G.R. No.

L-14355 October 31, 1919 The defendant Ildefonso Tambunting, answering the petition,
denied each and every allegation of the complaint, and alleged
THE CITY OF MANILA, plaintiff-appellant, that said expropriation was not a public improvement; that it
vs. was not necessary for the plaintiff to acquire the parcels of land in
CHINESE COMMUNITY OF MANILA, ET AL., defendants- question; that a portion of the lands in question was used as a
appellees. cemetery in which were the graves of his ancestors; that
monuments and tombstones of great value were found thereon;
that the land had become quasi-public property of a benevolent
City Fiscal Diaz for appellant. association, dedicated and used for the burial of the dead and that
Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and many dead were buried there; that if the plaintiff deemed it
Delgado, Filemon Sotto, and Ramon Salinas for appellees. necessary to extend Rizal Avenue, he had offered and still offers
to grant a right of way for the said extension over other land,
without cost to the plaintiff, in order that the sepulchers, chapels
and graves of his ancestors may not be disturbed; that the land so
JOHNSON, J.: offered,free of charge, would answer every public necessity on the
part of the plaintiff.

The important question presented by this appeal is: In

expropriation proceedings by the city of Manila, may the courts The defendant Feliza Concepcion de Delgado, with her husband,
inquire into, and hear proof upon, the necessity of the Jose Maria Delgado, and each of the other defendants, answering
expropriation? separately, presented substantially the same defense as that
presented by the Comunidad de Chinos de Manila and Ildefonso
Tambunting above referred to.
That question arose in the following manner:
The foregoing parts of the defense presented by the defendants
On the 11th day of December, 1916, the city of Manila presented have been inserted in order to show the general character of the
a petition in the Court of First Instance of said city, praying that defenses presented by each of the defendants. The plaintiff
certain lands, therein particularly described, be expropriated for alleged that the expropriation was necessary. The defendants
the purpose of constructing a public improvement. The petitioner, each alleged (a) that no necessity existed for said expropriation
in the second paragraph of the petition, alleged: and (b) that the land in question was a cemetery, which had been
used as such for many years, and was covered with sepulchres
That for the purpose of constructing a public and monuments, and that the same should not be converted into a
improvement, namely, the extension of Rizal Avenue, street for public purposes.
Manila, it is necessary for the plaintiff to acquire
ownership in fee simple of certain parcels of land situated Upon the issue thus presented by the petition and the various
in the district of Binondo of said city within Block 83 of answers, the Honorable Simplicio del Rosario, judge, in a very
said district, and within the jurisdiction of this court. elucidated opinion, with very clear and explicit reasons, supported
by ambulance of authorities, decided that there was no
The defendant, the Comunidad de Chinos de Manila [Chinese necessity for the expropriation of the particular strip of land in
Community of Manila], answering the petition of the plaintiff, question, and absolved each and all of the defendants from all
alleged that it was a corporation organized and existing under and liability under the complaint, without any finding as to costs.
by virtue of the laws of the Philippine Islands, having for its
purpose the benefit and general welfare of the Chinese From that judgment the plaintiff appealed and presented the
Community of the City of Manila; that it was the owner of parcels above question as its principal ground of appeal.
one and two of the land described in paragraph 2 of the complaint;
that it denied that it was either necessary or expedient that the
said parcels be expropriated for street purposes; that existing The theory of the plaintiff is, that once it has established the fact,
street and roads furnished ample means of communication for the under the law, that it has authority to expropriate land, it may
public in the district covered by such proposed expropriation; that expropriate any land it may desire; that the only function of the
if the construction of the street or road should be considered a court in such proceedings is to ascertain the value of the land in
public necessity, other routes were available, which would fully question; that neither the court nor the owners of the land can
satisfy the plaintiff's purposes, at much less expense and without inquire into the advisible purpose of purpose of the expropriation
disturbing the resting places of the dead; that it had a Torrens title or ask any questions concerning the necessities therefor; that
for the lands in question; that the lands in question had been used the courts are mere appraisers of the land involved in
by the defendant for cemetery purposes; that a great number of expropriation proceedings, and, when the value of the land is fixed
Chinese were buried in said cemetery; that if said expropriation be by the method adopted by the law, to render a judgment in favor of
carried into effect, it would disturb the resting places of the dead, the defendant for its value.
would require the expenditure of a large sum of money in the
transfer or removal of the bodies to some other place or site and in That the city of Manila has authority to expropriate private lands
the purchase of such new sites, would involve the destruction of for public purposes, is not denied. Section 2429 of Act No. 2711
existing monuments and the erection of new monuments in their (Charter of the city of Manila) provides that "the city (Manila) . . .
stead, and would create irreparable loss and injury to the may condemn private property for public use."
defendant and to all those persons owning and interested in the
graves and monuments which would have to be destroyed; that The Charter of the city of Manila contains no procedure by which
the plaintiff was without right or authority to expropriate said the said authority may be carried into effect. We are driven,
cemetery or any part or portion thereof for street purposes; and therefore, to the procedure marked out by Act No. 190 to ascertain
that the expropriation, in fact, was not necessary as a public how the said authority may be exercised. From an examination of
improvement. Act No. 190, in its section 241, we find how the right of eminent
domain may be exercised. Said section 241 provides that, "The
Government of the Philippine Islands, or of any province or The city of Manila is given authority to expropriate private lands
department thereof, or of any municipality, and any person, or for public purposes. Can it be possible that said authority confers
public or private corporation having, by law, the right to condemn the right to determine for itself that the land is private and that the
private property for public use, shall exercise that right in the purpose is public, and that the people of the city of Manila who
manner hereinafter prescribed." pay the taxes for its support, especially those who are directly
affected, may not question one or the other, or both, of these
Section 242 provides that a complaint in expropriation proceeding questions? Can it be successfully contended that the phrase used
shall be presented; that the complaint shall state with certainty the in Act No. 190, "and if the court upon trial shall find that
right of condemnation, with a description of the property sought to such right exists," means simply that the court shall examine
be condemned together with the interest of each defendant the statutes simply for the purpose of ascertaining whether a law
separately. exists authorizing the petitioner to exercise the right of eminent
domain? Or, when the case arrives in the Supreme Court, can it
be possible that the phrase, "if the Supreme Court shall determine
Section 243 provides that if the court shall find upon trial that that no right of expropriation exists," that that simply means that
the right to expropriate the land in question exists, it shall then the Supreme Court shall also examine the enactments of the
appoint commissioners. legislature for the purpose of determining whether or not a law
exists permitting the plaintiff to expropriate?
Sections 244, 245 and 246 provide the method of procedure and
duty of the commissioners. Section 248 provides for an appeal We are of the opinion that the power of the court is not limited to
from the judgment of the Court of First Instance to the Supreme that question. The right of expropriation is not an inherent power in
Court. Said section 248 gives the Supreme Court authority to a municipal corporation, and before it can exercise the right some
inquire into the right of expropriation on the part of the plaintiff. If law must exist conferring the power upon it. When the courts
the Supreme Court on appeal shall determine that no right of come to determine the question, they must only find (a) that a law
expropriation existed, it shall remand the cause to the Court of or authority exists for the exercise of the right of eminent domain,
First Instance with a mandate that the defendant be replaced in but (b) also that the right or authority is being exercised in
the possession of the property and that he recover whatever accordance with the law. In the present case there are two
damages he may have sustained by reason of the possession of conditions imposed upon the authority conceded to the City of
the plaintiff. Manila: First, the land must be private; and, second, the purpose
must be public. If the court, upon trial, finds that neither of these
It is contended on the part of the plaintiff that the phrase in said conditions exists or that either one of them fails, certainly it cannot
section, "and if the court shall find the right to expropriate exists," be contended that the right is being exercised in accordance with
means simply that, if the court finds that there is some law.
law authorizing the plaintiff to expropriate, then the courts have no
other function than to authorize the expropriation and to proceed Whether the purpose for the exercise of the right of eminent
to ascertain the value of the land involved; that the necessity for domain is public, is a question of fact. Whether the land is public,
the expropriation is a legislative and not a judicial question. is a question of fact; and, in our opinion, when the legislature
conferred upon the courts of the Philippine Islands the right to
Upon the question whether expropriation is a legislative function ascertain upon trial whether the right exists for the exercise of
exclusively, and that the courts cannot intervene except for the eminent domain, it intended that the courts should inquire into,
purpose of determining the value of the land in question, there is and hear proof upon, those questions. Is it possible that the owner
much legal legislature. Much has been written upon both sides of of valuable land in this jurisdiction is compelled to stand mute
that question. A careful examination of the while his land is being expropriated for a use not public, with the
discussions pro and con will disclose the fact that the decisions right simply to beg the city of Manila to pay him the value of his
depend largely upon particular constitutional or statutory land? Does the law in this jurisdiction permit municipalities to
provisions. It cannot be denied, if the legislature under proper expropriate lands, without question, simply for the purpose of
authority should grant the expropriation of a certain or particular satisfying the aesthetic sense of those who happen for the time
parcel of land for some specified public purpose, that the courts being to be in authority? Expropriation of lands usually calls for
would be without jurisdiction to inquire into the purpose of that public expense. The taxpayers are called upon to pay the costs.
legislation. Cannot the owners of land question the public use or the public
necessity?
If, upon the other hand, however, the Legislature should
grant general authority to a municipal corporation to As was said above, there is a wide divergence of opinion upon the
expropriate private land for public purposes, we think the courts authority of the court to question the necessity or advisability of
have ample authority in this jurisdiction, under the provisions the exercise of the right of eminent domain. The divergence is
above quoted, to make inquiry and to hear proof, upon an issue usually found to depend upon particular statutory or constitutional
properly presented, concerning whether or not the lands provisions.
were private and whether the purpose was, in fact, public. In other
words, have no the courts in this jurisdiction the right, inasmuch as It has been contended — and many cases are cited in support of
the questions relating to expropriation must be referred to them that contention, and section 158 of volume 10 of Ruling Case Law
(sec. 241, Act No. 190) for final decision, to ask whether or not the is cited as conclusive — that the necessity for taking property
law has been complied with? Suppose in a particular case, it under the right of eminent domain is not a judicial question. But
should be denied that the property is not private property those who cited said section evidently overlooked the section
but public, may not the courts hear proof upon that question? Or, immediately following (sec. 159), which adds: "But it is obvious
suppose the defense is, that the purpose of the expropriation is that if the property is taken in the ostensible behalf of a public
not public butprivate, or that there exists no public purpose at all, improvement which it can never by any possibility serve, it is being
may not the courts make inquiry and hear proof upon that taken for a use not public, and the owner's constitutional rights call
question? for protection by the courts. While many courts have used
sweeping expression in the decisions in which they have
disclaimed the power of supervising the power of supervising is the application of the right to a particular case. Certainly, the
the selection of the sites of public improvements, it may be safely legislative declaration relating to the advisability of granting the
said that the courts of the various states would feel bound to power cannot be converted into a declaration that a necessity
interfere to prevent an abuse of the discretion delegated by the exists for its exercise in a particular case, and especially so when,
legislature, by an attempted appropriation of land in utter disregard perhaps, the land in question was not within the territorial authority
of the possible necessity of its use, or when the alleged purpose was granted.
was a cloak to some sinister scheme." (Norwich City vs. Johnson,
86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., Whether it was wise, advisable, or necessary to confer upon a
544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., municipality the power to exercise the right of eminent domain, is
368; State vs. Stewart, 74 Wis., 620.) a question with which the courts are not concerned. But when that
right or authority is exercised for the purpose of depriving citizens
Said section 158 (10 R. C. L., 183) which is cited as conclusive of their property, the courts are authorized, in this jurisdiction, to
authority in support of the contention of the appellant, says: make inquiry and to hear proof upon the necessity in the particular
case, and not the general authority.
The legislature, in providing for the exercise of the power
of eminent domain, may directly determine the Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page
necessity for appropriating private property for a 629, is cited as a further conclusive authority upon the question
particular improvement for public use, and it may select that the necessity for the exercise of the right of eminent domain is
the exact location of the improvement. In such a case, it a legislative and not a judicial question. Cyclopedia, at the page
is well settled that the utility of the proposed stated, says:
improvement, the extent of the public necessity for its
construction, the expediency of constructing it, the In the absence of some constitutional or statutory
suitableness of the location selected and the consequent provision to the contrary, the necessity and expediency of
necessity of taking the land selected for its site, are all exercising the right of eminent domain are questions
questions exclusively for the legislature to determine, and essentially political and not judicial in their character. The
the courts have no power to interfere, or to substitute determination of those questions (the necessity and the
their own views for those of the representatives of the expediency) belongs to the sovereign power; the
people. legislative department is final and conclusive, and the
courts have no power to review it (the necessity and the
Practically every case cited in support of the above doctrine has expediency) . . . . It (the legislature) may designate the
been examined, and we are justified in making the statement that particular property to be condemned, and its
in each case the legislature directly determined the necessity for determination in this respect cannot be reviewed by the
the exercise of the right of eminent domain in the particular case. courts.
It is not denied that if the necessity for the exercise of the right of
eminent domain is presented to the legislative department of the The volume of Cyclopedia, above referred to, cites many cases in
government and that department decides that there exists a support of the doctrine quoted. While time has not permitted an
necessity for the exercise of the right in a particular case, that then examination of all of said citations, many of them have been
and in that case, the courts will not go behind the action of the examined, and it can be confidently asserted that said cases
legislature and make inquiry concerning the necessity. But, in the which are cited in support of the assertion that, "the necessity and
case of Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio expediency of exercising the right of eminent domain are
St., 368 [106 Am. St. rep., 622, 628]), which was cited in support questions essentially political and not judicial," show clearly and
of the doctrine laid down in section 158 above quoted, the court invariably that in each case the legislature itself usually, by a
said: special law, designated the particular case in which the right of
eminent domain might be exercised by the particular municipal
But when the statute does not designate the property to corporation or entity within the state. (Eastern R. Co. vs. Boston,
be taken nor how may be taken, then the necessity of etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park
taking particular property is a question for the courts. Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70];
Where the application to condemn or appropriate is made Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598;
directly to the court, the question (of necessity) should be Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390;
raised and decided in limene. U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53;
U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction
The legislative department of the government was rarely Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246
undertakes to designate the precise property which should be U.S., 351 [erroneously cited as 242 U.S.].)
taken for public use. It has generally, like in the present case,
merely conferred general authority to take land for public use In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the
when a necessity exists therefor. We believe that it can be Supreme Court of the United States said: "It is erroneous to
confidently asserted that, under such statute, the allegation of the suppose that the legislature is beyond the control of the courts in
necessity for the appropriation is an issuable allegation which it is exercising the power of eminent domain, either as to the nature of
competent for the courts to decide. (Lynch vs. Forbes, 161 Mass., the use or the necessity to the use of any particular property. For if
302 [42 Am. St. Rep., 402, 407].) the use be not public or no necessity for the taking exists, the
legislature cannot authorize the taking of private property against
There is a wide distinction between a legislative declaration that a the will of the owner, notwithstanding compensation may be
municipality is given authority to exercise the right of eminent required."
domain, and a decision by the municipality that there exist a
necessity for the exercise of that right in a particular case. The first In the case of School Board of Carolina vs. Saldaña (14 Porto
is a declaration simply that there exist reasons why the right Rico, 339, 356), we find the Supreme Court of Porto Rico,
should be conferred upon municipal corporation, while the second speaking through Justice MacLeary, quoting approvingly the
following, upon the question which we are discussing: "It is well not is ultimately, at least, a judicial question. The legislative may, it
settled that although the legislature must necessarily determine in is true, in effect declare certain uses to be public, and, under the
the first instance whether the use for which they (municipalities, operation of the well-known rule that a statute will not be declared
etc.) attempt to exercise the power is a public one or not, their to be unconstitutional except in a case free, or comparatively free,
(municipalities, etc.) determination is not final, but is subject to from doubt, the courts will certainly sustain the action of the
correction by the courts, who may undoubtedly declare the statute legislature unless it appears that the particular use is clearly not of
unconstitutional, if it shall clearly appear that the use for which it is a public nature. The decisions must be understood with this
proposed to authorize the taking of private property is in reality not limitation; for, certainly, no court of last resort will be willing to
public but private." Many cases are cited in support of that declare that any and every purpose which the legislative might
doctrine. happen to designate as a public use shall be conclusively held to
be so, irrespective of the purpose in question and of its manifestly
Later, in the same decision, we find the Supreme Court of Porto private character Blackstone in his Commentaries on the English
Rico says: "At any rate, the rule is quite well settled that in the Law remarks that, so great is the regard of the law for private
cases under consideration the determination of the necessity of property that it will not authorize the least violation of it, even for
taking a particular piece or a certain amount of land rests the public good, unless there exists a very great necessity
ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, therefor.
etc. Co., 64 Cal., 123.) .
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the
In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., Supreme Court of the United States said: "That government can
571 [41 L. R. A., N. S., 1024]), the Supreme Court of Connecticut scarcely be deemed free where the rights of property are left
approvingly quoted the following doctrine from Lewis on Eminent solely defendant on the legislative body, without restraint. The
Domain (3d ed.), section 599: "In all such cases the necessity of fundamental maxims of free government seem to require that the
public utility of the proposed work or improvement is a judicial rights of personal liberty and private property should be held
question. In all such cases, where the authority is to take property sacred. At least no court of justice in this country would be
necessary for the purpose, the necessity of taking particular warranted in assuming that the power to violate and disregard
property for a particular purpose is a judicial one, upon which the them — a power so repugnant to the common principles of justice
owner is entitled to be heard." (Riley vs.Charleston, etc. Co., 71 S. and civil liberty — lurked in any general grant of legislature
C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington authority, or ought to be implied from any general expression of
132 Ky., 390, 403.) the people. The people ought no to be presumed to part with
rights so vital to their security and well-being without very strong
and direct expression of such intention." (Lewis on Eminent
The taking of private property for any use which is not required by Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308;
the necessities or convenience of the inhabitants of the state, is an Jefferson vs. Jazem, 7 La. Ann., 182.)
unreasonable exercise of the right of eminent domain, and beyond
the power of the legislature to delegate. (Bennett vs. Marion, 106
Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, Blackstone, in his Commentaries on the English Law said that the
545; Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky., 692, 697.) right to own and possess land — a place to live separate and
apart from others — to retain it as a home for the family in a way
not to be molested by others — is one of the most sacred rights
In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., that men are heirs to. That right has been written into the organic
537, 564), the Supreme Court of the State of Maryland, discussing law of every civilized nation. The Acts of Congress of July 1, 1902,
the question before us, said: "To justify the exercise of this and of August 29, 1916, which provide that "no law shall be
extreme power (eminent domain) where the legislature has left it enacted in the Philippine Islands which shall deprive any person of
to depend upon the necessity that may be found to exist, in order his property without due process of law," are but a restatement of
to accomplish the purpose of the incorporation, as in this case, the the time-honored protection of the absolute right of the individual
party claiming the right to the exercise of the power should be to his property. Neither did said Acts of Congress add anything to
required to show at least a reasonable degree of necessity for its the law already existing in the Philippine Islands. The Spaniard
exercise. Any rule less strict than this, with the large and almost fully recognized the principle and adequately protected the
indiscriminate delegation of the right to corporations, would likely inhabitants of the Philippine Islands against the encroachment
lead to oppression and the sacrifice of private right to corporate upon the private property of the individual. Article 349 of the Civil
power." Code provides that: "No one may be deprived of his property
unless it be by competent authority, for some purpose
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the of proven public utility, and after payment of the proper
court said: "Its right to condemn property is not a general power of compensation Unless this requisite (proven public utility and
condemnation, but is limited to cases where a necessity for resort payment) has been complied with, it shall be the duty of the
to private property is shown to exist. Such necessity must appear courts to protect the owner of such property in its possession or to
upon the face of the petition to condemn. If the necessary is restore its possession to him , as the case may be."
denied the burden is upon the company (municipality) to establish
it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; The exercise of the right of eminent domain, whether directly by
Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ; the State, or by its authorized agents, is necessarily in derogation
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. of private rights, and the rule in that case is that the authority must
Rep. 338].) be strictly construed. No species of property is held by individuals
with greater tenacity, and none is guarded by the constitution and
It is true that naby decisions may be found asserting that what is a laws more sedulously, than the right to the freehold of inhabitants.
public use is a legislative question, and many other decisions When the legislature interferes with that right, and, for greater
declaring with equal emphasis that it is a judicial question. But, as public purposes, appropriates the land of an individual without his
long as there is a constitutional or statutory provision denying the consent, the plain meaning of the law should not be enlarged by
right to take land for any use other than a public use, it occurs to doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13
us that the question whether any particular use is a public one or Cal., 306 and cases cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner without his the conditions accompanying the authority. The
consent is one of the most delicate exercise of government necessity for conferring the authority upon a municipal corporation
authority. It is to be watched with jealous scrutiny. Important as the to exercise the right of eminent domain is admittedly within the
power may be to the government, the inviolable sanctity which all power of the legislature. But whether or not the municipal
free constitutions attach to the right of property of the citizens, corporation or entity is exercising the right in a particular case
constrains the strict observance of the substantial provisions of the under the conditions imposed by the general authority, is a
law which are prescribed as modes of the exercise of the power, question which the courts have the right to inquire into.
and to protect it from abuse. Not only must the authority of
municipal corporations to take property be expressly conferred The conflict in the authorities upon the question whether
and the use for which it is taken specified, but the power, with all the necessity for the exercise of the right of eminent domain is
constitutional limitation and directions for its exercise, must be purely legislative and not judicial, arises generally in the wisdom
strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. and propriety of the legislature in authorizing the exercise of the
1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil., right of eminent domain instead of in the question of the right to
411.) exercise it in a particular case. (Creston Waterworks
Co. vs. McGrath, 89 Iowa, 502.)
It can scarcely be contended that a municipality would be
permitted to take property for some public use unless some public By the weight of authorities, the courts have the power of
necessity existed therefor. The right to take private property for restricting the exercise of eminent domain to the actual reasonable
public use originates in the necessity, and the taking must be necessities of the case and for the purposes designated by the
limited by such necessity. The appellant contends that inasmuch law. (Fairchild vs. City of St. Paul. 48 Minn., 540.)
as the legislature has given it general authority to take private
property for public use, that the legislature has, therefore, settled
the question of the necessity in every case and that the courts are And, moreover, the record does not show conclusively that the
closed to the owners of the property upon that question. Can it be plaintiff has definitely decided that their exists a necessity for the
imagined, when the legislature adopted section 2429 of Act No. appropriation of the particular land described in the complaint.
2711, that it thereby declared that it was necessary to appropriate Exhibits 4, 5, 7, and E clearly indicate that the municipal board
the property of Juan de la Cruz, whose property, perhaps, was not believed at one time that other land might be used for the
within the city limits at the time the law was adopted? The proposed improvement, thereby avoiding the necessity of
legislature, then, not having declared the necessity, can it be distributing the quiet resting place of the dead.
contemplated that it intended that a municipality should be the
sole judge of the necessity in every case, and that the courts, in Aside from insisting that there exists no necessity for the alleged
the face of the provision that "if upon trial they shall find that a right improvements, the defendants further contend that the street in
exists," cannot in that trial inquire into and hear proof upon the question should not be opened through the cemetery. One of the
necessity for the appropriation in a particular case? defendants alleges that said cemetery is public property. If that
allegations is true, then, of course, the city of Manila cannot
The Charter of the city of Manila authorizes the taking appropriate it for public use. The city of Manila can only
of private property for public use. Suppose the owner of the expropriate private property.
property denies and successfully proves that the taking of his
property serves no public use: Would the courts not be justified in It is a well known fact that cemeteries may be public or private.
inquiring into that question and in finally denying the petition if no The former is a cemetery used by the general community, or
public purpose was proved? Can it be denied that the courts have neighborhood, or church, while the latter is used only by a family,
a right to inquire into that question? If the courts can ask questions or a small portion of the community or neighborhood. (11 C. J.,
and decide, upon an issue properly presented, whether the use is 50.)
public or not, is not that tantamount to permitting the courts to
inquire into the necessity of the appropriation? If there is no public Where a cemetery is open to public, it is a public use and no part
use, then there is no necessity, and if there is no necessity, it is of the ground can be taken for other public uses under a general
difficult to understand how a public use can necessarily exist. If authority. And this immunity extends to the unimproved and
the courts can inquire into the question whether a public use exists unoccupied parts which are held in good faith for future use.
or not, then it seems that it must follow that they can examine into (Lewis on Eminent Domain, sec. 434, and cases cited.)
the question of the necessity.

The cemetery in question seems to have been established under

The very foundation of the right to exercise eminent domain is a governmental authority. The Spanish Governor-General, in an
genuine necessity, and that necessity must be of a public order creating the same, used the following language:
character. The ascertainment of the necessity must precede or
accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; The cemetery and general hospital for indigent Chinese
Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. having been founded and maintained by the spontaneous
Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.) and fraternal contribution of their protector, merchants
and industrials, benefactors of mankind, in consideration
of their services to the Government of the Islands its
The general power to exercise the right of eminent domain must internal administration, government and regime must
not be confused with the right to exercise it in aparticular case. necessarily be adjusted to the taste and traditional
The power of the legislature to confer, upon municipal practices of those born and educated in China in order
corporations and other entities within the State, general authority that the sentiments which animated the founders may be
to exercise the right of eminent domain cannot be questioned by perpetually effectuated.
the courts, but that general authority of municipalities or entities
must not be confused with the right to exercise it in particular
instances. The moment the municipal corporation or entity It is alleged, and not denied, that the cemetery in question may be
attempts to exercise the authority conferred, it must comply with used by the general community of Chinese, which fact, in the
general acceptation of the definition of a public cemetery, would that such public improvement be made in the said portion of the
make the cemetery in question public property. If that is true, then, private cemetery and that the said lands are within their
of course, the petition of the plaintiff must be denied, for the jurisdiction.
reason that the city of Manila has no authority or right under the
law to expropriate public property. Defendants herein answered that the said expropriation was not
necessary because other routes were available. They further
claimed that the expropriation of the cemetery would create
But, whether or not the cemetery is public or private property, its irreparable loss and injury to them and to all those persons owing
appropriation for the uses of a public street, especially during the and interested in the graves and monuments that would have to
lifetime of those specially interested in its maintenance as a be destroyed.
cemetery, should be a question of great concern, and its
appropriation should not be made for such purposes until it is fully The lower court ruled that the said public improvement was not
established that the greatest necessity exists therefor. necessary on the particular-strip of land in question. Plaintiff
herein assailed that they have the right to exercise the power of
eminent domain and that the courts have no right to inquire and
While we do not contend that the dead must not give place to the
determine the necessity of the expropriation. Thus, the same filed
living, and while it is a matter of public knowledge that in the
an appeal.
process of time sepulchres may become the seat of cities and
cemeteries traversed by streets and daily trod by the feet of ISSUE: Whether or not the courts may inquire into, and hear proof
millions of men, yet, nevertheless such sacrifices and such uses of of the necessity of the expropriation.
the places of the dead should not be made unless and until it is
fully established that there exists an eminent necessity therefor.
While cemeteries and sepulchres and the places of the burial of HELD:The courts have the power of restricting the exercise of
the dead are still within eminent domain to the actual reasonable necessities of the case
the memory and command of the active care of the living; while and for the purposes designated by the law. The moment the
they are still devoted to pious uses and sacred regard, it is difficult municipal corporation or entity attempts to exercise the authority
to believe that even the legislature would adopt a law expressly conferred, it must comply with the conditions accompanying the
providing that such places, under such circumstances, should be authority. The necessity for conferring the authority upon a
violated. municipal corporation to exercise the right of eminent domain is
admittedly within the power of the legislature. But whether or not
the municipal corporation or entity is exercising the right in a
In such an appropriation, what, we may ask, would be the particular case under the conditions imposed by the general
measure of damages at law, for the wounded sensibilities of the authority, is a question that the courts have the right to inquire to.
living, in having the graves of kindred and loved ones blotted out
and desecrated by a common highway or street for public travel?
The impossibility of measuring the damage and inadequacy of a
remedy at law is too apparent to admit of argument. To disturb the
mortal remains of those endeared to us in life sometimes becomes G.R. No. L-20620 August 15, 1974
the sad duty of the living; but, except in cases of necessity, or for
laudable purposes, the sanctity of the grave, the last resting place REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
of our friends, should be maintained, and the preventative aid of vs.
the courts should be invoked for that object. (Railroad CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-
Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery appellees.
Association vs. The City of New Haven, 43 Conn., 234;
Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters,
566.) Office of the Solicitor General for plaintiff-appellant.

In the present case, even granting that a necessity exists for the C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates
opening of the street in question, the record contains no proof of for defendant-appellees.
the necessity of opening the same through the cemetery. The
record shows that adjoining and adjacent lands have been offered
to the city free of charge, which will answer every purpose of the
plaintiff. ZALDIVAR, J.:p

For all of the foregoing, we are fully persuaded that the judgment Appeal from the decision of the Court of First Instance of
of the lower court should be and is hereby affirmed, with costs Pampanga in its Civil Case No. 1623, an expropriation
against the appellant. So ordered. proceeding.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur. Plaintiff-appellant, the Republic of the Philippines, (hereinafter
referred to as the Republic) filed, on June 26, 1959, a complaint
for eminent domain against defendant-appellee, Carmen M. Vda.
de Castellvi, judicial administratrix of the estate of the late Alfonso
City Of Manila vs. Chinese Community Of Manila, 40 Phil. 349 de Castellvi (hereinafter referred to as Castellvi), over a parcel of
(1919) land situated in the barrio of San Jose, Floridablanca, Pampanga,
CASE DIGEST described as follows:

FACTS: The City of Manila, plaintiff herein, prayed for the A parcel of land, Lot No. 199-B Bureau of Lands
expropriation of a portion private cemetery for the conversion into Plan Swo 23666. Bounded on the NE by Maria
an extension of Rizal Avenue. Plaintiff claims that it is necessary Nieves Toledo-Gozun; on the SE by national
 road; on the SW by AFP reservation, and on the husband of defendant Nieves Toledo Gozun, was also allowed by
NW by AFP reservation. Containing an area of the court to intervene as a party defendant.
759,299 square meters, more or less, and
registered in the name of Alfonso Castellvi After the Republic had deposited with the Provincial Treasurer of
under TCT No. 13631 of the Register of Pampanga the amount of P259,669.10, the trial court ordered that
Pampanga ...; the Republic be placed in possession of the lands. The Republic
was actually placed in possession of the lands on August 10,
and against defendant-appellee Maria Nieves Toledo Gozun 1959. 1
(hereinafter referred to as Toledo-Gozun over two parcels of land
described as follows: In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun
alleged, among other things, that her two parcels of land were
A parcel of land (Portion Lot Blk-1, Bureau of residential lands, in fact a portion with an area of 343,303 square
Lands Plan Psd, 26254. Bounded on the NE by meters had already been subdivided into different lots for sale to
Lot 3, on the SE by Lot 3; on the SW by Lot 1-B, the general public, and the remaining portion had already been set
Blk. 2 (equivalent to Lot 199-B Swo 23666; on aside for expansion sites of the already completed subdivisions;
the NW by AFP military reservation. Containing that the fair market value of said lands was P15.00 per square
an area of 450,273 square meters, more or less meter, so they had a total market value of P8,085,675.00; and she
and registered in the name of Maria Nieves prayed that the complaint be dismissed, or that she be paid the
Toledo-Gozun under TCT No. 8708 of the amount of P8,085,675.00, plus interest thereon at the rate of 6%
Register of Deeds of Pampanga. ..., and per annum from October 13, 1959, and attorney's fees in the
amount of P50,000.00.
A parcel of land (Portion of lot 3, Blk-1, Bureau
of Lands Plan Psd 26254. Bounded on the NE Intervenors Jose Castellvi and Consuelo Castellvi in their answer,
by Lot No. 3, on the SE by school lot and filed on February 11, 1960, and also intervenor Joaquin Gozun,
national road, on the SW by Lot 1-B Blk 2 Jr., husband of defendant Maria Nieves Toledo-Gozun, in his
(equivalent to Lot 199-B Swo 23666), on the motion to dismiss, dated May 27, 1960, all alleged that the value
NW by Lot 1-B, Blk-1. Containing an area of of the lands sought to be expropriated was at the rate of P15.00
88,772 square meters, more or less, and per square meter.
registered in the name of Maria Nieves Toledo
Gozun under TCT No. 8708 of the Register of On November 4, 1959, the trial court authorized the Provincial
Deeds of Pampanga, .... Treasurer of Pampanga to pay defendant Toledo-Gozun the sum
of P107,609.00 as provisional value of her lands. 2 On May 16,
In its complaint, the Republic alleged, among other things, that the 1960 the trial Court authorized the Provincial Treasurer of
fair market value of the above-mentioned lands, according to the Pampanga to pay defendant Castellvi the amount of P151,859.80
Committee on Appraisal for the Province of Pampanga, was not as provisional value of the land under her administration, and
more than P2,000 per hectare, or a total market value of ordered said defendant to deposit the amount with the Philippine
P259,669.10; and prayed, that the provisional value of the lands National Bank under the supervision of the Deputy Clerk of Court.
be fixed at P259.669.10, that the court authorizes plaintiff to take In another order of May 16, 1960 the trial Court entered an order
immediate possession of the lands upon deposit of that amount of condemnation.3
with the Provincial Treasurer of Pampanga; that the court appoints
three commissioners to ascertain and report to the court the just The trial Court appointed three commissioners: Atty. Amadeo
compensation for the property sought to be expropriated, and that Yuzon, Clerk of Court, as commissioner for the court; Atty.
the court issues thereafter a final order of condemnation. Felicisimo G. Pamandanan, counsel of the Philippine National
Bank Branch at Floridablanca, for the plaintiff; and Atty. Leonardo
On June 29, 1959 the trial court issued an order fixing the F. Lansangan, Filipino legal counsel at Clark Air Base, for the
provisional value of the lands at P259,669.10. defendants. The Commissioners, after having qualified
themselves, proceeded to the performance of their duties.
In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged,
among other things, that the land under her administration, being On March 15,1961 the Commissioners submitted their report and
a residential land, had a fair market value of P15.00 per square recommendation, wherein, after having determined that the lands
meter, so it had a total market value of P11,389,485.00; that the sought to be expropriated were residential lands, they
Republic, through the Armed Forces of the Philippines, particularly recommended unanimously that the lowest price that should be
the Philippine Air Force, had been, despite repeated demands, paid was P10.00 per square meter, for both the lands of Castellvi
illegally occupying her property since July 1, 1956, thereby and Toledo-Gozun; that an additional P5,000.00 be paid to
preventing her from using and disposing of it, thus causing her Toledo-Gozun for improvements found on her land; that legal
damages by way of unrealized profits. This defendant prayed that interest on the compensation, computed from August 10, 1959, be
the complaint be dismissed, or that the Republic be ordered to pay paid after deducting the amounts already paid to the owners, and
her P15.00 per square meter, or a total of P11,389,485.00, plus that no consequential damages be awarded. 4 The
interest thereon at 6% per annum from July 1, 1956; that the Commissioners' report was objected to by all the parties in the
Republic be ordered to pay her P5,000,000.00 as unrealized case — by defendants Castellvi and Toledo-Gozun, who insisted
profits, and the costs of the suit. that the fair market value of their lands should be fixed at P15.00
per square meter; and by the Republic, which insisted that the
By order of the trial court, dated August, 1959, Amparo C. Diaz, price to be paid for the lands should be fixed at P0.20 per square
Dolores G. viuda de Gil, Paloma Castellvi, Carmen Castellvi, meter. 5
Rafael Castellvi, Luis Castellvi, Natividad Castellvi de Raquiza,
Jose Castellvi and Consuelo Castellvi were allowed to intervene After the parties-defendants and intervenors had filed their
as parties defendants. Subsequently, Joaquin V. Gozun, Jr., respective memoranda, and the Republic, after several extensions
of time, had adopted as its memorandum its objections to the Defendants Castellvi and Toledo-Gozun filed not only a joint
report of the Commissioners, the trial court, on May 26, 1961, opposition to the approval of the Republic's record on appeal, but
rendered its decision 6 the dispositive portion of which reads as also a joint memorandum in support of their opposition. The
follows: Republic also filed a memorandum in support of its prayer for the
approval of its record on appeal. On December 27, 1961 the trial
WHEREFORE, taking into account all the court issued an order declaring both the record on appeal filed by
foregoing circumstances, and that the lands are the Republic, and the record on appeal filed by defendant Castellvi
titled, ... the rising trend of land values ..., and as having been filed out of time, thereby dismissing both appeals.
the lowered purchasing power of the Philippine
peso, the court finds that the unanimous On January 11, 1962 the Republic filed a "motion to strike out the
recommendation of the commissioners of ten order of December 27, 1961 and for reconsideration", and
(P10.00) pesos per square meter for the three subsequently an amended record on appeal, against which motion
lots of the defendants subject of this action is the defendants Castellvi and Toledo-Gozun filed their opposition.
fair and just. On July 26, 1962 the trial court issued an order, stating that "in the
interest of expediency, the questions raised may be properly and
xxx xxx xxx finally determined by the Supreme Court," and at the same time it
ordered the Solicitor General to submit a record on appeal
containing copies of orders and pleadings specified therein. In an
The plaintiff will pay 6% interest per annum on order dated November 19, 1962, the trial court approved the
the total value of the lands of defendant Toledo- Republic's record on appeal as amended.
Gozun since (sic) the amount deposited as
provisional value from August 10, 1959 until full
payment is made to said defendant or deposit Defendant Castellvi did not insist on her appeal. Defendant
therefor is made in court. Toledo-Gozun did not appeal.

In respect to the defendant Castellvi, interest at The motion to dismiss the Republic's appeal was reiterated by
6% per annum will also be paid by the plaintiff to appellees Castellvi and Toledo-Gozun before this Court, but this
defendant Castellvi from July 1, 1956 when Court denied the motion.
plaintiff commenced its illegal possession of the
Castellvi land when the instant action had not In her motion of August 11, 1964, appellee Castellvi sought to
yet been commenced to July 10, 1959 when the increase the provisional value of her land. The Republic, in its
provisional value thereof was actually deposited comment on Castellvi's motion, opposed the same. This Court
in court, on the total value of the said (Castellvi) denied Castellvi's motion in a resolution dated October 2,1964.
land as herein adjudged. The same rate of
interest shall be paid from July 11, 1959 on the The motion of appellees, Castellvi and Toledo-Gozun, dated
total value of the land herein adjudged minus October 6, 1969, praying that they be authorized to mortgage the
the amount deposited as provisional value, or lands subject of expropriation, was denied by this Court or
P151,859.80, such interest to run until full October 14, 1969.
payment is made to said defendant or deposit
therefor is made in court. All the intervenors
having failed to produce evidence in support of On February 14, 1972, Attys. Alberto Cacnio, and Associates,
their respective interventions, said interventions counsel for the estate of the late Don Alfonso de Castellvi in the
are ordered dismissed. expropriation proceedings, filed a notice of attorney's lien, stating
that as per agreement with the administrator of the estate of Don
Alfonso de Castellvi they shall receive by way of attorney's fees,
The costs shall be charged to the plaintiff. "the sum equivalent to ten per centum of whatever the court may
finally decide as the expropriated price of the property subject
On June 21, 1961 the Republic filed a motion for a new trial and/or matter of the case."
reconsideration, upon the grounds of newly-discovered evidence,
that the decision was not supported by the evidence, and that the ---------
decision was against the law, against which motion defendants
Castellvi and Toledo-Gozun filed their respective oppositions. On
July 8, 1961 when the motion of the Republic for new trial and/or Before this Court, the Republic contends that the lower court
reconsideration was called for hearing, the Republic filed a erred:
supplemental motion for new trial upon the ground of additional
newly-discovered evidence. This motion for new trial and/or 1. In finding the price of P10 per square meter of
reconsideration was denied by the court on July 12, 1961. the lands subject of the instant proceedings as
just compensation;
On July 17, 1961 the Republic gave notice of its intention to
appeal from the decision of May 26, 1961 and the order of July 12, 2. In holding that the "taking" of the properties
1961. Defendant Castellvi also filed, on July 17, 1961, her notice under expropriation commenced with the filing
of appeal from the decision of the trial court. of this action;

The Republic filed various ex-parte motions for extension of time 3. In ordering plaintiff-appellant to pay 6%
within which to file its record on appeal. The Republic's record on interest on the adjudged value of the Castellvi
appeal was finally submitted on December 6, 1961. property to start from July of 1956;
 4. In denying plaintiff-appellant's motion for new LESSOR has, and by these presents does,
trial based on newly discovered evidence. lease and let unto the LESSEE the following
described land together with the improvements
In its brief, the Republic discusses the second error assigned as thereon and appurtenances thereof, viz:
the first issue to be considered. We shall follow the sequence of
the Republic's discussion. Un Terreno, Lote No. 27 del Plano de
subdivision Psu 34752, parte de la hacienda de
1. In support of the assigned error that the lower court erred in Campauit, situado en el Barrio de San Jose,
holding that the "taking" of the properties under expropriation Municipio de Floridablanca Pampanga. ...
commenced with the filing of the complaint in this case, the midiendo una extension superficial de cuatro
Republic argues that the "taking" should be reckoned from the milliones once mil cuatro cientos trienta y cinco
year 1947 when by virtue of a special lease agreement between (4,001,435) [sic] metros cuadrados, mas o
the Republic and appellee Castellvi, the former was granted the menos.
"right and privilege" to buy the property should the lessor wish to
terminate the lease, and that in the event of such sale, it was Out of the above described property, 75.93
stipulated that the fair market value should be as of the time of hectares thereof are actually occupied and
occupancy; and that the permanent improvements amounting to covered by this contract. .
more that half a million pesos constructed during a period of
twelve years on the land, subject of expropriation, were indicative Above lot is more particularly described in TCT
of an agreed pattern of permanency and stability of occupancy by No. 1016, province of
the Philippine Air Force in the interest of national Security. 7 Pampanga ...

Appellee Castellvi, on the other hand, maintains that the "taking" of which premises, the LESSOR warrants that he/she/they/is/are
of property under the power of eminent domain requires two the registered owner(s) and with full authority to execute a
essential elements, to wit: (1) entrance and occupation by contract of this nature.
condemn or upon the private property for more than a momentary
or limited period, and (2) devoting it to a public use in such a way
as to oust the owner and deprive him of all beneficial enjoyment of 2. The term of this lease shall be for the period
the property. This appellee argues that in the instant case the first beginning July 1, 1952 the date the premises
element is wanting, for the contract of lease relied upon provides were occupied by the PHILIPPINE AIR FORCE,
for a lease from year to year; that the second element is also AFP until June 30, 1953, subject to renewal for
wanting, because the Republic was paying the lessor Castellvi a another year at the option of the LESSEE or
monthly rental of P445.58; and that the contract of lease does not unless sooner terminated by the LESSEE as
grant the Republic the "right and privilege" to buy the premises "at hereinafter provided.
the value at the time of occupancy." 8
3. The LESSOR hereby warrants that the
Appellee Toledo-Gozun did not comment on the Republic's LESSEE shall have quiet, peaceful and
argument in support of the second error assigned, because as far undisturbed possession of the demised
as she was concerned the Republic had not taken possession of premises throughout the full term or period of
her lands prior to August 10, 1959. 9 this lease and the LESSOR undertakes without
cost to the LESSEE to eject all trespassers, but
should the LESSOR fail to do so, the LESSEE
In order to better comprehend the issues raised in the appeal, in at its option may proceed to do so at the
so far as the Castellvi property is concerned, it should be noted expense of the LESSOR. The LESSOR further
that the Castellvi property had been occupied by the Philippine Air agrees that should he/she/they sell or encumber
Force since 1947 under a contract of lease, typified by the all or any part of the herein described premises
contract marked Exh. 4-Castellvi, the pertinent portions of which during the period of this lease, any conveyance
read: will be conditioned on the right of the LESSEE
hereunder.
CONTRACT OF LEASE
4. The LESSEE shall pay to the LESSOR as
This AGREEMENT OF LEASE MADE AND monthly rentals under this lease the sum of
ENTERED into by and between INTESTATE FOUR HUNDRED FIFTY-FIVE PESOS &
ESTATE OF ALFONSO DE CASTELLVI, 58/100 (P455.58) ...
represented by CARMEN M. DE CASTELLVI,
Judicial Administratrix ... hereinafter called the 5. The LESSEE may, at any time prior to the
LESSOR and THE REPUBLIC OF THE termination of this lease, use the property for
PHILIPPINES represented by MAJ. GEN. any purpose or purposes and, at its own costs
CALIXTO DUQUE, Chief of Staff of the ARMED and expense make alteration, install facilities
FORCES OF THE PHILIPPINES, hereinafter and fixtures and errect additions ... which
called the LESSEE, facilities or fixtures ... so placed in, upon or
attached to the said premises shall be and
WITNESSETH: remain property of the LESSEE and may be
removed therefrom by the LESSEE prior to the
1. For and in consideration of the rentals termination of this lease. The LESSEE shall
hereinafter reserved and the mutual terms, surrender possession of the premises upon the
covenants and conditions of the parties, the expiration or termination of this lease and if so
 required by the LESSOR, shall return the the premises in view of the permanent installations and other
premises in substantially the same condition as facilities worth almost P500,000.00 that were erected and already
that existing at the time same were first established on the property, and that, there being no other
occupied by the AFP, reasonable and ordinary recourse, the acquisition of the property by means of expropriation
wear and tear and damages by the elements or proceedings would be recommended to the President (Exhibit "7"
by circumstances over which the LESSEE has — Castellvi).
no control excepted: PROVIDED, that if the
LESSOR so requires the return of the premises Defendant Castellvi then brought suit in the Court of First Instance
in such condition, the LESSOR shall give written of Pampanga, in Civil Case No. 1458, to eject the Philippine Air
notice thereof to the LESSEE at least twenty Force from the land. While this ejectment case was pending, the
(20) days before the termination of the lease Republic instituted these expropriation proceedings, and, as
and provided, further, that should the LESSOR stated earlier in this opinion, the Republic was placed in
give notice within the time specified above, the possession of the lands on August 10, 1959, On November 21,
LESSEE shall have the right and privilege to 1959, the Court of First Instance of Pampanga, dismissed Civil
compensate the LESSOR at the fair value or the Case No. 1458, upon petition of the parties, in an order which, in
equivalent, in lieu of performance of its part, reads as follows:
obligation, if any, to restore the premises. Fair
value is to be determined as the value at the
time of occupancy less fair wear and tear and 1. Plaintiff has agreed, as a matter of fact has
depreciation during the period of this lease. already signed an agreement with defendants,
whereby she has agreed to receive the rent of
the lands, subject matter of the instant case
6. The LESSEE may terminate this lease at any from June 30, 1966 up to 1959 when the
time during the term hereof by giving written Philippine Air Force was placed in possession
notice to the LESSOR at least thirty (30) days in by virtue of an order of the Court upon
advance ... depositing the provisional amount as fixed by
the Provincial Appraisal Committee with the
7. The LESSEE should not be responsible, Provincial Treasurer of Pampanga;
except under special legislation for any
damages to the premises by reason of combat 2. That because of the above-cited agreement
operations, acts of GOD, the elements or other wherein the administratrix decided to get the
acts and deeds not due to the negligence on the rent corresponding to the rent from 1956 up to
part of the LESSEE. 1959 and considering that this action is one of
illegal detainer and/or to recover the possession
8. This LEASE AGREEMENT supersedes and of said land by virtue of non-payment of rents,
voids any and all agreements and undertakings, the instant case now has become moot and
oral or written, previously entered into between academic and/or by virtue of the agreement
the parties covering the property herein leased, signed by plaintiff, she has waived her cause of
the same having been merged herein. This action in the above-entitled case. 12
AGREEMENT may not be modified or altered
except by instrument in writing only duly signed The Republic urges that the "taking " of Castellvi's property should
by the parties. 10 be deemed as of the year 1947 by virtue of afore-quoted lease
agreement. In American Jurisprudence, Vol. 26, 2nd edition,
It was stipulated by the parties, that "the foregoing contract of Section 157, on the subject of "Eminent Domain, we read the
lease (Exh. 4, Castellvi) is 'similar in terms and conditions, definition of "taking" (in eminent domain) as follows:
including the date', with the annual contracts entered into from
year to year between defendant Castellvi and the Republic of the Taking' under the power of eminent domain may
Philippines (p. 17, t.s.n., Vol. III)". 11 It is undisputed, therefore, be defined generally as entering upon private
that the Republic occupied Castellvi's land from July 1, 1947, by property for more than a momentary period,
virtue of the above-mentioned contract, on a year to year basis and, under the warrant or color of legal
(from July 1 of each year to June 30 of the succeeding year) under authority, devoting it to a public use, or
the terms and conditions therein stated. otherwise informally appropriating or injuriously
affecting it in such a way as substantially to oust
Before the expiration of the contract of lease on June 30, 1956 the the owner and deprive him of all beneficial
Republic sought to renew the same but Castellvi refused. When enjoyment thereof. 13
the AFP refused to vacate the leased premises after the
termination of the contract, on July 11, 1956, Castellvi wrote to the Pursuant to the aforecited authority, a number of circumstances
Chief of Staff, AFP, informing the latter that the heirs of the must be present in the "taking" of property for purposes of eminent
property had decided not to continue leasing the property in domain.
question because they had decided to subdivide the land for sale
to the general public, demanding that the property be vacated
within 30 days from receipt of the letter, and that the premises be First, the expropriator must enter a private property. This
returned in substantially the same condition as before occupancy circumstance is present in the instant case, when by virtue of the
(Exh. 5 — Castellvi). A follow-up letter was sent on January 12, lease agreement the Republic, through the AFP, took possession
1957, demanding the delivery and return of the property within one of the property of Castellvi.
month from said date (Exh. 6 Castellvi). On January 30, 1957,
Lieutenant General Alfonso Arellano, Chief of Staff, answered the Second, the entrance into private property must be for more than
letter of Castellvi, saying that it was difficult for the army to vacate a momentary period. "Momentary" means, "lasting but a moment;
of but a moment's duration" (The Oxford English Dictionary, been paying, Castellvi the agreed monthly rentals until the time
Volume VI, page 596); "lasting a very short time; transitory; having when it filed the complaint for eminent domain on June 26, 1959.
a very brief life; operative or recurring at every moment"
(Webster's Third International Dictionary, 1963 edition.) The word It is clear, therefore, that the "taking" of Catellvi's property for
"momentary" when applied to possession or occupancy of (real) purposes of eminent domain cannot be considered to have taken
property should be construed to mean "a limited period" — not place in 1947 when the Republic commenced to occupy the
indefinite or permanent. The aforecited lease contract was for a property as lessee thereof. We find merit in the contention of
period of one year, renewable from year to year. The entry on the Castellvi that two essential elements in the "taking" of property
property, under the lease, is temporary, and considered transitory. under the power of eminent domain, namely: (1) that the entrance
The fact that the Republic, through the AFP, constructed some and occupation by the condemnor must be for a permanent, or
installations of a permanent nature does not alter the fact that the indefinite period, and (2) that in devoting the property to public use
entry into the land was transitory, or intended to last a year, the owner was ousted from the property and deprived of its
although renewable from year to year by consent of 'The owner of beneficial use, were not present when the Republic entered and
the land. By express provision of the lease agreement the occupied the Castellvi property in 1947.
Republic, as lessee, undertook to return the premises in
substantially the same condition as at the time the property was
first occupied by the AFP. It is claimed that the intention of the Untenable also is the Republic's contention that although the
lessee was to occupy the land permanently, as may be inferred contract between the parties was one of lease on a year to year
from the construction of permanent improvements. But this basis, it was "in reality a more or less permanent right to occupy
"intention" cannot prevail over the clear and express terms of the the premises under the guise of lease with the 'right and privilege'
lease contract. Intent is to be deduced from the language to buy the property should the lessor wish to terminate the lease,"
employed by the parties, and the terms 'of the contract, when and "the right to buy the property is merged as an integral part of
unambiguous, as in the instant case, are conclusive in the the lease relationship ... so much so that the fair market value has
absence of averment and proof of mistake or fraud — the question been agreed upon, not, as of the time of purchase, but as of the
being not what the intention was, but what is expressed in the time of occupancy" 15 We cannot accept the Republic's contention
language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. that a lease on a year to year basis can give rise to a permanent
515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348). right to occupy, since by express legal provision a lease made for
Moreover, in order to judge the intention of the contracting parties, a determinate time, as was the lease of Castellvi's land in the
their contemporaneous and subsequent acts shall be principally instant case, ceases upon the day fixed, without need of a
considered (Art. 1371, Civil Code). If the intention of the lessee demand (Article 1669, Civil Code). Neither can it be said that the
(Republic) in 1947 was really to occupy permanently Castellvi's right of eminent domain may be exercised by simply leasing the
property, why was the contract of lease entered into on year to premises to be expropriated (Rule 67, Section 1, Rules of Court).
year basis? Why was the lease agreement renewed from year to Nor can it be accepted that the Republic would enter into a
year? Why did not the Republic expropriate this land of Castellvi in contract of lease where its real intention was to buy, or why the
1949 when, according to the Republic itself, it expropriated the Republic should enter into a simulated contract of lease ("under
other parcels of land that it occupied at the same time as the the guise of lease", as expressed by counsel for the Republic)
Castellvi land, for the purpose of converting them into a jet air when all the time the Republic had the right of eminent domain,
base? 14 It might really have been the intention of the Republic to and could expropriate Castellvi's land if it wanted to without
expropriate the lands in question at some future time, but certainly resorting to any guise whatsoever. Neither can we see how a right
mere notice - much less an implied notice — of such intention on to buy could be merged in a contract of lease in the absence of
the part of the Republic to expropriate the lands in the future did any agreement between the parties to that effect. To sustain the
not, and could not, bind the landowner, nor bind the land itself. contention of the Republic is to sanction a practice whereby in
The expropriation must be actually commenced in court (Republic order to secure a low price for a land which the government
vs. Baylosis, et al., 96 Phil. 461, 484). intends to expropriate (or would eventually expropriate) it would
first negotiate with the owner of the land to lease the land (for say
ten or twenty years) then expropriate the same when the lease is
Third, the entry into the property should be under warrant or color about to terminate, then claim that the "taking" of the property for
of legal authority. This circumstance in the "taking" may be the purposes of the expropriation be reckoned as of the date when
considered as present in the instant case, because the Republic the Government started to occupy the property under the lease,
entered the Castellvi property as lessee. and then assert that the value of the property being expropriated
be reckoned as of the start of the lease, in spite of the fact that the
Fourth, the property must be devoted to a public use or otherwise value of the property, for many good reasons, had in the
informally appropriated or injuriously affected. It may be conceded meantime increased during the period of the lease. This would be
that the circumstance of the property being devoted to public use sanctioning what obviously is a deceptive scheme, which would
is present because the property was used by the air force of the have the effect of depriving the owner of the property of its true
AFP. and fair market value at the time when the expropriation
proceedings were actually instituted in court. The Republic's claim
Fifth, the utilization of the property for public use must be in such a that it had the "right and privilege" to buy the property at the value
way as to oust the owner and deprive him of all beneficial that it had at the time when it first occupied the property as lessee
enjoyment of the property. In the instant case, the entry of the nowhere appears in the lease contract. What was agreed
Republic into the property and its utilization of the same for public expressly in paragraph No. 5 of the lease agreement was that,
use did not oust Castellvi and deprive her of all beneficial should the lessor require the lessee to return the premises in the
enjoyment of the property. Castellvi remained as owner, and was same condition as at the time the same was first occupied by the
continuously recognized as owner by the Republic, as shown by AFP, the lessee would have the "right and privilege" (or option) of
the renewal of the lease contract from year to year, and by the paying the lessor what it would fairly cost to put the premises in
provision in the lease contract whereby the Republic undertook to the same condition as it was at the commencement of the lease,
return the property to Castellvi when the lease was terminated. in lieu of the lessee's performance of the undertaking to put the
Neither was Castellvi deprived of all the beneficial enjoyment of land in said condition. The "fair value" at the time of occupancy,
the property, because the Republic was bound to pay, and had mentioned in the lease agreement, does not refer to the value of
the property if bought by the lessee, but refers to the cost of had actually taken steps to convert their lands into residential
restoring the property in the same condition as of the time when subdivisions even before the Republic filed the complaint for
the lessee took possession of the property. Such fair value cannot eminent domain. In the case of City of Manila vs. Corrales (32
refer to the purchase price, for purchase was never intended by Phil. 82, 98) this Court laid down basic guidelines in determining
the parties to the lease contract. It is a rule in the interpretation of the value of the property expropriated for public purposes. This
contracts that "However general the terms of a contract may be, Court said:
they shall not be understood to comprehend things that are
distinct and cases that are different from those upon which the In determining the value of land appropriated for
parties intended to agree" (Art. 1372, Civil Code). public purposes, the same consideration are to
be regarded as in a sale of property between
We hold, therefore, that the "taking" of the Castellvi property private parties. The inquiry, in such cases, must
should not be reckoned as of the year 1947 when the Republic be what is the property worth in the market,
first occupied the same pursuant to the contract of lease, and that viewed not merely with reference to the uses to
the just compensation to be paid for the Castellvi property should which it is at the time applied, but with reference
not be determined on the basis of the value of the property as of to the uses to which it is plainly adapted, that is
that year. The lower court did not commit an error when it held that to say, What is it worth from its availability for
the "taking" of the property under expropriation commenced with valuable uses?
the filing of the complaint in this case.
So many and varied are the circumstances to be
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just taken into account in determining the value of
compensation" is to be determined as of the date of the filing of property condemned for public purposes, that it
the complaint. This Court has ruled that when the taking of the is practically impossible to formulate a rule to
property sought to be expropriated coincides with the govern its appraisement in all cases.
commencement of the expropriation proceedings, or takes place Exceptional circumstances will modify the most
subsequent to the filing of the complaint for eminent domain, the carefully guarded rule, but, as a general thing,
just compensation should be determined as of the date of the filing we should say that the compensation of the
of the complaint. (Republic vs. Philippine National Bank, L-14158, owner is to be estimated by reference to the use
April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it is for which the property is suitable, having regard
undisputed that the Republic was placed in possession of the to the existing business or wants of the
Castellvi property, by authority of the court, on August 10, 1959. community, or such as may be reasonably
The "taking" of the Castellvi property for the purposes of expected in the immediate future. (Miss. and
determining the just compensation to be paid must, therefore, be Rum River Boom Co. vs. Patterson, 98 U.S.,
reckoned as of June 26, 1959 when the complaint for eminent 403).
domain was filed.
In expropriation proceedings, therefore, the owner of the land has
Regarding the two parcels of land of Toledo-Gozun, also sought to the right to its value for the use for which it would bring the most in
be expropriated, which had never been under lease to the the market. 17 The owner may thus show every advantage that his
Republic, the Republic was placed in possession of said lands, property possesses, present and prospective, in order that the
also by authority of the court, on August 10, 1959, The taking of price it could be sold for in the market may be satisfactorily
those lands, therefore, must also be reckoned as of June 26, determined. 18 The owner may also show that the property is
1959, the date of the filing of the complaint for eminent domain. suitable for division into village or town lots. 19

2. Regarding the first assigned error — discussed as the second The trial court, therefore, correctly considered, among other
issue — the Republic maintains that, even assuming that the circumstances, the proposed subdivision plans of the lands sought
value of the expropriated lands is to be determined as of June 26, to be expropriated in finding that those lands are residential lots.
1959, the price of P10.00 per square meter fixed by the lower This finding of the lower court is supported not only by the
court "is not only exhorbitant but also unconscionable, and almost unanimous opinion of the commissioners, as embodied in their
fantastic". On the other hand, both Castellvi and Toledo-Gozun report, but also by the Provincial Appraisal Committee of the
maintain that their lands are residential lands with a fair market province of Pampanga composed of the Provincial Treasurer, the
value of not less than P15.00 per square meter. Provincial Auditor and the District Engineer. In the minutes of the
meeting of the Provincial Appraisal Committee, held on May 14,
The lower court found, and declared, that the lands of Castellvi 1959 (Exh. 13-Castellvi) We read in its Resolution No. 10 the
and Toledo-Gozun are residential lands. The finding of the lower following:
court is in consonance with the unanimous opinion of the three
commissioners who, in their report to the court, declared that the 3. Since 1957 the land has been classified as
lands are residential lands. residential in view of its proximity to the air base
and due to the fact that it was not being devoted
The Republic assails the finding that the lands are residential, to agriculture. In fact, there is a plan to convert it
contending that the plans of the appellees to convert the lands into into a subdivision for residential purposes. The
subdivision for residential purposes were only on paper, there taxes due on the property have been paid based
being no overt acts on the part of the appellees which indicated on its classification as residential land;
that the subdivision project had been commenced, so that any
compensation to be awarded on the basis of the plans would be The evidence shows that Castellvi broached the idea of
speculative. The Republic's contention is not well taken. We find subdividing her land into residential lots as early as July 11, 1956
evidence showing that the lands in question had ceased to be in her letter to the Chief of Staff of the Armed Forces of the
devoted to the production of agricultural crops, that they had Philippines. (Exh. 5-Castellvi) As a matter of fact, the layout of the
become adaptable for residential purposes, and that the appellees subdivision plan was tentatively approved by the National
Planning Commission on September 7, 1956. (Exh. 8-Castellvi). taxation purposes at around P400.00 per hectare, or P.04 per
The land of Castellvi had not been devoted to agriculture since square meter. 22 While the lands involved in the present case, like
1947 when it was leased to the Philippine Army. In 1957 said land the lands involved in the Narciso case, might have a fair market
was classified as residential, and taxes based on its classification value of P.20 per square meter in 1949, it can not be denied that
as residential had been paid since then (Exh. 13-Castellvi). The ten years later, in 1959, when the present proceedings were
location of the Castellvi land justifies its suitability for a residential instituted, the value of those lands had increased considerably.
subdivision. As found by the trial court, "It is at the left side of the The evidence shows that since 1949 those lands were no longer
entrance of the Basa Air Base and bounded on two sides by roads cultivated as sugar lands, and in 1959 those lands were already
(Exh. 13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the classified, and assessed for taxation purposes, as residential
poblacion, (of Floridablanca) the municipal building, and the lands. In 1959 the land of Castellvi was assessed at P1.00 per
Pampanga Sugar Mills are closed by. The barrio schoolhouse and square meter. 23
chapel are also near (T.S.N. November 23,1960, p. 68)." 20
The Republic also points out that the Provincial Appraisal
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of Committee of Pampanga, in its resolution No. 5 of February 15,
the same condition as the land of Castellvi. The lands of Toledo- 1957 (Exhibit D), recommended the sum of P.20 per square meter
Gozun adjoin the land of Castellvi. They are also contiguous to the as the fair valuation of the Castellvi property. We find that this
Basa Air Base, and are along the road. These lands are near the resolution was made by the Republic the basis in asking the court
barrio schoolhouse, the barrio chapel, the Pampanga Sugar Mills, to fix the provisional value of the lands sought to be expropriated
and the poblacion of Floridablanca (Exhs. 1, 3 and 4-Toledo- at P259,669.10, which was approved by the court. 24 It must be
Gozun). As a matter of fact, regarding lot 1-B it had already been considered, however, that the amount fixed as the provisional
surveyed and subdivided, and its conversion into a residential value of the lands that are being expropriated does not necessarily
subdivision was tentatively approved by the National Planning represent the true and correct value of the land. The value is only
Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As "provisional" or "tentative", to serve as the basis for the immediate
early as June, 1958, no less than 32 man connected with the occupancy of the property being expropriated by the condemnor.
Philippine Air Force among them commissioned officers, non- The records show that this resolution No. 5 was repealed by the
commission officers, and enlisted men had requested Mr. and same Provincial Committee on Appraisal in its resolution No. 10 of
Mrs. Joaquin D. Gozun to open a subdivision on their lands in May 14, 1959 (Exhibit 13-Castellvi). In that resolution No. 10, the
question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21 appraisal committee stated that "The Committee has observed
that the value of the land in this locality has increased since 1957
We agree with the findings, and the conclusions, of the lower court ...", and recommended the price of P1.50 per square meter. It
that the lands that are the subject of expropriation in the present follows, therefore, that, contrary to the stand of the Republic, that
case, as of August 10, 1959 when the same were taken resolution No. 5 of the Provincial Appraisal Committee can not be
possession of by the Republic, were residential lands and were made the basis for fixing the fair market value of the lands of
adaptable for use as residential subdivisions. Indeed, the owners Castellvi and Toledo-Gozun.
of these lands have the right to their value for the use for which
they would bring the most in the market at the time the same were The Republic further relied on the certification of the Acting
taken from them. The most important issue to be resolved in the Assistant Provincial Assessor of Pampanga, dated February 8,
present case relates to the question of what is the just 1961 (Exhibit K), to the effect that in 1950 the lands of Toledo-
compensation that should be paid to the appellees. Gozun were classified partly as sugar land and partly as urban
land, and that the sugar land was assessed at P.40 per square
The Republic asserts that the fair market value of the lands of the meter, while part of the urban land was assessed at P.40 per
appellees is P.20 per square meter. The Republic cites the case square meter and part at P.20 per square meter; and that in 1956
of Republic vs. Narciso, et al., L-6594, which this Court decided on the Castellvi land was classified as sugar land and was assessed
May 18, 1956. The Narciso case involved lands that belonged to at P450.00 per hectare, or P.045 per square meter. We can not
Castellvi and Toledo-Gozun, and to one Donata Montemayor, also consider this certification of the Acting Assistant Provincial
which were expropriated by the Republic in 1949 and which are Assessor as a basis for fixing the fair market value of the lands of
now the site of the Basa Air Base. In the Narciso case this Court Castellvi and Toledo-Gozun because, as the evidence shows, the
fixed the fair market value at P.20 per square meter. The lands lands in question, in 1957, were already classified and assessed
that are sought to be expropriated in the present case being for taxation purposes as residential lands. The certification of the
contiguous to the lands involved in the Narciso case, it is the stand assessor refers to the year 1950 as far as the lands of Toledo-
of the Republic that the price that should be fixed for the lands Gozun are concerned, and to the year 1956 as far as the land of
now in question should also be at P.20 per square meter. Castellvi is concerned. Moreover, this Court has held that the
valuation fixed for the purposes of the assessment of the land for
taxation purposes can not bind the landowner where the latter did
We can not sustain the stand of the Republic. We find that the not intervene in fixing it. 25
price of P.20 per square meter, as fixed by this Court in the
Narciso case, was based on the allegation of the defendants
(owners) in their answer to the complaint for eminent domain in On the other hand, the Commissioners, appointed by the court to
that case that the price of their lands was P2,000.00 per hectare appraise the lands that were being expropriated, recommended to
and that was the price that they asked the court to pay them. This the court that the price of P10.00 per square meter would be the
Court said, then, that the owners of the land could not be given fair market value of the lands. The commissioners made their
more than what they had asked, notwithstanding the recommendation on the basis of their observation after several
recommendation of the majority of the Commission on Appraisal ocular inspections of the lands, of their own personal knowledge of
— which was adopted by the trial court — that the fair market land values in the province of Pampanga, of the testimonies of the
value of the lands was P3,000.00 per hectare. We also find that owners of the land, and other witnesses, and of documentary
the price of P.20 per square meter in the Narciso case was evidence presented by the appellees. Both Castellvi and Toledo-
considered the fair market value of the lands as of the year 1949 Gozun testified that the fair market value of their respective land
when the expropriation proceedings were instituted, and at that was at P15.00 per square meter. The documentary evidence
time the lands were classified as sugar lands, and assessed for considered by the commissioners consisted of deeds of sale of
residential lands in the town of San Fernando and in Angeles City, of land values, and the lowered purchasing power of the Philippine
in the province of Pampanga, which were sold at prices ranging peso.
from P8.00 to P20.00 per square meter (Exhibits 15, 16, 17, 18,
19, 20, 21, 22, 23-Castellvi). The commissioners also considered In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326,
the decision in Civil Case No. 1531 of the Court of First Instance 328, this Court said:
of Pampanga, entitled Republic vs. Sabina Tablante, which was
expropriation case filed on January 13, 1959, involving a parcel of
land adjacent to the Clark Air Base in Angeles City, where the A court of first instance or, on appeal, the
court fixed the price at P18.00 per square meter (Exhibit 14- Supreme Court, may change or modify the
Castellvi). In their report, the commissioners, among other things, report of the commissioners by increasing or
said: reducing the amount of the award if the facts of
the case so justify. While great weight is
attached to the report of the commissioners, yet
... This expropriation case is specially pointed a court may substitute therefor its estimate of
out, because the circumstances and factors the value of the property as gathered from the
involved therein are similar in many respects to record in certain cases, as, where the
the defendants' lands in this case. The land in commissioners have applied illegal principles to
Civil Case No. 1531 of this Court and the lands the evidence submitted to them, or where they
in the present case (Civil Case No. 1623) are have disregarded a clear preponderance of
both near the air bases, the Clark Air Base and evidence, or where the amount allowed is either
the Basa Air Base respectively. There is a palpably inadequate or excessive. 28
national road fronting them and are situated in a
first-class municipality. As added advantage it
may be said that the Basa Air Base land is very The report of the commissioners of appraisal in condemnation
near the sugar mill at Del Carmen, proceedings are not binding, but merely advisory in character, as
Floridablanca, Pampanga, owned by the far as the court is concerned. 29 In our analysis of the report of the
Pampanga Sugar Mills. Also just stone's throw commissioners, We find points that merit serious consideration in
away from the same lands is a beautiful the determination of the just compensation that should be paid to
vacation spot at Palacol, a sitio of the town of Castellvi and Toledo-Gozun for their lands. It should be noted that
Floridablanca, which counts with a natural the commissioners had made ocular inspections of the lands and
swimming pool for vacationists on weekends. had considered the nature and similarities of said lands in relation
These advantages are not found in the case of to the lands in other places in the province of Pampanga, like San
the Clark Air Base. The defendants' lands are Fernando and Angeles City. We cannot disregard the
nearer to the poblacion of Floridablanca then observations of the commissioners regarding the circumstances
Clark Air Base is nearer (sic) to the poblacion of that make the lands in question suited for residential purposes —
Angeles, Pampanga. their location near the Basa Air Base, just like the lands in Angeles
City that are near the Clark Air Base, and the facilities that obtain
because of their nearness to the big sugar central of the
The deeds of absolute sale, according to the Pampanga Sugar mills, and to the flourishing first class town of
undersigned commissioners, as well as the land Floridablanca. It is true that the lands in question are not in the
in Civil Case No. 1531 are competent evidence, territory of San Fernando and Angeles City, but, considering the
because they were executed during the year facilities of modern communications, the town of Floridablanca
1959 and before August 10 of the same year. may be considered practically adjacent to San Fernando and
More specifically so the land at Clark Air Base Angeles City. It is not out of place, therefore, to compare the land
which coincidentally is the subject matter in the values in Floridablanca to the land values in San Fernando and
complaint in said Civil Case No. 1531, it having Angeles City, and form an idea of the value of the lands in
been filed on January 13, 1959 and the taking of Floridablanca with reference to the land values in those two other
the land involved therein was ordered by the communities.
Court of First Instance of Pampanga on January
15, 1959, several months before the lands in
this case were taken by the plaintiffs .... The important factor in expropriation proceeding is that the owner
is awarded the just compensation for his property. We have
carefully studied the record, and the evidence, in this case, and
From the above and considering further that the after considering the circumstances attending the lands in
lowest as well as the highest price per square question We have arrived at the conclusion that the price of
meter obtainable in the market of Pampanga P10.00 per square meter, as recommended by the commissioners
relative to subdivision lots within its jurisdiction and adopted by the lower court, is quite high. It is Our considered
in the year 1959 is very well known by the view that the price of P5.00 per square meter would be a fair
Commissioners, the Commission finds that the valuation of the lands in question and would constitute a just
lowest price that can be awarded to the lands in compensation to the owners thereof. In arriving at this conclusion
question is P10.00 per square meter. 26 We have particularly taken into consideration the resolution of the
Provincial Committee on Appraisal of the province of Pampanga
The lower court did not altogether accept the findings of the informing, among others, that in the year 1959 the land of Castellvi
Commissioners based on the documentary evidence, but it could be sold for from P3.00 to P4.00 per square meter, while the
considered the documentary evidence as basis for comparison in land of Toledo-Gozun could be sold for from P2.50 to P3.00 per
determining land values. The lower court arrived at the conclusion square meter. The Court has weighed all the circumstances
that "the unanimous recommendation of the commissioners of ten relating to this expropriations proceedings, and in fixing the price
(P10.00) pesos per square meter for the three lots of the of the lands that are being expropriated the Court arrived at a
defendants subject of this action is fair and just". 27 In arriving at its happy medium between the price as recommended by the
conclusion, the lower court took into consideration, among other commissioners and approved by the court, and the price
circumstances, that the lands are titled, that there is a rising trend advocated by the Republic. This Court has also taken judicial
notice of the fact that the value of the Philippine peso has sold to Pablo L. Narciso a parcel of sugar land having an area of
considerably gone down since the year 1959. 30Considering that 100,000 square meters with a sugar quota of 100 piculs, covered
the lands of Castellvi and Toledo-Gozun are adjoining each other, by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for
and are of the same nature, the Court has deemed it proper to fix P14,000, or P.14 per square meter.
the same price for all these lands.
In the supplemental motion, the alleged newly discovered
3. The third issue raised by the Republic relates evidence were: (1) a deed of sale of some 35,000 square meters
to the payment of interest. The Republic of land situated at Floridablanca for P7,500.00 (or about P.21 per
maintains that the lower court erred when it square meter) executed in July, 1959, by the spouses Evelyn D.
ordered the Republic to pay Castellvi interest at Laird and Cornelio G. Laird in favor of spouses Bienvenido S.
the rate of 6% per annum on the total amount Aguas and Josefina Q. Aguas; and (2) a deed of absolute sale of
adjudged as the value of the land of Castellvi, a parcel of land having an area of 4,120,101 square meters,
from July 1, 1956 to July 10, 1959. We find merit including the sugar quota covered by Plantation Audit No. 161
in this assignment of error. 1345, situated at Floridablanca, Pampanga, for P860.00 per
hectare (a little less than P.09 per square meter) executed on
In ordering the Republic to pay 6% interest on the total value of October 22, 1957 by Jesus Toledo y Mendoza in favor of the Land
the land of Castellvi from July 1, 1956 to July 10, 1959, the lower Tenure Administration.
court held that the Republic had illegally possessed the land of
Castellvi from July 1, 1956, after its lease of the land had expired We find that the lower court acted correctly when it denied the
on June 30, 1956, until August 10, 1959 when the Republic was motions for a new trial.
placed in possession of the land pursuant to the writ of possession
issued by the court. What really happened was that the Republic To warrant the granting of a new trial based on the ground of
continued to occupy the land of Castellvi after the expiration of its newly discovered evidence, it must appear that the evidence was
lease on June 30, 1956, so much so that Castellvi filed an discovered after the trial; that even with the exercise of due
ejectment case against the Republic in the Court of First Instance diligence, the evidence could not have been discovered and
of Pampanga. 31 However, while that ejectment case was pending, produced at the trial; and that the evidence is of such a nature as
the Republic filed the complaint for eminent domain in the present to alter the result of the case if admitted. 32 The lower court
case and was placed in possession of the land on August 10, correctly ruled that these requisites were not complied with.
1959, and because of the institution of the expropriation
proceedings the ejectment case was later dismissed. In the order
dismissing the ejectment case, the Court of First Instance of The lower court, in a well-reasoned order, found that the sales
Pampanga said: made by Serafin Francisco to Pablo Narciso and that made by
Jesus Toledo to the Land Tenure Administration were immaterial
and irrelevant, because those sales covered sugarlands with
Plaintiff has agreed, as a matter of fact has sugar quotas, while the lands sought to be expropriated in the
already signed an agreement with defendants, instant case are residential lands. The lower court also concluded
whereby she had agreed to receive the rent of that the land sold by the spouses Laird to the spouses Aguas was
the lands, subject matter of the instant case a sugar land.
from June 30, 1956 up to 1959 when the
Philippine Air Force was placed in possession
by virtue of an order of the Court upon We agree with the trial court. In eminent domain proceedings, in
depositing the provisional amount as fixed by order that evidence as to the sale price of other lands may be
the Provincial Appraisal Committee with the admitted in evidence to prove the fair market value of the land
Provincial Treasurer of sought to be expropriated, the lands must, among other things, be
Pampanga; ... shown to be similar.

If Castellvi had agreed to receive the rentals from June 30, 1956 But even assuming, gratia argumenti, that the lands mentioned in
to August 10, 1959, she should be considered as having allowed those deeds of sale were residential, the evidence would still not
her land to be leased to the Republic until August 10, 1959, and warrant the grant of a new trial, for said evidence could have been
she could not at the same time be entitled to the payment of discovered and produced at the trial, and they cannot be
interest during the same period on the amount awarded her as the considered newly discovered evidence as contemplated in Section
just compensation of her land. The Republic, therefore, should pay 1(b) of Rule 37 of the Rules of Court. Regarding this point, the trial
Castellvi interest at the rate of 6% per annum on the value of her court said:
land, minus the provisional value that was deposited, only from
July 10, 1959 when it deposited in court the provisional value of The Court will now show that there was no
the land. reasonable diligence employed.

4. The fourth error assigned by the Republic relates to the denial The land described in the deed of sale executed
by the lower court of its motion for a new trial based on nearly by Serafin Francisco, copy of which is attached
discovered evidence. We do not find merit in this assignment of to the original motion, is covered by a Certificate
error. of Title issued by the Office of the Register of
Deeds of Pampanga. There is no question in the
After the lower court had decided this case on May 26, 1961, the mind of the court but this document passed
Republic filed a motion for a new trial, supplemented by another through the Office of the Register of Deeds for
motion, both based upon the ground of newly discovered the purpose of transferring the title or annotating
evidence. The alleged newly discovered evidence in the motion the sale on the certificate of title. It is true that
filed on June 21, 1961 was a deed of absolute sale-executed on Fiscal Lagman went to the Office of the Register
January 25, 1961, showing that a certain Serafin Francisco had of Deeds to check conveyances which may be
presented in the evidence in this case as it is ... This was before the decision was rendered,
now sought to be done by virtue of the motions and later promulgated on May 26, 1961 or more
at bar, Fiscal Lagman, one of the lawyers of the than one month after Solicitor Padua made the
plaintiff, did not exercise reasonable diligence above observation. He could have, therefore,
as required by the rules. The assertion that he checked up the alleged sale and moved for a
only went to the office of the Register of Deeds reopening to adduce further evidence. He did
'now and then' to check the records in that office not do so. He forgot to present the evidence at a
only shows the half-hazard [sic] manner by more propitious time. Now, he seeks to
which the plaintiff looked for evidence to be introduce said evidence under the guise of
presented during the hearing before the newly-discovered evidence. Unfortunately the
Commissioners, if it is at all true that Fiscal Court cannot classify it as newly-discovered
Lagman did what he is supposed to have done evidence, because tinder the circumstances, the
according to Solicitor Padua. It would have been correct qualification that can be given is
the easiest matter for plaintiff to move for the 'forgotten evidence'. Forgotten however, is not
issuance of a subpoena duces tecum directing newly-discovered
the Register of Deeds of Pampanga to come to evidence. 33
testify and to bring with him all documents found
in his office pertaining to sales of land in The granting or denial of a motion for new trial is, as a general
Floridablanca adjacent to or near the lands in rule, discretionary with the trial court, whose judgment should not
question executed or recorded from 1958 to the be disturbed unless there is a clear showing of abuse of
present. Even this elementary precaution was discretion. 34 We do not see any abuse of discretion on the part of
not done by plaintiff's numerous attorneys. the lower court when it denied the motions for a new trial.

The same can be said of the deeds of sale WHEREFORE, the decision appealed from is modified, as follows:
attached to the supplementary motion. They
refer to lands covered by certificate of title
issued by the Register of Deeds of Pampanga. (a) the lands of appellees Carmen Vda. de
For the same reason they could have been Castellvi and Maria Nieves Toledo-Gozun, as
easily discovered if reasonable diligence has described in the complaint, are declared
been exerted by the numerous lawyers of the expropriated for public use;
plaintiff in this case. It is noteworthy that all
these deeds of sale could be found in several (b) the fair market value of the lands of the
government offices, namely, in the Office of the appellees is fixed at P5.00 per square meter;
Register of Deeds of Pampanga, the Office of
the Provincial Assessor of Pampanga, the Office (c) the Republic must pay appellee Castellvi the
of the Clerk of Court as a part of notarial reports sum of P3,796,495.00 as just compensation for
of notaries public that acknowledged these her one parcel of land that has an area of
documents, or in the archives of the National 759,299 square meters, minus the sum of
Library. In respect to Annex 'B' of the P151,859.80 that she withdrew out of the
supplementary motion copy of the document amount that was deposited in court as the
could also be found in the Office of the Land provisional value of the land, with interest at the
Tenure Administration, another government rate of 6% per annum from July 10, 1959 until
entity. Any lawyer with a modicum of ability the day full payment is made or deposited in
handling this expropriation case would have court;
right away though [sic] of digging up documents
diligently showing conveyances of lands near or
around the parcels of land sought to be (d) the Republic must pay appellee Toledo-
expropriated in this case in the offices that Gozun the sum of P2,695,225.00 as the just
would have naturally come to his mind such as compensation for her two parcels of land that
the offices mentioned above, and had counsel have a total area of 539,045 square meters,
for the movant really exercised the reasonable minus the sum of P107,809.00 that she
diligence required by the Rule' undoubtedly they withdrew out of the amount that was deposited
would have been able to find these documents in court as the provisional value of her lands,
and/or caused the issuance of subpoena duces with interest at the rate of 6%, per annum from
tecum. ... July 10, 1959 until the day full payment is made
or deposited in court; (e) the attorney's lien of
Atty. Alberto Cacnio is enforced; and
It is also recalled that during the hearing before
the Court of the Report and Recommendation of
the Commissioners and objection thereto, (f) the costs should be paid by appellant
Solicitor Padua made the observation: Republic of the Philippines, as provided in
Section 12, Rule 67, and in Section 13, Rule
141, of the Rules of Court.
I understand, Your Honor, that there was a sale
that took place in this place of land recently
where the land was sold for P0.20 which is IT IS SO ORDERED.
contiguous to this land.
Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muñoz
The Court gave him permission to submit said Palma and Aquino, JJ., concur.
document subject to the approval of the Court.
Castro, Fernando, Teehankee and Makasiar, JJ., took no part. 1. That on the 15th of January, 1906, the plaintiff, as owner of the
property situated on the Escolta, district of Binondo, city of Manila,
the eastern boundary of which adjoins the canal of San Jacinto or
Sibacon to the extent of 23.50 meters, the total area of the ground
being 658.19 square meters, applied to the city engineer, Robert
REPUBLIC VS. VDA. DE CASTELLVI, digested G. Dieck, the defendant herein, for a license to construct a terrace
over "the strip of land 3 meters in width between the main wall of
Posted by Pius Morados on November 7, 2011
her house and the edge of the said canal of Sibacon or San
GR # L-20620 August 15, 1974 (Constitutional Law – Eminent Jacinto, which strip of land belongs exclusively to her"; but the
Domain, Elements of Taking) defendant refused to grant the license or authorize the plaintiff to
FACTS: After the owner of a parcel of land that has been rented build the terrace.
and occupied by the government in 1947 refused to extend the
lease, the latter commenced expropriation proceedings in 1959. 2. That a similar petition was addressed to the Municipal Board of
During the assessment of just compensation, the government the city of Manila on the 30th of said month and year, and it also
argued that it had taken the property when the contract of lease was denied.
commenced and not when the proceedings begun. The owner
maintains that the disputed land was not taken when the 3. That, as the plaintiff has been informed, the sole reason
government commenced to occupy the said land as lessee wherefore the license was denied is because "the said defendants
because the essential elements of the “taking” of property under pretend to compel the plaintiff to leave vacant and without any
the power of eminent domain, namely (1) entrance and occupation construction whatever thereon the said strip of 3 meters in width
by condemnor upon the private property for more than a which is a portion of the ground belonging to her, in order to use
momentary period, and (2) devoting it to a public use in such a the same as the wharf or public way so that the plaintiff will only
way as to oust the owner and deprive him of all beneficial be able to use the said strip in the same manner and for the same
enjoyment of the property, are not present. purposes as the public in general, thus losing the enjoyment, use,
and exclusive possession of the said strip of the property which
ISSUE: Whether or not the taking of property has taken place the plaintiff and the former owners thereof have enjoyed quietly
when the condemnor has entered and occupied the property as and peacefully during more than seventy years."
lesse.
4. That the strip in question was occupied by a two-storey building
HELD: No, the property was deemed taken only when the
constructed more than seventy years ago.
expropriation proceedings commenced in 1959.

The essential elements of the taking are: (1) Expropriator must It appears from the evidence:
enter a private property, (2) for more than a momentary period, (3)
and under warrant of legal authority, (4) devoting it to public use, First. That the plaintiff's ownership of the whole ground and of the
or otherwise informally appropriating or injuriously affecting it in strip in question is beyond all doubt, both by reason of her title
such a way as (5) substantially to oust the owner and deprive him thereto and the entry thereof in the registry of property, and by the
of all beneficial enjoyment thereof. acknowledgment thereof made by the city itself when obtaining by
means of condemnation proceedings a portion of the same
In the case at bar, these elements were not present when the property adjoining the public road.
government entered and occupied the property under a contract of
lease. Second. That as a matter of fact, the license which the plaintiff,
using her right of ownership, requested for the construction of a
terrace on the strip of 3 meters adjoining the canal of San Jacinto
or Sibacon, was denied; both parties agreeing that the denial was
G.R. No. L-3144 November 19, 1907 due to the intent to reserve the said strip for the establishment of a
public easement, although the opposing witnesses did not agree
as to the special easement intended to be established.
CARMEN AYALA DE ROXAS and PEDRO P. ROXAS, plaintiffs,
vs.
THE CITY OF MANILA and ROBERT G. DIECK, as city Third. That it was agreed between both parties that the strip above
engineer, defendants. referred to had not been expropriated in whole or in part by the
municipality of Manila, and that neither had the latter offered any
compensation for the same to the owner thereof.
Del-Pan, Ortigas and Fisher, for plaintiffs.
Modesto Reyes, for defendants.
Fourth. That according to Engineer Dieck, a defendant, the
purpose of the city was to use the said strip of 3 meters as a place
for discharging and landing goods, and as a place of shelter for
shipwrecked persons and for fishermen, and to devote it also,
ARELLANO, C.J.: together with other strips along the canal, by the gradual
acquisition of land, to a towpath for craft passing through the
The defendants' demurred to the amended complaint having been canal; that a building line has been established by the Municipal
overruled, an answer was presented, and the trial of the case Board along the Sibacon Creek leaving a strip of 3 meters within
proceeded with. which, according to ordinances, no constructions would be
permitted; that such is the purpose and the intent on which the
existing ordinances are based. But John Tuther, the secretary of
Briefly, the subject of this action may be stated as follows: the Municipal Board, declares that, when Ordinance No. 78 was
under discussion, he does not recall having heard any of the
members of the board make reference to a towpath nor did he remembered that the law does not grant it along navigable canals
ever hear anything said with reference to the purpose to which the (art. 157), and, at all events, the establishment thereof must be
strip of 3 meters mentioned in Ordinance No. 78 was to be preceded by the corresponding indemnity. (Arts. 154 and 157.)
devoted, though he believes that, by thus leaving a strip of 3
meters, it would be easier to prevent collisions; that it would The matter at issue herein being the enforcement of the Law of
facilitate navigation, and that it had never been the intention of the Waters and of the Civil Code, it is not out of place nor untimely,
Board to indemnify the owners of such strips of 3 meters by even now, to point out the administrative law which ought to have
reason of the use which parties landing thereon may make of the been applied had this act of the city of Manila been carried out by
same. the late ayuntamiento during the former sovereignty; an
administrative law which, owing to its having been so often
Fifth. That, as stated in the brief of the defendants, "the intention repeated, is now raised to the rank of an incontrovertible principle
of the Municipal Board, when denying the permit asked for by the of law on the matter.
plaintiff, has never been to establish any way whatever along the
Sibacon Creek so that said plaintiff could, if she chose to, close The powers of the administration do not extend to the
her property with walls or the like perpendicularly to said creek, establishment of new easements upon private property
that is, over the two lines perpendicular to said creek, but simply to preserve old ones, whenever a recent and
provided she does not close or build over the 3-meter space easily proven usurpation exists. (Decision of January 23,
running along the creek," which space is subject, as stated in the 1866.) lawphil.net
evidence submitted by the defendants, to the "easement of public
use for the general interest of navigation, flotation, fishing, and
salvage," citing the Law of Waters and the Civil Code. Ayuntamientos are not authorized to impose an
easement upon private property; therefore, any order
thus given can not be held to have been issued in the
Sixth. And that the result is, according to No. 19 of the statement exercise of their lawful powers. (Decision of July 28,
of facts of the complaint, "that the plaintiff shall only be able to use 1866.)
said strip in the same manner and for the same purposes as the
general public, thus losing the enjoyment, use, and exclusive
possession of said strip of the ground which the plaintiff and the Administrative action for the recovery of a public
former owners of the same have enjoyed as such owners quietly easement which has been usurped by a constructive
and peacefully during more than seventy years." work of private ownership can only be taken when such
usurpation is of recent date and easily proven.
What the defendants have therefore done is to prevent the
plaintiffs from continuing to enjoy, use, and freely dispose of such When real rights are concerned an ayuntamiento may
strip of their ground, as they had been doing up to the time when prosecute such actions as it may consider itself entitled
they applied for a license to construct a terrace over said strip, and to, for the possession or ownership in accordance with
the defendants prevented it with the intention of establishing a law. (Decision of October 26, 1866.)
public easement provided for in an ordinance of their own which
they consider is pursuant to the provisions of the Law of Waters This doctrine will be found far more vigorous at present upon
and of the Civil Code in force. reference to the principles of the law now in force.

In the decision entered by this court on the 5th of May, 1906, According to article 349 of the Civil Code, no one shall be
regarding the demurrer, the following was set forth: deprived of his property, except by competent authority and with
sufficient cause of public utility, always after proper indemnity; if
The easement of a zone for public use, authorized by this requisite has not been fulfilled the courts must protect, and
article 73 of the Law of Waters of 1866, is developed in eventually restore possession to the injured party.
articles 160 and 161, inclusive, of said law; the general
interest on behalf of which the easement is supported is Under section 5 of the act of Congress of July 1, 1902, no
determined, for navigation, by articles 160 and 161; for legislation shall be enacted in the Philippine Islands which shall
flotation, by article 162; for salvage, by article 163; and deprive any person of life, liberty, or property without due process
for fishing, by article 164; in all of them the owner of the of law; and the due process of law in order to deprive a person of
riverside property supports the easement "upon being his property is, according to the Code of Civil Procedure, reserved
previously indemnified for loss and damage." (Folio 41.) to the judicial authority. The refusal to grant a license or the
enactment of an ordinance whereby a person may be deprived of
Said zone for public use, the same as a towpath, is solely property or rights, or an attempt thereat is made, without
available for the purposes of navigation, flotation, fishing, previously indemnifying him therefor, is not, nor can it be, due
and salvage, being closed to any other use which be process of law.1awphil.net
attempted; therefore, it is erroneous to pretend that the
right of the owner of the property bordering upon the And, considering that the easement intended to be established,
stream can be reduced to the level of the public right; on whatever may be the object thereof, is not merely a real right that
the contrary he should only be called upon to bear those will encumber the property, but is one tending to prevent the
burdens which are in the general interest, but not without exclusive use of one portion of the same, by expropriating it for a
prior, or subsequently indemnity. (Folio 43.) public use which, be it what it may, can not be accomplished
unless the owner of the property condemned or seized be
If as affirmed in statement No. 4, and accepted by the defendants, previously and duly indemnified, it is proper to protect the
the Sibacon Creek is a canal — let us grant that it is navigable, appellant by means of the remedy employed in such cases, as it is
because it has been held by competent authority — and that the only adequate remedy when no other legal action can be
under the name of a public wharf, which is the largest in area, it is resorted to, against an intent which is nothing short of an arbitrary
desired to establish a towpath, which is the smallest, it must be restriction imposed by the city by virtue of the coercive power with
which the same is invested. The question involved here is not the they consider is pursuant to the provisions of the Law of Waters
actual establishment of an easement which might be objected to and of the Civil Code in force.
by an action in court, but a mere act of obstruction, a refusal which
is beyond the powers of the city of Manila, because it is not simply
a measure in connection with building regulations, but is an In the decision entered by the court on the 5th of May, 1906,
attempt to suppress, without due process of law, real rights which regarding the demurrer, the following was set forth:
are attached to the right of ownership.
The easement of a zone for public use, authorized by article 73 of
When . . . any corporation, board, or person unlawfully the Law of Waters of 1866, is developed in articles 160 and 161,
neglects the performance of an act which the law inclusive, of said law; the general interest on behalf of which the
specially enjoins as a duty resulting from an office, trust, easement is supported is determined, for navigation, by articles
or station, or unlawfully excludes the plaintiff from the use 160 and 161; for flotation, by article 162; for salvage, by article
and enjoyment of a right or office to which he is entitled 163; and for fishing, by article 164; in all of them the owner of the
and from which he is unlawfully precluded by such riverside property supports the easement “upon being
inferior tribunal, corporation, board, or person, and the previously indemnified for loss and damage.” (Folio 41.)
court, on trial, finds the allegations of the complaint to be Said zone for public use, the same as a towpath, is solely
true, it may, if there is no other plain, speedy, and available for the purposes of navigation, flotation, fishing, and
adequate remedy in the ordinary courts of law, render a salvage, being closed to any other use which be attempted;
judgment granting a peremptory order against the therefore, it is erroneous to pretend that the right of the owner of
defendant, commanding him, immediately after the the property bordering upon the stream can be reduced to the
receipt of such order, or at some other specified time, to level of the public right; on the contrary he should only be called
do the act required to be done to protect the rights of the upon to bear those burdens which are in the general interest, but
plaintiff. (Code of Civil Procedure, sec 222.) not without prior, or subsequently indemnity. (Folio 43.)
If as affirmed in statement No. 4, and accepted by the defendants,
Therefore, we hereby command the defendants, the city of Manila, the Sibacon Creek is a canal — let us grant that it is navigable,
and Robert G. Dieck, as city engineer, or whomsoever may now because it has been held by competent authority — and that
be acting as such, to immediately issue a license in favor of the under the name of a public wharf, which is the largest in area, it is
plaintiff herein, Doña Carmen Ayala de Roxas, to construct the desired to establish a towpath, which is the smallest, it must be
terrace as aforesaid in accordance with the plan and specification remembered that the law does not grant it along navigable canals
as per Exhibit A, the said defendants to pay the costs of these (art. 157), and, at all events, the establishment thereof must
proceedings. So ordered. be preceded by the corresponding indemnity. (Arts. 154 and
157.)
Under section 5 of the act of Congress of July 1, 1902, no
Torres, Johnson, Carson, Willard and Tracey, JJ., concur.
legislation shall be enacted in the Philippine Islands which shall
deprive any person of life, liberty, or property without due process
of law; and the due process of law in order to deprive a person of
his property is, according to the Code of Civil Procedure, reserved
Ayala de Roxas vs City of Manila to the judicial authority. The refusal to grant a license or the
G.R. No. L-3144 November 19, 1907 enactment of an ordinance whereby a person may be
Facts: Petitioner applied to the defendant city engineer for a deprived of property or rights, or an attempt thereat is made,
license to construct a terrace over “the strip of land 3 meters in without previously indemnifying him therefor, is not, nor can
width between the main wall of her house and the edge of the said it be, due process of law.
canal of Sibacon or San Jacinto, which strip of land belongs Considering that the easement intended to be established,
exclusively to her”; but the defendant refused to grant the license whatever may be the object thereof, is not merely a real right that
or authorize the plaintiff to build the terrace, because, as the will encumber the property, but is one tending to prevent the
plaintiff has been informed, the sole reason wherefore the license exclusive use of one portion of the same, by expropriating it for a
was denied is because “the said defendants pretend to compel the public use which, be it what it may, can not be accomplished
plaintiff to leave vacant and without any construction whatever unless the owner of the property condemned or seized be
thereon the said strip of 3 meters in width which is a portion of the previously and duly indemnified, it is proper to protect the
ground belonging to her, in order to use the same as the wharf or appellant by means of the remedy employed in such cases, as it is
public way so that the plaintiff will only be able to use the said strip the only adequate remedy when no other legal action can be
in the same manner and for the same purposes as the public in resorted to, against an intent which is nothing short of an arbitrary
general, thus losing the enjoyment, use, and exclusive possession restriction imposed by the city by virtue of the coercive power with
of the said strip of the property which the plaintiff and the former which the same is invested. The question involved here is not the
owners thereof have enjoyed quietly and peacefully during more actual establishment of an easement which might be objected to
than seventy years. Additionally, it was agreed between both by an action in court, but a mere act of obstruction, a refusal which
parties that the strip above referred to had not been is beyond the powers of the city of Manila, because it is not simply
expropriated in whole or in part by the municipality of Manila, a measure in connection with building regulations, but is an
and that neither had the latter offered any compensation for attempt to suppress, without due process of law, real rights which
the same to the owner thereof. are attached to the right of ownership.
Issue: Whether the non-issuance of a license to the petitioners is
tantamount to a taking that requires just compensation
Held: Yes. The imposition of an easement over a 3-meter strip of the
What the defendants have therefore done is to prevent the plaintiff’s property could not legally be done without payment to it
plaintiffs from continuing to enjoy, use, and freely dispose of such of just compensation.
strip of their ground, as they had been doing up to the time when
they applied for a license to construct a terrace over said strip, and
the defendants prevented it with the intention of establishing a The Court commanded the defendant to issue said license.
public easement provided for in an ordinance of their own which
 Dilao filed her Answer with Counterclaim on April 19,
1996.[9] Enriquez did not.[10]
On May 9, 1996, Branch 25 of the RTC Danao, issued an
Order[11] granting NPCs motion for the issuance of writ of
possession. It then appointed a Board of Commissioners to
determine just compensation.[12]
[G.R. No. 155065. July 28, 2005]
The commissioners submitted on April 15, 1999 their
report[13] to the trial court containing, among other things, their
recommended appraisal of the parcel of land co-owned by
defendants Dilao and her siblings at P516.66 per square meter.
NATIONAL POWER CORPORATION, petitioner, vs. HON.
SYLVA G. AGUIRRE PADERANGA, Presiding Judge, To the Commissioners Report, the NPC filed its
Regional Trial Court of Danao City, Branch 25, Comment/Opposition[14] assailing the correctness of the appraisal
PETRONA O. DILAO, FEDIL T. OSMEA, ISABEL T. for failing to take into account Republic Act (R.A.) No. 6395 (AN
OSMEA, CELESTINO O. GALON, POTENCIA O. ACT REVISING THE CHARTER OF THE NATIONAL POWER
BATUCAN, TRINIDAD T. OSMEA, LULIA T. OSMEA, CORPORATION), as amended, specifically Section 3A[15] thereof
LOURDES O. DAFFON, VICTORIA O. BARRIGA and which provides that the just compensation for right-of-way
JUAN T. OSMEA, JR., and ESTEFANIA easement (for which that portion of the Dilao property is being
ENRIQUEZ, respondents. expropriated) shall be equivalent to ten percent (10%) of the
market value of the property. The traversed land, NPC asserted,
DECISION could still be used for agricultural purposes by the defendants,
subject only to its easement. It added that the lots were of no use
CARPIO MORALES, J.: to its operations except for its transmission lines.[16]
By Decision of November 10, 1999, the trial court rendered a
The Court of Appeals Decision[1] dated June 6, 2002, as well decision on the complaint, adopting the commissioners
as its Resolution[2] dated August 30, 2002, affirming the recommended appraisal of the land co-owned by Dilao and her
decision[3] of the Regional Trial Court of Danao City, Branch 25 siblings. The dispositive portion of the decision reads:
which granted the complaint for expropriation filed by herein
petitioner National Power Corporation (NPC) against herein
WHEREFORE, judgment is hereby rendered condemning
respondents Petrona Dilao et al. are being assailed in the present
Petition for Review on Certiorari. the property of Petrona Dilao et al. which has been affected
by 7,281 square meters in favor of plaintiff; declaring in favor of
To implement its Leyte-Cebu Interconnection Project, the defendants for plaintiff to pay the fair market value of said area
NPC filed on March 19, 1996 before the Regional Trial Court of affected at P516.66 per square or a total of P3,761,801.40
Danao City a complaint for expropriation[4] of parcels of land plus P250,000.00 for the value of the improvements affected by
situated at Baring and Cantumog, Carmen, Cebu[5] against the herein expropriation.
following defendants:
SO ORDERED.[17] (Emphasis and underscoring supplied).
NAMES ADDRESS
Copy of the decision was received by NPC on November 18,
1. Petrona O.[6] Dilao Poblacion, Carmen, Cebu 1999.[18]
2. Fidel T. Osmea -do-
3. Isabel T. Osmea -do- NPC filed a Notice of Appeal[19] but the trial court, by Order of
4. Celestina O. Galon -do- January 17, 2000, denied the same for NPCs failure to file and
5. Potenciana O. Batucan -do- perfect it within the reglementary period, it having failed to file a
6. Trinidad T. Osmea -do- record on appeal.[20] To the Order, NPC filed a motion for
7. Lulia T.Osmea -do- reconsideration,[21] contending that a record on appeal was not
8. Lourdes O. Daffon -do- required as the trial court rendered judgment against all the
9. Victoria O. Barriga -do- defendants including Enriquez as shown, so it claimed, by the
10. Juan T. Osmea, Jr. -do- dispositive portion of the decision referring to Petrona Dilao et al.
11. Estefania Enriquez Marijoy Realty Corp. By Resolution[22] of March 7, 2000, the trial court denied
Natalio Bacalso NPCs motion for reconsideration, clarifying that the reference to
Ave. Petrona Dilao et al. in the dispositive portion of its decision was
Mambaling, meant to cover only Dilao and her co-owner-siblings.[23]
Cebu City[7]
(Underscoring supplied) NPC subsequently filed before the trial court a petition for
relief from the denial of its appeal on the ground that its failure to
The complaint covers (a) 7,281 square meters of the 25,758 file a record on appeal was due to honest mistake and excusable
square meters of land co-owned by herein respondents Petrona neglect, it having believed that a record on appeal was not
O. Dilao (Dilao) and the above-listed defendant Nos. 2-10 who are required in light of the failure of the other defendant, Enriquez, to
[24]
her siblings, and (b) 7,879 square meters of the 17,019 square file an answer to the complaint.
[8]
meters of land owned by Estefania Enriquez (Enriquez).
The trial court denied NPCs petition for relief for lack of
[25]
A day after the complaint was filed or on March 20, 1996, factual and legal basis.
NPC filed an urgent ex parte motion for the issuance of writ of
On August 17, 2001, the trial court granted Dilao et al.s
possession of the lands.
motion for execution of judgment. [26] NPC thereupon filed a
petition for certiorari with the Court of Appeals with prayer for
temporary restraining order and a writ of preliminary final one, of course, since it finally disposes of the action and
injunction[27] assailing the trial courts order denying its appeal and leaves nothing more to be done by the Court on the merits. So,
other orders related thereto, as well as the order granting Dilao et too, would an order of condemnation be a final one, for thereafter,
al.s motion for execution. The appellate court, however, denied as the Rules expressly state, in the proceedings before the Trial
NPCs petition,[28] it holding that under Rule 41, Section 2 of the Court, "no objection to the exercise of the right of condemnation
1997 Rules of Civil Procedure, the filing of a record on appeal is (or the propriety thereof) shall be filed or heard.
required in special proceedings and other cases of multiple or
separate appeals, as in an action for expropriation in which the The second phase of the eminent domain action is concerned with
order determining the right of the plaintiff to expropriate and the the determination by the Court of "the just compensation for the
subsequent adjudication on the issue of just compensation may be property sought to be taken." This is done by the Court with the
the subject of separate appeals.[29] assistance of not more than three (3) commissioners. The order
Aggrieved, NPC challenged the appellate courts decision via fixing the just compensation on the basis of the evidence before,
the present petition,[30] it contending that the trial courts and findings of, the commissioners would be final, too. It would
questioned orders effectively deprived it of its constitutional right to finally dispose of the second stage of the suit, and leave nothing
due process. more to be done by the Court regarding the issue. Obviously, one
or another of the parties may believe the order to be erroneous in
NPC argues that a complaint for expropriation is a Special its appreciation of the evidence or findings of fact or otherwise.
Civil Action under Rule 67 of the Rules of Civil Procedure, not a Obviously, too, such a dissatisfied party may seek reversal of the
special proceeding as contemplated under Rule 41, Section 2 of order by taking an appeal therefrom. (Underscoring supplied).
the Rules of Civil Procedure; that there is no law or rules
specifically requiring that a record on appeal shall be filed in Thus, in Municipality of Bian, this Court held that in actions
expropriation cases; and of the two sets of defendants in the for eminent domain, since no less than two appeals are allowed by
present case, the Dilaos and Enriquez, the first, while they filed an law, the period for appeal from an order of condemnation is thirty
answer, did not appeal the trial courts decision, while with respect days counted from notice thereof and not the ordinary period of
to the second, there is no showing that summons was served fifteen days prescribed for actions in general.[33] As such, the
upon her, hence, the trial court did not acquire jurisdiction over her complaint falls under the classification of other cases of multiple or
and, therefore, no appeal could arise whatsoever with respect to separate appeal where the law or these rules so require in above-
the complaint against her. Ergo, petitioner concludes, no quoted Section 2(a) of Rule 41 of the Rules of Civil Procedure in
possibility of multiple appeals arose from the case. which a record on appeal is required to be filed and served.
The petition fails. Respecting NPCs claim that the trial court did not acquire
Rule 41, Section 2 of the 1997 Rules of Civil Procedure, as jurisdiction over the other defendant, Enriquez, there being no
amended, clearly provides: evidence that summons was served on her and, therefore, no
appeal with respect to the case against her arose, the trial courts
Order[34] of May 9, 1996 belies said claim:
SEC. 2. Modes of Appeals.
xxx
(a) Ordinary appeal. The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court In the letter-appeal by defendant Estefania V.
which rendered the judgment or final order appealed from and Enriquez addressed to the Court, defendant did manifest no
serving a copy thereof upon the adverse party. No record on opposition to the right of plaintiff to the use of her land but
appeal shall be required except in special proceedings and other only wich (sic) that payment be based on the actual market value
cases of multiple or separate appealswhere the law or these Rules of the property sought to be expropriated. In comment to said
so require. In such cases, the record on appeal shall be filed and letter-appeal, plaintiff stressed that the amount deposited was
served in like manner. purely to secure a writ of possession as provided under PD 42. It
agreed with defendant that the fair market value or actual market
value shall be the basis for the just compensation of the property.
x x x (Emphasis and underscoring supplied).
x x x (Emphasis and underscoring supplied)
While admittedly a complaint for expropriation is not a special
proceeding, the above-quoted rule requires the filing of a record
on appeal in other cases of multiple or separate appeal. That the defendant Enriquez did not file an answer to the
complaint did not foreclose the possibility of an appeal arising
Jurisprudential law, no doubt, recognizes the existence of therefrom. For Section 3 of Rule 67 provides:
multiple appeals in a complaint for expropriation. [31] The case
of Municipality of Bian v. Garcia[32] vividly expounds on the Sec. 3. Defenses and objections. If a defendant has no objection
matter, viz: or defense to the action or the taking of his property, he may file
and serve a notice of appearance and a manifestation to that
1. There are two (2) stages in every action of expropriation. The effect, specifically designating or identifying the property in which
first is concerned with the determination of the authority of the he claims to be interested, within the time stated in the summons.
plaintiff to exercise the power of eminent domain and the propriety Thereafter, he shall be entitled to notice of all proceedings
of its exercise in the context of the facts involved in the suit. It affecting the same.
ends with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a lawful right to take If a defendant has any objection to the filing of or the allegations in
the property sought to be condemned, for the public use or the complaint, or any objection or defense to the taking of his
purpose described in the complaint, upon the payment of just property, he shall serve his answer within the time stated in the
compensation to be determined as of the date of the filing of the summons. The answer shall specifically designate or identify the
complaint." An order of dismissal, if this be ordained, would be a property in which he claims to have an interest, state the nature
and extent of the interest claimed, and adduce all his objections In finding that the trial court did not abuse its authority in
and defenses to the taking of his property. No counterclaim, cross- evaluating the evidence and the reports placed before it nor did it
claim or third-party complaint shall be alleged or allowed in the misapply the rules governing fair valuation, the Court of Appeals
answer or any subsequent pleading. found the majority reports valuation of P500 per square meter to
be fair. Said factual finding of the Court of Appeals, absent
A defendant waives all defenses and objections not so alleged but any showing that the valuation is exorbitant or otherwise
the court, in the interest of justice, may permit amendments to the unjustified, is binding on the parties as well as this Court.
answer to be made not later than ten (10) days from the filing (Emphasis and underscoring supplied).
thereof. However, at the trial of the issue of just
compensation, whether or not a defendant has previously Indeed, expropriation is not limited to the acquisition of real
appeared or answered, he may present evidence as to the property with a corresponding transfer of title or possession. The
amount of the compensation to be paid for his property, and he right-of-way easement resulting in a restriction or limitation on
may share in the distribution of the award. (Emphasis and property rights over the land traversed by transmission lines, as in
underscoring supplied). the present case, also falls within the ambit of the term
expropriation. As explained in National Power Corporation v.
In other words, once the compensation for Enriquez property Gutierrez,[37]viz:
is placed in issue at the trial, she could, following the third
paragraph of the immediately-quoted Section 3 of Rule 67, The trial courts observation shared by the appellate court show
participate therein and if she is not in conformity with the trial that x x x While it is true that plaintiff [is] only after a right-of-way
courts determination of the compensation, she can appeal easement, it nevertheless perpetually deprives defendants of
therefrom. their proprietary rights as manifested by the imposition by
the plaintiff upon defendants that below said transmission
Multiple or separate appeals being existent in the present lines no plant higher than three (3) meters is allowed.
expropriation case, NPC should have filed a record on appeal Furthermore, because of the high-tension current conveyed
within 30 days from receipt of the trial courts decision. The trial through said transmission lines, danger to life and limbs that
courts dismissal of its appeal, which was affirmed by the appellate may be caused beneath said wires cannot altogether be
court, was thus in order. discounted, and to cap it all, plaintiff only pays the fee to
En passant, glossing over NPCs failure to file record on defendants once, while the latter shall continually pay the
appeal, its appeal would still not prosper on substantive grounds. taxes due on said affected portion of their property.

NPC anchored its appeal[35] on the alleged overvalued The foregoing facts considered, the acquisition of the right-
appraisal by the commissioners of the compensation to be of-way easement falls within the purview of the power of
awarded to Dilao et al., the commissioners having allegedly lost eminent domain.Such conclusion finds support in similar cases of
sight of the already mentioned 10% limit provided under Section easement of right-of-way where the Supreme Court sustained the
3A of R.A. No. 6395. award of just compensation for private property condemned for
In National Power Corporation v. Chiong, petitioner public use (See National Power Corporation vs. Court of Appeals,
[36]

similarly argued therein that the Court of Appeals gravely erred in 129 SCRA 665, 1984; Garcia vs. Court of Appeals, 102 SCRA
upholding the RTC order requiring it to pay the full market 597, 1981). The Supreme Court, in Republic of the Philippines vs.
value of the expropriated properties, despite the fact that it was PLDT, thus held that:
only acquiring an easement of right-of-way for its transmission
lines. It pointed out, as it does in the present case, that under Normally, of course, the power of eminent domain results in
Section 3A of RA No. 6395, as amended, where only an easement the taking or appropriation of title to, and possession of, the
of right-of-way shall be acquired, with the principal purpose for expropriated property; but no cogent reason appears why
which the land is actually devoted is unimpaired, the said power may not be availed of to impose only a burden
compensation should not exceed ten percent (10%) of the upon the owner of condemned property, without loss of title
market value of the property. Upholding the trial court and the and possession. It is unquestionable that real property may,
Court of Appealss approval of the commissioners through expropriation, be subjected to an easement of right-of-
recommendation in that case, this Court declared: way.

In fixing the valuation at P500.00 per square meter, the Court In the case at bar, the easement of right-of-way is definitely a
of Appeals noted that the trial court had considered the taking under the power of eminent domain. Considering the nature
reports of the commissioners and the proofs submitted by and effect of the installation of the 230 KV Mexico-Limay
the parties. This includes the fair market value of P1,100.00 transmission lines, the limitation imposed by NPC against the
per square meter proffered by the respondents. This use of the land for an indefinite period deprives private
valuation by owners of the property may not be binding upon respondents of its ordinary use. (Emphasis and underscoring
the petitioner or the court, although it should at least set a supplied).
ceiling price for the compensation to be awarded. The trial
court found that the parcels of land sought to be expropriated From the Commissioners Report[38] chronicling the following
are agricultural land, with minimal improvements. It is the findings:
nature and character of the land at the time of its taking that
is the principal criterion to determine just compensation to
the landowner. Hence, the trial court accepted not the owners xxx
valuation of P1,100 per square meter but only P500 as
recommended in the majority report of the commissioners. 1. The parcel of land owned by the defendant PETRONA O.
DILAO, et al. is very fertile, plain, suited for any crops
xxx production, portion of which planted with coco trees and
mango trees, portion planted with corn, sometimes
 planted with sugar cane, the said land has a distance of 1996, Branch 25 of the RTC Danao, issued an Order granting
about 1 kilometer from the trading center, about 100 NPC’s motion for the issuance of writ of possession. It then
meters from an industrial land (Shemberg Biotech appointed a Board of Commissioners to determine just
Corp.) adjacent to a Poultry Farm and lies along the compensation.
Provincial Road.
Issue: Whether or not the just compensation for right-of-way
xxx easement being expropriated is proper.

Ruling:
IMPROVEMENTS AFFECTED There are two stages in every act of expropriation. The first is
concerned with the determination of the authority of the plaintiff to
Per ocular inspection made on lot own by PETRONA O. DILAO, et exercise the power of eminent domain and the propriety of its
al. traversed by a transmission line of NPC and with my exercise in the context of the facts involved in the suit. The second
verification as to the number of improvements, the following trees phase of the eminent domain action is concerned with the
had been damaged. determination by the court of “the just compensation for the
property sought to be taken.” The order fixing the just
1. 55 coco trees productive compensation on the basis of the evidence before the
2. 10 mango trees productive commissioners would be final. In the case at bar, the easement of
3. 30 cacao trees productive right-of-way is definitely a taking under the power of eminent
4. 110 bananas domain. Considering the nature and effect of the installation of the
5. 400 ipil-ipil trees transmission lines, the limitation imposed by NPC against the use
of the land for an indefinite period deprives private respondents of
its ordinary use. It cannot be opposed that NPC’s complaint
x x x,[39] merely involves a simple case of mere passage of transmission
lines over Dilao et. Al’s sproperty. Aside from the actual damage
it cannot be gainsaid that NPCs complaint merely involves a done to the property transversed by the transmission lines, the
simple case of mere passage of transmission lines over Dilao et agricultural and economic activity normally undertaken on the
al.s property. Aside from the actual damage done to the property entire property is unquestionably restricted and perpetually
traversed by the transmission lines, the agricultural and economic hampered as the environment is made dangerous to the
activity normally undertaken on the entire property is occupant’s life and limb.
unquestionably restricted and perpetually hampered as the
environment is made dangerous to the occupants life and limb. The appeal sought by NPC does not stand on both procedural and
substantive grounds. The just compensation recommended, which
The determination of just compensation in expropriation was approved by the trial court, to be just and reasonable
proceedings being a judicial function, [40] this Court finds the compensation for the expropriated property of Dilao and her
commissioners recommendation of P516.66 per square meter, siblings.
which was approved by the trial court, to be just and reasonable
compensation for the expropriated property of Dilao and her
siblings.
In fine, the appeal sought by NPC does not stand on both
procedural and substantive grounds. Richards v. Washington Terminal Co., 233 U.S. 546 (1914)

WHEREFORE, the petition is hereby DENIED.

Richards v. Washington Terminal Company
SO ORDERED.
No. 52

National Power Corporation V. Hon. Sylva G. Aguirre Argued November 7, 1913

Paderanga, 464 Scra 481 (2005)
CASE DIGEST Decided May 4, 1914

Facts:
233 U.S. 546
The Court of Appeals Decision dated June 6, 2002, as well as its
Resolution dated August 30, 2002, affirming the decision of the
Regional Trial Court of Danao City, Branch 25 which granted the ERROR TO THE COURT OF APPEALS
complaint for expropriation filed by herein petitioner National
Power Corporation (NPC) against herein respondents "Petrona OF THE DISTRICT OF COLUMBIA
Dilao et al." are being assailed in the present Petition for Review
on Certiorari. To implement its Leyte-Cebu Interconnection
Syllabus
Project, the NPC filed on March 19, 1996 before the Regional Trial
Court of Danao City a complaint for expropriation of parcels of
land situated at Baring and Cantumog, Carmen, Cebu against Although in England, Parliament, being omnipotent, may authorize
Dilao and siblings, and Enriquez. The complaint covers 7,281 the taking of private property for public use without compensation,
square meters of land co-owned Petrona O. Dilao (Dilao) and the English courts decline to place an unjust construction on its
siblings, and 7,879 square meters of land owned by Estefania acts, and, unless so clear as not to admit any other meaning, do
Enriquez (Enriquez). A day after the complaint was filed or on not interpret them as interfering with rights of private property.
March 20, 1996, NPC filed an urgent ex parte motion for the
issuance of writ of possession of the lands. Dilao filed her Answer
with Counterclaim on April 19, 1996. Enriquez did not. On May 9,
Legislation of Congress is different from that of Parliament, as it northeasterly corner, and the tunnel extends thence in a
must be construed in the light of that provision of the Fifth northeasterly direction, passing under the Capitol and Library
Amendment which forbids the taking of private property for public grounds and First Street N.E. to the Union Station at
use without compensation. Massachusetts Avenue. There are two sets of railroad tracks in
the tunnel and leading from it, and as these emerge from the
While Congress may legalize, within the sphere of its jurisdiction, south portal, they extend in a general southwesterly direction up
what otherwise would be a public nuisance, it may not confer an incline or grade across the central portion of Square 693 on to
immunity from action for a private nuisance of such a character as an elevated structure which carries the tracks over and beyond
to amount in effect to a taking of private property for public use. South Capitol Street. The tunnel and these tracks are used for the
passage of trains running both northwardly and southwardly,
about thirty each day, all of them being passenger trains with the
While the owners of a railroad constructed and operated for the exception of an occasional shifting engine. The trains frequently
public use, although with private property for private gain, are not, pass in and out of the tunnel without stopping, but trains also very
in the absence of negligence, subject to action in behalf of owners often stop at or near a switch tower that is situate near the center
of neighboring private property for the ordinary damages of Square 693. From the nearest portion of plaintiff's house to the
attributable to the operation of the railroad, a property owner may center of the south portal, the distance in a straight line is about
be entitled to compensation for such special damages as devolve 114 ft., there being three intervening dwelling houses, two of
exclusively upon his property and not equally upon all the which have been purchased and are now owned by defendant.
neighboring property. From the rear end of plaintiff's lot to the middle of the tracks
southwestwardly from the portal the distance in a straight line is
In this case, held that an owner of property near the portal of a about 90 ft. Plaintiff's property has been damaged by the volumes
tunnel in the District of Columbia constructed under authority of of dense black or gray smoke, and also by dust and dirt, cinders
Congress, while not entitled to compensation for damages caused and gases, emitted from the trains while passing over the tracks
by the usual gases and smoke emitted from the tunnel by reason and in or out of the tunnel, or standing upon the tracks near the
of the proper operation of the railroad, is entitled to compensation signal tower. There is a fanning system installed in the tunnel
for such direct, peculiar and substantial damages as specially which causes the gases and smoke emitted from engines while in
affect his property and diminish its value. the tunnel to be forced out of the south portal, and these gases
and smoke contaminate the air, and also add to the inconvenience
37 App.D.C. 289 reversed. suffered by plaintiff in the occupation of his property. His house
was pleasant and comfortable for purposes of occupation before
the construction of the tunnel and tracks, but since then it has not
The facts, which involve the right, under the Fifth Amendment, of only depreciated in value, but the tenant
an owner to be compensated for special and peculiar damages to
his property by reason of the operation of a railroad near the
premises, are stated in the opinion. Page 233 U. S. 550

Page 233 U. S. 548 removed therefrom, and plaintiff was obliged to occupy the house
himself by reason of his inability to rent it. The property has
depreciated from a value of about $5,500 to about $4,000, and the
MR. JUSTICE PITNEY delivered the opinion of the Court. rental value from $30 per month to $20 per month. The furniture
and other belongings in the house have been depreciated from a
Plaintiff in error, who was plaintiff below, commenced this action in value of $1,200 to $600, all of which depreciation is due to the
the Supreme Court of the District of Columbia to recover for the presence of smoke, cinders, and gases emitted from passing
damage to his property resulting from the maintenance of an trains and from the mouth of the tunnel, which smoke, cinders,
alleged nuisance by defendant by means of the operation of a and gases enter the dwelling house and settle upon the furniture
railroad and tunnel upon its own lands near to, but not adjoining, and other personal property contained in it, contaminating the air
those of plaintiff. Defendant having pleaded not guilty, the issue and rendering the house objectionable as a habitation. The house
came on for trial by jury, and, at the conclusion of plaintiff's has also been damaged by vibrations caused by the movement of
evidence, a verdict was directed in favor of defendant. The court trains on the track or in the tunnel, resulting in cracking the walls
of appeals affirmed the judgment (37 App.D.C. 289), and a writ of and wallpaper, breaking glass in the windows, and disturbing the
error brings the controversy under the review of this Court. peace and slumber of the occupants.

An agreed abridgment of the evidence upon which the ruling of the The defendant, the Washington Terminal Company, is the owner
trial justice was based is embodied in the bill of exceptions. From of the tunnel and of the tracks therein, but its ownership of tracks
this it appears that plaintiff is and has been since the year 1901 ceases at the south portal. The tracks extending therefrom in a
the owner of Lot 34 in Square 693 in the City of Washington, southwesterly direction are owned and used by other railroad
having a frontage of 20 ft. upon the westerly side of New Jersey companies, but the movement of the trains is controlled by
Avenue, Southeast, and an average depth of 81 ft., with defendant.
improvements thereon consisting of a three-story and basement
brick dwelling house containing ten rooms, known as No. 415 New The tunnel and the tracks leading from it across Square 693 were
Jersey Avenue. The rear windows upon all the floors of the house located and constructed and are now maintained under the
open in the direction of the railroad tracks that lead from authority of Acts of Congress of February 12, 1901, and February
defendant's tunnel. The south portal of this tunnel opens within 28, 1903, 31 Stat. 774, c. 354; 32 Stat. 909, c. 856, in accordance
Square 693, and near its with plans and specifications approved by those acts. No claim is
made by plaintiff that the tunnel, the tracks in Square 693, and the
Page 233 U. S. 549 trains operated therein and thereon were constructed, operated, or
maintained in a negligent manner, and it is conceded that the
tunnel and tracks were built upon property acquired by purchase
or condemnation proceedings, and were constructed under acts are to be strictly construed so as not to impair private rights
authority of the acts of Congress unless the legislative purpose to do so appears by express words
or necessary implication. In short, Parliament, being omnipotent,
Page 233 U. S. 551 may authorize the taking of private property for public use without
compensation to the owner, but the courts decline to place an
unjust construction upon its acts, and will not interpret them as
and of permits issued by the Commissioners of the District of interfering with rights of private property unless the language be
Columbia. so clear as to admit of no other meaning.

Such being the essential facts to be deduced from the evidence, But the legislation we are dealing with must be construed in the
we have reached the conclusion, for reasons presently to be light of the provision of the Fifth Amendment -- "Nor shall private
stated, that with respect to most of the elements of damage to property be taken for public use without just compensation" -- and
which the plaintiff's property has been subjected, the courts below is not to be given
correctly held them to be damnum absque injuria; but that with
respect to such damage as is attributable to the gases and smoke
emitted from locomotive engines while in the tunnel, and forced Page 233 U. S. 553
out of it by means of the fanning system through a portal located
so near to plaintiff's property that these gases and smoke an effect inconsistent with its letter or spirit. The doctrine of the
materially contribute to injure the furniture and to render the house English cases has been generally accepted by the courts of this
less habitable than otherwise it would be, there is a right of country, sometimes with scant regard for distinctions growing out
recovery. of the constitutional restrictions upon legislative action under our
system. Thus, it has been said that "a railroad authorized by law
The acts of Congress referred to, followed by the construction of and lawfully operated cannot be deemed a private nuisance;" that
the tunnel and railroad tracks substantially in the mode prescribed, "what the legislature has authorized to be done cannot be deemed
had the effect of legalizing the construction and operation of the unlawful," etc. These and similar expressions have at times been
railroad, so that its operation, while properly conducted and indiscriminately employed with respect to public and to private
regulated, cannot be deemed to be a public nuisance. Yet it is nuisances. We deem the true rule, under the Fifth Amendment, as
sufficiently obvious that the acts done by defendant, if done under state constitutions containing a similar prohibition, to be
without legislative sanction, would form the subject of an action by that, while the legislature may legalize what otherwise would be a
plaintiff to recover damages as for a private nuisance. public nuisance, it may not confer immunity from action for a
private nuisance of such a character as to amount in effect to a
taking of private property for public use. Pennsylvania R. Co. v.
At the same time, there is no exclusive and permanent Angel, 41 N.J.Eq. 316, 329; Costigan v. Pennsylvania R. Co., 54
appropriation of any portion of plaintiff's land, which, indeed, does N.J.L. 233; Cogswell v. N.Y., N.H. & H. R. Co., 103 N.Y.
not even abut upon defendant's property. The acts of Congress do 10; Garvey v. Long Island R. Co., 159 N.Y. 323; Bohan v. Port
not in terms provide for the payment of compensation to property Jervis Gas Light Co., 122 N.Y. 18, 29; Sadlier v. City of New
owners damnified through the construction and operation of the York, 81 N.Y.S. 308.
tunnel and railroad lines in question, except to those whose lands,
or a portion thereof, were necessarily appropriated. For damages,
whether direct or consequential, to noncontiguous parcels such as But the question remains, in cases of the class now before us,
that of plaintiff, there is no express provision. But § 9 of the Act of what is to be deemed a private nuisance such as amounts to a
1903, 32 Stat. 916, c. 856, authorizes the Terminal Company to taking of property? And, by a great and preponderant weight of
acquire, by purchase or condemnation, judicial authority in those states whose constitutions contain a
prohibition of the taking of private property for public use without
compensation, substantially in the form employed in the Fifth
Page 233 U. S. 552 Amendment, it has become established that railroads constructed
and operated for the public use, although with private capital and
"the lands and property necessary for all and every the purposes for private gain, are not subject to actions in behalf of neighboring
contemplated" by the several acts of Congress under which the property owners for the ordinary damages attributable to the
tunnel and railroad were constructed and are operated. This grant operation of the railroad, in the absence of negligence. Such roads
of the power of condemnation is very broad, but it has not been are treated as
acted upon by the company in the case of the present plaintiff.
And since he is not wholly excluded from the use and enjoyment Page 233 U. S. 554
of his property, there has been no "taking" of the land in the
ordinary sense.
public highways, and the proprietors as public servants, with the
exemption normally enjoyed by such servants from liability to
The courts of England, in a series of decisions, have dealt with the private suit, so far as concerns the incidental damages accruing to
general subject now under consideration. Rex v. Pease, 4 Barn. & owners of nonadjacent land through the proper and skillful
Ad. 30, 40, 1 Nev. & M. 690, 2 L.J. Mag. Cas. N.S. 26, 22 Eng. management and operation of the railways. Any diminution of the
Rul. Cas. 71; Vaughan v. Taff Vale R. Co., 5 Hurl. & Nor. 679, 29 value of property not directly invaded nor peculiarly affected, but
L.J. Exch. 247, 1 Eng.Rul.Cas. 296; Jones v. Festiniog Ry. sharing in the common burden of incidental damages arising from
Co., L.R. 3 Q.B. 733; Hammersmith &c. Ry. Co. v. Brand, L.R. 4 the legalized nuisance, is held not to be a "taking" within the
H.L. 171, 38 L.J.Q.B. 265, 1 Eng.Rul.Cas. 623; Metropolitan constitutional provision. The immunity is limited to such damages
Asylum District v. Hill, L.R. 6 App.Cas. 193, 201, 203; London & as naturally and unavoidably result from the proper conduct of the
Brighton Ry. Co. v. Truman, L.R. 11 App.Cas. 45. The rule to be road and are shared generally by property owners whose lands lie
deduced from these cases is that, while no action will lie for an within range of the inconveniences necessarily incident to
invasion of private rights necessarily resulting from the proximity to a railroad. It includes the noises and vibrations
establishment and operation of railways and other public works incident to the running of trains, the necessary emission of smoke
under the express sanction of an act of Parliament, yet that such and sparks from the locomotives, and similar annoyances
inseparable from the normal and nonnegligent operation of a "Grants of privileges or powers to corporate bodies like those in
railroad.Transportation Co. v. Chicago, 99 U. S. 635, 99 U. S. question confer no license to use them in disregard of the private
641; Beseman v. Pennsylvania R. Co., 50 N.J.L. 235, 240, 13 A. rights of others, and with immunity for their invasion."
164, aff'd, 52 N.J.L. 221.
The reasoning proceeded upon the ground (p. 108 U. S. 332) that
That the constitutional inhibition against the taking of private no authority conferred by Congress would justify an invasion of
property for public use without compensation does not confer a private property to an extent amounting to an entire deprivation of
right to compensation upon a landowner, no part of whose its use and enjoyment without compensation to the owner,
property has been actually appropriated and who has sustained
only those consequential damages that are necessarily incident to "nor could such authority be invoked to justify acts creating
proximity to the railroad, has been so generally recognized that in physical discomfort and annoyance to others in the use and
some of the states (Arkansas, California, Colorado, Georgia, enjoyment of their property, to a less extent than entire
Illinois, Louisiana, Mississippi, Missouri, Montana, Nebraska, deprivation, if different places from those occupied could be used
North Dakota, South Dakota, Texas, West Virginia, and Wyoming by the corporation for its purposes, without causing such
are, we believe, among the number), constitutions have been discomfort and annoyance,"
established providing in substance that private property shall not
be taken or damaged for public use without compensation.
and hence that the legislative authorization conferred exemption
only from suit or prosecution for the public nuisance, and did not
The immunity from liability for incidental injuries is affect "any claim of a private citizen for damages for any special
inconvenience and discomfort not experienced by the public at
Page 233 U. S. 555 large."

attended with a considerable degree of hardship to the private The present case, in the single particular already alluded to -- that
landowner, and has not been adopted without some judicial is to say, with respect to so much of the damage as is attributable
protest. But, as pointed out by Chief Justice Beasley in to the gases and smoke emitted from locomotive engines while in
the Beseman case, 50 N.J.L. at p. 238, if railroad companies were the tunnel, and forced out of it by the fanning system therein
liable to suit for such damages upon the theory that, with respect installed, and issuing from the portal located near to plaintiff's
to them, the company is a tortfeasor, the practical result would be property in such manner as to materially contribute to render his
to bring the operation of railroads to a standstill. And, on the property less habitable than otherwise it would be, and to
whole, the doctrine has become so well established that it depreciate it in value, and this without, so far as appears, any real
amounts to a rule of property, and should be modified, if at all, necessity existing for such damage -- is, in our opinion, within the
only by the lawmaking power. reason and authority of the decision just cited. This case differs
from that of the Baptist Church
But the doctrine, being founded upon necessity, is limited
accordingly. This Court, in a leading case that we deem controlling Page 233 U. S. 557
upon the questions now at issue, had occasion to recognize this,
and at the same time to apply the distinction between public and in that there, the railroad company was free to select some other
private nuisances with respect to the private right of action. location for the repair shop and engine house, while here, the
In Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. evidence shows that the location of the tunnel and its south portal
317, the Court, while recognizing (p. 108 U. S. 331) that the was established pursuant to law, and not voluntarily chosen by
legislative authority for operating a railway carried with it an defendant. This circumstance, however, does not, as we think,
immunity from private actions based upon those incidental afford sufficient ground for a distinction affecting the result. The
inconveniences that are unavoidably attendant upon the operation case shows that Congress has authorized, and in effect
of a railroad, nevertheless sustained the right of action in a case commanded, defendant to construct its tunnel with a portal located
where a building for housing and repairing locomotive engines in the midst of an inhabited portion of the city. The authority, no
was unnecessarily established in close proximity to a place of doubt, includes the use of steam locomotive engines in the tunnel,
public worship, and so used that the noises of the shop and the with the inevitable concomitants of foul gases and smoke emitted
rumbling of the locomotive engines passing in and out, the blowing from the engines. No question is made but that it includes the
off of steam, the ringing of bells, the sound of whistles, and the installation and operation of a fanning system for ridding the tunnel
smoke from the chimneys, created a constant disturbance of the of this source of discomfort to those operating the trains and
religious exercises. The Court (speaking by Mr. Justice Field) held traveling upon them. All this being granted, the special and
that the authority of the company to construct such works as it peculiar damage to the plaintiff as a property owner in close
might deem necessary and expedient for the completion and proximity to the portal is the necessary consequence, unless, at
maintenance of its road did not authorize it to place them least, it be feasible to install ventilating shafts or other devices for
wherever it might think proper in the city, without reference to the preventing the outpouring of gases and smoke from the entire
property and rights length of the tunnel at a single point upon the surface, as at
present. Construing the acts of Congress in the light of the Fifth
Page 233 U. S. 556 Amendment, they do not authorize the imposition of so direct and
peculiar and substantial a burden upon plaintiff's property without
of others, and that, whatever the extent of the authority conferred, compensation to him. If the damage is not preventible by the
it was accompanied with the implied qualification that the works employment at reasonable expense of devices such as have been
should not be so placed as by their use to unreasonably interfere suggested, then plaintiff's property is "necessary for the purposes
with and disturb the peaceful and comfortable enjoyment of others contemplated," and may be acquired by purchase or
in their property. In the language of the opinion: condemnation (32 Stat. 916, c. 856, § 9), and, pending its
acquisition, defendant is responsible. If the damage is readily
preventible, the statute furnishes no excuse, and defendant's
responsibility follows on general principles.
No doubt there will be some practical difficulty in distinguishing Sec. 3. Uses of Comelec Space. — "Comelec
Space" shall be allocated by the
Page 233 U. S. 558 Commission, free of charge, among all
candidates within the area in which the
newspaper, magazine or periodical is circulated
between that part of the damage which is attributable to the gases to enable the candidates to make known their
and smoke emitted from the locomotive engines while operated qualifications, their stand on public issues and
upon the railroad tracks adjacent to plaintiff's land, and with their platforms and programs of government.
respect to which we hold there is no right of action, and damage
that arises from the gases and smoke that issue from the tunnel,
and with respect to which there appears to be a right of action. "Comelec Space" shall also be used by the
How this difficulty is to be solved in order to determine the Commission for dissemination of vital election
damages that should be assessed in this action, or the information.
compensation that should be awarded in case condemnation
proceedings are resorted to, is a question not presented by this Sec. 4. Allocation of Comelec Space. — (a)
record, and upon which therefore no opinion is expressed. "Comelec Space" shall also be available to
all candidatesduring the periods stated in
Judgment reversed and cause remanded to the court of appeals, Section 2 hereof. Its allocation shall be equal
with directions to reverse the judgment of the Supreme Court of and impartial among all candidates for the same
the District and remand the cause to that court with directions for a office. All candidates concerned shall be
new trial, and for further proceedings in accordance with the views furnished a copy of the allocation of "Comelec
above expressed. Space" for their information, guidance and
compliance.
MR. JUSTICE LURTON dissents.
(b) Any candidate desiring to avail himself of
"Comelec Space" from newspapers or
publications based in the Metropolitan Manila
Area shall submit an application therefor, in
G.R. No. L-119694 May 22, 1995 writing, to the Committee on Mass Media of the
Commission. Any candidate desiring to avail
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 himself of "Comelec Space" in newspapers or
members, represented by its President, Amado P. Macasaet publications based in the provinces shall submit
and its Executive Director Ermin F. Garcia, Jr., petitioner, his application therefor, in writing, to the
vs. Provincial Election Supervisor concerned.
COMMISSION ON ELECTIONS, respondent. Applications for availment of "Comelec Space"
maybe filed at any time from the date of
effectivity of this Resolution.
RESOLUTION
(c) The Committee on Mass Media and the
Provincial Election Supervisors shall allocate
available"Comelec Space" among the
FELICIANO, J.: candidates concerned by lottery of which said
candidates shall be notified in advance, in
writing, to be present personally or by
The Philippine Press Institute, Inc. ("PPI") is before this Court
representative to witness the lottery at the date,
assailing the constitutional validity of Resolution No. 2772 issued
time and place specified in the notice. Any party
by respondent Commission on Elections ("Comelec") and its
objecting to the result of the lottery may appeal
corresponding Comelec directive dated 22 March 1995, through a
to the Commission.
Petition for Certiorari and Prohibition. Petitioner PPI is a non-
stock, non-profit organization of newspaper and magazine
publishers. (d) The candidates concerned shall be notified
by the Committee on Mass Media or the
Provincial Election Supervisor, as the case
On 2 March 1995, Comelec promulgated Resolution No. 2772,
maybe, sufficiently in advance and in writing of
which reads in part:
the date of issue and the newspaper or
publication allocated to him, and the time within
xxx xxx xxx which he must submit the written material for
publication in the "Comelec Space".
Sec. 2. Comelec Space. — The
Commission shall procure free print space of not xxx xxx xxx
less than one half (1/2) page in at least one
newspaper of general circulation in every
Sec. 8. Undue Reference to Candidates/Political
province or city for use as "Comelec
Parties in Newspapers. — No newspaper or
Space" from March 6, 1995 in the case of
publication shall allow to be printed or published
candidates for senator and from March 21, 1995
in the news, opinion, features, or other sections
until May 12, 1995. In the absence of said
of the newspaper or publication accounts or
newspaper, "Comelec Space" shall be obtained
comments which manifestly favor or oppose any
from any magazine or periodical of said
candidate or political party by unduly or
province or city.
repeatedly referring to or including therein said
 candidate or political party. However, unless the The Office of the Solicitor General filed its Comment on behalf of
facts and circumstances clearly indicate respondent Comelec alleging that Comelec Resolution No. 2772
otherwise, the Commission will respect the does not impose upon the publishers any obligation to provide free
determination by the publisher and/or editors of print space in the newspapers as it does not provide any criminal
the newspapers or publications that the or administrative sanction for non-compliance with that Resolution.
accounts or views published are significant, According to the Solicitor General, the questioned Resolution
newsworthy and of public interest. (Emphasis merely established guidelines to be followed in connection with the
supplied) procurement of "Comelec space," the procedure for and mode of
allocation of such space to candidates and the conditions or
Apparently in implementation of this Resolution, Comelec through requirements for the candidate's utilization of the "Comelec space"
Commissioner Regalado E. Maambong sent identical letters, procured. At the same time, however, the Solicitor General argues
dated 22 March 1995, to various publishers of newspapers like that even if the questioned Resolution and its implementing letter
the Business World, the Philippine Star, the Malaya and directives are viewed as mandatory, the same would nevertheless
the Philippine Times Journal, all members of PPI. These letters be valid as an exercise of the police power of the State. The
read as follows: Solicitor General also maintains that Section 8 of Resolution No.
2772 is a permissible exercise of the power of supervision or
regulation of the Comelec over the communication and information
This is to advise you that pursuant to Resolution operations of print media enterprises during the election period to
No. 2772 of the Commission on Elections, you safeguard and ensure a fair, impartial and credible election. 2
are directed to provide free print space of not
less than one half (1/2) page for use as
"Comelec Space"or similar to the print support At the oral hearing of this case held on 28 April 1995, respondent
which you have extended during the May 11, Comelec through its Chairman, Hon. Bernardo Pardo, in response
1992 synchronized elections which was 2 full to inquiries from the Chief Justice and other Members of the
pages for each political party fielding senatorial Court, stated that Resolution No. 2772, particularly Section 2
candidates, from March 6, 1995 to May 6, 1995, thereof and the 22 March 1995 letters dispatched to various
to make known their qualifications, their stand members of petitioner PPI, were not intended to compel those
on public issues and their platforms and members to supply Comelec with free print space. Chairman
programs of government. Pardo represented to the Court that Resolution and the related
letter-directives were merely designed to solicit from the
publishers the same free print space which many publishers had
We shall be informing the political parties and voluntarily given to Comelec during the election period relating to
candidates to submit directly to the 11 May 1992 elections. Indeed, the Chairman stated that the
you their pictures, biographical data, stand on Comelec would, that very afternoon, meet and adopt an
key public issues and platforms of appropriate amending or clarifying resolution, a certified true copy
government either as raw data or in the form of which would forthwith be filed with the Court.
of positives or camera-ready materials.
On 5 May 1995, the Court received from the Office of the Solicitor
Please be reminded that the political General a manifestation which attached a copy of Comelec
parties/candidates may be accommodated in Resolution No. 2772-A dated 4 May 1995. The operative portion of
your publication any day upon receipt of their this Resolution follows:
materials until May 6, 1995 which is the last day
for campaigning.
NOW THEREFORE, pursuant to the powers
vested in it by the Constitution, the Omnibus
We trust you to extend your full support and Election Code, Republic Acts No. 6646 and
cooperation in this regard. (Emphasis supplied) 7166 and other election laws, the Commission
on Elections RESOLVED to clarify Sections 2
In this Petition for Certiorari and Prohibition with prayer for the and 8 of Res. No. 2772 as follows:
issuance of a Temporary Restraining Order, PPI asks us to
declare Comelec Resolution No. 2772 unconstitutional and void 1. Section 2 of Res. No. 2772 shall not be
on the ground that it violates the prohibition imposed by the construed to mean as requiring publishers of the
Constitution upon the government, and any of its agencies, different mass media print publications to
against the taking of private property for public use without just provide print space under pain of prosecution,
compensation. Petitioner also contends that the 22 March 1995 whether administrative, civil or criminal, there
letter directives of Comelec requiring publishers to give free being no sanction or penalty for violation of said
"Comelec Space" and at the same time process raw data to make Section provided for either in said Resolution or
it camera-ready, constitute impositions of involuntary servitude, in Section 90 of Batas Pambansa Blg. 881,
contrary to the provisions of Section 18 (2), Article III of the 1987 otherwise known as the Omnibus Election
Constitution. Finally, PPI argues that Section 8 of Comelec Code, on the grant of "Comelec space."
Resolution No. 2772 is violative of the constitutionally guaranteed
freedom of speech, of the press and of expression. 1
2. Section 8 of Res. No. 2772 shall not be
construed to mean as constituting prior restraint
On 20 April 1995, this Court issued a Temporary Restraining on the part of publishers with respect to the
Order enjoining Comelec from enforcing and implementing printing or publication of materials in the news,
Section 2 of Resolution No. 2772, as well as the Comelec opinion, features or other sections of their
directives addressed to various print media enterprises all dated respective publications or other accounts or
22 March 1995. The Court also required the respondent to file a comments, it being clear from the last sentence
Comment on the Petition. of said Section 8 that the Commission shall,
 "unless the facts and circumstances clearly demonstrated, that Comelec has been granted the power of
indicate otherwise . . . respect the determination eminent domain either by the Constitution or by the legislative
by the publisher and/or editors of the authority. A reasonable relationship between that power and the
newspapers or publications that the accounts or enforcement and administration of election laws by Comelec must
views published are significant, newsworthy and be shown; it is not casually to be assumed.
of public interest."
That the taking is designed to subserve "public use" is not
This Resolution shall take effect upon approval. contested by petitioner PPI. We note only that, under Section 3 of
(Emphasis in the original) Resolution No. 2772, the free "Comelec space" sought by the
respondent Commission would be used not only for informing the
While, at this point, the Court could perhaps simply dismiss the public about the identities, qualifications and programs of
Petition for Certiorari and Prohibition as having become moot and government of candidates for elective office but also for
academic, we consider it not inappropriate to pass upon the first "dissemination of vital election information" (including,
constitutional issue raised in this case. Our hope is to put this presumably, circulars, regulations, notices, directives, etc. issued
issue to rest and prevent its resurrection. by Comelec). It seems to the Court a matter of judicial notice that
government offices and agencies (including the Supreme Court)
simply purchase print space, in the ordinary course of events,
Section 2 of Resolution No. 2772 is not a model of clarity in when their rules and regulations, circulars, notices and so forth
expression. Section 1 of Resolution No. 2772-A did not try to need officially to be brought to the attention of the general public.
redraft Section 2; accordingly, Section 2 of Resolution No. 2772
persists in its original form. Thus, we must point out that, as
presently worded, and in particular as interpreted and applied by The taking of private property for public use is, of course,
the Comelec itself in its 22 March 1995 letter-directives to authorized by the Constitution, but not without payment of "just
newspaper publishers, Section 2 of Resolution No. 2772 is clearly compensation" (Article III, Section 9). And apparently the
susceptible of the reading that petitioner PPI has given it. That necessity of paying compensation for "Comelec space" is
Resolution No. 2772 does not, in express terms, threaten precisely what is sought to be avoided by respondent
publishers who would disregard it or its implementing letters with Commission, whether Section 2 of Resolution No. 2772 is read as
some criminal or other sanction, does not by itself demonstrate petitioner PPI reads it, as an assertion of authority to require
that the Comelec's original intention was simply to solicit or newspaper publishers to "donate" free print space for Comelec
request voluntary donations of print space from publishers. A purposes, or as an exhortation, or perhaps an appeal, to
written communication officially directing a print media company publishers to donate free print space, as Section 1 of Resolution
to supply free print space, dispatched by a government (here a No. 2772-A attempts to suggest. There is nothing at all to prevent
constitutional) agency and signed by a member of the newspaper and magazine publishers from voluntarily giving free
Commission presumably legally authorized to do so, is bound to print space to Comelec for the purposes contemplated in
produce a coercive effect upon the company so addressed. That Resolution No. 2772. Section 2 of Resolution No. 2772 does not,
the agency may not be legally authorized to impose, or cause the however, provide a constitutional basis for compelling publishers,
imposition of, criminal or other sanctions for disregard of such against their will, in the kind of factual context here present, to
directions, only aggravates the constitutional difficulties inhearing provide free print space for Comelec purposes. Section 2 does not
in the present situation. The enactment or addition of such constitute a valid exercise of the power of eminent domain.
sanctions by the legislative authority itself would be open to
serious constitutional objection. We would note that the ruling here laid down by the Court is
entirely in line with the theory of democratic representative
To compel print media companies to donate "Comelec-space" of government. The economic costs of informing the general public
the dimensions specified in Section 2 of Resolution No. 2772 (not about the qualifications and programs of those seeking elective
less than one-half page), amounts to "taking" of private personal office are most appropriately distributed as widely as possible
property for public use or purposes. Section 2 failed to specify the throughout our society by the utilization of public funds, especially
intended frequency of such compulsory "donation:" funds raised by taxation, rather than cast solely on one small
only once during the period from 6 March 1995 (or 21 March sector of society, i.e., print media enterprises. The benefits which
1995) until 12 May 1995? or everyday or once a week? or as often flow from a heightened level of information on and the awareness
as Comelec may direct during the same period? The extent of the of the electoral process are commonly thought to be community-
taking or deprivation is not insubstantial; this is not a case of a de wide; the burdens should be allocated on the same basis.
minimis temporary limitation or restraint upon the use of private
property. The monetary value of the compulsory "donation," As earlier noted, the Solicitor General also contended that Section
measured by the advertising rates ordinarily charged by 2 of Resolution No. 2772, even if read as compelling publishers to
newspaper publishers whether in cities or in non-urban areas, may "donate" "Comelec space, " may be sustained as a valid exercise
be very substantial indeed. of the police power of the state. This argument was, however,
made too casually to require prolonged consideration on our part.
The taking of print space here sought to be effected may first be Firstly, there was no effort (and apparently no inclination on the
appraised under the rubric of expropriation of private personal part of Comelec) to show that the police power — essentially a
property for public use. The threshold requisites for a lawful taking power of legislation — has been constitutionally delegated to
of private property for public use need to be examined here: one is respondent Commission. 4 Secondly, while private property may
the necessity for the taking; another is the legal authority to effect indeed be validly taken in the legitimate exercise of the police
the taking. The element of necessity for the taking has not been power of the state, there was no attempt to show compliance in
shown by respondent Comelec. It has not been suggested that the the instant case with the requisites of a lawful taking under the
members of PPI are unwilling to sell print space at their normal police power. 5
rates to Comelec for election purposes. Indeed, the unwillingness
or reluctance of Comelec to buy print space lies at the heart of the Section 2 of Resolution No. 2772 is a blunt and heavy instrument
problem. 3Similarly, it has not been suggested, let alone that purports, without a showing of existence of a national
emergency or other imperious public necessity, indiscriminately for by candidates for political office. We read
and without regard to the individual business condition of Section 11 (b) as designed to cover only paid
particular newspapers or magazines located in differing parts of political advertisements of particular candidates.
the country, to take private property of newspaper or magazine
publishers. No attempt was made to demonstrate that a real and The above limitation in scope of application of
palpable or urgent necessity for the taking of print space Section 11 (b) — that it does not restrict either
confronted the Comelec and that Section 2 of Resolution No. 2772 the reporting of or the expression of belief or
was itself the only reasonable and calibrated response to such opinion or comment upon the qualifications and
necessity available to the Comelec. Section 2 does not constitute programs and activities of any and all
a valid exercise of the police power of the State. candidates for office — constitutes the critical
distinction which must be made between the
We turn to Section 8 of Resolution No. 2772, which needs to be instant case and that of Sanidad v. Commission
quoted in full again: on Elections. . . . 7 (Citations omitted; emphasis
supplied)
Sec. 8. Undue Reference to Candidates/Political
Parties in Newspapers. — No newspaper or Section 8 of Resolution No. 2772 appears to represent the effort of
publication shall allow to be printed or published the Comelec to establish a guideline for implementation of the
in the news, opinion, features, or other sections above-quoted distinction and doctrine in National Press Club an
of the newspaper or publication accounts or effort not blessed with evident success. Section 2 of Resolution
comments which manifestly favor or oppose any No. 2772-A while possibly helpful, does not add substantially to
candidate or political party by unduly or the utility of Section 8 of Resolution No. 2772. The distinction
repeatedly referring to or including therein said between paid political advertisements on the one hand and news
candidate or political party. However, unless the reports, commentaries and expressions of belief or opinion by
facts and circumstances clearly indicate reporters, broadcasters, editors, etc. on the other hand, can
otherwise, the Commission will respect the realistically be given operative meaning only in actual cases or
determination by the publisher and/or editors of controversies, on a case-to-case basis, in terms of very specific
the newspapers or publications that the sets of facts.
accounts or views published are significant,
newsworthy and of public interest. At all events, the Court is bound to note that PPI has failed to
allege any specific affirmative action on the part of Comelec
It is not easy to understand why Section 8 was included at all in designed to enforce or implement Section 8. PPI has not claimed
Resolution No. 2772. In any case, Section 8 should be viewed in that it or any of its members has sustained actual or imminent
the context of our decision in National Press Club v. Commission injury by reason of Comelec action under Section 8. Put a little
on Elections. 6 There the Court sustained the constitutionality of differently, the Court considers that the precise constitutional issue
Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms here sought to be raised — whether or not Section 8 of Resolution
Law of 1987, which prohibits the sale or donation of print space No. 2772 constitutes a permissible exercise of the Comelec's
and airtime for campaign or other political purposes, except to the power under Article IX, Section 4 of the Constitution to
Comelec. In doing so, the Court carefully distinguished (a) paid
political advertisements which are reached by the prohibition of supervise or regulate the enjoyment or
Section 11 (b), from (b) the reporting of news, commentaries and utilization of all franchise or permits for the
expressions of belief or opinion by reporters, broadcasters, operation of — media of communication or
editors, commentators or columnists which fall outside the scope information — [for the purpose of ensuring]
of Section 11 (b) and which are protected by the constitutional equal opportunity, time and space, and the right
guarantees of freedom of speech and of the press: of reply, including reasonable, equal rates
therefore, for public information campaigns and
Secondly, and more importantly, Section 11 (b) forums among candidates in connection with the
is limited in its scope of application. Analysis objective of holding free, orderly honest,
of Section 11 (b) shows that it purports to apply peaceful and credible elections —
only to the purchase and sale, including
purchase and sale disguised as a donation, of is not ripe for judicial review for lack of an actual case or
print space and air time for campaign or other controversy involving, as the very lis mota thereof, the
political purposes. Section 11 (b) does not constitutionality of Section 8.
purport in any way to restrict the reporting by
newspapers or radio or television stations of
news or news-worthy events relating to Summarizing our conclusions:
candidates, their qualifications, political parties
and programs of government. 1. Section 2 of Resolution No. 2772, in its present form and as
Moreover, Section 11 (b) does not reach interpreted by Comelec in its 22 March 1995 letter directives,
commentaries and expressions of belief or purports to require print media enterprises to "donate" free print
opinion by reporters or broadcaster or editors or space to Comelec. As such, Section 2 suffers from a fatal
commentators or columnists in respect of constitutional vice and must be set aside and nullified.
candidates, their qualifications, and programs
and so forth, so long at least as such comments, 2. To the extent it pertains to Section 8 of Resolution No. 2772,
opinions and beliefs are not in fact the Petition for Certiorari and Prohibition must be dismissed for
advertisements for particular candidates covertly lack of an actual, justiciable case or controversy.
paid for. In sum, Section 11 (b) is not to be read
as reaching any report or commentary or other
coverage that, in responsible media, is not paid
WHEREFORE, for all the foregoing, the Petition for Certiorari and THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
Prohibition is GRANTED in part and Section 2 of Resolution No. vs.
2772 in its present form and the related letter-directives dated 22 JUAN F. FAJARDO, ET AL., defendants-appellants.
March 1995 are hereby SET ASIDE as null and void, and the
Temporary Restraining Order is hereby MADE PERMANENT. The Assistant Solicitor General Esmeraldo Umali and Higinio V.
Petition is DISMISSED in part, to the extent it relates to Section 8 Catalan for appellee.
of Resolution No. 2772. No pronouncement as to costs. Prila, Pardalis and Pejo for appellants.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, REYES, J. B. L., J.:
Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Appeal from the decision of the Court of First Instance of
Quiason, J., is on leave. Camarines Sur convicting defendants-appellants Juan F. Fajardo
and Pedro Babilonia of a violation of Ordinance No. 7, Series of
1950, of the Municipality of Baao, Camarines Sur, for having
constructed without a permit from the municipal mayor a building
PHILIPPINE PRESS INSTITUTE VS. COMELEC [244 SCRA 272; that destroys the view of the public plaza.
G.R. No. 119694; 22 May 1995]
Saturday, January 31, 2009 Posted by Coffeeholic Writes It appears that on August 15, 1950, during the incumbency of
Labels: Case Digests, Political Law defendant-appellant Juan F. Fajardo as mayor of the municipality
of Baao, Camarines Sur, the municipal council passed the
Facts: Respondent Comelec promulgated Resolution No. 2772 ordinance in question providing as follows:
directing newspapers to provide free Comelec space of not less
than one-half page for the common use of political parties and
candidates. The Comelec space shall be allocated by the SECTION 1. Any person or persons who will construct or
Commission, free of charge, among all candidates to enable them repair a building should, before constructing or repairing,
to make known their qualifications, their stand on public Issue and obtain a written permit from the Municipal Mayor.
their platforms of government. The Comelec space shall also be
used by the Commission for dissemination of vital election SEC. 2. A fee of not less than P2.00 should be charged
information. for each building permit and P1.00 for each repair permit
issued.
Petitioner Philippine Press Institute, Inc. (PPI), a non-
profit organization of newspaper and magazine publishers, asks
SEC. 3. PENALTY — Any violation of the provisions of
the Supreme Court to declare Comelec Resolution No. 2772
the above, this ordinance, shall make the violation liable
unconstitutional and void on the ground that it violates the
to pay a fine of not less than P25 nor more than P50 or
prohibition imposed by the Constitution upon the government
imprisonment of not less than 12 days nor more than 24
against the taking of private property for public use without just
days or both, at the discretion of the court. If said building
compensation. On behalf of the respondent Comelec, the Solicitor
destroys the view of the Public Plaza or occupies any
General claimed that the Resolution is a permissible exercise of
public property, it shall be removed at the expense of the
the power of supervision (police power) of the Comelec over the owner of the building or house.
information operations of print media enterprises during the
election period to safeguard and ensure a fair, impartial and
credible election. SEC. 4. EFFECTIVITY — This ordinance shall take effect
on its approval. (Orig. Recs., P. 3)

Issue: Four years later, after the term of appellant Fajardo as mayor had
expired, he and his son in-law, appellant Babilonia, filed a written
Whether or not Comelec Resolution No. 2772 is unconstitutional. request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel
of land registered in Fajardo's name, located along the national
Held: The Supreme Court declared the Resolution as highway and separated from the public plaza by a creek (Exh. D).
unconstitutional. It held that to compel print media companies to On January 16, 1954, the request was denied, for the reason
donate “Comelec space” amounts to “taking” of private personal among others that the proposed building would destroy the view or
property without payment of the just compensation required in beauty of the public plaza (Exh. E). On January 18, 1954,
expropriation cases. Moreover, the element of necessity for the defendants reiterated their request for a building permit (Exh. 3),
taking has not been established by respondent Comelec, but again the request was turned down by the mayor. Whereupon,
considering that the newspapers were not unwilling to sell appellants proceeded with the construction of the building without
advertising space. The taking of private property for public use is a permit, because they needed a place of residence very badly,
authorized by the constitution, but not without payment of just their former house having been destroyed by a typhoon and
compensation. Also Resolution No. 2772 does not constitute a hitherto they had been living on leased property.
valid exercise of the police power of the state. In the case at
bench, there is no showing of existence of a national emergency
On February 26, 1954, appellants were charged before and
to take private property of newspaper or magazine publishers
convicted by the justice of the peace court of Baao, Camarines
Sur, for violation of the ordinance in question. Defendants
appealed to the Court of First Instance, which affirmed the
conviction, and sentenced appellants to pay a fine of P35 each
G.R. No. L-12172 August 29, 1958 and the costs, as well as to demolish the building in question
because it destroys the view of the public plaza of Baao, in that "it
hinders the view of travelers from the National Highway to the said
public plaza." From this decision, the accused appealed to the thus interpreted, the ordinance is unreasonable and oppressive, in
Court of Appeals, but the latter forwarded the records to us that it operates to permanently deprive appellants of the right to
because the appeal attacks the constitutionality of the ordinance in use their own property; hence, it oversteps the bounds of police
question. power, and amounts to a taking of appellants property without just
compensation. We do not overlook that the modern tendency is to
We find that the appealed conviction can not stand. regard the beautification of neighborhoods as conducive to the
comfort and happiness of residents. But while property may be
regulated in the interest of the general welfare, and in its pursuit,
A first objection to the validity of the ordinance in question is that the State may prohibit structures offensive to the sight (Churchill
under it the mayor has absolute discretion to issue or deny a and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the
permit. The ordinance fails to state any policy, or to set up any guise of police power, permanently divest owners of the beneficial
standard to guide or limit the mayor's action. No purpose to be use of their property and practically confiscate them solely to
attained by requiring the permit is expressed; no conditions for its preserve or assure the aesthetic appearance of the community. As
grant or refusal are enumerated. It is not merely a case of deficient the case now stands, every structure that may be erected on
standards; standards are entirely lacking. The ordinance thus appellants' land, regardless of its own beauty, stands condemned
confers upon the mayor arbitrary and unrestricted power to grant under the ordinance in question, because it would interfere with
or deny the issuance of building permits, and it is a settled rule the view of the public plaza from the highway. The appellants
that such an undefined and unlimited delegation of power to allow would, in effect, be constrained to let their land remain idle and
or prevent an activity, per se lawful, is invalid (People vs. Vera, 65 unused for the obvious purpose for which it is best suited, being
Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. urban in character. To legally achieve that result, the municipality
Co. vs. Rock Hill, 2 SE (2d) 392) must give appellants just compensation and an opportunity to be
heard.
The ordinance in question in no way controls or guides
the discretion vested thereby in the respondents. It An ordinance which permanently so restricts the use of
prescribes no uniform rule upon which the special property that it can not be used for any reasonable
permission of the city is to be granted. Thus the city is purpose goes, it is plain, beyond regulation and must be
clothed with the uncontrolled power to capriciously grant recognized as a taking of the property. The only
the privilege to some and deny it others; to refuse the substantial difference, in such case, between restriction
application of one landowner or lessee and to grant that and actual taking, is that the restriction leaves the owner
of another, when for all material purposes, the two subject to the burden of payment of taxation, while
applying for precisely the same privileges under the outright confiscation would relieve him of that burden.
same circumstances. The danger of such an ordinance is (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR.
that it makes possible arbitrary discriminations and 1110, 1116).
abuses in its execution, depending upon no conditions or
qualifications whatever, other than the unregulated
arbitrary will of the city authorities as the touchstone by A regulation which substantially deprives an owner of all
which its validity is to be tested. Fundamental rights beneficial use of his property is confiscation and is a
under our government do not depend for their existence deprivation within the meaning of the 14th Amendment.
upon such a slender and uncertain thread. Ordinances (Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs.
which thus invest a city council with a discretion which is Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So.
purely arbitrary, and which may be exercised in the 114).
interest of a favored few, are unreasonable and invalid.
The ordinance should have established a rule by which Zoning which admittedly limits property to a use which
its impartial enforcement could be secured. All of the can not reasonably be made of it cannot be said to set
authorities cited above sustain this conclusion. aside such property to a use but constitutes the taking of
such property without just compensation. Use of property
As was said in City of Richmond vs. Dudley, 129 Ind. is an element of ownership therein. Regardless of the
112,28 N. E. 312, 314 13 L. R. A. 587, 28 Am. St. Rep. opinion of zealots that property may properly, by zoning,
180: "It seems from the foregoing authorities to be well be utterly destroyed without compensation, such principle
established that municipal ordinances placing restrictions finds no support in the genius of our government nor in
upon lawful conduct or the lawful use of property must, in the principles of justice as we known them. Such a
order to be valid, specify the rules and conditions to be doctrine shocks the sense of justice. If it be of public
observed in such conduct or business; and must admit of benefit that property remain open and unused, then
the exercise of the privilege of all citizens alike who will certainly the public, and not the private individuals,
comply with such rules and conditions; and must not should bear the cost of reasonable compensation for
admit of the exercise, or of an opportunity for the such property under the rules of law governing the
exercise, of any arbitrary discrimination by the municipal condemnation of private property for public use. (Tews
authorities between citizens who will so comply. (Schloss vs. Woolhiser (1933) 352 I11. 212, 185 N.E. 827)
Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (Emphasis supplied.)
(2d), pp. 394-395).
The validity of the ordinance in question was justified by the court
It is contended, on the other hand, that the mayor can refuse a below under section 2243, par. (c), of the Revised Administrative
permit solely in case that the proposed building "destroys the view Code, as amended. This section provides:
of the public plaza or occupies any public property" (as stated in
its section 3); and in fact, the refusal of the Mayor of Baao to issue SEC. 2243. Certain legislative powers of discretionary
a building permit to the appellant was predicated on the ground character. — The municipal council shall have authority
that the proposed building would "destroy the view of the public to exercise the following discretionary powers:
plaza" by preventing its being seen from the public highway. Even
 xxx xxx xxx be secured. All of the authorities cited above sustain this
conclusion.
(c) To establish fire limits in populous centers, prescribe The ordinance is unreasonable and oppressive, in that it operates
the kinds of buildings that may be constructed or repaired to permanently deprive appellants of the right to use their own
within them, and issue permits for the creation or repair property; hence, it oversteps the bounds of police power,
thereof, charging a fee which shall be determined by the and amounts to a taking of appellants property without just
municipal council and which shall not be less than two compensation.
pesos for each building permit and one peso for each While property may be regulated to the interest of the general
repair permit issued. The fees collected under the welfare, and the state may eliminate structures offensive to the
provisions of this subsection shall accrue to the municipal sight, the state may not permanently divest owners of
school fund. the beneficial use of their property and practically confiscate them
solely to preserve or assure the aesthetic appearance of the
community.
Under the provisions of the section above quoted, however, the Fajardo would be constrained to let the land be fallow and not be
power of the municipal council to require the issuance of building used for urban purposes. To do this legally, there must be just
permits rests upon its first establishing fire limits in populous parts compensation and they must be given an opportunity to be heard.
of the town and prescribing the kinds of buildings that may be An ordinance which permanently so restricts the use of property
constructed or repaired within them. As there is absolutely no that it can not be used for any reasonable purpose goes, it is plain,
showing in this case that the municipal council had either beyond regulation and must be recognized as a taking of the
established fire limits within the municipality or set standards for property.
the kind or kinds of buildings to be constructed or repaired within The validity was also refuted by the Admin Code which states:
them before it passed the ordinance in question, it is clear that SEC. 2243. Certain legislative powers of discretionary character.
said ordinance was not conceived and promulgated under the — The municipal council shall have authority to exercisethe
express authority of sec. 2243 (c) aforequoted. following discretionary powers:
xxx xxx xxx
We rule that the regulation in question, Municipal Ordinance No. 7, (c) To establish fire limits in populous centers, prescribe the kinds
Series of 1950, of the Municipality of Baao, Camarines Sur, was of buildings that may be constructed or repaired within them, and
beyond the authority of said municipality to enact, and is therefore issue permits for the creation or repair thereof, charging a fee
null and void. Hence, the conviction of herein appellants is which shall be determined by the municipal council and which
reversed, and said accused are acquitted, with costs de oficio. So shall not be less than two pesos for each building permit and one
ordered. peso for each repair permit issued. The fees collected under the
provisions of this subsection shall accrue to the municipal school
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista fund.
Angelo, Concepcion, Endencia and Felix, JJ.,concur. Since, there was absolutely no showing in this case that the
municipal council had either established fire limits within the
municipality or set standards for the kind or kinds of buildings to
be constructed or repaired within them before it passed the
ordinance in question, it is clear that said ordinance was not
People v Fajardo G.R. No. L-12172 August 29, 1958 conceived and promulgated under the express authority of sec.
2243 (c
J. B. L . Reyes

Facts:
Fajardo was mayor in Baao, Camrines Sur when the municipal
council passed the ordinance that prohibits the construction of a
building that blocks the view of the town plaza. Moreover, it
redirects the grant of permission to themayor.
After his incumbency, Fajardo applied for a permit to build a
building beside the gasoline station near the town plaza. His
request was repeatedly denied. He continued with the
construction under the rationale that he needed a house to stay in
because the old one was destroyed by a typhoon.
He was convicted and ordered to pay a fine and demolish the
building due to its obstructing view.
He appealed to the CA, which in turn forwarded the petition due to
the question of the ordinance’s constitutionality.

Issue: Is the ordinance constitutional?

Held: No, petition granted.

Ratio:
The ordinance doesn’t state any standard that limits the grant of
power to the mayor. It is an arbitrary and unlimited conferment.
Ordinances which thus invest a city council with a discretion which
is purely arbitrary, and which may be exercised in the interest of a
favored few, are unreasonable and invalid. The ordinance should
have established a rule by which its impartial enforcement could