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BOOK II
PROPERTY, OWNERSHIP, AND ITS
MODIFICATION
ARTICLE 414. All things which are or may be the object of appro-
priation are considered either:
(1) Immovable or real property; or
§ 1. Introductory Concepts
[1.1] Origin of the Word “Property”
The word “property” is derived from the Latin word proprius,
meaning belonging to one or one’s own.1 Traditionally, therefore, the
concept of property extends only to those things which are already
possessed and found in the possession of man.2 Hence, in the traditional
notion, the concept of property is inseparable from the relation which
the object has with the person exercising dominion or right over it. It is
in this sense that the concept of property is said to be limited compared
to the concept of things, which extends to all objects that exist,3 whether
it is already in the possession of man or not.
1
Miss. — Thompson v. Kreutzer, 72 So. 891, 112 Miss. 165.
2
2 Falcon 6, 3 Manresa 10, cited in II Tolentino, Civil Code of the Philippines, 1992 ed.,
2.
3
II Tolentino, Civil Code of the Philippines, 1992 ed., 2.
1
2 PROPERTY
4
See Art. 414, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 3
CLASSIFICATION OF PROPERTY
Preliminary Provisions
5
See II Caguioa, Civil Code of the Philippines, 1966 ed., 3.
6
See Art. 416(3), NCC.
4 PROPERTY
7
See Art. 1347, NCC.
8
See Arts. 419 to 425, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 5
CLASSIFICATION OF PROPERTY
Preliminary Provisions
The same can be said of the different parts of the living human
body. While these parts remain attached to the person, they are not
considered as property because they are integral parts of the person and
the latter is not, in law, considered as thing. However, when a part of
the human body, such as hair and teeth, is separated from the person, it
may now be considered as property for it now has an autonomous and
independent existence.
§ 2. Classification of Property
[2.1] Classification under Book II of the Civil Code
Although there are many classifications of property, Book II of
the New Civil Code enumerates the more important classifications, as
follows:
(1) Immovable or movable (Arts. 415 to 417);
(2) Movables, in turn, are classified into consumable or non-
consumable (Art. 418);
(3) From the viewpoint of ownership, property is classified
either as property of public dominion or of private ownership (Arts. 419
to 425).
It is obvious from Article 414 that the term “immovable” is used
synonymously with the term “real” property and the term “movable” is
used synonymously with the term “personal” property.
9
Art. 1132, NCC.
6 PROPERTY
10
Art. 1134, NCC.
11
Art. 1137, NCC.
12
Arts. 2094 and 2140, NCC.
13
Art. 2124, NCC.
14
Associated Insurance & Surety Co., Inc. v. Iya, 103 Phil. 972 (1958).
15
Art. 748, NCC.
16
Art. 749, NCC.
17
Art. 1966, NCC.
18
Art. 308, RPC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 7
CLASSIFICATION OF PROPERTY
Immovable Property
*****
Chapter 1
IMMOVABLE PROPERTY
Art. 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all kinds adhered
to the soil;
(2) Trees, plants, and growing fruits, while they are attached to
the land or form an integral part of an immovable;
(3) Everything attached to an immovable in a fixed manner, in
such a way that it cannot be separated therefrom without breaking the
material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or ornamen-
tation, placed in buildings or on lands by the owner of the immovable in
such a manner that it reveals the intention to attach them permanently to
the tenements;
(5) Machinery, receptacles, instruments or implements intended
by the owner of the tenement for an industry or works which may be car-
ried on in a building or on a piece of land, and which tend directly to meet
the needs of the said industry or works;
(6) Animal houses, pigeon-houses, beehives, fish ponds or breed-
ing places of similar nature, in case their owner has placed them or pre-
serves them with the intention to have them permanently attached to the
land, and forming a permanent part of it; the animals in these places are
included;
19
Rule 4, Section 1, 1997 Rules of Civil Procedure.
20
Rule 4, Section 2, 1997 Rules of Civil Procedure.
8 PROPERTY
§ 3. Immovable Property
[3.1] No Definition under the Code
Article 415 of the New Civil Code does not define immovable or
real property but enumerates what are considered as such.21 This is so
because of the difficulty of drawing precisely a definition of this term
simply because the word is not used in its etymological or grammatical
meaning but in its juridical meaning, i.e., the term is applied to many
things which, although by nature are personal, are considered by law as
real. Consequently, to avoid difficulty the law simply goes by way of
enumeration.22
21
People’s Bank and Trust Co. v. Dahican Lumber Company, 20 SCRA 84, 93 (1967).
22
3 Manresa, 6th Ed., 16, cited in II Caguioa, Civil Code, 1966 ed., 11.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 9
CLASSIFICATION OF PROPERTY
Immovable Property
(B) Buildings
[4.2] Building Is Immovable By Incorporation
A house (or a building) is immovable by incorporation.23 As
explained in Bicerra v. Teneza,24 a house (or a building) is classified as
immovable property by reason of its adherence to the soil on which it
is built. Thus, a building which is merely superimposed on the soil is
not a real property.25 When paragraph No. (1) of Article 415 of the New
Civil Code classifies buildings as immovables, the building referred
23
Ladera v. CN Hodges, (CA), 48 O.G. 5374, 5379 (1952).
24
6 SCRA 649, 651 (1962).
25
Bautista v. Supnad, (CA), 59 O.G. 1575 (1962).
10 PROPERTY
to is that which substantially adheres to the land and not one which
is merely superimposed on the soil. In the language of Justice J.B.L.
Reyes in Ladera v. CN Hodges,26 the building referred to under the law
is a “true building” or not one merely superimposed on the soil. Since a
house or a building is classified as immovable property by reason of its
adherence to the soil on which it is built, once the house is demolished it
ceases to exist as such and hence its character as an immovable likewise
ceases.27
Bicerra v. Teneza
6 SCRA 649 (1962)
In this case, the plaintiff filed an action before the Court of First Instance
(now RTC) of Abra alleging that the defendant forcibly demolished his house
and that the materials of the house, after it was dismantled, were placed in
the custody of the barrio lieutenant. Plaintiff prayed that he be declared the
owner of the house and/or materials and that defendant be ordered to pay him
damages in the total sum of P800. The CFI dismissed the action on the ground
that the same was within the exclusive original jurisdiction of the Justice of the
Peace of Court (now MTC), the action not being a real action. In sustaining the
dismissal of the complaint, the Supreme Court explained: “A house is classified
as immovable property by reason of its adherence to the soil on which it is built
(Art. 415, par. 1, Civil Code). This classification holds true regardless of the
fact that the house may be situated on land belonging to a different owner. But
once the house is demolished, as in this case, it ceases to exist as such and
hence its character as an immovable likewise ceases. It should be noted that the
complaint here is for recovery of damages.”
26
Supra, 5380.
27
Bicerra v. Teneza, supra, 651.
28
Punzalan, Jr. v. Vda. de Lacsamana, 121 SCRA 331, 335 (1983).
29
Bautista, et al. v. Supnad, (CA), 59 O.G. 1575, 1578 (1962).
30
Ladera v. C.N. Hodges, et al., (CA), 48 Off. Gaz., 5374, 5380 (1952); cited in Evangelista
v. Alto Surety & Ins. Co., Inc., 103 Phil. 401, 404 (1958).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 11
CLASSIFICATION OF PROPERTY
Immovable Property
[4.3.1] Rule is not affected by the fact that the building is treated
separately from the land
A building treated separately from the land on which it stood is
immovable property and the mere fact that the parties to a contract seem
to have dealt with it separate and apart from the land on which it stood
in no wise changed its character as immovable property.31 It is obvious
that the inclusion of the building, separate and distinct from the land, in
the enumeration of what may constitute real properties (in Article 415
of the New Civil Code) could only mean one thing — that a building is
by itself an immovable property, a doctrine already pronounced by the
Supreme Court as early as the case of Leung Yee v. Strong Machinery
Co.32 Thus, while it is true that a mortgage of land necessarily includes,
in the absence of stipulation, the improvements thereon, still a building
by itself may be mortgaged apart from the land on which it has been
built.33 Such a mortgage would still be a real estate mortgage for the
31
Punzalan, Jr. v. Vda. de Lacsamana, supra, 335-336; citing Leung Yee v. Strong Machin-
ery Co., 37 Phil. 644 (1918).
32
Lopez v. Orosa, Jr. and Plaza Theatre, Inc., 103 Phil. 98, 105 (1958); cited in Prudential
Bank v. Panis, 153 SCRA 390, 396 (1987).
33
Prudential Bank v. Panis, supra, 396, citing Leung Yee v. Strong Machinery Co., supra.
12 PROPERTY
In this case, the pivotal issue is whether or not a valid real estate mortgage
can be constituted on the building erected on the land belonging to another.
Answering in the affirmative, the Supreme Court explained —
“In the enumeration of properties under Article 415 of the
Civil Code of the Philippines, this Court ruled that, ‘it is obvious
that the inclusion of building separate and distinct from the land,
in said provision of law can only mean that a building is by itself
an immovable property.’ (Lopez v. Orosa, Jr., et al., L-10817-18,
Feb. 28, 1958; Associated Ins. and Surety Co., Inc. v. Iya, et al.,
L-10837-38, May 30, 1958)
Thus, while it is true that a mortgage of land necessarily
includes, in the absence of stipulation of the improvements thereon,
buildings, still a building by itself may be mortgaged apart from
the land on which it has been built. Such a mortgage would still
be a real estate mortgage for the building would still be considered
immovable property even if dealt with separately and apart from
the land (Leung Yee v. Strong Machinery Co., 37 Phil. 644). In
the same manner, this Court has also established that possessory
rights over said property before title is vested on the grantee, may
be validly transmitted or conveyed as in a deed of mortgage (Vda.
de Bautista v. Marcos, 3 SCRA 438 [1961]).”
[4.3.2] Rule is not affected by the fact that the building is erected on
a land owned by another person
The law makes no distinction as to whether or not the owner of
the land is or is not the owner of the building.35 Hence, a building is an
immovable property regardless of whether or not said structure and the
land on which it is adhered to belong to the same owner36 or whether
it is erected by the owner of the land or by a usufructuary or lessee.37
34
Id.
35
Ladera v. CN Hodges, 48 Off. Gaz., 5374, 5379; Makati Leasing and Finance Corp. v.
Wearever Textile Mills, 122 SCRA 296, 301 (1983).
36
Lopez v. Orosa, Jr. and Plaza Theater, Inc., supra, 105.
37
Ladera v. CN Hodges (CA), supra, 5380.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 13
CLASSIFICATION OF PROPERTY
Immovable Property
38
Associated Ins. & Surety Co., Inc. v. Iya, et al., 103 Phil. 972, 979 (1958).
39
Id.
14 PROPERTY
The levy was made pursuant to the rules governing the levy of real properties.
In due course, judgment was rendered in favor of Evangelista, who, on October
8, 1951, bought the house at the public auction made to satisfy the judgment.
The corresponding deed of sale was issued to him on October 22, 1952. When
Evangelista sought to take possession of the house, he was told that Alto Surety
was now the owner of the house because the latter allegedly bought the house at
an auction sale on September 29, 1950. It turned out that Alto Surety likewise
filed an action against Rivera and likewise obtained a favorable judgment. The
corresponding deed was issued to Alto Surety on May 10, 1952. Subsequently,
Evangelista instituted an action against Alto Surety and Rivera for the purpose
of establishing his title over said house. The trial court ruled in favor of
Evangelista. On appeal, however, the Court of Appeals reversed the decision of
the trial court on the ground that Evangelista did not acquire a preferential lien
through the preliminary writ of attachment because the house was levied as if
it were an immovable property. The Court of Appeals was of the opinion that
the house should have been levied pursuant to the rules governing the levy of
personal property (apparently for the reason that the house was constructed on
a land belonging to another). In reversing the decision of the CA, the Supreme
Court reiterated the ruling in Ladera v. Hodges (48 Off. Gaz., 5374) that “a
true building (not one merely superimposed on the soil) is immovable or real
property, whether it is erected by the owner of the land or by a usufructuary
or lessee.”
40
Standard Oil Co. of New York v. Jaramillo, 44 Phil. 630, 632-633 (1923); see also De
Jesus v. Guan Bee Co., 72 Phil. 446 and Luna v. Encarnacion, 91 Phil. 531 (1952).
41
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 15
CLASSIFICATION OF PROPERTY
Immovable Property
42
Supra.
43
Supra.
44
Supra.
45
(CA) 36 O.G. 2913.
46
(CA) 45 O.G. 2935.
47
Navarro v. Pineda, 9 SCRA 631 (1963).
48
Tumalad v. Vicencio, 41 SCRA 143 (1971).
49
See Sec. 1, Act No. 3952.
50
Associated Ins. & Surety Co. v. Iya, 103 Phil. 972, 979 (1958).
16 PROPERTY
house (or building) subject matter of the cases was a personal property.
Rather, the Court simply applied the doctrine of estoppel, in that, since
the parties so agreed that the building (or house) is a personal property
and a proper subject of the contract of chattel mortgage, they are
estopped from denying the existence of the chattel mortgage which, as
between them, must be upheld.
Navarro v. Pineda
9 SCRA 631 (1963)
In this case, Rufino Pineda and his mother, Juana Gonzales, executed
a deed of real estate and chattel mortgages in favor of Conrado Navarro,
whereby Gonzales, by way of real estate mortgage hypothecated a parcel of
land belonging to her, and Pineda, by way of chattel mortgage, mortgaged
his house erected on a lot belonging to another person and one motor truck.
Both mortgages were contained in one instrument, which was registered both
in the Office of the Register of Deeds and the Motor Vehicle Office. When
Navarro filed a complaint for foreclosure of the mortgage, Pineda questioned
the validity of the chattel mortgage over his house on the ground that the house,
being an immovable property, could not be the subject of a chattel mortgage,
citing the cases of Lopez v. Orosa, Jr., 103 Phil. 98; Associated Ins. & Surety
Co., Inc. v. Iya, 103 Phil. 972; and Leung Yee v. Strong Machinery Co., 37 Phil.
644. The trial court upheld the validity of the chattel mortgage. The decision
of the trial court was directly appealed to the Supreme Court. In sustaining the
decision of the trial court, the Supreme Court applied the principle of estoppel
because the house in question was treated as personal or movable property by
the parties to the contract themselves. In the deed of chattel mortgage, Pineda
conveyed by way of chattel mortgage “(his) personal properties,” a residential
house and a truck. The mortgagor himself grouped the house with the truck,
which is, inherently a movable property. The Court explained further that the
cases cited by Pineda were not applicable because in these cases, third persons
assailed the validity of the deed of chattel mortgages; whereas in this case, it
was one of the parties to the contract of mortgage who assailed its validity.
Tumalad v. Vicencio
41 SCRA 143 (1971)
In this case, Vicencio and Simeon executed a chattel mortgage in favor
of Tumalad over their house of strong materials built on a lot rented from
Madrigal & Company, Inc. When Vicencio and Simeon defaulted in the
payment of their obligation, the mortgage was extrajudicially foreclosed and
the house was sold at public auction. Tumalad emerged as the highest bidder
during the auction. Subsequently, Tumalad filed an action for ejectment against
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 17
CLASSIFICATION OF PROPERTY
Immovable Property
Vicencio and Simeon. In their answer, the defendants impugned the legality
of the chattel mortgage and its subsequent foreclosure on the ground that the
house, being an immovable, could only be the subject of a real estate mortgage
and not a chattel mortgage. When the case finally reached the Supreme Court,
the said Court again applied the principle of estoppel since the parties treated
the subject house as personalty. The Court explained that “although there is no
specific statement referring to the subject house as personal property, yet by
ceding, selling or transferring a property by way of chattel mortgage (Vicencio
and Simeon) could only have meant to convey the house as chattel, or at least,
intended to treat the same as such, so that they should not now be allowed to
make an inconsistent stand by claiming otherwise.” This case was likewise
compared with Associated Ins. & Surety Co., Inc. v. Iya, Lopez v. Orosa, Jr.
and Plaza Theatre, Inc. and Leung Yee v. Strong Machinery Co. Unlike in
these three cases, wherein third persons assailed the validity of the chattel
mortgage, it is the debtors-mortgagors who are attacking the validity of the
chattel mortgage in this case. Hence, the doctrine of estoppel applies.
[4.6] Compared with the cases of Associated Ins. & Surety Co. v.
Iya, Evangelista v. Alto Surety & Ins. Co., Inc., Manarang v.
Ofilada and Piansay v. David
In the cases of Associated Ins. & Surety Co. v. Iya, Evangelista v.
Alto Surety & Ins. Co., Inc., Manarang v. Ofilada and Piansay v. David,
the question on the character of the house or building concerned was
of primordial consideration. In other words, there was no other way of
resolving these cases except with a precise ruling on the character of the
house (or building) subject thereof.
In Evangelista v. Alto Surety & Ins. Co., Inc.,51 for example, the main
question was — who between the contending parties had a preferential
right over the house? If the levy made on the house pursuant to a writ
of preliminary attachment in 1949 was valid, then Evangelista had a
preferential right over the same, otherwise, it would be Alto Surety.
The validity of the levy, in turn, would depend upon the character of
the house. If the house was a real property, then the levy would be
valid. If the house was a personal property, then the levy would not
be valid. Since the resolution of the case calls for the application of
the law (Article 415[1], NCC), there is no other conclusion except that
the house is a real property — it is so whether it is erected on a land
belonging to another.
In Associated Ins. & Surety Co. Inc. v. Iya,52 the principal question
was this: May Associated Insurance rightfully demand for the exclusion
of the house from the foreclosure of the real estate mortgage by Iya?
In this case, if the chattel mortgage over the house is to be preferred
over the real estate mortgage over the same house, then Associated
Insurance may rightfully demand for the exclusion of the house in the
foreclosure of the real estate mortgage since it was executed prior to the
latter mortgage.
In the said case, the debtor-mortgagor executed two mortgages
in favor of different mortgagees. The first was a chattel mortgage in
favor of Associated Insurance covering the house. The second was a
real estate mortgage over the same house and the lot on which the house
was situated in favor of Iya. Both mortgage obligations were not paid.
Hence, Associated Insurance foreclosed the chattel mortgage over the
house and eventually purchased the house during the auction. When the
real estate mortgage was about to be foreclosed, Associated Insurance
sought for the exclusion of the house claiming a preferential right over
it by virtue of the chattel mortgage and its subsequent foreclosure.
Iya, in turn, questioned the validity of the chattel mortgage contract
contending that since the subject matter thereof was real property, the
same was not valid.
In this case, the court is required to meet squarely the issue of the
validity of the chattel mortgage contract. And in resolving said issue,
the court must pass upon the character of the house — whether it is real
property or personal property. If the house is a real property, then the
chattel mortgage is not valid and Associated Insurance does not acquire
a preferential right over the house subject matter of the mortgage. But
if the house is a personal property, then the chattel mortgage is valid
and Associated Insurance has a preferential right over the house. Since
the court is called upon to apply the law (Article 415[1], NCC), there is
no other conclusion except that the house is a real property — it is so
whether it is erected on a land belonging to another.
In Manarang v. Ofilada,53 a house was made the subject matter
of a chattel mortgage contract. When the mortgage obligation was
52
Supra.
53
99 Phil. 108 (1956).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 19
CLASSIFICATION OF PROPERTY
Immovable Property
not paid, the creditor opted to file an action for collection (instead of
foreclosing the mortgage) and after obtaining favorable judgment, the
creditor caused the levy upon execution of the same house subject
matter of the chattel mortgage contract. Before the property could be
sold at the public auction, the debtor offered to pay her indebtedness.
The sheriff, however, told her to likewise pay the expenses incurred in
the publication of the notice of sale. The debtor, however, refused to
pay the publication expenses contending that such publication was not
necessary since the house was not a real property.
Note that under the Rules of Court, if what is to be sold at a
public auction is a real property, publication of the notice of sale is
indispensable. Without such publication, the sale is a nullity. On the
other hand, if what is to be sold is a personal property, there is no need
for publication.
Hence, the issue in this case is the character of the house, whether it
is a real property or personal property for purposes of sale on execution.
Since the character of the house is the precise issue in this case, the
court is once again called upon to apply the law (Article 415[1], NCC).
Since the court is called upon to apply the law (Article 415[1], NCC),
there is no other conclusion except that the house is a real property.
In Piansay v. David,54 a house was again made the subject matter
of a chattel mortgage which was foreclosed. The mortgagee bought the
house during the auction and later sold the same to Piansay. Another
unsecured creditor of the debtor filed an action for collection against
him. After obtaining judgment, said creditor (Mangubat) caused the
levy upon execution of the house earlier foreclosed and sold to Piansay.
Thus, Piansay questioned the validity of the levy upon execution. The
main question in this case is this: who between Piansay and Mangubat
has a better right over the house? In order to answer this question, there
is a need on the part of the court to pass upon the issue of the validity
of the chattel mortgage contract. If the same is valid, then Piansay
acquires a preferential right over the house subject matter of the chattel
mortgage; otherwise, Mangubat shall acquire a preferential right over
it. The validity of the chattel mortgage, in turn, is dependent upon the
character of the house. If the house is a personal property, then the
54
12 SCRA 227.
20 PROPERTY
Manarang v. Ofilada
99 Phil. 108 (1956)
In this case, Manarang executed a chattel mortgage over a house of
mixed materials in favor of Esteban. Upon default, Esteban filed an action to
recover the loan. Judgment having been entered in plaintiff’s favor, execution
was issued against the same property mortgaged. Before the property could
be sold at the auction, Manarang offered to pay the sum of P277. The sheriff,
however, refused the tender unless the additional amount of P260 representing
the expenses incurred for the publication of the notice of sale be also paid.
Manarang refused to pay the additional amount contending that the house in
question was considered as personal property by the parties, hence, publication
of its sale at public auction was not necessary. In upholding the action of the
sheriff, the Supreme Court explained that the rules on execution do not allow
the parties to a contract to treat a real property as personal because “sale on
execution affect the public and third persons.” “The regulation governing
sales on execution are for public officials to follow” and “were never intended
to suit the consideration that parties, may have privately given to the property
levied upon.” Hence, “the mere fact that a house was the subject of a chattel
mortgage and was considered as personal property by the parties does not
make said house personal property for purposes of the notice to be given for
its sale at public auction.” In fine, the Supreme Court declare that “the house
of mixed materials levied upon on execution, although subject of a contract of
chattel mortgage between the owner and a third person, is real property within
the purview of Rule 39, Section 16 of the Rules of Court as it has become a
permanent fixture on the land, which is real property.”
filed an action against Rivera and likewise obtained a favorable judgment. The
corresponding deed was issued to Alto Surety on May 10, 1952. Subsequently,
Evangelista instituted an action against Alto Surety and Rivera for the purpose
of establishing his title over said house. The trial court ruled in favor of
Evangelista. On appeal, however, the Court of Appeals reversed the decision
of the trial court on the ground that Evangelista did not acquire a preferential
lien through the preliminary writ of attachment because the house was levied
as if it were an immovable property. The CA was of the opinion that the house
should have been levied pursuant to the rules governing the levy of personal
property. In reversing the decision of the CA, the Supreme Court explained
that a house is “immovable or real property, whether it is erected by the owner
of the land or by a usufructuary or lessee.” Hence, the levy that was made was
proper and Evangelista acquired a preferential right over the house by virtue of
the writ of preliminary attachment which was secured long before the sale of
the house in favor of Alto Surety.
estate mortgage was reversed. In reversing the said portion of the decision, the
Supreme Court explained that the house in question was a real property and
the chattel mortgage in favor of Associated Insurance was not valid since its
subject matter was not a personal property. The chattel mortgage being void,
Associated Insurance did not acquire any right over the house.
Piansay v. David
12 SCRA 227 (1964)
In this case, Conrado David obtained a loan from Uy Kim upon the
security of a chattel mortgage on a house situated at Tondo, Manila. When
David defaulted, Uy Kim foreclosed the mortgage and the house was sold
to Uy Kim. Thereafter, Uy Kim sold the house to Salvador Piansay. In the
meantime, Marcos Mangubat filed an action for collection of loan against
David. After obtaining a judgment against David, the house was levied upon
at the instance of Mangubat. Piansay assailed the right of Mangubat to levy
upon execution the house in question alleging that the same belongs to him,
he having bought it from Uy Kim, who, in turn, acquired it at the auction sale
held in connection with the extrajudicial foreclosure of the chattel mortgage
constituted in her favor by David. In ruling in favor of Mangubat, the Court
held “regardless of the validity of a contract constituting a chattel mortgage
on a house, as between the parties to said contract, the same cannot and does
not bind third persons, who are not privies to the aforementioned contract or
their privies. As a consequence, the sale of the house in the proceedings for
the extrajudicial foreclosure of said chattel mortgage, is null and void insofar
as defendant Mangubat is concerned, and did not confer upon Mrs. Uy Kim,
as buyer in said sale, any dominical right in and to said house, so that she
could not have transmitted to her assignee, plaintiff Piansay, any such right as
against defendant Mangubat.”
55
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 23
CLASSIFICATION OF PROPERTY
Immovable Property
Supra.
56
Associated Ins. & Surety Co., Inc. v. Iya, 103 Phil. 972, 979, citing Leung Yee v. Strong
57
58
3 Manresa 18-19, cited in II Tolentino, Civil Code, p. 17.
59
Board of Assessment Appeals v. Manila Electric Company, 10 SCRA 68 (1964).
60
114 SCRA 261 (1982).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 25
CLASSIFICATION OF PROPERTY
Immovable Property
In this case, the deputy sheriff of the Province of Tarlac attached several
properties of Leon Sibal, among which was included the sugar cane in seven
parcels of land. Thereafter, the said deputy sheriff sold at public auction said
properties, including the sugar cane, to Valdez. Sibal offered to redeem said
sugar came and tendered to Valdez the amount sufficient to cover the price
paid by the latter. Valdez, however refused to accept the money and to return
the sugar cane on the ground that the sugar cane in question had the nature of
61
Inter-Regional Development Corp. v. CA, 65 SCRA 265, 268 (1975).
62
3 Manresa, 6th ed., 20.
63
3 Manresa, 6th ed., 21.
64
Sibal v. Valdez, 50 Phil. 512, 524 (1927).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 27
CLASSIFICATION OF PROPERTY
Immovable Property
personal property and was not, therefore, subject to redemption. On the issue
of whether the sugar in question is personal or real property, the Supreme Court
held that “for purposes of attachment and execution, and for the purposes of
the Chattel Mortgage Law, ungathered products have the nature of personal
property.”
65
Art. 415, par. 3.
66
Board of Assessment Appeals v. Manila Electric Company, supra.
28 PROPERTY
415(3), as between the parties since their intent has to be looked into.
Thus, if the parties treat the machinery as chattels, they are bound by
their agreement under the principle of estoppel67 notwithstanding the
fact that the machinery may have been attached to an immovable in a
fixed manner and may not be separated therefrom without breaking the
material or deterioration of the object to which it is attached.
In this case, Ever Textile Mills, Inc. obtained in 1975 a three million loan
from PBCom. As security for the loan, Evertex executed in favor of PBCom a
deed of real and chattel mortgage over the lot where its factory stands, and the
chattels located therein as enumerated in a schedule attached to the mortgage
contract. In 1979, PBCom granted a second loan of P3,356,000 to Evertex. The
loan was secured by a chattel mortgage over personal properties enumerated
in a list attached thereto. In 1982, PBCom foreclosed the real and chattel
mortgages. In 1982, Evertex was declared insolvent. In the meantime, PBCOm
sold the factory, lock and stock and barrel to Ruby Tsai in 1984. In 1989,
Evertex filed an action for annulment of the sale, reconveyance and damages.
Evertex alleges, inter alia, that PBCom appropriated some chattels not included
in the real and chattel mortgage in 1975 nor in the chattel mortgage of 1979.
Evertex further alleged that these properties were acquired only in 1981. Tsai
and PBCom contended, on the other hand, that the disputed 1981 machineries
were real properties because they were heavy, bolted or cemented on the real
property. In finding the contention to be unmeritorious, the SC held —
Petitioners contend that the nature of the disputed
machineries, i.e., that they were heavy, bolted or cemented on the
real property mortgaged by EVERTEX to PBCom, make them ipso
facto immovable under Article 415(3) and (5) of the New Civil
Code. This assertion, however, does not settle the issue. Mere nuts
and bolts do not foreclose the controversy. We have to look at the
parties’ intent.
While it is true that the controverted properties appear to be
immobile, a perusal of the contract of Real and Chattel Mortgage
executed by the parties herein give us a contrary indication. In
the case at bar, both the trial and the appellate courts reached the
same finding that the true intention of PBCom and the owner,
EVERTEX, is to treat machinery and equipment as chattels. The
67
Tsai v. CA, 366 SCRA 324 (2001).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 29
CLASSIFICATION OF PROPERTY
Immovable Property
68
Supra.
69
61 Phil. 709 (1935).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 31
CLASSIFICATION OF PROPERTY
Immovable Property
70
See also Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800, 812 (1984).
71
Supra, 5379.
72
See Davao Sawmill v. Castillo, supra.
73
225 U.S. 58.
74
Cited in People’s Bank and Trust Co. v. Dahican Lumber Company, 20 SCRA 84, 95
(1967).
32 PROPERTY
become immobilized, yet, when the tenant places it there pursuant to a contract
that it shall belong to the owner, it then becomes immobilized as to that tenant
and even as against his assignees and creditors who had sufficient notice of
such stipulation. In the case at bar it is not disputed that DALCO purchased
the ‘after acquired properties’ to be placed on, and be used in the development
of its lumber concession, and agreed further that the same shall become
immediately subject to the lien constituted by the questioned mortgages. There
is also abundant evidence in the record that DAMCO and CONNEL had full
notice of such stipulation and had never thought of disputed validity until the
present case was filed. Consequently, all of them must be deemed barred from
denying that the properties in question had become immobilized.
[8.4] They Must Tend Directly To Meet the Needs of Said Industry
or Work
The properties mentioned in paragraph 5 are immovable by
destination and they are converted into real properties by reason of
their purpose, not by reason of their attachment to an immovable. In
Berkenkotter v. Cu Unjieng e Hijos,75 it was held that the installation of
the machinery and equipment in the central of the Mabalacat Sugar Co.,
Inc. for use in connection with the industry carried by that company,
converted the said machinery and equipment into real property by
reason of their purpose. The Court explained in the said case that “it
cannot be said that their incorporation therewith was not permanent
in character because, as essential and principal elements of a sugar
central, without them the sugar central would be unable to function or
carry on the industrial purpose for which it was established.” The Court
adds, “inasmuch as the central is permanent in character, the necessary
machinery and equipment installed for carrying on the sugar industry
for which it has been established must necessarily be permanent.”
The same ruling was made in the case of Ago v. Court of Appeals,76
where the Court held that “by the installation of the sawmill machineries
in the building of the Golden Pacific Sawmill, Inc., for use in the sawing
of logs carried on in said building, the same became a necessary and
permanent part of the building or real estate on which the same was
constructed, converting the said machineries and equipments into real
estate within the meaning of Article 415(5) of the Civil Code of the
Philippines.”
75
61 Phil. 663.
76
6 SCRA 530, 537.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 35
CLASSIFICATION OF PROPERTY
Immovable Property
Berkenkotter v. Cu Unjieng
61 Phil. 663
The Mabalacat Sugar Co., Inc., owner of a sugar central, obtained from
defendant a loan secured by a real estate mortgage constituted on two parcels
of land with all the buildings, improvements, sugarcane mill thereon, and
whatever forms part or was a necessary complement of said sugar-cane mill.
Shortly thereafter, the company decided to increase the capacity of its sugar
central by buying additional machinery and equipment, which it installed in
the central, so that instead of milling 150 tons daily it could produce 250. The
company obtained a loan from plaintiff to pay for the machinery. The issue
in the present action is whether the additional machinery was subject to the
mortgage deed executed in favor of defendant. In holding the machinery to
be real property, the Court explained that the installation of the machinery
and equipment in question in the central converted them into real property by
reason of their purpose and constitutes a permanent improvement on said sugar
central and subjects said machinery and equipment to the real estate mortgage
constituted on the sugar central.
77
Mindanao Bus Co. v. City Assessor and Treasurer, 6 SCRA 197, 200 (1962).
78
Id.
79
Id.
80
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 37
CLASSIFICATION OF PROPERTY
Immovable Property
they are essential to said industries; but the delivery trucks and adding
machines which they usually own and use and are found within their
industrial compounds are merely incidentals and retain their movable
nature.81
81
Id.
82
Id., 201.
38 PROPERTY
83
Supra, 74.
84
338 SCRA 499 (2000).
85
Note: Under the Rules of Court, writs of replevin are issued for the recovery of personal
property only.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 39
CLASSIFICATION OF PROPERTY
Immovable Property
provides that the machines in question are personal property, hence, SPI
is estopped from denying the characterization of the subject machines
as personal property. The Court cautioned, however, that its holding
— that the machines should be deemed personal property pursuant to
the Lease Agreement — is good only insofar as the contracting parties
are concerned.
The Serg’s Products case must be distinguished from Ago v.
Court of Appeals.86 In the latter case, Ago executed a chattel mortgage
contract in favor of Grace Park Engineering over certain machineries
and equipment which the former purchased from the latter to secure
the payment of the balance of the price remaining unpaid. When
Ago defaulted in his payments, Grace Park instituted extrajudicial
foreclosure proceedings of the mortgage. To enjoin said foreclosure,
Ago instituted an action against Grace Park. In the said case, Ago and
Grace Park arrived at a compromise agreement. When Ago violated
the compromise agreement, Grace Park obtained from the court a writ
of execution. Pursuant to said writ, the sheriff levied upon and ordered
the sale of the sawmill machineries and equipments in question. The
sheriff sold the machineries and equipments without prior publication
of the notice of sale. It turned out, however, that after purchasing the
machineries and equipments from Grace Park, the same had already
been assigned by Ago to Golden Pacific Sawmill Inc. in payment of its
subscription to the shares of stocks of said corporation. Thereafter, the
sawmill machineries and equipments were installed in a building and
permanently attached to the ground for use in the sawing of logs carried
on in said building by Golden Pacific. In declaring the sale made by
the sheriff as null and void because of the absence of publication of the
notice of sale, the Supreme Court explained that “by the installation of
the sawmill machineries in the building of the Golden Pacific Sawmill,
Inc., for use in the sawing of logs carried on in said building, the same
became a necessary and permanent part of the building or real estate
on which the same was constructed, converting the said machineries
and equipments into real estate within the meaning of Article 415(5) of
the Civil Code of the Philippines.”
Note that in the Ago case, even if the machineries in question were
made the subject matter of a chattel mortgage contract, the doctrine of
86
Supra.
40 PROPERTY
estoppel was not applied because the interest of a third party (Golden
Pacific Sawmill, Inc.) would be prejudiced. And besides, the holding in
the Serg’s Products case that the machines should be deemed personal
property is good only insofar as the contracting parties to the Lease
Agreement are concerned. In the Ago case, Golden Pacific was not a
party to the chattel contract, hence, it was not bound by the agreement
of the parties therein treating the machines as personal property.
of such house. But the law makes no distinction with respect to the
ownership of the land on which the house is built and We should
not lay down distinctions not contemplated by law.
It must be pointed out that the characterization by the private
respondent is indicative of the intention and impresses upon the
property the character determined by the parties. As stated in
Standard Oil Co. of New York v. Jaramillo, 44 Phil. 630, it is
undeniable that the parties to a contract may by agreement treat as
personal property that which by nature would be a real property, as
long as no interest of third parties would be prejudiced thereby.
87
II Tolentino, Civil Code, 1982 ed., p. 20.
88
3 Manresa 32.
89
FELS Energy, Inc. v. The Province of Batangas, et al., G.R. No. 168557, Feb. 16, 2007.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 43
CLASSIFICATION OF PROPERTY
Immovable Property
rights, in turn, are either (1) real — the power belonging to a person
over a specific thing, without a passive subject individually determined
against whom such right may be personally exercised; it is enforceable
against the whole world; or (2) personal — the power belonging to one
person to demand of another, as a definite passive subject, the fulfillment
of a prestation to give, to do or not to do.
90
MBTC v. Alejo, 364 SCRA 812, 819 (2001); see also Hongkong & Shanghai Bank v.
Aldecoa & Co., 30 Phil. 255, 273.
44 PROPERTY
91
Mindanao Bus Co. v. City Assessor and Treasurer, 6 SCRA 197 (1962); Board of Assess-
ment Appeals v. Manila Electric Co., 10 SCRA 68 (1964) and Manila Securities Industrial Corp.
v. Central Board of Assessment Appeals, 114 SCRA 261 (1982).
92
Caltex (Phils.), Inc. v. CBAA, 114 SCRA 296 (1982) and Manila Electric Co. v. CBAA,
114 SCRA 273 (1982).
93
G.R. No. 106041, Jan. 29, 1993.
94
Supra.
95
Supra.
96
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 45
CLASSIFICATION OF PROPERTY
Immovable Property
that this was a borderline case which could not be decided solely on the
basis of Article 415 but by the pertinent provisions of the Assessment
Law (Commonwealth Act No. 470) and the Real Property Tax Code
(Presidential Decree No. 464).97 In Caltex (Phils.), Inc. v. CBAA,
involving equipment and machinery permanently affixed by Caltex to
its gas station rented from a certain lessor, the Court held that the issue
of whether the said equipment and machinery are subject to realty tax
should be resolved primarily under the provisions of the Assessment
Law and the Real Property Tax Code. In these two cases, had the Court
applied the provisions of Article 415, the properties therein involved
would not be classified as real property. In applying the provisions of
the tax laws in lieu of Article 415, the Court justified the same on the
basis of its dictum in Standard Oil Co. of New York v. Jaramillo98 —
“it is a familiar phenomenon to see things classed as real property for
purposes of taxation which on general principle might be considered
personal property.”
In the light of the foregoing cases, it appears that in real property
taxation, the classification of property for taxation purposes is not the
exclusive domain of the Civil Code, especially in borderline cases such
as that of Manila Electric Co. v. CBAA and Caltex (Phils.), Inc. v. CBAA,
where the provisions of existing tax laws were primarily applied. In
these borderline cases, the property involve is usually either machinery
or improvements. It is usually with respect to these two kinds of property
that a problem may arise in the matter of their classification for taxation
purposes because existing tax laws may provide for specific definitions
of what may be considered as “machinery” or “improvement.”
97
The precursor of the present Real Property Taxation under Title 2, Book II of the Local
Government Code of 1991 (R.A. No. 7160).
98
44 Phil. 630, 633.
46 PROPERTY
[14.2.2] “Improvements”
The old Real Property Tax Code99 defined a taxable improvement,
as follows:
“k) Improvement is a valuable addition made to
property or an amelioration in its condition, amounting to
more than mere repairs or replacement of waste, costing
labor or capital and intended to enhance its value, beauty or
utility or to adapt it for new or further purposes.”
A similar definition is to be found in the present law on Real
Property Taxation:100
“(m) Improvement is a valuable addition made to a
property or an amelioration in its condition, amounting to
more than a mere repair or replacement of parts involving
capital expenditures and labor, which is intended to enhance
its value, beauty or utility or to adapt it for new or further
purposes.”
As to whether a structure constitutes an improvement so as to
partake of the status of realty, according to the Supreme Court, would
depend upon the degree of permanence intended in its construction
and use.101 The expression “permanent” as applied to an improvement
does not imply that the improvement must be used perpetually but
only until the purpose to which the principal realty is devoted has been
accomplished.102 It is sufficient that the improvement is intended to
remain as long as the land to which it is annexed is still used for the
said purpose.103
In addition, the tax laws require that the structure must be such that
it enhances the value and utility of the property to which it is annexed.
In the case of Benguet Corp. v. CBAA, et al.,104 the petitioner
questioned the imposition of real estate taxes on the tailings dam it
99
See Sec. 3(k), Real Property Tax Code.
100
See Sec. 199(m), R.A. No. 7160.
101
Benguet Corp. v. CBAA, et al., G.R. No. 106041, Jan. 29, 1993.
102
Id.
103
Id.
104
Supra.
48 PROPERTY
Chapter 2
MOVABLE PROPERTY
105
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 49
CLASSIFICATION OF PROPERTY
Movable Property
106
Art. 416(4), NCC.
107
Art. 416(1), NCC.
50 PROPERTY
108
US v. Tambunting, 41 Phil. 364.
109
US v. Carlos, 21 Phil. 553.
110
Art. 417(1), NCC; Ark. – Gregory v. Colvin, 363 S.W. 2d 539, 540, 235 Ark. 1007.
111
Tex. – Browne v. King, Civ. App., 196 S.W. 884, affirmed 235 S.W. 522, 111 Tex. 330.
112
Gregory v. Colvin, supra.
113
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 51
CLASSIFICATION OF PROPERTY
Movable Property
114
Ill. –– People, for Use of Vancil Motor Co. v. Weaver, 40 N.E. 2d 83, 313 Ill. App. 317.
115
N.Y. –– Niles v. Mathusa, 47 N.Y.S. 38, 20 App. Div. 483, affirmed 57 N.Y. 184, 162
N.Y. 546.
116
Ala. –– Peavy Lumber Co. v. Murchison, 130 So. 2d. 338, 272 Ala. 251.
52 PROPERTY
Chapter 3
PROPERTY IN RELATION TO THE PERSON
TO WHOM IT BELONGS
119
See Arts. 420 and 421, NCC.
120
See Arts. 423 and 424, NCC.
121
See Art. 425, NCC.
122
Art. 420, NCC.
123
Note that the old Civil Code used the term “public ownership” instead of public
dominion.
54 PROPERTY
needs, and resides in the social group.”124 Viewed in this light, the State
holds these properties not in the concept of an owner125 but only in
consequence of its territorial integrity.126 Hence, the relation of the State
to these properties arises from the fact that the State is the juridical
representative of the social group, and as such it takes care of them,
preserves them and regulates their use for the general welfare.127
The term public dominion is to be viewed as referring to public
ownership in relation to the properties of the State intended for public
use or for some public service mentioned in paragraph numbers (1) and
(2) of Article 420. Since the ownership of these properties belong to the
public in general and not to the State, the latter may not make them the
object of commerce unless they are properly converted into patrimonial
properties pursuant to the provisions of Article 422 of the New Civil
Code.
124
Laurel v. Garcia, 187 SCRA 797, 808 (1990), citing 3 Manresa, 66-69; Tolentino, Com-
mentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26.
125
See II Tolentino, Civil Code of the Philippines, 1992 ed., p. 30.
126
Caguioa, Civil Code of the Philippines, Vol. II, 1966 ed., p. 30. (Note: According to
Justice Fernando in Lee Hong Hok v. David, 48 SCRA 372, 377 [1972], the government authority
possessed by the state which is appropriately embraced in the concept of sovereignty comes under
the heading of imperium.)
127
See II Tolentino, Civil Code of the Philippines, 1992 ed., p. 30.
128
Republic v. Alagad, 169 SCRA 455, 461 (1989).
129
The capacity of the State to own or acquire property is the state’s power of dominium.
(Separate Opinion of J. Puno in Cruz v. Secretary of Environment and Natural Resources, 347
SCRA 128, 165).
130
415 SCRA 403 (2003).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 55
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
131
Municipality of Cavite v. Rojas, 30 Phil. 602.
132
See Sec. 2, Article XII of the 1987 Constitution.
133
Menchavez v. Teves, Jr., 449 SCRA 380, 391 (2005).
134
73 SCRA 162, 182-183 (1976).
135
Agripino Capitulo, et al. v. Alejo Aquino, No. 15488-R, (CA) 53 O.G. 1477, November
19, 1956.
136
Ibid.
56 PROPERTY
137
442 SCRA 110, 115 (2004), citing US v. Tan Piaco, 40 Phil. 853, 856 (1920).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 57
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
the latter, although used for the benefit of the public, cannot be used
indiscriminately by anyone but only by those that are authorized by
proper authority.138
138
II Caguioa, Civil Code of the Philippines, 1966 ed., p. 31.
58 PROPERTY
(A) Roads
[19.2] Roads
The “roads” referred to under Article 420(1) of the New Civil
Code are the national highways and roads constructed and maintained
by the national government through the Department of Public Works
and Highways. Provincial, city and municipal roads and streets, on the
other hand, are properties of public dominion of the local government
unit concerned and are governed by Article 424 of the Civil Code and
the provisions of the Local Government Code.
(B) Canals
[19.3] Canals
A “canal” is usually an artificial waterway, drainage, irrigation
or navigation.139 In the case of Santos v. Moreno,140 the Supreme Court,
quoting Article 339(1) of the Spanish Civil Code of 1889,141 held that
“canals constructed by the State and devoted to public use are of public
ownership” (or of public dominion). Conversely, said the Court, “canals
constructed by private persons within their private lands and devoted
exclusively for private use must be of private ownership.” In the Santos
case, the canals involved were declared to be of private ownership since
they were constructed by the owners of hacienda San Esteban for their
exclusive use and prohibited the public from using them.
In the case, however, of Mercado v. Municipal President of
Macabebe,142 while the canal involved (Batasan-Limasan) was originally
dug by the estate’s owner, the Supreme Court held that he had lost any
right over it by prescription since he allowed said canal to be used by the
public for navigation and fishing purposes for a period of twenty-two
(22) years. In this case, the canal could have been of private ownership
had not its builder lost it by prescription.
In Bautista v. Alarcon,143 the plaintiff therein sought the injunction
against the defendants who allegedly constructed a dam across a public
139
Magno v. Vargas, 54331-R, August 27, 1979.
140
21 SCRA 1141, 1166 (1967).
141
Which provisions were substantially reproduced in Article 420(1) of the new Civil
Code.
142
59 Phil. 592 (1934).
143
23 Phil. 631.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 59
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
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 lost 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
susceptible 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. xxx”
(C) Rivers
[19.4] “River” is a Composite Term
Although Article 420 of the New Civil Code speaks only of rivers
and banks, “rivers” is a composite term which includes: (1) the running
waters, (2) the bed, and (3) the banks.144 All these constitute the river.145
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, it is implicit that all the three
component elements be of the same nature also.146 However, to dispel
all possible doubts, Article 420, paragraph 1 of the New Civil Code and
Article 5, paragraph (a) of the Water Code of the Philippines, expressly
make all three elements properties of public dominion.
144
Binalay v. Manalo, 195 SCRA 374, 384 (1991), citing Hilario v. City of Manila, 19
SCRA 931 (1967).
145
Hilario v. City of Manila, supra, p. 939.
146
Id.
147
Art. 502(1), NCC; Art. 5(a), Water Code of the Philippines; see also Binalay v. Manalo,
supra, 384; Republic v. CA, 132 SCRA 514 (1984).
148
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 61
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
sale executed by the sellers since the sellers “could not have validly
sold land that constituted property of public dominion.”
In Republic v. Court of Appeals,149 the Court ruled that the lower
court cannot validly order the registration of two lots in the names of
private respondents since these lots “were portions of the bed of the
Meycauayan river and are therefore classified as property of the public
domain under Article 420, paragraph 1 and Article 502, paragraph 1
of the Civil Code of the Philippines.”
149
Supra.
150
cited in Binalay v. Manalo, supra, 382.
151
Supra.
62 PROPERTY
point of where the Cagayan River forks is at its ordinary depth, river
water does not flow into the eastern branch. And while this condition
persists, the eastern bed is dry and is susceptible to cultivation. During
the rainy season (September to December), however, the water level in
the Cagayan River increases. As the river becomes swollen due to heavy
rains, the unsurveyed area of Manalo’s property would be inundated
with water, causing the eastern bed to be covered with flowing river
waters.
On the question of whether the unsurveyed area of Manalo’s
alleged property is part of the natural bed of the eastern branch of the
Cagayan River, the Supreme Court applied the provisions of Article
70 of the Law of Waters of August 3, 1866 which defines the natural
bed or channel of a creek or river as the ground covered by its waters
during the highest floods. According to the Court, 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 in Manalo’s property. As a consequence, the Supreme
Court declared the regularly submerged portion or the eastern bed of the
Cagayan River to be property of public dominion.
152
Hilario v. City of Manila, supra, 938, citing Art. 73 of the Law of Waters of August 3,
1866.
153
Ibid., at 946.
154
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 63
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
this case, Hilario sued the City of Manila and other defendants for
indemnity for the sand and gravel extracted from the San Mateo River
banks of the Hilario Estate. The Supreme Court held, however, that the
defendants were extracting materials not from the property of Hilario
but only from the river banks which is property of public dominion.
(D) Ports
[19.9] Ports
The term “ports” in Article 420(1) of the New Civil Code includes
seaports and airports.158 The MIAA Airport Lands and Buildings
constitute a “port” constructed by the State.159 Hence, they are properties
of public dominion and thus owned by the State or the Republic of
the Philippines.160 In Manila International Airport Authority v. CA,161 the
Court explained:
“No one can dispute that properties of public dominion
mentioned in Article 420 of the Civil Code, like ‘roads,
canals, rivers, torrents, ports and bridges constructed by the
State,’ are owned by the State. The term ‘ports’ includes
seaports and airports. The MIAA Airport Lands and
Buildings constitute a ‘port’ constructed by the State. Under
Article 420 of the Civil Code, the MIAA Airport Lands and
157
Tiongco v. Director of Lands, 16 C.A. Rep. 211, cited in Vda. de Nazareno v. CA, 257
SCRA 589 (1996).
158
Manila International Airport Authority v. CA, 495 SCRA 591, 622.
159
Id.
160
Id.
161
Supra.
64 PROPERTY
(E) Shores
[19.10] Shore, Defined
“Shore” is understood to be that space which is alternately covered
and uncovered by water with the movements of the tides.162 Its interior
or terrestrial limit is the line reached by the highest equinoctial tides.163
Where the tides are not appreciable, the shore begins on the land-side at
162
Art. 1, The Law of Waters of August 3, 1866, cited in Francisco v. Government of the
P.I., 28 Phil. 505, 507 (1914) and Government of the Philippine Islands v. Cabañgis, 53 Phil. 112,
115 (1929).
163
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 65
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
the line reached by the sea during ordinary storms or tempests.164 Thus,
in Cagampang v. Morano,165 the Supreme Court held that the subject
property is part of the shore and public property as the same is covered
by the highest tides from May to July and there is no showing that these
tides are due to abnormal conditions.
[19.11] Shore, Property of Public Dominion
Shores are properties of public dominion.166 Thus, when the sea
advances and private properties are permanently invaded by the waves,
the properties so invaded become part of the shore or beach and they
then pass to the public domain.167 The owner thus dispossessed does not
retain any right to the natural products resulting from their new nature;
it is a de facto case of eminent domain, and not subject to indemnity.168
This process whereby private property is converted into property for
public use through the natural action of the sea and the abandonment by
the owner has been called “natural expropriation.”169
[19.12] Accretions on Seashore
Accretions and alluvial deposits caused by the action of the sea
are governed by Article 4 of the Spanish Law of Waters of 1866, an
old but still valid law.170 Under said law, “lands added to the shores by
accretions and alluvial deposits caused by the action of the sea, form
part of the public domain.” Since alluvial formation along the seashore
is part of the public domain, it is not open to acquisition by adverse
possession by private persons.171 It is outside the commerce of man,
unless otherwise declared by either the executive or legislative branch
of the government.172 The accretion on the foreshore of the Manila Bay,
the latter being an inlet or an arm of the sea, for example, is part of the
public domain.173 On the other hand, the Laguna de Bay is a lake the
164
Id.
165
22 SCRA 1040 (1968).
166
Art. 420(1), NCC.
167
Government of the Philippine Islands v. Cabangis, supra, 115-116, cited in Republic v.
Court of Appeals, 281 SCRA 639, 655-656 (1997).
168
Id.
169
Caguioa, Civil Code of the Philippines, Vol. II, 1966 ed., p. 33.
170
Heirs of Emiliano Navarro v. Intermediate Appellate Court, 268 SCRA 74 (1997).
171
De Buyser v. Director of Lands, 121 SCRA 13, 16 (1983).
172
Id., citing Ignacio v. Director of Lands, 108 Phil. 335.
173
Heirs of Emiliano Navarro v. IAC, supra., citing Ignacio v. Director of Lands and Vale-
riano, 108 Phil. 335 (1960).
66 PROPERTY
174
Heirs of Emiliano Navarro v. IAC, supra, 90; citing Government of the P.I. v. Colegio de
San Jose, 53 Phil. 423 (1929); Republic v. Court of Appeals, 131 SCRA 532 (1984); Republic v.
Alagad, 169 SCRA 455 (1989); and Meneses v. CA, 246 SCRA 162 (1995).
175
Republic v. CA, 281 SCRA 639 (1997).
176
49 O.G. No. 5, p. 1863 (1953).
177
At p. 1865.
178
Ponce v. Gomez, L-21870, February 3, 1965, and Ponce v. City of Cebu, L-22669, June
24, 1966.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 67
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
which, quoting Corpus Juris, is “that part of the land adjacent to the
sea which is alternately covered and left dry by the ordinary flow of the
tides.” Thus, in the Ponce cases, the Supreme Court upheld the Cebu
City ordinance but only with respect to the reclamation of the foreshore
areas, and nullified the same with respect to the submerged areas.
In Republic v. Court of Appeals,179 the Supreme Court declared as
invalid the ordinances passed by the Pasay City and the reclamation
agreements it entered into with Republic Real Estate Corporation on
the ground that the subject matter thereof were submerged lands and not
foreshore lands. The Court held that the term foreshore lands cannot be
unduly stretched to include the submerged areas. The Court reiterated
what was said in the Ponce cases that 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.”
In Chavez v. Public Estates Authority,180 the Court declared as
invalid the joint venture agreement between Public Estates Authority
(PEA) and Amari Coastal Bay Development Corporation (Amari).
In said case, PEA entered into a joint venture agreement with Amari
obligating itself to convey title and possession over 750 hectares of
land, 592.15 hectares or 78% of the total area are still submerged and
permanently under the waters of Manila Bay. Under the said agreement,
the PEA conveyed to Amari the submerged lands even before their
actual reclamation, although the documentation of the deed of transfer
and issuance of the certificates of title would be made only after
actual reclamation. A question arose with respect to the validity of this
transaction. In declaring the contract to be invalid the Supreme Court
held: “Submerged lands, like the waters (sea or bay) above them, are
part of the State’s inalienable natural resources. Submerged lands are
property of public dominion, absolutely inalienable and outside the
commerce of man. This is also true with respect to foreshore lands.
Any sale of submerged or foreshore lands is void being contrary to the
Constitution.”
179
299 SCRA 199 (1998).
180
415 SCRA 403 (2003).
68 PROPERTY
(G) Lakes
[19.14] Ownership of Lakes
Natural lakes and lagoons and their beds belong to the State181 and
are part of public dominion.182 Lakes and lagoons naturally occurring
on private lands also belong to the State.183 Hence, lakes and lagoons
developed by a private person on private lands are of private ownership.
The Water Code of the Philippines, however, prohibits any person from
developing a lake, stream or spring for recreational purposes without
first obtaining a permit from the National Water Resources Council.184
The Laguna de Bay has long been recognized as a lake.185 As such,
the accretion occurring therein, by mandate of Article 84 of the Spanish
Law of Waters of 1866, belongs to the owner of the land contiguous
thereto.186
181
Art. 5(c), Water Code of the Philippines.
182
Art. 502(4), NCC.
183
Art. 6(b), Water Code of the Philippines. (Note: To this extent, the provision of Art.
503[2] of the NCC is deemed repealed. The repealing clause of the Water Code provides, in part:
“Art. 100. The following laws, parts and/or provisions of laws are hereby repealed: a. The provi-
sions of the Spanish Law on Waters of August 3, 1886, the Civil Code of the Philippines [RA
386] on ownership of waters, easements relating to waters, use of public waters and acquisitive
prescription on the use of waters, which are inconsistent with the provisions of this Code. xxx”)
184
Art. 41, Water Code of the Philippines.
185
Government of P.I. v. Colegio de San Jose, 53 Phil. 423 (1929); Republic v. Court of
Appeals, 131 SCRA 532 (1984); Republic v. Alagad, 169 SCRA 455 (1989).
186
Heirs of Emiliano Navarro v. IAC, supra, 90, citing Government of the P.I. v. Colegio de
San Jose, 53 Phil. 423 (1929); Republic v. Court of Appeals, 131 SCRA 532 (1984); Republic v.
Alagad, 169 SCRA 455 (1989); and Meneses v. CA, 246 SCRA 162 (1995).
187
131 SCRA 532 (1984).
188
Citing Art. 74 of the Law of Waters of 1866.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 69
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
about twenty (20) meters therefrom, on the ground that such is part of
the public domain and therefore not registrable. The Director of Lands
contends that since the land sought to be registered is covered with
water four to five months a year, the same is part of the lake bed of
Laguna de Bay, or is at least, a foreshore land. The rise in the water level
of the Laguna de Bay, as observed four to five months a year during the
rainy season, is caused by the rains. It is the rains which bring about the
inundation of a portion of the land in question. Applying the provisions
of Article 74 of the Law of Waters of 1866, the Supreme Court held
that since the rise in the water level which causes the submersion of the
land occurs during a shorter period (four to five months a year) than
the level of the water at which the land is completely dry, the latter
should be considered as the “highest ordinary depth” of Laguna de Bay.
Therefore, the Court concludes, the land sought to be registered is not
part of the bed or basin of Laguna de Bay, and therefore capable of
registration as private property.
In Republic v. Alagad,189 the Supreme Court defined the highest
ordinary depth of the waters of the Laguna de Bay as the highest depth
of the waters during the dry season or such depth being the regular,
common, natural, which occurs always or most of the time during
the year. Otherwise stated, where the rise in water level is due to the
“extraordinary” action of nature, rainfall for instance, the portions
inundated thereby are not considered part of the bed or basin of the body
of water in question.190 It cannot therefore be said to be foreshore land
but land outside of the public dominion, and land capable of registration
as private property.191
189
169 SCRA 455, 463-464, citing Republic v. CA, supra.
190
Id., at 464.
191
Id.
192
Maneclang v. Intermediate Appellate Court, 161 SCRA 469, 471 (1988), citing Mercado
v. Municipal President of Macabebe, 59 Phil. 592 (1934); see also Maneclang v. IAC, 144 SCRA
553, 556 (1986); Usero v. Court of Appeals, 449 SCRA 352, 359 (2005).
70 PROPERTY
193
Id., 471; see also Celestial v. Cachopero, 413 SCRA 469 and Usero v. CA, supra, 359.
194
Id., 471; see also Usero v. CA, supra, 359.
195
Usero v. CA, supra, 359.
196
Art. 420(2), NCC.
197
Laurel v. Garcia, 187 SCRA 797, 808 (1990).
198
Id., 807.
199
Id., 807.
200
Id., 808.
201
See Chavez v. Public Estates Authority, 384 SCRA 152, 192 (2002).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 71
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
202
Collado v. Court of Appeals, 390 SCRA 343, 354 (2002), citing Republic v. Sayo, 191
SCRA 71 (1990).
203
Id., 354-355, citing the Separate Opinion of J. Puno in Cruz v. Secretary of Environment
and Natural Resources, 347 SCRA 128 (2000).
204
Id., 355.
205
Id., 355.
206
Id., 357, citing the Separate Opinion of J. Puno in Cruz v. Secretary of Environment and
Natural Resources, supra.
207
Supra, at pp. 171-172.
72 PROPERTY
208
Separate Opinion of J. Puno in Cruz v. Secretary of Environment and Natural Resources,
supra, 173.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 73
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
xxx.”
Under the Regalian Doctrine embodied in the present Constitution,
all lands of the public domain as well as all natural resources enumerated
in the above-quoted provision, whether on public or private land, belong
to the State.209
209
Id., 173.
210
Menchavez v. Teves, Jr., 449 SCRA 380, 391 (2005).
211
Id.
212
Id.
213
Id.
214
Collado v. CA, supra.
215
Id.
216
Id., 369.
217
Id.
74 PROPERTY
218
Chavez v. Public Estates Authority, supra.
219
Id.
220
Id.
221
Sec. 3, Art. XII, 1987 Philippine Constitution.
222
Director of Forestry v. Villareal, 170 SCRA 598, 601 (1989).
223
Republic v. IAC, 186 SCRA 88, 93 (1990).
224
See Republic v. De Porkan, 151 SCRA 88; Krivenko v. Register of Deeds, 79 SCRA 461;
Mapa v. Insular Government, 10 Phil. 175.
225
See Sec. 3, Art. XII, 1987 Constitution.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 75
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
226
Director of Lands v. Court of Appeals, 129 SCRA 689, 692.
227
Id.
228
Id.
229
Republic v. Lao, 405 SCRA 291, 298.
230
Celestial v. Cachopero, 413 SCRA 469, 485.
231
Id.
232
II Tolentino, Civil Code of the Phil., 1992 ed., 38.
76 PROPERTY
233
Dacanay v. Asistio, Jr., 208 SCRA 404, 411 (1992).
234
Id., citing Villanueva v. Castañeda and Macalino, 15 SCRA 142; Municipality of Cavite
v. Rojas, 30 Phil. 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot v.
De la Fuente, 48 O.G. 4860.
235
Id.
236
Supra.
237
114 SCRA 553 (1986).
238
187 SCRA 797, 808 (1990).
239
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 77
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
240
Supra.
241
See Sec. 2, Article XII of the 1987 Constitution.
242
Menchavez v. Teves, Jr., 449 SCRA 380, 391 (2005).
243
Celestial v. Cachopero, supra, 485.
244
Supra.
245
266 SCRA 392, 401 (1997).
78 PROPERTY
246
132 SCRA 514 (1984).
247
186 SCRA 88 (1990).
248
Manila International Airport Authority v. CA, supra.
249
Id.
250
Id.
251
Id.
252
See supra § 18.9.
253
49 Phil. 52.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 79
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
used for street sprinkling, a police patrol automobile, police station and
market together with the lots which they occupy. The Court declared the
attachment as invalid.
In Tufexis v. Olaguera,254 the Court likewise held that the usufruct
of the public market was not subject to attachment on account of its
being of a public character.
Villarico v. Sarmiento
442 SCRA 110 (2004)
Villarico is the owner of a lot in La Huerta, Parañaque City. His lot
is separated from the Ninoy Aquino Avenue (highway) by a strip of land
belonging to the government. As this highway was elevated by four meters
and therefore higher than adjoining areas, the DPWH constructed stairways at
several portions of this strip of public land to enable the people to have access
to the highway. Sometime in 1991, Villarico had a building constructed on a
portion of said government land. In November of that same year, a part thereof
was occupied by Andok’s Litson and Marites’ Carinderia. In 1993, by means of
a Deed of Exchange of Real Property, Villarico acquired a portion of the area
owned by the government and registered in his name under TCT No. 74430.
In 1995, Villarico filed with the RTC of Parañaque City a complaint for accion
publiciana against several respondents, including Sarmiento, alleging that
respondents’ structures on the government land closed his “right of way” to the
Ninoy Aquino Avenue and encroached on a portion of his lot covered by TCT
No. 74430. Respondents deny the allegations claiming that they have been
issued licenses and permits by Parañaque City to construct their buildings on
the area and that Villarico has no right over the subject property as it belongs
to the government.
254
32 Phil. 654.
255
442 SCRA 110 (2004).
80 PROPERTY
over the disputed lot where the stairways were built as it is a property of public
dominion, the Supreme Court explained that “the lot on which the stairways
were built is for the use of the people as passageway to the highway” belongs
to the State. Consequently, it is a property of public dominion. And considering
that the said lot is a property of public dominion, it cannot be burdened by a
voluntary easement or right of way in favor of Villarico. In fact, its use by the
public is by mere tolerance of the government through the DPWH. Hence,
Villarico cannot appropriate it for himself and he cannot claim any right of
possession over it.
Art. 421. All other property of the State, which is not of the character
stated in the preceding article, is patrimonial property. (340a)
256
Art. 421, NCC.
257
Hinunangan v. Director of Lands, 24 Phil. 124, 127 (1913).
258
II Caguioa, Civil Code of the Phil., 1966 ed., 36.
259
403 SCRA 1, 31, G.R. No. 133250, May 6, 2003.
260
Dissenting Opinion of J. Tinga in Alonso v. Cebu Country Club, Inc., 417 SCRA 115,
citing A. Mañalac and R. Mañalac, Land Registration, 3rd ed., 95.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 81
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
261
Jacinto v. Director of Lands, 49 Phil. 853 (1926).
262
Alonso v. Cebu Country Club, Inc., supra.
263
Separate Opinion of J. Bellosillo in Chavez v. PEA, 403 SCRA 1, 37, citing II Tolentino,
Civil Code of the Philippines 38 (1992).
264
Id.
265
Id., at p. 38, citing Montano v. Insular Government, 22 Phil. 572 (1909).
266
Id.; citing Manila Lodge No. 761 v. CA, 73 SCRA 162.
82 PROPERTY
267
Chavez v. Public Estates Authority, 403 SCRA 1, 31 (2003).
268
Id.
269
187 SCRA 797, 812.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 83
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
270
Alonso v. Cebu Country Club, Inc., supra, 127.
271
Id.
272
Id.
84 PROPERTY
273
Palomo v. Court of Appeals, supra.
274
Art. 422, NCC.
275
See Dissenting Opinion of J. Feliciano in Laurel v. Garcia, supra, 821.
276
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 85
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
277
See Concurring Opinion of J. Sarmiento in Laurel v. Garcia, supra, 818.
278
7 Phil. 20 (1906), cited in the Concurring Opinion of J. Sarmiento in Laurel v. Garcia,
supra, 818.
279
24 Phil. 124 (1913), cited in the Concurring Opinion of J. Sarmiento in Laurel v. Garcia,
supra, 818.
280
108 Phil. 335 (1960).
281
66 SCRA 481 (1975).
282
187 SCRA 797 (1990).
86 PROPERTY
283
Art. 423, Civil Code; Macasiano v. Diokno, 212 SCRA 464, 469 (1992); Pilapil v. CA,
216 SCRA 33, 46 (1992).
284
Art. 424, 1st par., Civil Code; cited in Pilapil v. CA, supra, at p. 46.
285
Art. 424, 2nd par., Civil Code.
286
Agripino Capitulo, et al. v. Alejo Aquino, No. 15488-R, 53 O.G. 1477, November 19,
1956.
287
Ibid.
288
Ibid.
289
Ibid.
290
Ibid.
88 PROPERTY
public use of the City of Manila and not its patrimonial property, the Court of
Appeals held —
“xxx. The nature of properties owned by cities in this country
is determined by the character of the use or service for which they
are intended or devoted. Properties which are intended for public
use or for some public service are properties for public use. All
others are patrimonial properties. Art. 424, new Civil Code. It
matters not that the property is not actually devoted for public use
or for some public service. If it has been intended for such use or
service, and the city has not devoted it to other uses, or adopted
any measure which amounted to a withdrawal of the property from
public use and service, the same remains property for public use,
the fact that it is not actually devoted for public use or service
notwithstanding.”
Art. 424. Property for public use, in the provinces, cities, and munic-
ipalities, consists of the provincial roads, city streets, municipal streets,
the squares, fountains, public waters, promenades, and public works for
public service paid for by said provinces, cities, or municipalities.
All other property possessed by any of them is patrimonial and shall
be governed by this Code, without prejudice to the provisions of special
laws. (344a)
291
Pilapil v. CA, supra, at p. 46, citing Tolentino, Civil Code, Vol. II, 1983 ed., 38.
292
Dacanay v. Asistio, Jr., 208 SCRA 404, 411 (1992).
293
Ibid., citing Villanueva v. Castañeda and Macalino, 15 SCRA 142; Municipality of Cav-
ite v. Rojas, 30 Phil. 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot
v. De la Fuente, 48 O.G. 4860.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 89
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
294
Insular Government v. Aldecoa, 19 Phil. 505.
295
Tan Toco v. Municipal Council of Iloilo, 49 Phil. 52.
296
2-II Colin & Capitant 520, cited in Tolentino, Civil Code, Vol. II, 1983 ed., 29-30.
90 PROPERTY
297
Dacanay v. Asistio, supra.
298
Ibid.
299
Macasiano v. Diokno, supra, at p. 469.
300
66 SCRA 481 (1975).
301
27 SCRA 1060.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 91
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
302
Supra.
303
At p. 470.
304
Article 422, Civil Code; Cebu Oxygen, etc., et al. v. Bercilles, et al., supra.
305
Macasiano v. Diokno, supra.
306
Ibid., p. 471.
307
Dacanay v. Asistio, supra.
92 PROPERTY
further held that the right of the public to use the city streets may not be
bargained away through contract.
Macasiano v. Diokno
212 SCRA 464 (1992)
In this case, the then municipality of Parañaque passed an ordinance
authorizing the closure of several municipal streets for purposes of converting
them as sites for flea market and/or vending areas. The municipality then
entered into an agreement with Palanyag for the operation of flea market in
the said streets. Subsequently, Brig. Gen. Macasiano of the PNP ordered the
destruction and confiscation of the stalls. Palanyag went to court. The trial court
upheld the validity of the ordinance passed by the Municipality of Parañaque.
Macasiano questioned the ruling of the trial court before the Supreme Court.
In sustaining Macasiano, the Court explained —
Villanueva v. Castañeda, 154 SCRA 142, 148 (1987), citing Municipality of Cavite v.
309
Rojas, 30 Phil. 602 and Espiritu v. Municipal Council of Pozorrubio, 101 Phil. 869-870.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 95
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
Supra.
310
312
G.R. No. L-6534, 48 O.G. 4860.
313
Art. 424, 2nd par., Civil Code.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 97
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
314
Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334, 1342 (1968).
315
Ibid., at p. 1346.
316
No. 15488-R, (CA) 53 O.G. 1477, November 19, 1956.
317
Concurring Opinion of J. Puno in Republic v. CA, 299 SCRA 199, 301 (1998).
318
Id.
319
Id.
320
Id.
321
Id., citing R.A. No. 161, Bacolod City; R.A. No. 287, Catbalogan, Samar; R.A. No.
1099, Romblon.
322
Id., 301-302.
98 PROPERTY
323
Id., 302.
324
Supra.
325
See Ponce cases, supra.
326
Chavez v. PEA, 403 SCRA 1, 32.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 99
CLASSIFICATION OF PROPERTY
Property in Relation to the Person to Whom it belongs
327
Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334 (1968).
328
Supra.
329
Supra.
330
Supra.
100 PROPERTY
331
Municipality of Antipolo v. Zapanta, supra., citing Oh Cho v. Director of Lands, 75 Phil.
(1946); Director of Lands v. CA, 38 SCRA 635 (1971).
332
Sec. 8, Art. XII, 1987 Constitution.
333
G.R. No. 124293, Jan. 31, 2005.
102 PROPERTY
— oOo —
103
Chapter 1
OWNERSHIP IN GENERAL
1
Derived from proprius.
2
The Principles of Roman Law and Their relation to modern law by William L. Burdick,
2004 ed., 325-326.
3
II Caguioa, Civil Code of the Philippines, 1966 ed., 48.
4
2 Castan, 8th ed., 49, 52, 53, cited in II Caguioa, Civil Code of the Philippines, 1966 ed.,
48.
103
104 PROPERTY
5
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 105
OWNERSHIP
Ownership in General
6
Outline of Civil Law by Reyes and Puno, Vol. II, 20.
7
Black’s Law Dictionary, 5th ed., 1189.
8
3 Sanchez Roman 8.
9
3 Sanchez Roman 6.
10
Black’s Law Dictionary, 5th ed., 1189.
106 PROPERTY
to exclude any person from its enjoyment and disposal11 save for the
exception mentioned in Article 432 of the Civil Code which will be
discussed in subsequent sections of this Book.
11
Art. 429, NCC.
12
See Castan, 8th Ed., 90-91.
13
The Principles of Roman Law and Their Relation to Modern Law by William L. Burdick,
2004 ed., 354.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 107
OWNERSHIP
Ownership in General
414, embraces both material objects and rights. In other words, the term
“things” in Article 414 is used, not in its ordinary meaning, but in the
juridical sense. In Article 427, however, it is quite obvious that the word
“things” has reference only to material objects as contra distinguished
from rights. Then again, Article 428 the Code mentions “things” only but
this time the concept embraces both material objects and rights. Hence,
it would have been better if Article 427 simply stated that “ownership
is exercised over property.” After all, the concept of property under the
Civil Code embraces both material objects and rights.
Art. 428. The owner has the right to enjoy and dispose of a thing,
without other limitations than those established by law.
The owner has also a right of action against the holder and pos-
sessor of the thing in order to recover it. (348a)
14
See Footnote No. 2, II Tolentino, Civil Code, 1992 ed., p. 46.
15
Saul v. Hawkins, 1 Phil. 275.
16
Roque v. Cavestani, G.R. No. L-218, Aug. 18, 1946; Villanueva v. Carlos, G.R. No. L-
329, Sep. 16, 1946.
17
2 Castan, 8th ed., 106.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 109
OWNERSHIP
Ownership in General
18
See Art. 429, NCC.
19
See Art. 430, NCC.
110 PROPERTY
directs the true owner to “resort to judicial process for the recovery of
the property” and Article 536 of the same Code which states:
“Art. 536. In no case may possession be acquired
through force or intimidation as long as there is a possessor
who objects thereto. He who believes that he has an action
or a right to deprive another of the holding of a thing, must
invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a)” (Italics supplied)
Thus, in one case,20 the Supreme Court held that the owners of a
property have no authority to use force and violence to eject alleged
usurpers who were in prior physical possession of it. The Court held
further that the owners must file the appropriate action in court and
should not take the law into their own hands.
20
Heirs of Pedro Laurora, et al. v. Sterling Technopark III, G.R. No. 148615, April 9,
2003.
21
Valdez v. CA, G.R. No. 132424, May 2, 2006, citing Javier v. Veridiano II, 237 SCRA
565, 572-573 (1994).
22
Rule 60, 1997 Rules of Civil Procedure.
23
Valdez v. CA, G.R. No. 132424, May 2, 2006, citing Javier v. Veridiano II, 237 SCRA
565, 572-573 (1994).
24
See Sec. 1, Rule 70, 1997 Rules of Civil Procedure; Dela Cruz v. Panis, 245 SCRA 242
(1995).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 111
OWNERSHIP
Ownership in General
25
Id.
26
Sec. 33(2), B.P. Blg. 129, as amended by R.A. No. 7691.
27
Javier v. Veridiano II, 237 SCRA 565 (1994).
28
De Leon v. CA, 245 SCRA 166, 173 (1995).
29
Id.
30
Id.
112 PROPERTY
31
Pengson v. Ocampo, 360 SCRA 420, 425-426.
32
Heirs of Demetrio Melchor v. Melchor, 415 SCRA 726.
33
Id.
34
Barba v. CA, 376 SCRA 210, 218-219.
35
Ong v. Parrel, 355 SCRA 691, 696.
36
Valdez v. CA, G.R. No. 132424, May 2, 2006.
37
See Sec. 2, Rule 70, 1997 Rules of Civil Procedure; Medel v. Militante, 41 Phil. 44.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 113
OWNERSHIP
Ownership in General
38
As distinguished from the summary nature of ejectment cases.
39
Cruz v. Torres, 316 SCRA 193, citing Aguilon v. Bohol, 79 SCRA 482 (1977) and Des-
barats v. De Laureano, 18 SCRA 116 (1966).
40
Id., citing Bernabe v. Dayrit, 125 SCRA 423, 425 (1983).
41
Valdez v. CA, G.R. No. 132424, May 2, 2006.
42
Sec. 33(2), B.P. Blg. 129, as amended by R.A. No. 7691.
43
Sec. 33(3), B.P. Blg. 129, as amended by R.A. No. 7691.
44
Id.
114 PROPERTY
45
Hilario v. Salvador, 457 SCRA 815, 825 (2005).
46
Javier v. Veridiano II, supra.
47
Id.
48
See De Leon v. CA, 245 SCRA 166, 173 (1995); Valdez v. CA, supra; Custodio v. Cor-
rado, 435 SCRA 500 (2004).
49
See II Caguioa, Civil Code of the Philippines, 1966 ed., 50.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 115
OWNERSHIP
Ownership in General
Art. 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For this
purpose, he may use such force as may be reasonably necessary to repel
or prevent an actual or threatened unlawful physical invasion or usurpa-
tion of his property. (n)
50
Sec. 33(3), B.P. Blg. 129, as amended by R.A. No. 7691.
51
Id.
52
Art. 429, NCC.
53
Id.
54
People v. Depante (CA), 58 O.G. 926.
116 PROPERTY
is available not only to owners of the property but also to any of its
“lawful possessor.”55
55
See Art. 429, NCC.
56
Id.
57
German Management & Services, Inc. v. CA, 177 SCRA 495 (1989).
58
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 117
OWNERSHIP
Ownership in General
Code. When the case reached the Supreme Court, the High Court held that
what the petitioner did could not be justified under the doctrine of self-help.
The Court explained —
Both the Municipal Trial Court and the Regional Trial Court
have rationalized petitioner’s drastic action of bulldozing and
destroying the crops of private respondents on the basis of the
doctrine of self-help enunciated in Article 429 of the New Civil
Code. Such justification is unavailing because the doctrine of
self-help can only be exercised at the time of actual or threatened
dispossession which is absent in the case at bar. When possession
has already been lost, the owner must resort to judicial process
for the recovery of property. This is clear from Article 536 of the
Civil Code which states, “(I)n no case may possession be acquired
through force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or right to
deprive another of the holding of a thing, must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.’’
1 Viada, Codigo Penal, 5th ed., pp. 172-173, cited in People v. Jaurigue, 76 Phil. 174.
59
People v. Apolinar, (CA) 38 O.G. 2870 and People v. Goya, CA-GR. No. 16373-R, Sep.
60
29, 1965.
118 PROPERTY
61
121 SCRA 389 (1983).
62
II Caguioa, Civil Code of the Philippines, 1966 ed., 58.
63
Id.
64
Art. 11(1), RPC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 119
OWNERSHIP
Ownership in General
People v. Narvaez
121 SCRA 389 (1983)
Appellant’s house was situated on a land awarded to Fleischer and
Company by virtue of a sales patent. The validity of the award was, however,
questioned before the court by a group of settlers, including the Appellant
(Narvaez). On August 22, 1968 or while the case was still pending, a group of
men headed by the son (Davis Fleischer) of the landowner (George Fleischer)
were fencing the land of the latter. At that time, Appellant was taking his rest
but when he heard that the walls of his house were being chiseled, he arose
and there he saw the fencing going on. If the fencing would go on, Appellant
would be prevented from getting into his house and the bodega of his rice mill.
So the Appellant addressed the group, “Pare, if possible you stop destroying
my house and if possible we will talk it over what is good.” Davis Fleischer,
however, answered: “No, gademit, proceed, go ahead.” Appellant apparently
lost his equilibrium and he got his gun and shot dead Fleischer and the latter’s
companion, Rubia. On appeal to the Supreme Court, the Court appreciated
in favor of the Appellant the special mitigating circumstance of incomplete
defense of property, citing the provisions of Article 429 of the Civil Code
in relation to paragraph 6, Article 13 of the Revised Penal Code. The Court
considered the unlawful physical invasion of Appellant’s property as unlawful
aggression but held that his resistance was disproportionate to the attack.
120 PROPERTY
Art. 430. Every owner may enclose or fence his land or tenements
by means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon. (388)
65
Art. 430, NCC.
66
See Villafuerte v. CA, G.R. No. 134239, May 26, 2005.
67
Id.
68
2 Sanchez Roman 572.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 121
OWNERSHIP
Ownership in General
Art. 431. The owner of a thing cannot make use thereof in such man-
ner as to injure the rights of a third person. (n)
Art. 432. The owner of a thing has no right to prohibit the interfer-
ence of another with the same, if the interference is necessary to avert an
imminent danger and the threatened damage, compared to the damage
arising to the owner from the interference, is much greater. The owner
may demand from the person benefited indemnity for the damage to him.
(n)
69
City Government of Quezon City v. Ericta, G.R. No. L-34915, June 24, 1983.
70
Id.
71
Manosca v. CA, G.R. No. 106440, Jan. 29, 1996.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 123
OWNERSHIP
Ownership in General
largely on the maxims, “Sic utere tuo et alienum non laedas”72 and
“Salus populi est suprema lex.”73 Its fundamental purpose is securing
the general welfare, comfort and convenience of the people.74
Freund defined police power as “the power of promoting the public
welfare by restraining and regulating the use of liberty and property.”75
Police power is usually exercised in the form of mere regulation or
restriction in the use of liberty or property for the promotion of the
general welfare.76 It does not involve the taking or confiscation of
property with the exception of a few cases where there is a necessity
to confiscate private property in order to destroy it for the purpose of
protecting the peace and order and of promoting the general welfare as
for instance, the confiscation of an illegally possessed article, such as
opium and firearms.77 Thus, in police power, the owner does not recover
from the government for injury sustained in consequence thereof.78
The foregoing principles are confirmed in Article 436 of the New
Civil Code, which states:
“Art. 436. When any property is condemned or seized
by competent authority in the interest of health, safety or
security, the owner thereof shall not be entitled to compensa-
tion, unless he can show that such condemnation or seizure
is unjustified.”
There are traditional distinctions between the police power and
the power of eminent domain that logically preclude the application of
both powers at the same time on the same subject. In the case of City of
Baguio v. NAWASA,79 for example, where a law required the transfer of
all municipal waterworks systems to the NAWASA in exchange for its
assets of equivalent value, the Court held that the power being exercised
was eminent domain because the property involved was wholesome and
intended for a public use. Property condemned under the police power
72
So use your own as not to injure another’s property.
73
The welfare of the people is the supreme law.
74
Binay v. Domingo, G.R. No. 92389, Sep. 11, 1991.
75
Tañada and Carreon, Political Law, Vol. 11, p. 50, cited in City Government of Quezon
City v. Ericta, supra.
76
City Government of Quezon City v. Ericta, supra.
77
Id.
78
Id.
79
106 Phil. 144.
124 PROPERTY
80
Association of Small Landowners in the Phil. v. Sec. of Agrarian Reform, G.R. No.
78742, July 14, 1989.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 125
OWNERSHIP
Ownership in General
need to expropriate where the owner is willing to sell under terms also
acceptable to the purchaser, in which case an ordinary deed of sale may
be agreed upon by the parties.81 It is only where the owner is unwilling
to sell, or cannot accept the price or other conditions offered by the
vendee, that the power of eminent domain will come into play to assert
the paramount authority of the State over the interests of the property
owner. Private rights must then yield to the irresistible demands of the
public interest on the time-honored justification, as in the case of the
police power, that the welfare of the people is the supreme law.82
The exercise of the power of eminent domain is constrained by
two constitutional provisions: (1) that private property shall not be
taken for public use without just compensation under Article III (Bill
of Rights), Section 9; and (2) that no person shall be deprived of his/her
life, liberty, or property without due process of law under Art. III, Sec.
1. The foregoing requirement is echoed in Article 435 of the New Civil
Code, which states:
“Art. 435. No person shall be deprived of his property
except by competent authority and for public use and always
upon payment of just compensation.
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the owner
in his possession. (349a)”
In view of the foregoing proscription, the power of eminent domain
can only be exercised for public use and with just compensation. This
proscription is intended to provide a safeguard against possible abuse
and so to protect as well the individual against whose property the
power is sought to be enforced.83 Taking an individual’s private property
is a deprivation which can only be justified by a higher good — which is
public use — and can only be counterbalanced by just compensation.84
Without these safeguards, the taking of property would not only be
unlawful, immoral, and null and void, but would also constitute a gross
81
Noble v. City of Manila, 67 Phil. 1, cited in Association of Small Landowners in the Phil.
v. Sec. of Agrarian Reform, supra.
82
Association of Small Landowners in the Phil. v. Sec. of Agrarian Reform, supra.
83
Manosca v. CA, supra.
84
Barangay Sindalan, San Fernando, Pampanga v. CA, G.R. No. 150640, March 22, 2007.
126 PROPERTY
85
Id.
86
LTO v. City of Butuan, G.R. No. 131512, Jan. 20, 2000.
87
Mactan Cebu International Airport v. Hon. Marcos, G.R. No. 120082, Sep. 11, 1996; cit-
ing Cooley on Constitutional Law, 4th ed. (1931), 62.
88
Sec. 28(1), Article VI, 1987 Constitution.
89
Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat, 316, 4 L ed. 579, 607. Later
Justice Holmes brushed this aside by declaring in Panhandle Oil Co. v. Mississippi (277 U.S. 218)
that “the power to tax is not the power to destroy while this Court sits.” Justice Frankfurter in
Graves v. New York (306 U.S. 466) also remarked that Justice Marshall’s statement was a “mere
flourish or rhetoric” and a product of the “intellectual fashion of the times” to indulge in “a free
case of absolutes.” (See Note 15 in Mactan Cebu International Airport v. Hon. Marcos, supra.).
90
Mactan Cebu International Airport v. Hon. Marcos, supra.
91
Id., citing Agpalo, Ruben E., Statutory Construction [1990 ed.], 216.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 127
OWNERSHIP
Ownership in General
may be established even against the will of the owner of the servient
estate.92
(2) During a period of acute public want or emergency, thought-
less extravagance in expenses for pleasure or display may be stopped by
order of the courts at the instance of any government or private chari-
table institution.93
(3) Lands acquired under free patent or homestead cannot be
subject to encumbrance or alienation within five years from the issuance
of the patent.94
92
See Chapter 2, Title VII, Book II of the New Civil Code.
93
Art. 25, NCC.
94
Sec. 118, C.A. No. 141, as amended.
95
Case v. Board of Health, 24 Phil. 250.
96
See Footnote No. 32, National Power Corp. v. Philipp Brothers Oceanic, Inc., 369 SCRA
629, 642.
128 PROPERTY
only when he acts in the legitimate exercise of his right, that is, when
he acts with prudence and in good faith; but not when he acts with
negligence or abuse. The principle is outlined in Article 19 of the Code
which provides that “every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.” In relation to the exercise of
the right to use property, Article 431 of the Code specifically mandates
that “the owner of a thing cannot make use thereof in such a manner as
to injure the rights of a third person.” Not only that, our Constitution
even went farther by declaring that “the use of property bears a social
function, and all economic agents shall contribute to the common
good.”97
The absence of good faith is essential in determining whether the
owner can be held liable for any consequential damage arising from
the exercise of his right to use the property. When the owner acts in the
legitimate exercise of his right, that is, when he acts with prudence and
in good faith, he does no actionable injury and cannot be held liable
for damages.98 The damage resulting from the legitimate exercise of a
person’s right is a loss without injury — damnum absque injuria. If
the right is exercise in bad faith, however, and for the sole intent of
prejudicing or injuring another, there is liability under the principle of
abuse of right99 for the exercise of a right ends when the right disappears,
and it disappears when it is abused especially to the prejudice of
others.100
The foregoing principles are best illustrated when we compare the
case of Villafuerte v. Court of Appeals, cited in supra., §36, with the case
of Sps. Custodio and Sps. Santos v. Court of Appeals,101 both involving
the exercise of the owner’s right to enclose or fence his property. In
Villafuerte, the lot owners were held liable to pay damages because the
exercise of the right was attended with bad faith — it was resorted to for
the purpose of evicting the occupants whose lease contract had already
expired. In Sps. Santos, however, the Court held that the petitioners
were not liable to the private respondents for their act of constructing
97
Sec. 6, Art. XII, 1987 Phil. Constitution.
98
Amonoy v. Gutierrez, 351 SCRA 731.
99
Albenson Enterprises Corp. v. CA, 217 SCRA 18.
100
MBTC v. Wong, 359 SCRA 608, 618.
101
G.R. No. 116100, Feb. 9, 1996.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 129
OWNERSHIP
Ownership in General
a fence within their property since at the time of such construction, the
lot of the petitioners was not subjected yet to any servitude and there
was no easement of way existing in favor of the private respondents,
either by law or contract. The private respondents were granted by the
court a right of way to petitioners’ lot only when the former went to
court to pray for such access. But prior to the decision of the court, the
petitioners were declared to have an absolute right over their property
and their act of fencing and enclosing the same was an act which they
may lawfully perform in the enjoyment and exercise of said right.
the owner the right to enjoy and dispose of a thing, without other
limitations than those established by law. It is within the right of
petitioners, as owners, to enclose and fence their property. Article
430 of the Civil Code provides that ‘(e)very owner may enclose or
fence his land or tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to servitudes
constituted thereon.’
At the time of the construction of the fence, the lot was not
subject to any servitudes. There was no easement of way existing
in favor of private respondents, either by law or by contract. The
fact that private respondents had no existing right over the said
passageway is confirmed by the very decision of the trial court
granting a compulsory right of way in their favor after payment
of just compensation. It was only that decision which gave private
respondents the right to use the said passageway after payment of
the compensation and imposed a corresponding duty on petitioners
not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute
right over their property and their act of fencing and enclosing
the same was an act which they may lawfully perform in the
employment and exercise of said right. To repeat, whatever injury
or damage may have been sustained by private respondents by
reason of the rightful use of the said land by petitioners is damnum
absque injuria.
A person has a right to the natural use and enjoyment of his
own property, according to his pleasure, for all the purposes to
which such property is usually applied. As a general rule, therefore,
there is no cause of action for acts done by one person upon his
own property in a lawful and proper manner, although such acts
incidentally cause damage or an unavoidable loss to another, as
such damage or loss is damnum absque injuria. When the owner
of property makes use thereof in the general and ordinary manner
in which the property is used, such as fencing or enclosing the
same as in this case, nobody can complain of having been injured,
because the inconvenience arising from said use can be considered
as a mere consequence of community life.
The proper exercise of a lawful right cannot constitute a legal
wrong for which an action will lie, although the act may result in
damage to another, for no legal right has been invaded. One may
use any lawful means to accomplish a lawful purpose and though
the means adopted may cause damage to another, no cause of
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 131
OWNERSHIP
Ownership in General
102
People v. Rebutado, G.R. No. 124058, Dec. 10, 2003.
132 PROPERTY
Under the provisions of Article 432 of the New Civil Code of the
Philippines, the interference by a third person with another’s property
is justified and cannot be prevented by the latter if such interference
is necessary to avert an imminent danger and the threatened damage,
compared to the damage arising to the owner from the interference, is
much greater. An example of the application of the principle of state of
necessity is when a fire is threatening to spread and destroy other houses
and properties and the destruction of some houses will avert the spread
of the fire, such destruction is justified and will not be considered as
unlawful physical invasion upon another’s property.
In order for the interference to be justified under the state of
necessity, the following requisites must be present:
(1) there must be a situation of grave peril, an actual or imminent
danger, either upon the person of the actor or a third person or their
property;103
(2) the interference is necessary to avert such danger;104
(3) the threatened damaged, compared to the damage arising to
the owner from the interference, is much greater;105 and
(4) the state of necessity must not be brought about by the
intentional provocation of the party invoking the same.106
103
Art. 432, NCC.
104
Id.
105
Id.
106
People v. Rebutado, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 133
OWNERSHIP
Ownership in General
107
Id.
108
See Art. 101, 2nd par., RPC.
109
Art. 432, NCC.
110
II Tolentino, Civil Code of the Philippines, 1992 ed., 68.
111
Id., 70.
112
Id., 68.
134 PROPERTY
113
II Tolentino, Civil Code, 1992 ed., 61.
114
Art. 494, 3rd par., NCC.
115
Art. 870, NCC.
116
Leal v. CA, G.R. No. L-65425, Nov. 5, 1987.
117
Id.
136 PROPERTY
118
South Pacem Development, Inc. v. CA, G.R. No. 126260, Dec. 16, 2004.
119
174 SCRA 589 (1989).
120
Supra.
121
176 SCRA 31 (1989).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 137
OWNERSHIP
Ownership in General
and adjacent to the rear and two sides thereof for the purpose of drainage,
sewerage water and other public facilities as may be necessary and
desirable; and that additional restrictions, reservations, or servitudes as
the association may, from time to time, adopt and prescribe would be
for a period of fifty (50) years from January 1, 1949. Therein petitioner
allowed the occupancy by two families, thereby violating the “single-
family residential building restriction.” The Supreme Court declared
that the purpose of the restriction is valid as it avoids overcrowding both
in the houses and in the subdivision which would result in pressure upon
the common facilities such as water, power and telephone connections;
accelerate the deterioration of the roads; and create problems of
sanitation and security in the subdivision. Likewise, the restrictions
were for aesthetic consideration and for the preservation of the peace,
beauty, tranquility, and serenity of living at Forbes Park.
122
II Caguioa, Civil Code, 1966 ed., 165.
138 PROPERTY
123
See Rule 131, Sec. 3(a), Rules of Court.
124
See Art. 527, NCC.
125
II Caguioa, Civil Code, 1966 ed., 61.
126
Art. 433, NCC.
127
Art. 536, NCC.
128
Art. 433, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 139
OWNERSHIP
Ownership in General
129
Art. 536, NCC.
130
Alonzo v. San Juan, G.R. No. 137549, February 11, 2005.
131
Ramcar, Inc. v. Garcia, 114 Phil. 1026 (1962).
132
Navalle-Hutchison v. Buscas, G.R. No. 158554, May 26, 2005.
133
Art. 434, NCC; see also Turquesa v. Valera, 322 SCRA 573 (2000).
134
Navalle-Hutchison v. Buscas, supra, citing Civil Code of the Philippines, Annotated,
Justice Edgardo L. Paras, vol. two, 14th ed. at 130.
135
Navalle-Hutchison v. Buscas, supra, citing Ramcar, Inc. v. Garcia, 114 Phil. 1026
(1962).
136
Heirs of Anastacio Fabela v. Court of Appeals, 362 SCRA 531 (2001).
137
Id., see also Art. 433, NCC.
140 PROPERTY
138
Navalle-Hutchison v. Buscas, supra, citing Heirs of Anastacio Fabela v. Court of
Appeals, 362 SCRA 531 (2001).
139
Beo v. CA, 200 SCRA 575.
140
Bordalba v. CA, G.R. No. 112443, Jan. 25, 2002, citing Beo v. CA, 200 SCRA 575.
141
Intestate of Fausto Bayot v. Director of Lands, G.R. No. L-8536, April 28, 1956.
142
II Caguioa, Civil Code, 1966 ed., 62, citing Rosado v. Director of Lands, 58 Phil. 83.
143
Id.
144
Id., citing Government v. Abad, 47 Phil. 573.
145
Waldroop v. Castaxda, G.R. No. G.R. No. L-6852, 25 Phil. 30, August 9, 1913.
146
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 141
OWNERSHIP
Ownership in General
therein laid down, as enclosing the land and indicating its limits.147
However, it is only when the boundaries given are sufficiently certain and
the identity of the land clearly proved by the boundaries thus indicated
that an erroneous statement concerning the area can be disregarded or
ignored.148 Otherwise, the area stated should be followed.149 This is the
exception to the rule.150
147
Heirs of Anastacio Fabela v. Court of Appeals, 362 SCRA 531 (2001), citing Vda. de Tan
v. IAC, 213 SCRA 95, citing Dichoso v. CA, 192 SCRA 169; Erico v. Chigas, 98 SCRA 575.
148
Intestate of Fausto Bayot v. Director of Lands, supra.
149
Id., citing Sanchez v. Director of Lands, 63 Phil., 378, 386.
150
Id., see also Pamintuan v. Insular Government (1907), 8 Phil., 512; Paras v. Insular Gov-
ernment (1908), 11 Phil. 378; and Waldroop v. Castaxda, 25 Phil. 30.
151
Tubo-Rodriguez v. Rodriguez, G.R. No. 175720, Sept. 11, 2007.
152
Cureg v. IAC, G.R. No. 73465 Sept. 7, 1989; citing Ferrer-Lopez v. Court of Appeals,
G.R. No. 50420, May 29, 1987, 150 SCRA 393,401-402
153
Ledesma v. Mun. of Iloilo, 49 Phil. 773 (1926), citing Legarda and Prieto v. Saleeby, 31
Phil. 590.
154
Veterans Federation of the Philippines v. Court of Appeals, 345 SCRA 348 (2000), citing
Consul v. Buhay, 64 O.G. 29, July 15, 1968, CA.
142 PROPERTY
Art. 437. The owner of a parcel of land is the owner of its surface and
of everything under it, and he can construct thereon any works or make
any plantations and excavations which he may deem proper, without det-
riment to servitudes and subject to special laws and ordinances. He can-
not complain of the reasonable requirements of aerial navigation. (350a)
Art. 438. Hidden treasure belongs to the owner of the land, building,
or other property on which it is found.
Nevertheless, when the discovery is made on the property of an-
other, or of the State or any of its subdivisions, and by chance, one-half
thereof shall be allowed to the finder. If the finder is a trespasser, he shall
not be entitled to any share of the treasure.
If the things found be of interest to science or the arts, the State may
acquire them at their just price, which shall be divided in conformity with
the rule stated. (351a)
Art. 439. By treasure is understood, for legal purposes, any hidden
and unknown deposit of money, jewelry, or other precious objects, the
lawful ownership of which does not appear. (352)
155
Director of Lands v. IAC, 195 SCRA 38.
156
Heirs of Vencilao v. CA, 288 SCRA 574, 581-582; Deiparine v. CA, 299 SCRA 668, 675;
Tiong v. CA, 287 SCRA 102, 115.
157
Cequeña v. Bolante, G.R. No. 137944, April 6, 2000.
158
Heirs of Anastacio Fabela v. Court of Appeals, 362 SCRA 531 (2001).
159
Id.
160
Republic of the Philippines v. Court of Appeals, 160 SCRA 228 (1988), citing Art. 437,
NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 143
OWNERSHIP
Ownership in General
in the ad coelum rule of the Roman Law — Cujus est solum, ejus est
usque ad coelum ad infernos (to whomsoever the soil belongs, he owns
also to the sky and to the depths). However, the literal construction of
the ad coelum doctrine has already been rejected by the courts.161 This
formula “from the center of the earth to the sky” was invented at some
remote time in the past when the use of space above land actual or
conceivable was confined to narrow limits, and simply meant that the
owner of the land could use the overlying space to such an extent as
he was able, and that no one could ever interfere with that use.162 This
formula was never taken literally, but was a figurative phrase to express
the full and complete ownership of land and the right to whatever
superjacent airspace was necessary or convenient to the enjoyment of
the land.163 Our Civil Code, even as it adopted the ad coelum rule in
Article 437, has subjected the same to certain limitations: (1) that it
cannot work detriment to servitudes; (2) that it is subject to special laws
and ordinances; and (3) that it is subject to reasonable requirements of
aerial navigation.
As a consequence of the foregoing principle, the owner of the
land can make any construction thereon or make any plantation or
excavation which he may deem proper provided it does not impair
servitudes and, of course, subject to special laws and ordinances and
reasonable requirements of aerial navigation.164
161
See US v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L.Ed. 1206 (1946); Hinman v. Pacific
Air Transport, US Court of Appeals, 9th Circuit, 84 F.2d 755 (1936).
162
Hinman v. Pacific Air Transport, supra.
163
Id.
164
Art. 437, NCC.
165
Id.
144 PROPERTY
that the same was agricultural land and that he acquired ownership over
it by virtue of acquisitive prescription, the same being in possession
of his predecessors-in-interest for a period long enough to meet the
requirements of the law. Such application was opposed by Benguet
Consolidated, Inc., Atok Big Wedge Corporation and the Republic of
the Philippines, through the Bureau of Forestry Development. Benguet
and Atok each claimed that they acquired minerals claims over certain
portions of the land. The Republic, on the other hand, claimed that the
land was covered by the Central Cordillera Forest Reserve and, thus,
part of public dominion.
With respect to the claim of the Republic of the Philippines, the
Supreme Court held that while the subject property was considered
forest land and included in the Central Cordillera Forest Reserve, the
same did not impair the rights already vested in Benguet and Atok
at that time. The Court reasoned that under the law then in force, the
perfection of the mining claim converted the property to mineral land
and removed it from the public domain. By such act, the locators of the
mining claims from whom Benguet and Atok acquired their respective
claims, already acquired exclusive rights over the land, against even
the government, without need of any further act such as the purchase of
the land or the obtention of a patent over it. As the land had become the
private property of the locators, they had the right to transfer the same,
as they did, to Benguet and Atok.
With respect to the claim of ownership by Dela Rosa, the Court
held that even if it be assumed that his predecessors-in-interest had
really been in possession of the subject property, their possession was
not in the concept of owner of the mining claim but of the property as
agricultural land, which it was not. The property was mineral land, and
they were claiming it as agricultural land. The Court noted that said
predecessors-in-interest did not dispute the rights of the mining locators
nor did they seek to oust them as such and to replace them in the mining
land. In fact, one of the predecessors-in-interest testified that she was
aware of the diggings being undertaken “down below” but she did not
mind and did not protest the same although she claimed to be the owner
of the said land.
When the case was decided by the Court of Appeals, the appellate
court held that there was no conflict of interest between the owners
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 145
OWNERSHIP
Ownership in General
166
At pp. 237-238.
167
526 SCRA 149 (2007).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 147
OWNERSHIP
Ownership in General
is liable to pay not merely an easement fee but rather the full
compensation for land. This is so because in this case, the
nature of the easement practically deprives the owners of
its normal beneficial use. Respondents, as the owners of the
property thus expropriated, are entitled to a just compensation
which should be neither more nor less, whenever it is possible
to make the assessment, than the money equivalent of said
property.168
168
At pp. 163-164.
169
Art. 438, 1st par., NCC.
170
Id.
171
Art. 438, 2nd par., NCC.
172
Id.
173
Art. 439, NCC.
174
Vitug, Civil Law, Vol. 1, 2003 ed., p. 15.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 149
OWNERSHIP
Ownership in General
be found in the bowels of the earth even if the land where the discovery
is made be private.175 As such, the right of the owner of the land with
respect to the sub-surface or subsoil is subject to the application of the
Regalian doctrine.
EDWARDS v. SIMS
Court of Appeals of Kentucky, 1929.
232 Ky. 791, 24 S.W.2d 619.
STANLEY, C. This case presents a novel question.
In the recent case of Edwards v. Lee, 230 Ky. 375, 19 S.W.2d 992, an
appeal was dismissed which sought a review and reversal of an order of the
Edmonson circuit court directing surveyors to enter upon and under the lands
of Edwards and others and survey the Great Onyx Cave for the purpose of
securing evidence on an issue as to whether or not a part of the cave being
exploited and shown by the appellants runs under the ground of Lee. The
nature of the litigation is stated in the opinion and the order set forth in full. It
was held that the order was interlocutory and consequently one from which no
appeal would lie.
Following that decision, this original proceeding was filed in this court
by the appellants in that case (who were defendants below) against Hon. N.P.
Sims, judge of the Edmonson circuit court, seeking a writ of prohibition to
prevent him enforcing the order and punishing the petitioners for contempt
for any disobedience of it. It is alleged by the petitioners that the lower court
was without jurisdiction or authority to make the order, and that their cave
property and their right of possession and privacy will be wrongfully and
illegally invaded, and that they will be greatly and irreparably injured and
damaged without having an adequate remedy, since the damage will have been
suffered before there can be an adjudication of their rights on a final appeal.
It will thus be seen that there are submitted the two grounds upon which this
court will prohibit inferior courts from proceeding, under the provisions of
Section 110 of the Constitution, namely: (1) Where it is a matter in which it
has no jurisdiction and there is no remedy through appeal, and (2) where the
court possesses jurisdiction but is exercising or about to exercise its power
erroneously, and which would result in great injustice and irreparable injury to
the applicant, and there is no adequate remedy by appeal or otherwise. Duffin
v. Field, Judge, 208 Ky. 543, 271 S.W. 596; Potter v. Gardner, 222 Ky. 487, 1
S.W.2d 537; Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395.
175
Republic v. CA, 160 SCRA 228.
150 PROPERTY
There is some limitation upon this inherent power, such as that the person
applying for such an inspection must show a bona fide claim and allege facts
showing a necessity for the inspection and examination of the adverse party’s
property; and, of course, the party whose property is to be inspected must have
had an opportunity to be hear in relation thereto. In the instant case it appears
that these conditions were met. * * *
We can see no difference in principle between the invasion of a mine on
adjoining property to ascertain whether or not the minerals are being extracted
from under the applicant’s property and an inspection of this respondent’s
property through his cave to ascertain whether or not he is trespassing under
this applicant’s property.
It appears that before making this order the court had before him surveys
of the surface of both properties and the conflicting opinions of witnesses
as to whether or not the Great Onyx Cave extended under the surface of the
plaintiff’s land. This opinion evidence was of comparatively little value, and as
the chancellor (now respondent) suggested, the controversy can be quickly and
accurately settled by surveying the cave; and “if defendants are correct in their
contention this survey will establish it beyond all doubt and their title to this
cave will be forever quieted. If the survey shows the Great Onyx Cave extends
under the lands of plaintiffs, defendants should be glad to know this fact and
should be just as glad to cease trespassing upon plaintiff’s lands, if they are in
fact doing so.” The peculiar nature of these conditions, it seems to us, makes it
imperative and necessary in the administration of justice that the survey should
have been ordered and should be made.
It appearing that the circuit court is not exceeding its jurisdiction or
proceeding erroneously, the claim of irreparable injury need not be given
consideration. It is only when the inferior court is acting erroneously, and great
or irreparable damage will result, and there is no adequate remedy by appeal,
that a writ of prohibition will issue restraining the other tribunal, as held by
authorities cited above.
The writ of prohibition is therefore denied.
Whole court sitting.
176
See Sec. 2, Art. XII, 1987 Phil. Constitution.
152 PROPERTY
Sec. 1. Title. — This Act shall be known as the “National Caves and
Cave Resources Management and Protection Act.”
Sec. 2. Declaration of Policy. — It is hereby declared the policy of
the State to conserve, protect and manage caves and cave resources as part
of the country’s natural wealth. Towards this end, the State shall strengthen
cooperation and exchange of information between governmental authorities
and people who utilize caves and cave resources for scientific, educational,
recreational, tourism and other purposes.
Sec. 3. Definition of Terms. — For purposes of this Act, the following
terms shall be defined as follows:
(a) “Cave” means any naturally occurring void, cavity, recess or
system of interconnected passages beneath the surface of the earth or within a
cliff or ledge and which is large enough to permit an individual to enter, whether
or not the entrance, located either in private or public land, is naturally formed
or man made. It shall include any natural pit, sinkhole or other feature which
is an extension of the entrance. The term also includes cave resources therein,
but not any vug, mine tunnel, aqueduct or other manmade excavation.
(b) “Cave resources” includes any material or substance occurring
naturally in caves, such as animal life, plant life, including paleontological
177
See Sec. 3(a), R.A. No. 9072, otherwise known as the “National Caves and Caves Re-
sources Management and Protection Act.”
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 153
OWNERSHIP
Ownership in General
or fails to comply with any other condition upon which the permit was issued:
Provided, furthermore, That the Secretary cannot issue permits for the removal
of stalactites and stalagmites, and when it is established that the removal of the
resources will adversely affect the value of a significant cave: Provided, finally,
That caves located within a protected area shall be subjected to the provisions
of Republic Act No. 7586 or the National Integrated Protected Area System
Act of 1992;
(d) Call on any local government unit, bureau, agency, state university
or college and other instrumentalities of the government for assistance as the
need arises in the discharge of its functions;
(e) Enter into a memorandum of agreement with any local government
unit (LGU) for the preservation, development and management of cave or
caves located in their respective territorial jurisdiction;
(f) Tap the cooperation of people’s and non-governmental organiza-
tions as active partners in the conservations and protection of our caves and
cave resources; and
(g) Exercise other powers and perform other functions as may be
necessary to implement the provisions of this Act.
Sec. 6. Information Concerning the Nature and Location of Significant
Caves. — Information concerning the nature and specific location of a
potentially significant cave shall not be made available to the public within
one (1) year after its discovery by the DENR, during which time the DENR
in coordination with the DOT, the National Museum, the National Historical
Institute, concerned LGUs the scientific community and the academe shall
assess its archaeological, cultural, ecological, historical and scientific value,
unless a written request is made and the Secretary determines that disclosure
of such information will further the purpose of this Act and will not create a
substantial risk of harm, theft or destruction on such cave.
The written request shall contain, among others, the following:
(a) a description of the geographic site for which the information is
sought;
(b) an explanation of the purpose for which the information is
sought;
(c) an assurance or undertaking satisfactory to the Secretary that
adequate measures are to be taken to protect the confidentiality of such
information and to ensure the protection of the cave from destruction by
vandalism and unauthorized use.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 155
OWNERSHIP
Ownership in General
178
Art. 438, 1st par., NCC.
179
Art. 438, 2nd par., NCC.
180
Id.
181
Art. 438, 3rd par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 157
OWNERSHIP
Ownership in General
182
Sec. 2, DENR AO No. 2002-04, as amended.
183
Sec. 7, DENR AO No. 2002-04, as amended.
184
Sec. 12, DENR AO No. 2002-04, as amended.
185
Id.
186
Id.
158 PROPERTY
187
Hinman v. Pacific Air Transport, supra.
188
US v. Causby, 328 U.S. 256 (1946).
189
Id.
190
Hinman v. Pacific Air Transport, supra.
191
US v. Causby, supra.
192
Hinman v. Pacific Air Transport, supra.
193
Id.
194
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 159
OWNERSHIP
Ownership in General
This formula was never taken literally, but was a figurative phrase to
express the full and complete ownership of land and the right to whatever
superjacent airspace was necessary or convenient to the enjoyment of the
land.
In applying a rule of law, or construing a statute or constitutional provision,
we cannot shut our eyes to common knowledge, the progress of civilization,
or the experience of mankind. A literal construction of this formula will bring
about an absurdity. The sky has no definite location. It is that which presents
itself to the eye when looking upward; as we approach it, it recedes. There can
be no ownership of infinity, nor can equity prevent a supposed violation of an
abstract conception.
The appellants’ case, then, rests upon the assumption that as owners
of the soil they have an absolute and present title to all the space above the
earth’s surface, owned by them, to such a height as is, or may become, useful
to the enjoyment of their land. This height, the appellants assert in the bill, is
of indefinite distance, but not less than 150 feet. * * * This, then, is appellants’
premise, and upon this proposition they rest their case. Such an inquiry was
never pursued in the history of jurisprudence until the occasion is furnished by
the common use of vehicles of the air.
We believe, and hold, that appellants’ premise is unsound. The question
presented is applied to a new status and little aid can be found in actual precedent.
The solution is found in the application of elementary legal principles. The first
and foremost of these principles is that the very essence and origin of the legal
right of property is dominion over it. Property must have been reclaimed from
the general mass of the earth, and it must be capable by its nature of exclusive
possession. Without possession, no right in it can be maintained.
The air, like the sea, is by its nature incapable of private ownership,
except insofar as one may actually use it. This principle was announced long
ago by Justinian. It is in fact the basis upon which practically all of our so-
called water codes are based.
We own so much of the space above the ground as we can occupy or
make use of, in connection with the enjoyment of our land. This right is not
fixed. It varies with our varying needs and is co-extensive with them. The
owner of land owns as much of the space above him as he uses, but only so
long as he uses it. All that lies beyond belongs to the world.
When it is said that man owns, or may own, to the heavens, that merely
means that no one can acquire a right to the space above him that will limit him
in whatever use he can make of it as a part of his enjoyment of the land. To this
extent his title to the air is paramount. No other person can acquire any title or
exclusive right to any space above him.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 161
OWNERSHIP
Ownership in General
Any use of such air or space by others which is injurious to his land, or
which constitutes an actual interference with his possession or his beneficial
use thereof, would be a trespass for which he would have remedy. But any
claim of the landowner beyond this cannot find a precedent in law, nor support
in reason.
It would be, and is, utterly impracticable and would lead to endless
confusion, if the law should uphold attempts of landowners to stake out, or
assert claims to definite, unused spaces in the air in order to protect some
contemplated future use of it. Such a rule, if adopted, would constitute a
departure never before attempted by mankind, and utterly at variance with the
reason of the law. If such a rule were conceivable, how will courts protect
the various landowners in their varying claims of portions of the sky? How
enforce a right of ejectment or restitution? Such a rule is not necessary for the
protection of the landowner in any right guaranteed him by the Constitution in
the enjoyment of his property. If a right like this were recognized and upheld
by the courts, it would cause confusion worse confounded. It is opposed to
common sense and to all human experience.
We cannot shut our eyes to the practical result of legal recognition of
the asserted claims of appellants herein, for it leads to a legal implication to
the effect that any use of airspace above the surface owner of land, without
his consent would be a trespass either by the operator of an airplane or a radio
operator. We will not foist any such chimerical concept of property rights upon
the jurisprudence of this country.
We now consider the allegation of the bill that appellees’ airplanes, in
landing, glide through the air, within a distance of less than 100 feet to the
surface of appellants’ land, or possibly to a distance within five feet thereof,
at one end of his tract. This presents another question for discussion. Whether
such close proximity to appellants’ land may constitute an impairment of his
full enjoyment of the same is a question of fact. If it does, he may be entitled
to relief in a proper case.
Appellants are not entitled to injunctive relief upon the bill filed here,
because no facts are alleged with respect to circumstances of appellants’ use of
the premises which will enable this court to infer that any actual or substantial
damage will accrue from the acts of the appellees complained of.
The case differs from the usual case of enjoining a trespass. Ordinarily,
if a trespass is committed upon land, the plaintiff is entitled to at least nominal
damages without proving or alleging any actual damage. In the instant case,
traversing the airspace above appellants’ land is not, of itself, a trespass at all,
but it is a lawful act unless it is done under circumstances which will cause
injury to appellants’ possession.
162 PROPERTY
barely to miss the tops of the trees and at times so close to the tops of the trees
as to blow the old leaves off. The noise is startling. And at night the glare from
the planes brightly lights up the place. As a result of the noise, respondents
had to give up their chicken business. As many as six to ten of their chickens
were killed in one day by flying into the walls from fright. The total chickens
lost in that manner was about 150. Production also fell off. The result was
the destruction of the use of the property as a commercial chicken farm.
Respondents are frequently deprived of their sleep and the family has become
nervous and frightened. Although there have been no airplane accidents on
respondents’ property, there have been several accidents near the airport and
close to respondents’ place. These are the essential facts found by the Court
of Claims. On the basis of these facts, it found that respondents’ property had
depreciated in value. It held that the United States had taken an easement over
the property on June 1, 1942, and that the value of the property destroyed and
the easement taken was $2,000.
The United States relies on the Air Commerce Act of 1926, 44 Stat.
568, 49 U.S.C. 171 et seq., 49 U.S.C.A. 171 et seq., as amended by the Civil
Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. 401 et seq., 49 U. S.C.A.
401 et seq. * * * It is, therefore, argued that since these flights were within
the minimum safe altitudes of flight which had been prescribed, they were an
exercise of the declared right of travel through the airspace. The United States
concludes that when flights are made within the navigable airspace without any
physical invasion of the property of the landowners, there has been no taking
of property. It says that at most there was merely incidental damage occurring
as a consequence of authorized air navigation. It also argues that the landowner
does not own super-adjacent airspace which he has not subjected to possession
by the erection of structures or other occupancy. Moreover, it is argued that
even if the United States took airspace owned by respondents, no compensable
damage was shown. Any damages are said to be merely consequential for
which no compensation may be obtained under the Fifth Amendment.
It is ancient doctrine that at common law ownership of the land extended
to the periphery of the universe — Cujus est solum ejus est usque ad coelum.
But that doctrine has no place in the modern world. The air is a public highway,
as Congress has declared. Were that not true, every transcontinental flight
would subject the operator to countless trespass suits. Common sense revolts
at the idea. To recognize such private claims to the airspace would clog these
highways, seriously interfere with their control and development in the public
interest, and transfer into private ownership that to which only the public has
a just claim.
But that general principle does not control the present case. For the
United States conceded on oral argument that if the flights over respondents’
164 PROPERTY
Reg. Cum. Supp., supra. Hence, the flights in question were not within the
navigable airspace which Congress placed within the public domain. If any
airspace needed for landing or taking off were included, flights which were so
close to the land as to render it uninhabitable would be immune. But the United
States concedes, as we have said, that in that event there would be a taking.
Thus, it is apparent that the path of glide is not the minimum safe altitude of
flight within the meaning of the statute. The Civil Aeronautics Authority has,
of course, the power to prescribe air traffic rules. But Congress has defined
navigable airspace only in terms of one of them — the minimum safe altitudes
of flight.
We have said that the airspace is a public highway. Yet it is obvious that
if the landowner is to have full enjoyment of the land, he must have exclusive
control of the immediate reaches of the enveloping atmosphere. Otherwise
buildings could not be erected, trees could not be planted, and even fences
could not be run. The principle is recognized when the law gives a remedy
in case overhanging structures are erected on adjoining land. The landowner
owns at least as much of the space above the ground as the can occupy or use in
connection with the land. See Hinman v. Pacific Air Transport, 9 Cir., 84 F.2d
755. The fact that he does not occupy it in a physical sense – by the erection of
buildings and the like — is not material. As we have said, the flight of airplanes,
which skim the surface but do not touch it, is as much an appropriation of the
use of the land as a more conventional entry upon it. We would not doubt that
if the United States erected an elevated railway over respondents’ land at the
precise altitude where its planes now fly, there would be a partial taking, even
though none of the supports of the structure rested on the land. The reason is
that there would be an intrusion so immediate and direct as to subtract from the
owner’s full enjoyment of the property and to limit his exploitation of it. While
the owner does not in any physical manner occupy that stratum of airspace or
make use of it in the conventional sense, he does use it in somewhat the same
sense that space left between buildings for the purpose of light and air is used.
The super-adjacent airspace at this low altitude is so close to the land that
continuous invasions of it affect the use of the surface of the land itself. We
think that the landowner, as an incident to his ownership, has a claim to it and
that invasions of it are in the same category as invasions of the surface. * * *
The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable under the Fifth
Amendment. The airspace, apart from the immediate reaches above the land,
is part of the public domain. We need not determine at this time what those
precise limits are. Flights over private land are not a taking, unless they are
so low and so frequent as to be a direct and immediate interference with the
enjoyment and use of the land. We need not speculate on that phase of the
present case. For the findings of the Court of Claims plainly establish that
166 PROPERTY
there was a diminution in value of the property and that the frequent, low-level
flights were the direct and immediate cause. We agree with the Court of Claims
that a servitude has been imposed upon the land. * * *
The Court of Claims held, as we have noted, that an easement was taken.
But the findings of fact contain no precise description as to its nature. It is
not described in terms of frequency of flight, permissible altitude, or type of
airplane. Nor is there a finding as to whether the easement taken was temporary
or permanent. Yet an accurate description of the property taken is essential,
since that interest vests in the United States. United States v. Cress, supra., 243
U.S. 328, 329, 37 S.Ct. 385, 386, and cases cited. * * *
Since on this record it is not clear whether the easement taken is a
permanent or a temporary one, it would be premature for us to consider whether
the amount of the award made by the Court of Claims was proper.
The judgment is reversed and the cause is remanded to the Court of
Claims so that it may make the necessary findings in conformity with this
opinion.
Reversed.
Mr. Justice JACKSON took no part in the consideration or decision of
this case.
Mr. Justice BLACK, dissenting.
The Fifth Amendment provides that ‘private property’ shall not ‘be
taken for public use, without just compensation.’ The Court holds today that
the Government has ‘taken’ respondents’ property by repeatedly flying Army
bombers directly above respondents’ land at a height of eighty-three feet where
the light and noise from these planes caused respondents to lose sleep and their
chickens to be killed. Since the effect of the Court’s decision is to limit, by
the imposition of relatively absolute Constitutional barriers, possible future
adjustments through legislation and regulation which might become necessary
with the growth of air transportation, and since in my view the Constitution
does not contain such barriers, I dissent.
* * * It is inconceivable to me that the Constitution guarantees that the
airspace of this Nation needed for air navigation, is owned by the particular
persons who happen to own the land beneath to the same degree as they own
the surface below. 3 No rigid Constitutional rule, in my judgment, commands
that the air must be considered as marked off into separate compartments by
imaginary metes and bounds in order to synchronize air ownership with land
ownership. * * * Old concepts of private ownership of land should not be
introduced into the field of air regulation. I have no doubt that Congress will,
if not handicapped by judicial interpretations of the Constitution, preserve the
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 167
OWNERSHIP
Ownership in General
freedom of the air, and at the same time, satisfy the just claims of aggrieved
persons. The noise of newer, larger, and more powerful planes may grow
louder and louder and disturb people more and more. But the solution of the
problems precipitated by these technological advances and new ways of living
cannot come about through the application of rigid Constitutional restraints
formulated and enforced by the courts. What adjustments may have to be
made, only the future can reveal. It seems certain, however, the courts do not
possess the techniques or the personnel to consider and act upon the complex
combinations of factors entering into the problems. The contribution of courts
must be made through the awarding of damages for injuries suffered from the
flying of planes, or by the granting of injunctions to prohibit their flying. When
these two simple remedial devices are elevated to a Constitutional level under
the Fifth Amendment, as the Court today seems to have done, they can stand
as obstacles to better adapted techniques that might be offered by experienced
experts and accepted by Congress. Today’s opinion is, I fear, an opening
wedge for an unwarranted judicial interference with the power of Congress to
develop solutions for new and vital and national problems. In my opinion this
case should be reversed on the ground that there has been no ‘taking’ in the
Constitutional sense.
Mr. Justice BURTON joins in this dissent.
195
Ayala Corporation v. Ray Burton Dev. Corp., G.R. No. 126699, Aug. 7, 1998; see also
Ayala Corporation v. Rosa Diana Realty and Development Corp., G.R. No. 134284, Dec. 1,
2000.
168 PROPERTY
and therefore, may require the property owners to apply for a Height
Clearance Permit if the proposed site of the building/structure is covered
by any restrictions.
(3) For properties far from the airport, they are subject to the
provisions of the National Building Code196 and local ordinances.
Chapter 2
RIGHT OF ACCESSION
GENERAL PROVISIONS
§ 40. Accession
[40.1] Definition and Concept
The ownership of property gives the right by accession to
everything which is produced thereby, or which is incorporated or
attached thereto, either naturally or artificially.197 Accession, therefore,
is the right of an owner of a thing to the products of said thing as well as
to whatever is inseparably attached thereto as an accessory.198
From the provisions of Article 440, it is clear that “accession”
presupposes a previously existing ownership by the owner over the
principal, such that it is considered merely as an incident or an attribute
of ownership. It is not, therefore, a mode of acquiring ownership but
a right included in ownership. At any rate, Article 712 of the New
Civil Code which enumerates the seven modes of acquiring ownership
(occupation, intellectual creation, law, donation, succession, tradition
and prescription) does not consider “accession” as one of such modes.
In addition, the concept of accession is discussed by the Code only in
relation to the right of ownership.
196
R.A. No. 6541.
197
Art. 440, NCC.
198
Sanchez Roman, Vol. II, p. 89.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 169
OWNERSHIP
Right of Accession General Provisions
(a) in usufruct
It is the essence of usufruct that the usufructuary199 is entitled not
only to the enjoyment of the property subject matter thereof but also to
its fruits. Thus, Article 566 of the New Civil Code provides:
199
He is the person in whose favor the usufruct was constituted.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 171
OWNERSHIP
Right of Accession General Provisions
(c) in antichresis
By the contract of antichresis the creditor acquires the right to
receive the fruits of an immovable of his debtor, with the obligation to
apply them to the payment of the interest, if owing, and thereafter to the
principal of his credit.201
200
Arts. 1654, 1676, par. 2, NCC.
201
Art. 2123, Civil Code.
202
Pamintuan v. Garcia, 39 Phil. 746.
203
Art. 442, par. 1, NCC.
172 PROPERTY
grass; and (b) the young and other products of animals, such as milk,
hair, wool, horn, hide, eggs, and animals dung or manure.
With respect to the natural fruit of the first kind, it is required that
the same must be spontaneous product of the soil. In other words, it is
necessary that there must be no human labor which has intervened in its
generation. If human labor intervenes in the production of the fruit, the
same is classified as an industrial fruit.
Trees which grew spontaneously on the soil and adhering thereto
are not considered as natural fruits in contemplation of the first
paragraph of Article 442 because they are themselves immovables.
Trees may, however, be exceptionally considered as fruits if they are
being exploited for an industry.204 In such a case, they are classified as
industrial fruits because human labor intervenes.
With regard to the natural fruit of the second kind, there may be a
situation where the young or offspring is a product of animals belonging
to different owners. Note that our Civil Code is silent with respect to
the ownership of the young if the male and female parents belonged
to different owners. There is no problem if the mating of the parent-
animals is agreed upon by their respective owners and they provided for
the ownership of the offspring. In the absence of any agreement to settle
the ownership of the offspring, the rule is that “the young belongs to the
owner of the female parent.” This is the rule enunciated by the Supreme
Court in the early case of US v. Caballero205 in consonance with the
express provisions of the Partidas based on the maxim partus sequitur
ventrem — the offspring follows the condition of the mother.206
204
3 Manresa, 6th ed., p. 191.
205
25 Phil. 356 (1913).
206
Bouvier’s Law Dict., 1934 ed., p. 784.
207
Art. 442, par. 2, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 173
OWNERSHIP
Right of Accession General Provisions
208
3 Manresa, 6th ed., 191-192.
209
Art. 442, par. 3, NCC.
210
Bachrach v. Seifert, 87 Phil. 483; Orozco v. Araneta, 90 Phil. 399.
211
Bachrach Motor Co. v. Talisay-Silay Milling Co., 56 Phil. 117.
212
Art. 444, par. 1, NCC.
213
3 Manresa, 6th ed., 199, cited in II Caguioa, Civil Code, 1966 ed., 78.
174 PROPERTY
214
Ibid.
215
Ibid.
216
3 Manresa, 6th ed., 196.
217
Art. 544, par. 1, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 175
OWNERSHIP
Right of Accession General Provisions
218
Art. 549, NCC.
219
Art. 452, NCC.
220
3 Manresa, 6th ed., 196-197, cited in II Caguioa, Civil Code, 1966 ed., 76.
176 PROPERTY
and because if the owner himself had made the expenses he would have
spent the same amount.221
221
II Caguioa, Civil Code, 1966 ed., 76.
222
Art. 440, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 177
OWNERSHIP
Right of Accession General Provisions
A. INDUSTRIAL ACCESSION
(1) Building
The term building is a generic term for all architectural work
with roof, built for the purpose of being used as man’s dwelling, or
for offices, clubs, theaters, etc.223 The term, however, does not refer
to partitions, railings, counters, shelves and other fixtures made in
a building belonging to the owner of the land.224 This is because the
Spanish text of the provision uses the word “edificar” which means
to undertake the construction of an edifice such as a house, stable or
similar structure.225 While one may build a partition, door, window or
223
II Tolentino, Civil Code, 107, cited in Songcuya v. Mr. & Mrs. Lim, CA-G.R. No. 57357,
Aug. 31, 2006.
224
II Caguioa, Civil Code, 1966 ed., 83.
225
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 179
OWNERSHIP
Right of Accession General Provisions
226
Id., citing Lao Chit v. Security Bank & Trust Co., L-11028, April 17, 1959.
227
Gaboya v. Cui, 38 SCRA 85, 92 (1971).
228
Id.
229
Id.
230
Id.
231
Id.
180 PROPERTY
at his expense.232 Hence, the burden of proving that the works, sowing
and planting are not made by the landowner at his expense is incumbent
upon those who are alleging such fact. Hence, as a rule, “whatever is
built, planted or sown on the land of another and the improvements or
repairs made thereon, belonged to the owner of the land.”233 This rule,
however, is subject to the provisions of Articles 448 up to 456 upon
presentation of proof that the works, sowing or planting is not made by
the owner of the land nor made at his expense.
Art. 447. The owner of the land who makes thereon, personally or
through another, plantings, constructions or works with the materials of
another, shall pay their value; and, if he acted in bad faith, he shall also
be obliged to the reparation of damages. The owner of the materials shall
have the right to remove them only in case he can do so without injury to
the work constructed, or without the plantings, constructions or works
being destroyed. However, if the landowner acted in bad faith, the owner
of the materials may remove them in any event, with a right to be indemni-
fied for damages. (360a)
232
Art. 446, NCC.
233
Art. 445, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 181
OWNERSHIP
Right of Accession General Provisions
owner of the materials acted in good faith, the legal effects of such
a situation are determined by the provisions of Article 447. Applying
the provisions of Article 447 and the principles governing accesion
continua, the following are the legal effects of a situation where both
parties acted in good faith:
[i] Since the one responsible for the attachment or incorporation
(the landowner) acted in good faith, he is exonerated from punitive
liability and damages.
[ii] Being the owner of the principal (the land) and following the
principle of accesio cedit principali, the land owner is given the right to
appropriate what has been built, planted or sown but with the obligation
to indemnify the owner for the value of the materials234 following the
principle that no person should unjustly enrich himself at the expense
of another.
Instead of appropriating the materials, can the landowner choose
to return the same to its owner? Article 447 grants the right to demand
for the removal and return of the materials only to the owner of the
materials if such removal can be done without injury to the work
constructed or without the plantings, constructions or works being
destroyed. Notwithstanding the fact that the same right is not expressly
granted to the landowner, it is believed, however, that the landowner
may likewise choose to return the materials to its owner if removal is
possible without causing injury to the work constructed or without the
plantings, constructions or works being destroyed. In such a situation,
there is really no accesion continua. As discussed in supra § 43.2, there
is accesion continua only if the union or attachment or the incorporation
of two or more things belonging to different owners to each other or
to one another is in such a way that they cannot be separated from
each other or from one another without causing substantial physical
or juridical injury to any one, to some, or to all of the things involved.
There being no accession, the provision of Article 447 limiting the
option of the landowner to the payment of the value of the materials
does not apply. On the contrary, there being no accession, the owners
of the things attached or joined retain ownership over their respective
properties.
234
Art. 447, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 183
OWNERSHIP
Right of Accession General Provisions
235
Art. 447, NCC.
184 PROPERTY
236
Art. 447, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 185
OWNERSHIP
Right of Accession General Provisions
Art. 448. The owner of the land on which anything has been built,
sown or planted in good faith, shall have the right to appropriate as his
own the works, sowing or planting, after payment of the indemnity pro-
vided for in Articles 546 and 548, or to oblige the one who built or planted
to pay the price of the land, and the one who sowed, the proper rent.
However, the builder or planter cannot be obliged to buy the land if its
value is considerably more than that of the building or trees. In such case,
he shall pay reasonable rent, if the owner of the land does not choose to
appropriate the building or trees after proper indemnity. The parties shall
agree upon the terms of the lease and in case of disagreement, the court
shall fix the terms thereof. (361a)
Art. 449. He who builds, plants or sows in bad faith on the land of
another, loses what is built, planted or sown without right to indemnity.
(362)
Art. 450. The owner of the land on which anything has been built,
planted or sown in bad faith may demand the demolition of the work,
or that the planting or sowing be removed, in order to replace things in
their former condition at the expense of the person who built, planted or
sowed; or he may compel the builder or planter to pay the price of the
land, and the sower the proper rent. (363a)
Art. 451. In the cases of the two preceding articles, the landowner is
entitled to damages from the builder, planter or sower. (n)
Art. 452. The builder, planter or sower in bad faith is entitled to reim-
bursement for the necessary expenses of preservation of the land. (n)
Art. 453. If there was bad faith, not only on the part of the person
who built, planted or sowed on the land of another, but also on the part of
the owner of such land, the rights of one and the other shall be the same
as though both had acted in good faith.
It is understood that there is bad faith on the part of the landowner
whenever the act was done with his knowledge and without opposition
on his part. (364a)
Art. 454. When the landowner acted in bad faith and the builder,
planter or sower proceeded in good faith, the provisions of Article 447
shall apply. (n)
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 187
OWNERSHIP
Right of Accession General Provisions
237
Floreza v. Evangelista, 96 SCRA 130, 136 (1980); citing Alburo v. Villanueva, 7 Phil.
277 (1907); Quemuel v. Olaes, 1 SCRA 1159 (1961); Racaza v. Susana Realty, Inc., 18 SCRA
1172 (1966).
188 PROPERTY
owner and that he be unaware that there exists in his title or mode of
acquisition any flaw which invalidates it.238
However, as already previously intimated, the concept of builder
in good faith or bad faith presupposes ownership in another.239 If a
person builds on his own land with his own materials, he is not merely
a builder in good faith — he is a builder-owner.
238
Mercado v. CA, 162 SCRA 75, 85 (1988); cited in Manotok Realty, Inc. v. Tecson, 164
SCRA 587, 592 (1988).
239
Pershing Tan Queto v. CA, 148 SCRA 54 (1987).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 189
OWNERSHIP
Right of Accession General Provisions
“Good faith consists in the belief of the builder that the land
he is building on is his and his ignorance of any defect or flaw in
his title. And as good faith is presumed, petitioner has the burden
of proving bad faith on the part of Kee.
At that time he built improvements on lot 8, Kee believed
that said lot was what he bought from petitioner. He was not aware
that the lot delivered to him was not lot 8. Thus, Kee’s good faith.
Petitioner failed to prove otherwise.”
Baltazar v. Caridad
17 SCRA 460 (1966)
In this case, the trial court rendered a decision in a cadastral proceeding
awarding Lot No. 8864 to spouses Julio Baltazar and Constancia Valencia
as their conjugal partnership property. Said decision having become final,
the corresponding decree was issued on July 12, 1941, and pursuant thereto,
said lot was registered in the names of the applicant spouses under Original
Certificate of Title No. O-1445. In the meanwhile, Julio Baltazar died. In 1961,
his surviving wife and children filed a motion in the cadastral case for writ
of possession against Silvina Caridad and her daughter, Eduarda Caridad,
who had been in possession of the southern portion of Lot No. 8864 since
1939, while the cadastral case involving the lot was pending before the trial
court, and before the decision and the corresponding decree issued in 1941.
The Caridads refused to remove their houses from the southern portion of Lot
No. 8864 insisting that they are builders in good faith and, as such, they are
accorded rights under article 448 of the new Civil Code. The houses were built
in 1958 and 1959. In debunking the contention of the Caridads’, the Court
explained —
240
Bulacanag v. Francisco, 122 SCRA 498, 502 (1983).
241
98 Phil. 348.
242
Bulacanag v. Francisco, supra.
243
Alburo v. Villanueva, 7 Phil. 277, 280 (1907) (referring to the provisions of the Old Civil
Code); Racaza v. Susana Realty, Inc., supra note 17, at 1177-1178; Bulacanag v. Francisco, Ibid.;
Gabrito v. Court of Appeals, 167 SCRA 771, 778-779 (1988); Cabangis v. Court of Appeals, 200
SCRA 414, 419-421 (1991); Heirs of the late Jaime Binuya v. Court of Appeals, 211 SCRA 761,
766 (1992).
244
Geminiano v. CA, 259 SCRA 344 (1996).
192 PROPERTY
245
Ibid.
246
Imperial Insurance, Inc. v. Simon, 14 SCRA 855.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 193
OWNERSHIP
Right of Accession General Provisions
names. After the expiration of the lease in 1985, the petitioners’ mother refused
to accept the monthly rentals. It turned out that the lot in question was the
subject of a suit, which resulted in its acquisition by one Maria Lee in 1972.
In 1982, Lee sold the lot to Lily Salcedo, who in turn sold it in 1984 to the
spouses Agustin and Ester Dionisio. In 1992, the Dionisio spouses executed a
Deed of Quitclaim over the said property in favor of the petitioners. As such,
the lot was registered in the latter’s names. In 1993, the petitioners filed an
ejectment case against Mary Nicolas. The issue in this case is whether the
lessees were builders in good faith and entitled to reimbursement of the value
of the houses and improvements. The Supreme Court ruled in the negative. The
Court explained —
should have done was to reduce the alleged promise into writing,
because under Article 1403 of the Civil Code, an agreement for the
sale of real property or an interest therein is unenforceable, unless
some note or memorandum thereof be produced. Not having taken
any steps in order that the alleged promise to sell may be enforced,
the private respondents cannot bank on that promise and profess
any claim nor color of title over the lot in question.
There is no need to apply by analogy the provisions of Article
448 on indemnity as was done in Pecson v. Court of Appeals (244
SCRA 407 [1995]), because the situation sought to be avoided and
which would justify the application of that provision, is not present
in this case. Suffice it to say, “a state of forced co-ownership” would
not be created between the petitioners and the private respondents.
For, as correctly pointed out by the petitioners, the rights of the
private respondents as lessees are governed by Article 1678 of the
Civil Code which allows reimbursement to the extent of one-half
of the value of the useful improvements.
It must be stressed, however, that the right to indemnity
under Article 1678 of the Civil Code arises only if the lessor opts
to appropriate the improvements. Since the petitioners refused to
exercise that option, the private respondents cannot compel them
to reimburse the one-half value of the house and improvements.
Neither can they retain the premises until reimbursement is
made. The private respondents’ sole right then is to remove the
improvements without causing any more impairment upon the
property leased than is necessary.
the premises because it was already owned by Ong Lee. The spouses instituted
a civil case against Ong Lee for cancellation of sale and damages. Ong Lee,
on the other hand, filed a complaint for unlawful detainer. May the spouses be
considered as a builder in good faith pursuant to Article 448 of the Civil Code?
The Supreme Court said no. The Court explained —
not build, plant or sow upon land that exclusively belongs to another
but of which he is a co-owner. The co-owner is not a third person
under the circumstances, and the situation is governed by the rules of
co-ownership.247 However, when the co-ownership is terminated by a
partition and it appears that the house of an erstwhile co-owner has
encroached upon a portion pertaining to another co-owner which was
however made in good faith, then the provisions of Article 448 should
apply to determine the respective rights of the parties.248
The court a quo correctly held that Article 448 of the Civil
Code cannot apply where a co-owner builds, plants or sows on the
land owned in common for then he did not build, plant or sow upon
land that exclusively belongs to another but of which he is a co-
owner. The co-owner is not a third person under the circumstances,
and the situation is governed by the rules of co-ownership.
247
Spouses Del Campo v. Abesia, 160 SCRA 379, 382 (1988).
248
Ignao v. IAC, 193 SCRA 17, 23 (1991); Sps. Del Campo v. Abesia, supra.
198 PROPERTY
Ignao v. IAC
193 SCRA 17 (1991)
In this case, Florencio Ignao and his uncles, Juan Ignao and Isidro Ignao,
were co-owners of a parcel of land with an area of 534 square meters. Pursuant
to an action for partition, the CFI of Cavite in 1975 directed the partition of the
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 199
OWNERSHIP
Right of Accession General Provisions
aforesaid land, allotting 133.5 square meters or 2/8 thereof to Juan and Isidro,
and giving the remaining portion with a total area of 266.5 square meters
to Florencio. However, no actual partition was effected. In 1978, Florencio
instituted a complaint for recovery of possession of real property against Juan
and Isidro alleging that the area occupied by the two houses built by Juan and
Isidro exceeded the 133.5 square meters previously allotted to them by the trial
court. When the property was surveyed upon the agreement of the parties, it
was disclosed that the house of Juan occupied 42 square meters while that of
Isidro occupied 59 square meters of Florencio’s land or a total of 101 square
meters. The trial court applied article 448 of the Civil Code in resolving the
conflicting rights of the parties, which decision was affirmed by the Court of
Appeals. Florencio appealed to the Supreme Court contending that the CA
erred in applying Article 448 of the Civil Code since this article contemplates
a situation wherein the land belongs to one person and the thing built, sown or
planted belongs to another. In holding that Article 448 applies in this particular
case, the Supreme Court explained —
Whether or not the provisions of Article 448 should apply
to a builder in good faith on a property held in common has been
resolved in the affirmative in the case of Spouses del Campo v.
Abesia (160 SCRA 379 [1988]) wherein the Court ruled that:
“The court a quo correctly held that Article 448
of the Civil Code cannot apply where a co-owner
builds, plants or sows on the land owned in common
for then he did not build, plant or sow upon land that
exclusively belongs to another but of which he is a
co-owner. The co-owner is not a third person under
the circumstances, and the situation is governed by the
rules of co-ownership.
“However, when, as in this case, the ownership
is terminated by the partition and it appears that the
home of defendants overlaps or occupies a portion
of 5 square meters of the land pertaining to plaintiffs
which the defendants obviously built in good faith,
then the provisions of Article 448 of the New Civil
Code should apply. Manresa and Navarro Amandi
agree that the said provision of the Civil Code may
apply even when there is a co-ownership if good faith
has been established.’’
In other words, when the co-ownership is terminated by a
partition and it appears that the house of an erstwhile co-owner has
encroached upon a portion pertaining to another co-owner which
200 PROPERTY
was however made in good faith, then the provisions of Article 448
should apply to determine the respective rights of the parties.
Petitioner’s second assigned error is however well taken.
Both the trial court and the Appellate Court erred when they
peremptorily adopted the “workable solution” in the case of Grana
v. Court of Appeals (109 Phil. 260), and ordered the owner of the
land, petitioner Florencio, to sell to private respondents, Juan and
Isidro, the part of the land they intruded upon, thereby depriving
petitioner of his right to choose. Such ruling contravened the
explicit provisions of Article 448 to the effect that “(t)he owner
of the land xxx shall have the right to appropriate xxx or to oblige
the one who built xxx to pay the price of the land xxx.” The law
is clear and unambiguous when it confers the right of choice upon
the landowner and not upon the builder and the courts.
Thus, in Quemuel v. Olaes (1 SCRA 1159 [1961]), the
Court categorically ruled that the right to appropriate the works or
improvements or to oblige the builder to pay the price of the land
belongs to the landowner.
As to the third assignment of error, the question on the price
to be paid on the land need not be discussed as this would be
premature inasmuch as petitioner Florencio has yet to exercise his
option as the owner of the land.
WHEREFORE, the decision appealed from is hereby
MODIFIED as follows: Petitioner Florencio Ignao is directed
within thirty (30) days from entry of judgment to exercise his
option to either appropriate as his own the portions of the houses
of Juan and Isidro Ignao occupying his land upon payment of
indemnity in accordance with Articles 546 and 548 of the Civil
Code, or sell to private respondents the 101 square meters occupied
by them at such price as may be agreed upon. Should the value of
the land exceed the value of the portions of the houses that private
respondents have erected thereon, private respondents may choose
not to buy the land but they must pay reasonable rent for the use
of the portion of petitioner’s land as may be agreed upon by the
parties. In case of disagreement, the rate of rental and other terms of
the lease shall be determined by the trial court. Otherwise, private
respondents may remove or demolish at their own expense the said
portions of their houses encroaching upon petitioner’s land.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 201
OWNERSHIP
Right of Accession General Provisions
249
129 SCRA 122 (1984).
250
439 SCRA 625.
251
7 Phil. 261 (1907).
252
Pecson v. CA, 244 SCRA 407 (1995).
253
Colengco v. Regalado, 92 Phil. 387, 395 (1952).
202 PROPERTY
254
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 203
OWNERSHIP
Right of Accession General Provisions
Manila (40 Phil. 717 [1920]) that the said provision was formu-
lated in trying to adjust the rights of the owner and possessor in
good faith of a piece of land, to administer complete justice to
both of them in such a way as neither one nor the other may enrich
himself of that which does not belong to him. Guided by this pre-
cept, it is therefore the current market value of the improvements
which should be made the basis of reimbursement. A contrary
ruling would unjustly enrich the private respondents who would
otherwise be allowed to acquire a highly valued income-yielding
four unit apartment building for a measly amount. Consequently,
the parties should therefore be allowed to adduce evidence on the
present market value of the apartment building upon which the
trial court should base its finding as to the amount of reimburse-
ment to be paid by the landowner.
The trial court also erred in ordering the petitioner to pay
monthly rentals equal to the aggregate rentals paid by the lessees of
the apartment building. Since the private respondents have opted to
appropriate the apartment building, the petitioner is thus entitled to
the possession and enjoyment of the apartment building, until he is
paid the proper indemnity, as well as of the portion of the lot where
the building has been constructed. This is so because the right to
retain the improvements while the corresponding indemnity is not
paid implies the tenancy or possession in fact of the land on which
it is built, planted or sown. The petitioner not having been so paid,
he was entitled to retain ownership of the building and, necessarily,
the income therefrom.
It follows, too, that the Court of Appeals erred not only in
upholding the trial court’s determination of the indemnity, but also
in ordering the petitioner to account for the rentals of the apartment
building from 23 June 1993 to 23 September 1993.
WHEREFORE, the decision of the Court of Appeals in CA-
G.R. SP No. 32679 and the Order of 15 November 1993 of the
Regional Trial Court, Branch 101, Quezon City in Civil Case No.
Q-41470 are hereby SET ASIDE.
The case is hereby remanded to the trial court for it to deter-
mine the current market value of the apartment building on the lot.
For this purpose, the parties shall be allowed to adduce evidence
on the current market value of the apartment building. The value
so determined shall be forthwith paid by the private respondents
to the petitioner otherwise the petitioner shall be restored to the
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 205
OWNERSHIP
Right of Accession General Provisions
Sarmiento v. Agana
129 SCRA 122 (1984)
While Ernesto Valentino was still courting his wife, Rebecca, the latter’s
mother had told him the couple could build a residential house on a certain lot
of a subdivision in Parañaque. Assuming that the wife’s mother was the owner
of the land, Ernesto did construct a house on the said land in 1967 at a cost of
P8,000 to P10,000. It turned out that the land had been titled in the name of
Mr. & Mrs. Jose Santos, Jr., who in 1974, sold the same to Leonila Sarmiento.
In 1975, Sarmiento asked the spouses Valentino to vacate the land. Thereafter,
Sarmiento filed an ejectment case against the spouses. The Municipal Court
found that the spouses Valentino had built the house in good faith and that it
had a value of P20,000.00. It then ordered the spouses to vacate after Sarmiento
has paid them the mentioned sum of P20,000.00. On appeal, the CFI of Pasay
modified the decision pursuant to Article 448 of the Civil Code. Sarmiento
was required, within 60 days, to exercise the option to reimburse the spouses
Valentino the sum of P40,000.00 as the value of the residential house, or the
option to allow them to purchase the land for P25,000.00. Sarmiento did not
exercise any of the two options within the indicated period, and Ernesto was
then allowed to deposit the sum of P25,000.00 with the court as the purchase
price for the land. Subsequently, Sarmiento questioned the action of the court.
(1) Are the spouses Valentino builders in good faith?
The Supreme Court ruled in the affirmative. The Court said — “We agree
that ERNESTO and wife are builders in good faith in view of the peculiar
circumstances under which they had constructed the RESIDENTIAL HOUSE.
As far as they knew, the LAND was owned by ERNESTO’s mother-in-law
who, having stated they could build on the property, could reasonably expected
to later on give them the LAND.”
(2) Can Sarmiento refuse either to pay for the building or to sell the
land and insist on the removal of the building?
NO. “The owner of the building erected in good faith on a land owned by
another, is entitled to retain the possession of the land until he is paid the value
of his building, under Article 453 (now Article 546). The owner of the land,
upon the other hand, has the option, under Article 361 (now Article 448), either
to pay for the building or to sell his land to the owner of the building. But he
cannot, as respondents did here, refuse both to pay for the building and to sell
the land and compel the owner of the building to remove it from the land where
it is erected. He is entitled to such remotion only when, after having chosen to
sell his land, the other party fails to pay for the same.
206 PROPERTY
255
268 SCRA 5 (1997).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 207
OWNERSHIP
Right of Accession General Provisions
256
At p. 17.
257
At pp. 14-15.
208 PROPERTY
have come to know of the intrusion — in short, when both parties shall have
become aware of it. Only then will the occasion for exercising the option arise,
for it is only then that both parties will have been aware that a problem exists
in regard to their property rights.”
258
136 SCRA 475, 483 (1985).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 209
OWNERSHIP
Right of Accession General Provisions
Quemel v. Olaes
1 SCRA 1159 (1961)
The Olaes spouses (Angel and Juliana) sued the Quemuel spouses
(Alejandro and Ruperta) for recovery of possession of a parcel of land. In their
answer, the Quemel spouses admitted plaintiffs’ ownership but contended that
their occupation was gratuitous. In 1954, the trial court ordered the Quemel
spouses to return the possession of the land to the Olaes spouses and to pay
the latter P20.00 a month from January 1954, until they shall have vacated the
premises. The Quemel spouses did not appeal. To forestall the execution of
259
Ballatan v. CA, 304 SCRA 34, 46 (1999), citing Grana and Torralba v. CA, 109 Phil. 260,
263 (1960); Acuna v. Furukawa Plantation Co., 93 Phil. 957, 961 (1953); Aringo v. Arena, 14 Phil.
263, 269 (1909); also in Quemuel v. Olaes, 1 SCRA 1159 (1961).
260
Rosales v. Castelltort, 472 SCRA SCRA 144, 155 (2005).
261
Quemuel v. Olaes, supra., at p. 1163
262
Depra v. Dumlao, 136 SCRA 475, 483 (1985).
210 PROPERTY
the judgment, the Quemel spouses filed a complaint against the Olaes spouses
seeking to reduce the monthly rental and to compel the Olaes spouses to sell
to them the portion of the lot where their house is erected. The Olaes spouses
filed a motion to dismiss the complaint on the ground of lack of cause of action
and res judicata. The trial court dismissed the complaint. The Quemel spouses
appealed to the Court of Appeals. The appeal, however, was certified to the
Supreme Court. The plaintiffs (Quemel spouses) claim that their cause of
action to compel the Olaes spouses to sell to them the land is based on Article
448 in connection with Article 546 of the New Civil Code. On this issue, the
Supreme Court held —
On the assumption that the allegations of the second cause
of action are true, what would be the rights of the parties? The
plaintiffs claim that their second cause of action is based on Article
448 in connection with Article 546, of the New Civil Code. A
cursory reading of these provisions, however, will show that they
are not applicable to plaintiffs’ case. Under Article 448, the right to
appropriate the works or improvements or “to oblige the one who
built or planted to pay the price of the land” belongs to the owner
of the land. The only right given to the builder in good faith is the
right to reimbursement for the improvements; the builder, cannot
compel the owner of the land to sell such land to the former. This
is assuming that the plaintiffs are builders in good faith. But the
plaintiffs are not builders in good faith. xxx
263
Rosales v. Castelltort, 472 SCRA 144 citing PNB v. De Jesus, 411 SCRA 557, 560
(2003).
PNB v. De Jesus, supra.
264
Id., Technogas Philippines Manufacturing Corp. v. CA, 268 SCRA 5, 17 (1997), citing
265
Ignacio v. Hilario, 76 Phil. 605 (1946) and Sarmiento v. Agana, 129 SCRA 122 (1984).
212 PROPERTY
of remotion is available only if and when the owner of the land chooses
to compel the builder to buy the land at a reasonable price but the latter
fails to pay such price.266 In a situation where the landowner is refusing
to exercise any of the options granted him under Article 448, the build-
er in good faith can, under the same Article, compel the landowner to
make a choice between appropriating the building by paying the proper
indemnity or obliging the builder to pay the price of the land.267
266
Technogas Philippines Manufacturing Corp. v. CA, supra.
267
PNB v. De Jesus, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 213
OWNERSHIP
Right of Accession General Provisions
solution by giving the owner of the land the option to acquire the
improvements after payment of the proper indemnity, or to oblige
the builder or planter to pay for the land and the sower to pay the
proper rent. It is the owner of the land who is authorized to exercise
the option, because his right is older, and because, by the principle
of accession, he is entitled to the ownership of the accessory thing.
(3 Manresa 213; Bernardo v. Bataclan, 37 Off. Gaz. 1382; Co Tao
v. Chan Chico, G.R. No. 49167, April 30, 1949; Article applied;
see Cabral, et al. v. Ibañez [S.C.] 52 Off. Gaz. 217; Marfori v.
Velasco, [CA] 52 Off. Gaz. 2050).”
The private respondent’s insistence on the removal of the
encroaching structures as the proper remedy, which respondent
Court sustained in its assailed Decisions, is thus legally flawed.
This is not one of the remedies bestowed upon him by law. It would
be available only if and when he chooses to compel the petitioner
to buy the land at a reasonable price but the latter fails to pay such
price. (Ignacio v. Hilario, supra.) This has not taken place. Hence,
his options are limited to: (1) appropriating the encroaching
portion of petitioner’s building after payment of proper indemnity,
or (2) obliging the latter to buy the lot occupied by the structure.
He cannot exercise a remedy of his own liking.
Neither is petitioner’s prayer that private respondent be
ordered to sell the land the proper remedy. While that was dubbed
as the “more workable solution” in Grana and Torralba v. The
Court of Appeals, et al. (109 Phil. 260, 264 [1960]), it was not
the relief granted in that case as the landowners were directed to
exercise “within 30 days from this decision their option to either
buy the portion of the petitioners’ house on their land or sell to said
petitioners the portion of their land on which it stand.” Moreover,
in Grana and Torralba, the area involved was only 87 square
meters while this case involves 520 square meters. In line with the
case of Depra v. Dumlao, this case will have to be remanded to the
trial court for further proceedings to fully implement the mandate
of Art. 448. It is a rule of procedure for the Supreme Court to strive
to settle the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation.
Petitioner, however, must also pay the rent for the property
occupied by its building as prescribed by respondent Court from
October 4, 1979, but only up to the date private respondent serves
notice of its option upon petitioner and the trial court; that is, if
such option is for private respondent to appropriate the encroaching
214 PROPERTY
PNB v. De Jesus
411 SCRA 557 (2003)
Petitioner Philippine National Bank disputes the decision handed down
by the Court of Appeals promulgated on 23 March 2001 in CA-G.R. CV No.
56001, entitled “Generoso De Jesus, represented by his Attorney-in-Fact,
Christian De Jesus, versus Philippine National Bank.” The assailed decision
has affirmed the judgment rendered by the Regional Trial Court, Branch
44, of Mamburao, Occidental Mindoro, declaring respondent Generoso de
Jesus as being the true and lawful owner of the 124-square-meter portion
of the land covered by Transfer Certificate of Title (TCT) No. T-17197 and
ordering petitioner bank to vacate the premises, to deliver possession thereof
to respondent, and to remove the improvement thereon.
It would appear that on 10 June 1995, respondent filed a complaint against
petitioner before the Regional Trial Court of Occidental Mindoro for recovery
of ownership and possession, with damages, over the questioned property. In
his complaint, respondent stated that he had acquired a parcel of land situated in
Mamburao, Occidental Mindoro, with an area of 1,144 square meters covered
by TCT No. T-17197, and that on 26 March 1993, he had caused a verification
survey of the property and discovered that the northern portion of the lot was
being encroached upon by a building of petitioner to the extent of 124 square
meters. Despite two letters of demand sent by respondent, petitioner failed and
refused to vacate the area.
Petitioner, in its answer, asserted that when it acquired the lot and
the building sometime in 1981 from then Mayor Bienvenido Ignacio, the
encroachment already was in existence and to remedy the situation, Mayor
Ignacio offered to sell the area in question (which then also belonged to
Ignacio) to petitioner at P100.00 per square meter which offer the latter claimed
to have accepted. The sale, however, did not materialize when, without the
knowledge and consent of petitioner, Mayor Ignacio later mortgaged the lot to
the Development Bank of the Philippines.
The trial court decided the case in favor of respondent declaring him to
be the rightful owner of the disputed 124-square-meter portion of the lot and
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 217
OWNERSHIP
Right of Accession General Provisions
for, elsewise stated, “where the true owner himself is the builder of works on
his own land, the issue of good faith or bad faith is entirely irrelevant.”
In fine, petitioner is not in a valid position to invoke the provisions of
Article 448 of the Civil Code. The Court commiserates with petitioner in
its present predicament; upon the other hand, respondent, too, is entitled to
his rights under the law, particularly after having long been deprived of the
enjoyment of his property. Nevertheless, the Court expresses hope that the
parties will still be able to come up with an arrangement that can be mutually
suitable and acceptable to them.
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No.
56001 is AFFIRMED. No costs.
SO ORDERED.
268
Art. 448, Civil Code.
269
Ballatan v. CA, supra, at p. 46.
270
94 SCRA 212 (1979).
271
Supra.
220 PROPERTY
pay the “present value” of the house, a useful improvement, in the case
of De Guzman v. Dela Fuente.272
In Pecson v. Court of Appeals,273 the Supreme Court categorically
held that “it is the current market value of the improvements which
should be made the basis of reimbursement.” The Court explained —
The objective of Article 546 of the Civil Code is to
administer justice between the parties involved. In this
regard, this Court had long ago stated in Rivera v. Roman
Catholic Archbishop of Manila (40 Phil. 717 [1920]) that the
said provision was formulated in trying to adjust the rights
of the owner and possessor in good faith of a piece of land,
to administer complete justice to both of them in such a way
as neither one nor the other may enrich himself of that which
does not belong to him. Guided by this precept, it is therefore
the current market value of the improvements which should
be made the basis of reimbursement. A contrary ruling would
unjustly enrich the private respondents who would otherwise
be allowed to acquire a highly valued income-yielding four
unit apartment building for a measly amount. Consequently,
the parties should therefore be allowed to adduce evidence
on the present market value of the apartment building upon
which the trial court should base its finding as to the amount
of reimbursement to be paid by the landowner.274
272
55 Phil. 501 (1930).
273
Supra, at p. 416.
274
At p. 416.
275
Filipinas Colleges, Inc. v. Garcia Timbang, et al., 106 Phil. 247, 253 (1959).
276
Miranda v. Fadullon, 97 Phil. 801, 806 (1955).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 221
OWNERSHIP
Right of Accession General Provisions
277
Pecson v. CA, supra, at p. 416.
278
Chua v. CA, 301 SCRA 356, 364 (1999).
279
Nuguid v. CA, 452 SCRA 243, 252 (2005), citing Ortiz v. Kayanan, 92 SCRA 146, 159
(1979).
280
Id.
281
Id.
282
Id., citing San Diego v. Hon. Montesa, 6 SCRA 208, 210 (1962).
283
Id.
284
Id.
222 PROPERTY
285
61 Phil. 428.
286
Art. 448, Civil Code.
287
Ibid.
288
Art. 448, Civil Code.
289
106 Phil. 247 (1959).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 223
OWNERSHIP
Right of Accession General Provisions
290
At p. 253.
291
97 Phil. 801 (1955).
292
76 Phil. 605 (1946).
293
66 Phil. 590.
294
At p. 806, cited in Filipinas Colleges, Inc. v. Garcia Timbang, et al., at pp. 253-254.
224 PROPERTY
the building or trees and the builder or planter fails to pay such price,
the parties may agree to assume the relation of lessor and lessee — but
they must do so voluntarily.
Should the parties do not agree to leave things as they are and to
assume the relation of lessor and lessee, another remedy is suggested
in the case of Ignacio v. Hilario, supra, wherein the Court held that the
owner of the land is entitled to have the improvement removed when
after having chosen to sell his land to the other party, i.e., the builder
in good faith, fails to pay for the same.295 In this situation, the builder’s
right of retention provided in Article 546 is lost.296
A further remedy is indicated in the case of Bernardo v. Bataclan,
supra, where the Court approved the sale of the land and improvement
in a public auction applying the proceeds thereof first to the payment of
the value of the land and the excess, if any, was ordered to be delivered
to the owner of the house in payment thereof.297
Ballatan v. CA
304 SCRA 37 (1999)
In this case, the parties are owners of adjacent lots — lots 24, 25, 26
and 27. Lot 24 is co-owned by Eden Ballatan and spouses Betty Martinez and
Chong Chy Ling. Lots 25 and 26 are owned by Gonzalo Go, Sr. while lot 27 is
owned by Li Ching Yao. Li Ching Yao built his house on his lot before any of
the parties did. He constructed his house in 1982. Li Ching Yao was not aware
that when he built his house a portion thereof encroached on Go’s adjoining
295
See Filipinas Colleges, Inc. v. Garcia Timbang, et al., at p. 254.
296
See Bernardo v. Bataclan, supra.
297
See Filipinas Colleges, Inc. v. Garcia Timbang, et al., at p. 254.
298
304 SCRA 37 (1999).
299
Bernardo v. Bataclan, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 225
OWNERSHIP
Right of Accession General Provisions
land. In 1983, the son of Gonzalo Go, Winston, constructed his house on lot
no. 25. At the time of construction, Winston was not aware that he encroached
on a portion of land owned by Ballatan and the spouses Betty Martinez and
Chong Chy Ling. In 1985, Ballatan constructed her house on lot 24. During
the construction, she noticed that Go encroached on her property. Since then,
the parties had been aware of the encroachments on each other’s properties.
Apparently, it was the erroneous survey of the geodetic engineer commissioned
by the subdivision developer that caused these discrepancies. In determining
the rights of the parties, the Supreme Court applied Article 448 of the Civil
Code since all the parties had acted in good faith. The Court ruled —
300
Ballatan v. CA, supra; Technogas Philippines Manufacturing Corp. v. CA, supra; Depra
v. Dumlao, supra; and Grana and Torralba v. CA, 109 Phil. 260 (1960).
301
Pleasantville Development Corp. v. CA, supra., at p. 18.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 227
OWNERSHIP
Right of Accession General Provisions
Santos v. Mojica
26 SCRA 703 (1969)
In this case, eleven brothers and sisters, all surnamed Allanigue, brought
an action against their sister, Lorenzana Allanigue, her husband, Simeon
Santos, Maria San Agustin and Felicidad San Agustin for partition of a 360-
square meter lot and for the annulment of certain conveyances involving the
same. After the spouses Simeon and Lorenzana Santos were summons, their
son (Leonardo Santos) built and reconstructed his house into a bigger one.
The plaintiffs eventually won the case. When the judgment became final and
executory, a writ of execution was issued ordering the defendants to vacate the
lot and deliver the same to the plaintiffs. Leonardo refused to vacate. May his
house be demolished? The Supreme Court ruled —
302
Art. 452, Civil Code.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 229
OWNERSHIP
Right of Accession General Provisions
303
Sabido v. CA, 165 SCRA 498 (1988).
304
MWSS v. CA, 143 SCRA 623 (1986).
305
Ibid., citing Art. 549, Civil Code.
306
25 SCRA 255, 261 (1968).
230 PROPERTY
307
Art. 453, 2nd par., Civil Code.
308
Municipality of Oas v. Roa, 7 Phil. 20.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 231
OWNERSHIP
Right of Accession General Provisions
309
Art. 451, NCC.
232 PROPERTY
310
Art. 455, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 233
OWNERSHIP
Right of Accession General Provisions
parties acted in bad faith (Art. 448, in relation to Art. 453); and (4) if the
landowner acted in bad faith and the builder, planter or sower acted in
good faith (Art. 447, in relation to Art. 454).
B. NATURAL ACCESSION
§ 52. Natural Accession
[52.1] Four Forms
As discussed in supra §40.2, there are four forms of natural
accession:
(1) Alluvion;
(2) Avulsion;
(3) Natural change of course of river; and
(4) Formation of island.
Art. 457. To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects of the current
of the waters. (366)
311
Art. 455, NCC.
312
Id.
313
Id.
234 PROPERTY
§53. Alluvion
[53.1] Definition
Alluvium or alluvion has been defined as the gradual and imper-
ceptible addition to the banks of rivers314 or as the increment which
lands abutting rivers gradually receive as a result of the current of the
waters.315 Alluvium is the soil deposited on the estate fronting the river
bank, while accretion is the process whereby the soil is deposited.316
316
Heirs of Emiliano Navarro v. IAC, 268 SCRA 74, 85 (1997).
317
Id., at p. 85, citing Santulan v. The Executive Secretary, 80 SCRA 548, 556 (1977).
318
Id., at pp. 85-86.
319
Assistant Executive Secretary for Legal Affairs of the Office of the President v. CA, 169
SCRA 27 (1989).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 235
OWNERSHIP
Right of Accession General Provisions
The reason behind the law giving the riparian owner the right
to any land or alluvion deposited by a river is to compensate him for
the danger of loss that he suffers because of the location of his land.320
If estates bordering on rivers are exposed to floods and other evils
produced by the destructive force of the waters and if by virtue of lawful
provisions, said estates are subject to encumbrances and various kinds
of easements, it is proper that the risk or danger which may prejudice
the owners thereof should be compensated by the right of accretion.321
320
Republic v. CA, 132 SCRA 514 (1984).
321
Id.
322
Heirs of Emiliano Navarro v. IAC, supra., at p. 85; Vda. De Nazareno v. CA, 257 SCRA
589 (1996); Meneses v. CA, 246 SCRA 374 (1995); Reynante v. CA, 207 SCRA 794 (1992); Bina-
lay v. Manalo, 195 SCRA 374 (1991).
323
Vda. De Nazareno v. CA, supra., at p. 597.
324
Binalay v. Manalo, supra., at p. 386.
236 PROPERTY
must be the exclusive work of nature.325 Hence, the riparian owner does
not acquire the additions to his land caused by special works expressly
intended or designed to bring about accretion.326 Thus, in Tiongco v.
Director of Lands, et al.,327 where the land was not formed solely by the
natural effect of the water current of the river bordering said land but is
also the consequence of the direct and deliberate intervention of man,
it was deemed a man-made accretion and, as such, part of the public
domain.328
Vda. de Nazareno v. CA
257 SCRA 598 (1996)
In this case, Antonio Nazareno, the predecessor-in-interest of
Desamparado Vda. De Nazareno, caused the approval by the Bureau of Lands
of the survey plan designated as Plan Csd-106-00571 with a view to perfecting
his title over the accretion area being claimed by him. The accretion was formed
by the dumping of boulders, soil and other filling materials on portions of the
Balacanas Creek and the Cagayan River bounding Nazareno’s land. Before
the approved survey plan could be released to Nazareno, it was protested by
his lessees. Acting upon such protest, the Regional Director of the Bureau of
Lands ordered the amendment of the survey plan by segregating therefrom
the areas occupied by the lessees. Thereafter, the Director of Lands ordered
Nazareno to vacate the portions adjudicated to the lessees. Upon the death of
Antonio, Vda. De Nazareno went to court to question the action taken by the
Bureau of Lands. The resolution of this case hinges on the question of whether
or not the subject land is public land. Vda. De Nazareno claims that the subject
land is private land being an accretion on Antonio Nazareno’s titled property,
applying Article 457 of the Civil Code. The Supreme Court HELD: Since the
subject land was the direct result of the dumping of sawdust by the Sun Valley
Lumber Co., the accretion was man-made, hence, Art. 457 does not apply.
Ergo, the subject land is part of the public domain.
Republic v. CA
132 SCRA 514 (1984)
In this case, the Tancincos were the registered owners of a parcel of
land bordering on the Meycauayan and Bocaue rivers. In 1973, they filed an
application for the registration of three lots adjacent to their fishpond property.
325
Republic v. CA, 132 SCRA 514, 520 (1984).
326
Id.
327
16 C.A. Rep. 211.
328
Cited in Vda. De Nazareno v. CA, supra., at pp. 598-599.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 237
OWNERSHIP
Right of Accession General Provisions
The Assistant Provincial Fiscal opposed the application. Upon the advise of the
Commissioner appointed by the court, the applicants withdrew their application
with respect to one of the lots. Thereafter, the lower court rendered a decision
granting the application. The Republic appealed to the Court of Appeals which
affirmed the decision of the lower court in toto. The Republic appealed to the
Supreme Court. The Republic claimed that there was no accretion to speak of
under Article 457 of the New Civil Code because what actually happened was
that the Tancincos simply transferred their dikes further down the river bed of
the Meycauayan River, and thus, if there was any accretion to speak of, it was
man-made and artificial and not the result of the gradual and imperceptible
sedimentation by the waters of the river. In ruling for the Republic, the Supreme
Court held —
Article 457 of the New Civil Code provides:
“To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects of the
current of the waters.”
The above-quoted article requires the concurrence of three
requisites before an accretion covered by this particular provision
is said to have taken place. They are: (1) that the deposit be gradual
and imperceptible; (2) that it be made through the effects of the
current of the water; and (3) that the land where accretion takes
place is adjacent to the banks of rivers.
The requirement that the deposit should be due to the effect
of the current of the river is indispensable. This excludes from
Art. 457 of the New Civil Code all deposits caused by human
intervention. Alluvion must be the exclusive work of nature. In
the instant case, there is no evidence whatsoever to prove that
the addition to the said property was made gradually through
the effects of the current of the Meycauayan and Bocaue rivers.
We agree with the observation of the Solicitor General that it is
preposterous to believe that almost four (4) hectares of land came
into being because of the effects of the Meycauayan and Bocaue
rivers. The lone witness of the private respondents who happens
to be their overseer and whose husband was first cousin of their
father noticed the four hectare accretion to the twelve hectare
fishpond only in 1939. The respondents claim that at this point in
time, accretion had already taken place. If so, their witness was
incompetent to testify to a gradual and imperceptible increase to
their land in the years before 1939. However, the witness testified
that in that year, she observed an increase in the area of the original
fishpond which is now the land in question. If she was telling the
238 PROPERTY
329
Guison v. City of Manila, (CA) 40 O.G. 3835; Ronquillo v. CA, 195 SCRA 433, 443
(1991).
330
108 Phil. 335 (1960).
240 PROPERTY
331
Government of the P.I. v. Colegio de San Jose, 53 Phil. 423 (1929); Republic v. CA, 131
SCRA 532 (1984).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 241
OWNERSHIP
Right of Accession General Provisions
Laguna de Bay receded from the land in question but during rainy season the
land was flooded by its water. Inasmuch as under the Civil Code, the owners
of tenements bordering on ponds or lagoons do not acquire the land left dry by
the natural decrease of the waters, then it is of primary importance to determine
whether the body of water called the Laguna de Bay is naturally and legally
a lake or a lagoon. It was — HELD: Laguna de Bay is a body of fresh water
formed in depressions of the earth; it contains fresh water coming from rivers
and brooks or springs, and is connected with Manila Bay by the Pasig River. It
is a lake. Lakes and their beds belong to the public domain. The bed of a lake
is the ground covered by its waters at their highest ordinary depth. The waters
of Laguna de Bay at their highest depth reach no further than the north eastern
boundary of the land in question and therefore said land is outside the bed,
and belongs to the defendant, who continues to be the owner of same, even if
accidentally inundated by the waters of the lake. Even if the land in question
had been formed by alluvion, it still belongs to the defendant as owner of the
land which borders on the lake.
332
Roxas v. Tuason, 9 Phil. 408.
333
Cureg v. IAC, 177 SCRA 313 (1989).
334
Reynante v. CA, 207 SCRA 794, 799-800 (1992).
335
5 SCRA 524, 530 (1962).
242 PROPERTY
336
Viajar v. CA, 168 SCRA 405, 413 (1988), citing Payatas Estate Improvement Co. v.
Tuazon, 53 Phil. 55 and C.N. Hodges v. Garcia, 109 Phil. 132.
337
3 Manresa, 6th ed., 239-240.
338
Government of the P.I. v. Colegio de San Jose, 53 Phil. 423.
339
Ibid.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 243
OWNERSHIP
Right of Accession General Provisions
§ 54. Avulsion
[54.1] Definition
Avulsion has been defined as the accretion which takes place when
the current of a river, creek or torrent segregates a known portion of
land from an estate on its banks and transfers it to another estate.340 Or,
the accretion taking place in the estate on the bank of a river caused
not by the slow and constant action of the waters but by the violent and
sudden action of a torrent.341
340
3 Manresa, 6th ed., 243.
341
2 Castan, 8th ed., 218-219, citing Sanchez Roman.
342
C.N. Hodges v. Garcia, 109 Phil. 133.
244 PROPERTY
343
Art. 459, NCC.
344
II Caguioa, Civil Code, 1966 ed., 103-14.
345
Art. 460, NCC.
346
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 245
OWNERSHIP
Right of Accession General Provisions
Art. 461. River beds which are abandoned through the natural
change in the course of the waters ipso facto belong to the owners whose
lands are occupied by the new course in proportion to the area lost. How-
ever, the owners of the lands adjoining the old bed shall have the right
to acquire the same by paying the value thereof, which value shall not
exceed the value of the area occupied by the new bed. (370a)
Art. 462. Whenever a river, changing its course by natural causes,
opens a new bed through a private estate, this bed shall become of public
dominion. (372a)
347
Art. 461, NCC.
348
Art. 370, Spanish Civil Code of 1889.
349
Report of the Code of Commission, 96.
350
Art. 461, NCC.
246 PROPERTY
the above example, while “X” automatically becomes the owner of the
abandoned river bed, “A,” however, can compel X to sell to him the
abandoned bed at a price not exceeding the value of the area occupied
by the new bed.
Note that under Article 461, the owners of the land adjoining the
old bed have the right to compel the owners of the land occupied by the
new bed to sell to them the old bed at a price not greater than the value
of the land occupied by the new bed. Such option is granted to them
by law and not to the owners of the land onto which the river changed
its course. In other words, the owners of the land onto which the river
changed its course cannot compel the riparian owners (the owners of
the land adjoining the old bed) to buy the old bed. The reason for the
law in giving the riparian owner the right to buy the abandoned river
bed is because the latter is in a better position to make use of the land
for agricultural purposes.
Note, however, that the factual milieu in Ronquillo and Baes are
not the same. In Baes, the change in the course of the waters of the
creek was the result of a deliberate act on the part of the government
resulting in a prejudice to the interest of Baes because the man-made
canal totally occupied his property. In Ronquillo, however, there is no
showing that the change in the course of Estero Calubcub prejudiced
the Del Rosarios. Moreover, the change in Ronquillo was without the
intervention of the government. It was, in fact, due to the dumping of
garbage therein by the people of the surrounding neighborhood. Hence,
if the change in the course of the waters is due to a deliberate act of the
government resulting in prejudice to a private individual, the latter is
entitled to avail himself of the benefits under Article 461 of the Civil
Code.
Baes v. CA
224 SCRA 562 (1993)
In this case, a portion of the Tripa de Gallina creek was diverted to a man-
made canal which totally occupied Lot 2958-B (with an area of 3,588 sq.m.)
belonging to Felix Baes. The diversion was resorted to by the government to
improve the flow of the Tripa de Gallina creek. Baes and his wife claim that
they became the owners of the old bed (which was eventually filled up by
soil excavated from Lot 2958-B) by virtue of Article 461. In agreeing to the
contention of the Baes spouses, the Supreme Court explained —
If the riparian owner is entitled to compensation for the
damage to or loss of his property due to natural causes, there is
all the more reason to compensate him when the change in the
course of the river is effected though artificial means. The loss to
the petitioners of the land covered by the canal was the result of
a deliberate act on the part of the government when it sought to
improve the flow of the Tripa de Gallina creek. It was therefore
obligated to compensate the Baeses for their loss.
Ronquillo v. CA
195 SCRA 433 (1991)
In this case, Rosendo del Rosario was a registered owner of a parcel of
land at Sampaloc, Manila. Adjoining said lot is a dried-up portion of the old
Estero Calubcub occupied by Mario Ronquillo. The Del Rosarios claim that
long before the year 1930, Rosendo had been in possession of his parcel of land
including the adjoining dried-up portion of the old Estero Calubcub. Because
Ronquillo refused to vacate, the Del Rosarios filed an action in court to be
248 PROPERTY
declared the rightful owners of the dried-up portion. Ronquillo, on the other
hand, argued that the dried-up portion is part of the land of the public domain.
After trial, the lower court rendered a judgment in favor of the Del Rosarios,
which judgment was affirmed by the Court of Appeals. Hence, Ronquillo
appealed to the Supreme Court. The Supreme Court required the Solicitor
General to comment on behalf of the Director of Lands. In his comment, the
Solicitor General contends that the subject land is part of the public domain. It
was — HELD: The change in the course of Estero Calubcub was caused, not
by natural courses, but due to the dumping of garbage therein by the people
surrounding the neighborhood. Hence, Art. 370 of the Old Civil Code (now
Art. 461) does not apply. It applies only if there is a natural change in the
course of the waters. Consequently, the dried-up portion of Estero Calubcub
should be considered as forming part of the land of the public domain.
353
Agne v. Director of Lands, 181 SCRA 793, 805 (1990), citing Sanchez v. Pascual, 11
Phil. 395 (1908); Pascual v. Sarmiento, et al., 37 Phil. 170 (1917).
354
Ibid.
355
Ibid.
356
Ibid., citing Villanueva v. Castro, 23 Phil. 54.
357
Ibid., at p. 806.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 249
OWNERSHIP
Right of Accession General Provisions
358
44 Phil. 695.
359
Capistrano, Civil Code of the Philippines, Annotated, Vol. 1, 430.
360
See Footnote No. 56 in Celestial v. Cachopero, 413 SCRA 469, 487.
361
“Art. 58. When a river or stream suddenly changes its course to traverse private lands,
the owners or the affected lands may not compel the government to restore the river to its former
bed; nor can they restrain the government from taking steps to revert the river or stream to its
former course. The owners of the lands thus affected are not entitled to compensation for any
damage sustained thereby. However, the former owners of the new bed shall be the owners of the
abandoned bed in proportion to the area lost by each.
250 PROPERTY
The owners of the affected lands may undertake to return the river or stream to its old bed
at their own expense; Provided, That a permit therefore is secured from the Minister of Public
Works, Transportation and Communication and work pertaining thereto are commenced within
two years from the change in the course of the river or stream.”
362
II Tolentino, Civil Code, 1992 ed., 137-138.
363
Id.
364
413 SCRA 469, 489 (2003).
365
Id., citing II Tolentino,Civil Code, 1992 ed., 137-138; II Paras, Civil Code, 2002 ed.,
275.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 251
OWNERSHIP
Right of Accession General Provisions
Art. 463. Whenever the current of a river divides itself into branches,
leaving a piece of land or part thereof isolated, the owner of the land re-
tains his ownership. He also retains it if a portion of land is separated
from the estate by the current. (374)
Art. 464. Islands which may be formed on the seas within the juris-
diction of the Philippines, on lakes, and on navigable or floatable rivers
belong to the State. (371a)
Art. 465. Islands which through successive accumulation of alluvial
deposits are formed in non-navigable and non-floatable rivers, belong to
the owners of the margins or banks nearest to each of them, or to the
owners of both margins if the island is in the middle of the river, in which
case it shall be divided longitudinally in halves. If a single island thus
formed be more distant from one margin than from the other, the owner of
the nearer margin shall be the sole owner thereof. (373a)
366
II Caguioa, Civil Code, 1966 ed., 110.
367
3 Manresa, 6th ed., 256.
368
Commonwealth v. Meneses, (CA) 38 O.G. No. 23, 2839.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 253
OWNERSHIP
Right of Accession General Provisions
Jagualing v. CA
194 SCRA 607 (1991)
Between the one who has actual possession of an island that forms in a
non-navigable and non-floatable river (who has been in possession of the same
for 15 years) and the owner of the land along the margins nearest to the island,
who has the better right thereto? Under Art. 465 of the Civil Code, the island
belongs to the owner of the land along the nearer margin as sole owner thereof.
His ownership, however, may yield to the adverse possession of third parties.
But in this case, the third parties were presumed to have notice of the status of
the owner of the land along the nearer margin as riparian owners, hence, they
did not qualify as possessors in good faith. They may acquire ownership of the
island only through uninterrupted adverse possession for a period of thirty (30)
years. By their own admission, they have been in possession of the property for
only about fifteen years. Hence, the island can properly be adjudicated to the
owner of the land along the nearer margin.
369
Jagualing v. CA, 194 SCRA 608, 614-615 (1991).
370
Ibid.
254 PROPERTY
371
3 Sanchez Roman, 98.
372
3 Manresa, 6th ed., 284-285.
373
3 Manresa 272.
374
II Caguioa, Civil Code, 1966 ed., 111, citing 3 Manresa, 6th ed., 275.
256 PROPERTY
375
3 Manresa, 6th ed., 275-276.
376
See Art. 466, NCC.
377
Art. 469, 2nd par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 257
OWNERSHIP
Right of Accession General Provisions
378
3 Manresa, 6th ed., 289.
258 PROPERTY
379
Art. 471, NCC.
380
Art. 467, NCC.
381
Art. 468, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 259
OWNERSHIP
Right of Accession General Provisions
(3) Third test — if both things are of equal value, then the one
of greater volume is the principal and the other the accessory.382
However, in the case of painting, sculpture, writings, printed
matter, engraving and lithographs, the board, metal, stone, canvas,
paper or parchment shall be deemed the accessory thing.383
Art. 472. If by the will of the owners two things of the same or differ-
ent kinds are mixed, or if the mixture occurs by chance, and in the latter
case the things are not separable without injury, each owner shall acquire
a right proportional to the part belonging to him, bearing in mind the value
of the things mixed or confused. (381)
Art. 473. If by the will of only one owner, but in good faith, two things
of the same or different kinds are mixed or confused, the rights of the
owners shall be determined by the provisions of the preceding article.
If the one who caused the mixture or confusion acted in bad faith,
he shall lose the thing belonging to him thus mixed or confused, besides
being obliged to pay indemnity for the damages caused to the owner of
the other thing with which his own was mixed. (382)
382
Art. 468, NCC.
383
Art. 468, 2nd par., NCC.
384
Art. 472, NCC.
260 PROPERTY
Art. 474. One who in good faith employs the material of another in
whole or in part in order to make a thing of a different kind, shall appropri-
ate the thing thus transformed as his own, indemnifying the owner of the
material for its value.
If the material is more precious than the transformed thing or is of
more value, its owner may, at his option, appropriate the new thing to
himself, after first paying indemnity for the value of the work, or demand
indemnity for the material.
If in the making of the thing bad faith intervened, the owner of the
material shall have the right to appropriate the work to himself without
paying anything to the maker, or to demand of the latter that he indemnify
him for the value of the material and the damages he may have suffered.
However, the owner of the material cannot appropriate the work in case
the value of the latter, for artistic or scientific reasons, is considerably
more than that of the material. (383a)
Art. 475. In the preceding articles, sentimental value shall be duly
appreciated. (n)
385
Art. 473, 1st par., NCC.
386
Art. 472, 1st par., NCC.
387
Arts. 472 and 473, 1st par., NCC.
388
Art. 473, 2nd par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 261
OWNERSHIP
Right of Accession General Provisions
§ 59. Specification
[59.1] Specification, Explained
Specification takes place whenever the work of a person is done
on the material of another, such material, in consequence of the work
itself, undergoing a transformation.389 It is the imparting of a new form
to the material of another person.390 Hence, specification involves: (1)
the labor of the worker, and (2) the materials of another.
389
3 Manresa, 6th ed., 297.
390
3 Sanchez Roman 100.
391
Art. 474, 1st par., NCC.
392
Art. 474, 2nd par., NCC.
393
Art. 474, 3rd par., NCC.
262 PROPERTY
Chapter 3
QUIETING OF TITLE (n)
Art. 476. Whenever there is a cloud on title to real property or any
interest therein, by reason of any instrument, record, claim, encumbrance
or proceeding which is apparently valid or effective but is in truth and in
fact invalid, ineffective, voidable, or unenforceable, and may be prejudi-
cial to said title, an action may be brought to remove such cloud or to
quiet the title.
An action may also be brought to prevent a cloud from being cast
upon title to real property or any interest therein.
Art. 477. The plaintiff must have legal or equitable title to, or interest
in the real property which is the subject matter of the action. He need not
be in possession of said property.
Art. 478. There may also be an action to quiet title or remove a cloud
therefrom when the contract, instrument or other obligation has been ex-
tinguished or has terminated, or has been barred by extinctive prescrip-
tion.
Art. 479. The plaintiff must return to the defendant all benefits he
may have received from the latter, or reimburse him for expenses that
may have redounded to the plaintiff’s benefit.
Art. 480. The principles of the general law on the quieting of title are
hereby adopted insofar as they are not in conflict with this Code.
Art. 481. The procedure for the quieting of title or the removal of a
cloud therefrom shall be governed by such rules of court as the Supreme
Court shall promulgate.
394
Art. 474, last par., Civil Code.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 263
OWNERSHIP
Quieting of Title (n)
395
Baricuatro v. CA, 325 SCRA 137 (2000), citing Vda. de Aviles v. Court of Appeals, 264
SCRA 473, 478 (1996); see also Divinagracia v. Cometa, 482 SCRA 648, 654 (2006) and Calacala,
et al. v. Republic of the Philippines, G.R. No. 154415, July 28, 2005.
396
Id., citing II Tolentino, Civil Code, 137.
397
Id., citing II Paras, Civil Code, 13th ed., 270.
398
154 SCRA 328, 348 (1987).
399
See also Seville v. National Development Company, 351 SCRA 112.
264 PROPERTY
400
Calacala, et al. v. Republic of the Philippines, supra.
401
MBTC v. Alejo, 364 SCRA 812.
402
Calacala, et al. v. Republic of the Philippines, supra.
403
Id., See also Robles v. CA, 328 SCRA 97, 108-109.
404
Mamadsual v. Moson, 190 SCRA 82.
405
Maestrado v. CA, 327 SCRA 678, 689; also in Mamadsual v. Moson, supra.
406
Mamadsual v. Moson, supra.
407
124 SCRA 784 (1983).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 265
OWNERSHIP
Quieting of Title (n)
one who has an equitable right or interest in the property may also file
an action to quiet title.408
408
Mamadsual v. Moson, supra.
409
MBTC v. Alejo, supra.
410
Id., citing II Tolentino, Civil Code, 1992 ed., 150.
411
Supra.
266 PROPERTY
412
Vda. de Aviles v. CA, 264 SCRA 473; also in Titong v. CA, 278 SCRA 102.
413
Titong v. CA, supra., citing Vda. de Aviles v. CA, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 267
OWNERSHIP
Quieting of Title (n)
Also, for an action for quieting of title to prosper the deed, claim,
encumbrance or proceeding that is being alleged as a cloud on plaintiff’s
title must be shown to be in fact invalid or inoperative despite its prima
facie appearance of validity or legal efficacy.417 This requirement is clear
from the provision of Article 476.
[60.3] Prescription
414
Tandog, et al. v. Macapagal, et al., G.R. No. 144208, Sep. 11, 2007; citing II Tolentino,
Civil Code, 152.
415
Id.
416
Id.
417
Calacala, et al. v. Republic of the Philippines, supra.
418
Art. 477, NCC.
268 PROPERTY
419
Sapto v. Fabiana, 103 Phil. 683; Faja v. CA, 75 SCRA 441, 446 (1977); David v. Malay,
318 SCRA 711.
420
Pingol v. CA, 226 SCRA 118, 129-130; See also Faja v. CA, supra.
421
Mamadsual v. Moson, supra, 88.
422
See Chacon Enterprises v. CA, G.R. No. L-46418-19, Sept. 29, 1983.
423
See Gallar v. Husain, 20 SCRA 186.
424
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 269
OWNERSHIP
Ruinous Buildings and Trees in Danger of Falling
the action; that even without the prayer for a specific remedy, proper
relief may nevertheless be granted by the court if the facts alleged in the
complaint and the evidence introduced so warrant.425
Chapter 4
RUINOUS BUILDINGS AND TREES
IN DANGER OF FALLING
Art. 482. If a building, wall, column, or any other construction is in
danger of falling, the owner shall be obliged to demolish it or to execute
the necessary work in order to prevent it from falling.
If the proprietor does not comply with this obligation, the admin-
istrative authorities may order the demolition of the structure at the ex-
pense of the owner, or take measures to insure public safety. (389a)
Art. 483. Whenever a large tree threatens to fall in such a way as to
cause damage to the land or tenement of another or to travellers over a
public or private road, the owner of the tree shall be obliged to fell and re-
move it; and should he not do so, it shall be done at his expense by order
of the administrative authorities. (390a)
425
Chacon Enterprises v. CA, supra, citing Ras v. Sua, L-23302, Sept. 25, 1968, 25 SCRA
153, 158-159, citing People v. Matondo, February 24, 1961; Cajefe v. Fernandez, Oct. 19, 1960;
Rosales v. Reyes, 25 Phil. 495; Ibañez de Baranueva v. Fuster, 29 Phil. 606; Cabigao v. Lim, 50
Phil. 844.
426
Case v. Board of Health, 24 Phil. 250.
270 PROPERTY
427
Art. 482, par. 1, NCC.
428
Art. 482, par. 2, NCC.
429
Art. 2190, NCC.
430
“Art. 1723. The engineer or architect who drew up the plans and specifications for a
building is liable for damages if within fifteen years from the completion of the structure, the same
should collapse by reason of a defect in those plans and specifications, or due to the defects in the
ground. The contractor is likewise responsible for the damages if the edifice falls, within the same
period, on account of defects in the construction or the use of materials of inferior quality furnished
by him, or due to any violation of the terms of the contract. If the engineer or architect supervises
the construction, he shall be solidarily liable with the contractor.
Acceptance of the building, after completion, does not imply waiver of any of the cause of
action by reason of any defect mentioned in the preceding paragraph.
The action must be brought within ten years following the collapse of the building. (n)”
431
Art. 2192, NCC.
432
Art. 483, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 271
OWNERSHIP
Ruinous Buildings and Trees in Danger of Falling
— oOo —
272 PROPERTY
§ 62. In General
[62.1] Definition
Sanchez Roman defines co-ownership as the right of common
dominion which two or more persons have in a spiritual part of a thing,
not materially or physically divided.1 Manresa, on the other hand, defines
it as the manifestation of the private right of ownership, which instead
of being exercised by the owner in an exclusive manner over the thing
subject to it, it is exercised by two or more owners and the undivided
thing or right to which it refers is one and the same.2
1
3 Sanchez Roman 162, cited in Sanchez v. Court of Appeals, 404 SCRA 540, 547 (June
20, 2003).
2
3 Manresa 401, cited in Sanchez v. CA, supra, 547.
3
Art. 484, 1st par., NCC.
4
Sanchez v. Court of Appeals, supra, 547.
5
Vda. de Ape v. Court of Appeals, 456 SCRA 193, 2007 (2005), citing Felices v. Colegado,
35 SCRA 173.
272
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 273
CO-OWNERSHIP
8
Gapacan v. Omipet, 387 SCRA 383.
9
De Guia v. Court of Appeals, 413 SCRA 114, 124, Oct. 8, 2003.
10
Alejandrino v. Court of Appeals, 295 SCRA 536, 548, Sept. 17, 1998.
11
Id., citing Aguilar v. Court of Appeals, 227 SCRA 472, 480, Oct. 29, 1993.
12
Si v. Court of Appeals, 342 SCRA 653, 661, Oct. 12, 2000, citing Dela Cruz v. Cruz, 32
SCRA 307, 311 (1970).
13
Sanchez v. Court of Appeals, supra, p. 547.
14
Engreso v. Court of Appeals, 401 SCRA 217, 220, April 9, 2003.
274 PROPERTY
15
3 Manresa, 6th ed., 344.
16
Id.
17
De Guia v. Court of Appeals, supra, 124.
18
Alejandrino v. Court of Appeals, supra, 548.
19
Id.
20
3 Manresa, 6th ed., 344.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 275
CO-OWNERSHIP
21
See Dela Cruz v. Cruz, 32 SCRA 307 (April 17, 1970); Umengan v. Butacan, 7 SCRA
311 (Feb. 28, 1963); Salatandol v. Retes, G.R. No. L-38120, June 28, 1988; Hernandez v. Quitain,
168 SCRA 92 (Nov. 29, 1988).
22
De Guia v. Court of Appeals, 413 SCRA 114, 124-125, Oct. 8, 2003, citing Si v. CA, 342
SCRA 653, Oct. 12, 2000.
23
Uy v. CA, 246 SCRA 703, 711, July 20, 1995.
24
Umengan v. Butacan, 7 SCRA 311, Feb. 28, 1963.
25
Salatandol v. Retes, 162 SCRA 568, June 28, 1988.
26
Vda. de Ape v. Court of Appeals, supra, 207.
27
City of Mandaluyong v. Aguilar, supra, p. 499.
28
267 SCRA 339, February 3, 1997; see also Del Campo v. Court of Appeals, 351 SCRA
1, February 1, 2001.
276 PROPERTY
29
Art. 1769(2), NCC.
278 PROPERTY
30
“Art. 1767. By the contract of partnership two or more persons bind themselves to con-
tribute money, property, or industry to a common fund, with the intention of dividing the profits
among themselves.
Two or more persons may also form a partnership for the exercise of a profession.
(1665a)”
31
Art. 1768, NCC.
32
Art. 1767, NCC.
33
Art. 494, 2nd par., NCC.
34
Art. 1830(5), NCC.
35
Art. 493, NCC.
36
Art. 1813, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 279
CO-OWNERSHIP
37
Art. 472, NCC.
38
Art. 473, NCC.
39
Art. 147, Family Code of the Philippines.
40
Art. 148, Family Code of the Philippines.
41
Art. 494, 2nd par., NCC.
42
Art. 1078, NCC.
280 PROPERTY
likewise prohibit the partition of the estate among the heirs for a period
not to exceed twenty (20) years.43
(4) By fortuitous event or chance: Co-ownership will arise if
two things of the same kind or different kinds are mixed by chance and
the things are not separable without injury.44
(5) By occupancy: As when two or more persons catch a wild
pig or get forest products45 or when a hidden treasure is accidentally
discovered by a stranger, who is not a trespasser, on the land of
another.46
[62.8.1] Contract
If the source of co-ownership is a contract, such co-ownership
is to be governed primarily by the contract between the parties and,
in default thereof, by the provisions of Articles 484 to 501 of the New
Civil Code.47
43
Art. 1083, NCC.
44
Art. 472, NCC.
45
Punzalan v. Boon Liat, 44 Phil. 320.
46
Art. 438, 2nd par., NCC.
47
See Art. 484, 2nd par., NCC.
48
Art. 484, 2nd par., NCC.
49
See Rabuya, “The Law on Persons and Family Relations,” 2006 ed., 421.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 281
CO-OWNERSHIP
community shall primarily govern50 and the provisions of the Civil Code
on co-ownership shall apply in a suppletory manner.51 The applicability
of the provisions of the Civil Code on co-ownership to the regime of
absolute community is recognition that this regime is a special kind of
co-ownership.52 Under the provisions of the Civil Code on co-ownership,
it is provided that if the co-ownership is created by law, such kind of co-
ownership shall be governed primarily by the special provisions of law
creating it and the provisions of the Civil Code on co-ownership shall
only apply in a suppletory manner.53
Art. 485. The share of the co-owners, in the benefits as well as in the
charges, shall be proportional to their respective interests. Any stipula-
tion in a contract to the contrary shall be void.
The portions belonging to the co-owners in the co-ownership shall
be presumed equal, unless the contrary is proved. (393a)
50
Id., 422, citing Art. 74(2), Family Code.
51
Id., 422, citing Art. 90, Family Code.
52
Id., 422.
53
Id., 422, citing Art. 484, 2nd par., NCC.
54
Arts. 472 and 473, NCC.
55
Art. 438, 2nd par., NCC.
56
Art. 485, 2nd par., NCC; see also Lavadia v. Cosme, 72 Phil. 196.
282 PROPERTY
and lot in the amount of P900,000.00. They may agree in any manner
as to how much each shall contribute. They may agree, for example,
that Pedro shall contribute P450,000 (50%), Juan P225,000 (25%) and
Jose P225,000 (25%). Notwithstanding such manner of contribution,
the parties may nonetheless agree that their respective share in the co-
ownership shall be equal. In the absent of such contrary agreement, it
is understood that the share of each co-owner shall be in proportion to
their respective contributions. The presumption of equal sharing does
not apply in this case since there is proof to the contrary.
Art. 486. Each co-owner may use the thing owned in common, pro-
vided he does so in accordance with the purpose for which it is intended
57
Art. 485, 1st par., NCC.
58
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 283
CO-OWNERSHIP
59
De Guia v. CA, 413 SCRA 114, 124 (2003).
60
Aguilar v. CA, 227 SCRA 473, 480 (1993).
61
Art. 486, NCC.
62
De Guia v. CA, supra, p. 127.
63
Art. 486, NCC.
64
Aguilar v. CA, 227 SCRA 473, 480, Oct. 29, 1993, citing Pardell v. Matilde, 23 Phil. 450
(1912).
284 PROPERTY
Pardell v. Bartolome
23 Phil. 450 (1912)
In this case, the sisters Matilde and Vicenta Ortiz (plaintiff) were co-
owners of a two-storey house designed as a dwelling. Matilde (defendant)
and her husband occupied the upper floor as their dwelling. The husband also
occupied the upper floor on the ground floor as an office while the other rooms
were rented as stores. Meanwhile, plaintiff and her husband were living abroad
and upon their return an accounting of rents was made to them. The question
arose as to whether or not defendants should pay rent for the upper floor
occupied by them as well as that portion occupied by the husband.
Ruling: With regard to that part occupied by Matilde as dwelling, no
rental can be collected inasmuch as she, being the co-owner, is entitled to use
the same. With respect, however, to that portion occupied by the husband,
Bartolome, the latter must pay one-half of the rentals which said quarters could
and should have produced had they have been rented to strangers, inasmuch as
he is not a co-owner of the property.
65
Art. 486, NCC.
66
De Guia v. Court of Appeals, 413 SCRA 114, 127, Oct. 8, 2003, citing Tolentino, Civil
Code of the Philippines, Vol. II, 1992 ed.
67
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 285
CO-OWNERSHIP
agreement to lease the house, the co-owners can demand rent from the
co-owner who dwells in the house.68
The co-owners can either exercise an equal right to live in the
house, or agree to lease it. If they fail to exercise any of these options,
they must bear the consequences. It would be unjust to require the co-
owner to pay rent after the co-owners by their silence have allowed him
to use the property.69
In case the co-owners agree to lease a building owned in common,
a co-owner cannot retain it for his use without paying the proper rent.70
Moreover, where part of the property is occupied exclusively by some
co-owners for the exploitation of an industry, the other co-owners
become co-participants in the accessions of the property and should
share in its net profits.71
68
Id.
69
Id., p. 128, citing Tolentino, Civil Code of the Philippines, Vol. II, 1992 ed.
70
Id.
71
Id.
286 PROPERTY
and the right to enjoy the possession jointly also ceased. Thereafter,
the continued stay of respondent and his family in the house
prejudiced the interest of petitioner as the property should have
been sold and the proceeds divided equally between them. To
this extent and from then on, respondent should be held liable for
monthly rentals until he and his family vacate.
Art. 487. Any one of the co-owners may bring an action in ejectment.
(n)
72
3 Manresa, 6th ed., 424.
73
Sering v. Plazo, 166 SCRA 84, 85 (1988), citing Tolentino, Civil Code, 1983 ed., Vol.
II, p. 157.
74
Id.
75
See De Guia v. Court of Appeals, 413 SCRA 114, 125 (2003); Baloloy v. Hular, 438
SCRA 80, Sep. 9, 2004; and Adlawan v. Adlawan, 479 SCRA 275, Jan. 20, 2006.
290 PROPERTY
76
Baloloy v. Hular, supra, 91; also in Adlawan v. Adlawan, supra.
77
Paras, Civil Code of the Philippines Annotated, Vol. II, 1999 ed., p. 294, cited in Adlawan
v. Adlawan, supra, 286.
78
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 291
CO-OWNERSHIP
such co-owners were aware of the case in the trial court. The
trial court rendered judgment declaring the respondent as
the sole owner of the property and entitled to its possession,
to the prejudice of the latter’s siblings. Patently then, the
decision of the trial court is erroneous.
Under Section 7, Rule 3 of the Rules of Court, the
respondent was mandated to implead his siblings, being co-
owners of the property, as parties. The respondent failed to
comply with the rule. It must, likewise, be stressed that the
Republic of the Philippines is also an indispensable party
as defendant because the respondent sought the nullification
of OCT No. P-16540 which was issued based on Free
Patent No. 384019. Unless the State is impleaded as party-
defendant, any decision of the Court would not be binding on
it. It has been held that the absence of an indispensable party
in a case renders ineffective all the proceedings subsequent
to the filing of the complaint including the judgment. The
absence of the respondent’s siblings, as parties, rendered all
proceedings subsequent to the filing thereof, including the
judgment of the court, ineffective for want of authority to
act, not only as to the absent parties but even as to those
present.79
In Adlawan v. Adlawan,80 the Court likewise sustained the dismissal
of the complaint for ejectment on the ground that the suit was brought in
the name of the plaintiff alone and for his own benefit to the exclusion
of the other co-owners. In fact, the plaintiff therein did not recognize
the co-ownership and, in fact, vigorously asserted absolute and sole
ownership of the questioned lot.
The Adlawan and Baloloy cases must therefore be distinguished
from other cases where the Court upheld the right of a co-owner to file
a suit pursuant to Article 487 of the Civil Code. In Resuena v. Court of
Appeals,81 and Sering v. Plazo,82 for example, the co-owners who filed
the ejectment case did not represent themselves as the exclusive owner
79
At pp. 90-92.
80
Supra.
81
454 SCRA 42 (2005).
82
Supra.
292 PROPERTY
83
435 SCRA 690 (2004).
84
140 Phil. 99.
85
De Guia v. Court of Appeals, supra, 125, citing Arturo M. Tolentino, Civil Code of the
Philippines, Vol. II, 1992 Ed. See also Engreso v. Dela Cruz, 401 SCRA 217 (2003).
86
Id.
87
Id.
88
Id.
89
Engreso v. Dela Cruz, 401 SCRA 217 (2003).
90
De Guia v. Court of Appeals, supra.
91
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 293
CO-OWNERSHIP
plaintiffs because the suit is deemed to be instituted for the benefit of all,
any adverse judgment cannot prejudice the rights of the unimpleaded
co-owners.92 However, any judgment of the court in favor of the co-
owner will benefit the others.93
Art. 488. Each co-owner shall have a right to compel the other co-
owners to contribute to the expenses of preservation of the thing or right
owned in common and to the taxes. Any one of the latter may exempt him-
self from this obligation by renouncing so much of his undivided interest
as may be equivalent to his share of the expenses and taxes. No such
waiver shall be made if it is prejudicial to the co-ownership. (395a)
Art. 489. Repairs for preservation may be made at the will of one of
the co-owners, but he must, if practicable, first notify his co-owners of the
necessity for such repairs. Expenses to improve or embellish the thing
shall be decided upon by a majority as determined in Article 492. (n)
92
Baloloy v. Hular, supra; see also Resuena v. Court of Appeals, supra.
93
Id.
94
Art. 488, NCC.
95
Art. 489, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 297
CO-OWNERSHIP
96
II Tolentino, Civil Code, 1992 ed., 178-179.
97
Art. 488, NCC.
298 PROPERTY
98
II Tolentino, Civil Code, 1992 ed., 173-176.
99
Lawyer’s Journal, October 31, 1950, pp. 499-500.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 299
CO-OWNERSHIP
can sustain, the law will not allow C to opt for renunciation, in lieu of
his contribution to the expenses.100 Such waiver is not allowed because
it will be prejudicial to the interest of the co-ownership.101
100
II Caguioa, Civil Code, 1966 ed., 136.
101
Id.
102
Id., 199.
300 PROPERTY
103
Art. 490(1), NCC.
104
Art. 490(2), NCC.
105
Id.
106
Art. 490(3), NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 301
CO-OWNERSHIP
107
Sec. 2, R.A. No. 4726.
108
Sec. 3(d), R.A. No. 4726.
109
Sec. 3(b), R.A. No. 4726.
110
Sec. 5, R.A. No. 4726.
111
Sec. 2, R.A. No. 4726.
112
Sec. 5, R.A. No. 4726.
302 PROPERTY
113
Sec. 9, R.A. No. 4726.
114
Sec. 9(a)(2), R.A. No. 4726.
115
Sec. 9(a)(3), R.A. No. 4726.
116
Sec. 9(a)(4), R.A. No. 4726.
117
Sec. 9(a)(5), R.A. No. 4726.
118
Sec. 9(a)(6), R.A. No. 4726.
119
Sec. 20, R.A. No. 4726.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 303
CO-OWNERSHIP
Art. 491. None of the co-owners shall, without the consent of the
others, make alterations in the thing owned in common, even though ben-
efits for all would result therefrom. However, if the withholding of the con-
sent by one or more of the co-owners is clearly prejudicial to the common
interest, the courts may afford adequate relief. (397a)
Art. 492. For the administration and better enjoyment of the thing
owned in common, the resolutions of the majority of the co-owners shall
be binding.
There shall be no majority unless the resolution is approved by the
co-owners who represent the controlling interest in the object of the co-
ownership.
Should there be no majority, or should the resolution of the ma-
jority be seriously prejudicial to those interested in the property owned
in common, the court, at the instance of an interested party, shall order
such measures as it may deem proper, including the appointment of an
administrator.
Whenever a part of the thing belongs exclusively to one of the co-
owners, and the remainder is owned in common, the preceding provi-
sions shall apply only to the part owned in common. (398)
120
Id.
121
Id.
122
Id.
123
Art. 491, NCC.
124
Id.
304 PROPERTY
consent and the same is clearly prejudicial to the common interest, the
other co-owners may go to court for appropriate relief.125
125
Id.
126
3 Manresa, 6th ed., 447; cited in II Caguioa, 1966 ed., 137.
127
Id.
128
II Tolentino, Civil Code, 1992 ed., 192.
129
Art. 5, NCC, in relation to Art. 491, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 305
CO-OWNERSHIP
130
Art. 492, 1st par., NCC.
131
See Art. 492, 2nd par., NCC.
132
Art. 489, NCC.
133
Id.
134
Art. 489, NCC.
135
Art. 492, 1st par., NCC.
136
II Tolentino, Civil Code, 1992 ed., 195.
306 PROPERTY
137
3 Manresa, 6th ed., 457, cited in II Caguioa, Civil Code, 1966 ed., 140.
138
3 Manresa 476-477; cited in II Tolentino, Civil Code, 1992 ed., 195.
139
Art. 492, 3rd par., NCC.
140
3 Manresa, 6th ed., 461-462.
141
City of Mandaluyong v. Aguilar, 350 SCRA 499, Jan. 29, 2001.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 307
CO-OWNERSHIP
his rights over his pro indiviso share. Pursuant to said article, a co-
owner shall have full ownership of his part and of the fruits and benefits
pertaining thereto.142 He has the right to alienate, assign or mortgage it,
and even to substitute another person in its enjoyment, except when
personal rights143 are involved.144 As a consequence, a co-owner has the
right to alienate his pro indiviso share in the co-owned property even
without the consent of the other co-owners145 and his co-owners cannot
enjoin him if he intends to alienate his share to a third party.146 He may
also validly lease his undivided interest to a third party independently
of the other co-owners.147
142
Nufable v. Nufable, 309 SCRA 692, 700, July 2, 1999.
143
The term “personal rights” refers to the personal relations of one co-owner to the others,
as when the family residence is used by the children as co-owners. see Padilla, Civil Code, Vol. II,
pp. 300-301 (1972); Tolentino, Civil Code, Bk. II, p. 203 (1992).
144
Nufable v. Nufable, supra, 700.
145
Mercado v. CA, 240 SCRA 616, 621, Jan. 26, 1995.
146
Reyes v. Concepcion, 190 SCRA 171, 179, Oct. 1, 1990.
147
Vda. de Castro v. Atienza, 53 SCRA 264, Oct. 17, 1973, cited in Sanchez v. CA, supra,
and City of Mandaluyong v. Aguilar, supra.
148
Art. 493, NCC.
149
Del Campo v. CA, 351 SCRA 1, 7-8, Feb. 1, 2001.
150
Id.
308 PROPERTY
151
Oliveras v. Lopez, 168 SCRA 431, 437, Dec. 14, 1988, citing Diversified Credit Corpo-
ration v. Rosado, L-27983, December 24, 1968, 26 SCRA 470.
152
City of Mandaluyong v. Aguilar, supra, at p. 500, citing Abad v. CA, 179 SCRA 826
(1989); Bailon-Casilao v. CA, 160 SCRA 738 (1988); Santos v. Buenconsejo, 14 SCRA 407
(1965); Ramirez v. Batutaista, 14 Phil. 528 (1909).
153
Id., also in Del Campo v. Court of Appeals, 351 SCRA 1 (2001).
154
Id.
155
351 SCRA 1, 7-8, Feb. 1, 2001.
156
See Abad v. Court of Appeals, 179 SCRA 817, December 4, 1989.
157
Id.
158
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 309
CO-OWNERSHIP
sale will only transfer the rights of said co-owner to the buyer, thereby
making the buyer a co-owner of the property.159 As a consequence, the
effect of such alienation, with respect to the other co-owners, shall be
limited to the portion which may be allotted to the vendee, as successor-
in-interest of the selling co-owner, in the division of the property upon
the termination of the co-ownership.160 In one case,161 however, the buyer
of a concrete or specific portion sold by one of the co-owners was held to
be entitled to the specific portion which she purchased because the said
buyer was allowed by the other co-owner to occupy said definite portion
without disturbance for a period too long to be ignored. According to
the Court in said case, such undisturbed possession had the effect of
a partial partition of the co-owned property which entitles the buyer-
possessor to the definite portion which she occupies.162
159
Id.
160
Art. 493, NCC.
161
Del Campo v. Court of Appeals, supra.
162
Id., 9.
310 PROPERTY
Court further held that the Del Campos are entitled to the possession of the
specific portion sold to them. The Court explained —
On the first issue, it seems plain to us that the trial court
concluded that petitioners could not have acquired ownership of
the subject land which originally formed part of Lot 162, on the
ground that their alleged right springs from a void sale transaction
between Salome and Soledad. The mere fact that Salome
purportedly transferred a definite portion of the co-owned lot by
metes and bounds to Soledad, however, does not per se render the
sale a nullity. This much is evident under Article 493 of the Civil
Code and pertinent jurisprudence on the matter. More particularly
in Lopez v. Vda. De Cuaycong, et al. which we find relevant, the
Court, speaking through Mr. Justice Bocobo, held that:
… The fact that the agreement in question purported to sell
a concrete portion of the hacienda does not render the sale void,
for it is a well-established principle that the binding force of a
contract must be recognized as far as it is legally possible to do
so. “Quando res non valet ut ago, valeat quantum valere potest.”
(When a thing is of no force as I do it, it shall have as much force
as it can have.)
Applying this principle to the instant case, there can be no
doubt that the transaction entered into by Salome and Soledad could
be legally recognized in its entirety since the object of the sale
did not even exceed the ideal shares held by the former in the co-
ownership. As a matter of fact, the deed of sale executed between
the parties expressly stipulated that the portion of Lot 162 sold
to Soledad would be taken from Salome’s 4/16 undivided interest
in said lot, which the latter could validly transfer in whole or in
part even without the consent of the other co-owners. Salome’s
right to sell part of her undivided interest in the co-owned property
is absolute in accordance with the well-settled doctrine that a co-
owner has full ownership of his pro-indiviso share and has the right
to alienate, assign or mortgage it, and substitute another person in
its enjoyment. Since Salome’s clear intention was to sell merely
part of her aliquot share in Lot 162, in our view no valid objection
can be made against it and the sale can be given effect to the full
extent.
We are not unaware of the principle that a co-owner cannot
rightfully dispose of a particular portion of a co-owned property
prior to partition among all the co-owners. However, this should
not signify that the vendee does not acquire anything at all in case
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 311
CO-OWNERSHIP
163
Mercado v. CA, 240 SCRA 616, 620, Jan. 26, 1995; also in Nufable v. Nufable, 309
SCRA 692, July 2, 1999.
164
Segura v. Segura, 165 SCRA 368, 374, Sept. 19, 1988.
165
Del Campo v. CA, 351 SCRA 1, 8, Feb. 1, 2001, citing Tomas Claudio Memorial Col-
lege, Inc. v. CA, 316 SCRA 501 (1999). See also Aguirre v. CA, 421 SCRA 310, 323-324 (2004);
Corinthian Realty, Inc. v. CA, 394 SCRA 260, 268 (2002); Tomas Claudio Memorial College, Inc.
v. CA, 316 SCRA 502, 509 (1999); Paulmitan v. CA, 215 SCRA 866, 872-873 (1992); Bailon-
Casilao v. CA, 160 SCRA 738, 745 (1988).
166
Acabal v. Acabal, 454 SCRA 555, 582.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 313
CO-OWNERSHIP
Id.
168
169
Id.
170
Pangan v. Court of Appeals, 166 SCRA 375, 381.
171
Bailon-Casilao v. Court of Appeals, supra; see also Aguirre v. Court of Appeals, 421
SCRA 310.
172
Tomas Claudio Memorial College, Inc. v. Court of Appeals, Oct. 12, 1999.
173
Id., citing Ramirez v. Batutaista, 14 Phil. 528 (1909).
174
327 SCRA 97.
314 PROPERTY
of sale and in the title (TCT No. 43100) that was issued in the name
of Gertrudes Isidro, she was described as a “widow.” Her husband,
however, died only on December 2, 1973. In 1985, Gertrudes obtained
a loan from the spouses Alexander and Adelaida Cruz, secured by the
property covered by TCT No. 43100. When Gertrudes failed to pay
the loan, she executed a pacto de retro sale in favor of the spouses
Cruz. When Gertrudes failed to repurchase the property within the
period agreed upon, ownership thereof was consolidated in the name
of Alexander Cruz in whose name TCT No. 130584 was issued. On
9 June 1987, Gertrudes died. Thereafter, her heirs, received demands
to vacate the premises from the spouses Cruz, the new owners of the
property. The heirs of Gertrudez responded by filing a complaint for the
nullification of the sale and the title of Alexander Cruz. The Supreme
Court held that while, as a rule, Gertrudes could only dispose of her
share in the property owned in common pursuant to Article 493, the
purchaser acquires a valid title to the entire property even as against
the heirs of the spouses Isidro based on the principle that “a person
dealing with registered land is not required to go behind the register to
determine the condition of the property.” The Court explained that “(the
purchaser) is only charged with notice of the burdens on the property
which are noted on the face of the register or the certificate of title” and
“to require him to do more is to defeat one of the primary objects of the
Torrens system.”
In Segura v. Segura,175 however, the Supreme Court followed the
general rule that “no one can give what he does not have — nemo dat
quod non habet.” The Court further declared, albeit in obiter, that even if
it is to be assumed that the purchaser bought the land in good faith from
the selling co-owners (who were the registered owners of the property
as appearing on the title), only so much of the share of the selling co-
owners could be validly acquired by the purchaser, with the rest of the
property remaining under the ownership of the excluded co-heirs or
co-owners. In other words, the purchaser became merely a pro indiviso
co-owner of the land with the other excluded co-owners, who retained
title to their respective shares although the purchaser had possession of
the entire property. It was further held that the portion pertaining to the
excluded co-owners should be deemed held by the purchaser under an
implied trust for their benefit.
175
165 SCRA 368.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 315
CO-OWNERSHIP
176
Supra.
177
328 SCRA 97.
316 PROPERTY
registered lands can rely solely on the certificate of title does not apply
to banks.
178
Art. 124, FC; Sps. Guiang v. Court of Appeals, 353 Phil. 578 (1998); see also Rabuya,
Law on Persons and Family Relations, 2006 ed., 485-486.
179
453 SCRA 283 (2005).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 317
CO-OWNERSHIP
nor an equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the liquidation and
settlement. Hence, any disposition of the spouse’s respective shares or
interest in the absolute community shall be void since such right to one-
half of the community assets does not vest until the liquidation of the
absolute community. Nemo dat qui non habet. No one can give what he
has not.180 This is also the reason why dispositions of community property
made by one spouse without the consent of the other or without court
authorization may not likewise be deemed valid even insofar as the
share of the consenting spouse in the community property is concerned.
Such alienation or disposition must be regarded as invalid in its entirety
and not only with respect to the share of the non-consenting spouse in
the property.181
180
See Rabuya, Law on Persons and Family Relations, 2006 ed., 440-441.
181
Id., 441.
182
See Art. 147, Family Code.
183
Art. 1620, 1st par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 319
CO-OWNERSHIP
184
Art. 1620, 2nd par., NCC.
185
Basa v. Aguilar, 117 SCRA 128, 130, Sept. 30, 1982.
186
Id.
187
Viola v. Tecson, 49 Phil. 808.
188
Aguilar v. Aguilar, 478 SCRA 187, Dec. 16, 2005.
189
Hernandez v. Quitain, 168 SCRA 92, 95, Nov. 29, 1988; also in Mendoza I v. CA, 199
SCRA 778, 787, July 31, 1991.
190
Uy v. CA, 246 SCRA 703, 711, July 20, 1995.
191
Viola v. Tecson, 49 Phil. 808.
320 PROPERTY
192
Caram v. CA, 101 Phil. 315, 319 (1957), cited in Hernandez v. Quitain, supra, at p. 96;
also in Caro v. CA, 113 SCRA 10, March 25, 1982.
193
Saturnino v. Paulino, 97 Phil. 50 (1955); Umengan v. Butacan, 7 SCRA 311 (1963); Es-
toque v. Pajimula, 24 SCRA 59 (1968); Dela Cruz v. Cruz, 32 SCRA 307 (1970); Seechung Federis
v. Sunga, 134 SCRA 16 (1985); Salatandol v. Retes, G.R. No. L-38120, June 28, 1988; Hernandez
v. Quitain, supra, and Mendoza I v. CA, supra.
194
Basa v. Aguilar, 117 SCRA 128, 130-131, Sep. 30, 1982, cited in Pilapil v. CA, 250
SCRA 566, 576, Dec. 4, 1995 and Fernandez v. Tarun, 391 SCRA 653, 659, Nov. 14, 2002.
195
Fernandez v. Tarun, G.R. No. 143868, Nov. 14, 2002.
196
Viola v. Tecson, 49 Phil. 808, 810, Dec. 24, 1926, cited in Fernandez v. Tarun, supra,
659
197
Reyes v. Concepcion, 190 SCRA 171, 178. Oct. 1, 1990.
198
Id.
199
Id.
200
Art. 1623, 1st par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 321
CO-OWNERSHIP
legal and effective exercise of the right of legal redemption one must
make the offer within the period set down in Article 1623. In other
words, if no claim or offer is made within said period, no action will be
allowed to enforce the right of redemption. It is necessary however to
determine first if and when the written notice of sale was duly served by
the vendors to their co-owner.201
201
Cabrera v. Villanueva, 160 SCRA 672, 677, April 15, 1988.
202
Aguilar v. Aguilar, 478 SCRA 187, 193 (2005), citing Butte v. Manuel Uy & Sons, Inc.,
4 SCRA 526.
203
342 SCRA 463.
204
Aguilar v. Aguilar, supra, 193.
205
Id.
206
Distrito v. Court of Appeals, 197 SCRA 606.
207
Id.
208
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philip-
pines, Vol. III, pp. 607-608, cited in Mariano v. Court of Appeals, May 28, 1993.
322 PROPERTY
[72.2] Merger
Merger, as a mode of terminating the co-ownership, takes place
when all the interests in a co-ownership are consolidated in one person.
209
Mariano v. Court of Appeals, 222 SCRA 736, May 28, 1993.
210
3 Manresa, 6th ed., 486; 2 Castan, 8th ed., 318.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 323
CO-OWNERSHIP
This may happen, for example, when the shares of the other co-owners
are acquired by one co-owner either by way of purchase or through the
exercise of the right of legal redemption.
211
Gapacan v. Omipet, 387 SCRA 383.
212
Adille v. Court of Appeals, 157 SCRA 455, Jan. 29, 1988. See also Paulmitan v. Court
of Appeals, 215 SCRA 866, Nov. 25, 1992; Mariano v. Court of Appeals, 222 SCRA 736, May 28,
1993; Cruz v. Leis, 327 SCRA 570, March 9, 2000.
213
Mariano v. Court of Appeals, supra, 740.
214
Adille v. Court of Appeals, supra.
215
Supra.
324 PROPERTY
216
At pp. 459-461.
326 PROPERTY
217
172 SCRA 660, April 24, 1989.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 327
CO-OWNERSHIP
218
At pp. 668-669.
328 PROPERTY
§ 73. Prescription
[73.1] General Rule: Prescription Does Not Lie
Co-ownership is a form of trust and every co-owner is a trustee
for the others,219 hence, the relationship of such co-owner to the other
co-owners is fiduciary in character and attribute.220 Whether established
by law or agreement of the co-owners, the property or thing held pro
indiviso is impressed with a fiducial nature so that each co-owner
becomes a trustee for the benefit of his co-owners and he may not do
any act prejudicial to the interest of his co-owners.221 Thus, the Supreme
Court has held that the possession by a co-owner is like that of a
trustee222 and shall not be regarded as adverse to the other co-owners
but in fact beneficial to all of them.223 Following this principle, it is the
rule in this jurisdiction that “no prescription shall lie in favor of a co-
owner or co-heirs as long as he expressly or impliedly recognizes the
co-ownership.”224
219
Sanchez v. Court of Appeals, 404 SCRA 541, 548, June 20, 2003.
220
Id.
221
Id.
222
Delima v. CA, 201 SCRA 641, 646, Sept. 24, 1991; Salvador v. CA, 243 SCRA 239,
251, April 5, 1995.
223
Salvador v. CA, 243 SCRA 239, 251, April 5, 1995.
224
Art. 494, last par., NCC.
225
Trinidad v. Court of Appeals, 289 SCRA 188, 211, April 20, 1988.
226
Pangan v. Court of Appeals, 166 SCRA 375, 382, Oct. 17, 1988.
227
Adille v. Court of Appeals, supra, 461.
228
Heirs of Segunda Maningding v. Court of Appeals, supra, 608.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 329
CO-OWNERSHIP
[73.3] Requisites
In order that the title may prescribe in favor of a co-owner229 or in
order that a co-owner’s possession may be deemed adverse to the other
co-owners,230 the following elements must concur:
229
Robles v. Court of Appeals, 328 SCRA 97, 110, March 14, 2000.
230
Salvador v. Court of Appeals, 243 SCRA 239, 251, April 5, 1995.
231
Robles v. CA, supra; see also Salvador v. CA, supra, 251.
232
Sanchez v. Court of Appeals, supra, 548.
233
Salvador v. CA, supra, 251.
234
Id., citing Bicarme v. Court of Appeals, 186 SCRA 294, 301, June 6, 1990.
235
See Bicarme v. Court of Appeals, supra.
236
See Robles v. Court of Appeals, supra.
237
Heirs of Segunda Maningding v. Court of Appeals, 276 SCRA 601, 609, July 31, 1997.
330 PROPERTY
238
Delima v. Court of Appeals, supra, citing Castillo v. Court of Appeals, 10 SCRA 549.
239
Alzona v. Capunitan, February 28,1962, G.R. No. L-10220, cited in Pangan v. Court of
Appeals, supra.
240
Id.
241
Pangan v. CA, 166 SCRA 375, 382, Oct. 17, 1988.
242
Id.
243
Heirs of Segunda Maningding v. CA, 276 SCRA 601, 608-609, July 31, 1997.
244
Id., at p. 609.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 331
CO-OWNERSHIP
§ 74. Partition
[74.1] Definition
Partition, in general, is the separation, division and assignment of
a thing held in common among those to whom it may belong. The thing
itself may be divided, or its value.245
[74.2] Right of Co-Owner to Demand Partition
Article 494 of the New Civil Code states that “no co-owner shall be
obliged to remain in the co-ownership” and, thus, “each co-owner may
245
Art. 1079, NCC.
332 PROPERTY
demand at any time the partition of the thing owned in common, insofar
as his share is concerned.” In Budlong v. Bondoc,246 Article 494 has
been interpreted to mean that the action for partition is imprescriptible247
or cannot be barred by laches.248
Note, however, that an action for partition implies that the thing
is still owned in common.249 Hence, as long as the co-ownership is
recognized, an action to compel partition will not prescribe and may
be filed at any time against the actual possessor by any of the other
co-owners.250 If a co-owner or co-heir, however, holds the property in
exclusive adverse possession as owner, asserting sole and exclusive
dominion for the required period, he can acquire sole title to it as
against the co-heirs or co-owners.251 The imprescriptibility of the action
cannot thus be invoked when one of the co-owners has possessed the
property as exclusive owner and for a period sufficient to acquire it by
prescription.252 From the moment one of the co-owners claims that he is
the absolute and exclusive owner of the properties and denies the others
any share therein, the question involved is no longer one of partition,
but of ownership.253 In such case, the imprescriptibility of the action
for partition can no longer be invoked or applied when one of the co-
owners has adversely possessed the property as exclusive owner for a
period sufficient to vest ownership by prescription.254
246
79 SCRA 24.
247
Cited in Tomas Claudio Memorial College, Inc. v. Court of Appeals, 316 SCRA 502.
248
Salvador v. Court of Appeals, 243 SCRA 239, 250-251.
249
Bicarme v. Court of Appeals, supra.
250
Pangan v. Court of Appeals, supra.
251
Id.
252
Id.
253
Id.
254
Delima v. Court of Appeals, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 333
CO-OWNERSHIP
and of their rights thereunder because the same may already be barred
under the statute of limitations (or extinctive prescription).
255
Heirs of Flores Restar v. Heirs of Dolores R. Cichon, 475 SCRA 731, Nov. 22, 2005.
256
Id.
257
Id.
258
Id.
259
Supra.
334 PROPERTY
260
Jardin v. Hallasgo, 117 SCRA 532, 536, Sept. 30, 1982.
261
Id.
262
Roque v. Intermediate Appellate Court, 165 SCRA 118, 126, Aug. 30, 1988.
263
Delima v. Court of Appeals, 201 SCRA 641, Sept. 24, 1991.
264
165 SCRA 368, 376, Sept. 19, 1988.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 337
CO-OWNERSHIP
265
Delima v. CA, supra; Segura v. Segura, 165 SCRA 368; Heirs of Jose Olviga v. Court of
Appeals, 227 SCRA 330.
266
Vda. de Cabrera v. CA, 267 SCRA 339.
267
Delima v. CA, supra; Castillo v. Court of Appeals, 10 SCRA 549.
268
Supra.
338 PROPERTY
and based on this affidavit, TCT No. 2744 was cancelled and TCT No.
3009 was issued on February 4, 1954 in the name of Galileo Delima
alone to the exclusion of the other heirs. Thereafter, Galileo Delima
declared the lot in his name for taxation purposes and paid the taxes
thereon from 1954 to 1965. On February 28, 1968, the surviving heirs of
the siblings of Galileo filed an action for reconveyance and/or partition
of the property. In holding that the action filed had already prescribed,
the Court explained —
We have held that when a co-owner of the property
in question executed a deed of partition and on the strength
thereof obtained the cancellation of the title in the name of
their predecessor and the issuance of a new one wherein he
appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners
over their shares, the statute of limitations started to run for
the purposes of the action instituted by the latter seeking
a declaration of the existence of the co-ownership and of
their rights thereunder (Castillo v. Court of Appeals, No.
L-18046, March 31, 1964, 10 SCRA 549). Since an action
for reconveyance of land based on implied or constructive
trust prescribes after ten (10) years, it is from the date of the
issuance of such title that the effective assertion of adverse
title for purposes of the statute of limitations is counted
(Jaramil v. Court of Appeals, No. L-31858, August 31, 1977,
78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the
legal heirs of Lino Delima, represented by Galileo Delima,
was cancelled by virtue of an affidavit executed by Galileo
Delima and that on February 4, 1954, Galileo Delima obtained
the issuance of a new title in his name numbered TCT No.
3009 to the exclusion of his co-heirs. The issuance of this
new title constituted an open and clear repudiation of the trust
or co-ownership, and the lapse of ten (10) years of adverse
possession by Galileo Delima from February 4, 1954 was
sufficient to vest title in him by prescription. As the certificate
of title was notice to the whole world of his exclusive title to
the land, such rejection was binding on the other heirs and
started as against them the period of prescription. Hence,
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 339
CO-OWNERSHIP
269
205 SCRA 337, citing Adille v. Court of Appeals, 157 SCRA 455.
270
Supra.
340 PROPERTY
271
Vda. de Cabrera v. CA, supra.
272
Id.
273
Roque v. Intermediate Appellate Court, 165 SCRA 118, 125.
342 PROPERTY
court find that the plaintiff was unable to sustain his claimed status
as co-owner, or that the defendants are or have become the sole and
exclusive owners of the property involved, the court will necessarily
have to dismiss the action for partition. This result would be reached,
not because the wrong action was commenced by the plaintiff, but
rather because the plaintiff having been unable to show co-ownership
rights in himself, no basis exists for requiring the defendants to submit
to partition the property at stake. If, upon the other hand, the court
after trial should find the existence of co-ownership among the parties
litigant, the court may and should order the partition of the property
in the same action. Judgment for one or the other party being on the
merits, the losing party (respondents in this case) may then appeal the
same. In either case, however, it is quite unnecessary to require the
plaintiff to file another action, separate and independent from that for
partition originally instituted. Functionally, an action for partition may
be seen to be at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the property
involved. This is the import of our jurisprudence on the matter and is
sustained by the public policy which abhors multiplicity of actions.274
[74.5] When Partition Not Available
The action for partition will not be available in the following
instances:
(1) When there is an agreement among the owners to keep
the thing undivided.275 However, such agreement must not exceed ten
years.276 Where the parties stipulate a definite period of indivision which
exceeds the maximum allowed by law, said stipulation shall be void
only as to the period beyond such maximum.277 However, the period of
ten years may be extended by a new agreement.278
(2) When the donor or testator prohibits partition for a period
which shall not exceed twenty (20) years.279 Although the Civil Code
is silent as to the effect of the indivision of a property for more than
twenty years, it would be contrary to public policy to sanction co-
274
Id.
275
Art. 494, 2nd par., NCC.
276
Id.
277
Oliveras v. Lopez, 168 SCRA 431.
278
Art. 494, 2nd par., NCC; see also Art. 1083, NCC.
279
Art. 494, 3rd par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 343
CO-OWNERSHIP
ownership beyond the period set by the law. Otherwise, the 20-year
limitation expressly mandated by the Civil Code would be rendered
meaningless.280
(3) When the law prohibits partition281 such as when the origin or
juridical nature of co-ownership prevents partition:
Examples:
(a) The spouses, who are governed by a regime of absolute
community, cannot agree to partition the community property
without a judicial order.282
(b) The heirs cannot partition the family home upon the death
of the person or persons who constituted the same unless the
court finds compelling reasons therefore.283 Upon the death of
the person or persons who constituted the family home and
there are two or more heirs, the whole estate of the decedent
(including the family home) is, before its partition, owned in
common by such heirs, subject to the payment of the debts
of the deceased.284 As a rule, any one of the co-owners may
demand partition at any time.285 However, so long as the
family home continues as such pursuant to the provisions
of Article 159 of the Family Code, the heirs are prohibited
from partitioning the family home unless the court finds
compelling reason therefore.286
(4) When partition would render the thing unserviceable for the
use for which it is intended.287
280
Oliveras v. Lopez, supra.
281
Art. 494, 3rd par., NCC.
282
Art. 134, FC.
283
Art. 159, FC.
284
Art. 1078, NCC.
285
Art. 494, NCC.
286
Art. 159, FC.
287
Art. 495, NCC.
288
Art. 498, NCC.
344 PROPERTY
when: (1) the right to partition the property is invoked by any of the co-
owners but because of the nature of the property it cannot be subdivided
or its subdivision would prejudice the interests of the co-owners, and
(2) the co-owners are not in agreement as to who among them shall be
allotted or assigned the entire property upon proper reimbursement of
the co-owners.289 In Reyes v. Concepcion,290 the Court upheld the order
of the trial court directing the holding of a public sale of the properties
owned in common pursuant to Article 498 of the Civil Code. The Court
therein held —
Moreover, there is no legal infirmity tainting respondent
trial judge’s order for the holding of a public sale of the
subject properties pursuant to the provisions of Article 498
of the New Civil Code. After a careful examination of the
proceedings before respondent trial judge, the Court finds
that respondent trial judge’s order was issued in accordance
with the laws pertaining to the legal or juridical dissolution
of co-ownerships.
It must be noted that private respondents, in their answer
with counterclaim prayed for, inter alia, the partition of the
subject properties in the event that the petitioners refused
to purchase their pro-indiviso shares at the rate of P12.50
per square meter. Unlike petitioners’ claim of a pre-emptive
right to purchase the other co-owners’ pro-indiviso shares,
private respondents’ counterclaim for the partition of the
subject properties is recognized by law, specifically Article
494 of the New Civil Code which lays down the general rule
that no co-owner is obliged to remain in the co-ownership.
Article 494 reads as follows:
No co-owner shall be obliged to remain in
the co-ownership. Each co-owner may demand at
any time partition of the thing owned in common,
insofar as his share is concerned.
Nevertheless, an agreement to keep the
thing undivided for a certain period of time, not
289
Aguilar v. Court of Appeals, 227 SCRA 473.
290
190 SCRA 171.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 345
CO-OWNERSHIP
291
Art. 496, NCC.
292
See discussion under supra § 72.1.
293
Art. 1091, NCC.
294
Art. 543, NCC.
295
Art. 499, NCC.
296
Id.
297
Art. 500, NCC.
348 PROPERTY
income and fruits which each one of them may have received from any
property of the estate, for any useful and necessary expenses made upon
such property, and for any damage thereto through malice or neglect.298
(5) Every co-owner shall be liable for defects of title and quality
of the portion assigned to each of the other co-owners.299
— oOo —
298
Art. 1087, NCC.
299
Art. 501, NCC; see also Arts. 1092-1096, NCC.
349
Chapter 1
WATERS
349
350 PROPERTY
(4) Rain waters falling on said lands, as long as they remain with-
in the boundaries;
(5) The beds of flowing waters, continuous or intermittent, formed
by rain water, and those of brooks, crossing lands which are not of public
dominion.
In every drain or aqueduct, the water, bed, banks and floodgates
shall be considered as an integral part of the land or building for which
the waters are intended. The owners of lands, through which or along the
boundaries of which the aqueduct passes, cannot claim ownership over
it, or any right to the use of its bed or banks, unless the claim is based on
titles of ownership specifying the right or ownership claimed. (408)
In 1976, the Water Code of the Philippines (P.D. No. 1067) was
promulgated expressly repealing the provisions of the Irrigation Act.
However, the provisions of the Spanish Law on Waters of 1866 and the
New Civil Code on ownership of waters, easements relating to waters,
use of public waters and acquisitive prescription on the use of waters,
were considered repealed only to the extent that they were inconsistent
with the provisions of the Water Code of the Philippines. Hence, under
present laws, matters relating to waters or water resources are governed
primarily by the Water Code of the Philippines. The provisions of the
New Civil Code on waters and that of the Spanish Law on Waters of
1866, which are not in conflict with the Water Code of the Philippines,
still apply.
1
This is a substantial reproduction of Section 8, Article XIV of the 1973 Constitution which
provides, as follows:
“Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum, and other min-
eral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philip-
pines belong to the State. x x x”
2
See II Tolentino, Civil Code of the Philippines, 1992 ed., 219.
352 PROPERTY
3
See Art. 3, Water Code of the Philippines.
4
The precursor of Sec. 2, Article XII of the 1987 Phil. Constitution.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 353
SOME SPECIAL PROPERTIES
Waters
While it is the rule in Article 437 of the New Civil Code that the
ownership of lands extends to the surface as well as to the subsoil under
it, such rule does not extend to the waters under the ground, known as
“subterranean or ground waters.” Pursuant to paragraph (d) of Article
6 of the Water Code of the Philippines, subterranean or ground waters
belong to the State even if they are found on private lands. As such,
any construction of installations for the utilization of subterranean or
354 PROPERTY
ground waters may not be undertaken unless the plans and specifications
thereof are approved by the proper government agency.5
5
See Art. 39, Water Code of the Philippines.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 355
SOME SPECIAL PROPERTIES
Waters
6
See Art. 13, Water Code of the Philippines.
7
See Art. 6, Water Code of the Philippines.
356 PROPERTY
8
See Art. 10, Water Code of the Philippines.
9
See Art. 14, Water Code of the Philippines.
10
See Art. 8, Water Code of the Philippines.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 357
SOME SPECIAL PROPERTIES
Waters
CHAPTER I
DECLARATION OF OBJECTIVES AND PRINCIPLES
Art. 4. Waters, as used in this Code, refers to water under the grounds,
water above the ground, water in the atmosphere and the waters of the sea
within the territorial jurisdiction of the Philippines.
CHAPTER II
OWNERSHIP OF WATERS
leading to the place where the water will be used or stored and, thereafter,
so long as it is being beneficially used for the purposes for which it was
appropriated.
CHAPTER III
APPROPRIATION OF WATERS
Art. 24. A water right shall be exercised in such a manner that rights of
third persons or of other appropriators are not prejudiced thereby.
Art. 25. A holder of a water permit may demand the establishment of
easements necessary for the construction and maintenance of the works and
facilities needed for the beneficial use of the waters to be appropriated subject
to the requirements of just compensation and to the following conditions:
a. That he is the owner, lessee, mortgage or one having real right over
the land upon which he proposes to use water; and
b. That the proposed easement is the most convenient and the least
onerous to the servient estate.
Easement relating to the appropriation and use of waters may be modified
by agreement of the contracting parties provided the same is not contrary to
law or prejudicial to third persons.
Art. 26. Where water shortage is recurrent, the use of the water pursuant
to a permit may, in the interest of equitable distribution of benefits among legal
appropriators, be reduced after due notice and hearing.
Art. 27. Water users shall bear the diminution of any water supply due to
natural causes or force majeure.
Art. 28. Water permits shall continue to be valid as long as water is
beneficially used; however, it maybe suspended on the grounds of non-
compliance with approved plans and specifications or schedules of water
distribution; use of water for a purpose other than that for which it was granted;
non-payment of water charges, wastage; failure to keep records of water
diversion, when required; and violation of any term or condition of any permit
or of rules and regulations promulgated by the Council.
Temporary permits may be issued for the appropriation and use of water
for short periods under special circumstances.
Art. 29. Water permits may be revoked after due notice and hearing on
grounds of non-use; gross violation of the conditions imposed in the permit;
unauthorized sale of water; willful failure or refusal to comply with rules and
regulations or any lawful order; pollution, public nuisance or acts detrimental
to public health and safety; when the appropriator is found to be disqualified
under the law to exploit and develop natural resources of the Philippines; when,
in the case of irrigation, the land is converted to non-agricultural purposes; and
other similar grounds.
Art. 30. All water permits are subject to modification or cancellation
by the Council, after due notice and hearing, in favor of a project of greater
beneficial use or for multi-purpose development, and a water permittee who
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 363
SOME SPECIAL PROPERTIES
Waters
CHAPTER IV
UTILIZATION OF WATERS
Art. 37. In the construction and operation of hydraulic works, due consid-
eration shall be given to the preservation of scenic places and historical relics
and in addition to the provisions of existing laws, no works that would require
the destruction or removal of such places or relics shall be undertaken without
showing that the destruction or removal is necessary and unavoidable.
Art. 38. Authority for the construction of dams, bridges and other
structures across of which may interfere with the flow of navigable or
floatable waterways shall first be secured from the Ministry of Public Works,
Transportation and Communications [now Department of Public Works and
Highways].
Art. 39. Except in cases of emergency to save life or property, the
construction or repair of the following works shall be undertaken only after
the plans and specifications therefore, as may be required by the Council, are
approved by the proper government agency; dams for the diversion or storage
of water; structures for the use of water power; installations for the utilization
of subterranean or ground water and other structures for utilization of water
resources.
Art. 40. No excavation for the purpose of emission of a hot spring or for
the enlargement of the existing opening thereof shall be made without prior
permit.
Any person or agency who intends to develop a hot spring for human
consumption must first obtain a permit from the Department of Health.
Art. 41. No person shall develop a stream, lake, or spring for recreational
purposes without first securing a permit from the council.
Art. 42. Unless otherwise ordered by the President of the Philippines
and only in times of national calamity or emergency, no person shall induce or
restrain rainfall by any method such as cloud seeding without a permit from the
proper government agency.
Art. 43. No person shall raise or lower the water level of a river, stream,
lake, lagoon or marsh nor drain the same without a permit.
Art. 44. Drainage systems shall be so constructed that their outlets are
rivers, lakes, the sea, natural bodies of water, such other water course as may
be approved by the proper government agency.
Art. 45. When a drainage channel is constructed by a number of persons
for their common benefit, cost of construction and maintenance of the channel
shall be borne by each in proportion to the benefits derived.
Art. 46. When artificial means are employed to drain water from higher
to lower land, the owner of the higher land shall select the routes and methods
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 365
SOME SPECIAL PROPERTIES
Waters
of drainage that will cause the minimum damage to the lower lands, subject to
the requirements of just compensation.
Art. 47. When the use, conveyance or storage of water results in damage
to another, the person responsible for the damage shall pay compensation.
Art. 48. When a water resources project interferes with the access of
landowner to a portion of his property or with the conveyance of irrigation or
drainage water, the person or agency constructing the project shall bear the cost
of construction and maintenance of the bridges, flumes and other structures
necessary for maintaining access, irrigation, or drainage in addition to paying
compensation for land and incidental damages.
Art. 49. Any person having an easement for an aqueduct may enter
upon the servient land for the purpose of cleaning, repairing or replacing the
aqueduct or the removal of obstructions therefrom.
Art. 50. Lower estates are obliged to receive the waters which naturally
and without the intervention of man flow from the higher estates, as well as the
stones or earth which they carry with them.
The owner of the lower estate can not construct works which will impede
this natural flow, unless he provides an alternative method of drainage; neither
can the owner of the higher estate make works which will increase this natural
flow.
Art. 51. The banks of rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3) meters in
urban areas, twenty (20) meters in agricultural areas and forty (40) meters in
forest areas, along their margins, are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and salvage. No person shall
be allowed to stay in this zone longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to build structures of any kind.
Art. 52. The establishment, extent, from, and conditions of easement of
water not expressly determined by the provisions of this Code shall be governed
by the provisions of the Civil Code.
CHAPTER V
CONTROL OF WATERS
Art. 53. To promote the best interest and the coordinated protection
of flood plain lands, the Secretary of Public Works, Transportation and
Communications may declare flood control areas and promulgate guidelines
for governing flood plain management plans in these areas.
366 PROPERTY
Art. 54. In declared flood control areas, rules and regulations may
be promulgated to prohibit or control activities that may damage or cause
deterioration of lakes and dikes, obstruct the flow of water, change the natural
flow of the river, increase flood losses or aggravate flood problems.
Art. 55. The government may construct necessary flood control
structures in declared flood control areas, and for this purpose it shall have a
legal easement as wide as may be needed along and adjacent to the river bank
and outside the bed or channel of the river.
Art. 56. River beds, sand bars and tidal flats may not be cultivated except
upon prior permission from the Minister of Public Works, Transportation
and Communication and such permission shall not be granted where such
cultivation obstructs the flow of water or increase flood levels so as to cause
damage to other areas.
Art. 57. Any person may erect levees or revetments to protect his
property from flood, encroachment by the river or change in the course of the
river, provided that such constructions does not cause damage to the property
of another.
Art. 58. When a river or stream suddenly changes its course to traverse
private lands, the owners of the affected lands may not compel the government
to restore the river to its former bed; nor can they restrain the government from
taking steps to revert the river or stream to its former course. The owners of the
lands thus affected are not entitled to compensation for any damage sustained
thereby. However, the former owners of the new bed shall be the owners of the
abandoned bed proportion to the area lost by each.
The owners of the affected lands may undertake to return the river or
stream to its old bed at their own expense; Provided, That a permit therefore is
secured from the Minister of Public Works, Transportation and Communication
and work pertaining thereto are commenced within two years from the changes
in the course of the river or stream.
Art. 59. Rivers, lakes and lagoons may, upon the recommendation of the
Philippines Coast Guard, be declared navigable either in whole or in part.
Art. 60. The rafting of logs and other objects on rivers and lakes which
are floatable may be controlled or prohibited during designated season of the
year with due regard to the needs of irrigation and domestic water supply and
other uses of water.
Art. 61. The impounding of water in ponds or reservoirs may be
prohibited by the Council upon consultation with the Department of Health if
it is dangerous to public health, or it may order that such pond or reservoirs be
drained if such is necessary for the protection of public health.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 367
SOME SPECIAL PROPERTIES
Waters
CHAPTER VI
CONSERVATION AND PROTECTION OF WATERS AND
WATERSHEDS AND RELATED LAND RESOURCES
Art. 66. After due notice and hearing when warranted by circumstances,
minimum stream flows for rivers and streams and minimum water levels
for lakes may be established by the Council under such conditions as may
be necessary for the protection of the environment, control of pollution,
navigation, prevention of salt damage, and general public use.
Art. 67. Any watershed or any area of land adjacent to any surface water
or overlying any ground water may be declared by the Ministry of Natural
Resources as a protected area. Rules and regulations may be promulgated by
such Ministry to prohibit or control such activities by the owners or occupants
thereof within the protected area which may damage or cause the deterioration
of the surface water or ground water or interfere with the investigation, use,
control, protection, management or administration of such waters.
368 PROPERTY
Art. 68. It shall be the duty of any person in control of a well to prevent
the water from flowing on the surface of the land, or into any surface water, or
any porous stratum underneath the surface without being beneficially used.
Art. 69. It shall be the duty of any person in control of a well containing
water with minerals or other substances injurious to man, animals, agriculture,
and vegetation to prevent such waters from flowing on the surface of the land
or into any surface water or into any other aquifer or porous stratum.
Art. 70. No person shall utilize an existing well or pond or spread waters
for recharging subterranean or ground water supplies without prior permission
of the Council.
Art. 71. To promote better water conservation and usage for irrigation
purposes, the merger of irrigation associations and the appropriation of waters
by associations instead of by individuals shall be encouraged.
No water permit shall be granted to an individual when his water
requirement can be supplied through an irrigation association.
Art. 72. In the consideration of a proposed water resource project, due
regard shall be given to ecological changes resulting from the construction of
the project in order to balance the needs of development and the protection of
the environment.
Art. 73. The conservation of fish and wild life shall receive proper
consideration and shall be coordinated with other features of water resources
development programs to insure that fish and wildlife values receive equal
attention with other project purposes.
Art. 74. Swamps and marshes which are owned by the State and which
have a primary value for waterfowl propagation or other wildlife purposes may
be reserved and protected from drainage operations and development.
Art. 75. No person shall, without prior permission from the National
Pollution Control Commission, build any works that may produce dangerous
or noxious substance or perform any act which may result in the introduction
of sewage, industrial waste, or any pollutant into any source of water supply.
Water pollution is the impairment of the quality of water beyond a certain
standard. This standard may vary according to the use of the water and shall be
set by the National Pollution Control Commission.
Art. 76. The establishment of cemeteries and waste disposal areas that
may affect the source of a water supply or a reservoir for domestic or municipal
use shall be subject to the rules and regulations promulgated by the Department
of Health.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 369
SOME SPECIAL PROPERTIES
Waters
Art. 77. Tailings from mining operations and sediments from placer
mining shall not be dumped into rivers and waterways without prior permission
from the Council upon recommendation by the National Pollution Control
Commission.
Art. 78. The application of agriculture fertilizers and pesticides may be
prohibited or regulated by the National Pollution Control Commission in areas
where such application may cause pollution of a source of water supply.
CHAPTER VII
ADMINISTRATION OF WATERS AND ENFORCEMENT
OF THE PROVISIONS OF THIS CODE
Art. 84. The Council and other agencies authorized to enforce this
Code are empowered to enter upon private lands, with previous notice to the
owner, for the purpose of conducting surveys and hydrologic investigations,
and to perform such other acts as are necessary in carrying out their functions
including the power to exercise the right of eminent domain.
Art. 85. No program or project involving the appropriation, utilization,
exploitation, development, control, conservation, or protection of water
resources may be undertaken without prior approval of the Council, except
those which the council may, in its discretion, exempt.
The Council may require consultation with the public prior to the
implementation of certain water resources development projects.
Art. 86. When plans and specifications of a hydraulic structure are
submitted for approval, the government agency whose functions embrace
the type of project for which the structure is intended, shall review the plans
and specifications and recommend to the Council proper action thereon and
the latter shall approve the same only when they are in conformity with the
requirements of this Code and the rules and regulations promulgated by the
Council. Notwithstanding such approval, neither the engineer who drew up
the plans and specifications of the hydraulic structure, nor the constructor who
built it, shall be relieved of his liability for damages in case of failure thereof
by reason of defect in plans and specifications, or failure due to defect in plan
construction, within ten (10) years from the completion of the structure.
Any action to recover such damages must be brought within five (5)
years following such failure.
Art. 87. The Council or its duly authorized representatives, in the exercise
of its power to investigate and decide cases brought to its cognizance, shall
have the power to administer oaths, compel the attendance of witnesses by
subpoena duces tecum.
Non-compliance or violation of such orders or subpoena and subpoena
duces tecum shall be punished in the same manner as indirect contempt of an
inferior court upon application by the aggrieved party with the proper Court
of First Instance in accordance with the provisions of Rule 71 of the Rules of
Court.
Art. 88. The Council shall have original jurisdiction over all disputes
relating to appropriation, utilization, exploitation, development, control, con-
servation and protection of waters within the meaning and context of the provi-
sions of this Code.
The decisions of the Council on water rights controversies shall be
immediately executory and the enforcement thereof may be suspended only
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 371
SOME SPECIAL PROPERTIES
Waters
CHAPTER VIII
PENAL PROVISIONS
Art. 90. The following acts shall be penalized by suspension or revocation
of the violator’s water permit or other right to the use of water and/or a fine
of not exceeding One thousand Pesos (P1,000.00), in the discretion of the
Council:
a. Appropriation of subterranean or ground water for domestic use
by an overlying landowner without registration required by the Council.
b. Non-observance of any standard of beneficial use of water.
c. Failure of the appropriator to keep a record of water withdrawal
when required.
d. Failure to comply with any of the terms or conditions in a water
permit or a water rights grant.
e. Unauthorized use of water for a purpose other than that for which
a right or permit was granted.
f. Construction or repair of any hydraulic work or structure without
duly approved plans and specifications, when required.
g. Failure to install a regulating and measuring device for the control
of the volume of water appropriated, when required.
h. Unauthorized sale, lease, or transfer of water and/or water rights.
i. Failure to provide adequate facilities to prevent or control diseases
372 PROPERTY
when required by the Council in the construction of any work for the storage,
diversion, distribution and utilization of water.
j. Drilling of a well without permission of the Council.
k. Utilization of an existing well or ponding or spreading of water for
recharging subterranean or ground water supplies without permission of the
Council.
l. Violation of or non-compliance with any order, rules and regulation
of the Council.
m. Illegal taking or diversion of water in an open canal, aqueduct or
reservoir.
n. Malicious destruction of hydraulic works or structures valued at
not exceeding P5,000.00.
Art. 91. A. A fine of not exceeding Three Thousand Pesos (P3,000.00)
or imprisonment for not more that three (3) years, or both such fine and
imprisonment, in the discretion of the Court, shall be imposed upon any person
who commits any of the following acts:
1. Appropriation of water without a water permit, unless such
person is expressly exempted from securing a permit by the provisions
of this code;
2. Unauthorized obstruction of an irrigation canal.
3. Cultivation of river bed, sand bar or tidal flat without per-
mission.
4. Malicious destruction of hydraulic works or structure valued
at not exceeding Twenty-Five Thousand Pesos (P25,000.00).
B. A fine exceeding Three Thousand Pesos (P3,000.00) but not more
than Six Thousand Pesos (P6,000.00) or imprisonment exceeding three (3)
years but not more than six (6) years or both such fine and imprisonment in the
discretion of the Court, shall be imposed on any person who commits any of
the following acts:
1. Distribution for public consumption of water which adversely
affects the health and safety of the public.
2. Excavation or enlargement of the opening of a hot spring
without permission.
3. Unauthorized obstruction of a river or waterway, or occu-
pancy of a river bank or seashore without permission.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 373
SOME SPECIAL PROPERTIES
Waters
(P3,000.00) but not more than six thousand Pesos (P6,000.00) or imprisonment
exceeding three (3) years but not more than six years (6) years or both such
fine and imprisonment, shall prescribe in seven (7) years; and those punishable
by a fine exceeding Six Thousand Pesos (P6,000.00) but not more than Ten
Thousand Pesos (P10,000.00) or an imprisonment exceeding six (6) years but
not more than Twelve (12) years, or both such fine and imprisonment, shall
prescribe in ten (10) years.
CHAPTER IX
TRANSITORY AND FINAL PROVISIONS
Art. 95. Within two (2) years from the promulgation of this code, all
claims for a right to use water existing on or before December 31, 1974 shall be
registered with the Council which shall confirm said rights in accordance with
the provisions of this Code, and shall set their respective priorities.
When priority in time of appropriation from a certain source of supply
cannot be determined, the order of preference in the use of the waters shall be
as follows:
a. Domestic and municipal use;
b. Irrigation;
c. Power generation;
d. Fisheries;
e. Livestock raising;
f. Industrial use; and
g. Other uses.
Any claim not registered within said period shall be considered waived
and the use of the water deemed abandoned, and the water shall thereupon
be available for disposition as unappropriated waters in accordance with the
provisions of this code.
Art. 96. No vested or acquired right to the use of water can arise from
acts or omissions which are against the law or which infringe upon the rights
of others.
Art. 97. Acts and contracts under the regime of old laws, if they are
valid in accordance therewith, shall be respected, subject to the limitations
established in this Code. Any modification or extension of these acts and
contracts after the promulgation of this code, shall be subject to the provisions
hereof.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 375
SOME SPECIAL PROPERTIES
Minerals
Chapter 2
MINERALS
Art. 519. Mining claims and rights and other matters concerning
minerals and mineral lands are governed by special laws. (427a)
in public and private lands within the territory and exclusive economic
zone of the Republic of the Philippines are owned by the State.”
Small-scale mining activities, however, are governed by Republic
Act No. 7076, otherwise known as the “People’s Small-Scale Mining
Act of 1991.”
Chapter 3
TRADEMARKS AND TRADE NAMES
— oOo —
377
Title V. POSSESSION
Chapter 1
POSSESSION AND THE KINDS THEREOF
1
2 Castan, 9th ed., 401.
2
Yu v. Pacleb, G.R. No. 130316, Jan. 24, 2007, citing II Tolentino, Civil Code, 1992 ed.,
238.
3
Art. 523, NCC.
377
378 PROPERTY
to Article 531, such that the concept does not refer only to material
occupation but likewise to the fact that the thing is subjected to the
action of our will. Such being the case, it is apparent that the concept
of possession implies a relation of power or control over the object of
possession and its possessor, whether said object be things or rights.
Hence, according to Castan,4 the concept of possession connotes the
following: (1) it implies a relation between a person and things; (2) such
relation is one of power or control; and (3) such control is one of fact
which is effective but without resolving whether it carries with it or not
a title of ownership.
4
2 Castan, 9th ed., 401-402.
5
Yu v. Pacleb, supra, citing II Tolentino, Civil Code, 1992 ed., 239.
6
People v. Lian, G.R. No. 115988, March 29, 1996.
7
Id.
8
People v. Burton, G.R. No. 114396, February 19, 1997.
9
4 Manresa, 5th ed., 64.
10
US v. Tan Tayco, 12 Phil. 739; see also Footnote 17 in Yu v. Pacleb, supra, citing II To-
lentino, Civil Code, 1992 ed., 239.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 379
POSSESSION
Possession and the Kinds Thereof
that the said drug is a regulated drug.11 This crime is mala prohibita,
and, as such, criminal intent is not an essential element. However,
the prosecution must prove that the accused had the intent to possess
(animus possidendi) the drugs.12 Possession, under the law, includes
not only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate physical possession
or control of the accused.13 On the other hand, constructive possession
exists when the drug is under the dominion and control of the accused
or when he has the right to exercise dominion and control over the place
where it is found.14 Hence, the prosecution must prove that the accused
had knowledge of the existence and presence of the drug in the place
under his control and dominion and the character of the drug.15 Since
knowledge by the accused of the existence and character of the drugs
in the place where he exercises dominion and control is an internal act,
the same may be presumed from the fact that the dangerous drug is in
the house or place over which the accused has control or dominion, or
within such premises in the absence of any satisfactory explanation.16
The burden of evidence is then shifted to the accused to explain the
absence of knowledge or animus possidendi.17 In the case of People
v. Tira,18 the conviction of the appellant Connie Tira for the crime of
possession of regulated drugs was sustained by the Supreme Court
because the appellant failed to prove the absence of animus possidendi.
The Court, in the said case, explained —
“In this case, the prohibited and regulated drugs were
found under the bed in the inner room of the house of the
appellants where they also resided. The appellants had actual
and exclusive possession and control and dominion over the
house, including the room where the drugs were found by
the policemen. The appellant Connie Tira cannot escape
criminal liability for the crime charged simply and merely on
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
People of the Phil. v. Jinsir Jhur, CA-GR. No. 22842, Nov. 23, 2005, citing People v. Tira,
430 SCRA 134.
18
Supra.
380 PROPERTY
19
12 Phil. 739.
20
See Von Savigny’s Treatise on Possession; or the Jus Possessionis of the Civil Law, Sixth
Edition. Translated from the German by Sir Erskine Perry.
21
See also II Reyes and Puno, Outline of Phil. Civil Law, 90-91.
22
II Caguioa, Civil Code, 1966 ed., 163-164.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 381
POSSESSION
Possession and the Kinds Thereof
23
3 Sanchez Roman, 405-406.
24
Art. 524, NCC.
25
Art. 525, NCC.
26
Art. 526, NCC.
382 PROPERTY
In this case, the petitioner (Guadalupe Reyes) was the owner of a parcel
of land located in Project 4, Quezon City. In 1967, petitioner executed a deed
of sale over one-half of the parcel land in favor of the respondent (Juanita
Raymundo). Consequently, a new title was issued in the names of both the
petitioner and the respondent as co-owners. Thereafter respondent was
granted a P17,000.00 loan by the GSIS, where she was employed, with her
one-half (1/2) share of the property as collateral. In 1969, petitioner executed
another deed of sale in favor of the respondent over her remaining interest
27
Valverde and De Diego, for example.
28
II Tolentino, Civil Code, 1992 ed., 244.
29
Id.
30
Reyes v. Court of Appeals, G.R. No. 127608, Sept. 30, 1999.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 383
POSSESSION
Possession and the Kinds Thereof
in the property, for which reason, a new title was issued in the name of the
respondent for the entire property. It turned out that petitioner was prevailed
upon by the respondent to transfer the title to the whole property in favor of the
latter in order to obtain a loan from the GSIS pursuant to an agreement with
respondent that they would construct an apartment on the property through the
proceeds of an additional loan that respondent would secure from the GSIS
with the entire 300-square meter property as collateral, which additional loan,
however, did not materialize. In the meantime, the house situated on the lot
subject matter of the second sale was being leased out by the petitioner to the
Spouses Palacios since 1967. In 1984, petitioner allegedly refused to receive
the rentals thus prompting the Palacios spouses to file in 1985 a petition for
consignation, which resulted in a compromise agreement between the parties
within two months after its filing. It appears however that the Palacios spouses
were subsequently ejected from the premises but managed somehow to return.
When a contempt case was filed by petitioner against her lessees, respondent
intervened and claimed ownership of the property. Respondent likewise
claimed of the existence of a lease contract between her and the Palacios
spouses supposedly dated 17 March 1987 but retroactive to 1 January 1987. In
1987, the trial court dismissed the case and from then on, the Palacioses paid
rentals to respondent, prompting the petitioner to file in 1987 a case against the
respondent for the cancellation of the latter’s title to the property on the ground
that the deed of sale between them were merely simulated. The trial court ruled
in favor of the petitioner on the ground that the deeds of sale between the parties
were merely simulated, hence, void. On appeal, the Court of Appeals reversed
the decision and ruled in favor of the respondent based on the grounds, among
others, that: (1) petitioner’s cause of action had prescribed since the complaint
should have been filed either within ten (10) years from 1969 as an action to
recover title to real property, or within ten (10) years from 1970 as an action
based on a written contract; and (2) petitioner’s cause of action was barred by
laches having allowed respondent to stay in possession of the lot in question
for eighteen (18) years after the execution of the second deed of sale. Petitioner
elevated the case to the Supreme Court, which ruled in her favor, thus —
“Petitioner posits that it was only in 1987 — when respondent
intervened in the contempt case alleging to be the owner and lessor
— did her cause of action accrue; hence, her complaint filed on
23 August 1987 has not yet prescribed. Petitioner asserts that the
10 January 1970 agreement is more credible and probable than
the second deed of sale because such document contains their real
intention.
In Heirs of Jose Olviga v. Court of Appeals, we restated the
rule that an action for reconveyance of a parcel of land based on
implied or constructive trust prescribes in ten (10) years, the point
384 PROPERTY
Santos v. Manalili
475 SCRA 679 (2005)
The subject matter of this case is a parcel of land which originally formed
part of the “Furukawa Plantation” owned by a Japanese national and situated in
the District of Toril, Davao City. After the war, the land was turned over to the
31
227 SCRA 330.
32
Santos v. Manalili, 475 SCRA 679 (2005).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 387
POSSESSION
Possession and the Kinds Thereof
Philippine government and administered by the National Abaca and Other Fibers
Corporation, and thereafter by the respondent Board of Liquidators (BOL).
In 1970, Reynaldo Manalili, predecessor-in-interest of respondent Ronald C.
Manalili, filed with the BOL an application to purchase the subject property,
attaching therewith his Occupant’s Affidavit. The application was favorably
acted upon and in 1972 Manalili paid the down payment. Thereafter, Manalili
declared the land for taxation purposes. The Manalilis administered the land
before they left for Manila in 1972. After they moved to Manila, they appointed
an administrator to oversee the land and the improvements and crops they have
planted thereon, such as bananas and coconut trees. 1981, after the lapse of
nine (9) years and even as the BOL had already issued a Certification of Full
Payment endorsing the approval of the sale of the land in question to applicant
Reynaldo Manalili, petitioner Rodolfo Santos filed a protest before the BOL
and requested for an investigation. He claimed to be the actual occupant of the
property and that he introduced considerable improvements thereon, as against
respondent Manalili who was never in possession, occupation and cultivation
of the same. In ruling for the respondent Manalili, the Court explained —
33
Art. 525, NCC.
34
Carlos v. Republic of the Phil., 468 SCRA 709 (2005).
35
Id.
36
II Caguioa, Civil Code, 1966 ed., 167.
37
4 Manresa, 5th ed., 82-83, cited in II Caguioa, Civil Code, 1966 ed., 169.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 389
POSSESSION
Possession and the Kinds Thereof
38
See Arts. 540 and 1118, NCC.
39
See Arts. 1132, 2nd par. and 1137, NCC.
390 PROPERTY
40
PNB v. De Jesus, G.R. No. 149295, September 23, 2003; see also Cabal v. Cabal, G.R.
No. 153625, July 31, 2006; Ochoa v. Apeta, G.R. No. 146259, Sept. 13, 2007.
41
II Tolentino, Civil Code, 1992 ed., 248-249.
42
Resuena v. CA, 454 SCRA 42, 53 (2005); Pada-Kilario v. CA, 322 SCRA 481 (2000);
Refugia v. CA, 258 SCRA 347 (1996).
43
Baltazar v. Caridad, 17 SCRA 460. See this case in supra § 46.1.1.
44
Macasaet v. Macasaet, 439 SCRA 625 (2004).
394 PROPERTY
Court recognized the good faith of the possessor or builder beyond this
limited definition. Let us consider the cases of Macasaet v. Macasaet45
and Sarmiento v. Agana,46 for example.
In Macasaet v. Macasaet, the spouses Ismael and Teresita Macasaet
were invited by the parents of Ismael (spouses Vicente and Rosario
Macasaet) to occupy the latters’ two lots, out of parental love and a
desire to foster family solidarity. Pursuant to such invitation, Ismael
and Teresita constructed their conjugal house on the said property.
Unfortunately, an unresolved conflict terminated this situation. Out
of pique, the parents of Ismael asked them to vacate the premises, for
which reason, the children lost their right to remain on the property.
The children, however, claimed that they were builders in good faith
and therefore entitled to exercise the rights granted under Article
448 of the New Civil Code. In resolving this question, the Supreme
Court recognized that the children were bereft of any title or mode of
acquisition upon which to base their claim of being possessor-builders
in good faith, nevertheless, because of the uniqueness of the situation
and since the parents fully consented to the improvements therein
introduced, the Court considered them possessor-builders in good faith
entitled to exercise the rights granted under Article 448 of the New Civil
Code. The Court explained —
“On the other hand, when a person builds in good faith
on the land of another, the applicable provision is Article
448, which reads:
xxx xxx
This Court has ruled that this provision covers only cases
in which the builders, sowers or planters believe themselves
to be owners of the land or, at least, to have a claim of title
thereto. It does not apply when the interest is merely that of
a holder, such as a mere tenant, agent or usufructuary. From
these pronouncements, good faith is identified by the belief
that the land is owned; or that — by some title — one has the
right to build, plant, or sow thereon.
45
Supra.
46
129 SCRA 122 (1984). See digest of this case in supra § 46.3.2.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 395
POSSESSION
Possession and the Kinds Thereof
47
7 Phil. 261, 267, January 2, 1907.
48
Supra.
396 PROPERTY
49
Parilla v. Pilar, G.R. No. 167680, Nov. 30, 2006; Macasaet v. Macasaet, supra;
50
Id.
51
Geminiano v. CA, 259 SCRA 344 (1996).
52
Florentino v. CA, G.R. No. 172384, Sept. 12, 2007.
53
Pershing Tan Cueto v. CA, 148 SCRA 54 (1987).
54
Caram v. Laureta, 103 SCRA 7; Manotok Realty, Inc. v. CA, 134 SCRA 325; PNB v. De
Jesus, G.R. No. 149295, Sept. 23, 2003; see also Cabal v. Cabal, G.R. No. 153625, July 31, 2006;
Ochoa v. Apeta, G.R. No. 146259, Sept. 13, 2007.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 397
POSSESSION
Possession and the Kinds Thereof
55
Escritor, Jr. v. IAC, 155 SCRA 577.
56
Pershing Tan Cueto v. CA, supra.
57
Id.
58
Manotok Realty, Inc. v. CA, 134 SCRA 325; see also Leung Yee v. FL Strong Machinery
Co., 37 Phil. 644.
59
J.M. Tuason & Co. v. Lecardo, et al., CA-G.R. No. 25477-R, July 24, 1962; J.M. Tuason
& Co., Inc. v. Manuel Abundo, CA-G.R. No. 29701-R, November 18, 1968; Leabres v. CA, 146
SCRA 158 (1986).
60
De Guzman v. Rivera, 4 Phil. 620.
61
Art. 526, 3rd par., NCC.
398 PROPERTY
Kasilag v. Roque
69 Phil. 217
In this case, Ambrosio mortgaged in favor of the petitioner the
improvements she made on her land acquired by a homestead patent. When
Ambrosio was not able to pay the interest on the loan, she and the petitioner
verbally agreed that she would convey to the latter the possession of the land
subject to the condition that the petitioner would not collect the interest, would
introduce improvements thereon and would be entitled to the fruits. Pursuant
to such verbal agreement, the petitioner did all three conditions. After the death
of Ambrosio, her heirs sought to annul the contracts which she entered into
with the petitioner on the ground that the same were in violation of Section
116 of the Public Land Act prohibiting any alienation or encumbrance of lands
acquired under the free patent for a period of five years from the date of the
issuance of the patent. This law, however, allows the pledge or mortgage of the
improvements thereon. When the case reached the appellate court, the Court of
Appeals modified the judgment of the lower court by declaring the petitioner
possessor in bad faith for taking the land in violation of Section 116 of the
Public Land Act. In resolving the issue of whether petitioner was a possessor
in good faith or not, the Court held —
62
4 Manresa, 100-102, cited in Kasilag v. Roque, 69 Phil. 217.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 399
POSSESSION
Possession and the Kinds Thereof
63
Art. 527, NCC.
64
See Rule 131, Sec. 3(a), Rules of Court.
65
See Pacific Banking Corp. v. CA, 173 SCRA 102.
66
Escritor, Jr. v. IAC, 155 SCRA 577.
67
Art. 529, NCC.
68
Art. 528, NCC; Lacap v. Lee, G.R. No. 142131, December 11, 2002.
69
Ballesteros v. Abion, G.R. No. 143361, February 09, 2006, citing Tacas v. Tobon, 53 Phil.
356 (1929).
70
Ortiz v. Kayanan, 92 SCRA 146 (1979).
71
Wong v. Carpio, 203 SCRA 118 (1991).
72
53 Phil. 356 (1929); see also Mindanao Academy, Inc. v. Yap, 13 SCRA 190 (1965); Ortiz
v. Cayanan, 92 SCRA 146 (1979); Wong v. Carpio, 203 SCRA 118 (1991); Maneclang v. Baun,
400 PROPERTY
208 SCRA 179 (1992); Suobiron v. CA, 250 SCRA 184 (1995); and Ballesteros v. Abion, G.R.
No. 143361, February 9, 2006.
73
Maneclang v. Baun, 208 SCRA 179 (1992).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 401
POSSESSION
Possession and the Kinds Thereof
23, 1900, and July 11, 1903, must be understood, all of them
holding that even the possessor in good faith must return the
fruits received from the time the answer to the complaint
was filed, that is, from the time he became aware that he
was in undue possession. (Manresa, Commentaries on the
Spanish Civil Code, vol. 4, pp. 270, 271.)
The interruption of good faith on the part of the possessor need
not occur by reason of initiation of legal proceedings. As earlier stated,
whatever may be the cause or the fact from which it can be deduced
that the possessor has knowledge of the defects of his title or mode
of acquisition, it must be considered sufficient to show bad faith.74 In
one case,75 for example, the receipt of a letter from the daughter of the
plaintiff advising defendant to desist from planting coconuts on a land
in the possession of defendant, and which letter the defendant answered
by saying that she did not intend to plant coconuts on the land belonging
to plaintiff, was considered as the reckoning point for the interruption
of good faith. In this case, it was held that the possession in bad faith of
the defendant began from the receipt of such letter.
It is only in case of absence of facts from which the interruption of
good faith may be determined that such interruption shall be reckoned
from the date of receipt of the summons or from the filing of the answer,
as the case may be.
Art. 530. Only things and rights which are susceptible of being ap-
propriated may be the object of possession. (437)
74
Wong v. Carpio, 203 SCRA 118 (1991).
75
Ortiz v. Fuentebella, 27 Phil. 537.
76
Art. 530, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 403
POSSESSION
Possession and the Kinds Thereof
77
See Art. 1347, NCC.
78
See Arts. 419 to 425, NCC.
79
4 Castan, 9th ed., 4430-445; see also II Caguioa, Civil Code, 1966 ed., 174 and II Reyes
and Puno, Outline of Phil. Civil Law, 95.
404 PROPERTY
Chapter 2
ACQUISITION OF POSSESSION
80
Art. 531, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 405
POSSESSION
Acquisition of Possession
goods are placed in the bag of a person by another without the former’s
knowledge and consent, the former is not considered a possessor in law
because of the absence of intent to possess the goods.
81
See Art. 714, NCC.
406 PROPERTY
82
4 Manresa, 5th ed., 123-124.
83
Resolution of the Supreme Court in Gonzalez v. CA, G.R. No. 145914, June 20, 2001.
84
Ramos v. Director of Lands, 39 Phil. 175 (1918).
85
Resolution of the Supreme Court in Gonzalez v. CA, G.R. No. 145914, June 20, 2001,
citing Ramos v. Director of Lands, supra.
86
Supra.
87
51 Phil. 302 (1927).
88
236 SCRA 307 (1994).
89
414 SCRA 226 (2003).
90
Supra.
91
65 Phil. 367 (1938).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 407
POSSESSION
Acquisition of Possession
92
60 Phil. 114, 133 (1934).
93
68 SCRA 177, 193 (1975).
94
4 Manresa, 5th ed., 133.
95
7 Phil. 409.
408 PROPERTY
where the goods were stored was sufficient to show that the depositary
was legally placed in possession of the goods.
Tradicion longa manu, on the other hand, is effected by the trans-
feror pointing out to the transferee the things which are being trans-
ferred.
96
4 Manresa, 5th ed., 134-136.
97
7 Phil. 498.
98
Art. 524, NCC.
99
Art. 532, NCC.
100
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 409
POSSESSION
Acquisition of Possession
101
Art. 532, NCC.
102
II Tolentino, Civil Code, 1992 ed., 263-264.
410 PROPERTY
103
Art. 533, NCC.
104
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 411
POSSESSION
Acquisition of Possession
was included in the proceedings for the settlement of the estate of “A”
and placed under the administration of “B,” one of A’s two heirs who
continued to cultivate the subject property. Assuming that the settlement
proceedings lasted four years, during which “B” validly renounced his
inheritance while “C” (the other heir) accepted the inheritance, the
former shall be deemed never to have possessed the property while the
latter shall be deemed its possessor from the moment of the death of A,
even if he was not in actual physical possession of the property from
the time of “A’s” death up to his acceptance of the inheritance. Further,
such transfer of possession from “A” to “C” is deemed continuous and
uninterrupted. Hence, “C” will acquire ownership over the property
through prescription upon his acceptance of the inheritance since the
period required for extraordinary prescription is thirty years.105
105
See Art. 1137, NCC.
106
Art. 526, 2nd par., NCC.
107
Escritor, Jr. v. IAC, 155 SCRA 577 (1987).
108
Id., citing II Tolentino, Civil Code, 1983 ed., 234.
412 PROPERTY
affecting the title or mode of acquisition of the decedent, the heir shall
be considered a possessor in good faith because good faith is always
presumed.109 However, the effects of possession in good faith shall not
benefit the heir except from the date of death of the decedent.110
Art. 535. Minors and incapacitated persons may acquire the posses-
sion of things; but they need the assistance of their legal representatives
in order to exercise the rights which from the possession arise in their
favor. (443)
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of the holding
414 PROPERTY
of a thing, must invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a)
Art. 537. Acts merely tolerated, and those executed clandestinely
and without the knowledge of the possessor of a thing, or by violence, do
not affect possession. (444)
111
Art. 536, NCC.
112
Cequeña v. Bolante, G.R. No. 137944, April 6, 2000, citing Ayala de Roxas v. Maglonso,
8 Phil. 745 (1906).
113
Heirs of Pedro Laurora, et al. v. Sterling Technopark III, et al., G.R. No. 146815, April
9, 2003, citing Muñoz v. Court of Appeals, 214 SCRA 216, September 23, 1992; Joven v. Court
of Appeals, 212 SCRA 700, August 20, 1992; German Management and Services, Inc. v. Court of
Appeals, supra.; Supia and Batioco v. Quintero and Ayala, 59 Phil. 312, December 23, 1933.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 415
POSSESSION
Acquisition of Possession
114
Id., citing Gener v. De Leon, 367 SCRA 631 (2001) and Ceremonia v. CA, 314 SCRA
731.
115
Villaflor v. Reyes, 22 SCRA 392, January 30, 1968; Pitargue v. Sorilla, 92 Phil. 5, Sept.
17, 1952.
116
Heirs of Pedro Laurora, et al. v. Sterling Technopark III, et al., supra.
416 PROPERTY
claim of ownership is not being made in order to prove prior possession, the
ejectment court cannot intrude or dwell upon the issue of ownership. The Court
added —
Notwithstanding the actual condition of the title to the
property, a person in possession cannot be ejected by force,
violence or terror — not even by the owners. If such illegal manner
of ejectment is employed, as it was in the present case, the party
who proves prior possession — in this case, petitioners — can
recover possession even from the owners themselves.
Granting arguendo that petitioners illegally entered into and
occupied the property in question, respondents had no right to take
the law into their own hands and summarily or forcibly eject the
occupants therefrom.
Verily, even if petitioners were mere usurpers of the land
owned by respondents, still they are entitled to remain on it
until they are lawfully ejected therefrom. Under appropriate
circumstances, respondents may file, other than an ejectment suit,
an accion publiciana — a plenary action intended to recover the
better right to possess; or an accion reivindicatoria — an action to
recover ownership of real property.
The availment of the aforementioned remedies is the legal
alternative to prevent breaches of peace and criminal disorder
resulting from the use of force by claimants out to gain possession.
The rule of law does not allow the mighty and the privileged to
take the law into their own hands to enforce their alleged rights.
They should go to court and seek judicial vindication.
119
Cuaycong v. Benedicto, 37 Phil. 781.
120
Larena v. Mapili, 408 SCRA 484, 492.
121
Cuaycong v. Benedicto, supra.
122
Id.
123
Go, Jr. v. CA, 362 SCRA 755, 767.
124
Lopez v. David, supra; Arcal v. Court of Appeals, supra, p. 825; Villaluz v. Court of Ap-
peals, 344 Phil. 77, 89, Sept. 5, 1997.
125
439 SCRA 625 (2004).
126
131 Phil. 365, March 27, 1968.
418 PROPERTY
127
See further discussion of this case in supra § 83.1.1.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 419
POSSESSION
Acquisition of Possession
128
Art. 537, NCC.
129
Black’s Law Dictionary, 5th ed., 225.
420 PROPERTY
130
Art. 538, NCC.
131
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 421
POSSESSION
Acquisition of Possession
acts not known to the previous possessor, the previous possessor shall
be deemed as the present possessor because his possession was not
affected. The same is true in case of possession by mere tolerance of
the owner, in which case, the actual possessor is not deemed as the
“present possessor” because his possession does not affect the owner’s
possession.
In applying the foregoing rule of preference, the case of Cequeña
v. Bolante132 is instructive. The facts of this case are presented below:
Cequeña v. Bolante
G.R. No. 137944, April 6, 2000
This case involves a parcel of land situated in Binangonan, Rizal and
covered by a tax declaration. Prior to 1954, the land was originally declared
for taxation purposes in the name of Sinforoso Mendoza, father of respondent
Honorata Mendoza Bolante. Sinforoso was the occupant of the said property
until his death in 1930. When Sinforoso died, his brother (Margarito) took
possession of the land and cultivated the same with his son, Miguel. At the
same time, respondent and her mother continued residing on the land. When
respondent came of age in 1948, she paid the realty taxes on the land for the
years 1932 up to 1948. In 1953, Margarito declared the land for taxation
purposes in his name and paid the realty taxes beginning 1952. When Margarito
died, Miguel continued cultivating the land. During the time that Margarito
and Miguel were cultivating the land, respondent and her mother were living
on the same land. In 1985, Miguel was physically ousted from the property by
the respondent. Litigations thereafter ensued between the respondent and the
petitioners (daughters of Margarito and sisters of Miguel) on the question of
who shall be considered as the preferred possessor.
The lower court in the said case ruled in favor of the petitioners on
the strength of the tax declaration of their father (Margarito). On appeal,
the appellate court reversed the ruling of the trial court and ruled that the
respondent was the preferred possessor under Article 538 of the Civil
Code because she was in notorious, actual, exclusive and continuous
possession of the land since 1985. Petitioners disputed this ruling. They
contended that she came into possession through force and violence,
contrary to Article 536 of the Civil Code. On this particular issue, the
Supreme Court made the following pronouncements —
132
G.R. No. 137944, April 6, 2000.
422 PROPERTY
father’s tax declaration of the subject lot since 1926, she has
been in possession thereof for a longer period. On the other
hand, petitioners’ father acquired joint possession only in
1952.”
The Court emphasized, however, that Article 538 of the New
Civil Code settles only the question of possession and that possession is
different from ownership. With respect to the question on ownership, the
same should be established in one of the ways provided by law. In this
case, according to the Court, the question of ownership could be settled
by determining who between the claimants has proven acquisitive
prescription. The Court ruled again in favor of the respondent —
“Ownership of immovable property is acquired by
ordinary prescription through possession for ten years. Being
the sole heir of her father, respondent showed through his tax
receipt that she had been in possession of the land for more
than ten years since 1932. When her father died in 1930,
she continued to reside there with her mother. When she got
married, she and her husband engaged in kaingin inside the
disputed lot for their livelihood.
Respondent’s possession was not disturbed until
1953 when the petitioners’ father claimed the land. But by
then, her possession, which was in the concept of owner,
public, peaceful, and uninterrupted had already ripened
into ownership. Furthermore she herself, after her father’s
demise, declared and paid realty taxes for the disputed land.
Tax receipts and declarations of ownership for taxation, when
coupled with proof of actual possession of the property, can
be the basis of a claim for ownership through prescription.
In contrast, the petitioners, despite thirty-two years of
farming the subject land, did not acquire ownership. It is
settled that ownership cannot be acquired by mere occupation.
Unless coupled with the element of hostility toward the true
owner, occupation and use, however long, will not confer
title by prescription or adverse possession. Moreover, the
petitioners cannot claim that their possession was public,
peaceful and uninterrupted. Although their father and
brother arguably acquired ownership through extraordinary
424 PROPERTY
Chapter 3
EFFECTS OF POSSESSION
133
U.S. v. Rapinan, 1 Phil. 294.
134
Art. 539, NCC.
135
Phil. Trust Co. v. CA, 320 SCRA 719 (1999), citing II Tolentino, Civil Code, 241 (1987),
citing 3 Sanchez-Roman 438-439, 2 Navarro Amandi 170 and 4 Manresa 214.
136
See Art. 433, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 425
POSSESSION
Effects of Possession
is shown that there is another person with a better right.137 The fact of
possession in itself, therefore, has a positive value and is endowed with
a distinct standing of its own in the law of property.138 True, by this
principle of respect for the possessory status, a wrongful possessor may
at times be upheld by the courts, but this is only temporary and for one
sole and special purpose, namely, the maintenance of public order.139
The protection is only temporary because it is intended that as soon as
the lawless act of dispossession has been suppressed, the question of
ownership or of possession de jure is to be settled in the proper court
and in a proper action.140 The larger and permanent interests of property
require that such rare and exceptional instance of preference in the
courts of the actual but wrongful possessor be permitted.141
137
II Caguioa, Civil Code, 1966 ed., 165.
138
Manuel v. CA, G.R. No. 95469, July 25, 1991.
139
Id.
140
Id.
141
Id.
142
German Management & Services, Inc. v. CA, 177 SCRA 495 (1989).
143
Id.
426 PROPERTY
144
Torre, et al. v. Hon. J. Querubin, et al., 101 Phil. 53 (1957).
145
Devesa v. Arbes, 13 Phil. 273; Delgado v. Carael, 37 Phil. 161.
146
Report of the Code Commission, 98.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 427
POSSESSION
Effects of Possession
147
Art. 1674, NCC.
148
I Regalado, Remedial Law Compendium, 6th ed., 46, 786.
428 PROPERTY
Art. 540. Only the possession acquired and enjoyed in the concept
of owner can serve as a title for acquiring dominion. (447)
Art. 541. A possessor in the concept of owner has in his favor the
legal presumption that he possesses with a just title and he cannot be
obliged to show or prove it. (448a)
Art. 542. The possession of real property presumes that of the mov-
ables therein, so long as it is not shown or proved that they should be
excluded. (449)
149
Art. 433, NCC.
150
Art. 541, NCC.
151
Art. 434, NCC.
152
Huchison v. Buscas, G.R. No. 158554, May 26, 2005.
430 PROPERTY
153
4 Manresa 245-246; 248, cited in II Tolentino, Civil Code, 1992 ed., 283-284.
154
Esguerra v. Manantan, G.R. No. 158328, February 23, 2007; see also Marcelo v. Court
of Appeals, 305 SCRA 800, 807-808 (1999).
155
Art. 1118, NCC.
156
Art. 540, NCC.
157
Esguerra v. Manantan, supra; also in Marcelo v. Court of Appeals, supra, citing Mari-
ategui v. CA, 205 SCRA 337; Adille v. CA, 157 SCRA 455; Bargayo v. Camumot, 40 Phil. 857;
Laguna v. Levantino, 71 Phil. 566.
158
Art. 1119, NCC.
159
Esguerra v. Manantan, supra; also in Marcelo v. Court of Appeals, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 431
POSSESSION
Effects of Possession
trial, a decision was rendered in favor of the heirs of Jose Marcelo; however,
on appeal to the Court of Appeals, the same was reversed. Hence, this petition
assailing the decision of the Court of Appeals which ruled that the action initi-
ated by Marcelo’s heirs would not prosper on the theory that Flores already has
acquired ownership of the disputed land by ordinary acquisitive prescription.
According to Marcelo’s heirs, the parcel of land subject of litigation was
originally owned by Jose Marcelo and they had been in continuous possession
thereof since 1939. In 1967, they discovered that a portion of said property had
been encroached upon by Cruz, but Cruz still sold his property, including the
encroached parcel of land to Flores. Cruz, however, alleged that the disputed
land is part of the land he acquired in 1960 from the heirs of Jorge Sarmiento,
which he (Cruz) had surveyed and declared for taxation purposes. Then, in
1968, he sold the whole lot to Flores who then occupied and cultivated the
same.
The contract executed by Cruz and the heirs of Sarmiento includes the
encroached property, as found by the trial court and the appellate court. And
when Cruz sold the land to Flores, the latter immediately took possession
of the same to the exclusion of all others and promptly paid the realty taxes
thereon. From that time on, Flores had been in possession of the entire area
in the concept of an owner and holding it in that capacity for almost 14 years
before the heirs of Marcelo initiated their complaint in 1982. The records of
the case supported the holding of the appellate court that the requirements
for ordinary prescription have been duly met Flores took possession of the
controverted property in good faith and with just title because the said portion
was an integral part of the bigger tract of land which he bought from Cruz.
Further, Flores’ possession was not only in the concept of an owner but also
public, peaceful and uninterrupted. Hence, the Court found no cogent reasons
to reverse the findings of the appellate court and thus gave its affirmance to the
assailed decision.
§ 90. Co-possession
As discussed in supra § 87 in relation to Article 538, the law
does not recognize the possibility of possession de facto residing at the
432 PROPERTY
160
Art. 538, NCC.
161
Art. 543, NCC.
162
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 433
POSSESSION
Effects of Possession
the land in the concept of owner and adverse to the interest of the co-
possessors and continued to possess the same until the co-possessors
decided to divide the property possessed in common on the eleventh
year. In this situation, the interruption of possession in connection with
one third of the area of the land will prejudice not only “C” but all the
co-possessors. Hence, the co-possessors can claim ownership only of
two-third of the area through acquisitive prescription and only this area
can be the subject of partition among the co-possessors.
will arise with respect to his rights over the fruits. This question is
answered by the provisions of Articles 544, 545 and 549 of the New
Civil Code. Pursuant to these articles, the rights of possessors in relation
to the fruits shall depend on his good faith or bad faith and on whether
such fruits have already been received by him or are still pending:
163
Ballesteros v. Abion, G.R. No. 143361, February 9, 2006, citing Tacas v. Tobon, 53 Phil.
356 (1929).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 435
POSSESSION
Effects of Possession
164
Ortiz v. Kayanan, 92 SCRA 146 (1979).
165
Wong v. Carpio, 203 SCRA 118 (1991).
166
53 Phil. 356 (1929); see also Mindanao Academy, Inc. v. Yap, 13 SCRA 190 (1965);
Ortiz v. Cayanan, 92 SCRA 146 (1979); Wong v. Carpio, 203 SCRA 118 (1991); Maneclang v.
Baun, 208 SCRA 179 (1992); Suobiron v. CA, 250 SCRA 184 (1995) and Ballesteros v. Abion,
G.R. No. 143361, February 9, 2006.
167
Maneclang v. Baun, 208 SCRA 179 (1992).
436 PROPERTY
B. Pending Fruits
[91.4] Rule
The rights of a possessor in good faith in relation to natural and
industrial fruits which are still pending — or those that have not yet
been gathered or severed — are governed by the provisions of Article
545 of the New Civil Code. Note that the concept of pending fruits can
only apply to natural and industrial fruits but not to civil fruits since the
latter accrue on a daily basis.
According to Article 545, if at the time the good faith ceases,
there should be pending natural or industrial fruits, the possessor and
the owner shall have a right to a part of the net harvest and each shall
divide the expenses of cultivation, both in proportion to the time of their
respective possessions. If the owner does not want to pay his share of
the expenses incurred in connection with the cultivation, he may, at his
option, allow the possessor to finish the cultivation and gathering of
the growing fruits (in lieu of his part of such expenses), in which case,
the owner will not have any share in the harvest. If the owner chooses
this option and the possessor refuses to accept the concession “for any
reason whatever,” the latter shall lose the right to be indemnified in any
other manner. In other words, the possessor must accept the owner’s
choice otherwise he will lose the right to be indemnified and this rule
will apply even if the value of the fruits are less than the amount of the
expenses incurred.
With respect to charges, the same shall also be divided by the
possessor and the owner, in proportion to the time of their respective
possessions. According to Manresa,168 the term “charges” in Article 545
is understood to be those expenses incurred not on the thing itself, but
because of it or on account of it. An example of charges are the taxes
incurred, whether on the capital or on the fruits.
168
4 Manresa, 5th ed., 243.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 437
POSSESSION
Effects of Possession
169
3 Manresa, 6th ed., p. 191.
170
Aquino v. Tañedo, 39 Phil. 517; Alcala v. Hernandez, 32 Phil. 628; Tolentino v. Vitug, 39
Phil. 126; Calma v. Calma, 56 Phil. 102.
438 PROPERTY
B. Pending Fruits
[91.7] Rule
Note that the application of Article 549 is limited only to cases
where the fruits have already been gathered or severed since the article
speaks of “fruits received.” Hence, if the legitimate possessor is able to
recover the property from a possessor in bad faith at a time when the
fruits are still pending, it is not Article 549 that will apply but Article
449 of the New Civil Code. As a consequence, the possessor in bad faith
will not be entitled to any reimbursement of the expenses he incurred
in relation to the fruits, including the expenses he incurred for its
production and preservation because these expenses are reimbursable to
171
See II Caguioa, Civil Code, 1966 ed., 205, citing 4 Manresa, 5th ed., 252-253; Director
of Lands v. Abagat, 53 Phil. 147.
172
See supra § 42.4.
173
See Art. 452, NCC.
174
See Art. 546, 1st par., NCC, in relation to Art. 549, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 439
POSSESSION
Effects of Possession
the possessor in bad faith if the fruits have already been received by the
latter. However, the possessor in bad faith is still entitled to recover the
necessary expenses incurred by him for the preservation of the land175 or
the thing176 which bore the fruit.
175
See Art. 452, NCC.
176
See Art. 546, 1st par., NCC, in relation to Art. 549, NCC.
440 PROPERTY
177
Art. 546, 1st par., NCC.
178
Arts. 546, 2nd par. and 547, NCC.
179
Arts. 548 and 549, NCC.
180
4 Manresa 258.
181
Scaevola, Comentarios al Codigo Civil, 408.
182
Rivera v. Roman Catholic Archbishop of Manila, 40 Phil. 717.
183
Angeles v. Lozada, 54 Phil. 185.
184
Alburo v. Villanueva, 7 Phil. 277.
185
4 Manresa 271-272.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 441
POSSESSION
Effects of Possession
186
II Tolentino, Civil Code, 1992 ed., 294.
187
See Art. 547, NCC.
188
Valenzuela v. Lopez, 51 Phil. 279.
189
Gongon v. Tiangco, (CA) 36 O.G. 822.
190
4 Manresa 242.
191
Rivera v. Roman Catholic Church, supra.
192
Robles v. Lizarraga, 42 Phil. 584.
193
Art. 546, 1st par., NCC.
194
Id.
195
Id.
442 PROPERTY
196
Art. 546, 2nd par., NCC.
197
Id.
198
Id.
199
Art. 547, NCC.
200
II Caguioa, Civil Code, 1966 ed., 202.
201
Id., citing 4 Manresa 260.
202
Art. 547, NCC.
203
MWSS v. CA, 143 SCRA 623, citing Paras (1984) Vol. II, pp. 436-437; Padilla (1972),
Vol. II, pp. 457-458; Caguioa (1966), Vol. II, p. 201; Jurado (1981), Civil Law Reviewer, p. 250;
Tolentino (1972), Vol. II, p. 547.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 443
POSSESSION
Effects of Possession
of the New Civil Code, only a possessor in good faith may remove
useful improvements if this can be done without damage to the principal
thing and if the person who recovers the possession does not exercise
the option of reimbursing the useful expenses.204
204
Id.
444 PROPERTY
205
Ortiz v. Cayanan, 92 SCRA 146 (1979); Nuguid v. CA, 452 SCRA 243 (2005).
206
Id.
207
Id.
208
Nuguid v. CA, supra., citing San Diego v. Hon. Montesa, 6 SCRA 208, 210 (1962).
209
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 445
POSSESSION
Effects of Possession
the right to the expenses and the right to the fruits both pertain to the
possessor, making compensation juridically impossible; and one cannot
be used to reduce the other.210 Pending reimbursement of the amount due
him, the possessor in good faith is likewise entitled to have his right
recorded in the certificate of title as an encumbrance on the property
so that whoever may get the property will be forewarned of his right to
such retention and refund.211
210
Id.
211
Atkins Kroll & Co. v. Domingo, 46 Phil. 362.
212
244 SCRA 407 (1995).
213
Rivera v. Roman Catholic Archbishop of Manila, 40 Phil. 717 (1920), cited in Pecson
v. CA, supra.
214
Arts. 548 and 549, NCC.
215
Id.
446 PROPERTY
216
Art. 548, NCC.
217
Art. 549, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 447
POSSESSION
Effects of Possession
Art. 550. The costs of litigation over the property shall be borne by
every possessor. (n)
Art. 551. Improvements caused by nature or time shall always in-
sure to the benefit of the person who has succeeded in recovering pos-
session. (456)
Art. 552. A possessor in good faith shall not be liable for the dete-
rioration or loss of the thing possessed, except in cases in which it is
proved that he has acted with fraudulent intent or negligence, after the
judicial summons.
A possessor in bad faith shall be liable for deterioration or loss in
every case, even if caused by a fortuitous event. (457a)
Art. 553. One who recovers possession shall not be obliged to pay
for improvements which have ceased to exist at the time he takes posses-
sion of the thing. (458)
218
Art. 554, NCC.
219
Id.
220
Art. 553, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 449
POSSESSION
Effects of Possession
[99.1] Abandonment
He who has a right may renounce it. This act by which thing is
voluntary renounced constitutes an abandonment.221 However, for a
property to be considered abandoned under the law, it is necessary that
the spes recuperandi (hope of recovery or recapture) is gone and the
animus revertendi (intent to recover) is finally given up.222 Certainly,
the possessor of a thing cannot be held to have abandoned the same
until at least he has some knowledge of the loss of its possession or of
the loss of the thing.223 Hence, there is no real intention to abandon a
property when, as in the case of a shipwreck or a fire, things are thrown
into the sea or on the highway.224 To be effective, it is necessary that the
abandonment be made by a possessor in the concept of an owner.225
US v. Laurente Rey
8 Phil. 500 (1907)
In this case, three boxes containing money, amounting to at least 25,000
pesos, were on board the steamer Cantabria. The ship, however, was totally
wrecked off the small Island of Mababuy. Defendant Laurente Rey and several
others discovered the existence and location of the wrecked steamer and took
from the boxes the sum of 15,000 pesos. Defendant Rey was later on charged
with the crime of robbery. For his defense, defendant Rey contended that the
property was abandoned property and therefore, granting that he had taken
possession of the same, he was not guilty of the crime of robbery when he
appropriated it to his own use. When the case reached the Supreme Court, it
221
4 Manresa 291, cited in US v. Rey, 8 Phil. 500 (1907).
222
US v. Rey, supra.
223
Id.
224
4 Manresa 291, cited in US v. Rey, supra.
225
4 Manresa, 5th ed., 277.
450 PROPERTY
was held that there was no abandonment of the property and that defendant
Rey was guilty of the crime of robbery. The Court explained —
The evidence shows, if it can be believed, that the defendant
and his companions entered the wrecked ship and removed
therefrom the said money and appropriated the same to his own use
in about twenty-four hours after the time of sinking of the said ship.
Can one be charged with the abandonment of his property without
even knowing that the same has passed out of his possession or has
been lost? We are of the opinion, and so hold, that this question
must be answered in the negative.
Manresa, in his Commentaries upon the provisions of the
Civil Code, says (vol. 4, p. 291):
He who has a right may renounce it. This act by which thing
is voluntary renounced constitutes an abandonment. There is no
real intention to abandon a property when, as in the case of a ship-
wreck or a fire, things are thrown into the sea upon the highway.
Certainly the owner of the property cannot be held to have
abandoned the same until at least he has some knowledge of the
loss of its possession or of the loss of the thing.
Property cannot be considered abandoned under the law and
the possession left vacant for the finder until the spes recuperandi
is gone and the animus revertendi is finally given up. (The Ann L.
Lockwood, 37 Fed. Rep., 233.)
The theory of abandonment on the part of the owners of
the money stolen is fully refuted by the fact that some weeks
after the wreck of the said ship they sent men to the place of the
wreck for the purpose of recovering the property which belonged
to them, which was on board the ship at the time of her sinking.
The mere fact that cargo is sunk with a ship wrecked at sea by no
means deprives the owner of said cargo of his property therein.
The owner certainly still had the right to reclaim such property
and to recover the same if possible. If it should be recovered by
others, the real owner would be entitled to recover its value less the
necessary expense of recovering the same and carrying it shore by
the most approved appliances for that purpose by others. (Murphy
v. Dunham, 38 Fed. Rep., 503.)
If the defendant and his companions had recovered the cargo
from the sunken ship for the benefit of the owners of the same,
he might have been entitled to compensation of his labor, but
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 451
POSSESSION
Effects of Possession
when he entered the sunken ship and took therefrom, by force, the
property of another before actual abandonment by the owner and
appropriated the same to his own use, he was, under the provisions
of the Penal Code in force in the Philippine Islands, guilty of the
crime of robbery.”
[99.2] Assignment
Whereas abandonment involves the giving up of possession of a
thing absolutely, without reference to any particular person or purpose
so that the same may now be appropriated by the next comer or finder,
assignment, on the other hand, involves relinquishment of possession
in favor of a definite or specified transferee. It therefore involves
the transfer of all the rights of the possessor to another person. For
assignment to be validly made, it is necessary that the assignor be in the
concept of owner and that he has the capacity to alienate.226
226
See 4 Manresa, 5th ed., 277.
227
Art. 1189, par. (2), NCC.
228
4 Manresa, 5th ed., 273.
229
Art. 555(4), NCC.
230
Id.
452 PROPERTY
231
Sec. 1, Rule 70, 1997 Rules of Civil Procedure.
232
Id.
233
Encarnacion v. Amigo, G.R. No. 169793, Sept. 15, 2006.
234
Id.
235
Bishop of Cebu v. Mangaron, G.R. No. L-1748, June 1, 1906.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 453
POSSESSION
Effects of Possession
acts which are merely tolerated and those executed clandestinely and
without the knowledge of the possessor or through violence as long as
there is a possessor who objects thereto. In the aforesaid circumstances,
only possession as a fact (possession de facto) is affected but not the
real right of possession. As a consequence, the real right of possession
may not be lost through any of said means.
In paragraph 4 of Article 555, what is lost after the lapse of ten
(10) years is possession de jure, not necessarily the ownership of the
property. Ownership and possession are distinct concepts. For ownership
to be lost through possession by another, it must be in the concept of an
owner, public, peaceful and uninterrupted.236 If the possession is in this
nature, the same shall ripen into ownership over a real property after the
lapse of ten years if coupled with a just title or good faith on the part of
the possessor.237 If the possession of this nature last for thirty (30) years,
ownership over a real property is also acquired without need of just title
or of good faith.238
236
Art. 1118, NCC.
237
Art. 1134, NCC.
238
Art. 1137, NCC.
239
Art. 556, NCC.
454 PROPERTY
240
See Art. 433, NCC.
241
Art. 541, NCC.
242
Art. 559, 1st par., NCC.
243
EDCA Publishing & Distributing Corp. v. Santos, 184 SCRA 614 (1990).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 455
POSSESSION
Effects of Possession
244
Sotto v. Enage (CA), 43 O.G. 5075.
245
Art. 559, 1st par., NCC.
246
Aznar v. Yapdiangco, 13 SCRA 486 (1965).
247
Id., citing Del Rosario v. Lucena, 8 Phil. 535; Varela v. Finnick, 9 Phil. 482; Varela v.
Matute, 9 Phil. 479; Arenas v. Raymundo, 19 Phil. 46. Tolentino, id., Vol. II, p. 261.
248
Art. 559, par. 2, NCC.
249
II Tolentino, Civil Code, 1992 ed., 310.
456 PROPERTY
250
Art. 719, NCC.
251
Art. 308, par. (1), RPC.
252
Art. 559, par. 2, NCC.
253
Aznar v. Yapdiangco, 13 SCRA 486 (1965).
254
1 Bonet 234; 2-II Colin & Capitant 947-948.
255
See II Caguioa, Civil Code, 1966 ed., 216.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 457
POSSESSION
Effects of Possession
Aznar v. Yapdiangco
13 SCRA 486 (1965)
In May, 1959, Teodoro Santos advertised in two metropolitan papers the
sale of his Ford Fairlane 500. In the afternoon of May 28, 1959, a certain L. De
Dios, claiming to be a nephew of Vicente Marella, went to the Santos residence
to answer the ad. However, Teodoro Santos was out during this call and only
his son, Ireneo Santos, received and talked with De Dios. The latter told the
young Santos that he had come in behalf of his uncle, Vicente Marella, who
was interested to buy the advertised car. On being informed of this, Teodoro
Santos instructed his son Ireneo to see the said Vicente Marella the following
day at his given address. The following day, Ireneo Santos went to the said
address. At this meeting, Marella agreed to buy the car for P14,700.00 on
the understanding that the price would be paid only after the car had been
registered in his name. Pursuant to such condition, Ireneo Santos transferred
the registration of the car in the name of Marella even without the payment of
the purchased price. When Ireneo Santos turned over to Marella the registration
papers and a copy of the deed of sale and demanded for the payment of the
purchase price, Marella begged off to be allowed to secure the money from
a sister supposedly living in another place. Thereafter, Marella ordered L. De
Dios to go to the said sister and suggested that Ireneo Santos go with him.
At the same time, Marella requested the registration papers and the deed of
sale from Ireneo Santos on the pretext that he would like to show them to his
lawyer. Trusting the good faith of Marella, Ireneo handed over the same to the
latter and thereupon, in the company of L. De Dios and another unidentified
person, proceeded to the alleged house of Marella’s sister. At a certain place
on Azcarraga Street, Ireneo Santos and L. De Dios alighted from the car and
entered a house while their unidentified companion remained in the car. Once
inside, L. De Dios asked Ireneo Santos to wait at the sala while he went inside a
room. That was the last that Ireneo saw of him. For, after a considerable length
of time waiting in vain for De Dios to return, Ireneo went down to discover
that neither the car nor their unidentified companion was there anymore. Going
back to the house, he inquired from a woman he saw for L. De Dios and he was
told that no such name lived or was even known therein. Whereupon, Ireneo
256
4 Manresa, 301-302, cited in II Caguioa, Civil Code, 1966 ed., 216.
257
See Cruz v. Pahati, 52 O.G. 3253; Aznar v. Yapdiangco, 13 SCRA 486 (1965).
458 PROPERTY
Santos rushed to the alleged house of Marella to see the latter. He found the
house closed and Marella gone. Finally, he reported the matter to his father who
promptly advised the police authorities. On that same day, Marella was able to
sell the car in question to Jose B. Aznar for P15,000.00, the latter acting in good
and without notice of the defect appertaining to the vendor’s title. While the car
in question was in the possession of Jose B. Aznar and while he was attending
to its registration in his name, agents of the Philippine Constabulary seized
and confiscated the same in consequence of the report to them by Teodoro
Santos that the said car was unlawfully taken from him. On the question of
whether Teodoro Santos can recover the car from Jose Aznar without need
of indemnifying the latter, the Court ruled in the affirmative applying the
provisions of Article 559 of the New Civil Code. The Court explained —
Cruz v. Pahati
52 O.G. 3253
Belizo sold the car in question to plaintiff. Belizo was then a dealer in
second hand cars. One year thereafter, Belizo offered the plaintiff to sell the
automobile for him claiming to have a buyer for it. Plaintiff agreed. At that time
plaintiff’s certificate of registration was missing and, upon the suggestion of
Belizo, plaintiff wrote a letter addressed to the Motor Section of the Bureau of
Public Works for the issuance of a new registration certificate alleging as reason
the loss of the one previously issued to him and stating that he was intending
to sell his car. This letter was delivered to Belizo on March 3, 1952. He also
turned over to Belizo the automobile on the latter’s pretext that he was going
to show it to a prospective buyer. On March 7, 1952, the letter was falsified and
converted into an authorized deed of sale in favor of Belizo. Armed with this
deed of sale, Belizo succeeded in obtaining a certificate of registration in his
name on the same date of March 7, 1952, and also on the same date Belizo sold
the car to Felixberto Bulahan who in turn sold it to Renlado Pahati, a second
hand dealer. These facts show that the letter was falsified to enable him to sell
the car to Bulahan for a valuable consideration.
Applying the pertinent legal provisions to the facts of this case, one is
inevitably led to the conclusion that plaintiff has a better right to the car in
question than defendant Bulahan for it cannot be disputed that plaintiff had
been illegally deprived thereof because of the ingenious scheme utilized by
Belizo to enable him to dispose of it as if he were the owner thereof. Nor
can it be pretended that the conduct of plaintiff in giving Belizo a letter to
secure the issuance of a new certificate of registration constitutes a sufficient
defense that could preclude recovery because of the undisputed fact that the
460 PROPERTY
letter was falsified and this fact can be clearly seen by a cursory examination
of the document.
Counsel for appellee places much reliance on the common law principle
that “where one of two innocent parties must suffer by a fraud perpetrated
by another, the law imposes the loss upon the party who, by his misplaced
confidence, has enabled the fraud to be committed,” and contends that as
between plaintiff and Bulahan, the former should bear the loss because of
the confidence he reposed in Belizo which enabled the latter to commit the
falsification. But this principle cannot be applied to this case which is covered
by an express provision of our new Civil Code. Between a common law
principle and a statutory provision, the latter must undoubtedly prevail in this
jurisdiction.
258
EDCA Publishing & Distributing Corp. v. Santos, 184 SCRA 614 (1990); Asiatic Com-
mercial Corp. v. Ang, Vol. 40, O.G. S. No. 15, p. 102; Tagatac v. Jimenez, Vol. 53, O.G. No. 12,
p. 3792.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 461
POSSESSION
Effects of Possession
the invoice he showed her, paid him P1,700.00. Meanwhile, EDCA having
become suspicious over a second order placed by Cruz even before clearing
of his first check, made inquiries with the De la Salle College where he had
claimed to be a dean and was informed that there was no such person in its
employ. Further verification revealed that Cruz had no more account or deposit
with the Philippine Amanah Bank, against which he had drawn the payment
check. EDCA then went to the police, which set a trap and arrested Cruz on 7
October 1981. Investigation disclosed his real name as Tomas de la Peña and
his sale of 120 of the books he had ordered from EDCA to Leonor Santos (and
Gerardo Santos, doing business as Santos Bookstore). On the night of said
date 7 October 1981, EDCA sought the assistance of the police in Precinct 5 at
the UN Avenue, which forced their way into Santos Bookstore and threatened
Leonor Santos with prosecution for buying stolen property. They seized the
120 books without warrant, loading them in a van belonging to EDCA, and
thereafter turned them over to EDCA. Protesting this high-handed action, the
Santos spouses sued for recovery of the books after demand for their return was
rejected by EDCA. A writ of preliminary attachment was issued and EDCA,
after initial refusal, finally surrendered the books to the Santos spouses. On the
question of whether EDCA was unlawfully deprived of the books sold to the
Santos couple, the Supreme Court held —
The petitioner argues that it was, because the impostor
acquired no title to the books that he could have validly transferred
to the private respondents. Its reason is that as the payment check
bounced for lack of funds, there was a failure of consideration that
nullified the contract of sale between it and Cruz.
The contract of sale is consensual and is perfected once
agreement is reached between the parties on the subject matter and
the consideration. According to the Civil Code:
Art. 1475. The contract of sale is perfected at the moment
there is a meeting of minds upon the thing which is the object of
the contract and upon the price.
From that moment, the parties may reciprocally demand
performance, subject to the provisions of the law governing the
form of contracts.
xxx xxx xxx
Art. 1477. The ownership of the thing sold shall be transferred
to the vendee upon the actual or constructive delivery thereof.
Art. 1478. The parties may stipulate that ownership in the
thing shall not pass to the purchaser until he has fully paid the
price.
462 PROPERTY
paid for them to EDCA was a matter between him and EDCA and
did not impair the title acquired by the private respondents to the
books.
One may well imagine the adverse consequences if the
phrase “unlawfully deprived” were to be interpreted in the manner
suggested by the petitioner. A person relying on the seller’s title
who buys a movable property from him would have to surrender it
to another person claiming to be the original owner who had not yet
been paid the purchase price therefor. The buyer in the second sale
would be left holding the bag, so to speak, and would be compelled
to return the thing bought by him in good faith without even the
right to reimbursement of the amount he had paid for it.
It bears repeating that in the case before us, Leonor Santos
took care to ascertain first that the books belonged to Cruz before
she agreed to purchase them. The EDCA invoice Cruz showed
her assured her that the books had been paid for on delivery. By
contrast, EDCA was less than cautious — in fact, too trusting in
dealing with the impostor. Although it had never transacted with
him before, it readily delivered the books he had ordered (by
telephone) and as readily accepted his personal check in payment.
It did not verify his identity although it was easy enough to do this.
It did not wait to clear the check of this unknown drawer. Worse,
it indicated in the sales invoice issued to him, by the printed terms
thereon, that the books had been paid for on delivery, thereby
vesting ownership in the buyer.
Surely, the private respondent did not have to go beyond
that invoice to satisfy herself that the books being offered for sale
by Cruz belonged to him; yet she did. Although the title of Cruz
was presumed under Article 559 by his mere possession of the
books, these being movable property, Leonor Santos nevertheless
demanded more proof before deciding to buy them.
259
Art. 1505, No. 3, NCC; Art. 1132, par. 3, NCC.
260
Art. 1505, No. 2, NCC.
261
Art. 1518, NCC.
262
Sec. 57, N.I.L, Act No. 2031.
263
Art. 1505, NCC.
264
Art. 1132, NCC.
265
Art. 560, NCC.
466 PROPERTY
— oOo —
467
Chapter 1
USUFRUCT IN GENERAL
Art. 562. Usufruct gives a right to enjoy the property of another with
the obligation of preserving its form and substance, unless the title con-
stituting it or the law otherwise provides. (467)
1
De Buen, Derecho Comun, 3rd ed., Vol. 1, 255.
2
Id., at 139.
3
See Eleizegui v. Manila Lawn Tennis Club, 2 Phil. 309.
467
468 PROPERTY
4
2 Castan, 8th ed., 93-95.
5
De Buen, Derecho Comun, 3rd ed., Vol. 1, 255.
6
Art. 603(2), NCC.
7
Art. 603(1), NCC.
8
Art. 562, NCC.
9
Art. 566, NCC.
10
Id.
11
See 4 Manresa, 5th ed., 340.
12
Art. 1935, NCC.
13
Id.
14
Art. 1940, NCC.
15
Art. 562, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 469
USUFRUCT
Usufruct in General
16
Id.
17
Id.
18
Art. 573, NCC.
19
Art. 574, NCC.
20
See 4 Manresa, 6th ed., 403.
21
2 Castan, 9th ed., 486-487.
470 PROPERTY
22
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 471
USUFRUCT
Usufruct in General
23
See Art. 564, NCC.
24
Id.
25
Id.
26
2 Castan, 9th ed., 492-494.
472 PROPERTY
Chapter 2
RIGHTS OF THE USUFRUCTUARY
Art. 566. The usufructuary shall be entitled to all the natural, indus-
trial and civil fruits of the property in usufruct. With respect to hidden
treasure which may be found on the land or tenement, he shall be consid-
ered a stranger. (471)
Art. 567. Natural or industrial fruits growing at the time the usufruct
begins, belong to the usufructuary.
Those growing at the time the usufruct terminates, belong to the
owner.
In the preceding cases, the usufructuary, at the beginning of the
usufruct, has no obligation to refund to the owner any expenses incurred;
but the owner shall be obliged to reimburse at the termination of the usu-
fruct, from the proceeds of the growing fruits, the ordinary expenses of
cultivation, for seed, and other similar expenses incurred by the usufruc-
tuary.
The provisions of this article shall not prejudice the rights of third
persons, acquired either at the beginning or at the termination of the usu-
fruct. (472)
Art. 568. If the usufructuary has leased the lands or tenements given
in usufruct, and the usufruct should expire before the termination of the
lease, he or his heirs and successors shall receive only the proportionate
share of the rent that must be paid by the lessee. (473)
27
Art. 564, NCC.
28
Id.
29
II Tolentino, Civil Code, 1992 ed., 318.
30
Id., citing 2 Valverde 412.
474 PROPERTY
Art. 569. Civil fruits are deemed to accrue daily, and belong to the
usufructuary in proportion to the time the usufruct may last. (474)
Art. 570. Whenever a usufruct is constituted on the right to receive
a rent or periodical pension, whether in money or in fruits, or in the inter-
est on bonds or securities payable to bearer, each payment due shall be
considered as the proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits accruing from a
participation in any industrial or commercial enterprise, the date of the
distribution of which is not fixed, such benefits shall have the same char-
acter.
In either case they shall be distributed as civil fruits, and shall be
applied in the manner prescribed in the preceding article. (475)
Art. 571. The usufructuary shall have the right to enjoy any increase
which the thing in usufruct may acquire through accession, the servi-
tudes established in its favor, and, in general, all the benefits inherent
therein. (479)
Art. 572. The usufructuary may personally enjoy the thing in usu-
fruct, lease it to another, or alienate his right of usufruct, even by a gra-
tuitous title; but all the contracts he may enter into as such usufructuary
shall terminate upon the expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting during the agricultural
year. (480)
Art. 573. Whenever the usufruct includes things which, without be-
ing consumed, gradually deteriorate through wear and tear, the usufruc-
tuary shall have the right to make use thereof in accordance with the pur-
pose for which they are intended, and shall not be obliged to return them
at the termination of the usufruct except in their condition at that time, but
he shall be obliged to indemnify the owner for any deterioration they may
have suffered by reason of his fraud or negligence. (481)
Art. 574. Whenever the usufruct includes things which cannot be
used without being consumed, the usufructuary shall have the right to
make use of them under the obligation of paying their appraised value at
the termination of the usufruct, if they were appraised when delivered. In
case they were not appraised, he shall have the right to return the same
quantity and quality, or pay their current price at the time the usufruct
ceases. (482)
Art. 575. The usufructuary of fruit-bearing trees and shrubs may
make use of the dead trunks, and even of those cut off or uprooted by ac-
cident, under the obligation to replace them with new plants. (483a)
Art. 576. If in consequence of a calamity or extraordinary event, the
trees or shrubs shall have disappeared in such considerable number that
it would not be possible or it would be too burdensome to replace them,
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 475
USUFRUCT
Rights of the Usufructuary
the usufructuary may leave the dead, fallen or uprooted trunks at the dis-
posal of the owner, and demand that the latter remove them and clear the
land. (484a)
Art. 577. The usufructuary of woodland may enjoy all the benefits
which it may produce according to its nature.
If the woodland is a copse or consists of timber for building, the
usufructuary may do such ordinary cutting or felling as the owner was in
the habit of doing, and in default of this, he may do so in accordance with
the custom of the place, as to the manner, amount and season.
In any case the felling or cutting of trees shall be made in such man-
ner as not to prejudice the preservation of the land.
In nurseries, the usufructuary may make the necessary thinnings in
order that the remaining trees may properly grow.
With the exception of the provisions of the preceding paragraphs,
the usufructuary cannot cut down trees unless it be to restore or improve
some of the things in usufruct, and in such case he shall first inform the
owner of the necessity for the work. (485)
Art. 578. The usufructuary of an action to recover real property or a
real right, or any movable property, has the right to bring the action and
to oblige the owner thereof to give him the authority for this purpose and
to furnish him whatever proof he may have. If in consequence of the en-
forcement of the action he acquires the thing claimed, the usufruct shall
be limited to the fruits, the dominion remaining with the owner. (486)
Art. 579. The usufructuary may make on the property held in usu-
fruct such useful improvements or expenses for mere pleasure as he may
deem proper, provided he does not alter its form or substance; but he
shall have no right to be indemnified therefor. He may, however, remove
such improvements, should it be possible to do so without damage to the
property. (487)
Art. 580. The usufructuary may set off the improvements he may
have made on the property against any damage to the same. (488)
Art. 581. The owner of property the usufruct of which is held by
another, may alienate it, but he cannot alter its form or substance or do
anything thereon which may be prejudicial to the usufructuary. (489)
Art. 582. The usufructuary of a part of a thing held in common shall
exercise all the rights pertaining to the owner thereof with respect to the
administration and the collection of fruits or interest. Should the co-own-
ership cease by reason of the division of the thing held in common, the
usufruct of the part allotted to the co-owner shall belong to the usufructu-
ary. (490)
476 PROPERTY
31
Moralidad v. Sps. Pernes, G.R. No. 152809, August 3, 2006, citing Hemedes v. Court of
Appeals, 316 SCRA 309 (1999).
32
Id., citing Eleizegui v. Manila Lawn Tennis Club, 2 Phil. 309 (1909).
33
See supra § 34.1.
34
See II Tolentino, Civil Code of the Phil., 1992 ed., 321.
35
See Art. 571, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 477
USUFRUCT
Rights of the Usufructuary
36
Art. 577, 2nd par., NCC.
37
Art. 577, 3rd par., NCC.
38
Art. 577, last par., NCC.
39
Art. 575, NCC.
40
Art. 576, NCC.
41
Art. 578, NCC.
42
Id.
478 PROPERTY
held in usufruct to another. After all, in lease, the lessor is not required
to be the owner of the property leased since only the use or enjoyment of
the thing is transferred. However, such lease is co-terminus with the life
of the usufruct and shall terminate upon the expiration of the usufruct,
the only exception being the lease of rural lands which shall subsist
during the agricultural year despite the termination of the usufruct.43
By virtue of the usufructuary’s right of possession over the
property held by him in usufruct, he is deemed as a “lawful possessor”
for purposes of applying the provisions of Article 429 of the New
Civil Code. As such, he has the right to exclude any person from the
enjoyment of the property, including the naked owner himself, and,
for such purpose, he may even use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of the property. However, the naked owner of an
immovable held in usufruct may, during the existence of the usufruct,
enter the property for the purpose of constructing any works, making
any improvements or new plantings thereon if the land is rural, provided
that such acts must not cause a diminution in the value of the usufruct
or prejudice the right of the usufructuary. This right of the owner is
expressly recognized in Article 595 of the New Civil Code —
43
See Art. 572, NCC.
44
Hemedes v. CA, supra.
45
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 479
USUFRUCT
Rights of the Usufructuary
46
Id.
47
Art. 600, NCC.
48
See Hemedes v. CA, supra.
49
II Caguioa, Civil Code of the Phil., 1966 ed., 240, citing 4 Manresa, 5th ed., 396.
480 PROPERTY
50
See Art. 581, NCC.
51
See Arts. 581, 595 and 689.
52
See Art. 595, NCC.
53
See Art. 581, NCC.
54
See Arts. 581 and 600, NCC; see also Hemedes v. CA, supra.
55
Art. 595, NCC.
56
See Art. 689, NCC.
57
See Art. 690, NCC.
58
See discussions in supra § 105.1.
59
See Art. 572, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 481
USUFRUCT
Rights of the Usufructuary
60
Art. 566, NCC.
61
See 4 Manresa, 5th ed., 340.
62
II Tolentino, Civil Code of the Phil., 1992 ed., 322, citing 2-II Colin & Capitant 727.
63
Id.
64
M.M. Barchrach v. Skifert, 87 Phil. 483 (1950).
65
See Art. 567, NCC.
482 PROPERTY
the owner of the property but the latter shall be obliged to reimburse the
usufructuary the ordinary expenses of cultivation, for seeds and other
similar expenses incurred by the usufructuary.66 These rules are without
prejudice to any right that a third person may have acquired over the
fruits at the beginning or at the termination of the usufruct.67
66
Id.
67
Id.
68
Art. 569, NCC.
69
Id.
70
Art. 568, NCC.
71
Art. 572, NCC.
72
Art. 570, NCC.
73
Id.
74
See discussions in supra., § 105.1.3.
75
Art. 572, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 483
USUFRUCT
Rights of the Usufructuary
76
Id.
77
II Tolentino, Civil Code of the Phil., 1992 ed., 325.
78
Art. 590, NCC.
79
II Caguioa, Civil Code of the Phil., 1966 ed., 234-235.
80
Id.
484 PROPERTY
Chapter 3
OBLIGATIONS OF THE USUFRUCTUARY
81
Art. 579, NCC.
82
Id.
83
Moralidad v. Sps. Pernes, supra.
84
II Paras, Civil Code of the Phil., 1994 ed., 211, cited in Moralidad v. Sps. Pernes, supra.
85
Art. 579, NCC.
86
Art. 580, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 485
USUFRUCT
Obligations of the Usufructuary
87
Art. 583.
88
3 Sanchez Roman 575-576.
89
See II Caguioa, Civil Code of the Phil., 1966 ed., 242.
90
See II Reyes and Puno, Outline of Civil Law, p. 137.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 487
USUFRUCT
Obligations of the Usufructuary
91
Art. 586, last par., NCC.
92
Art. 586, 1st par., NCC.
93
Art. 586, 2nd par., NCC.
94
See Art. 599, NCC.
488 PROPERTY
(1) When the donor has reserved the usufruct of the property
donated;95 and
(2) In case of legal usufruct of the parents over the property of
their minor children living in their custody and under their parental
authority, except when the parents contract a second marriage96 or when
the market value of the property or the annual income of the child
exceeds P50,000.97
Art. 589. The usufructuary shall take care of the things given in usu-
fruct as a good father of a family. (497)
Art. 590. A usufructuary who alienates or leases his right of usu-
fruct shall answer for any damage which the things in usufruct may suffer
through the fault or negligence of the person who substitutes him. (498)
Art. 591. If the usufruct be constituted on a flock or herd of live-
stock, the usufructuary shall be obliged to replace with the young thereof
95
Art. 584, NCC.
96
Id.
97
Art. 225, Family Code.
98
Art. 584, NCC.
99
Art. 587, NCC.
100
Art. 587, NCC.
101
II Tolentino, Civil Code of the Phil., 1992 ed., 337, citing 4 Manresa 473-474, 479.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 489
USUFRUCT
Obligations of the Usufructuary
the animals that die each year from natural causes, or are lost due to the
rapacity of beasts of prey.
If the animals on which the usufruct is constituted should all per-
ish, without the fault of the usufructuary, on account of some contagious
disease or any other uncommon event, the usufructuary shall fulfill his
obligation by delivering to the owner the remains which may have been
saved from the misfortune.
Should the herd or flock perish in part, also by accident and with-
out the fault of the usufructuary, the usufruct shall continue on the part
saved.
Should the usufruct be on sterile animals, it shall be considered, with
respect to its effects, as though constituted on fungible things. (499a)
Art. 592. The usufructuary is obliged to make the ordinary repairs
needed by the thing given in usufruct.
By ordinary repairs are understood such as are required by the wear
and tear due to the natural use of the thing and are indispensable for its
preservation. Should the usufructuary fail to make them after demand by
the owner, the latter may make them at the expense of the usufructuary.
(500)
Art. 593. Extraordinary repairs shall be at the expense of the owner.
The usufructuary is obliged to notify the owner when the need for such
repairs is urgent. (501)
Art. 594. If the owner should make the extraordinary repairs, he
shall have a right to demand of the usufructuary the legal interest on the
amount expended for the time that the usufruct lasts.
Should he not make them when they are indispensable for the pres-
ervation of the thing, the usufructuary may make them; but he shall have
a right to demand of the owner, at the termination of the usufruct, the
increase in value which the immovable may have acquired by reason of
the repairs. (502a)
Art. 595. The owner may construct any works and make any im-
provements of which the immovable in usufruct is susceptible, or make
new plantings thereon if it be rural, provided that such acts do not cause
a diminution in the value of the usufruct or prejudice the right of the usu-
fructuary. (503)
Art. 596. The payment of annual charges and taxes and of those
considered as a lien on the fruits, shall be at the expense of the usufructu-
ary for all the time that the usufruct lasts. (504)
Art. 597. The taxes which, during the usufruct, may be imposed
directly on the capital, shall be at the expense of the owner.
490 PROPERTY
If the latter has paid them, the usufructuary shall pay him the proper
interest on the sums which may have been paid in that character; and, if
the said sums have been advanced by the usufructuary, he shall recover
the amount thereof at the termination of the usufruct. (505)
Art. 598. If the usufruct be constituted on the whole of a patrimony,
and if at the time of its constitution the owner has debts, the provisions
of Articles 758 and 759 relating to donations shall be applied, both with
respect to the maintenance of the usufruct and to the obligation of the
usufructuary to pay such debts.
The same rule shall be applied in case the owner is obliged, at the
time the usufruct is constituted, to make periodical payments, even if
there should be no known capital. (506)
Art. 599. The usufructuary may claim any matured credits which
form a part of the usufruct if he has given or gives the proper security.
If he has been excused from giving security or has not been able to give
it, or if that given is not sufficient, he shall need the authorization of the
owner, or of the court in default thereof, to collect such credits.
The usufructuary who has given security may use the capital he has
collected in any manner he may deem proper. The usufructuary who has
not given security shall invest the said capital at interest upon agreement
with the owner; in default of such agreement, with judicial authorization;
and, in every case, with security sufficient to preserve the integrity of the
capital in usufruct. (507)
Art. 600. The usufructuary of a mortgaged immovable shall not be
obliged to pay the debt for the security of which the mortgage was con-
stituted.
Should the immovable be attached or sold judicially for the payment
of the debt, the owner shall be liable to the usufructuary for whatever the
latter may lose by reason thereof. (509)
Art. 601. The usufructuary shall be obliged to notify the owner of
any act of a third person, of which he may have knowledge, that may be
prejudicial to the rights of ownership, and he shall be liable should he not
do so, for damages, as if they had been caused through his own fault.
(511)
Art. 602. The expenses, costs and liabilities in suits brought with
regard to the usufruct shall be borne by the usufructuary. (512)
has the obligation to preserve its form and substance102 and in the per-
formance of this obligation, he is required to observe the diligence of
a good father of a family.103 To further carry out this obligation, the law
specifically tasks the usufructuary to: (1) make the ordinary repairs on
the property held in usufruct;104 (2) pay the annual charges and taxes
which are imposed on the fruits of the property held in usufruct;105 (3)
notify the owner of the need of urgent extraordinary repairs;106 (4) pay
the expenses, costs and liabilities for suits involving the usufruct;107 and
(5) notify the owner of any act of a third person that may be prejudicial
to the rights of the owner.108
102
Art. 562, NCC.
103
Art. 589, NCC.
104
Art. 592, NCC.
105
Art. 596, NCC.
106
Art. 593, NCC.
107
Art. 602, NCC.
108
Art. 601, NCC.
109
Art. 592 1st par., NCC.
110
Art. 592, 2nd par., NCC.
111
Art. 593, NCC.
112
Art. 594, 1st par., NCC.
113
See II Tolentino, Civil Code of the Phil., 1992 ed., 340.
492 PROPERTY
make the repairs himself114 but he has the obligation to notify the owner
of the need of such repairs in view of the urgency of the matter.115
If the need for the extraordinary repairs is urgent, such that they
are indispensable for the preservation of the thing, the law imposes an
obligation upon the usufructuary to notify the owner of the need of
such repairs.116 If after such notice, the owner still fails to make the
extraordinary repairs, the usufructuary is then authorized to make them,
in which case, he acquires the following rights in connection therewith:
(1) the right to demand of the owner, at the termination of the usufruct,
the increase in value which the immovable may have acquired by reason
of the repair;117 and the right to retain the property held in usufruct
pending the reimbursement by the owner of such expenses.118
If the extraordinary expenses are indispensable for the preser-
vation of the thing and the same were made by the usufructuary but
without prior notice to the owner, it is not clear whether the usufructu-
ary is entitled to the indemnity and right of retention. It is submitted,
however, that these rights may not be availed by the usufructuary in the
absence of a prior notice to the owner of the urgent need for extraordi-
nary repairs. Note that the law does not impose upon the usufructuary
the obligation to make such repairs even if the same are needed for the
preservation of the thing held in usufruct. He is only granted an option
to make the repairs himself in situations where the owner fails to do so
upon notice. As a consequence, the obligation of the owner to indem-
nify the usufructuary for any expenses incurred by the latter in connec-
tion with the making of extraordinary repairs is conditioned upon the
owner’s failure to make the repairs when notified by the usufructuary.
Absent such notice, any expenses incurred by the usufructuary for such
expenses shall be borne by him. After all, he is also benefited by such
repairs since the thing is restored to its condition of usefulness.
But what constitutes “ordinary” or “extraordinary” repairs? Pur-
suant to the provision of the second paragraph of Article 592, the repair
is considered “ordinary” if the following requisites concur: (1) it is re-
114
See Art. 594, NCC.
115
See Art. 593, NCC.
116
Id.
117
Art. 594, 2nd par., NCC.
118
See Art. 612, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 493
USUFRUCT
Obligations of the Usufructuary
quired by the wear and tear due to the natural use of the thing; and (2)
it is indispensable for the preservation of the thing. If both requisites
are not satisfied, then the repair is considered “extraordinary.” Hence,
repairs which are caused by exceptional circumstances, whether or not
they are necessary for the preservation of the thing, are considered ex-
traordinary. Likewise, those which are caused by the natural use of the
thing but are not necessary for its preservation are considered extraor-
dinary repairs.
119
Art. 596, NCC.
120
Art. 597, NCC.
121
Id.
122
Id.
123
See Art. 612, NCC.
124
4 Manresa 493.
125
See I Capistrano, Civil Code of the Phil., 541.
126
See II Outline in Civil Law, 140.
127
Quirante v. Quirante (C.A.), O.G., 4th Supp., No. 8, 242.
494 PROPERTY
128
See Mercado v. Rizal, 67 Phil. 608 (1941); Bislig Bay Lumber Co., Inc. v. Provincial
Government of Surigao, 100 Phil. 303 (1956); Board of Assessment Appeals of Zamboanga del
Sur v. Samar Mining Company, Inc., 37 SCRA 734 (1971).
129
Mercado v. Rizal, supra.
130
II Tolentino, Civil Code of the Phil., 1992 ed., 343.
131
See 3 Sanchez Roman 587.
132
Art. 601, NCC.
133
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 495
USUFRUCT
Extinguishment of Usufruct
Chapter 4
EXTINGUISHMENT OF USUFRUCT
Art. 608. If the usufructuary shares with the owner the insurance of
the tenement given in usufruct, the former shall, in case of loss, continue
in the enjoyment of the new building, should one be constructed, or shall
receive the interest on the insurance indemnity if the owner does not wish
to rebuild.
Should the usufructuary have refused to contribute to the insur-
ance, the owner insuring the tenement alone, the latter shall receive the
full amount of the insurance indemnity in case of loss, saving always the
right granted to the usufructuary in the preceding article. (518a)
Art. 609. Should the thing in usufruct be expropriated for public use,
the owner shall be obliged either to replace it with another thing of the
same value and of similar conditions, or to pay the usufructuary the legal
interest on the amount of the indemnity for the whole period of the usu-
fruct. If the owner chooses the latter alternative, he shall give security for
the payment of the interest. (519)
Art. 610. A usufruct is not extinguished by bad use of the thing in
usufruct; but if the abuse should cause considerable injury to the owner,
the latter may demand that the thing be delivered to him, binding himself
to pay annually to the usufructuary the net proceeds of the same, after
deducting the expenses and the compensation which may be allowed him
for its administration. (520)
Art. 611. A usufruct constituted in favor of several persons living at
the time of its constitution shall not be extinguished until the death of the
last survivor. (521)
Art. 612. Upon the termination of the usufruct, the thing in usufruct
shall be delivered to the owner, without prejudice to the right of retention
pertaining to the usufructuary or his heirs for taxes and extraordinary
expenses which should be reimbursed. After the delivery has been made,
the security or mortgage shall be cancelled. (522a)
134
Art. 603, NCC.
135
NHA v. Court of Appeals, G.R. No. 148830, April 13, 2005.
136
Art. 603(1), NCC.
137
NHA v. Court of Appeals, supra.
138
Art. 605, NCC.
139
Id.
498 PROPERTY
140
Art. 603(1), NCC.
141
2 Castan, 9th ed., 526; Decisions of the Supreme Court of Spain of October 1, 1919 and
July 2, 1952; 2 Valverde 449.
142
See II Tolentino, Civil Code of the Phil., 1992 ed., 347; II Caguioa, Civil Code of the
Phil., 1966 ed., 253.
143
Art. 611, NCC.
144
Art. 606, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 499
USUFRUCT
Extinguishment of Usufruct
[109.3.1] Exceptions
(1) If the usufruct is constituted on a building and the latter
is destroyed without the fault of the usufructuary, the usufruct is not
extinguished. In such a situation, the usufructuary has the right to make
use of the land and the materials.146 If the owner, however, wishes to
construct another building, he has the right to occupy the land and to
make use of the materials, in which case, he shall be obliged to pay to
the usufructuary, during the continuance of the usufruct, the interest
upon the sum equivalent to the value of the land and of the materials.147
If the building which was destroyed had been insured and the
usufructuary shared in the payment of the insurance, together with the
owner, the usufructuary shall continue in the enjoyment of the new
building, should one be constructed, or shall receive the interest on the
insurance indemnity if the owner does not wish to rebuild.148 Should
the usufructuary have refused to contribute to the insurance and the
same was paid by the owner alone, the owner is entitled to the full
amount of the insurance indemnity, but the usufruct continues over the
land and the materials of the building or in case the owner chooses
to rebuild the building, the usufructuary is only entitled to the legal
interest in the value of the land and the materials but has no right to the
new building.149
145
Art. 1189(1), NCC.
146
Art. 607, 2nd par., NCC.
147
Id.
148
Art. 608, 1st., NCC.
149
Art. 608, 2nd par., NCC.
500 PROPERTY
— oOo —
150
Art. 609, NCC.
151
Art. 610, NCC.
152
Id.
153
Art. 612, NCC.
154
Arts. 597 and 612, NCC.
155
Arts. 594 and 612, NCC.
501
Chapter 1
EASEMENTS IN GENERAL
§ 111. Concept
[111.1] Definition
The New Civil Code defines easement or servitude (“servitus”)
from its passive aspect of being an encumbrance. As defined, easement
or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner.1 However,
it may also be established for the benefit of a community, or of one or
more persons to whom the encumbered estate does not belong.2
The foregoing definition, however, represents only one of the
two aspects of easement or servitude. The other aspect of easement or
servitude refers to the right of servitude (jus servitutes), or the right
which corresponds to the burden imposed. From this viewpoint, an
1
Art. 613, 1st par., NCC.
2
Art. 614, NCC.
501
502 PROPERTY
3
Bogo-Medellin Milling Co., Inc. v. CA, 407 SCRA 518 (2003); Sps. Dela Cruz v. Ra-
miscal, G.R. No. 137882, Feb. 4, 2005; see also Quimen v. CA, 257 SCRA 163 (1996), citing 3
Sanchez Roman 472.
4
Bouvier’s Law Dictionary, 3rd revision, Vol. 1, p. 967.
5
Bouvier’s Law Dictionary, 3rd revision, Vol. 1, p. 967.
6
II Caguioa, Civil Code of the Phil., 1966 ed., 262.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 503
EASEMENTS OR SERVITUDES
Easements in General
7
See Art. 613, 1st par., NCC.
8
II Caguioa, Civil Code of the Phil., 1966 ed., 263.
9
Id., 262, citing the Decision of the Supreme Court of Spain of February 4, 1920.
10
Amor v. Florentino, G.R. No. L-48384, Oct. 11, 1943.
11
Solid Manila Corp. v. Bio Hong Trading Co., Inc., 195 SCRA 748 (1991).
12
Lectures on Jurisprudence, John Austin and Sarah Austin, 1863 ed., p. 27.
13
II Caguioa, Civil Code of the Phil., 1966 ed., 263.
14
Art. 631(1), NCC.
15
Bogo-Medellin Milling Co., Inc. v. CA, supra.
504 PROPERTY
16
Art. 613, 1st par., NCC.
17
Art. 613, 2nd par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 507
EASEMENTS OR SERVITUDES
Easements in General
[112.1.1] Distinction
A real or praedial servitude is said to be imposed upon one of
the two estates, called the servient estate or praedium serviens, for the
use or advantage of the other, called the dominant estate or praedium
dominans. While it may appear that the right of servitude (jus servitutes)
is enjoyed by the owner or occupant of the dominant estate, he does so
only by reason of such occupancy. In other words, the right of servitude
(jus servitutes) that is being enjoyed by the occupant of the dominant
estate is inseparable from the occupation of the tenement or estate.
Hence, in the ultimate analysis, the right of servitude resides in the
estate (praedium) itself and not in the physical person who successively
occupies or enjoys it.
A personal servitude, on the other hand, is due, not to a thing, but
to a person, independently of the latter’s ownership of any immovable
or estate. If the servitude is established for the advantage of a given
person, the same is inseparable from his person, and necessarily ceases
at his death, unless there is a stipulation to the contrary. In addition, the
right to personal servitude does not extend to the successors-in-interest
of the person to whom the right is granted.20
Jabonete v. Monteverde
16 SCRA 462 (1966)
In a civil case between the plaintiffs and the defendant Antonio Legaspi,
a compromise agreement was entered into whereby the said defendant granted
the plaintiffs and their family, friends, drivers, servants and jeeps a right of
way. Subsequently, however, the plaintiffs, unable to continue with their repair
shop, transferred to another place whereupon the defendant reconstructed his
fence and its footing, closing thereby the opening previously made by the
18
Solid Manila Corp. v. Bio Hong Trading Co., Inc., supra.
19
II Caguioa, Civil Code of the Phil., 1966 ed., 264.
20
Jabonete v. Monteverde, 16 SCRA 462 (1966).
508 PROPERTY
21
Art. 619, NCC.
22
II Caguioa, Civil Code of the Phil., 1966 ed., 290, citing 2 Castan, 9th ed., 576.
23
Art. 619, NCC.
510 PROPERTY
24
Bogo-Medellin Milling Co. v. CA, supra.
25
Arts. 615, 646, NCC.
26
Id.
27
Bouvier’s Law Dictionary, 3rd revision, p. 968.
28
Abellana, Sr. v. CA, 208 SCRA 316 (1992), citing 4 Manresa 597; Haffman v. Shoe-
maker, 71 SE 198, both cited on p. 454, Vol. 2, 6th Ed., Paras, Civil Code of the Philippines.
29
Art. 615, 4th par., NCC.
30
Art. 615, 5th par., NCC.
31
Bogo-Medellin Milling Co. v. CA, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 511
EASEMENTS OR SERVITUDES
Easements in General
32
Art. 616, NCC.
33
Art. 616, NCC.
34
Id.
35
See Amor v. Tolentino, G.R. No. L-48384, Oct. 11, 1943.
36
See 2 Castan, 9th ed., 548.
37
II Tolentino, Civil Code of the Phil., 1992 ed., 355, citing 1 Ruggiero 716-726.
512 PROPERTY
Art. 617. Easements are inseparable from the estate to which they
actively or passively belong. (534)
Art. 618. Easements are indivisible. If the servient estate is divided
between two or more persons, the easement is not modified, and each of
them must bear it on the part which corresponds to him.
If it is the dominant estate that is divided between two or more per-
sons, each of them may use the easement in its entirety, without chang-
ing the place of its use, or making it more burdensome in any other way.
(535)
Art. 619. Easements are established either by law or by the will of
the owners. The former are called legal and the latter voluntary ease-
ments. (536)
38
Solid Manila Corp. v. Bio Hong Trading Co., 195 SCRA 748 (1991).
39
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 513
EASEMENTS OR SERVITUDES
Easements in General
prevent the public from using it, because as a servitude, the alley is
supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that
of the Court of Appeals, that no genuine merger took place
as a consequence of the sale in favor of the private respondent
corporation. According to the Civil Code, a merger exists when
ownership of the dominant and servient estates is consolidated
in the same person. Merger then, as can be seen, requires full
ownership of both estates.
One thing ought to be noted here, however. The servitude in
question is a personal servitude, that is to say, one constituted not
in favor of a particular tenement (a real servitude) but rather, for
the benefit of the general public.
Personal servitudes are referred to in the following article of
the Civil Code:
Art. 614. Servitudes may also be established for
the benefit of a community, or of one or more persons
to whom the encumbered estate does not belong.
In a personal servitude, there is therefore no “owner of a
dominant tenement” to speak of, and the easement pertains to per-
sons without a dominant estate, in this case, the public at large.
Merger, as we said, presupposes the existence of a prior
servient-dominant owner relationship, and the termination of that
relation leaves the easement of no use. Unless the owner conveys
the property in favor of the public — if that is possible — no
genuine merger can take place that would terminate a personal
easement.
For this reason, the trial court was not in error in rendering
summary judgment, and insofar as the respondent Court of Appeals
held that it (the trial court) was in error, the Court of Appeals is in
error.
[113.2] Indivisibility
Easements or servitudes are indivisible.40 This is but a necessary
consequence of the principle of inseparability of the easement or servi-
40
Art. 618, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 515
EASEMENTS OR SERVITUDES
Easements in General
41
Id.
42
Id.
516 PROPERTY
Art. 625. Upon the establishment of an easement, all the rights nec-
essary for its use are considered granted. (542)
Art. 626. The owner of the dominant estate cannot use the easement
except for the benefit of the immovable originally contemplated. Neither
can he exercise the easement in any other manner than that previously
established. (n)
43
Arts. 620, 622, NCC.
44
Art. 620, NCC.
45
See Concurring and Dissenting Opinion of Justice Laurel in North Negros Sugar Co. v.
Hidalgo, 63 Phil. 664 (1936).
46
4 Manresa, 5th ed., 552.
47
Abella, Sr. v. CA, 208 SCRA 316 (1992); Costabella Corp. v. CA, 193 SCRA 333
(1991).
48
Id.
49
Id., see also Bogo-Medellin Milling Co., Inc. v. CA, 407 SCRA 518 (2003).
50
G.R. No. L-10619, Feb. 28, 1958.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 517
EASEMENTS OR SERVITUDES
Easements in General
51
Art. 620, NCC.
52
Art. 621, NCC.
53
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 521
EASEMENTS OR SERVITUDES
Easements in General
light, because the openings through which the light penetrates may be
made in one’s own wall, in the wall of one’s neighbor, or in a party wall.
The legal doctrine applicable in either one of these cases is different,
owing to the fact that, although anyone may open windows in his own
wall, no one has a right to do so in the wall of another without the
consent of the owner, and it is also necessary, in accordance with Article
667 of the New Civil Code, to obtain the consent of the other co-owner
when the opening is to be made in a party wall.54
When a person opens windows in his own building he does
nothing more than exercise an act of ownership inherent in the right of
property, which, under Article 428 of the New Civil Code, empowers
him to deal with his property as he may see fit, with no limitations
other than those established by law. By reason of the fact that such an
act is performed wholly on a thing which is wholly the property of the
one opening the window, it does not in itself establish any easement,
because the property is used by its owner in the exercise of dominion,
and not as the exercise of an easement: “For a man should not use
that which belongs to him as if it were a service only, but as his own
property.” Coexistent with this right is the right of the owner of the
adjacent property to cover up such windows by building on his own
land or raising a wall contiguously to the wall in which the windows
are opened, by virtue of the reciprocity of rights which should exist
between abutting owners, and which would cease to exist if one could
do what he pleased on his property and the other could not do the same
on his. Hence, it is that the use of the windows opened in a wall of one’s
own property, in the absence of some covenant or express agreement to
the contrary, is regarded as an act of mere tolerance on the part of the
owner of the abutting property, and does not create any right to maintain
the windows to the prejudice of the latter. The mere toleration of such
an act does not imply on the part of the abutting owner a waiver of his
right to freely build upon his land as high as he may see fit, nor does it
avail the owner of the windows for the effects of possession, because it
is a mere possession at will.55
From the foregoing, it follows that the easement of light with
respect to the openings made in one’s own edifice does not consist
54
See Cortes v. Yu-Tibo, 2 Phil. 24 (1903).
55
Id.
522 PROPERTY
56
Id.
57
See Amor v. Florentino, G.R. No. L-48384, Oct. 11, 1943.
58
See Cortes v. Yu-Tibo, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 523
EASEMENTS OR SERVITUDES
Easements in General
If the window, on the other hand, is opened in a party wall, and not
in a wall the sole and exclusive property of the owner of the dominant
tenement, the easement of lights is positive and the 10-year period of
prescription commences from the time of the opening of the window.
The reason for this is because no part owner can, without the consent
of the other, make in a party wall a window or opening of any kind, as
provided in Article 667 of the New Civil Code. Hence, the very fact
of making such openings in such a wall might, therefore, be the basis
for the acquisition of a prescriptive title without the necessity of any
active opposition, because it always presupposes the express or implied
consent of the other part owner of the wall, which consent, in turn,
implies the voluntary waiver of the right of such part owner to oppose
the making of such openings or windows in such a wall.59
The same rule will apply if the window is opened on the wall
belonging to one’s neighbor. The 10-year prescriptive period commences
from the time of the opening of the window. Stated otherwise, if anyone
shall open a window in the wall of his neighbor, through which the
light enters his house, by this sole fact he shall acquire a prescriptive
title to the easement of light, if the time fixed by law (ten years) expires
without opposition on the part of the owner of the wall.60
59
Id.
60
Id.
61
See Concurring and Dissenting Opinion of Justice Laurel in North Negros Sugar Co. v.
Hidalgo, 63 Phil. 664.
62
Arts. 620 and 622, NCC.
524 PROPERTY
servient estate.63 If the owner of the servient estate denies the existence of
the easement or refuses to execute the deed of recognition, the existence
of the easement may nonetheless be established in a judicial proceeding
through preponderance of evidence.
Note that the existence of a title which serves as the basis for
the easement may be proven through oral testimonies of witnesses as
the same is not covered by the Statute of Frauds. Even if the servitude
is imposed upon a parcel of land and the obligation arises from an
oral contract, such agreement is not covered by the Statute of Frauds
considering that “not all agreements affecting land must be put in
writing to attain enforceability.”64 Under paragraph 2(e) of Article 1403
of the New Civil Code, such formality is required only of contracts
involving leases for longer than one year, or for the sale of real property
or of an interest therein.
63
Art. 623, NCC.
64
Hernandez v. CA, 160 SCRA 821, 826 (1988).
65
Arts. 620 and 622, NCC.
66
Art. 624, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 525
EASEMENTS OR SERVITUDES
Easements in General
easement to speak of, there being but one owner of both estates.67 As
discussed in supra §§ 111.1.4 and 112.1, a praedial or real easement is
one of the rights in another’s property, or jura in re aliena and nobody
can have an easement over his own property, nimini sua res servit.
Hence, the easement is not created till the division of the property. At
this point, the requisite that there must be two proprietors — one of the
dominant estate and another of the servient estate — is fulfilled.68
The foregoing principles are illustrated in the case of Gargantos v.
Tan Yanon, as follows:
67
Gargantos v. Tan Yanon, G.R. No. L-14652, June 30, 1952.
68
See Amor v. Tolentino, 74 Phil. 404 (1943).
526 PROPERTY
a person different from the owner;69 (4) that the ownership over the two
estates is later on divided, either by alienation or partition; and (5) that
at the time of division of ownership, nothing is stated in the document
of alienation or partition contrary to the easement nor is the sign of the
easement removed before the execution of the document. It will thus be
seen that under Article 624 the existence of the apparent sign has for all
legal purposes the same character and effect as a title of acquisition of
the easement.70
Article 624 also applies to a situation where the two estates were
previously under a state of co-ownership but prior to partition there
exist an apparent sign of easement in one of the estates. For example,
“A” and “B” used to be co-owners of a parcel of land. “A,” during the
existence of the co-ownership constructed a house on one-half portion
of the co-owned property. On the northeastern side of the house, there
are windows and doors which serve as passages for light and view.
Subsequently, “A” and “B” executed a deed of partition whereby the
portion where the house stands was allotted to “A” while the other
half was allotted to “B.” The existence of the doors and windows on
the northeastern side of the aforementioned house, is equivalent to a
title, for the visible and permanent sign of an easement is the title that
characterizes its existence. If nothing has been stated in the deed of
partition contrary to the easement and “A” did not renounce the use of
the windows and doors, either by stipulation or by actually closing them
permanently, the easement is created by title pursuant to Article 624
upon the actual partition of the co-owned property.
According to the Supreme Court in the case of Amor v. Tolentino,71
Article 624 also applies to a division of property by succession.
69
II Caguioa, Civil Code of the Phil., 1966 ed., 276, citing the Decision of the Supreme
Court of Spain of May 27, 1899.
70
Amor v. Tolentino, supra.
71
Supra.
528 PROPERTY
For this purpose he shall notify the owner of the servient estate, and
shall choose the most convenient time and manner so as to cause the
least inconvenience to the owner of the servient estate. (543a)
Art. 628. Should there be several dominant estates, the owners of
all of them shall be obliged to contribute to the expenses referred to in
the preceding article, in proportion to the benefits which each may derive
from the work. Any one who does not wish to contribute may exempt him-
self by renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the easement
in any manner whatsoever, he shall also be obliged to contribute to the
expenses in the proportion stated, saving an agreement to the contrary.
(544)
Art. 629. The owner of the servient estate cannot impair, in any man-
ner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the
manner established for the use of the easement, the same should become
very inconvenient to the owner of the servient estate, or should prevent
him from making any important works, repairs or improvements thereon,
it may be changed at his expense, provided he offers another place or
manner equally convenient and in such a way that no injury is caused
thereby to the owner of the dominant estate or to those who may have a
right to the use of the easement. (545)
Art. 630. The owner of the servient estate retains the ownership of
the portion on which the easement is established, and may use the same
in such a manner as not to affect the exercise of the easement. (n)
72
Bogo-Medellin Milling Co. v. CA, supra.
73
Art. 630, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 529
EASEMENTS OR SERVITUDES
Easements in General
right of enjoyment, but he may not enclose the property because such
act will affect the exercise of the easement. In this example, the owner
of the servient estate has an obligation not to obstruct or hinder the free
passage over the servient estate of any person entitled to make use of
it. As such, the holder of the easement may demand for the removal of
such obstruction.
While the owner of the servient estate is prohibited from impairing,
in any manner whatsoever, the use of the servitude,74 he may, however,
change the place of the easement or the manner of its use provided the
following requisites are satisfied:
(1) the place originally assigned or the manner established for
the use of the easement has become very inconvenient to
the owner of the servient estate or it has prevent him from
making any important works, repairs or improvements
thereon;
(2) the servient owner offers another place or another manner of
use equally convenient;
(3) no injury is caused thereby to the owner of the dominant
estate or to those who may have a right to the use of the
easement; and
(4) the expenses that will be incurred in the process shall be
borne by the owner of the servient estate.75
74
Art. 629, 1st par., NCC.
75
Art. 629, 2nd par., NCC.
76
Art. 625, NCC.
530 PROPERTY
77
Art. 627, NCC.
78
Art. 628, 1st par., NCC.
79
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 531
EASEMENTS OR SERVITUDES
Easements in General
80
Art. 626, NCC.
81
Id.
82
II Tolentino, Civil Code of the Phil., 1992 ed., 369.
83
Id.
532 PROPERTY
[116.1] Merger
As discussed in supra § 111.1.4, an easement is a right enjoyed
by another’s property, or jure in re aliena. Therefore, nobody can have
an easement over his own property, nimini sua res servit,86 for a man
should not use that which belongs to him as if it were a service only,
but as his own property.87 For this reason, a real or praedial easement
requires the existence of two distinct immovables belonging to different
owners (see discussions in supra § 112.1). As a consequence, if there
is a merger in the same person of the ownership of the dominant and
servient estates, the easement is extinguished.88 For the same reason, a
personal easement established for the benefit of a particular person is
also extinguished if the said holder of the easement acquires ownership
of the servient estate. But if the personal easement is established for
the benefit of a community, the fact that one of the members of the
84
Art. 631, NCC.
85
4 Manresa, 5th ed., 590.
86
Amor v. Tolentino, supra.
87
Cortes v. Yu-Tibo, supra.
88
Art. 631(1), NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 533
EASEMENTS OR SERVITUDES
Easements in General
[116.2] Non-User
Non-user, as a mode of extinguishment of easement, presupposes
that the easement was used but later abandoned. For easement to be
extinguished under this mode, it is necessary that the non-user must
have lasted for a period of ten (10) years.93 The computation of the
10-year period of extinctive prescription shall depend on whether the
easement is continuous or discontinuous, as follows:
(a) If the easement is discontinuous, the 10-year period is
computed from the day on which the easement was not
used.94 Since the use of the easement depends upon the acts
of man, if no such act has been executed for a period of ten
(10) years the easement is extinguished.
(b) If the easement is continuous, in which case the use of the
easement does not depend upon the acts of man, the 10-year
period is counted from the day on which an act contrary to
the easement took place.95 For example, if the owner of the
lower estate constructed a series of dikes to prevent the flow
of excess waters coming from the higher estates, the legal
89
See Solid Manila Corp. v. Bio Hong Trading Co., Inc., supra.
90
Id.
91
Cabacungan v. Corrales, 95 Phil. 919.
92
II Caguioa, Civil Code of the Phil., 1966 ed., 285, citing 4 Manresa, 5th ed., 581-582.
93
Art. 631(2), NCC.
94
Id.
95
Id.
534 PROPERTY
96
Ongsiako v. Ongsiako, G.R. No. L-7510, March 30, 1957.
97
See Art. 633, NCC.
98
Art. 631(3), NCC.
99
Id.
100
II Tolentino, Civil Code of the Phil., 1992 ed., 376, citing 2-II Colin & Capitant 1157.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 535
EASEMENTS OR SERVITUDES
Legal Easements
[116.4] Renunciation
The renunciation of the easement by the owner of the dominant
estate must be specific, clear and express.101 Hence, a tacit renunciation
will not be sufficient.
[116.5] Redemption
The redemption being referred to in paragraph 6 of Article 631 of
the New Civil Code is the release of the servient estate from the servitude
upon agreement of the owners of both estates and upon payment by the
owner of the servient estate of the corresponding consideration to the
owner of the dominant estate.
Chapter 2
LEGAL EASEMENTS
Section 1. General Provisions
Art. 634. Easements imposed by law have for their object either pub-
lic use or the interest of private persons. (549)
Art. 635. All matters concerning easements established for public
or communal use shall be governed by the special laws and regulations
relating thereto, and, in the absence thereof, by the provisions of this
Title. (550)
Art. 636. Easements established by law in the interest of private
persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
ordinances for the general welfare.
These easements may be modified by agreement of the interested
parties, whenever the law does not prohibit it or no injury is suffered by a
third person. (551a)
101
Fuentes v. Rivera (CA), 40 O.G. (Sup. 12) 106.
536 PROPERTY
Art. 642. Any person who may wish to use upon his own estate any
water of which he can dispose shall have the right to make it flow through
the intervening estates, with the obligation to indemnify their owners, as
well as the owners of the lower estates upon which the waters may filter
or descend. (557)
Art. 643. One desiring to make use of the right granted in the preced-
ing article is obliged:
(1) To prove that he can dispose of the water and that it is suf-
ficient for the use for which it is intended;
(2) To show that the proposed right of way is the most convenient
and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations. (558)
Art. 644. The easement of aqueduct for private interest cannot be
imposed on buildings, courtyards, annexes, or outhouses, or on orchards
or gardens already existing. (559)
Art. 645. The easement of aqueduct does not prevent the owner of
the servient estate from closing or fencing it, or from building over the
aqueduct in such manner as not to cause the latter any damage, or render
necessary repairs and cleanings impossible. (560)
Art. 646. For legal purposes, the easement of aqueduct shall be con-
sidered as continuous and apparent, even though the flow of the water
may not be continuous, or its use depends upon the needs of the domi-
nant estate, or upon a schedule of alternate days or hours. (561)
Art. 647. One who for the purpose of irrigating or improving his es-
tate, has to construct a stop lock or sluice gate in the bed of the stream
from which the water is to be taken, may demand that the owners of the
banks permit its construction, after payment of damages, including those
caused by the new easement to such owners and to the other irrigators.
(562)
Art. 648. The establishment, extent, form and conditions of the ser-
vitudes of waters, to which this section refers, shall be governed by the
special laws relating thereto insofar as no provision therefor is made in
this Code. (563a)
(2) Easement for public use (Art. 638, NCC; Art. 51, Water
Code);
(3) Easement for drawing waters (Arts. 640-641, NCC);
(4) Easement of abutment of dam (Art. 639, NCC);
(5) Easement of aqueduct (Arts. 642-646, NCC).
102
Ongsiako v. Ongsiako, supra.
103
Art. 637, 1st par., NCC; Art. 50, Water Code of the Phils.
104
Art. 637, 2nd par., NCC; Art. 50, Water Code of the Phils.
105
Art. 50, Water Code of the Phils.
106
Art. 637, 2nd par., NCC; Art. 50, Water Code of the Phils.
107
Art. 46, Water Code of the Phils.
108
Ongsiako v. Ongsiako, supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 539
EASEMENTS OR SERVITUDES
Legal Easements
of ten years computed from the day on which an act contrary to the
easement took place, such as building of dikes.109
109
Art. 631(2), NCC; Ongsiako v. Ongsiako, supra.
110
Art. 51, Water Code of the Phils.
111
Id.
112
Art. 640, NCC.
113
Art. 641, NCC.
114
Id.
540 PROPERTY
115
Art. 639, NCC.
116
Art. 642, NCC.
117
Arts. 642 and 643, NCC.
118
Art. 644, NCC.
119
Art. 645, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 541
EASEMENTS OR SERVITUDES
Legal Easements
120
Art. 49, Water Code of the Phils.
121
Art. 645, NCC.
122
Art. 646, NCC.
123
Art. 620, NCC.
542 PROPERTY
Art. 651. The width of the easement of right of way shall be that
which is sufficient for the needs of the dominant estate, and may accord-
ingly be changed from time to time. (566a)
Art. 652. Whenever a piece of land acquired by sale, exchange or
partition, is surrounded by other estates of the vendor, exchanger, or co-
owner, he shall be obliged to grant a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by the
donee for the establishment of the right of way. (567a)
Art. 653. In the case of the preceding article, if it is the land of the
grantor that becomes isolated, he may demand a right of way after paying
an indemnity. However, the donor shall not be liable for indemnity. (n)
Art. 654. If the right of way is permanent, the necessary repairs shall
be made by the owner of the dominant estate. A proportionate share of the
taxes shall be reimbursed by said owner to the proprietor of the servient
estate. (n)
Art. 655. If the right of way granted to a surrounded estate ceases
to be necessary because its owner has joined it to another abutting on a
public road, the owner of the servient estate may demand that the ease-
ment be extinguished, returning what he may have received by way of in-
demnity. The interest on the indemnity shall be deemed to be in payment
of rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving
access to the isolated estate.
In both cases, the public highway must substantially meet the needs
of the dominant estate in order that the easement may be extinguished.
(568a)
Art. 656. If it be indispensable for the construction, repair, improve-
ment, alteration or beautification of a building, to carry materials through
the estate of another, or to raise therein scaffolding or other objects nec-
essary for the work, the owner of such estate shall be obliged to permit
the act, after receiving payment of the proper indemnity for the damage
caused him. (569a)
Art. 657. Easements of the right of way for the passage of livestock
known as animal path, animal trail or any other, and those for watering
places, resting places and animal folds, shall be governed by the ordi-
nances and regulations relating thereto, and, in the absence thereof, by
the usages and customs of the place.
Without prejudice to rights legally acquired, the animal path shall
not exceed in any case the width of 75 meters, and the animal trail that of
37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement of
the right of way or for a watering place for animals, the provisions of this
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 543
EASEMENTS OR SERVITUDES
Legal Easements
Section and those of Articles 640 and 641 shall be observed. In this case
the width shall not exceed 10 meters. (570a)
124
Costabella Corp. v. CA, 193 SCRA 333 (1991).
125
Id.
126
See Concurring Opinion of Justice JBL Reyes in Ronquillo v. Roco, G.R. No. L-10619,
Feb. 28, 1958.
544 PROPERTY
127
17 SCRA 731, 735-736.
128
Cited in Francisco v. IAC, 177 SCRA 527 (1989).
129
Cristobal v. Court of Appeals, G.R. No. 125339, June 22, 1998.
130
Florendo v. Llenado, 244 SCRA 713 (1995).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 545
EASEMENTS OR SERVITUDES
Legal Easements
131
Art. 649, par. 1, NCC.
132
Costabella Corp. v. CA, supra, citing II Francisco, Civil Code of the Philippines, 787.
133
Id.
134
Id.
135
Francisco v. IAC, 177 SCRA 527 (1989).
136
Id.
137
See Francisco v. IAC, supra; see also Dionsio v. Ortiz, 204 SCRA 746 (1991).
138
Art. 649, par. 1, NCC.
546 PROPERTY
139
Costabella Corp. v. CA, supra.
140
Id.
141
Floro v. Llenado, 244 SCRA 713 (1995).
142
154 SCRA 703 (1987).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 547
EASEMENTS OR SERVITUDES
Legal Easements
plan for the buyers of its lots, notwithstanding that said lot was still
undeveloped and inconvenient to petitioner. Even if Ramos, the
petitioner therein, had “to pass through other lots belonging to other
owners, which are grassy and cogonal, as temporary ingress/egress
with great inconvenience particularly due to flood and mud,” the Court
did not allow the easement because it would run counter to existing
jurisprudence that mere convenience for the dominant estate does not
suffice to serve as basis for the servitude.
In the case of Floro v. Llenado,143 the Supreme Court likewise
refused to impose an easement of right of way over petitioner’s property,
although private respondent’s alternative routes was admittedly
inconvenient because he had to traverse several rice lands and rice
paddies belonging to different persons, not to mention that said passage,
as found by the trial court, was impassable during rainy season.
143
Supra.
144
Quimen v. CA, 257 SCRA 163 (1996).
145
Id.
548 PROPERTY
although longer will only require an avocado tree to be cut down, the
second alternative should be preferred.146
146
Id.
147
42 SCRA 577 (1971).
148
Art. 649, par. 2, NCC.
149
Art. 649, par. 3, NCC.
150
Art. 652, 1st par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 549
EASEMENTS OR SERVITUDES
Legal Easements
as the estate is surrounded by the estate of others through the will of the
parties.151 But if the owner acquires his land by way of a simple donation,
there is no such tacit condition because the donor receives nothing from
the donee. In this latter case, therefore, the donee can only demand for
a right of way after payment of the proper indemnity.152
151
2 Castan, 9th ed., 586.
152
Art. 652, 2nd par., NCC.
153
Encarnacion v. CA, 195 SCRA 74 (1991).
154
Supra.
550 PROPERTY
155
G.R. No. 137882, Feb. 4, 2005.
156
II Tolentino, Civil Code of the Phil., 1992 ed., 387.
157
Art. 655, 1st par., NCC.
158
Art. 655, 2nd par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 551
EASEMENTS OR SERVITUDES
Legal Easements
159
See Arts. 666 and 667, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 553
EASEMENTS OR SERVITUDES
Legal Easements
160
2 Castan, 9th ed., 589, cited in II Caguioa, Civil Code of the Phil., 1966 ed., 305.
161
II Tolentino, Civil Code of the Phil., 1992 ed., 396, citing 4 Manresa 762-763.
162
Art. 659, NCC.
163
Id.
554 PROPERTY
164
Art. 660, NCC.
165
Id.
166
Art. 661, NCC.
167
See Art. 666, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 555
EASEMENTS OR SERVITUDES
Legal Easements
(3) if the party wall cannot bear the increased height, the owner desiring
to raise it shall be obliged to reconstruct it at his own expense, and, if
for this purpose it be necessary to make it thicker, he shall give the
space required from his own land.168
The co-ownership is maintained up to the point where the original
wall extended. But with respect to the additional height, the same shall
be exclusively owned by the part-owner at whose instance the party
wall was raised. As a consequence, the expenses in maintaining the
additional height, as well as the increase in expenses which may be
necessary for the preservation of the party wall by reason of the greater
height, shall be borne by him.169 The other owners may, however, acquire
a proportionate share in the raised party wall by paying proportionately
the value of the work at the time of the acquisition and of the land used
for its increased thickness,170 in which case, all shall bear the expenses
of maintaining the additional height in proportion to their respective
interest in it.
168
Art. 664, NCC.
169
See Art. 694, 2nd par., NCC.
170
Art. 665, NCC.
171
Art. 662, NCC.
172
Art. 663, NCC.
556 PROPERTY
Art. 673. Whenever by any title a right has been acquired to have
direct views, balconies or belvederes overlooking an adjoining property,
the owner of the servient estate cannot build thereon at less than a dis-
tance of three meters to be measured in the manner provided in Article
671. Any stipulation permitting distances less than those prescribed in
Article 670 is void. (585a)
173
See Art. 666, NCC.
174
Art. 667, NCC.
175
See Art. 1168, NCC.
176
See Art. 668(1), NCC.
558 PROPERTY
conterminous property, the law requires that the distance be sixty (60)
centimeters.177 Such distance shall be measured in cases of direct views
from the outer line of the wall when the openings do not project, from
the outer line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties.178
The foregoing requirement does not apply, however, to buildings
separated by a public way or alley, which is not less than three meters
wide, unless there is a special regulation and local ordinance which
provides to the contrary.179
Now, what is the effect of violation of the foregoing distance
requirement? When windows or balconies are opened in violation of
the distance requirement in Article 670 of the Civil Code, the same
may be ordered closed because they constitute unlawful openings.180
And as discussed in supra §114.2, the mere making of such opening
does not result in the running of the 10-year prescriptive period for the
acquisition of an easement of light and view. Since the easement is a
negative one, the 10-year period begins to run only from the time of the
formal prohibition mentioned in Articles 621 and 668 of the New Civil
Code.
177
Art. 670, NCC.
178
Art. 671, NCC.
179
Art. 672, NCC.
180
See Saenz v. Figueras Hermanos, 13 Phil. 328 and Choco v. Santamaria, 21 Phil. 132.
181
Art. 669, 1st par., NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 559
EASEMENTS OR SERVITUDES
Legal Easements
with. Even in the absence of any violation, the owner of the adjacent
property may close the opening should he acquire part ownership of
the wall where the opening has been made, if there be no stipulation
to the contrary.182 If the owner of the adjacent property is not entitled to
demand for the closure of the said opening because there is no violation
of the conditions outlined in the first paragraph of Article 669 and
he does not acquire part-ownership of the wall, he may, nonetheless,
obstruct the opening by constructing a building on his land or by raising
a wall thereon contiguous to that having such opening.183 This he can
do because it is simply an exercise of his right of ownership over his
property. He may not, however, resort to this remedy if the owner of
the wall with the opening has already acquired an easement of light
pursuant to the manner outlined in Articles 621 and 668 of the Civil
Code.
182
Art. 669, 2nd par., NCC.
183
Art. 669, 3rd par., NCC.
560 PROPERTY
184
2 Castan, 9th ed., 594.
185
Art. 6(c), Water Code of the Phils.
186
Art. 7, Water Code of the Phils.
187
Art. 6, last par., Water Code of the Phils.
188
Art. 674, NCC.
189
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 561
EASEMENTS OR SERVITUDES
Legal Easements
(2) The outlet to the water must be at the point of the contiguous
lands or tenements (“the servient estate”) where its egress
may be easiest;
(3) The conduit for the drainage must be established in such
manner as to cause the least damage to the servient estate;
and
(4) Proper indemnity must be paid to the owner of the servient
estate.190
190
Art. 676, NCC.
562 PROPERTY
right to demand that they be cut off insofar as they may spread over his
property, and, if it be the roots of a neighboring tree which should pen-
etrate into the land of another, the latter may cut them off himself within
his property. (592)
Art. 681. Fruits naturally falling upon adjacent land belong to the
owner of said land. (n)
191
See Art. 679, 2nd par., NCC.
192
See Art. 679, 3rd par., NCC.
193
Art. 680, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 563
EASEMENTS OR SERVITUDES
Legal Easements
194
2 Castan, 9th ed., 596-597.
195
See Art. 621, NCC.
196
Art. 681, NCC.
197
Report of the Code Commission, p. 8.
564 PROPERTY
Art. 686. The legal easement of lateral and subjacent support is not
only for buildings standing at the time the excavations are made but also
for constructions that may be erected.
Art. 687. Any proprietor intending to make any excavation contem-
plated in the three preceding articles shall notify all owners of adjacent
lands.
198
Black’s Law Dictionary, 5th ed., 795.
199
Bouvier’s Law Dictionary, Vol. 2, 3rd revision, 1871.
200
Restatement of the Law of Torts, Vol. IV, p. 184.
201
Northern Transportation Co. v. Chicago, 99 U.S. 635, 25 L. Ed. 336.
202
Report of the Code Commission, p. 51.
203
Art. 684, NCC.
204
Art. 685, NCC.
205
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 565
EASEMENTS OR SERVITUDES
Voluntary Easements
Chapter 3
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may establish
thereon the easements which he may deem suitable, and in the manner
and form which he may deem best, provided he does not contravene the
laws, public policy or public order. (594)
Art. 689. The owner of a tenement or piece of land, the usufruct of
which belongs to another, may impose thereon, without the consent of
the usufructuary, any servitudes which will not injure the right of usufruct.
(595)
Art. 690. Whenever the naked ownership of a tenement or piece of
land belongs to one person and the beneficial ownership to another, no
perpetual voluntary easement may be established thereon without the
consent of both owners. (596)
Art. 691. In order to impose an easement on an undivided tenement,
or piece of land, the consent of all the co-owners shall be required.
The consent given by some only, must be held in abeyance until the
last one of all the co-owners shall have expressed his conformity.
But the consent given by one of the co-owners separately from the
others shall bind the grantor and his successors not to prevent the exer-
cise of the right granted. (597a)
Art. 692. The title and, in a proper case, the possession of an ease-
ment acquired by prescription shall determine the rights of the dominant
estate and the obligations of the servient estate. In default thereof, the
easement shall be governed by such provisions of this Title as are ap-
plicable thereto. (598)
Art. 693. If the owner of the servient estate should have bound him-
self, upon the establishment of the easement, to bear the cost of the work
required for the use and preservation thereof, he may free himself from
this obligation by renouncing his property to the owner of the dominant
estate. (599)
206
Art. 689, NCC.
207
Art. 691, 1st par., NCC.
208
Art. 691, par. 3, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 567
EASEMENTS OR SERVITUDES
Voluntary Easements
— oOo —
209
Art. 693, NCC.
210
4 Manresa, 5th ed., 744-746.
211
Dalion v. Court of Appeals, 182 SCRA 872, 877 (1990).
568 PROPERTY
§ 126 Concept
[126.1] Definition
The law of nuisance is neither simple nor rigorous. In fact,
commentators have described nuisance doctrine as so complex and
uncertain that it amounts to an “impenetrable jungle.”1 Indeed, nuisance
is a flexible area of the law that is adaptable to a wide variety of factual
situations2 because the term “nuisance” itself is incapable of an exact
and exhaustive definition which will fit all cases, because the controlling
facts are seldom alike, and each case stands on its own footing.3
The word nuisance is derived from the French word “nuire” which
means to injure, hurt or harm. Literally, therefore, it means annoyance,
anything that works hurt or injury.4 The concept of nuisance is so broad
that it covers “anything that unlawfully works hurt, inconvenience or
damage.”5 Hence, our Civil Code defines it in Article 694 as “any act,
1
See William L. Prosser, Torts 571, 4th ed. (1971).
2
Sharon Steel Corp. v. City of Fairmont, 175 W.Va. 479, 483, 334 S.E.2d 616, 621 (1985).
3
Harless v. Workman, 145 W.Va. 266, 273-274, 114 S.E.2d 548, 552 (1960).
4
Lebayen v. A.S. Diaz Electrical Service, Inc., 1 CA Rep. 178.
5
3 Bla. Com. 5, 216, cited in Bouvier’s Law Dictionary, 3rd revised ed., Vol. II, p. 2379.
568
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 569
NUISANCE (N)
6
City of Phoenix v. Johnson, 51 Ariz. 115, 75 P. 2d 30, cited in Black’s Law Dictionary,
5th ed., 961.
7
Lebayen v. A.S. Diaz Electric Service, Inc., 1 CA Rep. 178.
570 PROPERTY
8
Judge Sangco, Phil. Law on Torts and Damages, Vol. 2, 1994 ed., pp. 885-886.
9
39 Am Jur. 282, cited in Lebayen v. A.S. Diaz Electric Service, Inc., 1 CA Rep. 178.
10
Id.
11
Lebayen v. A.S. Diaz Electric Service, Inc., 1 CA Rep. 178.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 571
NUISANCE (N)
12
Art. 695, NCC.
13
Art. 695, NCC; see also 39 Am. Jr., Sec. 7, 284-2856.
14
Black’s Law Dictionary, 5th ed., 961.
15
Id.
16
Id., 961-962, citing Kelley v. New York, 6 Misc. 516, 27 N.Y.S. 164.
17
Adams v. Cleveland-Cliffs Iron Co., 237 Mich. App. 51, 602 N.W.2d 215 (1999); Had-
field v. Oakland County Drain Commissioner, 430 Mich. 139, 151, 422 N.W.2d 205 (1988).
18
39 Am. Jur. 282, cited in II Caguioa, Civil Code of the Philippines, 1966 ed., 332.
19
Id.
572 PROPERTY
20
William L. Prosser, Torts 63 (4th ed., 1971).
21
Restatement (Second) of Torts § 158.
22
Id.
23
Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154.
24
563 N.W.2d 154 (1997).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 573
NUISANCE (N)
court set aside the jury’s award of $100,000. The court of appeals affirmed,
reluctantly concluding that it could not reinstate the punitive damages because
it was bound by precedent establishing that an award of nominal damages will
not sustain a punitive damage award. * * *
I.
The relevant facts follow. Plaintiffs, Lois and Harvey Jacques, are an
elderly couple, now retired from farming, who own roughly 170 acres near
Wilke’s Lake in the town of Schleswig. The defendant, Steenberg Homes, Inc.
(Steenberg), is in the business of selling mobile homes. In the fall of 1993, a
neighbor of the Jacques purchased a mobile home from Steenberg. Delivery of
the mobile home was included in the sales price.
Steenberg determined that the easiest route to deliver the mobile home
was across the Jacques’ land. Steenberg preferred transporting the home across
the Jacques’ land because the only alternative was a private road which was
covered in up to seven feet of snow and contained a sharp curve which would
require sets of “rollers” to be used when maneuvering the home around the
curve. Steenberg asked the Jacques on several separate occasions whether it
could move the home across the Jacques’ farm field. The Jacques refused. The
Jacques were sensitive about allowing others on their land because they had lost
property valued at over $10,000 to other neighbors in an adverse possession
action in the mid-1980’s. Despite repeated refusals from the Jacques, Steenberg
decided to sell the mobile home, which was to be used as a summer cottage,
and delivered it on February 15, 1994.
On the morning of delivery, Mr. Jacque observed the mobile home parked
on the corner of the town road adjacent to his property. He decided to find out
where the movers planned to take the home. The movers, who were Steenberg
employees, showed Mr. Jacque the path they planned to take with the mobile
home to reach the neighbor’s lot. The path cut across the Jacques’ land. Mr.
Jacque informed the movers that it was the Jacques’ land they were planning
to cross and that Steenberg did not have permission to cross their land. He told
them that Steenberg had been refused permission to cross the Jacques’ land.
One of Steenberg’s employees called the assistant manager, who then
came out to the Jacques’ home. In the meantime, the Jacques called and asked
some of their neighbors and the town chairman to come over immediately.
Once everyone was present, the Jacques showed the assistant manager an
aerial map and plat book of the township to prove their ownership of the land,
and reiterated their demand that the home not be moved across their land.
At that point, the assistant manager asked Mr. Jacque how much money
it would take to get permission. Mr. Jacque responded that it was not a question
574 PROPERTY
of money; the Jacques just did not want Steenberg to cross their land. Mr.
Jacque testified that he told Steenberg to “[F]ollow the road, that is what the
road is for.” Steenberg employees left the meeting without permission to cross
the land.
At trial, one of Steenberg’s employees testified that, upon coming out of
the Jacques’ home, the assistant manager stated: “I don’t give a — what [Mr.
Jacque] said, just get the home in there any way you can.” The other Steenberg
employee confirmed this testimony and further testified that the assistant
manager told him to park the company truck in such a way that no one could
get down the town road to see the route the employees were taking with the
home. The assistant manager denied giving these instructions, and Steenberg
argued that the road was blocked for safety reasons.
The employees, after beginning down the private road, ultimately used a
“bobcat” to cut a path through the Jacques’ snow-covered field and hauled the
home across the Jacques’ land to the neighbor’s lot. One employee testified that
upon returning to the office and informing the assistant manager that they had
gone across the field, the assistant manager reacted by giggling and laughing.
The other employee confirmed this testimony. The assistant manager disputed
this testimony.
When a neighbor informed the Jacques that Steenberg had, in fact, moved
the mobile home across the Jacques’ land, Mr. Jacque called the Manitowoc
County Sheriff’s Department. After interviewing the parties and observing
the scene, an officer from the sheriff’s department issued a $30 citation to
Steenberg’s assistant manager. * * *
This case presents three issues: (1) whether an award of nominal damages
for intentional trespass to land may support a punitive damage award and, if
so; (2) whether the law should apply to Steenberg or should only be applied
prospectively and, if we apply the law to Steenberg; (3) whether the $100,000
in punitive damages awarded by the jury is excessive. * * *
II.
* * * Steenberg argues that, as a matter of law, punitive damages could
not be compensatory damages and here the jury awarded only nominal and
punitive damages. The Jacques contend that the rationale supporting the
compensatory damage award requirement is inapposite when the wrongful act
is an intentional trespass to land. We agree with the Jacques. * * *
The general rule was stated in Barnard v. Cohen, 162 N.W. 480 (Wis.
1917), where the question presented was: “In an action for libel, can there be
a recovery of punitory damages if only nominal compensatory damages are
found?” With the bare assertion that authority and better reason supported its
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 575
NUISANCE (N)
conclusion, the Barnard court said no. Barnard continues to state the general
rule of punitive damages in Wisconsin. See Tucker v. Marcus, 418 N.W.2d 818,
823-24 (Wis. 1988). The rationale for the compensatory damage requirement
is that if the individual cannot show actual harm, he or she has but a nominal
interest, hence, society has little interest in having the unlawful, but otherwise
harmless, conduct deterred, therefore, punitive damages are inappropriate.
Jacque v. Steenberg Homes, Inc., 548 N.W.2d 80 (Wis. Ct. App. 1996); Maxwell
v. Kennedy, 7 N.W. 657, 658-59 (Wis. 1880).
However, whether nominal damages can support a punitive damage
award in the case of an intentional trespass to land has never been squarely
addressed by this court. Nonetheless, Wisconsin law is not without reference
to this situation. In 1854 the court established punitive damages, allowing
the assessment of “damages as a punishment to the defendant for the purpose
of making an example.” McWilliams v. Bragg, 3 Wis. 424, 425 (1854). The
McWilliams court related the facts and an illustrative tale from the English case
of Merest v. Harvey, 128 Eng. Rep. 761 (C.P. 1814), to explain the rationale
underlying punitive damages.
In Merest, a landowner was shooting birds in his field when he was
approached by the local magistrate who wanted to hunt with him. Although
the landowner refused, the magistrate proceeded to hunt. When the landowner
continued to object, the magistrate threatened to have him jailed and dared
him to file suit. Although little actual harm had been caused, the English court
upheld damages of 500 pounds, explaining “in a case where a man disregards
every principle which actuates the conduct of gentlemen, what is to restrain
him except large damages?” McWilliams, 3 Wis. 424 at 428.
To explain the need for punitive damages, even where actual harm is
slight, McWilliams related the hypothetical tale from Merest of an intentional
trespasser:
* * * The Jacques argue that both the individual and society have significant
interests in deterring intentional trespass to land, regardless of the lack of
measurable harm that results. We agree with the Jacques. An examination of
the individual interests invaded by an intentional trespass to land, and society’s
interests in preventing intentional trespass to land, leads us to the conclusion
that the Barnard rule should not apply when the tort supporting the award is
intentional trespass to land.
We turn first to the individual landowner’s interest in protecting his or her
land from trespass. The United States Supreme Court has recognized that the
private landowner’s right to exclude others from his or her land is “one of the
most essential sticks in the bundle of rights that are commonly characterized
as property.” Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). This court
has long recognized “[e]very person’s] constitutional right to the exclusive
enjoyment of his own property for any purpose which does not invade the
rights of another person.” Diana Shooting Club v. Lamoreaux, 89 N.W. 880,
886 (Wis. 1902) (holding that the victim of an intentional trespass should have
been allowed to take judgment for nominal damages and costs). Thus, both this
court and the Supreme Court recognize the individual’s legal right to exclude
others from private property.
Yet a right is hollow if the legal system provides insufficient means
to protect it. Felix Cohen offers the following analysis summarizing the
relationship between the individual and the state regarding property rights:
[T]hat is property to which the following label can be
attached:
To the world:
Keep off X unless you have my permission,
which I may grant or
withhold.
Signed: Private Citizen
Endorsed: The state
Felix S. Cohen, Dialogue on Private Property, 9 Rutgers Law Review
357, 374 (1954). Harvey and Lois Jacque have the right to tell Steenberg Homes
and any other trespasser, “No, you cannot cross our land.” But that right has no
practical meaning unless protected by the State. And, as this court recognized
as early as 1854, a “halfpenny” award does not constitute state protection.
The nature of the nominal damage award in an intentional trespass to
land case further supports an exception to Barnard. Because a legal right is
involved, the law recognizes that actual harm occurs in every trespass. The
action for intentional trespass to land is directed at vindication of the legal
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 577
NUISANCE (N)
right. W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984). The
law infers some damage from every direct entry upon the land of another.
Id. The law recognizes actual harm in every trespass to land whether or not
compensatory damages are awarded. Id. Thus, in the case of intentional trespass
to land, the nominal damage award represents the recognition that, although
immeasurable in mere dollars, actual harm has occurred.
The potential for harm resulting from intentional trespass also supports
an exception to Barnard. A series of intentional trespasses, as the Jacques had
the misfortune to discover in an unrelated action, can threaten the individual’s
very ownership of the land. The conduct of an intentional trespasser, if repeated,
might ripen into prescription or adverse possession and, as a consequence, the
individual landowner can lose his or her property rights to the trespasser. See
Wis. Stat. § 893.28.
In sum, the individual has a strong interest in excluding trespassers from
his or her land. Although only nominal damages were awarded to the Jacques,
Steenberg’s intentional trespass caused actual harm. We turn next to society’s
interest in protecting private property from the intentional trespasser.
Society has an interest in punishing and deterring intentional trespassers
beyond that of protecting the interests of the individual landowner. Society has
an interest in preserving the integrity of the legal system. Private landowners
should feel confident that wrongdoers who trespass upon their land will be
appropriately punished. When landowners have confidence in the legal system,
they are less likely to resort to “selfhelp” remedies. In McWilliams, the court
recognized the importance of “‘prevent[ing] the practice of dueling, [by
permitting] juries to punish insult by exemplary damages.’” McWilliams, 3
Wis. at 428. Although dueling is rarely a modern form of self-help, one can
easily imagine a frustrated landowner taking the law into his or her own hands
when faced with a brazen trespasser, like Steenberg, who refuses to heed no
trespass warnings.
People expect wrongdoers to be appropriately punished. Punitive
damages have the effect of bringing to punishment types of conduct that, though
oppressive and hurtful to the individual, almost invariably go unpunished by
the public prosecutor. Kink v. Combs, 135 N.W.2d 789 (Wis. 1965). The $30
forfeiture was certainly not an appropriate punishment for Steenberg’s egregious
trespass in the eyes of the Jacques. It was more akin to Merest’s “halfpenny.” If
punitive damages are not allowed in a situation like this, what punishment will
prohibit the intentional trespass to land? Moreover, what is to stop Steenberg
Homes from concluding, in the future, that delivering its mobile homes via an
intentional trespass and paying the resulting Class B forfeiture, is not more
profitable than obeying the law? Steenberg Homes plowed a path across the
Jacques’ land and dragged the mobile home across that path, in the face of the
578 PROPERTY
Jacques’ adamant refusal. A $30 forfeiture and a $1 nominal damage award are
unlikely to restrain Steenberg Homes from similar conduct in the future. An
appropriate punitive damage award probably will.
In sum, as the court of appeals noted, the Barnard rule sends the wrong
message to Steenberg Homes and any others who contemplate trespassing
on the land of another. It implicitly tells them that they are free to go where
they please, regardless of the landowner’s wishes. As long as they cause no
compensable harm, the only deterrent intentional trespassers face is the nominal
damage award of $1, the modern equivalent of Merest’s halfpenny, and the
possibility of a Class B forfeiture under Wis. Stat. § 943.13. We conclude that
both the private landowner and society have much more than a nominal interest
in excluding others from private land. Intentional trespass to land causes actual
harm to the individual, regardless of whether that harm can be measured in
mere dollars. Consequently, the Barnard rationale will not support a refusal
to allow punitive damages when the tort involved is an intentional trespass to
land. Accordingly, assuming that the other requirements for punitive damages
have been met, we hold that nominal damages may support a punitive damage
award in an action for intentional trespass to land. * * *
In conclusion, we hold that when nominal damages are awarded for an
intentional trespass to land, punitive damages may, in the discretion of the jury,
be awarded. Our decision today shall apply to Steenberg Homes. Finally, we
hold that the $100,000 punitive damages awarded by the jury is not excessive.
Accordingly, we reverse and remand to the circuit court for reinstatement of
the punitive damage award.
25
Hendricks v. Stalnaker, 380 S.E.2d 198, 200-202 (W.Va. 1989).
26
Adkins v. Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 579
NUISANCE (N)
suit to prosper, the plaintiff must be able to prove two things: (1) that
there was damage to the property;27 and (2) the interference is either:
(a) intentional and unreasonable; or (b) or unintentional and otherwise
negligent or reckless conduct; or (c) resulting in abnormally dangerous
activities in an inappropriate place.28
27
St. Helen’s Smelting Co. v. Tipping, II ER 1483 (1865).
28
Hendricks v. Stalnaker, supra; Restatement (Second) Torts § 822.
29
See Jacque v. Steenberg Homes, Inc., supra.
30
II ER 1483 (1865).
31
(1997) AC 655.
580 PROPERTY
Hendricks v. Stalnaker
Supreme Court of Appeals of West Virginia, 1989
380 S.E.2d 198
NEELY, Justice:
Walter S. Stalnaker, defendant below, appeals from a decision by the
Circuit Court of Lewis County declaring a water well drilled on his property
to be a private nuisance to Harry L. Hendricks and Mary Hendricks, plaintiffs
32
Tetley v. Chitty (1986).
33
Bone v. Seal (1975).
34
Hendricks v. Stalnaker, supra; Restatement (Second) Torts § 822.
35
Id., citing Restatement (Second) Torts § 825 (1979).
36
Id.
37
Id., citing W. Prosser, supra § 87, at 581, § 89 at 596; Restatement (Second) of Torts § 826
(1979); W. Keeton, supra § 88, at 629. Restatement (Second) of Torts §§ 827 and 828 (1979).
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 581
NUISANCE (N)
below. The Hendrickses, owners of the property adjacent to that of Mr. Stalnaker,
were refused a Health Department permit for a septic system located within
100 feet of Mr. Stalnaker’s water well. The Circuit Court of Lewis County,
based on a jury verdict, found the water well to be a private nuisance and
ordered its abatement. On appeal, Mr. Stalnaker argues that because his water
well was not an unreasonable use of his land, he is not liable for the effects on
the Hendrickses’ property. We agree and, therefore, reverse the decision of the
circuit court.
Mr. Stalnaker owns approximately 10 acres of land situated on Glady
Fork Road, Lewis County. In 1985, Mr. Stalnaker constructed his home on a
2.493 acre portion of the tract, and had two water wells dowsed. One well was
located behind his house and the other, near the Hendrickses’ property. The
rear well was near land disturbed by a former strip mine and, therefore, the
well produced poor quality water. Except for a small section of land near the
Hendrickses’ property — the location of the second “dowsed” well — most of
Mr. Stalnaker’s home tract had been disturbed by a strip mine. In August 1985,
Mr. Stalnaker spent approximately $3,000 in an unsuccessful attempt to treat
the water from the rear well.
In 1984, the Hendrickses purchased approximately 2.95 acres adjacent
to Mr. Stalnaker’s property for a home site or a trailer development. On
31 December 1985, Mr. Hendricks met with the Lewis County sanitarian
to determine locations for a water well and a septic system. The Health
Department requires a distance of 100 feet between water wells and septic
systems before it will issue permits. Because the Hendrickses’ land was too
hilly or had been disturbed in order to build a pond, the only location for a
septic system on the tract was near Mr. Stalnaker’s property. On 13 January
1986, the Hendrickses contacted the county sanitarian to visit their property
to complete the septic system permit application. The county sanitarian said
because of snowy weather he would come out later in the week.
On 13 January 1986, Mr. Stalnaker called the sanitarian and was told
about the Hendrickses’ proposed septic system. Mr. Stalnaker was also told that
the county sanitarian would be unavailable on 14 January 1986 but could meet
with him on 15 January 1986. On 14 January 1986, Mr. Stalnaker contacted a
well driller, who applied for and received a well drilling permit for the second
well from the assistant sanitarian. The well was completed on 25 January 1986
but was not connected to Mr. Stalnaker’s home until January 1987.
On 15 January 1986, the county sanitarian informed Mr. Hendricks that
no permit for his proposed septic system could be issued because the absorp-
tion field for his septic system was within one hundred feet of Mr. Stalnaker’s
water well. Mr. Hendricks did install a septic system without a permit in Janu-
582 PROPERTY
ary 1987; however, the system was left inoperative pending the outcome of
this suit.
The Hendrickses filed suit in the Circuit Court of Lewis County on 29
January 1987 requesting: (1) the water well be declared a private nuisance, (2)
the nuisance be abated, and (3) damages. In a bifurcated trial, the jury found
that the water well was a private nuisance and the trial judge ordered it to be
abated. On the issue of damages the jury found for the defendant and awarded
no damages.
I
In the past we have broadly described what constitutes a nuisance:
A nuisance is anything which annoys or disturbs the free use
of one’s property, or which renders its ordinary use or physical
occupation uncomfortable. . . A nuisance is anything which
interferes with the rights of a citizen, either in person, property,
the enjoyment of his property, or his comfort. . . A condition is
a nuisance when it clearly appears that enjoyment of property is
materially lessened, and physical comfort of persons in their homes
is materially interfered with thereby. (Citations omitted).
Martin v. Williams, 93 S.E.2d 835, 844 (W. Va. 1956). * * * This definition
of nuisance includes acts or conditions that affect either the general public or a
limited number of persons. In Hark v. Mountain Fork Lumber Co., 34 S.E.2d
348, 354 (W. Va. 1945) we defined a public nuisance as that which “affects
the general public as public, and [a private nuisance as that which] injures one
person or a limited number of persons only.”
In order clearly to delineate between a public nuisance and a private
nuisance, we define a private nuisance as a substantial and unreasonable
interference with the private use and enjoyment of another’s land. The definition
of private nuisance includes conduct that is intentional and unreasonable,
negligent or reckless, or that results in an abnormally dangerous conditions or
activities in an inappropriate place. See W. Prosser, Handbook of the Law of
Torts § 87 at 580, § 89 at 593 (4th ed. 1971); Restatement (Second) of Torts §§
821D, 821F, 822 (1979); W. Keeton, Prosser and Keeton on the Law of Torts §
87 (5th ed. 1984). Recovery for a private nuisance is limited to plaintiffs who
have suffered a significant harm to their property rights or privileges caused by
the interference. Restatement (Second) of Torts §§ 821E, 821F (1979).
Early West Virginia cases indicate that the existence of a private nuisance
was determined primarily by the harm caused. Medford v. Levy, 8 S.E. 302
(W. Va. 1888) (cooking odors); Flanagan v. Gregory and Poole, Inc., 67
S.E.2d 865 (W. Va. 1951) (inadequate culvert). Gradually, the focus included
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 583
NUISANCE (N)
a water well merely requires non-interference within 100 feet of its location. In
the case of a septic system, however, the 100 foot safety zone, extending from
the edge of the absorption field, may intrude on adjacent property. Thus, the
septic system, with its potential for drainage, places a more invasive burden on
adjacent property. Clearly both uses present similar considerations of gravity
of harm and social value of the activity alleged to cause the harm. Both a water
well and a septic system are necessary to use this land for housing; together
they constitute the in and out of many water systems. Neither party has an
inexpensive and practical alternative. The site of the water well means quality
water for Mr. Stalnaker, and the Hendrickses have only one location available
for their septic system.
In the case before us, we are asked to determine if the water well is a
private nuisance. But if the septic system were operational, the same question
could be asked about the septic system. Because of the similar competing
interests, the balancing of these landowners’ interests is at least equal or,
perhaps, slightly in favor of the water well. Thus, the Hendrickses have not
shown that the balancing of interests favors their septic system. We find that
the evidence presented clearly does not demonstrate that the water well is an
unreasonable use of land and, therefore, does not constitute a private nuisance.
***
We find that because the evidence is not disputed and only one interference
is reasonable, the trial court should have held as a matter of law that the water
well was not a private nuisance. * * *
Reversed.
38
See Bliss v. Hale (1838), 7 L.J.R. 122 (1838); Sturges v. Bridgeman, 11 Eng. Rep. 852
(Ch. D. 1879).
39
R. v. Neville, 170 Eng. Rep. 102 (1791); Colls v. Home and Colonial Stores, (1865) A.C.
179.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 585
NUISANCE (N)
40
Salao v. Santos, G.R. No. L-45519, April 26, 1939, citing Iloilo Ice and Cold Storage Co.
v. Municipal Council of Iloilo, 24 Phil. 471; Monteverde v. Generoso, 52 Phil. 123, 127.
41
Black’s Law Dictionary, 5th ed., 962, citing Bluemer v. Saginaw Central Oil & Gas Ser-
vice, Inc., 356 Mich. 399, 97 N.W.2d 90, 96; Koeber v. Apex-Albuq Phoenix Exp., 72 N.M.4, 380
P.2d 14, 15, 16.
42
Salao v. Santos, supra.
43
Black’s Law Dictionary, 5th ed., 962, citing Robichaux v. Happunbauer, 258 La.
44
Salao v. Santos, supra.
45
State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W. 2d 716, 719, cited in Black’s
Law Dictionary, 5th ed., 962.
46
Suddeth v. Knight, 280 S.C. 540, 545, 314 S.E.2d 11, 14 (Ct. App. 1984); Black’s Law
Dictionary 1094 (7th ed., 1999).
47
Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, supra.
48
Id.
49
16 Phil. 8.
586 PROPERTY
50
Hidalgo Enterprises, Inc. v. Balandan, 48 O.G. 2641 (1932).
51
Id.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 587
NUISANCE (N)
Art. 702. The district health officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a
public nuisance.
Art. 703. A private person may file an action on account of a public
nuisance, if it is specially injurious to himself.
Art. 704. Any private person may abate a public nuisance which is
specially injurious to him by removing, or if necessary, by destroying the
thing which constitutes the same, without committing a breach of the
peace, or doing unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of
the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer
and executed with the assistance of the local police; and
(4) That the value of the destruction does not exceed Three thou-
sand pesos (P3,000).
Art. 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
Art. 706. Any person injured by a private nuisance may abate it by
removing, or if necessary by destroying the thing which constitutes the
nuisance, without committing a breach of the peace or doing unneces-
sary injury. However, it is indispensable that the procedure for extrajudi-
cial abatement of a public nuisance by a private person be followed.
Art. 707. A private person or a public official extrajudicially abating
a nuisance shall be liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to be not
a real nuisance.
§ 128. Remedies
Whether the nuisance is public or private, the following remedies
are available: (1) a civil action; or (2) abatement, without judicial
proceedings.52 With regard to a public nuisance, the additional remedy
52
Arts. 699(2) and (3) and 705(1) and (2), NCC.
588 PROPERTY
53
Art. 699(1), NCC.
54
See Art. 195(2), RPC.
55
See Arts. 699 and 705. NCC.
56
Parayno v. Jovellanos, G.R. No. 148408, July 14, 2006; City of Manila v. Judge Laguio,
Jr., G.R. No. 118127, April 25, 2005; Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., G.R.
No. 148339, Feb. 23, 2005; Santos v. Santos, G.R. No. L-45519, April 26, 1939.
57
Supra.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 589
NUISANCE (N)
58
Id.
59
Id.
60
Supra.
61
Supra.
590 PROPERTY
compelled to close down their existing terminals and use the facilities
of Lucena Grand Central. Hence, they questioned the validity of the
ordinance. The Court held that the bus and jeepney terminals are not
nuisances per se. Hence, they may not be abated via an ordinance,
without judicial proceedings, as was done in this case.
In City of Manila v. Judge Laguio, Jr.,62 the Court likewise struck
down the ordinance passed by the City Council of Manila prohibiting
the operation of sauna parlors, massage parlors, karaoke bars, night
clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns within the Ermita-Malate area. The Court held, among
others, that the City of Manila could not seek cover under the general
welfare clause to authorize the abatement of nuisances without judicial
proceedings because motels are not nuisances per se.
In Santos v. Salao,63 the Court also declared null and void the
order of the municipal president of Malabon, Rizal and those of its
health authorities issued with a view to the summary abatement of the
appellant’s smoked fish factory. The Court reasoned that the smoked
fish factory is a legitimate industry and not a nuisance per se which
could be abated summarily.
62
Supra.
63
Supra.
64
Art. 704, NCC.
PROPERTY, OWNERSHIP, AND ITS MODIFICATION 591
NUISANCE (N)
65
Id.
66
Art. 706, NCC.
67
Art. 707, NCC.
68
See Art. 701, NCC.
69
See Art. 705(1), NCC.
70
See Art. 703.
71
See Art. 696, NCC.
592 PROPERTY
Art. 708. The Registry of Property has for its object the inscription
or annotation of acts and contracts relating to the ownership and other
rights over immovable property. (605)
Art. 709. The titles of ownership, or of other rights over immovable
property, which are not duly inscribed or annotated in the Registry of
Property shall not prejudice third persons. (606)
Art. 710. The books in the Registry of Property shall be public for
those who have a known interest in ascertaining the status of the immov-
ables or real rights annotated or inscribed therein. (607)
Art. 711. For determining what titles are subject to inscription or
annotation, as well as the form, effects, and cancellation of inscriptions
and annotations, the manner of keeping the books in the Registry, and
the value of the entries contained in said books, the provisions of the
Mortgage Law, the Land Registration Act, and other special laws shall
govern. (608a)
— oOo —
592
593
BOOK III
DIFFERENT MODES OF ACQUIRING
OWNERSHIP
PRELIMINARY PROVISION
ARTICLE 712. Ownership is acquired by occupation and by intel-
lectual creation.
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by testate and intestate succession, and
in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)
1
3 Sanchez Roman 199-200.
2
See Art. 712, NCC.
593
594 PROPERTY
3
Acap v. CA, G.R. No. 118114, Dec. 7, 1995.
4
II Caguioa, Civil Code of the Phil., 1966 ed., 351-352.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 595
PRELIMINARY PROVISION
5
San Lorenzo Development Corp. v. CA, G.R. No. 124242, Jan. 21, 2005, citing Villan-
ueva, Philippine Law on Sales, 1995 ed., 5.
6
3 Sanchez Roman 200.
7
3 Sanchez Roman 200.
8
San Lorenzo Development Corp. v. CA, supra.
9
Equatorial Realty Development, Inc. v. Mayfair Theater, Inc., 370 SCRA 56 (2001).
10
Fidelity and Deposit Co. v. Wilson, 8 Phil. 51.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 597
PRELIMINARY PROVISION
11
San Lorenzo Development Corp. v. CA, supra.
12
Id.
13
3 Sanchez Roman, 234-235.
14
Rudolph Sohm, The Institutes of Roman Law, 2002 ed., 235.
15
Union Motor Corporation v. CA, G.R. No. 117817, July 20, 2001, citing Norkis Distribu-
tors, Inc. v. CA, 193 SCRA 694, 698 (1991).
16
Id.
598 PROPERTY
Aznar v. Yapdiangco
13 SCRA 486 (1965)
In May, 1959, Teodoro Santos advertised in two metropolitan papers the
sale of his Ford Fairlane 500. In the afternoon of May 28, 1959, a certain L. De
Dios, claiming to be a nephew of Vicente Marella, went to the Santos residence
to answer the ad. However, Teodoro Santos was out during this call and only his
son, Irineo Santos, received and talked with De Dios. The latter told the young
Santos that he had come in behalf of his uncle, Vicente Marella, who was
interested to buy the advertised car. On being informed of this, Teodoro Santos
instructed his son Ireneo to see the said Vicente Marella the following day at
his given address.The following day, Irineo Santos went to the said address. At
this meeting, Marella agreed to buy the car for P14,700.00 on the understanding
that the price would be paid only after the car had been registered in his name.
Pursuant to such condition, Vicente Santos transferred the registration of the
car in the name of Marella even without the payment of the purchased price.
When Ireneo Santos turned over to Marella the registration papers and a copy
of the deed of sale and demanded for the payment of the purchase price,
Marella begged off to be allowed to secure the money from a sister supposedly
living in another place. Thereafter, Marella ordered L. De Dios to go to the said
sister and suggested that Irineo Santos go with him. At the same time, Marella
requested the registration papers and the deed of sale from Irineo Santos on
the pretext that he would like to show them to his lawyer. Trusting the good
faith of Marella, Irineo handed over the same to the latter and thereupon, in
the company of L. De Dios and another unidentified person, proceeded to the
alleged house of Marella’s sister. At a certain place on Azcarraga Street, Irineo
Santos and L. De Dios alighted from the car and entered a house while their
unidentified companion remained in the car. Once inside, L. De Dios asked
Irineo Santos to wait at the sala while he went inside a room. That was the
last that Irineo saw of him. For, after a considerable length of time waiting in
vain for De Dios to return, Irineo went down to discover that neither the car
nor their unidentified companion was there anymore. Going back to the house,
he inquired from a woman he saw for L. De Dios and he was told that no
such name lived or was even known therein. Whereupon, Irineo Santos rushed
to the alleged house of Marella to see the latter. He found the house closed
and Marella gone. Finally, he reported the matter to his father who promptly
DIFFERENT MODES OF ACQUIRING OWNERSHIP 601
PRELIMINARY PROVISION
advised the police authorities. On that same day, Marella was able to sell the
car in question to Jose B. Aznar for P15,000.00, the latter acting in good and
without notice of the defect appertaining to the vendor’s title. While the car in
question was in the possession of Jose B. Aznar and while he was attending to
its registration in his name, agents of the Philippine Constabulary seized and
confiscated the same in consequence of the report to them by Teodoro Santos
that the said car was unlawfully taken from him. On the question of whether
Marella acquired ownership over the car with the delivery of the key of the car
to him, the Court ruled in the negative. The Court explained —
Vicente Marella did not have any title to the property under
litigation because the same was never delivered to him. He sought
ownership or acquisition of it by virtue of the contract. Vicente
Marella could have acquired ownership or title to the subject
matter thereof only by the delivery or tradition of the car to him.
Under Article 712 of the Civil Code, “ownership and other
real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of
certain contracts, by tradition.” As interpreted by this Court in a host
of cases, by this provision, ownership is not transferred by contract
merely but by tradition or delivery. Contracts only constitute titles
or rights to the transfer or acquisition of ownership, while delivery
or tradition is the mode of accomplishing the same (Gonzales v.
Rojas, 16 Phil. 51; Ocejo, Perez and Co. v. International Bank, 37
Phil. 631, Fidelity and Deposit Co. v. Wilson, 8 Phil. 51; Kuenzle
& Streiff v. Wacke & Chandler, 14 Phil. 610; Easton v. Diaz Co.,
32 Phil. 180).
For the legal acquisition and transfer of ownership and other
property rights, the thing transferred must be delivered, inasmuch
as, according to settled jurisprudence, the tradition of the thing is
a necessary and indispensable requisite in the acquisition of said
ownership by virtue of contract. (Walter Laston v. E. Diaz & Co. &
the Provincial Sheriff of Albay, supra.)
So long as property is not delivered, the ownership over it is
not transferred by contract merely but by delivery. Contracts only
constitute titles or rights to the transfer or acquisition of ownership,
while delivery or tradition is the method of accomplishing the
same, the title and the method of acquiring it being different in our
law. (Gonzales v. Roxas, 16 Phil. 51)
In the case on hand, the car in question was never delivered
to the vendee by the vendor as to complete or consummate the
602 PROPERTY
17
2 Castan, 9th ed., 227-228.
18
Art. 1497, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 603
PRELIMINARY PROVISION
19
Rudolph Sohm, The Institutes of Roman Law, 2002 ed., 234-235.
20
Addison v. Felix and Tioco, 38 Phil. 404, 408 (1918).
21
Art. 1498, NCC.
22
Equatorial Realty Development, Inc. v. Mayfair Theater, Inc., supra, citing Vda. De
Sarmiento v. Lesaca, 108 Phil. 900, 903 (1960).
23
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 605
PRELIMINARY PROVISION
24
Id.
25
Supra.
606 PROPERTY
passing of the property from the hands of the vendor into those of
the vendee. x x x.”
The execution of a public instrument gives rise, therefore,
only to a prima facie presumption of delivery. Such presumption
is destroyed when the instrument itself expresses or implies that
delivery was not intended; or when by other means it is shown that
such delivery was not effected, because a third person was actually
in possession of the thing. In the latter case, the sale cannot be
considered consummated.
26
3 Sanchez Roman 209-210.
27
2 Castan, 9th ed., 227-228.
28
Sps. Aguirre v. Heirs of Lucas Villanueva, G.R. No. 169898, Oct. 27, 2006; see also Arts.
1106 and 1118, NCC.
29
Director of Lands v. Intermediate Appellate Court, 209 SCRA 214, 224 (1992).
30
Id.
31
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 609
PRELIMINARY PROVISION
32
Id.
33
Art. 1117, NCC.
34
Id.
610 PROPERTY
35
Arzadon-Crisologo v. Rañon, G.R. No. 171068, Sept. 5, 2007.
36
Sps. Aguirre v. Heirs of Lucas Villanueva, supra, citing Heirs of Segunda Maningding v.
CA, 342 Phil. 567, 574 (1997); see Art. 1127, NCC.
37
Art. 1129, NCC.
38
Art. 1131, NCC.
39
Art. 1132, NCC.
40
Art. 1134, NCC.
41
Art. 1137, NCC.
42
Art. 1138, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 611
PRELIMINARY PROVISION
43
Heirs of Leopoldo Vencilao, Sr. v. CA, 288 SCRA 574 (1998).
44
7 SCRA 109 (1963).
45
Umbay v. Alecha, 220 Phil. 103 (1985); Quevada v. Glorioso, 356 Phil. 105 (1998);
Bishop v. Court of Appeals, 208 SCRA 636 (1992); St. Peter Memorial Park, Inc. v. Cleofas,
92 SCRA 389 (1979).
46
Mateo v. Diaz, G.R. No. 137305, Jan. 17, 2002; Velez, Sr. v. Demetrio, G.R. No. 128576,
Aug. 13, 2002.
47
Art. 1108(4), NCC.
48
Art. 1113, NCC.
49
G.R. No. 130876, Dec. 5, 2003.
612 PROPERTY
50
Buan v. Vda. De Esconde v. CA, 323 Phil. 81, 89 (1996).
51
Id.
52
Id.
53
Id.
54
Sanchez v. CA, 404 SCRA 541 (2003).
55
Art. 494, last par., NCC.
56
Arts. 540 and 1118, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 613
PRELIMINARY PROVISION
57
Esguerra v. Manantan, G.R. No. 158328, Feb. 23, 2007.
58
Id.
59
Id.
60
Arts. 536 and 1118, NCC.
61
Arts. 537 and 1118, NCC.
62
Art. 1109, 1st par., NCC.
63
Art. 1109, 2nd par., NCC.
64
Art. 1107, NCC.
614 PROPERTY
— oOo —
65
IV Tolentino, Civil Code of the Phil., 1992 ed., 4.
66
Id.
67
Id.
68
Art. 741, NCC.
615
Title I. OCCUPATION
615
616 PROPERTY
finder. The finder and the owner shall be obliged, as the case may be, to
reimburse the expenses. (615a)
Art. 720. If the owner should appear in time, he shall be obliged to
pay, as a reward to the finder, one-tenth of the sum or of the price of the
thing found. (616a)
§ 133. Occupation
[133.1] Concept and Requisites
Occupation is a mode of acquiring ownership by the seizure
or apprehension of things corporeal which have no owner with the
intention of acquiring them and according to the rules laid down by
law.1 It consists in taking possession of a thing over which no one has a
proprietary right. The rule of the law is res nullius cedit occupanti.
There are four (4) essential conditions or requisites which must
co-exist in order to give to occupation its full legal significance as a
mode of acquiring ownership. First, the thing must be a res nullius —
that is, a thing which either never had an owner, or which, by virtue of
a previous abandonment (dereliction), has not an owner at the time of
its occupation. Secondly, it must be appropriable by nature or one that
can be seized or apprehended. In other words, it must be corporeal.
Thirdly, it must be brought into the actual possession or control of the
one professing to acquire it. Fourthly, the person must acquire it with the
intention of acquiring ownership. He must therefore have the necessary
capacity to consent.2
1
3 Sanchez Roman 209.
2
3 Sanchez 210; 2 Castan 140.
3
Art. 715, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 617
OCCUPATION
4
Art. 716, NCC.
5
2 Castan, 9th ed., 212.
6
Art. 716, NCC.
7
Id.
618 PROPERTY
8
See Art. 560, NCC.
9
Art. 716, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 619
OCCUPATION
10
Art. 439, NCC.
620 PROPERTY
11
U.S. v. Rey, 8 Phil. 500 (1907).
12
Id.
13
Id.
14
See Art. 556, NCC.
15
Art. 719, 1st par., NCC.
16
Art. 308(1), RPC.
17
Art. 719, 2nd par., NCC.
18
Art. 719, 4th par., NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 621
OCCUPATION
— oOo —
19
Art. 720, NCC.
622 PROPERTY
1
Http://www.wipo.int.
622
DIFFERENT MODES OF ACQUIRING OWNERSHIP 623
INTELLECTUAL CREATION
2
Art. 721, NCC.
3
Art. 722, NCC.
4
Santos v. McCullough Printing Co., 12 SCRA 321; Filipino Society of Composers, Au-
thors and Publishers, Inc. v. Tan, 148 SCRA 461.
5
Id.
624 PROPERTY
material or physical object (the letter itself) and the ideas or thoughts
contained in the letter (its contents). The former is owned by the person
to whom it is addressed and delivered (the recipient) but the latter is
owned by the author or writer (the sender). As a consequence, while the
recipient may have the control and possession of the physical letter itself
by virtue of his ownership of the same, the author’s consent is required
in cases of publication or dissemination of the letter.6 In addition, the
copyright also belongs to the author or writer (the sender).7 If the
author’s consent is not obtained in the publication and dissemination
of the contents of the letter, the latter may seek injunctive relief from
the courts, in addition to his right to recover damages. However, if
the public good or the interest of justice so requires, the court may
authorize the publication or dissemination of a letter or other private
communications.8
— oOo —
6
Art. 723, NCC.
7
Sec. 178.6, R.A. No. 8293.
8
Art. 723, NCC.
625
Chapter 1
NATURE OF DONATIONS
1
Art. 725, NCC.
2
Concurring opinion of J. Antonio in Alejandro v. Geraldez, 78 SCRA 245, 266.
3
II Caguioa, Civil Code, 1966 ed., p. 363.
4
Heirs of Rosendo Sevilla Florencio v. Heirs of Teresa Sevilla de Leon, 425 SCRA 447,
458-459 (2004), citing Republic v. Guzman, 326 SCRA 90, 95 (2000). See also Abello v. Commis-
sioner of Internal Revenue, 452 SCRA 162, 168 (2005).
5
4 Castan, 7th ed., 163, cited in II Caguioa, Civil Code, 1966 ed., 363.
625
626 PROPERTY
6
452 SCRA 162, Feb. 23, 2005.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 627
DONATION
Nature of Donations
7
At pp. 168-169.
8
Id., at p. 170.
9
Id.
10
Supra.
628 PROPERTY
Republic v. Guzman
326 SCRA 90 (Feb. 18, 2000)
David Rey Guzman, a natural-born American citizen, is the son of the
spouses Simeon Guzman, a naturalized American citizen but formerly a citizen
At pp. 170-171.
11
12
See Justice v. Court of Appeals, 153 SCRA 269 (1987) and Aldaba v. Court of Appeals,
27 SCRA 263.
13
Supra.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 629
DONATION
Nature of Donations
David, maintains, on the other hand, that he acquired the property by right
of accretion and not by way of donation, with the deeds of quitclaim merely
declaring Helen’s intention to renounce her share in the property and not an
intention to donate. The intention of Helen, in fact, was to preserve the Bulacan
properties within the bloodline of Simeon from where they originated, over and
above the benefit that would accrue to David by reason of her renunciation.
In holding that the subject quitclaims are not in the nature of donation,
the Court explained —
14
Art. 1305, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 631
DONATION
Nature of Donations
15
See Art. 734, NCC. See also Concurring opinion of J. Antonio in Alejandro v. Geraldez,
78 SCRA 245, 266-267 and Lagazo v. CA, 287 SCRA 18, 27.
16
See Art. 732, NCC.
17
II Caguioa, Civil Code, 1966 ed., 364-365.
18
4 Castan, 7th ed., 169, cited in II Tolentino, Civil Code, 1992 ed., 530 and II Caguioa,
Civil Code, 1966 ed., 365.
632 PROPERTY
19
See Lawyer’s Journal, Nov. 30, 1950, p. 555.
20
Heirs of Rosendo Sevilla Florencio v. Heirs of Teresa Sevilla De Leon, 425 SCRA 447,
458, citing Art. 712, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 633
DONATION
Nature of Donations
21
L-11240, Feb. 13, 1958.
22
Heirs of Cesario Velasquez v. CA, 324 SCRA 552; see also Vda. De Arceo v. CA, 185
SCRA 489 (1990).
23
Id.
634 PROPERTY
24
Alejandro v. Geraldez, 78 SCRA 245, 253, citing Bonsato v. Court of Appeals, 95 Phil.
481.
25
Id., citing Castro v. Court of Appeals, 27 SCRA 1076.
26
Republic v. Silim, 356 SCRA 1, 8.
27
Id., citing Art. 725, NCC.
28
Lagazo v. Court of Appeals, 287 SCRA 18, 24. Also in De Luna v. Abrigo, 181 SCRA
150, 155.
29
Republic v. Silim, supra, p. 8.
30
Id., citing Art. 726, NCC.
31
Id., citing Arts. 726 and 733, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 635
DONATION
Nature of Donations
32
Id., citing Art. 733, NCC. See also De Luna v. Abrigo, supra, p. 156.
33
Id. See also Art. 733, NCC.
34
Alejandro v. Geraldez, 78 SCRA 245, 253 (1977).
35
Id.
36
Bonsato v. Court of Appeals, 95 Phil. 481, cited in Puig v. Peñaflorida, 15 SCRA 276,
282 (1965).
37
Alejandro v. Geraldez, supra, p. 254.
636 PROPERTY
Note that the New Civil Code does not use the term donation
mortis causa.38 According to Manresa, a transfer mortis causa, which
should be embodied in a last will and testament, should not be called
donation mortis causa since it is in reality a legacy.39 The term “donation
mortis causa” as commonly employed is merely a convenient name to
designate those dispositions of property that are void when made in the
form of donations.40
38
Id.
39
5 Manresa, Codigo Civil, 6th ed., p. 107, cited in Alejandro v. Geraldez, supra, p. 252.
40
Bonsato v. CA, supra, p. 487.
41
Alejandro v. Geraldez, supra, p. 253.
42
Id., p. 253, citing Bonsato v. Court of Appeals, 95 Phil. 481.
43
Id., citing Castro v. Court of Appeals, 27 SCRA 1076.
44
Reyes v. Mosqueda, 187 SCRA 661, 671 (1990). See also Austria-Magat v. Court of
Appeals, 375 SCRA 556, citing Gestopa v. Court of Appeals, 342 SCRA 105, 110.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 637
DONATION
Nature of Donations
45
Castro v. Court of Appeals, 27 SCRA 1076, 1082 (1969), cited in National Treasurer of
the Phil. v. Vda. De Meimban, 131 SCRA 264, 269 (1984).
46
Castro v. CA, supra, pp. 1082-1083.
47
5 Manresa, Codigo Civil, 6th ed., p. 108, cited in Castro v. CA, supra, p. 1083.
638 PROPERTY
48
Gestopa v. Court of Appeals, 342 SCRA 105, 111 (2000), citing Alejandro v. Geraldez,
supra, p. 261.
49
Sicad v. Court of Appeals, 294 SCRA 183, 191. See also Gestopa v. CA, supra, p. 112
(2000).
50
Concepcion v. Concepcion, 91 Phil. 823.
51
Puig v. Peñaflorida, 15 SCRA 276, 283, citing Laureta v. Mata, 44 Phil. 668; Concepcion
v. Concepcion, supra; Cuevas v. Cuevas, 68 Phil. 68
52
Id., citing Concepcion v. Concepcion, supra; Bonsato v. Court of Appeals, supra.
53
Reyes v. Mosqueda, 187 SCRA 661, 669 (1990).
54
44 Phil. 668 (1928).
55
Cited in Reyes v. Mosqueda, supra, p. 669.
56
Supra.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 639
DONATION
Nature of Donations
57
Puig v. Peñaflorida, 15 SCRA 276, 283.
58
44 Phil. 668.
640 PROPERTY
59
Cited in Alejandro v. Geraldez, supra, 258.
60
53 Phil. 673.
61
Cited in Alejandro v. Geraldez, supra, 258.
62
91 Phil. 823.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 641
DONATION
Nature of Donations
63
Ganuelas v. Cawed, 401 SCRA 447, 455 (2003).
64
Id.
65
Id.; See also Art. 728, NCC.
66
Howard v. Padilla, 96 Phil. 983.
67
Cited in Alejandro v. Geraldez, supra, 256-257.
68
Cariño v. Abaya, 70 Phil. 182, cited in Alejandro v. Geraldez, supra, 257.
69
Bautista v. Sabiniano, 92 Phil. 244, cited in Alejandro v. Geraldez, supra, 257 and Bon-
sato v. CA, 95 Phil. 481.
642 PROPERTY
70
David v. Sison, 76 Phil. 418, cited in Alejandro v. Geraldez, supra, 257.
71
Maglasang v. Heirs of Cabatingan, 383 SCRA 6 (2002). See also Ganuelas v. Cawed, 401
SCRA 447 (2003).
72
Id.
73
Id.
74
Puig v. Peñaflorida, supra, 283, citing Bautista v. Sabiniano, 92 Phil. 244 and Bonsato v.
Court of Appeals, 95 Phil. 481
75
Gestopa v. CA, 342 SCRA 105, 113 (2000).
76
5 Manresa 88.
77
Cited in the concurring opinion of J. Antonio in Alejandro v. Geraldez, supra, pp. 266-
267.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 643
DONATION
Nature of Donations
78
Id.
79
92 Phil. 245, cited in the concurring opinion of J. Antonio in Alejandro v. Geraldez,
supra, pp. 266-267.
80
Concurring opinion of J. Antonio in Alejandro v. Geraldez, supra, pp. 266-267.
81
Id.
82
Gestopa v. Court of Appeals, 342 SCRA 105 (2000).
83
Id.
84
Id.
85
Austria-Magat v. Court of Appeals, 375 SCRA 556 (2002).
644 PROPERTY
86
95 Phil. 481 (1954).
87
Supra.
88
Bonsato v. Court of Appeals, 95 Phil. 481 (1954).
DIFFERENT MODES OF ACQUIRING OWNERSHIP 645
DONATION
Nature of Donations
89
Cuevas v. Cuevas, 98 Phil. 68 (1955).
90
Sicad v. Court of Appeals, 294 SCRA 183 (1998).
91
76 Phil. 418 (1946), cited in Sicad v. CA, supra.
92
Supra. See also Sicad v. CA, supra.
646 PROPERTY
93
Gestopa v. Court of Appeals, 342 SCRA 105.
94
See discussion in supra § ________.
95
Supra.
96
Supra.
97
Puig v. Peñaflorida, supra, 286.
98
Id., 286.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 647
DONATION
Nature of Donations
satisfy her needs, the donation must be held to partake of the nature of
a conveyance inter vivos. In Puig case, while there is a clause that the
donor reserved her right “to mortgage or even sell the donated property,
when and if she should need funds to meet her own needs,” the Court
held that such donation is inter vivos. According to the Court, the last
sentence of the stipulation appears incompatible with the grantor’s
freedom to revoke a true conveyance mortis causa, a faculty that is
essentially absolute and discretionary, whether its purpose should be
to supply her needs or to make a profit, or have no other reason than
a change of volition on the part of the grantor-testator. If the donor,
says the Court, wished or intended to retain the right to change the
destination of her property at her sole will and discretion, there was no
reason for her to specify the causes for which she could sell or encumber
the property covered by her bounty.
99
Ganuelas v. Cawed, 401 SCRA 447, 455-456 (2003), citing Austria-Magat v. CA, 375
SCRA 556. See also Bonsato v. CA, supra, and Alejandro v. Geraldez, supra, pp. 254-255.
648 PROPERTY
donee during the donor’s lifetime, not by reason of his death but because
of the deed of donation, then the donation is inter vivos.100 As explained
earlier, donation inter vivos, in turn, may be classified into: (1) pure or
simple;101 (2) remuneratory,102 (3) modal,103 and (4) onerous.104
Carlos v. Ramil
20 Phil. 183
FACTS: The couple Agustin Carlos and his wife, Juliana Carlos, brought
into their company a young girl from their neighborhood. The couple supported
the girl and the latter served them in return. When the girl grew up and about
100
Castro v. Court of Appeals, 27 SCRA 1076, cited in Alejandro v. Geraldez, supra,
p. 253.
Art. 725, NCC.
101
103
Arts. 726 and 733, NCC.
104
Art. 733.
105
Republic v. Silim, supra, 8.
106
Lagazo v. Court of Appeals, 287 SCRA 18, 24. Also in De Luna v. Abrigo, 181 SCRA
150, 155.
107
Republic v. Silim, supra, p. 8.
108
Id., citing Art. 726, NCC.
109
5 Manresa 72.
110
Carlos v. Ramil, 20 Phil. 183.
111
See Arts. 725, 726 and 732, NCC.
112
Art. 732, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 649
DONATION
Nature of Donations
to be married, the spouses Carlos feared that there would be no one who would
take care of them in their twilight years. After the marriage, the couple entered
into an arrangement with the girl and her husband, that if the latter would
remain living in their house and take care of them, the real estate which they
owned would be given to the girl and her husband. There arose a question of
whether or not the agreement constituted a remunerative donation.
RULING: The agreement is not a remunerative donation but a contract
by which Carlos and his wife transferred to the defendant and his wife the lands
described in the complaint upon the consideration that the latter should give to
the former the care therein mentioned and prescribed. That contract was fully
executed upon the part of the defendant and his wife. If the transaction between
Carlos and the defendant was a donation it was una donacion con causa onerosa
and not una donacion remuneratoria. One of the leading differences between
these two classes of donations or gifts is that in the one con causa onerosa the
services which form the consideration for the gift have not yet been performed
while in the other they have. At the time of the transaction hereafter referred
to, none of the services which formed the consideration for the agreement in
question had as yet been performed. They were all to be performed in the
future. Under the provisions of the Civil Code una donacion con causa onerosa
is governed by the provisions of said code relative to contracts. That being
so, the arguments of the appellant relative to the validity of the instrument in
question are entirely inapplicable and beside the point for the reason that they
relate solely to a remunerative gift.
113
Republic v. Silim, supra, p. 8.
114
Id.
115
Art. 733, NCC.
650 PROPERTY
of the burden and by the law on donations under the present Title as
regards that portion which exceeds the value of the burden imposed.116
Note that while Article 733 uses the term “remuneratory donations,”
the law is actually referring to modal donations. The use of the term
“remuneratory” in said article is improper.
“We rule that the donation was simple, not onerous. Even
conceding that petitioner’s full payment of the purchase price of
the lot might have been a burden to him, such payment was not
however imposed by the donor as a condition for the donation.
Rather, the deed explicitly stated:
That for and in consideration of the love and
affection which the DONEE inspires in the DONOR,
and as an act of liberality and generosity and considering
further that the DONEE is a grandson of the DONOR,
the DONOR hereby voluntarily and freely gives,
transfer[s] and conveys, by way of donation unto
said DONEE, his heirs, executors, administrators and
assigns, all the right, title and interest which the said
DONOR has in the above described real property,
together with all the buildings and improvements found
Id.
116
DIFFERENT MODES OF ACQUIRING OWNERSHIP 651
DONATION
Nature of Donations
Danguilan v. IAC
168 SCRA 22 (1988)
Domingo Melad owned a farm lot and a residential lot. He and his wife,
having no children of their own, had taken into their home as their ward the
spouses Felix Danguilan and Isidra Melad. The latter was Domingo’s niece.
The spouses Felix Danguilan and Isidra Melad lived with Domingo Melad
and his wife and helped Domingo with the cultivation of the farm. Thereafter,
Domingo executed a private instrument giving to the spouses Felix Danguilan
and Isidra Melad his two lots on the understanding that the latter would take
care of the grantor and would bury him upon his death, which obligation the
spouses fulfilled. On the question of whether the donations of the two lots were
valid considering that the same were not embodied in a public instrument, the
Court ruled —
“It is our view, considering the language of the two
instruments, that Domingo Melad did intend to donate the
properties to the petitioner, as the private respondent contends. We
do not think, however, that the donee was moved by pure liberality.
While truly donations, the conveyances were onerous donations
as the properties were given to the petitioner in exchange for his
obligation to take care of the donee for the rest of his life and
provide for his burial. Hence, it was not covered by the rule in
Article 749 of the Civil Code requiring donations of real properties
to be effected through a public instrument. The case at bar comes
squarely under the doctrine laid down in Manalo v. De Mesa (29
Phil. 495), where the Court held:
‘There can be no doubt that the donation in
question was made for a valuable consideration, since
the donors made it conditional upon the donees’ bearing
the expenses that might be occasioned by the death and
burial of the donor Placida Manalo, a condition and
obligation which the donee Gregorio de Mesa carried
out in his own behalf and for his wife Leoncia Manalo;
therefore, in order to determine whether or not said
DIFFERENT MODES OF ACQUIRING OWNERSHIP 653
DONATION
Nature of Donations
Art. 734. The donation is perfected from the moment the donor
knows of the acceptance by the donee. (623)
120
Applying by analogy Laudico v. Arias, 43 Phil. 270.
121
Applying by analogy IV Tolentino, Civil Code, 1991 ed., 458.
122
333 SCRA 684, 693.
123
Vita v. Montanano, 194 SCRA 180, 190 (1991); Lagazo v. CA, 287 SCRA 18, 27.
124
See Art. 734, NCC.
125
Vito v. Montanano, supra, 190, citing II Tolentino, Civil Code, 1972 ed., 521.
126
Tanpingco . IAC, 207 SCRA 652, 657, citing Roman Catholic Archbishop of Manila v.
CA, 198 SCRA 300. See also Heirs of Cesario Velasquez v. CA, 324 SCRA 552; Heirs of Rosendo
Sevilla Florencio v. Heirs of Teresa Sevilla de Leon, 425 SCRA 447 (2003).
127
Quijada v. Court of Appeals, 299 SCRA 695 (1998).
656 PROPERTY
128
Vda. de Arceo v. Court of Appeals, 185 SCRA 489, cited in Quilala v. CA, 371 SCRA
311.
129
5 Manresa 88.
130
Concurring opinion of J. Antonio, 78 SCRA 245, 266-267.
131
Id.
132
92 Phil. 245, 249.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 657
DONATION
Nature of Donations
been different if the donor-seller sold her interests over the property
under the deed of donation which is subject to the possibility of
reversion of ownership arising from the non-fulfillment of the
resolutory condition.
xxx xxx xxx
Be that at it may, there is one thing which militates against
the claim of petitioners. Sale, being a consensual contract, is per-
fected by mere consent, which is manifested the moment there is
a meeting of the minds as to the offer and acceptance thereof on
three (3) elements: subject matter, price and terms of payment of
the price. Ownership by the seller on the thing sold at the time
of the perfection of the contract of sale is not an element for its
perfection. What the law requires is that the seller has the right to
transfer ownership at the time the thing sold is delivered. Perfec-
tion per se does not transfer ownership which occurs upon the ac-
tual or constructive delivery of the thing sold. A perfected contract
of sale cannot be challenged on the ground of non-ownership on
the part of the seller at the time of its perfection; hence, the sale is
still valid.
The consummation, however, of the perfected contract is
another matter. It occurs upon the constructive or actual delivery
of the subject matter to the buyer when the seller or her successors-
in-interest subsequently acquires ownership thereof. Such
circumstance happened in this case when petitioners — who are
Trinidad Quijada’s heirs and successors-in-interest — became the
owners of the subject property upon the reversion of the ownership
of the land to them. Consequently, ownership is transferred to
respondent Mondejar and those who claim their right from him.
Article 1434 of the New Civil Code supports the ruling that the
seller’s “title passes by operation of law to the buyer.” This rule
applies not only when the subject matter of the contract of sale is
goods, but also to other kinds of property, including real property.
There is also no merit in petitioners’ contention that since
the lots were owned by the municipality at the time of the sale,
they were outside the commerce of men under Article 1409(4) of
the NCC; thus, the contract involving the same is inexistent and
void from the beginning. However, nowhere in Article 1409(4) is
it provided that the properties of a municipality, whether it be those
for public use or its patrimonial property are outside the commerce
of men. Besides, the lots in this case were conditionally owned by
the municipality. To rule that the donated properties are outside
the commerce of men would render nugatory the unchallenged
DIFFERENT MODES OF ACQUIRING OWNERSHIP 659
DONATION
Persons Who May Give or Receive a Donation
Chapter 2
PERSONS WHO MAY GIVE OR RECEIVE
A DONATION
Art. 735. All persons who may contract and dispose of their property
may make a donation. (624)
660 PROPERTY
Art. 736. Guardians and trustees cannot donate the property en-
trusted to them. (n)
Art. 737. The donor’s capacity shall be determined as of the time of
the making of the donation. (n)
Art. 738. All those who are not specially disqualified by law therefor
may accept donations. (625)
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same crimi-
nal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action. (n)
Art. 740. Incapacity to succeed by will shall be applicable to dona-
tions inter vivos. (n)
Art. 741. Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents or
legal representatives. (626a)
Art. 742. Donations made to conceived and unborn children may be
accepted by those persons who would legally represent them if they were
already born. (627)
Art. 743. Donations made to incapacitated persons shall be void,
though simulated under the guise of another contract or through a person
who is interposed. (628)
Art. 744. Donations of the same thing to two or more different do-
nees shall be governed by the provisions concerning the sale of the same
thing to two or more different persons. (n)
Art. 745. The donee must accept the donation personally, or through
an authorized person with a special power for the purpose, or with a gen-
eral and sufficient power; otherwise, the donation shall be void. (630)
Art. 746. Acceptance must be made during the lifetime of the donor
and of the donee. (n)
DIFFERENT MODES OF ACQUIRING OWNERSHIP 661
DONATION
Persons Who May Give or Receive a Donation
133
Art. 735, NCC.
134
See Art. 739, NCC and Art. 87, FC.
135
See II Tolentino, Civil Code, 1992 ed., 561.
136
Quijada v. Court of Appeals, 299 SCRA 695, 704.
137
Id.
138
Id.
662 PROPERTY
still valid.139 In donation, however, the law requires that the donor must
be the owner of the thing donated at the time of the donation since the
latter cannot comprehend “anything which the donor cannot dispose of
at the time of the donation.”140 This must be the rule because donation,
under the Civil Code, is a mode of acquiring ownership.141 As a mode of
acquiring ownership, it results in an effective transfer of title over the
property from the donor to the donee and once a donation is accepted,
the donee becomes the absolute owner of the property donated.142
139
Id.
140
See Art. 751, NCC.
141
See Art. 712, NCC.
142
Roman Catholic Archbishop of Manila v. CA, 198 SCRA 300, 309.
143
II Tolentino, Civil Code, 1992 ed., 545.
144
II Caguioa, Civil Code, 1966 ed., 387.
145
Id., 388.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 663
DONATION
Persons Who May Give or Receive a Donation
146
316 SCRA 347, 376-377 (1999).
DIFFERENT MODES OF ACQUIRING OWNERSHIP 665
DONATION
Persons Who May Give or Receive a Donation
147
See Art. 37, NCC.
148
Art. 738, NCC.
149
Art. 741, NCC.
150
Id.
151
Art. 742, NCC. See also Quimiguing v. Icao, 34 SCRA 132, 134.
152
Art. 40, NCC; Quimiguing v. Icao, supra.
153
Quimiguing v. Icao, supra.
666 PROPERTY
154
Art. 40, NCC.
155
Art. 41, NCC.
156
Id.
157
Peerless Cas. Co. v. Housing Authority of Hazelhurst, Ga., C.A. Ga., 228 F. 2d 376.
158
N.Y. — Poel v. Brunswick-Balke-Collender Co., 110 N.E. 619, 216 N.Y. 310.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 667
DONATION
Persons Who May Give or Receive a Donation
The law further requires that the “the donee must accept the
donation personally, or through an authorized person with a special
power for the purpose, or with a general and sufficient power;”159
otherwise, “the donation shall be void.”160 In other words, a donation may
not be accepted by a person who is not authorized to do so, either by the
donee or by law. Such unauthorized acceptance may not even give rise
to an unenforceable contract. This is the necessary consequence of the
provision of article 745 of the New Civil Code. Note that unenforceable
contracts are subject to ratification,161 the effects of which retroact to
the time that the contract was entered without authority and not merely
from the time of its ratification.162 In a donation which is not accepted
in the manner provided for in Article 745, however, the unauthorized
acceptance will not result in a perfected contract of donation, be it
unenforceable or otherwise. In such a situation, there remains an offer
of donation which may be accepted by the donee personally or through
an authorized person with a special power for the purpose, or with a
general and sufficient power, unless the offer (donation) was withdrawn
or revoked prior to such acceptance. But in such a situation, the effects of
the perfection of the donation, i.e., transfer of ownership from the donor
to the donee, will be produced only from the time that the donation is
accepted in the manner provided for in Article 745.
While minors, other incapacitated persons and conceived and un-
born children may become donees, the law requires that the acceptance
of the donation must be made through their parents or legal representa-
tives.163 Notwithstanding the language of Article 741 of the New Civil
Code, however, it is still believed that if what is donated is a person-
al property the value of which does not exceed five thousand pesos
(P5,000) and the donation is pure, a minor or incapacitated person re-
ferred to in said article may validly receive such donation when made
orally and simultaneously delivered.164 However when the donation re-
quires a written acceptance, whether in a private or public instrument,
the provisions of Article 741 should strictly apply.165
159
Art. 745, NCC.
160
Id.
161
See Arts. 1317 and 1403, NCC.
162
See IV Tolentino, Civil Code, 1991 ed., 444.
163
Arts. 741 and 742, NCC.
164
See 5 Manresa, 5th ed., 99; II Tolentino, Civil Code, 1992 ed., 550.
165
Id.
668 PROPERTY
166
Art. 739(1), NCC.
167
Art. 739(2), NCC.
168
Art. 739(4), NCC.
169
Art. 1027(1), (2), (3), (5) and (6), NCC, in relation to Art. 740, NCC.
170
Art. 87, FC.
171
Art. 87, FC.
172
Art. 739(1), NCC.
173
Last paragraph, Art. 739, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 669
DONATION
Persons Who May Give or Receive a Donation
wife with a man other than her husband always constitutes adultery174
while a single act of sexual intercourse on the part of the husband with
a woman other than his spouse will not necessarily constitute the crime
concubinage.175 For the crime of concubinage to be committed, it is
required that the husband must either: (1) keep a mistress in the conjugal
dwelling; (2) have sexual intercourse, under scandalous circumstances,
with a woman who is not his wife; or (3) cohabit with her in any other
place.176 While the husband may not be guilty of concubinage for a single
act of sexual intercourse, a donation in favor of the paramour may still
be considered invalid if the same is made in consideration of the sexual
intercourse since contracts whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy are void from
the very beginning.177
Article 739 of the New Civil Code, however, does not apply to
cases where the alleged concubine did not know that the man was
married.178 To be guilty of concubinage, the woman must know the
man to be married.179 The same principle will likewise apply to the man
accused of committing the crime of adultery.180
174
Art. 333, RPC.
175
Art. 334, RPC.
176
Id.
177
Art. 1409(1), NCC.
178
Social Security System v. Davao, et al., 17 SCRA 863 (1966).
179
Id., Note No. (1), citing Viada y Vilaseca, Vol. 5, p. 217.
180
Del Prado v. Dela Fuente, 28 Phil. 23. See also Reyes, Revised Penal Code, 13th ed.,
pp. 767-768.
670 PROPERTY
181
Art. 739(3), NCC.
182
112 SCRA 113 (1982), cited in Arcaba v. Vda. de Batocael, 370 SCRA 414 (2001).
183
Arcaba v. Vda. de Batocael, supra.
184
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 671
DONATION
Persons Who May Give or Receive a Donation
185
The Insular Life Company, Ltd. v. Ebrado, 80 SCRA 181 (1977); Matabuena v. Cer-
vantes, 38 SCRA 284 (1971).
186
Calimlim-Canullas v. Fortun, 129 SCRA 675 (1984).
187
People v. Villagonzalo, 238 SCRA 215 (1994); Bienvenido v. Court of Appeals, 237
SCRA 676 (1994).
188
See II Tolentino, Civil Code, 1992 ed., 550.
189
Id.
672 PROPERTY
190
See discussions in supra § 1.4.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 673
DONATION
Persons Who May Give or Receive a Donation
191
Art. 1356, NCC.
192
Art. 83 of the Family Code provides: “These donations are governed by the rules on
ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not
modified by the following articles.”
193
Art. 82, FC.
194
Serrano v. Solomon, G.R. No. L-12093, June 29, 1959, citing 6 Manresa 232.
674 PROPERTY
195
Art. 748, 2nd par., NCC.
196
Art. 748, 3rd par., NCC.
197
Moreño-Lentfer v. Wolf, 441 SCRA 584 (2004).
DIFFERENT MODES OF ACQUIRING OWNERSHIP 675
DONATION
Persons Who May Give or Receive a Donation
198
Id., at pp. 590-591.
199
Art. 749, 1st and 2nd pars., NCC.
200
Art. 749, 2nd par., NCC.
201
Art. 749, 3rd par., NCC.
202
Art. 749, NCC.
203
Heirs of Rosendo Sevilla Florencio v. Heirs of Teresita Sevilla de Leon, 425 SCRA 447
(2003).
204
Heirs of Salud Dizon Salamat v. Tamayo, 298 SCRA 313, 317 (1998).
205
Art. 734, NCC.
206
Lagazo v. Court of Appeals, 287 SCRA 18, 27.
207
Art. 749, FC.
676 PROPERTY
208
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 677
DONATION
Persons Who May Give or Receive a Donation
of the Court of Appeals, the Supreme Court held that such oral donation was
void. The Court explained —
“It is clear from Article 749 that a transfer of real property
from one person to another cannot take effect as a donation unless
embodied in a public document.
The alleged donation in the case at bar was done orally
and not executed in a public document. Moreover, the document
which was presented by respondent in support of her claim that her
father donated the subject parcel of land to her was a mere private
document of conformity which was executed by her elder brother,
Eduardo in 1956. It may not be amiss to point out that the brothers
Eduardo and Gaudencio had already ceded their hereditary interests
to petitioner Salud Dizon Salamat even before 1950.”
209
Lagazo v. CA, 287 SCRA 18, 27-28, citing Tolentino, Civil Code of the Philippines,
1992 ed., Vol. II, pp. 557-558.
678 PROPERTY
Republic v. Guzman
326 SCRA 90 (Feb. 18, 2000)
David Rey Guzman, a natural-born American citizen, is the son of the
spouses Simeon Guzman, a naturalized American citizen but formerly a citizen
of the Philippines, and Helen Meyers Guzman, an American citizen. In 1968
Simeon died leaving to his sole heirs Helen and David an estate consisting of
several parcels of land located in Bulacan. In 1970, Helen and David executed
a Deed of Extrajudicial Settlement of the Estate of Simeon Guzman dividing
and adjudicating to themselves all the property belonging to the estate of
Simeon. In 1981, Helen executed a Quitclaim Deed assigning, transferring, and
conveying to her son David her undivided one-half interest on all the parcels
of land subject matter of the Deed of Extrajudicial Settlement of the Estate of
Simeon Guzman. Since the document appeared not to have been registered,
upon the advice of her lawyer, Helen executed another document, a Deed of
Quitclaim in August 1989 confirming the earlier deed of quitclaim as well as
modifying the document to encompass all her other property in the Philippines.
In October 1989, David executed a Special Power of Attorney where he
acknowledged that he became the owner of the parcels of land subject of the
Deed of Quitclaim executed by Helen and empowering Atty. Abela to sell or
otherwise dispose of the lots. A certain lawyer wrote the Office of the Solicitor
General and furnished it with documents showing that David’s ownership of
the one-half (1/2) of the estate of Simeon Guzman was defective. Thus, the
OSG filed a petition for escheat praying that 1/2 of David’s interest in each of
the subject parcels of land be forfeited in favor of the estate.
The State anchors its argument on Sections 7 and 8 of Article XII of the
Constitution. The State contends that the acquisition of the parcels of land by
David does not fall under any of these exceptions. It asserts that David being
an American citizen could not validly acquire one-half (1/2) interest in each of
the subject parcels of land by way of the two deeds of quitclaim as they are in
reality donations inter vivos and that the elements of donation are present in the
conveyance made by Helen in favor of David.
210
Sumpita v. Banga, 436 SCRA 521, 528-529 (2004), citing Tolentino, Civil Code of the
Philippines, 1992 ed., Vol. II, pp. 557-558.
211
Republic v. Guzman, 326 SCRA 90, 98 (2000).
DIFFERENT MODES OF ACQUIRING OWNERSHIP 679
DONATION
Persons Who May Give or Receive a Donation
made to the donor or donors should be duly set forth. Where the
deed of donation fails to show the acceptance, or where the formal
notice of the acceptance made in a separate instrument is either not
given to the donor or else noted in the deed of donation, and in the
separate acceptance, the donation is null and void.
These requisites, definitely prescribed by law, have not been
complied with, and no proof of compliance appears in the record.
The two (2) quitclaim deeds set out the conveyance of the parcels
of land by Helen in favor of David but its acceptance by David
does not appear in the deeds, nor in the Special Power of Attorney.
Further, the records reveal no other instrument that evidences
such acceptance and notice thereof to the donor in an authentic
manner. It is well-settled that if the notification and notation are
not complied with, the donation is void. Therefore, the provisions
of the law not having been complied with, there was no effective
conveyance of the parcels of land by way of donation inter vivos.
212
See Pajarillo v. Intermediate Appellate Court, 176 SCRA 340 (1989) and Republic v.
Silim, 356 SCRA 1 (2001).
213
Pajarillo v. IAC, supra, at p. 349.
214
Republic v. Silim, supra.
215
Supra, at p. 349.
216
Supra, at p. 11.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 681
DONATION
Persons Who May Give or Receive a Donation
Republic v. Silim
356 SCRA 1 (2001)
In 1971, the spouses Silim donated a 5,600 square meter parcel of land in
favor of the Bureau of Public Schools, Municipality of Malangas, Zamboanga
de Sur. In the Deed of Donation, the donors imposed the condition that the
said property should “be used exclusively and forever for school purposes
only.” This donation was accepted by the District Supervisor of BPS, through
an Affidavit of Acceptance and/or Confirmation of Donation. Through a
fund raising campaign by the Parents-Teachers Association of Barangay
Kauswagan, a school building was constructed on the donated land. However,
the Bagong Lipunan school building that was supposed to be allocated for the
donated parcel of land in Barangay Kauswagan could not be released since the
government required that it be built upon a one (1) hectare parcel of land. To
remedy this predicament, the Assistant School Superintendent of the Province
of Zamboanga del Sur authorized the District Supervisor of the BPS to
officially transact for the exchange of the one-half (1/2) hectare old school site
of Kauswagan Elementary School to a new and suitable location which would
fit the specifications of the government. Pursuant to this, the District Supervisor
entered into a Deed of Exchange whereby the donated land was exchanged
with a bigger lot. Consequently, the Bagong Lipunan school buildings were
constructed on the new school site and the school building previously erected
on the donated lot was dismantled and transferred to the new location.
When the spouses Silim saw that a house was being constructed on
the donated land, they filed an action for the cancellation and revocation of
the donation. One of the arguments raised by the spouses Silim was that the
donation was void since the acceptance was not noted in the Deed of Donation.
In holding that the legal requirement in Article 749 was complied with, the
Supreme Court explained —
Respondents further argue that assuming there was a valid
acceptance of the donation, the acceptance was not noted in the
217
54 Phil. 766.
218
28 Phil. 245.
682 PROPERTY
Chapter 3
EFFECT OF DONATIONS AND LIMITATIONS THEREON
Art. 750. The donations may comprehend all the present property
of the donor, or part thereof, provided he reserves, in full ownership or in
usufruct, sufficient means for the support of himself, and of all relatives
Shopper’s Paradise Realty & Development Corp. v. Roque, 419 SCRA 93, 98 (2004).
219
Heirs of Rosendo Sevilla Florencio v. Heirs of Teresa Sevilla de Leon, 425 SCRA 447,
220
459 (2004).
684 PROPERTY
who, at the time of the acceptance of the donations, are by law entitled to
be supported by the donor. Without such reservation, the donation shall
be reduced on petition of any person affected. (634a)
Art. 751. Donations cannot comprehend future property.
By future property is understood anything which the donor cannot
dispose of at the time of the donation. (635)
Art. 752. The provisions of Article 750 notwithstanding, no person
may give or receive, by way of donation, more than he may give or receive
by will.
The donation shall be inofficious in all that it may exceed this limita-
tion. (636)
221
Art. 750, NCC.
222
Art. 751, NCC.
223
Id.
224
Art. 752, NCC.
225
Art. 751, 1st par., NCC.
226
Shopper’s Paradise Realty & Development Corp. v. Roque, supra, p. 98.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 685
DONATION
Effect of Donations and Limitations Thereon
227
See discussions in supra § 4.1.
228
Art. 751, 2nd par., NCC.
229
See II Tolentino, Civil Code, 1992 ed., 561.
230
Id.
231
See discussion in supra § 4.2.
232
Art. 84 of the Family Code provides: “Art. 84. If the future spouses agree upon a regime
other than the absolute community of property, they cannot donate to each other in their marriage
settlements more than one-fifth of their present property. Any excess shall be considered void.
“Donations of future property shall be governed by the provisions on testamentary succes-
sion and the formalities of wills. (130a)”
686 PROPERTY
233
Id.
234
Art. 97, FC.
235
Abalos v. Macatangay, Jr., 439 SCRA 649 (2004).
236
Abalos v. Macatangay, Jr., supra, citing Nable Jose v. Nable Jose, 41 Phil. 713 (1916);
Manuel v. Losano, 41 Phil. 855 (1918).
DIFFERENT MODES OF ACQUIRING OWNERSHIP 687
DONATION
Effect of Donations and Limitations Thereon
237
Id., citing Quintos de Ansaldo v. Sheriff of Manila, 64 Phil. 115 (1937).
238
Id.
239
See Art. 750, NCC.
688 PROPERTY
240
Art. 752, NCC.
241
Vda. de Tupas v. Br. XLIII, RTC of Negros Occidental, 144 SCRA 622, 624-625, citing
Art. 771, NCC.
242
Arts. 774 to 1105, NCC.
243
Art. 751, NCC.
244
Art. 886, NCC.
245
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 689
DONATION
Effect of Donations and Limitations Thereon
246
Id.
247
See Art. 771, NCC.
690 PROPERTY
tion to the contrary, the former is understood to be liable to pay only the
debts which appear to have been previously contracted. In no case shall
the donee be responsible for debts exceeding the value of the property
donated, unless a contrary intention clearly appears. (642a)
Art. 759. There being no stipulation regarding the payment of debts,
the donee shall be responsible therefor only when the donation has been
made in fraud of creditors.
The donation is always presumed to be in fraud of creditors, when
at the time thereof the donor did not reserve sufficient property to pay his
debts prior to the donation. (643)
248
Art. 753, NCC.
249
Id.
250
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 691
DONATION
Effect of Donations and Limitations Thereon
251
Art. 113, FC.
252
Id.
253
Art. 754, 1st par., NCC.
254
Art. 754, 2nd par., NCC.
255
Art. 754, 1st par., NCC.
256
Art. 755, NCC.
692 PROPERTY
257
Art. 756, NCC.
258
Art. 757, NCC.
259
Id.
260
Id.
261
Art. 758, NCC.
262
Art. 759, NCC.
263
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 693
DONATION
Revocation and Reduction of Donations
Chapter 4
REVOCATION AND REDUCTION
OF DONATIONS
This action shall prescribe after four years from the noncompliance
with the condition, may be transmitted to the heirs of the donor, and may
be exercised against the donee’s heirs. (647a)
Art. 765. The donation may also be revoked at the instance of the
donor, by reason of ingratitude in the following cases:
(1) If the donee should commit some offense against the person,
the honor or the property of the donor, or of his wife or children under his
parental authority;
(2) If the donee imputes to the donor any criminal offense, or any
act involving moral turpitude, even though he should prove it, unless the
crime or the act has been committed against the donee himself, his wife
or children under his authority;
(3) If he unduly refuses him support when the donee is legally or
morally bound to give support to the donor. (648a)
Art. 766. Although the donation is revoked on account of ingratitude,
nevertheless, the alienations and mortgages effected before the notation
of the complaint for revocation in the Registry of Property shall subsist.
Later ones shall be void. (649)
Art. 767. In the case referred to in the first paragraph of the preced-
ing article, the donor shall have a right to demand from the donee the
value of property alienated which he cannot recover from third persons,
or the sum for which the same has been mortgaged.
The value of said property shall be fixed as of the time of the dona-
tion. (650)
Art. 768. When the donation is revoked for any of the causes stated
in Article 760, or by reason of ingratitude, or when it is reduced because
it is inofficious, the donee shall not return the fruits except from the filing
of the complaint.
If the revocation is based upon noncompliance with any of the con-
ditions imposed in the donation, the donee shall return not only the prop-
erty but also the fruits thereof which he may have received after having
failed to fulfill the condition. (651)
Art. 769. The action granted to the donor by reason of ingratitude
cannot be renounced in advance. This action prescribes within one year,
to be counted from the time the donor had knowledge of the fact and it
was possible for him to bring the action. (652)
Art. 770. This action shall not be transmitted to the heirs of the do-
nor, if the latter did not institute the same, although he could have done
so, and even if he should die before the expiration of one year.
Neither can this action be brought against the heir of the donee, un-
less upon the latter’s death the complaint has been filed. (653)
DIFFERENT MODES OF ACQUIRING OWNERSHIP 695
DONATION
Revocation and Reduction of Donations
264
Tanpingco v. IAC, 207 SCRA 652, 657, citing Roman Catholic Archbishop of Manila v.
CA, 198 SCRA 300. See also discussion in supra § 3.3.
265
Gestopa v. CA, 342 SCRA 105, 114.
266
Art. 760, NCC.
267
Art. 764, NCC.
268
Art. 765, NCC.
269
Art. 752, NCC.
696 PROPERTY
be reduced based on the following grounds: (1) that the donor did not
reserve sufficient property for his own and his family’s support;270 (2)
by the subsequent appearance of children;271 and (3) that the donation is
inofficious.272
270
Art. 750, NCC.
271
Art. 760, NCC.
272
Art. 752, NCC.
273
Art. 760, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 697
DONATION
Revocation and Reduction of Donations
274
Art. 761, NCC.
275
Art. 761, NCC.
698 PROPERTY
appearance of a child under Article 760, but later on the donor dies a
richer man and, at the time of his death, the previous donation could
have been accommodated in the free portion, may the donee be entitled
to the return of the thing donated or its value? The answer must be in
the negative. In this second situation, the ground for the revocation of
the donation is Article 760, which is an altogether different ground from
that provided in Article 752.
276
Art. 762, 1st par., NCC.
277
Art. 762, 2nd par., NCC.
278
Art. 762, 3rd par., NCC.
279
Art. 768, 1st par., NCC.
280
Art. 763, 1st par., NCC.
281
3 Navarro Amandi 59, cited in II Tolentino, Civil Code, 1992 ed., 568.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 699
DONATION
Revocation and Reduction of Donations
246 SCRA 511, 520, citing II Tolentino, Civil Code, 1983 ed., 535.
700 PROPERTY
Clearly then, when the law and the deed of donation speaks
of “conditions” of a donation, what are referred to are actually the
obligations, charges or burdens imposed by the donor upon the donee
and which would characterize the donation as onerous.284 Thus, an
eminent civilist285 opines that the manner of revocation in Article 764 is
applicable to onerous donation. In De Luna v. Abrigo,286 however, our
Supreme Court made a ruling to the effect that Article 764 of the New
Civil Code does not apply to onerous donations in view of the specific
provision of Article 733 providing that onerous donations are governed
by the rules on contracts. Invoking the provisions of Article 733, the
Court further held that in determining the prescriptive period of an action
to revoke an onerous donation the rules on contracts and the general
rules on prescription and not the rules on donations are applicable to
onerous donations.287 Applying the rule of the Supreme Court in De Luna
v. Abrigo, which cited Article 1144(1) of the New Civil Code as legal
basis, the prescriptive period of an action for revocation of an onerous
donation by reason of non-compliance with the condition/obligation
imposed is ten (10) years counted from the time within which the donee
must comply with the conditions/obligations of the donation.
De Luna v. Abrigo
181 SCRA 150 (1990)
In 1965, Prudencio de Luna donated a portion of his lot to the Luzonian
Colleges, Inc. The donation was subject to certain terms and conditions and
provided for the automatic reversion to the donor of the donated property in
case of non-compliance. The donee failed to comply with the conditions of
the donation. On April 9, 1971, however, the donor revived the donation in
favor of the donee. As in the original deed of donation, the revived deed of
donation also provided for the automatic reversion to the donor of the donated
area in case of violation of the conditions thereof. In the revived deed, the
donor imposed upon the donee the obligations to construct a chapel, a nursery
and a kindergarten school in the donated property within five years from the
execution of the deed of donation. Claiming that the terms and conditions of
the donation were not complied with by the donee, the heirs of the donor (who
284
Id., 521.
285
See II Caguioa, Civil Code, 1966 ed., 421.
286
181 SCRA 150, 156 (1990). See also Secretary of Education v. Heirs of Rufino Dulay,
Sr., 480 SCRA 452.
287
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 701
DONATION
Revocation and Reduction of Donations
died on August 18, 1980) filed an action for the cancellation of the donation
on September 23, 1980. The trial court, however, dismissed the action on the
ground that more than four (4) years had already lapsed from April 9, 1976
when the action was filed. The trial court based its decision on Article 764 of
the New Civil Code. The heirs of de Luna elevated the matter to the Supreme
Court. In reversing the decision of the trial court, the Court explained —
It is the finding of the trial court, which is not disputed by
the parties, that the donation subject of this case is one with an
onerous cause. It was made subject to the burden requiring the
donee to construct a chapel, a nursery and a kindergarten school in
the donated property within five years from execution of the deed
of donation.
Under the old Civil Code, it is a settled rule that donations
with an onerous cause are governed not by the law on donations
but by the rules on contracts, as held in the cases of Carlos v.
Ramil, L-6736, September 5, 1911, 20 Phil. 183; Manalo v. de
Mesa, L-9449, February 12, 1915, 29 Phil. 495. On the matter of
prescription of actions for the revocation of onerous donation, it
was held that the general rules on prescription applies. (Parks v.
Province of Tarlac, supra.). The same rules apply under the New
Civil Code as provided in Article 733 thereof which provides:
“Art. 733. Donations with an onerous cause shall be
governed by the rules on contracts, and remuneratory donations
by the provisions of the present Title as regards that portion which
exceeds the value of the burden imposed.”
It is true that under Article 764 of the New Civil Code,
actions for the revocation of a donation must be brought within
four (4) years from the non-compliance of the conditions of the
donation. However, it is Our opinion that said article does not
apply to onerous donations in view of the specific provision of
Article 733 providing that onerous donations are governed by the
rules on contracts.
In the light of the above, the rules on contracts and the
general rules on prescription and not the rules on donations are
applicable in the case at bar.
xxx xxx xxx
The trial court was therefore not correct in holding that the
complaint in the case at bar is barred by prescription under Article
764 of the New Civil Code because Article 764 does not apply to
onerous donations.
702 PROPERTY
288
Laguna Lake Authority v. Court of Appeals, 251 SCRA 42, 56.
289
Art. 764, 2nd par., NCC.
290
Id.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 703
DONATION
Revocation and Reduction of Donations
property but also the fruits thereof which he may have received after
having failed to fulfill the condition.291
291
Art. 768, 2nd par., NCC.
292
Art. 764, 3rd par., NCC.
293
Roman Catholic Archbishop of Manila v. Court of Appeals, 198 SCRA 300.
294
Id., at p. 309.
295
Id.
704 PROPERTY
would revert to the estate of the donors. In 1980, and while still within the
prohibited period, the Roman Catholic Bishop of Imus, sold the property to
spouses Florencio and Soledad Ignao. As a consequence, the spouses were
issued a new title to the property in their names on November 15, 1980. When
the heirs of Eusebio Castro and Martina Rieta learned about the sale, they filed
an action for the nullification of the deed of donation, rescission of the sale in
favor of the spouses Ignao and reconveyance of the property on November
29, 1984. The Roman Catholic Bishops of Manila and Imus, together with
the spouses Ignao, contended that the cause of action had already prescribed
based on Article 764 of the New Civil Code. The Court, however, ruled that
the prescriptive period in Article 764 does not apply in the given case since the
donation expressly provides for automatic reversion in case of violation of the
conditions therein. The Court explained —
apply, and not Article 764 of the Civil Code. Since Article 1306
of said Code authorizes the parties to a contract to establish such
stipulations, clauses, terms and conditions not contrary to law,
morals, good customs, public order or public policy, we are of
the opinion that, at the very least, that stipulation of the parties
providing for automatic revocation of the deed of donation,
without prior judicial action for that purpose, is valid subject to
the determination of the propriety of the rescission sought. Where
such propriety is sustained, the decision of the court will be merely
declaratory of the revocation, but it is not in itself the revocatory
act.
On the foregoing ratiocinations, the Court of Appeals
committed no error in holding that the cause of action of herein
private respondents has not yet prescribed since an action to
enforce a written contract prescribes in ten (10) years. It is our
view that Article 764 was intended to provide a judicial remedy
in case of non-fulfillment or contravention of conditions specified
in the deed of donation if and when the parties have not agreed on
the automatic revocation of such donation upon the occurrence of
the contingency contemplated therein. That is not the situation in
the case at bar.
296
Art. 765, NCC.
297
Art. 769, NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 707
DONATION
Revocation and Reduction of Donations
possible for the donor to bring the action but he did not institute the
same, the right to file the same is not transmitted to his heirs even if he
dies before the expiration of the one-year period.298 A fortiori, if upon
the death of the donor the one-year period has not yet commenced to
run because it was not possible for the donor to bring the action during
his lifetime, the right to bring the same is transmitted to the heirs upon
the donor’s death. Neither may the action be filed against the heir of the
donee upon the death of the latter,299 even if the latter should die before
the expiration of the one-year period.
298
Art. 770, NCC.
299
Id.
300
Art. 771, NCC.
301
Vda. de Tupas v. br. XLIII, RTC of Negros Occidental, 144 SCRA 622, 626.
302
Id.
708 PROPERTY
(4) the addition to the net value thus found, of the value, at the
time they were made, of donations subject to collation; and
(5) the determination of the amount of the legitimes by getting
from the total thus found the portion that the law provides as the legitime
of each respective compulsory heir.303
Deducting the legitimes from the net value of the hereditary estate
leaves the freely disposable portion by which the donation in question
must be measured. If the value of the donation at the time it was made
does not exceed that difference, then it must be allowed to stand. But if
it does, the donation is inofficious as to the excess and must be reduced
by the amount of said excess.304
Only those who at the time of the donor’s death have a right to
the legitime and their heirs and successors in interest may ask for the
reduction or revocation of inofficious donations.306 In other words,
persons who are not entitled to the legitime (therefore not considered
as compulsory heirs), such as donees, devisees, legatees and creditors
of the deceased donor, cannot ask for the reduction or revocation of
inofficious donations.307 During the lifetime of the donor, the compulsory
heirs who are entitled to ask for the reduction or revocation of inofficious
303
Id., 626.
304
Id.
305
Art. 771, NCC.
306
Art. 772, 1st par., NCC.
307
Art. 772, 3rd par., NCC.
DIFFERENT MODES OF ACQUIRING OWNERSHIP 709
DONATION
Revocation and Reduction of Donations
308
Art. 772, 2nd par., NCC.
309
Art. 763, NCC.
310
Art. 764, NCC.
311
Art. 769, NCC.
312
Art. 750, NCC.
313
316 SCRA 393 (1999).
314
Also in Santos v. Alana, 467 SCRA 176, 182-183.
315
Imperial v. CA, supra, p. 403, citing Mateo v. Lagua, 29 SCRA 864. See also Santos v.
Alana, supra.
710 PROPERTY
heirs who were prejudiced by such donation.316 If there are two or more
donations and the disposable portion is not sufficient to cover all of
them, those of the more recent date shall be suppressed or reduced with
regard to the excess.317 If they are of the same date, they shall be reduced
proportionately.
As in the case of revocation of donations for any of the causes
stated in Article 760 and by reason of ingratitude, when the donation
is reduced because it is inofficious, the donee shall not return the fruits
except from the filing of the complaint.318
— oOo —
316
Art. 771, NCC.
317
Art. 773, NCC.
318
Art. 768, 1st par., NCC.
PROPERTY
By
ELMER T. RABUYA
Professor of Civil Laws and Bar Reviewer, Arellano University
School of Law, San Sebastian College, Jose Rizal University
and Jurists Bar Review Center
Author: The Law on Persons and Family Relations
LLB., AUSL, Class Valedictorian
A.B. Management Economics, Ateneo de Manila University
ELMER T. RABUYA
ISBN 978-971-23-5222-5
No. ____________
ISBN 978-971-23-5222-5
9 789712 352225
Printed by
rex printing company, inc.
typography & creative lithography
84 P. Florentino St., Quezon City
Tel. Nos. 712-41-01
ii • 712-41-08
PREFACE
This work is a product of the author’s more than ten years expe-
rience in teaching the subject. It started as an outline, then turned into
lecture notes and finally, into this book. It is designed for use primarily
by law students and bar reviewees but law practitioners may likewise
find it as a useful guide in the area of Philippine Property Law.
In discussing the subject, the author relied heavily on decisions
promulgated by the Philippine Supreme Court. However, the illuminating
opinions of recognized authorities in the subject matter, both local and
foreign, have likewise been availed of. Some foreign decisions have
likewise been cited in this work to throw light on areas where there is
dearth of materials in the local sources.
It is earnestly hoped that this book will be of help to all disciples
of law.
THE AUTHOR
Manila, Philippines
10 March 2008
iii
iv
This book is lovingly dedicated
To my wife, Atty. Melva P. Cobarrubias-Rabuya,
To my son, John Darrel C. Rabuya,
and
To my parents, Martin, Sr. and Azucena.
v
vi
CONTENTS
BOOK II
PROPERTY, OWNERSHIP, AND ITS
MODIFICATION
Page
§ 1. Introductory Concepts................................................................ 1
[1.1] Origin of the Word “Property” .................................... 1
[1.2] Concept of “Things” .................................................... 2
[1.3] Concept of “Property” under the Civil Code ............... 3
[1.4] Susceptibility to Appropriation.................................... 3
[1.5] Additional Requisites .................................................. 4
§ 2. Classification of Property........................................................... 5
[2.1] Classification under Book II of the Civil Code ........... 5
[2.2] Importance of Classification ........................................ 5
Chapter 1
IMMOVABLE PROPERTY
§ 3. Immovable Property................................................................... 8
[3.1] No Definition under the Code...................................... 8
[3.2] Kinds of Immovable (Real) Property .......................... 8
§ 4. Real Property under Article 415(1) ............................................ 9
(A) Lands and Roads.......................................................... 9
[4.1] Lands and roads ........................................................... 9
(B) Buildings...................................................................... 9
[4.2] Building Is Immovable By Incorporation.................... 9
[4.3] Buildings Are Always Immovable............................... 10
vii
[4.4] Instances Where Building Is Treated As Personal
Property By the Parties ................................................ 14
[4.5] Doctrine of Estoppel; Navarro and Tumalad Cases .... 15
[4.6] Compared with the cases of Associated Ins.
& Surety Co. v. Iya, Evangelista v. Alto Surety
& Ins. Co., Inc., Manarang v. Ofilada and
Piansay v. David .......................................................... 17
[4.7] Classification of property into real or personal
property, a question of law — the Standard Oil case .. 22
(C) Construction Adhered To the Soil ............................... 24
[4.8] Constructions of All Kinds Adhered To the Soil ......... 24
§ 5. Real Property under Article 415(2) ............................................ 26
(A) Trees and Plants ........................................................... 26
[5.1] Trees and Plants ........................................................... 26
(B) Growing Fruits............................................................. 26
[5.2] Growing Fruits............................................................. 26
§ 6. Real Property under Article 415(3) ............................................ 27
“Everything attached to an immovable in a fixed manner” ....... 27
[6.1] Attachment Must Be In A Fixed Manner .................... 27
[6.2] Need Not Be Attached By the Owner.......................... 27
[6.3] However, Intent of the Parties May Govern ................ 27
§ 7. Real property under Article 415(4) ............................................ 29
“Statues, reliefs, paintings or other objects for use or
ornamentation” ........................................................................... 29
[7.1] Requisites .................................................................... 29
[7.2] Distinguish From Paragraph 3 ..................................... 29
§ 8. Real Property under Article 415(5) ............................................ 30
“Machineries, receptacles, instruments or implements” ............ 30
[8.1] Immovable By Destination in Par. (5); Requisites ...... 30
[8.2] Properties Contemplated Under Paragraph 5 .............. 30
[8.3] They Must Be Placed By the Owner or
By His Agent ............................................................... 30
[8.4] They Must Tend Directly To Meet the Needs
of Said Industry or Work ............................................. 34
[8.5] They Must Be “Essential” And “Principal”
Elements of the Industry or Works .............................. 36
[8.6] The Industry or Works Must Be Carried On In A
Building or On A Piece of Land .................................. 37
[8.7] Application of the Doctrine of Estoppel
In Article 415(5) .......................................................... 38
viii
§ 9. Real property under Article 415(6) ............................................ 41
“Animal houses, pigeon-houses, etc. …” .................................. 41
[9.1] Animal Houses and Pigeon Houses, Etc. .................... 41
[9.2] Animals Included......................................................... 41
§ 10. Real Property under Article 415(7): “Fertilizers” ...................... 41
§ 11. Real Property under Article 415(8) ............................................ 42
“Mines, quarries, slag dumps, waters ” ..................................... 42
[11.1] Mines, Quarries and Slag Dumps ................................ 42
[11.2] Waters .......................................................................... 42
§ 12. Real Property under Article 415(9): “Docks
and Structures” ........................................................................... 42
§ 13. Real Property under Article 415(10) .......................................... 42
[13.1] Rights as Property........................................................ 42
[13.2] How Rights Classified ................................................. 43
§ 14. Definition of Real Property in Real Estate Taxation .................. 43
[14.1] Concept of Real Property in Realty Taxation .............. 43
[14.2] Machinery and Improvements Subject
to Realty Tax ................................................................ 45
Chapter 2
MOVABLE PROPERTY
§ 15. Movable Property....................................................................... 49
[15.1] No Precise Definition of the Term ............................... 49
[15.2] What May Be Considered “Movable” Property,
In General .................................................................... 49
[15.3] Realty Considered as Personalty By Special
Provisions of Law ........................................................ 50
[15.4] Forces of Nature .......................................................... 50
[15.5] Chose In Action ........................................................... 50
[15.6] Obligations In General ................................................ 51
§ 16. Consumable and Non-consumable ............................................ 51
[16.1] Consumable and Non-Consumable ............................. 51
[16.2] Distinguished From Fungible and Non-Fungible ........ 52
Chapter 3
PROPERTY IN RELATION TO THE PERSON
TO WHOM IT BELONGS
§ 17. Public Dominion and Private Ownership .................................. 52
ix
[17.1] Public Dominion and Private Ownership .................... 52
[17.2] Classification of Property From the Point
of View of Ownership.................................................. 53
§ 18. Property of State: Public Dominion ........................................... 53
[18.1] Kinds of Property of Public Dominion Pertaining
To the State .................................................................. 53
[18.2] “Public Dominion,” as Referring To “Public
Ownership” .................................................................. 53
[18.3] “Public Dominion,” as Referring To “State
Ownership” .................................................................. 54
[18.4] “Public Ownership” Distinguished From
“State Ownership” ....................................................... 55
[18.5] Intent to Devote, Sufficient.......................................... 55
[18.6] Public Use and Public Service, Distinguished ............ 56
§19. Property of Public Dominion: For Public Use ........................... 57
[19.1] Enumeration of Properties of the State
for “Public Use” .......................................................... 57
(A) Roads ........................................................................... 58
[19.2] Roads ........................................................................... 58
(B) Canals .......................................................................... 58
[19.3] Canals .......................................................................... 58
(C) Rivers ........................................................................... 60
[19.4] “River” Is A Composite Term ...................................... 60
[19.5] Natural Bed of A River ................................................ 60
[19.6] Extent of River Bed ..................................................... 61
[19.7] Banks of Rivers ........................................................... 62
[19.8] Accretion on Riverbanks ............................................. 63
(D) Ports ............................................................................. 63
[19.9] Ports ............................................................................. 63
(E) Shores .......................................................................... 64
[19.10] Shore, Defined ............................................................. 64
[19.11] Shore, Property of Public Dominion ........................... 65
[19.12] Accretions on Seashore ............................................... 65
(F) Foreshore Lands .......................................................... 66
[19.13] Part of Public Dominion .............................................. 66
(G) Lakes............................................................................ 68
[19.14] Ownership of Lakes ..................................................... 68
[19.15] Natural Bed of Lakes, Defined .................................... 68
(H) “Others of Similar Character” ..................................... 69
[19.16] Creeks .......................................................................... 69
§ 20. Property of Public Dominion: For Public Service ..................... 70
x
§ 21. Property of Public Dominion: For the Development
of National Wealth ..................................................................... 70
[21.1] The Regalian Doctrine and State Ownership
of Natural Resources ................................................... 71
(A) Natural Resources ........................................................ 73
[21.2] Fishponds ..................................................................... 73
[21.3] Watershed Reservation ................................................ 73
[21.4] Submerged Lands ........................................................ 74
(B) Lands of the Public Domain ........................................ 74
[21.5] Classification ............................................................... 74
[21.6] Classification of Public Lands, Prerogative
of the Executive ........................................................... 74
[21.7] When Public Lands Classified As Patrimonial
Property ....................................................................... 75
§ 22. Characteristics of Properties of Public Dominion ..................... 76
[22.1] They Are Outside the Commerce of Man.................... 76
[22.2] They Are Not Susceptible To Private
Appropriation and Acquisitive Prescription ................ 77
[22.3] They Are Not Subject To Attachment
and Execution .............................................................. 78
[22.4] They Cannot Be Burdened With Voluntary
Easements .................................................................... 79
§ 23. Patrimonial Property of the State ............................................... 80
[23.1] Examples of Patrimonial Property............................... 80
[23.2] Disposition of Patrimonial Property ............................ 82
[23.3] Not Susceptible To Acquisitive Prescription ............... 82
§ 24. Conversion: From Public Dominion to Patrimonial
Property ...................................................................................... 84
§ 25. Property of Provinces, Cities and Municipalities ...................... 87
[25.1] Classification of Properties of Political
Subdivisions ................................................................ 87
§ 26. Property for Public Use of Provinces, Cities
and Municipalities...................................................................... 88
[26.1] Governed By Same Principles as Property
of Public Dominion ..................................................... 88
[26.2] Provincial Roads, City Streets and
Municipal Streets ......................................................... 90
[26.3] Squares, Fountains, Public Waters,
Promenades, Etc. ......................................................... 94
xi
§ 27. Patrimonial Property of Political Subdivisions .......................... 96
[27.1] Reclaimed Lands Belonging to Political Subdivisions ... 97
§ 28. Other Classification.................................................................... 99
§ 29. Private Property ......................................................................... 101
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§ 39. Right to Sub-surface and Airspace ............................................. 142
[39.1] Right To the Sub-Surface or Subsoil .......................... 143
[39.2] Right to Hidden Treasure............................................. 148
[39.3] Right to the Airspace ................................................... 158
Chapter 2
RIGHT OF ACCESSION
GENERAL PROVISIONS
§ 40. Accession ................................................................................... 168
[40.1] Definition and Concept ................................................ 168
[40.2] Kinds of Accession ...................................................... 169
A. INDUSTRIAL ACCESSION
§ 44. Industrial Accession ................................................................... 178
[44.1] Three Forms................................................................. 178
[44.2] Building, Planting or Sowing on One’s Own Land ..... 179
[44.3] Controversial Cases ..................................................... 180
§ 45. Using Materials Belonging To Another ..................................... 181
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[45.1] Situation Contemplated in Article 447 ........................ 181
[45.2] Determining the Legal Consequences ......................... 181
§ 46. Building With One’s Own Materials on the Land
of Another .................................................................................. 187
§ 47. Both Acted In Good Faith .......................................................... 187
[47.1] Concept of Good Faith ................................................ 187
[47.2] Good Faith of the Landowner...................................... 208
[47.3] Legal Effects Where Both Parties Are
In Good Faith ............................................................... 208
[47.4] Option to Appropriate .................................................. 219
[47.5] Option To Sell the Land............................................... 222
§ 48. Landowner In Good Faith; Builder In Bad Faith ....................... 226
[48.1] Concept of Bad Faith ................................................... 226
[48.2] Legal Consequences; Alternative Rights
of the Landowner ......................................................... 226
[48.3] Limited Rights of Builder, Planter or Sower
in Bad Faith ................................................................. 228
§ 49. Both Acted In Bad Faith ............................................................ 229
[49.1] Rules That Will Govern If Both Parties Acted
In Bad Faith ................................................................. 229
[49.2] Bad Faith of the Landowner ........................................ 229
§ 50. Landowner In Bad Faith; Builder In Good Faith ....................... 230
§ 51. Building on Another’s Land Using Another’s Materials ........... 231
[51.1] Situation Contemplated in Art. 455 ............................. 231
[51.2] If the Owner of the Materials Acted
in Bad Faith ................................................................. 231
[51.3] If the Owner of the Material Acted in
Good Faith ................................................................... 232
B. NATURAL ACCESSION
§ 52. Natural Accession ...................................................................... 233
[52.1] Four Forms .................................................................. 233
§ 53. Alluvion ..................................................................................... 234
[53.1] Definition ..................................................................... 234
[53.2] Riparian Owners Distinguished From
Littoral Owners ............................................................ 234
[53.3] Rule on Alluvion.......................................................... 234
[53.4] Requisites of Alluvion ................................................. 235
[53.5] Right of Riparian Owner to Alluvium Is Ipso Jure ..... 241
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[53.6] Exception to the Rule on Alluvion .............................. 242
§ 54. Avulsion ..................................................................................... 243
[54.1] Definition ..................................................................... 243
[54.2] Comparison With Alluvion .......................................... 243
[54.3] Rule on Avulsion ......................................................... 244
[54.4] Avulsion With Respect To Uprooted Trees ................. 244
§ 55. Change of Course of River ........................................................ 245
[55.1] Effect of Change of Course of River ........................... 245
[55.2] Applicability of Article 461 ......................................... 246
[55.3] Extension of Ownership Ipso Jure .............................. 248
[55.4] Restoration of the River to Its Former Course ............ 249
[55.5] When River Dries Up .................................................. 250
[55.6] Status of New Bed ....................................................... 250
§ 56. Formation of Island .................................................................... 251
[56.1] Three Kinds of Islands................................................. 251
Chapter 3
QUIETING OF TITLE
§ 60. Quieting of Title ......................................................................... 262
[60.1] Action to Quiet Title .................................................... 262
[60.2] Requisites of Action to Quiet Title .............................. 264
[60.3] Prescription .................................................................. 267
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Chapter 4
RUINOUS BUILDINGS AND TREES
IN DANGER OF FALLING
§ 61. Ruinous Buildings and Falling Trees ......................................... 269
[61.1] Exercise of Police Power ............................................. 269
[61.2] Obligations of Owners of Ruinous Buildings ............. 270
[61.3] Obligations of Owners of Falling Trees ...................... 270
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[66.4] Renunciation By A Co-Owner ..................................... 297
[66.5] Requirement of Consent in Renunciation.................... 298
[66.6] Limitation on the Exercise of the Option
of Renunciation ........................................................... 298
[66.7] Includes Payment of Taxes .......................................... 299
§ 67. Different Stories Belonging to Different Owners ...................... 300
[67.1] Applicability of Article 490 ......................................... 300
[67.2] Rules Governing Necessary Expenses ........................ 300
[67.3] Condominium, Defined ............................................... 301
[67.4] Nature of Ownership in Condominium Projects ......... 301
[67.5] Rules Governing Expenses on the “Common
Areas” .......................................................................... 301
[67.6] Assessment as Lien Upon Unit.................................... 302
§ 68. Acts of Alteration ....................................................................... 303
[68.1] Rule as to “Acts of Alterations” .................................. 303
[68.2] Meaning of “Act of Alteration” ................................... 304
[68.3] Form of Consent .......................................................... 304
[68.4] Effect of Unauthorized Alterations .............................. 304
§ 69. Acts of Administration ............................................................... 305
[69.1] Rule as to “Acts of Administration” ............................ 305
[69.2] Meaning of “Acts of Administration” ......................... 305
[69.3] No Majority or Act Of Majority Is Seriously
Prejudicial .................................................................... 306
§ 70. Right Over the Ideal Share ......................................................... 306
[70.1] Nature of Co-Owner’s Right Over His Pro
Indiviso Share .............................................................. 306
[70.2] Effect of Alienation or Mortgage
of Undivided Share ...................................................... 307
[70.3] Alienation of Definite or Concrete Portion ................. 307
[70.4] Alienation of Entire Co-owned Property ..................... 312
[70.5] Applicability of Doctrine of “Buyer in
Good Faith” ................................................................. 313
[70.6] Sale of Conjugal Property Without the Consent
of the Other Spouse ..................................................... 316
[70.7] Sale of Community Property Without the
Consent of Other Spouse ............................................. 317
[70.8] Co-ownership in Article 147 of the Family Code ....... 318
§ 71. Right of Legal Redemption........................................................ 318
[71.1] Legal Redemption in Co-Ownership ........................... 318
[71.2] Requisites For the Exercise of Legal Redemption ...... 319
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[71.3] Presupposes Existence of Co-Ownership .................... 319
[71.4] Share Must Be Sold To A Third Party ......................... 320
[71.5] A Co-Owner Has Right of Redemption,
Not Pre-Emption .......................................................... 320
[71.6] Period of Redemption .................................................. 320
[71.7] Written Notice Not Necessary If There
Is Actual Notice ........................................................... 321
[71.8] Article 1620 Distinguished From Article 1088 ........... 321
§ 72. Extinguishment of Co-ownership .............................................. 322
[72.1] Causes of Extinguishment of Co-ownership ............... 322
[72.2] Merger ......................................................................... 322
[72.3] Destruction of Thing or Lost of Right ......................... 323
[72.4] Redemption By One Co-Owner of the
Entire Property............................................................. 323
§ 73. Prescription ................................................................................ 328
[73.1] General Rule: Prescription Does Not Lie .................... 328
[73.2] Exception: When Co-Ownership Is Repudiated .......... 328
[73.3] Requisites .................................................................... 329
§ 74. Partition ...................................................................................... 331
[74.1] Definition ..................................................................... 331
[74.2] Right of Co-Owner to Demand Partition..................... 331
[74.3] Period of Prescription .................................................. 332
[74.4] Action For Partition, Explained ................................... 341
[74.5] When Partition Not Available ...................................... 342
[74.6] When thing is essentially indivisible ........................... 343
[74.7] Legal Effects of Partition ............................................. 347
Chapter 2
MINERALS
§ 78. Governing Laws ......................................................................... 375
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Chapter 3
TRADEMARKS AND TRADE NAMES
§ 79. Governing Laws ......................................................................... 376
Title V. POSSESSION
Chapter 1
POSSESSION AND THE KINDS THEREOF
Chapter 2
ACQUISITION OF POSSESSION
§ 84. Acquisition of Possession .......................................................... 404
[84.1] Modes of Acquiring Possession................................... 404
[84.2] Requisites for acquisition of possession ...................... 404
[84.3] Material Occupation .................................................... 405
[84.4] Doctrine of Constructive Possession ........................... 406
[84.5] Subjection to Action of Will ........................................ 407
[84.6] Proper Acts and Legal Formalities .............................. 408
[84.7] Acquisition of Possession Over Rights ....................... 408
[84.8] By Whom Possession Acquired................................... 408
[84.9] Capacity to Acquire Possession ................................... 409
§ 85. Transfer of Possession Through Succession .............................. 410
[85.1] Effect of Succession .................................................... 410
[85.2] Consequences of Wrongful Possession
By Decedent ................................................................ 411
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§ 86. Instances Where Possession Is Not Acquired ............................ 414
[86.1] Use of Force or Intimidation ....................................... 414
[86.2] Acts Merely Tolerated ................................................. 416
[86.3] Clandestine and Unknown Acts................................... 419
§ 87. Conflict Over Possession de Facto ............................................ 420
Chapter 3
EFFECTS OF POSSESSION
§ 88. Right to Protection of Possessors............................................... 424
[88.1] Protects Every Kinds of Possessors ............................. 424
[88.2] Actions to Recover Possession .................................... 425
[88.3] Writ of Preliminary Mandatory Injunction .................. 426
§ 89. Possession in the Concept of Owner.......................................... 428
[89.1] Presumption of Just Title ............................................. 429
[89.2] Meaning of “Just Title” ............................................... 429
[89.3] In Relation to Acquisitive Prescription........................ 430
§ 90. Co-possession ............................................................................ 431
§ 91. Right of Possessors to Fruits ...................................................... 433
I. Possessor in Good Faith
A. Fruits Already Received ................................................... 434
[91.1] Rule.............................................................................. 434
[91.2] Interruption of Good Faith........................................... 434
[91.3] When Fruits Considered “Received”........................... 435
B. Pending Fruits .............................................................. 436
[91.4] Rule.............................................................................. 436
[91.5] Rules Do Not Apply to Trees....................................... 437
II. Possessor in Bad Faith
A. Fruits Already Received ................................................... 437
[91.6] Rule.............................................................................. 437
B. Pending Fruits .............................................................. 438
[91.7] Rule.............................................................................. 438
[91.8] Rule With Respect to Trees ......................................... 439
§ 92. Right to Necessary, Useful and Ornamental Expenses .............. 440
[92.1] Kinds of Expenses ....................................................... 440
[92.2] Right of Possessors to Necessary Expenses ................ 441
[92.3] Right of Possessors to Useful Expenses ...................... 441
xx
[92.4] Right of Possessors to Expenses For Pure Luxury ..... 445
[92.5] Rule on Improvement Caused by Nature .................... 446
[92.6] Improvements Which Ceased To Exist........................ 446
§ 97. Liability of Possessors for Loss or Deterioration ...................... 447
§ 98. Presumption of Continuity of Possession .................................. 448
§ 99. Modes of Losing Possession ...................................................... 449
[99.1] Abandonment .............................................................. 449
[99.2] Assignment .................................................................. 451
[99.3] Destruction or Loss of the Thing ................................. 451
[99.4] Possession By Another ................................................ 451
§ 100. Rule With Respect to Misplaced (Mislaid) Movables ............... 453
§ 101. Possession of Movables ............................................................. 454
[101.1] Equivalent to Title ....................................................... 454
[101.2] Exceptions to Irrevindicability .................................... 455
[101.3] Cases Where There Is No Recovery ............................ 464
§ 102. Possession of Animals................................................................ 465
[102.1] Kinds of Animals Under the Code............................... 465
[102.2] When Possession Is Considered Lost .......................... 466
Chapter 2
RIGHTS OF THE USUFRUCTUARY
§ 105. Rights of Usufructuary............................................................... 476
[105.1] Rights Included In Usufruct ........................................ 476
[105.2] Right to the Fruits ........................................................ 481
[105.3] Alienation of the Usufructuary Right .......................... 482
[105.4] Right to Useful and Ornamental Improvements ......... 483
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Chapter 3
OBLIGATIONS OF THE USUFRUCTUARY
§ 106. Obligations of Usufructuary ...................................................... 486
§ 107. Obligations at the Commencement of Usufruct......................... 486
[107.1] In General .................................................................... 486
[107.2] Consequences of Failure to Comply with
the Foregoing Obligations ........................................... 486
[107.3] Exemptions From The Obligation To Give Security ... 487
[107.4] Instances Where Usufructuary May Be
Relieved of the Foregoing Obligations........................ 488
§ 108. Obligations During the Life of Usufruct .................................... 490
[108.1] Ordinary and Extraordinary Repairs ........................... 491
[108.2] Payment of Annual Charges and Taxes ....................... 493
[108.3] Obligation to Notify Owner of Prejudicial Acts .......... 494
Chapter 4
EXTINGUISHMENT OF USUFRUCT
§ 109. Extinguishment of Usufruct ....................................................... 496
[109.1] Death of Usufructuary ................................................. 497
[109.2] Expiration of Period or Fulfillment of Resolutory
Condition ..................................................................... 498
[109.3] Loss of the Thing ......................................................... 499
[109.4] Effect of Bad Use ........................................................ 500
§ 110. Obligations of Usufructuary Upon Termination of Usufruct ..... 500
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[113.1] Inherence or Intransmissibility .................................... 512
[113.2] Indivisibility ................................................................ 514
§ 114. Acquisition of Easements .......................................................... 516
[114.1] Modes of Acquiring Easements ................................... 516
[114.2] Acquisition Thru Prescription ..................................... 520
[114.3] Proof of Easement ....................................................... 523
[114.4] Easement By Apparent Sign or Legal Presumption .... 524
§ 115. Rights and Obligations of the Owner of Dominant Estate ........ 528
[115.1] Effect of Easement Upon The Rights
of Servient Owner........................................................ 528
[115.2] Extent of Rights Granted to the Holder
of Easement ................................................................. 529
[115.3] Limitations Upon The Rights of Owner
of Dominant Estate ...................................................... 530
§ 116. Extinguishment of Easements .................................................... 532
[116.1] Merger ......................................................................... 532
[116.2] Non-User ..................................................................... 533
[116.3] Impossibility of Use .................................................... 534
[116.4] Renunciation ................................................................ 535
[116.5] Redemption.................................................................. 535
Chapter 2
LEGAL EASEMENTS
§ 117. Legal Easement, In General ....................................................... 535
§ 118. Easement Relating to Waters ..................................................... 537
[118.1] Easement of Drainage of Waters ................................. 538
[118.2] Easement of Public Use ............................................... 539
[118.3] Easement For Drawing Waters .................................... 539
[118.4] Easement of Abutment of Dam ................................... 539
[118.5] Easement of Aqueduct ................................................. 540
§ 119. Easement of Right of Way ......................................................... 543
[119.1] Concept ........................................................................ 543
[119.2] Manner of Acquisition; Requisites of Compulsory
Right of Way ................................................................ 543
[119.3] Isolation of the Dominant Estate ................................. 544
[119.4] Inadequacy of the Outlet to Public Highway .............. 545
[119.5] “At the Point Least Prejudicial…” .............................. 547
[119.6] Payment of Indemnity ................................................. 548
[119.7] Width of the Easement................................................. 549
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[119.8] Who May Demand For Compulsory Right of Way ..... 549
[119.9] Extinguishment of Right of Way ................................. 550
§ 120. Easement of Party Wall .............................................................. 552
[120.1] Nature of Party Wall .................................................... 552
[120.2] Presumption of Existence of Easement
of Party Wall ................................................................ 553
[120.3] Rights and Obligations of Each Co-Owner
of Party Wall ................................................................ 554
§ 121. Easement of Light and View ...................................................... 557
[121.1] Concept ........................................................................ 557
[121.2] Making an Opening in Party Wall ............................... 557
[121.3.] Acquisition of Easement of Light
and View Through Prescription ................................... 557
[121.4] Observance of Certain Distances................................. 557
[121.5] Opening Where Distances Not Observed .................... 558
§ 122. Easement of Drainage of Buildings ........................................... 560
[122.1] Concept ........................................................................ 560
[122.2] Ownership of Rain Waters ........................................... 560
[122.3] Legal Easement of Drainage ....................................... 560
§ 123. Intermediate Distances for Planting ........................................... 562
[123.1] Distance to Be Observed in Case
of Planting Trees .......................................................... 562
[123.2] Right To Cut Branches and Roots ............................... 562
[123.3] Fruits Naturally Falling ............................................... 563
§ 124. Legal Easement of Lateral and Subjacent Support .................... 564
[124.1] Concept ....................................................................... 564
[124.2] Easement of Lateral and Subjacent Support ................ 564
§ 125. Voluntary Easement ................................................................... 565
[125.1] Concept ........................................................................ 565
[125.2] Establishment of Easement on Property
Held in Usufruct .......................................................... 566
[125.3] Easement Over A Co-Owned Property ........................ 566
[125.4] Abandonment of Property ........................................... 567
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§ 127. Classifications of Nuisance ........................................................ 570
[127.1] Public and Private Nuisance ........................................ 570
[127.2] Nuisance Per Se and Per Accidens .............................. 585
[127.3] Doctrine of Attractive Nuisance .................................. 585
§ 128. Remedies .................................................................................... 587
[128.1] Criminal Prosecution ................................................... 588
[128.2] Abatement of Nuisance ............................................... 588
[128.3] Civil Action for Damages ............................................ 591
BOOK III
DIFFERENT MODES OF ACQUIRING
OWNERSHIP
PRELIMINARY PROVISION
§ 129. Modes of Acquisition of Ownership and Real Rights ............... 593
[129.1] In General .................................................................... 593
[129.2] Original and Derivative Modes ................................... 594
[129.3] Loss of Ownership ....................................................... 594
§ 130. Law as Mode .............................................................................. 595
§ 131. Tradition or Delivery ................................................................. 595
[131.1] Mode and Title, Distinguished .................................... 595
[131.2] Contract Only Constitutes Title ................................... 596
[131.3] Concept of Tradition; Requisites ................................. 597
[131.4] Kinds of Tradition........................................................ 602
§ 132. Acquisitive Prescription ............................................................. 608
[132.1] Concept and Requisites ............................................... 608
[132.2] Two Kinds: Ordinary and Extraordinary ..................... 609
[132.3] Period of Prescription .................................................. 610
[132.4] When Prescription Does Not Lie ................................. 611
[132.5] Capacity to Acquire Ownership By
Acquisitive Prescription .............................................. 613
Title I. OCCUPATION
§ 133. Occupation ................................................................................. 616
[133.1] Concept and Requisites ............................................... 616
[133.2] Animals as Object of Appropriation ............................ 616
xxv
[133.3] Hidden Treasure........................................................... 619
[133.4] Abandoned, Mislaid and Lost Property ....................... 619
Chapter 2
PERSONS WHO MAY GIVE OR RECEIVE
A DONATION
§ 138. Capacity to Make Donations ...................................................... 661
[138.1] Who May Donate ........................................................ 661
[138.2] Determination of Donor’s Capacity ............................ 662
[138.3] Legal Impossibility of Double Donations ................... 664
xxvi
§ 139. Capacity of the Donee ................................................................ 665
[139.1] Juridical Capacity, Sufficient ....................................... 665
[139.2] Manner of Acceptance ................................................. 666
[139.3] Persons Disqualified to Become Donees ..................... 668
§ 140. Formalities in Donation ............................................................. 672
[140.1] In General .................................................................... 672
[140.2] Applicability of Articles 748 and 749, NCC ............... 673
[140.3] Form of Donations of Personal Property ..................... 673
[140.4] Form of Donations of Real Property ........................... 675
Chapter 3
EFFECT OF DONATIONS AND
LIMITATIONS THEREON
§ 141. Extent of Donation ..................................................................... 684
[141.1] In General .................................................................... 684
[141.2] Future Property Cannot Be Donated ........................... 684
[142.3] Donor Must Reserve For Himself and Relatives ......... 687
[142.4] Donation Must Not Be Inofficious .............................. 688
§ 143. Effect of Donations .................................................................... 690
[143.1] Donations Made to Several Donees Jointly................. 690
[143.2] No Warranty Against Eviction ..................................... 691
[143.3] Reservation of Power to Dispose ................................ 691
[143.4] Separate Donation of Ownership and Usufruct ........... 692
[143.5] Donor May Provide for Reversion .............................. 692
[143.6] Payment of Donor’s Debts .......................................... 692
Chapter 4
REVOCATION AND REDUCTION
OF DONATIONS
§ 144. Reduction or Revocation of Donations ...................................... 695
[144.1] In General .................................................................... 695
[144.2] Subsequent Appearance of Children ........................... 696
[144.3] Failure to Comply With Charges ................................. 699
[144.4] Revocation By Reason of Ingratitude.......................... 706
[144.5] Revocation By Reason Inofficiousness ....................... 707
xxvii