G.R. No. L-19570. April 27, 1967
JOSE V. HILARIO, JR., PLAINTIFF-APPELLANT, VS. THE CITY OF MANILA, DEFENDANT-APPELLEE, DIRECTOR OF PUBLIC WORKS, CITY ENGINEER OF MANILA, FERNANDO BOSUEGO AND EUGELIO SESE, DEFE…
BENGZON, J.P., J.:
Dr. Jose Hilario was the registered
owner of a large tract of land – around 49 hectares in area – located at Barrio
Guinayang, in San Mateo,
Rizal.[1]
Upon his death, this property was inherited by his son, herein
plaintiff-appellant Jose Hilario, Jr., to whom a new
certificate of title[2]
was issued.
During the lifetime of plaintiff’s father, the Hilario estate was bounded on the western side by the San
Mateo River.[3]
To prevent its entry into the land, a bamboo and lumber post dike or ditch was
constructed on the northwestern side.
This was further fortified by a stonewall built
on the northern side. For years, these
safeguards served their purpose.
However, in 1937, a great and extraordinary
flood occurred which inundated the entire place including the neighboring
barrios and municipalities. The River
destroyed the dike on the northwest, left its original bed and meandered into
the Hilario estate, segregating from the rest thereof
a lenticular piece of land. The disputed area is on
the eastern side of this lenticular strip which now
stands between the old riverbed site and the new course.”[4]
In 1945, the U.S. Army
opened a sand and gravel plant within the premises[5]
and started scraping, excavating and extracting soil, gravel and sand from the
nearby areas along the River. The operations
eventually extended northward into this strip of land. Consequently, a claim
for damages was filed with the U.S. War Department by Luis Hidalgo, the then
administrator of Dr. Hilario’s estate. The U.S. Army paid.[6]
In 1947, the plant was turned over to herein defendants-appellants and appellee who took over its operations and continued the
extractions and excavations of gravel and sand from the strip of land along an
area near the River.
On October 22, 1949,
plaintiff filed his complaint[7]
for injunction and damages against the defendants
City Engineer of Manila,
District Engineer of Rizal, the Director of Public
Works, and Engr. Bosuego,
the Engineer-in-charge of the plant. It
was prayed that the latter be restrained from excavating, bulldozing and
extracting gravel, sand and soil from his property and that they solidarily pay to him P5,000.00 as
damages. Defendants’ answer alleged, in
affirmative defense, that the extractions were made from the riverbed while
counterclaiming with a prayer for injunction against plaintiff who, it was
claimed, was preventing them from their operations.
Subsequently, the Bureau of Mines and Atty. Maximo
Calalang were respectively allowed to join the
litigation as intervenors. The
former complained that the disputed area was within the bed of the River so
that plaintiff should not only be enjoined from making extractions there from
but should also be ordered to pay the fees and penalties for the materials
taken by him. On the other hand, the
latter claimed that he was authorized by plaintiff to extract materials from
the disputed area but this not with standing, the Provincial Treasurer of Rizal collected from him a sand and gravel fee which would be an illegal exaction if the
disputed area turns out to be of private ownership. Answers to the two complaints in intervention
were duly filed by the affected parties.
On March 14, 1954, defendants filed a petition for injunction
against plaintiff and intervenor Calalang
in the same case, alleging that the latter have fence off the disputed area in contravention of an agreement[8]
had between the latter and the Director of Public Works wherein the defendants
were allowed to continue their operations but subject to the final outcome of
the pending suit. It was prayed that
plaintiff and intervenor Calalang
be ordered to remove the fence and allow defendants’ men to continue their
operations unhampered. Opposition to this petition was filed by the other side,
with a prayer for counter injunction. On
March 23, 1954, the lower
court issued an order maintaining the status quo and allowing the defendants to
continue their extractions from the disputed area provided a receipt[9]
in plaintiff’s favor be issued for all the materials taken.
On May 13, 1954,
plaintiff amended his complaint. Impleaded as
additional defendants were the City of Manila,[10]
the Provincial Treasurer of Rizal,[11]
and Engr. Eulogio Sese, the new Engineer-in-charge of the plant. Plaintiff also converted his claim to one
purely for damages directed against the City of Manila
and the Director of Public Works, solidarily, in the
amount of P1,000,000.00, as the cost of materials
taken since 1949, as well as those to be extracted there from until defendants
stop their operations.
Came the separate amended answers of the
several defendants. Manila
City denied ownership of the plant
and claimed that the City Engineer acted merely as a deputy of the Public Works
Director. The other defendants[12]
put up, as special defense, the agreement between plaintiff and the Public
Works Director, and asserted a P1.2 million
counterclaim for damages against plaintiff. The rest[13]renewed
the same defense: that the disputed area
was part of the public domain, since it was situated on the riverbanks.
On November 3, 1954,
the defendant City
Engineer of Manila filed a petition
to delimit the area of excavation and asked the lower court to authorize his
men to extend their operations west of the camachile
tree in the disputed area. This met
vigorous opposition from plaintiff and intervenor Calalang. On May 27, 1955, the petition was
denied.
Finally, on December
21, 1956, the lower
court rendered its decision on the merits.
The dispositive portion
provided:[14]
“WHEREFORE, judgment is hereby rendered against the defendants
City of Manila and the Director of Public Works, to pay solidarily
the herein plaintiff the sum of P376,989.60, as the cost of gravel and sand
extracted from plaintiff’s land, plus costs. Judgment is likewise hereby
rendered against the defendant Provincial
Treasurer of Rizal, ordering him to reimburse
to intervenor Maximo Calalang the amount of P236.80 representing gravel fees
illegally collected. Finally, defendants
herein are perpetually enjoined from extracting any sand or gravel from
plaintiff’s property which is two-fifths northern portion of the disputed area.
“IT IS SO ORDERED.”
None of the parties litigants seemed
satisfied with this decision and they all sought a reconsideration of the
same. On August 30, 1957, the lower court resolved the motions to reconsider with an order, the dispositive portion of which provided:[15]
“WHEREFORE, the court hereby denies the motion for
reconsideration filed by plaintiff and intervenor Calalang; dismisses the complaint with respect to
defendant City of Manila; holds that the northern two-fifths portion of the
area in controversy belongs to the plaintiff with right to the immediate possession
thereof and hereby enjoins the defendants and intervenor
Bureau of Mines to vacate the
same and to stop from extracting gravel thereon. The Court however hereby dismisses the case
against the defendant Bureau of Public Works and its agents and employees insofar
as the claim for money is concerned without prejudice to plaintiffs taking
such action as he may deem proper to enforce said claim against the proper
party in accordance with law.
“IT IS SO ORDERED.”
Still unsatisfied, plaintiff and intervenor
Calalang filed a second motion for
reconsideration. The lower court stood
firm on its ruling of August 30, 1957.[16]
Hence,
this appeal.[17] The defendants Director of
Public Works, City Engineer of Manila, and Engrs.
Bosuego and Sese have also appealed from the declaration made
by the lower court that the northern two-fifths of the disputed area belongs to plaintiff Hilario.
The parties herein have
presented before this Court mixed questions of law and fact for resolution and
adjudication. Foremost among them is
this legal query: when a river, leaving
its old bed, changes its original course and opens a new one through private
property, would the new riverbanks lining said course be of public ownership
also?[18]
The defendants answer in the affirmative. They claim that under the law of Waters of August 3, 1866, the riverbanks are,
by definition, considered part of the riverbed which is always of public
ownership. On the other hand, plaintiff
would have the question resolved in the negative. He maintains that not all riverbanks are of
public ownership because: (1) Art. 372
of the old Civil Code, which governs this particular case, speaks only of the
new bed; nothing is said about the new banks; (2) Art. 73 of the Law of Waters
which defines the phrase “banks of a river” cannot be applied in the
case at bar in conjunction with the other articles cited by defendants since
that article applies only to banks of natural riverbeds and the present
River is not in its natural bed; and (3) if all banks were of public
ownership, then Art. 553 of the old Civil Code and the second
sentence, first paragraph of Art. 73 of the Law of Waters can never have
any application.
Since the change in the course of the River took place in 1937,
long before the present Civil Code took effect,[19]
the question before Us should be determined in
accordance with the provisions of the old Civil Code and those of the Law of
Waters of August 3, 1866.
We agree with defendants that under the cited laws, all
riverbanks are of public ownership – including those formed when a river leaves
its old bed and opens a new course through a private estate. Art. 339 of the old Civil Code is very clear.
Without any qualifications, it provides:
“Property of public ownership is –
“1. That devoted to public use, such as roads,
canals, rivers, torrents, ports and bridges constructed by the State, riverbanks,
shores, roadsteads, and that of a similar character;” (Underscoring
supplied)
x x x x
Moreover, as correctly contended by defendants, the riverbank is
part of the riverbed. Art. 73 of the Law
of Waters which defines the phrase “banks of a river” provides:
“By the phrase ‘banks of a river’ is understood those lateral
strips of zones of its bed which are washed by the stream only during such high floods as do not cause
inundations. x x
x” (Underscoring supplied)
Thee use of the words “of its bed [de sus alveos]” clearly indicates the intent
of the law to consider the banks – for all legal purposes – as part of the
riverbed. The lower court also ruled –
correctly – that the banks of the River are part of its bed.[20]
Since undeniably all beds of rivers are of public ownership,[21]
it follows that the banks, which form part of them, are also of public
ownership.
Plaintiff’s contention that Arts. 70 and
73 of the Law of Waters cannot apply because Art. 372 of the old Civil Code
mentions only the new bed but omits the banks, and that said articles only
apply to natural – meaning original – bed and banks is
untenable. Art. 70, which defines beds of rivers and creeks, provides:
“The natural bed or channel of a creek or river is the ground covered by its waters during the
highest [ordinary] floods.”[22]
(Underscoring supplied)
Art. 372 of the old Civil Code which provides that –
“Whenever a navigable
or floatable river changes its course from natural causes and opens a new bed
through a private estate, the
new bed shall be of public ownership, but the owner of the estate shall
recover it in the event that the waters leave it dry again either naturally or
as the result of any work legally authorized for this purpose.”
(Underscoring supplied)
did not have to
mention the banks because it was unnecessary.
The nature of the banks always follows that of the bed and the running
waters of the river. A river is a
compound concept consisting of three elements.
(1) the running waters, (2) the bed and (3) the
banks.[23]
All these constitute the river. American
authorities are in accord with
this view:
“‘River’ consists of water, bed and banks.”[24]
“A ‘river’ consists of water, a bed and banks, these several
parts constituting the river, the whole river.
It is a compound idea; it
cannot exist without all its parts.
Evaporate the water, and you have a dry hollow. If you could sink the bed, instead of a
river, you would have a fathomless gulf.
Remove the banks, and you have a
boundless flood.”[25]
Since a river is
but one compound concept, it should have only one nature, i.e., it should
either be totally public or completely private.
And since rivers are of public ownership,[26]
it is implicit that all the three component elements be of the same nature
also. As Manresa commented:
“Realmente
no puede imaginarse un rio sin alveo
y sin ribera; de suerte que al decir el Codigo Civil que los rios son de dominio publico, parece que debe
ir implicito
el dominio publico de aquellos tree elementos que integran el rio.”[27]
However, to dispel all possible doubts, the law expressly makes
all three elements public. Thus, riverbanks
and beds are public under Arts. 339 and 407, respectively, of the Code, while
the flowing waters are declared so under Art. 33, par. 2 of
the Law of Waters of 1866.
Articles 70, 72 and 73 of the Law of Waters speak of natural
beds and their banks. Plaintiff now
equates the term “natural” with the word “original” so that
a change in the course of a river would render those articles
inapplicable. However, the premise is
incorrect. Diccionario
De La Real Academia Española defines the word
“natural” as follows:
“NATURAL – perteneciente a la naturaleza o conforme
a la calidad o propriedad
de las cosas; nativo, originario de un pueblo o
nacion; hecho con ver dad, ni artificio,
mezcla ni composicion alguna; ingenuo y sin doblez en su modo de proceder;
dicese tambien de las cosas que
imitar a la naturaleza con propiedad; regular y que comunmente sucede, y por eso, facilmente
creible; que se
produce por solas las fuerzas de la naturaleza, como contrapuesto a sobre natural
y milagroso.” (Underscoring supplied)
“Natural” is not made
synonymous to “original” or “prior condition”. On the contrary,
even if a river should leave its original bed so long as it is due to the force of nature, the
new course would still fall within the scope of the definition provided
above. Hence, the law must have used the
word “natural” only because it is in keeping with the ordinary nature
and concept of a river always to have a
bed and banks.
Plaintiff’s third point is not lightly to be taken. Indeed, it would seem possible to acquire
private ownership of banks under Art. 553 of the old Civil Code which provides:
“Las riberas de los
rios, aun cuando sean de dominio privado, estan sujetas en toda su extension y en sus margenes, en una zona de tres
metros, a la servidumbre
de use publico en interes general
de la navegacion, la flotacion,
la pesca y el salvamento.”
(Underscoring supplied)
And plaintiff is not without jurisprudential backing for in Commonwealth
vs. Gungun,[28]
it was said that the private ownership of the banks was not prohibited. His point is then neatly brought home with the proposition that it is
precisely when a river changes its course and opens a new bed through a private
estate that there can be private ownership of the banks.
A study of the history of Art. 553 will
however reveal that it was never intended to authorize the private acquisition
of riverbanks. That could not have been legally possible in view of the
legislative policy clearly enunciated in Art. 339 of the Code
that all riverbanks were of public ownership. The article merely recognized and preserved
the vested rights of riparian owners who, because of prior law or custom, were
able to acquire ownership over the banks.
This was possible under the Siete Partidas which was promulgated in 1384 yet.”[29]
Under Law 6, Title 28, Partida 3, the banks of
rivers belonged to the riparian owners, following the Roman Law rule.[30]
In other words, they were privately owned then.
But subsequent legislation radically changed this rule. By the Law of Waters of August 3, 1866, riverbanks became of public
ownership, albeit impliedly only because considered part of the bed –
which was public – by statutory definition.[31]
But this law, while expressly repelling all prior inconsistent laws, left
undisturbed all vested rights then existing.[32]
So privately owned banks then continued to be so under the new law, but they
were subjected by the latter to an easement for public use. As Art. 73 provides:
“Se entienden por
riberas de un rio las fajas
o zonas laterales de sus alveos que
solamente son bañadas por las aguas
en las crecidas que no causan inundacion. El dominio privado de las riberas esta
sujeto a la servidumbre de tres metros de zona para uso publico,
en el interes general de la navegacion,
la flotacion, la pesca y el
salvamento.” x x x x (Underscoring supplied)
This was perhaps the reconciliation effected between the private
ownership of the banks, on the one hand, and the policy of the law on the other
hand, to devote all banks to public use.[33]
The easement would preserve the private ownership of the banks and still
effectuate the policy of the law. So, the easement in Art. 73 only recognized and preserved existing
privately owned banks; it did not authorize future private appropriation of
riverbanks.
The foregoing observation is confirmed by the still subsequent
Law of Waters of June 13, 1879,
which was principally based on the Law of August 3, 1866.[34]
Art. 36 of the new law, which was a substantial reenactment
of Art. 73 of the Law of Waters of August 3, 1866, reads:
“Las riberas, aun cuando sean de dominio privado
en virtud de antigua ley o de custumbre, estan sujetas en toda su extension y las margenes en una zona de tres
metros, a la servidumbre de use publico
en interes general dela navegacion, la flotacion,
la pesca y el salvamento.” x x x x
(Underscoring supplied)
The new law also affirmed the public ownership of rivers and
their beds, and the treatment of the banks as part of the bed.[35]
But nowhere in the law was there any provision authorizing the private
appropriation of the banks. What it
merely did was to recognize the fact that at that time there were privately
owned banks pursuant to the Siete Partidas, and to encumber these with an easement for
public use.
However, the public nature of riverbanks still obtained only by
implication. But with the promulgation
of the Civil Code of 1889, this fact was finally made explicit in Art. 339 thereof. Riverbanks were declared as public property
since they were destined for public use. And the first paragraph of Art. 36 of
the Law of Waters of 1879 was substantially reenacted
in Art. 553 of the Code.[36]
Hence, this article must also be understood not as authorizing the private acquisition of riverbanks but only as
recognizing the vested titles of riparian owners who already owned the
banks.
The authority, then, for the private ownership
of the banks is neither the old Civil Code nor the Law of Waters of 1866 but
the Siete Partidas. Unfortunately, plaintiff cannot invoke
it. Law 6, Title 28, Partida
3, which provides for private ownership of banks, ceased to be of force in
this jurisdiction as of 1871 yet when the Law of Waters of August 3, 1866, took effect.[37]
Since the change in the course of the River took place in 1937, the new banks
which were formed could not have been subjected to the provisions of the Siete Partidas
which had already been superseded by then.
Coming to the factual issues:
both parties assail the conclusion made by the lower court that only the
northern two-fifths of the disputed area remained as plaintiff’s private property. This conclusion was apparently based on the
findings that the portion where rice and corn were found[38]
in the ocular inspection of June 15, 1951, was on the northern two-fifths of
the disputed area; that this cannot
be a part of the bed because of the existence
of vegetation which could not have
grown underwater, and that this
portion is man-made. However, there is no evidenciary basis
for these findings. The
area indicated by Nos. 1 and 2 in Exh. D-1 where no excavations had been made,
appears to be more on the
south-western one-fourth of the disputed area.
The American cases[39]
cited by the lower court cannot apply here.
Our Law of Waters, in defining
“beds” and “banks”, considers the latter as part of the
former. Those cited cases did not involve
a similar statutory provision. That
plants can and do grow on the banks which otherwise could not have grown on the
bed which is constantly subjected to the flow of the waters proves the
distinction between “beds” and “banks” in the physical order. However, We are
dealing with the legal order where legal definitions prevail. And apart from these considerations, We also note the considerable difficulty which would attend
the execution of the ruling of the lower court.
The latter failed to indicate fixed markers from which an exact
delimitation of the boundaries of the portion could be made. This flaw is conducive to future litigations.
Plaintiff’s theory is that the disputed area, although covered at
times by flood waters, cannot be considered as within the banks of the River
because: (1) such floods are only
accidental, and (2) even if they are regular, the flooding of the area is due
to the excavations and extractions made by defendants which have caused the
widening of the channel.[40]
Defendants claim, however, that the area is always covered by the normal yearly
floods and that the widening of the channel is due to natural causes.
There is a gravel pit[41]
located along the west side of the River. This is about 500 meters long.[42]
A greater part of this pit occupies a portion of the strip of land that was
sliced by the River from the rest of the Hilario
estate. As shown in Exhs.
D and D-1, this strip of land is that western segment of the Hilario estate bounded on the west by the same lines connecting
stakes 23 through 27, which form part of the western boundary of the estate,
and on the east, bounded by the western waterline of the River.
Now, the disputed area, general speaking,[43]
is only that part of the gravel pit which is within the strip of land. Its northern tip is that point where the
so-called “secondary bank” line intersects the west River waterline
up north; its southern boundary is along the line connecting stakes 23 and
24. From these two ends,
the disputed area measures approximately 250 meters long. The eastern boundary is the western River
waterline at low tide and the western boundary is the “secondary
bank” line, a line passing near stake 24 and running almost parallel to
the line connecting stakes 25 and 26. Around the later part of 1949, the
disputed area was about 150 to 160 meters wide.[44]
This increased to about 175 to 180 meters by the later part of 1950. And by
January, 1953, the distance from the “secondary bank” line to the
west waterline was about 230 meters.[45]
This increasing width of the disputed area could be attributed to
the gradual movement of the River to the east.
Since it entered into the Hilario estate, the
River has not stayed put.[46]
Vicente Vicente, plaintiff’s witness, declared[47]
that after the River changed its course in 1937, the distance between the old
and the new river sites was about 100 meters.
Exh.
D-2 shows that in 1943, the south end of the River was about 5 meters southeast
of stake 24.[48] Honorato Sta. Maria, another witness for plaintiff, indicated
the flow of this course with a blue line in Exh. D-1.[49]
This blue line is about 120 meters from the line connecting stakes 25 and 26,
which was also the east boundary of the old River.[50]
Around 1945 to 1949, the River was about 193 meters[51]
east of this line. This measurement is
based on the testimonies of two defense witnesses[52]
who stated that during that period, the River passed along the Excavated Area
and the New Accretion Area[53]
sites, as shown in Exh. 54. By the later part of 1949 up to November
1950, the west waterline was from 248 to 270 meters[54]
east of the aforesaid boundary line. And finally in January, 1953, based on the scale in Exh. 3-Calalang, the west waterline was from 300 to
305 meters away already. Hence, from 100
meters in 1937, the River had moved to 305 meters eastward in 1953.
There are two
questions to be resolved here. First,
where on the strip of land are the lateral borders of the western riverbank?
And second, where have defendants made their extractions?
Anent the first question, the key is supplied by Art. 73 of the Law of Waters which defines the
limits of banks of rivers –
“By the phrase ‘banks of a
river’ is understood those lateral strips or zones of its bed which are washed
by the stream only during such high floods as do not cause inundations. x x x” (Underscoring supplied)
The farthest extremity of the bank on the
west side would, therefore, be that lateral line or strip which is reached by
the waters during those high floods that do not cause inundations. In other words, the extent reached by the waters
when the River is at high tide.
However, there is a difference between the topography of the two
sides immediately adjoining the River.
The line indicated as “primary bank”[55]
in Exh. 3-Calalang, which is on the east, is about 3
meters high and has a steep grade right at the edge where it drops almost
vertically to the watercourse level. The
precipice here, which is near the east waterline, is very easily detectible. But the opposite side has no such steep
acclivity. In fact, it is almost flat
with the bed of the River, especially near the water edge, where it is about 30 to 50 cms. high only. But it gradually slopes up to a height of
about 2 to 2-1/2 meters along
the line indicated as “secondary bank”, which is quite far from the
waterline. This “bank” line is
about 1-1/2 meters higher than the level of the gravel pit and there are
erosions here. This is about 175 meters west from the November 1950 waterline,
and about 100 meters west from the camachile tree.[56]
During the dry season, the waterlevel
of the River is quite low – about knee-deep only. However, during the rainy season, the River
generally becomes swollen, and the water-level rises, reaching up to the neck.[57]
However, considering the peculiar characteristics of the two sides banking the
river, the rise in the waterlevel would not have the
same effect on the two sides. Thus, on
the east, the water would rise vertically, until the top of the “primary
bank” is reached, but on the west, there would be a low-angled inclined
rise, the water covering more ground until the “secondary bank” line
is reached. In other words, while the
water expansion on the east is vertical, that on the west is more or less
lateral, or horizontal.
The evidence also shows
that there are two types of floods in the area during the rainy season.[58] One is the so-called “ordinary”
flood, when the river is swollen but “the flowing water is kept within the
confines of the “primary” and “secondary” banks. This occurs annually, about three to four
times during the period. Then there is
the “extraordinary” flood, when the waters overflow beyond
the said banks, and even inundate the surrounding areas.
However, this flood does
not happen regularly. From 1947 to 1955,
there were only three such floods.[59] Now,
considering that the “ordinary” floods easily cover the west side –
since any vertical rise of the waterlevel on the east
would necessarily be accompanied by a lateral water expansion on the west –
the “inundations” which the law mentions must be those caused by the “extraordinary” floods which reach and overflow beyond both
“primary” and “secondary” banks. And since the “primary” bank is
higher than the “secondary” bank, it is only when the former is reached
and overflowed that there can be an inundation of the banks – the two
banks. The question therefore, may be
stated thus: up to what extent on the west side do the highest flood waters reach
when the “primary” bank is not overflowed?
Defendants have presented several witnesses who testified on the
extent reached by the ordinary flood waters.
David Ross, a bulldozer operator at the plant since 1945, testified[60]
that from 1945 to 1949, when the River was still passing along the site where
the camachile tree is located, the annual flood
waters reached up to the “secondary bank” line. These floods usually took from 3 to 5 days to recede, during which time their
work was suspended. Corroboration is
supplied by Macario Suiza,
a crane operator in the plant since 1945, and by Fidel Villafuerte,
a plant employee since 1946. Suiza stated[61]
that from 1947 to 1949, the area enclosed within the blue lines and marked as Exh. 54-B – which includes the New Accretion Area was
always covered by water when it rained hard and they had to stop work temporarily. The western extremity of this area reaches up
to the “secondary bank” line. Villafuerte stated[62]
that in the ordinary floods when the water was just 50 cm. below the top of the
“primary bank”, the waters would go beyond the camachile
tree by as much as 100 meters westward and just about reach the “secondary
bank” line. Further corroboration
is supplied by plaintiff’s own evidence.
Exh.
1-Calalang states that from 1947 to 1949, based on the casual observations made
by geologist David Cruz, the area between the “primary” and
“secondary” banks were always covered by the non-inundating ordinary
floods.
From 1950 to 1952, We have the testimony
of Ross who stated[63]
that there were still floods but they were not as big anymore, except one flood
in 1952, since the River had already moved to the east. Engr. Ricardo
Pacheco, who made a survey of the disputed area in November 1952, and who
conducted actual observations of the extent of the water reach when the river
was swollen, testified[64]
that the non-inundating floods regularly reached up to the blue zigzag line
along the disputed area, as shown in Exh. 1-City Engineer Manila. This blue line, at
the point where it intersects line BB,[65]
is about 140 meters west of the waterline and about 20 meters west of the camachile tree. His
testimony was based on three floods[66]
which he and his men actually recorded.
Corroboration is again supplied by Exh. 1-Calalang. According
to Cruz’ report, the floods in 1950 and 1951 barely covered the disputed
area. During the normal days of the
rainy season, the waters of the swollen river did not reach the higher
portions of the gravel pit which used to be submerged. One cause for this was the lesser amount of
rainfall from 1949 to 1951. But two
floods occurred from October 16 to
28, 1952, which overflowed the whole area and inundated the banks.
From 1953 to 1955, when
the River was farther away to the east, the flood waters still covered the west
side.[67] Testifying on the extent reached by the
water during the rainy season in 1954, Ross stated[68] that it reached up to the camachile tree only.
The last and latest data comes from Engr. Magbayani Leaño the
Engineer-in-charge of the plant from
August 1954. He testified[69]that as of December 1955, when the disputed
area was underwater, the water reach was about 20 meters or less to the east
from the camachile tree.
From all the foregoing, it can be safely concluded: (1) that from 1945 to 1949, the west bank of
the River extended westward up to the” secondary bank” line; (2)
that from 1950 to 1952, this bank had moved, with the River, to the east, its
lateral borders running along a line just 20 meters west of the camachile tree; and (3) that from 1953 to 1955, the
extremities of the west bank further receded eastward beyond the camachile tree, until they lay just about 20 meters east of
said tree.
To counteract the testimonies of the defense witnesses, plaintiff
presented two rebuttal witnesses[70]
who told a somewhat different story.
However, their testimonies are not convincing enough to offset the
dovetailing testimonies of the defense witnesses who were much better qualified
and acquainted with the actual situs of the
floods. And said defense witnesses were
corroborated by plaintiffs’ own evidence which contradicts the aforesaid
rebuttal witnesses.
However, plaintiff maintains that the floods which cover the area
in question are merely accidental and hence, under Art. 77 of the Law of
Waters,[71]
and following the ruling in Government vs. Colegio
de San Jose,[72]
he is deemed not to have lost the inundated area. This is untenable. Plaintiff’s own evidence[73]
shows that the River floods with annual regularity during the rainy
season. These floods can hardly be
called “accidental”. The Colegio de San Jose
case is not exactly in point. What was
mainly considered there was Art. 74 of the Law of Waters
relating to lakes, ponds and pools.
In the case at bar, none of these is involved.
Also untenable is plaintiff’s contention that the regular
flooding of the disputed area was due to the continuous extraction of
materials by defendants which had lowered the level of said area and caused
the consequent widening of the channel and the river itself. The excavations and extractions of materials,
even from the American period have been made only on the strip of land west
of the River.[74]
Under the “following-the-nature-of-things” argument advanced by plaintiff,
the River should have moved westward, where the level of the ground had
been lowered. But the movement has been
in the opposite direction instead.
Therefore, it cannot be attributed to defendants’ operations. Moreover, plaintiff’s own evidence indicates
that the movement eastward was all due to natural causes. Thus, Exh.
I-Calalang shows that the movement eastward of the channel
by as much as 31 meters, from 1950 to 1953, was due to two typhoons which
caused the erosion of the east bank and the depositing of materials on the west
side which increased its level from as much as .93 to 2 meters.
Plaintiff’s assertion that the defendants also caused the
unnatural widening of the River is unfounded.
Reliance is made on the finding by the lower court that in 1943, the
River was only 60 meters wide as shown in Exh. D-2,
whereas in 1950, it was already 140 meters wide as shown in Exh.
D. However, Exh.
D-2 only shows the width of the River near the southwestern boundary of the Hilario estate. It
does not indicate how wide it was in the other parts, especially up north. And Eligio Lorenzo,
plaintiff’s own witness, admitted[75]
on cross-examination that the width of the new river was not uniform. This is confirmed by Exhs.
D and D-1 which show that the new river was wider by an
much as 50% up north than it was down south.
The 140-meter distance in Exh.
D was at the widest part up north whereas down south, near the mouth of the Bulobok River,
it was only 70 meters wide. Lastly, the scale in Exh.
3-Calalang will show that in January 1953, the River, near the same point also,
was less than 50 meters wide.
The only remaining question now is to determine if the defendants
have really confined their operations within the banks of the River as alleged
by them. To resolve this, We have to find out from what precise portion in the
disputed area the defendants have extracted gravel and sand since they did not
extract indiscriminately from within the entire area. None of the parties’ briefs were very helpful
but the evidence on record discloses that defendants made their extractions
only within specified areas during definite periods.
From 1947 to the early part of 1949, the defendants conducted
their operations only in the New Accretion Area along a narrow longitudinal
zone contiguous to the watercourse then.
This zone, marked as Exh. 2-City Engineer Manila,
is about one (1) km. long and extends northward up to pt. 50.35 in Exh. 54. However, no extractions nor excavations were undertaken west of this
zone, i.e., above the “temporary bank” line.[76]
These facts are corroborated by plaintiff’s witnesses. That the extractions were near the river then
finds support in Vicente Vicente’s testimony[77]
while Leon Angeles and Mrs. Salud Hilario confirm the fact
that defendants have not gone westward beyond the “temporary bank”
line.[78]
This line is located east of the “secondary bank” line, the lateral
extremity of the west bank then.
In the later part of 1949, plaintiff prohibited the defendants
from extracting along the New Accretion Area and constructed a fence across the
same. This forced the defendants to go
below – southeast of – the “Excavated Area” and the New Accretion
Area sites in Exh. 54.[79] Engr. Bosuego, testifying[80]
in 1952, indicated their area of extraction as that enclosed within the red
dotted line in Exh. D-1which lies on the south end of
the strip of land. Only a small portion
of the southeastern boundary – of the disputed area is included. The ocular inspection conducted on June 15, 1951, confirms this.[81] Exh.
4-Calalang shows the total amount of materials taken from within the area
from 1949 to 1951.[82]
Thus, from 1950 up to 1953, although the defendants were able to continue their
operations because of the agreement between the plaintiff and the Director of
Public Works,[83]
they were confined only to the southeastern portion of the disputed area. On the other hand, the lateral extremities of
the west bank then ran along a line about 20 meters west of the camachile tree in the New Accretion Area.
From 1954 to 1955, defendants’ area of operation was still
farther east of the New Accretion Area.
They were working within a confined
area along the west waterline, the northern and western boundaries of which
were 20 meters away east from the camachile tree.[84]
Ross indicated[85]
this zone in Exh. 54 as that portion on the southern
end of the disputed area between the blue lines going through the words
“MARIKINA RIVER BED” and the red zigzag line indicating the
watercourse then. Engr.
Leaño even stated[86]
that they got about 80% of the materials from the river itself and only 20%
from the dry bed. The sand and gravel
covered by Exhs. LL to LL-55 were all taken from
here. The foregoing facts are not only
corroborated by Mrs. Hilario[87]
but even admitted by the plaintiff in his opposition[88]
to defendants’ petition to extend their area of operation west of the camachile tree. And
because their petition was denied, defendants could not, and have not,[89]
gone beyond the lateral line about 20 meters east from said tree, which has
already been established as the lateral extremity of the west bank during the
period.
It appears sufficiently established, therefore, that defendants
have not gone beyond the receding western extremities of the west
riverbank. They have confined their extraction
of gravel and sand only from within the banks of the River – which constitute
part of the public domain – wherein they had the right to operate. Plaintiff has not presented sufficient
evidence that defendants have gone beyond the limits of the west bank, as previously established, and have
invaded his private estate. He cannot,
therefore, recover from them.
As a parting argument, plaintiff contends that to declare the
entire disputed area as part of the riverbanks would be tantamount to
converting about half of his estate to public ownership without just
compensation. He even adds that
defendants have already exhausted the supply in that area and have unjustly
profited at his expense. These
arguments, however, do not detract from the above conclusions.
First of all, We are not declaring that
the entire channel, i.e., all that space between the “secondary bank”
line and the “primary bank” line, has permanently become part of the
riverbed. What We are only holding is that at the time the defendants made their
extractions, the excavations were within the confines of the riverbanks
then. The “secondary bank”
line was the western limit of the west bank around 1945 to 1949 only. By 1955, this had greatly receded to the line
just 20 meters east of the camachile tree in the New
Accretion Area. All that space to the
west of said receding line[90]
would still be part of plaintiff’s property
– and also whatever portion adjoining the river is, at present, no longer
reached by the non-inundating ordinary floods.
Secondly, it is not correct to say that plaintiff would be
deprived of his property without any compensation at all. Under Art. 370 of
the old Civil Code, the abandoned bed of the old river belongs to the riparian
owners either fully or in part with the other riparian owners. And had the
change occurred under the Civil Code of the Philippines,
plaintiff would even be entitled to all of the old bed in proportion to the
area he has lost.[91]
And, lastly, defendants cannot be accused of unjustly profiting
at plaintiff’s expense. They were not
responsible for the shifting of the River.
It was due to natural causes for which no one can be blamed. And defendants
were extracting from public property then, under proper authorization. The government, through the defendants, may
have been enriched by chance, but not unjustly.
Considering the conclusions We have thus
reached, the other questions involved in the remaining assignments of errors –
particularly those apropos the doctrine of state immunity from suit and the
liability of defendant City
of Manila – are rendered moot.
WHEREFORE, the decision and orders appealed from are hereby
set aside and another judgment is hereby entered as follows:
(1) Defendants
City of Manila
and the Director of Public Works and his agents and employees are hereby
absolved from liability to plaintiff since they did not extract materials from
plaintiff’s property, but from the public domain.
(2) All that portion within the strip of land in question,
starting from the line running parallel to the western waterline of the river
and twenty meters east from the camachile tree in the
New Accretion Area measured along line AA in Exhs.
3-Calalang, 13 and 54, and going to the west up to the western boundaries of
the Hilario estate, is hereby declared as not part of
the public domain and confirmed as part of plaintiff’s private property. No
costs.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez, and Castro, JJ., concur.
[1]
The boundaries of this property [Lot
89-J-2] are fully shown in the
maps marked as Exhs. D, D-1 and D-3.
[2] T.C.T. No. 14994 (Exh. A-1).
[3]
See Exh. D-3. Also known as the Marikina River; for short, referred to as “the River”.
[4] This strip of land is marked with the red “X”
in Exh. D.
[5] See Exh. 1-M City Engr. Manila; Pacheco, Session of Oct. 13, 1955, T.s.n., p. 160; Bosuego, Session
of Jan. 30, 1952, T.s.n., pp. 40-41.
[6]
This fact was admitted by Atty. Calalang, plaintiff’s counsel, during the course of trial
(Session of May 25, 1955, T.s.n., p. 21).
[7] Civil Case No. 959 in the Court of First Instance of Rizal.
[8] Exhs. H and I-i; see also Record on Appeal, pp.
68-72.
[9]
The tenor of the receipt, as approved by the Court, is as follows: “This is to certify that the City of Manila
has taken _____ cubic meters of gravel and sand from the property of Jose V. Hilario, Jr., at San Mateo,
Rizal, subject to the outcome of Civil Case No. 959
of the Court of First Instance of Rizal.
[10]
Because, according to plaintiff, the evidence on record then showed that the
plant was owned and operated by it.
[11] Because as representative of the Director of Mines, he had been
collecting the questioned gravel fees.
[12] The City Engineer of Manila, the Director of Public Works, Engr. Bosuego
and Engr. Sese.
[13] The Provincial Treasurer
and the District Engineer of Rizal, and the Director
of Mines.
[14] Record on Appeal, p. 182.
[15] Record on Appeal, pp. 242-243.
[16] Order of Oct. 21, 1957, which denied the second motion for
reconsideration (Record on Appeal, p. 250).
[17] The appeal was originally directed to the
Court of Appeals. However, that Court certified the case to Us since the
amount involved falls within Our exclusive appellate jurisdiction.
[18] There is no dispute regarding the new bed. Art. 372 of the old Civil Code is very clear about that.
[19] The Civil Code of the Philippines took effect on Aug. 30, 1950. Lara
vs. Del Rosario, 50 O.G. 1975.
[20]
Record on Appeal, p. 170.
[21] Arts. 372 and 407, old Civil Code.
[22] The original Spanish text reads: “Alveo o cauce natural de un
arroyo y rio es el terreno que cubren
sus agues en las mayores crecidas ordinarias.” (Underscoring supplied)
[23] Manresa, Codigo
Civil Español, 6th ed., p. 75.
[24] Gavit’s
Adm’rs. vs.
Chambers, 3 Ohio 493; Stan
vs. Child, N.Y. 20 Wend. 149; 37A Words and
Phrases 433.
[25] State vs. Richardson,
72 So. 984, 140 La. 329; 37A
Words and Phrases 493.
[26] Old Civil Code, Arts. 339 and 407.
[27] Manresa, Op. Cit., 75.
[28]
70 Phil. 194; see however the strong dissent of Mr. Justice Imperial, at 198,
who, joined by Justice to Moran,
concurred on other grounds,
leaving no prevailing majority on
this point.
[29]
I Tolentino, Civil
Code of the Phils., 1960 ed., p. 5.
[30] 6 Scaevola, Codico Civil Comentado, 4th ed., p. 187; Alcubilla, I Diccionario de la Adm. Española,
5th ed., p. 381; Sandars, Institutes of Justinian,
1st Am. ed., 1876, p. 159.
[31]
Art. 73, Law of Waters of August 3,
1866.
[32] Art. 299.
The provisions of this law are without prejudice to rights legally
acquired prior to its publication; also without prejudice to the private
dominion enjoyed by proprietors of the waters of irrigation ditches, fountains
or springs, by virtue of which they enjoy, sell or exchange the said waters as
private property.”
“Art. 300. All laws,
royal decrees, royal orders, and other legislation relating to matters
comprised in this law and enacted prior to its promulgation and in
conflict therewith, are hereby repealed.” (Underscoring
supplied)
[33] See Arts. 152-165, Law of Waters of Aug. 3,
1866.
[34] 7 Scaevola, op. cit., 497; Alcubilla, op. cit., p. 271. However, this
law was never applied in this jurisdiction.
Kerr & Co. vs. Cauden, 6
Phil. 732.
[35] Arts. 4, 34 and 35, Spanish Law of Waters of June 13,
1879.
[36] Alcubilla, op.
cit., p. 400.
[37] Kerr
& Co. vs. Cauden, 6 Phil. 732.
[38] In the sites marked by Nos.
1 and 2 in Exh. D-1; transcript of ocular inspection, p. 3.
[39] Gibbs vs.
Williams, 25 Kan. 214, 37 Am. Rep. 241; Curtis
vs. Schmidt, 237 N.W. 463, 212 Iowa 1279, and Howard
vs. Ingersoll, 54 U.S. 381, 14 L. ed. 189.
[40] The “channel” means all that space
between the lateral extremities of the two banks flanking the River.
[41] This is the sand and gravel deposit area.
[42] Exh. 7-Intervenor.
[43] Strictly speaking, the disputed area is only
that precise portion in the strip of land where the defendants have
actually made their extractions and excavations. The
evidence on record (see infra) discloses that defendants did not extract
materials indiscriminately from said area but only from certain limited sites at certain periods of time.
[44] Sta. Maria, Session of Aug. 8, 1950, T.s.n., pp. 28-29; Exh. 7-Intervenor.
[45] As per scales in Exhs.
3-Calalang, 13, 54 and Exh.
II. The first
three are all duplicate copies of the plan submitted by the Bureau of Mines.
[46]
Manahan, Session of Feb. 16, 1951, t.s.n., pp. 38, 46
and 55; Lorenzo, Session of Mar. 2, 1951, t.s.n., p.
6.
[47] Session of Feb. 16, 1951, t.s.n., p. 33.
[48] See Decision of lower court, Record on
Appeal, p. 162.
[49] Session of Aug. 8, 1950, t.s.n., p.
26.
[50] As per scale in Exh. D-1.
[51] As per scale in Exh.
54.
[52] Ross (Session of May 31, 1955, t.s.n., p. 7) and Engr. Sese, (Session of Oct. 13, 1955, p. 186)
[53] The New Accretion Area referred to in this
discussion is the one where the camachile three is
located, not the other New Accretion Area which is located west of the “temporary
bank” line in Exh. 54.
[54] As per scales in Exhs.
7-A-Intervenor, I, (both drawn to the same scale as Exh.
13), D-1, II and 3-Calalang.
[55] The terms “primary” and “secondary”
banks were arbitrary designations made by defendants’ surveyors. (Mendoza, Session of Oct. 7, 1955, t.s.n., pp. 138-139)
[56] Sta. Maria, Session of Sept. 12, 1950, t.s.n., pp. 56-58; Session of Oct. 23, 1950, pp. 65-71;
Manahan, Session of Feb. 16, 1951, t.s.n., pp. 56-57;
Villafuerte, Session of May 25, 1955, t.s.n., pp. 30-32; Mendoza, Session of Oct. 7, 1955, t.s.n., pp. 121-122, 131-132; Pacheco, Session of Oct. 13,
1955, t.s.n., p.150, 1965; Ocular inspection of June
15, 1951, Exhs. 2-Calalang and
1-City Engr. Manila for cross-section view;
and Exhs. 8-11, for actual
photographic shots.
[57] Angeles, Session of Feb. 10, 1954, t.s.n., p. 76; Sese, Session of
Oct. 13, 1955, t.s.n., pp. 188-189; Villafuerte, Session of May 25, 1955, 1955, t.s.n., p. 23.
[58] Vicente, Session of Feb. 16, 1951, t.s.n., p. 36; Angeles, Session of Feb. 10, 1954; t.s.n., pp. 74-75; Armas,
Session of Aug. 8, 1955, t.s.n., pp.
101, 103-104; Mendoza, Session of Oct. 7, 1955, t.s.n.,
pp. 141-142; Pacheco, Session of Oct. 13, 1955, t.s.n.,
pp. 166-169, 172; Lorenzo, Session of Mar. 2, 1951, t.s.n.,
pp. 25, 30, 33; Villafuerte, Session of May 25, 1955,
t.s.n., pp. 24, 26-28; Ross, Session of May 31, 1955,
t.s.n., pp. 5, 17; Bosuego,
Session of July 18, 1955, t.s.n., pp. 35-37; Dimanlig, Session of Nov. 21, 1955, t.s.n.,
pp. 78, 81; Exhs. I-Calalang and I City Engr. Manila.
[59] These floods occurred only in 1947, 1952 and
1954.
[60] Session of May 31, 1955, t.s.n., pp. 11-16.
[61] Session of May 25, 1955, t.s.n., pp. 7-8.
[62] Session of May 25, 1955, t.s.n., pp.
28-30.
[63] Session of May 31, 1955, t.s.n., pp. 16–18.
[64] Session of Oct. 13, 1955, t.s.n., pp.
162-172, 174.
[65] This probably coincides with line AA in Exhs. 3-Calalang, 13 and 54 since it was shot along the camachile tree line across the River.
[66] One was on Aug. 7, 1952; the second on Aug. 26, 1952 and the third, on Oct.
11, 1952.
[67] Ross, Session of May 31, 1955, t.s.n., pp.
18-.9; Suiza, Session of May 25, 1955, t.s.n., pp. 9,
12.
[68] Session of May 31, 1955, t.s.n., pp. 5-6.
[69] Session of Dec. 19, 1955, t.s.n., pp. 133, 135.
[70] De los Armas (Session
of Aug. 8, 1955, t.s.n., pp. 96?114)
and Eduardo Manahan (Session of Dec. 15, 1955, t.s.n., pp. 111-128).
[71] The Article provides: “Lands accidentally inundated by the
waters of lakes, or by creeks, rivers and other streams, shall continue
to be the property of their respective owners.” (Underscoring supplied)
[72] 53 Phil. 424.
[73] Angeles, Session of Feb. 10, 1954, t.s.n., pp. 75, 77; Lorenzo, Session of Mar. 2, 1951, t.s.n., p. 24, and Exh. 1-Calalang.
[74] Vicente, Session of Feb. 16, 1951, t.s.n., pp. 7, 33; Manahan, Session of Feb. 16, 1951, t.s.n., p. 38; and Lorenzo, session of Mar. 2, 1951, t.s.n., pp. 6-8.
[75] Session of Mar. 2, 1951, t.s.n., p. 14.
[76] Sese, Session of Oct. 13, 1955, t.s.n.,
pp. 191, 193?194; Ross, Session
of May 31, 1955, t.s.n., pp. 4-5; Villafuerte,
Session of May 25, 1955, t.s.n., p. 25; Bosuego, Session of July 18, 1955, t.s.n.
p. 32.
[77] Session of Feb. 16, 1951, t.s.n., p. 24.
[78]
Angeles, Session of Apr. 30, 1954, t.s.n., pp. 4-5;
Session of Nov. 8, 1954, t.s.n., p. 20; Mrs. Hilario, Session of Apr. 30, 1954, t.s.n.,
pp. 17-18.
[79] Bosuego, Session of Jan. 30, 1952, t.s.n.,
pp. 45, 47; Session of July 18, 1955, t.s.n., p. 30; Sese, Session of Oct. 13, 1955, t.s.n.,
p. 187; Ross, Session of May 31,
1955, t.s.n., pp. 6-7, 11.
[80] Session of Jan. 30, 1952, t.s.n., p. 42.
[81]
Transcript of Ocular Inspection, p. 4.
[82] Sese, Session of Oct.
13, 1955, t.s.n., pp. 189-190.
[83] Bosuego Session of Jan. 30, 1952, t.s.n.,
p. 45; Sese, Session of Oct. 13, 1955, t.s.n., p. 188.
[84] Leaño, Session of Dec.
19, 1955, t.s.n., pp. 130-132.
[85] Session of May 31, 1955, t.s.n., pp. 9-10.
[86] Session of Dec. 19, 1955, t.s.n., p. 133.
[87] Session of Dec. 6, 1954, t.s.n., pp. 60-61.
[88]
Record on Appeal, pp. 138-141.
[89] Leaño, Session of Dec.
19, 1955, p. 134.
[90] “Including the 2/5 northern portion
declared by the lower court.
[91]
Art. 461 provides that “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.”