EMINENT DOMAIN

Definition and Scope:

It is the right, authority or power of the State as sovereign, or of those to whom the power has been
lawfully delegated to take private property for public use upon observance of due process of law and
paying for the owner a just compensation to be ascertained according to law.

Q. What is the scope of the power of eminent domain?

A. In the hands of Congress the scope of the power is, like the scope of legislative power itself, plenary.

Office of the Solicitor General vs. Ayala Land; G.R. No. 177056, 18 September 2009
Eminent domain enables the State to forcibly acquire private lands intended for public use upon payment
of just compensation to the owner.

Who Exercise the power?

City of Manila v. Chinese Cemetery of Manila, 40 Phil 349(1919)

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.

*The power of Eminent Domain is NOT inherent in Municipal Corporation. It must be exercised
in accordance with law. City of Manila vs. Chinese Cemetery of Manila, 40 Phil 349 (1919)

Moday v. Court of Appeals, 268 SCRA 368 (1997)

Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a
fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in
the nature of a compulsory sale to the State, private property for public use or purpose. Inherently
possessed by the national legislature, the power of eminent domain may be validly delegated to local
governments, other public entities and public utilities.

*Municipality may expropriate private property by virtue of a municipal resolution. Moday v.

Court of Appeals, 268 SCRA 368 (1997)

Constitutional Limitation

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. Article III,
Section 9, 1987 Phil Constitution

Power of Eminent Domain must be exercised for the welfare of the people, not simply because
the state wanted to take.

Republic vs. Lim; G.R. No. 161656, 29 June 2005

Provision of Section 9, Article III of the Constitution is not a grant but a limitation of power. This limiting
function is in keeping with the philosophy of the Bill of Rights against the arbitrary exercise of
governmental powers to the detriment of the individual’s rights. Given this function, the provision should
therefore be strictly interpreted against the expropriator, the government, and liberally in favor of the
property owner.

Requisites of taking

Q: Is it possible or is there an instance where the expropriator would return the expropriated property to
the private owner?

A: Yes, there is. We are all aware that for taking to be valid, the elements of public use and compensation
must be present. With respect to the element of public use, the expropriator should commit to use the
property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file
another petition for the new purpose. If not, the expropriator should return to its private owner. (Mactan
Cebu vs Lozada)

Q: For the other element you mentioned, just compensation. How do we determine just compensation?

A: Just compensation is to be determined as of the date of the filing of the complaint. It has been ruled by
the SC 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 Castellvi)

Priority in Expropriation

Q: What is the priority hierarchy in the acquisition of land in the exercise of the power of eminent
domain? Is this mandatory?

A: Under Section 9 of RA 7279, lands for socialized housing shall be acquired in the following
order:

(a) Those owned by the Government or any of its subdivisions, instrumentalities, or

agencies, including government-owned or controlled corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

 (d) Those within the declared Areas or Priority Development, Zonal Improvement
Program sites, and Slum Improvement and Resettlement Program sites which have not
yet been acquired;

(e) Bagong Lipunan Improvement of Sites and Services or BLISS which have not yet
been acquired; and

(f) Privately-owned lands.

Also, Section 10 of the same statute enumerates the different modes of acquiring lands. This includes
community mortgage, land swapping, land assembly or consolidation, land banking, donation to the
Government, joint venture agreement, negotiated purchase, and expropriation. However, the law
expressly provides that expropriation shall be resorted to only when other modes of acquisition have
been exhausted.

We also have to note that, as decided by the SC in the case of Estate or Heirs of the Late Ex-Justice Jose
B.L. Reyes et al. vs. City of Manila, and reiterated in the case of Lagcao vs Judge Labra , Compliance
with these conditions is mandatory because these are the only safeguards of oftentimes helpless
owners of private property against what may be a tyrannical violation of due process when their
property is forcibly taken from them allegedly for public use.

Q: What types of properties, if any, are exempt from acquisition?

A: The SC explains in the case of City of Mandaluyong vs Francisco that the mode of expropriation is
subject to two conditions:

(a) it shall be resorted to only when the other modes of acquisition have been exhausted;

(b) parcels of land owned by small property owners are exempt from such acquisition.

So, it is clear from the foregoing that lands owned by small property owners cannot be subject to
expropriation.

The question now is WTH is “small property owners”?

Section 3(q) of RA 7279 defines small property owners as those whose only real property consists of
residential lands not exceeding 300 sq.m. in highly urbanized cities and eight 800 sq.m. in other urban
areas.

So in sum, Small-property owners are defined by two elements:

(1) those owners of real property whose property consists of residential lands with an area of not
more than 300 square meters in highly urbanized cities and 800 square meters in other urban
areas; and

(2) that they do not own real property other than the same.

PUBLIC USE
Q: What do we mean by public use?

A: The Constitution determines what constitutes public use in at least two cases:

(a) the expropriation of lands to be subdivided into small lots for resale at cost to individuals. 
(b) The transfer, through the exercise of this power, of utilities and other private enterprise to the
government. 
So in effect, whatever may be beneficially employed for the general welfare satisfies the requirements of
public use.

As held by the SC in the case of Estate of Jimenez vs PEZA, 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.

Q: Is it required that the expropriated property be of public ownership?

A: Not necessarily. In the landmark case of Berman vs Parker, the Court ruled that public ownership is
NOT the sole method of promoting the public purposes of a community redevelopment project. It further
held that it is not beyond the power of Congress to utilize an agency of private enterprise for this
purpose, or to authorize the taking of private property and its resale or lease to the same or other
private parties as part of such a project.

Public Use

It is well settled that eminent domain is an inherent power of the State that need not be granted even by
the fundamental law. Sec. 9, Art. Ill of the Constitution, mandating that “private property shall not be
taken for public use without just compensation”, merely imposes a limit on the government’s exercise of
this power and provides a measure of protection to the individual’s right to property. An ejectment suit
should not ordinarily prevail over the State’s power of eminent domain [Republic v. Tagle, G.R. No.
129079, December 2, 1998]

i) Concept. As a requirement for eminent domain, “public use” is the general concept of meeting public
need or public exigency. It is not confined to actual use by the public in its traditional sense. The idea that
“public use” is strictly limited to clear cases of “use by the public” has been abandoned. The term “public
use” has now been held to be synonymous with “public interest”, “public benefit”, “public welfare”, and
“public convenience” [Reyes v. National Housing Authority, G.R. No. 147511, January 20, 2003].

The meaning of “public use” has also been broadened to cover uses which, while not directly available to
the public, redound to their indirect advantage or benefit [Heirs of Juancho Ardona v. Reyes, 125 SCRA
220] QUESTION: It has been held in the case of Reyes v. National Housing Authority that public use
is synonymous to public interest or public benefit. To qualify as a public use, is it required that every
person thus affected must directly benefit from the expropriation of the private property?
Thus, in Filstream International Inc. v. Court of Appeals, 284 SCRA 716, the fact that the property is less
than Vi hectare and that only a few could actually benefit from the expropriation does not diminish its
public use character, inasmuch as “public use” now includes the broader notion of indirect public benefit
or advantage, including, in particular, urban land reform and housing.

That only few would actually benefit from the expropriation of the property does not necessarily diminish
the essence and character of public use [Manosca v. Court of Appeals, 252 SCRA 412].

Genuine Necessity

Question

It has been said that the foundation of the right to exercise eminent domain is genuine necessity (Lagcao
v. Judge Labra). May I ask precisely, what does genuine necessity mean and can you cite instances
where there really is no genuine necessity to expropriate a private property?

Answer:

Great questions! You are correct in saying that the foundation of the right to exercise eminent domain is
genuine necessity, and that necessity must be a public necessity. So to answer your first question, there is
genuine necessity when there is a public necessity calling for the exercise of the power of eminent
domain. So, there is no genuine necessity if the taking is to benefit private parties (Dela Paz Masikip vs.
Judge Legaspi).

Follow-up question

So, Mr. Tolledo, are you saying that the government cannot just choose any property that it wants to take?

Answer:

Precisely. The choice of property to be expropriated cannot be without rhyme or reason (De Knecht vs.
Bautista). In other words, the choice cannot be arbitrary such as when there are several other private
properties similarly situated that are more appropriate thereby not causing harm, for example, to the
owner who might also badly need the property, say for business. (Mun. of Meycauayan v. IAC)

Government Withdrawal

Question:

Suppose the government had already taken the private property and then filed a case to expropriate it but
then it changed its mind, say for example, the just compensation is “too high or unacceptable”. Will it be
allowed to abandon the case?
Answer

No. In your example, the landowner had already been prejudiced by the expropriation. (NHA vs. Heirs of
Isidro Guivelondo) It cannot be allowed to arbitrarily and capriciously dismiss the complaint precisely
because the landowner may have already suffered damages at the start of the taking (NPC & Pobre vs.
CA)

On the other hand, the government may still withdraw the case at the very moment that it appears at any
stage of the proceedings that the expropriation is not for a public use, the action must necessarily fail and
should be dismissed, for the reason that the action cannot be maintained at all except when the
expropriation is for some public use. (Republic vs. Heirs of Borbon