PROVINCIA DEL SANTISIMO NOMBBE DE JESUS DE FLLIPINAS DE LA ORDEN DE ERMITAN0OS DE NUESTRO PADRE SAN AGUSTIN, COMMONLY KNOWN AS CORPORACION DE PP. AGUSTINOS, PLAINTIFF AND APPELL…

The Court of First Instance of Rizal
sustained, a demurrer to the petition in this case based on the single
ground that the action is in effect a suit against the Government of
the United States which the court has no jurisdiction to hear and
determine. The plaintiff declined to amend and its petition was
dismissed, whereupon this appeal was brought.

On May 13, 1933, the plaintiff, commonly known as the
“Corporation of Padres Agustinos”, filed a petition in the Court of
First Instance of Rizal which, in substance, makes the following
allegations: That it is a corporation domiciled in Manila and that the
defendant is a Brigadier-General of the Army of the United States in
command of Fort Wm. McKinley in the Province of Rizal; that in the year
1909 a Torrens title was issued to the Companfa Agricola de Ultramar,
later duly transferred to the plaintiff, by which the plaintiff became
the absolute owner of the following tracts of land situated in the
Province of Rizal, to wit:

“Dos parcelas de terreno conocidas con el nombre de Hacienda de Guadalupe, situadas en el Municipio de San Pedro Macati: Parcela A.—Linda
por el N. con la carretera general de Manila al Ft. McKinley; por el
S., con la Reserva Militar del Ft. McKinley, separada por el
de San Jose y otro sin nombre; por el S. con la Reserva Militar del Ft.
McKinley; y por el O. con propiedad de Pedro P. Roxas, separada por el
Estero Balisampan.

“Parcela B.—Linda por el N. con el Rio Pasig; por el S. con la carretera de Manila al Ft. McKinley; y por el O., con el
Balisampan”, that the defendant has charge and possession of the
military reservation of Fort McKinley mentioned above, and that the
true boundary line between the said reservation and plaintiff’s land
described in parcel A is the of San Jose.

It is further alleged that in the month of February of 1933, the
defendant, in his capacity as Commanding General in charge of Ft.
McKinley, ordered monuments to be placed and in fact has placed
monuments not along the true boundary line of said of San
Jose but within the said parcel A in such a way as to include within
said reservation about 2,000 square meters belonging to the plaintiff,
thereby interfering with the dominion, possession and enjoyment by the
plaintiff of the said portion of parcel A.

It is alleged that the plaintiff is in exclusive possession of said
lands and its predecessors in title have been since time immemorial;
that notwithstanding the formal protest of the plaintiff against the
location of said monuments as aforesaid, the defendant has insisted in
his proposal to locate and has in fact located said monuments to the
detriment of the ownership, possession and enjoyment of the plaintiff.

The plaintiff prays that the court declare and decree the true
boundary line between the land of the plaintiff and the military
reservation of Fort McKinley to be the above-mentioned of San Jose; and that the “right of occupancy of said Army extends to the opposite bank of the said ”
It is further prayed that the defendant, in his said capacity, his
agents and subordinates, be ordered to desist from placing any
monuments on the plaintiff’s side of said of San Jose and
that they be required to remove those monuments already placed as
aforesaid and further that a perpetual injunction be issued against the
defendant in his said capacity as Commanding General of the said Army
post, his agents and subordinates, requiring them to cease and desist
from any further interference in the property claimed by the plaintiff.
There is also a prayer for general relief.

In support of his demurrer and of the judgment of the court below,
the Solicitor-General argues that a suit against C. H. Conrad, jr., in
his capacity as Commanding General of the United States Army in command
at Fort Wm. McKinley, is in effect a suit against the United States
Government; and that the Commanding General is immune from suit when he
is sued in that official capacity. He relies upon our decision in the
case of Tan Te vs. Franklin Bell (27 Phil., 354). But that
question was not considered or decided in that case because J. Franklin
Bell, W. S. Wood, J. F. Dean and U. G. McAlexander were sued as
individuals. The defendants demurred to the complaint on the same
ground now advanced by the Solicitor-General in the present case,
namely, that the defendant, being the Commanding General, Philippines
Division, of the United States Army and the other defendants being
officers under his command, represent officially the Government of the
United States and there is no law authorizing the plaintiff to bring
said suit against the Government. Upon the appeal the defendants
Franklin Bell et al. repeated their objection of lack of jurisdiction
and this court said:

“Upon this point we think it sufficient to say that
it is alleged in the complaint that the ‘defendants illegally,
wrongfully, and by force, and without any due process of law
whatsoever, took from the plaintiff’ the property in question, and
‘that said property is wrongfully detained by the defendants.’ In
Tindal vs. Wesley (167 U. S., 204), the court, after
reviewing many of its decisions, said: ‘But the eleventh amendment
gives no immunity to officers or agents of a State in withholding the
property of a citizen without authority of law. And when such officers
or agents assert that they are in rightful possession, they must make
good that assertion when it is made to appear in a suit against them as
individuals that the legal title and right of possession is in the
plaintiff.’ “

The appellant here relies principally upon the cases of United States vs. Lee (106 U. S., 196; 27 Law. ed., 171); Stanley vs. Schwalby (147 U. S., 507; 37 Law. ed., 259) ; and Tindal vs.
Wesley (167 U. S., 204; 42 Law. ed., 137). In all of these cases the
defendants were named and sued only as individuals, no allegation
appearing in the complaint that they performed the acts complained of
in their capacity as officers of the Government. The latter fact was
first brought out in their respective answers in which they asserted
that they were acting or holding as officers of the Government and
disclaimed any personal interest or title.

In the case now before us the defendant Conrad is sued by his
official title and it is alleged that the acts complained of were
performed in his official capacity as Commanding General in charge of
the military reservation at Fort McKinley; and the prayer asks, amongst
other things, that the defendant, in his official capacity as
Commanding General, be perpetually enjoined from erecting the monuments
which he asserts mark the true boundary line of the said reservation.

The petition in this case is inaptly drawn, as was in effect
conceded by counsel upon the oral argument of this cause when he
contended that C. H. Conrad, jr., the defendant, was being sued only as
an individual, thus bringing the present case in line with the
authorities above cited upon which the appellant relies.

This ambiguity in the petition, which should have been cured, upon
motion of the defendant, if necessary, before this cause came to this
court, has caused us some difficulty in determining the law applicable
to the case. Clearly this court will not enjoin the Commanding General
of the United States Army in the Philippine Islands by perpetual
injunction from performing any acts within his official capacity. An
officer of the Government who commits a trespass such as alleged in the
present case and admitted by the demurrer, steps out of his official
capacity and can only be held to act unlawfully as an individual. Such
should be the substance of the complaint. When sued as an individual
for a trespass, his mere assertion by way of answer that he performed
the act complained of as an officer of the Government does not
exculpate him. But if, after hearing upon the merits, judgment is
rendered against him, it can only be as an individual. The United
States is not a party to the present suit and no judgment rendered
therein is binding on the United States. No question of title, as
between the plaintiff and the United States, which holds a Torrens
title to the military reservation at Fort McKinley, can be adjudicated
in this suit.

Adopting the construction, more or less forced, that what the
plaintiff intended to set out in his petition was a cause of action for
an alleged unlawful trespass committed by C. H. Conrad, jr., under the
guise of military authority, we sustain the jurisdiction of the court
upon the authorities above cited.

We deem it proper to state that the present suit seems to us ill
advised, in view of the adequate remedy open to the plaintiff under
section 112 of Act No. 496. It is a fact of record in this court that
in March, 1912, Major-General Bell, on behalf of the United States,
filed a petition in the Land Registration Court under the said section
to correct the certificate of title to the military reservation of Fort
McKinley; and in like manner invoking the same section 112 of Act No.
496, likewise affecting a controversy as to the correct boundary
between an adjoining estate and the military reservation of Fort
McKinley, suit was brought by Jacobo Zobel et al. against the
Commanding General in Land Registration Case No. 2484 in the Court of
First Instance of Rizal, whose decision was affirmed by this court on
December 3,1926. (See G. R. No. 25890, Zobel vs. Commanding General of the United States Army, not reported.)

The judgment of the court below is reversed and the cause remanded
with directions to permit the defendant Conrad to further plead and for
other proceedings not inconsistent with this opinion. Without special
pronouncement as to costs.

Street, Malcolm, Villa-Real, Abad Santos, Hull, Imperial, Goddard, and Diaz, JJ., concur.