Cases on Eminent Domain

Martinez, Yves Tristan V

JD-1A

Manila
EN BANC
G.R. No. L-14355 October 31, 1919
THE CITY OF MANILA, plaintiff-appellant,
vs.
CHINESE COMMUNITY OF MANILA, ET
AL., defendants-appellees.
City Fiscal Diaz for appellant.
Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado
and Delgado, Filemon Sotto, and Ramon Salinas for
appellees.
JOHNSON, J.:
The important question presented by this appeal is: In
expropriation proceedings by the city of Manila, may the
courts inquire into, and hear proof upon, the necessity of the
expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila
presented a petition in the Court of First Instance of said city,
praying that certain lands, therein particularly described, be
expropriated for the purpose of constructing a public
improvement. The petitioner, in the second paragraph of the
petition, alleged:
That for the purpose of constructing a public improvement,
namely, the extension of Rizal Avenue, Manila, it is necessary
for the plaintiff to acquire ownership in fee simple of certain
parcels of land situated in the district of Binondo of said city
within Block 83 of said district, and within the jurisdiction of
this court.
The defendant, the Comunidad de Chinos de Manila [Chinese
Community of Manila], answering the petition of the plaintiff,
alleged that it was a corporation organized and existing under
and by virtue of the laws of the Philippine Islands, having for
its purpose the benefit and general welfare of the Chinese
Community of the City of Manila; that it was the owner of
parcels 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 street and roads furnished ample
means of communication for the public in the district covered
by such proposed expropriation; that if the construction of the
street or road should be considered a public necessity, other
routes were available, which would fully satisfy the plaintiff's
purposes, at much less expense and without disturbing the
resting places of the dead; that it had a Torrens title for the
lands in question; that the lands in question had been used by
the defendant for cemetery purposes; that a great number of
Chinese were buried in said cemetery; that if said
expropriation be carried into effect, it would disturb the
resting places of the dead, 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 the purchase of such new sites,
would involve the destruction of existing monuments and the
erection of new monuments in their stead, and would create
irreparable loss and injury to the defendant and to all those
persons owning and interested in the graves and monuments
which would have to be destroyed; that the plaintiff was
without right or authority to expropriate said cemetery or any
part or portion thereof for street purposes; and that the
expropriation, in fact, was not necessary as a public
improvement.
The defendant Ildefonso Tambunting, answering the petition,
denied each and every allegation of the complaint, and alleged
that said expropriation was not a public improvement; that it
was not necessary for the plaintiff to acquire the parcels of
land in question; that a portion of the lands in question was
used as a 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 association, dedicated and used for the burial of
the dead and that many dead were buried there; that if the
plaintiff deemed it 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 offered, free of charge,
would answer every public necessity on the part of the
plaintiff.
The defendant Feliza Concepcion de Delgado, with her
husband, Jose Maria Delgado, and each of the other
defendants, answering separately, presented substantially the
same defense as that presented by the Comunidad de Chinos
de Manila and Ildefonso Tambunting above referred to.
The foregoing parts of the defense presented by the defendants
have been inserted in order to show the general character of
the defenses presented by each of the defendants. The plaintiff
alleged that the expropriation was necessary. The defendants
each alleged (a) that no necessity existed for said
expropriation and (b) that the land in question was a cemetery,
which had been used as such for many years, and was covered
with sepulchres and monuments, and that the same should not
be converted into a street for public purposes.
Upon the issue thus presented by the petition and the various
answers, the Honorable Simplicio del Rosario, judge, in a very
elucidated opinion, with very clear and explicit reasons,
supported by ambulance of authorities, decided that there
was no necessity for the expropriation of the particular strip of
land in question, and absolved each and all of the defendants
from all liability under the complaint, without any finding as
to costs.
From that judgment the plaintiff appealed and presented the
above question as its principal ground of appeal.
The theory of the plaintiff is, that once it has established the
fact, under the law, that it has authority to expropriate land, it
may expropriate any land it may desire; that the only function
of the court in such proceedings is to ascertain the value of the
land in question; that neither the court nor the owners of the
land can inquire into the advisible purpose of purpose of the
expropriation or ask any questions concerning the necessities
therefor; that the courts are mere appraisers of the land
involved in expropriation proceedings, and, when the value of
the land is fixed by the method adopted by the law, to render a
judgment in favor of the defendant for its value.
That the city of Manila has authority to
expropriate private lands for public purposes, is not denied.
Section 2429 of Act No. 2711 (Charter of the city of Manila)
provides that "the city (Manila) . . . may
condemn private property for public use."
The Charter of the city of Manila contains no procedure by
which the said authority may be carried into effect. We are
driven, therefore, to the procedure marked out by Act No. 190
to ascertain how the said authority may be exercised. From an
examination of 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 department thereof, or of
any municipality, and any person, or public or private
corporation having, by law, the right to condemn private
property for public use, shall exercise that right in the manner
hereinafter prescribed."
Section 242 provides that a complaint in expropriation
proceeding shall be presented; that the complaint shall state
with certainty the right of condemnation, with a description of
the property sought to be condemned together with the interest
of each defendant separately.
Section 243 provides that if the court shall find upon trial that
the right to expropriate the land in question exists, it shall then
appoint commissioners.
Sections 244, 245 and 246 provide the method of procedure
and duty of the commissioners. Section 248 provides for an
appeal from the judgment of the Court of First Instance to the
Supreme Court. Said section 248 gives the Supreme Court
authority to inquire into the right of expropriation on the part
of the plaintiff. If the Supreme Court on appeal shall
determine that no right of expropriation existed, it shall
remand the cause to the Court of First Instance with a mandate
that the defendant be replaced in the possession of the
property and that he recover whatever damages he may have
sustained by reason of the possession of the plaintiff.
It is contended on the part of the plaintiff that the phrase in
said section, "and if the court shall find the right to expropriate
exists," means simply that, if the court finds that there is some
law authorizing the plaintiff to expropriate, then the courts
have no other function than to authorize the expropriation and
to proceed to ascertain the value of the land involved; that the
necessity for the expropriation is a legislative and not a
judicial question.
Upon the question whether expropriation is a legislative
function exclusively, and that the courts cannot intervene
except for the purpose of determining the value of the land in
question, there is much legal legislature. Much has been
written upon both sides of that question. A careful
examination of the discussions pro and con will disclose the
fact that the decisions depend largely upon particular
constitutional or statutory provisions. It cannot be denied, if
the legislature under proper authority should grant the
expropriation of a certain or particular parcel of land for
some specified public purpose, that the courts would be
without jurisdiction to inquire into the purpose of that
legislation.
If, upon the other hand, however, the Legislature should
grant general authority to a municipal corporation to
expropriate private land for public purposes, we think the
courts have ample authority in this jurisdiction, under the
provisions above quoted, to make inquiry and to hear proof,
upon an issue properly presented, concerning whether or not
the lands were private and whether the purpose was, in
fact, public. In other words, have no the courts in this
jurisdiction the right, inasmuch as the questions relating to
expropriation must be referred to them (sec. 241, Act No. 190)
for final decision, to ask whether or not the law has been
complied with? Suppose in a particular case, it should be
denied that the property is not private property but public, may
not the courts hear proof upon that question? Or, suppose the
defense is, that the purpose of the expropriation is
not public but private, or that there exists no public purpose at
all, may not the courts make inquiry and hear proof upon that
question?
The city of Manila is given authority to
expropriate private lands for public purposes. Can it be
possible that said authority confers the right to determine for
itself that the land is private and that the purpose is public, and
that the people of the city of Manila who pay the taxes for its
support, especially those who are directly affected, may not
question one or the other, or both, of these questions? Can it
be successfully contended that the phrase used in Act No. 190,
"and if the court upon trial shall find that such right exists,"
means simply that the court shall examine the statutes
simply for the purpose of ascertaining whether a law 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 that no right of expropriation exists," that that
simply means that the Supreme Court shall also examine the
enactments of the legislature for the purpose of determining
whether or not a law exists permitting the plaintiff to
expropriate?
We are of the opinion that the power of the court is not limited
to that question. The right of expropriation is not an inherent
power in a municipal corporation, and before it can exercise
the right some law must exist conferring the power upon it.
When the courts come to determine the question, they must
only find (a) that a law or authority exists for the exercise of
the right of eminent domain, but (b) also that the right or
authority is being exercised in accordance with the law. In the
present case there are two conditions imposed upon the
authority conceded to the City of Manila: First, the land must
be private; and, second, the purpose must be public. If the
court, upon trial, finds that neither of these conditions exists
or that either one of them fails, certainly it cannot be
contended that the right is being exercised in accordance with
law.
Whether the purpose for the exercise of the right of eminent
domain is public, is a question of fact. Whether the land is
public, is a question of fact; and, in our opinion, when the
legislature conferred upon the courts of the Philippine Islands
the right to ascertain upon trial whether the right exists for the
exercise of eminent domain, it intended that the courts should
inquire into, and hear proof upon, those questions. Is it
possible that the owner of valuable land in this jurisdiction is
compelled to stand mute while his land is being expropriated
for a use not public, with the right simply to beg the city of
Manila to pay him the value of his land? Does the law in this
jurisdiction permit municipalities to expropriate lands, without
question, simply for the purpose of satisfying the aesthetic
sense of those who happen for the time being to be in
authority? Expropriation of lands usually calls for public
expense. The taxpayers are called upon to pay the costs.
Cannot the owners of land question the public use or
the public necessity?
As was said above, there is a wide divergence of opinion upon
the authority of the court to question the necessity or
advisability of the exercise of the right of eminent domain.
The divergence is usually found to depend upon particular
statutory or constitutional provisions.
It has been contended — and many cases are cited in support
of that contention, and section 158 of volume 10 of Ruling
Case Law is cited as conclusive — that the necessity for
taking property under the right of eminent domain is not a
judicial question. But those who cited said section evidently
overlooked the section immediately following (sec. 159),
which adds: "But it is obvious that if the property is taken in
the ostensible behalf of a public improvement which it can
never by any possibility serve, it is being taken for a use not
public, and the owner's constitutional rights call 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 the selection of
the sites of public improvements, it may be safely said that the
courts of the various states would feel bound to interfere to
prevent an abuse of the discretion delegated by the legislature,
by an attempted appropriation of land in utter disregard of the
possible necessity of its use, or when the alleged purpose was
a cloak to some sinister scheme." (Norwich City vs. Johnson,
86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill.,
544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio
St., 368; State vs. Stewart, 74 Wis., 620.)
Said section 158 (10 R. C. L., 183) which is cited as
conclusive authority in support of the contention of the
appellant, says:
The legislature, in providing for the exercise of the power of
eminent domain, may directly determine the necessity for
appropriating private property for a particular improvement
for public use, and it may select the exact location of the
improvement. In such a case, it is well settled that the utility of
the proposed improvement, the extent of the public necessity
for its construction, the expediency of constructing it, the
suitableness of the location selected and the consequent
necessity of taking the land selected for its site, are all
questions exclusively for the legislature to determine, and the
courts have no power to interfere, or to substitute their own
views for those of the representatives of the people.
Practically every case cited in support of the above doctrine
has been examined, and we are justified in making the
statement that in each case the legislature directly determined
the necessity for the exercise of the right of eminent domain in
the particular case. 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 government and that department
decides that there exists a necessity for the exercise of the
right in a particular case, that then and in that case, the courts
will not go behind the action of the legislature and make
inquiry concerning the necessity. But, in the case of Wheeling,
etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106
Am. St. rep., 622, 628]), which was cited in support of the
doctrine laid down in section 158 above quoted, the court said:
But when the statute does not designate the property to be
taken nor how may be taken, then the necessity of
taking particular property is a question for the courts. Where
the application to condemn or appropriate is made directly to
the court, the question (of necessity) should be raised and
decided in limene.
The legislative department of the government was rarely
undertakes to designate the precise property which should be
taken for public use. It has generally, like in the present case,
merely conferred general authority to take land for public use
when a necessity exists therefor. We believe that it can be
confidently asserted that, under such statute, the allegation of
the necessity for the appropriation is an issuable allegation
which it is competent for the courts to decide.
(Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402,
407].)
There is a wide distinction between a legislative declaration
that a municipality is given authority to exercise the right of
eminent domain, and a decision by the municipality that there
exist a necessity for the exercise of that right in a particular
case. The first is a declaration simply that there exist reasons
why the right should be conferred upon municipal corporation,
while the second is the application of the right to a particular
case. Certainly, the legislative declaration relating to the
advisability of granting the power cannot be converted into a
declaration that a necessity exists for its exercise in a
particular case, and especially so when, perhaps, the land in
question was not within the territorial authority was granted.
Whether it was wise, advisable, or necessary to confer upon a
municipality the power to exercise the right of eminent
domain, is a question with which the courts are not concerned.
But when that right or authority is exercised for the purpose of
depriving citizens of their property, the courts are authorized,
in this jurisdiction, to make inquiry and to hear proof upon the
necessity in the particular case, and not the general authority.
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.),
page 629, is cited as a further conclusive authority upon the
question that the necessity for the exercise of the right of
eminent domain is a legislative and not a judicial question.
Cyclopedia, at the page stated, says:
In the absence of some constitutional or statutory provision to
the contrary, the necessity and expediency of exercising the
right of eminent domain are questions essentially political and
not judicial in their character. The determination of those
questions (the necessity and the expediency) belongs to the
sovereign power; the legislative department is final and
conclusive, and the courts have no power to review it (the
necessity and the expediency) . . . . It (the legislature) may
designate the particular property to be condemned, and its
determination in this respect cannot be reviewed by the courts.
The volume of Cyclopedia, above referred to, cites many cases
in support of the doctrine quoted. While time has not
permitted an examination of all of said citations, many of them
have been examined, and it can be confidently asserted that
said cases which are cited in support of the assertion that, "the
necessity and expediency of exercising the right of eminent
domain are questions essentially political and not judicial,"
show clearly and invariably that in each case the legislature
itself usually, by a special law, designated the particular
case in which the right of eminent domain might be exercised
by the particular municipal corporation or entity within the
state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125
[15 Am. Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45
N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry.
Co., 208 U. S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223
U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co., 229
U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668;
Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of
Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)
In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the
Supreme Court of the United States said: "It is erroneous to
suppose that the legislature is beyond the control of the courts
in exercising the power of eminent domain, either as to
the nature of the use or the necessity to the use of any
particular property. For if the use be not public or no
necessity for the taking exists, the legislature cannot authorize
the taking of private property against the will of the owner,
notwithstanding compensation may be required."
In the case of School Board of Carolina vs. Saldaña (14 Porto
Rico, 339, 356), we find the Supreme Court of Porto Rico,
speaking through Justice MacLeary, quoting approvingly the
following, upon the question which we are discussing: "It is
well settled that although the legislature must necessarily
determine in the first instance whether the use for which they
(municipalities, etc.) attempt to exercise the power is a public
one or not, their (municipalities, etc.) determination is not
final, but is subject to correction by the courts, who may
undoubtedly declare the statute unconstitutional, if it shall
clearly appear that the use for which it is proposed to authorize
the taking of private property is in reality not public but
private." Many cases are cited in support of that doctrine.
Later, in the same decision, we find the Supreme Court of
Porto Rico says: "At any rate, the rule is quite well settled that
in the cases under consideration the determination of the
necessity of taking a particular piece or a certain amount of
land rests ultimately with the courts." (Spring Valley etc.
Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
In the case of Board of Water Com'rs., etc. vs. Johnson (86
Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court of
Connecticut approvingly quoted the following doctrine from
Lewis on Eminent Domain (3d ed.), section 599: "In all such
cases the necessity of public utility of the proposed work or
improvement is a judicial question. In all such cases, where
the authority is to take property necessary for the purpose, the
necessity of taking particular property for a particular purpose
is a judicial one, upon which the owner is entitled to be
heard." (Riley vs. Charleston, etc. Co., 71 S. C., 457, 489 [110
Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390,
403.)
The taking of private property for any use which is not
required by the necessities or convenience of the inhabitants of
the state, is an 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, 545; Greasy, etc. Co. vs. Ely, etc.
Co., 132 Ky., 692, 697.)
In the case of New Central Coal Co. vs. George's etc. Co. (37
Md., 537, 564), the Supreme Court of the State of Maryland,
discussing the question before us, said: "To justify the exercise
of this extreme power (eminent domain) where the legislature
has left it to depend upon the necessity that may be found to
exist, in order to accomplish the purpose of the incorporation,
as in this case, the party claiming the right to the exercise of
the power should be required to show at least a reasonable
degree of necessity for its exercise. Any rule less strict than
this, with the large and almost indiscriminate delegation of the
right to corporations, would likely lead to oppression and the
sacrifice of private right to corporate power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433),
the court said: "Its right to condemn property is not a general
power of condemnation, but is limited to cases where a
necessity for resort to private property is shown to exist. Such
necessity must appear upon the face of the petition to
condemn. If the necessary is denied the burden is upon the
company (municipality) to establish it." (Highland, etc.
Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens'
Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon
Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)
It is true that naby decisions may be found asserting that what
is a public use is a legislative question, and many other
decisions declaring with equal emphasis that it is a judicial
question. But, as long as there is a constitutional or statutory
provision denying the right to take land for any use other than
a public use, it occurs to us that the question whether
any particular use is a public one or not is ultimately, at least,
a judicial question. The legislative may, it is true, in effect
declare certain uses to be public, and, under the operation of
the well-known rule that a statute will not be declared to be
unconstitutional except in a case free, or comparatively free,
from doubt, the courts will certainly sustain the action of the
legislature unless it appears that the particular use is clearly
not of a public nature. The decisions must be understood with
this limitation; for, certainly, no court of last resort will be
willing to declare that any and every purpose which the
legislative might happen to designate as a public use shall be
conclusively held to be so, irrespective of the purpose in
question and of its manifestly private character Blackstone in
his Commentaries on the English Law remarks that, so great is
the regard of the law for private property that it will not
authorize the least violation of it, even for the public good,
unless there exists a very great necessity therefor.
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the
Supreme Court of the United States said: "That government
can scarcely be deemed free where the rights of property are
left solely defendant on the legislative body, without restraint.
The fundamental maxims of free government seem to require
that the rights of personal liberty and private property should
be held sacred. At least no court of justice in this country
would be warranted in assuming that the power to violate and
disregard them — a power so repugnant to the common
principles of justice and civil liberty — lurked in any general
grant of legislature authority, or ought to be implied from any
general expression of 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 Domain, sec. 603;
Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7
La. Ann., 182.)
Blackstone, in his Commentaries on the English Law said that
the 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 that men are heirs to. That right has been written
into the organic law of every civilized nation. The Acts of
Congress of July 1, 1902, and of August 29, 1916, which
provide that "no law shall be enacted in the Philippine Islands
which shall deprive any person of his property without due
process of law," are but a restatement of the time-honored
protection of the absolute right of the individual to his
property. Neither did said Acts of Congress add anything to
the law already existing in the Philippine Islands. The
Spaniard fully recognized the principle and adequately
protected the inhabitants of the Philippine Islands against the
encroachment upon the private property of the individual.
Article 349 of the Civil Code provides that: "No one may be
deprived of his property unless it be by competent authority,
for some purpose of proven public utility, and after payment
of the proper compensation Unless this requisite (proven
public utility and payment) has been complied with, it shall be
the duty of the courts to protect the owner of such property in
its possession or to restore its possession to him , as the case
may be."
The exercise of the right of eminent domain, whether directly
by the State, or by its authorized agents, is necessarily in
derogation of private rights, and the rule in that case is that the
authority must be strictly construed. No species of property is
held by individuals with greater tenacity, and none is guarded
by the constitution and laws more sedulously, than the right to
the freehold of inhabitants. When the legislature interferes
with that right, and, for greater public purposes, appropriates
the land of an individual without his consent, the plain
meaning of the law should not be enlarged by doubtly
interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal.,
306 and cases cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner
without his consent is one of the most delicate exercise of
government authority. It is to be watched with jealous
scrutiny. Important as the power may be to the government,
the inviolable sanctity which all free constitutions attach to the
right of property of the citizens, constrains the strict
observance of the substantial provisions of the law which
are prescribed as modes of the exercise of the power, and to
protect it from abuse. Not only must the authority of municipal
corporations to take property be expressly conferred and the
use for which it is taken specified, but the power, with all
constitutional limitation and directions for its exercise, must
be strictly pursued. (Dillon on Municipal Corporations [5th
Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad
Co., 22 Phil., 411.)
It can scarcely be contended that a municipality would be
permitted to take property for some public use unless some
public necessity existed therefor. The right to take private
property for public use originates in the necessity, and the
taking must be limited by such necessity. The appellant
contends that inasmuch 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 closed to the owners of
the property upon that question. Can it be imagined, when the
legislature adopted section 2429 of Act No. 2711, that it
thereby declared that it was necessary to appropriate the
property of Juan de la Cruz, whose property, perhaps, was not
within the city limits at the time the law was adopted? The
legislature, then, not having declared the necessity, can it be
contemplated that it intended that a municipality should be the
sole judge of the necessity in every case, and that the courts, in
the face of the provision that "if upon trial they shall find that
a right exists," cannot in that trial inquire into and hear proof
upon the necessity for the appropriation in a particular case?
The Charter of the city of Manila authorizes the taking
of private property for public use. Suppose the owner of the
property denies and successfully proves that the taking of his
property serves no public use: Would the courts not be
justified in inquiring into that question and in finally denying
the petition if no public purpose was proved? Can it be denied
that the courts have a right to inquire into that question? If the
courts can ask questions and decide, upon an issue properly
presented, whether the use is public or not, is not that
tantamount to permitting the courts to inquire into the
necessity of the appropriation? If there is no public use, then
there is no necessity, and if there is no necessity, it is difficult
to understand how a public use can necessarily exist. If the
courts can inquire into the question whether a public use exists
or not, then it seems that it must follow that they can examine
into the question of the necessity.
The very foundation of the right to exercise eminent domain is
a genuine necessity, and that necessity must be of a public
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;
Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R.
Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)
The general power to exercise the right of eminent domain
must not be confused with the right to exercise it in
a particular case. The power of the legislature to confer, upon
municipal corporations and other entities within the State,
general authority to exercise the right of eminent domain
cannot be questioned by 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 attempts to exercise the
authority conferred, it must comply with the conditions
accompanying the authority. The necessity for conferring the
authority upon a 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 particular case under the
conditions imposed by the general authority, is a question
which the courts have the right to inquire into.
The conflict in the authorities upon the question whether
the necessity for the exercise of the right of eminent domain is
purely legislative and not judicial, arises generally in the
wisdom and propriety of the legislature in authorizing the
exercise of the right of eminent domain instead of in the
question of the right to exercise it in a particular case. (Creston
Waterworks Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the power of
restricting the exercise of eminent domain to the actual
reasonable necessities of the case and for the purposes
designated by the law. (Fairchild vs. City of St. Paul. 48
Minn., 540.)
And, moreover, the record does not show conclusively that the
plaintiff has definitely decided that their exists a necessity for
the appropriation of the particular land described in the
complaint. Exhibits 4, 5, 7, and E clearly indicate that the
municipal board believed at one time that other land might be
used for the proposed improvement, thereby avoiding the
necessity of distributing the quiet resting place of the dead.
Aside from insisting that there exists no necessity for the
alleged improvements, the defendants further contend that the
street in question should not be opened through the cemetery.
One of the defendants alleges that said cemetery
is public property. If that allegations is true, then, of course,
the city of Manila cannot appropriate it for public use. The
city of Manila can only expropriate private property.
It is a well known fact that cemeteries may be public or
private. The former is a cemetery used by the general
community, or neighborhood, or church, while the latter is
used only by a family, or a small portion of the community or
neighborhood. (11 C. J., 50.)
Where a cemetery is open to public, it is a public use and no
part of the ground can be taken for other public uses under a
general authority. And this immunity extends to the
unimproved and unoccupied parts which are held in good faith
for future use. (Lewis on Eminent Domain, sec. 434, and cases
cited.)
The cemetery in question seems to have been established
under governmental authority. The Spanish Governor-General,
in an order creating the same, used the following language:
The cemetery and general hospital for indigent Chinese having
been founded and maintained by the spontaneous and fraternal
contribution of their protector, merchants and industrials,
benefactors of mankind, in consideration of their services to
the Government of the Islands its internal administration,
government and regime must necessarily be adjusted to the
taste and traditional practices of those born and educated in
China in order that the sentiments which animated the
founders may be perpetually effectuated.
It is alleged, and not denied, that the cemetery in question may
be used by the general community of Chinese, which fact, in
the general acceptation of the definition of a public cemetery,
would make the cemetery in question public property. If that is
true, then, of course, the petition of the plaintiff must be
denied, for the reason that the city of Manila has no authority
or right under the law to expropriate public property.
But, whether or not the cemetery is public or private property,
its appropriation for the uses of a public street, especially
during the lifetime of those specially interested in its
maintenance as a cemetery, should be a question of great
concern, and its appropriation should not be made for such
purposes until it is fully established that the greatest necessity
exists therefor.
While we do not contend that the dead must not give place to
the living, and while it is a matter of public knowledge that in
the process of time sepulchres may become the seat of cities
and cemeteries traversed by streets and daily trod by the feet
of millions of men, yet, nevertheless such sacrifices and such
uses of 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 the dead are still within
the memory and command of the active care of the living;
while they are still devoted to pious uses and sacred regard, it
is difficult to believe that even the legislature would adopt a
law expressly providing that such places, under such
circumstances, should be violated.
In such an appropriation, what, we may ask, would be the
measure of damages at law, for the wounded sensibilities of
the 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 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 of our friends,
should be maintained, and the preventative aid of the courts
should be invoked for that object. (Railroad
Company vs. Cemetery Co., 116 Tenn., 400; Evergreen
Cemetery Association vs. The City of New Haven, 43 Conn.,
234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz,
2 Peters, 566.)
In the present case, even granting that a necessity exists for the
opening of the street in question, the record contains no proof
of 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.
For all of the foregoing, we are fully persuaded that the
judgment of the lower court should be and is hereby affirmed,
with costs against the appellant. So ordered.
Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.
U.S. Supreme Court
United States v. Causby, 328 U.S. 256 (1946)
United States v. Causby
No. 630
Argued May 1, 1946
Decided May 27, 1946
328 U.S. 256
CERTIORARI TO THE COURT OF CLAIMS
Syllabus
Respondents owned a dwelling and a chicken farm near a
municipal airport. The safe path of glide to one of the runways
of the airport passed directly over respondents' property at 83
feet, which was 67 feet above the house, 63 feet above the
barn and 18 feet above the highest tree. It was used 4% of the
time in taking off and 7% of the time in landing. The
Government leased the use of the airport for a term of one
month commencing June 1, 1942, with a provision for
renewals until June 30, 1967, or six months after the end of
the national emergency, whichever was earlier. Various
military aircraft of the United States used the airport. They
frequently came so close to respondents' property that they
barely missed the tops of trees, the noise was startling, and the
glare from their landing lights lighted the place up brightly at
night. This destroyed the use of the property as a chicken farm
and caused loss of sleep, nervousness, and fright on the part of
respondents. They sued in the Court of Claims to recover for
an alleged taking of their property and for damages to their
poultry business. The Court of Claims found that the
Government had taken an easement over respondents'
property, and that the value of the property destroyed and the
easement taken was $2,000; but it made no finding as to the
precise nature or duration of the easement.
Held:
1. A servitude has been imposed upon the land for which
respondents are entitled to compensation under the Fifth
Amendment. Pp. 328 U. S. 260-267.
(a) The common law doctrine that ownership of land extends
to the periphery of the universe has no place in the modern
world. Pp. 328 U. S. 260-261.
(b) The air above the minimum safe altitude of flight
prescribed by the Civil Aeronautics Authority is a public
highway and part of the public domain, as declared by
Congress in the Air Commerce Act of 1926, as amended by
the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328
U. S. 266.
(c) Flights below that altitude are not within the navigable air
space which Congress placed within the public domain, even
though they are within the path of glide approved by the Civil
Aeronautics Authority. Pp. 328 U.S. 263-264.
Page 328 U. S. 257
(d) Flights of aircraft over private land which are so low and
frequent as to be a direct and immediate interference with the
enjoyment and use of the land are as much an appropriation of
the use of the land as a more conventional entry upon it.
Pp. 328 U. S. 261-262, 328 U. S. 264-267.
2. Since there was a taking of private property for public use,
the claim was "founded upon the Constitution," within the
meaning of § 141(1) of the Judicial Code, and the Court of
Claims had jurisdiction to hear and determine it. P. 328 U. S.
267.
3. Since the court's findings of fact contain no precise
description of the nature or duration of the easement taken, the
judgment is reversed, and the cause is remanded to the Court
of Claims so that it may make the necessary findings. Pp. 328
U. S. 267-268.
(a) An accurate description of the easement taken is essential,
since that interest vests in the United States. P. 328 U. S. 267.
(b) Findings of fact on every "material issue" are a statutory
requirement, and a deficiency in the findings cannot be
rectified by statements in the opinion. Pp. 328 U. S. 267-268.
(c) A conjecture in lieu of a conclusion from evidence would
not be a proper foundation for liability of the United States.
P. 328 U. S. 268.
104 Ct.Cls. 342, 60 F. Supp. 751, reversed and remanded.
The Court of Claims granted respondents a judgment for the
value of property destroyed and damage to their property
resulting from the taking of an easement over their property by
low-flying military aircraft of the United States, but failed to
include in its findings of fact a specific description of the
nature or duration of the easement. 104 Ct.Cls. 342, 60 F.
Supp. 751. This Court granted certiorari. 327 U.S.
775. Reversed and remanded, p. 328 U. S. 268.
Page 328 U. S. 258
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a case of first impression. The problem presented is
whether respondents' property was taken within the meaning
of the Fifth Amendment by frequent and regular flights of
army and navy aircraft over respondents' land at low altitudes.
The Court of Claims held that there was a taking, and entered
judgment for respondent, one judge dissenting. 60 F. Supp.
751. The case is here on a petition for a writ of certiorari
which we granted because of the importance of the question
presented.
Respondents own 2.8 acres near an airport outside of
Greensboro, North Carolina. It has on it a dwelling house, and
also various outbuildings which were mainly used for raising
chickens. The end of the airport's northwest-southeast runway
is 2,220 feet from respondents' barn and 2,275 feet from their
house. The path of glide to this runway passes directly over
the property -- which is 100 feet wide and 1,200 feet long. The
30 to 1 safe glide angle [Footnote 1] approved by the Civil
Aeronautics Authority [Footnote 2] passes over this property
at 83 feet, which is 67 feet above the house, 63 feet above the
barn and 18 feet above the highest tree. [Footnote 3] The use
by the United States of this airport is pursuant to a lease
executed in May, 1942, for a term commencing June 1, 1942
and ending June 30, 1942, with a provision for renewals until
June 30, 1967, or six
Page 328 U. S. 259
months after the end of the national emergency, whichever is
the earlier.
Various aircraft of the United States use this airport --
bombers, transports, and fighters. The direction of the
prevailing wind determines when a particular runway is used.
The northwest-southeast runway in question is used about four
percent of the time in taking off and about seven percent of the
time in landing. Since the United States began operations in
May, 1942, its four-motored heavy bombers, other planes of
the heavier type, and its fighter planes have frequently passed
over respondents' land buildings in considerable numbers and
rather close together. They come close enough at times to
appear barely to miss the tops of the trees, and at times so
close to the tops of the trees as to blow the old leaves off. The
noise is startling. And, at night, the glare from the planes
brightly lights up the place. As a result of the noise,
respondents had to give up their chicken business. As many as
six to ten of their chickens were killed in one day by flying
into the walls from fright. The total chickens lost in that
manner was about 150. Production also fell off. The result was
the destruction of the use of the property as a commercial
chicken farm. Respondents are frequently deprived of their
sleep, and the family has become nervous and frightened.
Although there have been no airplane accidents on
respondents' property, there have been several accidents near
the airport and close to respondents' place. These are the
essential facts found by the Court of Claims. On the basis of
these facts, it found that respondents' property had depreciated
in value. It held that the United States had taken an easement
over the property on June 1, 1942, and that the value of the
property destroyed and the easement taken was $2,000.
Page 328 U. S. 260
I. The United States relies on the Air Commerce Act of 1926,
44 Stat. 568, 49 U.S.C. § 171 et seq., as amended by the Civil
Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401 et
seq. Under those statutes, the United States has "complete and
exclusive national sovereignty in the air space" over this
country. 49 U.S.C. § 176(a). They grant any citizen of the
United States "a public right of freedom of transit in air
commerce [Footnote 4] through the navigable air space of the
United States." 49 U.S.C. § 403. And "navigable air space" is
defined as "airspace above the minimum safe altitudes of
flight prescribed by the Civil Aeronautics Authority." 49
U.S.C. § 180. And it is provided that "such navigable airspace
shall be subject to a public right of freedom of interstate and
foreign air navigation." Id. It is therefore argued that, since
these flights were within the minimum safe altitudes of flight
which had been prescribed, they were an exercise of the
declared right of travel through the airspace. The United States
concludes that, when flights are made within the navigable
airspace without any physical invasion of the property of the
landowners, there has been no taking of property. It says that,
at most, there was merely incidental damage occurring as a
consequence of authorized air navigation. It also argues that
the landowner does not own superadjacent airspace which he
has not subjected to possession by the erection of structures or
other occupancy. Moreover, it is argued that, even if the
United States took airspace owned by respondents, no
compensable damage was shown. Any damages are said to be
merely consequential for which no compensation may be
obtained under the Fifth Amendment.
It is ancient doctrine that at common law ownership of the
land extended to the periphery of the universe -- cujus
Page 328 U. S. 261
est solum ejus est usque and coelum. [Footnote 5] But that
doctrine has no place in the modern world. The air is a public
highway, as Congress has declared. Were that not true, every
transcontinental flight would subject the operator to countless
trespass suits. Common sense revolts at the idea. To recognize
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the
public interest, and transfer into private ownership that to
which only the public has a just claim.
But that general principle does not control the present case.
For the United States conceded on oral argument that, if the
flights over respondents' property rendered it uninhabitable,
there would be a taking compensable under the Fifth
Amendment. It is the owner's loss, not the taker's gain, which
is the measure of the value of the property taken. United States
v. Miller, 317 U. S. 369. Market value fairly determined is the
normal measure of the recovery. Id. And that value may
reflect the use to which the land could readily be converted, as
well as the existing use. United States v. Powelson, 319 U. S.
266, 319 U. S. 275, and cases cited. If, by reason of the
frequency and altitude of the flights, respondents could not use
this land for any purpose, their loss would be complete.
[Footnote 6] It would be as complete as if the United States
had entered upon the surface of the land and taken exclusive
possession of it.
We agree that, in those circumstances, there would be a
taking. Though it would be only an easement of flight
Page 328 U. S. 262
which was taken, that easement, if permanent and not merely
temporary, normally would be the equivalent of a fee interest.
It would be a definite exercise of complete dominion and
control over the surface of the land. The fact that the planes
never touched the surface would be as irrelevant as the
absence in this day of the feudal livery of seisin on the transfer
of real estate. The owner's right to possess and exploit the land
-- that is to say, his beneficial ownership of it -- would be
destroyed. It would not be a case of incidental damages arising
from a legalized nuisance, such as was involved in Richards v.
Washington Terminal Co., 233 U. S. 546. In that case,
property owners whose lands adjoined a railroad line were
denied recovery for damages resulting from the noise,
vibrations, smoke, and the like, incidental to the operations of
the trains. In the supposed case, the line of flight is over the
land. And the land is appropriated as directly and completely
as if it were used for the runways themselves.
There is no material difference between the supposed case and
the present one, except that, here, enjoyment and use of the
land are not completely destroyed. But that does not seem to
us to be controlling. The path of glide for airplanes might
reduce a valuable factory site to grazing land, an orchard to a
vegetable patch, a residential section to a wheat field. Some
value would remain. But the use of the airspace immediately
above the land would limit the utility of the land and cause a
diminution in its value. [Footnote 7] That was the philosophy
of Portsmouth Harbor Land & Hotel Co. v.
Page 328 U. S. 263
United States, 260 U. S. 327. In that case, the petition alleged
that the United States erected a fort on nearby land,
established a battery and a fire control station there, and fired
guns over petitioner's land. The Court, speaking through Mr.
Justice Holmes, reversed the Court of Claims which dismissed
the petition on a demurrer, holding that "the specific facts set
forth would warrant a finding that a servitude has been
imposed." [Footnote 8] 260 U.S. at 260 U. S. 330. And see
Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245. Cf.
United States v. 357.25 Acres of Land, 55 F. Supp. 461.
The fact that the path of glide taken by the planes was that
approved by the Civil Aeronautics Authority does not change
the result. The navigable airspace which Congress has placed
in the public domain is "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics
Authority." 49 U.S.C. § 180. If that agency prescribed 83 feet
as the minimum safe altitude, then we would have presented
the question of the validity of the regulation. But nothing of
the sort has been done. The path of glide governs the method
of operating -- of landing or taking off. The altitude required
for that operation is not the minimum safe altitude of flight
which is the downward reach of the navigable airspace. The
minimum prescribed by the authority is 500 feet during the
day and 1000 feet at night for air carriers (Civil Air
Regulations, Pt. 61, §§ 61.7400, 61.7401, Code
Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet
for
Page 328 U. S. 264
other aircraft depending on the type of plane and the character
of the terrain. Id., Pt. 60, §§ 60.350-60.3505,
Fed.Reg.Cum.Supp., supra. Hence, the flights in question
were not within the navigable airspace which Congress placed
within the public domain. If any airspace needed for landing
or taking off were included, flights which were so close to the
land as to render it uninhabitable would be immune. But the
United States concedes, as we have said, that, in that event,
there would be a taking. Thus, it is apparent that the path of
glide is not the minimum safe altitude of flight within the
meaning of the statute. The Civil Aeronautics Authority has,
of course, the power to prescribe air traffic rules. But
Congress has defined navigable airspace only in terms of one
of them -- the minimum safe altitudes of flight.
We have said that the airspace is a public highway. Yet it is
obvious that, if the landowner is to have full enjoyment of the
land, he must have exclusive control of the immediate reaches
of the enveloping atmosphere. Otherwise buildings could not
be erected, trees could not be planted, and even fences could
not be run. The principle is recognized when the law gives a
remedy in case overhanging structures are erected on
adjoining land. [Footnote 9] The landowner owns at least as
much of the space above the ground as the can occupy or use
in connection with the land. See Hinman v. Pacific Air
Transport, 84 F.2d 755. The fact that he does not occupy it in
a physical sense -- by the erection of buildings and the like --
is not material. As we have said, the flight of airplanes, which
skim the surface but do not touch it, is as much an
appropriation of the use of the land as a more conventional
entry upon it. We would not doubt that, if the United States
erected
Page 328 U. S. 265
an elevated railway over respondents' land at the precise
altitude where its planes now fly, there would be a partial
taking, even though none of the supports of the structure
rested on the land. [Footnote 10] The reason is that there
would be an intrusion so immediate and direct as to subtract
from the owner's full enjoyment of the property and to limit
his exploitation of it. While the owner does not in any physical
manner occupy that stratum of airspace or make use of it in
the conventional sense, he does use it in somewhat the same
sense that space left between buildings for the purpose of light
and air is used. The superadjacent airspace at this low altitude
is so close to the land that continuous invasions of it affect the
use of the surface of the land itself. We think that the
landowner, as an incident to his ownership, has a claim to it,
and that invasions of it are in the same category as invasions
of the surface. [Footnote 11]
In this case, as in Portsmouth Harbor Land & Hotel Co. v.
United States, supra, the damages were not merely
consequential. They were the product of a direct invasion of
respondents' domain.
Page 328 U. S. 266
As stated in United States v. Cress, 243 U. S. 316, 243 U. S.
328,
". . . it is the character of the invasion, not the amount of
damage resulting from it, so long as the damage is substantial,
that determines the question whether it is a taking."
We said in United States v. Powelson, supra, p. 319 U. S. 279,
that, while the meaning of "property" as used in the Fifth
Amendment was a federal question, "it will normally obtain its
content by reference to local law." If we look to North
Carolina law, we reach the same result. Sovereignty in the
airspace rests in the State "except where granted to and
assumed by the United States." Gen.Stats.1943, § 63-11. The
flight of aircraft is lawful
"unless at such a low altitude as to interfere with the then
existing use to which the land or water, or the space over the
land or water, is put by the owner, or unless so conducted as to
be imminently dangerous to persons or property lawfully on
the land or water beneath."
Id., § 63-13. Subject to that right of flight, "ownership of the
space above the lands and waters of this State is declared to be
vested in the several owners of the surface beneath." Id., § 63-
12. Our holding that there was an invasion of respondents'
property is thus not inconsistent with the local law governing a
landowner's claim to the immediate reaches of the
superadjacent airspace.
The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable
under the Fifth Amendment. The airspace, apart from the
immediate reaches above the land, is part of the public
domain. We need not determine at this time what those precise
limits are. Flights over private land are not a taking, unless
they are so low and so frequent as to be a direct and immediate
interference with the enjoyment and use of the land. We need
not speculate on that phase of the present case. For the
findings of the Court
Page 328 U. S. 267
of Claims plainly establish that there was a diminution in
value of the property, and that the frequent, low-level flights
were the direct and immediate cause. We agree with the Court
of Claims that a servitude has been imposed upon the land.
II. By § 145(1) of the Judicial Code, 28 U.S.C. § 250(1), the
Court of Claims has jurisdiction to hear and determine
"All claims (except for pensions) founded upon the
Constitution of the United States or . . . upon any contract,
express or implied, with the Government of the United
States."
We need not decide whether repeated trespasses might give
rise to an implied contract. Cf. Portsmouth Harbor Land &
Hotel Co. v. United States, supra. If there is a taking, the claim
is "founded upon the Constitution," and within the jurisdiction
of the Court of Claims to hear and determine. See Hollister v.
Benedict & Burnham Mfg. Co., 113 U. S. 59, 113 U. S.
67; Hurley v. Kincaid, 285 U. S. 95, 285 U. S. 104; Yearsley v.
W. A. Ross Construction Co., 309 U. S. 18, 309 U. S. 21.
Thus, the jurisdiction of the Court of Claims in this case is
clear.
III. The Court of Claims held, as we have noted, that an
easement was taken. But the findings of fact contain no
precise description as to its nature. It is not described in terms
of frequency of flight, permissible altitude, or type of airplane.
Nor is there a finding as to whether the easement taken was
temporary or permanent. Yet an accurate description of the
property taken is essential, since that interest vests in the
United States. United States v. Cress, supra, 243 U. S. 328-
329, and cases cited. It is true that the Court of Claims stated
in its opinion that the easement taken was permanent. But the
deficiency in findings cannot be rectified by statements in the
opinion. United States v. Esnault-Pelterie, 299 U. S. 201, 299
U. S. 205-206; United States v. Seminole Nation, 299 U. S.
417, 299 U. S. 422. Findings of fact on every "material issue"
are a statutory
Page 328 U. S. 268
requirement. 53 Stat. 752, 28 U.S.C. § 288. The importance of
findings of fact based on evidence is emphasized here by the
Court of Claims' treatment of the nature of the easement. It
stated in its opinion that the easement was permanent because
the United States "no doubt intended to make some sort of
arrangement whereby it could use the airport for its military
planes whenever it had occasion to do so." That sounds more
like conjecture, rather than a conclusion from evidence, and if
so, it would not be a proper foundation for liability of the
United States. We do not stop to examine the evidence to
determine whether it would support such a finding, if made.
For that is not our function. United States v. Esnault-Pelterie,
supra, p. 299 U. S. 206.
Since on this record it is not clear whether the easement taken
is a permanent or a temporary one, it would be premature for
us to consider whether the amount of the award made by the
Court of Claims was proper.
The judgment is reversed, and the cause is remanded to the
Court of Claims so that it may make the necessary findings in
conformity with this opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[Footnote 1]
A 30 to 1 glide angle means one foot of elevation or descent
for every 30 feet of horizontal distance.
[Footnote 2]
Military planes are subject to the rules of the Civil
Aeronautics Board where, as in the present case, there are no
Army or Navy regulations to the contrary. Cameron v. Civil
Aeronautics Board, 140 F.2d 482.
[Footnote 3]
The house is approximately 16 feet high, the barn 20 feet, and
the tallest tree 65 feet.
[Footnote 4]
"Air commerce" is defined as including "any operation or
navigation of aircraft which directly affects, or which may
endanger safety in, interstate, overseas, or foreign air
commerce." 49 U.S.C. § 401(3).
[Footnote 5]
1 Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone,
Commentaries, Lewis Ed.1902, p. 18; 3 Kent, Commentaries,
Gould Ed. 1896, p. 621.
[Footnote 6]
The destruction of all uses of the property by flooding has
been held to constitute a taking. Pumpelly v. Green Bay
Co., 13 Wall. 166; United States v. Lynah, 188 U. S.
445; United States v. Welch, 217 U. S. 333.
[Footnote 7]
It was stated in United States v. General Motors Corp., 323 U.
S. 373, 323 U. S. 378,
"The courts have held that the deprivation of the former
owner, rather than the accretion of a right or interest to the
sovereign, constitutes the taking. Governmental action short of
acquisition of title or occupancy has been held, if its effects
are so complete as to deprive the owner of all or most of his
interest in the subject matter, to amount to a taking."
The present case falls short of the General Motors case. This
is not a case where the United States has merely destroyed
property. It is using a part of it for the flight of its planes.
Cf. Warren Township School Dist. v. Detroit, 308 Mich. 460,
14 N.W.2d 134; Smith v. New England Aircraft Co., 270
Mass. 511, 170 N.E. 385; Burnham v. Beverly Airways,
Inc., 311 Mass. 628, 42 N.E.2d 575.
[Footnote 8]
On remand, the allegations in the petition were found not to be
supported by the facts. 64 Ct.Cls. 572.
[Footnote 9]
Baten's Case, 9 Coke R. 53b; Meyer v. Metzler, 51 Cal.
142; Codman v. Evans, 7 Allen 431, 89 Mass.
431; Harrington v. McCarthy, 169 Mass. 492, 48 N.E.
278. See Ball, The Vertical Extent of Ownership in Land, 76
U.Pa.L.Rev. 631, 658-671.
[Footnote 10]
It was held in Butler v. Frontier Telephone Co., 186 N.Y. 486,
79 N.E. 716, that ejectment would lie where a telephone wire
was strung across the plaintiff's property, even though it did
not touch the soil. The court stated, pp. 491-492:
". . . an owner is entitled to the absolute and undisturbed
possession of every part of his premises, including the space
above, as much as a mine beneath. If the wire had been a huge
cable, several inches thick and but a foot above the ground,
there would have been a difference in degree, but not in
principle. Expand the wire into a beam supported by posts
standing upon abutting lots without touching the surface of
plaintiff's land, and the difference would still be one of degree
only. Enlarge the beam into a bridge, and yet space only
would be occupied. Erect a house upon the bridge, and the air
above the surface of the land would alone be disturbed."
[Footnote 11]
See Bouve, Private Ownership of Navigable Airspace Under
the Commerce Clause, 21 Amer.Bar Assoc.Journ. 416, 421-
422; Hise, Ownership and Sovereignty of the Air, 16 Ia.L.Rev.
169; Eubank, The Doctrine of the Airspace Zone of Effective
Possession, 12 Boston Univ.L.Rev. 414.
MR. JUSTICE BLACK, dissenting.
The Fifth Amendment provides that "private property" shall
not "be taken for public use, without just compensation." The
Court holds today that the Government has "taken"
respondents' property by repeatedly flying Army bombers
directly above respondents' land at a height of eighty-three feet
where the light and noise from these planes caused
respondents to lose sleep, and their chickens to be killed.
Since the effect of the Court's decision is
Page 328 U. S. 269
to limit, by the imposition of relatively absolute Constitutional
barriers, possible future adjustments through legislation and
regulation which might become necessary with the growth of
air transportation, and since, in my view, the Constitution does
not contain such barriers, I dissent.
The following is a brief statement of the background and of
the events that the Court's opinion terms a "taking" within the
meaning of the Fifth Amendment: since 1928, there has been
an airfield some eight miles from Greensboro, North Carolina.
In April, 1942, this airport was taken over by the Greensboro-
High Point Municipal Airport Authority, and it has since then
operated as a municipal airport. In 1942, the Government, by
contract, obtained the right to use the field "concurrently,
jointly, and in common" with other users. Years before, in
1934, respondents had bought their property, located more
than one-third of a mile from the airport. Private planes from
the airport flew over their land and farm buildings from 1934
to 1942. and are still doing so. But though these planes
disturbed respondents to some extent, Army bombers, which
started to fly over the land in 1942 at a height of eighty-three
feet, disturbed them more, because they were larger, came
over more frequently, made a louder noise, and, at night, a
greater glare was caused by their lights. This noise and glare
disturbed respondents' sleep, frightened them, and made them
nervous. The noise and light also frightened respondents'
chickens so much that many of them flew against buildings
and were killed.
The Court's opinion seems to indicate that the mere flying of
planes through the column of air directly above respondents'
land does not constitute a "taking." Consequently, it appears to
be noise and glare, to the extent and under the circumstances
shown here, which make the government a seizer of private
property. But the allegation
Page 328 U. S. 270
of noise and glare resulting in damages constitutes at best, an
action in tort where there might be recovery if the noise and
light constituted a nuisance, a violation of a statute, [Footnote
2/1] or were the result of negligence. [Footnote 2/2] But the
Government has not consented to be sued in the Court of
Claims except in actions based on express or implied contract.
And there is no implied contract here, unless, by reason of the
noise and glare caused by the bombers, the Government can
be said to have "taken" respondents' property in a
Constitutional sense. The concept of taking property, as used
in the Constitution, has heretofore never been given so
sweeping a meaning. The Court's opinion presents no case
where a man who makes noise or shines light onto his
neighbor's property has been ejected from that property for
wrongfully taking possession of it. Nor would anyone take
seriously a claim that noisy automobiles passing on a highway
are taking wrongful possession of the homes located thereon,
or that a city elevated train which greatly interferes with the
sleep of those who live next to it wrongfully takes their
property. Even the one case in this Court which, in
considering the sufficiency of a complaint, gave the most
elastic meaning to the phrase "private property be taken," as
used in the Fifth Amendment, did not go so far. Portsmouth
Harbor Land & Hotel Co. v. United States, 260 U.S.
Page 328 U. S. 271
327. I am not willing, nor do I think the Constitution and the
decisions authorize me, to extend that phrase so as to
guarantee an absolute Constitutional right to relief not subject
to legislative change, which is based on averments that, at
best, show mere torts committed by Government agents while
flying over land. The future adjustment of the rights and
remedies of property owners, which might be found necessary
because of the flight of planes at safe altitudes, should,
especially in view of the imminent expansion of air
navigation, be left where I think the Constitution left it -- with
Congress.
Nor do I reach a different conclusion because of the fact that
the particular circumstance which under the Court's opinion
makes the tort here absolutely actionable is the passing of
planes through a column of air at an elevation of eighty-three
feet directly over respondents' property. It is inconceivable to
me that the Constitution guarantees that the airspace of this
Nation needed for air navigation is owned by the particular
persons who happen to own the land beneath to the same
degree as they own the surface below. [Footnote 2/3] No rigid
Constitutional rule, in my judgment, commands that the air
must be considered as marked off into separate compartments
by imaginary metes and bounds in order to synchronize air
ownership with land ownership. I think that the Constitution
entrusts Congress with full power to control all navigable
airspace. Congress has already acted under that power. It has
by statute, 44 Stat. 568, 52 Stat. 973, provided that
"the United States of America is . . . to possess and exercise
complete and exclusive national sovereignty in the
Page 328 U. S. 272
air space [over] the United States."
This was done under the assumption that the Commerce
Clause of the Constitution gave Congress the same plenary
power to control navigable airspace as its plenary power over
navigable waters. H.Rep. No. 572, 69th Cong., 1st Sess., p.
10; H.Rep. No. 1162, 69th Cong., 1st Sess., p. 14; United
States v. Commodore Park, Inc., 324 U. S. 386. To make sure
that the airspace used for air navigation would remain free,
Congress further declared that "navigable airspace shall be
subject to a public right of freedom of interstate and foreign
air navigation," and finally stated emphatically that there
exists "a public right of freedom of transit . . . through the
navigable airspace of the United States." Congress thus
declared that the air is free -- not subject to private ownership
and not subject to delimitation by the courts. Congress and
those acting under its authority were the only ones who had
power to control and regulate the flight of planes. "Navigable
air-space" was defined as "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics
Authority." 49 U.S.C. § 180. Thus, Congress has given the
Civil Aeronautics Authority exclusive power to determine
what is navigable airspace subject to its exclusive control.
This power derives specifically from the Section which
authorizes the Authority to prescribe
"air traffic rules governing the flight of, and for the navigation,
protection, and identification of, aircraft, including rules as to
safe altitudes of flight and rules for the prevention of
collisions between aircraft, and between aircraft and land or
water vehicles."
Here, there was no showing that the bombers flying over
respondents' land violated any rule or regulation of the Civil
Aeronautics Authority. Yet, unless we hold the Act
unconstitutional, at least such a showing would be necessary
before the courts could act without interfering with the
exclusive authority which Congress gave to the administrative
agency. Not even a
Page 328 U. S. 273
showing that the Authority has not acted at all would be
sufficient. For, in that event, were the courts to have any
authority to act in this case at all, they should stay their hand
till the Authority has acted.
The broad provisions of the Congressional statute cannot
properly be circumscribed by making a distinction, as the
Court's opinion does, between rules of safe altitude of flight
while on the level of cross-country flight and rules of safe
altitude during landing and taking off. First, such a distinction
cannot be maintained from the practical standpoint. It is
unlikely that Congress intended that the Authority prescribe
safe altitudes for planes making cross-country flights while, at
the same time, it left the more hazardous landing and take-off
operations unregulated. The legislative history, moreover,
clearly shows that the Authority's power to prescribe air traffic
rules includes the power to make rules governing landing and
take-off. Nor is the Court justified in ignoring that history by
labeling rules of safe altitude while on the level of cross-
country flight as rules prescribing the safe altitude proper and
rules governing take-off and landing as rules of operation. For
the Conference Report explicitly states that such distinctions
were purposely eliminated from the original House Bill in
order that the Section on air traffic rules "might be given the
broadest construction by the . . . [Civil Aeronautics Authority]
. . . and the courts." [Footnote 2/4] In construing the statute
narrowly the Court
Page 328 U. S. 274
thwarts the intent of Congress. A proper broad construction,
such as Congress commanded, would not permit the Court to
decide what it has today without declaring the Act of Congress
unconstitutional. I think the Act given the broad construction
intended is constitutional.
No greater confusion could be brought about in the coming
age of air transportation than that which would result were
courts by Constitutional interpretation to hamper Congress in
its efforts to keep the air free. Old concepts of private
ownership of land should not be introduced into the field of air
regulation. I have no doubt that Congress will, if not
handicapped by judicial interpretations of the Constitution,
preserve the freedom of the air, and at the same time, satisfy
the just claims of aggrieved persons. The noise of newer,
larger, and more powerful planes may grow louder and louder
and disturb people more and more. But the solution of the
problems precipitated by these technological advances and
new ways of living cannot come about through the application
of rigid Constitutional restraints formulated and enforced by
the courts. What adjustments may have to be made, only the
future can reveal. It seems certain, however,
Page 328 U. S. 275
the courts do not possess the techniques or the personnel to
consider and act upon the complex combinations of factors
entering into the problems. The contribution of courts must be
made through the awarding of damages for injuries suffered
from the flying of planes, or by the granting of injunctions to
prohibit their flying. When these two simple remedial devices
are elevated to a Constitutional level under the Fifth
Amendment, as the Court today seems to have done, they can
stand as obstacles to better adapted techniques that might be
offered by experienced experts and accepted by Congress.
Today's opinion is, I fear, an opening wedge for an
unwarranted judicial interference with the power of Congress
to develop solutions for new and vital and national problems.
In my opinion, this case should be reversed on the ground that
there has been no "taking" in the Constitutional sense.
[Footnote 2/1]
Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761.
[Footnote 2/2]
As to the damage to chickens, Judge Madden, dissenting from
this judgment against the Government said,
"When railroads were new, cattle in fields in sight and hearing
of the trains were alarmed, thinking that the great moving
objects would turn aside and harm them. Horses ran away at
the sight and sound of a train or a threshing machine engine.
The farmer's chickens have to get over being alarmed at the
incredible racket of the tractor starting up suddenly in the shed
adjoining the chicken house. These sights and noises are a part
of our world, and airplanes are now and will be to a greater
degree, likewise a part of it. These disturbances should not be
treated as torts in the case of the airplane any more than they
are so treated in the case of the railroad or public highway."
104 Ct.Cls. 342, 358.
[Footnote 2/3]
The House, in its report on the Air Commerce Act of 1926,
stated:
"The public right of flight in the navigable air space owes its
source to the same constitutional basis which, under decisions
of the Supreme Court, has given rise to a public easement of
navigation in the navigable waters of the United States
regardless of the ownership of adjacent or subjacent soil."
House Report No. 572, 69th Congress, First Session, page 10.
[Footnote 2/4]
The full statement read:
"The substitute provides that the Secretary shall by regulation
establish air traffic rules for the navigation, protection, and
identification of all aircraft, including rules for the safe
altitudes of flight and rules for the prevention of collisions
between vessels and aircraft. The provision as to rules for
taking off and alighting, for instance, was eliminated as
unnecessary specification, for the reason that such rules are
but one class of air traffic rules for the navigation and
protection of aircraft. Rules as to marking were eliminated for
the reason that such rules were fairly included within the
scope of air rules for the identification of aircraft. No attempt
is made by either the Senate bill or the House amendment to
fully define the various classes of rules that would fall within
the scope of air traffic traffic rules, as, for instance, lights and
signals along airways and at airports and upon emergency
landing fields. In general, these rules would relate to the same
subjects as those covered by navigation laws and regulations
and by the various State motor vehicle traffic codes. As noted
above, surplusage was eliminated in specifying particular air
traffic rules in order that the term might be given the broadest
possible construction by the Department of Commerce and the
courts."
House Report No. 1162, 69th Congress, 1st Session, p. 12.
That the rules for landing and take-off are rules prescribing
"minimum safe altitudes of flight" is shown by the following
further statement in the House Report:
". . . the minimum safe altitudes of flight . . . would vary with
the terrain and location of cities and would coincide with the
surface of the land or water at airports."
EN BANC
G.R. No. L-12172 August 29, 1958
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V.
Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J.:
Appeal from the decision of the Court of First Instance of
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 that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of
defendant-appellant Juan F. Fajardo as mayor of the
municipality of Baao, Camarines Sur, the municipal council
passed the ordinance in question providing as follows:
SECTION 1. Any person or persons who will construct or
repair a building should, before constructing or repairing,
obtain a written permit from the Municipal Mayor.
SEC. 2. A fee of not less than P2.00 should be charged for
each building permit and P1.00 for each repair permit issued.
SEC. 3. PENALTY — Any violation of the provisions of the
above, this ordinance, shall make the violation liable to pay a
fine of not less than P25 nor more than P50 or imprisonment
of not less than 12 days nor more than 24 days or both, at the
discretion of the court. If said building destroys the view of
the Public Plaza or occupies any public property, it shall be
removed at the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY — This ordinance shall take effect on
its approval. (Orig. Recs., P. 3)
Four years later, after the term of appellant Fajardo as mayor
had expired, he and his son in-law, appellant Babilonia, filed a
written 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 highway and separated from the public plaza by a
creek (Exh. D). On January 16, 1954, the request was denied,
for the reason among others that the proposed building would
destroy the view or beauty of the public plaza (Exh. E). On
January 18, 1954, defendants reiterated their request for a
building permit (Exh. 3), but again the request was turned
down by the mayor. Whereupon, appellants proceeded with
the construction of the building without a permit, because they
needed a place of residence very badly, their former house
having been destroyed by a typhoon and hitherto they had
been living on leased property.
On February 26, 1954, appellants were charged before and
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
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 Court of Appeals, but the latter
forwarded the records to us because the appeal attacks the
constitutionality of the ordinance in question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is
that under it the mayor has absolute discretion to issue or deny
a permit. The ordinance fails to state any policy, or to set up
any standard to guide or limit the mayor's action. No purpose
to be attained by requiring the permit is expressed; no
conditions for its grant or refusal are enumerated. It is not
merely a case of deficient standards; standards are entirely
lacking. The ordinance thus confers upon the mayor arbitrary
and unrestricted power to grant or deny the issuance of
building permits, and it is a settled rule that such an undefined
and unlimited delegation of power to allow or prevent an
activity, per se lawful, is invalid (People vs. Vera, 65 Phil., 56;
Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs.
Rock Hill, 2 SE (2d) 392)
The ordinance in question in no way controls or guides the
discretion vested thereby in the respondents. It prescribes no
uniform rule upon which the special permission of the city is
to be granted. Thus the city is clothed with the uncontrolled
power to capriciously grant the privilege to some and deny it
others; to refuse the application of one landowner or lessee
and to grant that of another, when for all material purposes,
the two applying for precisely the same privileges under the
same circumstances. The danger of such an ordinance is that it
makes possible arbitrary discriminations and 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 which its validity is to be
tested. Fundamental rights under our government do not
depend for their existence upon such a slender and uncertain
thread. 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 be secured. All of the
authorities cited above sustain this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind. 112,28
N. E. 312, 314 13 L. R. A. 587, 28 Am. St. Rep. 180: "It
seems from the foregoing authorities to be well established
that municipal ordinances placing restrictions upon lawful
conduct or the lawful use of property must, in order to be
valid, specify the rules and conditions to be observed in such
conduct or business; and must admit of the exercise of the
privilege of all citizens alike who will comply with such rules
and conditions; and must not admit of the exercise, or of an
opportunity for the exercise, of any arbitrary discrimination by
the municipal authorities between citizens who will so
comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill,
et al., 2 SE (2d), pp. 394-395).
It is contended, on the other hand, that the mayor can refuse a
permit solely in case that the proposed building "destroys the
view 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 a building permit to the appellant was predicated
on the ground that the proposed building would "destroy the
view of the public plaza" by preventing its being seen from the
public highway. Even thus interpreted, the ordinance is
unreasonable and oppressive, in that it operates to permanently
deprive appellants of the right to use their own property;
hence, it oversteps the bounds of police power, and amounts to
a taking of appellants property without just compensation. We
do not overlook that the modern tendency is to 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, the State may prohibit structures offensive to the sight
(Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may
not, under the guise of police power, permanently divest
owners of the beneficial use of their property and practically
confiscate them solely to preserve or assure the aesthetic
appearance of the community. As the case now stands, every
structure that may be erected on appellants' land, regardless of
its own beauty, stands condemned under the ordinance in
question, because it would interfere with the view of the
public plaza from the highway. The appellants would, in
effect, be constrained to let their land remain idle and unused
for the obvious purpose for which it is best suited, being urban
in character. To legally achieve that result, the municipality
must give appellants just compensation and an opportunity to
be heard.
An ordinance which permanently so restricts the use of
property that it can not be used for any reasonable purpose
goes, it is plain, beyond regulation and must be recognized as
a taking of the property. The only substantial difference, in
such case, between restriction and actual taking, is that the
restriction leaves the owner subject to the burden of payment
of taxation, while outright confiscation would relieve him of
that burden. (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117
ALR. 1110, 1116).
A regulation which substantially deprives an owner of all
beneficial use of his property is confiscation and is a
deprivation within the meaning of the 14th Amendment.
(Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs.
Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So. 114).
Zoning which admittedly limits property to a use which can
not reasonably be made of it cannot be said to set aside such
property to a use but constitutes the taking of such property
without just compensation. Use of property is an element of
ownership therein. Regardless of the opinion of zealots that
property may properly, by zoning, be utterly destroyed
without compensation, such principle finds no support in the
genius of our government nor in the principles of justice as we
known them. Such a doctrine shocks the sense of justice. If it
be of public benefit that property remain open and unused,
then certainly the public, and not the private individuals,
should bear the cost of reasonable compensation for such
property under the rules of law governing the condemnation of
private property for public use. (Tews vs. Woolhiser (1933)
352 I11. 212, 185 N.E. 827) (Emphasis supplied.)
The validity of the ordinance in question was justified by the
court below under section 2243, par. (c), of the Revised
Administrative Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary
character. — The municipal council shall have authority to
exercise the following discretionary powers:
xxx xxx xxx
(c) To establish fire limits in populous centers, prescribe the
kinds of buildings that may be constructed or repaired within
them, and issue permits for the creation or repair thereof,
charging a fee which shall be determined by the municipal
council and which shall not be less than two pesos for each
building permit and one peso for each repair permit issued.
The fees collected under the provisions of this subsection shall
accrue to the municipal school fund.
Under the provisions of the section above quoted, however,
the power of the municipal council to require the issuance of
building permits rests upon its first establishing fire limits in
populous parts of the town and prescribing the kinds of
buildings that may be constructed or repaired within them. As
there is 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
conceived and promulgated under the express authority of sec.
2243 (c) aforequoted.
We rule that the regulation in question, Municipal Ordinance
No. 7, Series of 1950, of the Municipality of Baao, Camarines
Sur, was beyond the authority of said municipality to enact,
and is therefore null and void. Hence, the conviction of herein
appellants is reversed, and said accused are acquitted, with
costs de oficio. So ordered.
U.S. Supreme Court
Richards v. Washington Terminal Co., 233 U.S. 546 (1914)
Richards v. Washington Terminal Company
No. 52
Argued November 7, 1913
Decided May 4, 1914
233 U.S. 546
Syllabus
Although in England, Parliament, being omnipotent, may
authorize the taking of private property for public use without
compensation, the English courts decline to place an unjust
construction on its acts, and, unless so clear as not to admit
any other meaning, do not interpret them as interfering with
rights of private property.
Legislation of Congress is different from that of Parliament, as
it must be construed in the light of that provision of the Fifth
Amendment which forbids the taking of private property for
public use without compensation.
While Congress may legalize, within the sphere of its
jurisdiction, what otherwise would be a 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.
While the owners of a railroad constructed and operated for
the public use, although with private property for private gain,
are not, in the absence of negligence, subject to action in
behalf of owners of neighboring private property for the
ordinary damages attributable to the operation of the railroad,
a property owner may be entitled to compensation for such
special damages as devolve exclusively upon his property and
not equally upon all the neighboring property.
In this case, held that an owner of property near the portal of a
tunnel in the District of Columbia constructed under authority
of Congress, while not entitled to compensation for damages
caused by the usual gases and smoke emitted from the tunnel
by reason of the proper operation of the railroad, is entitled to
compensation for such direct, peculiar and substantial
damages as specially affect his property and diminish its
value.
37 App.D.C. 289 reversed.
The facts, which involve the right, under the Fifth
Amendment, of 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.
MR. JUSTICE PITNEY delivered the opinion of the Court.
Plaintiff in error, who was plaintiff below, commenced this
action in the Supreme Court of the District of Columbia to
recover for the damage to his property resulting from the
maintenance of an alleged nuisance by defendant by means of
the operation of a railroad and tunnel upon its own lands near
to, but not adjoining, those of plaintiff. Defendant having
pleaded not guilty, the issue came on for trial by jury, and, at
the conclusion of plaintiff's evidence, a verdict was directed in
favor of defendant. The court of appeals affirmed the
judgment (37 App.D.C. 289), and a writ of error brings the
controversy under the review of this Court.
An agreed abridgment of the evidence upon which the ruling
of the trial justice was based is embodied in the bill of
exceptions. From this it appears that plaintiff is and has been
since the year 1901 the owner of Lot 34 in Square 693 in the
City of Washington, having a frontage of 20 ft. upon the
westerly side of New Jersey Avenue, Southeast, and an
average depth of 81 ft., with improvements thereon consisting
of a three-story and basement brick dwelling house containing
ten rooms, known as No. 415 New Jersey Avenue. The rear
windows upon all the floors of the house open in the direction
of the railroad tracks that lead from defendant's tunnel. The
south portal of this tunnel opens within Square 693, and near
its
Page 233 U. S. 549
northeasterly corner, and the tunnel extends thence in a
northeasterly direction, passing under the Capitol and Library
grounds and First Street N.E. to the Union Station at
Massachusetts Avenue. There are two sets of railroad tracks in
the tunnel and leading from it, and as these emerge from the
south portal, they extend in a general southwesterly direction
up an incline or grade across the central portion of Square 693
on to an elevated structure which carries the tracks over and
beyond 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 exception of an occasional shifting
engine. The trains frequently pass in and out of the tunnel
without stopping, but trains also very often stop at or near a
switch tower that is situate near the center of Square 693.
From the nearest portion of plaintiff's house to the center of
the south portal, the distance in a straight line is about 114 ft.,
there being three intervening dwelling houses, two of which
have been purchased and are now owned by defendant. 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 about 90 ft. Plaintiff's property has been damaged by the
volumes of dense black or gray smoke, and also by dust and
dirt, cinders and gases, emitted from the trains while passing
over the tracks and in or out of the tunnel, or standing upon
the tracks near the signal tower. There is a fanning system
installed in the tunnel which causes the gases and smoke
emitted from engines while in the tunnel to be forced out of
the south portal, and these gases and smoke contaminate the
air, and also add to the inconvenience 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
only depreciated in value, but the tenant
Page 233 U. S. 550
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 rental value from $30 per month to $20 per month.
The furniture and other belongings in the house have been
depreciated from a value of $1,200 to $600, all of which
depreciation is due to the presence of smoke, cinders, and
gases emitted from passing trains and from the mouth of the
tunnel, which smoke, cinders, and gases enter the dwelling
house and settle upon the furniture and other personal property
contained in it, contaminating the air and rendering the house
objectionable as a habitation. The house has also been
damaged by vibrations caused by the movement of trains on
the track or in the tunnel, resulting in cracking the walls and
wallpaper, breaking glass in the windows, and disturbing the
peace and slumber of the occupants.
The defendant, the Washington Terminal Company, is the
owner of the tunnel and of the tracks therein, but its ownership
of tracks ceases at the south portal. The tracks extending
therefrom in a southwesterly direction are owned and used by
other railroad companies, but the movement of the trains is
controlled by defendant.
The tunnel and the tracks leading from it across Square 693
were located and constructed and are now maintained under
the authority of Acts of Congress of February 12, 1901, and
February 28, 1903, 31 Stat. 774, c. 354; 32 Stat. 909, c. 856, in
accordance with plans and specifications approved by those
acts. No claim is made by plaintiff that the tunnel, the tracks in
Square 693, and the 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 authority of the acts of Congress
Page 233 U. S. 551
and of permits issued by the Commissioners of the District of
Columbia.
Such being the essential facts to be deduced from the
evidence, we have reached the conclusion, for reasons
presently to be stated, that with respect to most of the elements
of damage to which the plaintiff's property has been subjected,
the courts below 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 out of it by means of the fanning
system through a portal located so near to plaintiff's property
that these gases and smoke materially contribute to injure the
furniture and to render the house less habitable than otherwise
it would be, there is a right of recovery.
The acts of Congress referred to, followed by the construction
of the tunnel and railroad tracks substantially in the mode
prescribed, had the effect of legalizing the construction and
operation of the railroad, so that its operation, while properly
conducted and regulated, cannot be deemed to be a public
nuisance. Yet it is sufficiently obvious that the acts done by
defendant, if done without legislative sanction, would form the
subject of an action by plaintiff to recover damages as for a
private nuisance.
At the same time, there is no exclusive and permanent
appropriation of any portion of plaintiff's land, which, indeed,
does not even abut upon defendant's property. The acts of
Congress do not in terms provide for the payment of
compensation to property owners damnified through the
construction and operation of the 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 that of
plaintiff, there is no express provision. But § 9 of the Act of
1903, 32 Stat. 916, c. 856, authorizes the Terminal Company
to acquire, by purchase or condemnation,
Page 233 U. S. 552
"the lands and property necessary for all and every the
purposes contemplated" by the several acts of Congress under
which the tunnel and railroad were constructed and are
operated. This grant of the power of condemnation is very
broad, but it has not been acted upon by the company in the
case of the present plaintiff. And since he is not wholly
excluded from the use and enjoyment of his property, there
has been no "taking" of the land in the ordinary sense.
The courts of England, in a series of decisions, have dealt with
the general subject now under consideration. Rex v. Pease, 4
Barn. & Ad. 30, 40, 1 Nev. & M. 690, 2 L.J. Mag. Cas. N.S.
26, 22 Eng. Rul. Cas. 71; Vaughan v. Taff Vale R. Co., 5 Hurl.
& Nor. 679, 29 L.J. Exch. 247, 1 Eng.Rul.Cas. 296; Jones v.
Festiniog Ry. Co., L.R. 3 Q.B. 733; Hammersmith &c. Ry. Co.
v. Brand, L.R. 4 H.L. 171, 38 L.J.Q.B. 265, 1 Eng.Rul.Cas.
623; Metropolitan Asylum District v. Hill, L.R. 6 App.Cas.
193, 201, 203; London & Brighton Ry. Co. v. Truman, L.R. 11
App.Cas. 45. The rule to be deduced from these cases is that,
while no action will lie for an invasion of private rights
necessarily resulting from the establishment and operation of
railways and other public works under the express sanction of
an act of Parliament, yet that such acts are to be strictly
construed so as not to impair private rights unless the
legislative purpose to do so appears by express words or
necessary implication. In short, Parliament, being omnipotent,
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 interfering with rights of private property
unless the language be so clear as to admit of no other
meaning.
But the legislation we are dealing with must be construed in
the light of the provision of the Fifth Amendment -- "Nor shall
private property be taken for public use without just
compensation" -- and is not to be given
Page 233 U. S. 553
an effect inconsistent with its letter or spirit. The doctrine of
the English cases has been generally accepted by the courts of
this country, sometimes with scant regard for distinctions
growing out of the constitutional restrictions upon legislative
action under our system. Thus, it has been said that "a railroad
authorized by law and lawfully operated cannot be deemed a
private nuisance;" that "what the legislature has authorized to
be done cannot be deemed unlawful," etc. These and similar
expressions have at times been indiscriminately employed
with respect to public and to private nuisances. We deem the
true rule, under the Fifth Amendment, as under state
constitutions containing a similar prohibition, to be that, while
the legislature may legalize what otherwise would be a 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.
Angel, 41 N.J.Eq. 316, 329; Costigan v. Pennsylvania R.
Co., 54 N.J.L. 233; Cogswell v. N.Y., N.H. & H. R. Co., 103
N.Y. 10; Garvey v. Long Island R. Co., 159 N.Y. 323; Bohan
v. Port Jervis Gas Light Co., 122 N.Y. 18, 29; Sadlier v. City
of New York, 81 N.Y.S. 308.
But the question remains, in cases of the class now before us,
what is to be deemed a private nuisance such as amounts to a
taking of property? And, by a great and preponderant weight
of 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 Amendment, it has become established that railroads
constructed and operated for the public use, although with
private capital and for private gain, are not subject to actions
in behalf of neighboring property owners for the ordinary
damages attributable to the operation of the railroad, in the
absence of negligence. Such roads are treated as
Page 233 U. S. 554
public highways, and the proprietors as public servants, with
the exemption normally enjoyed by such servants from
liability to private suit, so far as concerns the incidental
damages accruing to owners of nonadjacent land through the
proper and skillful management and operation of the railways.
Any diminution of the value of property not directly invaded
nor peculiarly affected, but sharing in the common burden of
incidental damages arising from the legalized nuisance, is held
not to be a "taking" within the constitutional provision. The
immunity is limited to such damages as naturally and
unavoidably result from the proper conduct of the road and are
shared generally by property owners whose lands lie within
range of the inconveniences necessarily incident to proximity
to a railroad. It includes the noises and vibrations incident to
the running of trains, the necessary emission of smoke and
sparks from the locomotives, and similar annoyances
inseparable from the normal and nonnegligent operation of a
railroad. Transportation Co. v. Chicago, 99 U. S. 635, 99 U.
S. 641; Beseman v. Pennsylvania R. Co., 50 N.J.L. 235, 240,
13 A. 164, aff'd, 52 N.J.L. 221.
That the constitutional inhibition against the taking of private
property for public use without compensation does not confer
a right to compensation upon a landowner, no part of whose
property has been actually appropriated and who has sustained
only those consequential damages that are necessarily incident
to proximity to the railroad, has been so generally recognized
that in some of the states (Arkansas, California, Colorado,
Georgia, Illinois, Louisiana, Mississippi, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Texas, West Virginia,
and Wyoming are, we believe, among the number),
constitutions have been established providing in substance that
private property shall not be taken or damaged for public use
without compensation.
The immunity from liability for incidental injuries is
Page 233 U. S. 555
attended with a considerable degree of hardship to the private
landowner, and has not been adopted without some judicial
protest. But, as pointed out by Chief Justice Beasley in
the Beseman case, 50 N.J.L. at p. 238, if railroad companies
were liable to suit for such damages upon the theory that, with
respect to them, the company is a tortfeasor, the practical
result would be to bring the operation of railroads to a
standstill. And, on the whole, the doctrine has become so well
established that it amounts to a rule of property, and should be
modified, if at all, only by the lawmaking power.
But the doctrine, being founded upon necessity, is limited
accordingly. This Court, in a leading case that we deem
controlling upon the questions now at issue, had occasion to
recognize this, and at the same time to apply the distinction
between public and private nuisances with respect to the
private right of action. In Baltimore & Potomac R. Co. v. Fifth
Baptist Church, 108 U. S. 317, the Court, while recognizing
(p. 108 U. S. 331) that the legislative authority for operating a
railway carried with it an immunity from private actions based
upon those incidental inconveniences that are unavoidably
attendant upon the operation of a railroad, nevertheless
sustained the right of action in a case where a building for
housing and repairing locomotive engines was unnecessarily
established in close proximity to a place of public worship,
and so used that the noises of the shop and the rumbling of the
locomotive engines passing in and out, the blowing off of
steam, the ringing of bells, the sound of whistles, and the
smoke from the chimneys, created a constant disturbance of
the religious exercises. The Court (speaking by Mr. Justice
Field) held that the authority of the company to construct such
works as it might deem necessary and expedient for the
completion and maintenance of its road did not authorize it to
place them wherever it might think proper in the city, without
reference to the property and rights
Page 233 U. S. 556
of others, and that, whatever the extent of the authority
conferred, it was accompanied with the implied qualification
that the works should not be so placed as by their use to
unreasonably interfere with and disturb the peaceful and
comfortable enjoyment of others in their property. In the
language of the opinion:
"Grants of privileges or powers to corporate bodies like those
in question confer no license to use them in disregard of the
private rights of others, and with immunity for their invasion."
The reasoning proceeded upon the ground (p. 108 U. S. 332)
that no authority conferred by Congress would justify an
invasion of private property to an extent amounting to an
entire deprivation of its use and enjoyment without
compensation to the owner,
"nor could such authority be invoked to justify acts creating
physical discomfort and annoyance to others in the use and
enjoyment of their property, to a less extent than entire
deprivation, if different places from those occupied could be
used by the corporation for its purposes, without causing such
discomfort and annoyance,"
and hence that the legislative authorization conferred
exemption only from suit or prosecution for the public
nuisance, and did not affect "any claim of a private citizen for
damages for any special inconvenience and discomfort not
experienced by the public at large."
The present case, in the single particular already alluded to --
that is to say, with respect to so much of the damage as is
attributable to the gases and smoke emitted from locomotive
engines while in the tunnel, and forced out of it by the fanning
system therein installed, and issuing from the portal located
near to plaintiff's property in such manner as to materially
contribute to render his property less habitable than otherwise
it would be, and to depreciate it in value, and this without, so
far as appears, any real necessity existing for such damage --
is, in our opinion, within the reason and authority of the
decision just cited. This case differs from that of the Baptist
Church
Page 233 U. S. 557
in that there, the railroad company was free to select some
other location for the repair shop and engine house, while
here, the evidence shows that the location of the tunnel and its
south portal was established pursuant to law, and not
voluntarily chosen by defendant. This circumstance, however,
does not, as we think, afford sufficient ground for a distinction
affecting the result. The case shows that Congress has
authorized, and in effect commanded, defendant to construct
its tunnel with a portal located in the midst of an inhabited
portion of the city. The authority, no doubt, includes the use of
steam locomotive engines in the tunnel, with the inevitable
concomitants of foul gases and smoke emitted from the
engines. No question is made but that it includes the
installation and operation of a fanning system for ridding the
tunnel of this source of discomfort to those operating the trains
and traveling upon them. All this being granted, the special
and peculiar damage to the plaintiff as a property owner in
close proximity to the portal is the necessary consequence,
unless, at least, it be feasible to install ventilating shafts or
other devices for preventing the outpouring of gases and
smoke from the entire 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 Amendment, they do not
authorize the imposition of so direct and peculiar and
substantial a burden upon plaintiff's property without
compensation to him. If the damage is not preventible by the
employment at reasonable expense of devices such as have
been suggested, then plaintiff's property is "necessary for the
purposes contemplated," and may be acquired by purchase or
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
Page 233 U. S. 558
between that part of the damage which is attributable to the
gases and smoke emitted from the locomotive engines while
operated upon the railroad tracks adjacent to plaintiff's land,
and with 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. How this difficulty is to be solved in order to
determine the damages that should be assessed in this action,
or the compensation that should be awarded in case
condemnation proceedings are resorted to, is a question not
presented by this record, and upon which therefore no opinion
is expressed.
Judgment reversed and cause remanded to the court of
appeals, with directions to reverse the judgment of the
Supreme Court of the District and remand the cause to that
court with directions for a new trial, and for further
proceedings in accordance with the views above expressed.
MR. JUSTICE LURTON dissents.
EN BANC
G.R. No. L-20620 August 15, 1974
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-
appellees.
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio &
Associates for defendant-appellees.
ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of
Pampanga in its Civil Case No. 1623, an expropriation
proceeding.
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 de Castellvi (hereinafter
referred to as Castellvi), over a parcel of land situated in the
barrio of San Jose, Floridablanca, Pampanga, described as
follows:
A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo
23666. Bounded on the NE by Maria Nieves Toledo-Gozun;
on the SE by national road; on the SW by AFP reservation,
and on the NW by AFP reservation. Containing an area of
759,299 square meters, more or less, and registered in the
name of Alfonso Castellvi under TCT No. 13631 of the
Register of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun
(hereinafter referred to as Toledo-Gozun over two parcels of
land described as follows:
A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan
Psd, 26254. Bounded on the NE by Lot 3, on the SE by Lot 3;
on the SW by Lot 1-B, Blk. 2 (equivalent to Lot 199-B Swo
23666; on the NW by AFP military reservation. Containing an
area of 450,273 square meters, more or less and registered in
the name of Maria Nieves Toledo-Gozun under TCT No. 8708
of the Register of Deeds of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan
Psd 26254. Bounded on the NE by Lot No. 3, on the SE by
school lot and national road, on the SW by Lot 1-B Blk 2
(equivalent to Lot 199-B Swo 23666), on the NW by Lot 1-B,
Blk-1. Containing an area of 88,772 square meters, more or
less, and registered in the name of Maria Nieves Toledo
Gozun under TCT No. 8708 of the Register of Deeds of
Pampanga, ....
In its complaint, the Republic alleged, among other things,
that the fair market value of the above-mentioned lands,
according to the Committee on Appraisal for the Province of
Pampanga, was not more than P2,000 per hectare, or a total
market value of P259,669.10; and prayed, that the provisional
value of the lands be fixed at P259.669.10, that the court
authorizes plaintiff to take immediate possession of the lands
upon deposit of that amount with the Provincial Treasurer of
Pampanga; that the court appoints three commissioners to
ascertain and report to the court the just compensation for the
property sought to be expropriated, and that the court issues
thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the
provisional value of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi
alleged, among other things, that the land under her
administration, being a residential land, had a fair market
value of P15.00 per square meter, so it had a total market
value of P11,389,485.00; that the Republic, through the
Armed Forces of the Philippines, particularly the Philippine
Air Force, had been, despite repeated demands, illegally
occupying her property since July 1, 1956, thereby preventing
her from using and disposing of it, thus causing her damages
by way of unrealized profits. This defendant prayed that the
complaint be dismissed, or that the Republic be ordered to pay
her P15.00 per square meter, or a total of P11,389,485.00, plus
interest thereon at 6% per annum from July 1, 1956; that the
Republic be ordered to pay her P5,000,000.00 as unrealized
profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C.
Diaz, Dolores G. viuda de Gil, Paloma Castellvi, Carmen
Castellvi, Rafael Castellvi, Luis Castellvi, Natividad Castellvi
de Raquiza, Jose Castellvi and Consuelo Castellvi were
allowed to intervene as parties defendants. Subsequently,
Joaquin V. Gozun, Jr., husband of defendant Nieves Toledo
Gozun, was also allowed by the court to intervene as a party
defendant.
After the Republic had deposited with the Provincial Treasurer
of Pampanga the amount of P259,669.10, the trial court
ordered that the Republic be placed in possession of the lands.
The Republic was actually placed in possession of the lands
on August 10,
1959.1
In her "motion to dismiss", dated October 22, 1959, Toledo-
Gozun alleged, among other things, that her two parcels of
land were residential lands, in fact a portion with an area of
343,303 square meters had already been subdivided into
different lots for sale to the general public, and the remaining
portion had already been set aside for expansion sites of the
already completed subdivisions; that the fair market value of
said lands was P15.00 per square meter, so they had a total
market value of P8,085,675.00; and she prayed that the
complaint be dismissed, or that she be paid the amount of
P8,085,675.00, plus interest thereon at the rate of 6% per
annum from October 13, 1959, and attorney's fees in the
amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their
answer, filed on February 11, 1960, and also intervenor
Joaquin Gozun, Jr., husband of defendant Maria Nieves
Toledo-Gozun, in his motion to dismiss, dated May 27, 1960,
all alleged that the value of the lands sought to be expropriated
was at the rate of P15.00 per square meter.
On November 4, 1959, the trial court authorized the Provincial
Treasurer of Pampanga to pay defendant Toledo-Gozun the
sum of P107,609.00 as provisional value of her lands. 2 On
May 16, 1960 the trial Court authorized the Provincial
Treasurer of Pampanga to pay defendant Castellvi the amount
of P151,859.80 as provisional value of the land under her
administration, and ordered said defendant to deposit the
amount with the Philippine National Bank under the
supervision of the Deputy Clerk of Court. In another order of
May 16, 1960 the trial Court entered an order of
condemnation.3
The trial Court appointed three commissioners: Atty. Amadeo
Yuzon, Clerk of Court, as commissioner for the court; Atty.
Felicisimo G. Pamandanan, counsel of the Philippine National
Bank Branch at Floridablanca, for the plaintiff; and Atty.
Leonardo F. Lansangan, Filipino legal counsel at Clark Air
Base, for the defendants. The Commissioners, after having
qualified themselves, proceeded to the performance of their
duties.
On March 15,1961 the Commissioners submitted their report
and recommendation, wherein, after having determined that
the lands sought to be expropriated were residential lands,
they recommended unanimously that the lowest price that
should be paid was P10.00 per square meter, for both the lands
of Castellvi and Toledo-Gozun; that an additional P5,000.00
be paid to Toledo-Gozun for improvements found on her land;
that legal interest on the compensation, computed from August
10, 1959, be paid after deducting the amounts already paid to
the owners, and that no consequential damages be
awarded.4 The Commissioners' report was objected to by all
the parties in the case — by defendants Castellvi and Toledo-
Gozun, who insisted 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 price to be paid for the lands
should be fixed at P0.20 per square meter.5
After the parties-defendants and intervenors had filed their
respective memoranda, and the Republic, after several
extensions of time, had adopted as its memorandum its
objections to the report of the Commissioners, the trial court,
on May 26, 1961, rendered its decision6 the dispositive portion
of which reads as follows:
WHEREFORE, taking into account all the foregoing
circumstances, and that the lands are titled, ... the rising trend
of land values ..., and the lowered purchasing power of the
Philippine peso, the court finds that the unanimous
recommendation of the commissioners of ten (P10.00) pesos
per square meter for the three lots of the defendants subject of
this action is fair and just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum on the total value
of the lands of defendant Toledo-Gozun since (sic) the amount
deposited as provisional value from August 10, 1959 until full
payment is made to said defendant or deposit therefor is made
in court.
In respect to the defendant Castellvi, interest at 6% per annum
will also be paid by the plaintiff to defendant Castellvi from
July 1, 1956 when plaintiff commenced its illegal possession
of the Castellvi land when the instant action had not yet been
commenced to July 10, 1959 when the provisional value
thereof was actually deposited in court, on the total value of
the said (Castellvi) land as herein adjudged. The same rate of
interest shall be paid from July 11, 1959 on the total value of
the land herein adjudged minus the amount deposited as
provisional value, or P151,859.80, such interest to run until
full payment is made to said defendant or deposit therefor is
made in court. All the intervenors having failed to produce
evidence in support of their respective interventions, said
interventions are ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial
and/or 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 reconsideration was called
for hearing, the Republic filed a supplemental motion for new
trial upon the ground of additional newly-discovered evidence.
This motion for new trial and/or reconsideration was denied
by the court on July 12, 1961.
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, 1961. Defendant Castellvi also filed, on July 17,
1961, her notice of appeal from the decision of the trial court.
The Republic filed various ex-parte motions for extension of
time within which to file its record on appeal. The Republic's
record on appeal was finally submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint
opposition to the approval of the Republic's record on appeal,
but also a joint memorandum in support of their opposition.
The Republic also filed a memorandum in support of its
prayer for the approval of its record on appeal. On December
27, 1961 the trial court issued an order declaring both the
record on appeal filed by the Republic, and the record on
appeal filed by defendant Castellvi as having been filed out of
time, thereby dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike out
the order of December 27, 1961 and for reconsideration", and
subsequently an amended record on appeal, against which
motion the defendants Castellvi and Toledo-Gozun filed their
opposition. On July 26, 1962 the trial court issued an order,
stating that "in the interest of expediency, the questions raised
may be properly and 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 order dated November 19,
1962, the trial court approved the Republic's record on appeal
as amended.
Defendant Castellvi did not insist on her appeal. Defendant
Toledo-Gozun did not appeal.
The motion to dismiss the Republic's appeal was reiterated by
appellees Castellvi and Toledo-Gozun before this Court, but
this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought to
increase the provisional value of her land. The Republic, in its
comment on Castellvi's motion, opposed the same. This Court
denied Castellvi's motion in a resolution dated October
2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated
October 6, 1969, praying that they be authorized to mortgage
the lands subject of expropriation, was denied by this Court or
October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates,
counsel for the estate of the late Don Alfonso de Castellvi in
the 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 sum equivalent to ten per centum of
whatever the court may finally decide as the expropriated
price of the property subject matter of the case."
---------
Before this Court, the Republic contends that the lower court
erred:
1. In finding the price of P10 per square meter of the lands
subject of the instant proceedings as just compensation;
2. In holding that the "taking" of the properties under
expropriation commenced with the filing of this action;
3. In ordering plaintiff-appellant to pay 6% interest on the
adjudged value of the Castellvi property to start from July of
1956;
4. In denying plaintiff-appellant's motion for new trial based
on newly discovered evidence.
In its brief, the Republic discusses the second error assigned as
the first issue to be considered. We shall follow the sequence
of the Republic's discussion.
1. In support of the assigned error that the lower court erred in
holding that the "taking" of the properties under expropriation
commenced with the filing of the complaint in this case, the
Republic argues that the "taking" should be reckoned from the
year 1947 when by virtue of a special lease agreement
between the Republic and appellee Castellvi, the former was
granted the "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 stipulated that the fair market value should be as of
the time of occupancy; and that the permanent improvements
amounting to more that half a million pesos constructed during
a period of twelve years on the land, subject of expropriation,
were indicative of an agreed pattern of permanency and
stability of occupancy by the Philippine Air Force in the
interest of national Security.7
Appellee Castellvi, on the other hand, maintains that the
"taking" of property under the power of eminent domain
requires two essential elements, to wit: (1) entrance and
occupation by 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 the property. This appellee
argues that in the instant case the first element is wanting, for
the contract of lease relied upon provides for a lease from year
to year; that the second element is also wanting, because the
Republic was paying the lessor Castellvi a monthly rental of
P445.58; and that the contract of lease does not grant the
Republic the "right and privilege" to buy the premises "at the
value at the time of occupancy."8
Appellee Toledo-Gozun did not comment on the Republic's
argument in support of the second error assigned, because as
far as she was concerned the Republic had not taken
possession of her lands prior to August 10, 1959. 9
In order to better comprehend the issues raised in the appeal,
in so far as the Castellvi property is concerned, it should be
noted that the Castellvi property had been occupied by the
Philippine Air Force since 1947 under a contract of lease,
typified by the contract marked Exh. 4-Castellvi, the pertinent
portions of which read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND ENTERED
into by and between INTESTATE ESTATE OF ALFONSO
DE CASTELLVI, represented by CARMEN M. DE
CASTELLVI, Judicial Administratrix ... hereinafter called the
LESSOR and THE REPUBLIC OF THE PHILIPPINES
represented by MAJ. GEN. CALIXTO DUQUE, Chief of
Staff of the ARMED FORCES OF THE PHILIPPINES,
hereinafter called the LESSEE,
WITNESSETH:
1. For and in consideration of the rentals hereinafter reserved
and the mutual terms, covenants and conditions of the parties,
the LESSOR has, and by these presents does, lease and let
unto the LESSEE the following described land together with
the improvements thereon and appurtenances thereof, viz:
Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752,
parte de la hacienda de Campauit, situado en el Barrio de San
Jose, Municipio de Floridablanca Pampanga. ... midiendo una
extension superficial de cuatro milliones once mil cuatro
cientos trienta y cinco (4,001,435) [sic] metros cuadrados, mas
o menos.
Out of the above described property, 75.93 hectares thereof
are actually occupied and covered by this contract. .
Above lot is more particularly described in TCT No. 1016,
province
Pampanga ...
of which premises, the LESSOR warrants that
he/she/they/is/are the registered owner(s) and with full
authority to execute a contract of this nature.
2. The term of this lease shall be for the period beginning July
1, 1952 the date the premises were occupied by the
PHILIPPINE AIR FORCE, AFP until June 30, 1953, subject
to renewal for another year at the option of the LESSEE or
unless sooner terminated by the LESSEE as hereinafter
provided.
3. The LESSOR hereby warrants that the LESSEE shall have
quiet, peaceful and undisturbed possession of the demised
premises throughout the full term or period of 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 at its option may proceed to do so at the expense of
the LESSOR. The LESSOR further agrees that should
he/she/they sell or encumber all or any part of the herein
described premises during the period of this lease, any
conveyance will be conditioned on the right of the LESSEE
hereunder.
4. The LESSEE shall pay to the LESSOR as monthly rentals
under this lease the sum of FOUR HUNDRED FIFTY-FIVE
PESOS & 58/100 (P455.58) ...
5. The LESSEE may, at any time prior to the termination of
this lease, use the property for any purpose or purposes and, at
its own costs and expense make alteration, install facilities and
fixtures and errect additions ... which facilities or fixtures ... so
placed in, upon or attached to the said premises shall be and
remain property of the LESSEE and may be removed
therefrom by the LESSEE prior to the termination of this
lease. The LESSEE shall surrender possession of the premises
upon the expiration or termination of this lease and if so
required by the LESSOR, shall return the premises in
substantially the same condition as that existing at the time
same were first occupied by the AFP, reasonable and ordinary
wear and tear and damages by the elements or by
circumstances over which the LESSEE has no control
excepted: PROVIDED, that if the LESSOR so requires the
return of the premises in such condition, the LESSOR shall
give written notice thereof to the LESSEE at least twenty (20)
days before the termination of the lease and provided, further,
that should the LESSOR give notice within the time specified
above, the LESSEE shall have the right and privilege to
compensate the LESSOR at the fair value or the equivalent, in
lieu of performance of its 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 depreciation
during the period of this lease.
6. The LESSEE may terminate this lease at any time during
the term hereof by giving written notice to the LESSOR at
least thirty (30) days in advance ...
7. The LESSEE should not be responsible, except under
special legislation for any damages to the premises by reason
of combat operations, acts of GOD, the elements or other acts
and deeds not due to the negligence on the part of the
LESSEE.
8. This LEASE AGREEMENT supersedes and voids any and
of all agreements and undertakings, oral or written, previously
entered into between the parties covering the property herein
leased, the same having been merged herein. This
AGREEMENT may not be modified or altered except by
instrument in writing only duly signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract of
lease (Exh. 4, Castellvi) is 'similar in terms and conditions,
including the date', with the annual contracts entered into from
year to year between defendant Castellvi and the Republic of
the Philippines (p. 17, t.s.n., Vol. III)". 11 It is undisputed,
therefore, that the Republic occupied Castellvi's land from
July 1, 1947, by virtue of the above-mentioned contract, on a
year to year basis (from July 1 of each year to June 30 of the
succeeding year) under the terms and conditions therein stated.
Before the expiration of the contract of lease on June 30, 1956
the Republic sought to renew the same but Castellvi refused.
When the AFP refused to vacate the leased premises after the
termination of the contract, on July 11, 1956, Castellvi wrote
to the Chief of Staff, AFP, informing the latter that the heirs of
the property had decided not to continue leasing the property
in 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 returned in substantially the same condition as
before occupancy (Exh. 5 — Castellvi). A follow-up letter was
sent on January 12, 1957, demanding the delivery and return
of the property within one month from said date (Exh. 6
Castellvi). On January 30, 1957, Lieutenant General Alfonso
Arellano, Chief of Staff, answered the letter of Castellvi,
saying that it was difficult for the army to vacate the premises
in view of the permanent installations and other facilities
worth almost P500,000.00 that were erected and already
established on the property, and that, there being no other
recourse, the acquisition of the property by means of
expropriation proceedings would be recommended to the
President (Exhibit "7" — Castellvi).
Defendant Castellvi then brought suit in the Court of First
Instance of Pampanga, in Civil Case No. 1458, to eject the
Philippine Air Force from the land. While this ejectment case
was pending, the Republic instituted these expropriation
proceedings, and, as stated earlier in this opinion, the Republic
was placed in possession of the lands on August 10, 1959, On
November 21, 1959, the Court of First Instance of Pampanga,
dismissed Civil Case No. 1458, upon petition of the parties, in
an order which, in part, reads as follows:
1. Plaintiff has agreed, as a matter of fact has already signed
an agreement with defendants, whereby she has agreed to
receive the rent of the lands, subject matter of the instant case
from June 30, 1966 up to 1959 when the Philippine Air Force
was placed in possession by virtue of an order of the Court
upon depositing the provisional amount as fixed by the
Provincial Appraisal Committee with the Provincial Treasurer
of Pampanga;
2. That because of the above-cited agreement wherein the
administratrix decided to get the rent corresponding to the rent
from 1956 up to 1959 and considering that this action is one of
illegal detainer and/or to recover the possession of said land
by virtue of non-payment of rents, the instant case now has
become moot and academic and/or by virtue of the agreement
signed by plaintiff, she has waived her cause of action in the
above-entitled case. 12
The Republic urges that the "taking " of Castellvi's property
should be deemed as of the year 1947 by virtue of afore-
quoted lease agreement. In American Jurisprudence, Vol. 26,
2nd edition, Section 157, on the subject of "Eminent Domain,
we read the definition of "taking" (in eminent domain) as
follows:
Taking' under the power of eminent domain may be defined
generally as entering upon private property for more than a
momentary period, and, under the warrant or color of legal
authority, devoting it to a public use, or otherwise informally
appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all
beneficial enjoyment thereof. 13
Pursuant to the aforecited authority, a number of
circumstances must be present in the "taking" of property for
purposes of eminent domain.
First, the expropriator must enter a private property. This
circumstance is present in the instant case, when by virtue of
the lease agreement the Republic, through the AFP, took
possession of the property of Castellvi.
Second, the entrance into private property must be for more
than a momentary period. "Momentary" means, "lasting but a
moment; of but a moment's duration" (The Oxford English
Dictionary, Volume VI, page 596); "lasting a very short time;
transitory; having a very brief life; operative or recurring at
every moment" (Webster's Third International Dictionary,
1963 edition.) The word "momentary" when applied to
possession or occupancy of (real) property should be
construed to mean "a limited period" — not indefinite or
permanent. The aforecited lease contract was for a period of
one year, renewable from year to year. The entry on the
property, under the lease, is temporary, and considered
transitory. The fact that the Republic, through the AFP,
constructed some installations of a permanent nature does not
alter the fact that the entry into the land was transitory, or
intended to last a year, although renewable from year to year
by consent of 'The owner of the land. By express provision of
the lease agreement the 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 lessee was to occupy the land
permanently, as may be inferred from the construction of
permanent improvements. But this "intention" cannot prevail
over the clear and express terms of the lease contract. Intent is
to be deduced from the language employed by the parties, and
the terms 'of the contract, when unambiguous, as in the instant
case, are conclusive in the absence of averment and proof of
mistake or fraud — the question being not what the intention
was, but what is expressed in the language used. (City of
Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena
Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover, in order
to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally
considered (Art. 1371, Civil Code). If the intention of the
lessee (Republic) in 1947 was really to occupy permanently
Castellvi's property, why was the contract of lease entered into
on year to year basis? Why was the lease agreement renewed
from year to year? Why did not the Republic expropriate this
land of Castellvi in 1949 when, according to the Republic
itself, it expropriated the other parcels of land that it occupied
at the same time as the Castellvi land, for the purpose of
converting them into a jet air base? 14 It might really have been
the intention of the Republic to expropriate the lands in
question at some future time, but certainly mere notice - much
less an implied notice — of such intention on the part of the
Republic to expropriate the lands in the future did not, and
could not, bind the landowner, nor bind the land itself. The
expropriation must be actually commenced in court (Republic
vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or
color of legal authority. This circumstance in the "taking" may
be considered as present in the instant case, because the
Republic entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or
otherwise informally appropriated or injuriously affected. It
may be conceded that the circumstance of the property being
devoted to public use is present because the property was used
by the air force of the AFP.
Fifth, the utilization of the property for public use must be in
such a way as to oust the owner and deprive him of all
beneficial enjoyment of the property. In the instant case, the
entry of the Republic into the property and its utilization of the
same for public use did not oust Castellvi and deprive her of
all beneficial enjoyment of the property. Castellvi remained as
owner, and was continuously recognized as owner by the
Republic, as shown by the renewal of the lease contract from
year to year, and by the provision in the lease contract
whereby the Republic undertook to return the property to
Castellvi when the lease was terminated. Neither was Castellvi
deprived of all the beneficial enjoyment of the property,
because the Republic was bound to pay, and had been paying,
Castellvi the agreed monthly rentals until the time when it
filed the complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for
purposes of eminent domain cannot be considered to have
taken place in 1947 when the Republic commenced to occupy
the property as lessee thereof. We find merit in the contention
of Castellvi that two essential elements in the "taking" of
property under the power of eminent domain, namely: (1) that
the entrance and occupation by the condemnor must be for a
permanent, or indefinite period, and (2) that in devoting the
property to public use the owner was ousted from the property
and deprived of its beneficial use, were not present when the
Republic entered and occupied the Castellvi property in 1947.
Untenable also is the Republic's contention that although the
contract between the parties was one of lease on a year to year
basis, it was "in reality a more or less permanent right to
occupy the premises under the guise of lease with the 'right
and privilege' to buy the property should the lessor wish to
terminate the lease," and "the right to buy the property is
merged as an integral part of the lease relationship ... so much
so that the fair market value has been agreed upon, not, as of
the time of purchase, but as of the time of occupancy" 15 We
cannot accept the Republic's contention that a lease on a year
to year basis can give rise to a permanent right to occupy,
since by express legal provision a lease made for a
determinate time, as was the lease of Castellvi's land in the
instant case, ceases upon the day fixed, without need of a
demand (Article 1669, Civil Code). Neither can it be said that
the right of eminent domain may be exercised by simply
leasing the premises to be expropriated (Rule 67, Section 1,
Rules of Court). Nor can it be accepted that the Republic
would enter into a contract of lease where its real intention
was to buy, or why the Republic should enter into a simulated
contract of lease ("under the guise of lease", as expressed by
counsel for the Republic) when all the time the Republic had
the right of eminent domain, and could expropriate Castellvi's
land if it wanted to without resorting to any guise whatsoever.
Neither can we see how a right to buy could be merged in a
contract of lease in the absence of any agreement between the
parties to that effect. To sustain the contention of the Republic
is to sanction a practice whereby in order to secure a low price
for a land which the government 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 about to
terminate, then claim that the "taking" of the property for the
purposes of the expropriation be reckoned as of the date when
the Government started to occupy the property under the lease,
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 value of the property, for many good reasons,
had in the meantime increased during the period of the lease.
This would be sanctioning what obviously is a deceptive
scheme, which would have the effect of depriving the owner
of the property of its true and fair market value at the time
when the expropriation proceedings were actually instituted in
court. The Republic's claim that it had the "right and
privilege" to buy the property at the value that it had at the
time when it first occupied the property as lessee nowhere
appears in the lease contract. What was agreed expressly in
paragraph No. 5 of the lease agreement was that, should the
lessor require the lessee to return the premises in the same
condition as at the time the same was first occupied by the
AFP, the lessee would have the "right and privilege" (or
option) of paying the lessor what it would fairly cost to put the
premises in the same condition as it was at the commencement
of the lease, in lieu of the lessee's performance of the
undertaking to put the land in said condition. The "fair value"
at the time of occupancy, 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 restoring the property in the
same condition as of the time when the lessee took possession
of the property. Such fair value cannot refer to the purchase
price, for purchase was never intended by the parties to the
lease contract. It is a rule in the interpretation of contracts that
"However general the terms of a contract may be, they shall
not be understood to comprehend things that are distinct and
cases that are different from those upon which the parties
intended to agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property
should not be reckoned as of the year 1947 when the Republic
first occupied the same pursuant to the contract of lease, and
that the just compensation to be paid for the Castellvi property
should not be determined on the basis of the value of the
property as of that year. The lower court did not commit an
error when it held that the "taking" of the property under
expropriation commenced with the filing of the complaint in
this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just
compensation" is to be determined as of the date of the filing
of the complaint. This Court has ruled that when the taking of
the property sought to be expropriated coincides with the
commencement of the expropriation proceedings, or takes
place subsequent to the filing of the complaint for eminent
domain, the just compensation should be determined as of the
date of the filing of the complaint. (Republic vs. Philippine
National Bank, L-14158, April 12, 1961, 1 SCRA 957, 961-
962). In the instant case, it is undisputed that the Republic was
placed in possession of the Castellvi property, by authority of
the court, on August 10, 1959. The "taking" of the Castellvi
property for the purposes of determining the just
compensation to be paid must, therefore, be reckoned as of
June 26, 1959 when the complaint for eminent domain was
filed.
Regarding the two parcels of land of Toledo-Gozun, also
sought to be expropriated, which had never been under lease
to the Republic, the Republic was placed in possession of said
lands, also by authority of the court, on August 10, 1959, The
taking of those lands, therefore, must also be reckoned as of
June 26, 1959, the date of the filing of the complaint for
eminent domain.
2. Regarding the first assigned error — discussed as the
second issue — the Republic maintains that, even assuming
that the value of the expropriated lands is to be determined as
of June 26, 1959, the price of P10.00 per square meter fixed
by the lower court "is not only exhorbitant but also
unconscionable, and almost fantastic". On the other hand, both
Castellvi and Toledo-Gozun maintain that their lands are
residential lands with a fair market value of not less than
P15.00 per square meter.
The lower court found, and declared, that the lands of
Castellvi and Toledo-Gozun are residential lands. The finding
of the lower court is in consonance with the unanimous
opinion of the three commissioners who, in their report to the
court, declared that the lands are residential lands.
The Republic assails the finding that the lands are residential,
contending that the plans of the appellees to convert the lands
into subdivision for residential purposes were only on paper,
there being no overt acts on the part of the appellees which
indicated that the subdivision project had been commenced, so
that any compensation to be awarded on the basis of the plans
would be speculative. The Republic's contention is not well
taken. We find evidence showing that the lands in question
had ceased to be devoted to the production of agricultural
crops, that they had become adaptable for residential purposes,
and that the appellees had actually taken steps to convert their
lands into residential subdivisions even before the Republic
filed the complaint for eminent domain. In the case of City
of Manila vs. Corrales (32 Phil. 82, 98) this Court laid down
basic guidelines in determining the value of the property
expropriated for public purposes. This Court said:
In determining the value of land appropriated for public
purposes, the same consideration are to be regarded as in a
sale of property between private parties. The inquiry, in such
cases, must be what is the property worth in the market,
viewed not merely with reference to the uses to which it is at
the time applied, but with reference to the uses to which it is
plainly adapted, that is to say, What is it worth from its
availability for valuable uses?
So many and varied are the circumstances to be taken into
account in determining the value of property condemned for
public purposes, that it is practically impossible to formulate a
rule to govern its appraisement in all cases. Exceptional
circumstances will modify the most carefully guarded rule,
but, as a general thing, we should say that the compensation of
the owner is to be estimated by reference to the use for which
the property is suitable, having regard to the existing business
or wants of the community, or such as may be reasonably
expected in the immediate future. (Miss. and Rum River
Boom Co. vs. Patterson, 98 U.S., 403).
In expropriation proceedings, therefore, the owner of the land
has the right to its value for the use for which it would bring
the most in the market. 17 The owner may thus show every
advantage that his property possesses, present and prospective,
in order that the price it could be sold for in the market may be
satisfactorily determined. 18 The owner may also show that the
property is suitable for division into village or town lots. 19
The trial court, therefore, correctly considered, among other
circumstances, the proposed subdivision plans of the lands
sought to be expropriated in finding that those lands are
residential lots. This finding of the lower court is supported
not only by the unanimous opinion of the commissioners, as
embodied in their report, but also by the Provincial Appraisal
Committee of the province of Pampanga composed of the
Provincial Treasurer, the Provincial Auditor and the District
Engineer. In the minutes of the meeting of the Provincial
Appraisal Committee, held on May 14, 1959 (Exh. 13-
Castellvi) We read in its Resolution No. 10 the following:
3. Since 1957 the land has been classified as residential in
view of its proximity to the air base and due to the fact that it
was not being devoted to agriculture. In fact, there is a plan to
convert it into a subdivision for residential purposes. The taxes
due on the property have been paid based on its classification
as residential land;
The evidence shows that Castellvi broached the idea of
subdividing her land into residential lots as early as July 11,
1956 in her letter to the Chief of Staff of the Armed Forces of
the Philippines. (Exh. 5-Castellvi) As a matter of fact, the
layout of the subdivision plan was tentatively approved by the
National Planning Commission on September 7, 1956. (Exh.
8-Castellvi). The land of Castellvi had not been devoted to
agriculture since 1947 when it was leased to the Philippine
Army. In 1957 said land was classified as residential, and
taxes based on its classification as residential had been paid
since then (Exh. 13-Castellvi). The location of the Castellvi
land justifies its suitability for a residential subdivision. As
found by the trial court, "It is at the left side of the entrance of
the Basa Air Base and bounded on two sides by roads (Exh.
13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the
poblacion, (of Floridablanca) the municipal building, and the
Pampanga Sugar Mills are closed by. The barrio schoolhouse
and chapel are also near (T.S.N. November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically
of the same condition as the land of Castellvi. The lands of
Toledo-Gozun adjoin the land of Castellvi. They are also
contiguous to the Basa Air Base, and are along the road. These
lands are near the barrio schoolhouse, the barrio chapel, the
Pampanga Sugar Mills, and the poblacion of Floridablanca
(Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of fact,
regarding lot 1-B it had already been surveyed and subdivided,
and its conversion into a residential subdivision was
tentatively approved by the National Planning Commission on
July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As early as June,
1958, no less than 32 man connected with the Philippine Air
Force among them commissioned officers, non-commission
officers, and enlisted men had requested Mr. and Mrs. Joaquin
D. Gozun to open a subdivision on their lands in question
(Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the lower
court that the lands that are the subject of expropriation in the
present case, as of August 10, 1959 when the same were taken
possession of by the Republic, were residential lands and were
adaptable for use as residential subdivisions. Indeed, the
owners 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 taken from them. The most important issue to
be resolved in the present case relates to the question of what
is the just compensation that should be paid to the appellees.
The Republic asserts that the fair market value of the lands of
the appellees is P.20 per square meter. The Republic cites the
case of Republic vs. Narciso, et al., L-6594, which this Court
decided on May 18, 1956. The Narciso case involved lands
that belonged to Castellvi and Toledo-Gozun, and to one
Donata Montemayor, which were expropriated by the
Republic in 1949 and which are now the site of the Basa Air
Base. In the Narciso case this Court fixed the fair market value
at P.20 per square meter. The lands that are sought to be
expropriated in the present case being contiguous to the lands
involved in the Narciso case, it is the stand of the Republic
that the price that should be fixed for the lands now in
question should also be at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the
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 that case that the price of their lands was P2,000.00 per
hectare and that was the price that they asked the court to pay
them. This Court said, then, that the owners of the land could
not be given more than what they had asked, notwithstanding
the recommendation of the majority of the Commission on
Appraisal — which was adopted by the trial court — that the
fair market value of the lands was P3,000.00 per hectare. We
also find that the price of P.20 per square meter in the Narciso
case was considered the fair market value of the lands as of
the year 1949 when the expropriation proceedings were
instituted, and at that time the lands were classified as sugar
lands, and assessed for taxation purposes at around P400.00
per hectare, or P.04 per square meter. 22 While the lands
involved in the present case, like the lands involved in the
Narciso case, might have a fair market value of P.20 per
square meter in 1949, it can not be denied that ten years later,
in 1959, when the present proceedings were instituted, the
value of those lands had increased considerably. The evidence
shows that since 1949 those lands were no longer cultivated as
sugar lands, and in 1959 those lands were already classified,
and assessed for taxation purposes, as residential lands. In
1959 the land of Castellvi was assessed at P1.00 per square
meter. 23
The Republic also points out that the Provincial Appraisal
Committee of Pampanga, in its resolution No. 5 of February
15, 1957 (Exhibit D), recommended the sum of P.20 per
square meter as the fair valuation of the Castellvi property. We
find that this resolution was made by the Republic the basis in
asking the court to fix the provisional value of the lands
sought to be expropriated at P259,669.10, which was approved
by the court. 24 It must be considered, however, that the
amount fixed as the provisional value of the lands that are
being expropriated does not necessarily represent the true and
correct value of the land. The value is only "provisional" or
"tentative", to serve as the basis for the immediate occupancy
of the property being expropriated by the condemnor. The
records show that this resolution No. 5 was repealed by the
same Provincial Committee on Appraisal in its resolution No.
10 of May 14, 1959 (Exhibit 13-Castellvi). In that resolution
No. 10, the appraisal committee stated that "The Committee
has observed that the value of the land in this locality has
increased since 1957 ...", and recommended the price of P1.50
per square meter. It follows, therefore, that, contrary to the
stand of the Republic, that resolution No. 5 of the Provincial
Appraisal Committee can not be made the basis for fixing the
fair market value of the lands of Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting
Assistant Provincial Assessor of Pampanga, dated February 8,
1961 (Exhibit K), to the effect that in 1950 the lands of
Toledo-Gozun were classified partly as sugar land and partly
as urban land, and that the sugar land was assessed at P.40 per
square meter, while part of the urban land was assessed at P.40
per square meter and part at P.20 per square meter; and that in
1956 the Castellvi land was classified as sugar land and was
assessed at P450.00 per hectare, or P.045 per square meter.
We can not also consider this certification of the Acting
Assistant Provincial Assessor as a basis for fixing the fair
market value of the lands of Castellvi and Toledo-Gozun
because, as the evidence shows, the lands in question, in 1957,
were already classified and assessed for taxation purposes as
residential lands. The certification of the assessor refers to the
year 1950 as far as the lands of Toledo-Gozun are concerned,
and to the year 1956 as far as the land of 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 not intervene in fixing it. 25
On the other hand, the Commissioners, appointed by the court
to appraise the lands that were being expropriated,
recommended to the court that the price of P10.00 per square
meter would be the fair market value of the lands. The
commissioners made their recommendation on the basis of
their observation after several ocular inspections of the lands,
of their own personal knowledge of land values in the
province of Pampanga, of the testimonies of the owners of the
land, and other witnesses, and of documentary evidence
presented by the appellees. Both Castellvi and Toledo-Gozun
testified that the fair market value of their respective land was
at P15.00 per square meter. The documentary evidence
considered by the commissioners consisted of deeds of sale of
residential lands in the town of San Fernando and in Angeles
City, in the province of Pampanga, which were sold at prices
ranging from P8.00 to P20.00 per square meter (Exhibits 15,
16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The commissioners
also considered the decision in Civil Case No. 1531 of the
Court of First Instance 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 court fixed the
price at P18.00 per square meter (Exhibit 14-Castellvi). In
their report, the commissioners, among other things, said:
... This expropriation case is specially pointed out, because the
circumstances and factors involved therein are similar in many
respects to the defendants' lands in this case. The land in Civil
Case No. 1531 of this Court and the lands in the present case
(Civil Case No. 1623) are both near the air bases, the Clark
Air Base and the Basa Air Base respectively. There is a
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 near the sugar mill at Del Carmen,
Floridablanca, Pampanga, owned by the Pampanga Sugar
Mills. Also just stone's throw away from the same lands is a
beautiful vacation spot at Palacol, a sitio of the town of
Floridablanca, which counts with a natural swimming pool for
vacationists on weekends. These advantages are not found in
the case of the Clark Air Base. The defendants' lands are
nearer to the poblacion of Floridablanca then Clark Air Base is
nearer (sic) to the poblacion of Angeles, Pampanga.
The deeds of absolute sale, according to the undersigned
commissioners, as well as the land in Civil Case No. 1531 are
competent evidence, because they were executed during the
year 1959 and before August 10 of the same year. More
specifically so the land at Clark Air Base which coincidentally
is the subject matter in the complaint in said Civil Case No.
1531, it having been filed on January 13, 1959 and the taking
of the land involved therein was ordered by the Court of First
Instance of Pampanga on January 15, 1959, several months
before the lands in this case were taken by the plaintiffs ....
From the above and considering further that the lowest as well
as the highest price per square meter obtainable in the market
of Pampanga relative to subdivision lots within its jurisdiction
in the year 1959 is very well known by the Commissioners,
the Commission finds that the lowest price that can be
awarded to the lands in question is P10.00 per square meter. 26
The lower court did not altogether accept the findings of the
Commissioners based on the documentary evidence, but it
considered the documentary evidence as basis for comparison
in determining land values. The lower court arrived at the
conclusion that "the unanimous recommendation of the
commissioners of ten (P10.00) pesos per square meter for the
three lots of the defendants subject of this action is fair and
just". 27 In arriving at its conclusion, the lower court took into
consideration, among other circumstances, that the lands are
titled, that there is a rising trend of land values, and the
lowered purchasing power of the Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil.
326, 328, this Court said:
A court of first instance or, on appeal, the Supreme Court,
may change or modify the report of the commissioners by
increasing or 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 a court may substitute therefor its
estimate of the value of the property as gathered from the
record in certain cases, as, where the commissioners have
applied illegal principles to the evidence submitted to them, or
where they have disregarded a clear preponderance of
evidence, or where the amount allowed is either palpably
inadequate or excessive. 28
The report of the commissioners of appraisal in condemnation
proceedings are not binding, but merely advisory in character,
as far as the court is concerned. 29 In our analysis of the report
of the commissioners, We find points that merit serious
consideration in the determination of the just compensation
that should be paid to Castellvi and Toledo-Gozun for their
lands. It should be noted that the commissioners had made
ocular inspections of the lands and had considered the nature
and similarities of said lands in relation to the lands in other
places in the province of Pampanga, like San Fernando and
Angeles City. We cannot disregard the observations of the
commissioners regarding the circumstances that make the
lands in question suited for residential purposes — 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
Pampanga Sugar mills, and to the flourishing first class town
of Floridablanca. It is true that the lands in question are not in
the territory of San Fernando and Angeles City, but,
considering the facilities of modern communications, the town
of Floridablanca may be considered practically adjacent to San
Fernando and Angeles City. It is not out of place, therefore, to
compare the land values in Floridablanca to the land values in
San Fernando and Angeles City, and form an idea of the value
of the lands in Floridablanca with reference to the land values
in those two other communities.
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 after considering the circumstances attending the
lands in question We have arrived at the conclusion that the
price of P10.00 per square meter, as recommended by the
commissioners and adopted by the lower court, is quite high.
It is Our considered view that the price of P5.00 per square
meter would be a fair valuation of the lands in question and
would constitute a just compensation to the owners thereof. In
arriving at this conclusion We have particularly taken into
consideration the resolution of the Provincial Committee on
Appraisal of the province of Pampanga informing, among
others, that in the year 1959 the land of Castellvi could be sold
for from P3.00 to P4.00 per square meter, while the land of
Toledo-Gozun could be sold for from P2.50 to P3.00 per
square meter. The Court has weighed all the circumstances
relating to this expropriations proceedings, and in fixing the
price of the lands that are being expropriated the Court arrived
at a happy medium between the price as recommended by the
commissioners and approved by the court, and the price
advocated by the Republic. This Court has also taken judicial
notice of the fact that the value of the Philippine peso has
considerably gone down since the year 1959. 30 Considering
that the lands of Castellvi and Toledo-Gozun are adjoining
each other, and are of the same nature, the Court has deemed it
proper to fix the same price for all these lands.
3. The third issue raised by the Republic relates to the
payment of interest. The Republic maintains that the lower
court erred when it ordered the Republic to pay Castellvi
interest at the rate of 6% per annum on the total amount
adjudged as the value of the land of Castellvi, from July 1,
1956 to July 10, 1959. We find merit in this assignment of
error.
In ordering the Republic to pay 6% interest on the total value
of the land of Castellvi from July 1, 1956 to July 10, 1959, the
lower court held that the Republic had illegally possessed the
land of Castellvi from July 1, 1956, after its lease of the land
had expired on June 30, 1956, until August 10, 1959 when the
Republic was placed in possession of the land pursuant to the
writ of possession issued by the court. What really happened
was that the Republic continued to occupy the land of
Castellvi after the expiration of its lease on June 30, 1956, so
much so that Castellvi filed an ejectment case against the
Republic in the Court of First Instance of
Pampanga. 31 However, while that ejectment case was
pending, the Republic filed the complaint for eminent domain
in the present case and was placed in possession of the land on
August 10, 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 Pampanga said:
Plaintiff has agreed, as a matter of fact has already signed an
agreement with defendants, whereby she had agreed to receive
the rent of the lands, subject matter of the instant case 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
depositing the provisional amount as fixed by the Provincial
Appraisal Committee with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30,
1956 to August 10, 1959, she should be considered as having
allowed her land to be leased to the Republic until August 10,
1959, and she could not at the same time be entitled to the
payment of interest during the same period on the amount
awarded her as the just compensation of her land. The
Republic, therefore, should pay Castellvi interest at the rate of
6% per annum on the value of her land, minus the provisional
value that was deposited, only from July 10, 1959 when it
deposited in court the provisional value of the land.
4. The fourth error assigned by the Republic relates to the
denial by the lower court of its motion for a new trial based on
nearly discovered evidence. We do not find merit in this
assignment of error.
After the lower court had decided this case on May 26, 1961,
the Republic filed a motion for a new trial, supplemented by
another motion, both based upon the ground of newly
discovered evidence. The alleged newly discovered evidence
in the motion filed on June 21, 1961 was a deed of absolute
sale-executed on January 25, 1961, showing that a certain
Serafin Francisco had sold to Pablo L. Narciso a parcel of
sugar land having an area of 100,000 square meters with a
sugar quota of 100 piculs, covered by P.A. No. 1701, situated
in Barrio Fortuna, Floridablanca, for P14,000, or P.14 per
square meter.
In the supplemental motion, the alleged newly discovered
evidence were: (1) a deed of sale of some 35,000 square
meters of land situated at Floridablanca for P7,500.00 (or
about P.21 per square meter) executed in July, 1959, by the
spouses Evelyn D. Laird and Cornelio G. Laird in favor of
spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a
deed of absolute sale of a parcel of land having an area of
4,120,101 square meters, including the sugar quota covered by
Plantation Audit No. 161 1345, situated at Floridablanca,
Pampanga, for P860.00 per hectare (a little less than P.09 per
square meter) executed on October 22, 1957 by Jesus Toledo y
Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the
motions for a new trial.
To warrant the granting of a new trial based on the ground of
newly discovered evidence, it must appear that the evidence
was discovered after the trial; that even with the exercise of
due diligence, the evidence could not have been discovered
and produced at the trial; and that the evidence is of such a
nature as to alter the result of the case if admitted. 32 The lower
court correctly ruled that these requisites were not complied
with.
The lower court, in a well-reasoned order, found that the sales
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 sugar quotas, while the lands sought to be
expropriated in the instant case are residential lands. The
lower court also concluded that the land sold by the spouses
Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain proceedings,
in order that evidence as to the sale price of other lands may
be admitted in evidence to prove the fair market value of the
land sought to be expropriated, the lands must, among other
things, be shown to be similar.
But even assuming, gratia argumenti, that the lands
mentioned in those deeds of sale were residential, the evidence
would still not warrant the grant of a new trial, for said
evidence could have been discovered and produced at the trial,
and they cannot be considered newly discovered evidence as
contemplated in Section 1(b) of Rule 37 of the Rules of Court.
Regarding this point, the trial court said:
The Court will now show that there was no reasonable
diligence employed.
The land described in the deed of sale executed by Serafin
Francisco, copy of which is attached to the original motion, is
covered by a Certificate of Title issued by the Office of the
Register of Deeds of Pampanga. There is no question in the
mind of the court but this document passed through the Office
of the Register of Deeds for the purpose of transferring the
title or annotating the sale on the certificate of title. It is true
that Fiscal Lagman went to the Office of the Register of Deeds
to check conveyances which may be presented in the evidence
in this case as it is now sought to be done by virtue of the
motions at bar, Fiscal Lagman, one of the lawyers of the
plaintiff, did not exercise reasonable diligence as required by
the rules. The assertion that he only went to the office of the
Register of Deeds 'now and then' to check the records in that
office only shows the half-hazard [sic] manner by which the
plaintiff looked for evidence to be presented during the
hearing before the Commissioners, if it is at all true that Fiscal
Lagman did what he is supposed to have done according to
Solicitor Padua. It would have been the easiest matter for
plaintiff to move for the issuance of a subpoena duces
tecum directing the Register of Deeds of Pampanga to come to
testify and to bring with him all documents found in his office
pertaining to sales of land in Floridablanca adjacent to or near
the lands in question executed or recorded from 1958 to the
present. Even this elementary precaution was not done by
plaintiff's numerous attorneys.
The same can be said of the deeds of sale attached to the
supplementary motion. They refer to lands covered by
certificate of title issued by the Register of Deeds of
Pampanga. For the same reason they could have been easily
discovered if reasonable diligence has been exerted by the
numerous lawyers of the plaintiff in this case. It is noteworthy
that all these deeds of sale could be found in several
government offices, namely, in the Office of the Register of
Deeds of Pampanga, the Office of the Provincial Assessor of
Pampanga, the Office of the Clerk of Court as a part of
notarial reports of notaries public that acknowledged these
documents, or in the archives of the National Library. In
respect to Annex 'B' of the supplementary motion copy of the
document could also be found in the Office of the Land
Tenure Administration, another government entity. Any
lawyer with a modicum of ability handling this expropriation
case would have right away though [sic] of digging up
documents diligently showing conveyances of lands near or
around the parcels of land sought to be expropriated in this
case in the offices that would have naturally come to his mind
such as the offices mentioned above, and had counsel for the
movant really exercised the reasonable diligence required by
the Rule' undoubtedly they would have been able to find these
documents and/or caused the issuance of subpoena duces
tecum. ...
It is also recalled that during the hearing before the Court of
the Report and Recommendation of the Commissioners and
objection thereto, Solicitor Padua made the observation:
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 contiguous to this land.
The Court gave him permission to submit said document
subject to the approval of the Court. ... This was before the
decision was rendered, and later promulgated on May 26,
1961 or more than one month after Solicitor Padua made the
above observation. He could have, therefore, checked up the
alleged sale and moved for a reopening to adduce further
evidence. He did not do so. He forgot to present the evidence
at a more propitious time. Now, he seeks to introduce said
evidence under the guise of newly-discovered evidence.
Unfortunately the Court cannot classify it as newly-discovered
evidence, because tinder the circumstances, the correct
qualification that can be given is 'forgotten evidence'.
Forgotten however, is not newly-discovered
evidence. 33
The granting or denial of a motion for new trial is, as a general
rule, discretionary with the trial court, whose judgment should
not be disturbed unless there is a clear showing of abuse of
discretion. 34 We do not see any abuse of discretion on the part
of the lower court when it denied the motions for a new trial.
WHEREFORE, the decision appealed from is modified, as
follows:
(a) the lands of appellees Carmen Vda. de Castellvi and Maria
Nieves Toledo-Gozun, as described in the complaint, are
declared expropriated for public use;
(b) the fair market value of the lands of the appellees is fixed
at P5.00 per square meter;
(c) the Republic must pay appellee Castellvi the sum of
P3,796,495.00 as just compensation for her one parcel of land
that has an area of 759,299 square meters, minus the sum of
P151,859.80 that she withdrew out of the amount that was
deposited in court as the provisional value of the land, with
interest at the rate of 6% per annum from July 10, 1959 until
the day full payment is made or deposited in court;
(d) the Republic must pay appellee Toledo-Gozun the sum of
P2,695,225.00 as the just compensation for her two parcels of
land that have a total area of 539,045 square meters, minus the
sum of P107,809.00 that she withdrew out of the amount that
was deposited in court as the provisional value of her lands,
with interest at the rate of 6%, per annum from 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
(f) the costs should be paid by appellant Republic of the
Philippines, as provided in Section 12, Rule 67, and in Section
13, Rule 141, of the Rules of Court.
40 Phil. 550
STREET, J.:
This is an original petition, directed to the Supreme Court,
containing an alternative prayer for a writ of certiorari or
prohibition, as the facts may warrant to stop certain
condemnation proceedings instituted by the Government of
the Philippine Islands, and now pending in the Court of First
Instance of the Province of Rizal. The respondents have
interposed what is called an answer, but which is in legal
effect merely a demurrer, challenging the sufficiency of the
allegations of the petition. The matter having been submitted
upon oral argument, the cause is now before us for the
decision of the question thus presented.
It appears that upon September 13, 1919, the GovernorGeneral
directed the Attorney-General to cause condemnation
proceedings to be begun for the purpose of expropriating a
tract of land of an area of about 1,100,463 square meters,
commonly known as the site of Camp Tomas Claudio. Said
land is located in the municipality of Paranaque, Province of
Rizal, and lies along the water front of Manila Bay, a few
miles south of the city of Manila. It is stated in communication
of the Governor-General that the property in question is
desired by the Government of the Philippine Islands for
military and aviation purposes.
In conformity with the instructions of the GovernorGeneral,
condemnation proceedings were begun by the Attorney-
General on September 15, 1919, by filing a complaint in the
name of the Government of the Philippine Islands in the Court
of First Instance of the Province of Rizal. Numerous persons
are named in the complaint as defendants because of their
supposed ownership of portions of the property intended to be
expropriated. In the list of persons thus impleaded appear the
names of the three petitioners herein, namely, the Visayan
Refining Co., Dean C. Worcester, and Fred A. Leas, who are
severally owners of different portions of the property in
question.
In the communication of the Governor-General, the Attorney-
General was directed immediately upon filing the complaint to
ask the court to give the Government the possession of the
land to be expropriated, after the necessary deposit should be
made as provided by law. Accordingly in the complaint itself
the Attorney-General prayed the court promptly and
provisionally to fix the sum of P600,000 as the total value of
the property and to put the Government in immediate
possession when said sum should be placed at the disposition
of the court. An order was accordingly made on September 15,
1919, by the Honorable Judge Manuel Camus, of the Court of
First Instance of the Province of Rizal, fixing the value of the
property provisionally at the amount stated and ordering that
the plaintiff be placed in possession, it being made to appear
that a certificate of deposit for the amount stated had been
delivered to the provincial treasurer.
At this stage of the proceedings in the Court of First' Instance
the three respondents already mentioned, to wit, the Visayan
Refining Co., Dean C. Worcester, and Fred A. Leas,
interposed a demurrer, questioning the validity of the
proceedings on the ground that there is no Act of the
Philippine Legislature authorizing the exercise of the power of
eminent domain to acquire land for military or aviation
purposes.
Contemporaneously with the filing of their demurrer, the same
parties moved the Court of First Instance to revoke its order of
September 15, giving the plaintiff provisional possession. This
motion is based substantially on the same ground as the
demurrer, that is, the lack of legislative authority for the
proposed expropriation, but it contains one additional
allegation to the effect that the deposit in court of the sum of
P600,000, had been made without authority of law. In support
of this contention it was shown, by means of an informal
communication from the Insular Auditor, that the money in
question had been taken from the unexpended balance of the
funds appropriated by Acts Nos. 2784 and 2785 of the
Philippine Legislature for the use of the Militia Commission.
This appropriation showed, upon the date said deposit of
P600,000 was made, an unexpended balance of P1,144,672.83
On October 3, 1919, the Judge of the Court of First Instance
overruled the demurrer interposed by the three parties
mentioned and denied their motion to vacate the order
granting possession to the Government. The present
proceeding was thereupon instituted in this Court in the
manner and for the purpose already stated.
General authority to exercise the power of eminent domain is
expressly conferred on the Government of the Philippine
Islands, as now constituted, by section 63 of the Philippine
Bill, which reads as follows:
"That the Government of the Philippine Islands is hereby
authorized, subject to the limitation and conditions prescribed
in this Act to acquire, receive, hold, maintain, and convey title
to real and personal property, and may acquire real estate for
public uses by the exercise of the right of eminent domain."
(Act of Congress of July 1, 1902.)
Section 3 of the Jones Act contains the further provision that
"private property shall not be taken for public use without just
compensation." In addition to this there is found in the same
section the familiar provision, already expressed in section 5
of the Philippine Bill, that no law shall be enacted which shall
deprive any person of property without due process of law, or
deny any. person the equal protection of the laws. (Act of
Congress of August 29, 19X6, sec. 3.)
Section 64 of the Administrative Code of the Philippine
Islands (Act No. 2711) expressly confers on the
GovernorGeneral the power, among others:
"To determine when it is necessary or advantageous to
exercise the right of eminent domain in behalf of the
Government of the Philippine Islands; and to direct the
AttorneyGeneral, where such act is deemed advisable, to
cause the condemnation proceedings to be begun in the court
having proper jurisdiction."
The procedural provisions relative to the conduct of
expropriation proceedings are contained in sections 241 to
253, inclusive, of the Code of Civil Procedure, supplemented
as they are by various later Acts of the Legislature. Among the
salient features of the scheme of expropriation thus created are
these: (1) If the court is of the opinion that the right of
expropriation exists, three commissioners are appointed to
hear the parties, view the premises, and assess the damages to
be paid for the condemnation (sec. 243 Code Civ. Proc.) ; (2)
after hearing the evidence submitted by the parties and
assessing the damages in the manner prescribed by law (sec.
244), the commissioners make their report to the court, setting
forth all their proceedings; and it is expressly declared that
"none of their proceedings shall be effectual to bind the
property or the parties until the court shall have accepted their
report and rendered judgment in accordance with its
recommendations" (sec. 245) ; (3) the court then acts upon the
report, accepting the same in whole or in part, or rejecting,
recommitting, or setting aside the same, as it sees fit (sec.
246).
It is further declared in section 246 that
"The court * * * may make such final order and judgment as
shall secure to the plaintiff the property essential to the
exercise of his rights under the law, and to the defendant just
compensation for the land so taken; and the judgment shall
require payment of the sum awarded as provided in the next
section (i. e., sec. 247) before the plaintiff can enter upon the
ground and appropriate it to the public use."
Sections 247 and 251 of the same Code are of sufficient
importance in this connection to warrant quotation in their
entirety. They are as follows:
"Sec. 247. Rights of Plaintiff After the Judgment. Upon
payment by the plaintiff to the defendant of compensation as
fixed by the judgment, or after tender to him of the amount so
fixed and payment of the costs, the plaintiff shall have the
right to enter in and upon the land so condemned, to
appropriate the same to the public use defined in the judgment.
In case the defendant and his attorney absent themselves from
the court or decline to receive the same, payment may be
made to the clerk of the court for him, and such officer shall
be responsible on his bond therefor and shall be compelled to
receive it."
"Sec. 251. Final Judgment, Its Record and Effect. The record
of the final judgment in such action shall state definitely, by
metes and bounds and adequate description, the particular land
or interest in land condemned to the public use, and the nature
of the public use. A certified copy of the record of the
judgment shall be recorded in the office of the registrar of
deeds for the province in which the estate is situated, and its
effect shall be to vest in the plaintiff for the public use stated
the land and estate so described."
The provisions which deal with the giving of immediate
possession when the Government of the Philippine Islands is
the plaintiff are found in Act No. 2826, which is in part as
follows:
"Sec. 2. When condemnation proceedings are instituted by or
in favor of the Insular Government * * * in any competent
court of the Philippines, the plaintiff shall be entitled to enter
immediately upon the land covered by such proceedings, after
depositing with the provincial treasurer the value of said land
in cash, as previously and promptly determined and fixed by
the competent court, which money the provincial treasurer
shall retain subject to the order and final decision of the
court: Provided, however, That the court may permit that in
lieu of cash, there may be deposited with the provincial
treasurer a certificate of deposit of any depository of the
Government of the Philippine Islands, payable to the
provincial treasurer on sight, for the sum ordered deposited by
the court. The certificate and the sums represented by it shall
be subject to the order and final decision of the court, and the
court shall have authority to place said plaintiff in possession
of the land, upon such deposit being made, by the proper
orders and a mandate, if necessary.
"Sec. 3. * * * Upon the payment by the plaintiff to the
defendants of the compensation awarded by the sentence, or
after the tender of said sum to the defendants, and the payment
of the costs, or in case the court orders the price to be paid into
court, the plaintiff shall be entitled to appropriate the land so
condemned to the public use specified in the sentence. In case
payment is made to the court, the clerk of the same shall be
liable on his bond for the sum so paid and shall be obliged to
receive the same."
In connection with the foregoing provisions found in laws
enacted under the American regime is to be considered the
following provision of the Civil Code:
"ART. 349. No one may be deprived of his property unless it
be by competent authority for some purpose of proven public
utility and after payment of the proper compensation.
"Unless this requisite has been complied with, it shall be the
duty of the court to protect the owner of such property in its
possession or to restore its possession to him, as the case may
be."
Taken together the laws mentioned supply a very complete
scheme of judicial expropriation, deducing the authority from
its ultimate source in sovereignty, providing in detail for the
manner of its exercise, and making the right of! the
expropriator finally dependent upon payment of the* amount
awarded by the court.
As has already been indicated the petition before us proceeds
on the idea that the expropriation proceedings in question
cannot be maintained by the Philippine Government in the
absence of a statute authorizing the exercise of the power of
eminent domain for military and aviation purposes; and while
it is not urged that a special legislative Act must be passed
every time any particular parcel of property is to be
expropiated, it is claimed and this really amounts to the same
thing that the Government cannot institute and prosecute
expropriation proceedings unless there is already in existence
a legislative appropriation especially destined to pay for the
land to be taken.
We are of the opinion that the contentions of the petitioners, in
whatever way they may be understood or expressed, are not
well founded. There is one point at least on which all must
agree, namely, that if land can be taken by the Government for
a public use at all, the use intended to be made of the land now
in question, that is, for military and aviation purposes, is a
public use. It is undeniable that a military establishment is
essential to the maintenance of organized society, and the
courts will take judicial notice of the recent progress of the
military and naval arts resulting from the development of
aeronautics.
The question as to the abstract authority of the Government to
maintain expropriation proceedings upon the initiative of the
Governor-General should not be confused with that which has
reference to the necessity for a legislative appropriation. They
really involve different problems and will be separately
considered.
Upon the first, we are of the opinion that in this jurisdiction at
least expropriation proceedings may be maintained upon the
exclusive initiative of the Governor-General, without the aid
of any special legislative authority other than that already on
the statute books. Furthermore, if the Government complies
with the requirements of law relative to the making of a
deposit in court, provisional possession of the property may be
at once given to it, just as is permitted in the case of any other
person or entity authorized by law to exercise the power of
eminent domain. Special legislative authority for the buying of
a piece of land by the Government is no more necessary than
for buying a paper of pins; and in the case of a forced taking
pf property against the will of the owner, all that can be
required of the government is that it should be able to comply
with the conditions laid down by law as and when those
conditions arise.
The contention that the authority to maintain such a
proceeding cannot be delegated by the Legislature to the Chief
Executive, is in our opinion wholly erroneous and apparently
has its basis in a misconception of fundamentals. It is
recognized by all writers that the power of eminent domain is
inseparable from sovereignty being essential to the existence
of the State and inherent in government even in its most
primitive forms. Philosophers and legists may differ as to the
grounds upon which the exercise of this high power is to be
justified, but no one can question its existence. No law,
therefore, is ever necessary to confer this right upon
sovereignty or upon any government exercising sovereign or
quasi-sovereign powers.
As is well said by the author of the article on Eminent Domain
in the encyclopaedic treatise Ruling Case Law.
"The power of eminent domain does not depend for its
existence on a specific grant in the constitution. It is inherent
in sovereignty and exists in a sovereign state without any
recognition of it in the constitution. The provisions found in
most of the state constitutions relating to the taking of
property for the public use do not by implication grant the
power to the government of the state, but limit a power which
would otherwise be without limit." (10, R. C. L., pp. 11, 12.)
In other words, the provisions now generally found in the
modern laws or constitutions of civilized countries to the
effect that private property shall not be taken for public use
without compensation have their origin in the recognition of a
necessity for restraining the sovereign and protecting the
individual. Moreover, as will be at once apparent, the
performance of the administrative acts necessary to the
exercise of the power of eminent domain in behalf of the state
is lodged by tradition in the Sovereign or other Chief
Executive. Therefore, when the Philippine Legislature
declared in section 64 of the Administrative Code, that the
Governor-General, who exercises supreme executive power in
these Islands (sec. 21, Jones Act), should be the person to
direct the initiation of expropriation proceedings, it placed the
authority exactly where one would expect to find it, and we
can conceive of no ground upon which the efficacy of the
statute can reasonably be questioned.
We would not of course pretend that, under our modern
system of Government, in which the Legislature plays so
important a role, the executive department could, without the
authority of some statute, proceed to condemn property for its
own uses; because the traditional prerogatives of the sovereign
are not often recognized nowadays as a valid source of power,
at least in countries organized under republican forms of
government. Nevertheless it may be observed that the real
check which the modern Legislature exerts over the Executive
Department, in such a matter as this, lies not so much in the
extinction of the prerogative as in the fact that the hands of the
Executive can always be paralyzed by lack of money
something which is ordinarily supplied only by the
Legislature.
At any rate the conclusion is irresistible that where the
Legislature has expressly conferred the authority to maintain
expropriation proceedings upon the Chief Executive, the right
of the latter to proceed therein is clear. As is said by the author
of the article from which we have already quoted, "Once
authority is given to exercise the power of eminent domain,
the matter ceases to be wholly legislative. The executive
authorities may then decide whether the power will be invoked
and to what extent." (10 R. C. L., p. 14.)
The power of eminent domain, with respect to the conditions
under which the property is taken, must of course be exercised
in subjection to all the restraints imposed by constitutional or
organic law. The two provisions by which the exercise of this
power is chiefly limited in this jurisdiction are found in the
third section of the Jones Act, already mentioned, which
among other things declares (1) that no law shall be enacted
which shall deprive any person of property without due
process of law and (2) that private property shall not be taken
for public use without just compensation. The latter of these
provisions is directly aimed at the taking of property under the
exercise of the power of eminent domain; and as this
requirement, in connection with the statutes enacted to make
sure the payment of compensation, usually affords all the
protection that the owner of property can claim, it results that
the due process clause is rarely invoked by the owner in
expropriation proceedings.
Nevertheless it should be noted that the whole problem of
expropriation is resolvable in its ultimate analysis into a
constitutional question of due process of law. The specific
provisions that just compensation shall be made is merely in
the nature of a superadded requirement to be taken into
account by the Legislature in prescribing the method of
expropriation. Even were there no organic or constitutional
provision in force requiring compensation to be paid, the
seizure of one's property without payment, even though
intended for a public use, would undoubtedly be held to be a
taking without due process of law and a denial of the equal
protection of the laws.
This point is not merely an academic one, as might
superficially seem. On the contrary it has a practical bearing
on the problem before us, which may be expressed by saying
that, if the Legislature has prescribed a method of
expropriation which provides for the payment of just
compensation, and such method is so conceived and adapted
as to fulfill the constitutional requisite of due process of law,
any proceeding conducted in conformity with that method
must be valid.
These considerations are especially important to be borne in
mind in connection with the second contention made by
counsel for the petitioners, namely, that land cannot be
expropriated by the Government in the absence of a legislative
appropriation especially destined to pay for the land to be
taken. To this question we now address ourselves; and while
we bear in mind the cardinal fact that just compensation must
be made, the further fact must not be overlooked that there is
no organic or constitutional provision in force in these Islands
requiring that compensation shall actually be paid prior to the
judgment of condemnation.
If the laws which we have exhibited or cited in the preceding
discussion are attentively examined it will be apparent that the
method of expropriation adopted in this jurisdiction is such as
to afford absolute assurance that no piece of land can be
finally and irrevocably taken from an unwilling owner until
compensation is paid.^t is true that in rare instances the
proceedings may be voluntarily abandoned before the
expropriation is complete or the proceedings may fail because
the expropriator becomes insolvent, in either of which cases
the owner retains the property; and if possession has been
prematurely obtained by the plaintiff in the proceedings, it
must be restored. It will be noted that the title does not
actually pass to the expropriator until a certified copy of the
record of the judgment is recorded in the office of the register
of deeds (sec. 251, Code Civ. Proc.). Before this stage of the
proceedings is reached the compensation is supposed to have
been paid; and the court is plainly directed to make such final
order and judgment as shall secure to the defendant just
compensation for the land taken. (Sec. 246, Code Civ. Proc.).
Furthermore, the right of the expropriator is finally made
dependent absolutely upon the payment of compensation by
him. (Sec. 3, Act No. 2826; sec. 247, Code Civ. Proc).
It will be observed that the scheme of expropriation
exemplified in our statutes does not primarily contemplate the
giving of a personal judgment for the amount of the award
against the expropriator: the idea is rather to protect the owner
by requiring payment as a condition precedent to the
acquisition of the property by the other party. The power of
the court to enter a judgment for the money and to issue
execution thereon against the plaintiff is, however,
unquestioned; and the court can without doubt proceed in
either way. But whatever course be pursued the owner is
completely protected from the possibility of losing his
property without compensation.
When the Government is plaintiff the judgment will naturally
take the form of an order merely requiring the payment of the
award as a condition precedent to the transfer of the title, as a
personal judgment against the Government could not be
realized upon execution. It is presumed that by appearing as
plaintiff in condemnation proceedings, the Government
submits itself to the jurisdiction of the court and thereby
waives its immunity from suit. As a consequence it would be
theoretically subject to the same liability as any other
expropriator. Nevertheless, the entering of a personal
judgment against it would be an unnecessary, as well as
profitless formality.
In the face of the elaborate safeguards provided in our
procedure, it is frivolous to speculate upon the possibility that
the Legislature may finally refuse to appropriate any
additional amount, over and above the provisional deposit,
that may be necessary to pay the award. That it may do. But
the Government can not keep the land and dishonor the
judgment. Moreover, in the eventuality that the expropriation
shall not be consummated, the owners will be protected by the
deposit from any danger of loss resulting from the temporary
occupation of the land by the Government; for it is obvious
that this preliminary deposit serves the double purpose of a
prepayment upon the value of the property, if finally
expropriated, and as an indemnity against damage in the
eventuality that the proceedings should fail of consummation.
It appears that the money represented by the certificate of
deposit which was placed at the disposal of the lower court,
pursuant to the requirements of section 2 of Act No. 2826, was
taken from certain appropriations under the control of the
Militia Commission, a body created by section 29 of Act No.
2715, for the purpose, amongothers, of advising the Governor-
General upon measures relative to the organization,
equipment, and government of the National Guard and reserve
militia. Counsel for the petitioners 'say that money
appropriated for the purposes of the Militia Commission
cannot be lawfully used to acquire the land which is now the
subject of expropriation, because no authority for the exercise
of the power of eminent domain is to be found in any of the
Acts appropriating money for said Commission; from whence
it is argued that the certificate of deposit affords no protection
to the owners of property.
The point appears to be one of little general importance, and
we will not multiply words over it. Suffice it to say that in our
opinion the Insular Auditor was acting within his authority
when he let this money out of the Insular Treasury; and being
now within the control of the lower court, it will doubtless in
due time be applied to the purpose for which the deposit was
made.
From the foregoing discussion it is apparent that the action
taken by the lower court in the condemnation proceedings
aforesaid was in all respects regular and within the jurisdiction
of the court. The writ prayed for in the petition before us,
therefore, can not be issued. The application is accordingly
denied, with costs against the petitioners.
[ G.R. No. L-2089, October 31, 1949 ]
JUSTA G. GUIDO, PETITIONER VS. RURAL PROGRESS
ADMINISTRATION C/O FAUSTINO AGUILAR,
MANAGER, RURAL PROGRESS, RESPONDENT.
DECISION
TUASON, J.:
This is a petition for prohibition to prevent the Rural Progress
Administration and Judge Oscar Castelo of the Court of First
Instance of Rizal from proceeding with the expropriation of
petitioner Justa G. Guido's land, two adjoining lots, part
commercial, with a combined area of 22,655 square meters,
situated in Maypajo, Caloocan, Rizal, just outside the north
Manila boundary, on the main street; running from this city to
the North. Four grounds me adduced in support of the petition,
to wit:
"(1) That the respondent RPA (Rural Progress Administration)
acted without jurisdiction or corporate power in filing the
expropriation complaint and has no authority to negotiate with
the RFC a loan of P100,000 to be used as part payment of the
value of the land.
(2) That the land sought to be expropriated is commercial and
therefore excluded within the purview of the provisions of Act
539.
(3) That majority of the tenants have entered with the
petitioner valid contracts for lease, or option to buy at an
agreed price, and expropriation would impair those existing
obligation of contract.
(4) That respondent Judge erred in fixing the provisional value
of the land at P118,780.00 only and in ordering its delivery to
the respondent RPA."
We will take up only ground No. 2. Our conclusion on this
branch of the case will make superflous a decision on the other
questions raised.
Sections 1 and 2 of Commonwealth Act No. 539, copied
verbatim, are as follows:
"Section 1. The President of the Philippines is authorized to
acquire private lands or any interest therein, through purchase
or expropriation, and to subdivide the same into home lots or
small farms for resale at reasonable prices and under such
conditions as he may fix to their bona fide tenants or
occupants or to private individuals who will work the lands
themselves and who are qualified to acquire and own lands in
the Philippines.
Section 2. The President may designate any department,
bureau, office, or instrumentality of the National Government,
or he may organize a new agency to carry out the objectives of
this Act. For this purpose, the agency so created or designated
shall be considered a public corporation."
The National Assembly approved this enactment on the
authority of Section h of Article XIII of the Constitution
which, copied verbatim, is as follows:
"The Congress may authorize, upon payment of just
compensation, the expropriation of lands to be subdivided into
small lots and conveyed at cost to individuals."
What lands does this provision have in view? Does it
comprehend all lands regardless of their location, nature and
area? The answer is to be found in the explanatory statement
of Delegate Miguel Cuaderno; member of the Constitutional
Convention who was the author or sponsor of the above-
quoted provision. In his speech, which was entitled "Large
Estates and Trusts in Perpetuity" and is transcribed in full in
Aruego's "The Framing of the Philippine Constitution", Mr.
Cuaderno said:
"There has been an impairment of public tranquility, and to be
sure a continuous impairment of it, because of the existence of
these conflicts. In our folklore the oppression and exploitation
of the tenants are vividly referred to; their sufferings at the
hand of the landlords are emotionally pictured in our drama;
and even in the native movies and talkies of today, this theme
of economic slavery has been touched upon. In official
documents thes.e same conflicts are narrated and exhaustively
explained as a threat to social order and stability.
"But we should go to Rizal for inspiration and illumination in
this problem of the conflicts between landlords and tenants.
The national hero and his family were persecuted because of
these same conflicts in Calamba, and Rizal himself met a
martyr's death because of his espousal of the cause of the
tenant class, because he would not close his eyes to oppression
and persecution with his own people as victims.
"I ask you, gentlemen of the Convention, knowing this as you
do and feeling deeply as you must feel a regret over the
immolation of the hero's life, would you not write in the
Constitution the provision on large estates and trusts in
perpetuity, so that you would be the very instrument of
Providence to complete the labors of Rizal to insure domestic
tranquility for the masses of our people?
"If we are to be true to our trust, if it is our purpose in drafting
our constitution to insure domestic tranquility and to provide
for the well-being of our people, we cannot, we must not fail
to prohibit the ownership of large estates, to make it the duty
of the government to break up existing large estates, and to
provide for their acquisition by purchase or through
expropriation and sale to their occupants, as has been provided
in the Constitutions of Mexico and Jugoslavia."
No amendment was offered and there was no debate.
According to Dean Aruego, Mr. Cuaderno's resolution was
readily and totally approved by the Convention. Mr.
Cuaderno's speech therefore may be taken as.embodying the
intention of the framers of the organic law, and Act No. 539
should be construed in a manner consonant with that intention.
It is to be presumed that the National Assembly did not intend
to go beyond the constitutional scope of the powers.
There are indeed powerful considerations, aside from the
intrinsic meaning of Section 4 of Article XIII of the
Constitution, for interpreting Act No. 539 in a restrictive
senseo Carried to extremes, this Act would be subversive of
the Philippine political and social structure. It would be in
derogation of individual rights and the time-honored
constitutional guarantee that no private property shall be taken
for private use without due process of law. The protection
against deprivation of property without due process of law and
against the taking of private property for public use without
just compensation occupies the forefront positions (paragraphs
1 and 2) in the Bill of Rights (Article III). The taking of
private property for private use relieves the owner of his
property without due process of law; and the prohibition that
"private property should not be taken for public use without
just compensation" (Section 1 (par. 2), Article III, of the
Constitution) forbids by necessary implication the
appropriation of private property for private uses (29 C.J.S.
819.) It has been truly said that the assertion of the right on the
part of the legislature to take the property of one citizen and
transfer it to another, even for a full compensation, when the
public interest is not promoted thereby, is claiming a despotic
power, and one inconsistent with every just principle and
fundamental maxim of a free government. (29 C.J.S. 820.)
Hand in hand with the announced principle, herein invoked,
that "the promotion of social justice to insure the well-being
and economic security of all the people should be the concern
of the state," is a declaration, with which the former should be
reconciled, that "the Philippines is a Republican state" created
to secure to the Filipino people "the blessings of independence
under a regime of justice, liberty and democracy." Democracy,
as a way of life enshrined in the Constitution, embraces as its
necessary components freedom of conscience, freedom of
expression, and freedom in the pursuit of happiness. Along
with these freedoms are included economic freedom and
freedom of enterprise within reasonable bounds and under
proper control. In paving the way for the breaking up of
existing large estates, trusts in perpetuity, feudalism, and their
concomitant evils, the Constitution did not propose to destroy
or undermine property rights, or to advocate equal distribution
of wealth, or to authorize the taking of what is in excess of
one's personal needs and the giving of it to another. Evincing
much concern for the protection of property, the Constitution
distinctly regognizes the preferred position which real estate
has occupied in law for ages. Property is bound up with every
aspect of social life in a democracy as democracy is conceived
in the Constitution. The Constitution realizes the indispensable
role which property, owned in reasonable quantities and used
legitimately, plays in the stimulation to economic effort and
tlie formation and growth of a solid social middle class that is
said to be the bulwark of democracy and the backbone of
every progressive and happy country.
The promotion of social justice ordained by the Constitution
does not supply paramount basis for untrammeled
expropriation of private land by the Rural Progress
Administration or any other government instrumentality.
Social justice does not champion division of property or
equality of economic status; what it and the Constitution do
guaranty are equality of opportunity, equality of political
rights, equality before the law, equality between values given
and received, and equitable sharing of the social and material
goods on the basis of efforts exerted in their production. As
applied to metropolitan centers, especially Manila, in relation
to housing problems, it is a command to devise, among other
social measures, means for the elimination of slums, shambles,
shacks, and houses that are dilapitated, overcrowded, without
ventilation, light and sanitation facilities, and for the
construction in their place of decent dwellings for the poor and
the destitute. As will presently be shown, condemnation of
blighted urban areas bears direct relation to public safety,
health, and/or morals, and is legal.
In reality, Section 4 of Article XIII of the Constitution is in
harmony with the Bill of Rights, Without that provision the
right of eminent domain, inherent in the government, may be
exercised to acquire large tracts of land as a means reasonably
calculated to solve serious economic and social problem. As
Mr. Aruego says? "the primary reason" for Mr. Cuaderno's
recommendation was "to remove all doubts as to the power of
the government to expropriate the then existing landed estates
to be distributed at cost to the tenant-dwellers thereof in the
event that in the future it would seem such expropriation
necessary to the solution of agrarian problems therein."
In a broad sense, expropriation of large estates, trusts in
perpetuity, and land that embraces a whole town, or a large
section of a town or city, bears direct relation to the public
welfare. The size of the land expropriated, the large number of
people benefitted, and the extent of social and economic
reform secured by the condemnation, clothes the expropriation
with public interest and public use. The expropriation in such
cases tends to abolish economic slavery, feudalistic practices,
endless conflicts between landlords and tenants, and other
evils inimical to community prosperity and contentment and
public peace and order. Although courts are not in agreement
as to the tests to be applied in determining whether the use is
public or not, some go so far in the direction of a liberal
construction as to hold that public use is synonymous with
public benefit, public utility, or public advantage, and to
authorize the exercise of the power of eminent domain to
promote such public benefit, etc., especially where the
interests involved are of considerable magnitude. (29 C.J.S.
823, 824. See also People of Puerto Rico vs. Eastern Sugar
Associates et al, 156 Fed. 2nd 316.) In some instances,
slumsites have been acquired by condemnation. The highest
court of New York State has ruled that slum clearance and
erection of houses for low-income families were public
purposes for which New York City Housing authorities could
exercise the power of condemnation. And this decision was
followed by similar ones in other states. The underlying
reasons for these decisions are that the destruction of
congested areas and insanitary dwellings diminishes the
potentialities of epidemics, crime and waste, prevents the
spread of crime and diseases to unaffected areas, enhances the
physical and moral value of the surrounding communities, and
promotes the safety and welfare of the public in general.
(Murray et al. v. La Guardia, 52 N.E. 2nd 884; General
Development Coop. v. City of Detroit, 33 N.W. 2nd 919;
Weizner v. Stichman, 64 N.Y.S. 2nd 50.) But it will be noted
that in all these cases and others of similar nature extensive
areas were involved and numerous people and the general
public benefitted by the action taken.
The condemnation of a small property in behalf of 10, 20 or
50 persons and their families does not inure to the benefit of
the public to a degree sufficient to give the use public
character. The expropriation proceedings at bar have been
instituted for the economic relief of a few families devoid of
any consideration of public health, public peace and order, or
other public advantage. What is proposed to be done is to take
plaintiff's property, which for all we know she acquired by
sweat and sacrifice for her and her family's security, and sell it
at cost to a few lessees who refuse to pay the stipulated rent or
leave the premises.
No fixed line of demarcation between what taking is for public
use and what is not can be made; each case has to be judged
according to its peculiar circumstances. It suffices to say ifor
the purpose of this decision that the case under consideration
is far wanting in those elements which make for public
convenience or public use. It is patterned upon an ideology far
removed from that consecrated in our system of government
and embraced by the majority of the citizens of this country. If
upheld, this case would open the gates to more oppressive
expropriations. If this expropriation be constitutional, we see
no reason why a 10-, 15-, or 25-hectare farm land might not be
expropriated and subdivided, and sold to those who want to
own a portion of it. To make the analogy closer, we find no
reason why the Rural Progress Administration could urban not
take by condemnation an urban/lot containing an area of 1,000
or 2,000 square meters for subdivision into tiny lots for resale
to its occupants or those who want to build thereon.
The petition is granted without special finding as to costs.
Moran, C. J., Feria, Bengzon, Padilla, and Montemayor, JJ.,
concur.
Paras, and Reyes, JJ., concur in the result.
CONCURRING
TORRES, J.:
I fully concur in the above opinion of Mr. Justice Tuason. I
strongly agree with him that whne the framers of our
Constitution wrote in our fundamental law the provision
contained in section 4 of Article XIII, they never intended to
make it applicable to all cases, wherein a group of more or less
numerous persons represented by the Rural Progress
Administration, or some other governemntal insturmentality,
should take steps for the expropriation of private land to be
resold to them on the installment plan. If such were the
intention of the Constitution, if section 4 of its Article XIII
will be so interpreted as to authorize that government
corporation to institute the corresponding court proceedings to
expropriate for the benefit of a few interested persons a piece
of private land, the consequence that such interpretation will
entail will be incalculable.
In addition to the very cogent reasons mentioned by Mr.
Justice Tuason in support of his interpretation of tha
tconstitutional provision, I wish to state in this connection the
situation created by the acquisition of the so-called friar lands
at the beginning of the establishment of civil government by
the United States in these islands. After the lapse of a few
years, the tenants for whose benefit those haciendas were
purchased by the government, and who signed contracts of
purchase by installments of the lots occupied by them, having
defaulted in their partial payments, had to be sued by the
government. Thousands of cases were filed by the Director of
Lands accordingly, and, in the meantime, the Government
which had been administering those haciendas for a long
period of years wnet into much expense in order to achieve the
purpose of the law. I take for granted that in this case the
prospective purchasers, in inducing the government to buy the
land to be expropriated and sold to them by lots on the
installment plan do from the beginning have the best of
intentions to abide by the terms of the contract which they will
be required to sign.
If I am not misinformed, the whole transaction in the matter of
the purchase of the friar lands has been a losing proposition,
with the government still holding many lots originally
intended for sale to their occupants, who for some reason or
other failed to comply with the terms of the contract signed by
them.
Without the sound interpretation thus given by this Court
restricting within reasonalbe bounds the application of the
provision of section 4 of Article XIII of our Constitution and
clarifying the powers fo the rural Progress Administration
under Commonwealth Act No. 539, said corporation or, for
that matter, some other governmental entity might embark in a
policy of indiscriminate acquisition of privately-owned land,
urban or ohterwise, just for the purpose of taking care of the
wihses of certain individuals nad, as outlined by Mr. Justice
Tuason, regarless of the merits of the case. And once said
policy is carried out, it will place the Government of the
Republic in the awkward predicament of veering towards
socialism, a step not foreseen nor intended by our
Constitution. Private initiative will thus be substituted by
government action and intervention in cases where the action
of the individual will be more than enough to accomplish the
purpose sought. In the case at bar, it is understood that
contracts, for the sale by lots of the land sought to be
expropriated to the present tenants of this herein petitioner,
have been executed. There is , therefore, not the slightest
reason for the intervention of the government in the premises.
G.R. No. L-10278 November 23, 1915
THE MANILA RAILROAD COMPANY, Plaintiff-
Appellant, vs. ROMANA VELASQUEZ, MELECIO
ALLAREY and DEOGRACIAS
MALIGALIG, Defendants-Appellants.
William A. Kincaid and Thomas L. Hartigan for plaintiff.
Ledesma, Lim and Irureta Goyena for defendants.
TRENT, J.:
This action was instituted by the Manila Railroad Company
for the purpose of expropriating twelve small parcels of land
for a railroad station site at Lucena, Province of
Tayabas.chanroblesvirtualawlibrary chanrobles virtual law
library
The original defendants were Romana Velasquez, Melecio
Allarey, and Deogracias Maligalig. After the filing of the
complaint Simeon Perez, Filemon Perez, and Francisco
Icasiano, having bought Romana Velasquez' interest, were
included as defendants. The commissioners fixed the value of
the twelve parcels at P81,412.75, and awarded P600 to
Simeon Perez as damages for the removal of an
uncompleted camarin. Upon hearing, the commissioners'
report was approved and the plaintiff directed to pay to the
"Tayabas Land company" the total amount awarded, with
interest and costs. The plaintiff company alleges that that
amount is grossly excessive, pointing out that the land has
never been used except for rice
culture.chanroblesvirtualawlibrary chanrobles virtual law
library
Upon this appeal we are asked to review the evidence and
reduce the appraised value of the condemned land in
accordance with our findings rendering judgment accordingly.
Has this court, under the law, authority to take such action?
And along with this question it must be decided whether the
Courts of First Instance have such power over the reports of
commissioners. Section 246 of the Code of Civil Procedure
reads:
Action of Court Upon Commissioners' Report. - Upon the
filing of such report in court, the court shall, upon hearing,
accept the same and render judgment in accordance therewith;
or for cause shown, it may recommit the report to the
commissioners for further report of facts; or it may set aside
the report and appoint new commissioners; or it may accept
the report in part and reject it in part, and may make such final
order and judgment as shall secure to the plaintiff the property
essential to the exercise of this rights under the law, and to the
defendant just compensation for the land so taken; and the
judgment shall require payment of the sum awarded as
provided in the next section, before the plaintiff can enter
upon the ground and appropriate it to the public use.
From this section it clearly appears that the report of the
commissioners on the value of the condemned land is not
final. The judgment of the court is necessary to give effect to
their estimated valuation. (Crawford vs. Valley R.R. Co., 25
Grat., 467.) Nor is the report of the commissioners conclusive,
under any circumstances, so that the judgment of the court is a
mere detail or formality requisite to the proceedings. The
judgment of the court on the question of the value of the land
sought to be condemned is rendered after a consideration of
the evidence submitted to the commissioners, their report, and
the exceptions thereto submitted upon the hearing of the
report. By this judgment the court may accept the
commissioners' report unreservedly; it may return the report
for additional facts; or it may set the report aside and appoint
new commissioners; or it may accept the report in part or
reject it in part, and "make such final order and judgment as
shall secure to the plaintiff the property essential to the
exercise of this rights under the law, and to the defendant just
compensation for the land so taken." Any one of these
methods of disposing of the report is available to and may be
adopted by the court according as they are deemed suited to
secure to the plaintiff the necessary property and to the
defendant just compensation therefor. But can the latter
method produce a different result in reference to any part of
the report from that recommended by the
commissioner? chanrobles virtual law library
Section 246 expressly authorizes the court to "accept the
report in part and reject it in part." If this phrase stood alone, it
might be said that the court is only empowered to accept as a
whole certain parts of the report and reject as a whole other
parts. That is, if the commissioners fixed the value of the land
taken at P5,000, the improvements at P1,000, and the
consequential damages at P500, the court could accept the
report in full as to any one item and reject it as to any other
item, but could not accept or reject a part of the report in such
a way as to change any one of the amounts. But the court is
also empowered "to make such final order and judgment as
shall secure to the plaintiff the property essential to the
exercise of this rights under the law, and to the defendant just
compensation for the land so taken." The court is thereby
expressly authorized to issue such orders and render such
judgment as will produce these results. If individual items
which make up the total amount of the award in the
commissioners' report could only be accepted or rejected in
their entirety, it would be necessary to return the case, so far
as the rejected portions of the report were concerned, for
further consideration before the same or new commissioners,
and the court could not make a "final order and judgment" in
the cause until the rejected portions of the report had been
reported to it. Thus, in order to give the quotation from 246 its
proper meaning, it is obvious that the court may, in its
discretion correct the commissioners' report in any manner
deemed suitable to the occasion so that final judgment may be
rendered and thus end the litigation. The "final order and
judgment" are reviewable by this court by means of a bill of
exceptions in the same way as any other "action." Section 496
provides that the Supreme Court may, in the exercise of its
appellate jurisdiction, affirm, reverse, or modify any final
judgment, order, or decree of the Court of First Instance, and
section 497, as amended by Act No. 1596, provides that if the
excepting party filed a motion in the Court of First Instance
for a new trial upon the ground that the evidence was
insufficient to justify the decision and the judge overruled
such motion and due exception was taken to his ruling, the
Supreme Court may review the evidence and make such
findings upon the facts by a preponderance of the evidence
and render such final judgment as justice and equity may
require. So it is clear from these provisions that this court, in
those cases where the right to eminent domain has been
complied with, may examine the testimony and decide the
case by a preponderance of the evidence; or, in other words,
retry the case upon the merits and render such order or
judgment as justice and equity may require. The result is that,
in our opinion, there is ample authority in the statute to
authorize the courts to change or modify the report of the
commissioners by increasing or decreasing the amount of the
award, if the facts of the case will justify such change or
modification. As it has been suggested that this conclusion is
in conflict with some of the former holdings of this court upon
the same question, it might be well to briefly review the
decisions to ascertain whether or not, as a matter of fact, such
conflict exists.chanroblesvirtualawlibrary chanrobles virtual
law library
In City of Manila vs. Tuason (R.G. No. 3367, decided March
23, 1907, unreported), the Court of First Instance modified the
report of the commissioners as to some of the items and
confirmed it as to others. On appeal, the Supreme Court
remanded the cause, apparently for the reason that the
evidence taken by the commissioners and the lower court was
not before it, and perhaps also because the commissioners
adopted a wrong principle of assessing
damages.chanroblesvirtualawlibrary chanrobles virtual law
library
In Manila Railway Co. vs. Fabie (17 Phil. Rep., 206) the
majority report of the commissioners appraised the land at
P56,337.18, while a dissenting commissioners estimated it at
P27,415.92. The Court of First Instance, after taking
additional evidence upon the consequential benefits to the
remainder of defendants' land by the construction of the
railroad, and also as to the rental value of various pieces of
land in the locality, fixed the value of the land at the sum
estimated by the dissenting commissioner. The defendants
appealed to this court. This court remarked that the only
evidence tending to support the majority report of the
commissioners consisted of deeds of transfer of real estate
between parties in that community showing the prices paid by
the vendees in such conveyances. It was held that without its
being shown that such transfers had been made in the ordinary
course of business and competition, and that the parties therein
stated were not fictitious, such deeds were incompetent as
evidence of the value of the condemned land. As to the action
of the court in fixing the price of the land at P27,415.92, the
court said:
Conceding, without deciding, that he also had the right to
formulate an opinion of his own as to the value of the land in
question, nevertheless, if he formulate such an opinion, he
must base it upon competent evidence. The difficulty with the
case is that it affirmatively appears from the record on appeal
that there is an entire absence of competent evidence to
support the finding either of the commissioners or of the court,
even if the court had a right to make a finding of his own at all
under the circumstances.
In the Manila Railroad Co. vs. Attorney-General (22 Phil.
Rep., 192) the only question raised was the value of certain
improvements on the condemned portion of a hacienda, such
improvements consisting mainly of plants and trees and
belonging to a lessee of the premises. The total damages
claimed were P24,126.50. The majority report of the
Commission allowed P19,478, which amount was reduced by
the Court of First Instance to P16,778. The plaintiff company,
upon appeal to this court, alleged that the damages allowed
were grossly excessive and that the amount allowed by the
commissioners should have been reduced by at least P17,000;
while the defendant urged that the damages as shown by the
record were much greater than those allowed, either by the
commissioners or by the court. In disposing of the case this
court said:
The only ground upon which the plaintiff company bases its
contention that the valuations are excessive is the minority
report of one of the commissioners. The values assigned to
some of the improvements may be excessive but we are not
prepared to say that such is the case. Certainly there is no
evidence in the record which would justify us in holding this
values to be grossly excessive. The commissioners in their
report go into rather minute detail as to the reasons for the
conclusions reached and the valuations fixed for the various
items included therein. There was sufficient evidence before
the commissioners to support the valuations fixed by them
except only those later modified by the court below. The trial
court was of opinion that the price of P2 each which was fixed
for the orange trees ( naranjitos) was excessive, and this was
reduced to P1.50 for each tree; this on the ground that the
evidence discloses that these trees were comparatively young
at the time of the expropriation, and that the value fixed by the
majority report of the commissioners was that of full-grown or
nearly full-grown trees. We are of opinion that this reduction
was just and reasonable. Aside from the evidence taken into
consideration by the trial judge we find no evidence in the
record in support of the contention of the railroad plaintiff that
the valuations fixed in the majority report of the
commissioners and by the trial court are grossly excessive,
and plaintiff company having wholly failed to offer evidence
in support of its allegations in this regard when the
opportunity so to do was provided in accordance with law, it
has no standing in this court to demand a new trial based on its
unsupported allegations of grossly excessive valuation of the
property by the commissioners and the court below.
This court affirmed the finding of damages made by the trial
court with the exception of an item for damages caused by fire
to improvements on lands adjoining those condemned, which
was held not to be a proper matter to be considered in
condemnation proceedings. The court here approved of the
action of the Court of First Instance in reducing the amount of
damages fixed by the commissioners as to the value of the
young orange trees on the strength of the evidence of
record.chanroblesvirtualawlibrary chanrobles virtual law
library
In Manila Railroad Company vs. Caligsahan (R.G. No. 7932,
decided March 25, 1913, unreported), it appears that the lower
court approved in toto the report of the commissioners. On
appeal, This Supreme Court reversed the lower court and
remanded the case with orders to appoint new commissioners,
saying:
Under the evidence in this case the award is excessive. Section
246 of the Code of Civil Procedure giving to the court the
power to "make such final order and judgment as shall secure
to the party the property essential to the exercise of his rights
under the law, and to the defendant just compensation for the
land so taken," we exercise that right in this case for the
purpose of preventing the defendants from obtaining that
which would be more than `just compensation' under all the
evidence of the case.chanroblesvirtualawlibrary chanrobles
virtual law library
The judgment is reversed and the cause remanded, with
instructions to the lower court to appoint a new commission
and to proceed from that point de novo.
We will now examine the case (Philippine Railway
Co. vs. Solon, 13 Phil. Rep., 34) relied upon the support the
proposition that the courts should not interfere with the report
of the commissioners to correct the amount of damages except
in cases of gross error, showing prejudice or
corruption. chanrobles virtual law library
In that case the property belonging to the appellant which the
company sought to appropriate was his interest as tenant in a
tract of land belonging to the Government, together with a
house standing thereon and other property belonging to him.
He asked that he be awarded for all the property taken
P19,398.42. The commissioners allowed him P10,745.25. At
the hearing had upon the report, the court reduced this amount
and allowed the appellant P9,637.75. The commissioners took
a large amount of evidence relative to the amount of damages.
The testimony was conflicting as to the value of the house,
two witnesses fixing it at over P12,000; and another at
P14,000; one at P8,750; another at P6,250; and another at
P7,050.95. The commissioners fixed the value of the house
alone at P9,500, and the court at P8,792.50. This court said:
Nor do we decide whether, in a case where the damages
awarded by the commissioners are grossly excessive or
grossly insufficient, the court can, upon the same evidence
presented before the commissioners, itself change the award.
We restrict ourselves to deciding the precise question
presented by this case, in which it is apparent that, in the
opinion of the court below, the damages were not grossly
excessive, for its own allowance was only P1,000 less than the
amount allowed by the commissioners, and the question is
whether in such a case the court can substitute its own opinion
upon the evidence presented before the commissioners for the
opinion which the commissioners themselves formed, not only
from that evidence but also from a view of the premises which
by law they were required to make.
Referring to the manner in which the trial court arrived at its
valuation of the various items, including the house, this court
said:
Without considering the correctness of the rule adopted by the
court for determining the value of the property it is sufficient
to say that the evidence before the commissioners as to the
value of the property taken was contradictory and that their
award was not palpably excessive or inadequate. Under such
circumstances, we are of the opinion that the court had no
right to interfere with it.
From the foregoing it is clear that (1) the testimony was
conflicting; (2) that the award as allowed by the
commissioners was well within the amounts fixed by the
witnesses; and (3) that the award was not grossly excessive.
That it was not grossly excessive is shown by the difference
between the amount fixed by the commissioners and that fixed
by the court, this difference being P1,117.50, a reduction of a
little over 10 per cent.chanroblesvirtualawlibrary chanrobles
virtual law library
In City of Manila vs. Estrada (25 Phil. Rep., 208), the city
sought to expropriate an entire parcel of land with its
improvements for use in connection with a public market. The
commissioners, after viewing the premises and receiving
evidence, being unable to agree, submitted two reports to the
court. In the majority report the value of the land was fixed at
P20 per square meter and in the minority report at P10. The
Court of First Instance fixed the value at P15 per square meter.
Upon appeal this court, after reviewing the evidence, held that
P10 per square meter was a just compensation for the land
taken and rendered judgment accordingly, saying:
After a careful examination of the entire record in this case
and the law applicable to the questions raised therein, we are
of the opinion that P10 per square meter is a just compensation
for the land taken.
From the above review of the cases it will be seen that this
court has not only not decided that the courts cannot interfere
with the report of the commissioners unless prejudice or fraud
has been shown, but the decisions, aside from the case of the
City of Manila vs. Estrada, tend to show the contrary; that is,
an award which is grossly excessive or grossly insufficient in
the opinion of the court can be increased or decreased,
although there be nothing which tends to indicate prejudice or
fraud on the part of the commissioners. The case of the City of
Manila vs. Estrada is direct authority supporting the
conclusions which we have reached in the case at bar. And we
are not without authority outside of this jurisdiction which
supports the view we have taken in the case under
consideration. In Morgan's Louisiana & Texas R.R.
Co. vs. Barton (51 La. Ann., 1338), the court, in considering a
procedural law similar to our own, stated:
On the question of the value of the land, 8.34 acres, the
commissioners have allowed $2,500, or $300 per acre. The
defendant has put in the record the testimony of witnesses
claimed to support the allowance. Without disregarding this
testimony, it is sufficient to say that the opinions of the
witnesses do not seem to be based on any fact calculated to
show the value of the land. ... On the other hand the plaintiff
has placed before us the titles of defendant of recent date
showing the price paid by him (the defendant) for the entire
body of land of which the 8 acres are part; the acts of sale of
land in the same neighborhood, and of the same quality; the
assessment of defendant's property, and other testimony on
this issue of value. ... Giving all possible weight, or rather
restricting the testimony of the plaintiffs' witnesses to its due
influence, and giving, we think, necessary effect to the acts by
which defendant purchased, the acts of sale of other land, the
assessment of value, with due allowance for under assessment,
and the other testimony of record, we reach the conclusion that
the award gives two-thirds more than the value of the land.
We fix the value of the land at $833.33.
See also T. & P.R.R. Co. vs. Southern Develop. Co. (52 La.
Ann., 535), where the court held the appraisement too low and
after discussing the evidence, increased the amount of the
award accordingly. A similar case is Abney vs. Railroad Co.
(105 La., 446). See also T. & P.R.R. Co. vs. Wilson (108 La.,
1; 32 So., 173); and Louisiana Western R. Co. vs. Crossman's
Heirs (111 La., 611; 35 So., 784), where the point is touched
upon.chanroblesvirtualawlibrary chanrobles virtual law library
In Missouri the statute (1 Mo. Ann. Stat., sec. 1268) directs
that "the court shall make such order therein as right and
justice may require, and may order a new appraisement, upon
good cause shown." Owing to a constitutional restriction, this
provision has been construed to apply only to damages and
benefits resulting to land owners in consequence of proposed
improvements, the cash value of property expropriated being
an issue triable, at the instance of either party by a jury
subsequent to the findings of the commissioners. Subject to
this restriction, however, it has been held that the above
provision of law gives the court the right increase or decrease
the amount awarded by the commissioners. In the late case of
Tarkio Drainage District vs. Richardson (237 Mo., 49), the
court presents a lengthy review of its decisions on this
subject.chanroblesvirtualawlibrary chanrobles virtual law
library
The question now arises, when may the courts, with propriety,
overrule the award of the commissioners in whole or in part,
and substitute their own valuation of the condemned property?
We shall consider this question in two ways: first, as one of
procedure under section 246, above quoted; and second, as to
the evidence which must appear in the record in order to
justify such action.chanroblesvirtualawlibrary chanrobles
virtual law library
From a mere reading of section 246 and the remarks just
made, it should be clear that the court is permitted to act upon
the commissioners' report in one of several ways, at its own
discretion. The whole duty of the court in considering the
commissioners' report is to satisfy itself that just compensation
will be made to the defendant by its final judgment in the
matter, and in order to fulfill its duty in this respect the court
will be obliged to exercise its discretion in dealing with the
report as the particular circumstances of the case may require.
But generally speaking, when the commissioners' report
cannot with justice be approved by the court, one of three or
four circumstances will usually present itself, each of which
has for its antidote one of the methods of dealing with the
report placed at the disposal of the court by section 246. Thus,
if it be successfully established that the commissioners refused
to hear competent evidence material to the case, then all the
evidence in the case would not be before the court. The court
could not, with reason, attempt to either approve or change the
report, as it stood, for the reason that all the evidence of the
case would not have been considered by the commissioners
not have been presented to the court; and the remedy would be
to "recommit the report of the commissioners for further
report of facts." Again, if improper conduct, fraud, or
prejudice be charged against the commissioners and this
charge be sustained it would be safer to set aside the award
thus vitiated and "appoint new commissioners" who could
render a report not tainted by these things. But when the only
error of the commissioners is that they have applied illegal
principles to the evidence submitted to them; or that they have
disregarded a clear preponderance of the evidence; or that they
have used an improper rule of assessment in arriving at the
amount of the award, then, in such a case, if the evidence be
clear and convincing, the court should ordinarily be able, by
the use of those correct legal principles which govern the case,
to determine upon the amount which should be awarded
without returning the report to the commissioners. When the
matter stands in this light, it becomes the duty of the court to
make "final order and judgment" in which the proper award
will be made and thus end the litigation between the
parties.chanroblesvirtualawlibrary chanrobles virtual law
library
Now, what evidence as to value must the record contain in
order to justify the court in disregarding the valuation fixed
upon the condemned property by the commissioners and
substituting therefor its own finding of value? It is almost a
universal practice in the United States to submit the question
of value in expropriation cases to a jury or commission,
usually of local property owners, and one of the things they
are specially instructed to do is to view or inspect the
condemned property. The purpose of this view and the
additional weight which would should be given to the award
of the appraisers because of the view are questions often
discussed. After a careful examination of a number of
adjudicated cases, we have concluded that the following cases,
all agreeing in principle, correctly state the purpose of the
view.chanroblesvirtualawlibrary chanrobles virtual law library
In Denver Co. vs. Howe (49 Colo., 256 112 P., 779), it was
said: "The jury viewed the premises and were better able to
judge of the number of acres in each, as well as other
conditions affecting the land. The facts ascertained by the
view of the premises are not in the record, whether they were
regarded as so much additional evidence, or were used to
better understand and apply the evidence adduced at the trial.
Keeping in view the evidence relating to the special value of
the building site, the value of improvements and of the
ground, it will be found that the verdict is within and
supported by the values as testified to, and these values, as
fixed by the several witnesses, represented to each the market
value, as conceded by appellants. The verdict is supported by
the evidence of market value and on that ground would have
to be sustained if the matter complained of in the instruction
had been entirely omitted." chanrobles virtual law library
In Gorgas vs. Railroad Co. (114 Pa., 1; 22 Atl., 715), it was
said: "A view may sometimes be of the highest importance,
where there is a conflict of testimony. It may enable the jurors
to see on which side the truth lies. And if the witnesses on the
one side or the other have testified to a state of facts which
exists only in their imagination, as to the location of the
property, the manner in which it is cut by the road, the
character of the improvements, or any other physical fact
bearing upon the case, they surely cannot be expected to
ignore the evidence of their sense and give weight to
testimony which their view shows to be false. ... The true in
such cases is believed to be that the jury in estimating the
damages shall consider the testimony as given by the
witnesses, in connection with the facts as they appear upon the
view; and upon the whole case, as thus presented, ascertain the
difference between the market value of the property
immediately before and immediately after the land was taken.
This difference is the proper measure of damages."chanrobles
virtual law library
In Close vs. Samm (27 Iowa, 503), subsequently approved in
Guinn vs. Railway Co. (131 Iowa, 680, 683; 109 N.W., 209),
it was said: "The question then arises as to the purposes and
intent of this statute. It seems to us that it was to enable the
jury, by the view of the premises or place to better understand
and comprehend the testimony of the witnesses respecting the
same, and thereby the more intelligently to apply the
testimony to the issues on trial before them, and not to make
them silent witnesses in the case, burdened with testimony
unknown top both parties, and in respect to which no
opportunity for cross-examination or correction of error, if
any, could be afforded either party. If they are thus permitted
to include their personal examination, how could a court ever
properly set aside their verdict as being against the evidence,
or even refuse to set it aside without knowing the facts
ascertained by such personal examination for the jury? It is a
general rule certainly, if not universal, that the jury must base
their verdict upon the evidence delivered to them in open
court, and they may not take into consideration facts known to
them personally, but outside of the evidence produced before
them in court. If a party would avail himself of the facts
known to a juror, he must have him sworn and examined as
other witnesses." chanrobles virtual law library
In C.K. & W.R. Co. vs. Mouriquand (45 Kan., 170), the court
approved of the practice of instructing the jury that their view
of the premises was to be used in determining the value of
conflicting testimony, saying: "Had the jury disregarded all
the sworn evidence, and returned a verdict upon their own
view of the premises, then it might be said that the evidence
which the jurors acquired from making the view had been
elevated to the character of exclusive and predominating
evidence. This is not allowable. The evidence of the witnesses
introduced in the court on the part of the landowner supports
by substantial testimony given by witnesses sworn upon the
trial, we would set it aside, but as the jury only took into
consideration the result of their view of the premises, in
connection with the sworn evidence produced before them, to
determine between conflicting evidence, the instruction was
not so erroneous as to require a new trial."chanrobles virtual
law library
In Postal Telegraph-Cable Co. vs. Peyton (124 Ga., 746; 52
S.E., 803; 3 L.R.A., N.S., 333), it was said: "A jury cannot be
left to roam without any evidence in the ascertainment and
assessment of damages. The damages which the law allows to
be assessed in favor of a landowner whose property has been
taken or damaged under the right of eminent domain are
purely compensatory. The land actually appropriated by the
telegraph company amounted to only a fraction of an acre; and
while it appeared that the construction and maintenance of the
telegraph line would cause consequential damages to the
plaintiff, no proof was offered from which any fair and
reasonable estimate of the amount of damages thereby
sustained could be made. The jury should have been supplied
with the data necessary in arriving at such an estimate. In the
absence of this essential proof, a verdict many times in excess
of the highest proved value of the land actually taken must
necessarily be deemed excessive. Judgment
reversed." chanrobles virtual law library
In New York, where the question has doubtless been raised
more often than anywhere else, the late cases illustrate the
rule, perhaps the most clearly. The appellate division, supreme
court, in In re Titus Street in city of New York (123 N.Y.S.,
1018), where it appeared that the city's witnesses testified that
the property was worth $9,531 and the commissioners
awarded $2,000 less, said:
We do not think that this is meeting the requirements of the
law; we do not believe that it is within the province of
commissioners to arbitrarily set up their own opinion against
that of the witnesses called by the city, and to award damages
largely below the figure to which the moving party is
committed, without something appearing in the record to
justify such action. When a party comes into court and makes
an admission against his interest, no court or judicial tribunal
is justified in assuming that the admission is not true without
at least pointing out the reason for discrediting it; it carries
with it the overcome by the mere fact that the commissioners
might themselves have reached a different conclusion upon
the viewing of the premises. ... This view of the
commissioners, it seems to us, is for the purpose of enabling
the commissioners to give proper weight and effect to the
evidence before them, and it might justify them in giving
larger damages than some of the witnesses thought proper, or
even less than some of them declared to be sustained, but
where the evidence produced by the moving party in a
proceeding for taking property for public purposes fixes a
sum, without any disagreement in the testimony on that side,
we are of the opinion that the case do not justify a holding that
the commissioners are authorized to ignore such testimony
and to substitute their own opinion, in such a manner as to
preclude the supreme court from reviewing the determination.
That is not in harmony with that due process of law which is
always demanded where rights of property are involved, and
would make it possible for a corrupt commission to entirely
disregard the rights of the individual to the undisturbed
enjoyment of his property, or its equivalent.
From these authorities and keeping in mind the local law on
the subject, we think the correct rule to be that, if the
testimony of value and damages is conflicting, the
commissioners may resort to their knowledge of the elements
which affect the assessment and which were obtained from a
view of the premises, in order to determine the relative weight
of conflicting testimony, but their award must be supported by
the evidence adduced at their hearings and made of record, or
it cannot stand; or, in other words, the view is intended solely
for the purpose of better understanding the evidence
submitted. To allow the commissioners to make up their
judgment on their own individual knowledge of disputed facts
material to the case, or upon their private opinions, would be
most dangerous and unjust. It would deprive the losing party
of the right of cross-examination and the benefit of all the tests
of credibility which the law affords. It would make each
commissioner the absolute judge of the accuracy and value of
his own knowledge or opinions and compel the court to affirm
the report on the facts when all of such facts were not before
it. The evidence of such knowledge or of the grounds of such
opinions could not be preserved in a bill of exceptions or
questioned upon appeal. It is no hardship upon any of the
parties to require that the award must be based upon the
evidence. It is the duty of each party to submit what evidence
of value he has and if he fails to do so he can not complain if
the appraisement in kept within the bounds of the evidence
presented to the
commissioners.chanroblesvirtualawlibrary chanrobles virtual
law library
In those cases where the testimony as to value and damages in
conflicting the commissioners should always set forth in full
their reasons for accepting the testimony of certain witnesses
and rejecting that the others, especially in those cases where a
view of the premises has been
made.chanroblesvirtualawlibrary chanrobles virtual law
library
The commissioners are required by law to be disinterested
landowners of the province, selected by the court with a view
to their ability to arrive at a judicious decision in the
assessment of damages. The judgment of men with these
qualifications upon the price of real property is entitled to
some considerable weight. Being local men, it may be
assumed that they are familiar with the local land values, the
needs of the community in that line, and the adaptability of
particular sites to commercial purposes. Then, too, their view
of the premises enables commissioners to better understand
the evidence submitted to them, as we have said above. The
declarations of witnesses as to the value of the land, as to its
condition, or the conditions of improvements which may be
located upon it, and comparisons made between the
condemned land and other land in the vicinity may all be
better understood by the commissioners if they have viewed
the premises. It is, therefore, no slight divergence from the
seeming preponderance of the evidence of record, as viewed
by the court, which will justify the court in brushing aside the
commissioners' report and appraising the property itself, based
only upon a perusal of the evidence which was submitted to
them. It is in those cases where the evidence submitted to the
commissioners as to the value varies greatly that the real
difficulty lies. In these cases it is clear that some of the
evidence must be untrustworthy. Hence, it is necessary to
reject that evidence which shows the price to be greatly higher
or lower than the just compensation to which the defendant
owner is entitled. If, after making due allowance for the
superior facilities which the commissioners had for arriving at
the correct value of the property, the court is clearly of the
opinion that the evidence relied upon by them is
untrustworthy, and that other evidence rejected by the
commission and which fixes the value of the property at a
figure greatly at variance with their valuation of the property
bears the earmarks of truth, then it becomes the duty of the
court to substitute for the commissions' award the amount
indicated by such evidence. That the estimated value made by
the appraisers is to be given "great weight;" that such
valuation is not to be "lightly set aside;" that it will not be set
aside "if there is substantial testimony to support it," unless
error is "plainly manifest;" "unless it is apparent that injustice
has been done;" "unless the commissioners have clearly gone
astray or adopted erroneous principles;" "unless the
commissioners acted upon wrong principles, or their award is
grossly inadequate;" unless the award is "palpably excessive
or inadequate;" unless it is "grossly inadequate or unequal," is
the burden of all the
cases.chanroblesvirtualawlibrary chanrobles virtual law library
Let us now examine the evidence, keeping these legal
principles in mind. The only discussion of the evidence of
value made by the lower court was as follows:
To determine this question (the value of the land) the court
abides by and refers to the report of the commissioners dated
July 10, 1913, because it understands that it must accept this
report in all its parts for the reason that the prices fixed in the
said report of P3.75 per square meter for parcel 21-B, that of
P3.50 per square meter for parcel 21-A, and that of P2 per
square meter for the rest of the parcels (naming them) are
reasonable and just; the compensation which is made in the
said report for the damages occasioned to the defendant
Simeon Perez being also reasonable and just.
It will be seen that the lower court relied entirely upon the
findings of the commissioners. The commissioners justified
their appraisement of the land at a price so greatly in excess of
its value as agricultural land upon the following
considerations. First, the construction of the provincial
building and the high school had increased the price of land in
their vicinity. Second, the neighborhood of these building had
become a choice residential district. Third, the population in
the vicinity had increased since it became known that the
condemned property had been selected as a station site by the
railroad company. We propose to discuss the evidence of
value precisely along these lines, starting first, however, with
its value as agricultural land, the only use to which it has ever
been put.chanroblesvirtualawlibrary chanrobles virtual law
library
The condemned land is not located in the commercial district
of the town of Lucena, but is located near the provincial
building and the high school. The land has been used from
time out of mind solely for the cultivation of rice. Deogracias
Maligalig, one of the defendants, testified that rice land in the
municipality of Lucena was worth P500 per cavan (hectare).
Melecio Allarey, another defendant, testified that such land
was worth from P300 to P400 per hectare. Agustin testified
that such land was worth between P400 and P500 per hectare
if not under irrigation, and if under irrigation, more than
P1,000. Ambrosio Zaballero, owner of more than 30 parcels of
land in the municipality of Lucena, said that the site of the
railroad station was nothing but a rice field prior to the coming
of the railroad, worth from P300 to P400 per hectare. Cayo
Alzona, the only witness for the plaintiff, testified that, in
Candelaria, rice land was worth between P200 and P250 per
hectare, he having purchased an uncleared parcel of the rice
land for P150 per hectare. It seems fair to accept the statement
of the two defendants, Maligalig and Allarey, and fix the price
of the condemned land for agricultural purposes at P500 per
hectare.chanroblesvirtualawlibrary chanrobles virtual law
library
Witnesses for the defendants, including three of the latter,
fixed the value of the condemned land at prices ranging from
P5 to P8 per square meter. The remaining defendant, Icasiano,
did not testify before the commissioners. But in his answer
filed about seven months after purchasing the land for P0.81
per square meter, he alleged that his parcel was worth P5 per
square meter. So that we have all of the defendants and several
other witnesses estimating the value of the condemned land at
about the same figure, or from P50,000 to P80,000 per
hectare.chanroblesvirtualawlibrary chanrobles virtual law
library
The defendant, Melecio Allarey, testified that he owned
30,000 square meters of land in the vicinity of the railroad
station site, 2,895 square meters of which was wanted by the
plaintiff company. Upon being asked what the value of his
land was, he promptly replied that it was worth P5.50 per
square meters. Asked if he were making his will whether he
would list this property at a total value of P150,000, he evaded
a direct reply by saying that he would divide it among his
children. Asked if he considered himself the owner of land
valued at P150,000, he replied that for his purpose he figured
on that price. Asked if he would declare the land to be worth
that sum in his sworn tax declaration, he replied that he would
accept the figures fixed upon by the tax appraisers. His
testimony shows clearly that he did not desire to commit
himself positively to the assertion that his three hectares of
land was worth P150,000. His ambiguous and evasive replies
on cross-examination do not at all harmonize with his
unequivocal statement in his direct examination that his land
was worth P5.50 per square meter. Apparently, when
confronted with the price per hectare, which this estimate
would put upon his land, he was somewhat astounded. Indeed,
we are inclined to believe that one of the reasons for the high
value placed upon the condemned land by all the witnesses is
that they were estimating the price per square meter instead of
per hectare, which is the customary method of fixing the price
of agricultural land. A perusal of the remainder of the
testimony of defendant Allarey shows that he is paying annual
taxes on his 30,000 square meters of land amounting to
between P12 and P13. He also naively informs us that he has
not been able to till the land lately because he has no carabaos
or other work animals.chanroblesvirtualawlibrary chanrobles
virtual law library
Several of the witnesses for the defendants testified to having
purchased land in the vicinity of the station site for residential
purposes. Thus, Edard testified that he paid P1,400 for 220
square meters in 1910. Andres Dinlasan sold 119 square
meters for P10 per square meter on June 6, 1912. He could
give no reason why the purchaser had paid so much for the
land, but in response to a question said the purchaser had some
more land joining it. Agustin bought 1,900 square meters in
1910 for P2 per square meter. Esteban Lagos paid P1,000 for a
plot 16 by 18 meters in 1911. A most remarkable thing about
these purchases is that, as choice residential sites, they are so
extremely small. With the possible exception of the parcel
purchased by Agustin, the parcels in question are hardly
generous enough to permit of the construction of even a
modest mansion. Cayo Alzona testified that he purchased
2,200 square meters in 1906 for P350, and that he purchased a
little less than one hectare in 1912, all in the vicinity of the
station site, for which he paid P1,500. It will be noted that
there is considerable difference between these figures and the
prices at which the other witnesses testified they purchased
land in that neighborhood. That the evidence of sales of
nearby land was competent, there can be no
doubt.chanroblesvirtualawlibrary chanrobles virtual law
library
In Aledo Terminal Ry. Co. vs. Butler (246 Ill., 406; 92 N.E.,
909), the court said: "Evidence of voluntary sales of other
lands in the vicinity and similarly situated is admissible in
evidence to aid in estimating the value of the tract sought to be
condemned, but the value of such testimony depends upon the
similarity of the land to that in question and the time when
such sales were made and the distance such lands are from
those the value of which is the subject of inquiry." chanrobles
virtual law library
In an earlier case, the supreme court of Illinois stated the rule
as follows: "The theory upon which evidence of sales of other
similar property in the neighborhood, at about the same time,
is held to be admissible is that it tends to show the fair market
value of the property sought to be condemned. And it can not
be doubted that such sales, when made in a free and open
market, where a fair opportunity for competition has existed,
become material and often very important factors in
determining the value of the particular property in question."
(Peoria Gas Light Co. vs. Peoria Term. Ry. Co., 146 Ill., 372;
21 L.R.A., 373; 34 N.E. 550.) chanrobles virtual law library
The supreme court of Massachusetts, in Fourth National
Bank vs. Com. (212 Mass., 66; 98 N.E., 86), affirms the rule
as follows: "It long has been settled that in the assessment of
damages where lands are acquired by eminent domain
evidence is admissible of the price received from sales of land
similar in character, and situated in the vicinity, if the
transactions are not so remote in point of time that a fair
comparison practically is impossible." chanrobles virtual law
library
In Hewitt vs. Price (204 Mo., 31), it was said: "It is sufficient
to say upon this proposition that the law is well settled in this
State upon the subject, and while the value or selling price of
similar property may be taken into consideration in
determining the value of the piece of property in litigation, it
is equally true that the location and character of such property
should be similar and the sale of such other property should at
least be reasonably near in point of time to the time at which
the inquiry of the value of the property in dispute is
directed." chanrobles virtual law library
In Laing vs. United New Jersey R.R. & C. Co. (54 N.J.L., 576;
33 Am. St. Rep., 682; 25 A., 409), it was said: "Generally in
this and other states evidence of sales of land in the
neighborhood is competent on an inquiry as to the value of
land, and if the purchases or sales were made by the party
against whom the evidence was offered it might stand as an
admission. But such testimony is received only upon the idea
that there is substantial similarity between the properties. The
practice does not extend, and the rule should not be applied, to
cases where the conditions are so dissimilar as not easily to
admit of reasonable comparison, and much must be left to the
discretion of the trial judge in the determination of the
preliminary question whether the conditions are fairly
comparable." chanrobles virtual law library
Evidence of other sales made in good faith is competent if the
character of such parcels as sites for business purposes,
dwellings, or for whatever other use which enhances the
pecuniary value of the condemned land is sufficiently similar
to the latter that it may be reasonably assumed that the price of
the condemned land would be approximately near the price
brought by the parcels sold. The value of such evidence, of
course, diminishes as the differences between the property
sold and the condemned land increase. The property must be
in the immediate neighborhood, that is, in the zone of
commercial activity with which the condemned property is
identified, and the sales must be sufficiently near in point of
time with the date of the condemnation proceedings as to
exclude general increases or decreases in property values due
to changed commercial conditions in the vicinity. No two
estates are ever exactly alike, and as the differences between
parcels sold and the land condemned must necessarily be
taken into consideration in comparing values, we think it
much better that those differences should be shown as part of
the evidence of such sales, as is the practice in Iowa. (Town of
Cherokee vs. S.C. & I.F. Town Lot and Land Co., 52 Iowa,
279; 3 N.W., 42.) And where these differences are so great
that the sales in question can form no reliable standard for
comparison, such evidence should not be admitted.
(Presbrey vs. Old Colony & Newport R. Co., 103 Mass.,
1.) chanrobles virtual law library
Aside from the bare fact that the real estate transactions
referred to by the witnesses were somewhere in the vicinity of
the condemned land, there is nothing to guide us as to the
relative value of the condemned land. The differences which
must have existed between the various parcels of land in the
vicinity we are left to imagine. And while the commissioners'
view of the condemned land undoubtedly assisted them in
forming their estimate of value, still counsel should not have
relied upon their astuteness to discover differences in values,
but should have brought them specifically to the attention of
the commissioners. It seems rather unusual, also, that the bare
statements of witnesses should be accepted as to the prices
which nearby parcels brought, in view of the insistence of
counsel that the condemned land is nothing more than
agricultural land. These sales should have been thoroughly
investigated to determine whether they were made bona
fide and, if so, whether they were not attended by unusual
circumstances which materially increased the purchase
price.chanroblesvirtualawlibrary chanrobles virtual law library
But while these transfers of nearby land are interesting as
bearing upon the value of the condemned land, the record also
shows several transfers of the latter itself after it became
generally known that it had been selected by the railroad
company as the site for its Lucena station. We take it that
these transactions, in which the defendants were themselves
parties, offer a far more certain basis for estimating the value
of the land than do their testimony before the commissioners
or the testimony of other witnesses as to fancy prices paid for
neighboring parcels. Romana Velasquez, who owned the
major portion of the condemned land, disposed of hers to her
nephews surnamed Perez. Her first sale was on July 21, 1912.
This parcel contained 16,094 square meters and brought at this
time P6,500, or a little more than P0.40 per square meter. A
month later Perez sold this parcel to one Icasiano for P13,000,
or a little less than P0.81 per square meter. Sra. Velasquez'
next sale was of three parcels, the first two of which contained
approximately 23,000 square meters, while the area of the
third was described as three gantas of rice. The total price of
the three parcels was P2,500 of a little over P0.10 per meter.
In one of these parcels was located approximately 8,700
square meters of the condemned land which the
commissioners reported at a price higher than any of the
rest.chanroblesvirtualawlibrary chanrobles virtual law library
On May 26, 1913, Icasiano, the then owner of the parcel
containing 16,094 square meters, sold it to the Tayabas Land
Company for P18,000; and on July 1, 1913, some twenty days
after the commissioners had rendered their report, all of the
remaining owners of the condemned land sold their holdings,
parcel by parcel, as it had been assessed by the
commissioners, to the same company for P1.05 per square
meter, with the exception of Simeon Perez who sold the two
parcels owned by him at P2.27 and P2.11, respectively. Here
is the most convincing argument that all the witnesses who
placed values on the condemned property, ranging from P5
per square meter to P8 per meter, were seriously in error. After
all the speculation concerning the land, after the
commissioners had reported its value at prices ranging from
P2 to P3.75 per square meter, the owners sold the land, parcel
by parcel, as it had been assessed by the commissioners for a
little more than P1 per meter, with exception of Simeon Perez
who accepted P2.11 and P2.27 for the two parcels which the
commissioners had appraised at P3.50 and P3.75 per meter,
respectively. It is unfortunate that the commissioners did not
have an opportunity to consider the deeds executed by the
defendants in favor of the Tayabas Land Company. With the
commissioners' valuation of the land before them, the Tayabas
Land Company was actually able to purchase from the
defendant all of the condemned land at a greatly inferior price.
The defendants were not able to resist an offer of P1 and P2
per meter for their holdings, notwithstanding their fervid
declarations before the commissioners that their property was
worth P5 per meter, and notwithstanding the official report by
a board composed of local men that it was worth from P2 to
P3.75 per meter. This, of course, does not include the
defendant Icasiano who sold out to the land company after the
commission had been appointed but before it had begun its
labors. It is to be remembered, however, that he both bought
and sold the land after the railroad company had made known
its intention of expropriating it, and that in his answer to the
complaint he alleged his land to be worth P5 per
meter.chanroblesvirtualawlibrary chanrobles virtual law
library
Now, what was the object of the Tayabas Land Company in
purchasing the land? Evidently it was not with the intention of
making any use of it, for the railroad company had long since
taken possession. They, as well as the owners, were simply
speculating on the probability that the award of the
commissioners would be approved by the court. It was little
more than a sporty guess on each side as to what would be
allowed for the land by the final judgment of the court. The
company believed the award would exceed P1.05 per meter,
and the defendants thought the risk that the award would be in
a lesser amount was so great that they let the land go for the
price the company offered them. Nor is it at all certain that the
prices inserted in these deeds of sale were not fictitiously
inflated. The circumstances under which the sales were made
would readily suggest the expediency of inserting fictitious
prices in the deeds.chanroblesvirtualawlibrary chanrobles
virtual law library
The moment a parcel of land is wanted by a public service
corporation the price, for some occult reason, immediately
soars far beyond what the owner would think of asking or
receiving in the open market. Owners ask fabulous prices for it
and neighbors look on with an indulgent smile or even
persuade themselves that the land is worth the price for which
the owner holds out - in view of the fact that it is wanted by a
corporation, whose financial resources are popularly supposed
to be inexhaustible. The resultant good to a community due to
the investment of new capital, the increased employment of
labor, and the services the corporation will render are for the
moment forgotten; and persons called upon for opinions as to
the price of the desired property, unconsciously perhaps, relax
from that sound business acumen which guides them in their
daily affairs, while they are considering, not the price which
they would care to pay if they wanted the land, but the price
which the corporation ought to pay in view of the fact that it is
a corporation.chanroblesvirtualawlibrary chanrobles virtual
law library
The owner of condemned land is entitled to just compensation.
That is all the law allows him. "Compensation" means an
equivalent for the value of the land (property) taken. Anything
beyond that is more and anything short of that is less than
compensation. To compensate is to render something which is
equal in value to that taken or received. The word "just" is
used to intensify the meaning of the word "compensation;" to
convey the idea that the equivalent to be rendered for the
property taken shall be real, substantial, full, ample. "Just
compensation." therefore, as used in section 246 of the Code
of Civil Procedure, means a fair and full equivalent for the
loss sustained.
The exercise of the power being necessary for the public good,
and all property being held subject to its exercise when, and as
the public good requires it, it would be unjust to the public that
it should be required to pay the owner more than a fair
indemnity for such loss. To arrive at this fair indemnity, the
interests of the public and of the owner and all the
circumstances of the particular appropriation should be taken
into consideration. (Lewis on Eminent Domain, sec. 462.)
The compensation must be just to the public as well as to the
owners. (Searl vs. School District 133 U.S., 533; 33 L. ed.
740.) Section 244 of our code says that:
The commissioners shall assess the value of the property taken
and used and shall also assess the consequential damages to
the property not taken an deduct from such consequential
damages the consequential benefits to be derived by the
owners from the public use of the land taken.
"To assess" is to perform a judicial act. The commissioners'
power is limited to assessing the value and to determining the
amount of the damages. There it stops; they can go no further.
The value and damages awarded must be a just compensation
and no more and no less. But in fixing these amounts, the
commissioners are not to act ad libitum. They are to discharge
the trust reposed in them according to well established rules
and form their judgment upon correct legal principles. To
deny this is to place them where no one else in this country is
placed, above the law and beyond
accountability.chanroblesvirtualawlibrary chanrobles virtual
law library
There is no question but that the compensation to which a
defendant owner is entitled is the market value of the
condemned property, to which, of course, must be added his
consequential damages if any, or from which must be
deducted his consequential benefits, if any. Such was our
holding in Manila Railway Co. vs. Fabie (17 Phil. Rep., 206).
But as stated in Packard vs. Bergen Neck Ry. Co. (54 N.J.L.,
553; 23 A., 506):
The difficulty is not with the rule, but with its application. For
the determination of the market value of land, which is that
sum of money which a person, desirous but not compelled to
buy and an owner willing but not compelled to sell, would
agree on as a price to the given and received therefor, is
beyond doubt difficult. The test is logically and legally
correct, but is cannot be applied to land with the accuracy with
which it can be applied to stocks, bonds and personal property
generally. Still it is this test which admittedly must be applied,
even when the value of the land and the damages are found in
separate sums.
It is a very difficult matter to limit the scope of the inquiry as
to what the market value of condemned property is. The
market value of a piece of land is attained by a consideration
of all those facts which make it commercially valuable.
Whether evidence considered by those whose duty it is to
appraise the land is of that nature is often a very difficult
matter to decide. The Supreme Court of the United States, in a
carefully worded statement, marks out the scope of the inquiry
as follows:
In determining the value of the appropriated for public
purposes, the same considerations are to be regarded as in a
sale of property between private parties. The inquiry in such
cases must be: What is that property worth in the market,
viewed not merely with reference to the uses to which it is at
the time applied, but with reference to the uses to which it is
plainly adapted; that is to say, what is it worth from its
availability for valueless uses? ... As a general thing, we
should say that the compensation to the owner is to be
estimated by reference to the uses for which the property is
suitable, having regard to the existing business or wants of the
community, or such as may be reasonably expected in the
immediate future. (Boom Co. vs. Patterson, 98 U.S., 403.)
This passage is quoted with approval in the late case of St.
Loui I.M. & S.R. Co. vs. Theodore Maxfield Co. (94 Ark.,
135; 26 L.R.A., N.S., 1111; 126 S.W., 83), a very well
considered case.chanroblesvirtualawlibrary chanrobles virtual
law library
The supreme court of Missouri has also formulated an
exceedingly clear statement of the matter in the Stock Yards
Case (120 Mo., 541):
The market value of the property means its actual value,
independent of the location of plaintiff's road thereon, that is,
the fair value of the property as between one who wants to
purchase and one who wants to sell it; not what could be
obtained for it in peculiar circumstances when greater than its
fair price could be obtained; nor its speculative value; nor the
value obtained through the necessities of another. Nor, on the
other hand, is it to be limited to that price which the property
would bring when forced off at auction under the hammer.
The question is, if the defendant wanted to sell its property,
what could be obtained for it upon the market from parties
who wanted to buy and would give its full value.
These views are practically in accord with Lewis on Eminent
Domain (2d ed.), section 478, where the rule is stated as
follows:
The market value of property is the price which it will bring
when it is offered for sale by one who desire, but is not
obliged to sell it, and is bought by one who is under no
necessity of having it. In estimating its value all the
capabilities of the property, and all the uses to which it may be
applied or for which it is adapted are to be considered, and not
merely the condition it is in at the time and the use to which it
is then applied by the owner. It is not a question of the value
of the property to the owner. Nor can the damages be
enhanced by his unwillingness to sell. On the other hand, the
damages cannot be measured by the value of the property to
the party condemning it, nor by its need of the particular and
its surroundings, its improvements and capabilities, may be
shown and considered in estimating its value. (Approved in
Seaboard Air Line vs. Chamblin, 18 Va., 42.)
Now, what was the utility of the land condemned? So far as
the record shows, its possible uses were, first, for the
cultivation of rice; second, as a residential site owing to its
proximity to the provincial building and the high school; and
third, as a railroad station
site.chanroblesvirtualawlibrary chanrobles virtual law library
Its location from a farmer's point of view would doubtless
enhance its value, since it was so close to the town of Lucena
that the marketing of crops was a decidedly simple matter. For
this reason it was more valuable as agriculture land than other
farms farther away from
town.chanroblesvirtualawlibrary chanrobles virtual law library
As a residential site it seems to have been so far a complete
failure. How long the high school had stood there the record
does not state. But although the provincial building had stood
near it for several years, not a single homebuilder had selected
any portion of the condemned land as a site for his residence.
We note that all those who testified at the hearing before the
commissioners to having purchased land in the vicinity for
home sites, purchased other land than that condemned. Nor
does the record contain any intimation that any of the owners
of the land had ever attempted to dispose of any part of it as
building lots. As a residential site, therefore, its value was
decidedly problematical. Possibly, in the next dozen years a
few houses might have been built upon the land, but, judging
by the past record, its development along this line would have
been extremely slow.chanroblesvirtualawlibrary chanrobles
virtual law library
As a railroad station site, the record gives no indication that it
is the sole possible location for that purpose in Lucena. It is
not shown that its location for that purpose is at all superior to
other side of town. Hence, possessing no exclusive natural
advantages for this purpose, it is a foregone conclusion that
the railroad company would not willingly pay P81,00 for such
a site when it could have purchased another site for, say,
P1,500.chanroblesvirtualawlibrary chanrobles virtual law
library
Here it seems proper to say that the appearance of the railroad
in the town of Lucena was the occasion for an incipient real
estate boom in the vicinity of the provincial building and the
high school. Several of the witnesses for the defendants
testified what they would offer; if they were in the market for
land in the vicinity of the station site, and the witness Alzona,
the single witness who testified for the plaintiff, testified that
some owner of land near the provincial building were
asking between P50 and P700 for lost of 400 square meters. It
is clear that these hypothetical purchases and sales do not offer
any reliable basis upon which to calculate the actual market
value of the land. The fond dreams of the owners of a sudden
shift of the business center on the town of Lucena to their
vicinity, or of its becoming a choice residential district, are not
capital in hand.
Proof must be limited to showing the present condition of the
property and the uses to which it is naturally adapted. It is not
competent for the owner to show to what use he intended to
put the property, nor what plans he had for its improvement,
nor the probable future use of the property. Nothing can be
allowed for damages to an intended use. (Lewis on Eminent
Domain, 2d ed., sec. 709.)
From the evidence we have discussed above, it is apparent that
a good price for rice land in the vicinity of Lucena is P500 per
hectare. With his as a basis, at what would the prospective
buyer estimate the possibility of the land being used as a
residential site sometime in the future and its possible
advantages as a railroad site? Certainly at nothing like the
estimates contained in the report of the commissioners. To
secure an adequate return on such a large investment as
P80,000, every meter of the land would have to be put to
immediate use as residential sites, supposing that people could
be induced to buy it for that purpose at such figures or to pay
the necessarily large rent therefor based on such a valuation.
And to hold out for such a figure in case a railroad company
wanted the land as a depot site would mean that the company
would locate its depot at some other place. It seems to us that,
either as a residential site or as a railroad station site, its value
should be principally regulated by the value of other
agricultural land on the outskirts of the town. In other words,
the chance that it would be wanted for either of these purposes
owing to its superior location was but slightly greater than that
of other agricultural land adjacent to the town. We are,
therefore, led to the conclusion that the price at which
practically half of the condemned land was, sold by Romana
Velasquez to the defendant, Filemon Perez, is a most liberal
estimate of its value. We refer to her sale of the parcel of
16,094 square meters for P6,500. This parcel comprises
practically one-half of the entire station site and no outside
land was included in the transaction. The sale was made after
it became known that the land sold was to be part of the
station site, and a statement to this effect was included in the
deed. Both parties being aware that the land was to be
condemned by the plaintiff company, it cannot be said that
they were not aware of all the latent utility of the land. For
these reasons, the price which this parcel brought should serve
as an excellent criterion of the value of the entire station site.
And while no explanation is given of why the sale occurred,
since, of course, no one would but it with the expectation of
using it himself when he knew that it would shortly be
occupied by the railroad company, still there is not sufficient
indication that it was sold for speculative purposes or that the
element of speculation entered into the transaction to enable us
to say that the price was inflated and exceeded the actual
market value of the condemned land as agricultural land to be
worth P500 per hectare, and leaves a little more than P3,500
for its potential value as a residential district and as a railroad
station site. This is, furthermore, approximately 400 per cent
higher than Sra. Velasquez' second sale (some for months
later) to Simeon Perez, when she sold about 23,000 square
meters in the same neighborhood for a little over P1,000 per
hectare.chanroblesvirtualawlibrary chanrobles virtual law
library
It is to be further noted that the average assessed valuation of
the condemned property is somewhat less than P0.08 per
square meter, while the highest assessed valuation of any of it
is only P0.23 per square meter, which is carried by some 5,973
square meters, or less than one-sixth of the whole. It is also to
be noted that these 5,973 square meters were appraised by the
commissioners as being worth exactly what the 16,094 square
meters were worth, the latter being assessed for taxation
purposes at only P0.03 per square
meter.chanroblesvirtualawlibrary chanrobles virtual law
library
At the price we have fixed, we are of the opinion that any
consequential damages which may have been occasioned to
any of the defendants by the condemnation proceedings is
amply cared for.chanroblesvirtualawlibrary chanrobles virtual
law library
The defendants, Simeon Perez, was awarded P600 damages by
the commissioners for being compelled to remove a building
in course of construction at the time the expropriation
proceedings were started. This building was designed to serve
partly as a warehouse and partly for stores. He commenced its
construction about the middle of December, 1912, after it
became known that he plaintiff company wanted the land for a
railroad station. Construction work was ordered stopped by the
court. From the vague description of this order in the record,
we presume it was the order of the court of date of January 22,
1913, placing the plaintiff in possession of the land under the
provisions of Act No. 1258 as amended by Act No. 1592.
Until such action was taken by the railroad company, or until
the commissioners were appointed and had appraised the land,
we know of no legal provision which would prohibit the
owner from doing with the land what he pleased. The Act in
question gives t the company "the right t enter immediately
upon the possession of the land involved." (Sec. 3.) This
amendment to Act No. 1258 was enacted especially for the
benefit of railroad companies, and affords full protection to
them if they act with due diligence. Until some such positive
assertion of its desire to expropriate the land, no reason is seen
why the company might not ask for a dismissal of the
proceedings in accordance with section 127 of the Code of
Civil Procedure. The right of the owner to the enjoyment of
his property ought not to be made to depend so entirely upon
the whims of a third party. No attempt was made to meet the
statement of Perez that he had expended a large sum of money
on the construction of the building. The commissioners
probably saw the structure or some of the materials which
entered into it and are in a much better position to judge of the
amount expended upon the work than are we. They have fixed
that amount at P600. In the absence of positive evidence in the
record showing this findings to be grossly excessive, we must
accept it as correct.chanroblesvirtualawlibrary chanrobles
virtual law library
For the foregoing, reasons, the judgment of the court below is
modified by reducing the award for the parcel containing
16,094 square meters to the sum of P6,500. The damages for
the remaining parcels will be fixed at the same proportionate
amount. As thus modified the judgment appealed from is
affirmed. No costs will be allowed on this appeal. The amount
as herein fixed, together with interest, will be deposited with
the clerk of the Court of First Instance of Tayabas, subject to
the rights of the defendants and the Tayabas Land Company.
So ordered.chanroblesvirtualawlibrary chanrobles virtual law
library
FIRST DIVISION
G.R. No. L-35861 October 18, 1979
MUNICIPALITY OF DAET, Petitioner, vs. COURT OF
APPEALS and LI SENG GIAP & CO., INC., Respondent.
chanrobles virtual law library
GUERRERO, J.:
The judgment of the respondent Court of Appeals, subject of
the instant petition to review on certiorari, "fixing the fair
market value of the property sought to be expropriated at
P200.00 per square meter or for of FIVE HUNDRED FORTY
THREE THOUSAND FOUR HUNDRED (P543,400.00)
PESOS, and the value of the improvement thereon at THIRTY
SIC THOUSAND FIVE HUNDRED (P36,500.00) PESOS,
Philippine Currency, both amounts to bear legal interest from
and after the date of the actual taking of possession by the
Municipality of Daet, Camarines Norte until the full amount is
paid, with costs against plaintiff-appellant," must be affirmed
in the light of the unusual, unique and abnormal circumstances
obtaining in this case where the complaint for condemnation
was filed on August 9, 1962 or seventeen (17) years ago but
up to the present, the petitioner Municipality of Daet has failed
to make the deposit required to take possession of the property
sought to be
expropriated.chanroblesvirtualawlibrarychanrobles virtual law
library
The Municipality of Daet instituted condemnation proceedings
against private respondent Li Seng Giap & Co. Inc. on August
9, 1962 before the Court of Firs Instance of Camarines Norte
for the purpose of acquiring and subsequently converting the
following described property owned by private respondent as
a public park:
A parcel of land (Lot No. 3 Plans PSU-57331 situated in the
Poblacion, Municipality of Daet, bounded on the North-East
by a provincial road known as Vinzons Avenue; on the South-
East, by Felipe II Street; on the South, by Ildefonso Moreno
Street, and on the West, by J. Lukban Street, covering an area
of TWO THOUSAND SEVEN HUNDRED AND
SEVENTEEN (2,717 sq. meters) SQUARE METERS, more
or less and assessed by TRANSFER CERTIFICATE OF
TITLE NO. 207 in the name of Li Seng Giap &
Co. 1chanrobles virtual law library
On August 20, 1962, private respondent, having been served
with summons through counsel, filed a "Motion to Dismiss"
on the following grounds:
1. The proposed expropriation has not been duly authorized as
provided by law, principally because it has not been approved
by the Office of the President as required by Section 2245 of
the Revised Administrative Code;chanrobles virtual law
library
2. There is no genuine necessity for the proposed
expropriation of the defendant's property;chanrobles virtual
law library
3. The proposed park should be put up in a different site which
would entail less expense to the plaintiff;chanrobles virtual
law library
4. The present expropriation proceeding instituted by the
herein plaintiff against the defendant is
discriminatory;chanrobles virtual law library
5. The plaintiff does not have sufficient funds to push through
its project of constructing a park and to allow the plaintiff to
expropriate defendant's property this time would be only to
needlessly deprive the latter of the use of its
property. 2chanrobles virtual law library
On February 8, 1963, the trial court rendered a decision
dismissing the expropriation proceedings mainly on the
grounds that there is no "genuine need" for the petitioner to
convert the aforestated lot into a park nor necessity to widen
the streets and that even if there is genuine necessity for the
proposed expropriation, still the petitioner cannot, in this case,
exercise the power of eminent domain as it has no funds to
pay the reasonable value of the land and the building
thereon. 3chanrobles virtual law library
On February 12, 1963, petitioner filed a motion for
reconsideration which was denied on February 27, 1963.
Petitioner then appealed to the Court of Appeals, which appeal
was docketed as CA-G.R. No. 32-259-R. On April 14, 1968,
the Court of Appeals rendered a decision reversing the trial
court's decision, the dispositive portion of which is as follows:
WHEREFORE, the appealed "decision" (order) in Civil Case
No. 1436 for expropriation is hereby reversed and set aside,
and, in lieu thereof, another one is hereby rendered denying
defendant Li Seng Gia & Company's motion for dismiss;
declaring that plaintiff Municipality of Daet has a lawful right
to take the property sought to be condemned, for the public
use described in the complaint, upon payment of just
compensation to be determined as of the date of the filing of
the complaint; directing the court a quo to promptly fix the
provisional value of the property sought to be condemned for
the purposed of the motion of plaintiff Municipality of Daet to
take immediate possession of said property under Sec. 2 of
Rules 67 (formerly Sec. 3 of Rules 69) of the Rules of Court;
and remanding the case to the court a quo for further
proceedings consistent with this decision, the costs in this
appeal to be taxed against plaintiff Municipality of Daet in
accordance with Sec. 12 of Rule 67 (formerly Sec. 13 of Rule
69) of the Rules of Court; ... 4chanrobles virtual law library
On March 20, 1969, after the records of the case were
remanded to the trial court, private respondent filed a "Motion
for Appointment of Commissioners to Fix Just Compensation
for the Property Sought to be Taken."chanrobles virtual law
library
On April 15, 1969, the trial court issued twin orders: (1) fixing
the provisional value of the land at P129,99 per square meter
and the value of the improvement at P30,000.00 totalling
P356,040.00 and require the Municipality to deposit with the
Provincial Treasurer in cash or in security which should be
payable on demand and upon deposit being effected, the Clerk
of Court was ordered to issue the necessary writ of place the
Municipality in possession of the property; and (2) appointing
Atty. Ernesto de Jesus, Provincial Assessor, as chairman; Atty.
Jose V. Jamito, PNB Branch Attorney and Dr. Mateo Aquino,
a resident of the municipality, as members of the committee
on appraisal. The committee members proceeded to qualify by
taking their oaths of office and then held three sessions on
May 10, May 17, and May 24, 1969. On May 28, 1969, the
committee filed t he following report:
COMMISSIONERS' REPORT chanrobles virtual law library
In compliance with the order of this Honorable Court dated
April 15, 1969, and pursuant to the provisions of Sec. 6. Rule
67 of the Rules of Court, the undersigned commissioners, with
due notice to the counsels of both parties, convened in the
morning of May 10, 1969, for the purpose of finding ways and
means by which the commissioners could ascertain the fair
market value of the property subject of this proceeding. There
are two basic approaches used in the appraisal of land sought
to be condemned - the sale approach, and the income
approach. The commissioners as well as the counsels of both
parties agreed to use the sale approach. In order to enable the
counsels of both parties, as well as the commissioners, to
gather or secure documents regarding transaction of real
property which the commissioners might use as guide in
determining the fair market value, the parties agreed to
postpone the hearing to May 17, 1969, at 6:30 in the
morning.chanroblesvirtualawlibrarychanrobles virtual law
library
Hearing was resumed in the morning of May 17, forthwith, the
counsel for the plaintiff presented documents which were
submitted as Exhibits, to wit:chanrobles virtual law library
1. Exh. "A" - Deed of absolute sale executed by Lydia Moreno
in favor of Jaime R. Alegre, entered as Doc. No. 160: Page
No. 33: Book No. IV; Series of 1962. (The consideration was
about P13.00 per square
meter).chanroblesvirtualawlibrarychanrobles virtual law
library
2. Exh. "B" - Deed of absolute sale executed by Jesus
Villafranca y Aules in favor of Sourthern Products Import and
Export Corporation, entered as Doc. No. 314; Page No. 64;
Book No. II; Series of 1962. (The consideration was around
P14.00 per square
meter).chanroblesvirtualawlibrarychanrobles virtual law
library
3 Exh. "C" - Deed of absolute sale executed by Julio Curva, et
al. in favor of Felicidad Vinzons Pajarillo, entered as Doc. No.
186; Page No. 39; Book No. 1; Series of 1958. (The
consideration was P 15.00 per square
meter).chanroblesvirtualawlibrarychanrobles virtual law
library
4. Exh. "D" - Deed of Absolute Sale executed by Clao Dy Kim
To in favor of Concepcion Fonacier-Abaño, entered as Doc.
No. 133; Page No. 88; Book No. V; Series of 1948. (The
consideration was about P8.57 per square
meter).chanroblesvirtualawlibrarychanrobles virtual law
library
5. Exh. "E" - Deed of sale with mortgage executed by Dr.
Agustin F. Cuevas and Leticia Lopez, in favor of the
Camarines Norte Teachers Cooperative Credit Union, Inc.,
entered as Doc. No. 117; Page No. 56; Book NO. VIII; Series
of 1961. (The consideration was P57,000.00 - the lot with an
area of 972 square meters, and a three-storey concrete building
assessed at P16,000.00 under Tax Dec. No. 7083. If we will
exclude the value of the building, the consideration for the
land will be about P43.00 per square
meter).chanroblesvirtualawlibrarychanrobles virtual law
library
After the submission of the aforementioned exhibits, upon
motion of the counsel for the defendant, the hearing was
postponed to May 24, 1969, at 8:30 in the morning. Upon
resumption of the hearing on said hour and date, the counsel
for the defendant presented Exh. 1, which the deed of sale
executed by the Municipality of Daet in favor of the
Development Bank of the Philippines; the document was
executed on January 30, 1969; Exh. "1-A", the consideration
in the amount of P205,600.00; Exh. "1-B", the area of 2,056
square meters; and Exh. "2", the letter of Tomas Cootauco to
Li Seng Giap & Co., dated July 21, 1962. In addition to the
aforementioned evidence, the counsel for the defendant
presented as witness Lo Chin who testified that sometime in
July, 1962. In addition to the aforementioned evidence, the
counsel for the defendant presented as witness Lo Chin who
testified that sometime in July, 19 1962 (after the fire), he was
instructed by his son-in-law, Mr. Jesus Ty Poco, to see Mr.
Jose Ong, the representative of Mr. William Lee, for the
purpose of making an offer to buy the land subject of this
proceeding for a price of P120.00 per square meter, and
P30,000.00 for the structure thereon; that he had talked with
Mr. William Lee, for the purpose of making an offer to buy
the land subject of this proceeding for a price of P120.00 per
square meter, and P30,000.00 for the structure thereon; that he
had talked with Mr. Jose Ong, for the same purpose, on
several occasions 5 or 6 times, the last was sometime in the
first week of May, this year wherein he offered to pay as high
as P150.00 per square meter, and P50,000,00 for the structure
thereon; and that Mr. Ty Poco, having been born in Mercedes,
and resided here since birth, was desirous of buying said
property because he intends to build a memorial thereon.
Counsel likewise presented Mr. Jose Ong as witness to
corroborate the testimony of Lo
Chin.chanroblesvirtualawlibrary chanrobles virtual law library
After the hearing held by the commissioners, Atty. Ernesto de
Jesus, who is the incumbent provincial assessor, dig up the
records in his office for the purpose of finding, in addition to
the exhibits already presented, other documents covering
transactions of properties located within the areas near the
land sought to be condemned, but failed to locate even a single
document Hence, the commissioners have no other recourse
but to base their appraisal of the value of the land under
consideration from the Exhibits submitted by the
parties.chanroblesvirtualawlibrarychanrobles virtual law
library
Under Sec. 4, Rule 67, of the Rules of Court, just
compensation is to be determined as of the date of the filing of
the complaint. The above-entitled complaint was filed in
August, 1962; hence, Exh. "1", Exh. "1-B" and Exh. "1-C"
could not be taken into consideration, the same having been
executed in the year 1969 - seven years after the filing of the
complaint. The offer of Mr. Jesus Ty Poco could not also be
considered because the same was made by one who was under
an imperative necessity of buying the
property.chanroblesvirtualawlibrary chanrobles virtual law
library
After all the exhibits submitted by the plaintiff had been
examined by the commissioners, and upon a conscientious and
analytical study of the sales of land near the land subject of
this proceeding, and after serious deliberations on the matter,
the commissioners agreed that, in the year 1962, the
reasonable or fair market value of the land subject of this
proceeding should be P60.00 per square meter; and the
structure remaining thereon at P15,000.00 chanrobles virtual
law library
Attached hereto is the map of the commercial center of Daet
wherein the land subject of this case is shown. The lands
described in the Exhibits submitted by the plaintiff are also
indicated thereon.chanroblesvirtualawlibrarychanrobles virtual
law library
Daet, Camarines Norte, May 28, 1969.
Respectfully submitted,
(Sgd.) Ernesto de Jesus (Sgd.) Jose V. Jamito chanrobles
virtual law library
Commissioner Commissionerchanrobles virtual law library
(Sgd.) Mateo D. Aquino
Commissioner 5
Private respondent, having received copy of the
commissioner's report, filed a "Motion to Admit Additional
Evidence" which was opposed by petitioner but the same was
granted by the Court provided that the additional evidence
consisted of the expert testimony of a duly licensed broker. On
August 20, 1969, the municipality manifested its conformity
to the commissioner's
report.chanroblesvirtualawlibrarychanrobles virtual law
library
Meanwhile, on July 23, 1969, Judge Gabriel V. Valero, the
Presiding Judge at Branch I, issued an order transferring this
case to Judge Isidro Vera of Branch II, who proceeded to take
the additional evidence of private respondent. Said evidence
consisted of the testimony of Engineer Aurelio B. Aquino,
who appraised the land involved herein at P200.00 per square
meter and the improvement thereon at P36,500.00 in
1969.chanroblesvirtualawlibrarychanrobles virtual law library
On December 2, 1969, after submission of evidence for both
parties, the trial court rendered a decision disregarding the
valuation made by the commissioners and using the appraisal
of Engineer Aurelio B. Aquino in 1969 as the basis in
determining the value of the land in 1962. The dispositive
portion of said decision is quoted herein as follows:
WHEREFORE, the Court renders judgment fixing the
reasonable value of the property sought to be expropriated at
P117.00 per square meter or for a total amount of Three
Hundred Seventeen Thousand Eight Hundred Eighty Nine
Pesos (P317,889.00), and the value of the improvement at
Thirty Six Thousand Five Hundred Pesos (P36,500.00), this
amount to bear interest at the legal rate from the filing of the
complaint until paid with costs against the
plaintiff.chanroblesvirtualawlibrarychanrobles virtual law
library
SO ORDERED. 6chanrobles virtual law library
Both petitioner and private respondent filed their respective
motions for reconsideration, the former praying that the trial
court give due course to the commissioner's report while the
latter insisting that the market value of the land be fixed at
P200.00 per square meter. Upon denial of the said motions,
both parties then appealed to the Court of
Appeals.chanroblesvirtualawlibrarychanrobles virtual law
library
On October 18, 1972, respondent Court of Appeals rendered a
decision sustaining the valuation of the property in 1969,
declaring the municipality to have a lawful right to expropriate
and modified the judgment of the trial court with respect to the
interest that can be recovered which should be from and after
the date of actual taking.chanroblesvirtualawlibrarychanrobles
virtual law library
Petitioner's motion for reconsideration having been denied, the
instant petition for review on certiorari was filed and the
following assignment of errors raised:
I. Contrary to law and jurisprudence, the Court of Appeals
erred in the interpretation and application of Section 4, Rule
67 of the Rules of Court by determining the value of the
property in condemnation proceedings at the time of the
rendition of the judgment of the trial court and not at the date
of the filing of the
complaint.chanroblesvirtualawlibrarychanrobles virtual law
library
II. Contrary to the principle of res judicata, the Court of
Appeals gravely abused its power in modifying, disregarding
and amending its own decision which has long become final
and executory (in CA-G.R. No. 32259-
R).chanroblesvirtualawlibrarychanrobles virtual law library
III. Without regard to the guidelines set forth by procedural
laws and jurisprudence, the Court of Appeals erred in giving
credence to an appraiser under the employ of the private
respondent and totally disregarded the findings of the
commissioners appointed by the Court and the by not
declaring that the trial judge of Branch II of the Court of First
Instance of Camarines Norte has gravely abused his discretion
in taking cognizance of the condemnation
case.chanroblesvirtualawlibrarychanrobles virtual law library
IV. In any event, by virtue of the Presidential Decree No. 42
issued on November 9, 1972 private respondent in estopped
from claiming in valuation higher than the assessed value of
the property sought to be condemned. 7chanrobles virtual law
library
The first assignment of error assails the respondent Court's
application of Section 4, Rule 67 of the Revised Rules of
Court which states the time when the value of the land should
be determined in condemnation proceedings. The Rule
provides thus:
Sec. 4. Order of condemnation. - When such a motion is
overruled or when any party fails to defend as required by this
rule, the court may enter an order of condemnation declaring
that the plaintiff has a lawful right to take the property sought
to be condemned, for the public use or purpose described in
the complaint, upon payment of just compensation to be
determined as of the date of the filing of the complaint ...
A look into the original of this provision reveals that it is a
reproduction of Section 5, Rule 69 of the Rules of Court of
July 1, 1940. In turn, the said provision in the Rules of 1940
appears to have been taken from the ruling Manila Railroad
Company vs. Caligsihan, 8 a 1919 case, where the rule that
"the value of the property taken should be fixed as of the date
of the proceedings" was
enunciated.chanroblesvirtualawlibrarychanrobles virtual law
library
Prior to the promulgation of the Rules of 1940, however, there
is another case that touched on the question of time when
valuation of the property taken should be fixed. This is the
case of Provincial Government of Rizal vs. Caro de Araullo 9a
1938 case, where the value of the property therein involved
was fixed as of the date when it was taken in 1927 and not at
the time of the filing of the complaint in 1928. This ruling was
reiterated in Republic vs. Lara, 10a 1954 case, where it was
held that the value of the lands expropriated must be reckoned
as of the time of the actual possession by the Government in
1946 and not as of the time of the filing of the complaint in
1949. Such was the ruling notwithstanding the fact that the
Rules of 1940 was already in force and effect. In explaining
the ruling, the Court therein held:
... Ordinarily, inquiry is limited to actual market values at the
time of the institution of the condemnation proceedings
because under normal circumstances, the filing of the
complaint coincides or even precedes the taking of the
property by the plaintiff; and Rule 69 simply fixes this
convenient date for the valuation of property sought to be
expropriated. Where, however, the actual taking or occupation
by the plaintiff, with the consent of the landowner long
precedes the filing of the complaint for expropriation the rule
to be followed must still be that enunciated by us in Provincial
Government of Rizal vs. Caro, supra, that "that value of the
property should be fixed as of the date when it was taken and
not of the date of the filing of the proceedings." For where
property is taken ahead of the filing of the condemnation
proceedings, the value thereof may be enhanced by the public
purpose for which it is taken, the entry of the plaintiff upon the
property may have depreciated its value thereby, or there may
have been a natural increase in the value of the property from
the time it is taken to the time the complaint is filed, due to
general economic conditions. The owner of the private
property should be compensated only for what he actually
loses, it is not intended that his compensation shall extend
beyond his loss or injury. And what he loses is only the actual
value of his property at the time it is taken. This is the only
way the compensation to be paid can be truly just, i.e., "just"
not only to the individual whose property is taken, "but to the
public, which is to pay for it." (18 Am. Jur. 873, 874)
Subsequent cases where the taking preceded the filing of the
expropriation proceedings followed the doctrine in
the Caro case. These cases were: Republic vs. Garcellano, et
al.; 11Municipal Government of Sagay vs. Jison, et
al.; 12and Alfonso vs. Pasay City. 13However, in the case
of Republic vs. Narciso, et al., 14where the expropriation
proceeding preceded the taking, it was held that the value of
"the property to be considered are those at the beginning of
the expropriation" and not accordingly at the time of the
taking of said property. For this reason, this Court fittingly
saw the need for clarify the departure of some cases from the
mandate of Section 5, Rule 69 of the Rules of Court of 1940
(now Section 4, Rule 67 of the Revised Rules of Court) in the
case of Republic of the Philippines vs. Philippine National
Bank, 15where it was held:
It is apparent from the foregoing that, when plaintiff takes
possession before the institution of the condemnation
proceedings, the value should be fixed as of the time of the
taking of the said possession, not the filing of the complaint,
and the latter should be the basis for the determination of the
value, when the taking of the property involved coincides with
or is subsequent to, the commencement of the proceedings.
Indeed, otherwise, the provision of Rule 69, Section 5,
directing that compensation" be determined as of the date of
the filing of the complaint," would never be operative.
In Capitol Subdivision, Inc. vs. Province of Negros
Occidental, 7 SCRA 60, the Court said that "Since the right of
the Province of Negros Occidental to expropriate the lot in
question in the present case is not contested, the owner of said
lot is entitled to recover from said province the fair and full
value of the lot, as of the time when possession thereof was
actually taken by the province, plus consequential damages -
including attorney's fees - from which the consequential
benefits, if any, should be deducted with interest at the legal
rate, on the aggregate sum due to the owner from and after the
date of actual taking." And in the case of J.M. Tuason & Co.,
INc. vs. Land Tenure Administration, 31 SCRA 413, the
Court, speaking thru now Chief Justice Fernando, reiterated
the "well-settled (rule) of the property at the time of its taking.
Anything beyond that is more and anything short of that is
less, than just compensation. It means a fair and full
equivalent for the loss sustained, which is the measure of the
indemnity, not whatever gain would accrue to the
expropriation entity."chanrobles virtual law library
In the case at bar, it is a fact that there has been no taking of
the property prior to the institution of the condemnation
proceedings. And it cannot even be said that the filing of the
complaint coincided with he taking of the property by the
plaintiff because the latter did not enter into possession of the
property since it failed or did not comply with the order of the
Court requiring the municipality to make the necessary deposit
of the provisional value as fixed by the Court in its Order of
April 15, 1969. Petitioner did not even move for a
reconsideration of said Order. The trial proceeded and after
hearing and submission of evidence for both parties, the trial
court rendered on December 2, 1969 its decision "fixing the
reasonable value of the property sought to be expropriated at
P117.00 per square meter or for a total amount of Three
Hundred Seventeen Thousand Eight Hundred Eighty Nine
Pesos (P317,889.00), and the value of the improvement at
Thirty Six Thousand Five Hundred Pesos (P36,500.00), said
amount ... to bear interest at the legal rate from the date of the
filing of the complaint until paid."chanrobles virtual law
library
Still questioning the value determined by the trial court,
petitioner appealed to the Court of Appeals and on October 8,
1972, the appellate court in its judgment fixed the value of the
property at P200.00 per square meter and P36,500.00 for the
improvement. Not yet satisfied, the municipality appealed to
the Supreme Court and meantime took no step to take
possession of the land. While petitioner submitted a
Manifestation on September 15, 1977 to this Court invoking
Presidential Decree No. 42 dated November 9, 1972 and
manifesting that it had made a deposit to the Philippine
National Bank in the amount of P54,370.00 as per PNB
Certificate No. 9381 dated February 9, 1973, We hold that
petitioner has not made the correct and proper deposit of the
provisional value as fixed by the trial court. It is elementary
that Presidential Decree No. 42 of November 9, 1972 which
grants the right to take or enter upon the possession of the
property sought to be expropriated if he deposits with the
Philippine National Bank an amount equivalent tot he assessed
value of the property for purposes of taxation has no
application to the case at bar where the Court of Appeals had
already fixed the value of the property at P200.00 per square
meter and P36,500.00 for the improvement in its decision
promulgated on October 18, 1972 about three weeks earlier
than the issuance of the Presidential Decree No. 42chanrobles
virtual law library
By not complying with the orders of the trial court and the
appellate court, petitioner would benefit by its non-compliance
and dilly-dallying in taking possession of the property which
We will not sanction or allow to the prejudice of the private
respondent landowner who should not be penalized by the
protracted delay of petitioner in taking over the property over
a period of seventeen (17) years during which time private
respondent was deprived of the beneficial use of the land and
the improvement thereon. Petitioner upon tiling the complaint
has the duty to make the deposit in the amount provisionally
ascertained and fixed by the court (Sec. 2, Rule 67, Rules of
Court), which deposit serves the double purpose of pre-
payment of the property if the same is finally expropriated and
of an indemnity for damages if the proceedings are dismissed.
(Visayan Refining Co. vs. Camus, 40 Phil. 550; Republic of
the Philippines vs. Baylosis, L-13582, Sept. 30,
1960) chanrobles virtual law library
The records disclose that petitioner filed a Motion for
Authority to Demolish Building of Private Respondent dated
June 27, 1974 for reasons therein alleged which private
respondent opposed as not being the proper procedure under
the law to abate a nuisance unless petitioner deposits the
amount of P36,500.00 which is the value of the improvement.
The Court resolved to deny the motion without prejudice to
petitioner's taking the proper proceedings for the abatement of
the alleged nuisance pursuant to the provisions of the new
Civil Code in its Resolution of July 24,
1974.chanroblesvirtualawlibrarychanrobles virtual law library
The records further disclose that in the Petition to Cite the
Mayor of the Municipality of Daet (Herein Petitioner) in
Contempt of Court filed by private respondent on February 14,
1978, this Court was informed that the petitioner acting thru
its Mayor, Engineer Jose P. Timoner, started to demolish on
February 6, 1978 the building of the private respondent,
attaching thereto photographs marked Annexes 1 and 2
showing the building before and during the demolition. Private
respondent prayed that the Mayor be cited for contempt or
alternatively, that the petitioner be ordered to deposit with the
Philippine National Bank the amount of P36,500.00 instead of
P28,830.00 to await the final outcome of this
case.chanroblesvirtualawlibrary chanrobles virtual law library
Commenting on the petition to cite the Mayor in contempt of
court, petitioner again relies on Presidential Decree No. 42
alleging that the assessed value of the property for taxation
purposes is only P18,250.00 which is less than the amount of
P28,830.00 it had already deposited with the Philippine
National Bank.chanroblesvirtualawlibrary chanrobles virtual
law library
The above antecedent facts and circumstances of this case are
unique and abnormal such that by reason thereof, We agree
with the judgment of the Court of Appeals fixing the fair
market value of the property sought to be expropriated at
P200.00 per sq. meter or for a total of FIVE HUNDRED
FORTY THREE THOUSAND FOUR HUNDRED
(P543,400.00) PESOS, and the value of the improvement
thereon at THIRTY SIX THOUSAND FIVE HUNDRED
(P36,500.00) PESOS, Philippine Currency, both amounts to
bear legal interest from and after the date of the actual taking
of possession by the Municipality of Daet, Camarines Norte
until the full amount is paid, with costs against plaintiff-
appellant.chanroblesvirtualawlibrarychanrobles virtual law
library
We hold that the decision of the Court of Appeals fixing the
market value of the property to be that obtaining, at least, as of
the date of the rendition of the judgment on December 2, 1969
as prayed by private respondent, which the Court fixed at
P200.00 per square meter is in conformity with doctrinal
rulings herein above cited that the value should be fixed as of
the time of the taking of the possession of the property
because firstly, at the time judgment was rendered on
December 2, 1969, petitioner had not actually taken
possession of the property sought to be expropriated and
secondly, We find the valuation determined by the Court of
Appeals to be just, fair and
reasonable.chanroblesvirtualawlibrarychanrobles virtual law
library
On the second assignment of error, petitioner faults the
respondent court in modifying, disregarding and amending its
own decision in CA-G.R. No. 32259-R which directed
payment of just compensation to be determined as of the date
of the filing of the complaint. Petitioner claims that this
decision has tong become final and executory and it would be
contrary to the doctrine of res judicata to modify, disregard
and amend said
decision.chanroblesvirtualawlibrary chanrobles virtual law
library
In order that there may be res judicata, the following
requisites must be present: (a) the former judgment must be
final; (b) it must have been rendered by a court having
jurisdiction of the subject- matter and of the parties; (c) it must
be a judgment on the merits; and (d) there must be, between
the first and second actions, Identity of parties, of subject
matter, and of cause of action. 16chanrobles virtual law library
When, between the first case where the judgment was
rendered, and the second case where such judgment is
invoked, the three Identities mentioned in paragraph (d)
above, are present, the judgment on the merits rendered in the
first case constitutes an absolute bar to the subsequent action.
It is final as to the claim or demand in the controversy,
including the parties and those in privity with them, not only
as to every matter which was offered and received to sustain
or defeat the claim or demand, but as to any other admissible
matter which might have been offered for that purpose and of
all matters that could have been adjudged in that
case. 17chanrobles virtual law library
This is, however, not the situation in the case at bar. The only
question drawn in issue before the Court of Appeals in CA-
G.R. No. 32259-R was whether petitioner had the authority to
exercise the right of eminent domain. The question regarding
the amount of just compensation was expressly reserved by
the Court of Appeals for the trial court to determine. Perforce,
Between the first case wherein the judgment is rendered, and
the second case wherein such judgment is invoked, there is
Identity of parties but there is no Identity of causes of action.
In such a situation, the judgment is conclusive in the second
case only to those matters actually and directly controverted
and determined, and not as to matters merely involved therein.
To constitute res judicata, the right to relief in one suit must
rest upon the same question which in essence and substance
was litigated and determined in the first suit. 18chanrobles
virtual law library
That phrase in the dispositive portion of the decision of the
Court of Appeals in CA-G.R. No. 32259-R referring to the
time that should be considered in reckoning the just
compensation, to wit - "declaring that plaintiff Municipality of
Daet has the lawful right to take the Property sought to be
condemned, for the public use described in the complaint,
upon payment of just compensation to be determined as of the
date of the filing of the complaint" - cannot likewise constitute
the law of the case, which is a doctrine closely akin to res
judicata. The law of the case, as applied to a former decision
of an appellate court, merely expresses the practice of the
courts in refusing to reopen what has been decided. 19It differs
from res judicata in that the conclusiveness of the first
judgment ' is not dependent upon its finality. The first
judgment is generally' if not universally, not final. 20It relates
entirely to questions of law, and is confined in its operation to
subsequent proceedings in the same case. 21While it is
conclusive as to all matters within its scope, it cannot be
invoked, except as to questions as have been actually
considered and determined in the first appeal. In the
application of this rule, courts will take cognizance of such
points only as affirmatively appears in the last to have been
decided in the former appeal. 22chanrobles virtual law library
Moreover, this case is before the Supreme Court and being the
Court of last resort, it is the final arbiter of all legal questions
properly brought before it and its decision in any given case
constitutes the law of this particular case. Once Our judgment
becomes final, it is binding on all inferior courts, and hence
beyond their power and authority to alter or modify.
(Kabigting vs. Acting Director oil Prisons, 6 SCRA 281, 286).
Petitioner's second assignment of error is, therefore, without
merit.chanroblesvirtualawlibrarychanrobles virtual law library
The first part of the third assignment of error hinges on what is
the proper procedure in determining the just compensation in
proceedings.chanroblesvirtualawlibrary chanrobles virtual law
library
Section 5, Rule 67 of the Revised Rules of Court calls for the
appointment of not more than three (3) competent and
disinterested persons as commissioners to ascertain and report
to the court the just compensation for the property sought to be
taken. As to the extent of this function and power of the
commissioner, this Court held in Manila Railroad Company
vs. Velasquez 23that the commissioners' power is limited to
assessing the value and determining the amount of damages.
There it stops; they can go no farther. The value and damages
awarded must be a just compensation and no more and no less.
But in fixing these amounts, the commissioners are not to
act ad libitum. They are to discharge the trust reposed in them
according to well-established rules and form their judgment
upon correct legal principles. To deny this is to place them
where no one else in this country is placed, above the law and
beyond accountability.chanroblesvirtualawlibrarychanrobles
virtual law library
Corollary to tills limitation, it has been held that reports
submitted by commissioners of appraisals in condemnation
proceedings are not binding, but merely advisory in character,
as far as the court is concerned. 24An early case enunciated the
rule that a Court of First Instance has the undoubted right to
reject the report of the commissioners as to the value of the
land, if the report is not founded upon legal evidence. The
judge has the undoubted right also to discharge the
commission and appoint a new one. He also has the right to
formulate an opinion of his own as to the value of the land in
question, nevertheless, if he formulates such an opinion, he
must base it upon competent evidence. 25When the
commissioners report is not in accordance with the law on the
matter, another case ruled that it cannot serve as the basis of
the judicial decision but must be annulled and set aside, and
the case remanded to the court below for reopening of
trial. 26Then, in still other cases, it was held that a Court of
First Instance or on appeal, the Supreme Court may substitute
its own estimate of value as gathered from the record
submitted to it, in cases where the only error of the
commissioners is that they have applied illegal principles to
the evidence submitted to them; or that they have disregarded
a clear preponderance of evidence; or that they have used an
improper rule of assessment in arriving at the amount of the
award; provided always that the evidence be clear and
convincing and the amount allowed by the commissioners is
grossly inadequate or excessive. 27chanrobles virtual law
library
That the commissioners' report is not final and conclusive, but
merely recommendatory is bolstered by the requirement in
Section 8, Rule 67 of the Revised Rules of Court of
conducting a hearing thereon. Otherwise stated, said provision
requires that upon the expiration of the period of ten (10) days
within which all interested parties may file their objects to the
report, or even before the expiration of such period if all
interested parties have filed their objections to the report or
their statement of agreement therewith, the court must conduct
a hearing on the report.chanroblesvirtualawlibrarychanrobles
virtual law library
In view of these basic provisions of the Rules of Court on
eminent domain and various jurisprudence on the function of
the commissioners as limited by the Court, We hold that the
respondent Court of Appeals did not err in giving credence to
the appraiser employed by private respondent and in
disregarding the commissioners
report.chanroblesvirtualawlibrarychanrobles virtual law
library
Respondent court found that aside from being a civil engineer,
Aurelio B. Aquino is a licensed real estate broker and
appraiser of long standing, being one of the incorporators of
C.M. Hoskins and Co., Inc., a corporation engaged in real
estate brokerage since October, 1938 and of which firm he is
presently the Chairman of the board of directors. With these
qualifications, respondent court committed no error in
concluding that he was competent to make the appraisal of the
fair market value of the parcel of land under consideration.
Although he does not maintain an office in Daet nor does he
appear to have had any transactions in said locality, he is
compatent since a commercial parcel of land retains the same
characteristics whether it is located in Manila or Daet, and the
criterion for making an appraisal of a parcel of land is
universally applied, irrespective of the locality where it is
situated. And since the value of a parcel of land taken by
eminent domain is always a matter of opinion, the same may
be proved by opinion evidence of the real estate
appraiser. 28Hence, We find substantial basis for the court to
fix the value of the land at P200-00 per square meter and the
building at P36,500.00 as testified to by the
broker.chanroblesvirtualawlibrary chanrobles virtual law
library
Petitioner assails the transfer of the case from Branch I of the
Court of First Instance of Camarines Norte to Branch 11
thereof, claiming that the jurisdiction of the respective
branches are delineated by a controlling department circular
and thereby concluding that Branch 11 has no legal and valid
authority to take over said expropriation
case.chanroblesvirtualawlibrary chanrobles virtual law library
We do not agree. Where a court of first instance is divided into
several branches, each of the branches is not a court distinct
and separate from the others. Jurisdiction is vested in the
court, not in the judges, so that when a complaint or
information is filed before one branch or judge, jurisdiction
does not attach to said branch or judge alone, to the exclusion
of the others. Trial may be had or proceedings may continue
by and before another branch or judge. It is for this reason that
Section 57 of the Judiciary Act, expressly grants the Minister
of Justice, upon recommendation of the district Judge, the
administrative right or power to apportion the cases among the
different branches, both for the convenience of the parties and
the coordination of the work by the different branches, and the
judges presiding each branch. The apportionment does not
involve a grant or limitation or jurisdiction; this continues to
be vested in the court of first instance of the province as a
whole, and trial may be had by any judge or branch of the
court. 29chanrobles virtual law library
We do agree, however, that the apportionment of cases must
be respected by the judges in the interest of order and
coordination in the dispatch of cases. But the question of
whether Branch II took cognizance of a case properly
belonging to another branch is negated by the fact, pointed out
by respondents, that Administrative Order No. 472 of the
Secretary of Justice dividing the Province of Camarines Norte
between Branch I and Branch II took effect on January 1,
1971 long after Branch II had disposed of the case at bar
because said case was decided on December 2,
1969.chanroblesvirtualawlibrarychanrobles virtual law library
The fourth assignment of error is clearly untenable.
Presidential Decree No. 42 issued on November 9, 1972 does
not limit the just compensation in expropriation proceedings to
the assessed value of the value sought to be condemned. By its
title alone, i.e., "Authorizing the Plaintiff in Eminent Domain
Proceedings to Take Possession of the Property Involved
Upon Depositing the Assessed Value for Purposes of
Taxation," it can already be gleaned that said decree fixes only
the provisional value of the property. As a provisional value,
"it does not necessarily represent the true and correct value of
the land. The value is only "provisional" or "tentative" to serve
as the basis for the immediate occupancy of the property being
expropriated by the condemnor. 30chanrobles virtual law
library
This decree repealed Section 2, Rule 67 of the Revised Rules
of Court which imposed upon the court having jurisdiction of
the proceeding with the duty of ascertaining and fixing the
provisional value of The property. As stated in the said decree
itself, the repeal was necessary inasmuch as the "existing
procedure for the exercise of the right of eminent domain is
not expeditious enough to enable the plaintiff to take
possession of the real property involved as soon as possible,
when needed for public purposes."chanrobles virtual law
library
Even in Presidential Decree No. 76, "Requiring All Persons,
Natural or Juridical Owning or Administering Real Property,
Including the Improvements Thereon, to File Sworn Statement
of the True Value of Such Property," issued on December 6,
1972, it is clearly stated that the just compensation is based on
the current and fair market value and not on the assessed
value. The pertinent provisions state as follows:
For purposes of just compensation in cases of private property
acquired by the government for public use, the basis shall be
the current and fair market value as declared by the owner or
administrator or such market value as determined by the
assessor, whichever is
lower.chanroblesvirtualawlibrary chanrobles virtual law
library
Under this Decree, the assessed valuation which shall be the
basis for payment of real property tax beginning the calendar
year 1974 shall be fifty per centum of the current fair market
value, as determined by the assessor, in case of commercial,
industrial or mineral lands; forty per centum in the case of
agricultural lands and thirty per centum in the case of lands for
purely residential purposes.
Clearly, therefore, the assessed value of a property constitutes
only a percentage of its current fair market value. It cannot,
thus, be the direct basis of just compensation in expropriation
proceedings.chanroblesvirtualawlibrary chanrobles virtual law
library
But more importantly, this assignment of error is bereft of
merit because Presidential Decree No. 42 is inapplicable in the
case at bar. As pointed out by private respondent, it is a
cardinal rule of statutory construction that laws shall have only
prospective effect. The provisional value of the property in
this case having already been fixed, the deposit on February 9,
1973 of the amount of P54,370.00 representing the assessed
value of the land and the deposit on October 21, 1977 of the
amount of P25,830.00 representing the assessed value of the
improvement, both pursuant to the said decree, are not
sufficient. Nevertheless, said amounts should be deducted
from the total amount due to private
respondent.chanroblesvirtualawlibrary chanrobles virtual law
library
To elucidate and clarify the judgment of this Court in
affirming the decision appealed from, We consider and hold
that the demolition of the building of private respondent
standing on the land by the Municipal Mayor, Engr. Jose P.
Timoner on February 14, 1978 constituted the actual taking of
possession of the property sought to be expropriated by the
Municipality of Daet. And from said date, February 14, 1978,
interest at the legal rate shall be paid by the municipality until
the full amount is paid.chanroblesvirtualawlibrary chanrobles
virtual law library
IN VIEW OF ALL THE FOREGOING, the judgment under
review is hereby AFFIRMED in
toto.chanroblesvirtualawlibrary chanrobles virtual law library