant’s parents’ property situated at the back of
protestant property, Lot No. 2586-G-28 (LRC), Psd-105462." Whereas the issue in DENR XII Claim
No. 050-90 involved the disposition of lot no. (MSA II-6)-1669 a residential public land being
exclusively vested with the Director of Lands (Sec. 4, C.A. 141).
The two (2) meters wide exit alley provided in the compromise agreement was established by
the protestant from her private property (Lot No. 2586-G-28 (LRC), Psd-105462) for the benefit
of her brother, herein respondent, upon his transfer to their parents property at the back of Lot
No. 2586-G-28 (LRC), Psd-105462. Whereas the five (5) meters wide easement imposed on Lot
No. (MSA-XII-6)-1669, a public land, provided in the decision in DENR Claim No. 050-90 is in
accordance with Article 670 of the New Civil Code . . .
x x x action of certiorari. An appeal brings up for review errors of judgment committed by a court with
With all the above foregoing, we find no reversible error to reconsider our Order of February 17,
1994.
WHEREFORE, the instant motion for reconsideration is DENIED. 7
Respondent thereupon filed on April 3, 1995 with the RTC of Midsayap, Cotabato a petition
for certiorari, prohibition and mandamus with preliminary mandatory injunction and temporary
19
restraining order assailing the Orders dated February 17, 1994 and February 27, 1995 of the
DENR Regional Executive Director and OIC Regional Executive Director of Region XII, Cotabato,
attributing grave abuse of discretion in the issuance thereof.
Petitioner moved for the dismissal of the petition, alleging lack of jurisdiction and non-
exhaustion of administrative remedies.
By Order of March 26, 1997, the RTC denied respondent’s petition for certiorari for lack of merit
and non-exhaustion of administrative remedies, as it did deny his motion for reconsideration.
The Court of Appeals, before which respondent assailed the RTC orders by petition for certiorari,
prohibition and mandamus, granted said petition, and accordingly reversed and set aside the
assailed orders of the RTC and ordered the DENR to process the MSA of Respondent. 8
Petitioner’s Motion for Reconsideration 9 of the appellate court’s decision having been denied
by Resolution of March 2, 2000, 10 she lodged the present petition, alleging that the Court of
Appeals acted contrary to law and jurisprudence 1) in holding that the RTC of Midsayap had
jurisdiction over respondent’s petition, the doctrine of exhaustion of administrative remedies
was not applicable to the instant case, and the contested land is public land; and 2) in ordering
the processing of respondent’s MSA pursuant to R.A. 730. 11
Petitioner contends that the RTC of Midsayap had no jurisdiction over respondent’s petition
for certiorari as (a) it "is in the nature of an appeal" 12 falling within the jurisdiction of the Court
of Appeals under Section 9(3) 13 of Batas Pambansa Blg. 129 (B.P. 129), as amended; and (b)
respondent failed to exhaust administrative remedies when he failed to appeal the questioned
Orders to the Secretary of Environment and Natural Resources. 14
Petitioner’s petition fails.chanrob1es virtua1 1aw 1ibrary
Petitioner has apparently confused the separate and distinct remedies of an appeal (i.e. through
a petition for review of a decision of a quasi judicial agency under Rule 43 of the Rules of Court)
and a special civil action for certiorari (i.e. through a petition for review under Rule 65 of the
Rules of Court). In Silverio v. Court of Appeals, 15 this Court, speaking through then Chief Justice
Claudio Teehankee, distinguished between these two modes of judicial review as
follows:chanrob1es virtual 1aw library
The provisions of the Rules of Court permit an aggrieved party, in the general types of cases, to
take a cause and apply for relief to the appellate courts by way of either of two distinctly
different and dissimilar modes — through the broad process of appeal or the limited special civil
jurisdiction over the subject of the suit and the persons of the parties or any such error
committed by the court in the exercise of its jurisdiction amounting to nothing more than an
error of judgment. On the other hand, the writ of certiorari issues for the correction of errors of
jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ
of certiorari "cannot legally be used for any other purpose." In terms of its function, the writ
of certiorari serves "to keep an inferior court within the bounds of its jurisdiction or to prevent it
from committing such a grave abuse of discretion amounting to excess of jurisdiction" or to
relieve parties from arbitrary acts of courts — acts which courts have no power or authority in
law to perform. 16 (Italics, emphasis and underscoring supplied)

Concomitantly, appellate jurisdiction is separate and distinct from the jurisdiction to issue the
prerogative writ of certiorari. An appellate jurisdiction refers to a process which is a continuation
of the original suit and not a commencement of a new action. In contrast, to invoke a court’s
jurisdiction to issue the writ of certiorari requires the commencement of a new and original
action therefor, independent of the proceedings which gave rise to the questioned decision or
order. 17 As correctly held by the Court of Appeals, 18 the RTCs have concurrent jurisdiction with
the Court of Appeals and the Supreme Court over original petitions for certiorari, prohibition and
mandamus 19 under Section 21 20 of B.P. 129.
A perusal of respondent’s Petition dated April 3, 1995 filed before the RTC clearly shows that it
alleged that the DENR Regional Executive Director and OIC Regional Executive Director acted
with "grave abuse of discretion and without or in excess of jurisdiction amounting to lack of
jurisdiction" when they issued the questioned Orders dated February 17, 1994 and February 27,
1995. Evidently, respondent sought a judicial review of the questioned Orders through a special
civil action for certiorari which, as aforementioned, was within the jurisdiction of the RTC of
Midsayap, Cotabato. 21
Additionally, this Court finds no reason to disturb the Court of Appeals’ conclusion that the
instant case falls under the recognized exceptions to the rule on exhaustion of administrative
remedies, to wit:chanrob1es virtual 1aw library
The rule of exhaustion of administrative remedies is inapplicable if it should appear that an
irreparable injury or damage will be suffered by a party if he should await, before taking court
action, the final action of the administrative official concerned on the matter as a result of a
patently illegal order (Vivo v. Cloribel, 18 SCRA 713; De Lara v. Cloribel, 14 SCRA 269); or where
appeal would not prove to be speedy and adequate remedy. 22
True, the doctrine of exhaustion of administrative remedies calls for resort first to the
appropriate administrative authorities in the resolution of a controversy falling under their
jurisdiction before the same may be elevated to the courts of justice for review, and non-
observance thereof is a ground for the dismissal of the complaint, 23 the rationale
being:chanrob1es virtual 1aw library
The thrust of the rule on exhaustion of administrative remedies is that the courts must allow the
administrative agencies to carry out their functions and discharge their responsibilities within
the specialized areas of their respective competence. It is presumed that an administrative
agency, if afforded an opportunity to pass upon a matter, will decide the same correctly, or
correct any previous error committed in its forum. Furthermore, reasons of law, comity and
convenience prevent the courts from entertaining cases proper for determination by
administrative agencies. Hence, premature resort to the courts necessarily becomes fatal to the
cause of action of the petitioner. 24
However, this requirement of prior exhaustion of administrative remedies is not absolute, there
being instances when it may be dispensed with and judicial action may be validly resorted to
immediately, among which are: 1) when the question raised is purely legal; 2) when the
administrative body is in estoppel; 3) when the act complained of is patently illegal; 4) when
there is urgent need for judicial intervention; 5) when the claim involved is small; 6) when
irreparable damage will be suffered; 7) when there is no other plain, speedy and adequate
20
remedy; 8) when strong public interest is involved; and 9) in quo warranto
proceedings.25cralaw:red
Hence, where the act complained of is patently illegal since the administrative body acted
without or in excess of jurisdiction or with such grave abuse of discretion as to be tantamount to
lack of jurisdiction, as was alleged in respondent’s petition before the RTC, prior exhaustion of
administrative remedies is not required and resort to the courts through a special civil action
for certiorari under Rule 65 is permitted:chanrob1es virtual 1aw library
We hold that it was an error for the court a quo to rule that the petitioners should have
exhausted its remedy of appeal from the orders denying their application for waiver/suspension
to the Board of Trustees and thereafter to the Court of Appeals pursuant to the
Rules. Certiorari is an appropriate remedy to question the validity of the challenged issuances of
the HDMF which are alleged to have been issued with grave abuse of discretion amounting to
lack of jurisdiction.
Moreover, among the accepted exceptions to the rule on exhaustion of administrative remedies
are: (1) where the question in dispute is purely a legal one; and (2) where the controverted act is
patently illegal or was performed without jurisdiction or in excess of jurisdiction. Moreover,
while certiorari as a remedy may not be used as a substitute for an appeal, especially for a lost
appeal, this rule should not be strictly enforced if the petition is genuinely meritorious. It has
been said that where the rigid application of the rules would frustrate substantial justice, or bar
the vindication of a legitimate grievance, the courts are justified in exempting a particular case
from the operation of the rules. 26 (Emphasis supplied)
To justify the issuance of the writ of certiorari, however, it must be clearly shown that there is a
patent and grave abuse of discretion amounting to an evasion of a positive duty or to a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.
27
The crux of the case at bar is, therefore, whether the DENR Regional Executive Director and OIC
Regional Director acted with grave abuse of discretion amounting to lack or excess of jurisdiction
in issuing the questioned Orders dated February 17, 1994 and February 27, 1995,
respectively.chanrob1es virtua1 1aw 1ibrary
In resolving respondent’s second MSA and petitioner’s protest thereto, the DENR Regional
Executive Director, after considering the conflicting interest of the parties, found it equitable to
resolve the same by directing the sale of the subject land at public auction pursuant to Section
67, C.A. No. 141, as amended.
Section 67 of Commonwealth Act No. 141, otherwise known as "The Public Land Act," provides
the procedure for the disposition of lands of the public domain which are open to disposition or
concession and intended to be used for residential, commercial, industrial or other productive
purposes other than agricultural, to wit:chanrob1es virtual 1aw library
SEC. 67. The lease or sale shall be made through oral bidding; and adjudication shall be made to
the highest bidder. However, where an applicant has made improvements on the land by virtue
of a permit issued to him by competent authority, the sale or lease shall be made by sealed
bidding as prescribed in Section twenty-six of this Act, the provisions of which shall be applied
wherever applicable. If all or part of the lots remain unleased or unsold, the Director of Lands
shall from time to time announce in the Official Gazette or in any other newspapers of general
circulation, the lease or sale of those lots, if necessary. (Emphasis supplied)
With the enactment of Republic Act No. 730 28 on June 18, 1952, however, an exception to the
foregoing procedure was created by authorizing disposition of lands of the public domain by
private sale, instead of bidding, provided that: (1) the applicant has in his favor the conditions
specified therein and (2) the area applied for is not more than 1,000 square meters. 29 The
pertinent provision of R.A. 730 thus provides:chanrob1es virtual 1aw library
SEC. 1. Notwithstanding the provisions of Sections 61 and 67 of Commonwealth Act No. 141, as
amended by Republic Act No. 293, any Filipino citizen of legal age who is not the owner of a
home lot in the municipality or city in which he resides and who has in good faith established his
residence on a parcel of the public land of the Republic of the Philippines which is not needed
for the public service, shall be given preference to purchase at a private sale of which reasonable
notice shall be given to him not more than one thousand square meters at a price to be fixed by
the Director of Lands with the approval of the Secretary of Agriculture and Natural Resources. It
shall be an essential condition of this sale that the occupant has constructed his house on the
land and actually resided therein. Ten percent of the purchase price shall be paid upon the
approval of the sale and the balance may be paid in full, or in ten equal annual installments.
SEC. 2. Land acquired under the provisions of this Act shall not be subject to any restrictions
against encumbrance or alienation before and after the issuance of the patents thereon. 30
SEC. 3. The provisions of the Public Land Act with respect to the sale of lands for residential
purposes which are not inconsistent herewith shall be applicable.
SEC. 4. This Act shall take effect upon its approval.
Approved, June 18, 1952. (Emphasis supplied)
Given the foregoing provisions of R.A. 730 which took effect on June 18, 1952, and the DENR
Regional Executive Director’s February 17, 1994 finding that the subject land was "suitable for
residential purposes," it was incumbent upon him to determine whether the provisions of R.A.
730 were applicable to respondent’s MSA. As held by the Court of Appeals:chanrob1es virtual
1aw library
Finally, petitioner contends that the DENR Regional Executive Director and OIC Regional
Executive Director gravely erred in ordering the sale of the subject lot through oral bidding
applying Section 67, Commonwealth Act No. 141 and not Republic Act 730 authorizing the sale
of public land without bidding.
We agree with the petitioner.
x x x SEC. 91. The statements made in the application shall be considered as essential conditions and
Apropos is the case of Reyes v. Court of Appeals, 125 SCRA 785, ruling
21
that:jgc:chanrobles.com.ph
"When public land lots of not more than 1,000 sq. ms. are used, or to be used as a residence . . .
they can be sold on private sales under the provisions of Republic Act No. 730."cralaw virtua1aw
library
In Agura v. Serfino, Sr., (204 SCRA 569), the Supreme Court held that:jgc:chanrobles.com.ph
"R.A. 730 authorizes a sale by private sale, as an exception to the general rule that it should be
by bidding, if the area applied for does not exceed 1,000 square meters, . . ."cralaw virtua1aw
library
We see no reason why these ruling should not be applied in this case which involves 415 [should
have been 334] square meters only. 31
The Regional Director, however, summarily chose to apply Section 67 of the Public Land Act upon
a finding that it was more "equitable" in light of the "conflicting interest" of the parties. In his
"Answer" to respondent’s petition before the RTC, the Director justified his non-application of
R.A. 730 in this wise:chanrob1es virtual 1aw library
. . . Republic Act No. 730 is not applicable to the case at bar, the land being disputed, Republic
Act No. 730 requisite (sic) vas not meet (sic) that for this law to apply to a particular case, the
land must be in the first place not a land in conflict. There being a pending protest for final
adjudication, the said conflict continues to exist thus an impediment to the application of
Republic Act 730 32 (Emphasis supplied)
which justification he reiterated in his Opposition 33 to respondent’s Motion for Reconsideration
of the RTC decision.
The Director’s reliance on equity as basis for his action was misplaced, however. It is well-settled
that "equity follows the law." 34 Described as "justice outside legality," it is applied only in the
absence of, and never against, statutory law or legal pronouncements. 35 Where pertinent
positive rules are present, they should pre-empt and prevail over all abstract arguments based
only on equity. 36
A reading of R.A. 730 (or of the Public Land Act for that matter) shows nothing therein to
support the Director’s contention that the pendency of a protest is a bar to the application of
R.A. 730 to an MSA. Indeed, that Section 1 of R.A. 730 gives a qualified applicant preference to
purchase alienable public land suitable for residential purposes implies that there may be more
than one party interested in purchasing it.chanrob1es virtua1 1aw library
What is more, under Section 91 of the Public Land Act, it is the duty of the Director of the Lands
Management Bureau (formerly the Director of Lands) to determine whether the material facts
set forth in an MSA are true:chanrob1es virtual 1aw library
parts of any concession, title, or permit issued on the basis of such application, and any false
statement therein or omission of facts altering, changing, or modifying the consideration of the
facts set forth in such statements, and any subsequent modification, alteration, or change of the
material facts set forth in the application shall ipso facto produce the cancellation of the
concession, title, or permit granted. It shall be the duty of the Director of Lands, from time to
time and whenever he may deem it advisable, to make the necessary investigations for the
purpose of ascertaining whether the material facts set out in the application are true, or
whether they continue to exist and are maintained and preserved in good faith, and for the
purposes of such investigation, the Director of Lands is hereby empowered to issue subpoenas
and subpoenas duces tecum and, if necessary, to obtain compulsory process from the courts. In
every investigation made in accordance with this section, the existence of bad faith, fraud,
concealment, or fraudulent and illegal modification of essential facts shall be presumed if the
grantee or possessor of the land shall refuse or fail to obey a subpoena or subpoena duces
tecum lawfully issued by the Director of Lands or his authorized delegates or agents, or shall
refuse or fail to give direct and specific answers to pertinent questions, and on the basis of such
presumption, an order of cancellation may issue without further proceedings. (Emphasis
supplied)
Likewise, under Section 102 of the same Public Land Act, it is the duty of the Director of the
Lands Management Bureau to, after due hearing, verify whether the grounds of a protest or
objection to an MSA are well founded, and, if so, to cancel the MSA:chanrob1es virtual 1aw
library
SEC. 102. Any person, corporation, or association may file an objection under oath to any
application or concession under this Act, grounded on any reason sufficient under this Act for
the denial or cancellation of the application or the denial of the patent or grant. If, after the
applicant or grantee has been given suitable opportunity to be duly heard, the objection is found
to be well founded, the Director of Lands shall deny or cancel the application or deny patent or
grant, and the person objecting shall, if qualified, be granted a prior right of entry for a term of
sixty days from the date of the notice. (Emphasis supplied)
There was thus clearly a positive duty on the part of the DENR Director to process respondent’s
MSA, and to ascertain, particularly in light of petitioner’s protest, whether respondent was
qualified to purchase the subject land at a private sale pursuant to R.A. 730. This, he did not do.
In fine, by abdicating his duty to process respondent’s MSA and summarily ordering, without
factual or legal basis, that the subject land be disposed of via oral bidding pursuant to Section 67
of the Public Land Act, the Director acted with patent grave abuse of discretion amounting to
lack or excess of jurisdiction. As the Court of Appeals held:chanrob1es virtual 1aw library
Considering that the assailed Orders of public respondent DENR Regional Executive Director
applying Section 67 of Commonwealth Act No. 141 and ordering the sale of the subject lot by
oral bidding are patently erroneous, the authority of the court to issue writs of certiorari,
prohibition and mandamus is warranted. 37
The Director’s commission of grave abuse of discretion does not, however, mean that
respondent automatically has the better right to the subject land. As mandated by law, the
Director must process respondent’s MSA, conduct an investigation, and determine whether the
material facts set forth therein are true to bring it within the coverage of R.A. 730.
A thorough investigation is all the more imperative considering that petitioner’s protest raises
serious factual issues regarding respondent’s qualification to purchase the subject land — in
22
particular, whether he already owns a home lot in Midsayap and whether he has, in good faith,
constructed his house on the subject land and actually resided therein. These factual issues are
properly within the authority of the DENR and the Land Management Bureau, which are tasked
with carrying out the provisions of the Public Land Act and R.A. 730, 38 do determine, after both
parties have been given an opportunity to fully present their evidence.
As for petitioner’s claim of ownership over the subject land, admittedly a dried-up bed of the
Salunayan Creek, based on (1) her alleged long term adverse possession and that of her
predecessor-in-interest, Marcelina Basadre, even prior to October 22, 1966, when she purchased
the adjoining property from the latter, and (2) the right of accession under Art. 370 of the
Spanish Civil Code of 1889 and/or Article 461 of the Civil Code, the same must fail.
Since property of public dominion is outside the commerce of man 39 and not susceptible to
private appropriation and acquisitive prescription, 40 the adverse possession which may be the
basis of a grant of title in the confirmation of an imperfect title refers only to alienable or
disposable portions of the public domain. 41 It is only after the Government has declared the
land to be alienable and disposable agricultural land that the year of entry, cultivation and
exclusive and adverse possession can be counted for purposes of an imperfect title. 42
A creek, like the Salunayan Creek, is a recess or arm extending from a river and participating in
the ebb and flow of the sea. 43 As such, under Articles 420(1) 44 and 502(1) 45 of the Civil Code,
the Salunayan Creek, including its natural bed, is property of the public domain which is not
susceptible to private appropriation and acquisitive prescription. 46 And, absent any declaration
by the government, that a portion of the creek has dried-up does not, by itself, alter its
inalienable character.chanrob1es virtua1 1aw 1ibrary
This, in fact, was the very reason behind the denial of respondent’s first MSA, the District
Engineer having certified that the government may need the subject land for future expansion,
and the office of the Municipal Mayor having certified that it was needed by t he municipal
government for future public improvements. 47 Consequently, it was only after the same offices
subsequently certified 48 that the subject land was suitable for residential purposes and no
longer needed by the municipal government that it became alienable and disposable.
Confronted with similar factual circumstances, this Court in Bracewell v. Court of Appeals 49
held:chanrob1es virtual 1aw library
Clear from the above is the requirement that the applicant must prove that the land is alienable
public land. On this score, we agree with respondents that petitioner failed to show that the
parcels of land subject of his application are alienable or disposable. On the contrary, it was
conclusively shown by the government that the same were only classified as alienable or
disposable on March 27, 1972. Thus, even granting that petitioner and his predecessors-in-
interest had occupied the same since 1908, he still cannot claim title thereto by virtue of such
possession since the subject parcels of land were not yet alienable land at that time nor capable
of private appropriation. The adverse possession which may be the basis of a grant of title or
confirmation of an imperfect title refers only to alienable or disposable portions of the public
domain. 50 (Emphasis supplied)
With respect to petitioner’s invocation of the principle of accession under either Article 370 of
the Spanish Civil Code of 1889 or Article 461 of the Civil Code, the same does not apply to vest
her with ownership over subject land.

Under Article 370 51 of the Spanish Civil Code of 1889 which took effect in the Philippines on
December 7, 1889, 52 the beds of rivers which remain abandoned because the course of the
water has naturally changed belong to the owners of the riparian lands throughout their
respective lengths. If the abandoned bed divided estates belonging to different owners, the new
dividing line shall run at equal distance therefrom. 53
When the present Civil Code took effect on August 30, 1950, 54 the foregoing rule was
abandoned in favor of the present Article 461, which provides:chanrob1es virtual 1aw library
ART. 461. River beds which are abandoned through the natural change in the course of the
waters ipso facto belong to the owners whose lands are occupied by the new course in
proportion to the area lost. However, the owners of the lands adjoining the old bed shall have
the right to acquire the same by paying the value thereof, which value shall not exceed the value
of the area occupied by the new bed. (Emphasis supplied)
Article 461 provides for compensation for the loss of the land occupied by the new bed since it is
believed more equitable to compensate the actual losers than to add land to those who have
lost nothing. 55 Thus, the abandoned river bed is given to the owner(s) of the land(s) onto which
the river changed its course instead of the riparian owner(s). 56
owners.
The dried-up portion of Estero Calubcub should thus be considered as forming part of the land of
the public domain which cannot be subject to acquisition by private ownership. . . 60 (Emphasis
supplied)
Furthermore, both provisions pertain to situations where there has been a change in the course
of a river, not where the river simply dries up. In the instant Petition, it is not even alleged that
the Salunayan Creek changed its course. In such a situation, commentators are of the opinion
that the dry river bed remains property of public dominion. 61
Finally, while this Court notes that petitioner offered to purchase the subject land from the
government, 62 she did so through an informal letter dated August 9, 1989 63 instead of the
prescribed form. By such move, she is deemed to have acknowledged that the subject land is
public land, for it would be absurd for her to have applied for its purchase if she believed it was
hers. She is thus stopped from claiming otherwise. 64
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.chanrob1es virtua1 1aw 1ibrary

Petitioner claims that on October 22, 1966, when she purchased the property adjoining the
subject land from Marcelina Basadre, the said subject land was already a dried-up river bed such Republic of the Philippines
that "almost one-half portion of the residential house . . . was so already built and is still now SUPREME COURT
situated at the said dried-up portion of the Salunayan Creek bed . . ." 57 She failed to allege, Manila
however, when the subject portion of the Salunayan Creek dried up, a fact essential to
determining whether the applicable law is Article 370 of the Spanish Civil Code of 1889 or Article
461 of the Civil Code.chanrob1es virtua1 1aw 1ibrary EN BANC

Had the disputed portion of the Salunayan Creek dried up after the present Civil Code took G.R. No. L-19570 April 27, 1967
effect, the subject land would clearly not belong to petitioner or her predecessor-in-interest
since under the aforementioned provision of Article 461, "river beds which are abandoned JOSE V. HILARIO, JR., plaintiff-appellant,
through the natural change in the course of the waters ipso facto belong to the owners of the vs.
land occupied by the new course," and the owners of the adjoining lots have the right to acquire THE CITY OF MANILA, defendant-appellee,
them only after paying their value. 58 DIRECTOR OF PUBLIC WORKS, CITY ENGINEER OF MANILA, FERNANDO BUSUEGO and
EUGENIO SESE, defendants-appellants,
And both Article 370 of the Old Code and Article 461 of the present Civil Code are applicable MAXIMO CALALANG, intervenor;
only when" [r]iver beds are abandoned through the natural change in the course of the waters." DIRECTOR OF MINES, intervenor.
It is uncontroverted, however, that, as found by both the Bureau of Lands and the DENR Regional
Executive Director, the subject land became dry as a result of the construction of an irrigation
Maximo Calalang for plaintiff and appellant.
canal by the National Irrigation Administration. Thus, in Ronquillo v. Court of Appeals, 59 this
Gregorio Ejercito and Leandro L. Arguelles for defendant-appellee City of Manila.
Court held:chanrob1es virtual 1aw library
Office of the Solicitor General for other defendants and appellants.
The law is clear and unambiguous. It leaves no room for interpretation. Article 370 applies only if
there is a natural change in the course of the waters. The rules on alluvion do not apply to man- BENGZON, J.P., J.:
made or artificial accretions nor to accretions to lands that adjoin canals or esteros or artificial
drainage systems. Considering our earlier finding that the dried-up portion of Estero Calubcub Dr. Jose Hilario was the registered owner of a large tract of land — around 49 hectares in area
was actually caused by the active intervention of man, it follows that Article 370 does not apply — located at Barrio Guinayang, in San Mateo, Rizal.1 Upon his death, this property was
to the case at bar and, hence, the Del Rosarios cannot be entitled thereto supposedly as riparian

23
inherited by his son, herein plaintiff-appellant Jose Hilario, Jr., to whom a new certificate of
title2 was issued.
During the lifetime of plaintiff's father, the Hilario estate was bounded on the western side by
the San Mateo River.3 To prevent its entry into the land, a bamboo and lumber post dike or
ditch was constructed on the northwestern side. This was further fortified by a stonewall built
on the northern side. For years, these safeguards served their purpose. However, in 1937, a
great and extraordinary flood occurred which inundated the entire place including the
neighboring barrios and municipalities. The river destroyed the dike on the northwest, left its
original bed and meandered into the Hilario estate, segregating from the rest thereof a
lenticular place of land. The disputed area is on the eastern side of this lenticular strip which
now stands between the old riverbed site and the new course. 4
In 1945 the U.S. Army opened a sand and gravel plant within the premises 5 and started
scraping, excavating and extracting soil, gravel and sand from the nearby areas the River. The
operations eventually extended northward into this strip of land. Consequently, a claim for
damages was filed with the U.S. War Department by Luis Hilario, the then administrator of Dr.
Hilario's estate. The U.S. Army paid.6 In 1947, the plant was turned over to herein defendants-
appellants and appellee who took over its operations and continued the extractions and
excavations of gravel and sand from the strip of land along an area near the River.
On October 22, 1949, plaintiff filed his complaint 7 for injunction and damages against the
defendants City Engineer of Manila, District Engineer of Rizal, the Director of Public Works,
and Engr. Busuego, the Engineer-in-charge of the plant. It was prayed that the latter be
restrained from excavating, bulldozing and extracting gravel, sand and soil from his property
and that they solidarily pay to him P5,000.00 as damages. Defendants' answer alleged, in
affirmative defense, that the extractions were made from the riverbed while counterclaiming
with a prayer for injunction against plaintiff—who, it was claimed, was preventing them from
their operations.
Subsequently, the Bureau of Mines and Atty. Maximo Calalang were respectively allowed to
join the litigation as intervenors. The former complained that the disputed area was within
the bed of the river so that plaintiff should not only be enjoined from making extractions
therefrom but should also be ordered to pay the fees and penalties for the materials taken by
him. On the other hand, the latter claimed that he was authorized by plaintiff to extract
materials from the disputed area but this notwithstanding, the Provincial Treasurer of Rizal
collected from him a sand and gravel fee which would be an illegal exaction if the disputed
area turns out to be of private ownership. Answers to the two complaints in intervention
were duly filed by the affected parties.
On March 14, 1954, defendants filed a petition for injunction against plaintiff and intervenor
Calalang in the same case, alleging that the latter have fenced off the disputed area in
contravention of an agreement8 had between the latter and the Director of Public Works
wherein he defendants were allowed to continue their operations but subject to the final
outcome of the pending suit. It was prayed that plaintiff and intervenor Calalang be ordered
to remove the fence and allow defendants' men to continue their operations unhampered.
Opposition to this petition was filed by the other side, with a prayer for counter injunction.
24
On March 23, 1954, the lower court issued an order maintaining the status quo and allowing
the defendants to continue their extractions from the disputed area provided a receipt 9 in
plaintiff's favor be issued for all the materials taken.
On May 13, 1954, plaintiff amended his complaint. Impleaded as additional defendants were
the City of Manila,10 the Provincial Treasurer of Rizal,11 and Engr. Eugenio Sese, the new
Engineer-in-charge of the plant. Plaintiff also converted his claim to one purely for damages
directed against the City of Manila and the Director of Public Works, solidarily, in the amount
of P1,000,000.00, as the cost of materials taken since 1949, as well as those to be extracted
therefrom until defendants stop their operations.
Came the separate amended answers of the several defendants. Manila City denied
ownership of the plant and claimed that the City Engineer, acted merely as a deputy of the
Public Works Director. The other defendants 12 put up, as special defense, the agreement
between plaintiff and the Public Works Director, and asserted a P1.2 million counterclaim for
damages against plaintiff. The rest13 renewed the same defense; that the disputed area was
part of the public domain, since it was situated on the riverbanks.
On November 3, 1954, the defendant City Engineer of Manila filed a petition to delimit the
area of excavation and asked the lower court to authorize his men to extend their operations
west of the camachile tree in the disputed area. This met vigorous opposition from plaintiff
and intervenor Calalang. On May 27, 1955, the petition was denied.
Finally, on December 21, 1956, the lower court rendered its decision on the merits. The
dispositive portion provided:14
WHEREFORE, judgment is hereby rendered against the defendants City of Manila
and the Director of Public Works, to pay solidarily the herein plaintiff the sum of
P376,989.60, as the cost of gravel and sand extracted from plaintiff's land, plus
costs. Judgment is likewise hereby rendered against the defendant Provincial
Treasurer of Rizal, ordering him to reimburse to intervenor Maximo Calalang the
amount of P236.80 representing gravel fees illegally collected. Finally, defendants
herein are perpetually enjoined from extracting any sand or gravel from plaintiff's
property which is two-fifths northern portion of the disputed area.
It is so ordered.
None of the parties litigants seemed satisfied with this decision and they all sought a
reconsideration of the same. On August 30, 1957, the lower court resolved the motions to
reconsider with an order, the dispositive portion of which provided: 15
WHEREFORE, the court hereby denies the motion for reconsideration filed by
plaintiff and intervenor Calalang; dismisses the complaint with respect to defendant
City of Manila; holds that the northern two-fifths portion of the area in controversy
belongs to the plaintiff with right to the immediate possession thereof and hereby
enjoins the defendants and intervenor Bureau of Mines to vacate the same and to
 stop from extracting gravel thereon. The Court however hereby dismisses the case
against the defendant Bureau of Public Works and its agents and employees insofar
as the claim for money is concerned without prejudice to plaintiffs taking such
action as he may deem proper to enforce said claim against the proper party in
accordance with law.
It is so ordered.
Still unsatisfied, plaintiff and intervenor Calalang filed a second motion for reconsideration.
The lower court stood firm on its ruling of August 30, 1957. 16
Hence, this appeal.17 The defendants Director of Public Works, City Engineer of Manila, and
Engrs. Busuego and Sese have also appealed from the declaration made by the lower court
that the northern two-fifths of the disputed area belongs to plaintiff Hilario.
The parties herein have presented before this Court mixed questions of law and fact for
resolution and adjudication. Foremost among them is this legal query; when a river, leaving
its old bed, changes its original course and opens a new one through private property, would
the new riverbanks lining said course be of public ownership also? 18
The defendants answer in the affirmative. They claim that under the Law of Waters of August
3, 1866, the riverbanks are, by definition, considered part of the riverbed which is always of
public ownership. On the other hand, plaintiff would have the question resolved in the
negative. He maintains that not all riverbanks are of public ownership because: (1) Art. 372 of
the old Civil Code, which governs this particular case, speaks only of the new bed; nothing is
said about the new banks; (2) Art. 73 of the Law of Waters which defines the phrase "banks
of a river" cannot be applied in the case at bar in conjunction with the other articles cited by
defendants since that article applies only to banks of natural riverbeds and the present, River
is not in its natural bed; and (3) if all banks were of public ownership, then Art. 553 of the old
Civil Code and the second sentence, first paragraph of Art. 73 of the Law of Waters can never
have any application.
Since the change in the course of the River took place in 1937, long before the present Civil
Code took effect,19 the question before Us should be determined in accordance with the
provisions of the old Civil Code and those of the Law of Waters of August 3, 1866.
We agree with defendants that under the cited laws, all riverbanks are of public ownership —
including those formed when a river leaves its old bed and opens a new course through a
private estate. Art. 339 of the old Civil Code is very clear. Without any qualifications, it
provides:
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; (Emphasis supplied)
25
Moreover, as correctly contended by defendants, the riverbank is part of the riverbed. Art. 73
of the Law of Waters which defines the phrase "banks of a river" provides:
By the phrase "banks of a river" is understood those lateral strips or zones of its
bed which are washed by the stream only during such high floods as do not cause
inundations. ... (Emphasis supplied)
The use the of words "of its bed [de sus alveos]" clearly indicates the intent of the
law to consider the banks — for all legal purposes — as part of the riverbed. The
lower court also ruled — correctly — that the banks of the River are paint of its
bed.20 Since undeniably all beds of rivers are of public ownership, 21 it follows that
the banks, which form part of them, are also of public ownership.
Plaintiff's contention that Arts. 70 and 73 of the Law of Waters cannot apply because Art. 312
of the old Civil Code mentions only the new bed but omits the banks, and that said articles
only apply to natural — meaning original — bed and banks is untenable. Art. 70, which
defines beds of rivers and creeks, provides:
The natural bed or channel of a creek or river is the ground covered by its waters
during the highest [ordinary] floods. 22 (Emphasis supplied)
Art. 372 of the old Civil Code which provides that —
Whenever a navigable or floatable river changes its course from natural causes and
opens a new bed through a private estate, the new bed shall be of public
ownership, but the owner of the estate shall recover it in the event that the waters
leave it dry again either naturally or as the result of any work legally authorized for
this purpose. (Emphasis supplied)
did not have to mention the banks because it was unnecessary. The nature of the
banks always follows that of the bed and the running waters of the river. A river is a
compound concept consisting of three elements: (1) the running waters, (2) the bed
and (3) the banks. 23 All these constitute the river. American authorities are in
accord with this view:
'River' consists of water, a bed and banks. 24
A "river" consists of water, a bed and banks, these several parts constituting the
river, the whole river. It is a compound idea; it cannot exist without all its paints.
Evaporate the water, and you have a dry hollow. If you could sink the bed, instead
of a river, you would have a fathomless gulf. Remove the banks, and you have a
boundless flood.25
Since a river is but one compound concept, it should have only one nature, i.e., it should
either be totally public or completely private. And since rivers are of public ownership, 26 it is
implicit that all the three component elements be of the same nature also. As Manresa legislative policy clearly enunciated in Art. 339 of the Code that all riverbanks were of public
commented: ownership. The article merely recognized and preserved the vested rights of riparian owners
who, because of prior law or custom, were able to acquire ownership over the banks. This
Realmente no puede imaginarse un rio sin alveo y sin ribera; de suerte que al decir was possible under the Siete Partidas which was promulgated in 1834 yet.29 Under Law 6,
el Codigo Civil que los rios son de dominio publico, parece que debe ir implicito el Title 28, Partidas 3, the banks of rivers belonged to the riparian owners, following the Roman
dominio publico de anquellos tres elementos que integran el rio. 27 Law rule.30 In other words, they were privately owned then. But subsequent legislation
radically changed this rule. By the Law of Waters of August 3, 1866, riverbanks became of
public ownership, albeit impliedly only because considered part of the bed — which was
However, to dispel all possible doubts, the law expressly makes all three elements public.
public — by statutory definition.31 But this law, while expressly repealing all prior inconsistent
Thus, riverbanks and beds are public under Arts. 339 and 407, respectively, of the Code, while
laws, left undisturbed all vested rights then existing. 32 So privately owned banks then
the flowing waters are declared so under Art. 33, par. 2 of the Law of Waters of 1866.
continued to be so under the new law, but they were subjected by the latter to an easement
for public use. As Art. 73 provides:
Articles 70, 72 and 73 of the Law of Waters speak of natural beds and their banks. Plaintiff
now equates the term "natural" with the word "original" so that a change in the course of a
Se entienden por riberas de un rio las fajas o zonis laterales de sus alveos que
river would render those articles inapplicable. However, the premise is incorrect. Diccionario
solamente sor bañadas por las aguas en las crecidas que no causan inundacion. El
De La Real Academia Española defines the word "natural" as follows:
dominio privado de las riberas esta suieto a la survidumbre de tres metros de zona
para uso publico, en el interest general de la navegacion, la flotacion, la pesca y el
NATURAL — perteneciente a la naturaleza o conforme a la calidad o propriedad de salvamento. ... (Emphasis supplied).1äwphï1.ñët
las cosas; nativo, originario de un pueblo o nacion; hecho con verdad, ni artificio,
mezcla ni composicion alguna; ingenuo y sin doblez en su modo de proceder; diceze
This was perhaps the reconciliation effected between the private ownership of the banks, on
tambien de las cosas que imitar a la naturaleza con propiedad; regular y que
the one hand, and the policy of the law on the other hand, to devote all banks to public
comunmente sucede, y por eso, facilmente creible; que se produce por solas las
use.33 The easement would preserve the private ownership of the banks and still effectuate
fuerzas de la naturaleza, como contrapuesto a sobre natural y milagroso, (Emphasis
the policy of the law. So, the easement in Art. 73 only recognized and
supplied)
preserved existing privately owned banks; it did not authorize future private appropriation of
riverbanks.
"Natural" is not made synonymous to "original" or "prior condition". On the contrary, even if
a river should leave its original bed so long as it is due to the force of nature, the new course
The foregoing observation is confirmed by the still subsequent Law of Waters of June 13,
would still fall within the scope of the definition provided above. Hence, the law must have
1879, which was principally based on the Law of August 3, 1865. 34 Art. 36 of the new law,
used the word "natural" only because it is in keeping with the ordinary nature and concept of
which was a substantial reenactment of Art. 73 of the Law of Waters of August 3, 1866, reads:
a river always to have a bed and banks.

Las riberas, aun cuando sean de dominio privado en virtud de antigue ley o de
Plaintiff's third point is not lightly to be taken. Indeed, it would seem possible to acquire
costumbre, estan sujetas en toda su extension las margenes en una zona de tres
private ownership of banks under Art. 553 of the old Civil Code which provides:
metros, a la servidumbre de uso publico en interes general de la navegacion, la
flotacion la pesca y el salvamento. ... (Emphasis supplied)
Las riberas de los rios, aun cuando sean de dominio privado, estan sujetas en toda
su extension y en sus margenes, en una zona de tres metros, a la servidumbre de
The new law also affirmed the public ownership of rivers and their beds, and the treatment of
uso publico en interes general de la navegacion, la flotacion, la pesca y el
the banks as part of the bed.35 But nowhere in the law was there any provision authorizing
salvamento. (Emphasis supplied) .
the private appropriation of the banks. What it merely did was to recognize the fact that at
that time there were privately owned banks pursuant to the Siete Partidas, and to encumber
And plaintiff is not without jurisprudential backing for in Commonwealth vs. these with an easement for public use.
Gungun,28 it was said that the private ownership of the banks was not prohibited.
His point is then neatly brought home with the proposition that it is precisely when
However, the public nature of riverbanks still obtained only by implication. But with the
a river changes its course and opens a new bed through a private estate that there
promulgation of the Civil Code of 1889, this fact was finally made explicit in Art. 339 thereof.
can be private ownership of the banks.
Riverbanks were declared as public property since they were destined for public use. And the
first paragraph of Art. 36 of the Law of Waters of 1879 was substantially reenacted in Art. 553
A study of the history of Art. 553 will however reveal that it was never intended to authorize of the Code.36 Hence, this article must also be understood not as authorizing the private
the private acquisition of riverbanks. That could not have been legally possible in view of the

26
acquisition of riverbanks but only as recognizing the vested titles of riparian owners who
already owned the banks.
The authority, then, for the private ownership of the banks is neither the old Civil Code nor
the Law of Waters of 1866 but the Siete Partidas. Unfortunately, plaintiff cannot invoke it.
Law 6, Title 28, Partida 3, which provides for private ownership of banks, ceased to be of
force in this jurisdiction as of 1871 yet when the Law of Waters of August 3, 1866, took
effect.37 Since the change in the course of the River took place in 1937, the new banks which
were formed could not have been subjected to the provisions of the Siete Partidas which had
already been superseded by then.
Coming to the factual issues: both parties assail the conclusion made by the lower court that
only the northern two-fifths of the disputed area remained as plaintiff's private property. This
conclusion was apparently based on the findings that the portion where rice and corn were
found38 in the ocular inspection of June 15, 1951, was on the northern two-fifths of the
disputed area; that this cannot be a part of the bed because of the existence of vegetation
which could not have grown underwater, and that this portion is man-made. However, there
is no evidentiary basis for these findings. The area indicated by Nos. 1 and 2 in Exh. D-
1 where no excavations had been made, appears to be more on the south-western one-fourth
of the disputed area. The American cases39 cited by the lower court cannot apply here. Our
Law of Waters, in defining "beds" and considers the latter is part of the former. Those cited
cases did not involve a similar statutory provision. That plants can and do grow on the banks
which otherwise could not have grown in the bed which is constantly subjected to the flow of
the waters proves the distinction between "beds" and "banks" in the physical order. However,
We are dealing with the legal order where legal definitions prevail. And apart from these
considerations, We also note the considerable difficulty which would attend the execution of
the ruling of the lower court. The latter failed to indicate fixed markers from which an exact
delimitation of the boundaries of the portion could be made. This flaw is conducive to future
litigations.
Plaintiff's theory is that the disputed area, although covered at times by flood waters, cannot
be considered as within the banks of the River because: (1) such floods are only accidental,
and (2) even if they are regular, the flooding of the area is due to the excavations and
extractions made by defendants which have caused the widening of the
channel.40 Defendants claim, however, that the area is always covered by the normal yearly
floods and that the widening of the channel is due to natural causes.
There is a gravel pit41 located along the west side of the River. This is about 500 meters
long.42 A greater part of this pit occupies a portion of the strip of land that was sliced by the
River from the rest of the Hilario estate. As shown in Exhs. D and D-1, this strip of land is that
western segment of the Hilario estate bounded on the west by the same lines connecting
stakes 23 through 27, which form part of the western boundary of the estate, and on the
east, bounded by the western waterline of the River.
Now, the disputed area, generally speaking,43 is only that part of the gravel pit which is within
the strip of land. Its northern tip is that point where the so-called "secondary bank" line
intersects the west River waterline up north; its southern boundary is along the line
27
connecting stakes 23 and 24. From these two ends, the disputed area measures
approximately 250 meters long. The eastern boundary is the western River waterline at low
tide and the western boundary is the "secondary bank" line, a line passing near stake 24 and
running almost parallel to the line connecting stakes 25 and 26. Around the later part of 1949,
the disputed area was about 150 to 160 meters wide. 44 This increased to about 175 to 180
meters by the later part of 1950. And by January, 1953, the distance from the "secondary
bank" line to the west waterline was about 230 meters. 45
This increasing width of the disputed area could be attributed to the gradual movement of
the River to the east. Since it entered into the Hilario estate, the River has not stayed
put.46 Vicente Vicente, plaintiff's witness declared47 that after the River changed its course in
1937, the distance between the old and the new river sites was about 100 meters. Exh. D-2
shows that in 1943, the south end of the River was about 5 meters southeast of stake
24.48 Honorato Sta. Maria, another witness for plaintiff, indicated the flow of this course with
a blue line in Exh. D-1.49 This blue line is about 100 meters from the line connecting stakes 25
and 26, which was also the east boundary of the old River. 50 Around 1945 to 1949, the River
was about 193 meters51 east of this line. This measurement is based on the testimonies of
two defense witnesses52 and stated that during that period, the River passed along the
Excavated Area and the New Accretion Area53 sites, as shown in Exh. 54. By the later part of
1949 up to November 1950, the west waterline was from 248 to 270 meters 54 east of the
aforesaid boundary line. And finally in January, 1953, based on the scale in Exh. 3-Calalang,
the west waterline was from 300 to 305 meters away already. Hence, from 100 meters in
1937, the River had moved to 305 meters eastward in 1953.
There are two questions to be resolved here. First, where on the strip of land are the lateral
borders of the western riverbank? And second, where have defendants made their
extractions?
Anent the first question, the key is supplied by Art. 73 of the Law of Waters which defines the
limits of banks of rivers —
By the phrase "banks of a river" is understood those lateral strips or zones of its bed
which are washed by the stream only during such high floods as do not cause in
inundations. ... (Emphasis supplied)
The farthest extremity of the bank on the west side would, therefore, be that lateral
line or strip which is reached by the waters during those high floods that do not
cause inundations. In other words, the extent reached by the waters when the River
is at high tide.
However, there is a difference between the topography of the two sides immediately
adjoining the River. The line indicated as "primary bank" 55 in Exh. 3-Calalang, which is on the
east, is about 3 meters high and has a steep grade right at the edge where it drops almost
vertically to the watercourse level. The precipice here, which is near the east waterline, is
very easily detectible. But the opposite side has no such steep activity. In fact, it is almost flat
with the bed of the River, especially near the water edge, where it is about 30 to 50 cms. high
only. But it gradually slopes up to a height of about 2 to 2-½ meters along the line indicated as
"secondary bank", which is quite far from the waterline. This "bank" line is about 1-½ meters
higher than the level of the gravel pit and there are erosions here. This is about 175 meters
west from the November 1950 waterline, and about 100 meters west from the camachile
tree.56
During the dry season, the waterlevel of the River is quite low — about knee-deep only.
However, during the rainy season, the River generally becomes swollen, and the waterlevel
rises, reaching up to the neck.57 However, considering the peculiar characteristics of the two
sides banking the river, the rise in the waterlevel would not have the same effect on the two
sides. Thus, on the east, the water would rise vertically, until the top of the "primary bank" is
reached, but on the west, there would be a low-angled inclined rise, the water covering more
ground until the "secondary bank" line is reached. In other words, while the water expansion
on the east is vertical, that on the west is more or less lateral, or horizontal.
The evidence also shows that there are two types of floods in the area during the rainy
season.58 One is the so-called "ordinary" flood, when the river is swollen but the flowing
water is kept within the confines, of the "primary" and "secondary" banks. This occurs
annually, about three to four times during the period. Then there is the "extraordinary" flood,
when the waters overflow beyond the said banks, and even inundate the surrounding areas.
However, this flood does not happen regularly. From 1947 to 1955, there were only three
such floods.59 Now, considering that the "ordinary" flood easily cover the west side — since
any vertical rise of the waterlevel on the east would necessarily be accompanied by a lateral
water expansion on the west — the "inundations" which the law mentions must be those
caused by the "extraordinary" floods which reach and overflow beyond both "primary" and
"secondary" banks. And since the "primary" bank is higher than the "secondary" bank, it is
only when the former is reached and overflowed that there can be an inundation of the
banks — the two banks. The question therefore, may be stated thus: up to what extent on
the west side do the highest flood waters reach when the "primary" bank is not overflowed?
Defendants have presented several witnesses who testified on the extent reached by the
ordinary flood waters. David Ross, a bulldozer operator at the plant since 1945, testified 60 that
from 1945 to 1949, when the River was still passing along the site where the camachile tree is
located, the annual flood waters reached up to the "secondary bank" line. These floods
usually took from 3 to 5 days to recede, during which time their work was suspended.
Corroboration is supplied by Macario Suiza, a crane operator in the plant since 1945, and by
Fidel Villafuerte, a plant employee since 1946. Suiza stated 61 that from 1947 to 1949, the area
enclosed within the blue lines and marked as Exh. 54-B — which includes the New Accretion
Area was always covered by water when it rained hard and they had to stop work
temporarily. The western extremity of this area reaches up to the "secondary bank" line.
Villafuerte stated62 that in the ordinary floods when the water was just 50 cm. below the top
of the "primary bank", the waters would go beyond the camachile tree by as much as 100
meters westward and just about reach the "secondary bank" line. Further corroboration is
supplied by plaintiff's own evidence. Exh. 1-Calalang states that from 1947 to 1949, based on
the casual observations made by geologist David Cruz, the area between the "primary" and
"secondary" banks were always covered by the non-inundating ordinary floods.
From 1950 to 1952, We have the testimony of Ross who stated 63 that there were still floods
but they were not as big anymore, except one flood in 1952, since the River had already
28
moved to the east. Engr. Ricardo Pacheco, who made a survey of the disputed area in
November 1952, and who conducted actual observations of the extent of the water reach
when the river was swollen, testified64 that the non-inundating flood regularly reached up to
the blue zigzag line along the disputed area, as shown in Exh. I-City Engineer Manila. This blue
line, at the point where it intersects line BB, 65 is about 140 meters west of the waterline and
about 20 meters west of the camachile tree. His testimony was based on three floods 66 which
he and his men actually recorded. Corroboration is again supplied by Exh. 1-Calalang.
According to Cruz' report, the floods in 1950 and 1951 barely covered the disputed area.
During the normal days of the rainy season, the waters of the swollen river did not reach the
higher portions of the gravel pit which used to be submerged. One cause for this was the
lesser amount of rainfall from 1949 to 1951. But two floods occurred from October 16 to 28,
1952, which overflowed the whole area and inundated the banks. From 1953 to 1955, when
the River was farther away to the east, the flood waters still covered the west
side.67 Testifying on the extent reached by the water during the rainy season in 1954, Ross
stated68 that it reached up to the camachile tree only. The last and latest data comes from
Engr. Magbayani Leaño, the Engineer-in-charge of the plant from August 1954. He
testified69 that as of December 1955, when the disputed area was underwater, the water
reach was about 20 meters or less to the east from the camachile tree.
From all the foregoing, it can be safely concluded: (1) that from 1945 to 1949, the west bank
of the River extended westward up to the "secondary bank" line; (2) that from 1950 to 1952,
this bank had moved, with the River, to the east its lateral borders running along a line just 20
meters west of the camachile tree; and (3) that from 1953 to 1955, the extremities of the
west bank further receded eastward beyond the camachile tree, until they lay just about 20
meters east of said tree.
To counteract the testimonies of the defense witnesses, plaintiff presented two rebuttal
witnesses70 who told a somewhat different story. However, their testimonies are not
convincing enough to offset the dovetailing testimonies of the defense witnesses who were
much better qualified and acquainted with the actual situs of the floods. And said defense
witnesses were corroborated by plaintiffs' own evidence which contradicts the aforesaid
rebuttal witnesses.
However, plaintiff maintains that the floods which cover the area in question are merely
accidental and hence, under Art. 77 of the Law of Waters, 71 and following the ruling
in Government vs. Colegio de San Jose,72 he is deemed not to have lost the inundated area.
This is untenable. Plaintiff's own evidence73 shows that the river floods with annual regularity
during the rainy season. These floods can hardly be called "accidental." The Colegio de San
Jose case is not exactly in point. What was mainly considered there was Art. 74 of the Law of
Waters relating to lakes, ponds and pools. In the case at bar, none of these is involved.
Also untenable is plaintiff's contention that the regular flooding of the disputed area was due
to the continuous extraction of materials by defendants which had lowered the level of said
area and caused the consequent widening of the channel and the river itself. The excavations
and extractions of materials, even from the American period, have been made only on the
strip of land west of the River. 74 Under the "following-the-nature-of-things" argument
advanced by plaintiff, the River should have moved westward, where the level of the ground
had been lowered. But the movement has been in the opposite direction instead. Therefore,
it cannot be attributed to defendants' operation. Moreover, plaintiff's own evidence indicates
that the movement eastward was all due to natural causes. Thus, Exh. 1-Calalang shows that
the movement eastward of the channel by as much as 31 meters, from 1950 to 1953, was
due to two typhoons which caused the erosion of the east bank and the depositing of
materials on the west side which increased its level from as much as .93 to 2 meters.
Plaintiff's assertion that the defendants also caused the unnatural widening of the River is
unfounded. Reliance is made on the finding by the lower court that in 1943, the River was
only 60 meters wide as shown in Exh. D-2, whereas in 1950, it was already 140 meters wide
as shown in Exh. D. However, Exh. D-2 only shows the width of the River near the
southwestern boundary of the Hilario estate. It does not indicate how wide it was in the
other parts, especially up north. And Eligio Lorenzo, plaintiff's own witness, admitted 75 on
cross-examination that the width of the new river was not uniform. This is confirmed by Exhs.
D and D-1 which show that the new river was wider by as much as 50% up north than it was
down south. The 140-meter distance in Exh. D was at the widest part up north whereas down
south, near the mouth of the Bulobok River, it was only 70 meters wide. Lastly, the scale in
Exh. 3-Calalang will show that in January 1953, the River, near the same point also, was less
than 50 meters wide.
The only remaining question now is to determine if the defendants have really confined their
operations within the banks of the River as alleged by them. To resolve this, We have to find
out from what precise portion in the disputed area the defendants have extracted gravel and
sand since they did not extract indiscriminately from within the entire area. None of the
parties' briefs were very helpful but the evidence on record discloses that defendants made
their extractions only within specified areas during definite periods.
From 1947 to the early part of 1949, the defendants conducted their operations only in the
New Accretion Area along a narrow longitudinal zone contiguous to the watercourse then.
This zone, marked as Exh. 2-City Engineer Manila, is about one (1) km. long and extends
northward up to pt. 50.35 in Exh. 54. However, no extractions nor excavations were
undertaken west of this zone, i.e., above the "temporary bank" line. 76 These facts are
corroborated by plaintiff's witnesses. That the extractions were near the river then finds
support in Vicente's testimony77 while Leon Angeles and Mrs. Salud Hilario confirm the fact
that defendants have not gone westward beyond the "temporary bank" line. 78 This line is
located east of the "secondary bank" line, the lateral extremity of the west bank then.
In the later part of 1949, plaintiff prohibited the defendants from extracting along the New
Accretion Area and constructed a fence across the same. This forced the defendants to go
below southeast of — the "Excavated Area" and the New Accretion Area sites in Exh.
54.79 Engr. Busuego, testifying80 in 1952, indicated their are of extraction as that enclosed
within the red dotted line in Exh. D-1 which lies on the south end of the strip of land. Only a
small portion of the southeastern boundary of the disputed area is included. The ocular
inspection conducted on June 15, 1951, confirms this. 81 Exh. 4-Calalang shows the total
amount of materials taken from within the area from 1949 to 1951. 82 Thus, from 1950 up to
1953, although the defendants were able to continue their operations because of the
agreement between the plaintiff and the Director of Public Works, 83 they were confined only
to the southeastern portion of the disputed area. On the other hand, the lateral extremities
29
of the west bank then ran along a line about 20 meters west of the camachile tree in the New
Accretion Area.
From 1954 to 1955, defendants' area of operation was still farther near of the New Accretion
Area. They were working within a confined area along the west waterline, the northern and
western boundaries of which were 20 meters away east from the camachile tree. 84 Ross
indicated85 this zone in Exh. 54 as that portion on the southern end of the disputed area
between the blue lines going through the words "Marikina River Bed" and the red zigzag line
indicating the watercourse then. Engr. Leaño even stated, 86 that they got about 80% of the
materials from the river itself and only 20% from the dry bed. The sand and gravel covered by
Exhs. LL to LL-55 were all taken from here. The foregoing facts are not only corroborated by
Mrs. Hilario87 but even admitted by the plaintiff in his opposition 88 to defendants' petition to
extend their area of operation west of the camachile tree. And because their petition was
denied, defendants could not, and have not, 89 gone beyond the lateral line about 20 meters
east from said tree, which has already been established as the lateral extremity of the west
bank during the period.
It appears sufficiently established, therefore, that defendants have not gone beyond the
receding western extremities of the west riverbank. They have confined their extraction of
gravel and sand only from within the banks of the river which constitute part of the public
domain — wherein they had the right to operate. Plaintiff has not presented sufficient
evidence that defendants have gone beyond the limits of the west bank, as previously
established, and have invaded his private estate. He cannot, therefore, recover from them.
As a parting argument, plaintiff contends that to declare the entire disputed area as part of
the riverbanks would be tantamount to converting about half of his estate to public
ownership without just compensation. He even adds that defendants have already exhausted
the supply in that area and have unjustly profited at his expense. These arguments, however,
do not detract from the above conclusions.
First of all, We are not declaring that the entire channel, i.e., all that space between the
"secondary bank" line and the "primary bank" line, has permanently become part of the
riverbed. What We are only holding is that at the time the defendants made their extractions,
the excavations were within the confines of the riverbanks then. The "secondary bank" line
was the western limit of the west bank around 1945 to 1949 only. By 1955, this had greatly
receded to the line just 20 meters east of the camachile tree in the New Accretion Area. All
that space to the west of said receding line90 would still be part of plaintiff's property — and
also whatever portion adjoining the river is, at present, no longer reached by the non-
inundating ordinary floods.
Secondly, it is not correct to say that plaintiff would be deprived of his property without any
compensation at all. Under Art. 370 of the old Civil Code, the abandoned bed of the old river
belongs to the riparian owners either fully or in part with the other riparian owners. And had
the change occurred under the Civil Code of the Philippines, plaintiff would even be entitled
to all of the old bed in proportion to the area he has lost. 91
And, lastly, defendants cannot be accused of unjustly profiting at plaintiff's expense. They
were not responsible for the shifting of the River. It was due to natural causes for which no
one can be blamed. And defendants were extracting from public property then, under proper
authorization. The government, through the defendants, may have been enriched by chance,
but not unjustly.

Considering the conclusions We have thus reached, the other questions involved in the
remaining assignments of errors — particularly those apropos the doctrine of state immunity
from suit and the liability of defendant City of Manila — are rendered moot.

Wherefore, the decision and orders appealed from are hereby set aside and another
judgment is hereby entered as follows:

(1) Defendants City of Manila and the Director of Public Works and his agents and
employees are hereby absolved from liability to plaintiff since they did not extract
materials from plaintiff's property but from the public domain.

(2) All that portion within the strip of land in question, starting from the line
running parallel to the western waterline of the river and twenty meters east from
the camachile tree in the New Accretion Area measured along line AA in Exhs. 3-
Calalang, 13 and 54, and going to the west up to the western boundaries of the
Hilario estate, is hereby declared as not part of the public domain and confirmed as
part of plaintiff's private property. No costs. So ordered.

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