CIELO LAW OFFICE

Dipolog City

31 October 2022

Doña Jasmine
Dumaguete City
Negros Oriental

Dear Doña Jasmine,

We, the Junior Paralegals of Atty. Mark Jasper Cielo, of the Cielo Law
Office, instructed us to look into your case on the question raising
whether or not the government can still be able to push through with
their plan and take your land.

The following are the facts presented as per discussion. You own a
300-hectare valley in Dumaguete City which is in its boundary with
the mountain town of Valencia, and other surrounding hinterland
towns. The Province of Negros Oriental is seeing the need to increase
accessibility Dumaguete to Valencia and these other hinterland
towns to allow growth from Dumaguete to spill over thereat and
spread the economic boom Dumaguete experiencing.
You opposed this move by the government because you claim that
the existing roads going to and from Valencia are enough for the
purpose envisioned by the government. You claim that the attempt of
your land has no real public welfare purpose and is only a result of
the fact that the Governor of Negros Oriental is in family feud with
your family. You have no intention of selling your property.
However, the DPWH expert agrees that making new roads instead of
just maintaining and expanding the already existing roads more
costly. He agrees that opening the roads through your property
would make travel to Valencia and other towns around it from and to
Dumaguete 50% faster.
Your question now falls on whether or not the government can still
push through their plan.
In this case, we find Article III, Section 9 of the Philippine
Constitution applicable, which states that private property shall not
be taken for public use without just compensation. Moreover, the
Constitution has set two limitations to the Government on the
exercise of this power. These two constitutional limitations are: (1)
just compensation must be paid for the property taken by the
government and (2) the property must be necessary for public use.
In the case of Republic vs. La Orden De PP. Benedictinos De Filipinas, the
court held that private property may be expropriated for public use
and upon payment of just compensation; that condemnation of
private property is justified only if it is for the public good and there
is a genuine necessity therefor of a public character.
Furthermore, in City of Manila v Chinese Community, it is ruled that 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.
In Morrison  vs.  Indianapolis, etc., 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.
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 improvement which 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.)
In the case of China v. Chinese Community of Manila, the court
explained that 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
exists 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 (G.R. No. L-14355).
"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).
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 is 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 Republic v. Kabacan, the court explained that in expropriation
proceedings, just compensation is defined as the full and fair
equivalent of the property taken from its owner by the expropriator.
The measure is not the taker's gain, but the owner's loss. The word
"just" is used to intensify the meaning of the word "compensation"
and to convey thereby the idea that the equivalent to be rendered for
the property to be taken shall be real, substantial, full and ample.32
The constitutional limitation of "just compensation" is considered to
be a sum equivalent to the market value of the property, broadly
defined as the price fixed by the seller in open market in the usual
and ordinary course of legal action and competition; or the fair value
of the property; as between one who receives and one who desires to
sell it, fixed at the time of the actual taking by the government (G.R.
No. 185124).
In Municipality of Meycauayan Bulacan vs Intermediate Appellate Court
states that Condemnation of private property is justified only if it is
for the public good and there is a genuine necessity of a public
character. The provincial government’s move to use her land as an
access road cannot be justified as a genuine necessity of a public
character since there are existing roads going to and from Valencia.
(G.R. No. 72126 January 29, 1988)
In REPUBLIC OF THE PHILIPPINES vs MUPAS states The decision
to exercise the power of eminent domain rests with the legislature
which has the exclusive power to prescribe how and by whom the
power of eminent domain is to be exercised. Thus, the Executive
Department, which in the current case represented by the Provincial
Government of Negros Oriental cannot condemn properties for its
own use without direct authority from the Congress. (G.R. No.
181892, September 8, 2015)
In DIOSDADO LAGCAO vs LABRA, says that the Government may
not capriciously or arbitrarily choose which private property should
be expropriated. It is a fact that the Governor of Negros Oriental and
the family of Dona Jasmine are parties to century old feud. Adding
fuel to the fire, this expropriation of Dona Jasmine’s land is also an
act of the provincial official’s way of singling out a long-time enemy
(G.R. No. 155746, October 13, 2004)
In this case, we contend that you have the right to oppose in the
move of the government to expropriate her property since there are
still other means to carry out the purpose of the government with
respect to its plans to increase accessibility from Dumaguete to
Valencia. Additionally, it is a true fact that the Governor of Negros
Oriental is in a family feud with her family, that draws doubt as to
the plans of the government to use her property to make new roads.
It is well noted that the power of eminent domain is construed
liberally in favor of the owner of the property. As in this case, the
government cannot push through with its plans if it is not an
immediate necessity to make new roads. It is also provided herein, as
per advice of an expert from DPWH that such construction of new
roads will be more costly than maintaining and expanding the
already existing roads.
We, the Junior Paralegals of Cielo Law Office, hope that the following
jurisprudence above-presented can help you ease the questions you
have in mind.

Sincerely,
Lennon J. Elmedulan
Junior Paralegal

Harmony G. Enero
Junior Paralegal

Mark Novem E. Enoy

Junior Paralegal