NATIONAL WATERWORKS AND SEWERAGE AUTHORITY, PLAINTIFF AND APPELLEE, VS. SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, DEFENDANT AND APPELLANT.

Direct appeal from a judgment of the Court of First Instance of
Manila, Branch XII, rendered in its Civil Case No. 43729, annulling and
setting aside an administrative decision of the Secretary of Public
Works and Communications, appealed to said court pursuant to the
provisions of the Irrigation Law (Act 2152).

The controversy started from a letter complaint, dated January 7,
1959, of the Project Engineer of the Angat River Irrigation System to
the Director of Public Works, asking that representations be made to
the National Waterworks and Sewerage Authority (NAWASA for short) to
secure the release of enough water from the Ipo Dam to avert a crop
failure in the Province of Bulacan, and from the refusal of the NAWASA
to grant the request because of the low water level in its reservoirs.
After a series of indorsements, the Acting Undersecretary of Public
Works and Communications, acting for the Secretary, rendered an
administrative decision recognizing that Executive Proclamation Nos. 48
(dated November 10, 1922) and 72 (dated December 27, 1950) reserved
3600 and 40,000 liters per second of water from the Angat River for the
Metropolitan Water District (predecessor of the NAWASA) and the Angat
River Irrigation System,respectively, but declaring that NAWASA is not
entitled to priority in the use of the water of the Angat River, and
ordering the said entity to apply for water rights with the Bureau of
Public Works, pursuant to section 14 of Act 2152 (Irrigation Law). In
effect, the Secretary’s decision declares that the NAWASA has no right
to use the waters of the Angat River.

Its attempts to secure reconsideration of the Department’s ruling
having proved futile, NAWASA appealed to the court, as provided by
section 4 of the Irrigation Act, that allows such appeal within 30 days
from notice of the administrative decision. This was done by forwarding
a complaint by registered mail on the last (or 30th) day of the period
allowed by law.

The defendant Secretary of Public Works and Communications answered,
interposing the defenses that: (1) the complaint was filed out of time;
(2) the plaintiff NAWASA had not exhausted all available administrative
remedies; and (3) that plaintiff has not acquired the right to use and
enjoy the water from the Angat Rivet by administrative concession or
prescription.

The court below found the defenses interposed to be untenable, and
reversed the Secretary’s decision. Whereupon, this appeal was duly
taken and the case elevated to this Court, where defendant-appellant
assigns the following errors:

“1. The trial court erred in holding that the appeal
to the court made by plaintiff from the decision of the Secretary of
Public Works was filed within the reglementary period.

2. The trial court erred in holding that plaintiff has acquired the right to use the waters of the Angat River by prescription.

3. The trial court erred in not dismissing the petition.”

In its first assignment of error, the defendant Secretary contends
that, admitting that the NAWASA’s complaint in appeal was sent by
registered mail on the last of the 30 days allowed by the Irrigation
Act for appealing the administrative decision to the court of competent
jurisdiction, still the complaint may not be deemed to have been filed
on the same day, for the reason that there is no showing that the
filing fees were simultaneously paid.

The appellant’s argument, however, fails to take into account that,
in appealed cases, failure to pay the docketing fees does not
automatically result in the dismissal of the appeal; the dismissal is
discretionary in the appellate court. Rule 141, section 3, speaking of
the fees of the clerk of the Court of Appeals or of the Supreme Court,
provides that:

“If the fees are not paid, the court may refuse to
proceed with the action until they are paid and may dismiss the appeal
or the action or proceeding.”

The rule quoted is applicable by analogy to the Court of First
Instance of Manila in the instant case, since the Court was exercising
appellate jurisdiction conferred upon it by law to review
administrative decisions under the Irrigation Act. For the rest, it is
well to remember that the discretion of inferior courts is not to be
interfered with in the absence of plain abuse thereof.

Considering that under the Rules of Court the date of mailing (by
registered mail) is considered the date of filing of any petition, or
pleading, the appellant’s first assignment of error must be overruled.

The appellant’s second assignment of error goes to the merits of the case.

It is undisputed that, by Proclamation No. 5 of July 10, 1913, as
amended by Proclamation No. 48 of November 10, 1922, the then
Governor-General of the Philippine Islands, General Leonard Wood,
expressly declared that, pursuant to Act No. 2152—

“I hereby, for reasons of public policy, designate
as exempt from appropriation and reserve for the use of the
Metropolitan Water District of Manila, Philippine Islands, 3500 liters
per second of time, or so much thereof as may be needed for domestic
purposes, of the water of the Angat River, Province of Bulacan
Philippine Islands * * *”.

The terms “exempt from appropriation and reserve for the use of the
Metropolitan Water District” necessarily imply that the District was
granted authority to withdraw and make exclusive use of the aforesaid
amount of water; otherwise, the reservation and exemption from
appropriation of such water would lose all significance. The
proclamation, in effect, amounted to an administrative concession in
favor of the Metropolitan Water District (predecessor of the NAWASA),
and is entitled to priority over the similar reservation in favor of
the Angat River Irrigation System made by Proclamation No. 72, Series
of 1950, since that of the Water District was made twenty-eight years
earlier, at the very least; and in addition, the amount of water thus
reserved was “excluded from appropriation”, obviously by anyone else
other than the grantee.

The stand taken by the respondent Secretary of Public Works is that
while the Governor-General’s Proclamations constituted valid
reservations of water in favor of the Water District, yet to validly
appropriate such water the District must first apply to the Director of
Public Works. This ruling does not appear reasonable. As heretofore
noted, the proclamation already “excluded from appropriation” the water
reserved for the Metropolitan Water District. In view of the executive
control that the American Governor-General exercised (under the Organic
laws in force in 1922) over the offices under him, it is difficult to
conceive that the Secretary or the Director of Public Works could
refuse the Metropolitan Water District the right to use the water
reserved for its use by the Chief Executive, since it would, in effect,
amend the latter’s proclamations. And if the Director could not refuse,
but had necessarily to confirm the grant, then am application to his
office for such concession became a useless ceremony and a total
superfluity.

We are thus led to no other conclusion but that the Proclamations in
favor of the Metropolitan Water District constituted valid and
operative administrative concessions in favor of appellee’s
predecessor, and it admittedly made use of the water thus granted,
without objection from any party until 1959. Actually, one of
defendant’s predecessors was even chairman of the plaintiff’s Board of
Directors when the Ipo Dam was built (Rec. on App., p. 41) to divert
the water of the Angat River into the plaintiff’s aqueducts.

The incontestable fact is that from 1913 to 1959, i.e., for 46
years, the NAWASA and its predecessors in interest had openly,
publicly, and exclusively appropriated water from the Angat River
without protest from anyone; but appellant Secretary seeks to
neutralize this long acquiesced-in user by arguing that under the
Irrigation Act, Act 2152 as amended, acquisition by prescription of the
use of public waters is not recognized, because under section 14 of
said Act,

“Any person hereafter desiring to appropriate any
public water shall previously make an application to the Secretary of
Public Works and Communications through the Director of Public Works.”

It is worthy of note that, as observed by the court a quo, both the
civil code of 1889 (Art. 409) and the Law of Waters of 1866 (Art. 194)
recognized two different ways of acquiring the right to the use of
public waters: (1) by administrative concession and (2) by prescription
for 20 years. Since the Irrigation law nowhere provides that the
procedure provided in its section 14 shall be exclusive, and implied
repeals are not favored, we see no reason to disturb the lower court’s
conclusion that even if the Irrigation law did modify the old
legislation procedure in obtaining administrative concession of public
waters, still it has not invalidated prescription as a mode of
acquiring title thereto, specially considering that the Civil Code of
1950, Article 504, reiterates the dual juridical source of title to the
use of public water, and even reduces the prescriptive period from
twenty to ten years. In fact, the Attorney General of the Philippines
had heretofore recognized that the Irrigation law (Art. 2152) has not
affected either Article 409 of the Civil Code of 1889 or Articles 39
and 194 of the Law of Waters of 1866 (7 op. Atty. Gen. 570, 576-579;
Francisco, Philippine Law of Waters and Water Rights, p. 147).

More conclusive still is the pronouncement of this Supreme Court in
Serrano vs. De la Cruz, 67 Phil. 348, wherein as late as 1939,
twenty-seven years after the enactment of the original Irrigation Act,
No. 2152, this High Tribunal recognized the existence of title to the
use of public water by prescription, saying (as. cit. p. 350):

“Neither had the petitioner acquired a right of use
of public waters, through prescription, by continuous enjoyment thereof
for only ten years. Prescription of twenty years is necessary to that
effect. (Art. 409, Civil Code; art. 39, Law of Waters of August 3,
1866; Magno vs. Castro, 30 Phil. 585; Sideco vs. Sarenas and Sarenas, 41 Phil. 80.)”

Appellant argues finally that the use of the waters of the Angat
River by NAWASA and its predecessors could not ripen into a valid right
because it was not exercised adversely against the Government. The
answer to this contention was given since 1933 in our decision in
Government of the Philippine Islands vs. Franco, 57 Phil. 780, 784,
where this Court ruled:

“It is axiomatic that prescription can not be
asserted against the sovereign, and it is therefore futile for any
claimant of real property to claim adverse possession against the
Government. It results that it is never necessary, in order to acquire
title by adverse possession against an individual owner, that the
person asserting adverse possession should have held adversely to the
Government. The decisions bearing upon this point will be found
collated in the note to Doe vs. Arnold (20 Am. & Eng. Ann. Cases,
533), as well as in 2 C. J., pp. 130, 131, and it is unnecessary to
extend the discussion.”

Hence, that the Metropolitan Water District and the NAWASA did not
hold adversely against the Government does not mean that their
possession and use of the Angat River Waters was not adverse to that of
the Angat River Irrigation System, which is its adversary in the
present proceedings. The NAWASA and its predecessors had no need of
holding adversely against the National Government since the latter had
expressly granted it the prior use of the water in question by the two
proclamations previously referred to. The defendant Secretary appears
to have overlooked that in prosecuting the present case the NAWASA is
not asserting a right against the Government itself but merely
appealing from the Secretary’s decision.

Appellant’s third assignment of error, being a mere consequence of the preceding ones, requires no separate discussion.

We conclude that the court below correctly reversed the
administrative decision of appellant Secretary of Public Works and
Communications for not being in consonance with the applicable law.

Wherefore, the decision appealed from is hereby affirmed. Without costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Regala, Makalintal, Bengzon, J. P., Zaldivar, and Sanchez, JJ., concur.