Good Day Sir HBP,

Air Right is the right of an owner to use and control the air space over his land
subject to the requirements of navigation, laws or contract. In the landmark case of U.S.
vs. Causby1, the U.S. Supreme Court explained this concept:
“We have said that the airspace is a public highway.
Yet it is obvious that, if the landowner is to have full enjoyment
of the land, he must have exclusive control of the immediate
reaches of the enveloping atmosphere. Otherwise buildings
could not be erected, trees could not be planted, and even
fences could not be run. The principle is recognized when the
law gives a remedy in case overhanging structures are
erected on adjoining land. The landowner owns at least as
much of the space above the ground as the can occupy
or use in connection with the land. The fact that he does
not occupy it in a physical sense -- by the erection of buildings
and the like -- is not material. As we have said, the flight of
airplanes, which skim the surface but do not touch it, is
as much an appropriation of the use of the land as a more
conventional entry upon it.”
The glossary of the 2004 Revised IRR of the National Building Code of the
Philippines has also defined Air Rights as:
“AIR RIGHTS – The right to physically develop and
subsequently benefit or profit from the use of the air space
above the road right-of-way (RROW). The upper limit of the
air rights is the airways navigational path such as those
clearance limits of aerodrome and flight patterns, and below
grade development limit is the ground water table.”
Finally, as stated in Republic vs. Court of Appeals2, “it is a well-known principle
that the owner of piece of land has rights not only to its surface but also to everything
underneath and the airspace above it up to a reasonable height.”

Thus, because of this, the Air Rights indeed belong to the owner of the land.
Incidentally, in the same case of U.S. vs. Causby, the Court mentioned that:
“We would not doubt that, if the United States erected
an elevated railway over respondents' land at the precise
altitude where its planes now fly, there would be a partial

1
328 U.S. 256 (1946)
2
G.R. No. L-43938, April 15, 1988
 taking, even though none of the supports of the structure
rested on the land. The reason is that there would be an
intrusion so immediate and direct as to subtract from the
owner's full enjoyment of the property and to limit his
exploitation of it. While the owner does not in any physical
manner occupy that stratum of airspace or make use of it in
the conventional sense, he does use it in somewhat the same
sense that space left between buildings for the purpose of light
and air is used. The superadjacent airspace at this low altitude
is so close to the land that continuous invasions of it affect the
use of the surface of the land itself. We think that the
landowner, as an incident to his ownership, has a claim
to it, and that invasions of it are in the same category as
invasions of the surface.”
Also, in the case of Griggs vs. County of Alleghany3, wherein “Allegheny County
owns and maintains the Greater Pittsburgh Airport at a site it acquired to provide airport
facilities under the Federal Airport Act. In one approach zone or path of glide, the pattern
of flight xxx requires aircraft to fly regularly and frequently at very low altitudes over
petitioner's residential property. The resulting noise, vibrations and danger forced
petitioner and his family to move from their home.” The Court ruled here that “the County
has taken an air easement over petitioner's property for which it must pay just
compensation as required by the Fourteenth Amendment.”
Therefore, it can be safely concluded that to acquire the air rights for the Cable
Car project by the Local Government, the power of Eminent Domain must be exercised
and Expropriation proceedings should take place.

Pasig City Ordinance No. 25, Series of 2016 or the “Pasig City Code pursuing a
public private partnership for the People Initiative for Local Government (LGU-P4)” does
not explicitly nor implicitly grant the LGU the automatic expropriation of private properties
that would be needed for the PPP. The ordinance just mentions that Pasig City has the
power to expropriate, which it inherently does being an LGU. However, jurisprudence has
enumerated the guidelines on how an LGU can initiate expropriation proceedings.
According to Yusay vs. Court of Appeals4, “the following essential requisites must concur
before an LGU can exercise the power of eminent domain:

1. An ordinance is enacted by the local legislative council

authorizing the local chief executive, in behalf of the LGU, to
exercise the power of eminent domain or pursue

3
369 U.S. 84 (1962)
4
G.R. No. 156684, April 6, 2011
 expropriation proceedings over a particular private
property.

2. The power of eminent domain is exercised for public use,

purpose or welfare, or for the benefit of the poor and the
landless.

3. There is payment of just compensation, as required

under Section 9 Article III of the Constitution and other
pertinent laws.

4. A valid and definite offer has been previously made to

the owner of the property sought to be expropriated, but said
offer was not accepted.”

Additionally, Article 34, 36-37 of the Local Government Code IRR states the exact
procedure on how expropriation by a Local Government Unit will go about:

ARTICLE 34. Prerequisites. —

In acquiring private property for public use or purpose, LGU

shall first establish the suitability of the property to be
acquired for the use intended, then proceed to obtain from
the proper authorities the necessary locational clearance and
other requirements imposed under existing laws, rules and
regulations.

xxx

ARTICLE 36. Expropriation Proceedings. —

(a) If the LGU fails to acquire a private property for public use,
purpose, or welfare through purchase, LGU may expropriate
said property through a resolution of the sanggunian
authorizing its chief executive to initiate expropriation
proceedings.

(b) The local chief executive shall cause the provincial, city,
or municipal attorney concerned or, in his absence, the
provincial or city prosecutor, to file expropriation
proceedings in the proper court in accordance with the Rules
of Court and other pertinent laws.

(c) The LGU may immediately take possession of the

property upon the filing of expropriation proceedings and
upon making a deposit with the proper court of at least fifteen
 percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be
expropriated.

ARTICLE 37. Payment. —

The amount to be paid for the expropriated property shall be

determined by the proper court, based on the fair market value
at the time of the taking of the property.

Finally, pursuant to the fourth requisite in exercising the power of eminent domain,
Article 35 of the Local Government Code IRR details the procedure in offering to buy a
property needed for public use:

“ARTICLE 35. Offer to Buy and Contract of Sale. —

(a) The offer to buy private property for public use or purpose shall
be in writing. It shall specify the property sought to be acquired, the
reasons for its acquisition, and the price offered.
(b) If the owner or owners accept the offer in its entirety, a contract
of sale shall be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a
price higher than that offered to them, the local chief executive shall
call them to a conference for the purpose of reaching an agreement
on the selling price. The chairman of the appropriation or finance
committee of the sanggunian, or in his absence, any member of the
sanggunian duly chosen as its representative, shall participate in the
conference. When an agreement is reached by the parties, a contract
of sale shall be drawn and executed.
(d) The contract of sale shall be supported by the following
documents:
(1) Resolution of the sanggunian authorizing the local chief executive
to enter into a contract of sale. The resolution shall specify the terms
and conditions to be embodied in the contract;
(2) Ordinance appropriating the amount specified in the contract; and
(3) Certification of the local treasurer as to availability of funds
together with a statement that such fund shall not be disbursed or
spent for any purpose other than to pay for the purchase of the
property involved.”
 To conclude, the air rights do belong to the property owner and thus to acquire it,
the LGU would need to compensate the said owner, following the procedures enumerated
above.