G.R. No.

L-9865 December 24, 1915

VERGO D. TUFEXIS, plaintiff-appellant,

vs.
FRANCISCO OLAGUERA and THE MUNICIPAL COUNCIL OF GUINOBATAN, represented by its
president, Agapito Paulate, defendants-appellees.

Rafael de la Sierra for appellant.

Attorney-General Avanceña for appellee Municipal Council of Guinobatan.
No appearance for the other appellee.

TORRES, J.:

Counsel for plaintiff, in his written petition of May 13, 1913, prayed the Court of First Instance of Albay
to declare that his client was entitled to the possession and use of the land referred to in the
complaint in conformity with the terms of the Government concession (Exhibit A), of which he claimed
to be the sole and lawful owner; that the defendants be ordered to remove from the said land all the
stores, sheds, billiard tables, and other obstructions thereon, so that plaintiff might reconstruct the
public market building on the said land in accordance with the provisions of the said concession, and
that they be ordered to pay jointly and severally to the plaintiff, as damages, the sum of P250 per
month from March 1, 1912, until the date on which the land be vacated, and to pay the legal costs
and expenses of the suit.

After the complaint had been answered by counsel for the defendant Francisco Olaguera, who
prayed that his client be absolved therefrom, with the costs against the plaintiff, the provincial fiscal, in
the name and representation of the municipality of Guinobatan, demurred on the ground that plaintiff
lacked the personality to institute the action and further alleged that the complaint did not set forth
sufficient facts to constitute a cause of action.
1awphil.net

By an order of August 25, 1913, the court sustained the demurrer filed by the defendant municipality
of Guinobatan, allowed plaintiff ten days in which to amend his complaint, and notified him that unless
he did so within that period the action would be dismissed.

Counsel for plaintiff, by a writing of the 27th of the said month, set forth: That he objected to the
above ruling as he believed it erroneous and contrary to law; that he did not desire to amend his
complaint, wherefore, in accordance with the provisions of section 101 of the Code of Civil Procedure,
the court should render such judgment in the case as the law might warrant, and his exception to the
said ruling should be entered on the record. By an order of September 1, 1913, the court, overruling
the motion made by the defendant Olaguera, dismissed the complaint filed by the plaintiff, Vergo D.
Tufexis, against the municipal council of Guinobatan on the ground that plaintiff had not amended his
complaint. Plaintiff's counsel, when notified of this ruling, excepted thereto and moved for a rehearing
and a new trial. This motion was overruled, whereupon the plaintiff excepted and filed the proper bill
of exceptions.

In the complaint filed by counsel for Vergo D. Tufexis, it was alleged that on September 30, 1911,
plaintiff acquired at a public sale held in execution of a judgment rendered against Ricardo Pardo y
Pujol, a piece of property situated in the municipality of Guinobatan, consisting of a frame building of
strong materials with a galvanized-iron roof, erected on a parcel of land belonging to that municipality
and intended for a public market; that plaintiff also acquired at the sale all the right, interest, title, and
participation in the said property that appertained or might appertain to Pardo y Pujol; that the said
building was constructed by virtue of a concession granted by the former Spanish government to
Ricardo Pardo y Cabañas, father of the judgment debtor, who, by a public instrument of July 31,
1912, renounced his right to redeem the said property and conveyed it to plaintiff, together with all his
rights therein, the instrument of grant, Exhibit A, being attached to the complaint as a part thereof;
that on January 2, 1912, the said building was totally destroyed by an accidental fire; that subsequent
to the date just mentioned and for several months thereafter the municipal council of Guinobatan
carried on negotiations with plaintiff for the purchase of his rights in the said concession; that these
negotiations could not be brought to a conclusion because the municipal council had acted therein
deceitfully, fraudulently, and in bad faith and for the sole purpose of beguiling, deceiving, and
prejudicing plaintiff in order to prevent him from exercising his right to reconstruct the burned market
building and utilize it in accordance with the terms of the said concession; that the defendant
municipal council, without plaintiff's consent and in connivance with the other defendant, Francisco
Olaguera, had authorized the latter unlawfully to take possession of all the land from March 1, 1912,
in violation of plaintiff's rights; that the said Olaguera occupied the same with booths or stores for the
sale of groceries and other merchandise, for billiard tables, and other analogous uses and derived
unlawful gain from the revenues and rents produced by the said buildings; that plaintiff was entitled to
the possession of the said land in accordance with the concession, which was in full force and effect
and belonged to plaintiff; that plaintiff proposed to construct another public market building on the
same land, but that the defendants had prevented him from using the land and reconstructing thereon
the said public market building, and refused to recognize plaintiff's right and to vacate the land that
had been occupied by the burned edifice.

The provincial fiscal alleged as a ground for the demurrer that in no part of the instrument of
concession did it appear that the privilege granted to Ricardo Pardo y Cabañas had likewise been
granted to his successors or assignees, and that therefore such rights and actions as might have
appertained to the assignee, Pardo y Cabañas, could not be conveyed to nor could they be acquired
by any other person; that it was alleged in the complaint that the building was completely destroyed
by fire on January 2, 1912, and that if plaintiff's right to the possession of the land was conditioned by
the existence thereon of the said market building, such right had terminated by the disappearance of
the building, inasmuch as plaintiff's right of action for the possession of the land was a corollary of the
existence or nonexistence of the market building, and upon the disappearance of the latter the eland
had reverted to the control of its owner; that pursuant to the terms of the said concession, the land
belonging to the municipality was granted for the purpose of constructing thereon a market, and as
this market had disappeared plaintiff would need a new concession, if it could be obtained, in order to
be entitled to the possession of the land and to construct a new building; that by plaintiff's acquiring
the right, title and interest of Ricardo Pardo y Pujol in the land he could not be understood to have
also acquired such right and interest in the building intended for a public market, for the purchase of
the building refers only to the edifice itself and it never could be understood that plaintiff acquired any
right in the concession, which was never sold to him, as the complaint contains no allegation
whatever that he purchased or acquired such right; that a personal privilege like the said concession
is only temporary and is extinguished at the death of the grantee, unless otherwise provided in the
grant; and that, from the lack of an allegation in the complaint that plaintiff legally purchased or
acquired the right in the said concession, it was evident that the complaint did not allege sufficient
facts to constitute a cause of action and was fatally defective.

The question presented in the case at bar consists of whether a building of strong materials, erected
by the said debtor's father, Ricardo Pardo y Cabañas, on land belonging to the municipality of
Guinobatan and intended for a public market, by virtue of a concession granted on August 4, 1884,
under the conditions therein imposed upon the grantee, could be attached and sold for the payment
of a certain debt owed by Ricardo Pardo y Pujol to a third person who had obtained a final judgment.
In deciding this question it is indispensable to determine what rights were acquired by Pardo y Pujol's
father by virtue of the said concession granted to him by the Spanish Government, in the building
erected by him on a parcel of land belonging to the municipality of Guinobatan. The concession
referred to contains, among other provisions, the following: itc-a1f

ARTICLE 1. There is hereby granted to Mr. Ricardo Pardo y Cabañas the parcel of land in the
pueblo of Guinobatan, a prolongation of another parcel belonging to him, situated between the
store and house of the Chinaman Valentin Garcia and that of Mr. Roco, following the line of
Calle Real or Calzada de Albay and that of Calle del Carmen, up to and as far as the square
that is to be laid out in the said pueblo.

ART. 2. On the said land the petitioner shall construct a public market building, with a
galvanized-iron roof, in accordance with the plan submitted to this office on the 13th of last
May and which was approved by his Excellency the Governor-General in conformity with the
changes recommended by the advisory board of the consulting board of public works; and
these changes are those hereinafter specified.

ART. 3. The said Mr. Pardo is granted the right to enjoy the revenue derived from the floor
space of the market for the period of forty years, since the revenue from such floor space
appertains to the grantee of the said service. By floor space is meant the right to shelter or
retail merchandise in the market belonging to the grantee.

ART. 4. On the expiration of the said period both the land aforementioned and the building
thereon constructed shall be the property of the Government and the building shall be
delivered to it in good condition.

ART. 5. It shall be obligatory for every vendor to sell his goods in the said market, which shall
be the only one in the said pueblo.

ART. 7. The said authority shall put Mr. Pardo in possession of the land affected by this
concession, and the proper proceedings in connection therewith shall be had in the presence
of the chief engineer of public works of the said district and the headmen of the pueblo.

ART. 8. Mr. Pardo shall inform this office of the date of the commencement of the work of
construction, and the work shall be inspected by the public works officials residing in Albay; the
building when completed shall be examined and accepted by the chief engineer of the district
of Nueva Caceres or by the deputy to whom the latter may delegate this duty: all with the
knowledge of the office of the inspector of public works.

The land on which the building was erected and which is referred to in the foregoing articles,
contained in the franchise granted by the Government of the former sovereignty, belongs to the
municipality of Guinobatan. Although the building was constructed at the expense and with the money
of the grantee, Ricardo Pardo y Cabañas, it is, nevertheless, the property of the state or of the said
municipality, and was temporarily transferred to the grantee, Pardo y Cabañas, in order that he might
enjoy the usufruct of its floor space for forty years, but on the termination of this period the said right
of usufruct was to cease and the building was to belong finally and absolutely to the state or the
municipality in representation thereof.

For these reasons, then, there is no question that the building and the land on which it was erected,
since they did not belong to the grantee, Pardo y Cabañas, nor do they belong to his son and heir,
Ricardo Pardo y Pujol, could not be attached or sold for the payment of a debt contracted by the
latter.
The concession granted by the former Spanish Government is personal and transferable only by
inheritance, and in no manner could it be conveyed as a special personal privilege to another and a
third person unless were an hereditary successor of the grantee, Pardo y Cabañas, without
knowledge and consent of the administrative authorities under whose control the special right of
usufruct in the floor space of the said market building was enjoyed and exercised.

Even though it is unquestionable that the creditor has a right to collect the money due him, out of his
debtor's property, yet when among such property is included the right of usufruct in a public-service
building and this right is closely related to a service of a public character, the right that lies in behalf of
the creditor for the collection of a debt from the person who enjoys the said special privilege of right of
usufruct in the floor space of a building intended for a public market is not absolute and may be
exercised only through the action of a court of justice with respect to the profits or revenues obtained
under the special right of usufruct granted to the debtor.

Ricardo Pardo y Pujol, as the successor and heir of the grantee, Pardo y Cabañas, is bound to pay
his debts and his property can be attached on petition of his creditors. However, his personal privilege
of usufruct in the floor space of the public market building of Guinobatan cannot be attached like any
ordinary right, because that would mean that a person who has contracted with the state or with the
Governmental authorities to furnish a service of a public character would be substituted, for another
person who took no part in the contract, and that the regular course of a public service would be
disturbed by the more or less legal action of the creditors of a grantee, to the prejudice of the state
and the public interests.

It is indeed true that the building, which for many years served as a public market in the pueblo of
Guinobatan, was erected out of the private funds of the grantee, Pardo y Cabañas, and at first sight it
seems natural that the latter, who paid the cost of the construction of the building, should be its
owner. However, judging from the agreement between him and the Government authorities, he was
granted the right to usufruct in the floor space of the said building in order that, during the period of
forty years, he might reimburse himself for and collect the value of the building constructed by him;
and it must be believed that Pardo y Cabañas, before executing the contract with the Government for
the purpose of obtaining the right of usufruct granted to him and before accepting the contract,
thought over its conditions deliberately and maturely and felt sure that he would profit thereby, that is,
that he would reimburse himself for the value of the building he erected, and obtain interest on the
investment and other advantages by enjoying the usufruct for the space of forty long years, as in fact
even after his death this right continued to be enjoyed by his son, Ricardo Pardo y Pujol. Therefore,
the said privilege conferred on the grantee by the Spanish Government on August 4, 1884, was
neither onerous nor prejudicial to him or his heir, but on the contrary was beneficial to them.

So, if neither the land nor the building in question belongs to Pardo y Pujol, it is evident that they
could not be attached or sold at public auction to satisfy his debt and, consequently, the attachment
and sale of the said Government property executed on petition of the creditor of the said Pardo y
Pujol are notoriously illegal, null and void, and the acquisition of the property by plaintiff confers upon
him no right whatever based on the said concession.

In the decision in the case of Lopez vs. Alvarez (9 Phil. Rep., 28) the principle was asserted that:

In attachments of all kinds it is an essential condition that the thing which is attached shall be the
property of the debtor, and from no provision of the Mortgage Law can any conclusion be drawn
which shall be contrary to this principle.

This same principle was set up in the decision of the case of Alvaran vs. Marquez (11 Phil. Rep.,
263).
It having been demonstrated by the foregoing reasons that the building constructed on land of the
municipality of Guinobatan for a public market could not be attached and sold as the result of a debt
contracted by Ricardo Pardo y Pujol in favor of a third person, we shall now proceed to examine
whether an attachment would lie of the special right, granted by the former Spanish Government to
the said debtor's father, of usufruct in the floor space of the said market and right to collect the
revenues therefrom for the period of forty years, counted from the date of the granting of the said
right.

Without the consent of the proper administrative official, a grantee, or one charged with conducting a
public service such as a market of the municipality of Guinobatan, cannot be permitted to be
substituted by any other person, though this latter be a creditor of the usufructuary grantee. Hence,
we hold that the attachment of the right of usufruct in the said building and of collecting the revenue
obtained from the floor space of the said public market of Guinobatan, was illegal, because, were this
right susceptible of attachment, a third person, as a creditor or a purchaser, might exercise such right,
notwithstanding his personal status, instead of the grantee contractor. This theory does not bar the
creditor from collecting the money owed him by the grantee, inasmuch as he has the right to petition
the courts to allow him through proper legal proceedings to collect his money out of the revenues
produced by the usufruct conferred by the Government on the grantee of the said service.

The concession obtained by Ricardo Pardo y Pujol's father on August 4, 1884, is a true sovereignty
and the grantee, Pardo y Cabañas, and therefore the stipulations made by and between the
contracting parties, the obligation to which that contract may have given rise, and the consequences
that may have been entailed by the contract, all come within the scope of the civil law which
guarantees the rights of the contracting parties.

Although in our opinion the said concession is somewhat of the nature of a franchise, yet we do not
think that the provisions of sections 56 to 61 of Act No. 1459 are applicable to the case at bar, for
these sections refer to a franchise granted to a corporation, while the concession given by the former
Spanish Government was granted to a private party and not to a corporation or judicial entity.
Therefore, though under the said Act a franchise is subject to attachment, the Act contains no
express provision whatever which authorizes the attachment and sale of a right or franchise
especially granted to a private party under the conditions in which the concession in question was
granted. The substitution of a third person instead of the one who obtained such an administrative
concession must be explicitly authorized by the proper official of the administrative branch of the
Government in order that the substitute may exercise the right so granted.

In the case of Ricardo y Pujol, the grantee of the usufruct on the floor space in the said market
building in Guinobatan, his creditor, in order to obtain the payment of his credit, could have applied to
the courts for an attachment of the revenues or proceeds collected by his said debtor by virtue of the
said concession; but it was in no wise proper to attach and sell the right granted by the public
administration to operate and enjoy the usufruct of the floor space of the said public market.

Although there is no similarity between the management of a public market and that of a railroad
company, yet for the reason that the operation of the one as well as the other is of public interest,
when a creditor of such a company sues to collect a debt it would be improper to attach the stationary
equipment and rolling stock of the railroad — only the gross receipts of the business over and above
the amount required for its operation could be touched. This same legal principle holds in the case
where the grantee of a market is a debtor and his property is attached on petition of his creditor. The
receipts of the market may be attached, but not the right to operate and conduct the service, which is
of a public character.
In fact, article 1448 of the Ley de Enjuiciamiento Civil, cited in this decision, not as a law now in force,
but for the purpose of setting out a principle of law, prohibits the levy of attachments on railroads
opened to public service, and on the stations, stores, shops, lands, works and buildings necessary for
their operation, or on the locomotives, rails and other material intended for the operation of the line.
When execution is levied on such railroad companies, the proceedings are governed by the
provisions of the Law of November 12, 1869, extended by a royal order of August 3, 1886, to the
overseas provinces. This law prescribes among other things that attachments may be levied and
executed only on the gross receipts remaining after the necessary operating expenses have been
deducted.

In harmony with this legal provision, the supreme court of the State of Nebraska, in which State there
is no law whatever that authorizes the attachment and sale of a bridge belonging to a corporation, in
the case of the Overton Bridge co. vs. Means (33 Neb., 857) laid down the principle that such a
bridge and the rights of the corporation therein could not be sold to satisfy a judgment against the
corporation for the reason that:

The property of corporations which are closed as public agencies, such as railroad and bridge
companies, which is essential to the exercise of their corporate franchise, and the discharge of
the duties they have assumed toward the general public, cannot, without statutory authority, be
sold to satisfy a common law judgment.

It cites decisions of several states, and also, in the decision referred to, cited Morawetz on Private
Corporations, section 1125, and held that after attachment of the property not necessary to enable
the corporation to perform its duties to the public, the only remedy remaining to a judgment creditor
was to obtain the appointment of a receiver and a sequestration of the company's earnings.

The supreme court of Alabama, in deciding a similar case (Gardner vs. Mobile & Northwestern R.R.
Co., 102 Ala., 635, 645), affirmed the same principle and said:

The only remedy of a judgment creditor is to obtain the appointment of a receiver and the
sequestration of its income or earnings.

It is to be noted that section 56 of Act No. 1459, which permits the sale under execution of a
corporation's franchise, is in no wise applicable to the case at bar, for the reason that, since this Act
was promulgated on March 1, 1906, it could not and cannot affect the laws, decrees, and orders of
the Spanish government in conformity with which the administrative concession, Exhibit A, was
granted to Pardo y Cabañas.

The operation of a railroad is of public interest, and concerns both the public and the state, even
though the superintendent and management thereof be conducted by a private company. Therefore,
the property of a railroad, either its rolling stock or permanent equipment, is not subject to attachment
and sale, and the rights of the creditors of the operating company may be exercised for the collection
of their credit only of the gross receipts after the operation of the railroad is insured from its own
income.

This decision is based on the provisions of the aforecited law and the premise that the usufruct of the
floor space of the public market of Guinobatan, granted to Ricardo Pardo y Pujol's father was not
subject to attachment on account of its being of a public character, but still the latter's creditor could
have applied for a writ of execution and laid an attachment on the proceeds obtained from the
operation of the market, which proceeds or income could have been collected by a receiver and
intervenor.
This, however, was not done, but on the creditor's petition the public market building, which was not
his debtor's property, together with all the right, interest, title and participation which the latter had or
might have had therein, was attached and sold; and as plaintiff was unable to acquire any right or title
in such property illegally sold and illegally acquired by him at public auction or in the usufruct of the
floor space of the building, it is unquestionable that he lacks the personality to claim possession of the
land that belongs to the municipality or the enjoyment and exercise of the right conferred by the
aforesaid administrative concession, which was and is inalienable on account of its being a personal
right. For the same reason, plaintiff has no right to reconstruct the burned building on the land where
it formerly stood.

The only right to which the creditor was entitled was to petition for the attachment of the income and
proceeds obtained from the use of the floor space of the market; but he did not avail himself of this
right, nor were the receipts therefrom attached, nor were they adjudicated either to the creditor or to
the plaintiff Tufexis. Therefore, the order of dismissal appealed is in accordance with law and the
merits of the case, and likewise the errors assigned thereto have been duly refuted by the reasons
set forth herein.

For the foregoing considerations, we hereby affirm the said order of dismissal, with the costs against
the appellant. So ordered.

Arellano, C.J., Moreland, and Araullo, JJ., concur.

Johnson, J., concurs in the result.

G.R. No. L-15829 December 4, 1967

ROMAN R. SANTOS, petitioner-appellee,

vs.
HON. FLORENCIO MORENO, as Secretary of Public Works and Communications and JULIAN
C. CARGULLO, respondents-appellants.

Gil R. Carlos and Associates for petitioner-appellee.

Office of the Solicitor General for respondents-appellants.

BENGZON, J.P., J.:

THE APPEAL

The Honorable Secretary of Public Works & Communications appeals from the decision of the Court
of First Instance of Manila declaring of private ownership certain creeks situated in barrio San
Esteban, Macabebe, Pampanga.

THE BACKGROUND

The Zobel family of Spain formerly owned vast track of marshland in the municipality of Macabebe,
Pampanga province. Called Hacienda San Esteban, it was administered and managed by the Ayala y
Cia. From the year 1860 to about the year 1924 Ayala y Cia., devoted the hacienda to the planting
and cultivation of nipa palms from which it gathered nipa sap or "tuba." It operated a distillery plant in
barrio San Esteban to turn nipa tuba into potable alcohol which was in turn manufactured into liquor.

Accessibility through the nipa palms deep into the hacienda posed as a problem. Ayala y Cia.,
therefore dug canals leading towards the hacienda's interior where most of them interlinked with each
other. The canals facilitated the gathering of tuba and the guarding and patrolling of the hacienda by
security guards called "arundines." By the gradual process of erosion these canals acquired the
characteristics and dimensions of rivers.

In 1924 Ayala y Cia shifted from the business of alcohol production to bangus culture. It converted
Hacienda San Esteban from a forest of nipa groves to a web of fishponds. To do so, it cut down the
nipa palm, constructed dikes and closed the canals criss-crossing the hacienda.

Sometime in 1925 or 1926 Ayala y Cia., sold a portion of Hacienda San Esteban to Roman Santos
who also transformed the swamp land into a fishpond. In so doing, he closed and built dikes across
Sapang Malauling Maragul, Quiñorang Silab, Pepangebunan, Bulacus, Nigui and Nasi.

The closing of the man-made canals in Hacienda San Esteban drew complaints from residents of the
surrounding communities. Claiming that the closing of the canals caused floods during the rainy
season, and that it deprived them of their means of transportation and fishing grounds, said residents
demanded re-opening of those canals. Subsequently, Mayor Lazaro Yambao of Macabebe,
accompanied by policemen and some residents went to Hacienda San Esteban and opened the
closure dikes at Sapang Malauling Maragul Nigui and Quiñorang Silab. Whereupon, Roman Santos
filed Civil Case No. 4488 in the Court of First Instance of Pampanga which preliminarily enjoined
Mayor Yambao and others from demolishing the dikes across the canals. The municipal officials of
Macabebe countered by filing a complaint (docketed as Civil Case No. 4527) in the same court. The
Pampanga Court of First Instance rendered judgment in both cases against Roman Santos who
immediately elevated the case to the Supreme Court.

In the meantime, the Secretary of Commerce and Communications1 conducted his own investigation
and found that the aforementioned six streams closed by Roman Santos were natural, floatable and
navigable and were utilized by the public for transportation since time immemorial. He consequently
ordered Roman Santos on November 3, 1930 to demolish the dikes across said six streams.
However, on May 8, 1931 the said official revoked his decision of November 3, 1930 and declared the
streams in question privately owned because they were artificially constructed. Subsequently, upon
authority granted under Act 3982 the Secretary of Commerce and Communications entered into a
contract with Roman Santos whereby the former recognized the private ownership of Sapang
Malauling Maragul, Quiñorang Silab, Pepangebunan, Bulacus, Nigui and Nasi and the latter turned
over for public use two artificial canals and bound himself to maintain them in navigable state. The
Provincial Board of Pampanga and the municipal councils of Macabebe and Masantol objected to the
contract. However, the Secretary of Justice, in his opinion dated March 6, 1934, upheld its legality.
Roman Santos withdraw his appeals in the Supreme Court.

With respect to the portion of Hacienda San Esteban still owned by the Zobel family, the municipal
authorities of Macabebe filed in 1930 an administrative complaint, in the Bureau of Public Works
praying for the opening of the dikes and dams across certain streams in Hacienda San Esteban.
Whereupon, the district engineer of Pampanga and a representative of the Bureau of Public Works
conducted investigations. In the meantime, the Attorney General, upon a query from the Secretary of
Commerce and Communications, rendered an opinion dated October 11, 1930 sustaining the latter's
power to declare streams as publicly owned under Sec. 4 of Act 2152, as amended by Act 3208.

On September 29, 1930 the investigator of the Bureau of Public Works, Eliseo Panopio, submitted his
report recommending the removal of the dikes and dams in question. And on the basis of said report,
the Secretary of Commerce and Communications rendered his decision on November 3, 1930
ordering Ayala y Cia., to demolish the dikes and dams across the streams named therein situated in
Hacienda San Esteban. Ayala y Cia., moved for reconsideration, questioning the power of the
Secretary of Commerce and Communications to order the demolition of said dikes.
Days before the Secretary of Commerce and Communications rendered his aforementioned decision,
Ayala y Cia., thru counsel, made representations with the Director of Public Works for a compromise
agreement. In its letter dated October 11, 1930, Ayala y Cia., offered to admit public ownership of the
following creeks:

Antipolo, Batasan Teracan, Biuas or Batasan, Capiz, Carbon, Cutut, Dalayap, Enrique, Iba,
Inaun, Margarita, Malauli or Budbud, Matalaba Palapat, Palipit Maisao, Panlovenas,
Panquitan, Quinapati, Quiñorang, Bubong or Malauli Malati, Salop, Sinubli and Vitas.

provided the rest of the streams were declared private. Acting on said offer, the Director of Public
Works instructed the surveyor in his office, Eliseo Panopio, to proceed to Pampanga and conduct
another investigation.

On January 23, 1931 Panopio submitted his report to the Director of Public Works recommending that
some streams enumerated therein be declared public and some private on the ground that they were
originally dug by the hacienda owners. The private streams were:

Agape, Atlong, Cruz, Balanga, Batasan, Batasan Matlaue, Balibago, Baliti, Bato, Buengco
Malati, Bungalin, Bungo Malati, Bungo Maragui, Buta-buta, Camastiles, Catlu, Cauayan or
Biabas, Cela, Dampalit, Danlimpu, Dilinquente, Fabian, Laguzan, Lalap Maburac, Mabutol,
Macabacle, Maragul or Macanduli, Macabacle or Mababo, Maisac, Malande, Malati,
Magasawa, Maniup, Manulit, Mapanlao, Maisac, Maragul Mariablus Malate, Masamaral,
Mitulid, Nasi, Nigui or Bulacus, Palipit, Maragul, Pangebonan, Paumbong, Pasco or Culali,
Pilapil, Pinac Malati, Pinac, Maragul or Macabacle, Quiñorang Silab or Malauli Maragul,
Raymundo, Salamin, Salop Maisac, Salop Maragul, Sermon and Sinca or Mabulog.

He therefore recommended revocation of the decision already mentioned above, dated November 3,
1930 of the Secretary of Commerce and Communications ordering the demolition of the dikes closing
Malauling Maragul, Quiñorang, Silab, Pepangebonan, Nigui, Bulacus, Nasi, and Pinac. On February
13, 1931 the Director of Public Works concurred in Panopio's report and forwarded the same the
Secretary of Commerce and Communications.

On February 25, 1935 the municipality of Macabebe and the Zobel family executed an agreement
whereby they recognized the nature of the streams mentioned in Panopio's report as public or private,
depending on the findings in said report. This agreement was approved by the Secretary of Public
Works and Communications on February 27, 1935 and confirmed the next day by the municipal
council of Macabebe under Resolution No. 36.

A few months later, that is, on June 12, 1935, the then Secretary of Justice issued an opinion holding
that the contract executed by the Zobel family and the municipality of Macabebe has no validity for
two reasons, namely, (1) the streams although originally dug by Ayala y Cia., lost their private nature
by prescription inasmuch as the public was allowed to use them for navigation and fishing, citing
Mercado vs. Municipality of Macabebe, 59 Phil. 592; and (2) at the time the Secretary of Commerce
and Communications approved the said contract, he had no more power so to do, because such
power under Sec. 2 of Act 2152 was revoked by the amending Act 4175 which took effect on
December 7, 1934.

Despite the above ruling of the Secretary of Justice, the streams in question remained closed.

In 1939 administrative investigations were again conducted by various agencies of the Executive
branch of our government culminating in an order of President Manuel Quezon immediately before
the national elections in 1941 requiring the opening of Sapang Macanduling, Maragul Macabacle,
Balbaro and Cansusu. Said streams were again closed in 1942 allegedly upon order of President
Quezon.

THE CASE

Roman Santos acquired in 1940 from the Zobel family a larger portion of Hacienda San Esteban
wherein are located 25 streams which were closed by Ayala y Cia., and are now the subject matter in
the instant controversy.

Eighteen years later, that is in 1958, Congress enacted Republic Act No. 2056 2 following a
congressional inquiry which was kindled by a speech delivered by Senator Rogelio de la Rosa in the
Senate. On August 15, 1958 Senator de la Rosa requested in writing the Secretary of Public Works
and communications to proceed in pursuance of Republic Act No. 2056 against fishpond owners in
the province of Pampanga who have closed rivers and appropriated them as fishponds without color
of title. On the same day, Benigno Musni and other residents in the vicinity of Hacienda San Esteban
petitioned the Secretary of Public Works and Communications to open the following streams:

Balbaro, Batasan Matua, Bunga, Cansusu, Macabacle, Macanduling, Maragul, Mariablus,

Malate, Matalabang, Maisac, Nigui, Quiñorang Silab, Sapang Maragul and Sepung Bato.

Thereupon, the Secretary of Public Works and Communications instructed Julian C. Cargullo to
conduct an investigation on the above named streams.

On October 20, 1958 Musni and his co-petitioners amended their petition to include other streams.
The amended petition therefore covered the following streams:

Balbaro, Balili, Banawa, Batasan Matua Bato, Bengco, Bunga, Buta-buta, Camastiles,
Cansusu, Cela, Don Timpo, Mabalanga, Mabutol, Macabacle, Macabacle qng. Iba,
Macanduling, Maragul, Malauli, Magasawa, Mariablus Malate Masamaral, Matalabang Maisa,
Mariablus,3 Nigui, Pita, Quiñorang, Silab, Sapang Maragul, Sepung Bato, Sinag and Tumbong.

On March 2, 4, 10, 30 and 31, and April 1, 1959, the Secretary of Public Works and Communications
rendered his decisions ordering the opening and restoration of the channel of all the streams in
controversy except Sapang Malauling, Maragul, Quiñorang, Silab, Nigui Pepangebonan, Nasi and
Bulacus, within 30 days on the ground that said streams belong to the public domain.

On April 29, 1959, that is, after receipt of the Secretary's decision dated March 4, 1959, Roman
Santos filed a motion with the Court of First Instance of Man for junction against the Secretary of
Public Works and Communications and Julian C. Cargullo. As prayed for preliminary injunction was
granted on May 8, 1959. The Secretary of Public Work and Communications answered and alleged
as defense that venue was improperly laid; that Roman Santos failed to exhaust administrative
remedies; that the contract between Ayala y Cia., and the Municipality of Macabebe is null and void;
and, that Section 39 of Act 496 excludes public streams from the operation of the Torrens System.

On April 29 and June 12, 1969, Roman Santos received the decision of the Secretary of Public Works
and Communications dated March 10 and March 30, March 31, and April 1, 1959. Consequently, on
June 24, 1959 he asked the court to cite in contempt Secretary Florendo Moreno, Undersecretary
M.D. Bautista and Julian Cargullo for issuing and serving upon him the said decisions despite the
existence of the preliminary injunction. The Solicitor General opposed the motion alleging that the
decisions in question had long been issued when the petition for injunction was filed, that they were
received after preliminary injunction issued because they were transmitted through the District
Engineer of Pampanga to Roman Santos; that their issuance was for Roman Santos' information and
guidance; and, that the motion did not allege that respondents took steps to enforce the decision.
Acting upon said motion, on July 17, 1959, the trial court considered unsatisfactory the explanation of
the Solicitor General but ruled that Secretary Florencio Moreno, Undersecretary M.D. Bautista and
Julian Cargullo acted in good faith. Hence, they were merely "admonished to desist from any and
further action in this case, observe the preliminary injunction issued by this Court, with the stern
warning, however, that a repetition of the acts complained of shall be dealt with severely."

On July 18, 1959 the trial court declared all the streams under litigation private, and rendered the
following judgment:

The Writ of preliminary injunction restraining the respondent Secretary of Public Works &
Communications from enforcing the decisions of March 2 And 4, 1959 and all other similar
decisions is hereby made permanent.

The Secretary of Public Works and Communication and Julian Cargullo appealed to this Court from
the order of July 17, 1959 issued in connection with Roman Santos' motion for contempt and from the
decision of the lower court on the merits of the case.

ISSUES

The issues are: (1) Did Roman Santos exhaust administrative remedies? (2) Was venue properly
laid? (3) Did the lower court err in conducting a trial de novo of the case and in admitting evidence not
presented during the administrative proceeding? (4) Do the streams involved in this case belong to
the public domain or to the owner of Hacienda San Esteban according to law and the evidence
submitted to the Department of Public Works and Communications?

DISCUSSION OF THE ISSUES

1. Respondents maintain that Roman Santos resorted to the courts without first exhausting
administrative remedies available to him, namely, (a) motion for reconsideration of the decisions of
the Secretary of Public Works and Communications; and, (b) appeal to the President of the
Philippines.

Whether a litigant, in exhausting available administrative remedies, need move for the
reconsideration of an administrative decision before he can turn to the courts for relief, would largely
depend upon the pertinent law,4 the rules of procedure and the usual practice followed in a particular
office.5

Republic Act No. 2056 does not require the filing of a motion for reconsideration as a condition
precedent to judicial relief. From the context of the law, the intention of the legislators to forego a
motion for reconsideration manifests itself clearly. Republic Act No. 2056 underscores the urgency
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and summary nature of the proceedings authorized thereunder. Thus in Section 2 thereof the
Secretary of Public Works and Communications under pain of criminal liability is duty bound to
terminate the proceedings and render his decision within a period not exceeding 90 days from the
filing of the complaint. Under the same section, the party respondent concerned is given not than 30
days within which to comply with the decision of the Secretary of Public Works and Communications,
otherwise the removal of the dams would be done by the Government at the expense of said party.
Congress has precisely provided for a speedy and a most expeditious proceeding for the removal of
illegal obstructions to rivers and on the basis of such a provision it would be preposterous to conclude
that it had in mind to require a party to file a motion for reconsideration — an additional proceeding
which would certainly lengthen the time towards the final settlement of existing controversies. The
logical conclusion is that Congress intended the decision of the Secretary of Public Works and
Communications to be final and executory subject to a timely review by the courts without going
through formal and time consuming preliminaries.

Moreover, the issues raised during the administrative proceedings of this case are the same ones
submitted to court for resolution. No new matter was introduced during the proceeding in the court
below which the Secretary of Public Works and Communications had no opportunity to correct under
his authority.

Furthermore, Roman Santos assailed the constitutionality of Republic Act No. 2056 and the
jurisdiction of the Secretary of Public Works and Communications to order the demolition of dams
across rivers or streams. Those questions are not within the competence of said Secretary to decide
upon a motion for reconsideration. They are purely legal questions, not administrative in nature, and
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should properly be aired before a competent court as was rightly done by petitioner Roman Santos .

At any rate, there is no showing in the records of this case that the Secretary of Public Works and
Communications adopted rule of procedure in investigations authorized under Republic Act No. 2056
which require a party litigant to file a motion for the reconsideration of the Secretary's decision before
he can appeal to the courts. Roman Santos however stated in his brief that the practice is not to
entertain motions for reconsideration for the reason that Republic Act No. 2056 does not expressly or
impliedly allow the Secretary to grant the same. Roman Santos' statement is supported by Opinion
No. 61, Series of 1959, dated April 14, 1959 of the Secretary of Justice.

As to the failure of Roman Santos to appeal from the decision of the Secretary of Public Works and
Communications to the President of the Philippines, suffice it to state that such appeal could be
dispensed with because said Secretary is the alter ego of the President. The actions of the former
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are presumed to have the implied sanction of the latter.6

2. It is contended that if this case were considered as an ordinary civil action, venue was improperly
laid when the same was instituted in the Court of First Instance of Manila for the reason that the case
affects the title of a real property. In fine, the proposition is that since the controversy dwells on the
ownership of or title to the streams located in Hacienda San Esteban, the case is real action which,
pursuant to Sec. 3 of Rule 5 of the Rules of Court should have been filed in the Court of First Instance
of Pampanga.

The mere fact that the resolution of the controversy in this case would wholly rest on the ownership of
the streams involved herein would not necessarily classify it as a real action. The purpose of this suit
is to review the decision of the Secretary of Public Works and Communications to enjoin him from
enforcing them and to prevent him from making and issuing similar decisions concerning the stream
in Hacienda San Esteban. The acts of the Secretary of Public Works and Communications are the
object of the litigation, that is, petitioner Roman Santos seeks to control them, hence, the suit ought to
be filed in the Court of First Instance whose territorial jurisdiction encompasses the place where the
respondent Secretary is found or is holding office. For the rule is that outside its territorial limits, the
court has no power to enforce its order.7

Section 3 of Rule 5 of the Rules of Court does not apply to determine venue of this action. Applicable
is Sec. 1 the same rule, which states:

Sec. 1. General rule. — Civil actions in Courts of First Instance may be commenced and tried
where the defendant any of the defendants residents or may be found or where the plaintiff or
any of the plaintiffs resides, at the election of the plaintiff.
Accordingly, the Petition for injunction who correctly filed in the Court of First Instance of Manila.
Respondents Secretary of Public Works and Communications and Julian Cargullo are found and hold
office in the City of Manila.

3. The lower court tried this case de novo. Against this procedure respondents objected and
maintained that the action, although captioned as an injunction is really a petition for certiorari to
review the decision of the Secretary of Public Works and Communications. Therefore they now
contend that the court should have confined itself to reviewing the decisions of the respondent
Secretary of Public Works and Communications only on the basis of the evidence presented in the
administrative proceedings. On the other hand, Roman Santos now, submits that the action is a
proceeding independent and distinct from the administrative investigation; that, accordingly, the lower
court correctly acted in trying the case anew and rendering judgment upon evidence adduced during
the trial.

Whether the action instituted in the Court of First Instance be for mandamus, injunction or certiorari is
not very material. In reviewing the decision of the Secretary of Public Works and Communications,
the Court of First Instance shall confine its inquiry to the evidence presented during, the
administrative proceedings. Evidence not presented therein shall not be admitted, and considered by
the trial court. As aptly by this Court speaking through Mr. Justice J.B.L. Reyes, in a similar case:

The findings of the Secretary can not be enervated by new evidence not laid before him, for
that would be tantamount to holding a new investigation, and to substitute for the discretion
and judgment of the Secretary the discretion and judgment of the court, to whom the statute
had not entrusted the case. It is immaterial that the present action should be one for prohibition
or injunction and not one for certiorari; in either event the case must be resolved upon the
evidence submitted to the Secretary, since a judicial review of executive decisions does not
import a trial de novo, but only an ascertainment of whether the "executive findings are not in
violation of the Constitution or of the laws, and are free from fraud or imposition, and whether
they find reasonable support in the evidence. . . .8

The case at bar, no matter what the parties call it, is in reality a review of several administrative
decisions of the Secretary of Public Works and Communications. Being so, it was error for the lower
court to conduct a trial de novo. Accordingly, for purposes of this review, only the evidence presented
and admitted in the administrative investigation will be considered in our determination of whether on
the basis thereof the decisions of the Secretary of Public Works and Communications were correct.

4. We come to the question whether the streams involved in this case belong to the public domain or
to the owner of Hacienda San Esteban. If said streams are public, then Republic Act 2056 applies, if
private, then the Secretary of Public Works and Communications cannot order demolition of the dikes
and dams across them pursuant to his authority granted by said law.

First, we come to the question of the constitutionality of Republic Act No. 2056. The lower court held
Republic Act No. 2056 constitutional but ruled that it was applied by respondents unconstitutionally.
That is, it held that Roman Santos was being deprived of his property without due process of law, for
the dikes of his fishponds were ordered demolished through an administrative, instead of a judicial,
proceeding. This conclusion and rationalization of the lower court amount in effect to declaring the
law unconstitutional, stated inversely. Note that the law provides for an expeditious administrative
process to determine whether or not a dam or dike should be declare a public nuisance and ordered
demolished. And to say that such an administrative process, when put to operation, is
unconstitutional is tantamount to saying that the law itself violates the Constitution. In Lovina vs.
Moreno, supra, We held said law constitutional. We see no reason here to hold otherwise.
Discussing now the applicability of Republic Act 2056, the same applies to two types of bodies of
water, namely (1)public navigable rivers, streams, coastal waters, or waterways and (b) areas
declared as communal fishing grounds, as provided for in Section 1 thereof:

Sec. 1. . . . the construction or building of dams, dikes or any other works which encroaches
into any public navigable river, stream, coastal waters and any other navigable public waters or
waterways as well as the construction or building of dams, dikes or any other works in areas
declared as communal fishing grounds, shall be ordered removed as public nuisances or as
prohibited constructions as herein provided: . . .

We are not concerned with communal fishing grounds because the streams here involved have not
been so declared, but with public navigable streams. The question therefore is: Are the streams in
Hacienda San Esteban which are mentioned in the petition of Benigno Musni and others, public and
navigable?

Respondents contend that said streams are public on the following grounds:

(1) Hacienda San Esteban was formerly a marshland and being so, it is not susceptible to
appropriation. It therefore belongs to the State. Respondents rely on Montano vs. Insular
Government, 12 Phil. 572.

(2) The streams in question are natural streams. They are tributaries of public streams. Cited are the
cases of Samson vs. Dionisio, et al., 11 Phil. 538 and Bautista vs. Alarcon, 23 Phil. 636.

(3) The streams have for their source public rivers, therefore they cannot be classified as canals.

(4) Assuming the streams were artificially made by Ayala y Cia., said titleholder lost ownership over
them by prescription when it allowed the public to use them for navigation for a long time.
Respondents cite Mercado vs. Municipal President of Macabebe, 59 Phil. 592.

(5) Assuming the streams in question are not mentioned as public in the certificates of title held by
Ayala y Cia., over Hacienda San Esteban, still they cannot be considered as privately owned for
Section 39 of Act 496 expressly excepts public streams from private ownership.

(6) The Panopio Report, which found the streams in question of private ownership was nullified by the
Secretary of Justice in his opinion dated June 12, 1935. And, the contract between Ayala y Cia.,
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and the Secretary of Commerce and Communications agreeing on the ownership of the streams in
question is ultra vires.

The doctrine in Montano vs. Insular Government, supra, that a marshland which is inundated by the
rise of the tides belongs to the State and is not susceptible to appropriation by occupation — has no
application here inasmuch as in said case the land subject matter of the litigation was not yet titled
and precisely Isabelo Montano sought title thereon on the strength of ten years' occupation pursuant
to paragraph 6, section 54 of Act 926 of the Philippine Commission. Whereas, the subject matter in
this case — Hacienda San Esteban — is titled land and private ownership thereof by Ayala y Cia.,
has been recognized by the King of Spain and later by the Philippine Government when the same
was registered under Act 496.

Respondents further cite Bautista vs. Alarcon, 23 Phil. 631, where the plaintiff sought injunction
against the defendants who allegedly constructed a dam across a public canal which conveyed water
from the Obando River to fishponds belonging to several persons. The canal was situated within a
public land. In sustaining the injunction granted by the Court of First Instance, this Court said:
 No private persons has right to usurp possession of a watercourse, branch of a river, or lake of
the public domain and use, unless it shall have been proved that he constructed the same
within in property of his exclusive ownership, and such usurpation constitutes a violation of the
legal provisions which explicity exclude such waterways from the exclusive use or possession
of a private party. (Emphasis supplied)

As indicated in the above-cited case, a private person may take possession of a watercourse if he
constructed the same within his property. This puts Us into inquiry whether the streams in question
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are natural or artificial. In so doing, We shall examine only the evidence presented before the
Department of Public Works and Communications and disregard that which was presented for the
first time before the lower court, following our ruling in Lovina vs. Moreno, supra.

(1) Sapang Macanduling Maragul or Macanduli is presently enclosed in Fishpond No. 12 of Roman
Santos. Its banks cannot anymore be seen but some traces of them could be noted by a row of
isolated nipa palms. Its water is subject to the rise and fall of the tides coming from Guagua and
Antipolo Rivers and it is navigable by light watercrafts. Its inlet is Antipolo River; another dike at its
outlet along the Palapat River.9 It is closed by four dikes: One dike at its inlet along the Antipolo River;
another dike at its cutlet along the Palatpat River; and, two dikes in between. Then exist channel at
the Palapat River where the fishpond gate lies has been filled up with dredge spoils from the
Pampanga River Control Project.

(2) Sapang Macabacle is found in Fishpond No. 13. Its banks are still evident. This stream is about 30
meters wide, two meters deep and one and one-half to two kilometers long. Its source is Rio
Cansusu. Like Macanduli, its channel is obstructed by four dikes. One of them was constructed by the
engineers of the Pampanga River Control Project.

(3) Sapang Balbaro which is found in Fishpond No. 13, runs from Canal Enrique near Rio Cansusu to
Sapang Macabacle, a distance of about one-half kilometer. It is passable by banca. The closures of
this stream consist of two dikes located at each ends on Canal Enrique and Sapang Macabacle.

(4) Sapang Cansusu is a continuation of the Cansusu River. The Cansusu River opens at the
Guagua River and allegedly ends at the Palanas River in front of Barrio San Esteban. At a point near
the mouth of Sapang Balbaro, the owners of Hacienda San Esteban built a canal leading straight to
one end of Barrio San Esteban. They called this canal "Canal Enrique." And at the point where Canal
Enrique joins Cansusu they built a dike across Cansusu, thus closing this very portion of the river
which extends up to Palanas River where they built another closure dike. This closed portion, called
"Sapang Cansusu," is now part of Fishpond No. 1.

Sapang Cansusu is half a kilometer long and navigable by banca.

Appellant's witnesses, Beligno Musni, 41, Macario Quiambao, 96, Roman Manansala, 55 and Castor
Quiambao, 76, all residents of Barrio San Esteban, testified that prior to their closure, Sapang
Macaduli, Macabacle, Balbaro and Cansusu were used as passageway and as fishing grounds; that
people transported through them tuba,10 wood and sasa,11 and that the tuba was brought to the
distillery in Barrio San Esteban. Macario Quiambao testified also that said four streams "were created
by God for the town people"; and that if any digging was done it was only to deepen the shallow parts
to make passage easier. According to witness Anastacio Quiambao said streams were navigable,
even Yangco's ship "Cababayan" could pass through. Simplicio Quiambao, 36, and Marcelino
Ocampo, 55, stated on direct examination that before closure of the above named four streams,
people from the surrounding towns of Guagua, Bacolor, Macabebe, Masantol and Sexmoan fished
and navigated in them.
Against the aforementioned, testimonial evidence Roman Santos presented the testimony of Nicanor
Donarber, 80, Mariano Guinto, 71, and his own. Donarber, who started working as
an arundin12 testified that Ayala y Cia., dug Sapang Macanduli, Balbaro and Macabacle; that he
worked also in the construction together with other workers; and, that as an overseer he inspected
their work. Mariano Guinto testified that he worked for Ayala y Cia., as a tuba gatherer; that in order
to reach remote nipa groves by banca, they made canals; and, that he was one of the who worked in
the construction of those canals. Roman Santos also testified that Sapang Macanduli, Macabacle,
Balbaro and Cansusu are artificial canals excavated as far back as 1850 and due to erosion coupled
with the spongy nature of the land, they acquired the proportion of rivers; that he joined Sapang
Balbaro to Sapang Macabacle because the former was a dying canal; and that Cansusu River is
different from Sapang Cansusu Witness Domingo Yumang likewise testified that Sapang Balbaro
man-made.

We observe that witnesses positively stated that Sapang Macanduli, Macabacle and Balbaro were
made by the owners of Hacienda San Esteban. With respect to Sapang Cansusu none, except
Roman Santos himself, testified that Sapang Cansusu is an artificial canal. It is not one of the
streams found and recommended to be declared private in the Panopio Report. Sapang Cansusu
follows a winding course different and, distinct from that of a canal such as that of Canal Enrique
which is straight. Moreover, Sapang Cansusu is a part of Cansusu River, admittedly a public stream.

(5) Sapang Maragul, Mabalanga and Don Timpo are all part of Fishpond No. 1. Maragul is 600
meters long and 30 to 35 meters wide. Mabalanga is 250 meters in length and 50 meters in width.
Don Timpo is 220 meters long and 20 meters wide. All of them are navigable by banca. Maragul and
Mabalanga open at Guagua River and join each other inside the hacienda to form one single stream,
Sapang Don Timpo, which leads to the Matalaba River. Maragul, Mabalanga and Don Timpo,
formerly ended inside the hacienda but later Mabalanga was connected to Don Timpo. Maragul was
connected to Mabalanga and Sapang Cela was extended to join Maragul.

Witnesses Nicanor Donarber, Mariano Ocampo and Mariano Guinto testified that Maragul,
Mabalanga and Don Timpo are artificial canals dug by Ayala y Cia., and that they (Donarber and
Mariano Guinto) worked in said excavations.13 Witness Mariano Guinto clarified that Don Timpo was
originally dug but Mabalanga and Maragul were formerly small non-navigable streams which were
deepened into artificial navigable canals by Ayala y Cia.14

Exhibit F, which is a map showing the streams and rivers in Hacienda San Esteban, shows that
Maragul, Mabalanga and Don Timpo are more or less straight. From the big rivers (Guagua and
Matalaba Rivers) they lead deep into the interior of the hacienda, thus confirming the testimony that
they were built precisely as a means of reaching the interior of the estate by banca. The weight of
evidence, therefore, indicate that said streams are manmade.

(6) Sapang Bunga, now part of Bunga fishpond, gets its water from Sapanga Iba and empties at Sta.
Cruz River. It is about 300-400 meters long, 5-6 meters wide and 1-1.60 meters deep.

(7) Sapang Batu is found in Capiz Fishpond. About 300-400 meters long, 4-5 meters wide and 1.50-
2.20 meters deep, it starts at Capiz River and ends at Malauling Maragul. From Capiz River until it
intersects Sapang Nigui the stream is called Sapang Batu Commencing from Sapang Nigui and up to
its end at Sapang Malauling Maragul, the stream is called Sapang Batu. Commencing from Sapang
Nigui and up to its end at Sapang Malauling Maragul, the stream is called Sepong Batu. Sepong Batu
is not among those streams declared in the Panopio Report as private.
(8) Sapang Banawa has one end at Palanas River and the other at Sapang Macabacle. It is about
300 meters long, 3-4 meters wide and 1.30-1.40 meters deep. Its whole length is within Fishpond No.
13 of Roman Santos.

(9) Sapang Mabutol is a dead-end stream, that is, it ends inside the hacienda. It opens along Guagua
river. Since its closure, it has become part of Fishpond No. 1.

(10) Sapang Buta-buta, like Mabutol, dies inside the hacienda. It connects with Cansusu River and is
about 100 meters long, 3-4 meters wide and 1.2-1.5 meters deep. It is now a part of Fishpond No. 13.

(11) Sapang Masamaral, another stream which opens at Cansusu River And ends inside the
hacienda., is 100-200 meters long, 3-4 meters wide and 1.50-2 meters deep. It now forms part of
Fishpond No. 13.

The uncontradicted testimony of Marcos Guinto is that Sapang Bunga, Batu, Sepong Batu, Banawa,
Mabutol, Buta-Buta and Masamaral were constructed by Ayala y Cia., to gain access to the nipa the,
interior of the hacienda. This testimony tallies with the findings in the Panopio Report which will be
discussed herein later. The evidence adduced in the administrative proceeding conducted before a
representative of the Secretary of Public Works and Communications supports the contention that
said streams are merely canals built by Ayala y Cia., for easy passage into the hinterland of its
hacienda.

(12) Sapang Magasawa consists of two streams running parallel to each other commencing from
Matalaba River and terminating at Mariablus Rivers. About 600-700 meters long, 4-5 meters wide and
1.5-2 meters deep, these two streams are navigable by banca. They are enclosed within Fishpond
No. 1.

(13) Sapang Mariablus Malate, about 3-4 meters wide and 250 meters long, is another stream that
ends inside the hacienda and gets its water from Guagua River. It is no part of Fishpond No. 1.

(14) Sapang Matalabang Malate or Maisac opens at Guagua River and ends at Sapang Cela and
Matalabang Maragul. This stream, which is about 800 meters long and 18 meters wide, forms part of
Fishpond No. 1 of Roman Santos.

(15) Sapang Batasan Matua about 600 meters long, three meters wide and .80 meters deep at low
tide and 1.90 meters deep at high tide crosses the hacienda from Mariablus River to Cansusu River.
It is at present a part of Fishpond No. 1-A.

(16) Sapang Camastiles, a dead end stream of about 200 to 300 meters in length, gets its water from
Biuas River. It is within Fishpond No. 1.

(17) Sapang Cela is within Fishpond No. 1. Its whole length situated inside the hacienda, it opens at
Sapang Matalabang Malate or Maisac and ends at Sapang Malungkot. Latter Cela was extended to
connect with Sapang Maragul. It is about 200 meters long and four meters wide.

Mariano Guinto, 71, testified without contradiction that Sapang Mariablus Malate and Matalabang
Malate were formerly small and non-navigable streams which were dug by Ayala y Cia.,15 while
Batasan Matua Camastiles, Magasawa and Cela are original canals made by Ayala y Cia., 16 that he
was one of those who worked in the construction of said canals; and that it took years to construct
them. All these streams were recommended in the Panopio Report for declaration as private streams.
(18) Sapang Sinag, 200 meters long, four to five meters wide, one meter and one and one-half
meters deep at low and high tides, respectively, gets its water from Cutod River and leads inside the
hacienda to connect with Sapang Atlong Cruz, a stream declared private in the Panopio Report. It is
now inside Fishpond No. 14.

(19) Sapang Balili, also found inside Fishpond No. 14, is about 200 meters long, three to four meters
wide and one meter deep at low tide. From its mouth at Cutod River it drifts into the interior of the
hacienda and joins Sapang Bengco.17

(20) Sapang Pita is within Fishpond Capiz. It takes water from Capiz River but dies 250 meters inside
the hacienda. It is about four to five meters wide, and one meter deep at low tide and 1.50 meters
deep at high tide.

(21) Sapang Tumbong, situated inside Capiz Fishpond, derives its water from Sapang Quiñorang
Silab, a stream declared private by the Secretary of Public Works and Communications, and ends
inside the hacienda.18

(22) Sapang Bengco is found within Fishpond No. 14. Two hundred meters long, five meters wide,
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and one meter deep at low tide and 1.50 meters deep at high tide it gets water from Sapang Biabas
and connects with Baliling Maisac.19

According to Marcos Guinto, a witness for Roman Santos, Sapang Sinag, Balili, Pita Tumbong and
Bengco were excavated a long time ago by Ayala y Cia.; and that they have a winding course
because when they were made the workers followed the location of the nipa palms. 20 On the other
hand, Marcelo Quiambao, testified that Sapang Tumbong is a natural stream and that the reason he
said so is because the stream was already there as far back as 1910 when he reached the age of
ten. No other oral evidence was presented to contradict the testimony of Marcos Guinto that the said
five streams were artificially made by Ayala y Cia.

To show that the streams involved in this case were used exclusively by the hacienda personnel and
occasionally by members of their families, Roman Santos introduced the testimony of Eliseo Panopio,
Nicanor Donarber, Blas Gaddi, Mariano Ocampo, Mariano Guinto, Alejandro Manansala and himself.
The witnesses categorically testified that the public was prohibited from using the streams as a
means of navigation and that the prohibition was enforced by guards called arundines.

One and all, the evidence, oral and documentary, presented by Roman Santos in the administrative
proceedings supports the conclusion of the lower court that the streams involved in this case were
originally man-made canals constructed by the former owners of Hacienda San Esteban and that said
streams were not held open for public use. This same conclusion was reached 27 years earlier by an
investigator of the Bureau of Public Works whose report and recommendations were approved by the
Director of Public Works and submitted to the Secretary of Commerce and Communications.

As stated, pursuant to Act 2152, as amended by Act 3208, the Bureau of Public Works and the
Department of Commerce and Communications locked into and settled the question of whether or not
the streams situated within Hacienda San Esteban are publicly or privately owned. We refer to the so-
called Panopio Report which contains the findings and recommendations of Eliseo Panopio, a
surveyor in the Bureau of Public Works, who was designated to conduct formal hearings and
investigation. Said report found the following streams, among others, of private ownership:

Camastiles, Cela Balanga, Bato, Batasan, Bengco, Buta-buta, Don Timpo, Mabutol,
Macabacle, Macanduli, Malande Malate (Bunga), Magasawa, Masamaral, Maragul, Mariablus
Malate, Matalaba Malate, Nasi, Nigui, Pangebonan and Quiñorang Silab
on the ground that —

The preponderance of the probatory facts, . . ., shows that the rivers, creeks, esteros and
canals listed in (1) have originally been constructed, deepened, widened, and lengthened by
the owners of the Hacienda San Esteban. That they have been used as means of
communication from one place to another and to the inner most of the nipales, exclusively for
the employees, colonos and laborers of the said Hacienda San Esteban. That they have never
been used by the public for navigation without the express consent of the owners of the said
Hacienda.21

Bases for the above-quoted conclusion were "the reliable informations gathered from old residents of
the locality, from outsiders, the sworn statements obtained from different persons not interested in
this case and the comparison of the three plans prepared in 1880, 1906 and 1930. 22 The persons
referred to are Martin Isip, Hilarion Lobo, Emigdio Ignacio, Castor Quiambao, Matias Sunga facio
Cruz, Inocencio Dayrit, Gabriel Manansala, Lope Quiambao, Marcelino Bustos and Juan Lara .

On February 13, 1931 the Director of Public Works transmitted the Panopio Report to the Secretary
of Commerce and Communications recommending approval thereof. Later, on February 27, 1935,
Secretary of Public Works and Communications De las Alas approved the agreement of Ayala y Cia.,
and the Municipality of Macabebe, concerning the ownership of the streams in Hacienda San
Esteban, for being in conformity with said Panopio Report.

This agreement of Ayala y Cia and the Municipality of Macabebe which was approved by the
Secretary of Public Works and Communications only on February 27, 1935, could not however bind
the Government because the power of the Secretary of Public Works and Communication to enter
thereto had been suppressed by the Philppine Legislature when it enacted Act 4175 which effect on
December 7, 1934.

Nullity of the aforesaid contract would not of course affect the findings of fact contained in the
Panopio Report.

In weighing the evidence presented before the administrative investigation which culminated in this
appeal, respondent Secretary seemed to have ignored the Panopio Report and other documentary
evidence as well as the testimony of witnesses presented by petitioner but instead gave credence
only to the witnesses of Benigno Musni, et al. Upon review, however, the lower court, taking into
account all the evidence adduced in the administrative hearing, including the Panopio Report, as well
as those presented for the first time before it, sustained petitioner's averment that the streams in
question were artificially made, hence of private ownership. As stated, this conclusion of the lower
court which is in accord with the findings of Panopio as contained in his report, finds ample support
from the evidence presented and admitted in the administrative investigation. Accordingly, we see no
merit in disturbing the lower court's findings fact.

We next consider the issue of whether under pertinent laws, the streams in question are public or
private.

We quote Articles 339, 407 and 408 of the Spanish Civil Code of 1889:

Art. 339. Property of public ownerships is —

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, river banks, shores, roadsteads, and that of a similar character;
 Art. 407. The following are of public ownership:

1. Rivers and their natural channels;

2. Continuous or intermittent waters from springs or brooks running in their natural channels
and the channels themselves.

3. Waters rising continuously or intermittently on lands of public ownership;

4. Lakes and ponds formed by nature, on public lands, and their beds;

5. Rain waters running through ravines or sand beds, the channels of which are of public
ownership;

6. Subterranean waters on public lands;

7. Waters found within the zone of operation of public works, even though constructed under
contract;

8. Waters which flow continuously or intermittently from lands belonging to private persons, to
the State, to provinces, or to towns, from the moment they leave such lands;

9. The waste waters of fountains, sewers, and public institutions.

Art. 408. The following are of private ownership:

1. Waters, either continuous or intermittent rising on private etates, while they run through
them;

2. Lakes and ponds and their beds when formed by nature on such estates;

3. Subterranean waters found therein;

4. Rain water falling thereon as long as their bounderies.

5. The channels of flowing streams, continuous or intermittent, formed by rain water, and those
of brooks crossing estates which are not of public ownership.

The water, bed, banks, and floodgates of a ditch or aqueduct are deemed to be an integral part
of the estate or building for which the waters are intended. The owners of estates through or
along the boundaries of which the aqueduct passes can assert no ownership over it, nor any
right to make use. of it beds or banks, unless they base their claims on title deed which specify
the right or the ownership claimed.

Articles 71 and 72 of the Spanish Law of Waters of August 3, 1866 state:

Art. 71. The water-beds of all creeks belong to the owners of the estates or lands over which
they flow.

Art. 72. The water-beds on public land, of creeks through which spring waters run, are a part of
the public domain.
 The natural water-beds or channels of rivers are also part of the public domain.

Pursuant to Article 71 of the Spanish Law of Waters of August 3, 1866, and Article 408(5) of the
Spanish Civil Code, channels of creeks and brooks belong to the owners of estates over which they
flow. The channels, therefore, of the streams in question which may be classified creeks, belong to
the owners of Hacienda San Esteban.

The said streams, considered as canals, of which they originally were, are of private ownership in
contemplation of Article 339(l) of the Spanish Civil Code. Under Article 339, canals constructed by the
State and devoted to public use are of public ownership. Conversely, canals constructed by private
persons within private lands and devoted exclusively for private use must be of private ownership.

Our attention has been called to the case of Mercado v. Municipal President of Macabebe, 59 Phil.
592. There the creek (Batasan-Limasan) involved was originally dug by the estate's owner who,
subsequently allowed said creek to be used by the public for navigation and fishing purposes for a
period of 22 years. Said this Court through Mr. Justice Diaz:

And even granting that the Batasan-Limasan creek acquired the proportions which it had,
before it was closed, as a result of excavations made by laborers of the appellant's predecesor
in interest, it being a fact that, since the time it was opened as a water route between the Nasi
River and Limasan creek, the owners thereof as well as strangers, that is, both the residents of
the hacienda and those of other nearby barrios and municipalities, had been using it not only
for their bancas to pass through but also for fishing purposes, and it being also a fact that such
was the condition of the creek at least since 1906 until it was closed in 1928, if the appellant
and her predecessors in interest had acquired any right to the creek in question by virtue of
excavations which they had made thereon, they had such right through prescription, inasmuch
as they failed to obtain, and in fact they have not obtained, the necessary authorization to
devote it to their own use to the exclusion of all others. The use and enjoyment of a creek, as
any other property simceptible of appropriation, may be acquired or lost through prescription,
and the appellant and her predecessors in interest certainly lost such right through the said
cause, and they cannot now claim it exclusively for themselves after the general public had
been openly using the same from 1906 to 1928. . . .

In the cited case, the creek could have been of private ownership had not its builder lost it by
prescription. Applying the principle therein enunciated to the case at bar, the conclusion would be
inevitably in favor of private ownership, considering that the owners of Hacienda San Esteban held
them for their exclusive use and prohibited the public from using them.

It may be noted that in the opinion, mentioned earlier, issued on June 12, 1935, the Secretary of
Justice answered in the negative the query of the Secretary of Public Works and Communications
whether the latter can declare of private ownership those streams which "were dug up artificially",
because it was assumed that the streams were used "by the public as fishing ground and in
transporting their commerce in bancas or in small crafts without the objection of the parties who dug"
them. Precisely, Mercado v. Municipality of Macabebe was given application therein. However, the
facts, as then found by the Bureau of Public Works, do not support the factual premise that the
streams in question were used by the public "without the objection of the parties who dug" them. We
cannot therefore take as controlling in determining the merits of this the factual premises and the
legal conclusion contained in said opinion.

The case at bar should be differentiated from those cases where We held illegal the closing and/or
appropriation of rivers or streams by owners of estates through which they flow for purposes of
converting them into fishponds or other works.23 In those cases, the watercourses which were
dammed were natural navigable streams and used habitually by the public for a long time as a means
of navigation. Consequently, they belong to the public domain either as rivers pursuant to Article 407
(1) of the Spanish Civil Code of 1889 or as property devoted to public use under Article 339 of the
same code. Whereas, the streams involved in this case were artificially made and devoted to the
exclusive use of the hacienda owner.

Finally, Sapang Cansusu, being a natural stream and a continuation of the Cansusu River, admittedly
a public stream, belongs to the public domain. Its closure therefore by the predecessors of Roman
Santos was illegal.

The petition for the opening of Sapang Malauling Maragul, Quiñorang Silab, Nigui, Pepangebunan,
Nasi and Bulacus was dismissed by the Secretary of Public Works and Communications and the
case considered closed. The said administrative decision has not been questioned in this appeal by
either party. Hence, they are deemed excluded herein.

All the other streams, being artificial and devoted exclusively for the use of the hacienda owner and
his personnel, are declared of private ownership. Hence, the dams across them should not he
ordered demolished as public nuisances.

With respect to the issue of contempt of court on the part of the Secretary of Public Works and
Communications and Julian Cargullo for the alleged issuance of a administrative decisions ordering
demolition of dikes involved in this case after the writ of injunction was granted and served, suffice it
to state that the lower court made no finding of contempt of court. Necessarily, there is no conviction
for contempt reviewable by this Court and any discussion on the matter would be academic.

WHEREFORE, the decision appealed from is affirmed, except as to Sapang Cansusu which is
hereby declared public and as to which the judgment of the lower court is reversed. No costs. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal. Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.

G.R. Nos. 175806 and 175810 October 20, 2010

MANUEL ALMAGRO joined by his spouse, ELIZABETH ALMAGRO, Petitioners,

vs.
SALVACION C. KWAN, WILLIAM C. KWAN, VICTORIA C. KWAN, assisted by her husband,
JOSE A. ARBAS, and CECILIA C. KWAN, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 175849

Petitioners,
vs.
WILLIAM C. KWAN, SALVACION C. KWAN, VICTORIA C. KWAN, assisted by her husband,
JOSE A. ARBAS, and CECILIA C. KWAN, Respondents.

MARGARITA PACHORO, DRONICA ORLINA, PIO TUBAT, JR., ANDRES TUBAT, EDUVIGIS
KISKIS, ELSA BIÑALBER, NOELA TUBAT, ELSA TUBAT, and ROGELIO DURAN,
 DECISION

CARPIO, J.:

This is a consolidation of two separate petitions for review,1 assailing the 4 April 2006 Decision2 and
the 31 October 2006 Resolution3 of the Court of Appeals in CA-G.R. SP Nos. 71237 and 71437.

This case involves Lot No. 6278-M, a 17,181 square meter parcel of land covered by TCT No. T-
11397. Lot No. 6278-M is located at Maslog, Sibulan, Negros Oriental and is registered in the name
of spouses Kwan Chin and Zosima Sarana. Respondents are the legitimate children of spouses
Kwan Chin and Zosima Sarana, who both died intestate on 2 November 1986 and 23 January 1976,
respectively, in Dumaguete City. Upon the death of their parents, respondents inherited Lot No. 6278-
M through hereditary succession.

On 18 September 1996, respondents filed with the Municipal Trial Court (MTC) an action for recovery
of possession and damages against spouses Rogelio and Lourdes Duran, spouses Romulo Vinalver
and Elsa Vinalver,4 spouses Marte5 Bati-on and Liz E. Bati-on, spouses Pablo Deciar and Marlyn
Deciar, spouses Salvador Palongpalong and Bienvenida Palongpalong, spouses Sabas Kiskis and
Eduvigis Kiskis, spouses Pio Tubat, Jr. and Encarnita Tubat, spouses Andres Tubat and Leonides
Tubat, spouses George Tubat and Noela Tubat, spouses Dodong Go and Alice Go, spouses Delano
Bangay and Maria Bangay,6 spouses Simeon Pachoro and Margarita Pachoro, spouses
Cepriano7 Tubat and Elsa Tubat, spouses Jovito Remolano and Editha Orlina Remolano, spouses
Nelson Miravalles and Erlene Miravalles, Dronica Orlina,8 Clarita Barot Lara, Conchita Orlina, Antonia
Malahay and the Philippine National Police (PNP),9 Agan-an, Sibulan, Negros Oriental. Subsequently,
spouses Manuel Almagro and Elizabeth Almagro intervened as successors-in-interest of spouses
Delano Bangay and Maria Bangay.

During pre-trial, the parties agreed to refer the case to the Chief of the Land Management Services
Division, PENRO-DENR, Dumaguete City, to conduct a verification survey of Lot No. 6278-M. When
the PENRO personnel failed to conduct the verification survey, the court and the parties designated
Geodetic Engineer Jorge Suasin, Sr. (Engr. Suasin) as joint commissioner to do the task. Engr.
Suasin conducted the verification and relocation survey of Lot No. 6278-M on 12-13 September 2000
in the presence of the parties, some of their lawyers, and the MTC Clerk of Court. Thereafter, Engr.
Suasin submitted a written report with the following findings:

WRITTEN REPORT

Comes now, the undersigned Geodetic Engineer Jorge S. Suasin, Sr., to this Honorable Court, most
respectfully submit the following written report of the verification and relocation survey of the lot 6278-
M located at Maslog, Sibulan, Negros Oriental with T.C.T. No. T-11397 owned by Salvacion G. Kwan,
et al.

A. That a big portion of the lot is submerged under the sea and only a small portion
remain as dry land.

B. That some of the defendants have constructed their buildings or houses inside the
dry land while others have constructed outside or only a small portion of their buildings
or houses are on the said dry land.

The defendants and their buildings or houses are as follows:

1. Sps. Rogelio Duran . . . . . . . . . . . . . inside
.....
2. Sps. Romulo Vinalver. . . . . . . . . . . . inside
....
3. Sps. Marto Bati-on . . . . . . . . . . . . . . inside
....
4. Sps. Salvador Palongpalong . . . . . . inside
.....
5. Sps. Pablo Deciar . . . . . . . . . . . . . . inside
.....
6. Sps. Sabas Kiskis . . . . . . . . . . . . . . inside
....
7. Sps. Pio Tubat, Jr. . . . . . . . . . . . . . . 2 houses, the first house a portion, and the second
.... one - inside
8. Sps. Andres Tubat . . . . . . . . . . . . . . inside
....
9. Sps. George Tubat . . . . . . . . . . . . . portion
.....
10. Sps. Dodong Go . . . . . . . . . . . . . . inside
.....
11. Sps. Delano Bangay-Almagro . . . . portion
.....
12. Sps. Simeon Pachoro . . . . . . . . . . inside
.....
13. Sps. Cipriano Tubat . . . . . . . . . . . . inside
....
14. Sps. Jovito Remolano . .. . . . . . . . inside
.....
15. Sps. Nelson Miravalles . . . . . . . . . cottage and house - outside
.....
16. Monica Orlina . . . . . . . . . . . . . . . . cottage inside and house - portion
...
17. Clarita Barot . . . . . . . . . . . . . . . . . outside
.....
18. Conchita Orlina . . . . . . . . . . . . . . . outside
.....
19. Antonia Malahay . . . . . . . . . . . . . . outside
.....
The verification and relocation survey was executed last September 12-13, 2000 with the presence of
both parties and of the Clerk of Court. The cost of the survey was FIFTEEN THOUSAND
PESOS (P15,000) shouldered by the plaintiffs and the defendants equally.

Enclosed are a blue print of the sketch plan and a xerox copy of the land title of the said lot.

Respectfully submitted by:

(Sgd) JORGE SUASIN, SR.

Geodetic Engineer10

After the court admitted Engr. Suasin's report and the pleadings of the parties, respondents filed a
motion for judgment on the pleadings, which the MTC granted.

In its Judgment dated 11 May 2001, the MTC dismissed the complaint on the ground that the
remaining dry portion of Lot No. 6278-M has become foreshore land and should be returned to the
public domain. The MTC explained:

The term "foreshore" refers to that part of the land adjacent to the sea which is alternately covered
and left dry by the ordinary flow of the tides. "Foreshore lands" refers to the strip of land that lies
between the high and low water marks and that is alternately wet and dry according to the flow of the
tide. The term "foreshore land" clearly does not include submerged lands.

From these definitions, it is safe to conclude that the remaining dry portion of Lot No. 6278-M is now
"foreshore land." A big portion of the said lot is presently underwater or submerged under the sea.
When the sea moves towards the estate and the tide invades it, the invaded property becomes
foreshore land and passes to the realm of public domain. The subject land, being foreshore land,
should therefore be returned to the public domain. Besides, Article 420 of the Civil Code provides:

"Art. 420. The following thin[g]s are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;

Plaintiff cannot use the doctrine of indefeasibility of their Torrens title, as property in question is
clearly foreshore land. At the time of its registration, property was along the shores. In fact, it is
bounded by the Tañon Strait on the NW along lines 2-3-4. The property was of public dominion and
should not have been subject of registration. The survey showed that the sea had advanced and the
waves permanently invaded a big portion of the property making the land part of the shore or the
beach. The remaining dry land is foreshore and therefore should be returned to the public domain. 11

Respondents appealed to the Regional Trial Court (RTC). The RTC conducted ocular inspections of
Lot No. 6278-M on two separate dates: on 5 October 2001 during low tide and on 15 October 2001
when the high tide registered 1.5 meters. All the parties and their lawyers were notified before the two
ocular inspections were conducted. During the ocular inspections, in which some parties and their
lawyers were present, the RTC observed that the small portion referred to by Engr. Suasin as dry
land in his report actually remained dry even during high tide.12 Thus, the RTC concluded that the
disputed remaining portion of Lot No. 6278-M is not foreshore land. The RTC stated:

It is the Court's considered view that the small portion of plaintiff's property which remains as dry land
is not within the scope of the well-settled definition of foreshore and foreshore land as mentioned
above. For one thing, the small dry portion is not adjacent to the sea as the term adjacent as defined
in Webster's Dictionary means "contiguous or touching one another or lying next to." Secondly, the
small dry portion is not alternately wet and dry by the ordinary flow of the tides as it is dry land.
Granting, as posited by defendants, that at certain times of the year, said dry portion is reached by
the waves, then that is not anymore caused by the ordinary flow of the tide as contemplated in the
above definition. The Court then finds that the testimony of Engr. Suasin dovetails with the import and
meaning of foreshore and foreshore land as defined above. 1avvphil

Anent the case of Republic vs. Court of Appeals, 281 SCRA 639, also cited in the appealed
judgment, the same has a different factual milieu. Said case involves a holder of a free patent on a
parcel of land situated at Pinagtalleran, Caluag, Quezon who mortgaged and leased portions thereof
within the prescribed five-year period from the date of issuance of the patent. It was established in
said case that the land subject of the free patent is five (5) to six (6) feet deep under water during high
tide and two (2) feet deep at low tide. Such is not the situation of the "remaining small dry portion"
which plaintiffs seek to recover in the case at bar.13

On 8 January 2002, the RTC rendered its Decision,14 the dispositive portion of which reads:

WHEREFORE, all told and circumspectly considered, the appealed judgment is hereby reversed and
set aside insofar as it states that plaintiffs are not entitled to recover possession of the property in
question.

Plaintiffs-appellants have the right to recover possession of the remaining small dry portion of the
subject property in question. It is further ordered to remand this case to the court of origin for the
reception of further evidence to determine who among the defendants-appellees are builders or
possessors in good faith and who are not and once determined, to apply accordingly the pertinent
laws and jurisprudence on the matter.

SO ORDERED.15

Petitioners moved for reconsideration, which the RTC denied in its Order16 dated 6 May 2002.

Petitioners filed separate petitions for review with the Court of Appeals, alleging that the disputed
portion of Lot No. 6278-M is no longer private land but has become foreshore land and is now part of
the public domain.

The Ruling of the Court of Appeals

On 4 April 2006, the Court of Appeals promulgated its decision, affirming with modification the RTC
Decision. The dispositive portion of the Court of Appeals Decision17 reads:

WHEREFORE, the instant petitions for review are DENIED. And the Decision dated January 8, 2002
of Branch 38 of the Regional Trial Court of Dumaguete City is hereby AFFIRMED with
MODIFICATION as regards the dispositive portion only. Based on the written report of Geodetic
Engr. Suasin categorically indentifying who among herein petitioners are illegally occupying a portion
of Lot No. 6278-M, the following petitioners are ordered to vacate the premises and/or remove the
houses and/or cottages constructed on Lot No. 6278-M within thirty (30) days from finality of
judgment, namely: 1)Sps. Rogelio Duran, 2) Sps. Romulo Vinalver, 3) Sps. Marto Bati-on, 4) Sps.
Salvador Palongpalong, 5) Sps. Pablo Deciar, 6) Sps. Sabas Kiskis, 7) Sps. Pio Tubat, Jr. (first house
– portion, second house– inside), 8) Sps. Andres Tubat, 9) George Tubat (portion), 10) Sps. Dodong
Go, 11) Sps. Delano Bangay-Almagro (portion), 12) Sps. Simeon Pachoro, 13) Sps. Cipriano Tubat,
14) Sps. Jovito Remolano and 15) Monica Orlina (cottage–inside and house– portion).
Costs against petitioners.

SO ORDERED.18

In modifying the RTC Decision, the Court of Appeals explained:

Lastly, the argument that the RTC decision was "vague and indefinite" is utterly bereft of merit. We
have found no reversible error in the appreciation of the facts and in the application of the law by the
RTC which will warrant the reversal of the questioned decision. However, litigation must end and
terminate sometime and somewhere, and it is essential to the administration of justice that the issues
or causes therein should be laid to rest. Hence, in keeping with this principle, We modify the assailed
decision insofar as the dispositive portion is concerned. It is our considered view that there is no
longer a need to determine who among the petitioners are builders in good faith or not considering
that it has been established in the MTC that they knew all along that the subject lot is a titled property.
As such, petitioners should vacate and/or demolish the houses and/or cottages they constructed on
Lot No. 6278-M as stated in the written report of Geodetic Engineer Jorge S. Suasin, Sr. Remanding
this case to the court of origin would not only unduly prolong the resolution of the issues of this case,
but would also subject the parties to unnecessary expenses. 19

Hence, these consolidated petitions.

The Issue

The primary issue in this case is whether the disputed portion of Lot No. 6278-M is still private land or
has become foreshore land which forms part of the public domain.

The Ruling of the Court

We find the petitions without merit.

Petitioners contend that the disputed portion of Lot No. 6278-M is already foreshore land. In fact,
most of them allegedly have foreshore lease permits from the Department of Environment and
Natural Resources (DENR) on the said foreshore land.

However, petitioners failed to present evidence to prove their claim that they are holders of foreshore
lease permits from the DENR. Thus, the RTC Order dated 6 May 2002 stated:

Defendants-appellees have been harping that they have been granted foreshore leases by DENR.
However, this is merely lip service and not supported at all by concrete evidence. Not even an iota of
evidence was submitted to the lower court to show that defendants-appellees herein have been
granted foreshore leases.20

Although the MTC concluded that the subject land is foreshore land, we find such conclusion contrary
to the evidence on record.

It is undisputed that the subject land is part of Lot No. 6278-M, which is covered by TCT No. T-11397,
registered in the name of respondents' parents, Kwan Chin and Zosimo Sarana. In fact, as found by
the Court of Appeals, even the Provincial Environment and Natural Resources Officer (PENRO)
declared in May 1996 that Lot No. 6278-M is a private property covered by a Torrens Title and that
petitioners should vacate the disputed property or make other arrangements with respondents. 21
Furthermore, from the report of Engr. Suasin, the geodetic engineer designated by the court and the
parties as joint commissioner to conduct the survey, it can be clearly gleaned that the contested land
is the small portion of dry land of Lot No. 6278-M. Even in his testimony, Engr. Suasin was
adamant in stating that the remaining portion of Lot No. 6278-M is not foreshore because "it is
already dry land" and is "away from the shoreline." 22 Because of this apparent contradiction between
the evidence and the conclusion of the MTC, the RTC conducted ocular inspection twice, during low
tide and high tide, and observed that the disputed portion of Lot No. 6278-M actually remained dry
land even during high tide. Thus, the RTC concluded that the said land is not foreshore land. On
appeal, the Court of Appeals adopted the findings and conclusion of the RTC that the disputed land is
not foreshore land and that it remains as private land owned by respondents.

We are in accord with the conclusion of the Court of Appeals and the RTC that the disputed land is
not foreshore land. To qualify as foreshore land, it must be shown that the land lies between the high
and low water marks and is alternately wet and dry according to the flow of the tide.23 The land's
proximity to the waters alone does not automatically make it a foreshore land. 24

Thus, in Republic of the Philippines v. Lensico,25 the Court held that although the two corners of the
subject lot adjoins the sea, the lot cannot be considered as foreshore land since it has not been
proven that the lot was covered by water during high tide.

Similarly in this case, it was clearly proven that the disputed land remained dry even during high tide.
Indeed, all the evidence supports the conclusion that the disputed portion of Lot No. 6278-M is not
foreshore land but remains private land owned by respondents.

WHEREFORE, we DENY the petitions. We AFFIRM the 4 April 2006 Decision and the 31 October
2006 Resolution of the Court of Appeals in CA-G.R. SP Nos. 71237 and 71437.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO* DIOSDADO M. PERALTA

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson
G.R. No. 92161 March 18, 1991

SIMPLICIO BINALAY, PONCIANO GANNABAN, NICANOR MACUTAY, DOMINGO ROSALES,

GREGORIO ARGONZA, EUSTAQUIO BAUA, FLORENTINO ROSALES, TEODORO
MABBORANG, PATRICIO MABBORANG and FULGENCIO MORA, petitioners
vs.
GUILLERMO MANALO and COURT OF APPEALS, respondents.

Josefin De Alban Law Office for Petitioners.

FELICIANO, J.:

The late Judge Taccad originally owned a parcel of land situated in Tumauini, Isabela having an
estimated area of twenty (20) hectares. The western portion of this land bordering on the Cagayan
River has an elevation lower than that of the eastern portion which borders on the national road.
Through the years, the western portion would periodically go under the waters of the Cagayan River
as those waters swelled with the coming of the rains. The submerged portion, however, would re-
appear during the dry season from January to August. It would remain under water for the rest of the
year, that is, from September to December during the rainy season.

The ownership of the landholding eventually moved from one person to another. On 9 May 1959,
respondent Guillermo Manalo acquired 8.65 hectares thereof from Faustina Taccad, daughter of
Judge Juan Taccad. The land sold was described in the Deed of Absolute Sale1 as follows:

. . . a parcel of agricultural land in Balug, Tumauini, Isabela, containing an area of 8.6500

hectares, more or less; bounded on the North by Francisco Forto on the East by National
Road; on South by Julian Tumolva and on the West by Cagayan River; declared for taxation
under Tax Declaration No. 12681 in the name of Faustina Taccad, and assessed at P 750.00. .
..

Later in 1964, respondent Manalo purchased another 1.80 hectares from Gregorio Taguba who had
earlier acquired the same from Judge Juan Taccad. The second purchase brought the total
acquisition of respondent Manalo to 10.45 hectares. The second piece of property was more
particularly described as follows:

. . . a piece of agricultural land consisting of tobacco land, and containing an area of 18,000
square meters, more or less, bounded on the North by Balug Creek; on the South, by Faustina
Taccad (now Guillermo R. Manalo); on the East, by a Provincial Road; and on the West, by
Cagayan River assessed at P 440.00, as tax Declaration No. 3152. . . . 2

During the cadastral survey conducted at Balug, Tumauini, Isabela on 21 October 1969, the two (2)
parcels of land belonging to respondent Manalo were surveyed and consolidated into one lot,
designated as Lot No. 307, Pls-964. Lot 307 which contains 4.6489 hectares includes: (a) the whole
of the 1.80 hectares acquired from Gregorio Taguba; and (b) 2.8489 hectares out of the 8.65
hectares purchased from Faustina Taccad. As the survey was conducted on a rainy month, a portion
of the land bought from Faustina Taccad then under water was left unsurveyed and was not included
in Lot 307.
The Sketch Plan3 submitted during the trial of this case and which was identified by respondent
Manalo shows that the Cagayan River running from south to north, forks at a certain point to form two
(2) branches—the western and the eastern branches—and then unites at the other end, further north,
to form a narrow strip of land. The eastern branch of the river cuts through the land of respondent
Manalo and is inundated with water only during the rainy season. The bed of the eastern branch is
the submerged or the unsurveyed portion of the land belonging to respondent Manalo. For about
eight (8) months of the year when the level of water at the point where the Cagayan River forks is at
its ordinary depth, river water does not flow into the eastern branch. While this condition persists, the
eastern bed is dry and is susceptible to cultivation.

Considering that water flowed through the eastern branch of the Cagayan River when the cadastral
survey was conducted, the elongated strip of land formed by the western and the eastern branches of
the Cagayan River looked very much like an island. This strip of land was surveyed on 12 December
1969.4

It was found to have a total area of 22.7209 hectares and was designated as Lot 821 and Lot 822.
The area of Lot 822 is 10.8122 hectares while Lot 821 has an area of 11.9087 hectares. Lot 821 is
located directly opposite Lot 307 and is separated from the latter only by the eastern branch of the
Cagayan River during the rainy season and, during the dry season, by the exposed, dry river bed,
being a portion of the land bought from Faustina Taccad. Respondent Manalo claims that Lot 821
also belongs to him by way of accretion to the submerged portion of the property to which it is
adjacent.

Petitioners who are in possession of Lot 821, upon the other hand, insist that they own Lot 821. They
occupy the outer edges of Lot 821 along the river banks, i.e., the fertile portions on which they plant
tobacco and other agricultural products. They also cultivate the western strip of the unsurveyed
portion during summer.5 This situation compelled respondent Manalo to file a case for forcible entry
against petitioners on 20 May 1969. The case was dismissed by the Municipal Court of Tumauini,
Isabela for failure of both parties to appear. On 15 December 1972, respondent Manalo again filed a
case for forcible entry against petitioners. The latter case was similarly dismissed for lack of
jurisdiction by the Municipal Court of Tumauini, Isabela.

On 24 July 1974, respondent Manalo filed a complaints6 before the then Court of First Instance of
Isabela, Branch 3 for quieting of title, possession and damages against petitioners. He alleged
ownership of the two (2) parcels of land he bought separately from Faustina Taccad and Gregorio
Taguba for which reason he prayed that judgment be entered ordering petitioners to vacate the
western strip of the unsurveyed portion. Respondent Manalo likewise prayed that judgment be
entered declaring him as owner of Lot 821 on which he had laid his claim during the survey.

Petitioners filed their answer denying the material allegations of the complaint. The case was then set
for trial for failure of the parties to reach an amicable agreement or to enter into a stipulation of
facts.7 On 10 November 1982, the trial court rendered a decision with the following dispositive portion:

WHEREFORE, in the light of the foregoing premises, the Court renders judgment against the
defendants and in favor of the plaintiff and orders:

1. That plaintiff, Guillermo Manalo, is declared the lawful owner of the land in question, Lot No.
821, Pls-964 of Tumauini Cadastre, and which is more particularly described in paragraph 2-b
of the Complaint;
 2. That the defendants are hereby ordered to vacate the premises of the land in question, Lot
No. 821, Pls-964 of Tumauini Cadastre, and which is more particularly described in paragraph
2-b of the Complaint;

3. That the defendants are being restrained from entering the premises of the land in question,
Lot No. 821, Pls-964 of Tumauini Cadastre, and which is more particularly described in
paragraph 2-b of the Complaint; and

4. That there is no pronouncement as to attorney's fees and costs.

SO ORDERED.8

Petitioners appealed to the Court of Appeals which, however, affirmed the decision of the trial court.
They filed a motion for reconsideration, without success.

While petitioners insist that Lot 821 is part of an island surrounded by the two (2) branches of the
Cagayan River, the Court of Appeals found otherwise. The Court of Appeals concurred with the
finding of the trial court that Lot 821 cannot be considered separate and distinct from Lot 307 since
the eastern branch of the Cagayan River substantially dries up for the most part of the year such that
when this happens, Lot 821 becomes physically (i.e., by land) connected with the dried up bed owned
by respondent Manalo. Both courts below in effect rejected the assertion of petitioners that the
depression on the earth's surface which separates Lot 307 and Lot 821 is, during part of the year, the
bed of the eastern branch of the Cagayan River.

It is a familiar rule that the findings of facts of the trial court are entitled to great respect, and that they
carry even more weight when affirmed by the Court of Appeals.9 This is in recognition of the peculiar
advantage on the part of the trial court of being able to observe first-hand the deportment of the
witnesses while testifying. Jurisprudence is likewise settled that the Court of Appeals is the final
arbiter of questions of fact.10 But whether a conclusion drawn from such findings of facts is correct, is
a question of law cognizable by this Court.11

In the instant case, the conclusion reached by both courts below apparently collides with their findings
that periodically at the onset of and during the rainy season, river water flows through the eastern bed
of the Cagayan River. The trial court held:

The Court believes that the land in controversy is of the nature and character of alluvion
(Accretion), for it appears that during the dry season, the body of water separating the same
land in controversy (Lot No. 821, Pls-964) and the two (2) parcels of land which the plaintiff
purchased from Gregorio Taguba and Justina Taccad Cayaba becomes a marshy land and is
only six (6) inches deep and twelve (12) meters in width at its widest in the northern tip (Exhs.
"W", "W-l", "W-2", "W-3" and "W-4"), It has been held by our Supreme Court that "the owner of
the riparian land which receives the gradual deposits of alluvion, does not have to make an
express act of possession. The law does not require it, and the deposit created by the current
of the water becomes manifest" (Roxas vs. Tuazon, 6 Phil. 408).12

The Court of Appeals adhered substantially to the conclusion reached by the trial court, thus:

As found by the trial court, the disputed property is not an island in the strict sense of the word
since the eastern portion of the said property claimed by appellants to be part of the Cagayan
River dries up during summer. Admittedly, it is the action of the heavy rains which comes
during rainy season especially from September to November which increases the water level
of the Cagayan river. As the river becomes swollen due to heavy rains, the lower portion of the
 said strip of land located at its southernmost point would be inundated with water. This is
where the water of the Cagayan river gains its entry. Consequently, if the water level is high
the whole strip of land would be under water.

In Government of the Philippine Islands vs. Colegio de San Jose, it was held that —

According to the foregoing definition of the words "ordinary" and "extra-ordinary," the highest
depth of the waters of Laguna de Bay during the dry season is the ordinary one, and the
highest depth they attain during the extra-ordinary one (sic); inasmuch as the former is the one
which is regular, common, natural, which occurs always or most of the time during the year,
while the latter is uncommon, transcends the general rule, order and measure, and goes
beyond that which is the ordinary depth. If according to the definition given by Article 74 of the
Law of Waters quoted above, the natural bed or basin of the lakes is the ground covered by
their waters when at their highest ordinary depth, the natural bed or basin of Laguna de Bay is
the ground covered by its waters when at their highest depth during the dry season, that is up
to the northeastern boundary of the two parcels of land in question.

We find the foregoing ruling to be analogous to the case at bar. The highest ordinary level of the
waters of the Cagayan River is that attained during the dry season which is confined only on the west
side of Lot [821] and Lot [822]. This is the natural Cagayan river itself. The small residual of water
between Lot [821] and 307 is part of the small stream already in existence when the whole of the late
Judge Juan Taccad's property was still susceptible to cultivation and uneroded. 13

The Court is unable to agree with the Court of Appeals that Government of the Philippine Islands
vs. Colegio de San Jose 14 is applicable to the present case. That case involved Laguna de Bay; since
Laguna de Bay is a lake, the Court applied the legal provisions governing the ownership and use of
lakes and their beds and shores, in order to determine the character and ownership of the disputed
property. Specifically, the Court applied the definition of the natural bed or basin of lakes found in
Article 74 of the Law of Waters of 3 August 1866. Upon the other hand, what is involved in the instant
case is the eastern bed of the Cagayan River.

We believe and so hold that Article 70 of the Law of Waters of 3 August 1866 is the law applicable to
the case at bar:

Art. 70. The natural bed or channel of a creek or river is the ground covered by its waters
during the highest floods. (Emphasis supplied)

We note that Article 70 defines the natural bed or channel of a creek or river as the ground covered
by its waters during the highest floods. The highest floods in the eastern branch of the Cagayan River
occur with the annual coming of the rains as the river waters in their onward course cover the entire
depressed portion. Though the eastern bed substantially dries up for the most part of the year (i.e.,
from January to August), we cannot ignore the periodical swelling of the waters ( i.e., from September
to December) causing the eastern bed to be covered with flowing river waters.

The conclusion of this Court that the depressed portion is a river bed rests upon evidence of
record. Firstly, respondent Manalo admitted in open court that the entire area he bought from
1âwphi1

Gregorio Taguba was included in Lot 307.15 If the 1.80 hectares purchased from Gregorio Taguba was
included in Lot 307, then the Cagayan River referred to as the western boundary in the Deed of Sale
transferring the land from Gregorio Taguba to respondent Manalo as well as the Deed of Sale signed
by Faustina Taccad, must refer to the dried up bed (during the dry months) or the eastern branch of
the river (during the rainy months). In the Sketch Plan attached to the records of the case, Lot 307 is
separated from the western branch of the Cagayan River by a large tract of land which includes not
only Lot 821 but also what this Court characterizes as the eastern branch of the Cagayan River.

Secondly, the pictures identified by respondent Manalo during his direct examination depict the
depressed portion as a river bed. The pictures, marked as Exhibits "W" to "W-4", were taken in July
1973 or at a time when the eastern bed becomes visible. 16 Thus, Exhibit "W-2" which according to
respondent Manalo was taken facing the east and Exhibit "W-3" which was taken facing the west both
show that the visible, dried up portion has a markedly lower elevation than Lot 307 and Lot 821. It has
dike-like slopes on both sides connecting it to Lot 307 and Lot 821 that are vertical upward and very
prominent. This topographic feature is compatible with the fact that a huge volume of water passes
through the eastern bed regularly during the rainy season. In addition, petitioner Ponciano Gannaban
testified that one had to go down what he called a "cliff" from the surveyed portion of the land of
respondent Manalo to the depressed portion. The cliff, as related by petitioner Gannaban, has a
height of eight (8) meters.17

The records do not show when the Cagayan River began to carve its eastern channel on the surface
of the earth. However, Exhibit "E"18 for the prosecution which was the Declaration of Real Property
standing in the name of Faustina Taccad indicates that the eastern bed already existed even before
the sale to respondent Manalo. The words "old bed" enclosed in parentheses—perhaps written to
make legitimate the claim of private ownership over the submerged portion—is an implied admission
of the existence of the river bed. In the Declaration of Real Property made by respondent Manalo, the
depressed portion assumed the name Rio Muerte de Cagayan. Indeed, the steep dike-like slopes on
either side of the eastern bed could have been formed only after a prolonged period of time.

Now, then, pursuant to Article 420 of the Civil Code, respondent Manalo did not acquire private
ownership of the bed of the eastern branch of the river even if it was included in the deeds of absolute
sale executed by Gregorio Taguba and Faustina Taccad in his favor. These vendors could not have
validly sold land that constituted property of public dominion. Article 420 of the Civil Code states:

The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth. (Emphasis supplied)

Although Article 420 speaks only of rivers and banks, "rivers" is a composite term which includes: (1)
the running waters, (2) the bed, and (3) the banks.19 Manresa, in commenting upon Article 339 of the
Spanish Civil Code of 1889 from which Article 420 of the Philippine Civil Code was taken, stressed
the public ownership of river beds:

La naturaleza especial de los rios, en punto a su disfrute general, hace que sea necesario
considerar en su relacion de dominio algo mas que sus aguas corrientes. En efecto en todo rio
es preciso distinguir 1. esta agua corriente; 2. el alveo o cauce, y 3. las riberas. Ahora bien:
son estas dos ultimas cosas siempre de dominio publico, como las aguas?

Realmente no puede imaginarse un rio sin alveo y sin ribera; de suerte que al decir el Codigo
civil que los rios son de dominio publico, parece que debe ir implicito el dominio publico de
aquellos tres elementos que integran el rio. Por otra parte, en cuanto a los alveos o cauces
tenemos la declaracion del art. 407, num 1, donde dice: son de dominion publico . . . los rios y
sus cauces naturales; declaracion que concuerda con lo que dispone el art. 34 de la ley de
 [Aguas], segun el cual, son de dominion publico: 1. los alveos o cauces de los arroyos que no
se hallen comprendidos en el art. 33, y 2. los alveos o cauces naturales de los rios en la
extension que cubran sus aguas en las mayores crecidas ordinarias. 20 (Emphasis supplied)

The claim of ownership of respondent Manalo over the submerged portion is bereft of basis even if it
were alleged and proved that the Cagayan River first began to encroach on his property after the
purchase from Gregorio Taguba and Faustina Taccad. Article 462 of the Civil Code would then apply
divesting, by operation of law, respondent Manalo of private ownership over the new river bed. The
intrusion of the eastern branch of the Cagayan River into his landholding obviously prejudiced
respondent Manalo but this is a common occurrence since estates bordering on rivers are exposed to
floods and other evils produced by the destructive force of the waters. That loss is compensated
by, inter alia, the right of accretion acknowledged by Article 457 of the Civil Code. 21 It so happened
that instead of increasing the size of Lot 307, the eastern branch of the Cagayan River had carved a
channel on it.

We turn next to the issue of accretion. After examining the records of the case, the Court considers
that there was no evidence to prove that Lot 821 is an increment to Lot 307 and the bed of the
eastern branch of the river. Accretion as a mode of acquiring property under Article 457 of the Civil
Code requires the concurrence of three (3) requisites: (a) that the deposition of soil or sediment be
gradual and imperceptible; (b) that it be the result of the action of the waters of the river (or sea); and
(c) that the land where accretion takes place is adjacent to the banks of rivers (or the sea
coast).22 The Court notes that the parcels of land bought by respondent Manalo border on the eastern
branch of the Cagayan River. Any accretion formed by this eastern branch which respondent Manalo
may claim must be deposited on or attached to Lot 307. As it is, the claimed accretion (Lot 821) lies
on the bank of the river not adjacent to Lot 307 but directly opposite Lot 307 across the river.

Assuming (arguendo only) that the Cagayan River referred to in the Deeds of Sale transferring
ownership of the land to respondent Manalo is the western branch, the decision of the Court of
Appeals and of the trial court are bare of factual findings to the effect that the land purchased by
respondent Manalo received alluvium from the action of the aver in a slow and gradual manner. On
the contrary, the decision of the lower court made mention of several floods that caused the land to
reappear making it susceptible to cultivation. A sudden and forceful action like that of flooding is
hardly the alluvial process contemplated under Article 457 of the Civil Code. It is the slow and hardly
perceptible accumulation of soil deposits that the law grants to the riparian owner.

Besides, it is important to note that Lot 821 has an area of 11.91 hectares. Lot 821 is the northern
portion of the strip of land having a total area of 22.72 hectares. We find it difficult to suppose that
such a sizable area as Lot 821 resulted from slow accretion to another lot of almost equal size. The
total landholding purchased by respondent Manalo is 10.45 hectares (8.65 hectares from Faustina
Taccad and 1.80 hectares from Gregorio Taguba in 1959 and 1964, respectively), in fact even
smaller than Lot 821 which he claims by way of accretion. The cadastral survey showing that Lot 821
has an area of 11.91 hectares was conducted in 1969. If respondent Manalo's contention were
accepted, it would mean that in a span of only ten (10) years, he had more than doubled his
landholding by what the Court of Appeals and the trial court considered as accretion. As already
noted, there are steep vertical dike-like slopes separating the depressed portion or river bed and Lot
821 and Lot 307. This topography of the land, among other things, precludes a reasonable conclusion
that Lot 821 is an increment to the depressed portion by reason of the slow and constant action of the
waters of either the western or the eastern branches of the Cagayan River.

We turn finally to the issue of ownership of Lot 821. Respondent Manalo's claim over Lot 821 rests on
accretion coupled with alleged prior possession. He alleged that the parcels of land he bought
separately from Gregorio Taguba and Faustina Taccad were formerly owned by Judge Juan Taccad
who was in possession thereof through his (Judge Taccad's) tenants. When ownership was
transferred to him, respondent Manalo took over the cultivation of the property and had it declared for
taxation purposes in his name. When petitioners forcibly entered into his property, he twice instituted
the appropriate action before the Municipal Trial Court of Tumauini, Isabela. Against respondent
Manalo's allegation of prior possession, petitioners presented tax declarations standing in their
respective names. They claimed lawful, peaceful and adverse possession of Lot 821 since 1955.

If respondent Manalo had proved prior possession, it was limited physically to Lot 307 and the
depressed portion or the eastern river bed. The testimony of Dominga Malana who was a tenant for
Justina Taccad did not indicate that she was also cultivating Lot 821. In fact, the complaints for
forcible entry lodged before the Municipal Trial Court of Tumauini, Isabela pertained only to Lot 307
and the depressed portion or river bed and not to Lot 821. In the same manner, the tax declarations
presented by petitioners conflict with those of respondent Manalo. Under Article 477 of the Civil Code,
the plaintiff in an action for quieting of title must at least have equitable title to or interest in the real
property which is the subject matter of the action. The evidence of record on this point is less than
satisfactory and the Court feels compelled to refrain from determining the ownership and possession
of Lot 821, adjudging neither petitioners nor respondent Manalo as owner(s) thereof.

WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-GR CV No. 04892 are
hereby SET ASIDE. Respondent Manalo is hereby declared the owner of Lot 307. The regularly
submerged portion or the eastern bed of the Cagayan River is hereby DECLARED to be property of
public dominion. The ownership of Lot 821 shall be determined in an appropriate action that may be
instituted by the interested parties inter se. No pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

G.R. No. L-19570 April 27, 1967

JOSE V. HILARIO, JR., plaintiff-appellant,

vs.
THE CITY OF MANILA, defendant-appellee,
DIRECTOR OF PUBLIC WORKS, CITY ENGINEER OF MANILA, FERNANDO BUSUEGO and
EUGENIO SESE,defendants-appellants,
MAXIMO CALALANG, intervenor;
DIRECTOR OF MINES, intervenor.

Maximo Calalang for plaintiff and appellant.

Gregorio Ejercito and Leandro L. Arguelles for defendant-appellee City of Manila.
Office of the Solicitor General for other defendants and appellants.

BENGZON, J.P., J.:

Dr. Jose Hilario was the registered owner of a large tract of land — around 49 hectares in area —
located at Barrio Guinayang, in San Mateo, Rizal.1 Upon his death, this property was inherited by his
son, herein plaintiff-appellant Jose Hilario, Jr., to whom a new certificate of title2 was issued.

During the lifetime of plaintiff's father, the Hilario estate was bounded on the western side by the San
Mateo River.3To prevent its entry into the land, a bamboo and lumber post dike or ditch was
constructed on the northwestern side. This was further fortified by a stonewall built on the northern
side. For years, these safeguards served their purpose. However, in 1937, a great and extraordinary
flood occurred which inundated the entire place including the neighboring barrios and municipalities.
The river destroyed the dike on the northwest, left its original bed and meandered into the Hilario
estate, segregating from the rest thereof a lenticular place of land. The disputed area is on the
eastern side of this lenticular strip which now stands between the old riverbed site and the new
course.4

In 1945 the U.S. Army opened a sand and gravel plant within the premises 5 and started scraping,
excavating and extracting soil, gravel and sand from the nearby areas the River. The operations
eventually extended northward into this strip of land. Consequently, a claim for damages was filed
with the U.S. War Department by Luis Hilario, the then administrator of Dr. Hilario's estate. The U.S.
Army paid.6 In 1947, the plant was turned over to herein defendants-appellants and appellee who
took over its operations and continued the extractions and excavations of gravel and sand from the
strip of land along an area near the River.

On October 22, 1949, plaintiff filed his complaint7 for injunction and damages against the defendants
City Engineer of Manila, District Engineer of Rizal, the Director of Public Works, and Engr. Busuego,
the Engineer-in-charge of the plant. It was prayed that the latter be restrained from excavating,
bulldozing and extracting gravel, sand and soil from his property and that they solidarily pay to him
P5,000.00 as damages. Defendants' answer alleged, in affirmative defense, that the extractions were
made from the riverbed while counterclaiming with a prayer for injunction against plaintiff—who, it
was claimed, was preventing them from their operations.

Subsequently, the Bureau of Mines and Atty. Maximo Calalang were respectively allowed to join the
litigation as intervenors. The former complained that the disputed area was within the bed of the river
so that plaintiff should not only be enjoined from making extractions therefrom but should also be
ordered to pay the fees and penalties for the materials taken by him. On the other hand, the latter
claimed that he was authorized by plaintiff to extract materials from the disputed area but this
notwithstanding, the Provincial Treasurer of Rizal collected from him a sand and gravel fee which
would be an illegal exaction if the disputed area turns out to be of private ownership. Answers to the
two complaints in intervention were duly filed by the affected parties.

On March 14, 1954, defendants filed a petition for injunction against plaintiff and intervenor Calalang
in the same case, alleging that the latter have fenced off the disputed area in contravention of an
agreement8 had between the latter and the Director of Public Works wherein he defendants were
allowed to continue their operations but subject to the final outcome of the pending suit. It was prayed
that plaintiff and intervenor Calalang be ordered to remove the fence and allow defendants' men to
continue their operations unhampered. Opposition to this petition was filed by the other side, with a
prayer for counter injunction. On March 23, 1954, the lower court issued an order maintaining the
status quo and allowing the defendants to continue their extractions from the disputed area provided
a receipt9 in plaintiff's favor be issued for all the materials taken.

On May 13, 1954, plaintiff amended his complaint. Impleaded as additional defendants were the City
of Manila,10the Provincial Treasurer of Rizal,11 and Engr. Eugenio Sese, the new Engineer-in-charge
of the plant. Plaintiff also converted his claim to one purely for damages directed against the City of
Manila and the Director of Public Works, solidarily, in the amount of P1,000,000.00, as the cost of
materials taken since 1949, as well as those to be extracted therefrom until defendants stop their
operations.

Came the separate amended answers of the several defendants. Manila City denied ownership of the
plant and claimed that the City Engineer, acted merely as a deputy of the Public Works Director. The
other defendants12 put up, as special defense, the agreement between plaintiff and the Public Works
Director, and asserted a P1.2 million counterclaim for damages against plaintiff. The rest 13 renewed
the same defense; that the disputed area was part of the public domain, since it was situated on the
riverbanks.

On November 3, 1954, the defendant City Engineer of Manila filed a petition to delimit the area of
excavation and asked the lower court to authorize his men to extend their operations west of the
camachile tree in the disputed area. This met vigorous opposition from plaintiff and intervenor
Calalang. On May 27, 1955, the petition was denied.

Finally, on December 21, 1956, the lower court rendered its decision on the merits. The dispositive
portion provided:14

WHEREFORE, judgment is hereby rendered against the defendants City of Manila and the
Director of Public Works, to pay solidarily the herein plaintiff the sum of P376,989.60, as the
cost of gravel and sand extracted from plaintiff's land, plus costs. Judgment is likewise hereby
rendered against the defendant Provincial Treasurer of Rizal, ordering him to reimburse to
intervenor Maximo Calalang the amount of P236.80 representing gravel fees illegally collected.
Finally, defendants herein are perpetually enjoined from extracting any sand or gravel from
plaintiff's property which is two-fifths northern portion of the disputed area.

It is so ordered.

None of the parties litigants seemed satisfied with this decision and they all sought a reconsideration
of the same. On August 30, 1957, the lower court resolved the motions to reconsider with an order,
the dispositive portion of which provided:15

WHEREFORE, the court hereby denies the motion for reconsideration filed by plaintiff and
intervenor Calalang; dismisses the complaint with respect to defendant City of Manila; holds
that the northern two-fifths portion of the area in controversy belongs to the plaintiff with right to
the immediate possession thereof and hereby enjoins the defendants and intervenor Bureau of
Mines to vacate the same and to stop from extracting gravel thereon. The Court however
hereby dismisses the case against the defendant Bureau of Public Works and its agents and
employees insofar as the claim for money is concerned without prejudice to plaintiffs taking
such action as he may deem proper to enforce said claim against the proper party in
accordance with law.

It is so ordered.

Still unsatisfied, plaintiff and intervenor Calalang filed a second motion for reconsideration. The lower
court stood firm on its ruling of August 30, 1957.16

Hence, this appeal.17 The defendants Director of Public Works, City Engineer of Manila, and Engrs.
Busuego and Sese have also appealed from the declaration made by the lower court that the
northern two-fifths of the disputed area belongs to plaintiff Hilario.

The parties herein have presented before this Court mixed questions of law and fact for resolution
and adjudication. Foremost among them is this legal query; when a river, leaving its old bed, changes
its original course and opens a new one through private property, would the new riverbanks lining
said course be of public ownership also?18

The defendants answer in the affirmative. They claim that under the Law of Waters of August 3, 1866,
the riverbanks are, by definition, considered part of the riverbed which is always of public ownership.
On the other hand, plaintiff would have the question resolved in the negative. He maintains that not all
riverbanks are of public ownership because: (1) Art. 372 of the old Civil Code, which governs this
particular case, speaks only of the new bed; nothing is said about the new banks; (2) Art. 73 of the
Law of Waters which defines the phrase "banks of a river" cannot be applied in the case at bar in
conjunction with the other articles cited by defendants since that article applies only to banks
of natural riverbeds and the present, River is not in its natural bed; and (3) if all banks were of public
ownership, then Art. 553 of the old Civil Code and the second sentence, first paragraph of Art. 73 of
the Law of Waters can never have any application.

Since the change in the course of the River took place in 1937, long before the present Civil Code
took effect,19 the question before Us should be determined in accordance with the provisions of the
old Civil Code and those of the Law of Waters of August 3, 1866.

We agree with defendants that under the cited laws, all riverbanks are of public ownership —
including those formed when a river leaves its old bed and opens a new course through a private
estate. Art. 339 of the old Civil Code is very clear. Without any qualifications, it provides:

Property of public ownership is —

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;
(Emphasis supplied)

Moreover, as correctly contended by defendants, the riverbank is part of the riverbed. Art. 73 of the
Law of Waters which defines the phrase "banks of a river" provides:

By the phrase "banks of a river" is understood those lateral strips or zones of its bed which are
washed by the stream only during such high floods as do not cause inundations. ... (Emphasis
supplied)

The use the of words "of its bed [de sus alveos]" clearly indicates the intent of the law to
consider the banks — for all legal purposes — as part of the riverbed. The lower court also
ruled — correctly — that the banks of the River are paint of its bed.20 Since undeniably all beds
of rivers are of public ownership,21 it follows that the banks, which form part of them, are also of
public ownership.

Plaintiff's contention that Arts. 70 and 73 of the Law of Waters cannot apply because Art. 312 of the
old Civil Code mentions only the new bed but omits the banks, and that said articles only apply
to natural — meaning original — bed and banks is untenable. Art. 70, which defines beds of rivers
and creeks, provides:

The natural bed or channel of a creek or river is the ground covered by its waters during the
highest [ordinary] floods.22 (Emphasis supplied)

Art. 372 of the old Civil Code which provides that —

Whenever a navigable or floatable river changes its course from natural causes and opens
a new bed through a private estate, the new bed shall be of public ownership, but the owner of
the estate shall recover it in the event that the waters leave it dry again either naturally or as
the result of any work legally authorized for this purpose. (Emphasis supplied)

did not have to mention the banks because it was unnecessary. The nature of the banks
always follows that of the bed and the running waters of the river. A river is a compound
 concept consisting of three elements: (1) the running waters, (2) the bed and (3) the banks. 23
All these constitute the river. American authorities are in accord with this view:

'River' consists of water, a bed and banks.24

A "river" consists of water, a bed and banks, these several parts constituting the river, the
whole river. It is a compound idea; it cannot exist without all its paints. Evaporate the water,
and you have a dry hollow. If you could sink the bed, instead of a river, you would have a
fathomless gulf. Remove the banks, and you have a boundless flood. 25

Since a river is but one compound concept, it should have only one nature, i.e., it should either be
totally public or completely private. And since rivers are of public ownership, 26 it is implicit that all the
three component elements be of the same nature also. As Manresa commented:

Realmente no puede imaginarse un rio sin alveo y sin ribera; de suerte que al decir el Codigo
Civil que los rios son de dominio publico, parece que debe ir implicito el dominio publico de
anquellos tres elementos que integran el rio.27

However, to dispel all possible doubts, the law expressly makes all three elements public. Thus,
riverbanks and beds are public under Arts. 339 and 407, respectively, of the Code, while the flowing
waters are declared so under Art. 33, par. 2 of the Law of Waters of 1866.

Articles 70, 72 and 73 of the Law of Waters speak of natural beds and their banks. Plaintiff now
equates the term "natural" with the word "original" so that a change in the course of a river would
render those articles inapplicable. However, the premise is incorrect. Diccionario De La Real
Academia Española defines the word "natural" as follows:

NATURAL — perteneciente a la naturaleza o conforme a la calidad o propriedad de las cosas;

nativo, originario de un pueblo o nacion; hecho con verdad, ni artificio, mezcla ni composicion
alguna; ingenuo y sin doblez en su modo de proceder; diceze tambien de las cosas que imitar
a la naturaleza con propiedad; regular y que comunmente sucede, y por eso, facilmente
creible; que se produce por solas las fuerzas de la naturaleza, como contrapuesto a sobre
natural y milagroso, (Emphasis supplied)

"Natural" is not made synonymous to "original" or "prior condition". On the contrary, even if a river
should leave its original bed so long as it is due to the force of nature, the new course would still fall
within the scope of the definition provided above. Hence, the law must have used the word "natural"
only because it is in keeping with the ordinary nature and concept of a river always to have a bed and
banks.

Plaintiff's third point is not lightly to be taken. Indeed, it would seem possible to acquire private
ownership of banks under Art. 553 of the old Civil Code which provides:

Las riberas de los rios, aun cuando sean de dominio privado, estan sujetas en toda su
extension y en sus margenes, en una zona de tres metros, a la servidumbre de uso publico en
interes general de la navegacion, la flotacion, la pesca y el salvamento. (Emphasis supplied) .

And plaintiff is not without jurisprudential backing for in Commonwealth vs. Gungun,28 it was
said that the private ownership of the banks was not prohibited. His point is then neatly brought
home with the proposition that it is precisely when a river changes its course and opens a new
bed through a private estate that there can be private ownership of the banks.
A study of the history of Art. 553 will however reveal that it was never intended to authorize the
private acquisition of riverbanks. That could not have been legally possible in view of the legislative
policy clearly enunciated in Art. 339 of the Code that all riverbanks were of public ownership. The
article merely recognized and preserved the vested rights of riparian owners who, because of prior
law or custom, were able to acquire ownership over the banks. This was possible under the Siete
Partidas which was promulgated in 1834 yet.29 Under Law 6, Title 28, Partidas 3, the banks of rivers
belonged to the riparian owners, following the Roman Law rule.30 In other words, they were privately
owned then. But subsequent legislation radically changed this rule. By the Law of Waters of August 3,
1866, riverbanks became of public ownership, albeit impliedly only because considered part of the
bed — which was public — by statutory definition.31 But this law, while expressly repealing all prior
inconsistent laws, left undisturbed all vested rights then existing.32 So privately owned banks then
continued to be so under the new law, but they were subjected by the latter to an easement for public
use. As Art. 73 provides:

Se entienden por riberas de un rio las fajas o zonis laterales de sus alveos que solamente sor
bañadas por las aguas en las crecidas que no causan inundacion. El dominio privado de las
riberas esta suieto a la survidumbre de tres metros de zona para uso publico, en el interest
general de la navegacion, la flotacion, la pesca y el salvamento. ... (Emphasis supplied). 1äwphï1.ñët

This was perhaps the reconciliation effected between the private ownership of the banks, on the one
hand, and the policy of the law on the other hand, to devote all banks to public use. 33 The easement
would preserve the private ownership of the banks and still effectuate the policy of the law. So, the
easement in Art. 73 only recognized and preserved existing privately owned banks; it did not
authorize future private appropriation of riverbanks.

The foregoing observation is confirmed by the still subsequent Law of Waters of June 13, 1879, which
was principally based on the Law of August 3, 1865.34 Art. 36 of the new law, which was a substantial
reenactment of Art. 73 of the Law of Waters of August 3, 1866, reads:

Las riberas, aun cuando sean de dominio privado en virtud de antigue ley o de costumbre,
estan sujetas en toda su extension las margenes en una zona de tres metros, a la
servidumbre de uso publico en interes general de la navegacion, la flotacion la pesca y el
salvamento. ... (Emphasis supplied)

The new law also affirmed the public ownership of rivers and their beds, and the treatment of the
banks as part of the bed.35 But nowhere in the law was there any provision authorizing the private
appropriation of the banks. What it merely did was to recognize the fact that at that time there were
privately owned banks pursuant to the SietePartidas, and to encumber these with an easement for
public use.

However, the public nature of riverbanks still obtained only by implication. But with the promulgation
of the Civil Code of 1889, this fact was finally made explicit in Art. 339 thereof. Riverbanks were
declared as public property since they were destined for public use. And the first paragraph of Art. 36
of the Law of Waters of 1879 was substantially reenacted in Art. 553 of the Code. 36 Hence, this article
must also be understood not as authorizing the private acquisition of riverbanks but only as
recognizing the vested titles of riparian owners who already owned the banks.

The authority, then, for the private ownership of the banks is neither the old Civil Code nor the Law of
Waters of 1866 but the Siete Partidas. Unfortunately, plaintiff cannot invoke it. Law 6, Title 28, Partida
3, which provides for private ownership of banks, ceased to be of force in this jurisdiction as of 1871
yet when the Law of Waters of August 3, 1866, took effect.37 Since the change in the course of the
River took place in 1937, the new banks which were formed could not have been subjected to the
provisions of the Siete Partidas which had already been superseded by then.

Coming to the factual issues: both parties assail the conclusion made by the lower court that only the
northern two-fifths of the disputed area remained as plaintiff's private property. This conclusion was
apparently based on the findings that the portion where rice and corn were found38 in the ocular
inspection of June 15, 1951, was on the northern two-fifths of the disputed area; that this cannot be a
part of the bed because of the existence of vegetation which could not have grown underwater, and
that this portion is man-made. However, there is no evidentiary basis for these findings. The area
indicated by Nos. 1 and 2 in Exh. D-1 where no excavations had been made, appears to be more on
the south-western one-fourth of the disputed area. The American cases39 cited by the lower court
cannot apply here. Our Law of Waters, in defining "beds" and considers the latter is part of the
former. Those cited cases did not involve a similar statutory provision. That plants can and do grow
on the banks which otherwise could not have grown in the bed which is constantly subjected to the
flow of the waters proves the distinction between "beds" and "banks" in the physical order. However,
We are dealing with the legal order where legal definitions prevail. And apart from these
considerations, We also note the considerable difficulty which would attend the execution of the ruling
of the lower court. The latter failed to indicate fixed markers from which an exact delimitation of the
boundaries of the portion could be made. This flaw is conducive to future litigations.

Plaintiff's theory is that the disputed area, although covered at times by flood waters, cannot be
considered as within the banks of the River because: (1) such floods are only accidental, and (2)
even if they are regular, the flooding of the area is due to the excavations and extractions made by
defendants which have caused the widening of the channel.40 Defendants claim, however, that the
area is always covered by the normal yearly floods and that the widening of the channel is due to
natural causes.

There is a gravel pit41 located along the west side of the River. This is about 500 meters long. 42 A
greater part of this pit occupies a portion of the strip of land that was sliced by the River from the rest
of the Hilario estate. As shown in Exhs. D and D-1, this strip of land is that western segment of the
Hilario estate bounded on the west by the same lines connecting stakes 23 through 27, which form
part of the western boundary of the estate, and on the east, bounded by the western waterline of the
River.

Now, the disputed area, generally speaking,43 is only that part of the gravel pit which is within the strip
of land. Its northern tip is that point where the so-called "secondary bank" line intersects the west
River waterline up north; its southern boundary is along the line connecting stakes 23 and 24. From
these two ends, the disputed area measures approximately 250 meters long. The eastern boundary is
the western River waterline at low tide and the western boundary is the "secondary bank" line, a line
passing near stake 24 and running almost parallel to the line connecting stakes 25 and 26. Around
the later part of 1949, the disputed area was about 150 to 160 meters wide. 44This increased to about
175 to 180 meters by the later part of 1950. And by January, 1953, the distance from the "secondary
bank" line to the west waterline was about 230 meters.45

This increasing width of the disputed area could be attributed to the gradual movement of the River to
the east. Since it entered into the Hilario estate, the River has not stayed put.46 Vicente Vicente,
plaintiff's witness declared47that after the River changed its course in 1937, the distance between the
old and the new river sites was about 100 meters. Exh. D-2 shows that in 1943, the south end of the
River was about 5 meters southeast of stake 24.48Honorato Sta. Maria, another witness for plaintiff,
indicated the flow of this course with a blue line in Exh. D-1.49 This blue line is about 100 meters from
the line connecting stakes 25 and 26, which was also the east boundary of the old River.50 Around
1945 to 1949, the River was about 193 meters51 east of this line. This measurement is based on the
testimonies of two defense witnesses52 and stated that during that period, the River passed along the
Excavated Area and the New Accretion Area53 sites, as shown in Exh. 54. By the later part of 1949 up
to November 1950, the west waterline was from 248 to 270 meters54 east of the aforesaid boundary
line. And finally in January, 1953, based on the scale in Exh. 3-Calalang, the west waterline was from
300 to 305 meters away already. Hence, from 100 meters in 1937, the River had moved to 305
meters eastward in 1953.

There are two questions to be resolved here. First, where on the strip of land are the lateral borders
of the western riverbank? And second, where have defendants made their extractions?

Anent the first question, the key is supplied by Art. 73 of the Law of Waters which defines the limits of
banks of rivers —

By the phrase "banks of a river" is understood those lateral strips or zones of its bed which are
washed by the stream only during such high floods as do not cause in inundations. ...
(Emphasis supplied)

The farthest extremity of the bank on the west side would, therefore, be that lateral line or strip
which is reached by the waters during those high floods that do not cause inundations. In other
words, the extent reached by the waters when the River is at high tide.

However, there is a difference between the topography of the two sides immediately adjoining the
River. The line indicated as "primary bank"55 in Exh. 3-Calalang, which is on the east, is about 3
meters high and has a steep grade right at the edge where it drops almost vertically to the
watercourse level. The precipice here, which is near the east waterline, is very easily detectible. But
the opposite side has no such steep activity. In fact, it is almost flat with the bed of the River,
especially near the water edge, where it is about 30 to 50 cms. high only. But it gradually slopes up to
a height of about 2 to 2-½ meters along the line indicated as "secondary bank", which is quite far from
the waterline. This "bank" line is about 1-½ meters higher than the level of the gravel pit and there are
erosions here. This is about 175 meters west from the November 1950 waterline, and about 100
meters west from the camachile tree.56

During the dry season, the waterlevel of the River is quite low — about knee-deep only. However,
during the rainy season, the River generally becomes swollen, and the waterlevel rises, reaching up
to the neck.57 However, considering the peculiar characteristics of the two sides banking the river, the
rise in the waterlevel would not have the same effect on the two sides. Thus, on the east, the water
would rise vertically, until the top of the "primary bank" is reached, but on the west, there would be a
low-angled inclined rise, the water covering more ground until the "secondary bank" line is reached.
In other words, while the water expansion on the east is vertical, that on the west is more or less
lateral, or horizontal.

The evidence also shows that there are two types of floods in the area during the rainy season. 58 One
is the so-called "ordinary" flood, when the river is swollen but the flowing water is kept within the
confines, of the "primary" and "secondary" banks. This occurs annually, about three to four times
during the period. Then there is the "extraordinary" flood, when the waters overflow beyond the said
banks, and even inundate the surrounding areas. However, this flood does not happen regularly.
From 1947 to 1955, there were only three such floods.59 Now, considering that the "ordinary" flood
easily cover the west side — since any vertical rise of the waterlevel on the east would necessarily be
accompanied by a lateral water expansion on the west — the "inundations" which the law mentions
must be those caused by the "extraordinary" floods which reach and overflow beyond both "primary"
and "secondary" banks. And since the "primary" bank is higher than the "secondary" bank, it is only
when the former is reached and overflowed that there can be an inundation of the banks — the two
banks. The question therefore, may be stated thus: up to what extent on the west side do the highest
flood waters reach when the "primary" bank is not overflowed?

Defendants have presented several witnesses who testified on the extent reached by the ordinary
flood waters. David Ross, a bulldozer operator at the plant since 1945, testified 60 that from 1945 to
1949, when the River was still passing along the site where the camachile tree is located, the annual
flood waters reached up to the "secondary bank" line. These floods usually took from 3 to 5 days to
recede, during which time their work was suspended. Corroboration is supplied by Macario Suiza, a
crane operator in the plant since 1945, and by Fidel Villafuerte, a plant employee since 1946. Suiza
stated61 that from 1947 to 1949, the area enclosed within the blue lines and marked as Exh. 54-B —
which includes the New Accretion Area was always covered by water when it rained hard and they
had to stop work temporarily. The western extremity of this area reaches up to the "secondary bank"
line. Villafuerte stated62 that in the ordinary floods when the water was just 50 cm. below the top of the
"primary bank", the waters would go beyond the camachile tree by as much as 100 meters westward
and just about reach the "secondary bank" line. Further corroboration is supplied by plaintiff's own
evidence. Exh. 1-Calalang states that from 1947 to 1949, based on the casual observations made by
geologist David Cruz, the area between the "primary" and "secondary" banks were always covered by
the non-inundating ordinary floods.

From 1950 to 1952, We have the testimony of Ross who stated 63 that there were still floods but they
were not as big anymore, except one flood in 1952, since the River had already moved to the east.
Engr. Ricardo Pacheco, who made a survey of the disputed area in November 1952, and who
conducted actual observations of the extent of the water reach when the river was swollen,
testified64 that the non-inundating flood regularly reached up to the blue zigzag line along the disputed
area, as shown in Exh. I-City Engineer Manila. This blue line, at the point where it intersects line
BB,65 is about 140 meters west of the waterline and about 20 meters west of the camachile tree. His
testimony was based on three floods66 which he and his men actually recorded. Corroboration is
again supplied by Exh. 1-Calalang. According to Cruz' report, the floods in 1950 and 1951 barely
covered the disputed area. During the normal days of the rainy season, the waters of the swollen river
did not reach the higher portions of the gravel pit which used to be submerged. One cause for this
was the lesser amount of rainfall from 1949 to 1951. But two floods occurred from October 16 to 28,
1952, which overflowed the whole area and inundated the banks. From 1953 to 1955, when the River
was farther away to the east, the flood waters still covered the west side.67 Testifying on the extent
reached by the water during the rainy season in 1954, Ross stated 68 that it reached up to the
camachile tree only. The last and latest data comes from Engr. Magbayani Leaño, the Engineer-in-
charge of the plant from August 1954. He testified69 that as of December 1955, when the disputed
area was underwater, the water reach was about 20 meters or less to the east from the camachile
tree.

From all the foregoing, it can be safely concluded: (1) that from 1945 to 1949, the west bank of the
River extended westward up to the "secondary bank" line; (2) that from 1950 to 1952, this bank had
moved, with the River, to the east its lateral borders running along a line just 20 meters west of the
camachile tree; and (3) that from 1953 to 1955, the extremities of the west bank further receded
eastward beyond the camachile tree, until they lay just about 20 meters east of said tree.

To counteract the testimonies of the defense witnesses, plaintiff presented two rebuttal
witnesses70 who told a somewhat different story. However, their testimonies are not convincing
enough to offset the dovetailing testimonies of the defense witnesses who were much better qualified
and acquainted with the actual situs of the floods. And said defense witnesses were corroborated by
plaintiffs' own evidence which contradicts the aforesaid rebuttal witnesses.
However, plaintiff maintains that the floods which cover the area in question are merely accidental
and hence, under Art. 77 of the Law of Waters,71 and following the ruling in Government vs. Colegio
de San Jose,72 he is deemed not to have lost the inundated area. This is untenable. Plaintiff's own
evidence73 shows that the river floods with annual regularity during the rainy season. These floods
can hardly be called "accidental." The Colegio de San Jose case is not exactly in point. What was
mainly considered there was Art. 74 of the Law of Waters relating to lakes, ponds and pools. In the
case at bar, none of these is involved.

Also untenable is plaintiff's contention that the regular flooding of the disputed area was due to the
continuous extraction of materials by defendants which had lowered the level of said area and caused
the consequent widening of the channel and the river itself. The excavations and extractions of
materials, even from the American period, have been made only on the strip of land west of the
River.74 Under the "following-the-nature-of-things" argument advanced by plaintiff, the River should
have moved westward, where the level of the ground had been lowered. But the movement has been
in the opposite direction instead. Therefore, it cannot be attributed to defendants' operation.
Moreover, plaintiff's own evidence indicates that the movement eastward was all due to natural
causes. Thus, Exh. 1-Calalang shows that the movement eastward of the channel by as much as 31
meters, from 1950 to 1953, was due to two typhoons which caused the erosion of the east bank and
the depositing of materials on the west side which increased its level from as much as .93 to 2
meters.

Plaintiff's assertion that the defendants also caused the unnatural widening of the River is unfounded.
Reliance is made on the finding by the lower court that in 1943, the River was only 60 meters wide as
shown in Exh. D-2, whereas in 1950, it was already 140 meters wide as shown in Exh. D. However,
Exh. D-2 only shows the width of the River near the southwestern boundary of the Hilario estate. It
does not indicate how wide it was in the other parts, especially up north. And Eligio Lorenzo, plaintiff's
own witness, admitted75 on cross-examination that the width of the new river was not uniform. This is
confirmed by Exhs. D and D-1 which show that the new river was wider by as much as 50% up north
than it was down south. The 140-meter distance in Exh. D was at the widest part up north whereas
down south, near the mouth of the Bulobok River, it was only 70 meters wide. Lastly, the scale in
Exh. 3-Calalang will show that in January 1953, the River, near the same point also, was less than 50
meters wide.

The only remaining question now is to determine if the defendants have really confined their
operations within the banks of the River as alleged by them. To resolve this, We have to find out from
what precise portion in the disputed area the defendants have extracted gravel and sand since they
did not extract indiscriminately from within the entire area. None of the parties' briefs were very helpful
but the evidence on record discloses that defendants made their extractions only within specified
areas during definite periods.

From 1947 to the early part of 1949, the defendants conducted their operations only in the New
Accretion Area along a narrow longitudinal zone contiguous to the watercourse then. This zone,
marked as Exh. 2-City Engineer Manila, is about one (1) km. long and extends northward up to pt.
50.35 in Exh. 54. However, no extractions nor excavations were undertaken west of this zone, i.e.,
above the "temporary bank" line.76 These facts are corroborated by plaintiff's witnesses. That the
extractions were near the river then finds support in Vicente's testimony77 while Leon Angeles and
Mrs. Salud Hilario confirm the fact that defendants have not gone westward beyond the "temporary
bank" line.78 This line is located east of the "secondary bank" line, the lateral extremity of the west
bank then.

In the later part of 1949, plaintiff prohibited the defendants from extracting along the New Accretion
Area and constructed a fence across the same. This forced the defendants to go below southeast of
— the "Excavated Area" and the New Accretion Area sites in Exh. 54. 79 Engr. Busuego, testifying80 in
1952, indicated their are of extraction as that enclosed within the red dotted line in Exh. D-1 which lies
on the south end of the strip of land. Only a small portion of the southeastern boundary of the
disputed area is included. The ocular inspection conducted on June 15, 1951, confirms this. 81 Exh. 4-
Calalang shows the total amount of materials taken from within the area from 1949 to 1951. 82 Thus,
from 1950 up to 1953, although the defendants were able to continue their operations because of the
agreement between the plaintiff and the Director of Public Works,83 they were confined only to the
southeastern portion of the disputed area. On the other hand, the lateral extremities of the west bank
then ran along a line about 20 meters west of the camachile tree in the New Accretion Area.

From 1954 to 1955, defendants' area of operation was still farther near of the New Accretion Area.
They were working within a confined area along the west waterline, the northern and western
boundaries of which were 20 meters away east from the camachile tree. 84 Ross indicated85 this zone
in Exh. 54 as that portion on the southern end of the disputed area between the blue lines going
through the words "Marikina River Bed" and the red zigzag line indicating the watercourse then. Engr.
Leaño even stated, 86 that they got about 80% of the materials from the river itself and only 20% from
the dry bed. The sand and gravel covered by Exhs. LL to LL-55 were all taken from here. The
foregoing facts are not only corroborated by Mrs. Hilario87 but even admitted by the plaintiff in his
opposition88 to defendants' petition to extend their area of operation west of the camachile tree. And
because their petition was denied, defendants could not, and have not, 89 gone beyond the lateral line
about 20 meters east from said tree, which has already been established as the lateral extremity of
the west bank during the period.

It appears sufficiently established, therefore, that defendants have not gone beyond the receding
western extremities of the west riverbank. They have confined their extraction of gravel and sand only
from within the banks of the river which constitute part of the public domain — wherein they had the
right to operate. Plaintiff has not presented sufficient evidence that defendants have gone beyond the
limits of the west bank, as previously established, and have invaded his private estate. He cannot,
therefore, recover from them.

As a parting argument, plaintiff contends that to declare the entire disputed area as part of the
riverbanks would be tantamount to converting about half of his estate to public ownership without just
compensation. He even adds that defendants have already exhausted the supply in that area and
have unjustly profited at his expense. These arguments, however, do not detract from the above
conclusions.

First of all, We are not declaring that the entire channel, i.e., all that space between the "secondary
bank" line and the "primary bank" line, has permanently become part of the riverbed. What We are
only holding is that at the time the defendants made their extractions, the excavations were within the
confines of the riverbanks then. The "secondary bank" line was the western limit of the west bank
around 1945 to 1949 only. By 1955, this had greatly receded to the line just 20 meters east of the
camachile tree in the New Accretion Area. All that space to the west of said receding line 90 would still
be part of plaintiff's property — and also whatever portion adjoining the river is, at present, no longer
reached by the non-inundating ordinary floods.

Secondly, it is not correct to say that plaintiff would be deprived of his property without any
compensation at all. Under Art. 370 of the old Civil Code, the abandoned bed of the old river belongs
to the riparian owners either fully or in part with the other riparian owners. And had the change
occurred under the Civil Code of the Philippines, plaintiff would even be entitled to all of the old bed in
proportion to the area he has lost.91
And, lastly, defendants cannot be accused of unjustly profiting at plaintiff's expense. They were not
responsible for the shifting of the River. It was due to natural causes for which no one can be blamed.
And defendants were extracting from public property then, under proper authorization. The
government, through the defendants, may have been enriched by chance, but not unjustly.

Considering the conclusions We have thus reached, the other questions involved in the remaining
assignments of errors — particularly those apropos the doctrine of state immunity from suit and the
liability of defendant City of Manila — are rendered moot.

Wherefore, the decision and orders appealed from are hereby set aside and another judgment is
hereby entered as follows:

(1) Defendants City of Manila and the Director of Public Works and his agents and employees
are hereby absolved from liability to plaintiff since they did not extract materials from plaintiff's
property but from the public domain.

(2) All that portion within the strip of land in question, starting from the line running parallel to
the western waterline of the river and twenty meters east from the camachile tree in the New
Accretion Area measured along line AA in Exhs. 3-Calalang, 13 and 54, and going to the west
up to the western boundaries of the Hilario estate, is hereby declared as not part of the public
domain and confirmed as part of plaintiff's private property. No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.