EMINENT DOMAIN I.

DEFINITION EMINENT DOMAIN The power of the nation or a sovereign state to take, or to authorize the taking of, private property for a public use without the owners consent, conditioned upon payment of just compensation An inherent political right, founded on a common necessity and interest of appropriating the property of individual members of the community to the great necessities of the whole community BASIS (BILL OF RIGHTS): 1. Section 9 - That private property shall not be taken for public use without just compensation under 2. Section 1 - That no person shall be deprived of his/her life, liberty, or property without due process of law under PUBLIC USE a) LIMITED MEANING: use by the public or public employment; that a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned b) GENERAL MEANING: public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, [which] contributes to the general welfare and the prosperity of the whole community c) PHILIPPINE JURISDICTION: whatever is beneficially employed for the community BARANGAY SINDALAN v. COURT OF APPEALS GR 150640; March 22, 2007 J. Velasco, Jr. It is settled that the public nature of the prospective exercise of expropriation cannot depend on the numerical count of those to be served or the smallness or largeness of the community to be benefited. Barangay Sindalan, pursuant to RESO 6 filed a complaint for ED against the Sindayan spouses who were the registered owners of the parcel of land subject of the expropriation. The barangay sought to convert a portion of spouses Sindayans land into Barangay Sindalans feeder road. The spouses argued that the expropriation of their property was improper because it was sought for a private use. They alleged that the 1 | PUBLIC CORPORATION: EMINENT DOMAIN (AMPUAN 2A) expropriation of their property, which was adjacent to Davsan II Subdivision, would benefit only the homeowners of said subdivision. The RTC ruled that the barangay had the lawful right to take the property of the Sindayan spouses. The CA reversed. ISSUE WON the proposed exercise of the power of eminent domain would be for a public purpose HELD NO, the contemplated road to be constructed by the barangay would benefit only the residents of a subdivision. In the exercise of the power of eminent domain, it is basic that the taking of private property must be for a public purpose. In this jurisdiction, "public use" is defined as "whatever is beneficially employed for the community." The intended feeder road sought to serve the residents of the subdivision only. It has not been shown that the other residents of Barangay Sindalan, San Fernando, Pampanga, will be benefited by the contemplated road to be constructed. While the number of people who use or can use the property is not determinative of whether or not it constitutes public use or purpose, the factual milieu of the case reveals that the intended use of respondents lot is confined solely to t he Davsan II Subdivision residents and is not exercisable in common. Considering that the residents who need a feeder road are all subdivision lot owners, it is the obligation of the Davsan II Subdivision owner to acquire a right-of-way for them. To deprive respondents of their property instead of compelling the subdivision owner to comply with his obligation under the law is an abuse of the power of eminent domain and is patently illegal. Without doubt, expropriation cannot be justified on the basis of an unlawful purpose. REQUISITES FOR THE EXERCISE a. SECTION 19, LGC A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted : Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated : Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on

the fair market value at the time of the taking of the property b. IMPLEMENTING RULES AND REGULATIONS OF LGC SECTION 32. (a) A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws. (b) The power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: SECTION 36. (a) If the LGU fails to acquire private property for public use, purpose or welfare through purchase, the LGU may expropriate said property through a resolution of the Sanggunian authorizing it chief executive to initiate expropriation proceedings. (b) The Local Chief Executive shall cause the provincial, city or municipality attorney concerned or in his absence, the provincial or city prosecutor to file expropriation proceeding in the proper court in accordance with the Rules of Court and other pertinent laws. (c) That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated c. 1997 Rules of Civil Procedure RULE 67 EXPROPRIATION SECTION 1 - THE COMPLAINT: The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who the real owners are, averment to that effect shall be made in the complaint. SECTION 2 - ENTRY OF PLAINTIFF UPON DEPOSITING VALUE WITH AUTHORIZED GOVERNMENT DEPOSITARY: Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government 2 | PUBLIC CORPORATION: EMINENT DOMAIN (AMPUAN 2A)

depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. SECTION 3 - DEFENSES AND OBJECTIONS: If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or thirdparty complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. SECTION 4 - ORDER OF EXPROPRIATION: If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. SECTION 5 - ASCERTAINMENT OF COMPENSATION: Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. SECTION 6 - PROCEEDINGS BY COMMISSIONERS: Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. SECTION 7 - REPORT BY COMMISSIONERS AND JUDGMENT THEREUPON: The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the 3 | PUBLIC CORPORATION: EMINENT DOMAIN (AMPUAN 2A)

commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. SECTION 8 - ACTION UPON COMMISSIONERS REPORT: Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. SECTION 9 - UNCERTAIN OWNERSHIP; CONFLICTING CLAIMS: If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. SECTION 10 - RIGHTS OF PLAINTIFF AFTER JUDGMENT AND PAYMENT: Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. SECTION 11 - ENTRY NOT DELAYED BY APPEAL; EFFECT OF REVERSAL: The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be

rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. SECTION 12 - COSTS, BY WHOM PAID: The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. SECTION 13 - RECORDING JUDGMENT, AND ITS EFFECT: The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. SECTION 14 - POWER OF GUARDIAN IN SUCH PROCEEDINGS: The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. JESUS IS LORD SCHOOL FOUNDATION V. CITY OF PASIG GR 152230; August 9, 2005 J. Callejo, Sr. The respondent municipality has the burden to prove the requirement of valid offer to the property of the owner before filing its complaint showing altogether the rejection of the later. Failure to prove compliance with this requirement will result in the dismissal of the complaint. The Municipality of Pasig needed an access road from E. R. Santos Street to Barangay Sto. Tomas Bukid, Pasig, where 60 to 70 houses, mostly made of light materials, were located. The road had to be at least 3m in width, as required by the Fire Code, so that fire trucks could pass through in case of conflagration. Likewise, the residents in the area needed the road for water and electrical outlets. The municipality 2 2 then decided to acquire 51m out of the 1,791m property of Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto Ching Cuanco Kho. 4 | PUBLIC CORPORATION: EMINENT DOMAIN (AMPUAN 2A)

The Sangguniang Bayan of Pasig approved an Ordinance authorizing the municipal mayor to initiate expropriation proceedings to acquire the said property and appropriate the fund therefor. The ordinance stated that the property owners were notified of the municipalitys intent to purchase the property for public use as an access road but they rejected the offer. The municipality filed a complaint against the Ching Cuanco for the expropriation of the property under Section 19 of the LGC. The plaintiff alleged therein that it notified the defendants, by letter, of its intention to construct an access road on a portion of the property but they refused to sell the same portion. The plaintiff appended to the complaint a photocopy of the letter addressed to defendant Lorenzo Ching Cuanco. ISSUE: WON there is a valid offer to buy the property made by the municipality to the owners of the property HELD: NO. The respondent municipality has the burden to prove the requirement of valid offer to the property of the owner before filing its complaint showing altogether the rejection of the later. Failure to prove compliance with this requirement will result in the dismissal of the complaint. In the pertinent case, no definite offer to Ching Chuancos was given. The letter addressed to them merely stated the municipalitys desire or intent to acquire the property for the right of way. The document was not offered to prove that it made a definite and valid offer to acquire the property. It was merely an invitation to a conference to discuss the project and the price that may be mutually acceptable to both parties. BELUSO v. MUNICIPALITY OF PANAY GR 153974; August 7, 2006 J. Austria-Martinez A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a law making body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. The Belusos owns a parcel of land which is subject to an expropriation proceeding by the Sangguniang Barangay of Panay through a resolution issued by the mayor. The petitioners filed their complaint in the RTC but was rejected saying that such is the power of the mayor to exercise ED since such is also for public use.

Petitioners then filed a Petition for Certiorari before the CA claiming that they were denied due process when the trial court declared that the taking was for public purpose without receiving evidence on petitioners claim that the Mayor of Panay was motivated by politics in expropriating their property and in denying their Motion to Hold in Abeyance the Hearing of the Court Appointed Commissioners. The CA rendered its Decision dismissing the Petition for Certiorari. It held that the petitioners were not denied due process as they were able to file an answer to the complaint and were able to adduce their defenses therein; and that the purpose of the taking in this case constitutes "public use". ISSUE: WON the expropriation proceedings can be initiated by an LGU pursuant to a resolution HELD: NO. The LGC expressly requires an ordinance for the purpose and a resolution that merely expresses the sentiment of the municipal council will not suffice. Despite the constitutional policy promoting local autonomy, the SC cannot grant judicial junction to an LGUs exercise of its delegated power of eminent domain in contravention of the very law giving it such power. Of course, the representative municipality is not barred from instituting similar proceedings in the future, provided that it complies with all legal requirements. Q: What are the requisites before an LGU can exercise the power of eminent domain? A: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (Antonio v. Geronimo)

Pursuant to its legal mandate under Republic Act No. 6395 (An Act Revising the Charter of the National Power Corporation), NPC undertook the Agus River Hydroelectric Power Plant Project in the 1970s to generate electricity for Mindanao. The project included the construction of several underground tunnels to be used in diverting the water flow from the Agus River to the hydroelectric plants. In 1997, the Heirs of Macabangkit, as the owners of land situated in Ditucalan, Iligan City, sued NPC and the RTC for the recovery of damages and of the property, with the alternative prayer for the payment of just compensation. They alleged that the underground tunnel had been constructed without their knowledge and consent and that the presence of the tunnel deprived them of the agricultural, commercial, industrial and residential value of their land and that their land had also become an unsafe place for habitation because of the loud sound of the water rushing through the tunnel and the constant shaking of the ground, forcing them and their workers to relocate to safer grounds. The RTC ruled in favor of the plaintiffs. They found that NPC had concealed the construction of the tunnel from the Heirs of Macabangkit, and had since continuously denied its existence and that NPC had acted in bad faith by taking possession of the subterranean portion of their land to construct the tunnel without their knowledge and prior consent. The CA affirmed the decision of the RTC, holding that the NPC did not substantiate its defense that prescription already barred the claim of the Heirs of Macabangkit. ISSUE WON the Heirs of Macabangkits right to claim just compensation had already prescribed HELD NO. Without necessarily adopting the reasoning of the CA, SC upholds its conclusion that prescription did not bar the present action to recover just compensation. SC rules that the prescriptive period provided under Section 3(i) of Republic Act No. 6395 is applicable only to an action for damages, and does not extend to an action to recover just compensation like this case. Consequently, NPC cannot thereby bar the right of the Heirs of Macabangkit to recover just compensation for their land. The action to recover just compensation from the State or its expropriating agency differs from the action for damages. The former, also known as inverse condemnation, has the objective to recover the value of property taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. Here, like in National Power Corporation v. Ibrahim, NPC constructed a tunnel underneath the land of the Heirs of Macabangkit without going through formal expropriation proceedings and without procuring their consent or at least

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NAPOCOR V. HEIRS OF MACABANGKIT SANGKAY GR 165828, August 24, 2011 J. Bersamin Just compensation is the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the takers gain, but the owners loss. 5 | PUBLIC CORPORATION: EMINENT DOMAIN (AMPUAN 2A)

informing them beforehand of the construction. NPCs construction adversely affected the owners rights and interests because the subterranean intervention by NPC prevented them from introducing any developments on the surface, and from disposing of the land or any portion of it, either by sale or mortgage. And so, just compensation is necessary to indemnify the Heirs of Macabangkit of the damages that they have incurred. CITY OR MANILA v. ALEGAR CORPORATION GR 187604; June 25, 2012 J. Abad If the owner or owners are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The City Council of Manila passed ORD 8012 that authorized the City Mayor to acquire certain lots belonging to Alegar Corporation etc. for use in the socialized housing project of the City of Manila. The City offered to buy the lots but the owners rejected this as too low with the result that the City filed a complaint for expropriation against them before the RTC of Manila. The City alleged in its complaint that it wanted to acquire the lots for its land-for-the-landless and on-site development programs involving the residents occupying them. The City offered to acquire the lots for P1,500.00 per sq m but the owners rejected the offer. The respondents questioned the legitimacy of the Citys taking of their lots solely for the benefit of a few long-time occupants. Alegar also pointed out that, while it declined the Citys initial offer, it did not foreclose the possibility of selling the lots for the right price. The filing of the suit was premature because the City made no effort in good faith to negotiate the purchase. RTC dismissed the complaint on the ground that the City failed to show that it exhausted all reasonable efforts to acquire the lots through a negotiated sale. Article 35 of the Rules and Regulations Implementing the Local Government Code provides that when property owners are willing to sell but for a higher price than that offered, the local chief executive must confer with them for the possibility of coming to an agreement on the price. CA affirmed RTCs dismissal of the Citys action, mainly for the reason that the City failed to comply with the requirements of Sections 9 and 10 of R.A. 7279 which ranked privately-owned lands last in the order of priority in acquiring lots for socialized housing and which preferred modes other than expropriation for acquiring them ISSUE WON CA erred in failing to set aside the RTCs ruling that the City failed to establish the existence of genuine necessity in renegotiating the compensation of the lots 6 | PUBLIC CORPORATION: EMINENT DOMAIN (AMPUAN 2A)

HELD NO. SC has held that when the property owner rejects the offer but hints for a better price, the government should renegotiate by calling the property owner to a conference. The government must exhaust all reasonable efforts to obtain by agreement the land it desires. Its failure to comply will warrant the dismissal of the complaint. Article 35 of the IRR of the LC provides for this. Thus:
Article 35. Offer to Buy and Contract of Sale (a) The offer to buy private property for public use or purpose shall be in writing. It shall specify the property sought to be acquired, the reasons for its acquisition, and the price offered. (c) If the owner or owners are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The chairman of the appropriation or finance committee of the sanggunian, or in his absence, any member of the sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed.

Here, the City of Manila initially offered P1,500.00 per sq m to the owners for their lots. But after the latter rejected the offer, claiming that the offered price was even lower than their current zonal value, the City did not bother to renegotiate or improve its offer. The intent of the law is for the State or the local government to make a reasonable offer in good faith, not merely a pro forma offer to acquire the property.