DIOGENES TUASON, PETITIONER, VS. COURT OF APPEALS AND ISABEL ESTEVEZ DE TUANQUI, RESPONDENTS.

This is an appeal by
certiorari to review the decision of the Court
of Appeals in CA-G.R. No. 46861-R, wherein said court affirmed in toto
with costs against appellant Diogenes Tuason the
decision of the lower court in Civil Case No. 1851, an action to
remove clouds over real property with damages and preliminary injunction, which
dispositive portion reads as follows:

“WHEREFORE, the estate of Juan Estevez represented by Isabel Estevez
de Tuanqui is hereby declared the owner of Lot No. 109
of the Cadastral Survey of Legazpi and the defendant,
Diogenes Tuazon, is hereby ordered to reconvey the lot embraced in Original Certificate of Title
No. 40 and to purge said title to the lien in the amount of P4,900.00 and, if he
fails to do so, a writ of execution will issue against the defendant, Diogenes
Tuazon, for the said amount, and to pay the plaintiff
the amount of P120.00 annually from 1952 until he vacates Lot 109, with costs
against the said defendant.

SO ORDERED.”

(pp. 84-85, Record on Appeal)

To have a better grasp of the antecedent facts and issues of
the case, quoted hereunder is the pertinent portion of the assailed
decision of the appellate court:

This is an appeal from the decision of the Court of First Instance
of Albay, Branch II, at
Legaspi
City, in Civil Case No. 1851, an
action to remove clouds over real property with damages and preliminary
injunction.The complaint filed by the plaintiff, administratrix of the late Juan Estevez, states the
following material averments:

“2.  That the estate of Juan
Estevez, deceased, is the registered owner and the judicial administratrix has been and still is in the actual
possession of the following described real properties:

(1)  Transfer Certificate of Title No. 390 (RT-343
(755) of the Register of Deeds of Albay. 
A parcel of land of
No. 1068-A Subdivision plan PSU-1290,
being a portion of Lot No. 1068 of the Cadastral Survey of Legaspi, G.L.R.O. Cad. Records No. 860,
with all the buildings and improvements thereon, situated in Legaspi, Albay. 
Bounded on the NE by Lot 1068-B of said subdivision plan S.E. by Lot 1069
W. by Kapantawan River; and NW. by Calle-Mercado containing an area of TWO HUNDRED
(200) square meters more or less.  Technical
description appears fully on the Torrens Title mortgaged to the
PNB.

(2)  Another parcel of land adjacent to the West of the
preceding parcel, Lot 1068-A, situated in Legaspi, Albay. 
Bounded on the North, West and South by lands formed by accretion and/or
drying up of the old river bed of the Kapantawan
River, and on the East by Lot 1068-A, containing a total area of one thousand
fifty nine (1,059) square meters, more or less.

The first parcel is declared under Tax No. 12375 and
assessed at P400.00, while the house constructed under Tax No. 8975 and valued
at P700.00.

“3.     That the first parcel of land has been
registered under Act 496 since 1916, with the Kapantawan River as the natural boundary to the West but
subsequently by accretion thru the accumulation of alluvial deposits west of Lot
1068-A the parcel of land described in par. 2 of this complaint was
formed.  The late Juan Estevez and his heirs after his demise took
immediate possession thereafter and improved the same.  A
residential house was constructed thereon with cement footings, which was
however destroyed by the Typhoon TRIX in October 1952.  Up to the
present the cement footings are still there and a toilet still exists therein
used by the lessee of the plaintiff on Lot 1068-A;

“4.  That the defendant
Diogenes Tuazon presently pretends certain rights over
a portion of the second parcel of land and is threatening to destroy the toilet
of the plaintiff therein constructed.  This defendant further
intends to construct a building of permanent nature over the old site of the
building of the plaintiff estate destroyed by
the typhoon trix;

“5.  That the plaintiff is informed and so believes
that the defendant Diogenes Tuazon acquired by
purchase the house of PATRICIO and MARIA ESTEVEZ, constructed partly on Lot
1068-A and on a part of the second parcel of land.  To this
house an alleged annex is being constructed and/or to be constructed by the said
defendant to eventually occupy the site of the old building of the plaintiff and
the toilet.  In a letter dated December 28, 1957, defendant
Diogenes Tuazon with uncalled for audacity sought to
compel the plaintiff to remove the said
toilet;

“6.  That the plaintiff is likewise informed and so
believes that defendant Diogenes Tuazon applied with
the defendant Director of Lands for the purchase of lease of the
second parcel of land under the mistaken belief that said land forms part of the
public domain, disposable under the public land law.  That the second parcel of land is the private property of the
plaintiff estate and the heirs by right of accretion.  The
defendant Director of Lands or anyone acting in his behalf may not dispose of
the same.  No action so far has been had on the application of the
defendant Diogenes Tuazon;

“7.  That prior to the filing
of this action, defendants tried to make a survey of the second parcel of land
but plaintiff suspended and protested any such survey.  Defendant
Diogenes Tuazon under false representations with the
Office of the Mayor of Legaspi, Albay, recently secured a building permit to construct a
building on the second parcel of land;

“8.  That by reason of the
hostile acts of the defendant Diogenes Tuazon and the
apparent desire of said defendant to ripen whatever pretensions he has over the
second parcel of land into a valid right by applying for its use and occupation
with the defendant Director of Lands a cloud has been created over the said
parcel of land, which need to be removed at once.  In the event
that after the service of process, the defendant Director of Lands
decide to claim the second parcel of land as part of the public domain, then
plaintiff maintains that the said property is a private land by right of
accretion;

“9.  That even admitting arguendo only that the said strip of land described
as parcel (a) of this complaint forms part of the public land
disposable under the public land (which contention is hardly allowable) yet by
reason of priority of possession, improvements, and claim, the plaintiff is
entitled to its adjudication as against the defendant
Diogenes Tuazon;

“10.   That the acts of defendant have been done with
the utmost bad faith.  He has full knowledge of the rights of the
plaintiff over the property now disputed.  Plaintiff has been
forced to go to Court in order to protect the rights of the plaintiff estate
resulting in the expense of P1,000.00 for attorney’s fees before this Court
alone, plus  additional expenses on
appeal;

“11.   That by the unjust acts of usurpation committed
and threatened to be done by the defendant Tuazon,
plaintiff is entitled to actual and moral damages in the sum of P2,000.00;
partly for use of land by Tuazon;” (Record on Appeal,
pp. 2-7)

The plaintiff asked for the issuance of a writ of preliminary
injunction which the lower court granted and a writ was issued on January 2, 1958. 
(Ibid., pp. 7-12)

The defendant Diogenes Tuazon filed his
answer denying the material averments of the complaint and as
special defenses and counterclaim avers:

“AS FIRST SPECIAL
DEFENSES:

Defendant
alleges:

14.  That the land in question was not formed by
accretion but by the reclamation project of the government and the same was
recently left dry due to the construction of the culvert for Legaspi drainage, consequently by the second parcel of land
forms part of the public domain;

“AS SECOND SPECIAL
DEFENSES:

Defendant alleges:

15.  That assuming without conceding that the second parcel of
land is the private property of the plaintiff, her rights to recover ownership,
thereof has prescribed as defendant and his predecessor-in-interests has
occupied the land openly and adversely for more than ten
years;

“AS THIRD SPECIAL
DEFENSES:

Defendant
alleges:

16.  That assuming that the land in question was
formerly river bed and left dry because it was abandoned through the natural
change in the course of the water, plaintiff, although claiming to be the
adjoining owner, is not the owner thereof for the following
reasons:

“Firstly, the river bed was abandoned not by natural change but by
the reclamation project of the government and the construction of the culvert
for the drainage of Legaspi which made the river bed
higher than its source;

“Secondly, assuming that the land in question was formerly river bed
of the Kapantawan River which was abandoned through
the natural change in the course of the waters, the owners thereof are those
whose land are occupied by the new course of the river and not the plaintiff as
the land in question was left dry on or about the year
1955;

Said defendant Tuazon asks for the amount
of P5,000.00 as actual and moral damages including
attorney’s fees.  (Ibid., pp. 17-19)

The defendant, The Director of Lands, through the Solicitor General,
denies the material averments of the complaint and avers:

“(5)  the fear that the Director of Lands will proceed
in adjudicating the disputed parcel of public lands exist only in the
imagination of plaintiff who is not even certain that a public land application
was filed for the land described in the complaint and therefore not a valid
ground for the issuance of injunction, much less an ex-parte
injunction.

“By way of affirmative defense to this Honorable Court
alleges:

“That the petition does not show that the defendant is doing,
threatens, or is about to do, or is procuring or suffering to be
done some acts in violation of plaintiff’s rights, tending to
render the judgment ineffective and therefore fall short of the legal requisites
to entitle the petitioner to the injunction issued.” (Ibid., pp.
22-23)

After trial, the lower court dismissed the complaint with costs
against the plaintiff.  (Ibid., pp. 31-41)

On March 14,
1961, the plaintiff, assisted by a new counsel, filed a Motion for
New Trial based on newly discovered evidence.  The lower court
granted the new trial and admitted the newly discovered evidence (Exhs. “A” and “B”) with the testimonies of
the plaintiff’s witnesses.

Despite the pendency of the case, in the
interim, the Director of Lands on May 18, 1967, issued to his co-defendant,
Diogenes Tuazon, Miscellaneous Sales Patent No. 2850
to the land in question, for which O.C.T. No. 40 of the Register of Deeds of
Legaspi City was issued in the name of the
latter.  The defendant Tuazon also
executed a mortgage over the property in question to guarantee a loan in the
amount of P4,900.00.  These facts were
brought to the attention of the lower court by new counsel. 
(Ibid., pp. 73-77)

On May 29, 1968,
the lower court rendered its decision, the dispositive
portion of which reads:

“WHEREFORE, the estate of Juan Estevez represented by
Isabel Estevez de Tuanqui is hereby
declared the owner of Lot No. 109 of the Cadastral Survey of Legaspi and the defendant, Diogenes Tuazon, is hereby ordered to reconvey the lot embraced in Original Certificate of Title
No. 40 and to purge said title of the lien in the amount of P4,900.00 and, if he
fails to do so, a writ of execution will issue against the defendant, Diogenes
Tuazon, for the said amount, and to pay the plaintiff
the amount of P120.00 annually  from 1952 until he
vacates Lot 109, with costs against the said defendant.

SO ORDERED.

Given at Legaspi
City, Philippines, this May 29, 1968.

(Sgd.) EZEKIEL S. GRAGEDA

Judge

(Record on Appeal, pp. 84-85)

On August 28, 1968, the decision rendered on
May 29, 1968 having become
final and executory, upon motion filed by counsel for
the plaintiff, a Writ of Execution for the satisfaction of the judgment was
issued.  (Ibid., pp. 85-90) The writ of execution issued
was however suspended upon filing on October 21, 1968 by the defendant Diogenes Tuazon of a Petition for Relief from Judgment
(Ibid., pp. 92-100).

Upon opposition to the petition for relief from judgment filed by
counsel for the plaintiff, showing indubitably to the court that plaintiff’s
motion to submit the case for decision, dated January 10, 1968, including a
supplemental motion dated January 11, 1968, was duly served on defendants’
counsel, the petition was denied on December 6, 1968 (Ibid., pp.
105-108).

The defendant Tuazon,
upon denial of the motion for reconsideration of the denial of the
petition for relief from judgment appealed to this Court.

The defendant Diogenes Tuazon assigned the
following errors allegedly committed by the trial court:

FIRST ASSIGNMENT
OF ERROR.  —

The lower court erred in holding that the Western boundary of Lot
1068-A was a river on the basis of alleged newly discovered evidence presented
at the new trial, disregarding the ocular findings of the same Court and the
admissions of the parties.

SECOND ASSIGNMENT
OF ERROR.  —

The lower Court erred in holding that Lot 109
was formed by the alluvial accumulation of deposit through the action of the
current of river, despite its own finding that the area of which
Lot 109 was a part was admittedly a swamp.

THIRD ASSIGNMENT
OF ERROR.  —

The lower Court erred in not holding that appellee’s complaint is barred by estoppel in that she had previously filed an application for
sales patent with the government but that it was rejected in favor of appellant
Tuazon.

FOURTH ASSIGNMENT
OF ERROR. —

The lower Court erred in not giving due course to the petition for
relief from judgment when the facts undisputably show
that the judgment was procured thru fraud and/or accident or excusable
negligence, or that proceedings antecedent thereto were had without notice to
appellants.

(Tuazon’s Brief, pp. 12-13)

The defendant Director of Lands alleged the following
errors:

“I

THE LOWER
COURT ERRED IN HOLDING THAT LOT NO. 109
‘WAS FORMED BY ALLUVIAL DEPOSIT THROUGH THE
ACTION OF THE CURRENT OF THE RIVER’ AND, THEREFORE, BELONGS TO THE ESTATE OF
JUAN ESTEVEZ AS OWNER OF THE MOTHER ESTATE.

II

ASSUMING ARGUENDO THAT THE LOT IN
QUESTION WAS AN ACCRETION, THE LOWER
COURT NEVERTHELESS ALSO ERRED IN NOT FINDING THAT
PLAINTIFF, AS JUDICIAL ADMINISTRATRIX OF THE ESTATE OF JUAN ESTEVEZ, HAD ALREADY
WAIVED AND/OR LOST WHATEVER, RIGHT SHE OR ESTEVEZ ESTATE MIGHT HAVE HAD OVER
SAID LOT IN FAVOR OF THE ESTATE.

III

THE LOWER COURT
ERRED IN NOT DECLARING THE LAND IN QUESTION AS PART OF THE PUBLIC DOMAIN UNDER
THE ADMINISTRATION OF THE DEFENDANT DIRECTOR OF LANDS.” (Appellant Dir. of
Lands’ Brief, pp. 1-2)

The simple issue to be resolved in this appeal is the proper
application of Article 457 of the New Civil Code relating to the
right of a riparian owner of real properties over the additional estate formed
therein by accretion.” (pp. 35-44, Rollo)

In the dispositive portion of its
decision, the appellate court affirmed in toto the lower court’s
findings, after a careful consideration of all evidences
presented.

Both petitioners Diogenes Tuason
and Director of Lands filed their separate motions for reconsideration which
were denied by the appellate court.  Hence, petitioners filed
separate petitions for review on appeal by way of certiorari. 
The two cases are now consolidated, with several assignments of error,
which can be summarized into two:

1. The Court of Appeals grievously
   erred in declaring that there was accretion and consequently in not declaring
   the same as public land subject to the disposition of the Director of Lands;
   and

2. The Court of Appeals grievously erred in not granting petitioner’s petition
   for relief from judgment.”

After a diligent study and examination of the records of the
case, We find no
reason to reverse the findings of facts or conclusions arrived at by the lower
courts.  In ruling that there was indeed accretion, the appellate
court declares clearly that:

“The records show indubitably the existence of a river west of the
titled property of the appellee (Annexes “A” and
“B”).  Annex “A” to the motion for new trial is the plan of
Lot 1068 showing that the property of the appellee has as its natural boundary to the west the
Kapantawan
River.  Annex “B” to the
Motion for New Trial is the cadastral plan of Legaspi
Port confirming the existence of said natural boundary to the west as Kapantawan River.  This fact which was
established during the previous trial of the case on the testimony of Dr.
Estevez was made more indubitable during the new trial by testimonies of
witnesses, Jorge A. Logroño, Soledad Maristela and Josefa O.
Pineda.  Lagroño was a government
official who plotted and relocated on the ground the development plan of
Legaspi and Maristela
and Pineda are adjoining property owners who testified categorically to the
existence of the natural boundary to the west of appellee’s property as the Kapantawan
River.” (pp. 44-45,
record)

The lower courts reached such conclusion not whimsically but
after painstakingly considering the attending circumstances and the entire
evidence.  Worth mentioning also is the fact that the same trial
judge who made the factual finding that Kapantawan
River did not exist in the area, granted a motion for new trial to receive newly
discovered evidence.  The trial court, in its amended decision,
emphasized:

“At the new trial, the plaintiff presented oral and documentary
evidence tending to established that boundary of Lot
No. 109 to the West was actually a river.  After careful
consideration of said evidence, the Court is convinced that formerly the real
boundary of Lot 109 to the West was a river.”In view of
the foregoing finding, it is now clear that Lot 109 was
formed by the alluvial accumulation of deposit through the
action of the current of the river.  Therefore Article 457
of the Civil Code of the
Philippines
applies.  Said article reads:

“ART. 457.  To the owners of
land adjoining the banks of rivers belong the accretion which
they gradually receive from the effects of the current of the
waters.”

“As between the plaintiff and the
defendant, Diogenes Tuazon, the former
has the right to Lot No. 109.”

(pp. 83-84, Record on Appeal)

It is argued by petitioner that ocular inspections must be given
probative value.  Ocular inspection was indeed made by the trial
judge to establish the condition of the area a generation before the ocular
inspection was conducted.  Said ocular inspection cannot be given
too much probative value because there might be physical changes through the
passage of the years the cause of which cannot easily be determined by said
ocular inspection.  Moreover, the evidence submitted by petitioners
themselves show that the source of the water in the area in question had been
cut off from the sea even before the Japanese invasion of the
Philippines. 
The evidence for private respondent shows that subsequent to the year
1916, gradual accumulation of the deposits covered by the current of the
Kapantawan
River had already taken place. 
Also witness for the petitioner Mr. Juan Firaza, Acting Provincial Land Officer of Albay testified as follows:

“Q – You have no personal knowledge as to whether
Lot 109 in this case existed because of the drying up of
the Tibu
River or because it was filled up by
the adjacent owner or because it was due to the accumulation of sediment, you do
not know that?

“A –  No,
sir.” (TSN, May 16, 1960, p.
78). (p. 137, record)

On the other hand, there is enough evidence that the land in
question was formed by accretion; thus it belongs to the riparian owner,
pursuant to Art. 457 of the Civil Code of the
Philippines.  Consequently, the Director
of Lands has no jurisdiction over it and any conveyance made by him of any
private land is null and void.

We now come to the second
assignment of error.  This was touched upon
extensively in the ruling of the trial court and in
the ruling of the respondent Appellate Court to
the effect that several notices (re the submission of the case for
decision) had been duly sent by registered mail to the
attorneys involved.  We fully agree with said
finding.

Note further that on appeal, the respondent
Court of Appeals, ruled:

“The alleged excusable negligence for failure to
claim the mail addressed to counsel for
the defendant because of change of address without notification of
such change to the parties and to the Court is not a valid ground
or an excuse for failure to appear for the hearing set forth in said motion,
considering the certification of the Acting Mail Operation Chief,
Registry Division that no less than three (3) notices were sent to
the addressee therein failed to claim the mail.  x x x” (Decision of
respondent Court of Appeals, Annex “C” of Petition of Diogenes
Tuazon, p. 11) (p. 140, records)

In support of their contention, petitioners cite the
principles laid down in the
case of Vecino v. Court of
Appeals, L-38612, March 29, 1977 (p. 140, Record). 
Such contention was aptly refuted by respondents in their memorandum, to
wit:

“The factual setting of the Vecino case is
entirely different from the facts obtaining in this case.  Said
case does not involve a situation which obtains in this case, where
a counsel transferred from his office address of record without
notifying the court and parties thereof, as he is required to do under the Rules
of Court.  He is using his very negligence and admitted violation
of the Rules of Court as a shield to avoid consequences unfavorable to his
case.  Therefore, there was no fraud, accident, mistake or
excusable negligence, upon which a petition for relief from judgment can only be
granted.

“More importantly, there is no showing that petitioner
Diogenes Tuazon’s rights with respect to
the determination of the merits of the case were harmed or adversely
affected.  Extensive evidence had been presented by petitioners to
support their respective theories as to the cause how Lot
109 was formed.  Furthermore, petitioner Diogenes Tuazon did not state in his motion for relief from judgment
what evidence he will present which, if admitted, will probably change the
decision of the trial court, as he is required to do in the Rules of
Court.  His petition, therefore, is pro forma and the only
purpose to be achieved by the allowance thereof is the delay of the disposition
of the case.”

(pp. 140-141, records).

With respect to the denial of the petition for relief filed
by petitioner Tuazon insofar as the decision of the
trial court was initially held to be final and executory, this issue was no longer pressed by the parties
inasmuch as said petitioner was subsequently allowed to appeal from the decision
itself.  (See petitioner’s brief, p.
44).  Besides, there was no question about the timeliness of
the appeal from said decision by petitioner Director of
Lands.

WHEREFORE, in view of the aforegoing considerations, the appealed decision is hereby
AFFIRMED with costs against the petitioners.

SO
ORDERED.

Feria, (Chairman), Fernan, Alampay, and
Gutierrez, Jr., JJ., concur.