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10/22/2018 PHILIPPINE REPORTS ANNOTATED VOLUME 044

[No. 18771. March 26, 1923]

NICOLAS PANLILIO, EUTIQUIANO CUYUGAN, and


SIXTO TIMBOL, plaintiffs and appellants, vs. ATILANO
MERCADO, ClRIACO PlMPING, MANUEL REYES, and
TELESFORO MARTINEZ, defendants and appellants.

1. PUBLIC WATER COURSES; CHANGE OF COURSE;


ABANDONMENT.—The bed of a public stream is of
public ownership and in the event of a change in the
course of the stream, its former bed

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696 PHILIPPINE REPORTS ANNOTATED

Panlilio vs. Mercado

cannot be regarded as definitely abandoned and the public


divested of its ownership therein until there is some
Indication of an intention on the part of the Government
to acquiesce in the change of the course of the stream.

2. ID.; ID.; ID.—As the result of a flood a certain public


stream changed its course leaving a portion of its old bed
dry. As soon thereafter as practicable steps were taken
under the direction of Government functionaries to bring
the stream back into its former course and work was
continued until interrupted by the present action. Held:
That under these circumstances there was no
abandonment of the old bed; that the public was not
divested of its ownership thereof and that the stream
might properly be brought back to its former course.

APPEAL from a judgment of the Court of First Instance of


Pampanga. Revilla, J.
The facts are stated in the opinion of the court.
Aurelio Pineda and Gibbs, McDonough & Johnson for
plaintiffs-appellants.
Perfecto J. Salas Rodriguez, Vicente S. de Villa, and
Elias Canapy for defendants-appellants.
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OSTRAND, J.:

This is a petition for a writ of injunction to restrain the


defendants from entering upon certain lands situated in
the municipality of Mexico, Province of Pampanga, and
from disturbing the plaintiffs in their peaceful possession of
the same. The plaintiffs also pray for damages for trespass
on the land.
The defendants' answer denies generally the allegations
of the petition. The defendants Reyes and Martinez alleged
by way of special defense that the former 'is the district
engineer; that the latter is the Commander of the
Constabulary of the Province of Pampanga; that in their
relations to the matter in controversy they have been
acting in their official capacity; and that they therefore
have no interest in the litigation. The defendants Mercado
and Pimping set up a counterclaim for P40,000, alleging
that the plaintiffs, by placing bamboo stakes in the River
Aba-

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VOL. 44, MARCH 26, 1923 697


Panlilio vs. Mercado

can, caused it to change its course, thus invading said


defendants' lands and causing damages in the sum
mentioned.
The court absolved the defendants from the complaint
and the plaintiff s from the counterclaim, without costs.
From this judgment all of the parties appeal.
It appears from the evidence that the plaintiffs are the
owners of various parcels of land in the municipality of
Mexico, Province of Pampanga, more particularly described
in plaintiffs' amended complaint. From 1911 until August,
1919, the parcels of land belonging to the plaintiffs were
divided by a small river known as the Estero Abacan. The
defendants Atilano Mercado and Ciriaco Pimping are the
owners of various parcels of land which, previously to the
month of August, 1919, were situated to the east of the
land of the plaintiffs and were not touched by the Abacan
River.
In the month mentioned, a very heavy flood occurred in
the Abacan River and when the flood subsided, the river no
longer flowed in the channel through the lands of the
plaintiffs but had opened a new course for itself through
the lands of the defendants where it still continues to flow.
This new course was the course of the river previous to the
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10/22/2018 PHILIPPINE REPORTS ANNOTATED VOLUME 044

year 1911. It may be noted that in the years 1916 and 1917
a cadastral survey was made of the district where the lands
of both the plaintiffs and the defendants are situated and
that upon the plans of that survey the then course of the
river is excluded from the cadaster and set apart as a
public stream.
After the termination of the 1919 rainy season and early
in the year 1920, a complaint was made to the provincial
board of the Province of Pampanga by various land owners
including the defendants Atilano Mercado and Ciriaco
Pimping, setting forth that the new course of the river was
destroying their land and rendering it useless and asking
that the river be returned to its former channel. The
complaint was endorsed to the district engineer and
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698 PHILIPPINE REPORTS ANNOTATED


Panlilio vs. Mercado

on June 10, 1920, the defendants Atilano Mercado and


Ciriaco Pimping, accompanied by the defendant district
engineer, Manuel Reyes, proceeded to the point where the
river had first begun to change its course, and, after
locating this point upon the cadastral plan, proceeded with
laborers of the defendants Atilano Mercado and Ciriaco
Pimping to excavate the old bed of the river for the purpose
of causing the river to return to this bed. As a consequence,
this action was instituted on June 25, 1920.
The facts stated are not disputed and the law of the case
presents, in our opinion, no serious difficulty. Article 370 of
the Civil Code reads:

"Los cauces de los ríos, que quedan abandonados por variar


naturalmente el curso de las aguas, pertenecen a los dueños de los
terrenos ribereños en toda la longitud respectiva a cada uno. Si el
cauce abandonado separaba heredades de distintos dueños, la
nueva línea divisoria correrá equidistante de unas y otras."

Relying on the provisions of this article, the plaintiffs


maintain that the old bed of the river Abacan became ipso
facto absolutely abandoned upon the river varying its
course in 1919. Examining the provisions in question, it is
apparent that while the abandonment of the bed may be
the consequence of the riving changing its course, it is not
necessarily the action of the river itself which is the only
and final determining factor in such abandonment. In the
case of a public stream, the bed is of public ownership and

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the public cannot be considered absolutely divested of this


ownership until there is some indication of an intention on
the part of the Government to acquiesce in the change in
the course of the stream. That the Government is not
compelled to stand idly by and let nature take its course is
clearly indicated by article 372 of the Civil Code, (See also
discussion in Manresa's Commentaries on the Civil Code,
vol. 3, pp. 253, 254.)
In the present case the river is a public stream; its bed is
of public ownership and was definitely located and de

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VOL. 44, MARCH 27, 1923 699


El Vencedor vs. Canlas

termined in the cadastral survey. As soon as practicable


after the river changed its course, steps were taken under
the direction of the Government functionaries to bring it
back into its old course and work was continued until
interrupted by the present action. This certainly does not
indicate abandonment on the part of the Government.
As to the defendants' claim for damages, we agree with
the trial court that while the evidence undoubtedly shows
that the plaintiffs placed bamboo stakes across the river
and that the stakes may have caused an accumulation of
sand or sediment which in turn may have contributed to
the change in the course of the river, such evidence falls
short of showing that this was the primary cause of the
change and of the damage to the defendants' property.
The judgment appealed from is affirmed, without costs
in this instance. So ordered.

Araullo, C. J., Street, Malcolm, Avanceña, Villamor,


Johns, and Romualdez, JJ., concur.

Judgment affirmed.

______________

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