Republic of the Philippines That for the purpose of constructing a public
SUPREME COURT improvement, namely, the extension of Rizal
Manila
EN BANC
G.R. No. L-14355 October 31, 1919
THE CITY OF MANILA, plaintiff-appellant,
vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-
appellees.
City Fiscal Diaz for appellant.
Crossfield and O'Brien, Williams, Ferrier and Sycip,
Delgado and Delgado, Filemon Sotto, and Ramon Salinas
for appellees.
JOHNSON, J.:
The important question presented by this appeal is: In
expropriation proceedings by the city of Manila, may the
courts inquire into, and hear proof upon, the necessity of
the expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila
presented a petition in the Court of First Instance of said
city, praying that certain lands, therein particularly
described, be expropriated for the purpose of constructing
a public improvement. The petitioner, in the second
paragraph of the petition, alleged:
Avenue, Manila, it is necessary for the plaintiff to
acquire ownership in fee simple of certain parcels of
land situated in the district of Binondo of said city
within Block 83 of said district, and within the
jurisdiction of this court.
The defendant, the Comunidad de Chinos de
Manila [Chinese Community of Manila], answering the
petition of the plaintiff, alleged that it was a corporation
organized and existing under and by virtue of the laws of
the Philippine Islands, having for its purpose the benefit
and general welfare of the Chinese Community of the City
of Manila; that it was the owner of parcels one and two of
the land described in paragraph 2 of the complaint; that
it denied that it was either necessary or expedient that the
said parcels be expropriated for street purposes; that
existing street and roads furnished ample means of
communication for the public in the district covered by such
proposed expropriation; that if the construction of the street
or road should be considered a public necessity, other
routes were available, which would fully satisfy the
plaintiff's purposes, at much less expense and without
disturbing the resting places of the dead; that it had a
Torrens title for the lands in question; that the lands in
question had been used by the defendant for cemetery
purposes; that a great number of Chinese were buried in
said cemetery; that if said expropriation be carried into
effect, it would disturb the resting places of the dead, would
require the expenditure of a large sum of money in the
transfer or removal of the bodies to some other place or
site and in the purchase of such new sites, would involve
the destruction of existing monuments and the erection of
new monuments in their stead, and would create
irreparable loss and injury to the defendant and to all those
persons owning and interested in the graves and
monuments which would have to be destroyed; that the
plaintiff was without right or authority to expropriate said
cemetery or any part or portion thereof for street purposes;
and that the expropriation, in fact, was not necessary as a
public improvement.
The defendant Ildefonso Tambunting, answering the
petition, denied each and every allegation of the complaint,
and alleged that said expropriation was not a public
improvement; that it was not necessary for the plaintiff to
acquire the parcels of land in question; that a portion of the
lands in question was used as a cemetery in which were
the graves of his ancestors; that monuments and
tombstones of great value were found thereon; that the
land had becomequasi-public property of a benevolent
association, dedicated and used for the burial of the dead
and that many dead were buried there; that if the plaintiff
deemed it necessary to extend Rizal Avenue, he had
offered and still offers to grant a right of way for the said
extension over other land, without cost to the plaintiff, in
order that the sepulchers, chapels and graves of his
ancestors may not be disturbed; that the land so
offered, free of charge, would answer every public
necessity on the part of the plaintiff.
The defendant Feliza Concepcion de Delgado, with her
husband, Jose Maria Delgado, and each of the other
defendants, answering separately, presented substantially
the same defense as that presented by the Comunidad de
Chinos de Manila and Ildefonso Tambunting above
referred to.
The foregoing parts of the defense presented by the
defendants have been inserted in order to show the
general character of the defenses presented by each of the
defendants. The plaintiff alleged that the expropriation was
necessary. The defendants each alleged (a) that no
necessity existed for said expropriation and (b) that the
land in question was a cemetery, which had been used as
such for many years, and was covered with sepulchres and
monuments, and that the same should not be converted
into a street for public purposes.
Upon the issue thus presented by the petition and the
various answers, the Honorable Simplicio del Rosario,
judge, in a very elucidated opinion, with very clear and
explicit reasons, supported by ambulance of authorities,
decided that there was no necessity for the expropriation of
the particular strip of land in question, and absolved each
and all of the defendants from all liability under the
complaint, without any finding as to costs.
From that judgment the plaintiff appealed and presented
the above question as its principal ground of appeal.
The theory of the plaintiff is, that once it has established
the fact, under the law, that it has authority to expropriate
land, it may expropriate any land it may desire; that the
only function of the court in such proceedings is to
ascertain the value of the land in question; that neither the
court nor the owners of the land can inquire into the
advisible purpose of purpose of the expropriation or ask
any questions concerning the necessities therefor; that
the courts are mere appraisers of the land involved in
expropriation proceedings, and, when the value of the land
is fixed by the method adopted by the law, to render a
judgment in favor of the defendant for its value.
That the city of Manila has authority to
expropriate private lands for public purposes, is not denied.
Section 2429 of Act No. 2711 (Charter of the city of Manila)
provides that "the city (Manila) . . . may
condemn private property forpublic use."
The Charter of the city of Manila contains no procedure by
which the said authority may be carried into effect. We are
driven, therefore, to the procedure marked out by Act No.
190 to ascertain how the said authority may be exercised.
From an examination of Act No. 190, in its section 241, we
find how the right of eminent domain may be exercised.
Said section 241 provides that, "The Government of the
Philippine Islands, or of any province or department
thereof, or of any municipality, and any person, or public or
private corporation having, by law, the right to condemn
private property for public use, shall exercise that right in
the manner hereinafter prescribed."
Section 242 provides that a complaint in expropriation
proceeding shall be presented; that the complaint shall
state with certainty the right of condemnation, with a
description of the property sought to be condemned
together with the interest of each defendant separately.
Section 243 provides that if the court shall find
upon trial that the right to expropriate the land in question
exists, it shall then appoint commissioners.
Sections 244, 245 and 246 provide the method of
procedure and duty of the commissioners. Section 248
provides for an appeal from the judgment of the Court of
First Instance to the Supreme Court. Said section 248
gives the Supreme Court authority to inquire into
the right of expropriation on the part of the plaintiff. If the
Supreme Court on appeal shall determine that no right of
expropriation existed, it shall remand the cause to the
Court of First Instance with a mandate that the defendant
be replaced in the possession of the property and that he
recover whatever damages he may have sustained by
reason of the possession of the plaintiff.
It is contended on the part of the plaintiff that the phrase in
said section, "and if the court shall find the right to
expropriate exists," means simply that, if the court finds
that there is some law authorizing the plaintiff to
expropriate, then the courts have no other function than to
authorize the expropriation and to proceed to ascertain the
value of the land involved; that the necessity for the
expropriation is a legislative and not a judicial question.
Upon the question whether expropriation is a legislative
function exclusively, and that the courts cannot intervene
except for the purpose of determining the value of the land
in question, there is much legal legislature. Much has been
written upon both sides of that question. A careful
examination of the discussions pro and con will disclose
the fact that the decisions depend largely upon particular
constitutional or statutory provisions. It cannot be denied, if
the legislature under proper authority should grant the
expropriation of a certain or particular parcel of land for
some specified public purpose, that the courts would be
without jurisdiction to inquire into the purpose of that
legislation.
If, upon the other hand, however, the Legislature should
grant general authority to a municipal corporation to
expropriate private land for public purposes, we think the
courts have ample authority in this jurisdiction, under the
provisions above quoted, to make inquiry and to hear
proof, upon an issue properly presented, concerning
whether or not the lands were private and whether the
purpose was, in fact, public. In other words, have no the
courts in this jurisdiction the right, inasmuch as the
questions relating to expropriation must be referred to them
(sec. 241, Act No. 190) for final decision, to ask whether or
not the law has been complied with? Suppose in a
particular case, it should be denied that the property is
not private property but public, may not the courts hear
proof upon that question? Or, suppose the defense is, that
the purpose of the expropriation is not public but private, or
that there exists no public purpose at all, may not the
courts make inquiry and hear proof upon that question?
The city of Manila is given authority to
expropriate private lands for public purposes. Can it be
possible that said authority confers the right to determine
for itself that the land is private and that the purpose is
public, and that the people of the city of Manila who pay the
taxes for its support, especially those who are directly
affected, may not question one or the other, or both, of
these questions? Can it be successfully contended that the
phrase used in Act No. 190, "and if the court upon trial shall
find that such right exists," means simply that the court
shall examine thestatutes simply for the purpose of
ascertaining whether a law exists authorizing the petitioner
to exercise the right of eminent domain? Or, when the case
arrives in the Supreme Court, can it be possible that the
phrase, "if the Supreme Court shall determine that no
right of expropriation exists," that that simply means that
the Supreme Court shall also examine the enactments of
the legislature for the purpose of determining whether or
not a law exists permitting the plaintiff to expropriate?
We are of the opinion that the power of the court is not
limited to that question. The right of expropriation is not an
inherent power in a municipal corporation, and before it can
exercise the right some law must exist conferring the power
upon it. When the courts come to determine the question,
they must only find (a) that a law or authority exists for the
exercise of the right of eminent domain, but (b) also that
the right or authority is being exercised in accordance with
the law. In the present case there are two conditions
imposed upon the authority conceded to the City of
Manila: First, the land must be private; and, second, the
purpose must be public. If the court, upon trial, finds that
neither of these conditions exists or that either one of them
fails, certainly it cannot be contended that the right is being
exercised in accordance with law.
Whether the purpose for the exercise of the right of
eminent domain is public, is a question of fact. Whether the
land is public, is a question of fact; and, in our opinion,
when the legislature conferred upon the courts of the
Philippine Islands the right to ascertain upon trial whether
the right exists for the exercise of eminent domain, it
intended that the courts should inquire into, and hear proof
upon, those questions. Is it possible that the owner of
valuable land in this jurisdiction is compelled to stand mute
while his land is being expropriated for a use not public,
with the right simply to beg the city of Manila to pay him the
value of his land? Does the law in this jurisdiction permit
municipalities to expropriate lands, without question, simply
for the purpose of satisfying the aesthetic sense of those
who happen for the time being to be in authority?
Expropriation of lands usually calls for public expense. The
taxpayers are called upon to pay the costs. Cannot the
owners of land question the public use or the public
necessity?
As was said above, there is a wide divergence of opinion
upon the authority of the court to question the necessity or
advisability of the exercise of the right of eminent domain.
The divergence is usually found to depend upon particular
statutory or constitutional provisions.
It has been contended — and many cases are cited in
support of that contention, and section 158 of volume 10 of
Ruling Case Law is cited as conclusive — that the
necessity for taking property under the right of eminent
domain is not a judicial question. But those who cited said
section evidently overlooked the section immediately
following (sec. 159), which adds: "But it is obvious that if
the property is taken in the ostensible behalf of a public
improvementwhich it can never by any possibility serve, it
is being taken for a use not public, and the owner's
constitutional rights call for protection by the courts. While
many courts have used sweeping expression in the
decisions in which they have disclaimed the power of
supervising the power of supervising the selection of the
sites of public improvements, it may be safely said that the
courts of the various states would feel bound to interfere to
prevent an abuse of the discretion delegated by the
legislature, by an attempted appropriation of land in utter
disregard of the possible necessity of its use, or when the
alleged purpose was a cloak to some sinister scheme."
(Norwich City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon
Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R.
Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368; State vs.
Stewart, 74 Wis., 620.)
Said section 158 (10 R. C. L., 183) which is cited as
conclusive authority in support of the contention of the
appellant, says:
The legislature, in providing for the exercise of the
power of eminent domain, may directly determine the
necessity for appropriating private property for a
particular improvement for public use, and it may
select the exact location of the improvement. In such
a case, it is well settled that the utility of the
proposed improvement, the extent of the public
necessity for its construction, the expediency of
constructing it, the suitableness of the location
selected and the consequent necessity of taking the
land selected for its site, are all questions exclusively
for the legislature to determine, and the courts have
no power to interfere, or to substitute their own views
for those of the representatives of the people.
Practically every case cited in support of the above
doctrine has been examined, and we are justified in making
the statement that in each case the legislature directly
determined the necessity for the exercise of the right of
eminent domain in the particular case. It is not denied that
if the necessity for the exercise of the right of eminent
domain is presented to the legislative department of the
government and that department decides that there exists
a necessity for the exercise of the right in a particular case,
that then and in that case, the courts will not go behind the
action of the legislature and make inquiry concerning the
necessity. But, in the case of Wheeling, etc. R. R. Co. vs.
Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep.,
622, 628]), which was cited in support of the doctrine laid
down in section 158 above quoted, the court said:
But when the statute does not designate the property
to be taken nor how may be taken, then the
necessity of taking particular property is a question
for the courts. Where the application to condemn or
appropriate is made directly to the court, the
question (of necessity) should be raised and
decided in limene.
The legislative department of the government was rarely
undertakes to designate the precise property which should
be taken for public use. It has generally, like in the present
case, merely conferred general authority to take land for
public use when a necessity exists therefor. We believe
that it can be confidently asserted that, under such statute,
the allegation of the necessity for the appropriation is an
issuable allegation which it is competent for the courts to
decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St.
Rep., 402, 407].)
There is a wide distinction between a legislative declaration
that a municipality is given authority to exercise the right of
eminent domain, and a decision by the municipality that
there exist a necessity for the exercise of that right in a
particular case. The first is a declaration simply that there
exist reasons why the right should be conferred upon
municipal corporation, while the second is the application
of the right to a particular case. Certainly, the legislative
declaration relating to the advisability of granting the power
cannot be converted into a declaration that a necessity
exists for its exercise in a particular case, and especially so
when, perhaps, the land in question was not within the
territorial authority was granted.
Whether it was wise, advisable, or necessary to confer
upon a municipality the power to exercise the right of
eminent domain, is a question with which the courts are not
concerned. But when that right or authority is exercised for
the purpose of depriving citizens of their property, the
courts are authorized, in this jurisdiction, to make inquiry
and to hear proof upon the necessity in the particular case,
and not the general authority.
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.),
page 629, is cited as a further conclusive authority upon
the question that the necessity for the exercise of the right
of eminent domain is a legislative and not a judicial
question. Cyclopedia, at the page stated, says:
In the absence of some constitutional or statutory
provision to the contrary,
the necessity and expediency of exercising the right
of eminent domain are questions essentially political
and not judicial in their character. The determination
of those questions (the necessity and the
expediency) belongs to the sovereign power; the
legislative department is final and conclusive, and
the courts have no power to review it (the necessity
and the expediency) . . . . It (the legislature) may
designate the particular property to be condemned,
and its determination in this respect cannot be
reviewed by the courts.
The volume of Cyclopedia, above referred to, cites many
cases in support of the doctrine quoted. While time has not
permitted an examination of all of said citations, many of
them have been examined, and it can be confidently
asserted that said cases which are cited in support of the
assertion that, "the necessity and expediency of exercising
the right of eminent domain are questions essentially
political and not judicial," show clearly and invariably that in
each case the legislature itself usually, by a special law,
designated the particular case in which the right of eminent
domain might be exercised by the particular municipal
corporation or entity within the state. (Eastern R.
Co. vs.Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep.,
13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6
Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S.
598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390;
U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53;
U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction
Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron,
246 U.S., 351 [erroneously cited as 242 U.S.].)
In the case of Traction Co. vs. Mining Co. (196 U.S., 239),
the Supreme Court of the United States said: "It is
erroneous to suppose that the legislature is beyond the
control of the courts in exercising the power of eminent
domain, either as to the nature of the use or the necessity
to the use of any particular property. For if the use be not
public or no necessity for the taking exists, the legislature
cannot authorize the taking of private property against the
will of the owner, notwithstanding compensation may be
required."
In the case of School Board of Carolina vs. Saldaña (14
Porto Rico, 339, 356), we find the Supreme Court of Porto
Rico, speaking through Justice MacLeary, quoting
approvingly the following, upon the question which we are
discussing: "It is well settled that although the legislature
must necessarily determine in the first instance whether the
use for which they (municipalities, etc.) attempt to exercise
the power is a public one or not, their (municipalities, etc.)
determination is not final, but is subject to correction by the
courts, who may undoubtedly declare the statute
unconstitutional, if it shall clearly appear that the use for
which it is proposed to authorize the taking of private
property is in reality not public but private." Many cases are
cited in support of that doctrine.
Later, in the same decision, we find the Supreme Court of
Porto Rico says: "At any rate, the rule is quite well settled
that in the cases under consideration the determination of
the necessity of taking a particular piece or a certain
amount of land rests ultimately with the courts." (Spring
Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
In the case of Board of Water Com'rs., etc. vs. Johnson (86
Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court
of Connecticut approvingly quoted the following doctrine
from Lewis on Eminent Domain (3d ed.), section 599: "In all
such cases the necessity of public utility of the proposed
work or improvement is a judicial question. In all such
cases, where the authority is to take property necessary for
the purpose, the necessity of taking particular property for
a particular purpose is a judicial one, upon which the owner
is entitled to be heard." (Riley vs.Charleston, etc. Co., 71 S.
C., 457, 489 [110 Am. St. Rep., 579];
Henderson vs. Lexington 132 Ky., 390, 403.)
The taking of private property for any use which is not
required by the necessities or convenience of the
inhabitants of the state, is an unreasonable exercise of the
right of eminent domain, and beyond the power of the
legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628,
633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545;
Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky., 692, 697.)
In the case of New Central Coal Co. vs. George's etc.
Co. (37 Md., 537, 564), the Supreme Court of the State of
Maryland, discussing the question before us, said: "To
justify the exercise of this extreme power (eminent domain)
where the legislature has left it to depend upon the
necessity that may be found to exist, in order to accomplish
the purpose of the incorporation, as in this case, the party
claiming the right to the exercise of the power should be
required to show at least a reasonable degree of necessity
for its exercise. Any rule less strict than this, with the large
and almost indiscriminate delegation of the right to
corporations, would likely lead to oppression and the
sacrifice of private right to corporate power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426,
433), the court said: "Its right to condemn property is not a
general power of condemnation, but is limited to cases
where a necessity for resort to private property is shown to
exist. Such necessity must appear upon the face of the
petition to condemn. If the necessary is denied the burden
is upon the company (municipality) to establish it."
(Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856;
Kiney vs.Citizens' Water & Light Co., 173 Ind., 252, 257 ;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137
Am. St. Rep. 338].)
It is true that naby decisions may be found asserting that
what is a public use is a legislative question, and many
other decisions declaring with equal emphasis that it is a
judicial question. But, as long as there is a constitutional or
statutory provision denying the right to take land for any
use other than a public use, it occurs to us that the
question whether any particular use is a public one or not is
ultimately, at least, a judicial question. The legislative may,
it is true, in effect declare certain uses to be public, and,
under the operation of the well-known rule that a statute
will not be declared to be unconstitutional except in a case
free, or comparatively free, from doubt, the courts will
certainly sustain the action of the legislature unless it
appears that the particular use is clearly not of a public
nature. The decisions must be understood with this
limitation; for, certainly, no court of last resort will be willing
to declare that any and every purpose which the legislative
might happen to designate as a public use shall be
conclusively held to be so, irrespective of the purpose in
question and of its manifestly private character Blackstone
in his Commentaries on the English Law remarks that, so
great is the regard of the law for private property that it will
not authorize the least violation of it, even for the public
good, unless there exists a very great necessity therefor.
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the
Supreme Court of the United States said: "That
government can scarcely be deemed free where the rights
of property are left solely defendant on the legislative body,
without restraint. The fundamental maxims of free
government seem to require that the rights of personal
liberty and private property should be held sacred. At least
no court of justice in this country would be warranted in
assuming that the power to violate and disregard them — a
power so repugnant to the common principles of justice
and civil liberty — lurked in any general grant of legislature
authority, or ought to be implied from any general
expression of the people. The people ought no to be
presumed to part with rights so vital to their security and
well-being without very strong and direct expression of
such intention." (Lewis on Eminent Domain, sec. 603;
Lecoul vs.Police Jury 20 La. Ann., 308;
Jefferson vs. Jazem, 7 La. Ann., 182.)
Blackstone, in his Commentaries on the English Law said
that the right to own and possess land — a place to live
separate and apart from others — to retain it as a home for
the family in a way not to be molested by others — is one
of the most sacred rights that men are heirs to. That right
has been written into the organic law of every civilized
nation. The Acts of Congress of July 1, 1902, and of
August 29, 1916, which provide that "no law shall be
enacted in the Philippine Islands which shall deprive any
person of his property without due process of law," are but
a restatement of the time-honored protection of the
absolute right of the individual to his property. Neither did
said Acts of Congress add anything to the law already
existing in the Philippine Islands. The Spaniard fully
recognized the principle and adequately protected the
inhabitants of the Philippine Islands against the
encroachment upon the private property of the individual.
Article 349 of the Civil Code provides that: "No one may be
deprived of his property unless it be by competent
authority, for some purpose of proven public utility, and
after payment of the proper compensation Unless this
requisite (proven public utility and payment) has been
complied with, it shall be theduty of the courts to protect the
owner of such property in its possession or to restore its
possession to him , as the case may be."
The exercise of the right of eminent domain, whether
directly by the State, or by its authorized agents, is
necessarily in derogation of private rights, and the rule in
that case is that the authority must be strictly construed. No
species of property is held by individuals with greater
tenacity, and none is guarded by the constitution and laws
more sedulously, than the right to the freehold of
inhabitants. When the legislature interferes with that right,
and, for greater public purposes, appropriates the land of
an individual without his consent, the plain meaning of the
law should not be enlarged by doubtly interpretation.
(Bensely vs. Mountainlake Water Co., 13 Cal., 306 and
cases cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner
without his consent is one of the most delicate exercise of
government authority. It is to be watched with jealous
scrutiny. Important as the power may be to the
government, the inviolable sanctity which all free
constitutions attach to the right of property of the citizens,
constrains the strict observance of the substantial
provisions of the law which are prescribed as modes of the
exercise of the power, and to protect it from abuse. Not
only must the authority of municipal corporations to take
property be expressly conferred and the use for which it is
taken specified, but the power, with all constitutional
limitation and directions for its exercise, must be strictly
pursued. (Dillon on Municipal Corporations [5th Ed.], sec.
1040, and cases cited; Tenorio vs. Manila Railroad Co., 22
Phil., 411.)
It can scarcely be contended that a municipality would be
permitted to take property for some public use unless some
public necessity existed therefor. The right to take private
property for public use originates in the necessity, and the
taking must be limited by such necessity. The appellant
contends that inasmuch as the legislature has given it
general authority to take private property for public use,
that the legislature has, therefore, settled the question of
the necessity in every case and that the courts are closed
to the owners of the property upon that question. Can it be
imagined, when the legislature adopted section 2429 of Act
No. 2711, that it thereby declared that it was necessary to
appropriate the property of Juan de la Cruz, whose
property, perhaps, was not within the city limits at the time
the law was adopted? The legislature, then, not having
declared the necessity, can it be contemplated that it
intended that a municipality should be the sole judge of the
necessity in every case, and that the courts, in the face of
the provision that "if upon trial they shall find that a right
exists," cannot in that trial inquire into and hear proof upon
the necessity for the appropriation in a particular case?
The Charter of the city of Manila authorizes the taking
of private property for public use. Suppose the owner of the
property denies and successfully proves that the taking of
his property serves no public use: Would the courts not be
justified in inquiring into that question and in finally denying
the petition if no public purpose was proved? Can it be
denied that the courts have a right to inquire into that
question? If the courts can ask questions and decide, upon
an issue properly presented, whether the use is public or
not, is not that tantamount to permitting the courts to
inquire into the necessity of the appropriation? If there is no
public use, then there is no necessity, and if there is no
necessity, it is difficult to understand how a public use can
necessarily exist. If the courts can inquire into the question
whether a public use exists or not, then it seems that it
must follow that they can examine into the question of the
necessity.
The very foundation of the right to exercise eminent
domain is a genuine necessity, and that necessity must be
of a public character. The ascertainment of the necessity
must precede or accompany, and not follow, the taking of
the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind.,
511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R.
Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)
The general power to exercise the right of eminent domain
must not be confused with the right to exercise it in
aparticular case. The power of the legislature to confer,
upon municipal corporations and other entities within the
State, general authority to exercise the right of eminent
domain cannot be questioned by the courts, but that
general authority of municipalities or entities must not be
confused with the right to exercise it in particular instances.
The moment the municipal corporation or entity attempts to
exercise the authority conferred, it must comply with the
conditions accompanying the authority. The
necessity for conferring the authority upon a municipal
corporation to exercise the right of eminent domain is
admittedly within the power of the legislature. But whether
or not the municipal corporation or entity is exercising the
right in a particular case under the conditions imposed by
the general authority, is a question which the courts have
the right to inquire into.
The conflict in the authorities upon the question whether
the necessity for the exercise of the right of eminent
domain is purely legislative and not
judicial, arises generally in the wisdom and propriety of the
legislature in authorizing the exercise of the right of
eminent domain instead of in the question of the right to
exercise it in a particular case. (Creston Waterworks
Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the power of
restricting the exercise of eminent domain to the actual
reasonable necessities of the case and for the purposes
designated by the law. (Fairchild vs. City of St. Paul. 48
Minn., 540.)
And, moreover, the record does not show conclusively that
the plaintiff has definitely decided that their exists a
necessity for the appropriation of the particular land
described in the complaint. Exhibits 4, 5, 7, and E clearly
indicate that the municipal board believed at one time that
other land might be used for the proposed improvement,
thereby avoiding the necessity of distributing the quiet
resting place of the dead.
Aside from insisting that there exists no necessity for the
alleged improvements, the defendants further contend that
the street in question should not be opened through the
cemetery. One of the defendants alleges that said
cemetery is public property. If that allegations is true, then,
of course, the city of Manila cannot appropriate it for public
use. The city of Manila can only
expropriate private property.
It is a well known fact that cemeteries may be public or
private. The former is a cemetery used by the general
community, or neighborhood, or church, while the latter is
used only by a family, or a small portion of the community
or neighborhood. (11 C. J., 50.)
Where a cemetery is open to public, it is a public use and
no part of the ground can be taken for other public uses
under a general authority. And this immunity extends to the
unimproved and unoccupied parts which are held in good
faith for future use. (Lewis on Eminent Domain, sec. 434,
and cases cited.)
The cemetery in question seems to have been established
under governmental authority. The Spanish Governor-
General, in an order creating the same, used the following
language:
The cemetery and general hospital for indigent
Chinese having been founded and maintained by the
spontaneous and fraternal contribution of their
protector, merchants and industrials, benefactors of
mankind, in consideration of their services to the
Government of the Islands its internal administration,
government and regime must necessarily be
adjusted to the taste and traditional practices of
those born and educated in China in order that the
sentiments which animated the founders may be
perpetually effectuated.
It is alleged, and not denied, that the cemetery in question
may be used by the general community of Chinese, which
fact, in the general acceptation of the definition of a public
cemetery, would make the cemetery in question public
property. If that is true, then, of course, the petition of the
plaintiff must be denied, for the reason that the city of
Manila has no authority or right under the law to
expropriate public property.
But, whether or not the cemetery is public or private
property, its appropriation for the uses of a public street,
especially during the lifetime of those specially interested in
its maintenance as a cemetery, should be a question of
great concern, and its appropriation should not be made for
such purposes until it is fully established that the greatest
necessity exists therefor.
While we do not contend that the dead must not give place
to the living, and while it is a matter of public knowledge
that in the process of time sepulchres may become the
seat of cities and cemeteries traversed by streets and daily
trod by the feet of millions of men, yet, nevertheless such
sacrifices and such uses of the places of the dead should
not be made unless and until it is fully established that
there exists an eminent necessity therefor. While
cemeteries and sepulchres and the places of the burial of
the dead are still within
the memory and command of the active care of the living;
while they are still devoted to pious uses and sacred
regard, it is difficult to believe that even the legislature
would adopt a law expressly providing that such places,
under such circumstances, should be violated.
In such an appropriation, what, we may ask, would be the
measure of damages at law, for the wounded sensibilities
of the living, in having the graves of kindred and loved ones
blotted out and desecrated by a common highway or street
for public travel? The impossibility of measuring the
damage and inadequacy of a remedy at law is too apparent
to admit of argument. To disturb the mortal remains of
those endeared to us in life sometimes becomes the sad
duty of the living; but, except in cases of necessity, or for
laudable purposes, the sanctity of the grave, the last
resting place of our friends, should be maintained, and the
preventative aid of the courts should be invoked for that
object. (Railroad Company vs. Cemetery Co., 116 Tenn.,
400; Evergreen Cemetery Association vs. The City of New
Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa,
744; Beatty vs. Kurtz, 2 Peters, 566.)
In the present case, even granting that a necessity exists
for the opening of the street in question, the record
contains no proof of the necessity of opening the same
through the cemetery. The record shows that adjoining and
adjacent lands have been offered to the city free of charge,
which will answer every purpose of the plaintiff.
For all of the foregoing, we are fully persuaded that the
judgment of the lower court should be and is hereby
affirmed, with costs against the appellant. So ordered.
Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.
Separate Opinions
MALCOLM, J., concurring:
The Government of the Philippine Islands is authorized by
the Philippine Bill to acquire real estate for public use by
the exercise of the right of eminent domain. (Act of
Congress of July 1, 1902, sec. 63.) A portion of this power
has been delegated by the Philippine Legislature to the city
of Manila, which is permitted to "condemn private property
for public use." (Administrative Code of 1917, sec. 2429.)
The Code of Civil Procedure, in prescribing how the right of
eminent domain may be exercised, also limits the
condemnation to "private property for public use." (Sec.
241.) As under the facts actually presented, there can be
no question that a public street constitutes a public use, the
only remaining question is whether or not the Chinese
Cemetery and the other property here sought to be taken
by the exercise of the right of eminent domain is "private
property."
As narrowing our inquiry still further, let it be noted that
cemeteries are of two classes, public and private. A public
cemetery is one used by the general community, or
neighborhood, or church; while a private cemetery is one
used only by a family, or small portion of a community.
(Lay vs. State, 12 Ind. App., 362; Cemetery
Association vs.Meninger [1875], 14 Kan., 312.) Our specific
question, then, is, whether the Chinese Cemetery in the
city of Manila is a public, or a private graveyard. If it be
found to be the former, it is not subject to condemnation by
the city of Manila; if it be found to be the latter, it is subject
to condemnation.
The Chinese Cemetery of Manila was established during
the Spanish administration in the Philippines by public
spirited Chinese. The order of the Governor-General giving
governmental recognition to the cemetery reads as follows:
"The cemetery and general hospital for indigent Chinese
having been founded and maintained by the spontaneous
and fraternal contribution of their protectors, merchants and
industrials, benefactors of mankind, in consideration of
their services to the Government of the Islands, its internal
administration, government and regime, must necessarily
be adjusted to the taste and traditional practices of those
born and educated in China in order that the sentiments
which animated the founders may be perpetually
effectuated." Sometimes after the inauguration of the new
regime in the Philippines, a corporation was organized to
control the cemetery, and a Torrens title for the lands in
question was obtained.
From the time of its creation until the present the cemetery
has been used by the Chinese community for the burial of
their dead. It is said that not less than four hundred graves,
many of them with handsome monuments, would be
destroyed by the proposed street. This desecration is
attempted as to the las t resting places of the dead of a
people who, because of their peculiar and ingrained
ancestral workship, retain more than the usual reverence
for the departed. These facts lead us straight to the
conclusion that the Chinese Cemetery is not used by a
family or a small portion of a community but by a particular
race long existing in the country and of considerable
numbers. The case, then, is one of where the city of
Manila, under a general authority permitting it to condemn
private property for public use, is attempting to convert a
property already dedicated to a public use to an entirely
different public use; and this, not directly pursuant to
legislative authority, but primarily through the sole advice of
the consulting architect.
Two well considered decisions coming from the American
state courts on almost identical facts are worthy of our
consideration. The first is the case of The Evergreen
Cemetery Association vs. The City of New Haven ([1875],
43 Conn., 234), of cited by other courts. Here the City of
New Haven, Connecticut, under the general power
conferred upon it to lay out, construct, and maintain all
necessary highways within its limits, proceeded to widen
and straighten one of its streets and in so doing took a
small piece of land belonging to the Evergreen Cemetery
Association. This association was incorporated under the
general statute. The city had no special power to take any
part of the cemetery for such purposes. It was found that
the land taken was needed for the purposes of the
cemetery and was not needed for the purpose of widening
and straightening the avenue. The court said that it is
unquestionable that the Legislature has the power to
authorize the taking of land already applied to one public
use and devote it to another. When the power is granted to
municipal or private corporations in express words, no
question can arise. But, it was added, "The same land
cannot properly be used for burial lots and for a public
highway at the same time. . . . Land therefore applied to
one use should not be taken for the other except in cases
on necessity. . . . There is no difficulty in effecting the
desired improvement by taking land on the other side of the
street. . . . The idea of running a public street, regardless of
graves, monuments, and the feelings of the living, through
one of our public cemeteries, would be shocking to the
moral sense of the community, and would not be tolerated
except upon the direst necessity." It was then held that land
already devoted to a public use cannot be taken by the
public for another use which is inconsistent with the first,
without special authority from the Legislature, or authority
granted by necessary and reasonable implication.
The second decision is that of Memphis State Line
Railroad Company vs. Forest Hill Cemetery Co. ([1906],
116 Tenn., 400.) Here the purpose of the proceedings was
to condemn a right of way for the railway company through
the Forest Hill Cemetery. The railroad proposed to run
through the southeast corner of the cemetery where no
bodies were interred. The cemetery had been in use for
about eight years, and during this period thirteen hundred
bodies had been buried therein. The cemetery was under
the control of a corporation which, by its character, held
itself out as being willing to sell lots to any one who applies
therefor and pays the price demanded, except to members
of the Negro race. 1aw ph!l.net
It was found that there were two other routes along which
the railroad might be located without touching the
cemetery, while the present line might be pursued without
interfering with Forest Hill Cemetery by making a curve
around it. In the court below the railroad was granted the
right of condemnation through the cemetery and damages
were assessed. On appeal, the certiorari applied for was
granted, and the supersedeas awarded. The court, in
effect, found that the land of the Cemetery Company was
devoted to a public purpose, and that under the general
language of the Tennessee statute of eminent domain it
could not be taken for another public purpose. The court
said that in process of time the sepulchres of the dead "are
made the seats of cities, and are traversed by streets, and
daily trodden by the feet of man. This is inevitable in the
course of ages. But while these places are yet within the
memory and under the active care of the living, while they
are still devoted to pious uses, they are sacred, and we
cannot suppose that the legislature intended that they
should be violated, in the absence of special provisions
upon the subject authorizing such invasion, and indicating
a method for the disinterment, removal, and reinterment of
the bodies buried, and directing how the expense thereof
shall be borne." Two members of the court, delivering a
separate concurring opinion, concluded with this significant
and eloquent sentence: "The wheels of commerce must
stop at the grave."
For the foregoing reasons, and for others which are stated
in the principal decision, I am of the opinion that the
judgment of the lower court should be affirmed.
STREET, J., dissenting:
It may be admitted that, upon the evidence before us, the
projected condemnation of the Chinese Cemetery is
unnecessary and perhaps ill-considered. Nevertheless I
concur with Justice Moir in the view that the authorities of
the city of Manila are the proper judges of the propriety of
the condemnation and that this Court should have nothing
to do with the question of the necessity of the taking.
MOIR, J., dissenting:
I dissent from the majority opinion in this case, which has
not yet been written, and because of the importance of the
question involved, present my dissent for the record.
This is an action by the city of Manila for the expropriation
of land for an extension of Rizal Avenue north. The petition
for condemnation was opposed by the "Comunidad de
Chinos de Manila" and Ildefonso Tambunting and various
other who obtained permission of the trial court to intervene
in the case.
All of the defendants allege in their opposition that the
proposed extension of Rizal Avenue cuts through a part of
the Chinese Cemetery, North of Manila, and necessitates
the destruction of many monuments and the removal of
many graves.
The Court of First Instance of Manila, Honorable S. del
Rosario, judge after hearing the parties, decided that there
was no need for constructing the street as and where
proposed by the city, and dismissed the petition.
The plaintiff appealed and sets up the following errors:
1. The court erred in deciding that the determination
of the necessity and convenience of the
expropriation of the lands of the defendants lies with
the court and not with the Municipal Board of the city
of Manila.
 2. The court erred in permitting the presentation of
proofs over the objection and exception of the
plaintiff tending to demonstrate the lack of necessity
of the projected street and the need of the lands in
question.
3. The court erred in declaring that the plaintiff had
no right to expropriate the lands in question.
4. The court erred in dismissing the complaint.
The right of the plaintiff to expropriate property for public
use cannot be denied. The "right of eminent domain is
inherent in all sovereignties and therefore would exist
without any constitutional recognition . . . . The right of
eminent domain antedates constitutions . . . . The right can
only be denied or restricted by fundamental law and is right
inherent in society." (15 Cyc., pp. 557-8.) .
This general right was recognized in the Philippine Code of
Civil Procedure effective October 1st, 1901, which
prescribed the manner of exercising the right. (Sections
241 et seq.)
It was further recognized in the Organic Act of July 1st,
1902, which provides in section 74 "that the Government of
the Philippine Islands may grant franchises . . . including
the authority to exercise the right of eminent domain for the
construction and operation of works of public utility and
service, and may authorize said works to be constructed
and maintained over and across the public property of the
United States including . . . reservations." This provisions is
repeated in the Jones Law of August, 1916.
The legislature of the Islands conferred the right on the city
of Manila. (Section 2429, Administrative Code of 1917;
section 2402, Administrative Code of 1916.)
Clearly having the right of expropriation, the city of Manila
selected the line of its street and asked the court by proper
order to place the plaintiff in possession of the land
described in the complaint, and to appoint Commissioners
to inspect the property, appraise the value, and assess the
damages. Instead of doing so, the court entered upon the
question of the right of the city to take the property and the
necessity for the taking.
The court says:
The controversy relates to whether or not the
Chinese Cemetery, where a great majority of this
race is buried and other persons belonging to other
nationalities have been formerly inhumed,
is private or public; whether or not said cemetery, in
case it is public, would be susceptible to
expropriation for the purpose of public improvements
proposed by the city of Manila; whether or not the
latter is justified of the necessity and expediency of
similar expropriation before its right to the same
would be upheld by the courts of justice; and
whether or not the appreciation of
said necessity pertains to the legislative or the
judicial department before which the expropriation
proceedings have been brought.
Relative to the first point, it is not necessary for the
court to pass upon its consideration, in view of the
conclusion it has arrived at the appreciation of the
other points connected with each other.
From the testimony of two reputable engineers
produced by some of the defendants, it appears that
the land chosen by the plaintiff for the extension of
Rizal Avenue to the municipality of Caloocan is not
the best or the less expensive, although upon it there
may be constructed a straight road, without curves or
winding; but that in order to construct said road upon
said land, the city of Manila would have to remove
and transfer to other places about four hundred
graves and monuments, make some grubbings,
undergo some leveling and build some bridges —
the works thereon, together with the construction of
the road and the value of the lands expropriated,
would mean an expenditure which will not be less
than P180,000.
Beside that considerable amount, the road would
have a declivity of 3 per cent which, in order to cover
a distance of one kilometer, would require an energy
equivalent to that which would be expanded in
covering a distance of two and one-half kilometers
upon a level road.
On the other hand, if the road would be constructed
with the deviation proposed by Ildefonso
Tambunting, one of the defendants, who even
offered to donate gratuitously to the city of Manila
part of the land upon which said road will have to be
constructed, the plaintiff entity would be able to save
more than hundreds of thousand of pesos, which can
be invested in other improvements of greater
pressure and necessity for the benefit of the
taxpayers; and it will not have to employ more time
and incur greater expenditures in the removal and
transfer of the remains buried in the land of the
Chinese Community and of Sr. Tambunting,
although with the insignificant disadvantage that the
road would be little longer by a still more insignificant
extension of 426 meters and 55 centimeters less
than one-half kilometer, according to the plan
included in the records; but it would offer a better
panorama to those who would use it, and who would
not have to traverse in their necessary or pleasure-
making trips or walks any cemetery which, on
account of its nature, always deserves the respect of
the travellers. It should be observed that the
proposed straight road over the cemetery, which the
city of Manila is proposing to expropriate, does not
lead to any commercial, industrial, or agricultural
center, and if with said road it is endeavored to
benefit some community or created interest, the
same object may be obtained by the proposed
deviation of the road by the defendants. The road
traced by the plaintiffs has the disadvantage that the
lands on both sides thereof would not serve for
residential purposes, for the reason that no one has
the pleasure to construct buildings upon cemeteries,
unless it be in very overcrowded cities, so exhausted
of land that every inch thereof represents a dwelling
house.
And it is against the ruling, that it lies with the court to
determine the necessity of the proposed street and not with
the municipal board, that the appellant directs its first
assignment of error.
It is a right of the city government to determine whether or
not it will construct streets and where, and the court's sole
duty was to see that the value of the property was paid the
owners after proper legal proceedings ascertaining the
value.
The law gives the city the right to take private property for
public use. It is assumed it is unnecessary to argue that a
public road is a public use.
But it is argued that plaintiff must show that it
is necessary to take this land for a public improvement.
The law does not so read, and it is believed that the great
weight of authority, including the United States Supreme
Court, is against the contention.
The question of necessity is distinct from the
question of public use, and former question is
exclusively for the legislature, except that if the
constitution or statute authorizes the taking of
property only in cases of necessity, then the
necessity becomes a judicial question. (McQuillen
Municipal Corporations, Vol. IV, pp. 3090-3091.)
In the absence of some constitutional or statutory
provision to the contrary, the necessity and
expediency of exercising the right of eminent domain
are questions essentially political and not judicial in
their character. The determination of those questions
belongs to the sovereign power; the legislative
determination is final and conclusive, and the courts
have no power to review it. It rests with the
legislature not only to determine when the power of
eminent domain may be exercised, but also the
character, quality, method, and extent of such
exercise. And this power is unqualified, other than by
the necessity of providing that compensation shall be
made. Nevertheless, under the express provisions of
the constitution of some states the question of
necessity is made a judicial one, to be determined by
the courts and not by the legislature.
While the legislature may itself exercise the right of
determining the necessity for the exercise of the
power of eminent domain, it may, unless prohibited
by the constitution, delegate this power to public
officers or to private corporations established to carry
on enterprises in which the public are interested, and
their determination that a necessity for the exercise
of the power exists is conclusive. There is no
restraint upon the power except that requiring
compensation to be made. And when the power has
been so delegated it is a subject of legislative
discretion to determine what prudential regulations
shall be established to secure a discreet and
judicious exercise of the authority. It has been held
that in the absence of any statutory provision
submitting the matter to a court or jury the
decision of the question of necessity lies with the
body of individuals to whom the state has delegated
the authority to take, and the legislature may be
express provision confer this power on a corporation
to whom the power of eminent domain is
delegated unless prohibited by the constitution. It is
of course competent for the legislature to declare
that the question shall be a judicial one, in which
case the court and not the corporation determines
the question of necessity. (15 Cyc., pp. 629-632.)
To the same effect is Lewis on Eminen Domain (3d Edition,
section 597).
I quote from the notes to Vol. 5, Encyclopedia of United
States Supreme Court Reports, p. 762, as follows:
Neither can it be said that there is any fundamental
right secured by the constitution of the United States
to have the questions of compensation and necessity
 both passed upon by one and the same jury. In
many states the question of necessity is never
submitted to the jury which passes upon the question
of compensation. It is either settled affirmatively by
the legislature, or left to the judgment of the
corporation invested with the right to take property by
condemnation. The question of necessity is not one
of a judicial character, but rather one for
determination by the lawmaking branch of the
government. (Boom Co. vs.Patterson, 98 U.S., 403,
406 [25 L. ed., 206]; United States vs. Jones, 109
U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street
Union Depot Co., 169 U.S., 557, 568 [42 L. ed.,
853].)
Speaking generally, it is for the state primarily and
exclusively, to declare for what local public purposes
private property, within its limits may be taken upon
compensation to the owner, as well as to prescribe a
mode in which it may be condemned and taken.
(Madisonville Tract. Co. vs. St. Bernard Min. Co.,
196 U.S., 239, 252 [49 L. ed., 462].)
Courts have no power to control the legislative
authority in the exercise of their right to determine
when it is necessary or expedient to condemn a
specific piece of property for public purposes.
(Adirondack R. Co. vs.New York States, 176 U.S.,
335 [44 L. ed., 492].)
10 R. C. L. (p. 183), states the law as follows:
158. Necessity for taking ordinarily not judicial
question. — The legislature, in providing for the
exercise the power of eminent domain, may directly
determine the necessity for appropriating private
property for a particular improvement or public use,
and it may select the exact location of the
improvement. In such a case, it is well settled that
the utility of the proposed improvement, the extent of
the public necessity for its construction, the
expediency of constructing it, the suitableness of the
location selected and the consequent necessity of
taking the land selected for its site, are all
questions exclusively for the legislature to determine,
and the courts have no power to interfere, or
to substitute their own views for these of the
representatives of the people. Similarly, when the
legislature has delegated the power of eminent
domain to municipal or public service corporation or
other tribunals or bodies, and has given them
discretion as to when the power is to be called into
exercise and to what extent, the court will not inquire
into the necessity or propriety of the taking.
The United States Supreme Court recently said:
The uses to which this land are to be put are
undeniably public uses. When that is the case the
propriety or expediency of the appropriation cannot
be called in question by any other authority.
(Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting
U.S. vs. Jones, 109, U.S., 519.)
And in Sears vs. City of Akron (246 U.S., 242), decided
March 4th, 1918, it said:
Plaintiff contends that the ordinance is void because
the general statute which authorized the
appropriation violates both Article 1, paragraph 10, of
the Federal Constitution, and the Fourteenth
Amendment, in that it authorizes the municipality to
 determine the necessity for the taking of private
property without the owners having an opportunity to
be hear as to such necessity; that in fact no
necessity existed for any taking which would
interfere with the company's project; since the city
might have taken water from the Little Cuyahoga or
the Tuscarawas rivers; and furthermore, that it has
taken ten times as much water as it can legitimately
use. It is well settled that while the question whether
the purpose of a taking is a public one is judicial
(Hairston vs.Danville & W. R. Co., 208 U.S. 598 [52
L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. Cas.,
1008]), the necessityand the proper extent of a
taking is a legislative
question. (Shoemaker vs. United States, 147 U.S.,
282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep.,
361]; United States vs. Gettysburg Electric R. Co.,
160 U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct.
Rep., 427]; United States vs. Chandler-Dunbar
Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063,
1076; 33 Sup. Ct. Rep., 667].)
I think the case should be decided in accordance with
foregoing citations, but one other point has been argued so
extensively that it ought to be considered.
It is contended for the defense that this Chinese Cemetery
is a public cemetery and that it cannot therefore be taken
for public use. In its answer the "Comunidad de Chinos de
Manila" says it is "a corporation organized and existing
under and by virtue of the laws of the Philippine Islands,"
and that it owns the land which plaintiff seeks to acquire.
The facts that it is private corporation owning land would
seem of necessity to make the land it owns private land.
The fact that it belongs to the Chinese community deprives
it of any public character.
But admitting that it is a public cemetery, although limited in
its use to the Chinese Community of the city of Manila, can
it not be taken for public use? Must we let the reverence
we feel for the dead and the sanctity of their final resting-
place obstruct the progress of the living? It will be
instructive to inquire what other jurisdictions have held on
that point.
On the Application of Board of Street Openings of New
York City to acquire St. Johns Cemetery (133 N.Y., 329)
the court of appeal said:
. . . The board instituted this proceeding under the
act to acquire for park purposes the title to land
below One Hundred and Fifty-fifth street known as
St. John's cemetery which belonged to a religious
corporation in the city of New York, commonly called
Trinity Church. It was established as a cemetery as
early as 1801, and used for that purpose until 1839,
during which time about ten thousand human bodies
had been buried therein. In 1839 an ordinance was
passed by the city of New York forbidding interments
south of Eighty-sixth street, and since that time no
interments have been made in the cemetery, but
Trinity Church has preserved and kept it in order and
prevented any disturbance thereof.
It is contended on behalf of Trinity Church that under
the general authority given by statute of 1887, this
land which had been devoted to cemetery purposes
could not be taken for a park. The authority
conferred upon the board by the act is broad and
general. It is authorized to take for park purposes
any land south of One Hundred and Fifty-fifth street.
....
 The fact that lands have previously been devoted to
cemetery purposes does not place them beyond the
reach of the power of eminent domain. That is an
absolute transcendent power belonging to the
sovereign which can be exercised for the public
welfare whenever the sovereign authority shall
determine that a necessity for its exercise exists. By
its existence the homes and the dwellings of the
living, and the resting-places of the dead may be
alike condemned.
It seems always to have been recognized in the laws
of this state, that under the general laws streets and
highways could be laid out through cemeteries, in
the absence of special limitation or prohibition. . . .
In Re Opening of Twenty-second Street (102 Penn. State
Reports, 108) the Supreme Court of the State said:
This was an action for the opening of a street
through a cemetery in the City of Philadelphia. It was
contended for the United American Mechanics and
United Daughters of America Cemetery Association
that by an act of the legislature of the State approved
March 20th, 1849, they were forever exempt from
the taking of any their property for streets, roads or
alleys and this Act was formally accepted by the
Cemetery Company on April 9th, 1849, and there
was, therefore, a contract between the Cemetery
Company and the State of Pennsylvania, which
would be violated by the taking of any part of their
property for street purposes. It was further
contended that there were 11,000 persons buried in
the cemetery.
The court held that property and contracts of all
kinds must yield to the demand of the sovereign and
that under the power of eminent domain all
properties could be taken, and that if there was a
contract between the State of Pennsylvania and the
Cemetery Association, the contract itself could be
taken for public use, and ordered the opening of the
street through the cemetery.
In Vol. 5, Encyclopedia of United States Supreme Court
Reports (p. 759), it is said:
Although it has been held, that where a state has
delegated the power of eminent domain to a person
or corporation and where by its exercise lands have
been subject to a public use, they cannot be applied
to another public use without specific authority
expressed or implied to that effect, yet, the general
rule seems to be that the fact that property is already
devoted to a public use, does not exempt it from
being appropriated under the right of eminent
domain but it may be so taken for a use which is
clearly superior or paramount to the one to which it is
already devoted. (Citing many United States
Supreme Court decisions.)
A few cases have been cited where the courts refused to
allow the opening of streets through cemeteries, but in my
opinion they are not as well considered as the cases and
authorities relied upon herein.
The holding of this court in this case reverses well settled
principles of law of long standing and almost universal
acceptance.
The other assignments of error need not be considered as
they are involved in the foregoing.
The decision should be reversed and the record returned to
the Court of First Instance with instructions to proceed with
the case in accordance with this decision.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18841 January 27, 1969
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, defendant-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant
Solicitor General Antonio A. Torres and Solicitor Camilo D.
Quiason for plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for
defendant-appellant.
REYES, J.B.L., J.:
Direct appeals, upon a joint record on appeal, by both the
plaintiff and the defendant from the dismissal, after hearing,
by the Court of First Instance of Manila, in its Civil Case
No. 35805, of their respective complaint and counterclaims,
but making permanent a preliminary mandatory injunction
theretofore issued against the defendant on the
interconnection of telephone facilities owned and operated
by said parties.
The plaintiff, Republic of the Philippines, is a political
entity exercising governmental powers through its
branches and instrumentalities, one of which is the Bureau
of Telecommunications. That office was created on 1 July
1947, under Executive Order No. 94, with the following
powers and duties, in addition to certain powers and duties
formerly vested in the Director of Posts:1awphil.ñêt
SEC. 79. The Bureau of Telecommunications shall
exercise the following powers and duties:
(a) To operate and maintain existing wire-telegraph
and radio-telegraph offices, stations, and facilities,
and those to be established to restore the pre-war
telecommunication service under the Bureau of
Posts, as well as such additional offices or stations
as may hereafter be established to provide
telecommunication service in places requiring such
service;
(b) To investigate, consolidate, negotiate for, operate
and maintain wire-telephone or radio telephone
communication service throughout the Philippines by
utilizing such existing facilities in cities, towns, and
provinces as may be found feasible and under such
terms and conditions or arrangements with the
present owners or operators thereof as may be
agreed upon to the satisfaction of all concerned;
(c) To prescribe, subject to approval by the
Department Head, equitable rates of charges for
messages handled by the system and/or for time
calls and other services that may be rendered by
said system;
 (d) To establish and maintain coastal stations to
serve ships at sea or aircrafts and, when public
interest so requires, to engage in the international
telecommunication service in agreement with other
countries desiring to establish such service with the
Republic of the Philippines; and
(e) To abide by all existing rules and regulations
prescribed by the International Telecommunication
Convention relative to the accounting, disposition
and exchange of messages handled in the
international service, and those that may hereafter
be promulgated by said convention and adhered to
by the Government of the Republic of the
Philippines. 1
The defendant, Philippine Long Distance Telephone
Company (PLDT for short), is a public service corporation
holding a legislative franchise, Act 3426, as amended by
Commonwealth Act 407, to install, operate and maintain a
telephone system throughout the Philippines and to carry
on the business of electrical transmission of messages
within the Philippines and between the Philippines and the
telephone systems of other countries. 2 The RCA
Communications, Inc., (which is not a party to the present
case but has contractual relations with the parties) is an
American corporation authorized to transact business in
the Philippines and is the grantee, by assignment, of a
legislative franchise to operate a domestic station for the
reception and transmission of long distance wireless
messages (Act 2178) and to operate broadcasting and
radio-telephone and radio-telegraphic communications
services (Act 3180). 3
Sometime in 1933, the defendant, PLDT, and the RCA
Communications, Inc., entered into an agreement whereby
telephone messages, coming from the United States and
received by RCA's domestic station, could automatically be
transferred to the lines of PLDT; and vice-versa, for calls
collected by the PLDT for transmission from the Philippines
to the United States. The contracting parties agreed to
divide the tolls, as follows: 25% to PLDT and 75% to RCA.
The sharing was amended in 1941 to 30% for PLDT and
70% for RCA, and again amended in 1947 to a 50-50
basis. The arrangement was later extended to radio-
telephone messages to and from European and Asiatic
countries. Their contract contained a stipulation that either
party could terminate it on a 24-month notice to the
other.4 On 2 February 1956, PLDT gave notice to RCA to
terminate their contract on 2 February 1958. 5
Soon after its creation in 1947, the Bureau of
Telecommunications set up its own Government
Telephone System by utilizing its own appropriation and
equipment and by renting trunk lines of the PLDT to enable
government offices to call private parties. 6 Its application
for the use of these trunk lines was in the usual form of
applications for telephone service, containing a statement,
above the signature of the applicant, that the latter will
abide by the rules and regulations of the PLDT which are
on file with the Public Service Commission. 7 One of the
many rules prohibits the public use of the service furnished
the telephone subscriber for his private use. 8 The Bureau
has extended its services to the general public since
1948, 9 using the same trunk lines owned by, and rented
from, the PLDT, and prescribing its (the Bureau's) own
schedule of rates. 10 Through these trunk lines, a
Government Telephone System (GTS) subscriber could
make a call to a PLDT subscriber in the same way that the
latter could make a call to the former.
 On 5 March 1958, the plaintiff, through the Director of
Telecommunications, entered into an agreement with RCA
Communications, Inc., for a joint overseas telephone
service whereby the Bureau would convey radio-telephone
overseas calls received by RCA's station to and from local
residents. 11 Actually, they inaugurated this joint operation
on 2 February 1958, under a "provisional" agreement. 12
On 7 April 1958, the defendant Philippine Long Distance
Telephone Company, complained to the Bureau of
Telecommunications that said bureau was violating the
conditions under which their Private Branch Exchange
(PBX) is inter-connected with the PLDT's facilities, referring
to the rented trunk lines, for the Bureau had used the trunk
lines not only for the use of government offices but even to
serve private persons or the general public, in competition
with the business of the PLDT; and gave notice that if said
violations were not stopped by midnight of 12 April 1958,
the PLDT would sever the telephone connections. 13 When
the PLDT received no reply, it disconnected the trunk lines
being rented by the Bureau at midnight on 12 April
1958. 14 The result was the isolation of the Philippines, on
telephone services, from the rest of the world, except the
United States. 15
At that time, the Bureau was maintaining 5,000
telephones and had 5,000 pending applications for
telephone connection. 16 The PLDT was also maintaining
60,000 telephones and had also 20,000 pending
applications. 17Through the years, neither of them has been
able to fill up the demand for telephone service.
The Bureau of Telecommunications had proposed to the
PLDT on 8 January 1958 that both enter into an
interconnecting agreement, with the government paying
(on a call basis) for all calls passing through the
interconnecting facilities from the Government Telephone
System to the PLDT. 18 The PLDT replied that it was willing
to enter into an agreement on overseas telephone service
to Europe and Asian countries provided that the Bureau
would submit to the jurisdiction and regulations of the
Public Service Commission and in consideration of 37
1/2% of the gross revenues. 19 In its memorandum in lieu of
oral argument in this Court dated 9 February 1964, on
page 8, the defendant reduced its offer to 33 1/3 % (1/3) as
its share in the overseas telephone service. The proposals
were not accepted by either party.
On 12 April 1958, plaintiff Republic commenced suit
against the defendant, Philippine Long Distance Telephone
Company, in the Court of First Instance of Manila (Civil
Case No. 35805), praying in its complaint for judgment
commanding the PLDT to execute a contract with plaintiff,
through the Bureau, for the use of the facilities of
defendant's telephone system throughout the Philippines
under such terms and conditions as the court might
consider reasonable, and for a writ of preliminary injunction
against the defendant company to restrain the severance
of the existing telephone connections and/or restore those
severed.
Acting on the application of the plaintiff, and on the
ground that the severance of telephone connections by the
defendant company would isolate the Philippines from
other countries, the court a quo, on 14 April 1958, issued
an order for the defendant:
(1) to forthwith reconnect and restore the seventy-
eight (78) trunk lines that it has disconnected
between the facilities of the Government Telephone
System, including its overseas telephone services,
and the facilities of defendant; (2) to refrain from
 carrying into effect its threat to sever the existing
telephone communication between the Bureau of
Telecommunications and defendant, and not to
make connection over its telephone system of
telephone calls coming to the Philippines from
foreign countries through the said Bureau's
telephone facilities and the radio facilities of RCA
Communications, Inc.; and (3) to accept and connect
through its telephone system all such telephone calls
coming to the Philippines from foreign countries —
until further order of this Court.
On 28 April 1958, the defendant company filed its answer,
with counterclaims.
It denied any obligation on its part to execute a contrary of
services with the Bureau of Telecommunications;
contested the jurisdiction of the Court of First Instance to
compel it to enter into interconnecting agreements, and
averred that it was justified to disconnect the trunk lines
heretofore leased to the Bureau of Telecommunications
under the existing agreement because its facilities were
being used in fraud of its rights. PLDT further claimed that
the Bureau was engaging in commercial telephone
operations in excess of authority, in competition with, and
to the prejudice of, the PLDT, using defendants own
telephone poles, without proper accounting of revenues.
After trial, the lower court rendered judgment that it could
not compel the PLDT to enter into an agreement with the
Bureau because the parties were not in agreement; that
under Executive Order 94, establishing the Bureau of
Telecommunications, said Bureau was not limited to
servicing government offices alone, nor was there any in
the contract of lease of the trunk lines, since the PLDT
knew, or ought to have known, at the time that their use by
the Bureau was to be public throughout the Islands, hence
the Bureau was neither guilty of fraud, abuse, or misuse of
the poles of the PLDT; and, in view of serious public
prejudice that would result from the disconnection of the
trunk lines, declared the preliminary injunction permanent,
although it dismissed both the complaint and the
counterclaims.
Both parties appealed.
Taking up first the appeal of the Republic, the latter
complains of the action of the trial court in dismissing the
part of its complaint seeking to compel the defendant to
enter into an interconnecting contract with it, because the
parties could not agree on the terms and conditions of the
interconnection, and of its refusal to fix the terms and
conditions therefor.
We agree with the court below that parties can not be
coerced to enter into a contract where no agreement is had
between them as to the principal terms and conditions of
the contract. Freedom to stipulate such terms and
conditions is of the essence of our contractual system, and
by express provision of the statute, a contract may be
annulled if tainted by violence, intimidation, or undue
influence (Articles 1306, 1336, 1337, Civil Code of the
Philippines). But the court a quo has apparently overlooked
that while the Republic may not compel the PLDT to
celebrate a contract with it, the Republic may, in the
exercise of the sovereign power of eminent domain, require
the telephone company to permit interconnection of the
government telephone system and that of the PLDT, as the
needs of the government service may require, subject to
the payment of just compensation to be determined by the
court. Nominally, of course, the power of eminent domain
results in the taking or appropriation of title to, and
possession of, the expropriated property; but no cogent
reason appears why the said power may not be availed of
to impose only a burden upon the owner of condemned
property, without loss of title and possession. It is
unquestionable that real property may, through
expropriation, be subjected to an easement of right of way.
The use of the PLDT's lines and services to allow inter-
service connection between both telephone systems is not
much different. In either case private property is subjected
to a burden for public use and benefit. If, under section 6,
Article XIII, of the Constitution, the State may, in the
interest of national welfare, transfer utilities to public
ownership upon payment of just compensation, there is no
reason why the State may not require a public utility to
render services in the general interest, provided just
compensation is paid therefor. Ultimately, the beneficiary of
the interconnecting service would be the users of both
telephone systems, so that the condemnation would be for
public use.
The Bureau of Telecommunications, under section 78 (b)
of Executive Order No. 94, may operate and maintain wire
telephone or radio telephone communications throughout
the Philippines by utilizing existing facilities in cities, towns,
and provinces under such terms and conditions or
arrangement with present owners or operators as may be
agreed upon to the satisfaction of all concerned; but there
is nothing in this section that would exclude resort to
condemnation proceedings where unreasonable or unjust
terms and conditions are exacted, to the extent of crippling
or seriously hampering the operations of said Bureau.
A perusal of the complaint shows that the Republic's
cause of action is predicated upon the radio telephonic
isolation of the Bureau's facilities from the outside world if
the severance of interconnection were to be carried out by
the PLDT, thereby preventing the Bureau of
Telecommunications from properly discharging its
functions, to the prejudice of the general public. Save for
the prayer to compel the PLDT to enter into a contract (and
the prayer is no essential part of the pleading), the
averments make out a case for compulsory rendering of
inter-connecting services by the telephone company upon
such terms and conditions as the court may determine to
be just. And since the lower court found that both parties
"are practically at one that defendant (PLDT) is entitled to
reasonable compensation from plaintiff for the reasonable
use of the former's telephone facilities" (Decision, Record
on Appeal, page 224), the lower court should have
proceeded to treat the case as one of condemnation of
such services independently of contract and proceeded to
determine the just and reasonable compensation for the
same, instead of dismissing the petition.
This view we have taken of the true nature of the
Republic's petition necessarily results in overruling the plea
of defendant-appellant PLDT that the court of first instance
had no jurisdiction to entertain the petition and that the
proper forum for the action was the Public Service
Commission. That body, under the law, has no authority to
pass upon actions for the taking of private property under
the sovereign right of eminent domain. Furthermore, while
the defendant telephone company is a public utility
corporation whose franchise, equipment and other
properties are under the jurisdiction, supervision and
control of the Public Service Commission (Sec. 13, Public
Service Act), yet the plaintiff's telecommunications network
is a public service owned by the Republic and operated by
an instrumentality of the National Government, hence
exempt, under Section 14 of the Public Service Act, from
such jurisdiction, supervision and control. The Bureau of
Telecommunications was created in pursuance of a state
policy reorganizing the government offices —
to meet the exigencies attendant upon the
establishment of the free and independent
Government of the Republic of the Philippines, and
for the purpose of promoting simplicity, economy and
efficiency in its operation (Section 1, Republic Act
No. 51) —
and the determination of state policy is not vested in the
Commission (Utilities Com. vs. Bartonville Bus Line, 290 Ill.
574; 124 N.E. 373).
Defendant PLDT, as appellant, contends that the court
below was in error in not holding that the Bureau of
Telecommunications was not empowered to engage in
commercial telephone business, and in ruling that said
defendant was not justified in disconnecting the telephone
trunk lines it had previously leased to the Bureau. We find
that the court a quo ruled correctly in rejecting both
assertions.
Executive Order No. 94, Series of 1947, reorganizing the
Bureau of Telecommunications, expressly empowered the
latter in its Section 79, subsection (b), to "negotiate for,
operate and maintain wire telephone or radio telephone
communication service throughout the Philippines", and, in
subsection (c), "to prescribe, subject to approval by the
Department Head, equitable rates of charges for messages
handled by the system and/or for time calls and other
services that may be rendered by the system". Nothing in
these provisions limits the Bureau to non-commercial
activities or prevents it from serving the general public. It
may be that in its original prospectuses the Bureau officials
had stated that the service would be limited to government
offices: but such limitations could not block future
expansion of the system, as authorized by the terms of the
Executive Order, nor could the officials of the Bureau bind
the Government not to engage in services that are
authorized by law. It is a well-known rule that erroneous
application and enforcement of the law by public officers do
not block subsequent correct application of the statute
(PLDT vs. Collector of Internal Revenue, 90 Phil. 676), and
that the Government is never estopped by mistake or error
on the part of its agents (Pineda vs. Court of First Instance
of Tayabas, 52 Phil. 803, 807; Benguet Consolidated
Mining Co. vs. Pineda, 98 Phil. 711, 724).
The theses that the Bureau's commercial services
constituted unfair competition, and that the Bureau was
guilty of fraud and abuse under its contract, are, likewise,
untenable.
First, the competition is merely hypothetical, the demand
for telephone service being very much more than the
supposed competitors can supply. As previously noted, the
PLDT had 20,000 pending applications at the time, and the
Bureau had another 5,000. The telephone company's
inability to meet the demands for service are notorious
even now. Second, the charter of the defendant expressly
provides:
SEC. 14. The rights herein granted shall not be
exclusive, and the rights and power to grant to any
corporation, association or person other than the
grantee franchise for the telephone or electrical
transmission of message or signals shall not be
impaired or affected by the granting of this franchise:
— (Act 3436)
 And third, as the trial court correctly stated, "when the
Bureau of Telecommunications subscribed to the trunk
lines, defendant knew or should have known that their use
by the subscriber was more or less public and all
embracing in nature, that is, throughout the Philippines, if
not abroad" (Decision, Record on Appeal, page 216).
The acceptance by the defendant of the payment of
rentals, despite its knowledge that the plaintiff had
extended the use of the trunk lines to commercial
purposes, continuously since 1948, implies assent by the
defendant to such extended use. Since this relationship
has been maintained for a long time and the public has
patronized both telephone systems, and their
interconnection is to the public convenience, it is too late
for the defendant to claim misuse of its facilities, and it is
not now at liberty to unilaterally sever the physical
connection of the trunk lines.
..., but there is high authority for the position that,
when such physical connection has been voluntarily
made, under a fair and workable arrangement and
guaranteed by contract and the continuous line has
come to be patronized and established as a great
public convenience, such connection shall not in
breach of the agreement be severed by one of the
parties. In that case, the public is held to have such
an interest in the arrangement that its rights must
receive due consideration. This position finds
approval in State ex rel. vs. Cadwaller, 172 Ind. 619,
636, 87 N.E. 650, and is stated in the elaborate and
learned opinion of Chief Justice Myers as follows:
"Such physical connection cannot be required as of
right, but if such connection is voluntarily made by
contract, as is here alleged to be the case, so that
the public acquires an interest in its continuance, the
act of the parties in making such connection is
equivalent to a declaration of a purpose to waive the
primary right of independence, and it imposes upon
the property such a public status that it may not be
disregarded" — citing Mahan v. Mich. Tel. Co., 132
Mich. 242, 93 N.W. 629, and the reasons upon which
it is in part made to rest are referred to in the same
opinion, as follows: "Where private property is by the
consent of the owner invested with a public interest
or privilege for the benefit of the public, the owner
can no longer deal with it as private property only,
but must hold it subject to the right of the public in
the exercise of that public interest or privilege
conferred for their benefit." Allnut v. Inglis (1810) 12
East, 527. The doctrine of this early case is the
acknowledged law. (Clinton-Dunn Tel. Co. v.
Carolina Tel. & Tel. Co., 74 S.E. 636, 638).
It is clear that the main reason for the objection of the
PLDT lies in the fact that said appellant did not expect that
the Bureau's telephone system would expand with such
rapidity as it has done; but this expansion is no ground for
the discontinuance of the service agreed upon.
The last issue urged by the PLDT as appellant is its right
to compensation for the use of its poles for bearing
telephone wires of the Bureau of Telecommunications.
Admitting that section 19 of the PLDT charter reserves to
the Government —
the privilege without compensation of using the
poles of the grantee to attach one ten-pin cross-arm,
and to install, maintain and operate wires of its
telegraph system thereon; Provided, however, That
the Bureau of Posts shall have the right to place
additional cross-arms and wires on the poles of the
 grantee by paying a compensation, the rate of which
is to be agreed upon by the Director of Posts and the
grantee; —
the defendant counterclaimed for P8,772.00 for the use of
its poles by the plaintiff, contending that what was allowed
free use, under the aforequoted provision, was one ten-pin
cross-arm attachment and only for plaintiff's telegraph
system, not for its telephone system; that said section
could not refer to the plaintiff's telephone system, because
it did not have such telephone system when defendant
acquired its franchise. The implication of the argument is
that plaintiff has to pay for the use of defendant's poles if
such use is for plaintiff's telephone system and has to pay
also if it attaches more than one (1) ten-pin cross-arm for
telegraphic purposes.
As there is no proof that the telephone wires strain the
poles of the PLDT more than the telegraph wires, nor that
they cause more damage than the wires of the telegraph
system, or that the Government has attached to the poles
more than one ten-pin cross-arm as permitted by the PLDT
charter, we see no point in this assignment of error. So
long as the burden to be borne by the PLDT poles is not
increased, we see no reason why the reservation in favor
of the telegraph wires of the government should not be
extended to its telephone lines, any time that the
government decided to engage also in this kind of
communication.
In the ultimate analysis, the true objection of the PLDT to
continue the link between its network and that of the
Government is that the latter competes "parasitically" (sic)
with its own telephone services. Considering, however, that
the PLDT franchise is non-exclusive; that it is well-known
that defendant PLDT is unable to adequately cope with the
current demands for telephone service, as shown by the
number of pending applications therefor; and that the
PLDT's right to just compensation for the services rendered
to the Government telephone system and its users is
herein recognized and preserved, the objections of
defendant-appellant are without merit. To uphold the
PLDT's contention is to subordinate the needs of the
general public to the right of the PLDT to derive profit from
the future expansion of its services under its non-exclusive
franchise.
WHEREFORE, the decision of the Court of First Instance,
now under appeal, is affirmed, except in so far as it
dismisses the petition of the Republic of the Philippines to
compel the Philippine Long Distance Telephone Company
to continue servicing the Government telephone system
upon such terms, and for a compensation, that the trial
court may determine to be just, including the period
elapsed from the filing of the original complaint or petition.
And for this purpose, the records are ordered returned to
the court of origin for further hearings and other
proceedings not inconsistent with this opinion. No costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20620 August 15, 1974
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants- A parcel of land (Portion Lot Blk-1, Bureau of
appellees. Lands Plan Psd, 26254. Bounded on the NE
by Lot 3, on the SE by Lot 3; on the SW by Lot
Office of the Solicitor General for plaintiff-appellant. 1-B, Blk. 2 (equivalent to Lot 199-B Swo
23666; on the NW by AFP military reservation.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Containing an area of 450,273 square meters,
Associates for defendant-appellees. more or less and registered in the name of
Maria Nieves Toledo-Gozun under TCT No.
8708 of the Register of Deeds of Pampanga.
ZALDIVAR, J.:p ..., and

Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case No. 1623, an A parcel of land (Portion of lot 3, Blk-1, Bureau
expropriation proceeding.
of Lands Plan Psd 26254. Bounded on the NE
Plaintiff-appellant, the Republic of the Philippines, by Lot No. 3, on the SE by school lot and
(hereinafter referred to as the Republic) filed, on June 26, national road, on the SW by Lot 1-B Blk 2
1959, a complaint for eminent domain against defendant- (equivalent to Lot 199-B Swo 23666), on the
appellee, Carmen M. Vda. de Castellvi, judicial NW by Lot 1-B, Blk-1. Containing an area of
administratrix of the estate of the late Alfonso de Castellvi 88,772 square meters, more or less, and
(hereinafter referred to as Castellvi), over a parcel of land registered in the name of Maria Nieves Toledo
situated in the barrio of San Jose, Floridablanca, Gozun under TCT No. 8708 of the Register of
Pampanga, described as follows: Deeds of Pampanga, ....

A parcel of land, Lot No. 199-B Bureau of
Lands Plan Swo 23666. Bounded on the NE
by Maria Nieves Toledo-Gozun; on the SE by
national road; on the SW by AFP reservation,
and on the NW by AFP reservation. Containing
an area of 759,299 square meters, more or
less, and registered in the name of Alfonso
Castellvi under TCT No. 13631 of the Register
of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo
Gozun (hereinafter referred to as Toledo-Gozun over two
parcels of land described as follows:
In its complaint, the Republic alleged, among other things,
that the fair market value of the above-mentioned lands,
according to the Committee on Appraisal for the Province
of Pampanga, was not more than P2,000 per hectare, or a
total market value of P259,669.10; and prayed, that the
provisional value of the lands be fixed at P259.669.10, that
the court authorizes plaintiff to take immediate possession
of the lands upon deposit of that amount with the Provincial
Treasurer of Pampanga; that the court appoints three
commissioners to ascertain and report to the court the just
compensation for the property sought to be expropriated,
and that the court issues thereafter a final order of
condemnation.
On June 29, 1959 the trial court issued an order fixing the
provisional value of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi
alleged, among other things, that the land under her
administration, being a residential land, had a fair market
value of P15.00 per square meter, so it had a total market
value of P11,389,485.00; that the Republic, through the
Armed Forces of the Philippines, particularly the Philippine
Air Force, had been, despite repeated demands, illegally
occupying her property since July 1, 1956, thereby
preventing her from using and disposing of it, thus causing
her damages by way of unrealized profits. This defendant
prayed that the complaint be dismissed, or that the
Republic be ordered to pay her P15.00 per square meter,
or a total of P11,389,485.00, plus interest thereon at 6%
per annum from July 1, 1956; that the Republic be ordered
to pay her P5,000,000.00 as unrealized profits, and the
costs of the suit.
By order of the trial court, dated August, 1959, Amparo C.
Diaz, Dolores G. viuda de Gil, Paloma Castellvi, Carmen
Castellvi, Rafael Castellvi, Luis Castellvi, Natividad
Castellvi de Raquiza, Jose Castellvi and Consuelo
Castellvi were allowed to intervene as parties defendants.
Subsequently, Joaquin V. Gozun, Jr., husband of
defendant Nieves Toledo Gozun, was also allowed by the
court to intervene as a party defendant.
After the Republic had deposited with the Provincial
Treasurer of Pampanga the amount of P259,669.10, the
trial court ordered that the Republic be placed in
possession of the lands. The Republic was actually placed
in possession of the lands on August 10,
1959.1
In her "motion to dismiss", dated October 22, 1959, Toledo-
Gozun alleged, among other things, that her two parcels of
land were residential lands, in fact a portion with an area of
343,303 square meters had already been subdivided into
different lots for sale to the general public, and the
remaining portion had already been set aside for expansion
sites of the already completed subdivisions; that the fair
market value of said lands was P15.00 per square meter,
so they had a total market value of P8,085,675.00; and she
prayed that the complaint be dismissed, or that she be paid
the amount of P8,085,675.00, plus interest thereon at the
rate of 6% per annum from October 13, 1959, and
attorney's fees in the amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their
answer, filed on February 11, 1960, and also intervenor
Joaquin Gozun, Jr., husband of defendant Maria Nieves
Toledo-Gozun, in his motion to dismiss, dated May 27,
1960, all alleged that the value of the lands sought to be
expropriated was at the rate of P15.00 per square meter.
On November 4, 1959, the trial court authorized the
Provincial Treasurer of Pampanga to pay defendant
Toledo-Gozun the sum of P107,609.00 as provisional value
of her lands.2 On May 16, 1960 the trial Court authorized
the Provincial Treasurer of Pampanga to pay defendant
Castellvi the amount of P151,859.80 as provisional value of
the land under her administration, and ordered said
defendant to deposit the amount with the Philippine
National Bank under the supervision of the Deputy Clerk of
Court. In another order of May 16, 1960 the trial Court
entered an order of condemnation.3
The trial Court appointed three commissioners: Atty.
Amadeo Yuzon, Clerk of Court, as commissioner for the
court; Atty. Felicisimo G. Pamandanan, counsel of the
Philippine National Bank Branch at Floridablanca, for the
plaintiff; and Atty. Leonardo F. Lansangan, Filipino legal
counsel at Clark Air Base, for the defendants. The
Commissioners, after having qualified themselves,
proceeded to the performance of their duties.
On March 15,1961 the Commissioners submitted their
report and recommendation, wherein, after having
determined that the lands sought to be expropriated were
residential lands, they recommended unanimously that the
lowest price that should be paid was P10.00 per square
meter, for both the lands of Castellvi and Toledo-Gozun;
that an additional P5,000.00 be paid to Toledo-Gozun for
improvements found on her land; that legal interest on the
compensation, computed from August 10, 1959, be paid
after deducting the amounts already paid to the owners,
and that no consequential damages be awarded.4 The
Commissioners' report was objected to by all the parties in
the case — by defendants Castellvi and Toledo-Gozun,
who insisted that the fair market value of their lands should
be fixed at P15.00 per square meter; and by the Republic,
which insisted that the price to be paid for the lands should
be fixed at P0.20 per square meter.5
After the parties-defendants and intervenors had filed their
respective memoranda, and the Republic, after several
extensions of time, had adopted as its memorandum its
objections to the report of the Commissioners, the trial
court, on May 26, 1961, rendered its decision6 the
dispositive portion of which reads as follows:
WHEREFORE, taking into account all the
foregoing circumstances, and that the lands
are titled, ... the rising trend of land values ...,
and the lowered purchasing power of the
Philippine peso, the court finds that the
unanimous recommendation of the
commissioners of ten (P10.00) pesos per
square meter for the three lots of the
defendants subject of this action is fair and
just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum on
the total value of the lands of defendant
Toledo-Gozun since (sic) the amount
deposited as provisional value from August 10,
1959 until full payment is made to said
defendant or deposit therefor is made in court.
In respect to the defendant Castellvi, interest
at 6% per annum will also be paid by the
plaintiff to defendant Castellvi from July 1,
1956 when plaintiff commenced its illegal
possession of the Castellvi land when the
instant action had not yet been commenced to
July 10, 1959 when the provisional value
thereof was actually deposited in court, on the
total value of the said (Castellvi) land as herein
adjudged. The same rate of interest shall be
paid from July 11, 1959 on the total value of
the land herein adjudged minus the amount
deposited as provisional value, or
P151,859.80, such interest to run until full
payment is made to said defendant or deposit
therefor is made in court. All the intervenors
having failed to produce evidence in support of
their respective interventions, said
interventions are ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial
and/or reconsideration, upon the grounds of newly-
discovered evidence, that the decision was not supported
by the evidence, and that the decision was against the law,
against which motion defendants Castellvi and Toledo-
Gozun filed their respective oppositions. On July 8, 1961
when the motion of the Republic for new trial and/or
reconsideration was called for hearing, the Republic filed a
supplemental motion for new trial upon the ground of
additional newly-discovered evidence. This motion for new
trial and/or reconsideration was denied by the court on July
12, 1961.
On July 17, 1961 the Republic gave notice of its intention
to appeal from the decision of May 26, 1961 and the order
of July 12, 1961. Defendant Castellvi also filed, on July 17,
1961, her notice of appeal from the decision of the trial
court.
The Republic filed various ex-parte motions for extension
of time within which to file its record on appeal. The
Republic's record on appeal was finally submitted on
December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a
joint opposition to the approval of the Republic's record on
appeal, but also a joint memorandum in support of their
opposition. The Republic also filed a memorandum in
support of its prayer for the approval of its record on
appeal. On December 27, 1961 the trial court issued an
order declaring both the record on appeal filed by the
Republic, and the record on appeal filed by defendant
Castellvi as having been filed out of time, thereby
dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike
out the order of December 27, 1961 and for
reconsideration", and subsequently an amended record on
appeal, against which motion the defendants Castellvi and
Toledo-Gozun filed their opposition. On July 26, 1962 the
trial court issued an order, stating that "in the interest of
expediency, the questions raised may be properly and
finally determined by the Supreme Court," and at the same
time it ordered the Solicitor General to submit a record on
appeal containing copies of orders and pleadings specified
therein. In an order dated November 19, 1962, the trial
court approved the Republic's record on appeal as
amended.
Defendant Castellvi did not insist on her appeal. Defendant
Toledo-Gozun did not appeal.
The motion to dismiss the Republic's appeal was reiterated
by appellees Castellvi and Toledo-Gozun before this Court,
but this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought
to increase the provisional value of her land. The Republic,
in its comment on Castellvi's motion, opposed the same.
This Court denied Castellvi's motion in a resolution dated
October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun,
dated October 6, 1969, praying that they be authorized to
mortgage the lands subject of expropriation, was denied by
this Court or October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and
Associates, counsel for the estate of the late Don Alfonso
de Castellvi in the expropriation proceedings, filed a notice
of attorney's lien, stating that as per agreement with the
administrator of the estate of Don Alfonso de Castellvi they
shall receive by way of attorney's fees, "the sum equivalent
to ten per centum of whatever the court may finally decide
as the expropriated price of the property subject matter of
the case."
---------
Before this Court, the Republic contends that the lower
court erred:
1. In finding the price of P10 per square meter
of the lands subject of the instant proceedings
as just compensation;
2. In holding that the "taking" of the properties
under expropriation commenced with the filing
of this action;
3. In ordering plaintiff-appellant to pay 6%
interest on the adjudged value of the Castellvi
property to start from July of 1956;
4. In denying plaintiff-appellant's motion for
new trial based on newly discovered evidence.
In its brief, the Republic discusses the second error
assigned as the first issue to be considered. We shall
follow the sequence of the Republic's discussion.
1. In support of the assigned error that the lower court
erred in holding that the "taking" of the properties under
expropriation commenced with the filing of the complaint in
this case, the Republic argues that the "taking" should be
reckoned from the year 1947 when by virtue of a special
lease agreement between the Republic and appellee
Castellvi, the former was granted the "right and privilege" to
buy the property should the lessor wish to terminate the
lease, and that in the event of such sale, it was stipulated
that the fair market value should be as of the time of
occupancy; and that the permanent improvements
amounting to more that half a million pesos constructed
during a period of twelve years on the land, subject of
expropriation, were indicative of an agreed pattern of
permanency and stability of occupancy by the Philippine
Air Force in the interest of national Security.7
Appellee Castellvi, on the other hand, maintains that the
"taking" of property under the power of eminent domain
requires two essential elements, to wit: (1) entrance and
occupation by condemn or upon the private property for
more than a momentary or limited period, and (2) devoting
it to a public use in such a way as to oust the owner and
deprive him of all beneficial enjoyment of the property. This
appellee argues that in the instant case the first element is
wanting, for the contract of lease relied upon provides for a
lease from year to year; that the second element is also
wanting, because the Republic was paying the lessor
Castellvi a monthly rental of P445.58; and that the contract
of lease does not grant the Republic the "right and
privilege" to buy the premises "at the value at the time of
occupancy."8
Appellee Toledo-Gozun did not comment on the Republic's
argument in support of the second error assigned, because
as far as she was concerned the Republic had not taken
possession of her lands prior to August 10, 1959.9
In order to better comprehend the issues raised in the
appeal, in so far as the Castellvi property is concerned, it
should be noted that the Castellvi property had been
occupied by the Philippine Air Force since 1947 under a
contract of lease, typified by the contract marked Exh. 4-
Castellvi, the pertinent portions of which read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND
ENTERED into by and between INTESTATE
ESTATE OF ALFONSO DE CASTELLVI,
represented by CARMEN M. DE CASTELLVI,
Judicial Administratrix ... hereinafter called the
LESSOR and THE REPUBLIC OF THE
PHILIPPINES represented by MAJ. GEN.
CALIXTO DUQUE, Chief of Staff of the
ARMED FORCES OF THE PHILIPPINES,
hereinafter called the LESSEE,
WITNESSETH:
1. For and in consideration of the rentals
hereinafter reserved and the mutual terms,
covenants and conditions of the parties, the
LESSOR has, and by these presents does,
lease and let unto the LESSEE the following
described land together with the improvements
thereon and appurtenances thereof, viz:
Un Terreno, Lote No. 27 del Plano de
subdivision Psu 34752, parte de la hacienda
de Campauit, situado en el Barrio de San
Jose, Municipio de Floridablanca Pampanga.
... midiendo una extension superficial de
cuatro milliones once mil cuatro cientos trienta
y cinco (4,001,435) [sic] metros cuadrados,
mas o menos.
Out of the above described property, 75.93
hectares thereof are actually occupied and
covered by this contract. .
Above lot is more particularly described in TCT
No. 1016, province of
Pampanga ...
of which premises, the LESSOR warrants that
he/she/they/is/are the registered owner(s) and with full
authority to execute a contract of this nature.
2. The term of this lease shall be for the period
beginning July 1, 1952 the date the premises
were occupied by the PHILIPPINE AIR
FORCE, AFP until June 30, 1953, subject to
renewal for another year at the option of the
LESSEE or unless sooner terminated by the
LESSEE as hereinafter provided.
3. The LESSOR hereby warrants that the
LESSEE shall have quiet, peaceful and
undisturbed possession of the demised
premises throughout the full term or period of
this lease and the LESSOR undertakes
without cost to the LESSEE to eject all
trespassers, but should the LESSOR fail to do
so, the LESSEE at its option may proceed to
do so at the expense of the LESSOR. The
LESSOR further agrees that should
he/she/they sell or encumber all or any part of
the herein described premises during the
period of this lease, any conveyance will be
conditioned on the right of the LESSEE
hereunder.
4. The LESSEE shall pay to the LESSOR as
monthly rentals under this lease the sum of
FOUR HUNDRED FIFTY-FIVE PESOS &
58/100 (P455.58) ...
5. The LESSEE may, at any time prior to the
termination of this lease, use the property for
any purpose or purposes and, at its own costs
and expense make alteration, install facilities
and fixtures and errect additions ... which
facilities or fixtures ... so placed in, upon or
attached to the said premises shall be and
remain property of the LESSEE and may be
removed therefrom by the LESSEE prior to the
termination of this lease. The LESSEE shall
surrender possession of the premises upon
the expiration or termination of this lease and if
so required by the LESSOR, shall return the
premises in substantially the same condition
as that existing at the time same were first
occupied by the AFP, reasonable and ordinary
wear and tear and damages by the elements
or by circumstances over which the LESSEE
has no control excepted: PROVIDED, that if
the LESSOR so requires the return of the
premises in such condition, the LESSOR shall
give written notice thereof to the LESSEE at
least twenty (20) days before the termination
of the lease and provided, further, that should
the LESSOR give notice within the time
specified above, the LESSEE shall have the
right and privilege to compensate the LESSOR
at the fair value or the equivalent, in lieu of
performance of its obligation, if any, to restore
the premises. Fair value is to be determined as
the value at the time of occupancy less fair
wear and tear and depreciation during the
period of this lease.
6. The LESSEE may terminate this lease at
any time during the term hereof by giving
written notice to the LESSOR at least thirty
(30) days in advance ...
7. The LESSEE should not be responsible,
except under special legislation for any
damages to the premises by reason of combat
operations, acts of GOD, the elements or other
acts and deeds not due to the negligence on
the part of the LESSEE.
8. This LEASE AGREEMENT supersedes and
voids any and all agreements and
undertakings, oral or written, previously
entered into between the parties covering the
property herein leased, the same having been
merged herein. This AGREEMENT may not be
modified or altered except by instrument in
writing only duly signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract
of lease (Exh. 4, Castellvi) is 'similar in terms and
conditions, including the date', with the annual contracts
entered into from year to year between defendant Castellvi
and the Republic of the Philippines (p. 17, t.s.n., Vol.
III)". 11 It is undisputed, therefore, that the Republic
occupied Castellvi's land from July 1, 1947, by virtue of the
above-mentioned contract, on a year to year basis (from
July 1 of each year to June 30 of the succeeding year)
under the terms and conditions therein stated.
Before the expiration of the contract of lease on June 30,
1956 the Republic sought to renew the same but Castellvi
refused. When the AFP refused to vacate the leased
premises after the termination of the contract, on July 11,
1956, Castellvi wrote to the Chief of Staff, AFP, informing
the latter that the heirs of the property had decided not to
continue leasing the property in question because they had
decided to subdivide the land for sale to the general public,
demanding that the property be vacated within 30 days
from receipt of the letter, and that the premises be returned
in substantially the same condition as before occupancy
(Exh. 5 — Castellvi). A follow-up letter was sent on January
12, 1957, demanding the delivery and return of the
property within one month from said date (Exh. 6 Castellvi).
On January 30, 1957, Lieutenant General Alfonso Arellano,
Chief of Staff, answered the letter of Castellvi, saying that it
was difficult for the army to vacate the premises in view of
the permanent installations and other facilities worth almost
P500,000.00 that were erected and already established on
the property, and that, there being no other recourse, the
acquisition of the property by means of expropriation
proceedings would be recommended to the President
(Exhibit "7" — Castellvi).
Defendant Castellvi then brought suit in the Court of First
Instance of Pampanga, in Civil Case No. 1458, to eject the
Philippine Air Force from the land. While this ejectment
case was pending, the Republic instituted these
expropriation proceedings, and, as stated earlier in this
opinion, the Republic was placed in possession of the
lands on August 10, 1959, On November 21, 1959, the
Court of First Instance of Pampanga, dismissed Civil Case
No. 1458, upon petition of the parties, in an order which, in
part, reads as follows:
1. Plaintiff has agreed, as a matter of fact has
already signed an agreement with defendants,
whereby she has agreed to receive the rent of
the lands, subject matter of the instant case
from June 30, 1966 up to 1959 when the
Philippine Air Force was placed in possession
by virtue of an order of the Court upon
depositing the provisional amount as fixed by
the Provincial Appraisal Committee with the
Provincial Treasurer of Pampanga;
2. That because of the above-cited agreement
wherein the administratrix decided to get the
rent corresponding to the rent from 1956 up to
1959 and considering that this action is one of
illegal detainer and/or to recover the
possession of said land by virtue of non-
payment of rents, the instant case now has
become moot and academic and/or by virtue
of the agreement signed by plaintiff, she has
waived her cause of action in the above-
entitled case. 12
The Republic urges that the "taking " of Castellvi's property
should be deemed as of the year 1947 by virtue of afore-
quoted lease agreement. In American Jurisprudence, Vol.
26, 2nd edition, Section 157, on the subject of "Eminent
Domain, we read the definition of "taking" (in eminent
domain) as follows:
Taking' under the power of eminent domain
may be defined generally as entering upon
private property for more than a momentary
period, and, under the warrant or color of legal
authority, devoting it to a public use, or
otherwise informally appropriating or
 injuriously affecting it in such a way as
substantially to oust the owner and deprive
him of all beneficial enjoyment thereof. 13
Pursuant to the aforecited authority, a number of
circumstances must be present in the "taking" of property
for purposes of eminent domain.
First, the expropriator must enter a private property. This
circumstance is present in the instant case, when by virtue
of the lease agreement the Republic, through the AFP,
took possession of the property of Castellvi.
Second, the entrance into private property must be for
more than a momentary period. "Momentary" means,
"lasting but a moment; of but a moment's duration" (The
Oxford English Dictionary, Volume VI, page 596); "lasting a
very short time; transitory; having a very brief life; operative
or recurring at every moment" (Webster's Third
International Dictionary, 1963 edition.) The word
"momentary" when applied to possession or occupancy of
(real) property should be construed to mean "a limited
period" — not indefinite or permanent. The aforecited lease
contract was for a period of one year, renewable from year
to year. The entry on the property, under the lease, is
temporary, and considered transitory. The fact that the
Republic, through the AFP, constructed some installations
of a permanent nature does not alter the fact that the entry
into the land was transitory, or intended to last a year,
although renewable from year to year by consent of 'The
owner of the land. By express provision of the lease
agreement the Republic, as lessee, undertook to return the
premises in substantially the same condition as at the time
the property was first occupied by the AFP. It is claimed
that the intention of the lessee was to occupy the land
permanently, as may be inferred from the construction of
permanent improvements. But this "intention" cannot
prevail over the clear and express terms of the lease
contract. Intent is to be deduced from the language
employed by the parties, and the terms 'of the contract,
when unambiguous, as in the instant case, are conclusive
in the absence of averment and proof of mistake or fraud
— the question being not what the intention was, but what
is expressed in the language used. (City of Manila v. Rizal
Park Co., Inc., 53 Phil. 515, 525); Magdalena Estate, Inc. v.
Myrick, 71 Phil. 344, 348). Moreover, in order to judge the
intention of the contracting parties, their contemporaneous
and subsequent acts shall be principally considered (Art.
1371, Civil Code). If the intention of the lessee (Republic)
in 1947 was really to occupy permanently Castellvi's
property, why was the contract of lease entered into on
year to year basis? Why was the lease agreement renewed
from year to year? Why did not the Republic expropriate
this land of Castellvi in 1949 when, according to the
Republic itself, it expropriated the other parcels of land that
it occupied at the same time as the Castellvi land, for the
purpose of converting them into a jet air base? 14 It might
really have been the intention of the Republic to
expropriate the lands in question at some future time, but
certainly mere notice - much less an implied notice — of
such intention on the part of the Republic to expropriate the
lands in the future did not, and could not, bind the
landowner, nor bind the land itself. The expropriation must
be actually commenced in court (Republic vs. Baylosis, et
al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant
or color of legal authority. This circumstance in the "taking"
may be considered as present in the instant case, because
the Republic entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or
otherwise informally appropriated or injuriously affected. It
may be conceded that the circumstance of the property
being devoted to public use is present because the
property was used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in
such a way as to oust the owner and deprive him of all
beneficial enjoyment of the property. In the instant case,
the entry of the Republic into the property and its utilization
of the same for public use did not oust Castellvi and
deprive her of all beneficial enjoyment of the property.
Castellvi remained as owner, and was continuously
recognized as owner by the Republic, as shown by the
renewal of the lease contract from year to year, and by the
provision in the lease contract whereby the Republic
undertook to return the property to Castellvi when the lease
was terminated. Neither was Castellvi deprived of all the
beneficial enjoyment of the property, because the Republic
was bound to pay, and had been paying, Castellvi the
agreed monthly rentals until the time when it filed the
complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property
for purposes of eminent domain cannot be considered to
have taken place in 1947 when the Republic commenced
to occupy the property as lessee thereof. We find merit in
the contention of Castellvi that two essential elements in
the "taking" of property under the power of eminent
domain, namely: (1) that the entrance and occupation by
the condemnor must be for a permanent, or indefinite
period, and (2) that in devoting the property to public use
the owner was ousted from the property and deprived of its
beneficial use, were not present when the Republic entered
and occupied the Castellvi property in 1947.
Untenable also is the Republic's contention that although
the contract between the parties was one of lease on a
year to year basis, it was "in reality a more or less
permanent right to occupy the premises under the guise of
lease with the 'right and privilege' to buy the property
should the lessor wish to terminate the lease," and "the
right to buy the property is merged as an integral part of the
lease relationship ... so much so that the fair market value
has been agreed upon, not, as of the time of purchase, but
as of the time of occupancy" 15 We cannot accept the
Republic's contention that a lease on a year to year basis
can give rise to a permanent right to occupy, since by
express legal provision a lease made for a determinate
time, as was the lease of Castellvi's land in the instant
case, ceases upon the day fixed, without need of a
demand (Article 1669, Civil Code). Neither can it be said
that the right of eminent domain may be exercised by
simply leasing the premises to be expropriated (Rule 67,
Section 1, Rules of Court). Nor can it be accepted that the
Republic would enter into a contract of lease where its real
intention was to buy, or why the Republic should enter into
a simulated contract of lease ("under the guise of lease",
as expressed by counsel for the Republic) when all the
time the Republic had the right of eminent domain, and
could expropriate Castellvi's land if it wanted to without
resorting to any guise whatsoever. Neither can we see how
a right to buy could be merged in a contract of lease in the
absence of any agreement between the parties to that
effect. To sustain the contention of the Republic is to
sanction a practice whereby in order to secure a low price
for a land which the government intends to expropriate (or
would eventually expropriate) it would first negotiate with
the owner of the land to lease the land (for say ten or
twenty years) then expropriate the same when the lease is
about to terminate, then claim that the "taking" of the
property for the purposes of the expropriation be reckoned
as of the date when the Government started to occupy the
property under the lease, and then assert that the value of
the property being expropriated be reckoned as of the start
of the lease, in spite of the fact that the value of the
property, for many good reasons, had in the meantime
increased during the period of the lease. This would be
sanctioning what obviously is a deceptive scheme, which
would have the effect of depriving the owner of the property
of its true and fair market value at the time when the
expropriation proceedings were actually instituted in
court. The Republic's claim that it had the "right and
privilege" to buy the property at the value that it had at the
time when it first occupied the property as lessee nowhere
appears in the lease contract. What was agreed expressly
in paragraph No. 5 of the lease agreement was that, should
the lessor require the lessee to return the premises in the
same condition as at the time the same was first occupied
by the AFP, the lessee would have the "right and privilege"
(or option) of paying the lessor what it would fairly cost to
put the premises in the same condition as it was at the
commencement of the lease, in lieu of the lessee's
performance of the undertaking to put the land in said
condition. The "fair value" at the time of occupancy,
mentioned in the lease agreement, does not refer to the
value of the property if bought by the lessee, but refers to
the cost of restoring the property in the same condition as
of the time when the lessee took possession of the
property. Such fair value cannot refer to the purchase
price, for purchase was never intended by the parties to the
lease contract. It is a rule in the interpretation of contracts
that "However general the terms of a contract may be, they
shall not be understood to comprehend things that are
distinct and cases that are different from those upon which
the parties intended to agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi
property should not be reckoned as of the year 1947 when
the Republic first occupied the same pursuant to the
contract of lease, and that the just compensation to be paid
for the Castellvi property should not be determined on the
basis of the value of the property as of that year. The lower
court did not commit an error when it held that the "taking"
of the property under expropriation commenced with the
filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the
"just compensation" is to be determined as of the date of
the filing of the complaint. This Court has ruled that when
the taking of the property sought to be expropriated
coincides with the commencement of the expropriation
proceedings, or takes place subsequent to the filing of the
complaint for eminent domain, the just compensation
should be determined as of the date of the filing of the
complaint. (Republic vs. Philippine National Bank, L-14158,
April 12, 1961, 1 SCRA 957, 961-962). In the instant case,
it is undisputed that the Republic was placed in possession
of the Castellvi property, by authority of the court, on
August 10, 1959. The "taking" of the Castellvi property for
the purposes of determining the just compensation to be
paid must, therefore, be reckoned as of June 26, 1959
when the complaint for eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also
sought to be expropriated, which had never been under
lease to the Republic, the Republic was placed in
possession of said lands, also by authority of the court, on
August 10, 1959, The taking of those lands, therefore, must
also be reckoned as of June 26, 1959, the date of the filing
of the complaint for eminent domain.
2. Regarding the first assigned error — discussed as the
second issue — the Republic maintains that, even
assuming that the value of the expropriated lands is to be
determined as of June 26, 1959, the price of P10.00 per
square meter fixed by the lower court "is not only
exhorbitant but also unconscionable, and almost fantastic".
On the other hand, both Castellvi and Toledo-Gozun
maintain that their lands are residential lands with a fair
market value of not less than P15.00 per square meter.
The lower court found, and declared, that the lands of
Castellvi and Toledo-Gozun are residential lands. The
finding of the lower court is in consonance with the
unanimous opinion of the three commissioners who, in
their report to the court, declared that the lands are
residential lands.
The Republic assails the finding that the lands are
residential, contending that the plans of the appellees to
convert the lands into subdivision for residential purposes
were only on paper, there being no overt acts on the part of
the appellees which indicated that the subdivision project
had been commenced, so that any compensation to be
awarded on the basis of the plans would be speculative.
The Republic's contention is not well taken. We find
evidence showing that the lands in question had ceased to
be devoted to the production of agricultural crops, that they
had become adaptable for residential purposes, and that
the appellees had actually taken steps to convert their
lands into residential subdivisions even before the Republic
filed the complaint for eminent domain. In the case of City
of Manila vs. Corrales (32 Phil. 82, 98) this Court laid down
basic guidelines in determining the value of the property
expropriated for public purposes. This Court said:
In determining the value of land appropriated
for public purposes, the same consideration
are to be regarded as in a sale of property
between private parties. The inquiry, in such
cases, must be what is the property worth in
the market, viewed not merely with reference
to the uses to which it is at the time applied,
but with reference to the uses to which it is
plainly adapted, that is to say, What is it worth
from its availability for valuable uses?
So many and varied are the circumstances to
be taken into account in determining the value
of property condemned for public purposes,
that it is practically impossible to formulate a
rule to govern its appraisement in all cases.
Exceptional circumstances will modify the
most carefully guarded rule, but, as a general
thing, we should say that the compensation of
the owner is to be estimated by reference to
the use for which the property is suitable,
having regard to the existing business or
wants of the community, or such as may be
reasonably expected in the immediate future.
(Miss. and Rum River Boom Co. vs. Patterson,
98 U.S., 403).
In expropriation proceedings, therefore, the owner of the
land has the right to its value for the use for which it would
bring the most in the market. 17 The owner may thus show
every advantage that his property possesses, present and
prospective, in order that the price it could be sold for in the
market may be satisfactorily determined. 18 The owner may
also show that the property is suitable for division into
village or town lots. 19
The trial court, therefore, correctly considered, among
other circumstances, the proposed subdivision plans of the
lands sought to be expropriated in finding that those lands
are residential lots. This finding of the lower court is
supported not only by the unanimous opinion of the
commissioners, as embodied in their report, but also by the
Provincial Appraisal Committee of the province of
Pampanga composed of the Provincial Treasurer, the
Provincial Auditor and the District Engineer. In the minutes
of the meeting of the Provincial Appraisal Committee, held
on May 14, 1959 (Exh. 13-Castellvi) We read in its
Resolution No. 10 the following:
3. Since 1957 the land has been classified as
residential in view of its proximity to the air
base and due to the fact that it was not being
devoted to agriculture. In fact, there is a plan
to convert it into a subdivision for residential
purposes. The taxes due on the property have
been paid based on its classification as
residential land;
The evidence shows that Castellvi broached the idea of
subdividing her land into residential lots as early as July 11,
1956 in her letter to the Chief of Staff of the Armed Forces
of the Philippines. (Exh. 5-Castellvi) As a matter of fact, the
layout of the subdivision plan was tentatively approved by
the National Planning Commission on September 7, 1956.
(Exh. 8-Castellvi). The land of Castellvi had not been
devoted to agriculture since 1947 when it was leased to the
Philippine Army. In 1957 said land was classified as
residential, and taxes based on its classification as
residential had been paid since then (Exh. 13-Castellvi).
The location of the Castellvi land justifies its suitability for a
residential subdivision. As found by the trial court, "It is at
the left side of the entrance of the Basa Air Base and
bounded on two sides by roads (Exh. 13-Castellvi),
paragraphs 1 and 2, Exh. 12-Castellvi), the poblacion, (of
Floridablanca) the municipal building, and the Pampanga
Sugar Mills are closed by. The barrio schoolhouse and
chapel are also near (T.S.N. November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are
practically of the same condition as the land of Castellvi.
The lands of Toledo-Gozun adjoin the land of Castellvi.
They are also contiguous to the Basa Air Base, and are
along the road. These lands are near the barrio
schoolhouse, the barrio chapel, the Pampanga Sugar Mills,
and the poblacion of Floridablanca (Exhs. 1, 3 and 4-
Toledo-Gozun). As a matter of fact, regarding lot 1-B it had
already been surveyed and subdivided, and its conversion
into a residential subdivision was tentatively approved by
the National Planning Commission on July 8, 1959 (Exhs. 5
and 6 Toledo-Gozun). As early as June, 1958, no less than
32 man connected with the Philippine Air Force among
them commissioned officers, non-commission officers, and
enlisted men had requested Mr. and Mrs. Joaquin D.
Gozun to open a subdivision on their lands in question
(Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the
lower court that the lands that are the subject of
expropriation in the present case, as of August 10, 1959
when the same were taken possession of by the Republic,
were residential lands and were adaptable for use as
residential subdivisions. Indeed, the owners of these lands
have the right to their value for the use for which they
would bring the most in the market at the time the same
were taken from them. The most important issue to be
resolved in the present case relates to the question of what
is the just compensation that should be paid to the
appellees.
The Republic asserts that the fair market value of the lands
of the appellees is P.20 per square meter. The Republic
cites the case of Republic vs. Narciso, et al., L-6594, which
this Court decided on May 18, 1956. The Narciso case
involved lands that belonged to Castellvi and Toledo-
Gozun, and to one Donata Montemayor, which were
expropriated by the Republic in 1949 and which are now
the site of the Basa Air Base. In the Narciso case this Court
fixed the fair market value at P.20 per square meter. The
lands that are sought to be expropriated in the present
case being contiguous to the lands involved in the Narciso
case, it is the stand of the Republic that the price that
should be fixed for the lands now in question should also
be at P.20 per square meter.
We can not sustain the stand of the Republic. We find that
the price of P.20 per square meter, as fixed by this Court in
the Narciso case, was based on the allegation of the
defendants (owners) in their answer to the complaint for
eminent domain in that case that the price of their lands
was P2,000.00 per hectare and that was the price that they
asked the court to pay them. This Court said, then, that the
owners of the land could not be given more than what they
had asked, notwithstanding the recommendation of the
majority of the Commission on Appraisal — which was
adopted by the trial court — that the fair market value of
the lands was P3,000.00 per hectare. We also find that the
price of P.20 per square meter in the Narciso case was
considered the fair market value of the lands as of the year
1949 when the expropriation proceedings were instituted,
and at that time the lands were classified as sugar lands,
and assessed for taxation purposes at around P400.00 per
hectare, or P.04 per square meter. 22 While the lands
involved in the present case, like the lands involved in the
Narciso case, might have a fair market value of P.20 per
square meter in 1949, it can not be denied that ten years
later, in 1959, when the present proceedings were
instituted, the value of those lands had increased
considerably. The evidence shows that since 1949 those
lands were no longer cultivated as sugar lands, and in
1959 those lands were already classified, and assessed for
taxation purposes, as residential lands. In 1959 the land of
Castellvi was assessed at P1.00 per square meter. 23
The Republic also points out that the Provincial Appraisal
Committee of Pampanga, in its resolution No. 5 of
February 15, 1957 (Exhibit D), recommended the sum of
P.20 per square meter as the fair valuation of the Castellvi
property. We find that this resolution was made by the
Republic the basis in asking the court to fix the provisional
value of the lands sought to be expropriated at
P259,669.10, which was approved by the court. 24 It must
be considered, however, that the amount fixed as the
provisional value of the lands that are being expropriated
does not necessarily represent the true and correct value
of the land. The value is only "provisional" or "tentative", to
serve as the basis for the immediate occupancy of the
property being expropriated by the condemnor. The
records show that this resolution No. 5 was repealed by the
same Provincial Committee on Appraisal in its resolution
No. 10 of May 14, 1959 (Exhibit 13-Castellvi). In that
resolution No. 10, the appraisal committee stated that "The
Committee has observed that the value of the land in this
locality has increased since 1957 ...", and recommended
the price of P1.50 per square meter. It follows, therefore,
that, contrary to the stand of the Republic, that resolution
No. 5 of the Provincial Appraisal Committee can not be
made the basis for fixing the fair market value of the lands
of Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting
Assistant Provincial Assessor of Pampanga, dated
February 8, 1961 (Exhibit K), to the effect that in 1950 the
lands of Toledo-Gozun were classified partly as sugar land
and partly as urban land, and that the sugar land was
assessed at P.40 per square meter, while part of the urban
land was assessed at P.40 per square meter and part at
P.20 per square meter; and that in 1956 the Castellvi land
was classified as sugar land and was assessed at P450.00
per hectare, or P.045 per square meter. We can not also
consider this certification of the Acting Assistant Provincial
Assessor as a basis for fixing the fair market value of the
lands of Castellvi and Toledo-Gozun because, as the
evidence shows, the lands in question, in 1957, were
already classified and assessed for taxation purposes as
residential lands. The certification of the assessor refers to
the year 1950 as far as the lands of Toledo-Gozun are
concerned, and to the year 1956 as far as the land of
Castellvi is concerned. Moreover, this Court has held that
the valuation fixed for the purposes of the assessment of
the land for taxation purposes can not bind the landowner
where the latter did not intervene in fixing it. 25
On the other hand, the Commissioners, appointed by the
court to appraise the lands that were being expropriated,
recommended to the court that the price of P10.00 per
square meter would be the fair market value of the lands.
The commissioners made their recommendation on the
basis of their observation after several ocular inspections of
the lands, of their own personal knowledge of land values
in the province of Pampanga, of the testimonies of the
owners of the land, and other witnesses, and of
documentary evidence presented by the appellees. Both
Castellvi and Toledo-Gozun testified that the fair market
value of their respective land was at P15.00 per square
meter. The documentary evidence considered by the
commissioners consisted of deeds of sale of residential
lands in the town of San Fernando and in Angeles City, in
the province of Pampanga, which were sold at prices
ranging from P8.00 to P20.00 per square meter (Exhibits
15, 16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The
commissioners also considered the decision in Civil Case
No. 1531 of the Court of First Instance of Pampanga,
entitled Republic vs. Sabina Tablante, which was
expropriation case filed on January 13, 1959, involving a
parcel of land adjacent to the Clark Air Base in Angeles
City, where the court fixed the price at P18.00 per square
meter (Exhibit 14-Castellvi). In their report, the
commissioners, among other things, said:
... This expropriation case is specially pointed
out, because the circumstances and factors
involved therein are similar in many respects
to the defendants' lands in this case. The land
in Civil Case No. 1531 of this Court and the
lands in the present case (Civil Case No.
1623) are both near the air bases, the Clark
Air Base and the Basa Air Base respectively.
There is a national road fronting them and are
situated in a first-class municipality. As added
advantage it may be said that the Basa Air
Base land is very near the sugar mill at Del
Carmen, Floridablanca, Pampanga, owned by
the Pampanga Sugar Mills. Also just stone's
throw away from the same lands is a beautiful
vacation spot at Palacol, a sitio of the town of
Floridablanca, which counts with a natural
swimming pool for vacationists on weekends.
These advantages are not found in the case of
the Clark Air Base. The defendants' lands are
nearer to the poblacion of Floridablanca then
Clark Air Base is nearer (sic) to the poblacion
of Angeles, Pampanga.
 The deeds of absolute sale, according to the
undersigned commissioners, as well as the
land in Civil Case No. 1531 are competent
evidence, because they were executed during
the year 1959 and before August 10 of the
same year. More specifically so the land at
Clark Air Base which coincidentally is the
subject matter in the complaint in said Civil
Case No. 1531, it having been filed on January
13, 1959 and the taking of the land involved
therein was ordered by the Court of First
Instance of Pampanga on January 15, 1959,
several months before the lands in this case
were taken by the plaintiffs ....
From the above and considering further that
the lowest as well as the highest price per
square meter obtainable in the market of
Pampanga relative to subdivision lots within its
jurisdiction in the year 1959 is very well known
by the Commissioners, the Commission finds
that the lowest price that can be awarded to
the lands in question is P10.00 per square
meter. 26
The lower court did not altogether accept the findings of the
Commissioners based on the documentary evidence, but it
considered the documentary evidence as basis for
comparison in determining land values. The lower court
arrived at the conclusion that "the unanimous
recommendation of the commissioners of ten (P10.00)
pesos per square meter for the three lots of the defendants
subject of this action is fair and just". 27 In arriving at its
conclusion, the lower court took into consideration, among
other circumstances, that the lands are titled, that there is a
rising trend of land values, and the lowered purchasing
power of the Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil.
326, 328, this Court said:
A court of first instance or, on appeal, the
Supreme Court, may change or modify the
report of the commissioners by increasing or
reducing the amount of the award if the facts
of the case so justify. While great weight is
attached to the report of the commissioners,
yet a court may substitute therefor its estimate
of the value of the property as gathered from
the record in certain cases, as, where the
commissioners have applied illegal principles
to the evidence submitted to them, or where
they have disregarded a clear preponderance
of evidence, or where the amount allowed is
either palpably inadequate or excessive. 28
The report of the commissioners of appraisal in
condemnation proceedings are not binding, but merely
advisory in character, as far as the court is concerned. 29 In
our analysis of the report of the commissioners, We find
points that merit serious consideration in the determination
of the just compensation that should be paid to Castellvi
and Toledo-Gozun for their lands. It should be noted that
the commissioners had made ocular inspections of the
lands and had considered the nature and similarities of
said lands in relation to the lands in other places in the
province of Pampanga, like San Fernando and Angeles
City. We cannot disregard the observations of the
commissioners regarding the circumstances that make the
lands in question suited for residential purposes — their
location near the Basa Air Base, just like the lands in
Angeles City that are near the Clark Air Base, and the
facilities that obtain because of their nearness to the big
sugar central of the Pampanga Sugar mills, and to the
flourishing first class town of Floridablanca. It is true that
the lands in question are not in the territory of San
Fernando and Angeles City, but, considering the facilities
of modern communications, the town of Floridablanca may
be considered practically adjacent to San Fernando and
Angeles City. It is not out of place, therefore, to compare
the land values in Floridablanca to the land values in San
Fernando and Angeles City, and form an idea of the value
of the lands in Floridablanca with reference to the land
values in those two other communities.
The important factor in expropriation proceeding is that the
owner is awarded the just compensation for his property.
We have carefully studied the record, and the evidence, in
this case, and after considering the circumstances
attending the lands in question We have arrived at the
conclusion that the price of P10.00 per square meter, as
recommended by the commissioners and adopted by the
lower court, is quite high. It is Our considered view that the
price of P5.00 per square meter would be a fair valuation of
the lands in question and would constitute a just
compensation to the owners thereof. In arriving at this
conclusion We have particularly taken into consideration
the resolution of the Provincial Committee on Appraisal of
the province of Pampanga informing, among others, that in
the year 1959 the land of Castellvi could be sold for from
P3.00 to P4.00 per square meter, while the land of Toledo-
Gozun could be sold for from P2.50 to P3.00 per square
meter. The Court has weighed all the circumstances
relating to this expropriations proceedings, and in fixing the
price of the lands that are being expropriated the Court
arrived at a happy medium between the price as
recommended by the commissioners and approved by the
court, and the price advocated by the Republic. This Court
has also taken judicial notice of the fact that the value of
the Philippine peso has considerably gone down since the
year 1959. 30 Considering that the lands of Castellvi and
Toledo-Gozun are adjoining each other, and are of the
same nature, the Court has deemed it proper to fix the
same price for all these lands.
3. The third issue raised by the Republic
relates to the payment of interest. The
Republic maintains that the lower court erred
when it ordered the Republic to pay Castellvi
interest at the rate of 6% per annum on the
total amount adjudged as the value of the land
of Castellvi, from July 1, 1956 to July 10, 1959.
We find merit in this assignment of error.
In ordering the Republic to pay 6% interest on the total
value of the land of Castellvi from July 1, 1956 to July 10,
1959, the lower court held that the Republic had illegally
possessed the land of Castellvi from July 1, 1956, after its
lease of the land had expired on June 30, 1956, until
August 10, 1959 when the Republic was placed in
possession of the land pursuant to the writ of possession
issued by the court. What really happened was that the
Republic continued to occupy the land of Castellvi after the
expiration of its lease on June 30, 1956, so much so that
Castellvi filed an ejectment case against the Republic in
the Court of First Instance of Pampanga. 31 However, while
that ejectment case was pending, the Republic filed the
complaint for eminent domain in the present case and was
placed in possession of the land on August 10, 1959, and
because of the institution of the expropriation proceedings
the ejectment case was later dismissed. In the order
dismissing the ejectment case, the Court of First Instance
of Pampanga said:
 Plaintiff has agreed, as a matter of fact has
already signed an agreement with defendants,
whereby she had agreed to receive the rent of
the lands, subject matter of the instant case
from June 30, 1956 up to 1959 when the
Philippine Air Force was placed in possession
by virtue of an order of the Court upon
depositing the provisional amount as fixed by
the Provincial Appraisal Committee with the
Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30,
1956 to August 10, 1959, she should be considered as
having allowed her land to be leased to the Republic until
August 10, 1959, and she could not at the same time be
entitled to the payment of interest during the same period
on the amount awarded her as the just compensation of
her land. The Republic, therefore, should pay Castellvi
interest at the rate of 6% per annum on the value of her
land, minus the provisional value that was deposited, only
from July 10, 1959 when it deposited in court the
provisional value of the land.
4. The fourth error assigned by the Republic relates to the
denial by the lower court of its motion for a new trial based
on nearly discovered evidence. We do not find merit in this
assignment of error.
After the lower court had decided this case on May 26,
1961, the Republic filed a motion for a new trial,
supplemented by another motion, both based upon the
ground of newly discovered evidence. The alleged newly
discovered evidence in the motion filed on June 21, 1961
was a deed of absolute sale-executed on January 25,
1961, showing that a certain Serafin Francisco had sold to
Pablo L. Narciso a parcel of sugar land having an area of
100,000 square meters with a sugar quota of 100 piculs,
covered by P.A. No. 1701, situated in Barrio Fortuna,
Floridablanca, for P14,000, or P.14 per square meter.
In the supplemental motion, the alleged newly discovered
evidence were: (1) a deed of sale of some 35,000 square
meters of land situated at Floridablanca for P7,500.00 (or
about P.21 per square meter) executed in July, 1959, by
the spouses Evelyn D. Laird and Cornelio G. Laird in favor
of spouses Bienvenido S. Aguas and Josefina Q. Aguas;
and (2) a deed of absolute sale of a parcel of land having
an area of 4,120,101 square meters, including the sugar
quota covered by Plantation Audit No. 161 1345, situated
at Floridablanca, Pampanga, for P860.00 per hectare (a
little less than P.09 per square meter) executed on October
22, 1957 by Jesus Toledo y Mendoza in favor of the Land
Tenure Administration.
We find that the lower court acted correctly when it denied
the motions for a new trial.
To warrant the granting of a new trial based on the ground
of newly discovered evidence, it must appear that the
evidence was discovered after the trial; that even with the
exercise of due diligence, the evidence could not have
been discovered and produced at the trial; and that the
evidence is of such a nature as to alter the result of the
case if admitted. 32 The lower court correctly ruled that
these requisites were not complied with.
The lower court, in a well-reasoned order, found that the
sales made by Serafin Francisco to Pablo Narciso and that
made by Jesus Toledo to the Land Tenure Administration
were immaterial and irrelevant, because those sales
covered sugarlands with sugar quotas, while the lands
sought to be expropriated in the instant case are residential
lands. The lower court also concluded that the land sold by
the spouses Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain
proceedings, in order that evidence as to the sale price of
other lands may be admitted in evidence to prove the fair
market value of the land sought to be expropriated, the
lands must, among other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands
mentioned in those deeds of sale were residential, the
evidence would still not warrant the grant of a new trial, for
said evidence could have been discovered and produced
at the trial, and they cannot be considered newly
discovered evidence as contemplated in Section 1(b) of
Rule 37 of the Rules of Court. Regarding this point, the trial
court said:
The Court will now show that there was no
reasonable diligence employed.
The land described in the deed of sale
executed by Serafin Francisco, copy of which
is attached to the original motion, is covered
by a Certificate of Title issued by the Office of
the Register of Deeds of Pampanga. There is
no question in the mind of the court but this
document passed through the Office of the
Register of Deeds for the purpose of
transferring the title or annotating the sale on
the certificate of title. It is true that Fiscal
Lagman went to the Office of the Register of
Deeds to check conveyances which may be
presented in the evidence in this case as it is
now sought to be done by virtue of the motions
at bar, Fiscal Lagman, one of the lawyers of
the plaintiff, did not exercise reasonable
diligence as required by the rules. The
assertion that he only went to the office of the
Register of Deeds 'now and then' to check the
records in that office only shows the half-
hazard [sic] manner by which the plaintiff
looked for evidence to be presented during the
hearing before the Commissioners, if it is at all
true that Fiscal Lagman did what he is
supposed to have done according to Solicitor
Padua. It would have been the easiest matter
for plaintiff to move for the issuance of a
subpoena duces tecum directing the Register
of Deeds of Pampanga to come to testify and
to bring with him all documents found in his
office pertaining to sales of land in
Floridablanca adjacent to or near the lands in
question executed or recorded from 1958 to
the present. Even this elementary precaution
was not done by plaintiff's numerous
attorneys.
The same can be said of the deeds of sale
attached to the supplementary motion. They
refer to lands covered by certificate of title
issued by the Register of Deeds of Pampanga.
For the same reason they could have been
easily discovered if reasonable diligence has
been exerted by the numerous lawyers of the
plaintiff in this case. It is noteworthy that all
these deeds of sale could be found in several
government offices, namely, in the Office of
the Register of Deeds of Pampanga, the Office
of the Provincial Assessor of Pampanga, the
Office of the Clerk of Court as a part of notarial
reports of notaries public that acknowledged
these documents, or in the archives of the
National Library. In respect to Annex 'B' of the
supplementary motion copy of the document
could also be found in the Office of the Land
Tenure Administration, another government
entity. Any lawyer with a modicum of ability
handling this expropriation case would have
right away though [sic] of digging up
documents diligently showing conveyances of
lands near or around the parcels of land
sought to be expropriated in this case in the
offices that would have naturally come to his
mind such as the offices mentioned above,
and had counsel for the movant really
exercised the reasonable diligence required by
the Rule' undoubtedly they would have been
able to find these documents and/or caused
the issuance of subpoena duces tecum. ...
It is also recalled that during the hearing
before the Court of the Report and
Recommendation of the Commissioners and
objection thereto, Solicitor Padua made the
observation:
I understand, Your Honor, that there was a
sale that took place in this place of land
recently where the land was sold for P0.20
which is contiguous to this land.
The Court gave him permission to submit said
document subject to the approval of the Court.
... This was before the decision was rendered,
and later promulgated on May 26, 1961 or
more than one month after Solicitor Padua
made the above observation. He could have,
therefore, checked up the alleged sale and
moved for a reopening to adduce further
evidence. He did not do so. He forgot to
present the evidence at a more propitious
time. Now, he seeks to introduce said
evidence under the guise of newly-discovered
evidence. Unfortunately the Court cannot
classify it as newly-discovered evidence,
because tinder the circumstances, the correct
qualification that can be given is 'forgotten
evidence'. Forgotten however, is not newly-
discovered
evidence. 33
The granting or denial of a motion for new trial is, as a
general rule, discretionary with the trial court, whose
judgment should not be disturbed unless there is a clear
showing of abuse of discretion. 34 We do not see any abuse
of discretion on the part of the lower court when it denied
the motions for a new trial.
WHEREFORE, the decision appealed from is modified, as
follows:
(a) the lands of appellees Carmen Vda. de
Castellvi and Maria Nieves Toledo-Gozun, as
described in the complaint, are declared
expropriated for public use;
(b) the fair market value of the lands of the
appellees is fixed at P5.00 per square meter;
(c) the Republic must pay appellee Castellvi
the sum of P3,796,495.00 as just
compensation for her one parcel of land that
 has an area of 759,299 square meters, minus
the sum of P151,859.80 that she withdrew out
of the amount that was deposited in court as
the provisional value of the land, with interest
at the rate of 6% per annum from July 10,
1959 until the day full payment is made or
deposited in court;
(d) the Republic must pay appellee Toledo-
Gozun the sum of P2,695,225.00 as the just
compensation for her two parcels of land that
have a total area of 539,045 square meters,
minus the sum of P107,809.00 that she
withdrew out of the amount that was deposited
in court as the provisional value of her lands,
with interest at the rate of 6%, per annum from
July 10, 1959 until the day full payment is
made or deposited in court; (e) the attorney's
lien of Atty. Alberto Cacnio is enforced; and
(f) the costs should be paid by appellant
Republic of the Philippines, as provided in
Section 12, Rule 67, and in Section 13, Rule
141, of the Rules of Court.
IT IS SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26400 February 29, 1972
VICTORIA AMIGABLE, plaintiff-appellant,
vs.
NICOLAS CUENCA, as Commissioner of Public
Highways and REPUBLIC OF THE
PHILIPPINES, defendants-appellees.
MAKALINTAL, J.:p
This is an appeal from the decision of the Court of First Instance of Cebu in its Civil Case No. R-5977,
dismissing the plaintiff's complaint.
Victoria Amigable, the appellant herein, is the registered
owner of Lot No. 639 of the Banilad Estate in Cebu City as
shown by Transfer Certificate of Title No. T-18060, which
superseded Transfer Certificate of Title No. RT-3272 (T-
3435) issued to her by the Register of Deeds of Cebu on
February 1, 1924. No annotation in favor of the government
of any right or interest in the property appears at the back
of the certificate. Without prior expropriation or negotiated
sale, the government used a portion of said lot, with an
area of 6,167 square meters, for the construction of the
Mango and Gorordo Avenues.
It appears that said avenues were already existing in 1921
although "they were in bad condition and very narrow,
unlike the wide and beautiful avenues that they are now,"
and "that the tracing of said roads was begun in 1924, and
the formal construction in
1925." *
On March 27, 1958 Amigable's counsel wrote the President of the Philippines, requesting payment of
the portion of her lot which had been appropriated by the government. The claim was indorsed to the
Auditor General, who disallowed it in his 9th Indorsement dated December 9, 1958. A copy of said
indorsement was transmitted to Amigable's counsel by the Office of the President on January 7, 1959.
On February 6, 1959 Amigable filed in the court a quo a
complaint, which was later amended on April 17, 1959
upon motion of the defendants, against the Republic of the
Philippines and Nicolas Cuenca, in his capacity as
Commissioner of Public Highways for the recovery of
ownership and possession of the 6,167 square meters of
land traversed by the Mango and Gorordo Avenues. She
also sought the payment of compensatory damages in the
sum of P50,000.00 for the illegal occupation of her land,
moral damages in the sum of P25,000.00, attorney's fees
in the sum of P5,000.00 and the costs of the suit.
Within the reglementary period the defendants filed a joint
answer denying the material allegations of the complaint
and interposing the following affirmative defenses, to wit:
(1) that the action was premature, the claim not having
been filed first with the Office of the Auditor General; (2)
that the right of action for the recovery of any amount which
might be due the plaintiff, if any, had already prescribed;
(3) that the action being a suit against the Government, the
claim for moral damages, attorney's fees and costs had no
valid basis since as to these items the Government had not
given its consent to be sued; and (4) that inasmuch as it
was the province of Cebu that appropriated and used the
area involved in the construction of Mango Avenue, plaintiff
had no cause of action against the defendants.
During the scheduled hearings nobody appeared for the
defendants notwithstanding due notice, so the trial court
proceeded to receive the plaintiff's evidence ex parte. On
July 29, 1959 said court rendered its decision holding that it
had no jurisdiction over the plaintiff's cause of action for the
recovery of possession and ownership of the portion of her
lot in question on the ground that the government cannot
be sued without its consent; that it had neither original nor
appellate jurisdiction to hear, try and decide plaintiff's claim
for compensatory damages in the sum of P50,000.00, the
same being a money claim against the government; and
that the claim for moral damages had long prescribed, nor
did it have jurisdiction over said claim because the
government had not given its consent to be sued.
Accordingly, the complaint was dismissed. Unable to
secure a reconsideration, the plaintiff appealed to the Court
of Appeals, which subsequently certified the case to Us,
there being no question of fact involved.
The issue here is whether or not the appellant may
properly sue the government under the facts of the case.
In the case of Ministerio vs. Court of First Instance of
Cebu,1 involving a claim for payment of the value of a
portion of land used for the widening of the Gorordo
Avenue in Cebu City, this Court, through Mr. Justice
Enrique M. Fernando, held that where the government
takes away property from a private landowner for public
use without going through the legal process of
expropriation or negotiated sale, the aggrieved party may
properly maintain a suit against the government without
thereby violating the doctrine of governmental immunity
from suit without its consent. We there said: .
... . If the constitutional mandate that the owner
be compensated for property taken for public
use were to be respected, as it should, then a
suit of this character should not be summarily
dismissed. The doctrine of governmental
immunity from suit cannot serve as an
instrument for perpetrating an injustice on a
citizen. Had the government followed the
procedure indicated by the governing law at
the time, a complaint would have been filed by
it, and only upon payment of the compensation
fixed by the judgment, or after tender to the
party entitled to such payment of the amount
 fixed, may it "have the right to enter in and
upon the land so condemned, to appropriate
the same to the public use defined in the
judgment." If there were an observance of
procedural regularity, petitioners would not be
in the sad plaint they are now. It is unthinkable
then that precisely because there was a failure
to abide by what the law requires, the
government would stand to benefit. It is just as
important, if not more so, that there be fidelity
to legal norms on the part of officialdom if the
rule of law were to be maintained. It is not too
much to say that when the government takes
any property for public use, which is
conditioned upon the payment of just
compensation, to be judicially ascertained, it
makes manifest that it submits to the
jurisdiction of a court. There is no thought then
that the doctrine of immunity from suit could
still be appropriately invoked.
Considering that no annotation in favor of the government
appears at the back of her certificate of title and that she
has not executed any deed of conveyance of any portion of
her lot to the government, the appellant remains the owner
of the whole lot. As registered owner, she could bring an
action to recover possession of the portion of land in
question at anytime because possession is one of the
attributes of ownership. However, since restoration of
possession of said portion by the government is neither
convenient nor feasible at this time because it is now and
has been used for road purposes, the only relief available
is for the government to make due compensation which it
could and should have done years ago. To determine the
due compensation for the land, the basis should be the
price or value thereof at the time of the taking.2
As regards the claim for damages, the plaintiff is entitled
thereto in the form of legal interest on the price of the land
from the time it was taken up to the time that payment is
made by the government.3 In addition, the government
should pay for attorney's fees, the amount of which should
be fixed by the trial court after hearing.
WHEREFORE, the decision appealed from is hereby set
aside and the case remanded to the court a quo for the
determination of compensation, including attorney's fees, to
which the appellant is entitled as above indicated. No
pronouncement as to costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-119694 May 22, 1995
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf
of 139 members, represented by its President, Amado
P. Macasaet and its Executive Director Ermin F. Garcia,
Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this
Court assailing the constitutional validity of Resolution No.
2772 issued by respondent Commission on Elections
("Comelec") and its corresponding Comelec directive dated
22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit
organization of newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No.
2772, which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. — The
Commission shall procure free print space
of not less than one half (1/2) page in at least
one newspaper of general circulation in every
province or city for use as "Comelec
Space" from March 6, 1995 in the case of
candidates for senator and from March 21,
1995 until May 12, 1995. In the absence of
said newspaper, "Comelec Space" shall be
obtained from any magazine or periodical of
said province or city.
Sec. 3. Uses of Comelec Space. — "Comelec
Space" shall be allocated by the
Commission, free of charge, among all
candidates within the area in which the
newspaper, magazine or periodical is
circulated to enable the candidates to make
known their qualifications, their stand on public
issues and their platforms and programs of
government.
"Comelec Space" shall also be used by the
Commission for dissemination of vital election
information.
Sec. 4. Allocation of Comelec Space. — (a)
"Comelec Space" shall also be available to
all candidates during the periods stated in
Section 2 hereof. Its allocation shall be equal
and impartial among all candidates for the
same office. All candidates concerned shall be
furnished a copy of the allocation of "Comelec
Space" for their information, guidance and
compliance.
(b) Any candidate desiring to avail himself of
"Comelec Space" from newspapers or
publications based in the Metropolitan Manila
Area shall submit an application therefor, in
writing, to the Committee on Mass Media of
the Commission. Any candidate desiring to
avail himself of "Comelec Space" in
newspapers or publications based in the
provinces shall submit his application therefor,
in writing, to the Provincial Election Supervisor
concerned. Applications for availment of
"Comelec Space" maybe filed at any time from
the date of effectivity of this Resolution.
(c) The Committee on Mass Media and the
Provincial Election Supervisors shall allocate
available "Comelec Space" among the
candidates concerned by lottery of which said
candidates shall be notified in advance, in
writing, to be present personally or by
representative to witness the lottery at the
date, time and place specified in the notice.
 Any party objecting to the result of the lottery
may appeal to the Commission.
(d) The candidates concerned shall be notified
by the Committee on Mass Media or the
Provincial Election Supervisor, as the case
maybe, sufficiently in advance and in writing of
the date of issue and the newspaper or
publication allocated to him, and the time
within which he must submit the written
material for publication in the "Comelec
Space".
xxx xxx xxx
Sec. 8. Undue Reference to
Candidates/Political Parties in Newspapers. —
No newspaper or publication shall allow to be
printed or published in the news, opinion,
features, or other sections of the newspaper or
publication accounts or comments which
manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring
to or including therein said candidate or
political party. However, unless the facts and
circumstances clearly indicate otherwise, the
Commission will respect the determination by
the publisher and/or editors of the newspapers
or publications that the accounts or views
published are significant, newsworthy and of
public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec
through Commissioner Regalado E. Maambong sent
identical letters, dated 22 March 1995, to various
publishers of newspapers like the Business World,
the Philippine Star, the Malaya and the Philippine Times
Journal, all members of PPI. These letters read as follows:
This is to advise you that pursuant to
Resolution No. 2772 of the Commission on
Elections, you are directed to provide free print
space of not less than one half (1/2) page for
use as "Comelec Space" or similar to the print
support which you have extended during the
May 11, 1992 synchronized elections which
was 2 full pages for each political party fielding
senatorial candidates, from March 6, 1995 to
May 6, 1995, to make known their
qualifications, their stand on public issues and
their platforms and programs of government.
We shall be informing the political parties and
candidates to submit directly to
you their pictures, biographical data, stand on
key public issues and platforms of
government either as raw data or in the form
of positives or camera-ready materials.
Please be reminded that the political
parties/candidates may be accommodated in
your publication any day upon receipt of their
materials until May 6, 1995 which is the last
day for campaigning.
We trust you to extend your full support and
cooperation in this regard. (Emphasis
supplied)
In this Petition for Certiorari and Prohibition with prayer for
the issuance of a Temporary Restraining Order, PPI asks
us to declare Comelec Resolution No. 2772
unconstitutional and void on the ground that it violates the
prohibition imposed by the Constitution upon the
government, and any of its agencies, against the taking of
private property for public use without just compensation.
Petitioner also contends that the 22 March 1995 letter
directives of Comelec requiring publishers to give free
"Comelec Space" and at the same time process raw data
to make it camera-ready, constitute impositions of
involuntary servitude, contrary to the provisions of Section
18 (2), Article III of the 1987 Constitution. Finally, PPI
argues that Section 8 of Comelec Resolution No. 2772 is
violative of the constitutionally guaranteed freedom of
speech, of the press and of expression.1
On 20 April 1995, this Court issued a Temporary
Restraining Order enjoining Comelec from enforcing and
implementing Section 2 of Resolution No. 2772, as well as
the Comelec directives addressed to various print media
enterprises all dated 22 March 1995. The Court also
required the respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on
behalf of respondent Comelec alleging that Comelec
Resolution No. 2772 does not impose upon the publishers
any obligation to provide free print space in the
newspapers as it does not provide any criminal or
administrative sanction for non-compliance with that
Resolution. According to the Solicitor General, the
questioned Resolution merely established guidelines to be
followed in connection with the procurement of "Comelec
space," the procedure for and mode of allocation of such
space to candidates and the conditions or requirements for
the candidate's utilization of the "Comelec space" procured.
At the same time, however, the Solicitor General argues
that even if the questioned Resolution and its implementing
letter directives are viewed as mandatory, the same would
nevertheless be valid as an exercise of the police power of
the State. The Solicitor General also maintains that Section
8 of Resolution No. 2772 is a permissible exercise of the
power of supervision or regulation of the Comelec over the
communication and information operations of print media
enterprises during the election period to safeguard and
ensure a fair, impartial and credible election.2
At the oral hearing of this case held on 28 April 1995,
respondent Comelec through its Chairman, Hon. Bernardo
Pardo, in response to inquiries from the Chief Justice and
other Members of the Court, stated that Resolution No.
2772, particularly Section 2 thereof and the 22 March 1995
letters dispatched to various members of petitioner PPI,
were not intended to compel those members to supply
Comelec with free print space. Chairman Pardo
represented to the Court that Resolution and the related
letter-directives were merely designed to solicit from the
publishers the same free print space which many
publishers had voluntarily given to Comelec during the
election period relating to the 11 May 1992 elections.
Indeed, the Chairman stated that the Comelec would, that
very afternoon, meet and adopt an appropriate amending
or clarifying resolution, a certified true copy of which would
forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the
Solicitor General a manifestation which attached a copy of
Comelec Resolution No. 2772-A dated 4 May 1995. The
operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers
vested in it by the Constitution, the Omnibus
Election Code, Republic Acts No. 6646 and
7166 and other election laws, the Commission
on Elections RESOLVED to clarify Sections 2 opinion, features or
and 8 of Res. No. 2772 as follows: other sections of their
respective
1. Section 2 of Res. publications or other
No. 2772 shall not be accounts or
construed to mean as comments, it being
requiring publishers clear from the last
of the different mass sentence of said
media print Section 8 that the
publications to Commission shall,
provide print space "unless the facts and
under pain of circumstances clearly
prosecution, whether indicate otherwise . .
administrative, civil or . respect the
criminal, there being determination by the
no sanction or publisher and/or
penalty for violation editors of the
of said Section newspapers or
provided for either in publications that the
said Resolution or in accounts or views
Section 90 of Batas published are
Pambansa Blg. 881, significant,
otherwise known as newsworthy and of
the Omnibus Election public interest."
Code, on the grant of
"Comelec space." This Resolution shall take effect upon
approval. (Emphasis in the original)
2. Section 8 of Res.
No. 2772 shall not be While, at this point, the Court could perhaps simply dismiss
construed to mean as the Petition for Certiorari and Prohibition as having become
constituting prior moot and academic, we consider it not inappropriate to
restraint on the part pass upon the first constitutional issue raised in this case.
of publishers with Our hope is to put this issue to rest and prevent its
respect to the printing resurrection.
or publication of
materials in the news,
Section 2 of Resolution No. 2772 is not a model of clarity in
expression. Section 1 of Resolution No. 2772-A did not try
to redraft Section 2; accordingly, Section 2 of Resolution
No. 2772 persists in its original form. Thus, we must point
out that, as presently worded, and in particular as
interpreted and applied by the Comelec itself in its 22
March 1995 letter-directives to newspaper publishers,
Section 2 of Resolution No. 2772 is clearly susceptible of
the reading that petitioner PPI has given it. That Resolution
No. 2772 does not, in express terms, threaten publishers
who would disregard it or its implementing letters with
some criminal or other sanction, does not by itself
demonstrate that the Comelec's original intention was
simply to solicit or request voluntary donations of print
space from publishers. A written communication
officially directing a print media company to supply free
print space, dispatched by a government (here a
constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is
bound to produce a coercive effect upon the company so
addressed. That the agency may not be legally authorized
to impose, or cause the imposition of, criminal or other
sanctions for disregard of such directions, only aggravates
the constitutional difficulties inhearing in the present
situation. The enactment or addition of such sanctions by
the legislative authority itself would be open to serious
constitutional objection.
To compel print media companies to donate "Comelec-
space" of the dimensions specified in Section 2 of
Resolution No. 2772 (not less than one-half page),
amounts to "taking" of private personal property for public
use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:"
only once during the period from 6 March 1995 (or 21
March 1995) until 12 May 1995? or everyday or once a
week? or as often as Comelec may direct during the same
period? The extent of the taking or deprivation is not
insubstantial; this is not a case of a de minimistemporary
limitation or restraint upon the use of private property. The
monetary value of the compulsory "donation," measured by
the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be
very substantial indeed.
The taking of print space here sought to be effected may
first be appraised under the rubric of expropriation of
private personal property for public use. The threshold
requisites for a lawful taking of private property for public
use need to be examined here: one is the necessity for the
taking; another is the legal authority to effect the taking.
The element of necessity for the taking has not been
shown by respondent Comelec. It has not been suggested
that the members of PPI are unwilling to sell print space at
their normal rates to Comelec for election purposes.
Indeed, the unwillingness or reluctance of Comelec to
buy print space lies at the heart of the problem. 3 Similarly,
it has not been suggested, let alone demonstrated, that
Comelec has been granted the power of eminent domain
either by the Constitution or by the legislative authority. A
reasonable relationship between that power and the
enforcement and administration of election laws by
Comelec must be shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not
contested by petitioner PPI. We note only that, under
Section 3 of Resolution No. 2772, the free "Comelec
space" sought by the respondent Commission would be
used not only for informing the public about the identities,
qualifications and programs of government of candidates
for elective office but also for "dissemination of vital
election information" (including, presumably, circulars,
regulations, notices, directives, etc. issued by Comelec). It
seems to the Court a matter of judicial notice that
government offices and agencies (including the Supreme
Court) simply purchase print space, in the ordinary course
of events, when their rules and regulations, circulars,
notices and so forth need officially to be brought to the
attention of the general public.
The taking of private property for public use is, of course,
authorized by the Constitution, but not without payment of
"just compensation" (Article III, Section 9). And apparently
the necessity of paying compensation for "Comelec space"
is precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is
read as petitioner PPI reads it, as an assertion of authority
to require newspaper publishers to "donate" free print
space for Comelec purposes, or as an exhortation, or
perhaps an appeal, to publishers to donate free print
space, as Section 1 of Resolution No. 2772-A attempts to
suggest. There is nothing at all to prevent newspaper and
magazine publishers from voluntarily giving free print space
to Comelec for the purposes contemplated in Resolution
No. 2772. Section 2 of Resolution No. 2772 does not,
however, provide a constitutional basis for compelling
publishers, against their will, in the kind of factual context
here present, to provide free print space for Comelec
purposes. Section 2 does not constitute a valid exercise of
the power of eminent domain.
We would note that the ruling here laid down by the Court
is entirely in line with the theory of democratic
representative government. The economic costs of
informing the general public about the qualifications and
programs of those seeking elective office are most
appropriately distributed as widely as possible throughout
our society by the utilization of public funds, especially
funds raised by taxation, rather than cast solely on one
small sector of society, i.e., print media enterprises. The
benefits which flow from a heightened level of information
on and the awareness of the electoral process are
commonly thought to be community-wide; the burdens
should be allocated on the same basis.
As earlier noted, the Solicitor General also contended that
Section 2 of Resolution No. 2772, even if read as
compelling publishers to "donate" "Comelec space, " may
be sustained as a valid exercise of the police power of the
state. This argument was, however, made too casually to
require prolonged consideration on our part. Firstly, there
was no effort (and apparently no inclination on the part of
Comelec) to show that the police power — essentially a
power of legislation — has been constitutionally delegated
to respondent Commission.4 Secondly, while private
property may indeed be validly taken in the legitimate
exercise of the police power of the state, there was no
attempt to show compliance in the instant case with the
requisites of a lawful taking under the police power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy
instrument that purports, without a showing of existence of
a national emergency or other imperious public necessity,
indiscriminately and without regard to the individual
business condition of particular newspapers or magazines
located in differing parts of the country, to take private
property of newspaper or magazine publishers. No attempt
was made to demonstrate that a real and palpable or
urgent necessity for the taking of print space confronted the
Comelec and that Section 2 of Resolution No. 2772 was
itself the only reasonable and calibrated response to such
necessity available to the Comelec. Section 2 does not
constitute a valid exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs
to be quoted in full again:
Sec. 8. Undue Reference to
Candidates/Political Parties in Newspapers. —
No newspaper or publication shall allow to be
printed or published in the news, opinion,
features, or other sections of the newspaper or
publication accounts or comments which
manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring
to or including therein said candidate or
political party. However, unless the facts and
circumstances clearly indicate otherwise, the
Commission will respect the determination by
the publisher and/or editors of the newspapers
or publications that the accounts or views
published are significant, newsworthy and of
public interest.
It is not easy to understand why Section 8 was included at
all in Resolution No. 2772. In any case, Section 8 should
be viewed in the context of our decision in National Press
Club v. Commission on Elections. 6 There the Court
sustained the constitutionality of Section 11 (b) of R.A. No.
6646, known as the Electoral Reforms Law of 1987, which
prohibits the sale or donation of print space and airtime for
campaign or other political purposes, except to the
Comelec. In doing so, the Court carefully distinguished
(a) paid political advertisements which are reached by the
prohibition of Section 11 (b), from (b) the reporting of news,
commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or
columnists which fall outside the scope of Section 11 (b)
and which are protected by the constitutional guarantees of
freedom of speech and of the press:
Secondly, and more importantly, Section 11
(b) is limited in its scope of application.
Analysis of Section 11 (b) shows that
it purports to apply only to the purchase and
sale, including purchase and sale disguised as
a donation, of print space and air time for
campaign or other political purposes. Section
11 (b) does not purport in any way to
restrict the reporting by
newspapers or radio or television stations of
news or news-worthy events relating to
candidates, their qualifications, political parties
and programs of government.
Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or
opinion by reporters or broadcaster or editors
or commentators or columnists in respect of
candidates, their qualifications, and programs
and so forth, so long at least as such
comments, opinions and beliefs are not in fact
advertisements for particular candidates
covertly paid for. In sum, Section 11 (b) is not
to be read as reaching any report or
commentary or other coverage that, in
responsible media, is not paid for by
candidates for political office. We read Section
11 (b) as designed to cover only paid political
advertisements of particular candidates.
The above limitation in scope of application of
Section 11 (b) — that it does not restrict either
the reporting of or the expression of belief or
opinion or comment upon the qualifications
and programs and activities of any and all
candidates for office — constitutes the critical
distinction which must be made between the
 instant case and that of Sanidad v.
Commission on Elections. . . . 7 (Citations
omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent the
effort of the Comelec to establish a guideline for
implementation of the above-quoted distinction and
doctrine in National Press Club an effort not blessed with
evident success. Section 2 of Resolution No. 2772-A while
possibly helpful, does not add substantially to the utility of
Section 8 of Resolution No. 2772. The distinction between
paid political advertisements on the one hand and news
reports, commentaries and expressions of belief or opinion
by reporters, broadcasters, editors, etc. on the other hand,
can realistically be given operative meaning only in actual
cases or controversies, on a case-to-case basis, in terms
of very specific sets of facts.
At all events, the Court is bound to note that PPI has failed
to allege any specific affirmative action on the part of
Comelec designed to enforce or implement Section 8. PPI
has not claimed that it or any of its members has sustained
actual or imminent injury by reason of Comelec action
under Section 8. Put a little differently, the Court considers
that the precise constitutional issue here sought to be
raised — whether or not Section 8 of Resolution No. 2772
constitutes a permissible exercise of the Comelec's power
under Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or
utilization of all franchise or permits for the
operation of — media of communication or
information — [for the purpose of ensuring]
equal opportunity, time and space, and the
right of reply, including reasonable, equal rates
therefore, for public information campaigns
and forums among candidates in connection
with the objective of holding free, orderly
honest, peaceful and credible elections —
is not ripe for judicial review for lack of an actual case or
controversy involving, as the very lis mota thereof, the
constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and
as interpreted by Comelec in its 22 March 1995 letter
directives, purports to require print media enterprises to
"donate" free print space to Comelec. As such, Section 2
suffers from a fatal constitutional vice and must be set
aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No.
2772, the Petition for Certiorari and Prohibition must be
dismissed for lack of an actual, justiciable case or
controversy.
WHEREFORE, for all the foregoing, the Petition
for Certiorari and Prohibition is GRANTED in part and
Section 2 of Resolution No. 2772 in its present form and
the related letter-directives dated 22 March 1995 are
hereby SET ASIDE as null and void, and the Temporary
Restraining Order is hereby MADE PERMANENT. The
Petition is DISMISSED in part, to the extent it relates to
Section 8 of Resolution No. 2772. No pronouncement as to
costs.
Republic of the Philippines
SUPREME COURT
Manila
 EN BANC On January 17, 1978, respondent Judge issued the
following Order:
G.R. No. L-48685 September 30, 1987
Plaintiff having deposited with the Philippine
LORENZO SUMULONG and EMILIA VIDANES- National Bank, Heart Center Extension Office,
BALAOING, petitioners, Diliman, Quezon City, Metro Manila, the
vs. amount of P158,980.00 representing the total
HON. BUENAVENTURA GUERRERO and NATIONAL market value of the subject parcels of land, let
HOUSING AUTHORITY, respondents. a writ of possession be issued.

SO ORDERED.

CORTES, J.: Pasig, Metro Manila, January 17, 1978.

On December 5, 1977 the National Housing Authority (

(NIIA) filed a complaint for expropriation of parcels of land S
covering approximately twenty five (25) hectares, (in G
Antipolo, Rizal) including the lots of petitioners Lorenzo D
Sumulong and Emilia Vidanes-Balaoing with an area of )
6,667 square meters and 3,333 square meters
respectively. The land sought to be expropriated were B
valued by the NHA at one peso (P1.00) per square meter U
adopting the market value fixed by the provincial assessor E
in accordance with presidential decrees prescribing the N
valuation of property in expropriation proceedings. A
V
Together with the complaint was a motion for immediate E
possession of the properties. The NHA deposited the N
amount of P158,980.00 with the Philippine National Bank, T
representing the "total market value" of the subject twenty U
five hectares of land, pursuant to Presidential Decree No. R
1224 which defines "the policy on the expropriation of A
private property for socialized housing upon payment of
just compensation." S
.
 G a) The Decree would allow the
U taking of property regardless of
E size and no matter how small the
R area to be expropriated;
R
E b) "Socialized housing" for the
R purpose of condemnation
O proceeding, as defined in said
Decree, is not really for a public
J purpose;
u
d c) The Decree violates procedural
g due process as it allows
e immediate taking of possession,
control and disposition of property
Petitioners filed a motion for reconsideration on the ground without giving the owner his day in
that they had been deprived of the possession of their court;
property without due process of law. This was however,
denied. d) The Decree would allow the
taking of private property upon
Hence, this petition challenging the orders of respondent payment of unjust and unfair
Judge and assailing the constitutionality of Pres. Decree valuations arbitrarily fixed by
No. 1224, as amended. Petitioners argue that: government assessors;

1) Respondent Judge acted without or in e) The Decree would deprive the

excess of his jurisdiction or with grave abuse
of discretion by issuing the Order of January
17, 1978 without notice and without hearing
and in issuing the Order dated June 28, 1978
denying the motion for reconsideration.
2) Pres. Decree l224, as amended, is
unconstitutional for being violative of the due
process clause, specifically:
courts of their judicial discretion to
determine what would be the "just
compensation" in each and every
raise of expropriation.
Indeed, the exercise of the power of eminent domain is
subject to certain limitations imposed by the constitution, to
wit:
Private property shall not be taken for public
use without just compensation (Art. IV, Sec. 9);
 No person shall be deprived of life, liberty, or
property without due process of law, nor shall
any person be denied the equal protection of
the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to
be established for this Court to nullify legislative or
executive measures adopted to implement specific
constitutional provisions aimed at promoting the general
welfare.
Petitioners' objections to the taking of their property
subsumed under the headings of public use, just
compensation, and due process have to be balanced
against competing interests of the public recognized and
sought to be served under declared policies of the
constitution as implemented by legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in
Pres. Decree No. 1224, as amended, for the purpose of
condemnation proceedings is not "public use" since it will
benefit only "a handful of people, bereft of public
character."
"Socialized housing" is defined as, "the construction of
dwelling units for the middle and lower class members of
our society, including the construction of the supporting
infrastructure and other facilities" (Pres. Decree No. 1224,
par. 1). This definition was later expanded to include
among others:
The "public use" requirement for a and exercise of the
power of eminent domain is a flexible and evolving concept
a) The construction and/or improvement of
dwelling units for the middle and lower income
groups of the society, including the
construction of the supporting infrastructure
and other facilities;
b) Slum clearance, relocation and resettlement
of squatters and slum dwellers as well as the
provision of related facilities and services;
c) Slum improvement which consists basically
of allocating homelots to the dwellers in the
area or property involved, rearrangemeant and
re-alignment of existing houses and other
dwelling structures and the construction and
provision of basic community facilities and
services, where there are none, such as roads,
footpaths, drainage, sewerage, water and
power system schools, barangay centers,
community centers, clinics, open spaces,
parks, playgrounds and other recreational
facilities;
d) The provision of economic opportunities,
including the development of commercial and
industrial estates and such other facilities to
enhance the total community growth; and
e) Such other activities undertaken in
pursuance of the objective to provide and
maintain housing for the greatest number of
people under Presidential Decree No, 757,
(Pres. Decree No. 1259, sec. 1)
influenced by changing conditions. In this jurisdiction, the
statutory and judicial trend has been summarized as
follows:
The taking to be valid must be for public use.
There was a time when it was felt that a literal
meaning should be attached to such a
requirement. Whatever project is undertaken
must be for the public to enjoy, as in the case
of streets or parks. Otherwise, expropriation is
not allowable. It is not anymore. As long as the
purpose of the taking is public, then the power
of eminent domain comes into play. As just
noted, the constitution in at least two cases, to
remove any doubt, determines what is public
use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to
individuals. The other is in the transfer,
through the exercise of this power, of utilities
and other private enterprise to the
government. It is accurate to state then that at
present whatever may be beneficially
employed for the general welfare satisfies the
requirement of public use [Heirs of Juancho
Ardona v. Reyes, G.R. Nos. 60549, 60553-
60555 October 26, 1983, 125 SCRA 220
(1983) at 234-5 quoting E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 523-
4, (2nd ed., 1977) Emphasis supplied].
The term "public use" has acquired a more comprehensive
coverage. To the literal import of the term signifying strict
use or employment by the public has been added the
broader notion of indirect public benefit or advantage. As
discussed in the above cited case of Heirs of Juancho
Ardona:
The restrictive view of public use may be
appropriate for a nation which circumscribes
the scope of government activities and public
concerns and which possesses big and
correctly located public lands that obviate the
need to take private property for public
purposes. Neither circumstance applies to the
Philippines. We have never been a laissez
faire State. And the necessities which impel
the exertion of sovereign power are all too
often found in areas of scarce public land or
limited government resources. (p. 231)
Specifically, urban renewal or redevelopment and the
construction of low-cost housing is recognized as a public
purpose, not only because of the expanded concept of
public use but also because of specific provisions in the
Constitution. The 1973 Constitution made it incumbent
upon the State to establish, maintain and ensure adequate
social services including housing [Art. 11, sec. 7]. The 1987
Constitution goes even further by providing that:
The State shall promote a just and dynamic
social order that will ensure the prosperity and
independence of the nation and free the
people from poverty through policies that
provide adequate social services, promote full
employment, a rising standard of living and an
improved quality of life for all. [Art. II, sec. 9]
The state shall by law, and for the common
good, undertake, in cooperation with the
private sector, a continuing program of urban
land reform and housing which will make
available at affordable cost decent housing
and basic services to underprivileged and
 homeless citizens in urban centers and
resettlement areas. It shall also promote
adequate employment opportunities to such
citizens. In the implementation of such
program the State shall respect the rights of
small property owners. (Art. XIII, sec. 9,
Emphaisis supplied)
Housing is a basic human need. Shortage in housing is a
matter of state concern since it directly and significantly
affects public health, safety, the environment and in sum,
the general welfare. The public character of housing
measures does not change because units in housing
projects cannot be occupied by all but only by those who
satisfy prescribed qualifications. A beginning has to be
made, for it is not possible to provide housing for are who
need it, all at once.
Population growth, the migration to urban areas and the
mushrooming of crowded makeshift dwellings is a
worldwide development particularly in developing
countries. So basic and urgent are housing problems that
the United Nations General Assembly proclaimed 1987 as
the "International Year of Shelter for the Homeless" "to
focus the attention of the international community on those
problems". The General Assembly is Seriously concerned
that, despite the efforts of Governments at the national and
local levels and of international organizations, the driving
conditions of the majority of the people in slums and
squatter areas and rural settlements, especially in
developing countries, continue to deteriorate in both
relative and absolute terms." [G.A. Res. 37/221, Yearbook
of the United Nations 1982, Vol. 36, p. 1043-4]
In the light of the foregoing, this Court is satisfied that
"socialized housing" fans within the confines of "public
use". It is, particularly important to draw attention to
paragraph (d) of Pres. Dec. No. 1224 which opportunities
inextricably linked with low-cost housing, or slum
clearance, relocation and resettlement, or slum
improvement emphasize the public purpose of the project.
In the case at bar, the use to which it is proposed to put the
subject parcels of land meets the requisites of "public use".
The lands in question are being expropriated by the NHA
for the expansion of Bagong Nayon Housing Project to
provide housing facilities to low-salaried government
employees. Quoting respondents:
1. The Bagong Nayong Project is a housing
and community development undertaking of
the National Housing Authority. Phase I covers
about 60 hectares of GSIS property in
Antipolo, Rizal; Phase II includes about 30
hectares for industrial development and the
rest are for residential housing development.
It is intended for low-salaried government
employees and aims to provide housing and
community services for about 2,000 families in
Phase I and about 4,000 families in Phase II.
It is situated on rugged terrain 7.5 kms. from
Marikina Town proper; 22 Kms. east of Manila;
and is within the Lungs Silangan Townsite
Reservation (created by Presidential
Proclamation No. 1637 on April 18, 1977).
The lands involved in the present petitions are
parts of the expanded/additional areas for the
Bagong Nayon Project totalling 25.9725
 hectares. They likewise include raw, rolling
hills. (Rollo, pp. 266-7)
The acute shortage of housing units in the country is of
public knowledge. Official data indicate that more than one
third of the households nationwide do not own their
dwelling places. A significant number live in dwellings of
unacceptable standards, such as shanties, natural shelters,
and structures intended for commercial, industrial, or
agricultural purposes. Of these unacceptable dwelling
units, more than one third is located within the National
Capital Region (NCR) alone which lies proximate to and is
expected to be the most benefited by the housing project
involved in the case at bar [See, National Census and
Statistics Office, 1980 Census of Population and Housing].
According to the National Economic and Development
Authority at the time of the expropriation in question, about
"50 per cent of urban families, cannot afford adequate
shelter even at reduced rates and will need government
support to provide them with social housing, subsidized
either partially or totally" [NEDA, FOUR YEAR
DEVELOPMENT PLAN For 1974-1977, p. 357]. Up to the
present, housing some remains to be out of the reach of a
sizable proportion of the population" [NEDA, MEDIUM-
TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, p.
240].
The mushrooming of squatter colonies in the Metropolitan
Manila area as well as in other cities and centers of
population throughout the country, and, the efforts of the
government to initiate housing and other projects are
matters of public knowledge [See NEDA, FOUR YEAR
DEVELOPMENT PLAN For 1974-1977, pp. 357-361;
NEDA, FIVE-YEAR PHILIPPINE DEVELOPMENT PLAN
1978-1982, pp. 215-228 NEDA, FIVE YEAR PHILIPPINE
DEVELOPMENT PLAN 1983-1987, pp. 109-117; NEDA,
MEDIUM TERM PHILIPPINE DEVELOPMENT PLAN
1987-1992, pp. 240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as
amended, would allow the taking of "any private land"
regardless of the size and no matter how small the area of
the land to be expropriated. Petitioners claim that "there
are vast areas of lands in Mayamot, Cupang, and San
Isidro, Antipolo, Rizal hundred of hectares of which are
owned by a few landowners only. It is surprising [therefore]
why respondent National Housing Authority [would] include
[their] two man lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure
Administration [G. R. No. L-21064, February 18, 1970, 31
SCRA 413 (1970) at 428] this Court earlier ruled that
expropriation is not confined to landed estates. This Court,
quoting the dissenting opinion of Justice J.B.L. Reyes
in Republic vs. Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of
eminent domain under Article XIII, section 4 of
our Constitution cannot be determined on a
purely quantitative or area basis. Not only
does the constitutional provision speak of
lands instead of landed estates, but I see no
cogent reason why the government, in its
quest for social justice and peace, should
exclusively devote attention to conflicts of
large proportions, involving a considerable
number of individuals, and eschew small
controversies and wait until they grow into a
major problem before taking remedial action.
The said case of J.M. Tuason Co., Inc. departed from the
ruling in Guido vs. Rural Progress Administration [84 Phil.
847 (1949)] which held that the test to be applied for a valid
expropriation of private lands was the area of the land and
not the number of people who stood to be benefited. Since
then "there has evolved a clear pattern of adherence to the
"number of people to be benefited test" " [Mataas na Lupa
Tenants Association, Inc. v. Dimayuga, G.R. No. 32049,
June 25,1984, 130 SCRA 30 (1984) at 39]. Thus, in Pulido
vs. Court of Appeals [G.R. No. 57625, May 3, 1983, 122
SCRA 63 (1983) at 73], this Court stated that, "[i]t is
unfortunate that the petitioner would be deprived of his
landholdings, but his interest and that of his family should
not stand in the way of progress and the benefit of the
greater may only of the inhabitants of the country."
The State acting through the NHA is vested with broad
discretion to designate the particular property/properties to
be taken for socialized housing purposes and how much
thereof may be expropriated. Absent a clear showing of
fraud, bad faith, or gross abuse of discretion, which
petitioners herein failed to demonstrate, the Court will give
due weight to and leave undisturbed the NHA's choice and
the size of the site for the project. The property owner may
not interpose objections merely because in their judgment
some other property would have been more suitable, or
just as suitable, for the purpose. The right to the use,
enjoyment and disposal of private property is tempered by
and has to yield to the demands of the common good. The
Constitutional provisions on the subject are clear:
The State shall promote social justice in all
phases of national development. (Art. II, sec.
10)
The Congress shall give highest priority to the
enactment of measures that protect and
enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by
equitably diffusing wealth and political power
for the common good. To this end, the State
shall regulate the acquisition, ownership, use
and disposition of property and its increments.
(Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of
the provisions in the 1935 and 1973 Constitutions,
emphasize:
...the stewardship concept, under which
private property is supposed to be held by the
individual only as a trustee for the people in
general, who are its real owners. As a mere
steward, the individual must exercise his rights
to the property not for his own exclusive and
selfish benefit but for the good of the entire
community or nation [Mataas na Lupa Tenants
Association, Inc. supra at 42-3 citing I. CRUZ,
PHILIPPINE POLITICAL LAW, 70 (1983 ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as
amended, would allow the taking of private property upon
payment of unjust and unfair valuations arbitrarily fixed by
government assessors. In addition, they assert that the
Decree would deprive the courts of their judicial discretion
to determine what would be "just compensation".
The foregoing contentions have already been ruled upon
by this Court in the case of Ignacio vs. Guerrero (G.R. No.
L-49088, May 29, 1987) which, incidentally, arose from the
same expropriation complaint that led to this instant
petition. The provisions on just compensation found in
Presidential Decree Nos. 1224, 1259 and 1313 are the
same provisions found in Presidential Decree Nos. 76, 464,
794 and 1533 which were declared unconstitutional
in Export Processing Zone All thirty vs. Dulay (G.R. No.
5960 April 29, 1987) for being encroachments on
prerogatives.
This Court abandoned the ruling in National Housing
Authority vs. Reyes [G.R. No. 49439, June 29,1983, 123
SCRA 245 (1983)] which upheld Pres. Decree No. 464, as
amended by - Presidential Decree Nos. 794, 1224 and
1259.
In said case of Export Processing Zone Authority, this
Court pointed out that:
The basic unfairness of the decrees is readily
apparent.
Just compensation means the value of the
property at the time of the taking. It means
a fair and full equivalent for the loss sustained.
ALL the facts as to the condition of the
property and its surroundings, its
improvements and capabilities, should be
considered.
xxx xxx xxx
Various factors can come into play in the
valuation of specific properties singled out for
expropriation. The values given by provincial
assessors are usually uniform for very wide
areas covering several barrios or even an
entire total with the exception of the poblacion.
Individual differences are never taken into
account. The value of land is based on such
generalities as its possible cultivation for rice,
corn, coconuts, or other crops. Very often land
described as directional has been cultivated
for generations. Buildings are described in
terms of only two or three classes of building
materials and estimates of areas are more
often inaccurate than correct. Tax values can
serve as guides but cannot be absolute
substitutes for just compensation.
To say that the owners are estopped to
question the valuations made by assessors
since they had the opportunity to protest is
illusory. The overwhelming mass of
landowners accept unquestioningly what is
found in the tax declarations prepared by local
assessors or municipal clerks for them. They
do not even look at, much less analyze, the
statements. The Idea of expropriation simply
never occurs until a demand is made or a case
filed by an agency authorized to do so. (pp.
12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended,
violates procedural due process as it allows immediate
taking of possession, control and disposition of property
without giving the owner his day in court. Respondent
Judge ordered the issuance of a writ of possession without
notice and without hearing.
The constitutionality of this procedure has also been ruled
upon in the Export Processing Zone Authority case, viz:
It is violative of due process to deny to the
owner the opportunity to prove that the
valuation in the tax documents is unfair or
wrong. And it is repulsive to basic concepts of
justice and fairness to allow the haphazard
work of minor bureaucrat or clerk to absolutely
prevail over the judgment of a court
promulgated only after expert commissioners
have actually viewed the property, after
evidence and arguments pro and con have
been presented, and after all factors and
considerations essential to a fair and just
determination have been judiciously evaluated.
(p. 13)
On the matter of the issuance of a writ of possession, the
ruling in the Ignacio case is reiterated, thus:
[I]t is imperative that before a writ of
possession is issued by the Court in
expropriation proceedings, the following
requisites must be met: (1) There must be a
Complaint for expropriation sufficient in form
and in substance; (2) A provisional
determination of just compensation for the
properties sought to be expropriated must be
made by the trial court on the basis of judicial
(not legislative or executive) discretion; and (3)
The deposit requirement under Section 2, Rule
67 must be complied with. (p. 14)
This Court holds that "socialized housing" defined in Pres.
Decree No. 1224, as amended by Pres. Decree Nos. 1259
and 1313, constitutes "public use" for purposes of
expropriation. However, as previously held by this Court,
the provisions of such decrees on just compensation are
unconstitutional; and in the instant case the Court finds that
the Orders issued pursuant to the corollary provisions of
those decrees authorizing immediate taking without notice
and hearing are violative of due process.
WHEREFORE, the Orders of the lower court dated
January 17, 1978 and June 28, 1978 issuing the writ of
possession on the basis of the market value appearing
therein are annulled for having been issued in excess of
jurisdiction. Let this case be remanded to the court of origin
for further proceedings to determine the compensation the
petitioners are entitled to be paid. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 106440 January 29, 1996
ALEJANDRO MANOSCA, ASUNCION MANOSCA and
LEONICA MANOSCA, petitioners,
vs.
HON. COURT OF APPEALS, HON. BENJAMIN V.
PELAYO, Presiding Judge, RTC-Pasig, Metro Manila,
Branch 168, HON. GRADUACION A. REYES
CLARAVAL, Presiding Judge, RTC-Pasig, Metro
Manila, Branch 71, and REPUBLIC OF THE
PHILIPPINES, respondents.
DECISION
VITUG, J.:
In this appeal, via a petition for review on certiorari, from
the decision1 of the Court of Appeals, dated 15 January
1992, in CA-G.R. SP No. 24969 (entitled "Alejandro
Manosca, et al. v. Hon. Benjamin V. Pelayo, et al."), this
Court is asked to resolve whether or not the "public use"
requirement of Eminent Domain is extant in the attempted
expropriation by the Republic of a 492-square-meter parcel
of land so declared by the National Historical Institute
("NHI") as a national historical landmark.
The facts of the case are not in dispute.
Petitioners inherited a piece of land located at P. Burgos
Street, Calzada, Taguig. Metro Manila, with an area of
about four hundred ninety-two (492) square meters. When
the parcel was ascertained by the NHI to have been the
birthsite of Felix Y. Manalo, the founder of Iglesia Ni Cristo,
it passed Resolution No. 1, Series of 1986, pursuant to
Section 42 of Presidential Decree No. 260, declaring the
land to be a national historical landmark. The resolution
was, on 06 January 1986, approved by the Minister of
Education, Culture and Sports. Later, the opinion of the
Secretary of Justice was asked on the legality of the
measure. In his Opinion No. 133, Series of 1987, the
Secretary of Justice replied in the affirmative; he explained:
According to your guidelines, national landmarks are
places or objects that are associated with an event,
achievement, characteristic, or modification that
makes a turning point or stage in Philippine history.
Thus, the birthsite of the founder of the Iglesia ni
Cristo, the late Felix Y. Manalo, who, admittedly, had
made contributions to Philippine history and culture
has been declared as a national landmark. It has
been held that places invested with unusual
historical interest is a public use for which the power
of eminent domain may be authorized . . . .
In view thereof, it is believed that the National
Historical Institute as an agency of the Government
charged with the maintenance and care of national
shrines, monuments and landmarks and the
development of historical sites that may be declared
as national shrines, monuments and/or landmarks,
may initiate the institution of condemnation
proceedings for the purpose of acquiring the lot in
question in accordance with the procedure provided
for in Rule 67 of the Revised Rules of Court. The
proceedings should be instituted by the Office of the
Solicitor General in behalf of the Republic.
Accordingly, on 29 May 1989, the Republic, through the
Office of the Solicitor-General, instituted a complaint for
expropriation3 before the Regional Trial Court of Pasig for
and in behalf of the NHI alleging, inter alia, that:
Pursuant to Section 4 of Presidential Decree No.
260, the National Historical Institute issued
Resolution No. 1, Series of 1986, which was
approved on January, 1986 by the then Minister of
Education, Culture and Sports, declaring the above
described parcel of land which is the birthsite of Felix
Y. Manalo, founder of the "Iglesia ni Cristo," as a
National Historical Landrnark. The plaintiff perforce
 needs the land as such national historical landmark
which is a public purpose.
At the same time, respondent Republic filed an urgent
motion for the issuance of an order to permit it to take
immediate possession of the property. The motion was
opposed by petitioners. After a hearing, the trial court
issued, on 03 August 1989,4 an order fixing the provisional
market (P54,120.00) and assessed (P16,236.00) values of
the property and authorizing the Republic to take over the
property once the required sum would have been
deposited with the Municipal Treasurer of Taguig, Metro
Manila.
Petitioners moved to dismiss the complaint on the main
thesis that the intended expropriation was not for a public
purpose and, incidentally, that the act would constitute an
application of public funds, directly or indirectly, for the use,
benefit, or support of Iglesia ni Cristo, a religious entity,
contrary to the provision of Section 29(2), Article VI, of the
1987 Constitution.5 Petitioners sought, in the meanwhile, a
suspension in the implementation of the 03rd August 1989
order of the trial court.
On 15 February 1990, following the filing by respondent
Republic of its reply to petitioners' motion seeking the
dismissal of the case, the trial court issued its denial of said
motion to dismiss.6 Five (5) days later, or on 20 February
1990,7 another order was issued by the trial court, declaring
moot and academic the motion for reconsideration and/or
suspension of the order of 03 August 1989 with the
rejection of petitioners' motion to dismiss. Petitioners'
motion for the reconsideration of the 20th February 1990
order was likewise denied by the trial court in its 16th April
1991 order.8
Petitioners then lodged a petition for certiorari and
prohibition with the Court of Appeals. In its now disputed
15th January 1992 decision, the appellate court dismissed
the petition on the ground that the remedy of appeal in the
ordinary course of law was an adequate remedy and that
the petition itself, in any case, had failed to show any grave
abuse of discretion or lack of jurisdictional competence on
the part of the trial court. A motion for the reconsideration
of the decision was denied in the 23rd July 1992 resolution
of the appellate court.
We begin, in this present recourse of petitioners, with a few
known postulates.
Eminent domain, also often referred to as expropriation
and, with less frequency, as condemnation, is, like police
power and taxation, an inherent power of sovereignty. It
need not be clothed with any constitutional gear to exist;
instead, provisions in our Constitution on the subject are
meant more to regulate, rather than to grant, the exercise
of the power. Eminent domain is generally so described as
"the highest and most exact idea of property remaining in
the government" that may be acquired for some public
purpose through a method in the nature of a forced
purchase by the State.9 It is a right to take or reassert
dominion over property within the state for public use or to
meet a public exigency. It is said to be an essential part of
governance even in its most primitive form and thus
inseparable from sovereignty. 10 The only direct
constitutional qualification is that "private property shall not
be taken for public use without just compensation." 11 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.
Petitioners assert that the expropriation has failed to meet
the guidelines set by this Court in the case of Guido v.Rural
Progress Administration, 12 to wit: (a) the size of the land
expropriated; (b) the large number of people benefited;
and, (c) the extent of social and economic
reform.13 Petitioners suggest that we confine the concept of
expropriation only to the following public uses, 14 i.e., the —
. . . taking of property for military posts, roads,
streets, sidewalks, bridges, ferries, levees, wharves,
piers, public buildings including schoolhouses, parks,
playgrounds, plazas, market places, artesian wells,
water supply and sewerage systems, cemeteries,
crematories, and railroads.
This view of petitioners is much too limitative and
restrictive.
The court, in Guido, merely passed upon the issue of the
extent of the President's power under Commonwealth Act
No. 539 to, specifically, acquire private lands for
subdivision into smaller home lots or farms for resale
to bona fidetenants or occupants. It was in this particular
context of the statute that the Court had made the
pronouncement. The guidelines in Guido were not meant to
be preclusive in nature and, most certainly, the power of
eminent domain should not now be understood as being
confined only to the expropriation of vast tracts of land and
landed estates. 15
The term "public use," not having been otherwise defined
by the constitution, must be considered in its general
concept of meeting a public need or a public
exigency. 16 Black summarizes the characterization given by
various courts to the term; thus:
Public Use. Eminent domain. The constitutional and
statutory basis for taking property by eminent
domain. For condemnation purposes, "public use" is
one which confers same benefit or advantage to the
public; it is not confined to actual use by public. It is
measured in terms of right of public to use proposed
facilities for which condemnation is sought and, as
long as public has right of use, whether exercised by
one or many members of public, a "public
advantage" or "public benefit" accrues sufficient to
constitute a public use. Montana Power Co. vs.
Bokma, Mont. 457 P. 2d 769, 772, 773.
Public use, in constitutional provisions restricting the
exercise of the right to take private property in virtue
of eminent domain, means a use concerning the
whole community as distinguished from particular
individuals. But each and every member of society
need not be equally interested in such use, or be
personally and directly affected by it; if the object is
to satisfy a great public want or exigency, that is
sufficient. Rindge Co. vs. Los Angeles County, 262
U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The
term may be said to mean public usefulness, utility,
or advantage, or what is productive of general
benefit. It may be limited to the inhabitants of a small
or restricted locality, but must be in common, and not
for a particular individual. The use must be a needful
one for the public, which cannot be surrendered
without obvious general loss and inconvenience. A
"public use" for which land may be taken defies
absolute definition for it changes with varying
conditions of society, new appliances in the
sciences, changing conceptions of scope and
functions of government, and other differing
circumstances brought about by an increase in
 population and new modes of communication and
transportation. Katz v. Brandon, 156 Conn., 521, 245
A.2d 579,586. 17
The validity of the exercise of the power of eminent domain
for traditional purposes is beyond question; it is not at all to
be said, however, that public use should thereby be
restricted to such traditional uses. The idea that "public
use" is strictly limited to clear cases of "use by the public"
has long been discarded. This Court in Heirs of Juancho
Ardona v. Reyes,18 quoting from Berman v. Parker (348
U.S. 25; 99 L. ed. 27), held:
We do not sit to determine whether a particular
housing project is or is not desirable. The concept of
the public welfare is broad and inclusive. See
DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424,
96 L. Ed. 469, 472, 72 S Ct 405. The values it
represents are spiritual as well as physical, aesthetic
as well as monetary. It is within the power of the
legislature to determine that the community should
be beautiful as well as healthy, spacious as well as
clean, well-balanced as well as carefully patrolled. In
the present case, the Congress and its authorized
agencies have made determinations that take into
account a wide variety of values. It is no for us to
reappraise them. If those who govern the District of
Columbia decide that the Nation's Capital should be
beautiful as well as sanitary, there is nothing in the
Fifth Amendment that stands in the way.
Once the object is within the authority of Congress,
the right to realize it through the exercise of eminent
domain is clear. For the power of eminent domain is
merely the means to the end. See Luxton v. North
River Bridge Co. 153 US 525, 529, 530, 38 L. ed.
808, 810, 14 S Ct 891; United States v. Gettysburg
Electric R. Co. 160 US 668, 679, 40 L. ed. 576, 580,
16 S Ct 427.
It has been explained as early as Seña v. Manila Railroad
Co., 19 that:
. . . A historical research discloses the meaning of
the term "public use" to be one of constant growth.
As society advances, its demands upon the
individual increase and each demand is a new use to
which the resources of the individual may be
devoted. . . . for "whatever is beneficially employed
for the community is a public use.
Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There
was a time when it was felt that a literal meaning
should be attached to such a requirement. Whatever
project is undertaken must be for the public to enjoy,
as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not so any more.
As long as the purpose of the taking is public, then
the power of eminent domain comes into play. As
just noted, the constitution in at least two cases, to
remove any doubt, determines what is public use.
One is the expropriation of lands to be subdivided
into small lots for resale at cost to individuals. The
other is the transfer, through the exercise of this
power, of utilities and other private enterprise to the
government. It is accurate to state then that at
present whatever may be beneficially employed for
the general welfare satisfies the requirement of
public use. 20
Chief Justice Fernando, writing
the ponencia in J.M. Tuason & Co. vs. Land Tenure
Administration, 21 has viewed the Constitution a dynamic
instrument and one that "is not to be construed narrowly or
pedantically" so as to enable it "to meet adequately
whatever problems the future has in store." Fr. Joaquin
Bernas, a noted constitutionalist himself, has aptly
observed that what, in fact, has ultimately emerged is a
concept of public use which is just as broad as "public
welfare." 22
Petitioners ask: But "(w)hat is the so-called unusual interest
that the expropriation of (Felix Manalo's) birthplace become
so vital as to be a public use appropriate for the exercise of
the power of eminent domain" when only members of
the Iglesia ni Cristo would benefit? This attempt to give
some religious perspective to the case deserves little
consideration, for what should be significant is the principal
objective of, not the casual consequences that might follow
from, the exercise of the power. The purpose in setting up
the marker is essentially to recognize the distinctive
contribution of the late Felix Manalo to the culture of the
Philippines, rather than to commemorate his founding and
leadership of the Iglesia ni Cristo.
The practical reality that greater benefit may be
derived by members of the Iglesia ni Cristo than by
most others could well be true but such a peculiar
advantage still remains to be merely incidental and
secondary in nature. Indeed, that only a few would
actually benefit from the expropriation of property
does not necessarily diminish the essence and
character of public use. 23
Petitioners contend that they have been denied due
process in the fixing of the provisional value of their
property. Petitioners need merely to be reminded that what
the law prohibits is the lack of opportunity to be
heard;24 contrary to petitioners' argument, the records of this
case are replete with pleadings 25 that could have dealt,
directly or indirectly, with the provisional value of the
property.
Petitioners, finally, would fault respondent appellate court
in sustaining the trial court's order which considered
inapplicable the case of Noble v. City of Manila. 26 Both
courts held correctly. The Republic was not a party to the
alleged contract of exchange between the Iglesia ni
Cristo and petitioners which (the contracting parties) alone,
not the Republic, could properly be bound.
All considered, the Court finds the assailed decision to be
in accord with law and jurisprudence.
WHEREFORE, the petition is DENIED. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59603 April 29, 1987
EXPORT PROCESSING ZONE AUTHORITY, petitioner,
vs.
HON. CEFERINO E. DULAY, in his capacity as the
Presiding Judge, Court of First Instance of Cebu,
Branch XVI, Lapu-Lapu City, and SAN ANTONIO
DEVELOPMENT CORPORATION, respondents.
Elena M. Cuevas for respondents.
GUTIERREZ, JR., J.:
The question raised in this petition is whether or not
Presidential Decrees Numbered 76, 464, 794 and 1533
have repealed and superseded Sections 5 to 8 of Rule 67
of the Revised Rules of Court, such that in determining the
just compensation of property in an expropriation case, the
only basis should be its market value as declared by the
owner or as determined by the assessor, whichever is
lower.
On January 15, 1979, the President of the Philippines,
issued Proclamation No. 1811, reserving a certain parcel of
land of the public domain situated in the City of Lapu-Lapu,
Island of Mactan, Cebu and covering a total area of
1,193,669 square meters, more or less, for the
establishment of an export processing zone by petitioner
Export Processing Zone Authority (EPZA).
Not all the reserved area, however, was public land. The
proclamation included, among others, four (4) parcels of
land with an aggregate area of 22,328 square meters
owned and registered in the name of the private
respondent. The petitioner, therefore, offered to purchase
the parcels of land from the respondent in acccordance
with the valuation set forth in Section 92, Presidential
Decree (P.D.) No. 464, as amended. The parties failed to
reach an agreement regarding the sale of the property.
The petitioner filed with the then Court of First Instance of
Cebu, Branch XVI, Lapu-Lapu City, a complaint for
expropriation with a prayer for the issuance of a writ of
possession against the private respondent, to expropriate
the aforesaid parcels of land pursuant to P.D. No. 66, as
amended, which empowers the petitioner to acquire by
condemnation proceedings any property for the
establishment of export processing zones, in relation to
Proclamation No. 1811, for the purpose of establishing the
Mactan Export Processing Zone.
On October 21, 1980, the respondent judge issued a writ of
possession authorizing the petitioner to take immediate
possession of the premises. On December 23, 1980, the
private respondent flied its answer.
At the pre-trial conference on February 13, 1981, the
respondent judge issued an order stating that the parties
have agreed that the only issue to be resolved is the just
compensation for the properties and that the pre-trial is
thereby terminated and the hearing on the merits is set on
April 2, 1981.
On February 17, 1981, the respondent judge issued the
order of condemnation declaring the petitioner as having
the lawful right to take the properties sought to be
condemned, upon the payment of just compensation to be
determined as of the filing of the complaint. The
respondent judge also issued a second order, subject of
this petition, appointing certain persons as commissioners
to ascertain and report to the court the just compensation
for the properties sought to be expropriated.
On June 19, 1981, the three commissioners submitted their
consolidated report recommending the amount of P15.00
per square meter as the fair and reasonable value of just
compensation for the properties.
On July 29, 1981, the petitioner Med a Motion for
Reconsideration of the order of February 19, 1981 and
Objection to Commissioner's Report on the grounds that
P.D. No. 1533 has superseded Sections 5 to 8 of Rule 67
of the Rules of Court on the ascertainment of just
compensation through commissioners; and that the
compensation must not exceed the maximum amount set
by P.D. No. 1533.
On November 14, 1981, the trial court denied the
petitioner's motion for reconsideration and gave the latter
ten (10) days within which to file its objection to the
Commissioner's Report.
On February 9, 1982, the petitioner flied this present
petition for certiorari and mandamus with preliminary
restraining order, enjoining the trial court from enforcing the
order dated February 17, 1981 and from further proceeding
with the hearing of the expropriation case.
The only issue raised in this petition is whether or not
Sections 5 to 8, Rule 67 of the Revised Rules of Court had
been repealed or deemed amended by P.D. No. 1533
insofar as the appointment of commissioners to determine
the just compensation is concerned. Stated in another way,
is the exclusive and mandatory mode of determining just
compensation in P.D. No. 1533 valid and constitutional?
The petitioner maintains that the respondent judge acted in
excess of his jurisdiction and with grave abuse of discretion
in denying the petitioner's motion for reconsideration and in
setting the commissioner's report for hearing because
under P.D. No. 1533, which is the applicable law herein,
the basis of just compensation shall be the fair and current
market value declared by the owner of the property sought
to be expropriated or such market value as determined by
the assessor, whichever is lower. Therefore, there is no
more need to appoint commissioners as prescribed by
Rule 67 of the Revised Rules of Court and for said
commissioners to consider other highly variable factors in
order to determine just compensation. The petitioner
further maintains that P.D. No. 1533 has vested on the
assessors and the property owners themselves the power
or duty to fix the market value of the properties and that
said property owners are given the full opportunity to be
heard before the Local Board of Assessment Appeals and
the Central Board of Assessment Appeals. Thus, the
vesting on the assessor or the property owner of the right
to determine the just compensation in expropriation
proceedings, with appropriate procedure for appeal to
higher administrative boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464, 794 and
1533, this Court has interpreted the eminent domain
provisions of the Constitution and established the meaning,
under the fundametal law, of just compensation and who
has the power to determine it. Thus, in the following cases,
wherein the filing of the expropriation proceedings were all
commenced prior to the promulgation of the
aforementioned decrees, we laid down the doctrine onjust
compensation:
Municipality of Daet v. Court of Appeals (93 SCRA 503,
516),
xxx xxx xxx
"And in the case of J.M. Tuason & Co., Inc. v. Land Tenure
Administration, 31 SCRA 413, the Court, speaking thru
now Chief Justice Fernando, reiterated the 'well-settled
(rule) that just compensation means the equivalent for the
value of the property at the time of its taking. Anything
beyond that is more and anything short of that is less, than
just compensation. It means a fair and full equivalent for
the loss sustained, which is the measure of the indemnity,
not whatever gain would accrue to the expropriating entity."
Garcia v. Court ofappeals (102 SCRA 597, 608),
xxx xxx xxx
"Hence, in estimating the market value, all the
capabilities of the property and all the uses to which
it may be applied or for which it is adapted are to be
considered and not merely the condition it is in the
time and the use to which it is then applied by the
owner. All the facts as to the condition of the
property and its surroundings, its improvements and
capabilities may be shown and considered in
estimating its value."
Republic v. Santos (141 SCRA 30, 35-36),
"According to section 8 of Rule 67, the court is not
bound by the commissioners' report. It may make
such order or render such judgment as shall secure
to the plaintiff the property essential to the exercise
of his right of condemnation, and to the defendant
just compensation for the property expropriated. This
Court may substitute its own estimate of the value as
gathered from the record (Manila Railroad Company
v. Velasquez, 32 Phil. 286)."
However, the promulgation of the aforementioned decrees
practically set aside the above and many other precedents
hammered out in the course of evidence-laden, well
argued, fully heard, studiously deliberated, and judiciously
considered court proceedings. The decrees categorically
and peremptorily limited the definition of just compensation
thus:
P.D. No. 76:
xxx xxx xxx
"For purposes of just compensation in cases of
private property acquired by the government for
public use, the basis shall be the current and fair
market value declared by the owner or administrator,
or such market value as determined by the
Assessor, whichever is lower."
P.D. No. 464:
"Section 92. Basis for payment of just compensation
in expropriation proceedings. — In determining just
compensation which private property is acquired by
the government for public use, the basis shall be the
market value declared by the owner or administrator
or anyone having legal interest in the property, or
such market value as determined by the assessor,
whichever is lower."
P.D. No. 794:
"Section 92. Basis for payment of just compensation
in expropriation proceedings. — In determining just
compensation when private property is acquired by
the government for public use, the same shall not
exceed the market value declared by the owner or
administrator or anyone having legal interest in the
property, or such market value as determined by the
assessor, whichever is lower."
P.D. No. 1533:
 "Section 1. In determining just compensation for
private property acquired through eminent domain
proceedings, the compensation to be paid shall not
exceed the value declared by the owner or
administrator or anyone having legal interest in the
property or determined by the assessor, pursuant to
the Real Property Tax Code, whichever value is
lower, prior to the recommendation or decision of the
appropriate Government office to acquire the
property."
We are constrained to declare the provisions of the
Decrees on just compensation unconstitutional and void
and accordingly dismiss the instant petition for lack of
merit.
The method of ascertaining just compensation under the
aforecited decrees constitutes impermissible encroachment
on judicial prerogatives. It tends to render this Court inutile
in a matter which under the Constitution is reserved to it for
final determination.
Thus, although in an expropriation proceeding the court
technically would still have the power to determine the just
compensation for the property, following the applicable
decrees, its task would be relegated to simply stating the
lower value of the property as declared either by the owner
or the assessor. As a necessary consequence, it would be
useless for the court to appoint commissioners under Rule
67 of the Rules of Court. Moreover, the need to satisfy the
due process clause in the taking of private property is
seemingly fulfilled since it cannot be said that a judicial
proceeding was not had before the actual taking. However,
the strict application of the decrees during the proceedings
would be nothing short of a mere formality or charade as
the court has only to choose between the valuation of the
owner and that of the assessor, and its choice is always
limited to the lower of the two. The court cannot exercise its
discretion or independence in determining what is just or
fair. Even a grade school pupil could substitute for the
judge insofar as the determination of constitutional just
compensation is concerned.
In the case of National Housing Authority v. Reyes (123
SCRA 245), this Court upheld P.D. No. 464, as further
amended by P.D. Nos. 794, 1224 and 1259. In this case,
the petitioner National Housing Authority contended that
the owner's declaration at P1,400.00 which happened to be
lower than the assessor's assessment, is the just
compensation for the respondent's property under section
92 of P.D. No. 464. On the other hand, the private
respondent stressed that while there may be basis for the
allegation that the respondent judge did not follow the
decree, the matter is still subject to his final disposition, he
having been vested with the original and competent
authority to exercise his judicial discretion in the light of the
constitutional clauses on due process and equal protection.
To these opposing arguments, this Court ruled ihat under
the conceded facts, there should be a recognition that the
law as it stands must be applied; that the decree having
spoken so clearly and unequivocably calls for obedience;
and that on a matter where the applicable law speaks in no
uncertain language, the Court has no choice except to yield
to its command. We further stated that "the courts should
recognize that the rule introduced by P.D. No. 76 and
reiterated in subsequent decrees does not upset the
established concepts of justice or the constitutional
provision on just compensation for, precisely, the owner is
allowed to make his own valuation of his property."
While the Court yielded to executive prerogative exercised
in the form of absolute law-making power, its members,
nonetheless, remained uncomfortable with the implications
of the decision and the abuse and unfairness which might
follow in its wake. For one thing, the President himself did
not seem assured or confident with his own enactment. It
was not enough to lay down the law on determination of
just compensation in P.D. 76. It had to be repeated and
reiterated in P.D. 464, P.D. 794, and P.D. 1533. The
provision is also found in P.D. 1224, P.D. 1259 and P.D.
1313. Inspite of its effectivity as general law and the wide
publicity given to it, the questioned provision or an even
stricter version had to be embodied in cases of specific
expropriations by decree as in P.D. 1669 expropriating the
Tambunting Estate and P.D. 1670 expropriating the Sunog
Apog area in Tondo, Manila.
In the present petition, we are once again confronted with
the same question of whether the courts under P.D. 1533,
which contains the same provision on just compensation as
its predecessor decrees, still have the power and authority
to determine just compensation, independent of what is
stated by the decree and to this effect, to appoint
commissioners for such purpose.
This time, we answer in the affirmative.
In overruling the petitioner's motion for reconsideration and
objection to the commissioner's report, the trial court said:
"Another consideration why the Court is empowered
to appoint commissioners to assess the just
compensation of these properties under eminent
domain proceedings, is the well-entrenched ruling
that 'the owner of property expropriated is entitled to
recover from expropriating authority the fair and full
value of the lot, as of the time when possession
thereof was actually taken by the province, plus
consequential damages — including attorney's fees
— from which the consequential benefits, if any
should be deducted, with interest at the legal rate, on
the aggregate sum due to the owner from and after
the date of actual taking.' (Capitol Subdivision, Inc. v.
Province of Negros Occidental, 7 SCRA 60). In fine,
the decree only establishes a uniform basis for
determining just compensation which the Court may
consider as one of the factors in arriving at 'just
compensation,' as envisage in the Constitution. In
the words of Justice Barredo, "Respondent court's
invocation of General Order No. 3 of September 21,
1972 is nothing short of an unwarranted abdication
of judicial authority, which no judge duly imbued with
the implications of the paramount principle of
independence of the judiciary should ever think of
doing." (Lina v. Purisima, 82 SCRA 344, 351; Cf.
Prov. of Pangasinan v. CFI Judge of Pangasinan, Br.
VIII, 80 SCRA 117) Indeed, where this Court simply
follows PD 1533, thereby limiting the determination
of just compensation on the value declared by the
owner or administrator or as determined by the
Assessor, whichever is lower, it may result in the
deprivation of the landowner's right of due process to
enable it to prove its claim to just compensation, as
mandated by the Constitution. (Uy v. Genato, 57
SCRA 123). The tax declaration under the Real
Property Tax Code is, undoubtedly, for purposes of
taxation."
We are convinced and so rule that the trial court correctly
stated that the valuation in the decree may only serve as a
guiding principle or one of the factors in determining just
compensation but it may not substitute the court's own
judgment as to what amount should be awarded and how
to arrive at such amount. A return to the earlier well-
established doctrine, to our mind, is more in keeping with
the principle that the judiciary should live up to its mission
"by vitalizing and not denigrating constitutional rights." (See
Salonga v. Cruz Paño, 134 SCRA 438, 462; citing Mercado
v. Court of First Instance of Rizal, 116 SCRA 93.) The
doctrine we enunciated in National Housing Authority v.
Reyes, supra, therefore, must necessarily be abandoned if
we are to uphold this Court's role as the guardian of the
fundamental rights guaranteed by the due process and
equal protection clauses and as the final arbiter over
transgressions committed against constitutional rights.
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the
time of the taking. It means a fair and full equivalent for the
loss sustained. All the facts as to the condition of the
property and its surroundings, its improvements and
capabilities, should be considered.
In this particular case, the tax declarations presented by
the petitioner as basis for just compensation were made by
the Lapu-Lapu municipal, later city assessor long before
martial law, when land was not only much cheaper but
when assessed values of properties were stated in figures
constituting only a fraction of their true market value. The
private respondent was not even the owner of the
properties at the time. It purchased the lots for
development purposes. To peg the value of the lots on the
basis of documents which are out of date and at prices
below the acquisition cost of present owners would be
arbitrary and confiscatory.
Various factors can come into play in the valuation of
specific properties singled out for expropriation. The values
given by provincial assessors are usually uniform for very
wide areas covering several barrios or even an entire town
with the exception of the poblacion. Individual differences
are never taken into account. The value of land is based on
such generalities as its possible cultivation for rice, corn,
coconuts, or other crops. Very often land described as
"cogonal" has been cultivated for generations. Buildings
are described in terms of only two or three classes of
building materials and estimates of areas are more often
inaccurate than correct. Tax values can serve as guides
but cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the
valuations made by assessors since they had the
opportunity to protest is illusory. The overwhelming mass of
land owners accept unquestioningly what is found in the
tax declarations prepared by local assessors or municipal
clerks for them. They do not even look at, much less
analyze, the statements. The Idea of expropriation simply
never occurs until a demand is made or a case filed by an
agency authorized to do so.
It is violative of due process to deny to the owner the
opportunity to prove that the valuation in the tax documents
is unfair or wrong. And it is repulsive to basic concepts of
justice and fairness to allow the haphazard work of a minor
bureaucrat or clerk to absolutely prevail over the judgment
of a court promulgated only after expert commissioners
have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all
factors and considerations essential to a fair and just
determination have been judiciously evaluated.
As was held in the case of Gideon v. Wainwright (93 ALR To hold otherwise would be to undermine the very purpose
2d,733,742): why this Court exists in the first place.

"In the light of these and many other prior decisions of this WHEREFORE, IN VIEW OF THE FOREGOING, the
Court, it is not surprising that the Betts Court, when faced petition is hereby DISMISSED. The temporary restraining
with the contention that 'one charged with crime, who is order issued on February 16, 1982 is LIFTED and SET
unable to obtain counsel must be furnished counsel by the ASIDE.
State,' conceded that '[E]xpressions in the opinions of this
court lend color to the argument. . .' 316 U.S., at 462, 463, SO ORDERED.
86 L ed. 1602, 62 S Ct. 1252. The fact is that in deciding as
it did-that "appointment of counsel is not a fundamental
right, essential to a fair trial" — the Court in Betts v. Brady
made an ubrupt brake with its own well-considered
precedents. In returning to these old precedents, sounder
we believe than the new, we but restore constitutional
principles established to achieve a fair system of justice. . ."

We return to older and more sound precedents. This Court

has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. (See
Salonga v. Cruz Pano, supra).

The determination of "just compensation" in eminent

domain cases is a judicial function. The executive
department or the legislature may make the initial
determinations but when a party claims a violation of the
guarantee in the Bill of Rights that private property may not
be taken for public use without just compensation, no
statute, decree, or executive order can mandate that its
own determination shall prevail over the court's findings.
Much less can the courts be precluded from looking into
the "just-ness" of the decreed compensation.

We, therefore, hold that P.D. No. 1533, which eliminates

the court's discretion to appoint commissioners pursuant to
Rule 67 of the Rules of Court, is unconstitutional and void.