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Property by Rabuya PDF
Property by Rabuya PDF
BOOK II
PROPERTY, OWNERSHIP, AND ITS
MODIFICATION
Title I. CLASSIFICATION OF PROPERTY
PRELIMINARY PROVISIONS
ARTICLE 414. All things which are or may be the object of appropriation are considered either:
(1)
(2)
1. Introductory Concepts
[1.1]
1
2
2.
II Tolentino, Civil Code of the Philippines, 1992 ed., 2.
PROPERTY
[1.2]
Concept of Things
[1.3]
Susceptibility to Appropriation
5
6
PROPERTY
Additional Requisites
7
8
The same can be said of the different parts of the living human
body. While these parts remain attached to the person, they are not
considered as property because they are integral parts of the person and
the latter is not, in law, considered as thing. However, when a part of
the human body, such as hair and teeth, is separated from the person, it
may now be considered as property for it now has an autonomous and
independent existence.
2. Classification of Property
[2.1]
(2) Movables, in turn, are classified into consumable or nonconsumable (Art. 418);
(3) From the viewpoint of ownership, property is classified
either as property of public dominion or of private ownership (Arts. 419
to 425).
It is obvious from Article 414 that the term immovable is used
synonymously with the term real property and the term movable is
used synonymously with the term personal property.
[2.2]
Importance of Classification
PROPERTY
PROPERTY
(7)
(8) Mines, quarries and slug dumps, while the matter thereof
forms part of the bed, and waters either running or stagnant;
(9) Docks and structures which, though floating, are intended
by their nature and object to remain at a fixed place on a river, lake, or
coast;
(10) Contracts for public works, and servitudes and other real
rights over immovable property. (334a)
3. Immovable Property
[3.1]
Article 415 of the New Civil Code does not define immovable or
real property but enumerates what are considered as such.21 This is so
because of the difficulty of drawing precisely a definition of this term
simply because the word is not used in its etymological or grammatical
meaning but in its juridical meaning, i.e., the term is applied to many
things which, although by nature are personal, are considered by law as
real. Consequently, to avoid difficulty the law simply goes by way of
enumeration.22
[3.2]
21
22
[3.2.1]
[3.2.2]
Peoples Bank and Trust Co. v. Dahican Lumber Company, 20 SCRA 84, 93 (1967).
3 Manresa, 6th Ed., 16, cited in II Caguioa, Civil Code, 1966 ed., 11.
[3.2.4]
10
PROPERTY
to is that which substantially adheres to the land and not one which
is merely superimposed on the soil. In the language of Justice J.B.L.
Reyes in Ladera v. CN Hodges,26 the building referred to under the law
is a true building or not one merely superimposed on the soil. Since a
house or a building is classified as immovable property by reason of its
adherence to the soil on which it is built, once the house is demolished it
ceases to exist as such and hence its character as an immovable likewise
ceases.27
Bicerra v. Teneza
6 SCRA 649 (1962)
In this case, the plaintiff filed an action before the Court of First Instance
(now RTC) of Abra alleging that the defendant forcibly demolished his house
and that the materials of the house, after it was dismantled, were placed in
the custody of the barrio lieutenant. Plaintiff prayed that he be declared the
owner of the house and/or materials and that defendant be ordered to pay him
damages in the total sum of P800. The CFI dismissed the action on the ground
that the same was within the exclusive original jurisdiction of the Justice of the
Peace of Court (now MTC), the action not being a real action. In sustaining the
dismissal of the complaint, the Supreme Court explained: A house is classified
as immovable property by reason of its adherence to the soil on which it is built
(Art. 415, par. 1, Civil Code). This classification holds true regardless of the
fact that the house may be situated on land belonging to a different owner. But
once the house is demolished, as in this case, it ceases to exist as such and
hence its character as an immovable likewise ceases. It should be noted that the
complaint here is for recovery of damages.
[4.3]
11
12
PROPERTY
13
38
39
Associated Ins. & Surety Co., Inc. v. Iya, et al., 103 Phil. 972, 979 (1958).
Id.
14
PROPERTY
The levy was made pursuant to the rules governing the levy of real properties.
In due course, judgment was rendered in favor of Evangelista, who, on October
8, 1951, bought the house at the public auction made to satisfy the judgment.
The corresponding deed of sale was issued to him on October 22, 1952. When
Evangelista sought to take possession of the house, he was told that Alto Surety
was now the owner of the house because the latter allegedly bought the house at
an auction sale on September 29, 1950. It turned out that Alto Surety likewise
filed an action against Rivera and likewise obtained a favorable judgment. The
corresponding deed was issued to Alto Surety on May 10, 1952. Subsequently,
Evangelista instituted an action against Alto Surety and Rivera for the purpose
of establishing his title over said house. The trial court ruled in favor of
Evangelista. On appeal, however, the Court of Appeals reversed the decision of
the trial court on the ground that Evangelista did not acquire a preferential lien
through the preliminary writ of attachment because the house was levied as if
it were an immovable property. The Court of Appeals was of the opinion that
the house should have been levied pursuant to the rules governing the levy of
personal property (apparently for the reason that the house was constructed on
a land belonging to another). In reversing the decision of the CA, the Supreme
Court reiterated the ruling in Ladera v. Hodges (48 Off. Gaz., 5374) that a
true building (not one merely superimposed on the soil) is immovable or real
property, whether it is erected by the owner of the land or by a usufructuary
or lessee.
[4.4]
[4.5]
15
Supra.
Supra.
44
Supra.
45
(CA) 36 O.G. 2913.
46
(CA) 45 O.G. 2935.
47
Navarro v. Pineda, 9 SCRA 631 (1963).
48
Tumalad v. Vicencio, 41 SCRA 143 (1971).
49
See Sec. 1, Act No. 3952.
50
Associated Ins. & Surety Co. v. Iya, 103 Phil. 972, 979 (1958).
42
43
16
PROPERTY
house (or building) subject matter of the cases was a personal property.
Rather, the Court simply applied the doctrine of estoppel, in that, since
the parties so agreed that the building (or house) is a personal property
and a proper subject of the contract of chattel mortgage, they are
estopped from denying the existence of the chattel mortgage which, as
between them, must be upheld.
Navarro v. Pineda
9 SCRA 631 (1963)
In this case, Rufino Pineda and his mother, Juana Gonzales, executed
a deed of real estate and chattel mortgages in favor of Conrado Navarro,
whereby Gonzales, by way of real estate mortgage hypothecated a parcel of
land belonging to her, and Pineda, by way of chattel mortgage, mortgaged
his house erected on a lot belonging to another person and one motor truck.
Both mortgages were contained in one instrument, which was registered both
in the Office of the Register of Deeds and the Motor Vehicle Office. When
Navarro filed a complaint for foreclosure of the mortgage, Pineda questioned
the validity of the chattel mortgage over his house on the ground that the house,
being an immovable property, could not be the subject of a chattel mortgage,
citing the cases of Lopez v. Orosa, Jr., 103 Phil. 98; Associated Ins. & Surety
Co., Inc. v. Iya, 103 Phil. 972; and Leung Yee v. Strong Machinery Co., 37 Phil.
644. The trial court upheld the validity of the chattel mortgage. The decision
of the trial court was directly appealed to the Supreme Court. In sustaining the
decision of the trial court, the Supreme Court applied the principle of estoppel
because the house in question was treated as personal or movable property by
the parties to the contract themselves. In the deed of chattel mortgage, Pineda
conveyed by way of chattel mortgage (his) personal properties, a residential
house and a truck. The mortgagor himself grouped the house with the truck,
which is, inherently a movable property. The Court explained further that the
cases cited by Pineda were not applicable because in these cases, third persons
assailed the validity of the deed of chattel mortgages; whereas in this case, it
was one of the parties to the contract of mortgage who assailed its validity.
Tumalad v. Vicencio
41 SCRA 143 (1971)
In this case, Vicencio and Simeon executed a chattel mortgage in favor
of Tumalad over their house of strong materials built on a lot rented from
Madrigal & Company, Inc. When Vicencio and Simeon defaulted in the
payment of their obligation, the mortgage was extrajudicially foreclosed and
the house was sold at public auction. Tumalad emerged as the highest bidder
during the auction. Subsequently, Tumalad filed an action for ejectment against
17
Vicencio and Simeon. In their answer, the defendants impugned the legality
of the chattel mortgage and its subsequent foreclosure on the ground that the
house, being an immovable, could only be the subject of a real estate mortgage
and not a chattel mortgage. When the case finally reached the Supreme Court,
the said Court again applied the principle of estoppel since the parties treated
the subject house as personalty. The Court explained that although there is no
specific statement referring to the subject house as personal property, yet by
ceding, selling or transferring a property by way of chattel mortgage (Vicencio
and Simeon) could only have meant to convey the house as chattel, or at least,
intended to treat the same as such, so that they should not now be allowed to
make an inconsistent stand by claiming otherwise. This case was likewise
compared with Associated Ins. & Surety Co., Inc. v. Iya, Lopez v. Orosa, Jr.
and Plaza Theatre, Inc. and Leung Yee v. Strong Machinery Co. Unlike in
these three cases, wherein third persons assailed the validity of the chattel
mortgage, it is the debtors-mortgagors who are attacking the validity of the
chattel mortgage in this case. Hence, the doctrine of estoppel applies.
[4.6]
51
18
PROPERTY
In Associated Ins. & Surety Co. Inc. v. Iya,52 the principal question
was this: May Associated Insurance rightfully demand for the exclusion
of the house from the foreclosure of the real estate mortgage by Iya?
In this case, if the chattel mortgage over the house is to be preferred
over the real estate mortgage over the same house, then Associated
Insurance may rightfully demand for the exclusion of the house in the
foreclosure of the real estate mortgage since it was executed prior to the
latter mortgage.
In the said case, the debtor-mortgagor executed two mortgages
in favor of different mortgagees. The first was a chattel mortgage in
favor of Associated Insurance covering the house. The second was a
real estate mortgage over the same house and the lot on which the house
was situated in favor of Iya. Both mortgage obligations were not paid.
Hence, Associated Insurance foreclosed the chattel mortgage over the
house and eventually purchased the house during the auction. When the
real estate mortgage was about to be foreclosed, Associated Insurance
sought for the exclusion of the house claiming a preferential right over
it by virtue of the chattel mortgage and its subsequent foreclosure.
Iya, in turn, questioned the validity of the chattel mortgage contract
contending that since the subject matter thereof was real property, the
same was not valid.
In this case, the court is required to meet squarely the issue of the
validity of the chattel mortgage contract. And in resolving said issue,
the court must pass upon the character of the house whether it is real
property or personal property. If the house is a real property, then the
chattel mortgage is not valid and Associated Insurance does not acquire
a preferential right over the house subject matter of the mortgage. But
if the house is a personal property, then the chattel mortgage is valid
and Associated Insurance has a preferential right over the house. Since
the court is called upon to apply the law (Article 415[1], NCC), there is
no other conclusion except that the house is a real property it is so
whether it is erected on a land belonging to another.
In Manarang v. Ofilada,53 a house was made the subject matter
of a chattel mortgage contract. When the mortgage obligation was
52
53
Supra.
99 Phil. 108 (1956).
19
not paid, the creditor opted to file an action for collection (instead of
foreclosing the mortgage) and after obtaining favorable judgment, the
creditor caused the levy upon execution of the same house subject
matter of the chattel mortgage contract. Before the property could be
sold at the public auction, the debtor offered to pay her indebtedness.
The sheriff, however, told her to likewise pay the expenses incurred in
the publication of the notice of sale. The debtor, however, refused to
pay the publication expenses contending that such publication was not
necessary since the house was not a real property.
Note that under the Rules of Court, if what is to be sold at a
public auction is a real property, publication of the notice of sale is
indispensable. Without such publication, the sale is a nullity. On the
other hand, if what is to be sold is a personal property, there is no need
for publication.
Hence, the issue in this case is the character of the house, whether it
is a real property or personal property for purposes of sale on execution.
Since the character of the house is the precise issue in this case, the
court is once again called upon to apply the law (Article 415[1], NCC).
Since the court is called upon to apply the law (Article 415[1], NCC),
there is no other conclusion except that the house is a real property.
In Piansay v. David,54 a house was again made the subject matter
of a chattel mortgage which was foreclosed. The mortgagee bought the
house during the auction and later sold the same to Piansay. Another
unsecured creditor of the debtor filed an action for collection against
him. After obtaining judgment, said creditor (Mangubat) caused the
levy upon execution of the house earlier foreclosed and sold to Piansay.
Thus, Piansay questioned the validity of the levy upon execution. The
main question in this case is this: who between Piansay and Mangubat
has a better right over the house? In order to answer this question, there
is a need on the part of the court to pass upon the issue of the validity
of the chattel mortgage contract. If the same is valid, then Piansay
acquires a preferential right over the house subject matter of the chattel
mortgage; otherwise, Mangubat shall acquire a preferential right over
it. The validity of the chattel mortgage, in turn, is dependent upon the
character of the house. If the house is a personal property, then the
54
12 SCRA 227.
20
PROPERTY
21
filed an action against Rivera and likewise obtained a favorable judgment. The
corresponding deed was issued to Alto Surety on May 10, 1952. Subsequently,
Evangelista instituted an action against Alto Surety and Rivera for the purpose
of establishing his title over said house. The trial court ruled in favor of
Evangelista. On appeal, however, the Court of Appeals reversed the decision
of the trial court on the ground that Evangelista did not acquire a preferential
lien through the preliminary writ of attachment because the house was levied
as if it were an immovable property. The CA was of the opinion that the house
should have been levied pursuant to the rules governing the levy of personal
property. In reversing the decision of the CA, the Supreme Court explained
that a house is immovable or real property, whether it is erected by the owner
of the land or by a usufructuary or lessee. Hence, the levy that was made was
proper and Evangelista acquired a preferential right over the house by virtue of
the writ of preliminary attachment which was secured long before the sale of
the house in favor of Alto Surety.
Associated Ins. & Surety Co., Inc. v. Iya, et al.
103 Phil. 972 (1958)
In this case, the spouses Valino purchased a lot on installment basis
from Philippine Realty Corporation. Prior to the full payment of the purchase
price, ownership remained with PRC. In the meantime, the spouses Valino
constructed a house on the lot and subsequently mortgaged the same in favor
of Associated Insurance by way of a chattel mortgage. After completing
payment of the purchase price on the lot and after the issuance of the title
to the lot in their names, the spouses Valino subsequently mortgaged the lot
and the house (earlier mortgaged to Associated Insurance) in favor of Iya
by way of a real estate mortgage. Soon, the spouses Valino defaulted in the
payment of their obligation secured by the chattel mortgage. Thus, Associated
Insurance foreclosed the chattel mortgage over the house and subsequently
caused the said house to be declared in its name for tax purposes. When the
surety company learned of the existence of the real estate mortgage, it filed an
action for the purpose of excluding the house from the real estate mortgage.
In the meantime, the spouses likewise defaulted in the payment of their
obligation secured by the real estate mortgage. Thus, Iya filed an action against
the spouses Valino and Associated Insurance for the payment of the mortgage
obligation with an alternative prayer for the foreclosure of the real estate
mortgage. The two cases were jointly heard. After trial, the lower court ruled
that the chattel mortgage in favor of Associated Insurance was preferred and
superior over the real estate mortgage in favor of Iya, with respect to the house.
The lower court thus ordered the exclusion of the house in the foreclosure of
the real estate mortgage. On appeal to the Supreme Court, the portion of the
decision of the lower court excluding the house in the foreclosure of the real
22
PROPERTY
estate mortgage was reversed. In reversing the said portion of the decision, the
Supreme Court explained that the house in question was a real property and
the chattel mortgage in favor of Associated Insurance was not valid since its
subject matter was not a personal property. The chattel mortgage being void,
Associated Insurance did not acquire any right over the house.
Piansay v. David
12 SCRA 227 (1964)
In this case, Conrado David obtained a loan from Uy Kim upon the
security of a chattel mortgage on a house situated at Tondo, Manila. When
David defaulted, Uy Kim foreclosed the mortgage and the house was sold
to Uy Kim. Thereafter, Uy Kim sold the house to Salvador Piansay. In the
meantime, Marcos Mangubat filed an action for collection of loan against
David. After obtaining a judgment against David, the house was levied upon
at the instance of Mangubat. Piansay assailed the right of Mangubat to levy
upon execution the house in question alleging that the same belongs to him,
he having bought it from Uy Kim, who, in turn, acquired it at the auction sale
held in connection with the extrajudicial foreclosure of the chattel mortgage
constituted in her favor by David. In ruling in favor of Mangubat, the Court
held regardless of the validity of a contract constituting a chattel mortgage
on a house, as between the parties to said contract, the same cannot and does
not bind third persons, who are not privies to the aforementioned contract or
their privies. As a consequence, the sale of the house in the proceedings for
the extrajudicial foreclosure of said chattel mortgage, is null and void insofar
as defendant Mangubat is concerned, and did not confer upon Mrs. Uy Kim,
as buyer in said sale, any dominical right in and to said house, so that she
could not have transmitted to her assignee, plaintiff Piansay, any such right as
against defendant Mangubat.
[4.7]
Supra.
23
24
PROPERTY
xxx
xxx
xxx
xxx
xxx
xxx.
25
26
PROPERTY
[5.1]
Trees, plants and growing fruits, while they are attached to the
land, are immovable property.61 They are immovable by reason of their
incorporation to the soil or because they form an integral part of the
immovable. If, therefore, the trees or plants are cut or uprooted for
purposes of making them firewood or timber they become movable
property except when the timber constitutes the natural product of the
tenement and, therefore, forms an integral part of the immovable.62
(B)
Growing Fruits
[5.2]
Growing Fruits
27
personal property and was not, therefore, subject to redemption. On the issue
of whether the sugar in question is personal or real property, the Supreme Court
held that for purposes of attachment and execution, and for the purposes of
the Chattel Mortgage Law, ungathered products have the nature of personal
property.
65
66
28
PROPERTY
415(3), as between the parties since their intent has to be looked into.
Thus, if the parties treat the machinery as chattels, they are bound by
their agreement under the principle of estoppel67 notwithstanding the
fact that the machinery may have been attached to an immovable in a
fixed manner and may not be separated therefrom without breaking the
material or deterioration of the object to which it is attached.
Tsai v. Court of Appeals
366 SCRA 324 (2001)
In this case, Ever Textile Mills, Inc. obtained in 1975 a three million loan
from PBCom. As security for the loan, Evertex executed in favor of PBCom a
deed of real and chattel mortgage over the lot where its factory stands, and the
chattels located therein as enumerated in a schedule attached to the mortgage
contract. In 1979, PBCom granted a second loan of P3,356,000 to Evertex. The
loan was secured by a chattel mortgage over personal properties enumerated
in a list attached thereto. In 1982, PBCom foreclosed the real and chattel
mortgages. In 1982, Evertex was declared insolvent. In the meantime, PBCOm
sold the factory, lock and stock and barrel to Ruby Tsai in 1984. In 1989,
Evertex filed an action for annulment of the sale, reconveyance and damages.
Evertex alleges, inter alia, that PBCom appropriated some chattels not included
in the real and chattel mortgage in 1975 nor in the chattel mortgage of 1979.
Evertex further alleged that these properties were acquired only in 1981. Tsai
and PBCom contended, on the other hand, that the disputed 1981 machineries
were real properties because they were heavy, bolted or cemented on the real
property. In finding the contention to be unmeritorious, the SC held
Petitioners contend that the nature of the disputed
machineries, i.e., that they were heavy, bolted or cemented on the
real property mortgaged by EVERTEX to PBCom, make them ipso
facto immovable under Article 415(3) and (5) of the New Civil
Code. This assertion, however, does not settle the issue. Mere nuts
and bolts do not foreclose the controversy. We have to look at the
parties intent.
While it is true that the controverted properties appear to be
immobile, a perusal of the contract of Real and Chattel Mortgage
executed by the parties herein give us a contrary indication. In
the case at bar, both the trial and the appellate courts reached the
same finding that the true intention of PBCom and the owner,
EVERTEX, is to treat machinery and equipment as chattels. The
67
29
xxx
xxx
Requisites
30
PROPERTY
(2)
(3)
(4)
[8.2]
Supra.
61 Phil. 709 (1935).
31
See also Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800, 812 (1984).
Supra, 5379.
72
See Davao Sawmill v. Castillo, supra.
73
225 U.S. 58.
74
Cited in Peoples Bank and Trust Co. v. Dahican Lumber Company, 20 SCRA 84, 95
70
71
(1967).
32
PROPERTY
33
34
PROPERTY
become immobilized, yet, when the tenant places it there pursuant to a contract
that it shall belong to the owner, it then becomes immobilized as to that tenant
and even as against his assignees and creditors who had sufficient notice of
such stipulation. In the case at bar it is not disputed that DALCO purchased
the after acquired properties to be placed on, and be used in the development
of its lumber concession, and agreed further that the same shall become
immediately subject to the lien constituted by the questioned mortgages. There
is also abundant evidence in the record that DAMCO and CONNEL had full
notice of such stipulation and had never thought of disputed validity until the
present case was filed. Consequently, all of them must be deemed barred from
denying that the properties in question had become immobilized.
[8.4]
61 Phil. 663.
6 SCRA 530, 537.
35
Berkenkotter v. Cu Unjieng
61 Phil. 663
The Mabalacat Sugar Co., Inc., owner of a sugar central, obtained from
defendant a loan secured by a real estate mortgage constituted on two parcels
of land with all the buildings, improvements, sugarcane mill thereon, and
whatever forms part or was a necessary complement of said sugar-cane mill.
Shortly thereafter, the company decided to increase the capacity of its sugar
central by buying additional machinery and equipment, which it installed in
the central, so that instead of milling 150 tons daily it could produce 250. The
company obtained a loan from plaintiff to pay for the machinery. The issue
in the present action is whether the additional machinery was subject to the
mortgage deed executed in favor of defendant. In holding the machinery to
be real property, the Court explained that the installation of the machinery
and equipment in question in the central converted them into real property by
reason of their purpose and constitutes a permanent improvement on said sugar
central and subjects said machinery and equipment to the real estate mortgage
constituted on the sugar central.
Ago v. Court of Appeals
6 SCRA 360 (1962)
In this case, Ago bought sawmill machineries and equipments from Grace
Park Engineering, Inc., executing a chattel mortgage over said machineries and
equipments to secure the balance of the purchase price, which Ago agreed to
pay on installments. When Ago defaulted, Grace Park instituted foreclosure
proceedings of the mortgage. To enjoin the foreclosure, Ago instituted a special
civil action. The parties, however, arrived at a compromise agreement. Ago sold
the machineries to Golden Pacific Sawmill, Inc., which installed the same in
a building and permanently attached the same to the ground. In the meantime,
as Ago continued to default in his payments as provided in the judgment by
compromise, Grace Park filed with the trial court a motion for execution,
which was granted. Thereafter, the sheriff levied upon and sold the sawmill
machineries and equipments in question without prior publication of the notice
of sale. Ago questioned the legality of the sale contending that the machineries
were real properties. When the case eventually reached the Supreme Court, the
Court declared the sale to be void for lack of the necessary advertisement of
sale by publication in a newspaper as required by the rules on the execution
sale of a real property. The Court explained that the installation of the sawmill
machineries in the building of the Golden Pacific Sawmill, Inc., for use in
the sawing of logs carried on in said building, the same became a necessary
and permanent part of the building or real estate on which the same was
constructed, converting the said machineries and equipments into real estate
within the meaning of Article 415(5) of the Civil Code of the Philippines.
36
PROPERTY
37
they are essential to said industries; but the delivery trucks and adding
machines which they usually own and use and are found within their
industrial compounds are merely incidentals and retain their movable
nature.81
Mindanao Bus Co. v. City Assessor and Treasurer
6 SCRA 197 (1962)
In this case, the City Assessor of Cagayan de Oro City assessed a realty
tax on several equipment and machineries of Mindanao Bus Co., a company
engaged in the transportation business. These equipment were placed on
wooden or cement platforms and can be moved around in the bus companys
repair shop. The bus company appealed the assessment to the Board of Tax
Appeals on the ground that the same are not realty. The Board of Tax Appeals of
the City, however, sustained the city assessor. Thus, the bus company appealed
to the Court of Tax Appeals, which likewise sustained the city assessor. In
reversing the decision of the Court of Tax Appeals, thereby holding that the
equipment in question are not real property, the Supreme Court distinguished
between principal and essential elements of the industry from those that are
merely incidental. According to the Court, in order that movable equipments
to be immobilized in contemplation of the law they must first be essential
and principal elements of an industry or works without which such industry
or works would be unable to function or carry on the industrial purpose for
which it was established. In this case, the tools and equipment in question are
by their nature, not essential and principal elements of Mindanao Bus Co.s
business of transporting passengers and cargoes by motor trucks. They are
merely incidentals acquired as movables and used only for expediency to
facilitate and/or improve its service. Even without such stools and equipments,
its business may be carried on. As explained by the Court, the transportation
business could be carried on without the repair or service shop if its rolling
equipment is repaired or serviced in another shop belonging to another.
[8.6]
Id.
Id., 201.
38
PROPERTY
39
provides that the machines in question are personal property, hence, SPI
is estopped from denying the characterization of the subject machines
as personal property. The Court cautioned, however, that its holding
that the machines should be deemed personal property pursuant to
the Lease Agreement is good only insofar as the contracting parties
are concerned.
The Sergs Products case must be distinguished from Ago v.
Court of Appeals.86 In the latter case, Ago executed a chattel mortgage
contract in favor of Grace Park Engineering over certain machineries
and equipment which the former purchased from the latter to secure
the payment of the balance of the price remaining unpaid. When
Ago defaulted in his payments, Grace Park instituted extrajudicial
foreclosure proceedings of the mortgage. To enjoin said foreclosure,
Ago instituted an action against Grace Park. In the said case, Ago and
Grace Park arrived at a compromise agreement. When Ago violated
the compromise agreement, Grace Park obtained from the court a writ
of execution. Pursuant to said writ, the sheriff levied upon and ordered
the sale of the sawmill machineries and equipments in question. The
sheriff sold the machineries and equipments without prior publication
of the notice of sale. It turned out, however, that after purchasing the
machineries and equipments from Grace Park, the same had already
been assigned by Ago to Golden Pacific Sawmill Inc. in payment of its
subscription to the shares of stocks of said corporation. Thereafter, the
sawmill machineries and equipments were installed in a building and
permanently attached to the ground for use in the sawing of logs carried
on in said building by Golden Pacific. In declaring the sale made by
the sheriff as null and void because of the absence of publication of the
notice of sale, the Supreme Court explained that by the installation of
the sawmill machineries in the building of the Golden Pacific Sawmill,
Inc., for use in the sawing of logs carried on in said building, the same
became a necessary and permanent part of the building or real estate
on which the same was constructed, converting the said machineries
and equipments into real estate within the meaning of Article 415(5) of
the Civil Code of the Philippines.
Note that in the Ago case, even if the machineries in question were
made the subject matter of a chattel mortgage contract, the doctrine of
86
Supra.
40
PROPERTY
estoppel was not applied because the interest of a third party (Golden
Pacific Sawmill, Inc.) would be prejudiced. And besides, the holding in
the Sergs Products case that the machines should be deemed personal
property is good only insofar as the contracting parties to the Lease
Agreement are concerned. In the Ago case, Golden Pacific was not a
party to the chattel contract, hence, it was not bound by the agreement
of the parties therein treating the machines as personal property.
Makati Leasing and Finance Corp. v. Wearever Textile Mills, Inc.
122 SCRA 294 (1983)
In this case, Wearever Textile Mills, Inc. executed a chattel mortgage
contract in favor of Makati Leasing and Finance Corporation covering certain
raw materials and machinery. Upon default, Makati Leasing filed a petition for
judicial foreclosure of the properties mortgaged. Acting on Makati Leasings
application for replevin, the lower court issued a writ of seizure. Pursuant
thereto, the sheriff enforcing the seizure order seized the machinery subject
matter of the mortgage. In a petition for certiorari and prohibition, the Court of
Appeals ordered the return of the machinery on the ground that the same cannot be the subject of replevin because it is a real property pursuant to Article
415 of the new Civil Code, the same being attached to the ground by means of
bolts and the only way to remove it from Wearever textiles plant would be to
drill out or destroy the concrete floor. When the motion for reconsideration of
Makati Leasing was denied by the Court of Appeals, Makati Leasing elevated
the matter to the Supreme Court. In reversing the decision of the Court of Appeals and reinstating the decision of the lower court, the Court explained
Examining the records of the instant case, We find no
logical justification to exclude the rule out, as the appellate court
did, the present case from the application of the above-quoted
pronouncement. If a house of strong materials, like what was
involved in the above Tumalad case, may be considered as personal
property for purposes of executing a chattel mortgage thereon as
long as the parties to the contract so agree and no innocent third
party will be prejudiced thereby, there is absolutely no reason
why a machinery, which is movable in its nature and becomes
immobilized only by destination or purpose, may not be likewise
treated as such. This is really because one who has so agreed is
estopped from the denying the existence of the chattel mortgage.
In rejecting petitioners assertion on the applicability of the
Tumalad doctrine, the Court lays stress on the fact that the house
involved therein was built on a land that did not belong to the owner
41
of such house. But the law makes no distinction with respect to the
ownership of the land on which the house is built and We should
not lay down distinctions not contemplated by law.
It must be pointed out that the characterization by the private
respondent is indicative of the intention and impresses upon the
property the character determined by the parties. As stated in
Standard Oil Co. of New York v. Jaramillo, 44 Phil. 630, it is
undeniable that the parties to a contract may by agreement treat as
personal property that which by nature would be a real property, as
long as no interest of third parties would be prejudiced thereby.
Animals Included
42
PROPERTY
43
rights, in turn, are either (1) real the power belonging to a person
over a specific thing, without a passive subject individually determined
against whom such right may be personally exercised; it is enforceable
against the whole world; or (2) personal the power belonging to one
person to demand of another, as a definite passive subject, the fulfillment
of a prestation to give, to do or not to do.
[13.2] How Rights Classified
90
MBTC v. Alejo, 364 SCRA 812, 819 (2001); see also Hongkong & Shanghai Bank v.
Aldecoa & Co., 30 Phil. 255, 273.
44
PROPERTY
91
Mindanao Bus Co. v. City Assessor and Treasurer, 6 SCRA 197 (1962); Board of Assessment Appeals v. Manila Electric Co., 10 SCRA 68 (1964) and Manila Securities Industrial Corp.
v. Central Board of Assessment Appeals, 114 SCRA 261 (1982).
92
Caltex (Phils.), Inc. v. CBAA, 114 SCRA 296 (1982) and Manila Electric Co. v. CBAA,
114 SCRA 273 (1982).
93
G.R. No. 106041, Jan. 29, 1993.
94
Supra.
95
Supra.
96
Supra.
45
that this was a borderline case which could not be decided solely on the
basis of Article 415 but by the pertinent provisions of the Assessment
Law (Commonwealth Act No. 470) and the Real Property Tax Code
(Presidential Decree No. 464).97 In Caltex (Phils.), Inc. v. CBAA,
involving equipment and machinery permanently affixed by Caltex to
its gas station rented from a certain lessor, the Court held that the issue
of whether the said equipment and machinery are subject to realty tax
should be resolved primarily under the provisions of the Assessment
Law and the Real Property Tax Code. In these two cases, had the Court
applied the provisions of Article 415, the properties therein involved
would not be classified as real property. In applying the provisions of
the tax laws in lieu of Article 415, the Court justified the same on the
basis of its dictum in Standard Oil Co. of New York v. Jaramillo98
it is a familiar phenomenon to see things classed as real property for
purposes of taxation which on general principle might be considered
personal property.
In the light of the foregoing cases, it appears that in real property
taxation, the classification of property for taxation purposes is not the
exclusive domain of the Civil Code, especially in borderline cases such
as that of Manila Electric Co. v. CBAA and Caltex (Phils.), Inc. v. CBAA,
where the provisions of existing tax laws were primarily applied. In
these borderline cases, the property involve is usually either machinery
or improvements. It is usually with respect to these two kinds of property
that a problem may arise in the matter of their classification for taxation
purposes because existing tax laws may provide for specific definitions
of what may be considered as machinery or improvement.
[14.2] Machinery and Improvements Subject to Realty Tax
[14.2.1]
Machinery
The old Real Property Tax Code and the present provisions on Real
Property Taxation under the Local Government Code of 1991 (R.A. No.
7160), both imposed realty tax on land, building, machinery, and other
improvements which are not specifically exempted therein. However,
both tax laws define the terms machinery and improvement in a
97
The precursor of the present Real Property Taxation under Title 2, Book II of the Local
Government Code of 1991 (R.A. No. 7160).
98
44 Phil. 630, 633.
46
PROPERTY
[14.2.2]
47
Improvements
100
48
PROPERTY
and
(4) In general, all things which can be transported from place to
place without impairment of the real property to which they are fixed.
(335a)
Art. 417. The following are also considered as personal property:
(1) Obligations and actions which have for their object movables
or demandable sums; and
(2) Shares of stock of agricultural, commercial and industrial entities, although they may have real estate. (336a)
105
Supra.
49
The Civil Code does not likewise define the term personal or
movable property. As in the case of real or immovable property,
the Code simply enumerates in Articles 416 and 417 thereof what are
to be considered as personal property. Note that under our law, the
meaning and application of the term personal property depends
upon the meaning and application which our law gives to the term
real property. Thus, under our law, all properties which are not real
are personal. Hence, while certain property may, by its nature, be
moved from one place to another, it will not be considered as movable
property if it is classified as immovable property under the provisions
of Article 415 because of the purpose for which it has been placed in an
immovable, in which case, it shall partake of the nature of the latter and
shall be classified as an immovable property by destination.
[15.2] What May Be Considered Movable Property, In General
106
107
50
PROPERTY
51
Every obligation creates a personal right on the part of the creditor to demand for its fulfillment or performance. The right to demand
for the performance of the obligation is, by itself, a property. Since the
right to demand the performance of the obligation is simply a personal
right on the part of the creditor, such right is classified as personal property pursuant to the discussion in supra 13.2.
Art. 418. Movable property is either consumable or non-consumable. To the first class belong those movables which cannot be used in a
manner appropriate to their without their being consumed; to the second
class belong all the others. (337)
Ill. People, for Use of Vancil Motor Co. v. Weaver, 40 N.E. 2d 83, 313 Ill. App. 317.
N.Y. Niles v. Mathusa, 47 N.Y.S. 38, 20 App. Div. 483, affirmed 57 N.Y. 184, 162
114
115
N.Y. 546.
Ala. Peavy Lumber Co. v. Murchison, 130 So. 2d. 338, 272 Ala. 251.
116
52
PROPERTY
117
118
53
From the viewpoint of ownership, the Civil Code classifies properties, as follows: (1) in relation to the State, its properties are either of
public dominion or patrimonial properties;119 (2) in relation to the political subdivisions (provinces, cities and municipalities), their properties
are either of public dominion (for public use) or patrimonial properties;120 (3) in relation to persons and entities other than the State and its
political subdivisions (or private persons, either individually or collectively), their properties are denominated as that of private ownership.121
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character;
(2) Those which belongs to the State, without being for public
use, and are intended for some public service or for the development of
the national wealth. (339a)
120
54
PROPERTY
needs, and resides in the social group.124 Viewed in this light, the State
holds these properties not in the concept of an owner125 but only in
consequence of its territorial integrity.126 Hence, the relation of the State
to these properties arises from the fact that the State is the juridical
representative of the social group, and as such it takes care of them,
preserves them and regulates their use for the general welfare.127
The term public dominion is to be viewed as referring to public
ownership in relation to the properties of the State intended for public
use or for some public service mentioned in paragraph numbers (1) and
(2) of Article 420. Since the ownership of these properties belong to the
public in general and not to the State, the latter may not make them the
object of commerce unless they are properly converted into patrimonial
properties pursuant to the provisions of Article 422 of the New Civil
Code.
[18.3] Public Dominion, as Referring To State Ownership
124
Laurel v. Garcia, 187 SCRA 797, 808 (1990), citing 3 Manresa, 66-69; Tolentino, Commentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26.
125
See II Tolentino, Civil Code of the Philippines, 1992 ed., p. 30.
126
Caguioa, Civil Code of the Philippines, Vol. II, 1966 ed., p. 30. (Note: According to
Justice Fernando in Lee Hong Hok v. David, 48 SCRA 372, 377 [1972], the government authority
possessed by the state which is appropriately embraced in the concept of sovereignty comes under
the heading of imperium.)
127
See II Tolentino, Civil Code of the Philippines, 1992 ed., p. 30.
128
Republic v. Alagad, 169 SCRA 455, 461 (1989).
129
The capacity of the State to own or acquire property is the states power of dominium.
(Separate Opinion of J. Puno in Cruz v. Secretary of Environment and Natural Resources, 347
SCRA 128, 165).
130
415 SCRA 403 (2003).
55
56
PROPERTY
442 SCRA 110, 115 (2004), citing US v. Tan Piaco, 40 Phil. 853, 856 (1920).
57
the latter, although used for the benefit of the public, cannot be used
indiscriminately by anyone but only by those that are authorized by
proper authority.138
19. Property of Public Dominion: For Public Use
[19.1] Enumeration of Properties of the State for Public Use
b.G
c.G
d.G
e.G
Atmospheric water;
f.G
g.G
Seawater.
b.
c.
d.
e.
138
58
PROPERTY
(A)
Roads
[19.2] Roads
Canals
[19.3] Canals
Code.
142
143
59
60
PROPERTY
purposes, and it being also a fact that such was the condition of the
creek at least since 1906 until it was closed in 1928, if the appellant
and her predecessors-in-interest had acquired any right to the creek
in question by virtue of excavations which they had made thereon,
they had lost such right through prescription, inasmuch as they
failed to obtain, and in fact they have not obtained, the necessary
authorization to devote it to their own use to the exclusion of all
others. The use and enjoyment of a creek, as any other property
susceptible of appropriation, may be acquired or lost through
prescription, and the appellant and her predecessors in interest
certainly lost such right through the said cause, and they cannot
now claim it exclusively for themselves after the general public
had been openly using the same from 1906 to 1928. xxx
(C)
Rivers
Although Article 420 of the New Civil Code speaks only of rivers
and banks, rivers is a composite term which includes: (1) the running
waters, (2) the bed, and (3) the banks.144 All these constitute the river.145
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, it is implicit that all the three
component elements be of the same nature also.146 However, to dispel
all possible doubts, Article 420, paragraph 1 of the New Civil Code and
Article 5, paragraph (a) of the Water Code of the Philippines, expressly
make all three elements properties of public dominion.
[19.5] Natural Bed of a River
144
Binalay v. Manalo, 195 SCRA 374, 384 (1991), citing Hilario v. City of Manila, 19
SCRA 931 (1967).
145
Hilario v. City of Manila, supra, p. 939.
146
Id.
147
Art. 502(1), NCC; Art. 5(a), Water Code of the Philippines; see also Binalay v. Manalo,
supra, 384; Republic v. CA, 132 SCRA 514 (1984).
148
Supra.
61
sale executed by the sellers since the sellers could not have validly
sold land that constituted property of public dominion.
In Republic v. Court of Appeals,149 the Court ruled that the lower
court cannot validly order the registration of two lots in the names of
private respondents since these lots were portions of the bed of the
Meycauayan river and are therefore classified as property of the public
domain under Article 420, paragraph 1 and Article 502, paragraph 1
of the Civil Code of the Philippines.
[19.6] Extent of River Bed
What is the extent of the river bed? Article 70 of the Law of Waters
of August 3, 1866 defines the natural bed or channel of a creek or
river as the ground covered by its waters during the highest floods.150
The Supreme Court had the occasion to apply this provision in the case
of Binalay.151
In the above-mentioned case, Manalo purchased two parcels of
land: (1) the first parcel, consisting of 8.65 hectares, was purchased from
Faustina Taccad; and (2) the second parcel, consisting of 1.80 hectares,
was purchased from Gregorio Taguba. During the cadastral survey
conducted in Balug, Tumauini, Isabela on October 21, 1969, the two
parcels of land purchased by Manalo were surveyed and consolidated
into one lot, designated as Lot No. 307, which contains a total area of
4.6849 hectares, broken down as follows: (1) the whole of 1.80 hectares
acquired from Taguba; and (2) 2.8489 hectares acquired from Taccad.
As the survey was taken during the rainy season, a portion of the land
bought from Taccad then under water was left unsurveyed and was not
included in Lot 307. In this case, it appears that the Cagayan River forks
at a certain point to form two branches the western and the eastern
and then unites at the other end to form a narrow strip of land. The
eastern branch of the river cuts through the land of Manalo and is
inundated with water only during the rainy season. It likewise appear
that the submerged or the unsurveyed portion of the land of Manalo is
the bed of the eastern branch of Cagayan River. For about eight months
of the year (from January to August) when the level of the water at the
Supra.
cited in Binalay v. Manalo, supra, 382.
151
Supra.
149
150
62
PROPERTY
point of where the Cagayan River forks is at its ordinary depth, river
water does not flow into the eastern branch. And while this condition
persists, the eastern bed is dry and is susceptible to cultivation. During
the rainy season (September to December), however, the water level in
the Cagayan River increases. As the river becomes swollen due to heavy
rains, the unsurveyed area of Manalos property would be inundated
with water, causing the eastern bed to be covered with flowing river
waters.
On the question of whether the unsurveyed area of Manalos
alleged property is part of the natural bed of the eastern branch of the
Cagayan River, the Supreme Court applied the provisions of Article
70 of the Law of Waters of August 3, 1866 which defines the natural
bed or channel of a creek or river as the ground covered by its waters
during the highest floods. According to the Court, the highest floods in
the eastern branch of the Cagayan River occur with the annual coming
of the rains as the river waters in their onward course cover the entire
depressed portion in Manalos property. As a consequence, the Supreme
Court declared the regularly submerged portion or the eastern bed of the
Cagayan River to be property of public dominion.
[19.7] Banks of Rivers
Hilario v. City of Manila, supra, 938, citing Art. 73 of the Law of Waters of August 3,
153
Ibid., at 946.
Supra.
1866.
154
63
this case, Hilario sued the City of Manila and other defendants for
indemnity for the sand and gravel extracted from the San Mateo River
banks of the Hilario Estate. The Supreme Court held, however, that the
defendants were extracting materials not from the property of Hilario
but only from the river banks which is property of public dominion.
[19.8] Accretion on Riverbanks
Ports
[19.9] Ports
The term ports in Article 420(1) of the New Civil Code includes
seaports and airports.158 The MIAA Airport Lands and Buildings
constitute a port constructed by the State.159 Hence, they are properties
of public dominion and thus owned by the State or the Republic of
the Philippines.160 In Manila International Airport Authority v. CA,161 the
Court explained:
No one can dispute that properties of public dominion
mentioned in Article 420 of the Civil Code, like roads,
canals, rivers, torrents, ports and bridges constructed by the
State, are owned by the State. The term ports includes
seaports and airports. The MIAA Airport Lands and
Buildings constitute a port constructed by the State. Under
Article 420 of the Civil Code, the MIAA Airport Lands and
Art. 457, NCC.
Republic v. CA, 132 SCRA 514 (1984).
157
Tiongco v. Director of Lands, 16 C.A. Rep. 211, cited in Vda. de Nazareno v. CA, 257
SCRA 589 (1996).
158
Manila International Airport Authority v. CA, 495 SCRA 591, 622.
159
Id.
160
Id.
161
Supra.
155
156
64
PROPERTY
Shores
65
the line reached by the sea during ordinary storms or tempests.164 Thus,
in Cagampang v. Morano,165 the Supreme Court held that the subject
property is part of the shore and public property as the same is covered
by the highest tides from May to July and there is no showing that these
tides are due to abnormal conditions.
[19.11] Shore, Property of Public Dominion
66
PROPERTY
Foreshore Lands
67
which, quoting Corpus Juris, is that part of the land adjacent to the
sea which is alternately covered and left dry by the ordinary flow of the
tides. Thus, in the Ponce cases, the Supreme Court upheld the Cebu
City ordinance but only with respect to the reclamation of the foreshore
areas, and nullified the same with respect to the submerged areas.
In Republic v. Court of Appeals,179 the Supreme Court declared as
invalid the ordinances passed by the Pasay City and the reclamation
agreements it entered into with Republic Real Estate Corporation on
the ground that the subject matter thereof were submerged lands and not
foreshore lands. The Court held that the term foreshore lands cannot be
unduly stretched to include the submerged areas. The Court reiterated
what was said in the Ponce cases that the term foreshore refers to
that part of the land adjacent to the sea which is alternately covered
and left dry by the ordinary flow of the tides.
In Chavez v. Public Estates Authority,180 the Court declared as
invalid the joint venture agreement between Public Estates Authority
(PEA) and Amari Coastal Bay Development Corporation (Amari).
In said case, PEA entered into a joint venture agreement with Amari
obligating itself to convey title and possession over 750 hectares of
land, 592.15 hectares or 78% of the total area are still submerged and
permanently under the waters of Manila Bay. Under the said agreement,
the PEA conveyed to Amari the submerged lands even before their
actual reclamation, although the documentation of the deed of transfer
and issuance of the certificates of title would be made only after
actual reclamation. A question arose with respect to the validity of this
transaction. In declaring the contract to be invalid the Supreme Court
held: Submerged lands, like the waters (sea or bay) above them, are
part of the States inalienable natural resources. Submerged lands are
property of public dominion, absolutely inalienable and outside the
commerce of man. This is also true with respect to foreshore lands.
Any sale of submerged or foreshore lands is void being contrary to the
Constitution.
179
180
68
PROPERTY
(G)
Lakes
Natural lakes and lagoons and their beds belong to the State181 and
are part of public dominion.182 Lakes and lagoons naturally occurring
on private lands also belong to the State.183 Hence, lakes and lagoons
developed by a private person on private lands are of private ownership.
The Water Code of the Philippines, however, prohibits any person from
developing a lake, stream or spring for recreational purposes without
first obtaining a permit from the National Water Resources Council.184
The Laguna de Bay has long been recognized as a lake.185 As such,
the accretion occurring therein, by mandate of Article 84 of the Spanish
Law of Waters of 1866, belongs to the owner of the land contiguous
thereto.186
[19.15] Natural Bed of Lakes, Defined
69
about twenty (20) meters therefrom, on the ground that such is part of
the public domain and therefore not registrable. The Director of Lands
contends that since the land sought to be registered is covered with
water four to five months a year, the same is part of the lake bed of
Laguna de Bay, or is at least, a foreshore land. The rise in the water level
of the Laguna de Bay, as observed four to five months a year during the
rainy season, is caused by the rains. It is the rains which bring about the
inundation of a portion of the land in question. Applying the provisions
of Article 74 of the Law of Waters of 1866, the Supreme Court held
that since the rise in the water level which causes the submersion of the
land occurs during a shorter period (four to five months a year) than
the level of the water at which the land is completely dry, the latter
should be considered as the highest ordinary depth of Laguna de Bay.
Therefore, the Court concludes, the land sought to be registered is not
part of the bed or basin of Laguna de Bay, and therefore capable of
registration as private property.
In Republic v. Alagad,189 the Supreme Court defined the highest
ordinary depth of the waters of the Laguna de Bay as the highest depth
of the waters during the dry season or such depth being the regular,
common, natural, which occurs always or most of the time during
the year. Otherwise stated, where the rise in water level is due to the
extraordinary action of nature, rainfall for instance, the portions
inundated thereby are not considered part of the bed or basin of the body
of water in question.190 It cannot therefore be said to be foreshore land
but land outside of the public dominion, and land capable of registration
as private property.191
(H)
[19.16] Creeks
70
PROPERTY
Id., 471; see also Celestial v. Cachopero, 413 SCRA 469 and Usero v. CA, supra, 359.
Id., 471; see also Usero v. CA, supra, 359.
195
Usero v. CA, supra, 359.
196
Art. 420(2), NCC.
197
Laurel v. Garcia, 187 SCRA 797, 808 (1990).
198
Id., 807.
199
Id., 807.
200
Id., 808.
201
See Chavez v. Public Estates Authority, 384 SCRA 152, 192 (2002).
193
194
71
72
PROPERTY
208
Separate Opinion of J. Puno in Cruz v. Secretary of Environment and Natural Resources,
supra, 173.
73
xxx.
Under the Regalian Doctrine embodied in the present Constitution,
all lands of the public domain as well as all natural resources enumerated
in the above-quoted provision, whether on public or private land, belong
to the State.209
(A)
Natural Resources
[21.2] Fishponds
Fishponds are owned by the State.210 The 1987 Constitution specifically declares that all lands of the public domain, waters, fisheries,
and other natural resources belong to the State. Included here are the
fishponds, which may not be alienated but only leased.211 Possession
thereof, no matter how long, cannot ripen into ownership.212 Under Section 45 of R.A. No. 8550, otherwise known as The Philippine Fisheries
Code of 1998, public lands such as tidal swamps, mangroves, marshes,
foreshore lands and ponds suitable for fishery operations shall not be
disposed or alienated. They may, however, be the subject matter of a
fishpond lease agreement.213
[21.3] Watershed Reservation
Id., 173.
Menchavez v. Teves, Jr., 449 SCRA 380, 391 (2005).
211
Id.
212
Id.
213
Id.
214
Collado v. CA, supra.
215
Id.
216
Id., 369.
217
Id.
209
210
74
PROPERTY
Submerged lands, like the waters (sea or bay) above them, are
part of the States inalienable natural resources.218 Submerged lands are
property of public dominion, absolutely inalienable and outside the
commerce of man.219 This is also true with respect to foreshore lands.
Any sale of submerged or foreshore lands is void being contrary to the
Constitution.220
(B)
[21.5] Classification
75
76
PROPERTY
77
Properties of public dominion are not susceptible to private appropriation and acquisitive prescription.243 Thus, in Celestial v. Cachopero,244 the Court held that the petitioners claim of ownership over a
parcel of land which is a dried-up bed of the Salunayan Creek based
on her alleged long term adverse possession must necessarily fail since
the same is a property of public dominion. In Palomo v. Court of Appeals,245 the Court held that the adverse possession which may be the
basis of a grant of title in confirmation of imperfect title cases applies
only to alienable lands of the public domain. In this case, since the subject property is part of the reservation for provincial park purposes and,
thus, part of the forest zone, it is not registrable and its possession, no
matter how lengthy, cannot convert it into private property.
Supra.
See Sec. 2, Article XII of the 1987 Constitution.
242
Menchavez v. Teves, Jr., 449 SCRA 380, 391 (2005).
243
Celestial v. Cachopero, supra, 485.
244
Supra.
245
266 SCRA 392, 401 (1997).
240
241
78
PROPERTY
Properties of public dominion, being for public use, are not subject
to levy, encumbrance or disposition through public or private sale.248
Any encumbrance, levy on execution or auction sale of any property of
public dominion is void for being contrary to public policy.249 Essential
public services will stop if properties of public dominion are subject to
encumbrances, foreclosures and auction sale.250 Hence, it was held in
one case251 that the City of Paraaque cannot foreclose and compel the
auction sale of the 600-hectare runway of the MIAA for non-payment
of real estate tax since the Airport Lands and Buildings of MIAA are
properties of public dominion.252
In Vda. de Tan Toco v. Municipal Council of Iloilo,253 the Supreme
Court held that the property of a municipality, whether real or personal,
necessary for governmental purposes cannot be attached and sold at
public auction to satisfy a judgment against the municipality. According
to the Court, the necessity for government service justifies that the
property for public use of the municipality be exempt from execution.
In this case, by virtue of a writ of execution obtained by the plaintiff
against the Municipality of Iloilo, the sheriff attached two auto trucks
132 SCRA 514 (1984).
186 SCRA 88 (1990).
248
Manila International Airport Authority v. CA, supra.
249
Id.
250
Id.
251
Id.
252
See supra 18.9.
253
49 Phil. 52.
246
247
79
used for street sprinkling, a police patrol automobile, police station and
market together with the lots which they occupy. The Court declared the
attachment as invalid.
In Tufexis v. Olaguera,254 the Court likewise held that the usufruct
of the public market was not subject to attachment on account of its
being of a public character.
[22.4] They Cannot Be Burdened With Voluntary Easements
32 Phil. 654.
442 SCRA 110 (2004).
80
PROPERTY
over the disputed lot where the stairways were built as it is a property of public
dominion, the Supreme Court explained that the lot on which the stairways
were built is for the use of the people as passageway to the highway belongs
to the State. Consequently, it is a property of public dominion. And considering
that the said lot is a property of public dominion, it cannot be burdened by a
voluntary easement or right of way in favor of Villarico. In fact, its use by the
public is by mere tolerance of the government through the DPWH. Hence,
Villarico cannot appropriate it for himself and he cannot claim any right of
possession over it.
Art. 421. All other property of the State, which is not of the character
stated in the preceding article, is patrimonial property. (340a)
From the beginnings of Spanish colonization up to the establishment of American sovereignty, religious corporations had acquired
large tracts of land in the Philippines, breeding feelings of unrest and
agitation among Filipino tenants occupying those lands.260 In order to
avert any outbreak of violence, the Philippine Bill of 1902 authorized
the Insular Government to exercise the power of eminent domain over
lands which, on August 13, 1898, were owned or held by religious
Art. 421, NCC.
Hinunangan v. Director of Lands, 24 Phil. 124, 127 (1913).
258
II Caguioa, Civil Code of the Phil., 1966 ed., 36.
259
403 SCRA 1, 31, G.R. No. 133250, May 6, 2003.
260
Dissenting Opinion of J. Tinga in Alonso v. Cebu Country Club, Inc., 417 SCRA 115,
citing A. Maalac and R. Maalac, Land Registration, 3rd ed., 95.
256
257
81
Alienable lands of the public domain, or those available for alienation or disposition, are part of the patrimonial properties of the State.263
They are State properties available for private ownership except that
their appropriation is qualified by Sections 2 and 3 of Article XII of the
Constitution and the public land laws.264
Before lands of the public domain are declared available for
private acquisition, or while they remain intended for public use or for
public service or for the development of national wealth, they would
partake of properties of public dominion just like mines before their
concessions are granted, in which case, they cannot be alienated or
leased or otherwise be the object of contracts.265 In contrast, patrimonial
properties may be bought or sold or in any manner utilized with the
same effects as properties owned by private persons.266
[23.1.3]
Well-settled is the doctrine that public land granted to an enduser government agency for a specific public use may subsequently
Jacinto v. Director of Lands, 49 Phil. 853 (1926).
Alonso v. Cebu Country Club, Inc., supra.
263
Separate Opinion of J. Bellosillo in Chavez v. PEA, 403 SCRA 1, 37, citing II Tolentino,
Civil Code of the Philippines 38 (1992).
264
Id.
265
Id., at p. 38, citing Montano v. Insular Government, 22 Phil. 572 (1909).
266
Id.; citing Manila Lodge No. 761 v. CA, 73 SCRA 162.
261
262
82
PROPERTY
83
84
PROPERTY
85
86
PROPERTY
87
88
PROPERTY
public use of the City of Manila and not its patrimonial property, the Court of
Appeals held
xxx. The nature of properties owned by cities in this country
is determined by the character of the use or service for which they
are intended or devoted. Properties which are intended for public
use or for some public service are properties for public use. All
others are patrimonial properties. Art. 424, new Civil Code. It
matters not that the property is not actually devoted for public use
or for some public service. If it has been intended for such use or
service, and the city has not devoted it to other uses, or adopted
any measure which amounted to a withdrawal of the property from
public use and service, the same remains property for public use,
the fact that it is not actually devoted for public use or service
notwithstanding.
Art. 424. Property for public use, in the provinces, cities, and municipalities, consists of the provincial roads, city streets, municipal streets,
the squares, fountains, public waters, promenades, and public works for
public service paid for by said provinces, cities, or municipalities.
All other property possessed by any of them is patrimonial and shall
be governed by this Code, without prejudice to the provisions of special
laws. (344a)
Pilapil v. CA, supra, at p. 46, citing Tolentino, Civil Code, Vol. II, 1983 ed., 38.
Dacanay v. Asistio, Jr., 208 SCRA 404, 411 (1992).
293
Ibid., citing Villanueva v. Castaeda and Macalino, 15 SCRA 142; Municipality of Cavite v. Rojas, 30 Phil. 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot
v. De la Fuente, 48 O.G. 4860.
291
292
b.
c.
d.
89
90
PROPERTY
A public street is property for public use and hence outside the
commerce of man.297 Being outside the commerce of man, it may not be
the subject of lease or other contract.298
Local governments have no authority whatsoever to control or
regulate the use of public properties, like roads and streets, unless
specific authority is vested upon them by Congress.299 In the case of
Cebu Oxygen & Acetylene Co., Inc. v. Bercilles,300 the City Council of
Cebu was expressly authorized under its Revised Charter to close
any city road, street or alley, boulevard, avenue, park or square. The
same Charter likewise expressly states that property thus withdrawn
from public servitude may be used or conveyed for any purpose for
which other real property belonging to the City may be lawfully used or
conveyed. Thus, in that case the Supreme Court held that the withdrawal
of an existing road from public use was valid thereby converting the
withdrawn property into patrimonial property which can be the object
of an ordinary contract.
In the case of Favis v. City of Baguio,301 the power of the City
Council of Baguio City to close city streets and withdraw them from
public use was also assailed. The Supreme Court said:
5. So it is, that appellant may not challenge the city
councils act of withdrawing a strip of Lapu-Lapu Street at
its dead end from public use and converting the remainder
thereof into an alley. These are acts well within the ambit of
the power to close a city street. The city council, it would
91
Supra.
At p. 470.
304
Article 422, Civil Code; Cebu Oxygen, etc., et al. v. Bercilles, et al., supra.
305
Macasiano v. Diokno, supra.
306
Ibid., p. 471.
307
Dacanay v. Asistio, supra.
302
303
92
PROPERTY
further held that the right of the public to use the city streets may not be
bargained away through contract.
Dacanay v. Asistio, Jr.
208 SCRA 404 (1992)
May public streets or thoroughfares be leased or licensed to market
stallholders by virtue of a city ordinance or resolution of the Metro Manila
Commission? This is the issue posed in this case. The Supreme Court ruled
that a public street is property for public use and hence outside the commerce
of man. Being outside the commerce of man, it may not be the subject of
lease or other contract. The Court adds: As the stallholders pay fees to the
City Government for the right to occupy portions of the public street, the City
Government, contrary to law, has been leasing portions of the streets to them.
Such leases or licenses are null and void for being contrary to law. The right of
the public to use the city streets may not be bargained away through contract.
The interests of a few should not prevail over the good of the greater number
in the community whose health, peace, safety, good order and general welfare,
the respondent city officials are under legal obligation to protect.
Macasiano v. Diokno
212 SCRA 464 (1992)
In this case, the then municipality of Paraaque passed an ordinance
authorizing the closure of several municipal streets for purposes of converting
them as sites for flea market and/or vending areas. The municipality then
entered into an agreement with Palanyag for the operation of flea market in
the said streets. Subsequently, Brig. Gen. Macasiano of the PNP ordered the
destruction and confiscation of the stalls. Palanyag went to court. The trial court
upheld the validity of the ordinance passed by the Municipality of Paraaque.
Macasiano questioned the ruling of the trial court before the Supreme Court.
In sustaining Macasiano, the Court explained
We find the petition meritorious. In resolving the question
of whether the disputed municipal ordinance authorizing the flea
market on the public streets is valid, it is necessary to examine
the laws in force during the time the said ordinance was enacted,
namely, Batas Pambansa Blg. 337, otherwise known as Local
Government Code, in connection with established principles
embodied in the Civil Code on property and settled jurisprudence
on the matter.
The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art.
93
94
PROPERTY
95
310
311
96
PROPERTY
97
98
PROPERTY
Id., 302.
Supra.
325
See Ponce cases, supra.
326
Chavez v. PEA, 403 SCRA 1, 32.
323
324
99
100
PROPERTY
101
102
PROPERTY
oOo
103
103
104
PROPERTY
The Civil Code does not define ownership. Instead, the Code
simply enumerates the rights which are included therein, as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
105
106
PROPERTY
to exclude any person from its enjoyment and disposal11 save for the
exception mentioned in Article 432 of the Civil Code which will be
discussed in subsequent sections of this Book.
[30.4] Other Real Rights Aside From Ownership
12
107
414, embraces both material objects and rights. In other words, the term
things in Article 414 is used, not in its ordinary meaning, but in the
juridical sense. In Article 427, however, it is quite obvious that the word
things has reference only to material objects as contra distinguished
from rights. Then again, Article 428 the Code mentions things only but
this time the concept embraces both material objects and rights. Hence,
it would have been better if Article 427 simply stated that ownership
is exercised over property. After all, the concept of property under the
Civil Code embraces both material objects and rights.
Art. 428. The owner has the right to enjoy and dispose of a thing,
without other limitations than those established by law.
The owner has also a right of action against the holder and possessor of the thing in order to recover it. (348a)
108
PROPERTY
109
110
PROPERTY
directs the true owner to resort to judicial process for the recovery of
the property and Article 536 of the same Code which states:
Art. 536. In no case may possession be acquired
through force or intimidation as long as there is a possessor
who objects thereto. He who believes that he has an action
or a right to deprive another of the holding of a thing, must
invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a) (Italics supplied)
Thus, in one case,20 the Supreme Court held that the owners of a
property have no authority to use force and violence to eject alleged
usurpers who were in prior physical possession of it. The Court held
further that the owners must file the appropriate action in court and
should not take the law into their own hands.
[34.2] Actions for Recovery of Possession
Accion Interdictal
20
Heirs of Pedro Laurora, et al. v. Sterling Technopark III, G.R. No. 148615, April 9,
2003.
21
Valdez v. CA, G.R. No. 132424, May 2, 2006, citing Javier v. Veridiano II, 237 SCRA
565, 572-573 (1994).
22
Rule 60, 1997 Rules of Civil Procedure.
23
Valdez v. CA, G.R. No. 132424, May 2, 2006, citing Javier v. Veridiano II, 237 SCRA
565, 572-573 (1994).
24
See Sec. 1, Rule 70, 1997 Rules of Civil Procedure; Dela Cruz v. Panis, 245 SCRA 242
(1995).
111
112
PROPERTY
[34.2.2]
113
Accion Publiciana
114
PROPERTY
Accion Reivindicatoria
115
While Chapter 1, Title II, Book II of the New Civil Code, inclusive
of Article 429 thereof, speaks of ownership, the doctrine of self-help
Sec. 33(3), B.P. Blg. 129, as amended by R.A. No. 7691.
Id.
52
Art. 429, NCC.
53
Id.
54
People v. Depante (CA), 58 O.G. 926.
50
51
116
PROPERTY
is available not only to owners of the property but also to any of its
lawful possessor.55
[35.3] When May the Doctrine Be Invoked
117
Code. When the case reached the Supreme Court, the High Court held that
what the petitioner did could not be justified under the doctrine of self-help.
The Court explained
Both the Municipal Trial Court and the Regional Trial Court
have rationalized petitioners drastic action of bulldozing and
destroying the crops of private respondents on the basis of the
doctrine of self-help enunciated in Article 429 of the New Civil
Code. Such justification is unavailing because the doctrine of
self-help can only be exercised at the time of actual or threatened
dispossession which is absent in the case at bar. When possession
has already been lost, the owner must resort to judicial process
for the recovery of property. This is clear from Article 536 of the
Civil Code which states, (I)n no case may possession be acquired
through force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or right to
deprive another of the holding of a thing, must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.
[35.4] Defense of Property as Justifying Circumstance
In the language of Viada, aside from the right to life on which rests
the legitimate defense of our own person we have the right to property
acquired by us, and the right to honor which is not the least prized of
our patrimony.59 Hence, defense of property is deemed included in selfdefense under the provisions of Article 11, paragraph 1, of the Revised
Penal Code.
In two cases decided by the Court of Appeals,60 it was held that
defense of property whether complete or incomplete, to be available,
must be coupled with an attack on the person of the owner or lawful
possessor. Thus, in People v. Goya, supra, the Court of Appeals did
not appreciate the mitigating circumstance of incomplete defense of
property because when the appellant (a security guard in the bodega
of Cagayan Valley Agricultural Corporation) fired a shot at the victim,
who was caught in the act of stealing a sack of palay belonging to the
appellants employer, the victim did not lay hands on the appellant or
made any attempt to attack the latter.
1 Viada, Codigo Penal, 5th ed., pp. 172-173, cited in People v. Jaurigue, 76 Phil. 174.
People v. Apolinar, (CA) 38 O.G. 2870 and People v. Goya, CA-GR. No. 16373-R, Sep.
29, 1965.
59
60
118
PROPERTY
119
120
PROPERTY
Art. 430. Every owner may enclose or fence his land or tenements
by means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon. (388)
121
122
PROPERTY
Art. 431. The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person. (n)
Art. 432. The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an
imminent danger and the threatened damage, compared to the damage
arising to the owner from the interference, is much greater. The owner
may demand from the person benefited indemnity for the damage to him.
(n)
Police Power
123
largely on the maxims, Sic utere tuo et alienum non laedas72 and
Salus populi est suprema lex.73 Its fundamental purpose is securing
the general welfare, comfort and convenience of the people.74
Freund defined police power as the power of promoting the public
welfare by restraining and regulating the use of liberty and property.75
Police power is usually exercised in the form of mere regulation or
restriction in the use of liberty or property for the promotion of the
general welfare.76 It does not involve the taking or confiscation of
property with the exception of a few cases where there is a necessity
to confiscate private property in order to destroy it for the purpose of
protecting the peace and order and of promoting the general welfare as
for instance, the confiscation of an illegally possessed article, such as
opium and firearms.77 Thus, in police power, the owner does not recover
from the government for injury sustained in consequence thereof.78
The foregoing principles are confirmed in Article 436 of the New
Civil Code, which states:
Art. 436. When any property is condemned or seized
by competent authority in the interest of health, safety or
security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure
is unjustified.
There are traditional distinctions between the police power and
the power of eminent domain that logically preclude the application of
both powers at the same time on the same subject. In the case of City of
Baguio v. NAWASA,79 for example, where a law required the transfer of
all municipal waterworks systems to the NAWASA in exchange for its
assets of equivalent value, the Court held that the power being exercised
was eminent domain because the property involved was wholesome and
intended for a public use. Property condemned under the police power
So use your own as not to injure anothers property.
The welfare of the people is the supreme law.
74
Binay v. Domingo, G.R. No. 92389, Sep. 11, 1991.
75
Taada and Carreon, Political Law, Vol. 11, p. 50, cited in City Government of Quezon
City v. Ericta, supra.
76
City Government of Quezon City v. Ericta, supra.
77
Id.
78
Id.
79
106 Phil. 144.
72
73
124
PROPERTY
125
need to expropriate where the owner is willing to sell under terms also
acceptable to the purchaser, in which case an ordinary deed of sale may
be agreed upon by the parties.81 It is only where the owner is unwilling
to sell, or cannot accept the price or other conditions offered by the
vendee, that the power of eminent domain will come into play to assert
the paramount authority of the State over the interests of the property
owner. Private rights must then yield to the irresistible demands of the
public interest on the time-honored justification, as in the case of the
police power, that the welfare of the people is the supreme law.82
The exercise of the power of eminent domain is constrained by
two constitutional provisions: (1) that private property shall not be
taken for public use without just compensation under Article III (Bill
of Rights), Section 9; and (2) that no person shall be deprived of his/her
life, liberty, or property without due process of law under Art. III, Sec.
1. The foregoing requirement is echoed in Article 435 of the New Civil
Code, which states:
Art. 435. No person shall be deprived of his property
except by competent authority and for public use and always
upon payment of just compensation.
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the owner
in his possession. (349a)
In view of the foregoing proscription, the power of eminent domain
can only be exercised for public use and with just compensation. This
proscription is intended to provide a safeguard against possible abuse
and so to protect as well the individual against whose property the
power is sought to be enforced.83 Taking an individuals private property
is a deprivation which can only be justified by a higher good which is
public use and can only be counterbalanced by just compensation.84
Without these safeguards, the taking of property would not only be
unlawful, immoral, and null and void, but would also constitute a gross
Noble v. City of Manila, 67 Phil. 1, cited in Association of Small Landowners in the Phil.
v. Sec. of Agrarian Reform, supra.
82
Association of Small Landowners in the Phil. v. Sec. of Agrarian Reform, supra.
83
Manosca v. CA, supra.
84
Barangay Sindalan, San Fernando, Pampanga v. CA, G.R. No. 150640, March 22, 2007.
81
126
PROPERTY
Power of Taxation
Id.
LTO v. City of Butuan, G.R. No. 131512, Jan. 20, 2000.
87
Mactan Cebu International Airport v. Hon. Marcos, G.R. No. 120082, Sep. 11, 1996; citing Cooley on Constitutional Law, 4th ed. (1931), 62.
88
Sec. 28(1), Article VI, 1987 Constitution.
89
Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat, 316, 4 L ed. 579, 607. Later
Justice Holmes brushed this aside by declaring in Panhandle Oil Co. v. Mississippi (277 U.S. 218)
that the power to tax is not the power to destroy while this Court sits. Justice Frankfurter in
Graves v. New York (306 U.S. 466) also remarked that Justice Marshalls statement was a mere
flourish or rhetoric and a product of the intellectual fashion of the times to indulge in a free
case of absolutes. (See Note 15 in Mactan Cebu International Airport v. Hon. Marcos, supra.).
90
Mactan Cebu International Airport v. Hon. Marcos, supra.
91
Id., citing Agpalo, Ruben E., Statutory Construction [1990 ed.], 216.
85
86
127
may be established even against the will of the owner of the servient
estate.92
(2) During a period of acute public want or emergency, thoughtless extravagance in expenses for pleasure or display may be stopped by
order of the courts at the instance of any government or private charitable institution.93
(3) Lands acquired under free patent or homestead cannot be
subject to encumbrance or alienation within five years from the issuance
of the patent.94
[37.3] Inherent Limitations Arising From Conflicts With Other
Similar Rights
It is a well-settled principle, growing out of the nature of wellordered civil society, that every holder of property, however absolute
and unqualified may be his title, holds it under the implied liability
that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious
to the rights of the community.95
[37.3.1]
128
PROPERTY
only when he acts in the legitimate exercise of his right, that is, when
he acts with prudence and in good faith; but not when he acts with
negligence or abuse. The principle is outlined in Article 19 of the Code
which provides that every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith. In relation to the exercise of
the right to use property, Article 431 of the Code specifically mandates
that the owner of a thing cannot make use thereof in such a manner as
to injure the rights of a third person. Not only that, our Constitution
even went farther by declaring that the use of property bears a social
function, and all economic agents shall contribute to the common
good.97
The absence of good faith is essential in determining whether the
owner can be held liable for any consequential damage arising from
the exercise of his right to use the property. When the owner acts in the
legitimate exercise of his right, that is, when he acts with prudence and
in good faith, he does no actionable injury and cannot be held liable
for damages.98 The damage resulting from the legitimate exercise of a
persons right is a loss without injury damnum absque injuria. If
the right is exercise in bad faith, however, and for the sole intent of
prejudicing or injuring another, there is liability under the principle of
abuse of right99 for the exercise of a right ends when the right disappears,
and it disappears when it is abused especially to the prejudice of
others.100
The foregoing principles are best illustrated when we compare the
case of Villafuerte v. Court of Appeals, cited in supra., 36, with the case
of Sps. Custodio and Sps. Santos v. Court of Appeals,101 both involving
the exercise of the owners right to enclose or fence his property. In
Villafuerte, the lot owners were held liable to pay damages because the
exercise of the right was attended with bad faith it was resorted to for
the purpose of evicting the occupants whose lease contract had already
expired. In Sps. Santos, however, the Court held that the petitioners
were not liable to the private respondents for their act of constructing
Sec. 6, Art. XII, 1987 Phil. Constitution.
Amonoy v. Gutierrez, 351 SCRA 731.
99
Albenson Enterprises Corp. v. CA, 217 SCRA 18.
100
MBTC v. Wong, 359 SCRA 608, 618.
101
G.R. No. 116100, Feb. 9, 1996.
97
98
129
a fence within their property since at the time of such construction, the
lot of the petitioners was not subjected yet to any servitude and there
was no easement of way existing in favor of the private respondents,
either by law or contract. The private respondents were granted by the
court a right of way to petitioners lot only when the former went to
court to pray for such access. But prior to the decision of the court, the
petitioners were declared to have an absolute right over their property
and their act of fencing and enclosing the same was an act which they
may lawfully perform in the enjoyment and exercise of said right.
Sps. Custodio and Sps. Santos v. Court of Appeals
G.R. No. 116100, Feb. 9, 1996
The private respondents own a parcel of land with a two-door apartment
erected thereon situated at Interior P. Burgos St., Palingon, Tipas, Taguig,
Metro Manila. They were able to acquire said property through a contract
of sale with spouses Mamerto Rayos and Teodora Quintero as vendors. Said
property may be described to be surrounded by other immovables pertaining
to petitioners. Taking P. Burgos Street as the point of reference, on the left
side, going to private respondents, the row of houses will be as follows: That
of petitioners Spouses Custodio, then that of petitioner Spouses Santos and
then that of the private respondents. As an access to P. Burgos Street from
private respondents property, there are two possible passageways. The first
passageway is approximately one meter wide and is about 20 meters distant
from the private respondents residence to P. Burgos Street. Such path is passing
in between the previously mentioned row of houses. The second passageway is
about 3 meters in width and length from the private respondents residence to P.
Burgos Street; it is about 26 meters. Thereafter, the petitioners constructed an
adobe fence in their respective properties such that the entire first passageway
was enclosed. Subsequently, the private respondents filed a complaint against
the petitioners for the grant of an easement of right of way with prayer for
damages. After trial, the trial court ordered the petitioners to grant the private
respondents access to the passageway upon payment of just compensation. Not
satisfied with the judgment, the private respondents faulted the trial court for
not awarding them damages. On the sole issue of whether the trial court erred
in not awarding damages in their favor, the matter reached the High Court.
In ruling that the private respondents were not entitled to damages, the Court
explained
The act of petitioners in constructing a fence within their
lot is a valid exercise of their right as owners, hence not contrary
to morals, good customs or public policy. The law recognizes in
130
PROPERTY
the owner the right to enjoy and dispose of a thing, without other
limitations than those established by law. It is within the right of
petitioners, as owners, to enclose and fence their property. Article
430 of the Civil Code provides that (e)very owner may enclose or
fence his land or tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to servitudes
constituted thereon.
At the time of the construction of the fence, the lot was not
subject to any servitudes. There was no easement of way existing
in favor of private respondents, either by law or by contract. The
fact that private respondents had no existing right over the said
passageway is confirmed by the very decision of the trial court
granting a compulsory right of way in their favor after payment
of just compensation. It was only that decision which gave private
respondents the right to use the said passageway after payment of
the compensation and imposed a corresponding duty on petitioners
not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute
right over their property and their act of fencing and enclosing
the same was an act which they may lawfully perform in the
employment and exercise of said right. To repeat, whatever injury
or damage may have been sustained by private respondents by
reason of the rightful use of the said land by petitioners is damnum
absque injuria.
A person has a right to the natural use and enjoyment of his
own property, according to his pleasure, for all the purposes to
which such property is usually applied. As a general rule, therefore,
there is no cause of action for acts done by one person upon his
own property in a lawful and proper manner, although such acts
incidentally cause damage or an unavoidable loss to another, as
such damage or loss is damnum absque injuria. When the owner
of property makes use thereof in the general and ordinary manner
in which the property is used, such as fencing or enclosing the
same as in this case, nobody can complain of having been injured,
because the inconvenience arising from said use can be considered
as a mere consequence of community life.
The proper exercise of a lawful right cannot constitute a legal
wrong for which an action will lie, although the act may result in
damage to another, for no legal right has been invaded. One may
use any lawful means to accomplish a lawful purpose and though
the means adopted may cause damage to another, no cause of
131
132
PROPERTY
Under the provisions of Article 432 of the New Civil Code of the
Philippines, the interference by a third person with anothers property
is justified and cannot be prevented by the latter if such interference
is necessary to avert an imminent danger and the threatened damage,
compared to the damage arising to the owner from the interference, is
much greater. An example of the application of the principle of state of
necessity is when a fire is threatening to spread and destroy other houses
and properties and the destruction of some houses will avert the spread
of the fire, such destruction is justified and will not be considered as
unlawful physical invasion upon anothers property.
In order for the interference to be justified under the state of
necessity, the following requisites must be present:
(1) there must be a situation of grave peril, an actual or imminent
danger, either upon the person of the actor or a third person or their
property;103
(2)
xxx
xxx
133
Id.
See Art. 101, 2nd par., RPC.
109
Art. 432, NCC.
110
II Tolentino, Civil Code of the Philippines, 1992 ed., 68.
111
Id., 70.
112
Id., 68.
107
108
134
PROPERTY
[iv]
135
Prohibition to Alienate
136
PROPERTY
[37.4.2]
South Pacem Development, Inc. v. CA, G.R. No. 126260, Dec. 16, 2004.
174 SCRA 589 (1989).
120
Supra.
121
176 SCRA 31 (1989).
118
119
137
and adjacent to the rear and two sides thereof for the purpose of drainage,
sewerage water and other public facilities as may be necessary and
desirable; and that additional restrictions, reservations, or servitudes as
the association may, from time to time, adopt and prescribe would be
for a period of fifty (50) years from January 1, 1949. Therein petitioner
allowed the occupancy by two families, thereby violating the singlefamily residential building restriction. The Supreme Court declared
that the purpose of the restriction is valid as it avoids overcrowding both
in the houses and in the subdivision which would result in pressure upon
the common facilities such as water, power and telephone connections;
accelerate the deterioration of the roads; and create problems of
sanitation and security in the subdivision. Likewise, the restrictions
were for aesthetic consideration and for the preservation of the peace,
beauty, tranquility, and serenity of living at Forbes Park.
Art. 433. Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial
process for the recovery of the property. (n)
Art. 434. In an action to recover, the property must be identified, and
the plaintiff must rely on the strength of his title and not on the weakness
of the defendants claim. (n)
Art. 435. No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation.
Should this requirement be not first complied with, the courts
shall protect and, in a proper case, restore the owner in his possession.
(349a)
Art. 436. When any property is condemned or seized by competent
authority in the interest of health, safety or security, the owner thereof
shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. (n)
138
PROPERTY
139
In civil cases, the law requires that the party who alleges a fact
and substantially asserts the affirmative of the issue has the burden
of proving it.130 This evidentiary rule is based on the principle that the
suitor who relies upon the existence of a fact should be called upon to
prove it.131 In relation to accion reivindicatoria, Article 434 of the New
Civil Code provides that to successfully maintain an action to recover
the ownership of a real property, the person who claims a better right to
it must prove two (2) things: first, the identity of the land claimed; and
second, his title thereto.132
If the plaintiff is unable to prove any of the foregoing requisites,
his action will fail even if the defendant cannot prove his title to the
property. In an action to recover real property, the settled rule is that the
plaintiff must rely on the strength of his title, not on the weakness of the
defendants title.133 This requirement is based on two (2) reasons: first, it
is possible that neither the plaintiff nor the defendant is the true owner
of the property in dispute;134 and second, the burden of proof lies on the
party who substantially asserts the affirmative of an issue for he who
relies upon the existence of a fact should be called upon to prove that
fact.135 Failure on the part of the plaintiff to prove his right of ownership
will bar an action to recover the property; his right to recover must be
founded on positive title or right, and not merely on negative ones, such
as the lack or insufficiency of title on the part of the defendant.136 The
possessor has a presumption of title, and unless the plaintiff proves he
has a better right, he cannot recover the property from the defendant.137
140
PROPERTY
[38.2.1]
Proof of Identity
141
therein laid down, as enclosing the land and indicating its limits.147
However, it is only when the boundaries given are sufficiently certain and
the identity of the land clearly proved by the boundaries thus indicated
that an erroneous statement concerning the area can be disregarded or
ignored.148 Otherwise, the area stated should be followed.149 This is the
exception to the rule.150
[38.2.2]
Proof of Title
147
Heirs of Anastacio Fabela v. Court of Appeals, 362 SCRA 531 (2001), citing Vda. de Tan
v. IAC, 213 SCRA 95, citing Dichoso v. CA, 192 SCRA 169; Erico v. Chigas, 98 SCRA 575.
148
Intestate of Fausto Bayot v. Director of Lands, supra.
149
Id., citing Sanchez v. Director of Lands, 63 Phil., 378, 386.
150
Id., see also Pamintuan v. Insular Government (1907), 8 Phil., 512; Paras v. Insular Government (1908), 11 Phil. 378; and Waldroop v. Castaxda, 25 Phil. 30.
151
Tubo-Rodriguez v. Rodriguez, G.R. No. 175720, Sept. 11, 2007.
152
Cureg v. IAC, G.R. No. 73465 Sept. 7, 1989; citing Ferrer-Lopez v. Court of Appeals,
G.R. No. 50420, May 29, 1987, 150 SCRA 393,401-402
153
Ledesma v. Mun. of Iloilo, 49 Phil. 773 (1926), citing Legarda and Prieto v. Saleeby, 31
Phil. 590.
154
Veterans Federation of the Philippines v. Court of Appeals, 345 SCRA 348 (2000), citing
Consul v. Buhay, 64 O.G. 29, July 15, 1968, CA.
142
PROPERTY
143
in the ad coelum rule of the Roman Law Cujus est solum, ejus est
usque ad coelum ad infernos (to whomsoever the soil belongs, he owns
also to the sky and to the depths). However, the literal construction of
the ad coelum doctrine has already been rejected by the courts.161 This
formula from the center of the earth to the sky was invented at some
remote time in the past when the use of space above land actual or
conceivable was confined to narrow limits, and simply meant that the
owner of the land could use the overlying space to such an extent as
he was able, and that no one could ever interfere with that use.162 This
formula was never taken literally, but was a figurative phrase to express
the full and complete ownership of land and the right to whatever
superjacent airspace was necessary or convenient to the enjoyment of
the land.163 Our Civil Code, even as it adopted the ad coelum rule in
Article 437, has subjected the same to certain limitations: (1) that it
cannot work detriment to servitudes; (2) that it is subject to special laws
and ordinances; and (3) that it is subject to reasonable requirements of
aerial navigation.
As a consequence of the foregoing principle, the owner of the
land can make any construction thereon or make any plantation or
excavation which he may deem proper provided it does not impair
servitudes and, of course, subject to special laws and ordinances and
reasonable requirements of aerial navigation.164
[39.1] Right To the Sub-Surface or Subsoil
[39.1.1]
161
See US v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L.Ed. 1206 (1946); Hinman v. Pacific
Air Transport, US Court of Appeals, 9th Circuit, 84 F.2d 755 (1936).
162
Hinman v. Pacific Air Transport, supra.
163
Id.
164
Art. 437, NCC.
165
Id.
144
PROPERTY
that the same was agricultural land and that he acquired ownership over
it by virtue of acquisitive prescription, the same being in possession
of his predecessors-in-interest for a period long enough to meet the
requirements of the law. Such application was opposed by Benguet
Consolidated, Inc., Atok Big Wedge Corporation and the Republic of
the Philippines, through the Bureau of Forestry Development. Benguet
and Atok each claimed that they acquired minerals claims over certain
portions of the land. The Republic, on the other hand, claimed that the
land was covered by the Central Cordillera Forest Reserve and, thus,
part of public dominion.
With respect to the claim of the Republic of the Philippines, the
Supreme Court held that while the subject property was considered
forest land and included in the Central Cordillera Forest Reserve, the
same did not impair the rights already vested in Benguet and Atok
at that time. The Court reasoned that under the law then in force, the
perfection of the mining claim converted the property to mineral land
and removed it from the public domain. By such act, the locators of the
mining claims from whom Benguet and Atok acquired their respective
claims, already acquired exclusive rights over the land, against even
the government, without need of any further act such as the purchase of
the land or the obtention of a patent over it. As the land had become the
private property of the locators, they had the right to transfer the same,
as they did, to Benguet and Atok.
With respect to the claim of ownership by Dela Rosa, the Court
held that even if it be assumed that his predecessors-in-interest had
really been in possession of the subject property, their possession was
not in the concept of owner of the mining claim but of the property as
agricultural land, which it was not. The property was mineral land, and
they were claiming it as agricultural land. The Court noted that said
predecessors-in-interest did not dispute the rights of the mining locators
nor did they seek to oust them as such and to replace them in the mining
land. In fact, one of the predecessors-in-interest testified that she was
aware of the diggings being undertaken down below but she did not
mind and did not protest the same although she claimed to be the owner
of the said land.
When the case was decided by the Court of Appeals, the appellate
court held that there was no conflict of interest between the owners
145
146
PROPERTY
With respect to the land owners right to the subsoil, the question
that comes to mind is this: up to what extent will the land owners right
be with respect to the sub-surface? This is the question that confronts
the Supreme Court in the case of National Power Corporation v.
Ibrahim.167
In the above-mentioned case, the National Power Corporation
constructed underground tunnels on several parcels of land owned
in common by Ibrahim and his co-owners situated in Lanao Del Sur.
NAPOCOR constructed the tunnels in 1978 but its existence was
discovered by the land owners only in 1992. The tunnels were apparently
being used by NAPOCOR in siphoning the water of Lake Lanao and
in the operation of NAPOCORs other projects located in other parts
of Mindanao. The existence of the tunnels came to the attention of the
co-owners only when one of them applied for a permit with the Marawi
City Water District to construct and/or install a motorized deep well.
The application was denied on the ground that the construction of the
deep well would cause danger to lives and property because Marawi
City lies in an area of local volcanic and tectonic activity and because
of the existence of tunnels underneath the surface of their property. He
was then informed that underneath the land are underground tunnels
of the NAPOCOR. Upon such discovery, the co-owners filed an action
against NAPOCOR for recovery of land and damages.
The trial court denied the prayer of the co-owners for the
dismantling of the tunnels but ordered NAPOCOR to pay them just
compensation since there was taking of their property. The Court of
Appeals sustained the decision of the trial Court. Hence, NAPOCOR
elevated the matter to the Supreme Court.
166
167
At pp. 237-238.
526 SCRA 149 (2007).
147
148
PROPERTY
is liable to pay not merely an easement fee but rather the full
compensation for land. This is so because in this case, the
nature of the easement practically deprives the owners of
its normal beneficial use. Respondents, as the owners of the
property thus expropriated, are entitled to a just compensation
which should be neither more nor less, whenever it is possible
to make the assessment, than the money equivalent of said
property.168
[39.2] Right to Hidden Treasure
Since the owner of the land is likewise the owner of its sub-surface
or sub-soil, any hidden treasure on the sub-surface also belongs to
him.169 The same rule applies if the hidden treasure is located on a
building or other property the same belong to the owner of the building
or other property on which it is found.170 However, when the discovery
is made by a stranger who is not a trespasser and the discovery is by
chance, the finder is entitled to one-half of the treasure.171 If the finder is
a trespasser, he shall not be entitled to any share of the treasure.172
[39.2.1]
At pp. 163-164.
Art. 438, 1st par., NCC.
170
Id.
171
Art. 438, 2nd par., NCC.
172
Id.
173
Art. 439, NCC.
174
Vitug, Civil Law, Vol. 1, 2003 ed., p. 15.
168
169
149
be found in the bowels of the earth even if the land where the discovery
is made be private.175 As such, the right of the owner of the land with
respect to the sub-surface or subsoil is subject to the application of the
Regalian doctrine.
EDWARDS v. SIMS
Court of Appeals of Kentucky, 1929.
232 Ky. 791, 24 S.W.2d 619.
STANLEY, C. This case presents a novel question.
In the recent case of Edwards v. Lee, 230 Ky. 375, 19 S.W.2d 992, an
appeal was dismissed which sought a review and reversal of an order of the
Edmonson circuit court directing surveyors to enter upon and under the lands
of Edwards and others and survey the Great Onyx Cave for the purpose of
securing evidence on an issue as to whether or not a part of the cave being
exploited and shown by the appellants runs under the ground of Lee. The
nature of the litigation is stated in the opinion and the order set forth in full. It
was held that the order was interlocutory and consequently one from which no
appeal would lie.
Following that decision, this original proceeding was filed in this court
by the appellants in that case (who were defendants below) against Hon. N.P.
Sims, judge of the Edmonson circuit court, seeking a writ of prohibition to
prevent him enforcing the order and punishing the petitioners for contempt
for any disobedience of it. It is alleged by the petitioners that the lower court
was without jurisdiction or authority to make the order, and that their cave
property and their right of possession and privacy will be wrongfully and
illegally invaded, and that they will be greatly and irreparably injured and
damaged without having an adequate remedy, since the damage will have been
suffered before there can be an adjudication of their rights on a final appeal.
It will thus be seen that there are submitted the two grounds upon which this
court will prohibit inferior courts from proceeding, under the provisions of
Section 110 of the Constitution, namely: (1) Where it is a matter in which it
has no jurisdiction and there is no remedy through appeal, and (2) where the
court possesses jurisdiction but is exercising or about to exercise its power
erroneously, and which would result in great injustice and irreparable injury to
the applicant, and there is no adequate remedy by appeal or otherwise. Duffin
v. Field, Judge, 208 Ky. 543, 271 S.W. 596; Potter v. Gardner, 222 Ky. 487, 1
S.W.2d 537; Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395.
175
150
PROPERTY
1.
There is no question as to the jurisdiction of the parties and the
subject matter. It is only whether the court is proceeding erroneously within
its jurisdiction in entering and enforcing the order directing the survey of
the subterranean premises of the petitioners. There is but little authority of
particular and special application to caves and cave rights. In few places, if
any, can be found similar works of nature of such grandeur and of such unique
and marvelous character as to give to caves a commercial value sufficient to
cause litigation as those peculiar to Edmonson and other countries in Kentucky.
The reader will find of interest the address on The Legal Story of Mammoth
Cave by Hon. John B. Rodes, of Bowling Green, before the 1929 Session
of the Kentucky State Bar Assocation, published in its proceedings. In Cox v.
Colossal Cavern Co., 210 Ky. 612, 276 S.W. 540, the subject of cave rights
was considered, and this court held there may be a severance of the estate in
the property, that is, that one may own the surface and another the cave rights,
the conditions being quite similar to but not exactly like those of mineral lands.
But there is no such severance involved in this case, as it appears that the
defendants are the owners of the land and have in it an absolute right.
Cujus est solum, ejus est usque ad coelum ad infernos (to whomsoever
the soil belongs, he owns also to the sky and to the depths), is an old maxim
and rule. It is that the owner of realty, unless there has been a division of the
estate, is entitled to the free and unfettered control of his own land above,
upon, and beneath the surface. So whatever is in a direct line between the
surface of the land and the center of the earth belongs to the owner of the
surface. Ordinarily that ownership cannot be interfered with or infringed by
third persons. 17 C.J. 391; 22 R.C.L. 56; Langhorne v. Turman, 141 Ky. 809,
133 S.W. 1008, 34 L.R.A., N.S., 211. There are, however, certain limitations
on the right of enjoyment of possession of all property, such as its use to the
detriment or interference with a neighbor and burdens which it must bear in
common with property of a like kind. 22 R.C.L. 77.
With this doctrine of ownership in mind, we approach the question as to
whether a court of equity has a transcendent power to invade that right through
its agents for the purpose of ascertaining the truth of a matter before it, which fact
thus disclosed will determine certainly whether or not the owner is trespassing
upon his neighbors property. Our attention has not been called to any domestic
case, nor have we found one, in which the question was determined either
directly or by analogy. It seems to the court, however, that there can be little
differentiation, so far as the matter now before us is concerned, between caves
and mines. And as declared in 40 C.J. 947: A court of equity, however, has the
inherent power, independent of statute, to compel a mine owner to permit an
inspection of his works at the suit of a party who can show reasonable ground
for suspicion that his lands are being trespassed upon though them, and may
issue an injunction to permit such inspection.
151
There is some limitation upon this inherent power, such as that the person
applying for such an inspection must show a bona fide claim and allege facts
showing a necessity for the inspection and examination of the adverse partys
property; and, of course, the party whose property is to be inspected must have
had an opportunity to be hear in relation thereto. In the instant case it appears
that these conditions were met. * * *
We can see no difference in principle between the invasion of a mine on
adjoining property to ascertain whether or not the minerals are being extracted
from under the applicants property and an inspection of this respondents
property through his cave to ascertain whether or not he is trespassing under
this applicants property.
It appears that before making this order the court had before him surveys
of the surface of both properties and the conflicting opinions of witnesses
as to whether or not the Great Onyx Cave extended under the surface of the
plaintiffs land. This opinion evidence was of comparatively little value, and as
the chancellor (now respondent) suggested, the controversy can be quickly and
accurately settled by surveying the cave; and if defendants are correct in their
contention this survey will establish it beyond all doubt and their title to this
cave will be forever quieted. If the survey shows the Great Onyx Cave extends
under the lands of plaintiffs, defendants should be glad to know this fact and
should be just as glad to cease trespassing upon plaintiffs lands, if they are in
fact doing so. The peculiar nature of these conditions, it seems to us, makes it
imperative and necessary in the administration of justice that the survey should
have been ordered and should be made.
It appearing that the circuit court is not exceeding its jurisdiction or
proceeding erroneously, the claim of irreparable injury need not be given
consideration. It is only when the inferior court is acting erroneously, and great
or irreparable damage will result, and there is no adequate remedy by appeal,
that a writ of prohibition will issue restraining the other tribunal, as held by
authorities cited above.
The writ of prohibition is therefore denied.
Whole court sitting.
176
152
PROPERTY
153
154
PROPERTY
or fails to comply with any other condition upon which the permit was issued:
Provided, furthermore, That the Secretary cannot issue permits for the removal
of stalactites and stalagmites, and when it is established that the removal of the
resources will adversely affect the value of a significant cave: Provided, finally,
That caves located within a protected area shall be subjected to the provisions
of Republic Act No. 7586 or the National Integrated Protected Area System
Act of 1992;
(d) Call on any local government unit, bureau, agency, state university
or college and other instrumentalities of the government for assistance as the
need arises in the discharge of its functions;
(e) Enter into a memorandum of agreement with any local government
unit (LGU) for the preservation, development and management of cave or
caves located in their respective territorial jurisdiction;
(f) Tap the cooperation of peoples and non-governmental organizations as active partners in the conservations and protection of our caves and
cave resources; and
(g) Exercise other powers and perform other functions as may be
necessary to implement the provisions of this Act.
Sec. 6. Information Concerning the Nature and Location of Significant
Caves. Information concerning the nature and specific location of a
potentially significant cave shall not be made available to the public within
one (1) year after its discovery by the DENR, during which time the DENR
in coordination with the DOT, the National Museum, the National Historical
Institute, concerned LGUs the scientific community and the academe shall
assess its archaeological, cultural, ecological, historical and scientific value,
unless a written request is made and the Secretary determines that disclosure
of such information will further the purpose of this Act and will not create a
substantial risk of harm, theft or destruction on such cave.
The written request shall contain, among others, the following:
(a)
sought;
(b)
sought;
155
156
PROPERTY
Sec. 13. Separability Clause. If any provisions of this Act is subsequently declared unconstitutional, the remaining provisions shall remain in full
force and effect.
Sec. 14. Repealing Clause. Presidential Decree No. 1726-A is hereby
modified. Treasure hunting in caves shall be governed by the provisions of this
Act.
Except Presidential Decree No. 412 and Republic Act No. 4846, all other
laws, decrees, orders and regulations or parts thereof which are inconsistent with
any of the provisions of this Act are hereby repealed or amended accordingly.
Sec. 15. Effectivity. This Act shall take effect fifteen (15) days following
its publication in two (2) national newspapers of general circulation.
[39.2.2]
If the finder of the hidden treasure is the owner of the land, building
or property on which it is found, the treasure shall belong to him.178 If
the finder is a third person, he is entitled to one-half of the treasure if he
is not a trespasser and the discovery of the treasure is only by chance;
otherwise, he shall not be entitled.179 The same rule shall apply even if
the land belongs to the State.180 However, if the thing found be of interest
to science or the Arts, the State may acquire them by paying just price,
whether the finder of the treasure is the owner of the property on which
it is found or a third person.181
[39.2.3] Rule on Treasure Hunting
157
158
PROPERTY
(2)
for treasure hunting in private lands 30% to the Government and 70% to be shared by the permit holder and the
landowner; and
(3)
for shipwreck/sunken vessel recovery 50% to the Government and 50% to the permit holder.
The air, like the sea, is by its nature incapable of private ownership,
except insofar as one may actually use it.187 While the airspace is a public
highway, it is obvious that if the landowner is to have full enjoyment of
the land, he must have exclusive control of the immediate reaches of
the enveloping atmosphere.188 Otherwise buildings could not be erected,
trees could not be planted, and even fences could not be run.189 However,
when it is said that man owns, or may own, to the heavens, that merely
means that no one can acquire a right to the space above him that will
limit him in whatever use he can make of it as a part of his enjoyment
of the land.190 In other words, the landowner owns at least as much of the
space above the ground as he can occupy or use in connection with the
land.191 To this extent his title to the air is paramount.192 No other person
can acquire any title or exclusive right to any space above him.193
To the extent that ones land includes air space above the land, any
unauthorized physical entry into that space is to be considered a trespass,
if done by a private person, or a case of taking of private property, if
done under governmental authority. Thus, in the case of United States
v. Causby,194 it was held that repeated flights at low levels directly over
private land may amount to a taking for which just compensation must
be paid to the landowner.
159
160
PROPERTY
This formula was never taken literally, but was a figurative phrase to
express the full and complete ownership of land and the right to whatever
superjacent airspace was necessary or convenient to the enjoyment of the
land.
In applying a rule of law, or construing a statute or constitutional provision,
we cannot shut our eyes to common knowledge, the progress of civilization,
or the experience of mankind. A literal construction of this formula will bring
about an absurdity. The sky has no definite location. It is that which presents
itself to the eye when looking upward; as we approach it, it recedes. There can
be no ownership of infinity, nor can equity prevent a supposed violation of an
abstract conception.
The appellants case, then, rests upon the assumption that as owners
of the soil they have an absolute and present title to all the space above the
earths surface, owned by them, to such a height as is, or may become, useful
to the enjoyment of their land. This height, the appellants assert in the bill, is
of indefinite distance, but not less than 150 feet. * * * This, then, is appellants
premise, and upon this proposition they rest their case. Such an inquiry was
never pursued in the history of jurisprudence until the occasion is furnished by
the common use of vehicles of the air.
We believe, and hold, that appellants premise is unsound. The question
presented is applied to a new status and little aid can be found in actual precedent.
The solution is found in the application of elementary legal principles. The first
and foremost of these principles is that the very essence and origin of the legal
right of property is dominion over it. Property must have been reclaimed from
the general mass of the earth, and it must be capable by its nature of exclusive
possession. Without possession, no right in it can be maintained.
The air, like the sea, is by its nature incapable of private ownership,
except insofar as one may actually use it. This principle was announced long
ago by Justinian. It is in fact the basis upon which practically all of our socalled water codes are based.
We own so much of the space above the ground as we can occupy or
make use of, in connection with the enjoyment of our land. This right is not
fixed. It varies with our varying needs and is co-extensive with them. The
owner of land owns as much of the space above him as he uses, but only so
long as he uses it. All that lies beyond belongs to the world.
When it is said that man owns, or may own, to the heavens, that merely
means that no one can acquire a right to the space above him that will limit him
in whatever use he can make of it as a part of his enjoyment of the land. To this
extent his title to the air is paramount. No other person can acquire any title or
exclusive right to any space above him.
161
Any use of such air or space by others which is injurious to his land, or
which constitutes an actual interference with his possession or his beneficial
use thereof, would be a trespass for which he would have remedy. But any
claim of the landowner beyond this cannot find a precedent in law, nor support
in reason.
It would be, and is, utterly impracticable and would lead to endless
confusion, if the law should uphold attempts of landowners to stake out, or
assert claims to definite, unused spaces in the air in order to protect some
contemplated future use of it. Such a rule, if adopted, would constitute a
departure never before attempted by mankind, and utterly at variance with the
reason of the law. If such a rule were conceivable, how will courts protect
the various landowners in their varying claims of portions of the sky? How
enforce a right of ejectment or restitution? Such a rule is not necessary for the
protection of the landowner in any right guaranteed him by the Constitution in
the enjoyment of his property. If a right like this were recognized and upheld
by the courts, it would cause confusion worse confounded. It is opposed to
common sense and to all human experience.
We cannot shut our eyes to the practical result of legal recognition of
the asserted claims of appellants herein, for it leads to a legal implication to
the effect that any use of airspace above the surface owner of land, without
his consent would be a trespass either by the operator of an airplane or a radio
operator. We will not foist any such chimerical concept of property rights upon
the jurisprudence of this country.
We now consider the allegation of the bill that appellees airplanes, in
landing, glide through the air, within a distance of less than 100 feet to the
surface of appellants land, or possibly to a distance within five feet thereof,
at one end of his tract. This presents another question for discussion. Whether
such close proximity to appellants land may constitute an impairment of his
full enjoyment of the same is a question of fact. If it does, he may be entitled
to relief in a proper case.
Appellants are not entitled to injunctive relief upon the bill filed here,
because no facts are alleged with respect to circumstances of appellants use of
the premises which will enable this court to infer that any actual or substantial
damage will accrue from the acts of the appellees complained of.
The case differs from the usual case of enjoining a trespass. Ordinarily,
if a trespass is committed upon land, the plaintiff is entitled to at least nominal
damages without proving or alleging any actual damage. In the instant case,
traversing the airspace above appellants land is not, of itself, a trespass at all,
but it is a lawful act unless it is done under circumstances which will cause
injury to appellants possession.
162
PROPERTY
163
barely to miss the tops of the trees and at times so close to the tops of the trees
as to blow the old leaves off. The noise is startling. And at night the glare from
the planes brightly lights up the place. As a result of the noise, respondents
had to give up their chicken business. As many as six to ten of their chickens
were killed in one day by flying into the walls from fright. The total chickens
lost in that manner was about 150. Production also fell off. The result was
the destruction of the use of the property as a commercial chicken farm.
Respondents are frequently deprived of their sleep and the family has become
nervous and frightened. Although there have been no airplane accidents on
respondents property, there have been several accidents near the airport and
close to respondents place. These are the essential facts found by the Court
of Claims. On the basis of these facts, it found that respondents property had
depreciated in value. It held that the United States had taken an easement over
the property on June 1, 1942, and that the value of the property destroyed and
the easement taken was $2,000.
The United States relies on the Air Commerce Act of 1926, 44 Stat.
568, 49 U.S.C. 171 et seq., 49 U.S.C.A. 171 et seq., as amended by the Civil
Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. 401 et seq., 49 U. S.C.A.
401 et seq. * * * It is, therefore, argued that since these flights were within
the minimum safe altitudes of flight which had been prescribed, they were an
exercise of the declared right of travel through the airspace. The United States
concludes that when flights are made within the navigable airspace without any
physical invasion of the property of the landowners, there has been no taking
of property. It says that at most there was merely incidental damage occurring
as a consequence of authorized air navigation. It also argues that the landowner
does not own super-adjacent airspace which he has not subjected to possession
by the erection of structures or other occupancy. Moreover, it is argued that
even if the United States took airspace owned by respondents, no compensable
damage was shown. Any damages are said to be merely consequential for
which no compensation may be obtained under the Fifth Amendment.
It is ancient doctrine that at common law ownership of the land extended
to the periphery of the universe Cujus est solum ejus est usque ad coelum.
But that doctrine has no place in the modern world. The air is a public highway,
as Congress has declared. Were that not true, every transcontinental flight
would subject the operator to countless trespass suits. Common sense revolts
at the idea. To recognize such private claims to the airspace would clog these
highways, seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only the public has
a just claim.
But that general principle does not control the present case. For the
United States conceded on oral argument that if the flights over respondents
164
PROPERTY
165
Reg. Cum. Supp., supra. Hence, the flights in question were not within the
navigable airspace which Congress placed within the public domain. If any
airspace needed for landing or taking off were included, flights which were so
close to the land as to render it uninhabitable would be immune. But the United
States concedes, as we have said, that in that event there would be a taking.
Thus, it is apparent that the path of glide is not the minimum safe altitude of
flight within the meaning of the statute. The Civil Aeronautics Authority has,
of course, the power to prescribe air traffic rules. But Congress has defined
navigable airspace only in terms of one of them the minimum safe altitudes
of flight.
We have said that the airspace is a public highway. Yet it is obvious that
if the landowner is to have full enjoyment of the land, he must have exclusive
control of the immediate reaches of the enveloping atmosphere. Otherwise
buildings could not be erected, trees could not be planted, and even fences
could not be run. The principle is recognized when the law gives a remedy
in case overhanging structures are erected on adjoining land. The landowner
owns at least as much of the space above the ground as the can occupy or use in
connection with the land. See Hinman v. Pacific Air Transport, 9 Cir., 84 F.2d
755. The fact that he does not occupy it in a physical sense by the erection of
buildings and the like is not material. As we have said, the flight of airplanes,
which skim the surface but do not touch it, is as much an appropriation of the
use of the land as a more conventional entry upon it. We would not doubt that
if the United States erected an elevated railway over respondents land at the
precise altitude where its planes now fly, there would be a partial taking, even
though none of the supports of the structure rested on the land. The reason is
that there would be an intrusion so immediate and direct as to subtract from the
owners full enjoyment of the property and to limit his exploitation of it. While
the owner does not in any physical manner occupy that stratum of airspace or
make use of it in the conventional sense, he does use it in somewhat the same
sense that space left between buildings for the purpose of light and air is used.
The super-adjacent airspace at this low altitude is so close to the land that
continuous invasions of it affect the use of the surface of the land itself. We
think that the landowner, as an incident to his ownership, has a claim to it and
that invasions of it are in the same category as invasions of the surface. * * *
The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable under the Fifth
Amendment. The airspace, apart from the immediate reaches above the land,
is part of the public domain. We need not determine at this time what those
precise limits are. Flights over private land are not a taking, unless they are
so low and so frequent as to be a direct and immediate interference with the
enjoyment and use of the land. We need not speculate on that phase of the
present case. For the findings of the Court of Claims plainly establish that
166
PROPERTY
there was a diminution in value of the property and that the frequent, low-level
flights were the direct and immediate cause. We agree with the Court of Claims
that a servitude has been imposed upon the land. * * *
The Court of Claims held, as we have noted, that an easement was taken.
But the findings of fact contain no precise description as to its nature. It is
not described in terms of frequency of flight, permissible altitude, or type of
airplane. Nor is there a finding as to whether the easement taken was temporary
or permanent. Yet an accurate description of the property taken is essential,
since that interest vests in the United States. United States v. Cress, supra., 243
U.S. 328, 329, 37 S.Ct. 385, 386, and cases cited. * * *
Since on this record it is not clear whether the easement taken is a
permanent or a temporary one, it would be premature for us to consider whether
the amount of the award made by the Court of Claims was proper.
The judgment is reversed and the cause is remanded to the Court of
Claims so that it may make the necessary findings in conformity with this
opinion.
Reversed.
Mr. Justice JACKSON took no part in the consideration or decision of
this case.
Mr. Justice BLACK, dissenting.
The Fifth Amendment provides that private property shall not be
taken for public use, without just compensation. The Court holds today that
the Government has taken respondents property by repeatedly flying Army
bombers directly above respondents land at a height of eighty-three feet where
the light and noise from these planes caused respondents to lose sleep and their
chickens to be killed. Since the effect of the Courts decision is to limit, by
the imposition of relatively absolute Constitutional barriers, possible future
adjustments through legislation and regulation which might become necessary
with the growth of air transportation, and since in my view the Constitution
does not contain such barriers, I dissent.
* * * It is inconceivable to me that the Constitution guarantees that the
airspace of this Nation needed for air navigation, is owned by the particular
persons who happen to own the land beneath to the same degree as they own
the surface below. 3 No rigid Constitutional rule, in my judgment, commands
that the air must be considered as marked off into separate compartments by
imaginary metes and bounds in order to synchronize air ownership with land
ownership. * * * Old concepts of private ownership of land should not be
introduced into the field of air regulation. I have no doubt that Congress will,
if not handicapped by judicial interpretations of the Constitution, preserve the
167
freedom of the air, and at the same time, satisfy the just claims of aggrieved
persons. The noise of newer, larger, and more powerful planes may grow
louder and louder and disturb people more and more. But the solution of the
problems precipitated by these technological advances and new ways of living
cannot come about through the application of rigid Constitutional restraints
formulated and enforced by the courts. What adjustments may have to be
made, only the future can reveal. It seems certain, however, the courts do not
possess the techniques or the personnel to consider and act upon the complex
combinations of factors entering into the problems. The contribution of courts
must be made through the awarding of damages for injuries suffered from the
flying of planes, or by the granting of injunctions to prohibit their flying. When
these two simple remedial devices are elevated to a Constitutional level under
the Fifth Amendment, as the Court today seems to have done, they can stand
as obstacles to better adapted techniques that might be offered by experienced
experts and accepted by Congress. Todays opinion is, I fear, an opening
wedge for an unwarranted judicial interference with the power of Congress to
develop solutions for new and vital and national problems. In my opinion this
case should be reversed on the ground that there has been no taking in the
Constitutional sense.
168
PROPERTY
and therefore, may require the property owners to apply for a Height
Clearance Permit if the proposed site of the building/structure is covered
by any restrictions.
(3) For properties far from the airport, they are subject to the
provisions of the National Building Code196 and local ordinances.
Chapter 2
RIGHT OF ACCESSION
GENERAL PROVISIONS
Art. 440. The ownership of property gives the right by accession
to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. (353)
40. Accession
[40.1] Definition and Concept
169
(2)
(3)
Art. 442. Natural fruits are the spontaneous products of the soil, and
the young and other products of animals.
170
PROPERTY
in usufruct
199
171
in antichresis
In our Civil Code, fruits are classified into: (1) natural; (2)
industrial, and (3) civil. It has been held that the term natural, industrial
and civil fruits are highly technical, and are authoritatively defined in
Article 442 of the Civil Code so that, therefore, there can be no question
as to the meaning which should be given them when they occur in a
decree entered by the court.202
[41.3.1]
Natural Fruits
There are two kinds of natural fruits,203 namely: (a) the spontaneous
products of the soil those that appear without the intervention of
human labor, such as the wild fruits in the forest, herbs, and common
Arts. 1654, 1676, par. 2, NCC.
Art. 2123, Civil Code.
202
Pamintuan v. Garcia, 39 Phil. 746.
203
Art. 442, par. 1, NCC.
200
201
172
PROPERTY
grass; and (b) the young and other products of animals, such as milk,
hair, wool, horn, hide, eggs, and animals dung or manure.
With respect to the natural fruit of the first kind, it is required that
the same must be spontaneous product of the soil. In other words, it is
necessary that there must be no human labor which has intervened in its
generation. If human labor intervenes in the production of the fruit, the
same is classified as an industrial fruit.
Trees which grew spontaneously on the soil and adhering thereto
are not considered as natural fruits in contemplation of the first
paragraph of Article 442 because they are themselves immovables.
Trees may, however, be exceptionally considered as fruits if they are
being exploited for an industry.204 In such a case, they are classified as
industrial fruits because human labor intervenes.
With regard to the natural fruit of the second kind, there may be a
situation where the young or offspring is a product of animals belonging
to different owners. Note that our Civil Code is silent with respect to
the ownership of the young if the male and female parents belonged
to different owners. There is no problem if the mating of the parentanimals is agreed upon by their respective owners and they provided for
the ownership of the offspring. In the absence of any agreement to settle
the ownership of the offspring, the rule is that the young belongs to the
owner of the female parent. This is the rule enunciated by the Supreme
Court in the early case of US v. Caballero205 in consonance with the
express provisions of the Partidas based on the maxim partus sequitur
ventrem the offspring follows the condition of the mother.206
[41.3.2]
Industrial Fruits
173
Civil Fruits
Civil fruits, under the Civil Code, refers to rents of building, the
price of leases of lands and other property and the amount of perpetual
or life annuity or other similar income.209 Civil fruits, therefore, are the
income or revenues derived from the property itself. Hence, a dividend,
whether in the form of cash or stock, is considered as civil fruit because
it is declared out of the profits of a corporation and not out of the capital
stock.210 But a bonus which is paid to the owner of a piece of land for
undertaking the risk of securing with his property a loan given to a
sugar central is not civil fruits of the mortgaged property since it is not
income derived from the property itself but a compensation for the risk
assumed by the owner.211
[41.4] Existence of Fruits, When Recognized
When does the law recognize the existence of fruits? This question
is answered by the provisions of Article 444 of the New Civil Code.
With respect to natural and industrial fruits, only those manifest
or born are considered as such.212 In relation to the offspring or young
of animals, they are deemed existing at the beginning of the maximum
period of gestation, this being the surest criterion of their existence in
the mothers womb.213 Hence, the offspring is already considered as a
natural fruit even during the time that it is inside the womb of its mother
3 Manresa, 6th ed., 191-192.
Art. 442, par. 3, NCC.
210
Bachrach v. Seifert, 87 Phil. 483; Orozco v. Araneta, 90 Phil. 399.
211
Bachrach Motor Co. v. Talisay-Silay Milling Co., 56 Phil. 117.
212
Art. 444, par. 1, NCC.
213
3 Manresa, 6th ed., 199, cited in II Caguioa, Civil Code, 1966 ed., 78.
208
209
174
PROPERTY
Article 443 applies only when the fruits are already harvested and
gathered since the article refers to persons who receives the fruits.
Hence, the article does not apply to a situation where the fruits are still
pending. At the same time, the article refers to a recipient who did not
incur the expenses for the production, gathering and preservation of
the fruits. This may happen only if the property was previously in the
possession of a possessor bad in faith but not if the possessor was in
good faith. Under the Civil Code, a possessor in good faith is entitled to
the fruits received by him before his possession is legally interrupted.217
Hence, he cannot be compelled by the owner to return whatever fruits
Ibid.
Ibid.
216
3 Manresa, 6th ed., 196.
217
Art. 544, par. 1, NCC.
214
215
175
176
PROPERTY
and because if the owner himself had made the expenses he would have
spent the same amount.221
Section 2. Right of Accession with Respect to
Immovable Property
Art. 445. Whatever is built, planted or sown on the land of another
and the improvements or repairs made thereon, belong to the owner of
the land, subject to the provisions of the following articles. (358)
Art. 446. All works, sowing, and planting are presumed made by the
owner and at his expense, unless the contrary is proved. (359)
177
178
PROPERTY
Building
223
II Tolentino, Civil Code, 107, cited in Songcuya v. Mr. & Mrs. Lim, CA-G.R. No. 57357,
Aug. 31, 2006.
224
II Caguioa, Civil Code, 1966 ed., 83.
225
Id.
179
Id., citing Lao Chit v. Security Bank & Trust Co., L-11028, April 17, 1959.
Gaboya v. Cui, 38 SCRA 85, 92 (1971).
228
Id.
229
Id.
230
Id.
231
Id.
226
227
180
PROPERTY
at his expense.232 Hence, the burden of proving that the works, sowing
and planting are not made by the landowner at his expense is incumbent
upon those who are alleging such fact. Hence, as a rule, whatever is
built, planted or sown on the land of another and the improvements or
repairs made thereon, belonged to the owner of the land.233 This rule,
however, is subject to the provisions of Articles 448 up to 456 upon
presentation of proof that the works, sowing or planting is not made by
the owner of the land nor made at his expense.
[44.3] Controversial Cases
232
233
181
(2)
(3)
(4)
182
PROPERTY
owner of the materials acted in good faith, the legal effects of such
a situation are determined by the provisions of Article 447. Applying
the provisions of Article 447 and the principles governing accesion
continua, the following are the legal effects of a situation where both
parties acted in good faith:
[i] Since the one responsible for the attachment or incorporation
(the landowner) acted in good faith, he is exonerated from punitive
liability and damages.
[ii] Being the owner of the principal (the land) and following the
principle of accesio cedit principali, the land owner is given the right to
appropriate what has been built, planted or sown but with the obligation
to indemnify the owner for the value of the materials234 following the
principle that no person should unjustly enrich himself at the expense
of another.
Instead of appropriating the materials, can the landowner choose
to return the same to its owner? Article 447 grants the right to demand
for the removal and return of the materials only to the owner of the
materials if such removal can be done without injury to the work
constructed or without the plantings, constructions or works being
destroyed. Notwithstanding the fact that the same right is not expressly
granted to the landowner, it is believed, however, that the landowner
may likewise choose to return the materials to its owner if removal is
possible without causing injury to the work constructed or without the
plantings, constructions or works being destroyed. In such a situation,
there is really no accesion continua. As discussed in supra 43.2, there
is accesion continua only if the union or attachment or the incorporation
of two or more things belonging to different owners to each other or
to one another is in such a way that they cannot be separated from
each other or from one another without causing substantial physical
or juridical injury to any one, to some, or to all of the things involved.
There being no accession, the provision of Article 447 limiting the
option of the landowner to the payment of the value of the materials
does not apply. On the contrary, there being no accession, the owners
of the things attached or joined retain ownership over their respective
properties.
234
[45.2.2]
183
Following the principle that the bad faith of one party is neutralized
by the bad faith of the other and, therefore, both should be considered as
having acted in good faith, the legal effects discussed in supra 45.2.1
shall likewise apply in the present situation.
But what constitutes good faith or bad faith on the part of the
landowner and the owner of the materials in the situation contemplated
in Article 447? The landowner is considered to have acted in good faith
if he honestly believed that the materials were his at the time that he
made use of them. If he was aware that he had no right to make use
of the materials at the time that he made use of them, he is considered
to have acted in bad faith. On the part of the owner of the materials,
he is considered to have acted in good faith if he was not aware that
his materials were being used by the landowner at the time of the
construction, planting or work. He came to know of it only after the
materials have already been used by the landowner. If he knew at the
time of the construction, planting or work that his materials were being
used by another but he did not object thereto, he is considered to have
acted in bad faith.
[45.2.3]
235
184
PROPERTY
This situation is not governed by Article 447 since the latter article
presumes that the owner of the materials is in good faith. Instead, what
applies, by analogy, are the provisions of Articles 455 and 449 to the
effect that the owner of the materials who acted in bad faith loses his
materials without any right whatsoever and is furthermore liable to the
landowner for damages.
Pacific Farms, Inc. v. Esguerra
30 SCRA 684 (1969)
From 1956 to 1957, Carried Lumber Company sold and delivered lumber
and construction materials to the Insular Farms, Inc. which the latter used in
the construction of six buildings at its compound in Bolinao, Pangasinan.
For failure of Insular Farms to pay the full purchase price, Carried Lumber
instituted in October 1958 a civil case against Insular Farms for the recovery
of the unpaid balance. In 1961, the trial court rendered judgment in favor of
Carried Lumber. Insular Farms did not appeal. In 1962, Carried Lumber levied
upon six buildings in Bolinao, Pangasinan. At this point, Pacific Farms, Inc.
filed a third-party claim, asserting ownership over the levied buildings which
it had allegedly acquired from Insular Farms by virtue of a deed of absolute
sale executed sometime in March 1958. The sheriff proceeded, however, with
the public auction and eventually sold the buildings to Carried Lumber as the
highest bidder. Thereafter, Pacific Farms filed a complaint against Carried
Lumber and the sheriff for the nullification of the auction and for damages. The
trial court, after trial, rendered judgment annulling the levy and the certificate
of sale. Carried Lumber appealed from said judgment alleging, inter alia,
that there exists a materialmans lien over the six buildings in its favor. In
resolving the controversy, the Supreme Court opted not to rule on the issue of
the materialmans lien but applied by analogy the rules of accession, thus
236
185
186
PROPERTY
187
(2)
(3)
(4)
Article 448 of the New Civil Code governs the situation where
both the landowner and the builder, planter or sower (who is at the
same time the owner of the materials) acted in good faith. However, this
article applies only when the builder, planter or sower believes he had
the right so to build, plant or sow because he thinks he owns the land
or believes himself to have a claim of title.237 To be deemed a builder
in good faith, it is essential that a person asserts title to the land on
which he builds, i.e., it is essential that he be a possessor in concept of
237
Floreza v. Evangelista, 96 SCRA 130, 136 (1980); citing Alburo v. Villanueva, 7 Phil.
277 (1907); Quemuel v. Olaes, 1 SCRA 1159 (1961); Racaza v. Susana Realty, Inc., 18 SCRA
1172 (1966).
188
PROPERTY
owner and that he be unaware that there exists in his title or mode of
acquisition any flaw which invalidates it.238
However, as already previously intimated, the concept of builder
in good faith or bad faith presupposes ownership in another.239 If a
person builds on his own land with his own materials, he is not merely
a builder in good faith he is a builder-owner.
Pershing Tan Queto v. CA
148 SCRA 54 (1987)
In this case, a parcel of land was acquired by the spouses Juan and
Restituta Pombuena from the latters mother through onerous title (sale).
Thereafter, Juan filed for himself and his co-owner Restituta an application for
a Torrens title over the land. Subsequently, a decision was promulgated in the
cadastral proceedings pronouncing Juan (married to Restituta) as the owner of
the land. Some years after, a contract of lease over the land was entered into
between Pershing Tan Queto and Restituta (with the consent of Juan) for a
period of ten years. After the expiration of the lease, Juan and Restituta sued
Pershing for unlawful detainer. In the meantime, an Original Certificate of
Title was issued in the name of Juan (married to Restituta) as a consequence
of the cadastral case. During the pendency of the ejectment case, Juan entered
into a barter agreement with Pershing whereby the latter became the owner
of the leased premises, and the spouses Juan and Restituta in turn became the
owners of a parcel of land with improvements previously owned by Pershing.
Subsequently, Pershing constructed a concrete building on the property
previously owned by Juan and Restituta. The construction of the building was
without any objection on the part of Restituta. Later, however, Restituta sued
both Juan and Pershing for reconveyance of title over the disputed land, for the
annulment of the barter, and for recovery of the land with damages. One of the
issues that crop up in the case was whether Pershing is a builder in good faith
or in bad faith. The Supreme Court ruled that he is neither a builder in good
faith nor a builder in bad faith. The Court explained
(2) Was Tan Queto a possessor and builder in good faith or
in bad faith?
Even assuming that despite registration of the lot as conjugal,
Tan Queto nursed the belief that the lot was actually RESTlTUTAs
(making him in bad faith), still RESTITUTAs failure to prohibit
238
Mercado v. CA, 162 SCRA 75, 85 (1988); cited in Manotok Realty, Inc. v. Tecson, 164
SCRA 587, 592 (1988).
239
Pershing Tan Queto v. CA, 148 SCRA 54 (1987).
189
190
PROPERTY
Good faith consists in the belief of the builder that the land
he is building on is his and his ignorance of any defect or flaw in
his title. And as good faith is presumed, petitioner has the burden
of proving bad faith on the part of Kee.
At that time he built improvements on lot 8, Kee believed
that said lot was what he bought from petitioner. He was not aware
that the lot delivered to him was not lot 8. Thus, Kees good faith.
Petitioner failed to prove otherwise.
Baltazar v. Caridad
17 SCRA 460 (1966)
In this case, the trial court rendered a decision in a cadastral proceeding
awarding Lot No. 8864 to spouses Julio Baltazar and Constancia Valencia
as their conjugal partnership property. Said decision having become final,
the corresponding decree was issued on July 12, 1941, and pursuant thereto,
said lot was registered in the names of the applicant spouses under Original
Certificate of Title No. O-1445. In the meanwhile, Julio Baltazar died. In 1961,
his surviving wife and children filed a motion in the cadastral case for writ
of possession against Silvina Caridad and her daughter, Eduarda Caridad,
who had been in possession of the southern portion of Lot No. 8864 since
1939, while the cadastral case involving the lot was pending before the trial
court, and before the decision and the corresponding decree issued in 1941.
The Caridads refused to remove their houses from the southern portion of Lot
No. 8864 insisting that they are builders in good faith and, as such, they are
accorded rights under article 448 of the new Civil Code. The houses were built
in 1958 and 1959. In debunking the contention of the Caridads, the Court
explained
Appellants can not be regarded as builders in good faith
because they are bound by the 1941 decree of registration that
obligated their parents and predecessors-in-interest. Good faith
must rest on a colorable right in the builder, beyond a mere
stubborn belief in ones title despite judicial adjudication. The
fact that in 1959 appellants demolished and replaced their old house
with new and bigger ones cannot enervate the rights of the registered
owners. Otherwise, the rights of the latter to enjoy full possession
of their registered property could be indefinitely defeated by an
unsuccessful opponent through the simple subterfuge of replacing
his old house with a new one from time to time.
[47.1.2]
191
Article 448 applies only to a case where one builds on land in the
belief that he is the owner thereof and it does not apply where ones
only interest in the land is that of a lessee under a rental contract.240 As
ruled by the Court in Lopez, Inc. v. Phil. and Eastern Trading Co.,241
the principle of possessor in good faith refers only to a party who
occupies or possess property in the belief that he is the owner thereof
and said good faith ends only when he discovers a flaw in his title so
as to reasonably advise or inform him that after all he may not be the
legal owner of said property. It cannot apply to a lessee because as
such lessee he knows that he is not the owner of the leased premises.
Neither can he deny the ownership or title of his lessor. A lessee who
introduces improvements in the leased premises, does so at his own risk
in the sense that he cannot recover their value from the lessor, much less
retain the premises until such reimbursement.242
In a plethora of cases,243 the Supreme Court has held that Article
448 of the New Civil Code, in relation to Article 546 of the same Code,
which allows full reimbursement of useful improvements and retention
of the premises until reimbursement is made, applies only to a possessor
in good faith, i.e., one who builds on land with the belief that he is the
owner thereof. It does not apply where ones only interest is that of
a lessee under a rental contract; otherwise, it would always be in the
power of the tenant to improve his landlord out of his property.244
The law applicable to the lessee who introduced improvement
on the leased premises is Article 1678 of the New Civil Code, which
provides:
Art. 1678. If the lessee makes, in good faith, useful
improvements which are suitable to the use for which the
lease is intended, without altering the form or substance
Bulacanag v. Francisco, 122 SCRA 498, 502 (1983).
98 Phil. 348.
242
Bulacanag v. Francisco, supra.
243
Alburo v. Villanueva, 7 Phil. 277, 280 (1907) (referring to the provisions of the Old Civil
Code); Racaza v. Susana Realty, Inc., supra note 17, at 1177-1178; Bulacanag v. Francisco, Ibid.;
Gabrito v. Court of Appeals, 167 SCRA 771, 778-779 (1988); Cabangis v. Court of Appeals, 200
SCRA 414, 419-421 (1991); Heirs of the late Jaime Binuya v. Court of Appeals, 211 SCRA 761,
766 (1992).
244
Geminiano v. CA, 259 SCRA 344 (1996).
240
241
192
PROPERTY
Ibid.
Imperial Insurance, Inc. v. Simon, 14 SCRA 855.
193
names. After the expiration of the lease in 1985, the petitioners mother refused
to accept the monthly rentals. It turned out that the lot in question was the
subject of a suit, which resulted in its acquisition by one Maria Lee in 1972.
In 1982, Lee sold the lot to Lily Salcedo, who in turn sold it in 1984 to the
spouses Agustin and Ester Dionisio. In 1992, the Dionisio spouses executed a
Deed of Quitclaim over the said property in favor of the petitioners. As such,
the lot was registered in the latters names. In 1993, the petitioners filed an
ejectment case against Mary Nicolas. The issue in this case is whether the
lessees were builders in good faith and entitled to reimbursement of the value
of the houses and improvements. The Supreme Court ruled in the negative. The
Court explained
Being mere lessees, the private respondents knew that their
occupation of the premises would continue only for the life of the
lease. Plainly, they cannot be considered as possessors nor builders
in good faith.
In a plethora of cases (Alburo v. Villanueva, 7 Phil. 277, 280
[1907] referring to the provisions of the Old Civil Code; Racaza
v. Susana Realty, Inc., supra., note 17, at 1177-1178; Bulacanag
v. Francisco, 122 SCRA 498, 502 [1983]; Gabrito v. Court of
Appeals, 167 SCRA 771, 778 779 [1988]; Cabangis v. Court of
Appeals, 200 SCRA 414, 419-421 [1991]; Heirs of the late Jaime
Binuya v. Court of Appeals, 211 SCRA 761, 766 [1992]), this Court
has held that Article 448 of the Civil Code, in relation to Article
546 of the same Code, which allows full reimbursement of useful
improvements and retention of the premises until reimbursement
is made, applies only to a possessor in good faith, i.e., one who
builds on land with the belief that he is the owner thereof. It does
not apply where ones only interest is that of a lessee under a rental
contract; otherwise, it would always be in the power of the tenant
to improve his landlord out of his property.
Anent the alleged promise of the petitioners to sell the lot
occupied by the private respondents house, the same was not
substantiated by convincing evidence. Neither the deed of sale over
the house nor the contract of lease contained an option in favor of
the respondent spouses to purchase the said lot. And even if the
petitioners indeed promised to sell, it would not make the private
respondents possessors or builders in good faith so as to be covered
by the provisions of Article 448 of the Civil Code. The latter cannot
raise the mere expectancy of ownership of the aforementioned
lot because the alleged promise to sell was not fulfilled nor its
existence even proven. The first thing that the private respondents
194
PROPERTY
should have done was to reduce the alleged promise into writing,
because under Article 1403 of the Civil Code, an agreement for the
sale of real property or an interest therein is unenforceable, unless
some note or memorandum thereof be produced. Not having taken
any steps in order that the alleged promise to sell may be enforced,
the private respondents cannot bank on that promise and profess
any claim nor color of title over the lot in question.
There is no need to apply by analogy the provisions of Article
448 on indemnity as was done in Pecson v. Court of Appeals (244
SCRA 407 [1995]), because the situation sought to be avoided and
which would justify the application of that provision, is not present
in this case. Suffice it to say, a state of forced co-ownership would
not be created between the petitioners and the private respondents.
For, as correctly pointed out by the petitioners, the rights of the
private respondents as lessees are governed by Article 1678 of the
Civil Code which allows reimbursement to the extent of one-half
of the value of the useful improvements.
It must be stressed, however, that the right to indemnity
under Article 1678 of the Civil Code arises only if the lessor opts
to appropriate the improvements. Since the petitioners refused to
exercise that option, the private respondents cannot compel them
to reimburse the one-half value of the house and improvements.
Neither can they retain the premises until reimbursement is
made. The private respondents sole right then is to remove the
improvements without causing any more impairment upon the
property leased than is necessary.
Sps. Lacap v. Ong Lee
G.R. No. 142131, December 11, 2002
In this case, a certain Facundo mortgaged two parcels of land to Monte
de Piedad Savings Bank. In 1981, the spouses Lacap assumed to pay Facundos
mortgage obligation to the bank. Due to their failure to pay their obligation to
the bank, the latter foreclosed on the mortgage. During the auction sale, the
bank emerged as the highest bidder and title passed on to it. The bank, however,
allowed the spouses to stay in the premises as lessees paying a monthly rental.
The spouses thereafter introduced improvements thereon after relying on the
banks assurance that the property would be sold back to them. In 1996, when
the spouses tried to pay their monthly rental, the bank refused to accept the
payment inasmuch as the property had already been sold to another person.
When the spouses offered to buy the property, the bank turned down their offer.
Sometime thereafter, the spouses received a letter demanding that they vacate
195
the premises because it was already owned by Ong Lee. The spouses instituted
a civil case against Ong Lee for cancellation of sale and damages. Ong Lee,
on the other hand, filed a complaint for unlawful detainer. May the spouses be
considered as a builder in good faith pursuant to Article 448 of the Civil Code?
The Supreme Court said no. The Court explained
In the event that their first assigned error is not resolved
in their favor, the petitioner spouses assert that their right to be
indemnified for the improvements they introduced should be based
on Article 448 of the Civil Code which provides that:
Art. 448. The owner of the land on which
anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own
the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 548, or to
oblige the one who built or planted to pay the price
of the land, and the one who sowed, the proper rent.
However, the builder or planter cannot be obliged to
buy the land if its value is considerably more than
that of the building or trees. In such case, he shall
pay reasonable rent, if the owner of the land does not
choose to appropriate the building or trees after proper
indemnity. The parties shall agree upon the terms of
the lease and in case of disagreements the courts shall
fix the terms thereof.
Article 546 of the Civil Code provides that builders in
good faith are entitled to reimbursement for necessary and useful
expenses, with right of retention in both cases. The petitioners insist
that they should be treated as builders in good faith inasmuch as
they stepped into the shoes of Victor Facundo, the former ownermortgagor, when the latter assigned to them the obligation to pay
the bank the balance due on the mortgage. Since then, they occupied
the subject property and introduced improvements thereon. They
contend that they were not lessees and paid no rentals thereon.
We do not think so.
Article 528 of the Civil Code provides that possession in
good faith continues to subsist until facts exist which show that the
possessor is already aware that he wrongfully possesses the thing.
Although, in the beginning, the petitioners were made to believe
that they had a claim of title over the said property by assuming
the mortgage and possessing the subject property, all this changed
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PROPERTY
Article 448 of the New Civil Code cannot apply where a co-owner
builds, plants or sows on the land owned in common for then he did
197
not build, plant or sow upon land that exclusively belongs to another
but of which he is a co-owner. The co-owner is not a third person
under the circumstances, and the situation is governed by the rules of
co-ownership.247 However, when the co-ownership is terminated by a
partition and it appears that the house of an erstwhile co-owner has
encroached upon a portion pertaining to another co-owner which was
however made in good faith, then the provisions of Article 448 should
apply to determine the respective rights of the parties.248
Spouses Del Campo v. Abesia
160 SCRA 379 (1988)
This case involves a parcel of land co-owned by the plaintiffs and
defendants in the proportion of 2/3 and 1/3 each, respectively. An action for
partition was filed by plaintiffs in the CFI of Cebu. The trial court appointed
a commissioner in accordance with the agreement of the parties. The said
commissioner conducted a survey, prepared a sketch plan and submitted a
report to the court, recommending that the property be divided into two lots:
lot 1161-A with an area of 30 square meters for plaintiffs and lot no-1161-B
for the defendants with an area of 15 square meters. The houses of plaintiffs
and defendants were surveyed and shown on the sketch plan. The house of
defendants occupied the portion of lot 1161-A of plaintiffs. The parties
manifested their conformity to the report and asked the trial court to finally
settle and adjudicate who among the parties should take possession of the 5
square meters of the land in question. The trial court thereafter rendered a
decision which states that since Article 448 cannot be applied to a case where
one has built, planted or sown on the land owned in common, the defendants
should remove and demolish, at their expense, the part of their house which
encroached upon the land of the plaintiffs. The defendants appealed from said
decision. On appeal, the Supreme Court held that Article 448 of the Civil Code
is applicable. The Court explained
The court a quo correctly held that Article 448 of the Civil
Code cannot apply where a co-owner builds, plants or sows on the
land owned in common for then he did not build, plant or sow upon
land that exclusively belongs to another but of which he is a coowner. The co-owner is not a third person under the circumstances,
and the situation is governed by the rules of co-ownership.
247
248
198
PROPERTY
199
aforesaid land, allotting 133.5 square meters or 2/8 thereof to Juan and Isidro,
and giving the remaining portion with a total area of 266.5 square meters
to Florencio. However, no actual partition was effected. In 1978, Florencio
instituted a complaint for recovery of possession of real property against Juan
and Isidro alleging that the area occupied by the two houses built by Juan and
Isidro exceeded the 133.5 square meters previously allotted to them by the trial
court. When the property was surveyed upon the agreement of the parties, it
was disclosed that the house of Juan occupied 42 square meters while that of
Isidro occupied 59 square meters of Florencios land or a total of 101 square
meters. The trial court applied article 448 of the Civil Code in resolving the
conflicting rights of the parties, which decision was affirmed by the Court of
Appeals. Florencio appealed to the Supreme Court contending that the CA
erred in applying Article 448 of the Civil Code since this article contemplates
a situation wherein the land belongs to one person and the thing built, sown or
planted belongs to another. In holding that Article 448 applies in this particular
case, the Supreme Court explained
Whether or not the provisions of Article 448 should apply
to a builder in good faith on a property held in common has been
resolved in the affirmative in the case of Spouses del Campo v.
Abesia (160 SCRA 379 [1988]) wherein the Court ruled that:
The court a quo correctly held that Article 448
of the Civil Code cannot apply where a co-owner
builds, plants or sows on the land owned in common
for then he did not build, plant or sow upon land that
exclusively belongs to another but of which he is a
co-owner. The co-owner is not a third person under
the circumstances, and the situation is governed by the
rules of co-ownership.
However, when, as in this case, the ownership
is terminated by the partition and it appears that the
home of defendants overlaps or occupies a portion
of 5 square meters of the land pertaining to plaintiffs
which the defendants obviously built in good faith,
then the provisions of Article 448 of the New Civil
Code should apply. Manresa and Navarro Amandi
agree that the said provision of the Civil Code may
apply even when there is a co-ownership if good faith
has been established.
In other words, when the co-ownership is terminated by a
partition and it appears that the house of an erstwhile co-owner has
encroached upon a portion pertaining to another co-owner which
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PROPERTY
was however made in good faith, then the provisions of Article 448
should apply to determine the respective rights of the parties.
Petitioners second assigned error is however well taken.
Both the trial court and the Appellate Court erred when they
peremptorily adopted the workable solution in the case of Grana
v. Court of Appeals (109 Phil. 260), and ordered the owner of the
land, petitioner Florencio, to sell to private respondents, Juan and
Isidro, the part of the land they intruded upon, thereby depriving
petitioner of his right to choose. Such ruling contravened the
explicit provisions of Article 448 to the effect that (t)he owner
of the land xxx shall have the right to appropriate xxx or to oblige
the one who built xxx to pay the price of the land xxx. The law
is clear and unambiguous when it confers the right of choice upon
the landowner and not upon the builder and the courts.
Thus, in Quemuel v. Olaes (1 SCRA 1159 [1961]), the
Court categorically ruled that the right to appropriate the works or
improvements or to oblige the builder to pay the price of the land
belongs to the landowner.
As to the third assignment of error, the question on the price
to be paid on the land need not be discussed as this would be
premature inasmuch as petitioner Florencio has yet to exercise his
option as the owner of the land.
WHEREFORE, the decision appealed from is hereby
MODIFIED as follows: Petitioner Florencio Ignao is directed
within thirty (30) days from entry of judgment to exercise his
option to either appropriate as his own the portions of the houses
of Juan and Isidro Ignao occupying his land upon payment of
indemnity in accordance with Articles 546 and 548 of the Civil
Code, or sell to private respondents the 101 square meters occupied
by them at such price as may be agreed upon. Should the value of
the land exceed the value of the portions of the houses that private
respondents have erected thereon, private respondents may choose
not to buy the land but they must pay reasonable rent for the use
of the portion of petitioners land as may be agreed upon by the
parties. In case of disagreement, the rate of rental and other terms of
the lease shall be determined by the trial court. Otherwise, private
respondents may remove or demolish at their own expense the said
portions of their houses encroaching upon petitioners land.
[47.1.4]
201
202
PROPERTY
254
Supra.
203
204
PROPERTY
Manila (40 Phil. 717 [1920]) that the said provision was formulated in trying to adjust the rights of the owner and possessor in
good faith of a piece of land, to administer complete justice to
both of them in such a way as neither one nor the other may enrich
himself of that which does not belong to him. Guided by this precept, it is therefore the current market value of the improvements
which should be made the basis of reimbursement. A contrary
ruling would unjustly enrich the private respondents who would
otherwise be allowed to acquire a highly valued income-yielding
four unit apartment building for a measly amount. Consequently,
the parties should therefore be allowed to adduce evidence on the
present market value of the apartment building upon which the
trial court should base its finding as to the amount of reimbursement to be paid by the landowner.
The trial court also erred in ordering the petitioner to pay
monthly rentals equal to the aggregate rentals paid by the lessees of
the apartment building. Since the private respondents have opted to
appropriate the apartment building, the petitioner is thus entitled to
the possession and enjoyment of the apartment building, until he is
paid the proper indemnity, as well as of the portion of the lot where
the building has been constructed. This is so because the right to
retain the improvements while the corresponding indemnity is not
paid implies the tenancy or possession in fact of the land on which
it is built, planted or sown. The petitioner not having been so paid,
he was entitled to retain ownership of the building and, necessarily,
the income therefrom.
It follows, too, that the Court of Appeals erred not only in
upholding the trial courts determination of the indemnity, but also
in ordering the petitioner to account for the rentals of the apartment
building from 23 June 1993 to 23 September 1993.
WHEREFORE, the decision of the Court of Appeals in CAG.R. SP No. 32679 and the Order of 15 November 1993 of the
Regional Trial Court, Branch 101, Quezon City in Civil Case No.
Q-41470 are hereby SET ASIDE.
The case is hereby remanded to the trial court for it to determine the current market value of the apartment building on the lot.
For this purpose, the parties shall be allowed to adduce evidence
on the current market value of the apartment building. The value
so determined shall be forthwith paid by the private respondents
to the petitioner otherwise the petitioner shall be restored to the
205
The Supreme Court ruled in the affirmative. The Court said We agree
that ERNESTO and wife are builders in good faith in view of the peculiar
circumstances under which they had constructed the RESIDENTIAL HOUSE.
As far as they knew, the LAND was owned by ERNESTOs mother-in-law
who, having stated they could build on the property, could reasonably expected
to later on give them the LAND.
(2) Can Sarmiento refuse either to pay for the building or to sell the
land and insist on the removal of the building?
NO. The owner of the building erected in good faith on a land owned by
another, is entitled to retain the possession of the land until he is paid the value
of his building, under Article 453 (now Article 546). The owner of the land,
upon the other hand, has the option, under Article 361 (now Article 448), either
to pay for the building or to sell his land to the owner of the building. But he
cannot, as respondents did here, refuse both to pay for the building and to sell
the land and compel the owner of the building to remove it from the land where
it is erected. He is entitled to such remotion only when, after having chosen to
sell his land, the other party fails to pay for the same.
206
PROPERTY
255
207
At p. 17.
At pp. 14-15.
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PROPERTY
have come to know of the intrusion in short, when both parties shall have
become aware of it. Only then will the occasion for exercising the option arise,
for it is only then that both parties will have been aware that a problem exists
in regard to their property rights.
[47.2] Good Faith of the Landowner
What then are the legal effects of a situation where both the
landowner and the builder, planter or sower (who is at the same time the
owner of the materials) acted in good faith? Article 448 governs such a
situation. Under Article 448, the landowner, as owner of the principal
thing, is given two alternative rights: (1) to appropriate as his own the
works, sowing or planting after payment to the builder, planter or sower
of the necessary and useful expenses, and in the proper cases, expenses
for pure luxury or mere pleasure, incurred by the latter; or (2) to oblige
the one who built or planted to pay the price of the land, if the value of
the land is not considerably more than that of the building or trees, and
the one who sowed, the proper rent. The essential fairness of this codal
provision has been pointed out by Mme. Justice Ameurfina MelencioHerrera, citing Manresa and applicable precedents, in the case of Depra
v. Dumlao,258 to wit:
Where the builder, planter or sower has acted in good
faith, a conflict of rights arises between the owners, and it
becomes necessary to protect the owner of the improvements
without causing injustice to the owner of the land. In view of
the impracticality of creating a state of forced co-ownership,
the law has provided a just solution by giving the owner
of the land the option to acquire the improvements after
258
209
259
Ballatan v. CA, 304 SCRA 34, 46 (1999), citing Grana and Torralba v. CA, 109 Phil. 260,
263 (1960); Acuna v. Furukawa Plantation Co., 93 Phil. 957, 961 (1953); Aringo v. Arena, 14 Phil.
263, 269 (1909); also in Quemuel v. Olaes, 1 SCRA 1159 (1961).
260
Rosales v. Castelltort, 472 SCRA SCRA 144, 155 (2005).
261
Quemuel v. Olaes, supra., at p. 1163
262
Depra v. Dumlao, 136 SCRA 475, 483 (1985).
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PROPERTY
the judgment, the Quemel spouses filed a complaint against the Olaes spouses
seeking to reduce the monthly rental and to compel the Olaes spouses to sell
to them the portion of the lot where their house is erected. The Olaes spouses
filed a motion to dismiss the complaint on the ground of lack of cause of action
and res judicata. The trial court dismissed the complaint. The Quemel spouses
appealed to the Court of Appeals. The appeal, however, was certified to the
Supreme Court. The plaintiffs (Quemel spouses) claim that their cause of
action to compel the Olaes spouses to sell to them the land is based on Article
448 in connection with Article 546 of the New Civil Code. On this issue, the
Supreme Court held
On the assumption that the allegations of the second cause
of action are true, what would be the rights of the parties? The
plaintiffs claim that their second cause of action is based on Article
448 in connection with Article 546, of the New Civil Code. A
cursory reading of these provisions, however, will show that they
are not applicable to plaintiffs case. Under Article 448, the right to
appropriate the works or improvements or to oblige the one who
built or planted to pay the price of the land belongs to the owner
of the land. The only right given to the builder in good faith is the
right to reimbursement for the improvements; the builder, cannot
compel the owner of the land to sell such land to the former. This
is assuming that the plaintiffs are builders in good faith. But the
plaintiffs are not builders in good faith. xxx
San Diego v. Montesa
6 SCRA 207 (1962)
After trial in Civil Case No. 770 for recovery of a parcel of land filed
by Jose, Maria and Urbano, all surnamed de la Cruz, against Gil San Diego
and Rufino San Diego, the trial court rendered a decision. Under the dipositive
portion of said decision, the defendants and third-party plaintiffs were ordered
to vacate the land in question upon payment to them by the plaintiffs and
third-party defendants, within thirty days after the decision has become final,
of the sum of P3,500.00. The judgment became final and executory. The
defendants and third-party plaintiffs, who were in possession of the land in
litigation, moved to execute the portion of the decision which required the
payment of P3,500.00. The plaintiffs opposed the motion on the ground that,
as owners, they have the right to exercise the option to either pay the value of
improvements or demand reasonable rent if they do not choose to appropriate
the building.
We find the petition meritorious. The judgment affirmed by
the Court of Appeals, and now final, explicitly ordains the payment
211
Even as the option lies with the landowner, the grant to him, nevertheless, is preclusive.263 He must choose one.264 Hence, the landowner
cannot refuse to exercise either option and compel instead the owner of
the building or improvement to remove it from the land.265 The remedy
263
Rosales v. Castelltort, 472 SCRA 144 citing PNB v. De Jesus, 411 SCRA 557, 560
(2003).
PNB v. De Jesus, supra.
Id., Technogas Philippines Manufacturing Corp. v. CA, 268 SCRA 5, 17 (1997), citing
Ignacio v. Hilario, 76 Phil. 605 (1946) and Sarmiento v. Agana, 129 SCRA 122 (1984).
264
265
212
PROPERTY
of remotion is available only if and when the owner of the land chooses
to compel the builder to buy the land at a reasonable price but the latter
fails to pay such price.266 In a situation where the landowner is refusing
to exercise any of the options granted him under Article 448, the builder in good faith can, under the same Article, compel the landowner to
make a choice between appropriating the building by paying the proper
indemnity or obliging the builder to pay the price of the land.267
Technogas Philippines Manufacturing Corp. v. CA
268 SCRA 5 (1997)
In 1970, Technogas purchased a parcel of land, with all the buildings
and improvements including the wall existing thereon, from Pariz Industries,
Inc. Eduardo Uy, on the other hand, owns the adjoining parcel of land which
he acquired from a certain Enrile Antonio in 1970. In 1971, Uy purchased
another lot also adjoining Technogas land from a certain Miguel Rodriguez.
It turned out that portions of the buildings and wall bought by Technogas are
occupying portions of Uys adjoining land. Upon learning of the encroachment,
Technogas offered to buy from Uy that particular portion of Uys land occupied
by portions of its buildings and wall. Uy, however, refused the offer. Technogas
filed an action in court to compel Uy to sell the portions of Uys land occupied
by its buildings and wall. In resolving the respective rights and obligations of
the parties, the Supreme Court held
What then is the applicable provision in this case which
private respondent may invoke as his remedy: Article 448 or
Article 450 of the Civil Code?
In view of the good faith of both petitioner (Technogas)
and private respondent (Uy), their rights and obligations are to be
governed by Art. 448. The essential fairness of this codal provision
has been pointed out by Mme. Justice Ameurfina MelencioHerrera, citing Manresa and applicable precedents, in the case of
Depra v. Dumlao (136 SCRA 475, 483 [1985]) to wit:
Where the builder, planter or sower has acted in good faith,
a conflict of rights arises between the owners, and it becomes
necessary to protect the owner of the improvements without causing
injustice to the owner of the land. In view of the impracticality of
creating a state of forced co-ownership, the law has provided a just
266
267
solution by giving the owner of the land the option to acquire the
improvements after payment of the proper indemnity, or to oblige
the builder or planter to pay for the land and the sower to pay the
proper rent. It is the owner of the land who is authorized to exercise
the option, because his right is older, and because, by the principle
of accession, he is entitled to the ownership of the accessory thing.
(3 Manresa 213; Bernardo v. Bataclan, 37 Off. Gaz. 1382; Co Tao
v. Chan Chico, G.R. No. 49167, April 30, 1949; Article applied;
see Cabral, et al. v. Ibaez [S.C.] 52 Off. Gaz. 217; Marfori v.
Velasco, [CA] 52 Off. Gaz. 2050).
The private respondents insistence on the removal of the
encroaching structures as the proper remedy, which respondent
Court sustained in its assailed Decisions, is thus legally flawed.
This is not one of the remedies bestowed upon him by law. It would
be available only if and when he chooses to compel the petitioner
to buy the land at a reasonable price but the latter fails to pay such
price. (Ignacio v. Hilario, supra.) This has not taken place. Hence,
his options are limited to: (1) appropriating the encroaching
portion of petitioners building after payment of proper indemnity,
or (2) obliging the latter to buy the lot occupied by the structure.
He cannot exercise a remedy of his own liking.
Neither is petitioners prayer that private respondent be
ordered to sell the land the proper remedy. While that was dubbed
as the more workable solution in Grana and Torralba v. The
Court of Appeals, et al. (109 Phil. 260, 264 [1960]), it was not
the relief granted in that case as the landowners were directed to
exercise within 30 days from this decision their option to either
buy the portion of the petitioners house on their land or sell to said
petitioners the portion of their land on which it stand. Moreover,
in Grana and Torralba, the area involved was only 87 square
meters while this case involves 520 square meters. In line with the
case of Depra v. Dumlao, this case will have to be remanded to the
trial court for further proceedings to fully implement the mandate
of Art. 448. It is a rule of procedure for the Supreme Court to strive
to settle the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation.
Petitioner, however, must also pay the rent for the property
occupied by its building as prescribed by respondent Court from
October 4, 1979, but only up to the date private respondent serves
notice of its option upon petitioner and the trial court; that is, if
such option is for private respondent to appropriate the encroaching
213
214
PROPERTY
b)
If private respondent exercises the option to
oblige petitioner to pay the price of the land but the latter
rejects such purchase because, as found by the trial court,
the value of the land is considerably more than that of the
portion of the building, petitioner shall give written notice
of such rejection to private respondent and to the trial court
within fifteen (15) days from notice of private respondents
option to sell the land. In that event, the parties shall be given
a period of fifteen (15) days from such notice of rejection
within which to agree upon the terms of the lease, and give
the trial court formal written notice of the agreement and its
provisos. If no agreement is reached by the parties, the trial
court, within fifteen (15) days from and after the termination
of the said period fixed for negotiation, shall then fix the
terms of the lease provided that the monthly rental to be
fixed by the Court shall not be less than Two thousand pesos
(P2,000.00) per month, payable within the first five (5) days
of each calendar month. The period for the forced lease shall
not be more than two (2) years, counted from the finality
of the judgment, considering the long period of time since
1970 that petitioner has occupied the subject area. The rental
thus fixed shall be increased by ten percent (10%) for the
second year of the forced lease. Petitioner shall not make
any further constructions or improvements on the building.
Upon expiration of the two-year period, or upon default by
petitioner in the payment of rentals for two (2) consecutive
months, private respondent shall be entitled to terminate the
forced lease, to recover his land, and to have the portion of
the building removed by petitioner or at latters expense. The
rentals herein provided shall be tendered by petitioner to the
trial court for payment to private respondent, and such tender
shall constitute evidence of whether or not compliance was
made within the period fixed by the said court.
c)
In any event, petitioner shall pay private respondent an amount computed at Two thousand pesos (P2,000.00)
per month as reasonable compensation for the occupancy of
private respondents land for the period counted from October 4, 1979, up to the date private respondent serves notice
of its option to appropriate the encroaching structures; otherwise up to the actual transfer of ownership to petitioner or, in
case a forced lease has to be imposed, up to the commencement date of the forced lease referred to in the preceding
paragraph;
215
216
PROPERTY
d)
The periods to be fixed by the trial court in its
decision shall be non-extendible, and upon failure of the
party obliged to tender to the trial court the amount due to the
obligee, the party entitled to such payment shall be entitled
to an order of execution for the enforcement of payment of
the amount due and for compliance with such other acts as
maybe required by the prestation due the obligee.
PNB v. De Jesus
411 SCRA 557 (2003)
Petitioner Philippine National Bank disputes the decision handed down
by the Court of Appeals promulgated on 23 March 2001 in CA-G.R. CV No.
56001, entitled Generoso De Jesus, represented by his Attorney-in-Fact,
Christian De Jesus, versus Philippine National Bank. The assailed decision
has affirmed the judgment rendered by the Regional Trial Court, Branch
44, of Mamburao, Occidental Mindoro, declaring respondent Generoso de
Jesus as being the true and lawful owner of the 124-square-meter portion
of the land covered by Transfer Certificate of Title (TCT) No. T-17197 and
ordering petitioner bank to vacate the premises, to deliver possession thereof
to respondent, and to remove the improvement thereon.
It would appear that on 10 June 1995, respondent filed a complaint against
petitioner before the Regional Trial Court of Occidental Mindoro for recovery
of ownership and possession, with damages, over the questioned property. In
his complaint, respondent stated that he had acquired a parcel of land situated in
Mamburao, Occidental Mindoro, with an area of 1,144 square meters covered
by TCT No. T-17197, and that on 26 March 1993, he had caused a verification
survey of the property and discovered that the northern portion of the lot was
being encroached upon by a building of petitioner to the extent of 124 square
meters. Despite two letters of demand sent by respondent, petitioner failed and
refused to vacate the area.
Petitioner, in its answer, asserted that when it acquired the lot and
the building sometime in 1981 from then Mayor Bienvenido Ignacio, the
encroachment already was in existence and to remedy the situation, Mayor
Ignacio offered to sell the area in question (which then also belonged to
Ignacio) to petitioner at P100.00 per square meter which offer the latter claimed
to have accepted. The sale, however, did not materialize when, without the
knowledge and consent of petitioner, Mayor Ignacio later mortgaged the lot to
the Development Bank of the Philippines.
The trial court decided the case in favor of respondent declaring him to
be the rightful owner of the disputed 124-square-meter portion of the lot and
217
218
PROPERTY
219
for, elsewise stated, where the true owner himself is the builder of works on
his own land, the issue of good faith or bad faith is entirely irrelevant.
In fine, petitioner is not in a valid position to invoke the provisions of
Article 448 of the Civil Code. The Court commiserates with petitioner in
its present predicament; upon the other hand, respondent, too, is entitled to
his rights under the law, particularly after having long been deprived of the
enjoyment of his property. Nevertheless, the Court expresses hope that the
parties will still be able to come up with an arrangement that can be mutually
suitable and acceptable to them.
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No.
56001 is AFFIRMED. No costs.
SO ORDERED.
[47.4] Option to Appropriate
[47.4.1] What Indemnity Consists Of
220
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pay the present value of the house, a useful improvement, in the case
of De Guzman v. Dela Fuente.272
In Pecson v. Court of Appeals,273 the Supreme Court categorically
held that it is the current market value of the improvements which
should be made the basis of reimbursement. The Court explained
The objective of Article 546 of the Civil Code is to
administer justice between the parties involved. In this
regard, this Court had long ago stated in Rivera v. Roman
Catholic Archbishop of Manila (40 Phil. 717 [1920]) that the
said provision was formulated in trying to adjust the rights
of the owner and possessor in good faith of a piece of land,
to administer complete justice to both of them in such a way
as neither one nor the other may enrich himself of that which
does not belong to him. Guided by this precept, it is therefore
the current market value of the improvements which should
be made the basis of reimbursement. A contrary ruling would
unjustly enrich the private respondents who would otherwise
be allowed to acquire a highly valued income-yielding four
unit apartment building for a measly amount. Consequently,
the parties should therefore be allowed to adduce evidence
on the present market value of the apartment building upon
which the trial court should base its finding as to the amount
of reimbursement to be paid by the landowner.274
[47.4.3]
221
(1979).
Id.
Id.
282
Id., citing San Diego v. Hon. Montesa, 6 SCRA 208, 210 (1962).
283
Id.
284
Id.
280
281
222
PROPERTY
[47.4.4]
In the event the builder or the planter refuses to pay the price of
the land (on the assumption that said price is not considerably more than
the value of the building or trees), will the landowner automatically
become the owner of the improvements without paying any indemnity?
This question was answered in the negative by the Supreme Court in
the case of Filipinas Colleges, Inc. v. Garcia Timbang, et al.,289 where
the Court held
x x x. There is nothing in the language of these two
articles, 448 and 546, which would justify the conclusion of
appellants that, upon the failure of the builder to pay the value
of the land, when such is demanded by the landowner, the
latter becomes automatically the owner of the improvement
61 Phil. 428.
Art. 448, Civil Code.
287
Ibid.
288
Art. 448, Civil Code.
289
106 Phil. 247 (1959).
285
286
223
224
PROPERTY
the building or trees and the builder or planter fails to pay such price,
the parties may agree to assume the relation of lessor and lessee but
they must do so voluntarily.
Should the parties do not agree to leave things as they are and to
assume the relation of lessor and lessee, another remedy is suggested
in the case of Ignacio v. Hilario, supra, wherein the Court held that the
owner of the land is entitled to have the improvement removed when
after having chosen to sell his land to the other party, i.e., the builder
in good faith, fails to pay for the same.295 In this situation, the builders
right of retention provided in Article 546 is lost.296
A further remedy is indicated in the case of Bernardo v. Bataclan,
supra, where the Court approved the sale of the land and improvement
in a public auction applying the proceeds thereof first to the payment of
the value of the land and the excess, if any, was ordered to be delivered
to the owner of the house in payment thereof.297
[47.5.3]
225
land. In 1983, the son of Gonzalo Go, Winston, constructed his house on lot
no. 25. At the time of construction, Winston was not aware that he encroached
on a portion of land owned by Ballatan and the spouses Betty Martinez and
Chong Chy Ling. In 1985, Ballatan constructed her house on lot 24. During
the construction, she noticed that Go encroached on her property. Since then,
the parties had been aware of the encroachments on each others properties.
Apparently, it was the erroneous survey of the geodetic engineer commissioned
by the subdivision developer that caused these discrepancies. In determining
the rights of the parties, the Supreme Court applied Article 448 of the Civil
Code since all the parties had acted in good faith. The Court ruled
xxx petitioners (Ballatan and the spouses Betty Martinez and
Chong Chy Ling), as owners of Lot No. 24, may choose to purchase
the improvement made by respondents Go on their land, or sell to
respondents Go the subject portion. If buying the improvement is
impractical as it may render the Gos house useless, then petitioners
may sell to respondents Go that portion of Lot No. 24 on which
their improvement stands. If the Gos are unwilling or unable to
buy the lot, then they must vacate the land and, until they vacate,
they must pay rent to petitioners. Petitioners, however, cannot
compel respondents Go to buy the land if its value is considerably
more than the portion of their house constructed thereon. If the
value of the land is much more than the Gos improvement, then
respondents Go must pay reasonable rent. If they do not agree on
the terms of the lease, then they must go to court to fix the same.
In the event that petitioners elect to sell to respondents
Go the subject portion of their lot, the price must be fixed at the
prevailing market value at the time of payment. The Court of
Appeals erred in fixing the price at the time of taking, which is
the time the improvements were built on the land. The time of
taking is determinative of just compensation in expropriation
proceedings. The instant case is not for expropriation. It is not a
taking by the State of private property for a public purpose upon
payment of just compensation. This is a case of an owner who has
been paying real estate taxes on his land but has been deprived of
the use of a portion of this land for years. It is but fair and just to
fix compensation at the time of payment.
Article 448 and the same conditions above-stated also
apply to respondents Go as owners and possessors of their land
and respondent Li Ching Yao as builder of the improvement that
encroached on thirty-seven (37) square meters of respondents Gos
land.
226
PROPERTY
[47.5.4]
If good faith consists in the belief of the builder that the land he is
building on is his and his ignorance of any defect or flaw in his title,301 a
fortiori, the builder, planter or sower (who is at the same time the owner
of the materials) is deemed to have acted in bad faith if he knows that
the land is not his, or if he has knowledge of any flaw or defect in his
title or mode of acquisition of the land.
[48.2] Legal Consequences; Alternative Rights of the Landowner
If the landowner has acted in good faith, i.e., he was not aware
that something was being built, planted or sown on his land and he
learned about only after it was done, and the builder, planter or sower
(who is at the same time the owner of the materials) has acted in bad
faith, the landowner can exercise any of the following three rights and/
or remedies under Articles 449, 450 and 451:
[48.2.1]
Right to Appropriate
300
Ballatan v. CA, supra; Technogas Philippines Manufacturing Corp. v. CA, supra; Depra
v. Dumlao, supra; and Grana and Torralba v. CA, 109 Phil. 260 (1960).
301
Pleasantville Development Corp. v. CA, supra., at p. 18.
227
Right of Remotion
228
PROPERTY
xxx
xxx
xxx
xxx
229
230
PROPERTY
231
309
232
PROPERTY
233
parties acted in bad faith (Art. 448, in relation to Art. 453); and (4) if the
landowner acted in bad faith and the builder, planter or sower acted in
good faith (Art. 447, in relation to Art. 454).
[51.3.3]
Alluvion;
(2)
Avulsion;
(3)
(4)
Formation of island.
Art. 457. To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects of the current
of the waters. (366)
Art. 455, NCC.
Id.
313
Id.
311
312
234
PROPERTY
53. Alluvion
[53.1] Definition
Alluvium or alluvion has been defined as the gradual and imperceptible addition to the banks of rivers314 or as the increment which
lands abutting rivers gradually receive as a result of the current of the
waters.315 Alluvium is the soil deposited on the estate fronting the river
bank, while accretion is the process whereby the soil is deposited.316
[53.2] Riparian Owners Distinguished From Littoral Owners
The owner of the estate fronting the river bank is called the
riparian owner. Riparian owners are, strictly speaking, distinct from
littoral owners, the latter being owners of lands bordering the shore of
the sea or lakes or other tidal waters.317
[53.3] Rule on Alluvion
235
The reason behind the law giving the riparian owner the right
to any land or alluvion deposited by a river is to compensate him for
the danger of loss that he suffers because of the location of his land.320
If estates bordering on rivers are exposed to floods and other evils
produced by the destructive force of the waters and if by virtue of lawful
provisions, said estates are subject to encumbrances and various kinds
of easements, it is proper that the risk or danger which may prejudice
the owners thereof should be compensated by the right of accretion.321
[53.4] Requisites of Alluvion
First Requisite
Second Requisite
The requirement that the deposit should be due to the effect of the
current of the river is indispensable. This excludes from Article 457 of
the New Civil Code all deposits caused by human intervention. Alluvion
Republic v. CA, 132 SCRA 514 (1984).
Id.
322
Heirs of Emiliano Navarro v. IAC, supra., at p. 85; Vda. De Nazareno v. CA, 257 SCRA
589 (1996); Meneses v. CA, 246 SCRA 374 (1995); Reynante v. CA, 207 SCRA 794 (1992); Binalay v. Manalo, 195 SCRA 374 (1991).
323
Vda. De Nazareno v. CA, supra., at p. 597.
324
Binalay v. Manalo, supra., at p. 386.
320
321
236
PROPERTY
must be the exclusive work of nature.325 Hence, the riparian owner does
not acquire the additions to his land caused by special works expressly
intended or designed to bring about accretion.326 Thus, in Tiongco v.
Director of Lands, et al.,327 where the land was not formed solely by the
natural effect of the water current of the river bordering said land but is
also the consequence of the direct and deliberate intervention of man,
it was deemed a man-made accretion and, as such, part of the public
domain.328
Vda. de Nazareno v. CA
257 SCRA 598 (1996)
In this case, Antonio Nazareno, the predecessor-in-interest of
Desamparado Vda. De Nazareno, caused the approval by the Bureau of Lands
of the survey plan designated as Plan Csd-106-00571 with a view to perfecting
his title over the accretion area being claimed by him. The accretion was formed
by the dumping of boulders, soil and other filling materials on portions of the
Balacanas Creek and the Cagayan River bounding Nazarenos land. Before
the approved survey plan could be released to Nazareno, it was protested by
his lessees. Acting upon such protest, the Regional Director of the Bureau of
Lands ordered the amendment of the survey plan by segregating therefrom
the areas occupied by the lessees. Thereafter, the Director of Lands ordered
Nazareno to vacate the portions adjudicated to the lessees. Upon the death of
Antonio, Vda. De Nazareno went to court to question the action taken by the
Bureau of Lands. The resolution of this case hinges on the question of whether
or not the subject land is public land. Vda. De Nazareno claims that the subject
land is private land being an accretion on Antonio Nazarenos titled property,
applying Article 457 of the Civil Code. The Supreme Court HELD: Since the
subject land was the direct result of the dumping of sawdust by the Sun Valley
Lumber Co., the accretion was man-made, hence, Art. 457 does not apply.
Ergo, the subject land is part of the public domain.
Republic v. CA
132 SCRA 514 (1984)
In this case, the Tancincos were the registered owners of a parcel of
land bordering on the Meycauayan and Bocaue rivers. In 1973, they filed an
application for the registration of three lots adjacent to their fishpond property.
Republic v. CA, 132 SCRA 514, 520 (1984).
Id.
327
16 C.A. Rep. 211.
328
Cited in Vda. De Nazareno v. CA, supra., at pp. 598-599.
325
326
237
The Assistant Provincial Fiscal opposed the application. Upon the advise of the
Commissioner appointed by the court, the applicants withdrew their application
with respect to one of the lots. Thereafter, the lower court rendered a decision
granting the application. The Republic appealed to the Court of Appeals which
affirmed the decision of the lower court in toto. The Republic appealed to the
Supreme Court. The Republic claimed that there was no accretion to speak of
under Article 457 of the New Civil Code because what actually happened was
that the Tancincos simply transferred their dikes further down the river bed of
the Meycauayan River, and thus, if there was any accretion to speak of, it was
man-made and artificial and not the result of the gradual and imperceptible
sedimentation by the waters of the river. In ruling for the Republic, the Supreme
Court held
Article 457 of the New Civil Code provides:
To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects of the
current of the waters.
The above-quoted article requires the concurrence of three
requisites before an accretion covered by this particular provision
is said to have taken place. They are: (1) that the deposit be gradual
and imperceptible; (2) that it be made through the effects of the
current of the water; and (3) that the land where accretion takes
place is adjacent to the banks of rivers.
The requirement that the deposit should be due to the effect
of the current of the river is indispensable. This excludes from
Art. 457 of the New Civil Code all deposits caused by human
intervention. Alluvion must be the exclusive work of nature. In
the instant case, there is no evidence whatsoever to prove that
the addition to the said property was made gradually through
the effects of the current of the Meycauayan and Bocaue rivers.
We agree with the observation of the Solicitor General that it is
preposterous to believe that almost four (4) hectares of land came
into being because of the effects of the Meycauayan and Bocaue
rivers. The lone witness of the private respondents who happens
to be their overseer and whose husband was first cousin of their
father noticed the four hectare accretion to the twelve hectare
fishpond only in 1939. The respondents claim that at this point in
time, accretion had already taken place. If so, their witness was
incompetent to testify to a gradual and imperceptible increase to
their land in the years before 1939. However, the witness testified
that in that year, she observed an increase in the area of the original
fishpond which is now the land in question. If she was telling the
238
PROPERTY
239
Third Requisite
329
Guison v. City of Manila, (CA) 40 O.G. 3835; Ronquillo v. CA, 195 SCRA 433, 443
330
(1991).
240
PROPERTY
241
Laguna de Bay receded from the land in question but during rainy season the
land was flooded by its water. Inasmuch as under the Civil Code, the owners
of tenements bordering on ponds or lagoons do not acquire the land left dry by
the natural decrease of the waters, then it is of primary importance to determine
whether the body of water called the Laguna de Bay is naturally and legally
a lake or a lagoon. It was HELD: Laguna de Bay is a body of fresh water
formed in depressions of the earth; it contains fresh water coming from rivers
and brooks or springs, and is connected with Manila Bay by the Pasig River. It
is a lake. Lakes and their beds belong to the public domain. The bed of a lake
is the ground covered by its waters at their highest ordinary depth. The waters
of Laguna de Bay at their highest depth reach no further than the north eastern
boundary of the land in question and therefore said land is outside the bed,
and belongs to the defendant, who continues to be the owner of same, even if
accidentally inundated by the waters of the lake. Even if the land in question
had been formed by alluvion, it still belongs to the defendant as owner of the
land which borders on the lake.
[53.5] Right of Riparian Owner to Alluvium Is Ipso Jure
242
PROPERTY
Viajar v. CA, 168 SCRA 405, 413 (1988), citing Payatas Estate Improvement Co. v.
Tuazon, 53 Phil. 55 and C.N. Hodges v. Garcia, 109 Phil. 132.
337
3 Manresa, 6th ed., 239-240.
338
Government of the P.I. v. Colegio de San Jose, 53 Phil. 423.
339
Ibid.
336
243
54. Avulsion
[54.1] Definition
Avulsion has been defined as the accretion which takes place when
the current of a river, creek or torrent segregates a known portion of
land from an estate on its banks and transfers it to another estate.340 Or,
the accretion taking place in the estate on the bank of a river caused
not by the slow and constant action of the waters but by the violent and
sudden action of a torrent.341
[54.2] Comparison With Alluvion
244
PROPERTY
If trees are uprooted and carried away by the current of the waters
to another estate, the owner of the tree retains ownership of the same
but he is required to claim them within a period of six months.345 Note
that while avulsion with respect to a segregated portion of land requires
actual physical removal of the portion detached within two years, the
avulsion with respect to uprooted trees merely require the owner of the
tree to make a claim for the same within a period of six months.
If the uprooted trees have been transplanted by the owner of the
land upon which the trees may have been cast and said trees have taken
root in said land, then the owner of the trees, upon making the claim, is
required to refund the expenses incurred in gathering them or in putting
them in a safe place, including the expenses incurred by the owner of
the land for the preservation of the trees.346
Art. 459, NCC.
II Caguioa, Civil Code, 1966 ed., 103-14.
345
Art. 460, NCC.
346
Id.
343
344
245
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. (370a)
Art. 462. Whenever a river, changing its course by natural causes,
opens a new bed through a private estate, this bed shall become of public
dominion. (372a)
246
PROPERTY
351
352
247
Note, however, that the factual milieu in Ronquillo and Baes are
not the same. In Baes, the change in the course of the waters of the
creek was the result of a deliberate act on the part of the government
resulting in a prejudice to the interest of Baes because the man-made
canal totally occupied his property. In Ronquillo, however, there is no
showing that the change in the course of Estero Calubcub prejudiced
the Del Rosarios. Moreover, the change in Ronquillo was without the
intervention of the government. It was, in fact, due to the dumping of
garbage therein by the people of the surrounding neighborhood. Hence,
if the change in the course of the waters is due to a deliberate act of the
government resulting in prejudice to a private individual, the latter is
entitled to avail himself of the benefits under Article 461 of the Civil
Code.
Baes v. CA
224 SCRA 562 (1993)
In this case, a portion of the Tripa de Gallina creek was diverted to a manmade canal which totally occupied Lot 2958-B (with an area of 3,588 sq.m.)
belonging to Felix Baes. The diversion was resorted to by the government to
improve the flow of the Tripa de Gallina creek. Baes and his wife claim that
they became the owners of the old bed (which was eventually filled up by
soil excavated from Lot 2958-B) by virtue of Article 461. In agreeing to the
contention of the Baes spouses, the Supreme Court explained
If the riparian owner is entitled to compensation for the
damage to or loss of his property due to natural causes, there is
all the more reason to compensate him when the change in the
course of the river is effected though artificial means. The loss to
the petitioners of the land covered by the canal was the result of
a deliberate act on the part of the government when it sought to
improve the flow of the Tripa de Gallina creek. It was therefore
obligated to compensate the Baeses for their loss.
Ronquillo v. CA
195 SCRA 433 (1991)
In this case, Rosendo del Rosario was a registered owner of a parcel of
land at Sampaloc, Manila. Adjoining said lot is a dried-up portion of the old
Estero Calubcub occupied by Mario Ronquillo. The Del Rosarios claim that
long before the year 1930, Rosendo had been in possession of his parcel of land
including the adjoining dried-up portion of the old Estero Calubcub. Because
Ronquillo refused to vacate, the Del Rosarios filed an action in court to be
248
PROPERTY
declared the rightful owners of the dried-up portion. Ronquillo, on the other
hand, argued that the dried-up portion is part of the land of the public domain.
After trial, the lower court rendered a judgment in favor of the Del Rosarios,
which judgment was affirmed by the Court of Appeals. Hence, Ronquillo
appealed to the Supreme Court. The Supreme Court required the Solicitor
General to comment on behalf of the Director of Lands. In his comment, the
Solicitor General contends that the subject land is part of the public domain. It
was HELD: The change in the course of Estero Calubcub was caused, not
by natural courses, but due to the dumping of garbage therein by the people
surrounding the neighborhood. Hence, Art. 370 of the Old Civil Code (now
Art. 461) does not apply. It applies only if there is a natural change in the
course of the waters. Consequently, the dried-up portion of Estero Calubcub
should be considered as forming part of the land of the public domain.
[55.3] Extension of Ownership Ipso Jure
Once the river bed has been abandoned through the natural change
of the course of the waters, the owners of the land through which the
new river bed passes become the owners of the abandoned bed to the
extent provided by Article 461. There need be no act on their part to
subject the old river bed to their ownership, as it is subject thereto ipso
jure from the moment the mode of acquisition becomes evident, without
need of any formal act of acquisition.353 Such abandoned river bed had
fallen to the private ownership of the owner of the land through which
the new river bed passes even without any formal act of his will and
any unauthorized occupant thereof will be considered as a trespasser.354
The right in re to the principal is likewise a right in re to the accessory,
as it is a mode of acquisition provided by law, as the result of the right
of accretion.355 Since the accessory follows the nature of the principal,
there need not be any tendency to the thing or manifestation of the
purpose to subject it to our ownership, as it is subject thereto ipso jure
from the moment the mode of acquisition becomes evident.356 And the
failure of the owners of the land through which the new river bed passes
to register the accretion in their names and declare it for purposes of
taxation does not divest it of its character as a private property.357
353
Agne v. Director of Lands, 181 SCRA 793, 805 (1990), citing Sanchez v. Pascual, 11
Phil. 395 (1908); Pascual v. Sarmiento, et al., 37 Phil. 170 (1917).
354
Ibid.
355
Ibid.
356
Ibid., citing Villanueva v. Castro, 23 Phil. 54.
357
Ibid., at p. 806.
249
250
PROPERTY
If the river simply dries up and did not change its course or without
opening a new bed, it is clear that the provisions of Article 461 will
not apply. To whom will the dried up river bed belong? According to
Senator Tolentino, the dry bed will continue to remain property of public
dominion.362 Since rivers and their natural beds are property of public
dominion, in the absence of any provision vesting the ownership of the
dried up river bed in some other person, it must continue to belong to
the State.363
The foregoing opinion of Senator Tolentino was quoted with
approval by the Supreme Court in the case of Celestial v. Cachopero,364
where the Court held
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.365
[55.6] Status of New Bed
251
252
PROPERTY
253
(2)
(3)
If the island be more distant from one margin than from the
other, the owner of the nearer margin shall be the sole owner
thereof.
The reason for this article is the same as in alluvion in that the
owners of the bank nearer the islands are in the best position to cultivate
and attend to the exploitation of the same.369 In fact, no specific act of
possession over the accretion is required. If, however, the riparian
owner fails to assert his claim thereof, the same may yield to the adverse
possession of third parties, as indeed even accretion to land titled under
the Torrens system must itself be registered.370
Jagualing v. CA
194 SCRA 607 (1991)
Between the one who has actual possession of an island that forms in a
non-navigable and non-floatable river (who has been in possession of the same
for 15 years) and the owner of the land along the margins nearest to the island,
who has the better right thereto? Under Art. 465 of the Civil Code, the island
belongs to the owner of the land along the nearer margin as sole owner thereof.
His ownership, however, may yield to the adverse possession of third parties.
But in this case, the third parties were presumed to have notice of the status of
the owner of the land along the nearer margin as riparian owners, hence, they
did not qualify as possessors in good faith. They may acquire ownership of the
island only through uninterrupted adverse possession for a period of thirty (30)
years. By their own admission, they have been in possession of the property for
only about fifteen years. Hence, the island can properly be adjudicated to the
owner of the land along the nearer margin.
369
370
254
PROPERTY
255
adjunction or conjunction;
(2)
commixtion or confusion; or
(3)
specification
inclusion or engraftment;
(2)
soldadura or attachment;
(3)
tejido or weaving;
256
PROPERTY
(4)
(5)
escritura or writing.375
257
378
258
PROPERTY
259
(3) Third test if both things are of equal value, then the one
of greater volume is the principal and the other the accessory.382
However, in the case of painting, sculpture, writings, printed
matter, engraving and lithographs, the board, metal, stone, canvas,
paper or parchment shall be deemed the accessory thing.383
Art. 472. If by the will of the owners two things of the same or different kinds are mixed, or if the mixture occurs by chance, and in the latter
case the things are not separable without injury, each owner shall acquire
a right proportional to the part belonging to him, bearing in mind the value
of the things mixed or confused. (381)
Art. 473. If by the will of only one owner, but in good faith, two things
of the same or different kinds are mixed or confused, the rights of the
owners shall be determined by the provisions of the preceding article.
If the one who caused the mixture or confusion acted in bad faith,
he shall lose the thing belonging to him thus mixed or confused, besides
being obliged to pay indemnity for the damages caused to the owner of
the other thing with which his own was mixed. (382)
260
PROPERTY
261
59. Specification
[59.1] Specification, Explained
262
PROPERTY
263
395
Baricuatro v. CA, 325 SCRA 137 (2000), citing Vda. de Aviles v. Court of Appeals, 264
SCRA 473, 478 (1996); see also Divinagracia v. Cometa, 482 SCRA 648, 654 (2006) and Calacala,
et al. v. Republic of the Philippines, G.R. No. 154415, July 28, 2005.
396
Id., citing II Tolentino, Civil Code, 137.
397
Id., citing II Paras, Civil Code, 13th ed., 270.
398
154 SCRA 328, 348 (1987).
399
See also Seville v. National Development Company, 351 SCRA 112.
264
PROPERTY
265
one who has an equitable right or interest in the property may also file
an action to quiet title.408
[60.2.2]
Cloud on Title
266
PROPERTY
412
413
Vda. de Aviles v. CA, 264 SCRA 473; also in Titong v. CA, 278 SCRA 102.
Titong v. CA, supra., citing Vda. de Aviles v. CA, supra.
267
action where the sole issue is limited to whether the instrument, record, claim, encumbrance or proceeding involved
constitutes a cloud upon the petitioners interest or title in
and to said property. Such determination of boundaries is
appropriate in adversarial proceedings where possession or
ownership may properly be considered and where evidence
aliunde, other than the instrument, record, claim, encumbrance or proceeding itself, may be introduced. An action
for forcible entry, whenever warranted by the period prescribed in Rule 70, or for recovery of possession de facto,
also within the prescribed period, may be availed of by the
petitioners, in which proceeding the boundary dispute may
be fully threshed out.
The foregoing rule, however, is subject to qualification. As a
general rule, a cloud which may be removed by suit to quiet title is
not created by mere verbal or parol assertion of ownership of or an
interest in property.414 Where there is a written or factual basis for the
asserted right, the same will be sufficient.415 Thus, a claim of right based
on acquisitive prescription or adverse possession has been held to
constitute a removable cloud on title.416
[60.2.3] Deed, Claim, Etc. Must Be Invalid or Inoperative
Also, for an action for quieting of title to prosper the deed, claim,
encumbrance or proceeding that is being alleged as a cloud on plaintiffs
title must be shown to be in fact invalid or inoperative despite its prima
facie appearance of validity or legal efficacy.417 This requirement is clear
from the provision of Article 476.
[60.3] Prescription
414
Tandog, et al. v. Macapagal, et al., G.R. No. 144208, Sep. 11, 2007; citing II Tolentino,
Civil Code, 152.
415
Id.
416
Id.
417
Calacala, et al. v. Republic of the Philippines, supra.
418
Art. 477, NCC.
268
PROPERTY
419
Sapto v. Fabiana, 103 Phil. 683; Faja v. CA, 75 SCRA 441, 446 (1977); David v. Malay,
318 SCRA 711.
420
Pingol v. CA, 226 SCRA 118, 129-130; See also Faja v. CA, supra.
421
Mamadsual v. Moson, supra, 88.
422
See Chacon Enterprises v. CA, G.R. No. L-46418-19, Sept. 29, 1983.
423
See Gallar v. Husain, 20 SCRA 186.
424
Id.
269
the action; that even without the prayer for a specific remedy, proper
relief may nevertheless be granted by the court if the facts alleged in the
complaint and the evidence introduced so warrant.425
Chapter 4
RUINOUS BUILDINGS AND TREES
IN DANGER OF FALLING
Art. 482. If a building, wall, column, or any other construction is in
danger of falling, the owner shall be obliged to demolish it or to execute
the necessary work in order to prevent it from falling.
If the proprietor does not comply with this obligation, the administrative authorities may order the demolition of the structure at the expense of the owner, or take measures to insure public safety. (389a)
Art. 483. Whenever a large tree threatens to fall in such a way as to
cause damage to the land or tenement of another or to travellers over a
public or private road, the owner of the tree shall be obliged to fell and remove it; and should he not do so, it shall be done at his expense by order
of the administrative authorities. (390a)
Chacon Enterprises v. CA, supra, citing Ras v. Sua, L-23302, Sept. 25, 1968, 25 SCRA
153, 158-159, citing People v. Matondo, February 24, 1961; Cajefe v. Fernandez, Oct. 19, 1960;
Rosales v. Reyes, 25 Phil. 495; Ibaez de Baranueva v. Fuster, 29 Phil. 606; Cabigao v. Lim, 50
Phil. 844.
426
Case v. Board of Health, 24 Phil. 250.
425
270
PROPERTY
271
oOo
272
PROPERTY
62. In General
[62.1] Definition
Plurality of Subjects
272
273
274
PROPERTY
275
21
See Dela Cruz v. Cruz, 32 SCRA 307 (April 17, 1970); Umengan v. Butacan, 7 SCRA
311 (Feb. 28, 1963); Salatandol v. Retes, G.R. No. L-38120, June 28, 1988; Hernandez v. Quitain,
168 SCRA 92 (Nov. 29, 1988).
22
De Guia v. Court of Appeals, 413 SCRA 114, 124-125, Oct. 8, 2003, citing Si v. CA, 342
SCRA 653, Oct. 12, 2000.
23
Uy v. CA, 246 SCRA 703, 711, July 20, 1995.
24
Umengan v. Butacan, 7 SCRA 311, Feb. 28, 1963.
25
Salatandol v. Retes, 162 SCRA 568, June 28, 1988.
26
Vda. de Ape v. Court of Appeals, supra, 207.
27
City of Mandaluyong v. Aguilar, supra, p. 499.
28
267 SCRA 339, February 3, 1997; see also Del Campo v. Court of Appeals, 351 SCRA
1, February 1, 2001.
276
PROPERTY
277
29
278
PROPERTY
30
Art. 1767. By the contract of partnership two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits
among themselves.
Two or more persons may also form a partnership for the exercise of a profession.
(1665a)
31
Art. 1768, NCC.
32
Art. 1767, NCC.
33
Art. 494, 2nd par., NCC.
34
Art. 1830(5), NCC.
35
Art. 493, NCC.
36
Art. 1813, NCC.
279
By law: Examples:
(a)
(b)
280
PROPERTY
likewise prohibit the partition of the estate among the heirs for a period
not to exceed twenty (20) years.43
(4) By fortuitous event or chance: Co-ownership will arise if
two things of the same kind or different kinds are mixed by chance and
the things are not separable without injury.44
(5) By occupancy: As when two or more persons catch a wild
pig or get forest products45 or when a hidden treasure is accidentally
discovered by a stranger, who is not a trespasser, on the land of
another.46
[62.8] Rules Governing Co-Ownership
281
community shall primarily govern50 and the provisions of the Civil Code
on co-ownership shall apply in a suppletory manner.51 The applicability
of the provisions of the Civil Code on co-ownership to the regime of
absolute community is recognition that this regime is a special kind of
co-ownership.52 Under the provisions of the Civil Code on co-ownership,
it is provided that if the co-ownership is created by law, such kind of coownership shall be governed primarily by the special provisions of law
creating it and the provisions of the Civil Code on co-ownership shall
only apply in a suppletory manner.53
Art. 485. The share of the co-owners, in the benefits as well as in the
charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void.
The portions belonging to the co-owners in the co-ownership shall
be presumed equal, unless the contrary is proved. (393a)
282
PROPERTY
and lot in the amount of P900,000.00. They may agree in any manner
as to how much each shall contribute. They may agree, for example,
that Pedro shall contribute P450,000 (50%), Juan P225,000 (25%) and
Jose P225,000 (25%). Notwithstanding such manner of contribution,
the parties may nonetheless agree that their respective share in the coownership shall be equal. In the absent of such contrary agreement, it
is understood that the share of each co-owner shall be in proportion to
their respective contributions. The presumption of equal sharing does
not apply in this case since there is proof to the contrary.
[63.2] Determining the Share In Benefits and Charges
57
58
283
(1912).
284
PROPERTY
Pardell v. Bartolome
23 Phil. 450 (1912)
In this case, the sisters Matilde and Vicenta Ortiz (plaintiff) were coowners of a two-storey house designed as a dwelling. Matilde (defendant)
and her husband occupied the upper floor as their dwelling. The husband also
occupied the upper floor on the ground floor as an office while the other rooms
were rented as stores. Meanwhile, plaintiff and her husband were living abroad
and upon their return an accounting of rents was made to them. The question
arose as to whether or not defendants should pay rent for the upper floor
occupied by them as well as that portion occupied by the husband.
Ruling: With regard to that part occupied by Matilde as dwelling, no
rental can be collected inasmuch as she, being the co-owner, is entitled to use
the same. With respect, however, to that portion occupied by the husband,
Bartolome, the latter must pay one-half of the rentals which said quarters could
and should have produced had they have been rented to strangers, inasmuch as
he is not a co-owner of the property.
[64.3] Limitations on the Right to Use
285
agreement to lease the house, the co-owners can demand rent from the
co-owner who dwells in the house.68
The co-owners can either exercise an equal right to live in the
house, or agree to lease it. If they fail to exercise any of these options,
they must bear the consequences. It would be unjust to require the coowner to pay rent after the co-owners by their silence have allowed him
to use the property.69
In case the co-owners agree to lease a building owned in common,
a co-owner cannot retain it for his use without paying the proper rent.70
Moreover, where part of the property is occupied exclusively by some
co-owners for the exploitation of an industry, the other co-owners
become co-participants in the accessions of the property and should
share in its net profits.71
Aguilar v. Court of Appeals
227 SCRA 473 (1993)
In this case, the brothers Virgilio and Senen Aguilar purchased a house
and lot in 1968 for the use of their father. The brothers agreed that Senen
(respondent) shall assume the remaining obligation of the original owners
with the Social Security System in exchange for his possession and enjoyment
of the house together with their father. Since Virgilio (petitioner) was then
disqualified from obtaining a loan from SSS, the brothers agreed that the deed
of sale would be executed and the title registered in the meantime in the name
of Senen. After their father died in 1974, Virgilio demanded from Senen that
the latter vacate the house and that the property be sold and the proceeds thereof
divided among them. Because of the refusal of Senen to give in to Virgilios
demands, the latter filed in 1979 an action to compel the sale of the co-owned
property so that they could divide the proceeds between them. A question arose
as to whether or not Senen should pay rent from the time their father died in
1975. The Supreme Court held
We uphold the trial court in ruling in favor of petitioner,
except as to the effectivity of the payment of monthly rentals by
respondent as co-owner which we here declare to commence only
after the trial court ordered respondent to vacate in accordance
with its order of 26 July 1979.
Id.
Id., p. 128, citing Tolentino, Civil Code of the Philippines, Vol. II, 1992 ed.
70
Id.
71
Id.
68
69
286
PROPERTY
287
and the right to enjoy the possession jointly also ceased. Thereafter,
the continued stay of respondent and his family in the house
prejudiced the interest of petitioner as the property should have
been sold and the proceeds divided equally between them. To
this extent and from then on, respondent should be held liable for
monthly rentals until he and his family vacate.
De Guia v. Court of Appeals
413 SCRA 114 (2003)
The subject of the dispute in this case are two undivided parcels of land
used as a fishpond situated in Meycauayan, Bulacan. The property is registered
under the names of Primitiva Lejano and Lorenza Araniego under TCT No.
6358 of the Bulacan Register of Deeds, as follows: Primitiva Lejano (1/2
share) and Lorenza Araniego (1/2 share). The 1/2 undivided share of Lorenza
Araniego Abejo was acquired by her sole heir, Teofilo Abejo, through intestate
succession. Teofilo Abejo, in turn, sold this 1/2 undivided share to his son, Jose
Abejo, on November 22, 1983. The 1/2 undivided share of Primitiva Lejano,
on the other hand, was passed on to her heirs. Prior to the sale in favor of Jose
Abejo, the heirs of Primitiva Lejano entered into a lease contract with Manuel
De Guia in 1974 over the entire fishpond, with the knowledge and consent of
Teofilo Abejo. The lease contract was effective from 1974 to November 30,
1979. Subsequently, De Guia acquired the 1/2 undivided share of the heirs of
Primitiva Lejano. Thus, after the expiration of the lease contract in 1979, De
Guia remained in possession of the entire fishpond. On November 27, 1983,
Jose Abejo demanded from De Guia that the latter vacate the fishpond and pay
the back rentals. When De Guia refused, Abejo instituted on May 12, 1986 an
action for recovery of possession with damages against De Guia.
After trial, the trial court ruled that Abejo has the right to demand that
De Guia vacate and surrender an area equivalent to Abejos undivided share
in the fishpond. The trial court likewise ruled that pending partition, De Guia
should pay a reasonable amount as rental for the use of Abejos share in the
fishpond. Not satisfied with the decision of the trial court, De Guia filed an
appeal before the Court of Appeals. The Court of Appeals, however, sustained
the decision of the trial court. Thus, De Guia filed his appeal before the Supreme
Court.
In his appeal, De Guia contends, among others, that the trial and appellate
courts erred when they ordered the recovery of rent when the exact identity of
the portion in question had not yet been clearly defined and delineated. He
contends that an order to pay damages in the form of rent is premature before
partition. In denying his contention, the Supreme Court explained
288
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289
Article 487 of the New Civil Code provides that anyone of the
co-owners of an immovable may bring an action in ejectment. A coowner may thus bring an ejectment action without joining the other
co-owners, the suit being deemed instituted for the benefit of all.73 And
the term, action in ejectment, not only includes a suit of forcible entry
(detentacion) or unlawful detainer (desahucio),74 but all kinds of actions
for the recovery of possession, including an accion publiciana and a
reinvindicatory action.75
290
PROPERTY
However, if the action is for the benefit of the plaintiff alone who
claims to be the sole owner and entitled to the possession thereof, the
action will not prosper unless he impleads the other co-owners who are
indispensable parties.76 As noted by Former Supreme Court Associate
Justice Edgrado L. Paras [i]t is understood, of course, that the action
[under Article 487 of the Civil Code] is being instituted for all. Hence,
if the co-owner expressly states that he is bringing the case only for
himself, the action should not be allowed to prosper.77
In Baloloy v. Hular,78 for example, the respondent therein filed
a complaint for quieting of title claiming exclusive ownership of the
property, but the evidence showed that respondent has co-owners over
the property. In dismissing the complaint for want of respondents
authority to file the case, the Supreme Court held that
Under Article 487 of the New Civil Code, any of the
co-owners may bring an action in ejectment. This article
covers all kinds of actions for the recovery of possession,
including an accion publiciana and a reinvidicatory action.
A co-owner may bring such an action without the necessity
of joining all the other co-owners as co-plaintiffs because
the suit is deemed to be instituted for the benefit of all. Any
judgment of the court in favor of the co-owner will benefit
the others but if such judgment is adverse, the same cannot
prejudice the rights of the unimpleaded co-owners. If the
action is for the benefit of the plaintiff alone who claims
to be the sole owner and entitled to the possession thereof,
the action will not prosper unless he impleads the other coowners who are indispensable parties.
In this case, the respondent alone filed the complaint,
claiming sole ownership over the subject property and praying
that he be declared the sole owner thereof. There is no proof
that the other co-owners had waived their rights over the
subject property or conveyed the same to the respondent or
Baloloy v. Hular, supra, 91; also in Adlawan v. Adlawan, supra.
Paras, Civil Code of the Philippines Annotated, Vol. II, 1999 ed., p. 294, cited in Adlawan
v. Adlawan, supra, 286.
78
Supra.
76
77
291
such co-owners were aware of the case in the trial court. The
trial court rendered judgment declaring the respondent as
the sole owner of the property and entitled to its possession,
to the prejudice of the latters siblings. Patently then, the
decision of the trial court is erroneous.
Under Section 7, Rule 3 of the Rules of Court, the
respondent was mandated to implead his siblings, being coowners of the property, as parties. The respondent failed to
comply with the rule. It must, likewise, be stressed that the
Republic of the Philippines is also an indispensable party
as defendant because the respondent sought the nullification
of OCT No. P-16540 which was issued based on Free
Patent No. 384019. Unless the State is impleaded as partydefendant, any decision of the Court would not be binding on
it. It has been held that the absence of an indispensable party
in a case renders ineffective all the proceedings subsequent
to the filing of the complaint including the judgment. The
absence of the respondents siblings, as parties, rendered all
proceedings subsequent to the filing thereof, including the
judgment of the court, ineffective for want of authority to
act, not only as to the absent parties but even as to those
present.79
In Adlawan v. Adlawan,80 the Court likewise sustained the dismissal
of the complaint for ejectment on the ground that the suit was brought in
the name of the plaintiff alone and for his own benefit to the exclusion
of the other co-owners. In fact, the plaintiff therein did not recognize
the co-ownership and, in fact, vigorously asserted absolute and sole
ownership of the questioned lot.
The Adlawan and Baloloy cases must therefore be distinguished
from other cases where the Court upheld the right of a co-owner to file
a suit pursuant to Article 487 of the Civil Code. In Resuena v. Court of
Appeals,81 and Sering v. Plazo,82 for example, the co-owners who filed
the ejectment case did not represent themselves as the exclusive owner
At pp. 90-92.
Supra.
81
454 SCRA 42 (2005).
82
Supra.
79
80
292
PROPERTY
Any co-owner may file an action under Article 487 not only against
a third person, but also against another co-owner who takes exclusive
possession and asserts exclusive ownership of the property.85 In the latter
case, however, the only purpose of the action is to obtain recognition of
the co-ownership.86 The plaintiff cannot seek exclusion of the defendant
from the property because as co-owner he has a right of possession.87
In other words, the plaintiff cannot recover any material or determinate
part of the property.88 This is based on the principle that a co-owner has
no right to demand a concrete, specific or determinate part of the thing
owned in common because until division is effected his right over the
thing is represented only by an ideal portion.89 Such being the case, the
court cannot, in the action filed by a co-owner against another co-owner
under Article 487, proceed with the actual partitioning of the co-owned
property.90 Judicial or extra-judicial partition is still necessary to effect
such physical division.91
293
294
PROPERTY
295
296
PROPERTY
plaintiffs because the suit is deemed to be instituted for the benefit of all,
any adverse judgment cannot prejudice the rights of the unimpleaded
co-owners.92 However, any judgment of the court in favor of the coowner will benefit the others.93
Art. 488. Each co-owner shall have a right to compel the other coowners to contribute to the expenses of preservation of the thing or right
owned in common and to the taxes. Any one of the latter may exempt himself from this obligation by renouncing so much of his undivided interest
as may be equivalent to his share of the expenses and taxes. No such
waiver shall be made if it is prejudicial to the co-ownership. (395a)
Art. 489. Repairs for preservation may be made at the will of one of
the co-owners, but he must, if practicable, first notify his co-owners of the
necessity for such repairs. Expenses to improve or embellish the thing
shall be decided upon by a majority as determined in Article 492. (n)
297
298
PROPERTY
Under Article 488, renunciation is an option that belongs to a coowner who may be compelled to contribute to the expenses incurred for
the purpose of preserving the property owned in common. Hence, such
option may not be compelled by the co-owner who made the advances
if another co-owner refuses to pay his share in the expenses. In such
a situation, the remedy of the co-owner who made the advances is an
ordinary action for collection of sum of money. If the non-paying coowner, however, chooses to exercise the option of renunciation, can
he compel the co-owner who made the advances to accept the same?
Stated otherwise, is the consent of the co-owner who made the advances
necessary for the renunciation to be considered effective?
From the language of Article 488, it appears that the consent of
the co-owner who made the advances is not required when a co-owner
opts to renounce, in lieu of paying his share in the expenses. Note that
the law gives such option only to the co-owner who may be compelled
to contribute to such expenses without requiring the consent of the coowner who made the advances. Senator Tolentino98 and Justice J.B.L.
Reyes99 consider this, however, as a juridical error. According to these
two eminent civilists, since the renunciation is intended as payment for
expenses already made, it is in the nature of dation in payment and
should, therefore, require the consent of the creditor, i.e., the co-owner
who made the advances.
[66.6] Limitation on the Exercise of the Option of Renunciation
98
99
299
can sustain, the law will not allow C to opt for renunciation, in lieu of
his contribution to the expenses.100 Such waiver is not allowed because
it will be prejudicial to the interest of the co-ownership.101
[66.7] Includes Payment of Taxes
Under Article 488, the expenses for the preservation of the thing
include payment of taxes due on the property owned in common, i.e.,
real estate tax on the land owned in common. Ordinarily, however, a
real estate tax is not considered as a necessary expense, as the term is
used in Article 546 of the New Civil Code. The concept of necessary
expenses under Article 546 refers to those incurred for the purpose of
preserving the thing or those expenses which seek to prevent the waste,
deterioration or loss of the thing.102 A real estate tax is not a necessary
expense under the provisions of Article 546 because if the same is
not paid, the property will not be destroyed nor impaired, although its
possession may be lost by the possessor. Under Article 488, however,
the expenses for the preservation of the thing also include taxes.
Art. 490. Whenever the different stories of a house belong to different owners, if the titles of ownership do not specify the terms under which
they should contribute to the necessary expenses and there exists no
agreement on the subject, the following rules shall be observed:
(1) The main and party walls, the roof and the other things used
in common, shall be preserved at the expense of all the owners in proportion to the value of the story belonging to each;
(2) Each owner shall bear the cost of maintaining the floor of his
story; the floor of the entrance, front door, common yard and sanitary
works common to all, shall be maintained at the expense of all the owners
pro rata;
(3) The stairs from the entrance to the first story shall be maintained at the expense of all the owners pro rata, with the exception of the
owner of the ground floor; the stairs from the first to the second story
shall be preserved at the expense of all, except the owner of the ground
floor and the owner of the first story; and so on successively. (396)
300
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Each owner shall bear the cost of maintaining the floor of his
(d) The stairs from the entrance to the first story shall be
maintained at the expense of all the owners pro rata, with the exception
of the owners of the ground floor, the stairs from the first to the second
story shall be preserved at the expense of all, except the owner of the
ground floor and the owner of the first story; and so on successively.106
301
302
PROPERTY
303
Id.
Id.
122
Id.
123
Art. 491, NCC.
124
Id.
120
121
304
PROPERTY
consent and the same is clearly prejudicial to the common interest, the
other co-owners may go to court for appropriate relief.125
[68.2] Meaning of Act of Alteration
The law does not clarify the kind of consent necessary for the
making of alterations. What is clearly required, however, is that the
act of alteration must be authorized by all the co-owners, whether such
authorization be given prior to or after the commission of the act. In
other words, the consent of all co-owners may be given expressly or
tacitly, previous to the act or even after its commission.
[68.4] Effect of Unauthorized Alterations
Id.
3 Manresa, 6th ed., 447; cited in II Caguioa, 1966 ed., 137.
127
Id.
128
II Tolentino, Civil Code, 1992 ed., 192.
129
Art. 5, NCC, in relation to Art. 491, NCC.
125
126
305
306
PROPERTY
307
his rights over his pro indiviso share. Pursuant to said article, a coowner shall have full ownership of his part and of the fruits and benefits
pertaining thereto.142 He has the right to alienate, assign or mortgage it,
and even to substitute another person in its enjoyment, except when
personal rights143 are involved.144 As a consequence, a co-owner has the
right to alienate his pro indiviso share in the co-owned property even
without the consent of the other co-owners145 and his co-owners cannot
enjoin him if he intends to alienate his share to a third party.146 He may
also validly lease his undivided interest to a third party independently
of the other co-owners.147
[70.2] Effect of Alienation or Mortgage of Undivided Share
In a long line of decisions, the Supreme Court has held that before
the partition of a land or thing held in common, no individual or coowner can claim title to any definite portion. All that the co-owner has
Nufable v. Nufable, 309 SCRA 692, 700, July 2, 1999.
The term personal rights refers to the personal relations of one co-owner to the others,
as when the family residence is used by the children as co-owners. see Padilla, Civil Code, Vol. II,
pp. 300-301 (1972); Tolentino, Civil Code, Bk. II, p. 203 (1992).
144
Nufable v. Nufable, supra, 700.
145
Mercado v. CA, 240 SCRA 616, 621, Jan. 26, 1995.
146
Reyes v. Concepcion, 190 SCRA 171, 179, Oct. 1, 1990.
147
Vda. de Castro v. Atienza, 53 SCRA 264, Oct. 17, 1973, cited in Sanchez v. CA, supra,
and City of Mandaluyong v. Aguilar, supra.
148
Art. 493, NCC.
149
Del Campo v. CA, 351 SCRA 1, 7-8, Feb. 1, 2001.
150
Id.
142
143
308
PROPERTY
309
sale will only transfer the rights of said co-owner to the buyer, thereby
making the buyer a co-owner of the property.159 As a consequence, the
effect of such alienation, with respect to the other co-owners, shall be
limited to the portion which may be allotted to the vendee, as successorin-interest of the selling co-owner, in the division of the property upon
the termination of the co-ownership.160 In one case,161 however, the buyer
of a concrete or specific portion sold by one of the co-owners was held to
be entitled to the specific portion which she purchased because the said
buyer was allowed by the other co-owner to occupy said definite portion
without disturbance for a period too long to be ignored. According to
the Court in said case, such undisturbed possession had the effect of
a partial partition of the co-owned property which entitles the buyerpossessor to the definite portion which she occupies.162
Del Campo v. Court of Appeals
351 SCRA 1, Feb. 1, 2001
Salome Bornales, together with her siblings, were the original coowners of a certain parcel of land, known as Lot 162 of the Cadastral Survey
of Ponteverda, Capiz under OCT No. 18407. On July 14, 1940, Salome sold
part of her share in favor of Soledad Daynolo. The portion sold to Soledad
was, however, concrete and specific. Immediately, thereafter, Soledad took
possession of the land described in the sale. In 1948, Salome, together with
the other co-owners, sold 24,933 of Lot 162 to Jose Regalado, Sr. In 1951, the
heirs of Soledad sold the land to the spouses Manuel Del Campo and Salvacion
Quiachon, who succeeded in the possession of said land. Meanwhile, Jose
Regalado, Sr. caused the reconstitution of OCT No. 180407, which initially
reflected the shares of the original co-owners in Lot 162, but the title was
eventually transferred in the name of Jose Regalado, Sr.. The latter, thereafter,
subdivided the entire property into smaller lots, each covered by a respective
title in his name. One of these small lots included the portion occupied by
the spouses Del Campo. Thus, the spouses Del Campo filed a complaint
for repartition, resurvey and reconveyance against the heirs of Regalado
claiming that their land was erroneously included in the title of Regalado. After
addressing the issue of the validity of the sale in 1940 between Salome and
Soledad, from where the right of the Spouses Del Campo was derived, the
Id.
Art. 493, NCC.
161
Del Campo v. Court of Appeals, supra.
162
Id., 9.
159
160
310
PROPERTY
Court further held that the Del Campos are entitled to the possession of the
specific portion sold to them. The Court explained
On the first issue, it seems plain to us that the trial court
concluded that petitioners could not have acquired ownership of
the subject land which originally formed part of Lot 162, on the
ground that their alleged right springs from a void sale transaction
between Salome and Soledad. The mere fact that Salome
purportedly transferred a definite portion of the co-owned lot by
metes and bounds to Soledad, however, does not per se render the
sale a nullity. This much is evident under Article 493 of the Civil
Code and pertinent jurisprudence on the matter. More particularly
in Lopez v. Vda. De Cuaycong, et al. which we find relevant, the
Court, speaking through Mr. Justice Bocobo, held that:
The fact that the agreement in question purported to sell
a concrete portion of the hacienda does not render the sale void,
for it is a well-established principle that the binding force of a
contract must be recognized as far as it is legally possible to do
so. Quando res non valet ut ago, valeat quantum valere potest.
(When a thing is of no force as I do it, it shall have as much force
as it can have.)
Applying this principle to the instant case, there can be no
doubt that the transaction entered into by Salome and Soledad could
be legally recognized in its entirety since the object of the sale
did not even exceed the ideal shares held by the former in the coownership. As a matter of fact, the deed of sale executed between
the parties expressly stipulated that the portion of Lot 162 sold
to Soledad would be taken from Salomes 4/16 undivided interest
in said lot, which the latter could validly transfer in whole or in
part even without the consent of the other co-owners. Salomes
right to sell part of her undivided interest in the co-owned property
is absolute in accordance with the well-settled doctrine that a coowner has full ownership of his pro-indiviso share and has the right
to alienate, assign or mortgage it, and substitute another person in
its enjoyment. Since Salomes clear intention was to sell merely
part of her aliquot share in Lot 162, in our view no valid objection
can be made against it and the sale can be given effect to the full
extent.
We are not unaware of the principle that a co-owner cannot
rightfully dispose of a particular portion of a co-owned property
prior to partition among all the co-owners. However, this should
not signify that the vendee does not acquire anything at all in case
311
312
PROPERTY
313
314
PROPERTY
of sale and in the title (TCT No. 43100) that was issued in the name
of Gertrudes Isidro, she was described as a widow. Her husband,
however, died only on December 2, 1973. In 1985, Gertrudes obtained
a loan from the spouses Alexander and Adelaida Cruz, secured by the
property covered by TCT No. 43100. When Gertrudes failed to pay
the loan, she executed a pacto de retro sale in favor of the spouses
Cruz. When Gertrudes failed to repurchase the property within the
period agreed upon, ownership thereof was consolidated in the name
of Alexander Cruz in whose name TCT No. 130584 was issued. On
9 June 1987, Gertrudes died. Thereafter, her heirs, received demands
to vacate the premises from the spouses Cruz, the new owners of the
property. The heirs of Gertrudez responded by filing a complaint for the
nullification of the sale and the title of Alexander Cruz. The Supreme
Court held that while, as a rule, Gertrudes could only dispose of her
share in the property owned in common pursuant to Article 493, the
purchaser acquires a valid title to the entire property even as against
the heirs of the spouses Isidro based on the principle that a person
dealing with registered land is not required to go behind the register to
determine the condition of the property. The Court explained that (the
purchaser) is only charged with notice of the burdens on the property
which are noted on the face of the register or the certificate of title and
to require him to do more is to defeat one of the primary objects of the
Torrens system.
In Segura v. Segura,175 however, the Supreme Court followed the
general rule that no one can give what he does not have nemo dat
quod non habet. The Court further declared, albeit in obiter, that even if
it is to be assumed that the purchaser bought the land in good faith from
the selling co-owners (who were the registered owners of the property
as appearing on the title), only so much of the share of the selling coowners could be validly acquired by the purchaser, with the rest of the
property remaining under the ownership of the excluded co-heirs or
co-owners. In other words, the purchaser became merely a pro indiviso
co-owner of the land with the other excluded co-owners, who retained
title to their respective shares although the purchaser had possession of
the entire property. It was further held that the portion pertaining to the
excluded co-owners should be deemed held by the purchaser under an
implied trust for their benefit.
175
315
176
177
Supra.
328 SCRA 97.
316
PROPERTY
registered lands can rely solely on the certificate of title does not apply
to banks.
[70.6] Sale of Conjugal Property Without the Consent of the Other
Spouse
178
Art. 124, FC; Sps. Guiang v. Court of Appeals, 353 Phil. 578 (1998); see also Rabuya,
Law on Persons and Family Relations, 2006 ed., 485-486.
179
453 SCRA 283 (2005).
317
318
PROPERTY
nor an equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the liquidation and
settlement. Hence, any disposition of the spouses respective shares or
interest in the absolute community shall be void since such right to onehalf of the community assets does not vest until the liquidation of the
absolute community. Nemo dat qui non habet. No one can give what he
has not.180 This is also the reason why dispositions of community property
made by one spouse without the consent of the other or without court
authorization may not likewise be deemed valid even insofar as the
share of the consenting spouse in the community property is concerned.
Such alienation or disposition must be regarded as invalid in its entirety
and not only with respect to the share of the non-consenting spouse in
the property.181
[70.8] Co-ownership in Article 147 of the Family Code
319
320
PROPERTY
321
legal and effective exercise of the right of legal redemption one must
make the offer within the period set down in Article 1623. In other
words, if no claim or offer is made within said period, no action will be
allowed to enforce the right of redemption. It is necessary however to
determine first if and when the written notice of sale was duly served by
the vendors to their co-owner.201
[71.7] Written Notice Not Necessary If There Is Actual Notice
The old rule is that a written notice of the sale by the vendor to his
co-owners is indispensable for the latter to exercise their retracto legal
de comuneros.202 More recently, however, the Supreme Court has relaxed
the written notice requirement. Thus, in Si v. Court of Appeals,203 the
Court ruled that a co-owner with actual notice of the sale is not entitled
to a written notice for such would be superfluous.204 The law does not
demand what is unnecessary205 since the only purpose of such written
notice is to insure that all the co-owners shall be actually notified of the
sale and to remove all doubt as to the perfection of the sale.206 Hence,
in a case where the co-owner was actually present and was even an
active intermediary in the consummation of the sale of the property, he
is considered to have had actual notice of the sale and a written notice
is no longer necessary.207
[71.8] Article 1620 Distinguished From Article 1088
Article 1088 of the New Civil Code provides that should any of
the heirs sell his hereditary rights to a stranger before the partition, any
or all of the co-heirs may be subrogated to the rights of the purchaser
by reimbursing him for the price of the sale, provided they do so within
the period of the month from the time they were notified in writing of
the sale by the vendor. According to Tolentino,208 the fine distinction
between Article 1088 and Article 1620 is that when the sale consists of
Cabrera v. Villanueva, 160 SCRA 672, 677, April 15, 1988.
Aguilar v. Aguilar, 478 SCRA 187, 193 (2005), citing Butte v. Manuel Uy & Sons, Inc.,
4 SCRA 526.
203
342 SCRA 463.
204
Aguilar v. Aguilar, supra, 193.
205
Id.
206
Distrito v. Court of Appeals, 197 SCRA 606.
207
Id.
208
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. III, pp. 607-608, cited in Mariano v. Court of Appeals, May 28, 1993.
201
202
322
PROPERTY
[72.2] Merger
323
This may happen, for example, when the shares of the other co-owners
are acquired by one co-owner either by way of purchase or through the
exercise of the right of legal redemption.
[72.3] Destruction of Thing or Lost of Right
212
324
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216
At pp. 459-461.
325
326
PROPERTY
217
218
At pp. 668-669.
327
328
PROPERTY
73. Prescription
[73.1] General Rule: Prescription Does Not Lie
Sanchez v. Court of Appeals, 404 SCRA 541, 548, June 20, 2003.
Id.
221
Id.
222
Delima v. CA, 201 SCRA 641, 646, Sept. 24, 1991; Salvador v. CA, 243 SCRA 239,
251, April 5, 1995.
223
Salvador v. CA, 243 SCRA 239, 251, April 5, 1995.
224
Art. 494, last par., NCC.
225
Trinidad v. Court of Appeals, 289 SCRA 188, 211, April 20, 1988.
226
Pangan v. Court of Appeals, 166 SCRA 375, 382, Oct. 17, 1988.
227
Adille v. Court of Appeals, supra, 461.
228
Heirs of Segunda Maningding v. Court of Appeals, supra, 608.
219
220
329
[73.3] Requisites
330
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331
74. Partition
[74.1] Definition
Article 494 of the New Civil Code states that no co-owner shall be
obliged to remain in the co-ownership and, thus, each co-owner may
245
332
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demand at any time the partition of the thing owned in common, insofar
as his share is concerned. In Budlong v. Bondoc,246 Article 494 has
been interpreted to mean that the action for partition is imprescriptible247
or cannot be barred by laches.248
Note, however, that an action for partition implies that the thing
is still owned in common.249 Hence, as long as the co-ownership is
recognized, an action to compel partition will not prescribe and may
be filed at any time against the actual possessor by any of the other
co-owners.250 If a co-owner or co-heir, however, holds the property in
exclusive adverse possession as owner, asserting sole and exclusive
dominion for the required period, he can acquire sole title to it as
against the co-heirs or co-owners.251 The imprescriptibility of the action
cannot thus be invoked when one of the co-owners has possessed the
property as exclusive owner and for a period sufficient to acquire it by
prescription.252 From the moment one of the co-owners claims that he is
the absolute and exclusive owner of the properties and denies the others
any share therein, the question involved is no longer one of partition,
but of ownership.253 In such case, the imprescriptibility of the action
for partition can no longer be invoked or applied when one of the coowners has adversely possessed the property as exclusive owner for a
period sufficient to vest ownership by prescription.254
[74.3] Period of Prescription
79 SCRA 24.
Cited in Tomas Claudio Memorial College, Inc. v. Court of Appeals, 316 SCRA 502.
248
Salvador v. Court of Appeals, 243 SCRA 239, 250-251.
249
Bicarme v. Court of Appeals, supra.
250
Pangan v. Court of Appeals, supra.
251
Id.
252
Id.
253
Id.
254
Delima v. Court of Appeals, supra.
246
247
333
and of their rights thereunder because the same may already be barred
under the statute of limitations (or extinctive prescription).
[74.3.1]
Acquisitive Prescription
334
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335
336
PROPERTY
Extinctive Prescription
While the action for the partition of the thing owned in common
(actio communi dividendo or actio familiae erciscundae) does not
prescribe, the co-ownership does not last forever since it may be
repudiated by a co-owner.260 In such a case, the action for partition
does not lie.261 Hence, if the defendants show that they had previously
asserted title in themselves adversely to the plaintiff and for the requisite
period of time, the plaintiffs right to require recognition of his status
as a co-owner will have been lost by prescription and the court cannot
issue an order granting partition.262 Hence, from the moment one of the
co-owners claims that he is the absolute and exclusive owner of the
properties and denies the others any share therein, the question involved
is no longer one of partition but of ownership263 and the prescriptive
period will begin to run and may eventually operate to divest the real
owners of their right to the property after the lapse of the applicable
statutory period.264
Jardin v. Hallasgo, 117 SCRA 532, 536, Sept. 30, 1982.
Id.
262
Roque v. Intermediate Appellate Court, 165 SCRA 118, 126, Aug. 30, 1988.
263
Delima v. Court of Appeals, 201 SCRA 641, Sept. 24, 1991.
264
165 SCRA 368, 376, Sept. 19, 1988.
260
261
337
338
PROPERTY
and based on this affidavit, TCT No. 2744 was cancelled and TCT No.
3009 was issued on February 4, 1954 in the name of Galileo Delima
alone to the exclusion of the other heirs. Thereafter, Galileo Delima
declared the lot in his name for taxation purposes and paid the taxes
thereon from 1954 to 1965. On February 28, 1968, the surviving heirs of
the siblings of Galileo filed an action for reconveyance and/or partition
of the property. In holding that the action filed had already prescribed,
the Court explained
We have held that when a co-owner of the property
in question executed a deed of partition and on the strength
thereof obtained the cancellation of the title in the name of
their predecessor and the issuance of a new one wherein he
appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners
over their shares, the statute of limitations started to run for
the purposes of the action instituted by the latter seeking
a declaration of the existence of the co-ownership and of
their rights thereunder (Castillo v. Court of Appeals, No.
L-18046, March 31, 1964, 10 SCRA 549). Since an action
for reconveyance of land based on implied or constructive
trust prescribes after ten (10) years, it is from the date of the
issuance of such title that the effective assertion of adverse
title for purposes of the statute of limitations is counted
(Jaramil v. Court of Appeals, No. L-31858, August 31, 1977,
78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the
legal heirs of Lino Delima, represented by Galileo Delima,
was cancelled by virtue of an affidavit executed by Galileo
Delima and that on February 4, 1954, Galileo Delima obtained
the issuance of a new title in his name numbered TCT No.
3009 to the exclusion of his co-heirs. The issuance of this
new title constituted an open and clear repudiation of the trust
or co-ownership, and the lapse of ten (10) years of adverse
possession by Galileo Delima from February 4, 1954 was
sufficient to vest title in him by prescription. As the certificate
of title was notice to the whole world of his exclusive title to
the land, such rejection was binding on the other heirs and
started as against them the period of prescription. Hence,
339
205 SCRA 337, citing Adille v. Court of Appeals, 157 SCRA 455.
Supra.
340
PROPERTY
341
342
PROPERTY
court find that the plaintiff was unable to sustain his claimed status
as co-owner, or that the defendants are or have become the sole and
exclusive owners of the property involved, the court will necessarily
have to dismiss the action for partition. This result would be reached,
not because the wrong action was commenced by the plaintiff, but
rather because the plaintiff having been unable to show co-ownership
rights in himself, no basis exists for requiring the defendants to submit
to partition the property at stake. If, upon the other hand, the court
after trial should find the existence of co-ownership among the parties
litigant, the court may and should order the partition of the property
in the same action. Judgment for one or the other party being on the
merits, the losing party (respondents in this case) may then appeal the
same. In either case, however, it is quite unnecessary to require the
plaintiff to file another action, separate and independent from that for
partition originally instituted. Functionally, an action for partition may
be seen to be at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the property
involved. This is the import of our jurisprudence on the matter and is
sustained by the public policy which abhors multiplicity of actions.274
[74.5] When Partition Not Available
343
ownership beyond the period set by the law. Otherwise, the 20-year
limitation expressly mandated by the Civil Code would be rendered
meaningless.280
(3) When the law prohibits partition281 such as when the origin or
juridical nature of co-ownership prevents partition:
Examples:
(a)
(b)
The heirs cannot partition the family home upon the death
of the person or persons who constituted the same unless the
court finds compelling reasons therefore.283 Upon the death of
the person or persons who constituted the family home and
there are two or more heirs, the whole estate of the decedent
(including the family home) is, before its partition, owned in
common by such heirs, subject to the payment of the debts
of the deceased.284 As a rule, any one of the co-owners may
demand partition at any time.285 However, so long as the
family home continues as such pursuant to the provisions
of Article 159 of the Family Code, the heirs are prohibited
from partitioning the family home unless the court finds
compelling reason therefore.286
(4) When partition would render the thing unserviceable for the
use for which it is intended.287
[74.6] When thing is essentially indivisible
344
PROPERTY
when: (1) the right to partition the property is invoked by any of the coowners but because of the nature of the property it cannot be subdivided
or its subdivision would prejudice the interests of the co-owners, and
(2) the co-owners are not in agreement as to who among them shall be
allotted or assigned the entire property upon proper reimbursement of
the co-owners.289 In Reyes v. Concepcion,290 the Court upheld the order
of the trial court directing the holding of a public sale of the properties
owned in common pursuant to Article 498 of the Civil Code. The Court
therein held
Moreover, there is no legal infirmity tainting respondent
trial judges order for the holding of a public sale of the
subject properties pursuant to the provisions of Article 498
of the New Civil Code. After a careful examination of the
proceedings before respondent trial judge, the Court finds
that respondent trial judges order was issued in accordance
with the laws pertaining to the legal or juridical dissolution
of co-ownerships.
It must be noted that private respondents, in their answer
with counterclaim prayed for, inter alia, the partition of the
subject properties in the event that the petitioners refused
to purchase their pro-indiviso shares at the rate of P12.50
per square meter. Unlike petitioners claim of a pre-emptive
right to purchase the other co-owners pro-indiviso shares,
private respondents counterclaim for the partition of the
subject properties is recognized by law, specifically Article
494 of the New Civil Code which lays down the general rule
that no co-owner is obliged to remain in the co-ownership.
Article 494 reads as follows:
No co-owner shall be obliged to remain in
the co-ownership. Each co-owner may demand at
any time partition of the thing owned in common,
insofar as his share is concerned.
Nevertheless, an agreement to keep the
thing undivided for a certain period of time, not
289
290
345
346
PROPERTY
347
348
PROPERTY
income and fruits which each one of them may have received from any
property of the estate, for any useful and necessary expenses made upon
such property, and for any damage thereto through malice or neglect.298
(5) Every co-owner shall be liable for defects of title and quality
of the portion assigned to each of the other co-owners.299
oOo
298
299
349
(2) Continuous or intermittent waters of springs and brooks running in their natural beds and the beds themselves;
(3) Waters rising continuously or intermittently on lands of public
dominion;
(4) Lakes and lagoons formed by Nature on public lands, and
their beds;
(5) Rain waters running through ravines or sand beds, which are
also of public dominion;
(6)
349
350
PROPERTY
(4) Rain waters falling on said lands, as long as they remain within the boundaries;
(5) The beds of flowing waters, continuous or intermittent, formed
by rain water, and those of brooks, crossing lands which are not of public
dominion.
In every drain or aqueduct, the water, bed, banks and floodgates
shall be considered as an integral part of the land or building for which
the waters are intended. The owners of lands, through which or along the
boundaries of which the aqueduct passes, cannot claim ownership over
it, or any right to the use of its bed or banks, unless the claim is based on
titles of ownership specifying the right or ownership claimed. (408)
By administrative concession;
(2)
The extent of the rights and obligations of the use shall be that established, in the first case, by the terms of the concession, and, in the second case, by the manner and form in which the waters have been used.
(409a)
Art. 505. Every concession for the use of waters is understood to be
without prejudice to third persons. (410)
Art. 506. The right to make use of public waters is extinguished by
the lapse of the concession and by non-user for five years. (411a)
351
In 1976, the Water Code of the Philippines (P.D. No. 1067) was
promulgated expressly repealing the provisions of the Irrigation Act.
However, the provisions of the Spanish Law on Waters of 1866 and the
New Civil Code on ownership of waters, easements relating to waters,
use of public waters and acquisitive prescription on the use of waters,
were considered repealed only to the extent that they were inconsistent
with the provisions of the Water Code of the Philippines. Hence, under
present laws, matters relating to waters or water resources are governed
primarily by the Water Code of the Philippines. The provisions of the
New Civil Code on waters and that of the Spanish Law on Waters of
1866, which are not in conflict with the Water Code of the Philippines,
still apply.
76. Ownership of Waters
The basic provision governing the ownership of waters within the
territorial jurisdiction of the Philippines is Section 2, Article XII of the
1987 Philippine Constitution which provides, part, as follows
Sec. 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by
the State. x x x1
With the foregoing provision of the Constitution, it seems that all
waters in their natural beds must be considered of public dominion.2
Indeed, the basic State principles underlying the enactment of the Water
Code of the Philippines are stated, as follows:
1.
2. All waters that belong to the state can not be the subject of
acquisitive prescription.
1
This is a substantial reproduction of Section 8, Article XIV of the 1973 Constitution which
provides, as follows:
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. x x x
2
See II Tolentino, Civil Code of the Philippines, 1992 ed., 219.
352
PROPERTY
Atmospheric water;
f.
g.
Seawater.
3
4
353
b.
c.
d.
e.
The owner of the land where the water is found may use the same
for domestic purposes without securing a permit, provided that such
use shall be registered, when required by the Council. The Council,
however, may regulate such use when there is wastage, or in times of
emergency.
In declaring the waters enumerated in Article 6 of the Water Code
of the Philippines as belonging to the State, the said law has the effect of
repealing the provisions of Article 503 of the New Civil Code because
the provisions of the latter law are totally inconsistent with the former.
Under existing laws, therefore, there are no more waters of private
ownership to speak of.
However, for those waters found on private lands mentioned in
Article 6 of the Water Code of the Philippines, the owner of the land
may use the waters for domestic without securing a permit from the
National Water Resources Council, although the Council may regulate
such use in two occasions: (1) when there is wastage; or (2) in times of
emergency.
[76.2] Subterranean or Ground Waters
While it is the rule in Article 437 of the New Civil Code that the
ownership of lands extends to the surface as well as to the subsoil under
it, such rule does not extend to the waters under the ground, known as
subterranean or ground waters. Pursuant to paragraph (d) of Article
6 of the Water Code of the Philippines, subterranean or ground waters
belong to the State even if they are found on private lands. As such,
any construction of installations for the utilization of subterranean or
354
PROPERTY
ground waters may not be undertaken unless the plans and specifications
thereof are approved by the proper government agency.5
Section 3. The Use of Waters of Private Ownership
Art. 507. The owner of a piece of land on which a spring or brook
rises, be it continuous or intermittent, may use its waters while they run
through the same, but after the waters leave the land they shall become
public, and their use shall be governed by the Special Law of Waters of
August 3, 1866, and by the Irrigation Law. (412a)
Art. 508. The private ownership of the beds of rain waters does
not give a right to make works or constructions which may change their
course to the damage of third persons, or whose destruction, by the force
of floods, may cause such damage. (413)
Art. 509. No one may enter private property to search waters or make
use of them without permission from the owners, except as provided by
the Mining Law. (414a)
Art. 510. The ownership which the proprietor of a piece of land has
over the waters rising thereon does not prejudice the rights which the
owners of lower estates may have legally acquired to the use thereof.
(415)
Art. 511. Every owner of a piece of land has the right to construct
within his property, reservoirs for rain waters, provided he causes no
damage to the public or to third persons. (416)
355
6
7
356
PROPERTY
357
Code.
Art. 3. The underlying principles of this code are:
a.
b.
All waters that belong to the state can not be the subject of
acquisitive prescription.
c.
The State may allow the use or development of waters by
administration concession.
d.
The utilization, exploitation, development, conservation and
protection of water resources shall be subject to the control and regulation
of the government through the National Water Resources Council, hereinafter
referred to as the Council.
e.
Preference in the use and development of waters shall consider
current usages and be responsive to the changing needs of the country.
358
PROPERTY
Art. 4. Waters, as used in this Code, refers to water under the grounds,
water above the ground, water in the atmosphere and the waters of the sea
within the territorial jurisdiction of the Philippines.
CHAPTER II
OWNERSHIP OF WATERS
Art. 5. The following belong to the state:
a.
b.
Continuous or intermittent waters of springs and brooks running in
their natural beds and the beds themselves;
c.
d.
All other categories of surface waters such as water flowing
over lands, water form rainfall whether natural or artificial, and water from
agriculture run-off, seepage and drainage;
e.
Atmospheric water;
f.
g.
Seawater.
Art. 6. The following waters found on private lands also belong to the
States:
a.
b.
c.
d.
e.
The owner of the land where the water is found may use the same for
domestic purposes without securing a permit, provided that such use shall be
registered, when required by the Council. The Council, however, may regulate
such use when there is wastage, or in times of emergency.
Art. 7. Subject to the provisions of this Code, any person who captures or
collects water by means of cisterns, tanks, or pools shall have exclusive control
over such water and the right to dispose of the same.
Art. 8. Water legally appropriated shall be subject to the control of the
appropriator from the moment it reaches the appropriators canal or aqueduct
359
leading to the place where the water will be used or stored and, thereafter,
so long as it is being beneficially used for the purposes for which it was
appropriated.
CHAPTER III
APPROPRIATION OF WATERS
Art. 9. Waters may be appropriated and used in accordance with the
provisions of this Code.
Appropriation of water, as used in this Code, is the acquisition of rights
over the use of waters or the taking or diverting of waters from a natural source
in the manner and for any purpose allowed by law.
Art. 10. Water may be appropriated for the following purposes:
a.
Domestic;
b.
Municipal;
c.
Irrigation;
d.
Power generation;
e.
Fisheries;
f.
Livestock raising;
g.
Industrial;
h.
Recreational; and
i.
Other purposes;
360
PROPERTY
b.
Bathing or washing, watering or dipping of domestic or farm
animals, and navigation of watercrafts or transportation of logs and other
objects by flotation.
Art. 15. Only citizens of the Philippines, of legal age, as well as juridical
persons, who are duly qualified by law to exploit and develop water resources,
may apply for water permits.
Art. 16. Any person who desires to obtain a water permit shall file an
application with the Council who shall make known said application to the
public for any protests.
In determining whether to grant or deny an application, the Council
shall consider the following: protests filed, if any; prior permits granted; the
availability of water; the water supply need for beneficial use; possible adverse
effects; land-use economics; and other relevant factors.
361
362
PROPERTY
Art. 24. A water right shall be exercised in such a manner that rights of
third persons or of other appropriators are not prejudiced thereby.
Art. 25. A holder of a water permit may demand the establishment of
easements necessary for the construction and maintenance of the works and
facilities needed for the beneficial use of the waters to be appropriated subject
to the requirements of just compensation and to the following conditions:
a.
That he is the owner, lessee, mortgage or one having real right over
the land upon which he proposes to use water; and
b.
That the proposed easement is the most convenient and the least
onerous to the servient estate.
Easement relating to the appropriation and use of waters may be modified
by agreement of the contracting parties provided the same is not contrary to
law or prejudicial to third persons.
Art. 26. Where water shortage is recurrent, the use of the water pursuant
to a permit may, in the interest of equitable distribution of benefits among legal
appropriators, be reduced after due notice and hearing.
Art. 27. Water users shall bear the diminution of any water supply due to
natural causes or force majeure.
Art. 28. Water permits shall continue to be valid as long as water is
beneficially used; however, it maybe suspended on the grounds of noncompliance with approved plans and specifications or schedules of water
distribution; use of water for a purpose other than that for which it was granted;
non-payment of water charges, wastage; failure to keep records of water
diversion, when required; and violation of any term or condition of any permit
or of rules and regulations promulgated by the Council.
Temporary permits may be issued for the appropriation and use of water
for short periods under special circumstances.
Art. 29. Water permits may be revoked after due notice and hearing on
grounds of non-use; gross violation of the conditions imposed in the permit;
unauthorized sale of water; willful failure or refusal to comply with rules and
regulations or any lawful order; pollution, public nuisance or acts detrimental
to public health and safety; when the appropriator is found to be disqualified
under the law to exploit and develop natural resources of the Philippines; when,
in the case of irrigation, the land is converted to non-agricultural purposes; and
other similar grounds.
Art. 30. All water permits are subject to modification or cancellation
by the Council, after due notice and hearing, in favor of a project of greater
beneficial use or for multi-purpose development, and a water permittee who
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Art. 37. In the construction and operation of hydraulic works, due consideration shall be given to the preservation of scenic places and historical relics
and in addition to the provisions of existing laws, no works that would require
the destruction or removal of such places or relics shall be undertaken without
showing that the destruction or removal is necessary and unavoidable.
Art. 38. Authority for the construction of dams, bridges and other
structures across of which may interfere with the flow of navigable or
floatable waterways shall first be secured from the Ministry of Public Works,
Transportation and Communications [now Department of Public Works and
Highways].
Art. 39. Except in cases of emergency to save life or property, the
construction or repair of the following works shall be undertaken only after
the plans and specifications therefore, as may be required by the Council, are
approved by the proper government agency; dams for the diversion or storage
of water; structures for the use of water power; installations for the utilization
of subterranean or ground water and other structures for utilization of water
resources.
Art. 40. No excavation for the purpose of emission of a hot spring or for
the enlargement of the existing opening thereof shall be made without prior
permit.
Any person or agency who intends to develop a hot spring for human
consumption must first obtain a permit from the Department of Health.
Art. 41. No person shall develop a stream, lake, or spring for recreational
purposes without first securing a permit from the council.
Art. 42. Unless otherwise ordered by the President of the Philippines
and only in times of national calamity or emergency, no person shall induce or
restrain rainfall by any method such as cloud seeding without a permit from the
proper government agency.
Art. 43. No person shall raise or lower the water level of a river, stream,
lake, lagoon or marsh nor drain the same without a permit.
Art. 44. Drainage systems shall be so constructed that their outlets are
rivers, lakes, the sea, natural bodies of water, such other water course as may
be approved by the proper government agency.
Art. 45. When a drainage channel is constructed by a number of persons
for their common benefit, cost of construction and maintenance of the channel
shall be borne by each in proportion to the benefits derived.
Art. 46. When artificial means are employed to drain water from higher
to lower land, the owner of the higher land shall select the routes and methods
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of drainage that will cause the minimum damage to the lower lands, subject to
the requirements of just compensation.
Art. 47. When the use, conveyance or storage of water results in damage
to another, the person responsible for the damage shall pay compensation.
Art. 48. When a water resources project interferes with the access of
landowner to a portion of his property or with the conveyance of irrigation or
drainage water, the person or agency constructing the project shall bear the cost
of construction and maintenance of the bridges, flumes and other structures
necessary for maintaining access, irrigation, or drainage in addition to paying
compensation for land and incidental damages.
Art. 49. Any person having an easement for an aqueduct may enter
upon the servient land for the purpose of cleaning, repairing or replacing the
aqueduct or the removal of obstructions therefrom.
Art. 50. Lower estates are obliged to receive the waters which naturally
and without the intervention of man flow from the higher estates, as well as the
stones or earth which they carry with them.
The owner of the lower estate can not construct works which will impede
this natural flow, unless he provides an alternative method of drainage; neither
can the owner of the higher estate make works which will increase this natural
flow.
Art. 51. The banks of rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3) meters in
urban areas, twenty (20) meters in agricultural areas and forty (40) meters in
forest areas, along their margins, are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and salvage. No person shall
be allowed to stay in this zone longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to build structures of any kind.
Art. 52. The establishment, extent, from, and conditions of easement of
water not expressly determined by the provisions of this Code shall be governed
by the provisions of the Civil Code.
CHAPTER V
CONTROL OF WATERS
Art. 53. To promote the best interest and the coordinated protection
of flood plain lands, the Secretary of Public Works, Transportation and
Communications may declare flood control areas and promulgate guidelines
for governing flood plain management plans in these areas.
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Art. 54. In declared flood control areas, rules and regulations may
be promulgated to prohibit or control activities that may damage or cause
deterioration of lakes and dikes, obstruct the flow of water, change the natural
flow of the river, increase flood losses or aggravate flood problems.
Art. 55. The government may construct necessary flood control
structures in declared flood control areas, and for this purpose it shall have a
legal easement as wide as may be needed along and adjacent to the river bank
and outside the bed or channel of the river.
Art. 56. River beds, sand bars and tidal flats may not be cultivated except
upon prior permission from the Minister of Public Works, Transportation
and Communication and such permission shall not be granted where such
cultivation obstructs the flow of water or increase flood levels so as to cause
damage to other areas.
Art. 57. Any person may erect levees or revetments to protect his
property from flood, encroachment by the river or change in the course of the
river, provided that such constructions does not cause damage to the property
of another.
Art. 58. When a river or stream suddenly changes its course to traverse
private lands, the owners of the affected lands may not compel the government
to restore the river to its former bed; nor can they restrain the government from
taking steps to revert the river or stream to its former course. The owners of the
lands thus affected are not entitled to compensation for any damage sustained
thereby. However, the former owners of the new bed shall be the owners of the
abandoned bed proportion to the area lost by each.
The owners of the affected lands may undertake to return the river or
stream to its old bed at their own expense; Provided, That a permit therefore is
secured from the Minister of Public Works, Transportation and Communication
and work pertaining thereto are commenced within two years from the changes
in the course of the river or stream.
Art. 59. Rivers, lakes and lagoons may, upon the recommendation of the
Philippines Coast Guard, be declared navigable either in whole or in part.
Art. 60. The rafting of logs and other objects on rivers and lakes which
are floatable may be controlled or prohibited during designated season of the
year with due regard to the needs of irrigation and domestic water supply and
other uses of water.
Art. 61. The impounding of water in ponds or reservoirs may be
prohibited by the Council upon consultation with the Department of Health if
it is dangerous to public health, or it may order that such pond or reservoirs be
drained if such is necessary for the protection of public health.
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Art. 68. It shall be the duty of any person in control of a well to prevent
the water from flowing on the surface of the land, or into any surface water, or
any porous stratum underneath the surface without being beneficially used.
Art. 69. It shall be the duty of any person in control of a well containing
water with minerals or other substances injurious to man, animals, agriculture,
and vegetation to prevent such waters from flowing on the surface of the land
or into any surface water or into any other aquifer or porous stratum.
Art. 70. No person shall utilize an existing well or pond or spread waters
for recharging subterranean or ground water supplies without prior permission
of the Council.
Art. 71. To promote better water conservation and usage for irrigation
purposes, the merger of irrigation associations and the appropriation of waters
by associations instead of by individuals shall be encouraged.
No water permit shall be granted to an individual when his water
requirement can be supplied through an irrigation association.
Art. 72. In the consideration of a proposed water resource project, due
regard shall be given to ecological changes resulting from the construction of
the project in order to balance the needs of development and the protection of
the environment.
Art. 73. The conservation of fish and wild life shall receive proper
consideration and shall be coordinated with other features of water resources
development programs to insure that fish and wildlife values receive equal
attention with other project purposes.
Art. 74. Swamps and marshes which are owned by the State and which
have a primary value for waterfowl propagation or other wildlife purposes may
be reserved and protected from drainage operations and development.
Art. 75. No person shall, without prior permission from the National
Pollution Control Commission, build any works that may produce dangerous
or noxious substance or perform any act which may result in the introduction
of sewage, industrial waste, or any pollutant into any source of water supply.
Water pollution is the impairment of the quality of water beyond a certain
standard. This standard may vary according to the use of the water and shall be
set by the National Pollution Control Commission.
Art. 76. The establishment of cemeteries and waste disposal areas that
may affect the source of a water supply or a reservoir for domestic or municipal
use shall be subject to the rules and regulations promulgated by the Department
of Health.
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Art. 77. Tailings from mining operations and sediments from placer
mining shall not be dumped into rivers and waterways without prior permission
from the Council upon recommendation by the National Pollution Control
Commission.
Art. 78. The application of agriculture fertilizers and pesticides may be
prohibited or regulated by the National Pollution Control Commission in areas
where such application may cause pollution of a source of water supply.
CHAPTER VII
ADMINISTRATION OF WATERS AND ENFORCEMENT
OF THE PROVISIONS OF THIS CODE
Art. 79. The Administration and enforcement of the provisions of this
Code, including the granting of permits and the imposition of penalties for
administrative violations hereof, are hereby vested in the council, and except
in regard to those functions which under this Code are specifically conferred
upon other agencies of the government, the Council is hereby empowered to
make all decisions and determinations provided for in this Code.
Art. 80. The Council may deputize any official or agency of the
government to perform any of its specific functions or activities.
Art. 81. The Council shall provide a continuing program for data
collection, research and manpower development need for the appropriation,
utilization, exploitation, conservation, and protection of the water resources
of the country.
Art. 82. In the implementation of the provisions of this Code, the Council
shall promulgate the necessary rules and regulations which may provide for
penalties consisting of a fine not exceeding One thousand Pesos (P1,000.00)
and/or suspension or revocation of the water permit or other right to the use of
water. Violations of such rules and regulations may be administratively dealt
with by the Council.
Such rules and regulations shall take effect fifteen (15) days after
publication in newspapers of general circulation.
Rules and regulations prescribed by any government agency that
pertain to the utilization, exploitation, development, control, conservation, or
protection of water resources shall, if the council so requires, be subject to its
approval.
Art. 83. The Council is hereby authorized to impose and collect reasonable
fees or charges for water resources development from water appropriators,
except when it is for purely domestic purpose.
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Art. 84. The Council and other agencies authorized to enforce this
Code are empowered to enter upon private lands, with previous notice to the
owner, for the purpose of conducting surveys and hydrologic investigations,
and to perform such other acts as are necessary in carrying out their functions
including the power to exercise the right of eminent domain.
Art. 85. No program or project involving the appropriation, utilization,
exploitation, development, control, conservation, or protection of water
resources may be undertaken without prior approval of the Council, except
those which the council may, in its discretion, exempt.
The Council may require consultation with the public prior to the
implementation of certain water resources development projects.
Art. 86. When plans and specifications of a hydraulic structure are
submitted for approval, the government agency whose functions embrace
the type of project for which the structure is intended, shall review the plans
and specifications and recommend to the Council proper action thereon and
the latter shall approve the same only when they are in conformity with the
requirements of this Code and the rules and regulations promulgated by the
Council. Notwithstanding such approval, neither the engineer who drew up
the plans and specifications of the hydraulic structure, nor the constructor who
built it, shall be relieved of his liability for damages in case of failure thereof
by reason of defect in plans and specifications, or failure due to defect in plan
construction, within ten (10) years from the completion of the structure.
Any action to recover such damages must be brought within five (5)
years following such failure.
Art. 87. The Council or its duly authorized representatives, in the exercise
of its power to investigate and decide cases brought to its cognizance, shall
have the power to administer oaths, compel the attendance of witnesses by
subpoena duces tecum.
Non-compliance or violation of such orders or subpoena and subpoena
duces tecum shall be punished in the same manner as indirect contempt of an
inferior court upon application by the aggrieved party with the proper Court
of First Instance in accordance with the provisions of Rule 71 of the Rules of
Court.
Art. 88. The Council shall have original jurisdiction over all disputes
relating to appropriation, utilization, exploitation, development, control, conservation and protection of waters within the meaning and context of the provisions of this Code.
The decisions of the Council on water rights controversies shall be
immediately executory and the enforcement thereof may be suspended only
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c.
Failure of the appropriator to keep a record of water withdrawal
when required.
d.
Failure to comply with any of the terms or conditions in a water
permit or a water rights grant.
e.
Unauthorized use of water for a purpose other than that for which
a right or permit was granted.
f.
Construction or repair of any hydraulic work or structure without
duly approved plans and specifications, when required.
g.
Failure to install a regulating and measuring device for the control
of the volume of water appropriated, when required.
h.
i.
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when required by the Council in the construction of any work for the storage,
diversion, distribution and utilization of water.
j.
k.
Utilization of an existing well or ponding or spreading of water for
recharging subterranean or ground water supplies without permission of the
Council.
l.
Violation of or non-compliance with any order, rules and regulation
of the Council.
m.
reservoir.
n.
Malicious destruction of hydraulic works or structures valued at
not exceeding P5,000.00.
Art. 91. A. A fine of not exceeding Three Thousand Pesos (P3,000.00)
or imprisonment for not more that three (3) years, or both such fine and
imprisonment, in the discretion of the Court, shall be imposed upon any person
who commits any of the following acts:
1.
Appropriation of water without a water permit, unless such
person is expressly exempted from securing a permit by the provisions
of this code;
2.
3.
mission.
4.
Malicious destruction of hydraulic works or structure valued
at not exceeding Twenty-Five Thousand Pesos (P25,000.00).
B. A fine exceeding Three Thousand Pesos (P3,000.00) but not more
than Six Thousand Pesos (P6,000.00) or imprisonment exceeding three (3)
years but not more than six (6) years or both such fine and imprisonment in the
discretion of the Court, shall be imposed on any person who commits any of
the following acts:
1.
Distribution for public consumption of water which adversely
affects the health and safety of the public.
2.
Excavation or enlargement of the opening of a hot spring
without permission.
3.
Unauthorized obstruction of a river or waterway, or occupancy of a river bank or seashore without permission.
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4.
Establishment of a cemetery or a waste disposal area near a
source of water supply or reservoir for domestic or municipal use without
permission.
5.
Constructing, without prior permission of the government
agency concerned, works that produce dangerous or noxious substances,
or performing acts that result in the introduction of sewage, industrial
waste, or any substance that pollutes a source of water supply.
6.
Dumping mine tailings and sediments into rivers or waterways without permission.
7.
Malicious destruction of hydraulic works or structure valued
more than Twenty-five Thousand (P25,000.00) but not exceeding One
Hundred Thousand Pesos (P100,000.00).
C. A fine exceeding Six Thousand Pesos (P6,000.00) but not more
than ten Thousand Pesos (P10,000.00) or imprisonment exceeding six (6)
years but not more than twelve (12) years, or both such fine and imprisonment,
in the discretion of the Court, shall be imposed upon any person who commits
any of the following acts:
1.
permit.
2.
Malicious destruction of a hydraulic works or structure,
valued at more than One Hundred Thousand Pesos (P100,000.00).
Art. 92. If the offense is committed by a corporation, trust, firm,
partnership, association or any other juridical person, the penalty shall be
imposed upon the President, General Manager, and other guilty officer or
officers of such corporation, trust, firm, partnership, association or entity,
without prejudice to the filing of a civil action against said juridical person. If
the offender is an alien, he shall be deported after serving his sentence, without
further proceedings.
After final judgment of conviction, the Court upon petition of the
prosecution attorney in the same proceedings, and after due hearing, may when
the public interest so requires, order the suspension of or dissolution of such
corporation, trust, firm, partnership association or juridical person.
Art. 93. All actions for offenses punishable under Article 91 of this code
shall be brought before the proper court.
Art. 94. Actions for offenses punishable under this Code by a fine of not
more than Three Thousand pesos (P3,000.00) or by an imprisonment of not
more than three (3) years, or both such fine and imprisonment, shall prescribed
in five (5) years; those punishable by a fine exceeding Three Thousand Pesos
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(P3,000.00) but not more than six thousand Pesos (P6,000.00) or imprisonment
exceeding three (3) years but not more than six years (6) years or both such
fine and imprisonment, shall prescribe in seven (7) years; and those punishable
by a fine exceeding Six Thousand Pesos (P6,000.00) but not more than Ten
Thousand Pesos (P10,000.00) or an imprisonment exceeding six (6) years but
not more than Twelve (12) years, or both such fine and imprisonment, shall
prescribe in ten (10) years.
CHAPTER IX
TRANSITORY AND FINAL PROVISIONS
Art. 95. Within two (2) years from the promulgation of this code, all
claims for a right to use water existing on or before December 31, 1974 shall be
registered with the Council which shall confirm said rights in accordance with
the provisions of this Code, and shall set their respective priorities.
When priority in time of appropriation from a certain source of supply
cannot be determined, the order of preference in the use of the waters shall be
as follows:
a.
b.
Irrigation;
c.
Power generation;
d.
Fisheries;
e.
Livestock raising;
f.
g.
Other uses.
Any claim not registered within said period shall be considered waived
and the use of the water deemed abandoned, and the water shall thereupon
be available for disposition as unappropriated waters in accordance with the
provisions of this code.
Art. 96. No vested or acquired right to the use of water can arise from
acts or omissions which are against the law or which infringe upon the rights
of others.
Art. 97. Acts and contracts under the regime of old laws, if they are
valid in accordance therewith, shall be respected, subject to the limitations
established in this Code. Any modification or extension of these acts and
contracts after the promulgation of this code, shall be subject to the provisions
hereof.
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Chapter 2
MINERALS
Art. 519. Mining claims and rights and other matters concerning
minerals and mineral lands are governed by special laws. (427a)
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in public and private lands within the territory and exclusive economic
zone of the Republic of the Philippines are owned by the State.
Small-scale mining activities, however, are governed by Republic
Act No. 7076, otherwise known as the Peoples Small-Scale Mining
Act of 1991.
Chapter 3
TRADEMARKS AND TRADE NAMES
Art. 520. A trademark or trade name duly registered in the proper
government bureau or office is owned by and pertains to the person, corporation, or firm registering the same, subject to the provisions of special
laws. (n)
Art. 521. The goodwill of a business is property, and may be transferred together with the right to use the name under which the business
is conducted. (n)
Art. 522. Trademarks and trade names are governed by special laws.
(n)
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Title V. POSSESSION
Chapter 1
POSSESSION AND THE KINDS THEREOF
Art. 523. Possession is the holding of a thing or the enjoyment of a
right. (430a)
1
2
238.
Art. 523, NCC.
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to Article 531, such that the concept does not refer only to material
occupation but likewise to the fact that the thing is subjected to the
action of our will. Such being the case, it is apparent that the concept
of possession implies a relation of power or control over the object of
possession and its possessor, whether said object be things or rights.
Hence, according to Castan,4 the concept of possession connotes the
following: (1) it implies a relation between a person and things; (2) such
relation is one of power or control; and (3) such control is one of fact
which is effective but without resolving whether it carries with it or not
a title of ownership.
[80.2] Elements of Possession
379
that the said drug is a regulated drug.11 This crime is mala prohibita,
and, as such, criminal intent is not an essential element. However,
the prosecution must prove that the accused had the intent to possess
(animus possidendi) the drugs.12 Possession, under the law, includes
not only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate physical possession
or control of the accused.13 On the other hand, constructive possession
exists when the drug is under the dominion and control of the accused
or when he has the right to exercise dominion and control over the place
where it is found.14 Hence, the prosecution must prove that the accused
had knowledge of the existence and presence of the drug in the place
under his control and dominion and the character of the drug.15 Since
knowledge by the accused of the existence and character of the drugs
in the place where he exercises dominion and control is an internal act,
the same may be presumed from the fact that the dangerous drug is in
the house or place over which the accused has control or dominion, or
within such premises in the absence of any satisfactory explanation.16
The burden of evidence is then shifted to the accused to explain the
absence of knowledge or animus possidendi.17 In the case of People
v. Tira,18 the conviction of the appellant Connie Tira for the crime of
possession of regulated drugs was sustained by the Supreme Court
because the appellant failed to prove the absence of animus possidendi.
The Court, in the said case, explained
In this case, the prohibited and regulated drugs were
found under the bed in the inner room of the house of the
appellants where they also resided. The appellants had actual
and exclusive possession and control and dominion over the
house, including the room where the drugs were found by
the policemen. The appellant Connie Tira cannot escape
criminal liability for the crime charged simply and merely on
People v. Tira, 430 SCRA 134 (2004).
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
People of the Phil. v. Jinsir Jhur, CA-GR. No. 22842, Nov. 23, 2005, citing People v. Tira,
430 SCRA 134.
18
Supra.
11
12
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12 Phil. 739.
See Von Savignys Treatise on Possession; or the Jus Possessionis of the Civil Law, Sixth
Edition. Translated from the German by Sir Erskine Perry.
21
See also II Reyes and Puno, Outline of Phil. Civil Law, 90-91.
22
II Caguioa, Civil Code, 1966 ed., 163-164.
19
20
381
(2)
(3)
(4)
(2)
(3)
382
PROPERTY
383
in the property, for which reason, a new title was issued in the name of the
respondent for the entire property. It turned out that petitioner was prevailed
upon by the respondent to transfer the title to the whole property in favor of the
latter in order to obtain a loan from the GSIS pursuant to an agreement with
respondent that they would construct an apartment on the property through the
proceeds of an additional loan that respondent would secure from the GSIS
with the entire 300-square meter property as collateral, which additional loan,
however, did not materialize. In the meantime, the house situated on the lot
subject matter of the second sale was being leased out by the petitioner to the
Spouses Palacios since 1967. In 1984, petitioner allegedly refused to receive
the rentals thus prompting the Palacios spouses to file in 1985 a petition for
consignation, which resulted in a compromise agreement between the parties
within two months after its filing. It appears however that the Palacios spouses
were subsequently ejected from the premises but managed somehow to return.
When a contempt case was filed by petitioner against her lessees, respondent
intervened and claimed ownership of the property. Respondent likewise
claimed of the existence of a lease contract between her and the Palacios
spouses supposedly dated 17 March 1987 but retroactive to 1 January 1987. In
1987, the trial court dismissed the case and from then on, the Palacioses paid
rentals to respondent, prompting the petitioner to file in 1987 a case against the
respondent for the cancellation of the latters title to the property on the ground
that the deed of sale between them were merely simulated. The trial court ruled
in favor of the petitioner on the ground that the deeds of sale between the parties
were merely simulated, hence, void. On appeal, the Court of Appeals reversed
the decision and ruled in favor of the respondent based on the grounds, among
others, that: (1) petitioners cause of action had prescribed since the complaint
should have been filed either within ten (10) years from 1969 as an action to
recover title to real property, or within ten (10) years from 1970 as an action
based on a written contract; and (2) petitioners cause of action was barred by
laches having allowed respondent to stay in possession of the lot in question
for eighteen (18) years after the execution of the second deed of sale. Petitioner
elevated the case to the Supreme Court, which ruled in her favor, thus
Petitioner posits that it was only in 1987 when respondent
intervened in the contempt case alleging to be the owner and lessor
did her cause of action accrue; hence, her complaint filed on
23 August 1987 has not yet prescribed. Petitioner asserts that the
10 January 1970 agreement is more credible and probable than
the second deed of sale because such document contains their real
intention.
In Heirs of Jose Olviga v. Court of Appeals, we restated the
rule that an action for reconveyance of a parcel of land based on
implied or constructive trust prescribes in ten (10) years, the point
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385
386
PROPERTY
387
Philippine government and administered by the National Abaca and Other Fibers
Corporation, and thereafter by the respondent Board of Liquidators (BOL).
In 1970, Reynaldo Manalili, predecessor-in-interest of respondent Ronald C.
Manalili, filed with the BOL an application to purchase the subject property,
attaching therewith his Occupants Affidavit. The application was favorably
acted upon and in 1972 Manalili paid the down payment. Thereafter, Manalili
declared the land for taxation purposes. The Manalilis administered the land
before they left for Manila in 1972. After they moved to Manila, they appointed
an administrator to oversee the land and the improvements and crops they have
planted thereon, such as bananas and coconut trees. 1981, after the lapse of
nine (9) years and even as the BOL had already issued a Certification of Full
Payment endorsing the approval of the sale of the land in question to applicant
Reynaldo Manalili, petitioner Rodolfo Santos filed a protest before the BOL
and requested for an investigation. He claimed to be the actual occupant of the
property and that he introduced considerable improvements thereon, as against
respondent Manalili who was never in possession, occupation and cultivation
of the same. In ruling for the respondent Manalili, the Court explained
The two (2) courts below, in unanimously upholding the
validity of the sale of the land in question to the Manalilis, likewise
affirmed the BOLs finding that the Manalilis had a better right
of possession thereto. Preponderant evidence of respondent have
sufficiently established that as early as 1970, Reynaldo Manalili,
respondents predecessor-in-interest, had already filed an Affidavit
of Occupancy with the BOL, the government agency tasked
to administer it; that the Manalilis administered the land before
they left for Manila in 1972; that after they moved to Manila they
appointed an administrator to oversee the land and the improvements
and crops they have planted thereon, such as bananas and coconut
trees; and that the Manalilis have been paying the real estate taxes
for the subject land even before the sale thereof to them.
The circumstance that after the sale, the Manalilis resided
in Manila and Pangasinan is of no moment. As it is, possession
may be exercised in ones own name or in that of another. It is not
necessary that the owner or holder of the thing exercise personally
the rights of possession. Rights of possession may be exercised
through agents.
In contrast, petitioners claim of having bought the land from
a certain Ernesto Abalahin who, in turn, bought it from one Col.
Agsalud, allegedly a guerrilla veteran who occupied the lot from
1956 to 1959, is without basis. For one, no proof has been presented
by petitioner as to the alleged title of Col. Agsalud or the transfer
388
PROPERTY
389
390
PROPERTY
391
392
PROPERTY
393
The belief of the possessor that he is the legal owner of the thing
must be based upon some title or mode of acquisition, such as a sale,
donation, inheritance, or other means of transmitting ownership;
for without this, there can be no real well-grounded belief of ones
ownership.41 Hence, a person who has no title or mode of acquisition
but whose occupation of the land of another is by reason of the latters
tolerance or permission cannot be considered a possessor or builder in
good faith.42 At the same time, the good faith of the possessor must rest
on a colorable right and must be beyond a mere stubborn belief in ones
title despite judicial adjudication.43
In relation to builder in good faith, good faith is ordinarily identified
by the belief that the land is owned; or that by some title one
has the right to build, plant, or sow thereon.44 As discussed, however,
in supra 47.1.4, there were some special cases where the Supreme
40
PNB v. De Jesus, G.R. No. 149295, September 23, 2003; see also Cabal v. Cabal, G.R.
No. 153625, July 31, 2006; Ochoa v. Apeta, G.R. No. 146259, Sept. 13, 2007.
41
II Tolentino, Civil Code, 1992 ed., 248-249.
42
Resuena v. CA, 454 SCRA 42, 53 (2005); Pada-Kilario v. CA, 322 SCRA 481 (2000);
Refugia v. CA, 258 SCRA 347 (1996).
43
Baltazar v. Caridad, 17 SCRA 460. See this case in supra 46.1.1.
44
Macasaet v. Macasaet, 439 SCRA 625 (2004).
394
PROPERTY
Court recognized the good faith of the possessor or builder beyond this
limited definition. Let us consider the cases of Macasaet v. Macasaet45
and Sarmiento v. Agana,46 for example.
In Macasaet v. Macasaet, the spouses Ismael and Teresita Macasaet
were invited by the parents of Ismael (spouses Vicente and Rosario
Macasaet) to occupy the latters two lots, out of parental love and a
desire to foster family solidarity. Pursuant to such invitation, Ismael
and Teresita constructed their conjugal house on the said property.
Unfortunately, an unresolved conflict terminated this situation. Out
of pique, the parents of Ismael asked them to vacate the premises, for
which reason, the children lost their right to remain on the property.
The children, however, claimed that they were builders in good faith
and therefore entitled to exercise the rights granted under Article
448 of the New Civil Code. In resolving this question, the Supreme
Court recognized that the children were bereft of any title or mode of
acquisition upon which to base their claim of being possessor-builders
in good faith, nevertheless, because of the uniqueness of the situation
and since the parents fully consented to the improvements therein
introduced, the Court considered them possessor-builders in good faith
entitled to exercise the rights granted under Article 448 of the New Civil
Code. The Court explained
On the other hand, when a person builds in good faith
on the land of another, the applicable provision is Article
448, which reads:
xxx xxx
This Court has ruled that this provision covers only cases
in which the builders, sowers or planters believe themselves
to be owners of the land or, at least, to have a claim of title
thereto. It does not apply when the interest is merely that of
a holder, such as a mere tenant, agent or usufructuary. From
these pronouncements, good faith is identified by the belief
that the land is owned; or that by some title one has the
right to build, plant, or sow thereon.
45
46
Supra.
129 SCRA 122 (1984). See digest of this case in supra 46.3.2.
395
47
48
396
PROPERTY
A possessor in good faith is one who is not aware that there exists
in his title or mode of acquisition any flaw which invalidates it.54 On
Parilla v. Pilar, G.R. No. 167680, Nov. 30, 2006; Macasaet v. Macasaet, supra;
Id.
51
Geminiano v. CA, 259 SCRA 344 (1996).
52
Florentino v. CA, G.R. No. 172384, Sept. 12, 2007.
53
Pershing Tan Cueto v. CA, 148 SCRA 54 (1987).
54
Caram v. Laureta, 103 SCRA 7; Manotok Realty, Inc. v. CA, 134 SCRA 325; PNB v. De
Jesus, G.R. No. 149295, Sept. 23, 2003; see also Cabal v. Cabal, G.R. No. 153625, July 31, 2006;
Ochoa v. Apeta, G.R. No. 146259, Sept. 13, 2007.
49
50
397
398
PROPERTY
62
399
Good faith is always presumed, and upon him who alleges bad faith
on the part of the possessor rests the burden of proof.63 There is a parallel
presumption under the Rules of Evidence in favor of the innocence of a
person from any wrongdoing.64 This rule is but a necessary consequence
of the treatment that the law accords to possession which under the
Civil Code is viewed as an outward appearance of ownership. Note that
under Article 433 of the New Civil Code, actual possession under claim
of ownership is viewed as that of presumed ownership.
The presumption in favor of the good faith of the possessor,
however, is only juris tantum65 and may be overcome by proof to the
contrary. If no evidence is presented proving bad faith, the presumption
of good faith therefore remains66 for it is likewise presumed that
possession continues to be enjoyed on the same character in which it
was acquired, until the contrary is proved.67
This presumption in favor of good faith continues to subsist
until facts exist which show that the possessor is already aware that
he wrongfully or improperly possesses the thing.68 In other words,
every possessor in good faith becomes a possessor in bad faith from
the moment he becomes aware that what he believed to be true is not
so.69 Consequently, possession in good faith ceases from the moment
defects in the title are made known to the possessors, by extraneous
evidence or by suit for recovery of the property by the true owner.70
Whatever may be the cause or the fact from which it can be deduced
that the possessor has knowledge of the defects of his title or mode of
acquisition, it must be considered sufficient to show bad faith.71 In Tacas
v. Tobon,72 the Supreme Court held that if there are no other facts from
Art. 527, NCC.
See Rule 131, Sec. 3(a), Rules of Court.
65
See Pacific Banking Corp. v. CA, 173 SCRA 102.
66
Escritor, Jr. v. IAC, 155 SCRA 577.
67
Art. 529, NCC.
68
Art. 528, NCC; Lacap v. Lee, G.R. No. 142131, December 11, 2002.
69
Ballesteros v. Abion, G.R. No. 143361, February 09, 2006, citing Tacas v. Tobon, 53 Phil.
356 (1929).
70
Ortiz v. Kayanan, 92 SCRA 146 (1979).
71
Wong v. Carpio, 203 SCRA 118 (1991).
72
53 Phil. 356 (1929); see also Mindanao Academy, Inc. v. Yap, 13 SCRA 190 (1965); Ortiz
v. Cayanan, 92 SCRA 146 (1979); Wong v. Carpio, 203 SCRA 118 (1991); Maneclang v. Baun,
63
64
400
PROPERTY
401
402
PROPERTY
23, 1900, and July 11, 1903, must be understood, all of them
holding that even the possessor in good faith must return the
fruits received from the time the answer to the complaint
was filed, that is, from the time he became aware that he
was in undue possession. (Manresa, Commentaries on the
Spanish Civil Code, vol. 4, pp. 270, 271.)
The interruption of good faith on the part of the possessor need
not occur by reason of initiation of legal proceedings. As earlier stated,
whatever may be the cause or the fact from which it can be deduced
that the possessor has knowledge of the defects of his title or mode
of acquisition, it must be considered sufficient to show bad faith.74 In
one case,75 for example, the receipt of a letter from the daughter of the
plaintiff advising defendant to desist from planting coconuts on a land
in the possession of defendant, and which letter the defendant answered
by saying that she did not intend to plant coconuts on the land belonging
to plaintiff, was considered as the reckoning point for the interruption
of good faith. In this case, it was held that the possession in bad faith of
the defendant began from the receipt of such letter.
It is only in case of absence of facts from which the interruption of
good faith may be determined that such interruption shall be reckoned
from the date of receipt of the summons or from the filing of the answer,
as the case may be.
Art. 530. Only things and rights which are susceptible of being appropriated may be the object of possession. (437)
403
(2)
(3)
(4)
Discontinuous servitudes;
(5)
Non-apparent servitudes.
404
PROPERTY
Chapter 2
ACQUISITION OF POSSESSION
Art. 531. Possession is acquired by the material occupation of a
thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for
acquiring such right. (438a)
Art. 532. Possession may be acquired by the same person who is to
enjoy it, by his legal representative, by his agent, or by any person without any power whatever; but in the last case, the possession shall not be
considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridical
consequences of negotiorum gestio in a proper case. (439a)
(2)
(3)
405
goods are placed in the bag of a person by another without the formers
knowledge and consent, the former is not considered a possessor in law
because of the absence of intent to possess the goods.
[84.3] Material Occupation
The term material occupation in Article 531 of the New Civil Code is used in its ordinary grammatical meaning, to mean actual
physical possession or material apprehension. Obviously, this mode
applies only to corporeal objects and does not find application to acquisition of possession over a right. In this sense, the term material
occupation in Article 531 is synonymous to occupation as a mode of
acquiring ownership under Article 712 of the New Civil Code because
both involve the material apprehension of things corporeal. They differ,
however, in the following respects:
(1)
(2)
(3)
(4)
(5)
406
PROPERTY
407
408
PROPERTY
where the goods were stored was sufficient to show that the depositary
was legally placed in possession of the goods.
Tradicion longa manu, on the other hand, is effected by the transferor pointing out to the transferee the things which are being transferred.
[84.6] Proper Acts and Legal Formalities
409
410
PROPERTY
411
412
PROPERTY
affecting the title or mode of acquisition of the decedent, the heir shall
be considered a possessor in good faith because good faith is always
presumed.109 However, the effects of possession in good faith shall not
benefit the heir except from the date of death of the decedent.110
Escritor, Jr. v. IAC
155 SCRA 577 (1987)
In this case, Miguel Escritor filed an application for the titling of a
parcel of land located at Atimonan, Quezon. There being no opposition
to his application, the cadastral court rendered a decision on May 15, 1958
adjudicating the lot with its improvements in favor of claimant Escritor and
confirming his title thereto. Immediately thereafter, Escritor took possession
of the property. On August 2, 1958, Simeon Acua, filed a petition for review
of the above-mentioned decision contending that it was obtained by claimant
Escritor through fraud and misrepresentation. While the proceedings in this
case were going on, Escritor died. His heirs subsequently took possession of
the property. On February 16, 1971 or thirteen years after the disputed decision
was rendered, the court adjudicated in favor of Acuna, ordering the heirs of
Escritor to vacate the land. A writ of possession was later issued and the heirs
of Escritor voluntarily gave up their possession. In 1975, Acuna filed another
case against the heirs of Escritor for recovery of damages for the fruits of
the land which was allegedly possessed by the defendants unlawfully for
thirteen years. Acua alleged that the registration of the lot was effectuated
by the deceased Escritor through fraud, malice, and misrepresentation. Hence,
according to him, Escritor and his heirs were possessors in bad faith. The lower
court rendered a decision dismissing Acuas complaint finding that that the
heirs of Escritor were in good faith possessing under a just title. On appeal, the
Intermediate Appellate Court held that the heirs of Escritor were possessors in
bad faith from 1958 up to 1971 and should be held accountable for damages.
The Supreme Court, on appeal, reversed the judgment of the IAC. The Court
explained
Nevertheless, assuming that claimant Escritor was a possessor in bad faith, this should not prejudice his successors-in-interest, petitioners herein, as the rule is that only personal knowledge of the flaw in ones title or mode of acquisition can make him
a possessor in bad faith, for bad faith is not transmissible from one
person to another, not even to an heir. As Article 534 of the Civil
109
110
413
414
PROPERTY
of a thing, must invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a)
Art. 537. Acts merely tolerated, and those executed clandestinely
and without the knowledge of the possessor of a thing, or by violence, do
not affect possession. (444)
112
415
Id., citing Gener v. De Leon, 367 SCRA 631 (2001) and Ceremonia v. CA, 314 SCRA
114
731.
Villaflor v. Reyes, 22 SCRA 392, January 30, 1968; Pitargue v. Sorilla, 92 Phil. 5, Sept.
115
17, 1952.
Heirs of Pedro Laurora, et al. v. Sterling Technopark III, et al., supra.
116
416
PROPERTY
claim of ownership is not being made in order to prove prior possession, the
ejectment court cannot intrude or dwell upon the issue of ownership. The Court
added
Notwithstanding the actual condition of the title to the
property, a person in possession cannot be ejected by force,
violence or terror not even by the owners. If such illegal manner
of ejectment is employed, as it was in the present case, the party
who proves prior possession in this case, petitioners can
recover possession even from the owners themselves.
Granting arguendo that petitioners illegally entered into and
occupied the property in question, respondents had no right to take
the law into their own hands and summarily or forcibly eject the
occupants therefrom.
Verily, even if petitioners were mere usurpers of the land
owned by respondents, still they are entitled to remain on it
until they are lawfully ejected therefrom. Under appropriate
circumstances, respondents may file, other than an ejectment suit,
an accion publiciana a plenary action intended to recover the
better right to possess; or an accion reivindicatoria an action to
recover ownership of real property.
The availment of the aforementioned remedies is the legal
alternative to prevent breaches of peace and criminal disorder
resulting from the use of force by claimants out to gain possession.
The rule of law does not allow the mighty and the privileged to
take the law into their own hands to enforce their alleged rights.
They should go to court and seek judicial vindication.
[86.2] Acts Merely Tolerated
The rule is that acts which are merely tolerated do not affect
possession.117 In other words, persons whose occupation of a property is
by sheer tolerance of its owners are not considered as possessors in law.
In the language of the Court, tolerance in itself does not bear any legal
fruit, and it can easily be supplanted by a sudden change of heart on
the part of the owner.118 Hence, the mere permissive use, constituting
acts which are merely tolerated by the possessor, or due to his license,
117
118
417
120
418
PROPERTY
out of friendship or courtesy. x x x. And, Tolentino continues, even though this is continued for a long time, no
right will be acquired by prescription. x x x. Further
expounding on the concept, Tolentino writes: There
is tacit consent of the possessor to the acts which are
merely tolerated. Thus, not every case of knowledge
and silence on the part of the possessor can be considered mere tolerance. By virtue of tolerance that is
considered as an authorization, permission or license,
acts of possession are realized or performed. The question reduces itself to the existence or non-existence of
the permission.
In the Macasaet case,127 the children were invited by the parents
to occupy the latters lots, out of parental love and a desire to foster
family solidarity. Subsequently, however, and out of pique, the parents
asked them to vacate the premises. The Court ruled that owing to the
circumstances of the case, a finding of possession by mere tolerance is
to be ruled out. In this case, the Court explained
We hold that the facts of the present case rule out the
finding of possession by mere tolerance. Petitioners were
able to establish that respondents had invited them to occupy
the subject lots in order that they could all live near one
other and help in resolving family problems. By occupying
those lots, petitioners demonstrated their acceptance of the
invitation. Hence, there was a meeting of minds, and an
agreement regarding possession of the lots impliedly arose
between the parties.
The occupancy of the subject lots by petitioners was
not merely something not wholly approved of by respondents. Neither did it arise from what Tolentino refers to as
neighborliness or familiarity. In point of fact, their possession was upon the invitation of and with the complete approval of respondents, who desired that their children would
occupy the premises. It arose from familial love and a desire
for family solidarity, which are basic Filipino traits.
127
419
128
129
420
PROPERTY
(2)
(3)
If the dates of possession are the same, the one who presents
a title.
If all the foregoing conditions are equal, the thing shall be placed
in judicial deposit pending determination of its possession or ownership
through proper proceedings.131
In determining who the present possessor is, the precepts earlier
discussed in this Chapter shall be taken into consideration. Hence, if the
controversy is between a previous possessor and the actual possessor who
acquires possession through force, violence, intimidation, clandestine
130
131
421
acts not known to the previous possessor, the previous possessor shall
be deemed as the present possessor because his possession was not
affected. The same is true in case of possession by mere tolerance of
the owner, in which case, the actual possessor is not deemed as the
present possessor because his possession does not affect the owners
possession.
In applying the foregoing rule of preference, the case of Cequea
v. Bolante132 is instructive. The facts of this case are presented below:
Cequea v. Bolante
G.R. No. 137944, April 6, 2000
This case involves a parcel of land situated in Binangonan, Rizal and
covered by a tax declaration. Prior to 1954, the land was originally declared
for taxation purposes in the name of Sinforoso Mendoza, father of respondent
Honorata Mendoza Bolante. Sinforoso was the occupant of the said property
until his death in 1930. When Sinforoso died, his brother (Margarito) took
possession of the land and cultivated the same with his son, Miguel. At the
same time, respondent and her mother continued residing on the land. When
respondent came of age in 1948, she paid the realty taxes on the land for the
years 1932 up to 1948. In 1953, Margarito declared the land for taxation
purposes in his name and paid the realty taxes beginning 1952. When Margarito
died, Miguel continued cultivating the land. During the time that Margarito
and Miguel were cultivating the land, respondent and her mother were living
on the same land. In 1985, Miguel was physically ousted from the property by
the respondent. Litigations thereafter ensued between the respondent and the
petitioners (daughters of Margarito and sisters of Miguel) on the question of
who shall be considered as the preferred possessor.
The lower court in the said case ruled in favor of the petitioners on
the strength of the tax declaration of their father (Margarito). On appeal,
the appellate court reversed the ruling of the trial court and ruled that the
respondent was the preferred possessor under Article 538 of the Civil
Code because she was in notorious, actual, exclusive and continuous
possession of the land since 1985. Petitioners disputed this ruling. They
contended that she came into possession through force and violence,
contrary to Article 536 of the Civil Code. On this particular issue, the
Supreme Court made the following pronouncements
132
422
PROPERTY
423
fathers tax declaration of the subject lot since 1926, she has
been in possession thereof for a longer period. On the other
hand, petitioners father acquired joint possession only in
1952.
The Court emphasized, however, that Article 538 of the New
Civil Code settles only the question of possession and that possession is
different from ownership. With respect to the question on ownership, the
same should be established in one of the ways provided by law. In this
case, according to the Court, the question of ownership could be settled
by determining who between the claimants has proven acquisitive
prescription. The Court ruled again in favor of the respondent
Ownership of immovable property is acquired by
ordinary prescription through possession for ten years. Being
the sole heir of her father, respondent showed through his tax
receipt that she had been in possession of the land for more
than ten years since 1932. When her father died in 1930,
she continued to reside there with her mother. When she got
married, she and her husband engaged in kaingin inside the
disputed lot for their livelihood.
Respondents possession was not disturbed until
1953 when the petitioners father claimed the land. But by
then, her possession, which was in the concept of owner,
public, peaceful, and uninterrupted had already ripened
into ownership. Furthermore she herself, after her fathers
demise, declared and paid realty taxes for the disputed land.
Tax receipts and declarations of ownership for taxation, when
coupled with proof of actual possession of the property, can
be the basis of a claim for ownership through prescription.
In contrast, the petitioners, despite thirty-two years of
farming the subject land, did not acquire ownership. It is
settled that ownership cannot be acquired by mere occupation.
Unless coupled with the element of hostility toward the true
owner, occupation and use, however long, will not confer
title by prescription or adverse possession. Moreover, the
petitioners cannot claim that their possession was public,
peaceful and uninterrupted. Although their father and
brother arguably acquired ownership through extraordinary
424
PROPERTY
prescription because of their adverse possession for thirtytwo years (1953-1985), this supposed ownership cannot
extend to the entire disputed lot, but must be limited to the
portion that they actually farmed.
Chapter 3
EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or
restored to said possession by the means established by the laws and the
Rules of Court.
A possessor deprived of his possession through forcible entry may
within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of
preliminary mandatory injunction to restore him in his possession. The
court shall decide the motion within thirty (30) days from the filing thereof. (446a)
425
is shown that there is another person with a better right.137 The fact of
possession in itself, therefore, has a positive value and is endowed with
a distinct standing of its own in the law of property.138 True, by this
principle of respect for the possessory status, a wrongful possessor may
at times be upheld by the courts, but this is only temporary and for one
sole and special purpose, namely, the maintenance of public order.139
The protection is only temporary because it is intended that as soon as
the lawless act of dispossession has been suppressed, the question of
ownership or of possession de jure is to be settled in the proper court
and in a proper action.140 The larger and permanent interests of property
require that such rare and exceptional instance of preference in the
courts of the actual but wrongful possessor be permitted.141
[88.2] Actions to Recover Possession
426
PROPERTY
427
428
PROPERTY
(2)
(3)
429
430
PROPERTY
4 Manresa 245-246; 248, cited in II Tolentino, Civil Code, 1992 ed., 283-284.
Esguerra v. Manantan, G.R. No. 158328, February 23, 2007; see also Marcelo v. Court
of Appeals, 305 SCRA 800, 807-808 (1999).
155
Art. 1118, NCC.
156
Art. 540, NCC.
157
Esguerra v. Manantan, supra; also in Marcelo v. Court of Appeals, supra, citing Mariategui v. CA, 205 SCRA 337; Adille v. CA, 157 SCRA 455; Bargayo v. Camumot, 40 Phil. 857;
Laguna v. Levantino, 71 Phil. 566.
158
Art. 1119, NCC.
159
Esguerra v. Manantan, supra; also in Marcelo v. Court of Appeals, supra.
153
154
431
trial, a decision was rendered in favor of the heirs of Jose Marcelo; however,
on appeal to the Court of Appeals, the same was reversed. Hence, this petition
assailing the decision of the Court of Appeals which ruled that the action initiated by Marcelos heirs would not prosper on the theory that Flores already has
acquired ownership of the disputed land by ordinary acquisitive prescription.
According to Marcelos heirs, the parcel of land subject of litigation was
originally owned by Jose Marcelo and they had been in continuous possession
thereof since 1939. In 1967, they discovered that a portion of said property had
been encroached upon by Cruz, but Cruz still sold his property, including the
encroached parcel of land to Flores. Cruz, however, alleged that the disputed
land is part of the land he acquired in 1960 from the heirs of Jorge Sarmiento,
which he (Cruz) had surveyed and declared for taxation purposes. Then, in
1968, he sold the whole lot to Flores who then occupied and cultivated the
same.
The contract executed by Cruz and the heirs of Sarmiento includes the
encroached property, as found by the trial court and the appellate court. And
when Cruz sold the land to Flores, the latter immediately took possession
of the same to the exclusion of all others and promptly paid the realty taxes
thereon. From that time on, Flores had been in possession of the entire area
in the concept of an owner and holding it in that capacity for almost 14 years
before the heirs of Marcelo initiated their complaint in 1982. The records of
the case supported the holding of the appellate court that the requirements
for ordinary prescription have been duly met Flores took possession of the
controverted property in good faith and with just title because the said portion
was an integral part of the bigger tract of land which he bought from Cruz.
Further, Flores possession was not only in the concept of an owner but also
public, peaceful and uninterrupted. Hence, the Court found no cogent reasons
to reverse the findings of the appellate court and thus gave its affirmance to the
assailed decision.
Art. 543. Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may
be allotted to him upon the division thereof, for the entire period during which the co-possession lasted. Interruption in the possession of the
whole or a part of a thing possessed in common shall be to the prejudice
of all the possessors. However, in case of civil interruption, the Rules of
Court shall apply. (450a)
90. Co-possession
As discussed in supra 87 in relation to Article 538, the law
does not recognize the possibility of possession de facto residing at the
432
PROPERTY
433
the land in the concept of owner and adverse to the interest of the copossessors and continued to possess the same until the co-possessors
decided to divide the property possessed in common on the eleventh
year. In this situation, the interruption of possession in connection with
one third of the area of the land will prejudice not only C but all the
co-possessors. Hence, the co-possessors can claim ownership only of
two-third of the area through acquisitive prescription and only this area
can be the subject of partition among the co-possessors.
Art. 544. A possessor in good faith is entitled to the fruits received
before the possession is legally interrupted.
Natural and industrial fruits are considered received from the time
they are gathered or severed.
Civil fruits are deemed to accrue daily and belong to the possessor
in good faith in that proportion. (451)
Art. 545. If at the time the good faith ceases, there should be any
natural or industrial fruits, the possessor shall have a right to a part of the
expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession.
The charges shall be divided on the same basis by the two possessors.
The owner of the thing may, should he so desire, give the possessor
in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and
the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall lose the right to be
indemnified in any other manner. (452a)
434
PROPERTY
will arise with respect to his rights over the fruits. This question is
answered by the provisions of Articles 544, 545 and 549 of the New
Civil Code. Pursuant to these articles, the rights of possessors in relation
to the fruits shall depend on his good faith or bad faith and on whether
such fruits have already been received by him or are still pending:
I. Possessor in Good Faith
A.
[91.1] Rule
163
Ballesteros v. Abion, G.R. No. 143361, February 9, 2006, citing Tacas v. Tobon, 53 Phil.
356 (1929).
435
436
PROPERTY
Pending Fruits
[91.4] Rule
168
437
[91.6] Rule
438
PROPERTY
Pending Fruits
[91.7] Rule
See II Caguioa, Civil Code, 1966 ed., 205, citing 4 Manresa, 5th ed., 252-253; Director
of Lands v. Abagat, 53 Phil. 147.
172
See supra 42.4.
173
See Art. 452, NCC.
174
See Art. 546, 1st par., NCC, in relation to Art. 549, NCC.
171
439
the possessor in bad faith if the fruits have already been received by the
latter. However, the possessor in bad faith is still entitled to recover the
necessary expenses incurred by him for the preservation of the land175 or
the thing176 which bore the fruit.
[91.8] Rule With Respect to Trees
For trees that were planted by the builder in bad faith, the rules on
accesion industrial will apply. Hence, in connection with these trees,
the landowner may exercise the options discussed in supra 48.2.
Art. 546. Necessary expenses shall be refunded to every possessor;
but only the possessor in good faith may retain the thing until he has
been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good
faith with the same right of retention, the person who has defeated him in
the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired
by reason thereof. (453a)
Art. 547. If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them,
unless the person who recovers the possession exercises the option under paragraph 2 of the preceding article. (n)
Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments
with which he has embellished the principal thing if it suffers no injury
thereby, and if his successor in the possession does not prefer to refund
the amount expended. (454)
Art. 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received,
and shall have a right only to the expenses mentioned in paragraph 1 of
Article 546 and in Article 443. The expenses incurred in improvements for
pure luxury or mere pleasure shall not be refunded to the possessor in
bad faith, but he may remove the objects for which such expenses have
been incurred, provided that the thing suffers no injury thereby, and that
the lawful possessor does not prefer to retain them by paying the value
they may have at the time he enters into possession. (455a)
175
176
440
PROPERTY
441
442
PROPERTY
443
of the New Civil Code, only a possessor in good faith may remove
useful improvements if this can be done without damage to the principal
thing and if the person who recovers the possession does not exercise
the option of reimbursing the useful expenses.204
MWSS v. Court of Appeals
143 SCRA 623 (1986)
The City of Dagupan (hereinafter referred to as the CITY) filed a complaint
against the former National Waterworks and Sewerage Authority (hereinafter
referred to as the NAWASA), now the Metropolitan Waterworks and Sewerage
System (hereinafter referred to as MWSS), for recovery of the ownership and
possession of the Dagupan Waterworks System. NAWASA interposed as one
of its special defenses R.A. No. 1383 which vested upon it the ownership,
possession and control of all waterworks systems throughout the Philippines
and as one of its counterclaims the reimbursement of the expenses it had
incurred for necessary and useful improvements amounting to P255,000.00.
Judgment was rendered by the trial court in favor of the CITY on the basis of
a stipulation of facts. The trial court found NAWASA to be a possessor in bad
faith and hence, not entitled to the reimbursement claimed by it. NAWASA
appealed to the then Court of Appeals and argued in its lone assignment of
error that the CITY should have been held liable for the amortization of the
balance of the loan secured by NAWASA for the improvement of the Dagupan
Waterworks System. The appellate court affirmed the judgment of the trial
court. MWSS, successor-in-interest of the NAWASA, appealed to this Court
raising the sole issue of whether or not it has the right to remove all the useful
improvements introduced by NAWASA to the Dagupan Waterworks System,
notwithstanding the fact that NAWASA was found to be a possessor in bad
faith. In support of its claim for removal of said useful improvements, MWSS
argues that the pertinent laws on the subject, particularly Articles 546, 547 and
549 of the Civil Code of the Philippines, do not definitely settle the question of
whether a possessor in bad faith has the right to remove useful improvements.
The Supreme Court held
xxx Does a possessor in bad faith have the right to remove
useful improvements? The answer is clearly in the negative.
Recognized authorities on the subject are agreed on this point.
Article 449 of the Civil Code of the Philippines provides that
he who builds, plants or sows in bad faith on the land of another,
loses what is built, planted or sown without right to indemnity. As
204
Id.
444
PROPERTY
Right of Retention
445
the right to the expenses and the right to the fruits both pertain to the
possessor, making compensation juridically impossible; and one cannot
be used to reduce the other.210 Pending reimbursement of the amount due
him, the possessor in good faith is likewise entitled to have his right
recorded in the certificate of title as an encumbrance on the property
so that whoever may get the property will be forewarned of his right to
such retention and refund.211
[92.3.2] How to Determine Value of Useful Improvements
Article 546 does not specifically state how the value of the useful
improvements should be determined. However, this problem was
categorically resolved by the Supreme Court in the case of Pecson v.
Court of Appeals212 where it was held that the current market value
of the improvements should be made the basis of reimbursement. In
arriving at this ruling, the Court took notice of the objective of the article
which is to administer justice between the parties involved. Otherwise
stated, the said provision was formulated in trying to adjust the rights of
the owner and possessor in good faith of a piece of land, to administer
complete justice to both of them in such a way as neither one nor the
other may enrich himself of that which does not belong to him.213
[92.4] Right of Possessors to Expenses For Pure Luxury
446
PROPERTY
The foregoing discussion in connection with the rights of possessors to improvements has reference to improvements caused by the
will of the possessor, such as trees planted by them or buildings constructed by them. If the improvements, however, are caused by nature
or by time, the same shall inure to the owner following the law on accession, without need of indemnifying the possessor in good faith. This
is confirmed by Article 551 of the New Civil Code, which states:
Art. 551. Improvements caused by nature or time shall
always insure to the benefit of the person who has succeeded
in recovering possession. (456)
[92.6] Improvements Which Ceased To Exist
216
217
447
Art. 550. The costs of litigation over the property shall be borne by
every possessor. (n)
Art. 551. Improvements caused by nature or time shall always insure to the benefit of the person who has succeeded in recovering possession. (456)
Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is
proved that he has acted with fraudulent intent or negligence, after the
judicial summons.
A possessor in bad faith shall be liable for deterioration or loss in
every case, even if caused by a fortuitous event. (457a)
Art. 553. One who recovers possession shall not be obliged to pay
for improvements which have ceased to exist at the time he takes possession of the thing. (458)
448
PROPERTY
449
He who has a right may renounce it. This act by which thing is
voluntary renounced constitutes an abandonment.221 However, for a
property to be considered abandoned under the law, it is necessary that
the spes recuperandi (hope of recovery or recapture) is gone and the
animus revertendi (intent to recover) is finally given up.222 Certainly,
the possessor of a thing cannot be held to have abandoned the same
until at least he has some knowledge of the loss of its possession or of
the loss of the thing.223 Hence, there is no real intention to abandon a
property when, as in the case of a shipwreck or a fire, things are thrown
into the sea or on the highway.224 To be effective, it is necessary that the
abandonment be made by a possessor in the concept of an owner.225
US v. Laurente Rey
8 Phil. 500 (1907)
In this case, three boxes containing money, amounting to at least 25,000
pesos, were on board the steamer Cantabria. The ship, however, was totally
wrecked off the small Island of Mababuy. Defendant Laurente Rey and several
others discovered the existence and location of the wrecked steamer and took
from the boxes the sum of 15,000 pesos. Defendant Rey was later on charged
with the crime of robbery. For his defense, defendant Rey contended that the
property was abandoned property and therefore, granting that he had taken
possession of the same, he was not guilty of the crime of robbery when he
appropriated it to his own use. When the case reached the Supreme Court, it
4 Manresa 291, cited in US v. Rey, 8 Phil. 500 (1907).
US v. Rey, supra.
223
Id.
224
4 Manresa 291, cited in US v. Rey, supra.
225
4 Manresa, 5th ed., 277.
221
222
450
PROPERTY
was held that there was no abandonment of the property and that defendant
Rey was guilty of the crime of robbery. The Court explained
The evidence shows, if it can be believed, that the defendant
and his companions entered the wrecked ship and removed
therefrom the said money and appropriated the same to his own use
in about twenty-four hours after the time of sinking of the said ship.
Can one be charged with the abandonment of his property without
even knowing that the same has passed out of his possession or has
been lost? We are of the opinion, and so hold, that this question
must be answered in the negative.
Manresa, in his Commentaries upon the provisions of the
Civil Code, says (vol. 4, p. 291):
He who has a right may renounce it. This act by which thing
is voluntary renounced constitutes an abandonment. There is no
real intention to abandon a property when, as in the case of a shipwreck or a fire, things are thrown into the sea upon the highway.
Certainly the owner of the property cannot be held to have
abandoned the same until at least he has some knowledge of the
loss of its possession or of the loss of the thing.
Property cannot be considered abandoned under the law and
the possession left vacant for the finder until the spes recuperandi
is gone and the animus revertendi is finally given up. (The Ann L.
Lockwood, 37 Fed. Rep., 233.)
The theory of abandonment on the part of the owners of
the money stolen is fully refuted by the fact that some weeks
after the wreck of the said ship they sent men to the place of the
wreck for the purpose of recovering the property which belonged
to them, which was on board the ship at the time of her sinking.
The mere fact that cargo is sunk with a ship wrecked at sea by no
means deprives the owner of said cargo of his property therein.
The owner certainly still had the right to reclaim such property
and to recover the same if possible. If it should be recovered by
others, the real owner would be entitled to recover its value less the
necessary expense of recovering the same and carrying it shore by
the most approved appliances for that purpose by others. (Murphy
v. Dunham, 38 Fed. Rep., 503.)
If the defendant and his companions had recovered the cargo
from the sunken ship for the benefit of the owners of the same,
he might have been entitled to compensation of his labor, but
451
when he entered the sunken ship and took therefrom, by force, the
property of another before actual abandonment by the owner and
appropriated the same to his own use, he was, under the provisions
of the Penal Code in force in the Philippine Islands, guilty of the
crime of robbery.
[99.2] Assignment
452
PROPERTY
453
acts which are merely tolerated and those executed clandestinely and
without the knowledge of the possessor or through violence as long as
there is a possessor who objects thereto. In the aforesaid circumstances,
only possession as a fact (possession de facto) is affected but not the
real right of possession. As a consequence, the real right of possession
may not be lost through any of said means.
In paragraph 4 of Article 555, what is lost after the lapse of ten
(10) years is possession de jure, not necessarily the ownership of the
property. Ownership and possession are distinct concepts. For ownership
to be lost through possession by another, it must be in the concept of an
owner, public, peaceful and uninterrupted.236 If the possession is in this
nature, the same shall ripen into ownership over a real property after the
lapse of ten years if coupled with a just title or good faith on the part of
the possessor.237 If the possession of this nature last for thirty (30) years,
ownership over a real property is also acquired without need of just title
or of good faith.238
Art. 556. The possession of movables is not deemed lost so long as
they remain under the control of the possessor, even though for the time
being he may not know their whereabouts. (461)
454
PROPERTY
455
456
PROPERTY
457
458
PROPERTY
Santos rushed to the alleged house of Marella to see the latter. He found the
house closed and Marella gone. Finally, he reported the matter to his father who
promptly advised the police authorities. On that same day, Marella was able to
sell the car in question to Jose B. Aznar for P15,000.00, the latter acting in good
and without notice of the defect appertaining to the vendors title. While the car
in question was in the possession of Jose B. Aznar and while he was attending
to its registration in his name, agents of the Philippine Constabulary seized
and confiscated the same in consequence of the report to them by Teodoro
Santos that the said car was unlawfully taken from him. On the question of
whether Teodoro Santos can recover the car from Jose Aznar without need
of indemnifying the latter, the Court ruled in the affirmative applying the
provisions of Article 559 of the New Civil Code. The Court explained
The lower court was correct in applying Article 559 of the
Civil Code to the case at bar, for under it, the rule is to the effect
that if the owner has lost a thing, or if he has been unlawfully
deprived of it, he has a right to recover it, not only from the finder,
thief or robber, but also from third persons who may have acquired
it in good faith from such finder, thief or robber. The said article
establishes two exceptions to the general rule of irrevindicability,
to wit, when the owner: (1) has lost the thing, or (2) has been
unlawfully deprived thereof. In these cases, the possessor cannot
retain the thing as against the owner, who may recover it without
paying any indemnity, except when the possessor acquired it in a
public sale. (Del Rosario v. Lucena, 8 Phil. 535; Varela v. Finnick,
9 Phil. 482; Varela v. Matute, 9 Phil. 479; Arenas v. Raymundo, 19
Phil. 46. Tolentino, id., Vol. II, p. 261.)
In the case of Cruz v. Pahati, et al., 52 O.G. 3053, this Court
has already ruled that:
Under Article 559 of the new Civil Code, a person illegally
deprived of any movable may recover it from the person in
possession of the same and the only defense the latter may have is
if he has acquired it in good faith at a public sale, in which case, the
owner cannot obtain its return without reimbursing the price paid
therefor. In the present case, plaintiff has been illegally deprived
of his car through the ingenious scheme of defendant B to enable
the latter to dispose of it as if he were the owner thereof. Plaintiff,
therefore, can still recover possession of the car even if it is in the
possession of a third party who had acquired it in good faith from
defendant B. The maxim that no man can transfer to another a
better title than he had himself obtains in the civil as well as in
the common law. (U.S. v. Sotelo, 28 Phil. 147)
459
460
PROPERTY
letter was falsified and this fact can be clearly seen by a cursory examination
of the document.
Counsel for appellee places much reliance on the common law principle
that where one of two innocent parties must suffer by a fraud perpetrated
by another, the law imposes the loss upon the party who, by his misplaced
confidence, has enabled the fraud to be committed, and contends that as
between plaintiff and Bulahan, the former should bear the loss because of
the confidence he reposed in Belizo which enabled the latter to commit the
falsification. But this principle cannot be applied to this case which is covered
by an express provision of our new Civil Code. Between a common law
principle and a statutory provision, the latter must undoubtedly prevail in this
jurisdiction.
[101.2.3] In Case There Is Transfer of Ownership
461
the invoice he showed her, paid him P1,700.00. Meanwhile, EDCA having
become suspicious over a second order placed by Cruz even before clearing
of his first check, made inquiries with the De la Salle College where he had
claimed to be a dean and was informed that there was no such person in its
employ. Further verification revealed that Cruz had no more account or deposit
with the Philippine Amanah Bank, against which he had drawn the payment
check. EDCA then went to the police, which set a trap and arrested Cruz on 7
October 1981. Investigation disclosed his real name as Tomas de la Pea and
his sale of 120 of the books he had ordered from EDCA to Leonor Santos (and
Gerardo Santos, doing business as Santos Bookstore). On the night of said
date 7 October 1981, EDCA sought the assistance of the police in Precinct 5 at
the UN Avenue, which forced their way into Santos Bookstore and threatened
Leonor Santos with prosecution for buying stolen property. They seized the
120 books without warrant, loading them in a van belonging to EDCA, and
thereafter turned them over to EDCA. Protesting this high-handed action, the
Santos spouses sued for recovery of the books after demand for their return was
rejected by EDCA. A writ of preliminary attachment was issued and EDCA,
after initial refusal, finally surrendered the books to the Santos spouses. On the
question of whether EDCA was unlawfully deprived of the books sold to the
Santos couple, the Supreme Court held
The petitioner argues that it was, because the impostor
acquired no title to the books that he could have validly transferred
to the private respondents. Its reason is that as the payment check
bounced for lack of funds, there was a failure of consideration that
nullified the contract of sale between it and Cruz.
The contract of sale is consensual and is perfected once
agreement is reached between the parties on the subject matter and
the consideration. According to the Civil Code:
Art. 1475. The contract of sale is perfected at the moment
there is a meeting of minds upon the thing which is the object of
the contract and upon the price.
From that moment, the parties may reciprocally demand
performance, subject to the provisions of the law governing the
form of contracts.
xxx
xxx
xxx
462
PROPERTY
xxx
xxx
463
464
PROPERTY
paid for them to EDCA was a matter between him and EDCA and
did not impair the title acquired by the private respondents to the
books.
One may well imagine the adverse consequences if the
phrase unlawfully deprived were to be interpreted in the manner
suggested by the petitioner. A person relying on the sellers title
who buys a movable property from him would have to surrender it
to another person claiming to be the original owner who had not yet
been paid the purchase price therefor. The buyer in the second sale
would be left holding the bag, so to speak, and would be compelled
to return the thing bought by him in good faith without even the
right to reimbursement of the amount he had paid for it.
It bears repeating that in the case before us, Leonor Santos
took care to ascertain first that the books belonged to Cruz before
she agreed to purchase them. The EDCA invoice Cruz showed
her assured her that the books had been paid for on delivery. By
contrast, EDCA was less than cautious in fact, too trusting in
dealing with the impostor. Although it had never transacted with
him before, it readily delivered the books he had ordered (by
telephone) and as readily accepted his personal check in payment.
It did not verify his identity although it was easy enough to do this.
It did not wait to clear the check of this unknown drawer. Worse,
it indicated in the sales invoice issued to him, by the printed terms
thereon, that the books had been paid for on delivery, thereby
vesting ownership in the buyer.
Surely, the private respondent did not have to go beyond
that invoice to satisfy herself that the books being offered for sale
by Cruz belonged to him; yet she did. Although the title of Cruz
was presumed under Article 559 by his mere possession of the
books, these being movable property, Leonor Santos nevertheless
demanded more proof before deciding to buy them.
[101.3] Cases Where There Is No Recovery
There are cases where the owner may no longer recover the movable
property even if he has lost the same or he has been unlawfully deprived
thereof. In the following cases, the owner of a movable property who
has lost it or has been unlawfully deprived of it may no longer recover
the thing from the possessor:
(1)
465
466
PROPERTY
467
467
468
PROPERTY
469
When the law or the title creating the usufruct provides that
the usufructuary is not so obliged;17
(2)
(3)
(2)
Id.
Id.
18
Art. 573, NCC.
19
Art. 574, NCC.
20
See 4 Manresa, 6th ed., 403.
21
2 Castan, 9th ed., 486-487.
16
17
470
PROPERTY
When although the alteration may be burdensome to the successor in the use of the property, the usufructuary guarantess
that he will restore thing to its original state.22
Art. 563. Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by
prescription. (468)
Art. 564. Usufruct may be constituted on the whole or a part of the
fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal
or intransmissible. (469)
Art. 565. The rights and obligations of the usufructuary shall be
those provided in the title constituting the usufruct; in default of such
title, or in case it is deficient, the provisions contained in the two following Chapters shall be observed. (470)
22
Id.
471
472
PROPERTY
When Article 562 of the New Civil Code declares that the
usufructuary is entitled to enjoy the property of another, the property
being referred to may either be a real property or a personal one. In
addition, Article 564 of the New Civil Code clarifies that a usufruct may
473
(2)
474
PROPERTY
Art. 569. Civil fruits are deemed to accrue daily, and belong to the
usufructuary in proportion to the time the usufruct may last. (474)
Art. 570. Whenever a usufruct is constituted on the right to receive
a rent or periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be
considered as the proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits accruing from a
participation in any industrial or commercial enterprise, the date of the
distribution of which is not fixed, such benefits shall have the same character.
In either case they shall be distributed as civil fruits, and shall be
applied in the manner prescribed in the preceding article. (475)
Art. 571. The usufructuary shall have the right to enjoy any increase
which the thing in usufruct may acquire through accession, the servitudes established in its favor, and, in general, all the benefits inherent
therein. (479)
Art. 572. The usufructuary may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, even by a gratuitous title; but all the contracts he may enter into as such usufructuary
shall terminate upon the expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting during the agricultural
year. (480)
Art. 573. Whenever the usufruct includes things which, without being consumed, gradually deteriorate through wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them
at the termination of the usufruct except in their condition at that time, but
he shall be obliged to indemnify the owner for any deterioration they may
have suffered by reason of his fraud or negligence. (481)
Art. 574. Whenever the usufruct includes things which cannot be
used without being consumed, the usufructuary shall have the right to
make use of them under the obligation of paying their appraised value at
the termination of the usufruct, if they were appraised when delivered. In
case they were not appraised, he shall have the right to return the same
quantity and quality, or pay their current price at the time the usufruct
ceases. (482)
Art. 575. The usufructuary of fruit-bearing trees and shrubs may
make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants. (483a)
Art. 576. If in consequence of a calamity or extraordinary event, the
trees or shrubs shall have disappeared in such considerable number that
it would not be possible or it would be too burdensome to replace them,
475
the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the
land. (484a)
Art. 577. The usufructuary of woodland may enjoy all the benefits
which it may produce according to its nature.
If the woodland is a copse or consists of timber for building, the
usufructuary may do such ordinary cutting or felling as the owner was in
the habit of doing, and in default of this, he may do so in accordance with
the custom of the place, as to the manner, amount and season.
In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land.
In nurseries, the usufructuary may make the necessary thinnings in
order that the remaining trees may properly grow.
With the exception of the provisions of the preceding paragraphs,
the usufructuary cannot cut down trees unless it be to restore or improve
some of the things in usufruct, and in such case he shall first inform the
owner of the necessity for the work. (485)
Art. 578. The usufructuary of an action to recover real property or a
real right, or any movable property, has the right to bring the action and
to oblige the owner thereof to give him the authority for this purpose and
to furnish him whatever proof he may have. If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct shall
be limited to the fruits, the dominion remaining with the owner. (486)
Art. 579. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may
deem proper, provided he does not alter its form or substance; but he
shall have no right to be indemnified therefor. He may, however, remove
such improvements, should it be possible to do so without damage to the
property. (487)
Art. 580. The usufructuary may set off the improvements he may
have made on the property against any damage to the same. (488)
Art. 581. The owner of property the usufruct of which is held by
another, may alienate it, but he cannot alter its form or substance or do
anything thereon which may be prejudicial to the usufructuary. (489)
Art. 582. The usufructuary of a part of a thing held in common shall
exercise all the rights pertaining to the owner thereof with respect to the
administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the
usufruct of the part allotted to the co-owner shall belong to the usufructuary. (490)
476
PROPERTY
The usufructuary has the right to draw from the property all the
profits, utilities and advantages which it may produce, provided it be
without altering the form and substance of the thing. With respect to
the use of the property, the usufructuary is entitled to enjoy the utilities
derived from the property provided that it be the result of the normal
exploitation of the property in accordance with its purpose or destination.
As a consequence
(1) The right of enjoyment of the usufructuary extends to all
the accessions which the property held in usufruct may acquire, to
the servitudes or easements established in favor of such property, as
well as to all the benefits inherent in the property.35 In these cases, had
the owner himself been in the enjoyment of the property, he would be
entitled to all such benefits. Since such right of enjoyment is transferred
to the usufructuary, it follows that the latter is also entitled to enjoy the
foregoing benefits.
31
Moralidad v. Sps. Pernes, G.R. No. 152809, August 3, 2006, citing Hemedes v. Court of
Appeals, 316 SCRA 309 (1999).
32
Id., citing Eleizegui v. Manila Lawn Tennis Club, 2 Phil. 309 (1909).
33
See supra 34.1.
34
See II Tolentino, Civil Code of the Phil., 1992 ed., 321.
35
See Art. 571, NCC.
477
478
PROPERTY
held in usufruct to another. After all, in lease, the lessor is not required
to be the owner of the property leased since only the use or enjoyment of
the thing is transferred. However, such lease is co-terminus with the life
of the usufruct and shall terminate upon the expiration of the usufruct,
the only exception being the lease of rural lands which shall subsist
during the agricultural year despite the termination of the usufruct.43
By virtue of the usufructuarys right of possession over the
property held by him in usufruct, he is deemed as a lawful possessor
for purposes of applying the provisions of Article 429 of the New
Civil Code. As such, he has the right to exclude any person from the
enjoyment of the property, including the naked owner himself, and,
for such purpose, he may even use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of the property. However, the naked owner of an
immovable held in usufruct may, during the existence of the usufruct,
enter the property for the purpose of constructing any works, making
any improvements or new plantings thereon if the land is rural, provided
that such acts must not cause a diminution in the value of the usufruct
or prejudice the right of the usufructuary. This right of the owner is
expressly recognized in Article 595 of the New Civil Code
Art. 595. The owner may construct any works and
make any improvements of which the immovable in usufruct
is susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminution in the value
of the usufruct or prejudice the right of the usufructuary.
(503)
[105.1.3] Usufruct Does Not Include Jus Disponendi
The jus utendi and jus fruendi over the property, including the jus
possessidendi, are transferred to the usufructuary.44 However, the owner
of the property maintains the jus disponendi or the power to alienate,
encumber, transform and even destroy the same.45 This principle is
embodied in Article 581 of the New Civil Code, which provides that
479
480
PROPERTY
During the existence of the usufruct, the naked owner may still
exercise some of his rights as owner with respect to the property held in
usufruct subject to the following limitations: (1) that there shall be no
alteration of the form or substance of the thing;50 (2) that it shall not be
prejudicial nor injurious to the right of the usufructuary;51 and (3) that
there shall be no diminution in the value of the usufruct.52 Subject to
these limitations, the owner may exercise the following rights:
(1) As discussed above, the owner may alienate the property
held in usufruct since the owner retains the jus disponendi;53
(2) As discussed above, the owner may mortgage the property
held in usufruct since he retains the jus disponendi;54
(3) The owner may construct any works and make any
improvements of which the immovable in usufruct is susceptible, or
make new plantings thereof if it be rural;55
(4) The owner may, without the consent of the usufructuary,
impose a voluntary easement upon the tenement or piece of land held in
usufruct56 since easement consists only of a limited use and enjoyment
of the thing without possession. However, no perpetual voluntary
easement may be established on the property without the consent of
both the naked owner and the usufructuary.57
However, the naked owner may not constitute a lease over the
property held in usufruct because possession is one of the rights which
is transferred to the usufructuary.58 Note that it is the usufructuary who
has the right to constitute a lease over the property held in usufruct.59
481
482
PROPERTY
the owner of the property but the latter shall be obliged to reimburse the
usufructuary the ordinary expenses of cultivation, for seeds and other
similar expenses incurred by the usufructuary.66 These rules are without
prejudice to any right that a third person may have acquired over the
fruits at the beginning or at the termination of the usufruct.67
[105.2.3] Rule as to Civil Fruits
While the usufructuary does not have the right to dispose of the
property held in usufruct since that right remains with the naked owner,74
he has absolute control and dominion over his usufructuary right. Hence,
he may alienate or encumber his right of usufruct without the consent
of the owner of the property whether by onerous or gratuitous title.75
In other words, the law does not require the usufructuary to personally
enjoy the property in usufruct. He may transfer such right of enjoyment,
Id.
Id.
68
Art. 569, NCC.
69
Id.
70
Art. 568, NCC.
71
Art. 572, NCC.
72
Art. 570, NCC.
73
Id.
74
See discussions in supra., 105.1.3.
75
Art. 572, NCC.
66
67
483
484
PROPERTY
485
(2) To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter. (491)
Art. 584. The provisions of No. 2 of the preceding article shall not
apply to the donor who has reserved the usufruct of the property donated,
or to the parents who are usufructuaries of their childrens property, except when the parents contract a second marriage. (492a)
Art. 585. The usufructuary, whatever may be the title of the usufruct,
may be excused from the obligation of making an inventory or of giving
security, when no one will be injured thereby. (493)
Art. 586. Should the usufructuary fail to give security in the cases in
which he is bound to give it, the owner may demand that the immovables
be placed under administration, that the movables be sold, that the public
bonds, instruments of credit payable to order or to bearer be converted
into registered certificates or deposited in a bank or public institution,
and that the capital or sums in cash and the proceeds of the sale of the
movable property be invested in safe securities.
The interest on the proceeds of the sale of the movables and that
on public securities and bonds, and the proceeds of the property placed
under administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until the usufructuary
gives security or is excused from so doing, retain in his possession the
property in usufruct as administrator, subject to the obligation to deliver
to the usufructuary the net proceeds thereof, after deducting the sums
which may be agreed upon or judicially allowed him for such administration. (494)
Art. 587. If the usufructuary who has not given security claims, by
virtue of a promise under oath, the delivery of the furniture necessary for
his use, and that he and his family be allowed to live in a house included
in the usufruct, the court may grant this petition, after due consideration
of the facts of the case.
The same rule shall be observed with respect to implements, tools
and other movable property necessary for an industry or vocation in
which he is engaged.
If the owner does not wish that certain articles be sold because of
their artistic worth or because they have a sentimental value, he may demand their delivery to him upon his giving security for the payment of the
legal interest on their appraised value. (495)
Art. 588. After the security has been given by the usufructuary, he
shall have a right to all the proceeds and benefits from the day on which,
in accordance with the title constituting the usufruct, he should have
commenced to receive them. (496)
486
PROPERTY
Before entering upon the enjoyment of the property, the usufructuary is obliged: (1) to make an inventory of all the property covered by
the right of usufruct; and (2) to give security or bond.87 Note, however,
that these obligations are not conditions sine qua non for the effectivity
of the usufruct or for its commencement. In other words, whether or
not the usufructuary complies with both obligations, the usufruct will
nonetheless become effective and the term or period of the usufruct will
already commence to run. However, the usufructuary may not, as a rule,
possess and enjoy the property subject matter of the usufruct unless and
until these obligations are complied with. Stated otherwise, compliance
with these obligations is a condition sine qua non for the usufructuarys
entry upon the possession and enjoyment of the property.
[107.2] Consequences of Failure to Comply with the Foregoing
Obligations
It must be noted that while Article 586 of the New Civil Code
provides for the effects of failure to give the security required in the
second paragraph of Article 583, the law is silent as to the effects of the
failure to make the inventory required in the first paragraph of Article
583. According to Sanchez Roman, the effect of the failure to make an
inventory is the same as that of the failure to give security.88 This view is
shared by two of our eminent civilists, Eduardo P. Caguioa89 and Justice
J.B.L. Reyes.90 Following their view, the provisions of Article 586 of
the New Civil Code shall also apply to the failure of the usufructuary to
make the inventory.
Art. 583.
3 Sanchez Roman 575-576.
89
See II Caguioa, Civil Code of the Phil., 1966 ed., 242.
90
See II Reyes and Puno, Outline of Civil Law, p. 137.
87
88
487
488
PROPERTY
(1) When the donor has reserved the usufruct of the property
donated;95 and
(2) In case of legal usufruct of the parents over the property of
their minor children living in their custody and under their parental
authority, except when the parents contract a second marriage96 or when
the market value of the property or the annual income of the child
exceeds P50,000.97
[107.4] Instances Where Usufructuary May Be Relieved of the
Foregoing Obligations
489
the animals that die each year from natural causes, or are lost due to the
rapacity of beasts of prey.
If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious
disease or any other uncommon event, the usufructuary shall fulfill his
obligation by delivering to the owner the remains which may have been
saved from the misfortune.
Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, the usufruct shall continue on the part
saved.
Should the usufruct be on sterile animals, it shall be considered, with
respect to its effects, as though constituted on fungible things. (499a)
Art. 592. The usufructuary is obliged to make the ordinary repairs
needed by the thing given in usufruct.
By ordinary repairs are understood such as are required by the wear
and tear due to the natural use of the thing and are indispensable for its
preservation. Should the usufructuary fail to make them after demand by
the owner, the latter may make them at the expense of the usufructuary.
(500)
Art. 593. Extraordinary repairs shall be at the expense of the owner.
The usufructuary is obliged to notify the owner when the need for such
repairs is urgent. (501)
Art. 594. If the owner should make the extraordinary repairs, he
shall have a right to demand of the usufructuary the legal interest on the
amount expended for the time that the usufruct lasts.
Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have
a right to demand of the owner, at the termination of the usufruct, the
increase in value which the immovable may have acquired by reason of
the repairs. (502a)
Art. 595. The owner may construct any works and make any improvements of which the immovable in usufruct is susceptible, or make
new plantings thereon if it be rural, provided that such acts do not cause
a diminution in the value of the usufruct or prejudice the right of the usufructuary. (503)
Art. 596. The payment of annual charges and taxes and of those
considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts. (504)
Art. 597. The taxes which, during the usufruct, may be imposed
directly on the capital, shall be at the expense of the owner.
490
PROPERTY
If the latter has paid them, the usufructuary shall pay him the proper
interest on the sums which may have been paid in that character; and, if
the said sums have been advanced by the usufructuary, he shall recover
the amount thereof at the termination of the usufruct. (505)
Art. 598. If the usufruct be constituted on the whole of a patrimony,
and if at the time of its constitution the owner has debts, the provisions
of Articles 758 and 759 relating to donations shall be applied, both with
respect to the maintenance of the usufruct and to the obligation of the
usufructuary to pay such debts.
The same rule shall be applied in case the owner is obliged, at the
time the usufruct is constituted, to make periodical payments, even if
there should be no known capital. (506)
Art. 599. The usufructuary may claim any matured credits which
form a part of the usufruct if he has given or gives the proper security.
If he has been excused from giving security or has not been able to give
it, or if that given is not sufficient, he shall need the authorization of the
owner, or of the court in default thereof, to collect such credits.
The usufructuary who has given security may use the capital he has
collected in any manner he may deem proper. The usufructuary who has
not given security shall invest the said capital at interest upon agreement
with the owner; in default of such agreement, with judicial authorization;
and, in every case, with security sufficient to preserve the integrity of the
capital in usufruct. (507)
Art. 600. The usufructuary of a mortgaged immovable shall not be
obliged to pay the debt for the security of which the mortgage was constituted.
Should the immovable be attached or sold judicially for the payment
of the debt, the owner shall be liable to the usufructuary for whatever the
latter may lose by reason thereof. (509)
Art. 601. The usufructuary shall be obliged to notify the owner of
any act of a third person, of which he may have knowledge, that may be
prejudicial to the rights of ownership, and he shall be liable should he not
do so, for damages, as if they had been caused through his own fault.
(511)
Art. 602. The expenses, costs and liabilities in suits brought with
regard to the usufruct shall be borne by the usufructuary. (512)
491
has the obligation to preserve its form and substance102 and in the performance of this obligation, he is required to observe the diligence of
a good father of a family.103 To further carry out this obligation, the law
specifically tasks the usufructuary to: (1) make the ordinary repairs on
the property held in usufruct;104 (2) pay the annual charges and taxes
which are imposed on the fruits of the property held in usufruct;105 (3)
notify the owner of the need of urgent extraordinary repairs;106 (4) pay
the expenses, costs and liabilities for suits involving the usufruct;107 and
(5) notify the owner of any act of a third person that may be prejudicial
to the rights of the owner.108
[108.1] Ordinary and Extraordinary Repairs
492
PROPERTY
make the repairs himself114 but he has the obligation to notify the owner
of the need of such repairs in view of the urgency of the matter.115
If the need for the extraordinary repairs is urgent, such that they
are indispensable for the preservation of the thing, the law imposes an
obligation upon the usufructuary to notify the owner of the need of
such repairs.116 If after such notice, the owner still fails to make the
extraordinary repairs, the usufructuary is then authorized to make them,
in which case, he acquires the following rights in connection therewith:
(1) the right to demand of the owner, at the termination of the usufruct,
the increase in value which the immovable may have acquired by reason
of the repair;117 and the right to retain the property held in usufruct
pending the reimbursement by the owner of such expenses.118
If the extraordinary expenses are indispensable for the preservation of the thing and the same were made by the usufructuary but
without prior notice to the owner, it is not clear whether the usufructuary is entitled to the indemnity and right of retention. It is submitted,
however, that these rights may not be availed by the usufructuary in the
absence of a prior notice to the owner of the urgent need for extraordinary repairs. Note that the law does not impose upon the usufructuary
the obligation to make such repairs even if the same are needed for the
preservation of the thing held in usufruct. He is only granted an option
to make the repairs himself in situations where the owner fails to do so
upon notice. As a consequence, the obligation of the owner to indemnify the usufructuary for any expenses incurred by the latter in connection with the making of extraordinary repairs is conditioned upon the
owners failure to make the repairs when notified by the usufructuary.
Absent such notice, any expenses incurred by the usufructuary for such
expenses shall be borne by him. After all, he is also benefited by such
repairs since the thing is restored to its condition of usefulness.
But what constitutes ordinary or extraordinary repairs? Pursuant to the provision of the second paragraph of Article 592, the repair
is considered ordinary if the following requisites concur: (1) it is reSee Art. 594, NCC.
See Art. 593, NCC.
116
Id.
117
Art. 594, 2nd par., NCC.
118
See Art. 612, NCC.
114
115
493
quired by the wear and tear due to the natural use of the thing; and (2)
it is indispensable for the preservation of the thing. If both requisites
are not satisfied, then the repair is considered extraordinary. Hence,
repairs which are caused by exceptional circumstances, whether or not
they are necessary for the preservation of the thing, are considered extraordinary. Likewise, those which are caused by the natural use of the
thing but are not necessary for its preservation are considered extraordinary repairs.
[108.2] Payment of Annual Charges and Taxes
120
494
PROPERTY
128
See Mercado v. Rizal, 67 Phil. 608 (1941); Bislig Bay Lumber Co., Inc. v. Provincial
Government of Surigao, 100 Phil. 303 (1956); Board of Assessment Appeals of Zamboanga del
Sur v. Samar Mining Company, Inc., 37 SCRA 734 (1971).
129
Mercado v. Rizal, supra.
130
II Tolentino, Civil Code of the Phil., 1992 ed., 343.
131
See 3 Sanchez Roman 587.
132
Art. 601, NCC.
133
Id.
495
Chapter 4
EXTINGUISHMENT OF USUFRUCT
Art. 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary intention
clearly appears;
(2) By the expiration of the period for which it was constituted or
by the fulfillment of any resolutory condition provided in the title creating
the usufruct;
(3)
(4)
(5)
(6)
usufruct;
(7)
Art. 604. If the thing given in usufruct should be lost only in part, the
right shall continue on the remaining part. (514)
Art. 605. Usufruct cannot be constituted in favor of a town, corporation, or association for more than fifty years. If it has been constituted, and
before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by
reason thereof. (515a)
Art. 606. A usufruct granted for the time that may elapse before a
third person attains a certain age, shall subsist for the number of years
specified, even if the third person should die before the period expires,
unless such usufruct has been expressly granted only in consideration of
the existence of such person. (516)
Art. 607. If the usufruct is constituted on immovable property of
which a building forms part, and the latter should be destroyed in any
manner whatsoever, the usufructuary shall have a right to make use of
the land and the materials.
The same rule shall be applied if the usufruct is constituted on a
building only and the same should be destroyed. But in such a case, if the
owner should wish to construct another building, he shall have a right to
occupy the land and to make use of the materials, being obliged to pay
to the usufructuary, during the continuance of the usufruct, the interest
upon the sum equivalent to the value of the land and of the materials.
(517)
496
PROPERTY
Art. 608. If the usufructuary shares with the owner the insurance of
the tenement given in usufruct, the former shall, in case of loss, continue
in the enjoyment of the new building, should one be constructed, or shall
receive the interest on the insurance indemnity if the owner does not wish
to rebuild.
Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall receive the
full amount of the insurance indemnity in case of loss, saving always the
right granted to the usufructuary in the preceding article. (518a)
Art. 609. Should the thing in usufruct be expropriated for public use,
the owner shall be obliged either to replace it with another thing of the
same value and of similar conditions, or to pay the usufructuary the legal
interest on the amount of the indemnity for the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for
the payment of the interest. (519)
Art. 610. A usufruct is not extinguished by bad use of the thing in
usufruct; but if the abuse should cause considerable injury to the owner,
the latter may demand that the thing be delivered to him, binding himself
to pay annually to the usufructuary the net proceeds of the same, after
deducting the expenses and the compensation which may be allowed him
for its administration. (520)
Art. 611. A usufruct constituted in favor of several persons living at
the time of its constitution shall not be extinguished until the death of the
last survivor. (521)
Art. 612. Upon the termination of the usufruct, the thing in usufruct
shall be delivered to the owner, without prejudice to the right of retention
pertaining to the usufructuary or his heirs for taxes and extraordinary
expenses which should be reimbursed. After the delivery has been made,
the security or mortgage shall be cancelled. (522a)
(2)
(3)
497
(4)
(5)
(6)
(7)
By prescription.134
498
PROPERTY
The expiration of the period for which the usufruct was constituted
or the fulfillment of the resolutory condition imposed on the usufruct
by the person constituting it shall likewise result in the extinguishment
of the usufruct. However, even prior to the arrival of the period or prior
to the fulfillment of the resolutory condition, the usufruct is already
extinguished upon the death of the usufructuary unless there is an express
agreement that the usufruct shall continue even after such death.
As discussed in supra 109.1, the period of the usufruct must not
exceed fifty (50) years if it is constituted in favor of a town, corporation
or association.
In cases where the usufruct is granted for the time that may elapse
before a third person attains a certain age, the usufruct shall subsist for
the number of years specified, even if the third person should die before
the period expires.144 For example, if O creates a usufruct over his
property in favor of U to last until the child of U (C), who is five
years old, reaches the age of eighteen years old, the usufruct will continue
for another eight years even if C dies at the age of ten. However,
Art. 603(1), NCC.
2 Castan, 9th ed., 526; Decisions of the Supreme Court of Spain of October 1, 1919 and
July 2, 1952; 2 Valverde 449.
142
See II Tolentino, Civil Code of the Phil., 1992 ed., 347; II Caguioa, Civil Code of the
Phil., 1966 ed., 253.
143
Art. 611, NCC.
144
Art. 606, NCC.
140
141
499
500
PROPERTY
501
111. Concept
[111.1] Definition
1
2
501
502
PROPERTY
Although the Civil Code uses the terms easement and servitude
interchangeably, they are not, strictly speaking, synonymous. As can be
seen from supra 111.1, the concept may be defined either from the
point of view of the right enjoyed or from the viewpoint of the burden
imposed. Properly speaking, easement refers to the right enjoyed by
one4 while servitude refers to the burden imposed upon the other.5 Put
a little differently, easement and servitude are but the two aspects of
the same concept. The passive aspect of being an encumbrance is what
should properly be referred to as the servitude; whereas the active
aspect of being a right is what should properly be referred to as an
easement.
[111.1.2] Easement Is A Real Right
3
Bogo-Medellin Milling Co., Inc. v. CA, 407 SCRA 518 (2003); Sps. Dela Cruz v. Ramiscal, G.R. No. 137882, Feb. 4, 2005; see also Quimen v. CA, 257 SCRA 163 (1996), citing 3
Sanchez Roman 472.
4
Bouviers Law Dictionary, 3rd revision, Vol. 1, p. 967.
5
Bouviers Law Dictionary, 3rd revision, Vol. 1, p. 967.
6
II Caguioa, Civil Code of the Phil., 1966 ed., 262.
503
504
PROPERTY
505
506
PROPERTY
(b)
507
508
PROPERTY
509
(2)
(3)
(4)
(5)
(6)
(7)
(8)
510
PROPERTY
Apparent easements are those which are made known and are
continually kept in view by external signs that reveal the use and
enjoyment of the same.29 Non-apparent easements, on the other hand,
are those which show no external indication of their existence.30 Thus,
it is the presence of physical or visual signs that classifies an easement
into apparent or non-apparent. Thus, a road (which reveals a right of
way) and a window (which evidences a right to light and view) are
apparent easements, while an easement of not building beyond a certain
height is non-apparent.31
511
512
PROPERTY
38
39
Solid Manila Corp. v. Bio Hong Trading Co., 195 SCRA 748 (1991).
Id.
513
xxx
xxx
514
PROPERTY
prevent the public from using it, because as a servitude, the alley is
supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that
of the Court of Appeals, that no genuine merger took place
as a consequence of the sale in favor of the private respondent
corporation. According to the Civil Code, a merger exists when
ownership of the dominant and servient estates is consolidated
in the same person. Merger then, as can be seen, requires full
ownership of both estates.
One thing ought to be noted here, however. The servitude in
question is a personal servitude, that is to say, one constituted not
in favor of a particular tenement (a real servitude) but rather, for
the benefit of the general public.
Personal servitudes are referred to in the following article of
the Civil Code:
Art. 614. Servitudes may also be established for
the benefit of a community, or of one or more persons
to whom the encumbered estate does not belong.
In a personal servitude, there is therefore no owner of a
dominant tenement to speak of, and the easement pertains to persons without a dominant estate, in this case, the public at large.
Merger, as we said, presupposes the existence of a prior
servient-dominant owner relationship, and the termination of that
relation leaves the easement of no use. Unless the owner conveys
the property in favor of the public if that is possible no
genuine merger can take place that would terminate a personal
easement.
For this reason, the trial court was not in error in rendering
summary judgment, and insofar as the respondent Court of Appeals
held that it (the trial court) was in error, the Court of Appeals is in
error.
[113.2] Indivisibility
40
515
41
42
Id.
Id.
516
PROPERTY
Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted. (542)
Art. 626. The owner of the dominant estate cannot use the easement
except for the benefit of the immovable originally contemplated. Neither
can he exercise the easement in any other manner than that previously
established. (n)
517
518
PROPERTY
519
520
PROPERTY
(2)
(3)
(4)
(b)
521
light, because the openings through which the light penetrates may be
made in ones own wall, in the wall of ones neighbor, or in a party wall.
The legal doctrine applicable in either one of these cases is different,
owing to the fact that, although anyone may open windows in his own
wall, no one has a right to do so in the wall of another without the
consent of the owner, and it is also necessary, in accordance with Article
667 of the New Civil Code, to obtain the consent of the other co-owner
when the opening is to be made in a party wall.54
When a person opens windows in his own building he does
nothing more than exercise an act of ownership inherent in the right of
property, which, under Article 428 of the New Civil Code, empowers
him to deal with his property as he may see fit, with no limitations
other than those established by law. By reason of the fact that such an
act is performed wholly on a thing which is wholly the property of the
one opening the window, it does not in itself establish any easement,
because the property is used by its owner in the exercise of dominion,
and not as the exercise of an easement: For a man should not use
that which belongs to him as if it were a service only, but as his own
property. Coexistent with this right is the right of the owner of the
adjacent property to cover up such windows by building on his own
land or raising a wall contiguously to the wall in which the windows
are opened, by virtue of the reciprocity of rights which should exist
between abutting owners, and which would cease to exist if one could
do what he pleased on his property and the other could not do the same
on his. Hence, it is that the use of the windows opened in a wall of ones
own property, in the absence of some covenant or express agreement to
the contrary, is regarded as an act of mere tolerance on the part of the
owner of the abutting property, and does not create any right to maintain
the windows to the prejudice of the latter. The mere toleration of such
an act does not imply on the part of the abutting owner a waiver of his
right to freely build upon his land as high as he may see fit, nor does it
avail the owner of the windows for the effects of possession, because it
is a mere possession at will.55
From the foregoing, it follows that the easement of light with
respect to the openings made in ones own edifice does not consist
54
55
522
PROPERTY
Id.
See Amor v. Florentino, G.R. No. L-48384, Oct. 11, 1943.
58
See Cortes v. Yu-Tibo, supra.
56
57
523
If the window, on the other hand, is opened in a party wall, and not
in a wall the sole and exclusive property of the owner of the dominant
tenement, the easement of lights is positive and the 10-year period of
prescription commences from the time of the opening of the window.
The reason for this is because no part owner can, without the consent
of the other, make in a party wall a window or opening of any kind, as
provided in Article 667 of the New Civil Code. Hence, the very fact
of making such openings in such a wall might, therefore, be the basis
for the acquisition of a prescriptive title without the necessity of any
active opposition, because it always presupposes the express or implied
consent of the other part owner of the wall, which consent, in turn,
implies the voluntary waiver of the right of such part owner to oppose
the making of such openings or windows in such a wall.59
The same rule will apply if the window is opened on the wall
belonging to ones neighbor. The 10-year prescriptive period commences
from the time of the opening of the window. Stated otherwise, if anyone
shall open a window in the wall of his neighbor, through which the
light enters his house, by this sole fact he shall acquire a prescriptive
title to the easement of light, if the time fixed by law (ten years) expires
without opposition on the part of the owner of the wall.60
[114.3] Proof of Easement
Id.
Id.
61
See Concurring and Dissenting Opinion of Justice Laurel in North Negros Sugar Co. v.
Hidalgo, 63 Phil. 664.
62
Arts. 620 and 622, NCC.
59
60
524
PROPERTY
servient estate.63 If the owner of the servient estate denies the existence of
the easement or refuses to execute the deed of recognition, the existence
of the easement may nonetheless be established in a judicial proceeding
through preponderance of evidence.
Note that the existence of a title which serves as the basis for
the easement may be proven through oral testimonies of witnesses as
the same is not covered by the Statute of Frauds. Even if the servitude
is imposed upon a parcel of land and the obligation arises from an
oral contract, such agreement is not covered by the Statute of Frauds
considering that not all agreements affecting land must be put in
writing to attain enforceability.64 Under paragraph 2(e) of Article 1403
of the New Civil Code, such formality is required only of contracts
involving leases for longer than one year, or for the sale of real property
or of an interest therein.
[114.4] Easement By Apparent Sign or Legal Presumption
525
easement to speak of, there being but one owner of both estates.67 As
discussed in supra 111.1.4 and 112.1, a praedial or real easement is
one of the rights in anothers property, or jura in re aliena and nobody
can have an easement over his own property, nimini sua res servit.
Hence, the easement is not created till the division of the property. At
this point, the requisite that there must be two proprietors one of the
dominant estate and another of the servient estate is fulfilled.68
The foregoing principles are illustrated in the case of Gargantos v.
Tan Yanon, as follows:
Gargantos v. Tan Yanon
G.R. No. L-14652, June 30, 1952
Francisco Sanz was the former owner of a parcel of land, with the
buildings and improvements thereon. He subdivided the lot into three and then
sold each portion to different persons. One portion was purchased by Guillermo
Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with
the house of strong materials thereon, was sold to Tan Yanon (respondent).
This house has on its northeastern side, doors and windows over-looking the
third portion, which, together with the camarin and small building thereon,
after passing through several hands, was finally acquired by Juan Gargantos
(petitioner). Subsequently, Gargantos applied for a permit to construct a
combined residential house and warehouse on his lot. Tan Yanon opposed
approval of this application on the ground that the construction of the building
would prevent him from receiving light and enjoying the view through the
window of his house. Gargantos argued that Tan Yanon never acquired any
easement either by title or by prescription since there is no deed establishing
an easement. He further argued that neither he nor his predecessors-in-interest
have ever executed any deed whereby they recognized the existence of the
easement. In addition, Gargantos claimed that Tan Yanon did not acquire
easement by prescription because the latter never formally forbidden the
former from performing any act which would be lawful without the easement.
The Supreme Court held that Tan Yanon acquired the right of easement, not by
prescription, but by title pursuant to Article 624 of the New Civil Code. The
easement, according to the Court, was created after the sale of the estate to Tan
Yanon. The Court explained
It is obvious, however, that Article 538, O.C.C. (now
Article 621, N.C.C.) and the doctrine in the Yu-Tibo case are not
67
68
526
PROPERTY
527
a person different from the owner;69 (4) that the ownership over the two
estates is later on divided, either by alienation or partition; and (5) that
at the time of division of ownership, nothing is stated in the document
of alienation or partition contrary to the easement nor is the sign of the
easement removed before the execution of the document. It will thus be
seen that under Article 624 the existence of the apparent sign has for all
legal purposes the same character and effect as a title of acquisition of
the easement.70
Article 624 also applies to a situation where the two estates were
previously under a state of co-ownership but prior to partition there
exist an apparent sign of easement in one of the estates. For example,
A and B used to be co-owners of a parcel of land. A, during the
existence of the co-ownership constructed a house on one-half portion
of the co-owned property. On the northeastern side of the house, there
are windows and doors which serve as passages for light and view.
Subsequently, A and B executed a deed of partition whereby the
portion where the house stands was allotted to A while the other
half was allotted to B. The existence of the doors and windows on
the northeastern side of the aforementioned house, is equivalent to a
title, for the visible and permanent sign of an easement is the title that
characterizes its existence. If nothing has been stated in the deed of
partition contrary to the easement and A did not renounce the use of
the windows and doors, either by stipulation or by actually closing them
permanently, the easement is created by title pursuant to Article 624
upon the actual partition of the co-owned property.
According to the Supreme Court in the case of Amor v. Tolentino,71
Article 624 also applies to a division of property by succession.
Section 3. Rights and Obligations of the
Owners of the Dominant and Servient Estates
Art. 627. The owner of the dominant estate may make, at his own
expense, on the servient estate any works necessary for the use and
preservation of the servitude, but without altering it or rendering it more
burdensome.
69
II Caguioa, Civil Code of the Phil., 1966 ed., 276, citing the Decision of the Supreme
Court of Spain of May 27, 1899.
70
Amor v. Tolentino, supra.
71
Supra.
528
PROPERTY
For this purpose he shall notify the owner of the servient estate, and
shall choose the most convenient time and manner so as to cause the
least inconvenience to the owner of the servient estate. (543a)
Art. 628. Should there be several dominant estates, the owners of
all of them shall be obliged to contribute to the expenses referred to in
the preceding article, in proportion to the benefits which each may derive
from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the easement
in any manner whatsoever, he shall also be obliged to contribute to the
expenses in the proportion stated, saving an agreement to the contrary.
(544)
Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the
manner established for the use of the easement, the same should become
very inconvenient to the owner of the servient estate, or should prevent
him from making any important works, repairs or improvements thereon,
it may be changed at his expense, provided he offers another place or
manner equally convenient and in such a way that no injury is caused
thereby to the owner of the dominant estate or to those who may have a
right to the use of the easement. (545)
Art. 630. The owner of the servient estate retains the ownership of
the portion on which the easement is established, and may use the same
in such a manner as not to affect the exercise of the easement. (n)
529
right of enjoyment, but he may not enclose the property because such
act will affect the exercise of the easement. In this example, the owner
of the servient estate has an obligation not to obstruct or hinder the free
passage over the servient estate of any person entitled to make use of
it. As such, the holder of the easement may demand for the removal of
such obstruction.
While the owner of the servient estate is prohibited from impairing,
in any manner whatsoever, the use of the servitude,74 he may, however,
change the place of the easement or the manner of its use provided the
following requisites are satisfied:
(1)
(2)
(3)
(4)
530
PROPERTY
(2)
(3)
(4)
(5)
The time and manner of making the work should be the most
convenient to the owner of the servient estate or it is done in
such a manner that it causes the least inconvenience to the
owner of the servient estate.77
531
532
PROPERTY
533
(b)
See Solid Manila Corp. v. Bio Hong Trading Co., Inc., supra.
Id.
91
Cabacungan v. Corrales, 95 Phil. 919.
92
II Caguioa, Civil Code of the Phil., 1966 ed., 285, citing 4 Manresa, 5th ed., 581-582.
93
Art. 631(2), NCC.
94
Id.
95
Id.
89
90
534
PROPERTY
(b)
In the latter case, the circumstance which renders the use of the
easement impossible must not be in the nature of a fortuitous event;
otherwise, the easement may not be extinguished by non-user, in
which case, the easement is merely suspended. According to Senator
Tolentino, the non-user must be due to voluntary abstention by the
dominant owner, and not to fortuitous event, because the basis of this
cause of extinguishment is presumptive renunciation.100
535
[116.4] Renunciation
536
PROPERTY
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Art. 637. Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates,
as well as the stones or earth which they carry with them.
The owner of the lower estate cannot construct works which will
impede this easement; neither can the owner of the higher estate make
works which will increase the burden. (552)
Art. 638. The banks of rivers and streams, even in case they are of
private ownership, are subject throughout their entire length and within a
zone of three meters along their margins, to the easement of public use in
the general interest of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of
river navigation and floatage.
If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid. (553a)
Art. 639. Whenever for the diversion or taking of water from a river
or brook, or for the use of any other continuous or discontinuous stream,
it should be necessary to build a dam, and the person who is to construct
it is not the owner of the banks, or lands which must support it, he may
establish the easement of abutment of a dam, after payment of the proper
indemnity. (554)
Art. 640. Compulsory easements for drawing water or for watering
animals can be imposed only for reasons of public use in favor of a town
or village, after payment of the proper indemnity. (555)
Art. 641. Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to allow
passage to persons and animals to the place where such easements are
to be used, and the indemnity shall include this service. (556)
537
Art. 642. Any person who may wish to use upon his own estate any
water of which he can dispose shall have the right to make it flow through
the intervening estates, with the obligation to indemnify their owners, as
well as the owners of the lower estates upon which the waters may filter
or descend. (557)
Art. 643. One desiring to make use of the right granted in the preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most convenient
and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations. (558)
Art. 644. The easement of aqueduct for private interest cannot be
imposed on buildings, courtyards, annexes, or outhouses, or on orchards
or gardens already existing. (559)
Art. 645. The easement of aqueduct does not prevent the owner of
the servient estate from closing or fencing it, or from building over the
aqueduct in such manner as not to cause the latter any damage, or render
necessary repairs and cleanings impossible. (560)
Art. 646. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water
may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours. (561)
Art. 647. One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream
from which the water is to be taken, may demand that the owners of the
banks permit its construction, after payment of damages, including those
caused by the new easement to such owners and to the other irrigators.
(562)
Art. 648. The establishment, extent, form and conditions of the servitudes of waters, to which this section refers, shall be governed by the
special laws relating thereto insofar as no provision therefor is made in
this Code. (563a)
538
PROPERTY
(2)
Easement for public use (Art. 638, NCC; Art. 51, Water
Code);
(3)
(4)
(5)
539
of ten years computed from the day on which an act contrary to the
easement took place, such as building of dikes.109
[118.2] Easement of Public Use
The banks or rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3) meters
in urban areas, twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins, are subject to the easement
of public use in the interest of recreation, navigation, floatage, fishing
and salvage.110 However, no person shall be allowed to stay in this zone
longer than what is necessary for recreation, navigation, floatage, fishing
or salvage or to build structures of any kind.111 Note that in connection
with this kind of easement, the provision of the first paragraph of Article
638 of the New Civil Code was modified by Article 51 of the Water
Code of the Philippines (P.D. No. 1067).
[118.3] Easement For Drawing Waters
540
PROPERTY
(2)
He must also prove that it is sufficient for the use for which
it is intended;
(3)
(4)
541
542
PROPERTY
Art. 651. The width of the easement of right of way shall be that
which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. (566a)
Art. 652. Whenever a piece of land acquired by sale, exchange or
partition, is surrounded by other estates of the vendor, exchanger, or coowner, he shall be obliged to grant a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by the
donee for the establishment of the right of way. (567a)
Art. 653. In the case of the preceding article, if it is the land of the
grantor that becomes isolated, he may demand a right of way after paying
an indemnity. However, the donor shall not be liable for indemnity. (n)
Art. 654. If the right of way is permanent, the necessary repairs shall
be made by the owner of the dominant estate. A proportionate share of the
taxes shall be reimbursed by said owner to the proprietor of the servient
estate. (n)
Art. 655. If the right of way granted to a surrounded estate ceases
to be necessary because its owner has joined it to another abutting on a
public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment
of rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving
access to the isolated estate.
In both cases, the public highway must substantially meet the needs
of the dominant estate in order that the easement may be extinguished.
(568a)
Art. 656. If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through
the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit
the act, after receiving payment of the proper indemnity for the damage
caused him. (569a)
Art. 657. Easements of the right of way for the passage of livestock
known as animal path, animal trail or any other, and those for watering
places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by
the usages and customs of the place.
Without prejudice to rights legally acquired, the animal path shall
not exceed in any case the width of 75 meters, and the animal trail that of
37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement of
the right of way or for a watering place for animals, the provisions of this
543
Section and those of Articles 640 and 641 shall be observed. In this case
the width shall not exceed 10 meters. (570a)
544
PROPERTY
(3) That the isolation was not due to acts of the proprietor of the
dominant estate (Art. 649, par. 4); and
(4) That the right of way claimed is at the point least prejudicial
to the servient estate; and insofar as consistent with this rule, where
the distance from the dominant estate to a public highway may be the
shortest. (Art. 650)128
By its very nature, and when considered with reference to the
obligations imposed on the servient estate, an easement involves an
abnormal restriction on the property rights of the servient owner and is
regarded as a charge or encumbrance on the servient estate. Thus, it is
incumbent upon the owner of the dominant estate to establish by clear
and convincing evidence the presence of all the preconditions before
his claim for easement of right of way be granted.129 Stated otherwise,
the burden of proving the existence of the prerequisites to validly claim
a compulsory right of way lies on the owner of the dominant estate.130
[119.3] Isolation of the Dominant Estate
545
546
PROPERTY
547
plan for the buyers of its lots, notwithstanding that said lot was still
undeveloped and inconvenient to petitioner. Even if Ramos, the
petitioner therein, had to pass through other lots belonging to other
owners, which are grassy and cogonal, as temporary ingress/egress
with great inconvenience particularly due to flood and mud, the Court
did not allow the easement because it would run counter to existing
jurisprudence that mere convenience for the dominant estate does not
suffice to serve as basis for the servitude.
In the case of Floro v. Llenado,143 the Supreme Court likewise
refused to impose an easement of right of way over petitioners property,
although private respondents alternative routes was admittedly
inconvenient because he had to traverse several rice lands and rice
paddies belonging to different persons, not to mention that said passage,
as found by the trial court, was impassable during rainy season.
[119.5] At the Point Least Prejudicial
Article 650 of the New Civil Code explicitly states that the
easement of right of way shall be established at the point least prejudicial
to the servient estate and, insofar as consistent with this rule, where
the distance from the dominant estate to a public highway may be the
shortest. The criterion of least prejudice to the servient estate must
prevail over the criterion of shortest distance although this is a matter
of judicial appreciation.144 While shortest distance may ordinarily imply
least prejudice, it is not always so as when there are permanent structures
obstructing the shortest distance; while on the other hand, the longest
distance may be free of obstructions and the easiest or most convenient
to pass through. In other words, where the easement may be established
on any of several tenements surrounding the dominant estate, the one
where the way is shortest and will cause the least damage should be
chosen. However, if these two (2) circumstances do not concur in a
single tenement, the way which will cause the least damage should be
used, even if it will not be the shortest. This is the test.145 Hence, as
between a right of way that would demolish a store of strong materials
to provide egress to a public highway, and another right of way which
Supra.
Quimen v. CA, 257 SCRA 163 (1996).
145
Id.
143
144
548
PROPERTY
although longer will only require an avocado tree to be cut down, the
second alternative should be preferred.146
[119.6] Payment of Indemnity
549
as the estate is surrounded by the estate of others through the will of the
parties.151 But if the owner acquires his land by way of a simple donation,
there is no such tacit condition because the donor receives nothing from
the donee. In this latter case, therefore, the donee can only demand for
a right of way after payment of the proper indemnity.152
[119.7] Width of the Easement
Article 651 of the New Civil Code provides that (t)he width of
the easement of right of way shall be that which is sufficient for the
needs of the dominant estate, and may accordingly be changed from
time to time. This is taken to mean that under the law, it is the needs
of the dominant property which ultimately determine the width of the
passage. And these needs may vary from time to time.153 In the case
of Encarnacion v. Court of Appeals,154 the Court had the occasion to
explain
When petitioner started out as a plant nursery
operator, he and his family could easily make do with a few
pushcarts to tow the plants to the national highway. But the
business grew and with it the need for the use of modern
means of conveyance or transport. Manual hauling of plants
and garden soil and use of pushcarts have become extremely
cumbersome and physically taxing. To force petitioner to
leave his jeepney in the highway, exposed to the elements and
to the risk of theft simply because it could not pass through
the improvised pathway, is sheer pigheadedness on the part
of the servient estate and can only be counter-productive for
all the people concerned. Petitioner should not be denied a
passageway wide enough to accommodate his jeepney since
that is a reasonable and necessary aspect of the plant nursery
business.
[119.8] Who May Demand For Compulsory Right of Way
Under Article 649 of the New Civil Code, it is the owner, or any
person who by virtue of a real right may cultivate or use any immovable
2 Castan, 9th ed., 586.
Art. 652, 2nd par., NCC.
153
Encarnacion v. CA, 195 SCRA 74 (1991).
154
Supra.
151
152
550
PROPERTY
551
(2) Whenever the dividing wall is, on one side, straight and plumb
on all its facement, and on the other, it has similar conditions on the upper
part, but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the boundaries of one
of the estates;
(4) Whenever the dividing wall bears the burden of the binding
beams, floors and roof frame of one of the buildings, but not those of the
others;
(5) Whenever the dividing wall between courtyards, gardens, and
tenements is constructed in such a way that the coping sheds the water
upon only one of the estates;
(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one
side only, but not on the other;
(7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed.
In all these cases, the ownership of the walls, fences or hedges shall
be deemed to belong exclusively to the owner of the property or tenement
which has in its favor the presumption based on any one of these signs.
(573)
Art. 661. Ditches or drains opened between two estates are also
presumed as common to both, if there is no title or sign showing the
contrary.
There is a sign contrary to the part-ownership whenever the earth
or dirt removed to open the ditch or to clean it is only on one side thereof,
in which case the ownership of the ditch shall belong exclusively to the
owner of the land having this exterior sign in its favor. (574)
Art. 662. The cost of repairs and construction of party walls and the
maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having
the party wall in their favor, in proportion to the right of each.
552
PROPERTY
553
(2)
(3)
This presumption will not, however, apply if: (1) there is title to
the contrary; (2) there is an exterior sign to the contrary; and (3) there
is proof to the contrary.163
It is understood, however, that there exists an exterior sign contrary
to the easement of party wall in the following instances:
(1)
(2)
(3)
(4)
2 Castan, 9th ed., 589, cited in II Caguioa, Civil Code of the Phil., 1966 ed., 305.
II Tolentino, Civil Code of the Phil., 1992 ed., 396, citing 4 Manresa 762-763.
162
Art. 659, NCC.
163
Id.
160
161
554
PROPERTY
(5)
(6)
(7)
555
(3) if the party wall cannot bear the increased height, the owner desiring
to raise it shall be obliged to reconstruct it at his own expense, and, if
for this purpose it be necessary to make it thicker, he shall give the
space required from his own land.168
The co-ownership is maintained up to the point where the original
wall extended. But with respect to the additional height, the same shall
be exclusively owned by the part-owner at whose instance the party
wall was raised. As a consequence, the expenses in maintaining the
additional height, as well as the increase in expenses which may be
necessary for the preservation of the party wall by reason of the greater
height, shall be borne by him.169 The other owners may, however, acquire
a proportionate share in the raised party wall by paying proportionately
the value of the work at the time of the acquisition and of the land used
for its increased thickness,170 in which case, all shall bear the expenses
of maintaining the additional height in proportion to their respective
interest in it.
[120.3.3] Repairs and Maintenance of Party Wall
556
PROPERTY
557
Art. 673. Whenever by any title a right has been acquired to have
direct views, balconies or belvederes overlooking an adjoining property,
the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in Article
671. Any stipulation permitting distances less than those prescribed in
Article 670 is void. (585a)
558
PROPERTY
conterminous property, the law requires that the distance be sixty (60)
centimeters.177 Such distance shall be measured in cases of direct views
from the outer line of the wall when the openings do not project, from
the outer line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties.178
The foregoing requirement does not apply, however, to buildings
separated by a public way or alley, which is not less than three meters
wide, unless there is a special regulation and local ordinance which
provides to the contrary.179
Now, what is the effect of violation of the foregoing distance
requirement? When windows or balconies are opened in violation of
the distance requirement in Article 670 of the Civil Code, the same
may be ordered closed because they constitute unlawful openings.180
And as discussed in supra 114.2, the mere making of such opening
does not result in the running of the 10-year prescriptive period for the
acquisition of an easement of light and view. Since the easement is a
negative one, the 10-year period begins to run only from the time of the
formal prohibition mentioned in Articles 621 and 668 of the New Civil
Code.
[121.5] Opening Where Distances Not Observed
559
with. Even in the absence of any violation, the owner of the adjacent
property may close the opening should he acquire part ownership of
the wall where the opening has been made, if there be no stipulation
to the contrary.182 If the owner of the adjacent property is not entitled to
demand for the closure of the said opening because there is no violation
of the conditions outlined in the first paragraph of Article 669 and
he does not acquire part-ownership of the wall, he may, nonetheless,
obstruct the opening by constructing a building on his land or by raising
a wall thereon contiguous to that having such opening.183 This he can
do because it is simply an exercise of his right of ownership over his
property. He may not, however, resort to this remedy if the owner of
the wall with the opening has already acquired an easement of light
pursuant to the manner outlined in Articles 621 and 668 of the Civil
Code.
Section 6. Drainage of Buildings
Art. 674. The owner of a building shall be obliged to construct its
roof or covering in such manner that the rain water shall fall on his own
land or on a street or public place, and not on the land of his neighbor,
even though the adjacent land may belong to two or more persons, one of
whom is the owner of the roof. Even if it should fall on his own land, the
owner shall be obliged to collect the water in such a way as not to cause
damage to the adjacent land or tenement. (586a)
Art. 675. The owner of a tenement or a piece of land, subject to the
easement of receiving water falling from roofs, may build in such manner
as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to
cause any nuisance or damage whatever to the dominant estate. (587)
Art. 676. Whenever the yard or court of a house is surrounded by
other houses, and it is not possible to give an outlet through the house itself to the rain water collected thereon, the establishment of an easement
of drainage can be demanded, giving an outlet to the water at the point
of the contiguous lands or tenements where its egress may be easiest,
and establishing a conduit for the drainage in such manner as to cause
the least damage to the servient estate, after payment of the property
indemnity. (583)
182
183
560
PROPERTY
561
(2)
(3)
(4)
Art. 677. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required
in special laws, ordinances, and regulations relating thereto. (589)
Art. 678. No person shall build any aqueduct, well, sewer, furnace,
forge, chimney, stable, depository of corrosive substances, machinery,
or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and
customs of the place, and without making the necessary protective works,
subject, in regard to the manner thereof, to the conditions prescribed by
such regulations. These prohibitions cannot be altered or renounced by
stipulation on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be taken as
may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. (590a)
Art. 679. No trees shall be planted near a tenement or piece of land
belonging to another except at the distance authorized by the ordinances
or customs of the place, and, in the absence thereof, at a distance of
at least two meters from the dividing line of the estates if tall trees are
planted and at a distance of at least fifty centimeters if shrubs or small
trees are planted.
Every landowner shall have the right to demand that trees hereafter
planted at a shorter distance from his land or tenement be uprooted.
The provisions of this article also apply to trees which have grown
spontaneously. (591a)
Art. 680. If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the
190
562
PROPERTY
right to demand that they be cut off insofar as they may spread over his
property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within
his property. (592)
Art. 681. Fruits naturally falling upon adjacent land belong to the
owner of said land. (n)
Article 679 of the New Civil Code prohibits the planting of trees
near a tenement or piece of land belonging to another person unless the
following distance requirement is observed:
(a)
(b)
563
564
PROPERTY
Art. 686. The legal easement of lateral and subjacent support is not
only for buildings standing at the time the excavations are made but also
for constructions that may be erected.
Art. 687. Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent
lands.
565
As discussed in supra 112.2, an easement may either be compulsory or voluntary. It is compulsory if it can be demanded by the claim-
566
PROPERTY
567
568
PROPERTY
(2)
(3)
126
Concept
[126.1] Definition
568
569
6
City of Phoenix v. Johnson, 51 Ariz. 115, 75 P. 2d 30, cited in Blacks Law Dictionary,
5th ed., 961.
7
Lebayen v. A.S. Diaz Electric Service, Inc., 1 CA Rep. 178.
570
PROPERTY
Judge Sangco, Phil. Law on Torts and Damages, Vol. 2, 1994 ed., pp. 885-886.
39 Am Jur. 282, cited in Lebayen v. A.S. Diaz Electric Service, Inc., 1 CA Rep. 178.
10
Id.
11
Lebayen v. A.S. Diaz Electric Service, Inc., 1 CA Rep. 178.
8
9
571
Claims of trespass and nuisance are difficult to distinguish and include overlapping concepts. The essential difference however, between
the two is that trespass is an invasion of the plaintiffs interest in the
exclusive possession of his land, while nuisance is an interference with
his use and enjoyment of it.17 Stated otherwise, a nuisance consists of
a use of ones own property in such a manner as to cause injury to the
property or other right or interest of another and generally results from
the commission of an act beyond the limits of the property affected,
while trespass is a direct infringement of anothers right of property.18
Thus, where there is no actual physical invasion of the plaintiffs property, the cause of action is for nuisance rather than trespass.19
Given that trespass is typically clear and strict, and nuisance is
typically not clear or strict, the boundary between interferences governed
Art. 695, NCC.
Art. 695, NCC; see also 39 Am. Jr., Sec. 7, 284-2856.
14
Blacks Law Dictionary, 5th ed., 961.
15
Id.
16
Id., 961-962, citing Kelley v. New York, 6 Misc. 516, 27 N.Y.S. 164.
17
Adams v. Cleveland-Cliffs Iron Co., 237 Mich. App. 51, 602 N.W.2d 215 (1999); Hadfield v. Oakland County Drain Commissioner, 430 Mich. 139, 151, 422 N.W.2d 205 (1988).
18
39 Am. Jur. 282, cited in II Caguioa, Civil Code of the Philippines, 1966 ed., 332.
19
Id.
12
13
572
PROPERTY
573
court set aside the jurys award of $100,000. The court of appeals affirmed,
reluctantly concluding that it could not reinstate the punitive damages because
it was bound by precedent establishing that an award of nominal damages will
not sustain a punitive damage award. * * *
I.
The relevant facts follow. Plaintiffs, Lois and Harvey Jacques, are an
elderly couple, now retired from farming, who own roughly 170 acres near
Wilkes Lake in the town of Schleswig. The defendant, Steenberg Homes, Inc.
(Steenberg), is in the business of selling mobile homes. In the fall of 1993, a
neighbor of the Jacques purchased a mobile home from Steenberg. Delivery of
the mobile home was included in the sales price.
Steenberg determined that the easiest route to deliver the mobile home
was across the Jacques land. Steenberg preferred transporting the home across
the Jacques land because the only alternative was a private road which was
covered in up to seven feet of snow and contained a sharp curve which would
require sets of rollers to be used when maneuvering the home around the
curve. Steenberg asked the Jacques on several separate occasions whether it
could move the home across the Jacques farm field. The Jacques refused. The
Jacques were sensitive about allowing others on their land because they had lost
property valued at over $10,000 to other neighbors in an adverse possession
action in the mid-1980s. Despite repeated refusals from the Jacques, Steenberg
decided to sell the mobile home, which was to be used as a summer cottage,
and delivered it on February 15, 1994.
On the morning of delivery, Mr. Jacque observed the mobile home parked
on the corner of the town road adjacent to his property. He decided to find out
where the movers planned to take the home. The movers, who were Steenberg
employees, showed Mr. Jacque the path they planned to take with the mobile
home to reach the neighbors lot. The path cut across the Jacques land. Mr.
Jacque informed the movers that it was the Jacques land they were planning
to cross and that Steenberg did not have permission to cross their land. He told
them that Steenberg had been refused permission to cross the Jacques land.
One of Steenbergs employees called the assistant manager, who then
came out to the Jacques home. In the meantime, the Jacques called and asked
some of their neighbors and the town chairman to come over immediately.
Once everyone was present, the Jacques showed the assistant manager an
aerial map and plat book of the township to prove their ownership of the land,
and reiterated their demand that the home not be moved across their land.
At that point, the assistant manager asked Mr. Jacque how much money
it would take to get permission. Mr. Jacque responded that it was not a question
574
PROPERTY
of money; the Jacques just did not want Steenberg to cross their land. Mr.
Jacque testified that he told Steenberg to [F]ollow the road, that is what the
road is for. Steenberg employees left the meeting without permission to cross
the land.
At trial, one of Steenbergs employees testified that, upon coming out of
the Jacques home, the assistant manager stated: I dont give a what [Mr.
Jacque] said, just get the home in there any way you can. The other Steenberg
employee confirmed this testimony and further testified that the assistant
manager told him to park the company truck in such a way that no one could
get down the town road to see the route the employees were taking with the
home. The assistant manager denied giving these instructions, and Steenberg
argued that the road was blocked for safety reasons.
The employees, after beginning down the private road, ultimately used a
bobcat to cut a path through the Jacques snow-covered field and hauled the
home across the Jacques land to the neighbors lot. One employee testified that
upon returning to the office and informing the assistant manager that they had
gone across the field, the assistant manager reacted by giggling and laughing.
The other employee confirmed this testimony. The assistant manager disputed
this testimony.
When a neighbor informed the Jacques that Steenberg had, in fact, moved
the mobile home across the Jacques land, Mr. Jacque called the Manitowoc
County Sheriffs Department. After interviewing the parties and observing
the scene, an officer from the sheriffs department issued a $30 citation to
Steenbergs assistant manager. * * *
This case presents three issues: (1) whether an award of nominal damages
for intentional trespass to land may support a punitive damage award and, if
so; (2) whether the law should apply to Steenberg or should only be applied
prospectively and, if we apply the law to Steenberg; (3) whether the $100,000
in punitive damages awarded by the jury is excessive. * * *
II.
* * * Steenberg argues that, as a matter of law, punitive damages could
not be compensatory damages and here the jury awarded only nominal and
punitive damages. The Jacques contend that the rationale supporting the
compensatory damage award requirement is inapposite when the wrongful act
is an intentional trespass to land. We agree with the Jacques. * * *
The general rule was stated in Barnard v. Cohen, 162 N.W. 480 (Wis.
1917), where the question presented was: In an action for libel, can there be
a recovery of punitory damages if only nominal compensatory damages are
found? With the bare assertion that authority and better reason supported its
575
conclusion, the Barnard court said no. Barnard continues to state the general
rule of punitive damages in Wisconsin. See Tucker v. Marcus, 418 N.W.2d 818,
823-24 (Wis. 1988). The rationale for the compensatory damage requirement
is that if the individual cannot show actual harm, he or she has but a nominal
interest, hence, society has little interest in having the unlawful, but otherwise
harmless, conduct deterred, therefore, punitive damages are inappropriate.
Jacque v. Steenberg Homes, Inc., 548 N.W.2d 80 (Wis. Ct. App. 1996); Maxwell
v. Kennedy, 7 N.W. 657, 658-59 (Wis. 1880).
However, whether nominal damages can support a punitive damage
award in the case of an intentional trespass to land has never been squarely
addressed by this court. Nonetheless, Wisconsin law is not without reference
to this situation. In 1854 the court established punitive damages, allowing
the assessment of damages as a punishment to the defendant for the purpose
of making an example. McWilliams v. Bragg, 3 Wis. 424, 425 (1854). The
McWilliams court related the facts and an illustrative tale from the English case
of Merest v. Harvey, 128 Eng. Rep. 761 (C.P. 1814), to explain the rationale
underlying punitive damages.
In Merest, a landowner was shooting birds in his field when he was
approached by the local magistrate who wanted to hunt with him. Although
the landowner refused, the magistrate proceeded to hunt. When the landowner
continued to object, the magistrate threatened to have him jailed and dared
him to file suit. Although little actual harm had been caused, the English court
upheld damages of 500 pounds, explaining in a case where a man disregards
every principle which actuates the conduct of gentlemen, what is to restrain
him except large damages? McWilliams, 3 Wis. 424 at 428.
To explain the need for punitive damages, even where actual harm is
slight, McWilliams related the hypothetical tale from Merest of an intentional
trespasser:
Suppose a gentleman has a paved walk in his paddock,
before his window, and that a man intrudes and walks up and down
before the window of his house, and looks in while the owner is at
dinner, is the trespasser permitted to say here is a halfpenny for
you which is the full extent of the mischief I have done. Would
that be a compensation? I cannot say that it would be. . . .
McWilliams, 3 Wis. at 428. Thus, in the case establishing punitive
damages in this state, this court recognized that in certain situations of trespass,
the actual harm is not in the damage done to the land, which may be minimal,
but in the loss of the individuals right to exclude others from his or her property
and, the court implied that this right may be punished by a large damage award
despite the lack of measurable harm.
576
PROPERTY
* * * The Jacques argue that both the individual and society have significant
interests in deterring intentional trespass to land, regardless of the lack of
measurable harm that results. We agree with the Jacques. An examination of
the individual interests invaded by an intentional trespass to land, and societys
interests in preventing intentional trespass to land, leads us to the conclusion
that the Barnard rule should not apply when the tort supporting the award is
intentional trespass to land.
We turn first to the individual landowners interest in protecting his or her
land from trespass. The United States Supreme Court has recognized that the
private landowners right to exclude others from his or her land is one of the
most essential sticks in the bundle of rights that are commonly characterized
as property. Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). This court
has long recognized [e]very persons] constitutional right to the exclusive
enjoyment of his own property for any purpose which does not invade the
rights of another person. Diana Shooting Club v. Lamoreaux, 89 N.W. 880,
886 (Wis. 1902) (holding that the victim of an intentional trespass should have
been allowed to take judgment for nominal damages and costs). Thus, both this
court and the Supreme Court recognize the individuals legal right to exclude
others from private property.
Yet a right is hollow if the legal system provides insufficient means
to protect it. Felix Cohen offers the following analysis summarizing the
relationship between the individual and the state regarding property rights:
[T]hat is property to which the following label can be
attached:
To the world:
Keep off X unless you have my permission,
which I may grant or
withhold.
Signed: Private Citizen
Endorsed: The state
Felix S. Cohen, Dialogue on Private Property, 9 Rutgers Law Review
357, 374 (1954). Harvey and Lois Jacque have the right to tell Steenberg Homes
and any other trespasser, No, you cannot cross our land. But that right has no
practical meaning unless protected by the State. And, as this court recognized
as early as 1854, a halfpenny award does not constitute state protection.
The nature of the nominal damage award in an intentional trespass to
land case further supports an exception to Barnard. Because a legal right is
involved, the law recognizes that actual harm occurs in every trespass. The
action for intentional trespass to land is directed at vindication of the legal
577
right. W. Page Keeton, Prosser and Keeton on Torts, 13 (5th ed. 1984). The
law infers some damage from every direct entry upon the land of another.
Id. The law recognizes actual harm in every trespass to land whether or not
compensatory damages are awarded. Id. Thus, in the case of intentional trespass
to land, the nominal damage award represents the recognition that, although
immeasurable in mere dollars, actual harm has occurred.
The potential for harm resulting from intentional trespass also supports
an exception to Barnard. A series of intentional trespasses, as the Jacques had
the misfortune to discover in an unrelated action, can threaten the individuals
very ownership of the land. The conduct of an intentional trespasser, if repeated,
might ripen into prescription or adverse possession and, as a consequence, the
individual landowner can lose his or her property rights to the trespasser. See
Wis. Stat. 893.28.
In sum, the individual has a strong interest in excluding trespassers from
his or her land. Although only nominal damages were awarded to the Jacques,
Steenbergs intentional trespass caused actual harm. We turn next to societys
interest in protecting private property from the intentional trespasser.
Society has an interest in punishing and deterring intentional trespassers
beyond that of protecting the interests of the individual landowner. Society has
an interest in preserving the integrity of the legal system. Private landowners
should feel confident that wrongdoers who trespass upon their land will be
appropriately punished. When landowners have confidence in the legal system,
they are less likely to resort to selfhelp remedies. In McWilliams, the court
recognized the importance of prevent[ing] the practice of dueling, [by
permitting] juries to punish insult by exemplary damages. McWilliams, 3
Wis. at 428. Although dueling is rarely a modern form of self-help, one can
easily imagine a frustrated landowner taking the law into his or her own hands
when faced with a brazen trespasser, like Steenberg, who refuses to heed no
trespass warnings.
People expect wrongdoers to be appropriately punished. Punitive
damages have the effect of bringing to punishment types of conduct that, though
oppressive and hurtful to the individual, almost invariably go unpunished by
the public prosecutor. Kink v. Combs, 135 N.W.2d 789 (Wis. 1965). The $30
forfeiture was certainly not an appropriate punishment for Steenbergs egregious
trespass in the eyes of the Jacques. It was more akin to Merests halfpenny. If
punitive damages are not allowed in a situation like this, what punishment will
prohibit the intentional trespass to land? Moreover, what is to stop Steenberg
Homes from concluding, in the future, that delivering its mobile homes via an
intentional trespass and paying the resulting Class B forfeiture, is not more
profitable than obeying the law? Steenberg Homes plowed a path across the
Jacques land and dragged the mobile home across that path, in the face of the
578
PROPERTY
Jacques adamant refusal. A $30 forfeiture and a $1 nominal damage award are
unlikely to restrain Steenberg Homes from similar conduct in the future. An
appropriate punitive damage award probably will.
In sum, as the court of appeals noted, the Barnard rule sends the wrong
message to Steenberg Homes and any others who contemplate trespassing
on the land of another. It implicitly tells them that they are free to go where
they please, regardless of the landowners wishes. As long as they cause no
compensable harm, the only deterrent intentional trespassers face is the nominal
damage award of $1, the modern equivalent of Merests halfpenny, and the
possibility of a Class B forfeiture under Wis. Stat. 943.13. We conclude that
both the private landowner and society have much more than a nominal interest
in excluding others from private land. Intentional trespass to land causes actual
harm to the individual, regardless of whether that harm can be measured in
mere dollars. Consequently, the Barnard rationale will not support a refusal
to allow punitive damages when the tort involved is an intentional trespass to
land. Accordingly, assuming that the other requirements for punitive damages
have been met, we hold that nominal damages may support a punitive damage
award in an action for intentional trespass to land. * * *
In conclusion, we hold that when nominal damages are awarded for an
intentional trespass to land, punitive damages may, in the discretion of the jury,
be awarded. Our decision today shall apply to Steenberg Homes. Finally, we
hold that the $100,000 punitive damages awarded by the jury is not excessive.
Accordingly, we reverse and remand to the circuit court for reinstatement of
the punitive damage award.
[127.1.2] Requisites for Recovery Under Private Nuisance
25
26
579
suit to prosper, the plaintiff must be able to prove two things: (1) that
there was damage to the property;27 and (2) the interference is either:
(a) intentional and unreasonable; or (b) or unintentional and otherwise
negligent or reckless conduct; or (c) resulting in abnormally dangerous
activities in an inappropriate place.28
(i)
580
PROPERTY
581
below. The Hendrickses, owners of the property adjacent to that of Mr. Stalnaker,
were refused a Health Department permit for a septic system located within
100 feet of Mr. Stalnakers water well. The Circuit Court of Lewis County,
based on a jury verdict, found the water well to be a private nuisance and
ordered its abatement. On appeal, Mr. Stalnaker argues that because his water
well was not an unreasonable use of his land, he is not liable for the effects on
the Hendrickses property. We agree and, therefore, reverse the decision of the
circuit court.
Mr. Stalnaker owns approximately 10 acres of land situated on Glady
Fork Road, Lewis County. In 1985, Mr. Stalnaker constructed his home on a
2.493 acre portion of the tract, and had two water wells dowsed. One well was
located behind his house and the other, near the Hendrickses property. The
rear well was near land disturbed by a former strip mine and, therefore, the
well produced poor quality water. Except for a small section of land near the
Hendrickses property the location of the second dowsed well most of
Mr. Stalnakers home tract had been disturbed by a strip mine. In August 1985,
Mr. Stalnaker spent approximately $3,000 in an unsuccessful attempt to treat
the water from the rear well.
In 1984, the Hendrickses purchased approximately 2.95 acres adjacent
to Mr. Stalnakers property for a home site or a trailer development. On
31 December 1985, Mr. Hendricks met with the Lewis County sanitarian
to determine locations for a water well and a septic system. The Health
Department requires a distance of 100 feet between water wells and septic
systems before it will issue permits. Because the Hendrickses land was too
hilly or had been disturbed in order to build a pond, the only location for a
septic system on the tract was near Mr. Stalnakers property. On 13 January
1986, the Hendrickses contacted the county sanitarian to visit their property
to complete the septic system permit application. The county sanitarian said
because of snowy weather he would come out later in the week.
On 13 January 1986, Mr. Stalnaker called the sanitarian and was told
about the Hendrickses proposed septic system. Mr. Stalnaker was also told that
the county sanitarian would be unavailable on 14 January 1986 but could meet
with him on 15 January 1986. On 14 January 1986, Mr. Stalnaker contacted a
well driller, who applied for and received a well drilling permit for the second
well from the assistant sanitarian. The well was completed on 25 January 1986
but was not connected to Mr. Stalnakers home until January 1987.
On 15 January 1986, the county sanitarian informed Mr. Hendricks that
no permit for his proposed septic system could be issued because the absorption field for his septic system was within one hundred feet of Mr. Stalnakers
water well. Mr. Hendricks did install a septic system without a permit in Janu-
582
PROPERTY
ary 1987; however, the system was left inoperative pending the outcome of
this suit.
The Hendrickses filed suit in the Circuit Court of Lewis County on 29
January 1987 requesting: (1) the water well be declared a private nuisance, (2)
the nuisance be abated, and (3) damages. In a bifurcated trial, the jury found
that the water well was a private nuisance and the trial judge ordered it to be
abated. On the issue of damages the jury found for the defendant and awarded
no damages.
I
In the past we have broadly described what constitutes a nuisance:
A nuisance is anything which annoys or disturbs the free use
of ones property, or which renders its ordinary use or physical
occupation uncomfortable. . . A nuisance is anything which
interferes with the rights of a citizen, either in person, property,
the enjoyment of his property, or his comfort. . . A condition is
a nuisance when it clearly appears that enjoyment of property is
materially lessened, and physical comfort of persons in their homes
is materially interfered with thereby. (Citations omitted).
Martin v. Williams, 93 S.E.2d 835, 844 (W. Va. 1956). * * * This definition
of nuisance includes acts or conditions that affect either the general public or a
limited number of persons. In Hark v. Mountain Fork Lumber Co., 34 S.E.2d
348, 354 (W. Va. 1945) we defined a public nuisance as that which affects
the general public as public, and [a private nuisance as that which] injures one
person or a limited number of persons only.
In order clearly to delineate between a public nuisance and a private
nuisance, we define a private nuisance as a substantial and unreasonable
interference with the private use and enjoyment of anothers land. The definition
of private nuisance includes conduct that is intentional and unreasonable,
negligent or reckless, or that results in an abnormally dangerous conditions or
activities in an inappropriate place. See W. Prosser, Handbook of the Law of
Torts 87 at 580, 89 at 593 (4th ed. 1971); Restatement (Second) of Torts
821D, 821F, 822 (1979); W. Keeton, Prosser and Keeton on the Law of Torts
87 (5th ed. 1984). Recovery for a private nuisance is limited to plaintiffs who
have suffered a significant harm to their property rights or privileges caused by
the interference. Restatement (Second) of Torts 821E, 821F (1979).
Early West Virginia cases indicate that the existence of a private nuisance
was determined primarily by the harm caused. Medford v. Levy, 8 S.E. 302
(W. Va. 1888) (cooking odors); Flanagan v. Gregory and Poole, Inc., 67
S.E.2d 865 (W. Va. 1951) (inadequate culvert). Gradually, the focus included
583
584
PROPERTY
a water well merely requires non-interference within 100 feet of its location. In
the case of a septic system, however, the 100 foot safety zone, extending from
the edge of the absorption field, may intrude on adjacent property. Thus, the
septic system, with its potential for drainage, places a more invasive burden on
adjacent property. Clearly both uses present similar considerations of gravity
of harm and social value of the activity alleged to cause the harm. Both a water
well and a septic system are necessary to use this land for housing; together
they constitute the in and out of many water systems. Neither party has an
inexpensive and practical alternative. The site of the water well means quality
water for Mr. Stalnaker, and the Hendrickses have only one location available
for their septic system.
In the case before us, we are asked to determine if the water well is a
private nuisance. But if the septic system were operational, the same question
could be asked about the septic system. Because of the similar competing
interests, the balancing of these landowners interests is at least equal or,
perhaps, slightly in favor of the water well. Thus, the Hendrickses have not
shown that the balancing of interests favors their septic system. We find that
the evidence presented clearly does not demonstrate that the water well is an
unreasonable use of land and, therefore, does not constitute a private nuisance.
***
We find that because the evidence is not disputed and only one interference
is reasonable, the trial court should have held as a matter of law that the water
well was not a private nuisance. * * *
Reversed.
38
See Bliss v. Hale (1838), 7 L.J.R. 122 (1838); Sturges v. Bridgeman, 11 Eng. Rep. 852
(Ch. D. 1879).
39
R. v. Neville, 170 Eng. Rep. 102 (1791); Colls v. Home and Colonial Stores, (1865) A.C.
179.
585
Salao v. Santos, G.R. No. L-45519, April 26, 1939, citing Iloilo Ice and Cold Storage Co.
v. Municipal Council of Iloilo, 24 Phil. 471; Monteverde v. Generoso, 52 Phil. 123, 127.
41
Blacks Law Dictionary, 5th ed., 962, citing Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 97 N.W.2d 90, 96; Koeber v. Apex-Albuq Phoenix Exp., 72 N.M.4, 380
P.2d 14, 15, 16.
42
Salao v. Santos, supra.
43
Blacks Law Dictionary, 5th ed., 962, citing Robichaux v. Happunbauer, 258 La.
44
Salao v. Santos, supra.
45
State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W. 2d 716, 719, cited in Blacks
Law Dictionary, 5th ed., 962.
46
Suddeth v. Knight, 280 S.C. 540, 545, 314 S.E.2d 11, 14 (Ct. App. 1984); Blacks Law
Dictionary 1094 (7th ed., 1999).
47
Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, supra.
48
Id.
49
16 Phil. 8.
40
586
PROPERTY
(2)
A civil action; or
(3)
or
Art. 700. The district health officer shall take care that one or all of
the remedies against a public nuisance are availed of.
Art. 701. If a civil action is brought by reason of the maintenance of a
public nuisance, such action shall be commenced by the city or municipal
mayor.
50
51
587
Art. 702. The district health officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a
public nuisance.
Art. 703. A private person may file an action on account of a public
nuisance, if it is specially injurious to himself.
Art. 704. Any private person may abate a public nuisance which is
specially injurious to him by removing, or if necessary, by destroying the
thing which constitutes the same, without committing a breach of the
peace, or doing unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of
the property to abate the nuisance;
(2)
A civil action; or
(2)
128. Remedies
Whether the nuisance is public or private, the following remedies
are available: (1) a civil action; or (2) abatement, without judicial
proceedings.52 With regard to a public nuisance, the additional remedy
52
588
PROPERTY
589
590
PROPERTY
compelled to close down their existing terminals and use the facilities
of Lucena Grand Central. Hence, they questioned the validity of the
ordinance. The Court held that the bus and jeepney terminals are not
nuisances per se. Hence, they may not be abated via an ordinance,
without judicial proceedings, as was done in this case.
In City of Manila v. Judge Laguio, Jr.,62 the Court likewise struck
down the ordinance passed by the City Council of Manila prohibiting
the operation of sauna parlors, massage parlors, karaoke bars, night
clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns within the Ermita-Malate area. The Court held, among
others, that the City of Manila could not seek cover under the general
welfare clause to authorize the abatement of nuisances without judicial
proceedings because motels are not nuisances per se.
In Santos v. Salao,63 the Court also declared null and void the
order of the municipal president of Malabon, Rizal and those of its
health authorities issued with a view to the summary abatement of the
appellants smoked fish factory. The Court reasoned that the smoked
fish factory is a legitimate industry and not a nuisance per se which
could be abated summarily.
[128.2.1] Who May Abate
Under Article 700 of the New Civil Code, it is the City and/or the
Municipal Health Officer, or in cases of illegal construction, the City
and/or Municipal Engineer, who is charged with the responsibility of
abating public nuisances.
A private person may likewise abate a public nuisance which is
specially injurious to him by removing, or if necessary, by destroying
the thing which constitutes the same, without committing a breach of
the peace, or doing unnecessary injury.64 This rule, however, applies
only to nuisances per se and prior to the abatement, it is necessary:
(1) That demand be first made upon the owner or possessor of
the property to abate the nuisance;
Supra.
Supra.
64
Art. 704, NCC.
62
63
(2)
591
Id.
Art. 706, NCC.
67
Art. 707, NCC.
68
See Art. 701, NCC.
69
See Art. 705(1), NCC.
70
See Art. 703.
71
See Art. 696, NCC.
65
66
592
PROPERTY
oOo
592
593
BOOK III
DIFFERENT MODES OF ACQUIRING
OWNERSHIP
PRELIMINARY PROVISION
ARTICLE 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by testate and intestate succession, and
in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)
1
2
593
594
PROPERTY
The Civil Code does not contain any systematic doctrine regarding
the loss of ownership. Generally, however, the various modes of losing
ownership and other real rights are classified either as voluntary that
which depends upon the will of the owner or involuntary or that
which is independent of the will of the owner.
The voluntary modes are abandonment and alienation. The involuntary modes, on the other hand, are the following: (1) the destruction
of the thing, which may either be physical or juridical as when the thing
goes out of commerce; (2) revocatory acts, which may include the nullity, rescission, revocation or resolution of that which gave rise to the
acquisition; (3) extinguishment by legal precept and in virtue of certain
acts, by the owner or third persons (e.g., accession and acquisitive prescription); (4) extinguishment by judicial decree, such as confirmation
of a judicial sale as a result of levy on execution; and (5) extinguishment by act of the State, such as confiscation of the effects and instruments of a crime and expropriation for public use.4
[129.3.1] Abandonment and Alienation
3
4
595
596
PROPERTY
597
12
598
PROPERTY
xxx
xxx
599
600
PROPERTY
601
advised the police authorities. On that same day, Marella was able to sell the
car in question to Jose B. Aznar for P15,000.00, the latter acting in good and
without notice of the defect appertaining to the vendors title. While the car in
question was in the possession of Jose B. Aznar and while he was attending to
its registration in his name, agents of the Philippine Constabulary seized and
confiscated the same in consequence of the report to them by Teodoro Santos
that the said car was unlawfully taken from him. On the question of whether
Marella acquired ownership over the car with the delivery of the key of the car
to him, the Court ruled in the negative. The Court explained
Vicente Marella did not have any title to the property under
litigation because the same was never delivered to him. He sought
ownership or acquisition of it by virtue of the contract. Vicente
Marella could have acquired ownership or title to the subject
matter thereof only by the delivery or tradition of the car to him.
Under Article 712 of the Civil Code, ownership and other
real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of
certain contracts, by tradition. As interpreted by this Court in a host
of cases, by this provision, ownership is not transferred by contract
merely but by tradition or delivery. Contracts only constitute titles
or rights to the transfer or acquisition of ownership, while delivery
or tradition is the mode of accomplishing the same (Gonzales v.
Rojas, 16 Phil. 51; Ocejo, Perez and Co. v. International Bank, 37
Phil. 631, Fidelity and Deposit Co. v. Wilson, 8 Phil. 51; Kuenzle
& Streiff v. Wacke & Chandler, 14 Phil. 610; Easton v. Diaz Co.,
32 Phil. 180).
For the legal acquisition and transfer of ownership and other
property rights, the thing transferred must be delivered, inasmuch
as, according to settled jurisprudence, the tradition of the thing is
a necessary and indispensable requisite in the acquisition of said
ownership by virtue of contract. (Walter Laston v. E. Diaz & Co. &
the Provincial Sheriff of Albay, supra.)
So long as property is not delivered, the ownership over it is
not transferred by contract merely but by delivery. Contracts only
constitute titles or rights to the transfer or acquisition of ownership,
while delivery or tradition is the method of accomplishing the
same, the title and the method of acquiring it being different in our
law. (Gonzales v. Roxas, 16 Phil. 51)
In the case on hand, the car in question was never delivered
to the vendee by the vendor as to complete or consummate the
602
PROPERTY
Real tradition;
(2)
(3)
Quasi-tradition; and
(4)
603
Traditio Simbolica
604
PROPERTY
605
Id.
Supra.
606
PROPERTY
xxx
xxx
607
608
PROPERTY
passing of the property from the hands of the vendor into those of
the vendee. x x x.
The execution of a public instrument gives rise, therefore,
only to a prima facie presumption of delivery. Such presumption
is destroyed when the instrument itself expresses or implies that
delivery was not intended; or when by other means it is shown that
such delivery was not effected, because a third person was actually
in possession of the thing. In the latter case, the sale cannot be
considered consummated.
[131.4.3] Quasi-tradition and Tradition By Operation of
Law
609
Id.
Art. 1117, NCC.
34
Id.
32
33
610
PROPERTY
The first day shall be excluded and the last day included.42
611
612
PROPERTY
613
614
PROPERTY
615
Title I. OCCUPATION
Art. 713. Things appropriable by nature which are without an owner,
such as animals that are the object of hunting and fishing, hidden treasure and abandoned movables, are acquired by occupation. (610)
Art. 714. The ownership of a piece of land cannot be acquired by
occupation. (n)
Art. 715. The right to hunt and to fish is regulated by special laws.
(611)
Art. 716. The owner of a swarm of bees shall have a right to pursue
them to anothers land, indemnifying the possessor of the latter for the
damage. If the owner has not pursued the swarm, or ceases to do so
within two consecutive days, the possessor of the land may occupy or
retain the same. The owner of domesticated animals may also claim them
within twenty days to be counted from their occupation by another person. This period having expired, they shall pertain to him who has caught
and kept them. (612a)
Art. 717. Pigeons and fish which from their respective breeding
places pass to another pertaining to a different owner shall belong to
the latter, provided they have not been enticed by some artifice or fraud.
(613a)
Art. 718. He who by chance discovers hidden treasure in anothers
property shall have the right granted him in Article 438 of this Code.
(614)
Art. 719. Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the latter is unknown, the finder shall
immediately deposit it with the mayor of the city or municipality where the
finding has taken place.
The finding shall be publicly announced by the mayor for two consecutive weeks in the way he deems best.
If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public
auction eight days after the publication.
Six months from the publication having elapsed without the owner
having appeared, the thing found, or its value, shall be awarded to the
615
616
PROPERTY
finder. The finder and the owner shall be obliged, as the case may be, to
reimburse the expenses. (615a)
Art. 720. If the owner should appear in time, he shall be obliged to
pay, as a reward to the finder, one-tenth of the sum or of the price of the
thing found. (616a)
133. Occupation
[133.1] Concept and Requisites
Wild beasts, birds, fishes, and in fact all animals which are still
in their natural state of freedom become the property of the captor by
virtue of occupation. This rule, of course, applies especially to hunting
and fishing. And this rule applies even though the capture be made on
anothers land, without prejudice, however, to the liability of the captor
for any damage resulting from his trespass.
However, the right to hunt and to fish is regulated by special laws.3
Under Philippine laws (specifically R.A. No. 9147, otherwise known as
3 Sanchez Roman 209.
3 Sanchez 210; 2 Castan 140.
3
Art. 715, NCC.
1
2
617
618
PROPERTY
8
9
619
10
620
PROPERTY
12
621
19
622
PROPERTY
(3) The painter, sculptor, or other artist, with respect to the product of his art;
(4) The scientist or technologist or any other person with regard
to his discovery or invention. (n)
ART. 722. The author and the composer, mentioned in Nos. 1 and 2
of the preceding article, shall have the ownership of their creations even
before the publication of the same. Once their works are published, their
rights are governed by the Copyright laws.
The painter, sculptor or other artist shall have dominion over the
product of his art even before it is copyrighted.
The scientist or technologist has the ownership of his discovery or
invention even before it is patented. (n)
ART. 723. Letters and other private communications in writing are
owned by the person to whom they are addressed and delivered, but they
cannot be published or disseminated without the consent of the writer or
his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires.
ART. 724. Special laws govern copyright and patent. (429a)
622
623
b)
c)
Geographic indications;
d)
Industrial designs;
e)
Patents;
f)
g)
and
The author, the composer, the painter, the sculptor or other artists,
the scientists and the inventors acquire ownership over their works
from the moment of their creation2 even before the same are published,
copyrighted or patented.3 Being the owner thereof, the creator has
absolute control over his work and he may do anything with it as he
pleases, including the right to share it with others. He also enjoys the
exclusive right to its publication but this exclusive right is limited
only to the first publication.4 Unless placed under the protection of the
Copyright Law, once published, the work is dedicated to the public, and
the author loses the exclusive right to control subsequent publications
by others.5
The special law governing patents and copyrights is Republic Act
No. 8293, otherwise known as the Intellectual Property Code of the
Philippines.
[134.3] Ownership of Letters
624
PROPERTY
material or physical object (the letter itself) and the ideas or thoughts
contained in the letter (its contents). The former is owned by the person
to whom it is addressed and delivered (the recipient) but the latter is
owned by the author or writer (the sender). As a consequence, while the
recipient may have the control and possession of the physical letter itself
by virtue of his ownership of the same, the authors consent is required
in cases of publication or dissemination of the letter.6 In addition, the
copyright also belongs to the author or writer (the sender).7 If the
authors consent is not obtained in the publication and dissemination
of the contents of the letter, the latter may seek injunctive relief from
the courts, in addition to his right to recover damages. However, if
the public good or the interest of justice so requires, the court may
authorize the publication or dissemination of a letter or other private
communications.8
oOo
625
625
626
PROPERTY
627
628
PROPERTY
12
629
630
PROPERTY
631
15
See Art. 734, NCC. See also Concurring opinion of J. Antonio in Alejandro v. Geraldez,
78 SCRA 245, 266-267 and Lagazo v. CA, 287 SCRA 18, 27.
16
See Art. 732, NCC.
17
II Caguioa, Civil Code, 1966 ed., 364-365.
18
4 Castan, 7th ed., 169, cited in II Tolentino, Civil Code, 1992 ed., 530 and II Caguioa,
Civil Code, 1966 ed., 365.
632
PROPERTY
633
634
PROPERTY
Alejandro v. Geraldez, 78 SCRA 245, 253, citing Bonsato v. Court of Appeals, 95 Phil.
481.
Id., citing Castro v. Court of Appeals, 27 SCRA 1076.
Republic v. Silim, 356 SCRA 1, 8.
27
Id., citing Art. 725, NCC.
28
Lagazo v. Court of Appeals, 287 SCRA 18, 24. Also in De Luna v. Abrigo, 181 SCRA
150, 155.
29
Republic v. Silim, supra, p. 8.
30
Id., citing Art. 726, NCC.
31
Id., citing Arts. 726 and 733, NCC.
25
26
635
636
PROPERTY
Note that the New Civil Code does not use the term donation
mortis causa.38 According to Manresa, a transfer mortis causa, which
should be embodied in a last will and testament, should not be called
donation mortis causa since it is in reality a legacy.39 The term donation
mortis causa as commonly employed is merely a convenient name to
designate those dispositions of property that are void when made in the
form of donations.40
[136.2.2] Distinguished From Donations Inter Vivos
637
45
Castro v. Court of Appeals, 27 SCRA 1076, 1082 (1969), cited in National Treasurer of
the Phil. v. Vda. De Meimban, 131 SCRA 264, 269 (1984).
46
Castro v. CA, supra, pp. 1082-1083.
47
5 Manresa, Codigo Civil, 6th ed., p. 108, cited in Castro v. CA, supra, p. 1083.
638
PROPERTY
639
57
58
640
PROPERTY
641
642
PROPERTY
643
Id.
92 Phil. 245, cited in the concurring opinion of J. Antonio in Alejandro v. Geraldez,
supra, pp. 266-267.
80
Concurring opinion of J. Antonio in Alejandro v. Geraldez, supra, pp. 266-267.
81
Id.
82
Gestopa v. Court of Appeals, 342 SCRA 105 (2000).
83
Id.
84
Id.
85
Austria-Magat v. Court of Appeals, 375 SCRA 556 (2002).
78
79
644
PROPERTY
645
646
PROPERTY
647
satisfy her needs, the donation must be held to partake of the nature of
a conveyance inter vivos. In Puig case, while there is a clause that the
donor reserved her right to mortgage or even sell the donated property,
when and if she should need funds to meet her own needs, the Court
held that such donation is inter vivos. According to the Court, the last
sentence of the stipulation appears incompatible with the grantors
freedom to revoke a true conveyance mortis causa, a faculty that is
essentially absolute and discretionary, whether its purpose should be
to supply her needs or to make a profit, or have no other reason than
a change of volition on the part of the grantor-testator. If the donor,
says the Court, wished or intended to retain the right to change the
destination of her property at her sole will and discretion, there was no
reason for her to specify the causes for which she could sell or encumber
the property covered by her bounty.
[136.2.5] Distinguishing Characteristics of Donation Mortis
Causa
(2)
(3)
648
PROPERTY
donee during the donors lifetime, not by reason of his death but because
of the deed of donation, then the donation is inter vivos.100 As explained
earlier, donation inter vivos, in turn, may be classified into: (1) pure or
simple;101 (2) remuneratory,102 (3) modal,103 and (4) onerous.104
[136.3.1] Pure or Simple and Remuneratory Donations
p. 253.
Art. 725, NCC.
Art. 726, NCC.
103
Arts. 726 and 733, NCC.
104
Art. 733.
105
Republic v. Silim, supra, 8.
106
Lagazo v. Court of Appeals, 287 SCRA 18, 24. Also in De Luna v. Abrigo, 181 SCRA
150, 155.
107
Republic v. Silim, supra, p. 8.
108
Id., citing Art. 726, NCC.
109
5 Manresa 72.
110
Carlos v. Ramil, 20 Phil. 183.
111
See Arts. 725, 726 and 732, NCC.
112
Art. 732, NCC.
101
102
649
to be married, the spouses Carlos feared that there would be no one who would
take care of them in their twilight years. After the marriage, the couple entered
into an arrangement with the girl and her husband, that if the latter would
remain living in their house and take care of them, the real estate which they
owned would be given to the girl and her husband. There arose a question of
whether or not the agreement constituted a remunerative donation.
RULING: The agreement is not a remunerative donation but a contract
by which Carlos and his wife transferred to the defendant and his wife the lands
described in the complaint upon the consideration that the latter should give to
the former the care therein mentioned and prescribed. That contract was fully
executed upon the part of the defendant and his wife. If the transaction between
Carlos and the defendant was a donation it was una donacion con causa onerosa
and not una donacion remuneratoria. One of the leading differences between
these two classes of donations or gifts is that in the one con causa onerosa the
services which form the consideration for the gift have not yet been performed
while in the other they have. At the time of the transaction hereafter referred
to, none of the services which formed the consideration for the agreement in
question had as yet been performed. They were all to be performed in the
future. Under the provisions of the Civil Code una donacion con causa onerosa
is governed by the provisions of said code relative to contracts. That being
so, the arguments of the appellant relative to the validity of the instrument in
question are entirely inapplicable and beside the point for the reason that they
relate solely to a remunerative gift.
[136.3.2] Modal and Onerous Donations
650
PROPERTY
of the burden and by the law on donations under the present Title as
regards that portion which exceeds the value of the burden imposed.116
Note that while Article 733 uses the term remuneratory donations,
the law is actually referring to modal donations. The use of the term
remuneratory in said article is improper.
Lagazo v. Court of Appeals
287 SCRA 18 (1998)
Tito Lagazo filed an action against Alfredo Cabanlit for the recovery of
a parcel of land in Sta. Mesa, Manila which used to be owned by plaintiffs
grandmother, Catalina Jacob Vda. De Reyes. Plaintiffs claim was anchored
on an alleged donation made by his grandmother in his favor. Defendant, on
the other hand, claimed that he bought the property from Eduardo Espaol, to
whom Catalina allegedly sold the lot. After trial, the trial court ruled in favor
of plaintiff. On appeal, the Court of Appeals reversed the decision of the trial
court mainly because of the absence of any evidence that plaintiff accepted
the donation in the manner required by Article 749 of the Civil Code. Plaintiff
contended, however, that the formalities for a donation of real property should
not apply to his case since it was an onerous donation for he allegedly paid for
the amortizations due on the land before and after the execution of the deed
of donation. In upholding the decision of the Court of Appeals that the subject
donation was simple, the Supreme Court ruled
We rule that the donation was simple, not onerous. Even
conceding that petitioners full payment of the purchase price of
the lot might have been a burden to him, such payment was not
however imposed by the donor as a condition for the donation.
Rather, the deed explicitly stated:
That for and in consideration of the love and
affection which the DONEE inspires in the DONOR,
and as an act of liberality and generosity and considering
further that the DONEE is a grandson of the DONOR,
the DONOR hereby voluntarily and freely gives,
transfer[s] and conveys, by way of donation unto
said DONEE, his heirs, executors, administrators and
assigns, all the right, title and interest which the said
DONOR has in the above described real property,
together with all the buildings and improvements found
Id.
116
651
117
118
652
PROPERTY
653
654
PROPERTY
Like any other contract, donation also follows the theory of cognition.119 Thus, Article 734 of the New Civil Code provides that the
donation is perfected from the moment the donor knows of the accepLagazo v. CA, 287 SCRA 18, 27.
119
655
656
PROPERTY
Vda. de Arceo v. Court of Appeals, 185 SCRA 489, cited in Quilala v. CA, 371 SCRA
311.
5 Manresa 88.
Concurring opinion of J. Antonio, 78 SCRA 245, 266-267.
131
Id.
132
92 Phil. 245, 249.
129
130
657
658
PROPERTY
been different if the donor-seller sold her interests over the property
under the deed of donation which is subject to the possibility of
reversion of ownership arising from the non-fulfillment of the
resolutory condition.
xxx
xxx
xxx
659
xxx
xxx
Article 746 of the New Civil Code requires that the acceptance
must be made during the lifetime of the donor and of the donee. This
article, however, must be read in conjunction with the provisions of
Articles 734 and 1323 of the New Civil Code. As discussed in supra
137.1, the Civil Code follows the theory of cognition even insofar as
donations are concerned pursuant to Article 734 which provides that
the donation is perfected from the moment the donor knows of the
acceptance by the donee. Upon the death of either the donor or the donee
prior to the perfection of the donation, the offer of donation, however,
becomes ineffective. This is clear from the provision of Article 1323
of the New Civil Code which states that an offer becomes ineffective
upon the death, civil interdiction, insanity, or insolvency of either party
before acceptance is conveyed. Note that the provisions of Article
1323 likewise applies to donations in view of Article 732 which makes
applicable the provisions on obligations and contracts to donations in
a suppletory manner. Such being the case, an acceptance made by the
donee during the lifetime of both the donor and the donee will not result
in a perfected donation if prior to the donor gaining knowledge of such
acceptance, either him (the donor) or the donee dies.
Chapter 2
PERSONS WHO MAY GIVE OR RECEIVE
A DONATION
Art. 735. All persons who may contract and dispose of their property
may make a donation. (624)
660
PROPERTY
Art. 736. Guardians and trustees cannot donate the property entrusted to them. (n)
Art. 737. The donors capacity shall be determined as of the time of
the making of the donation. (n)
Art. 738. All those who are not specially disqualified by law therefor
may accept donations. (625)
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action. (n)
Art. 740. Incapacity to succeed by will shall be applicable to donations inter vivos. (n)
Art. 741. Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents or
legal representatives. (626a)
Art. 742. Donations made to conceived and unborn children may be
accepted by those persons who would legally represent them if they were
already born. (627)
Art. 743. Donations made to incapacitated persons shall be void,
though simulated under the guise of another contract or through a person
who is interposed. (628)
Art. 744. Donations of the same thing to two or more different donees shall be governed by the provisions concerning the sale of the same
thing to two or more different persons. (n)
Art. 745. The donee must accept the donation personally, or through
an authorized person with a special power for the purpose, or with a general and sufficient power; otherwise, the donation shall be void. (630)
Art. 746. Acceptance must be made during the lifetime of the donor
and of the donee. (n)
661
662
PROPERTY
still valid.139 In donation, however, the law requires that the donor must
be the owner of the thing donated at the time of the donation since the
latter cannot comprehend anything which the donor cannot dispose of
at the time of the donation.140 This must be the rule because donation,
under the Civil Code, is a mode of acquiring ownership.141 As a mode of
acquiring ownership, it results in an effective transfer of title over the
property from the donor to the donee and once a donation is accepted,
the donee becomes the absolute owner of the property donated.142
[138.2] Determination of Donors Capacity
In the original draft of the New Civil Code, the capacity of the
donor was to be determined at the time of acceptance of the donation;
but the Congress amended the original draft by providing in the present
Article 737 of the Civil Code that such determination is to be made
at the time of the making of the donation. But what exactly is the
meaning of the phrase as of the time of the making of the donation?
Literally, the donation is made when the donor executes the
instrument of donation or tells the donee that he is giving the property
by way of donation.143 Thus, there is a view to the effect that the donors
capacity is to be determined only at this point regardless of his capacity
at the time the acceptance is made known to him.144 Under this view, if
the donor is capacitated at the time he makes the donation his subsequent
incapacity does not affect the validity of the donation and, it will be
perfected even though he is incapacitated at the time of acceptance.145
This view, however, runs in conflict with Article 734, which provides
that the donation is perfected from the moment the donor knows of the
acceptance by the donee. For this reason, the late Senator Tolentino
suggested that the term making of the donation must be held to mean
perfection of the donation. He explained
When the Code Commission originally drafted the
present article, it provided that that the donors capacity was
Id.
See Art. 751, NCC.
141
See Art. 712, NCC.
142
Roman Catholic Archbishop of Manila v. CA, 198 SCRA 300, 309.
143
II Tolentino, Civil Code, 1992 ed., 545.
144
II Caguioa, Civil Code, 1966 ed., 387.
145
Id., 388.
139
140
663
664
PROPERTY
665
The law does not require that the donee must possess capacity to
act, which is defined as the power to do acts with legal effect,147 it
being sufficient that he must possesses juridical capacity or the fitness
to be the subject of legal relations. So long as the donee possesses
juridical capacity and not specially disqualified by law, he may accept
donations.148 Stated otherwise, all persons, whether natural or juridical,
who are not specially disqualified by law may become donees. Hence,
minors,149 persons who cannot enter into a contract150 and even conceived
and unborn children151 may become donees.
A conceived child, although as yet unborn, is given by law a
provisional personality of its own for all purposes favorable to it.152
Since donation is favorable to the foetus, provided it be pure or simple
in nature, the foetus has the juridical personality to become a donee. Its
personality, however, is provisional or conditional in character153 such
See Art. 37, NCC.
Art. 738, NCC.
149
Art. 741, NCC.
150
Id.
151
Art. 742, NCC. See also Quimiguing v. Icao, 34 SCRA 132, 134.
152
Art. 40, NCC; Quimiguing v. Icao, supra.
153
Quimiguing v. Icao, supra.
147
148
666
PROPERTY
667
The law further requires that the the donee must accept the
donation personally, or through an authorized person with a special
power for the purpose, or with a general and sufficient power;159
otherwise, the donation shall be void.160 In other words, a donation may
not be accepted by a person who is not authorized to do so, either by the
donee or by law. Such unauthorized acceptance may not even give rise
to an unenforceable contract. This is the necessary consequence of the
provision of article 745 of the New Civil Code. Note that unenforceable
contracts are subject to ratification,161 the effects of which retroact to
the time that the contract was entered without authority and not merely
from the time of its ratification.162 In a donation which is not accepted
in the manner provided for in Article 745, however, the unauthorized
acceptance will not result in a perfected contract of donation, be it
unenforceable or otherwise. In such a situation, there remains an offer
of donation which may be accepted by the donee personally or through
an authorized person with a special power for the purpose, or with a
general and sufficient power, unless the offer (donation) was withdrawn
or revoked prior to such acceptance. But in such a situation, the effects of
the perfection of the donation, i.e., transfer of ownership from the donor
to the donee, will be produced only from the time that the donation is
accepted in the manner provided for in Article 745.
While minors, other incapacitated persons and conceived and unborn children may become donees, the law requires that the acceptance
of the donation must be made through their parents or legal representatives.163 Notwithstanding the language of Article 741 of the New Civil
Code, however, it is still believed that if what is donated is a personal property the value of which does not exceed five thousand pesos
(P5,000) and the donation is pure, a minor or incapacitated person referred to in said article may validly receive such donation when made
orally and simultaneously delivered.164 However when the donation requires a written acceptance, whether in a private or public instrument,
the provisions of Article 741 should strictly apply.165
Art. 745, NCC.
Id.
161
See Arts. 1317 and 1403, NCC.
162
See IV Tolentino, Civil Code, 1991 ed., 444.
163
Arts. 741 and 742, NCC.
164
See 5 Manresa, 5th ed., 99; II Tolentino, Civil Code, 1992 ed., 550.
165
Id.
159
160
668
PROPERTY
(2)
(3)
(4)
(5)
(6)
669
wife with a man other than her husband always constitutes adultery174
while a single act of sexual intercourse on the part of the husband with
a woman other than his spouse will not necessarily constitute the crime
concubinage.175 For the crime of concubinage to be committed, it is
required that the husband must either: (1) keep a mistress in the conjugal
dwelling; (2) have sexual intercourse, under scandalous circumstances,
with a woman who is not his wife; or (3) cohabit with her in any other
place.176 While the husband may not be guilty of concubinage for a single
act of sexual intercourse, a donation in favor of the paramour may still
be considered invalid if the same is made in consideration of the sexual
intercourse since contracts whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy are void from
the very beginning.177
Article 739 of the New Civil Code, however, does not apply to
cases where the alleged concubine did not know that the man was
married.178 To be guilty of concubinage, the woman must know the
man to be married.179 The same principle will likewise apply to the man
accused of committing the crime of adultery.180
[139.3.2] Persons Guilty of Same Criminal Offense
670
PROPERTY
671
672
PROPERTY
673
674
PROPERTY
675
(2003).
Heirs of Salud Dizon Salamat v. Tamayo, 298 SCRA 313, 317 (1998).
Art. 734, NCC.
206
Lagazo v. Court of Appeals, 287 SCRA 18, 27.
207
Art. 749, FC.
204
205
676
PROPERTY
208
Id.
677
of the Court of Appeals, the Supreme Court held that such oral donation was
void. The Court explained
It is clear from Article 749 that a transfer of real property
from one person to another cannot take effect as a donation unless
embodied in a public document.
The alleged donation in the case at bar was done orally
and not executed in a public document. Moreover, the document
which was presented by respondent in support of her claim that her
father donated the subject parcel of land to her was a mere private
document of conformity which was executed by her elder brother,
Eduardo in 1956. It may not be amiss to point out that the brothers
Eduardo and Gaudencio had already ceded their hereditary interests
to petitioner Salud Dizon Salamat even before 1950.
[140.4.2] Property Donated and Value of Charges Must Be
Specified
Article 749 further requires that the real property donated and the
value of the charges which the donee is required to satisfy must be specified in the deed of donation. The charges referred to in this article are
the burdens mentioned in Article 726 inferior in value to the property
donated. These charges are required to be specified in the deed of donation for the purpose of determining the true amount of the donation. As
explained in supra 136.3.2, if the value of the burdens or charges is at
least equal or superior than that of the value of the property donated, the
donation is in reality a contract and governed by the law on contracts.
[140.4.3] Requirement of Notification and Notation
678
PROPERTY
679
680
PROPERTY
made to the donor or donors should be duly set forth. Where the
deed of donation fails to show the acceptance, or where the formal
notice of the acceptance made in a separate instrument is either not
given to the donor or else noted in the deed of donation, and in the
separate acceptance, the donation is null and void.
These requisites, definitely prescribed by law, have not been
complied with, and no proof of compliance appears in the record.
The two (2) quitclaim deeds set out the conveyance of the parcels
of land by Helen in favor of David but its acceptance by David
does not appear in the deeds, nor in the Special Power of Attorney.
Further, the records reveal no other instrument that evidences
such acceptance and notice thereof to the donor in an authentic
manner. It is well-settled that if the notification and notation are
not complied with, the donation is void. Therefore, the provisions
of the law not having been complied with, there was no effective
conveyance of the parcels of land by way of donation inter vivos.
212
See Pajarillo v. Intermediate Appellate Court, 176 SCRA 340 (1989) and Republic v.
Silim, 356 SCRA 1 (2001).
213
Pajarillo v. IAC, supra, at p. 349.
214
Republic v. Silim, supra.
215
Supra, at p. 349.
216
Supra, at p. 11.
681
54 Phil. 766.
28 Phil. 245.
682
PROPERTY
683
Shoppers Paradise Realty & Development Corp. v. Roque, 419 SCRA 93, 98 (2004).
Heirs of Rosendo Sevilla Florencio v. Heirs of Teresa Sevilla de Leon, 425 SCRA 447,
459 (2004).
219
220
684
PROPERTY
who, at the time of the acceptance of the donations, are by law entitled to
be supported by the donor. Without such reservation, the donation shall
be reduced on petition of any person affected. (634a)
Art. 751. Donations cannot comprehend future property.
By future property is understood anything which the donor cannot
dispose of at the time of the donation. (635)
Art. 752. The provisions of Article 750 notwithstanding, no person
may give or receive, by way of donation, more than he may give or receive
by will.
The donation shall be inofficious in all that it may exceed this limitation. (636)
A donor may donate all his property or part thereof221 subject only
to the following limitations:
(1)
685
686
PROPERTY
Under the Family Code, either spouse may dispose of his or her
interest in the community property or conjugal partnership of gains
only by will234 and not by acts inter vivos. Hence, neither the husband
nor the wife may donate his or her interest in the community property
or conjugal partnership of gains. The reason for this is because prior to
the liquidation of the absolute community or conjugal partnership, the
interest of each spouse in the community property or conjugal assets is
inchoate, a mere expectancy, which constitutes neither a legal nor an
equitable estate, and does not ripen into title until it appears that there are
assets in the community as a result of the liquidation and settlement.235
The interest of each spouse is limited to the net remainder or remanente
liquido (haber ganancial) resulting from the liquidation of the affairs
of the partnership after its dissolution.236 Thus, the right of the husband
or wife to one-half of the conjugal assets or community property does
not vest until the dissolution and liquidation of the conjugal partnership
or the absolute community, or after dissolution of the marriage, when
it is finally determined that, after settlement of conjugal or absolute
community obligations, there are net assets left which can be divided
Id.
Art. 97, FC.
235
Abalos v. Macatangay, Jr., 439 SCRA 649 (2004).
236
Abalos v. Macatangay, Jr., supra, citing Nable Jose v. Nable Jose, 41 Phil. 713 (1916);
Manuel v. Losano, 41 Phil. 855 (1918).
233
234
687
The spouses;
(2)
688
PROPERTY
689
Id.
See Art. 771, NCC.
690
PROPERTY
tion to the contrary, the former is understood to be liable to pay only the
debts which appear to have been previously contracted. In no case shall
the donee be responsible for debts exceeding the value of the property
donated, unless a contrary intention clearly appears. (642a)
Art. 759. There being no stipulation regarding the payment of debts,
the donee shall be responsible therefor only when the donation has been
made in fraud of creditors.
The donation is always presumed to be in fraud of creditors, when
at the time thereof the donor did not reserve sufficient property to pay his
debts prior to the donation. (643)
(2) If the donees are not husband and wife, there is no right
of accretion among them, accretion taking place only when expressly
provided for by the donor.249 If the donation, however, is made to husband
and wife jointly the rule is that there is a right of accretion among them
unless the donor provides for the contrary.250
When there is a right of accretion among several donees, the share
of the one who did not accept or could not accept or who died before he
had accepted shall go the other donees in proportion to the interest of
each in the donation. In such a situation, the acceptance by any of the
donees of the donation shall result in its perfection thereby preventing
the donor from revoking that part of the donation corresponding
to the share of the one who did not accept or who died prior to his
acceptance.
(3) If the donation is made to the spouses jointly in a regime
of conjugal partnership of gains, and with designation of determinate
shares, their respective shares shall pertain to them as his or her own
691
As a rule, the donor does not warrant the thing donated against
eviction.253 Hence, the donor has no liability to the donee in case of
eviction except: (1) when there is bad faith on the part of the donor,
in which case he is also liable for hidden defects;254 or (2) when the
donation is onerous, in which case the donor shall be liable up to the
amount equal to the burden.255
[143.3] Reservation of Power to Dispose
692
PROPERTY
The donor may validly provide for the reversion or return of the
property donated to him for any case and circumstances.258 He may
likewise establish a reversion in favor of a third person provided that
such person is living at the time of the donation.259 If the latter condition
is violated, only the provision for reversion is considered void without
affecting the validity of the donation.260
[143.6] Payment of Donors Debts
When the donation imposes upon the donee the obligation to pay
the debts of the donor, the following rules shall apply unless a contrary
intention clearly appears: (1) the donee is understood to be liable to pay
only the debts which appear to have been previously contracted; and
(2) the liability of the donee is limited only to the value of the property
donated.261
On the other hand, in the absence of any stipulation regarding
the payment of the debts of the donor, the donee shall be responsible
therefore only when the donation has been made in fraud of creditors.262
And such donation is presumed to be in fraud of creditors when at the
time of the donation the donor did not reserve sufficient property to pay
his debts prior to the donation.263 The liability, however, of the donee
should be limited only to the value of the property donated.
693
Chapter 4
REVOCATION AND REDUCTION
OF DONATIONS
Art. 760. Every donation inter vivos, made by a person having no
children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next
article, by the happening of any of these events:
(1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous;
(2) If the child of the donor, whom the latter believed to be dead
when he made the donation, should turn out to be living;
(3)
Art. 761. In the cases referred to in the preceding article, the donation shall be revoked or reduced insofar as it exceeds the portion that
may be freely disposed of by will, taking into account the whole estate of
the donor at the time of the birth, appearance or adoption of a child. (n)
Art. 762. Upon the revocation or reduction of the donation by the
birth, appearance or adoption of a child, the property affected shall be
returned, or its value if the donee has sold the same.
If the property is mortgaged, the donor may redeem the mortgage,
by paying the amount guaranteed, with a right to recover the same from
the donee.
When the property cannot be returned, it shall be estimated at what
it was worth at the time of the donation. (645a)
Art. 763. The action for revocation or reduction on the grounds set
forth in Article 760 shall prescribe after four years from the birth of the
first child, or from his legitimation, recognition or adoption, or from the
judicial declaration of filiation, or from the time information was received
regarding the existence of the child believed dead.
This action cannot be renounced, and is transmitted, upon the death
of the donor, to his legitimate and illegitimate children and descendants.
(646a)
Art. 764. The donation shall be revoked at the instance of the donor,
when the donee fails to comply with any of the conditions which the former imposed upon the latter.
In this case, the property donated shall be returned to the donor,
the alienations made by the donee and the mortgages imposed thereon
by him being void, with the limitations established, with regard to third
persons, by the Mortgage Law and the Land Registration Laws.
694
PROPERTY
This action shall prescribe after four years from the noncompliance
with the condition, may be transmitted to the heirs of the donor, and may
be exercised against the donees heirs. (647a)
Art. 765. The donation may also be revoked at the instance of the
donor, by reason of ingratitude in the following cases:
(1) If the donee should commit some offense against the person,
the honor or the property of the donor, or of his wife or children under his
parental authority;
(2) If the donee imputes to the donor any criminal offense, or any
act involving moral turpitude, even though he should prove it, unless the
crime or the act has been committed against the donee himself, his wife
or children under his authority;
(3) If he unduly refuses him support when the donee is legally or
morally bound to give support to the donor. (648a)
Art. 766. Although the donation is revoked on account of ingratitude,
nevertheless, the alienations and mortgages effected before the notation
of the complaint for revocation in the Registry of Property shall subsist.
Later ones shall be void. (649)
Art. 767. In the case referred to in the first paragraph of the preceding article, the donor shall have a right to demand from the donee the
value of property alienated which he cannot recover from third persons,
or the sum for which the same has been mortgaged.
The value of said property shall be fixed as of the time of the donation. (650)
Art. 768. When the donation is revoked for any of the causes stated
in Article 760, or by reason of ingratitude, or when it is reduced because
it is inofficious, the donee shall not return the fruits except from the filing
of the complaint.
If the revocation is based upon noncompliance with any of the conditions imposed in the donation, the donee shall return not only the property but also the fruits thereof which he may have received after having
failed to fulfill the condition. (651)
Art. 769. The action granted to the donor by reason of ingratitude
cannot be renounced in advance. This action prescribes within one year,
to be counted from the time the donor had knowledge of the fact and it
was possible for him to bring the action. (652)
Art. 770. This action shall not be transmitted to the heirs of the donor, if the latter did not institute the same, although he could have done
so, and even if he should die before the expiration of one year.
Neither can this action be brought against the heir of the donee, unless upon the latters death the complaint has been filed. (653)
695
Art. 771. Donations which in accordance with the provisions of Article 752, are inofficious, bearing in mind the estimated net value of the
donors property at the time of his death, shall be reduced with regard to
the excess; but this reduction shall not prevent the donations from taking
effect during the life of the donor, nor shall it bar the donee from appropriating the fruits.
For the reduction of donations the provisions of this Chapter and of
Articles 911 and 912 of this Code shall govern. (654)
Art. 772. Only those who at the time of the donors death have a right
to the legitime and their heirs and successors in interest may ask for the
reduction of inofficious donations.
Those referred to in the preceding paragraph cannot renounce their
right during the lifetime of the donor, either by express declaration, or by
consenting to the donation.
The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the deceased can neither ask for the reduction
nor avail themselves thereof. (655a)
Art. 773. If, there being two or more donations, the disposable portion is not sufficient to cover all of them, those of the more recent dates
shall be suppressed or reduced with regard to the excess. (656)
696
PROPERTY
be reduced based on the following grounds: (1) that the donor did not
reserve sufficient property for his own and his familys support;270 (2)
by the subsequent appearance of children;271 and (3) that the donation is
inofficious.272
[144.2] Subsequent Appearance of Children
697
698
PROPERTY
appearance of a child under Article 760, but later on the donor dies a
richer man and, at the time of his death, the previous donation could
have been accommodated in the free portion, may the donee be entitled
to the return of the thing donated or its value? The answer must be in
the negative. In this second situation, the ground for the revocation of
the donation is Article 760, which is an altogether different ground from
that provided in Article 752.
[144.2.3] Effects of Reduction or Revocation of Donation
699
While Article 764 uses the term conditions, what are actually
being referred to in said article are the obligations or charges imposed
by the donor on the donee. In his annotation of Article 764 of the Civil
Code on donations, Arturo M. Tolentino, citing the well-known civilists
such as Castan, Perez Gonzalez and Alguer, and Colin & Capitant,
states clearly the context within which the term conditions is used in
the law of donations, to wit:
The word conditions in this article does not refer to
uncertain events on which the birth or extinguishment of a
juridical relation depends, but is used in the vulgar sense of
obligations or charges imposed by the donor on the donee.
It is used, not in its technical or strict legal sense, but in its
broadest sense.283
700
PROPERTY
Clearly then, when the law and the deed of donation speaks
of conditions of a donation, what are referred to are actually the
obligations, charges or burdens imposed by the donor upon the donee
and which would characterize the donation as onerous.284 Thus, an
eminent civilist285 opines that the manner of revocation in Article 764 is
applicable to onerous donation. In De Luna v. Abrigo,286 however, our
Supreme Court made a ruling to the effect that Article 764 of the New
Civil Code does not apply to onerous donations in view of the specific
provision of Article 733 providing that onerous donations are governed
by the rules on contracts. Invoking the provisions of Article 733, the
Court further held that in determining the prescriptive period of an action
to revoke an onerous donation the rules on contracts and the general
rules on prescription and not the rules on donations are applicable to
onerous donations.287 Applying the rule of the Supreme Court in De Luna
v. Abrigo, which cited Article 1144(1) of the New Civil Code as legal
basis, the prescriptive period of an action for revocation of an onerous
donation by reason of non-compliance with the condition/obligation
imposed is ten (10) years counted from the time within which the donee
must comply with the conditions/obligations of the donation.
De Luna v. Abrigo
181 SCRA 150 (1990)
In 1965, Prudencio de Luna donated a portion of his lot to the Luzonian
Colleges, Inc. The donation was subject to certain terms and conditions and
provided for the automatic reversion to the donor of the donated property in
case of non-compliance. The donee failed to comply with the conditions of
the donation. On April 9, 1971, however, the donor revived the donation in
favor of the donee. As in the original deed of donation, the revived deed of
donation also provided for the automatic reversion to the donor of the donated
area in case of violation of the conditions thereof. In the revived deed, the
donor imposed upon the donee the obligations to construct a chapel, a nursery
and a kindergarten school in the donated property within five years from the
execution of the deed of donation. Claiming that the terms and conditions of
the donation were not complied with by the donee, the heirs of the donor (who
Id., 521.
See II Caguioa, Civil Code, 1966 ed., 421.
286
181 SCRA 150, 156 (1990). See also Secretary of Education v. Heirs of Rufino Dulay,
Sr., 480 SCRA 452.
287
Id.
284
285
701
died on August 18, 1980) filed an action for the cancellation of the donation
on September 23, 1980. The trial court, however, dismissed the action on the
ground that more than four (4) years had already lapsed from April 9, 1976
when the action was filed. The trial court based its decision on Article 764 of
the New Civil Code. The heirs of de Luna elevated the matter to the Supreme
Court. In reversing the decision of the trial court, the Court explained
It is the finding of the trial court, which is not disputed by
the parties, that the donation subject of this case is one with an
onerous cause. It was made subject to the burden requiring the
donee to construct a chapel, a nursery and a kindergarten school in
the donated property within five years from execution of the deed
of donation.
Under the old Civil Code, it is a settled rule that donations
with an onerous cause are governed not by the law on donations
but by the rules on contracts, as held in the cases of Carlos v.
Ramil, L-6736, September 5, 1911, 20 Phil. 183; Manalo v. de
Mesa, L-9449, February 12, 1915, 29 Phil. 495. On the matter of
prescription of actions for the revocation of onerous donation, it
was held that the general rules on prescription applies. (Parks v.
Province of Tarlac, supra.). The same rules apply under the New
Civil Code as provided in Article 733 thereof which provides:
Art. 733. Donations with an onerous cause shall be
governed by the rules on contracts, and remuneratory donations
by the provisions of the present Title as regards that portion which
exceeds the value of the burden imposed.
It is true that under Article 764 of the New Civil Code,
actions for the revocation of a donation must be brought within
four (4) years from the non-compliance of the conditions of the
donation. However, it is Our opinion that said article does not
apply to onerous donations in view of the specific provision of
Article 733 providing that onerous donations are governed by the
rules on contracts.
In the light of the above, the rules on contracts and the
general rules on prescription and not the rules on donations are
applicable in the case at bar.
xxx
xxx
xxx
The trial court was therefore not correct in holding that the
complaint in the case at bar is barred by prescription under Article
764 of the New Civil Code because Article 764 does not apply to
onerous donations.
702
PROPERTY
xxx
xxx
When the donation is revoked for failure to comply with the charges
imposed on the donation, the property donated shall be returned to the
donor.289 Any alienation or encumbrance made by the donee with respect
to the donated property shall be considered void, subject, however, to
the rights of a buyer or mortgagee in good faith.290
If the revocation is based upon noncompliance with any of the
conditions imposed in the donation, the donee shall return not only the
703
property but also the fruits thereof which he may have received after
having failed to fulfill the condition.291
[144.3.3] Prescriptive Period of Action Based under Article
764
The prescriptive period in Article 764 does not apply when the deed
of donation expressly provides for automatic reversion of the property
donated in case of violation of the condition therein because in such
a case a judicial declaration revoking the donation is not necessary.293
In other words, Article 764 of the New Civil Code is intended to
provide a judicial remedy in case of non-fulfillment or contravention
of conditions specified in the deed of donation if and when the parties
have not agreed on the automatic revocation of such donation upon
the concurrence of the contingency contemplated therein.294 Instead, the
applicable prescriptive period is ten (10) years as provided for in Article
1144(1), since the action is for the enforcement of a written contract.295
704
PROPERTY
would revert to the estate of the donors. In 1980, and while still within the
prohibited period, the Roman Catholic Bishop of Imus, sold the property to
spouses Florencio and Soledad Ignao. As a consequence, the spouses were
issued a new title to the property in their names on November 15, 1980. When
the heirs of Eusebio Castro and Martina Rieta learned about the sale, they filed
an action for the nullification of the deed of donation, rescission of the sale in
favor of the spouses Ignao and reconveyance of the property on November
29, 1984. The Roman Catholic Bishops of Manila and Imus, together with
the spouses Ignao, contended that the cause of action had already prescribed
based on Article 764 of the New Civil Code. The Court, however, ruled that
the prescriptive period in Article 764 does not apply in the given case since the
donation expressly provides for automatic reversion in case of violation of the
conditions therein. The Court explained
Although it is true that under Article 764 of the Civil Code
an action for the revocation of a donation must be brought within
four (4) years from the non-compliance of the conditions of the
donation, the same is not applicable in the case at bar. The deed
of donation involved herein expressly provides for automatic
reversion of the property donated in case of violation of the
condition therein, hence a judicial declaration revoking the same
is not necessary, as aptly stated by the Court of Appeals:
By the very express provision in the deed of donation itself
that the violation of the condition thereof would render ipso facto
null and void the deed of donation, WE are of the opinion that there
would be no legal necessity anymore to have the donation judicially
declared null and void for the reason that the very deed of donation
itself declares it so. For where (sic) it otherwise and that the donors
and the donee contemplated a court action during the execution of
the deed of donation to have the donation judicially rescinded or
declared null and void should the condition be violated, then the
phrase reading would render ipso facto null and void would not
appear in the deed of donation.
In support of its aforesaid position, respondent court relied
on the rule that a judicial action for rescission of a contract is not
necessary where the contract provides that it may be revoked
and cancelled for violation of any of its terms and conditions.
It called attention to the holding that there is nothing in the law
that prohibits the parties from entering into an agreement that a
violation of the terms of the contract would cause its cancellation
even without court intervention, and that it is not always necessary
for the injured party to resort to court for rescission of the contract.
705
706
PROPERTY
apply, and not Article 764 of the Civil Code. Since Article 1306
of said Code authorizes the parties to a contract to establish such
stipulations, clauses, terms and conditions not contrary to law,
morals, good customs, public order or public policy, we are of
the opinion that, at the very least, that stipulation of the parties
providing for automatic revocation of the deed of donation,
without prior judicial action for that purpose, is valid subject to
the determination of the propriety of the rescission sought. Where
such propriety is sustained, the decision of the court will be merely
declaratory of the revocation, but it is not in itself the revocatory
act.
On the foregoing ratiocinations, the Court of Appeals
committed no error in holding that the cause of action of herein
private respondents has not yet prescribed since an action to
enforce a written contract prescribes in ten (10) years. It is our
view that Article 764 was intended to provide a judicial remedy
in case of non-fulfillment or contravention of conditions specified
in the deed of donation if and when the parties have not agreed on
the automatic revocation of such donation upon the occurrence of
the contingency contemplated therein. That is not the situation in
the case at bar.
[144.4] Revocation By Reason of Ingratitude
707
possible for the donor to bring the action but he did not institute the
same, the right to file the same is not transmitted to his heirs even if he
dies before the expiration of the one-year period.298 A fortiori, if upon
the death of the donor the one-year period has not yet commenced to
run because it was not possible for the donor to bring the action during
his lifetime, the right to bring the same is transmitted to the heirs upon
the donors death. Neither may the action be filed against the heir of the
donee upon the death of the latter,299 even if the latter should die before
the expiration of the one-year period.
[144.5] Revocation By Reason Inofficiousness
708
PROPERTY
(4) the addition to the net value thus found, of the value, at the
time they were made, of donations subject to collation; and
(5) the determination of the amount of the legitimes by getting
from the total thus found the portion that the law provides as the legitime
of each respective compulsory heir.303
Deducting the legitimes from the net value of the hereditary estate
leaves the freely disposable portion by which the donation in question
must be measured. If the value of the donation at the time it was made
does not exceed that difference, then it must be allowed to stand. But if
it does, the donation is inofficious as to the excess and must be reduced
by the amount of said excess.304
[144.5.2] Status of Such Donation During Donors Lifetime
Only those who at the time of the donors death have a right to
the legitime and their heirs and successors in interest may ask for the
reduction or revocation of inofficious donations.306 In other words,
persons who are not entitled to the legitime (therefore not considered
as compulsory heirs), such as donees, devisees, legatees and creditors
of the deceased donor, cannot ask for the reduction or revocation of
inofficious donations.307 During the lifetime of the donor, the compulsory
heirs who are entitled to ask for the reduction or revocation of inofficious
Id., 626.
Id.
305
Art. 771, NCC.
306
Art. 772, 1st par., NCC.
307
Art. 772, 3rd par., NCC.
303
304
709
710
PROPERTY
heirs who were prejudiced by such donation.316 If there are two or more
donations and the disposable portion is not sufficient to cover all of
them, those of the more recent date shall be suppressed or reduced with
regard to the excess.317 If they are of the same date, they shall be reduced
proportionately.
As in the case of revocation of donations for any of the causes
stated in Article 760 and by reason of ingratitude, when the donation
is reduced because it is inofficious, the donee shall not return the fruits
except from the filing of the complaint.318
oOo
PROPERTY
By
ELMER T. RABUYA
Professor of Civil Laws and Bar Reviewer, Arellano University
School of Law, San Sebastian College, Jose Rizal University
and Jurists Bar Review Center
Author: The Law on Persons and Family Relations
LLB., AUSL, Class Valedictorian
A.B. Management Economics, Ateneo de Manila University
ISBN 978-971-23-5222-5
No portion of this book may be copied or
reproduced in books, pamphlets, outlines or notes,
whether printed, mimeographed, typewritten, copied
in different electronic devices or in any other form, for
distribution or sale, without the written permission
of the author except brief passages in books, articles,
reviews, legal papers, and judicial or other official
proceedings with proper citation.
Any copy of this book without the corresponding number and the signature of the author on this
page either proceeds from an illegitimate source or is
in possession of one who has no authority to dispose
of the same.
ALL RIGHTS RESERVED
BY THE AUTHOR
No. ____________
ISBN 978-971-23-5222-5
789712 352225
Printed by
PREFACE
This work is a product of the authors more than ten years experience in teaching the subject. It started as an outline, then turned into
lecture notes and finally, into this book. It is designed for use primarily
by law students and bar reviewees but law practitioners may likewise
find it as a useful guide in the area of Philippine Property Law.
In discussing the subject, the author relied heavily on decisions
promulgated by the Philippine Supreme Court. However, the illuminating
opinions of recognized authorities in the subject matter, both local and
foreign, have likewise been availed of. Some foreign decisions have
likewise been cited in this work to throw light on areas where there is
dearth of materials in the local sources.
It is earnestly hoped that this book will be of help to all disciples
of law.
THE AUTHOR
Manila, Philippines
10 March 2008
iii
iv
vi
CONTENTS
BOOK II
PROPERTY, OWNERSHIP, AND ITS
MODIFICATION
Title I. CLASSIFICATION OF PROPERTY
PRELIMINARY PROVISIONS
Page
1.
2.
Introductory Concepts................................................................
[1.1]
[1.2]
[1.3]
[1.4]
[1.5]
1
2
3
3
4
Classification of Property...........................................................
[2.1]
[2.2]
5
5
3.
4.
Immovable Property...................................................................
[3.1]
[3.2]
8
8
(A)
[4.1]
(B)
[4.2]
[4.3]
9
9
9
9
10
[4.4]
[4.5]
[4.6]
[4.7]
(C)
[4.8]
5.
6.
7.
8.
14
15
17
22
24
24
26
(A)
[5.1]
(B)
[5.2]
26
26
26
26
27
27
[6.1]
[6.2]
[6.3]
27
27
27
29
29
[7.1]
[7.2]
Requisites ....................................................................
Distinguish From Paragraph 3 .....................................
29
29
30
30
[8.1]
[8.2]
[8.3]
30
30
[8.4]
[8.5]
[8.6]
[8.7]
viii
30
34
36
37
38
9.
41
41
41
41
10.
41
11.
42
42
[11.1]
[11.2]
42
42
42
42
[13.1]
[13.2]
Rights as Property........................................................
How Rights Classified .................................................
42
43
43
43
12.
13.
14.
45
Chapter 2
MOVABLE PROPERTY
15.
Movable Property.......................................................................
49
[15.1]
[15.2]
49
50
50
50
51
51
[16.1]
[16.2]
51
52
[15.3]
[15.4]
[15.5]
[15.6]
16.
49
Chapter 3
PROPERTY IN RELATION TO THE PERSON
TO WHOM IT BELONGS
17.
52
[17.1]
[17.2]
18.
53
53
[18.1]
[18.2]
[18.3]
[18.4]
[18.5]
[18.6]
19.
53
53
54
55
55
56
57
57
58
58
58
58
60
60
60
61
62
63
63
63
64
64
65
65
66
66
68
68
68
69
69
70
(A)
[19.2]
(B)
[19.3]
(C)
[19.4]
[19.5]
[19.6]
[19.7]
[19.8]
(D)
[19.9]
(E)
[19.10]
[19.11]
[19.12]
(F)
[19.13]
(G)
[19.14]
[19.15]
(H)
[19.16]
20.
52
21.
22.
25.
75
[22.1]
[22.2]
76
79
80
[23.1]
[23.2]
[23.3]
80
82
82
84
87
[25.1]
26.
74
76
[22.4]
24.
71
73
73
73
74
74
74
[22.3]
23.
70
77
78
87
88
[26.1]
[26.2]
[26.3]
xi
88
90
94
27.
96
97
99
101
31.
32.
33.
34.
35.
36.
37.
103
[30.1]
[30.2]
[30.3]
[30.4]
[30.5]
103
104
105
106
106
Attributes of Ownership.............................................................
Right to Enjoy ............................................................................
107
107
[32.1]
108
Right to Dispose.........................................................................
Right to Recover ........................................................................
108
109
[34.1]
[34.2]
109
110
Doctrine of Self-help..................................................................
115
[35.1]
[35.2]
[35.3]
[35.4]
115
115
116
117
120
122
[37.1]
[37.2]
[37.3]
[37.4]
38.
122
126
127
134
137
[38.1]
[38.2]
137
139
39.
142
[39.1]
[39.2]
[39.3]
143
148
158
40.
Accession ...................................................................................
168
[40.1]
[40.2]
168
169
41.
42.
170
[41.1]
[41.2]
[41.3]
[41.4]
170
170
171
173
174
[42.1]
[42.2]
[42.3]
[42.4]
174
174
175
175
43.
176
[43.1]
[43.2]
176
177
A.
44.
45.
INDUSTRIAL ACCESSION
178
[44.1]
[44.2]
[44.3]
Three Forms.................................................................
Building, Planting or Sowing on Ones Own Land .....
Controversial Cases .....................................................
178
179
180
181
xiii
[45.1]
[45.2]
46.
47.
181
181
187
187
[47.1]
[47.2]
[47.3]
208
219
222
226
[48.1]
[48.2]
226
[47.4]
[47.5]
48.
226
229
[48.3]
49.
[49.1]
229
229
230
231
[51.1]
[51.2]
231
[51.3]
B.
52.
53.
228
[49.2]
50.
51.
187
208
231
232
NATURAL ACCESSION
233
[52.1]
233
Alluvion .....................................................................................
234
[53.1]
[53.2]
234
[53.3]
[53.4]
[53.5]
Definition .....................................................................
Riparian Owners Distinguished From
Littoral Owners ............................................................
Rule on Alluvion..........................................................
Requisites of Alluvion .................................................
Right of Riparian Owner to Alluvium Is Ipso Jure .....
xiv
234
234
235
241
[53.6]
54.
55.
56.
242
Avulsion .....................................................................................
243
[54.1]
[54.2]
[54.3]
[54.4]
Definition .....................................................................
Comparison With Alluvion ..........................................
Rule on Avulsion .........................................................
Avulsion With Respect To Uprooted Trees .................
243
243
244
244
245
[55.1]
[55.2]
[55.3]
[55.4]
[55.5]
[55.6]
245
246
248
249
250
250
251
[56.1]
251
57.
255
255
255
256
258
259
[58.1]
[58.2]
259
259
Specification...............................................................................
261
[59.1]
[59.2]
261
261
[57.2]
[57.3]
[57.4]
[57.5]
58.
59.
255
60.
262
[60.1]
[60.2]
[60.3]
262
264
267
Chapter 4
RUINOUS BUILDINGS AND TREES
IN DANGER OF FALLING
61.
269
[61.1]
[61.2]
[61.3]
269
270
270
63.
64.
In General...................................................................................
272
[62.1]
[62.2]
[62.3]
[62.4]
[62.5]
[62.6]
[62.7]
[62.8]
Definition .....................................................................
Requisites of Co-ownership ........................................
Dual Nature of Ownership in Co-Ownership ..............
Effect of Division or Partition .....................................
A Co-Owner Cannot Claim A Definite Portion ...........
Distinguished From Partnership ..................................
Sources of Co-ownership ............................................
Rules Governing Co-Ownership .................................
272
272
274
274
275
277
279
280
281
[63.1]
[63.2]
[63.3]
281
282
282
283
[64.1]
283
283
284
289
289
[65.1]
[65.2]
[65.3]
[65.4]
289
290
292
295
296
[66.1]
[66.2]
[66.3]
296
296
[64.2]
[64.3]
[64.4]
65.
66.
297
[66.4]
[66.5]
[66.6]
297
298
300
[67.1]
[67.2]
[67.3]
[67.4]
[67.5]
300
300
301
301
[66.7]
67.
301
302
303
[68.1]
[68.2]
[68.3]
[68.4]
303
304
304
304
305
[69.1]
[69.2]
[69.3]
305
305
[67.6]
68.
69.
70.
306
306
[70.1]
317
318
318
[71.1]
[71.2]
318
319
[70.2]
[70.3]
[70.4]
[70.5]
[70.6]
[70.7]
[70.8]
71.
298
299
306
307
307
312
313
316
[71.3]
[71.4]
[71.5]
319
320
322
[72.1]
[72.2]
[72.3]
[72.4]
322
322
323
Prescription ................................................................................
328
[73.1]
[73.2]
[73.3]
328
328
329
Partition ......................................................................................
331
[74.1]
[74.2]
[74.3]
[74.4]
[74.5]
[74.6]
[74.7]
331
331
332
341
342
343
347
[71.6]
[71.7]
[71.8]
72.
73.
74.
Definition .....................................................................
Right of Co-Owner to Demand Partition.....................
Period of Prescription ..................................................
Action For Partition, Explained ...................................
When Partition Not Available ......................................
When thing is essentially indivisible ...........................
Legal Effects of Partition .............................................
320
320
321
321
323
77.
350
351
[76.1]
[76.2]
352
353
Appropriation of Waters.............................................................
355
Chapter 2
MINERALS
78.
375
Chapter 3
TRADEMARKS AND TRADE NAMES
79.
376
Title V. POSSESSION
Chapter 1
POSSESSION AND THE KINDS THEREOF
80.
81.
82.
83.
Concept of Possession................................................................
377
[80.1]
[80.2]
[80.3]
[80.4]
[80.5]
Definition .....................................................................
Elements of Possession................................................
Possession as Fact and Right .......................................
Degrees of Possession .................................................
Classification of Possession under the Civil Code ......
377
378
380
381
381
382
388
392
[83.1]
[83.2]
[83.3]
[83.4]
392
397
399
402
84.
85.
404
[84.1]
[84.2]
[84.3]
[84.4]
[84.5]
[84.6]
[84.7]
[84.8]
[84.9]
404
404
405
406
407
408
408
408
409
410
[85.1]
[85.2]
410
411
86.
87.
414
[86.1]
[86.2]
[86.3]
414
416
419
420
Chapter 3
EFFECTS OF POSSESSION
88.
89.
90.
91.
424
[88.1]
[88.2]
[88.3]
424
425
426
428
[89.1]
[89.2]
[89.3]
429
429
430
Co-possession ............................................................................
Right of Possessors to Fruits ......................................................
431
433
I.
A.
434
[91.1]
[91.2]
[91.3]
Rule..............................................................................
Interruption of Good Faith...........................................
When Fruits Considered Received...........................
434
434
435
B.
436
[91.4]
[91.5]
Rule..............................................................................
Rules Do Not Apply to Trees.......................................
436
437
437
II.
A.
92.
[91.6]
Rule..............................................................................
437
B.
438
[91.7]
[91.8]
Rule..............................................................................
Rule With Respect to Trees .........................................
438
439
440
[92.1]
[92.2]
[92.3]
440
441
441
[92.4]
[92.5]
[92.6]
445
446
446
447
448
449
[99.1]
[99.2]
[99.3]
[99.4]
Abandonment ..............................................................
Assignment ..................................................................
Destruction or Loss of the Thing .................................
Possession By Another ................................................
449
451
451
451
453
454
454
455
464
465
465
466
97.
98.
99.
467
467
470
470
471
472
Chapter 2
RIGHTS OF THE USUFRUCTUARY
105. Rights of Usufructuary...............................................................
[105.1]
[105.2]
[105.3]
[105.4]
xxi
476
476
481
482
483
Chapter 3
OBLIGATIONS OF THE USUFRUCTUARY
106. Obligations of Usufructuary ......................................................
107. Obligations at the Commencement of Usufruct.........................
486
486
486
490
491
493
494
486
487
488
Chapter 4
EXTINGUISHMENT OF USUFRUCT
109. Extinguishment of Usufruct .......................................................
496
497
498
499
500
500
501
501
506
[112.1]
[112.2]
[112.3]
[112.4]
[112.5]
506
509
510
510
511
512
xxii
512
514
516
[114.1]
[114.2]
[114.3]
[114.4]
516
520
523
524
528
Merger .........................................................................
Non-User .....................................................................
Impossibility of Use ....................................................
Renunciation ................................................................
Redemption..................................................................
528
529
530
532
532
533
534
535
535
Chapter 2
LEGAL EASEMENTS
117. Legal Easement, In General .......................................................
118. Easement Relating to Waters .....................................................
[118.1]
[118.2]
[118.3]
[118.4]
[118.5]
535
537
538
539
539
539
540
543
543
xxiii
543
544
545
547
548
549
549
550
552
552
553
557
557
557
560
560
560
560
562
562
562
563
564
564
564
565
565
554
557
557
558
566
566
567
568
568
569
570
xxiv
570
570
585
585
587
588
588
591
BOOK III
DIFFERENT MODES OF ACQUIRING
OWNERSHIP
PRELIMINARY PROVISION
129. Modes of Acquisition of Ownership and Real Rights ...............
593
593
594
594
595
595
[131.1]
[131.2]
[131.3]
[131.4]
595
596
597
602
608
[132.1]
[132.2]
[132.3]
[132.4]
[132.5]
608
609
610
611
613
Title I. OCCUPATION
133. Occupation .................................................................................
616
616
616
xxv
619
619
622
622
623
623
625
Definition .....................................................................
Essential Elements of Donation...................................
Donative Intent or Animus Donandi ............................
Donation as Contract................................................
Donation as Mode of Acquisition of Ownership .....
625
625
627
630
632
634
634
635
647
654
[137.1]
[137.2]
[137.3]
[137.4]
[137.5]
654
655
655
659
659
Chapter 2
PERSONS WHO MAY GIVE OR RECEIVE
A DONATION
138. Capacity to Make Donations ......................................................
661
661
662
664
xxvi
665
665
666
668
672
[140.1]
[140.2]
[140.3]
[140.4]
In General ....................................................................
Applicability of Articles 748 and 749, NCC ...............
Form of Donations of Personal Property .....................
Form of Donations of Real Property ...........................
672
673
673
675
Chapter 3
EFFECT OF DONATIONS AND
LIMITATIONS THEREON
141. Extent of Donation .....................................................................
[141.1]
[141.2]
[142.3]
[142.4]
684
In General ....................................................................
Future Property Cannot Be Donated ...........................
Donor Must Reserve For Himself and Relatives .........
Donation Must Not Be Inofficious ..............................
684
684
687
688
690
[143.1]
[143.2]
[143.3]
[143.4]
[143.5]
[143.6]
690
691
691
692
692
692
Chapter 4
REVOCATION AND REDUCTION
OF DONATIONS
144. Reduction or Revocation of Donations ......................................
[144.1]
[144.2]
[144.3]
[144.4]
[144.5]
In General ....................................................................
Subsequent Appearance of Children ...........................
Failure to Comply With Charges .................................
Revocation By Reason of Ingratitude..........................
Revocation By Reason Inofficiousness .......................
xxvii
695
695
696
699
706
707