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Property

Ownership

SPOUSES ROMAN & AMELITA T. CRUZ and SPOUSES SEVERINO & PRIMITIVA T.

BAUTISTA, peti tioners, vs. SPOUSES ALFREDO & MELBA TORRES and THE HONORABLE COURT

OF APPEALS, respondents.

D E C I S I O N

PARDO, J.:

The case before the Court is an appeal via certiorarifrom the decision of the Court of Appeals[1]affirming that of

the Regional Trial Court, Pasig City, Branch 162[2]ordering petitioners to surrender to respondents the lot described

in TCT No. 42806 and remove petitioners house and other improvements thereon, and to pay respondents

P5,000.00 as reasonable attorneys fees.

The facts as found by the Court of Appeals and which bind the parties in this appeal are the following:

x x x plaintiff Alfredo Torres is the elder brother of defendants Amelia Torres Cruz and Primitiva Torres

Bautista. Their parents are the late Simplicio and Gregoria Castaeda Torres. In 1946, while in his youthful years,

Alfredo worked as a mechanic for a US Army ambulance unit stationed at Manila. From his earnings, he purchasedby installments from Ortigas Madrigal Co., Inc. a parcel of land in Barangay Saniga, Mandaluyong, Rizal (now

Mandaluyong City), with an area of 299 square meters. When his American employer left, he was employed as a

municipal electrician in Mandaluyong. In 1956, he was issued the land title (T.C.T. No. 42806).

Meanwhile, the Torres family were being evicted from their residence. Alfredo allowed them to construct their

dwelling on the lot. Eventually, Alfredos sisters married and left the house, except his sisters Amelia and Primitiva

and their spouses.

On February 2, 1958, Alfredo and co-plaintiff Melba Baldeo were married. They lived with his parents and

defendants-sisters but left after a year because the house was overcrowded and they wanted privacy.

Subsequently, Alfredo mortgaged the lotto finance his wifes medical board examinations and internship but

redeemed it a year later.

In 1962, Alfredo verbally asked his sisters Amelia and Primitiva to vacate the premises because he needed the lot

to construct a medical clinic for his wife. Amelia and Primitiva requested an extension and Alfredo agreed.

After the death of his father Simplicio in 1970, Alfredo again demanded from his sisters to vacate the place but the

latter stubbornly refused and even claimed that their father is the real owner of the lot.

Despite the refusal of Amelia and Primitiva to vacate the premises, Alfredo continued paying the realty taxes on the

lot. However, after 1982, he stopped paying the taxes for he realized that only his sisters are benefiting from the lot.

On September 2, 1987, Alfredo and Melba through counsel, sent Amelia and Primitiva a final letter of demand for

them to vacate the lot.

The case was referred to the barangay which issued a certificate to file action when the parties failed to settleamicably. Thus, the instant complaint was filed on October 7, 1987.[3]

On December 18, 1990, the trial court rendered decision, the decretal portion of which reads:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered in favor of plaintiffs Alfredo

and Melba Torres and against defendants spouses Roman and Amelia Cruz and spouses Severino and Primitiva

Bautista, ordering the latter and all other persons claiming rights over them to surrender the lot described in TCT

No. 42806 to plaintiffs, and remove at their expense the house they are now occupying as well as additional

constructions thereon; to pay the amount of P5,000.00 pesos as reasonable attorneys fees.
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With costs against defendants.

SO ORDERED.

In due time, defendants appealed to the Court of Appeals.[4]

After due proceedings, on June 23, 1995, the Court of Appeals rendered decision affirming the appealed decision,

with costs against appellants.

Hence, this appeal.[5]

On March 20, 1996, the Court required private respondents to comment on the petition within ten (10) days from

notice.[6]

On September 6, 1996, private respondents filed their belated comment.[7]On October 30, 1996, petitioners filed a

reply to the comment.[8]

We deny the petition.

The sole issue raised is whether it is the regional trial court or the municipal trial court which has jurisdiction over

the subject of the action or suit, petitioners contending that the action is one for unlawful detainer within the

jurisdiction of a municipal trial court.

We find petitioners contention untenable.

The jurisdiction of the court over the subject matter of the action is determined by the allegations of the complaint,

irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. The

jurisdiction of the court can not be made to depend upon the defenses set up in the answer or upon the motion to

dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon the defendant.[9]

The present action, although termed as one for reconveyanceof real property is actually one for recovery of the

right to possess or accion publiciana. This is an action for recovery of the right to possess and is a plenary action in

an ordinary civil proceeding in a regional trial court to determine the better right of possession of realty

independently of the title.[10]Accion publiciana orplenaria de posesionis also used to refer to an ejectment suit filed

after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of

possession of the realty.[11]In such case, the regional trial court has jurisdiction.[12]Here, the parties admit that the

subject real property is registered in the name of respondent Alfredo Torres. In the regional trial court what

respondent sought was to recover possession of the subject real property alleging that he owned the lot on which he

had allowed his father (now deceased) and sisters, petitioners herein, to erect their houses. Since the complaint

alleged that respondent Alfredo Torres was the owner of the subject lot and that he merely allowed his father

Simplicio Torres and his sisters Amelia and Primitiva to construct their houses thereon, and that since 1972

respondent pleaded to petitioners to remove their houses and such additional constructions thereon as respondent

needed the lot for his own use, the action is plainly one for recovery of possession of real property, or accion

publiciana, filed on October 7, 1987, more than one year after dispossession or when possession became unlawful,

which is within the jurisdiction of a regional trial court .[13]As heretofore stated, the jurisdiction of the court is

determined by the allegations of the complaint, not by the answer nor by the evidence adduced at the trial. Thus, the

jurisdiction of the lower court is not affected by the fact that petitioners asserted in their answer to the complaint

that the subject lot was truly owned by the estate of their father, also the father of respondent, or that the last writtendemand to vacate was given on September 2, 1987, just more than a month prior to the filing of the action. Since

initial demand to vacate was made in 1972, petitioners occupancy became unlawful. Subsequent demands were

merely in the nature of reminders or reiterations of the original demand, the one-year period to commence suit is

counted from the first demand.[14]When the dispossession lasted beyond one year, the proper action is accion

publicianafor recovery of possession of the subject property filed in the regional trial court .[15]
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IN VIEW WHEREOF, the Court DENIES the petition for review on certiorariand AFFIRMS the decision of the

Court of Appeals in CA-G.R. CV No. 33757, promulgated on June 23, 1995, and its resolution adopted on

September 7, 1995.

No costs.

SO ORDERED.

Puno, andYnares-Santiago, JJ., concur.

Davide, Jr., C.J., (Chairman), andKapunan, JJ.,on official leave.

G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY,petitioners,

vs.

HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch

XVIII; HIMLAYANG PILIPINO, INC., respondents.

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch

XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT,

MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND

WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION

THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of

deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death, to

be determined by competent City Authorities. The area so designated shall immediately be developed and should be

open for operation not later than six months from the date of approval of the application.

For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after

the enactment of the ordinance, the Quezon City Council passed the following resolution:

RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer, Quezon

City, to stop any further selling and/or transaction of memorial park lots in Quezon City where the owners thereof

have failed to donate the required 6% space intended for paupers burial.

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing thatSection 9 of Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon

City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-

16002) seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to

the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code.


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There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to the

rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring Section 9

of Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and

that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the

Quezon City Council is authorized under its charter, in the exercise of local police power, " to make such further

ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers

and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety,

promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the

inhabitants thereof, and for the protection of property therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is

obvious because the questioned ordinance permanently restricts the use of the property such that it cannot be used

for any reasonable purpose and deprives the owner of all beneficial use of his property.

The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the

property in this case because it refers to "the power of promoting the public welfare by restraining and regulating the

use of liberty and property." The respondent points out that if an owner is deprived of his property outright under the

State's police power, the property is generally not taken for public use but is urgently and summarily destroyed in

order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house

to prevent the spread of a conflagration.

We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We

quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance:

The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?

An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify

the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified under

the power granted to Quezon City to tax, fix the license fee, and regulatesuch other business, trades, and occupation

as may be established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal

Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not

include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a

memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is

punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a

private cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one

from operating a memorial park cemetery. Neither can the ordinance in question be justified under subsection "t",

Section 12 of Republic Act 537 which authorizes the City Council to-

'prohibit the burial of the dead within the center of population of the city and provide for their burial in such proper

place and in such manner as the council may determine, subject to the provisions of the general law regulating burial

grounds and cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).

There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the

respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police

power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry into effect

and discharge the powers and duties conferred by this act and such as it shall deem necessary and proper to provide


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for the health and safety, promote, the prosperity, improve the morals, peace, good order, comfort and convenience

of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with

such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this

section.

We start the discussion with a restatement of certain basic principles. Occupying the forefront in the bill of rights is

the provision which states that 'no person shall be deprived of life, liberty or property without due process of law'(Art. Ill, Section 1 subparagraph 1, Constitution).

On the other hand, there are three inherent powers of government by which the state interferes with the property

rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the

Constitution as necessary attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the

use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in

order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it

is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner

does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that

police power is the most essential of government powers, at times the most insistent, and always one of the least

limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995,May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104).

The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to

limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed

or defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive and active

of all governmental processes, the most essential insistent and illimitable Especially it is so under the modern

democratic framework where the demands of society and nations have multiplied to almost unimaginable

proportions. The field and scope of police power have become almost boundless, just as the fields of public interest

and public welfare have become almost all embracing and have transcended human foresight. Since the Courts

cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or

scope of the police power by which and through which the state seeks to attain or achieve public interest and

welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due process clause being the broadeststation on governmental power, the conflict between this power of government and the due process clause of the

Constitution is oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or

restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or

confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in

order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for

instance, the confiscation of an illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police

regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay,

even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever

challenges the validity of duly enacted legislation whether national or local As early as 1913, this Court ruled

in Case v. Board of Health(24 PhiL 250) that the courts resolve every presumption in favor of validity and, more so,

where the ma corporation asserts that the ordinance was enacted to promote the common good and general welfare.

In the leading case ofErmita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila(20

SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando

stated


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Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption of validity

that attaches to a statute or ordinance. As was expressed categorically by Justice Malcolm 'The presumption is all in

favor of validity. ... The action of the elected representatives of the people cannot be lightly set aside. The councilors

must, in the very nature of things, be familiar with the necessities of their particular ... municipality and with all the

facts and lances which surround the subject and necessitate action. The local legislative body, by enacting the

ordinance, has in effect given notice that the regulations are essential to the well-being of the people. ... The

Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or propertyrights under the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an

affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in

Ebona v. Daet, [1950]85 Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of Health supra:

... Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its

police power, may adopt ordinances to the peace, safety, health, morals and the best and highest interests of the

municipality. It is a well-settled principle, growing out of the nature of well-ordered and society, that every holder of

property, however absolute and may be his title, holds it under the impl ied liability that his use of it shall not be

injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to

the rights of the community. An property in the state is held subject to its general regulations, which are necessary to

the common good and general welfare. Rights of property, like all other social and conventional rights, are subject tosuch reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable

restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in

them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with

plenary power to deal with all matters relating to the general health, morals, and safety of the people, so long as it

does not contravene any positive inhibition of the organic law and providing that such power is not exercised in such

a manner as to justify the interference of the courts to prevent positive wrong and oppression.

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private

cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or

the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a

private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaininga public cemetery for this purpose, the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of

Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the

dead within the center of population of the city and to provide for their burial in a proper place subject to the

provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas

Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the

dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its

own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law

and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation.

The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain

areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots.

The necessities of public safety, health, and convenience are very clear from said requirements which are intended to

insure the development of communities with salubrious and wholesome environments. The beneficiaries of the

regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal

corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always

received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the

questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and

permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as


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having been impliedly acknowledged by the private respondent when it accepted the permits to commence

operations.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

Right of Accession

[G.R. No. L-8010. January 31, 1956.]

LOPEZ INC., represented by DAVID DE LEON in his capacity as in-charge, Plaintiff-Appellant, vs.

PHILIPPINE & EASTERN TRADING CO., INC., Defendant-Appellant.

D E C I S I O N

MONTEMAYOR, J.:

There is no serious dispute as to the basic facts in this case, at least not as regards those for purposes of this decision.

Before the last (Pacific) war theDefendantcorporation Philippine & Eastern Trading Co., Inc., as lessee was

occupying two doors with mezzanine of what is known as the Lopez building in the City of Baguio, belonging to

thePlaintiffcorporation Lopez Inc. of which Atty. Eugenio Lopez was then the President. Defendantwas paying

P160 monthly rental and the lease was from month to month. Said two doors were used as a store. During the

bombing of the City of Baguio during the first months of 1945 by the American Air Forces in trying to liberate the

city from the Japanese occupation forces the Lopez Building including the two doors in question were burned and

seriously damaged leaving only the concrete walls and framework. After liberation, because the Lopez Inc. did not

rehabilitate the building, theDefendantcorporation desiring to resume the lease and use the premises for commercial

purposes as it did before the war thought of rebuilding it. One Mr. Macario Rebodos, Vice-President of

theDefendant, went to Manila to confer with Atty. Eugenio Lopez, President of the Plaintiff, about the rehabilitation

of the premises but he failed to see him on three occasions that he looked for him in the city. So, according toRebodos, he left a letter for Mr. Lopez with an inmate of the house. Said letter was never answered by Attorney

Lopez. TheDefendantproceeded to repair or rebuild the two doors spending the amount of P14,583.45. Said

improvements were introduced with the knowledge of Mr. Joseph K. Icard, agent for thePlaintiff. Later, an

agreement was entered into between thePlaintiffand theDefendantwhereby the latter re-occupied the premises

paying a rental of P300 a month.

In 1947 theDefendantfailed to pay the monthly rentals for the months of February to September of said year,

amounting to P2,200. It seems that theDefendantcompany although admitting its delinquency was of the belief that

inasmuch as it had the right to be reimbursed in the sum of P14,583.45, value of the improvements introduced by it,

the amount of its delinquency (P2,200) could well be charged against it and so it (Defendant) need not pay the

monthly rentals until the value of the improvements had been exhausted. Because ofDefendants refusal to pay the

delinquency thePlaintiffbrought an action of ejectment in the Municipal Court of Baguio to have

theDefendantvacate the premises pay the back rentals with legal interest, plus P300 incurred by the Plaintifffor theinstitution of the suit.

From the judgment rendered by the Municipal Court for the Plaintiffordering theDefendantto vacate the premises,

to pay P2,200 as back rentals and to pay the monthly rents of P300 from October 1, 1947 until the premises were

vacated, theDefendantappealed to the Court of First Instance of Baguio. After hearing, said court rendered

judgment with the following dispositive part:chanroblesvirtuallawlibrary


8/15

FOR ALL THE FOREGOING CONSIDERATIONS, the Court orders theDefendantPhilippine & Eastern Trading

Corporation to vacate the premises immediately. It also orders it to pay thePlaintiffthe sum of P300 monthly rental

of the premises in question from the date of this decision until the premises are completely vacated by

theDefendant. SaidDefendant, however, is not obliged to pay the said P300 monthly in cash. It has the right to set

off against the rental, part of the value of the improvements. Regarding the P2,200, back rentals, the court also

declares that this sum is already offset by a part of the amount of the value of the improvements, as stated above, so

that theDefendantis free from paying it in cash. The right of the Defendantcorporation to file a suit againstthePlaintiffcorporation to recover the remainder of the value of improvements of P14,583.45, after deducting all

the back rentals due to thePlaintiffand the rentals which may become due later, is hereby reserved to

saidDefendantcorporation. No special pronouncement as to costs.

From said judgment both parties appealed to the Court of Appeals but said Tribunal later certified the appeal to this

Court as involving only questions of law.

The theory ofDefendant-Appellant, apparently sustained by the trial court is that under Article 453 of the old Civil

CodeDefendantwas a possessor in good faith and as such introduced the improvements valued P14,583.45 and had

the right to retain the premises until it was reimbursed the said amount by the owner of the property.

Necessary expenditures shall be refunded to every possessor; chan roblesvirtualawlibrarybut only the possessor in

good faith may retain the thing until they are repaid to him.

Useful expenditures shall be paid the possessor in good faith with the same right of retention the person who has

defeated him in his possession having the option of refunding the amount of such expenditures or paying him the

increase in value which the thing has acquired by reason thereof. (Article 453, old Civil Code.)

The trial court held that said improvements were introduced in good faith and so theDefendanthad a right to

reimbursement by thePlaintiff-owner; chan roblesvirtualawlibraryhowever, from the time that saidDefendantwas

notified by thePlaintiffto vacate the premises for failure to pay the rent, it ceased to be a possessor in good faith,

and inasmuch as said failure or delinquency justified the termination of the lease, said Defendanthaving lost the

right of retention, must vacate the premises but that it must be reimbursed the value of the improvements introduced

by it to be determined in a separate action, for the reason that theDefendantin its answer to the suit filed in the

Municipal Court reserved its right to file the corresponding action for the recovery of said amount.

According to the record on appeal theDefendantnot only failed to perfect its appeal from the judgment of theMunicipal Court because it did not file a sufficient bond to answer for the rents, damages, and costs up to final

judgment but also neglected to pay the rent corresponding to the month of October, 1947 pending appeal and

soPlaintifffiled a motion for execution of the judgment and for the dismissal of the appeal. The trial court in its

order of November 14, 1947 refused to grant the motion and gave the Defendantuntil

9:chanroblesvirtuallawlibrary00 oclock in the morning of November 17, 1947 to deposit all the rentals due

thePlaintiffto date in accordance with the decision of the lower court on appeal to this Court. This order of the trial

court is now assigned as error byPlaintiff-Appellant.

As regards the failure ofDefendant-Appellantto deposit with the court the rents fixed and ordered to be paid, in the

judgment on appeal as they became due, thereby justifying the execution of the judgment, we agree with Plaintiff-

Appellant. The provisions of Rule 72, section 8, of the Rules of Court, are mandatory and the Court of First Instance

has no discretion in the matter and is not warranted in extending the time for making such payment. We have a long

line of decision on this point (Lapuz vs. Court of First Instance, 46 Phil., 77; chan roblesvirtualawlibraryCunanan vs.

Rodas, 78 Phil., 800; chan roblesvirtualawlibraryGalewsky vs. De la Rama, 79 Phil., 583; chan

roblesvirtualawlibraryand Pagilinan vs. Pea, 89 Phil., 122). For this reason the trial court should have ordered the

execution of the judgment of the Municipal Court.

As regards the introduction of the improvements by theDefendant, as already stated, Mr. Rebodos failing to see

Atty. Lopez in Manila, according to him, left a letter for Atty. Lopez supposedly advising him of the introduction of

said improvements. Attorney Lopez in his deposition said that he never received said letter. On the other hand, he

said that he had a conference with Mr. Leopoldo Mabansag, President of the Defendantcorporation wherein


9/15

Mabansag agreed that his company waived any right to reimbursement for the value of said improvements. The trial

court rejected this evidence or testimony because it involved a supposed admission made by a person now dead, for

Mabansag died before the filing of the suit. The trial court further said that it was highly improbable that anyone of

sound mind would introduce valuable improvements just to renounce it later in favor of the owner. In rejecting this

testimony the trial court must have had in mind Rule 123, section 26(c) of the Rules of Court which reads as

follows:chanroblesvirtuallawlibrary

Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or

administrator or other representative of a deceased person or against a person of unsound mind upon a claim or

demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any

matter of fact occurring before the death of such deceased person or before such person became of unsound mind;

However, the present action was not exactly brought against the executor or administrator or other representative of

Mr. Mabansag but rather against the corporation of which he was the President and so said Rule 123, section 26(c),

is not applicable. On the other hand in the case of Fortiz vs. Gutierrez Hermanos, 6 Phil., 100, this court

said:chanroblesvirtuallawlibrary

It appeared that Miguel Alonzo Gutierrez, with whom thePlaintiffhad made the contract, had died prior to the trial

of the action, and theDefendantsclaim that by reason of the provisions of section 383, paragraph 7, of the Code of

Civil Procedure (equivalent to section 26[c], Rule 123 of the Rules of Court), Plaintiffcould not be a witness at thetrial. That paragraph provides that parties to an action against an executor or administrator upon a claim or demand

against the estate of a deceased person cannot testify as to any matter of fact occurring before the death of such

deceased person. This action was not brought against the administrator of Miguel Alonzo nor was it brought against

a partnership which was in existence at the time of the trial of the action, and which was a juridical person. The fact

that Miguel Alonzo had been a partner in this company, and that his interests therein might be affected by the result

of this suit, is not sufficient to bring the case within the provisions of the section above-cited.

However, because the evidence sought to be introduced byPlaintiffwas only in the form of deposition and Attorney

Lopez did not testify as a witness in the hearing and subjected to cross-examination byDefendants counsel and also

by the court, we can well disregard this evidence and consider that there was no definite understanding or agreement

betweenPlaintiffandDefendantas to who should eventually pay for said improvements.

Before we conclude, we believe it not only advisable but necessary to clear and resolve the misconception about the

scope and extent of the rule or law on a possessor in good faith, under which the Defendantand in a way even the

trial court had labored. As we have already said, they both thought that a lessee may be considered a possessor in

good faith and that improvements introduced by him on the leased premises are to be regarded as made in good

faith. This rule or principle contained in the civil law refers only to party who occupies or possess property in the

belief that he is the owner thereof and said good faith ends only when he discovers a flaw in his title so as to

reasonably advise or inform him that after all he may not be the legal owner of said property. This principle of

possessor in good faith naturally cannot apply to a lessee because as such lessee he knows that he is not the owner of

the leased property. Neither can he deny the ownership or title of his lessor. Knowing that his occupation of the

premises continues only during the life of the lease contract and that he must vacate the property upon termination of

the lease or upon the violation by him of any of its terms, he introduces improvements on said property at his own

risk in the sense that he cannot recover their value from the lessor, much less retain the premises until such

reimbursement. His right to improvements introduced by him is expressly governed by Articles 1573 and 487 of the

old Civil Code which reads as follows:chanroblesvirtuallawlibrary

Article 1573. A lessee shall have, with respect to useful and voluntary improvements, the same rights which are

granted to usufructuaries.

Article 487. The usufructuary may make on the property held in usufruct any improvements, useful, or recreative,

which he may deem proper, provided he does not change its form or substance; chan roblesvirtualawlibrarybut he

shall have up right to be indemnified therefor. He may, however, remove such improvements should it be possible to

do so without injury to the property.


10/15

In the case of Fojas vs. Velasco, 51 Phil., 520, this Court said:chanroblesvirtuallawlibrary

The case is governed not by articles 361 and 453 of the Civil Code as contended byAppellantsbut by articles 1573

and 487 of the same Code, as indicated byAppellees. In this connection it need only be recalled that the lessees have

been holding the land under a rental contract. Accordingly, upon termination of the lease, the right of the lessees

with respect to improvements placed by then on the leased property is determined by article 487, which entitles them

to remove the improvements, provided they leave the property in substantially the same condition as when theyentered upon it. (Alburo vs. Villanueva, 7 Phil., 277; chan roblesvirtualawlibraryCortes vs. Ramos, 46 Phil.,

184; chan roblesvirtualawlibraryRivera vs. Trinidad, 48 Phil., 396.)

Then in the case of Rivera vs. Trinidad, 48 Phil., 396 this Court ruled:chanroblesvirtuallawlibrary

While a tenant was in possession of property under a verbal agreement for occupation for an indefinite time upon

payment of a fixed compensation per month the property was sold and the purchaser filed an action for unlawful

detainer. Held:chanroblesvirtuallawlibraryThat theDefendantmust he considered as tenant from month-to-month

and upon a lease terminable without the necessity of special notice upon the expiration of any month and that

thePlaintiffwas entitled to recover possession.

The rights of theDefendantwith respect to the improvements made on the property by him must be governed by

Article 487 in relation with Article 1573 of the Civil Code. Under Article 487 theDefendantis entitled to remove

improvements made by himself so far as it is possible to do so without injury to the property; chan

roblesvirtualawlibraryand this means that he may remove the improvements provided he leaves the property in

substantially the same condition as when he entered upon it. Articles 361 and 453 of the Civil Code, which define

the rights between the owner of land and builders of improvements thereon in good faith, are not applicable as

between landlord and tenant, since the Code supplies specific provisions designed to cover their rights. Besides the

tenant cannot be said to be a builder in good faith as he has no pretension to be owner. (Manresa Com. ed., Vol. 4, p.

445).

In view of the foregoing, the decision appealed from is hereby modified to the effect thatDefendant-Appellantis not

entitled to reimbursement for the value of the improvements introduced by it; chan roblesvirtualawlibrarythat it is

ordered to pay toPlaintiff-Appellantthe amount of P2,200, with interest at the legal rate from the date of the filing

of the complaint; chan roblesvirtualawlibraryand to pay the amount of P300 per month until it actually vacates the

premises.Defendant-Appellantis however given the right to remove the improvements introduced by it without

injury to the property, under the provisions of Article 487 of the old Civil Code. No costs.

Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ .,

concur.

G.R. No. L-12812 September 29, 1959

FILIPINAS COLLEGES, INC.,plaintiff-appellee,

vs.

MARIA GARCIA TIMBANG, ET AL.,defendants.

------------------------------

G.R. No. L-12813 September 29, 1959

MARIA GARCIA TIMBANG, ET AL.,plaintiffs.

MARIA GARICA TIMBANG,plaintiff-appellant,

vs.

MARIA GERVACIO BLAS,defendant-appellee.


11/15

De Guzman and Fernandez for appellee Filipinas Colleges, Inc.

San Huan, Africa and Benedicto for appellant Maria Garcia Timbang.

Nicanor S. Sison for appellee Maria Gervacio Blas.

BARRERA, J.:

This is an appeal taken from an order of the Court of First Instance of Manila dated May 10, 1957 (a) declaring the

Sheriff's certificate of sale covering a school building sold at public auction null and void unless within 15 days

from notice of said order the successful bidders, defendants-appellants spouses Maria Garcia Timbang and

Marcelino Timbang, shall pay to, appellee Maria Gervacio Blas directly or through the Sheriff of Manila the sum of

P5,750.00 that the spouses Timbang had bid for the building at the Sheriff's sale; (b) declaring the other appellee

Filipinas Colleges, Inc. owner of 24,500/3,285,934 undivided interest in Lot No. 2-a covered by certificate of tile No

45970, on which the building sold in the auction sale is situated; and (c) ordering the sale in public auction of the

said undivided interest of the Filipinas Colleges, Inc., in lot No. 2-a aforementioned to satisfy the unpaid portion of

the judgment in favor of appellee Blas and against Filipinas Colleges, Inc. in the amount of P8,200.00 minus the

sum of P5,750.00 mentioned in (a) above.

The order appealed from is the result of three motions filed in the court a quoin the course of the execution of a

final judgment of the Court of Appeals rendered in 2 cases appealed to it in which the spouses Timbang, the

Filipinas Colleges, Inc., and Maria Gervacio Blas were the parties. IN that judgment of the Court of Appeals, therespective rights of the litigants have been adjudicated as follows:1wphl.nt

(1) Filipinas Colleges, Inc. was declared to have acquired the rights of the spouses Timbang in and to lot No. 2-a

mentioned above and in consideration thereof, Filipinas Colleges, Inc., was ordered to pay the spouses Timbang the

amount of P15,807.90 plus such other amounts which said spouses might have paid or had to pay after February,

1953, to Hoskins and Co. Inc., agent of the Urban Estates, Inc., original vendor of the lot. Filipinas Colleges, Inc.

original vendor of the total amount with the court within 90 days after the decision shall have become final.

(2) Maria Gervacio Blas was declared to be a builder in good faith of the school building constructed on the lot in

question and entitled to be paid the amount of P19,000.00 for the same. Filipinas Colleges, Inc., purchaser of the

said building was ordered to deliver to Blas stock certificate (Exh. C) for 108 shares of Filipinas Colleges, Inc. with

a par value of P10,800.00 and to pay Blas the sum of P8,200.00 of the house.

(3) In case Filipinas Colleges, Inc. failed to deposit the value of the land, which after liquidation was fixed atP32,859.34, within the 90-day period set by the court, Filipinas Colleges would lose all its rights to the land and the

spouses Timbang would then become the owners thereof. In that eventuality, the Timbangs would make known to

the court their option under Art. 448 of the Civil Code whether they would appropriate the building in question, in

which even they would have to pay Filipinas Colleges, Inc. the sum of P19,000.00, or would compel the latter to

acquire the land and pay the price thereof.

Filipinas Colleges, Inc. having failed to pay or deposit the sum of P32,859.34 within the time prescribed, the spouses

Timbang, in compliance with the judgment of the Court of Appeals, on September 28, 1956, made known to the

court their decision that they had chosen not of appropriate the building but to compel Filipinas Colleges, Inc., for

the payment of the sum of P32,859,34. The motion having been granted, a writ of execution was issued on January

8, 1957.

On January 16, 1957, appellee Blas in turn filed a motion for execution of her judgment of P8,200.00 representingthe unpaid portion of the price of the house sold to Filipinas Colleges, Inc. Over the object of the Timbangs, the

court grated the motion and the corresponding writ of execution was issued on January 30, 1957, date of the granting

of the motion for execution, Blas through counsel, sent a letter to the Sheriff of Manila advising him of her

preferential claim or lien on the house to satisfy the unpaid balance of the purchase price thereof under Article 2242

of the Civil Code, and to withhold from the proceed of the auction sale the sum of P8,200.00. Levy having been

made on the house in virtue of the writs of execution, the Sheriff of Manila on March 5, 1957, sold the building in

public auction in favor of the spouses Timbang, as the highest bidders, in the amount of P5,750.00. Personal

properties of Filipinas Colleges, Inc. were also auctioned for P245.00 in favor of the spouses Timbang.


12/15

As a result of these actuation, three motion were subsequently filed before the lower court:

(1) By appellee Blas, praying that the Sheriff of Manila and/or the Timbang spouses be ordered to pay and deliver to

her the sum of P5,750.00 representing the proceeds of the auction sale of the building of Filipinas Colleges, Inc.

over which she has a lien of P8,200.00 for the unpaid balance of the purchase price thereof;.

(2) Also by the appellee Bals, praying that there being still two unsatisfied executions, one for the sum of

P32,859.34 in favor the land involved, Lot No. 2-a, be sold at public auction; and (3) By Filipinas Colleges, Inc.

praying that because its properties, the house and some personal properties, have been auctioned for P5,750.00 and

P245.00 respectively in favor of the Timbang spouses who applied the proceeds to the partial payment of the sum of

P32,859.34 value of the land, Lot No. 2-a, it (Filipinas Colleges, Inc.) be declared part owner of said lot to the extent

of the total amount realized from the execution sale of its properties. 1wphl.nt

The Timbang spouses presented their opposition to each and all of these motion. After due hearing the lower court

rendered its resolution in the manner indicated at the beginning of this decision, from which the Timbangs alone

have appealed.

In assailing the order of the court a quo directing the appellants to pay appellee Blas the amount of their bid

(P5,750.00) made at the public auction, appellants' counsel has presented a novel, albeit ingenious, argument. It is

contended that because the builder in good faith has failed to pay the price of the land after the owners thereof

exercised their option under Article 448 of the Civil Code, the builder lost his right of retention provided in Article

546 and by operation of Article 445, the appellants as owners of the land automatically became the owners ipso

facto, the execution sale of the house in their favor was superfluous. Consequently, they are not bound to make good

their bid of P5,750.00 as that would be to make goods to pay for their own property. By the same token, Blas claim

for preference on account of the unpaid balance of the purchase price of the house does not apply because preference

applies only with respect to the property of the debtor, and the Timbangs, owners of the house, are not the debtors of

Blas.

This Court cannot accept this oversimplification of appellants' position. Article 448 and 546 of the Civil Code

defining the right of the parties in case a person in good faith builds, sows or plants on the land of another,

respectively provides:

ART. 448. The owner of the land on which anything has been built, sown or plated in good faith shall have the right

to appropriate as his own the works, sowing or planting, after payment of the indemnify provided for in article 546and 548, or to obligate the one who built or planted to pay the price of the land, and the one who sowed, the proper

rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of

the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to

appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in

case of disagreement, the court shall fix the terms thereof.

ART. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain

the thing until he has reimbursed therefor.

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention the person

who has defeated him in the possession having to option of refunding the amount of expenses or of paying the case

in value which thing may have acquired by reason thereof.

Under the terms of these article, it is true that the owner of the land has the right to choose between appropriating the

building by reimbursing the builder of the value thereof or compelling the builder in good faith to pay for his land.

Even this second right cannot be exercised if the value of the land is considerably more than that of the building. In

addition to the right of the builder to be paid the value of his improvement, Article 546 gives him the corollary right

of retention of the property until he is indemnified by the owner of the land. There is nothing in the language of

these two article, 448 and 546, which would justify the conclusion of appellants that, upon the failure of the builder

to pay the value of the land, when such is demanded by the land-owner, the latter becomes automatically the owner

of the improvement under Article 445. The case of Bernardo vs.Bataclan, 66 Phil., 590 cited by appellants is no


13/15

authority for this conclusion. Although it is true it was declared therein that in the event of the failure of the builder

to pay the land after the owner thereof has chosen this alternative, the builder's right of retention provided in Article

546 is lost, nevertheless there was nothing said that as a consequence thereof, the builder loses entirely all rights

over his own building. The question is; what is the recourse or remedy left to the parties in such eventuality where

the builder fails to pay the value of the land? While the Code is silent on this Court in the cases of Miranda vs.

Fadullon, et al., 97 Phil., 801; 51 Off. Gaz., [12] 6226;Ignacio vs. Hilario, 76 Phil., 605 and the cited case

ofBernardo vs. Bataclan,supra.

In the first case, this Court has said:

A builder in good faith not be required to pay rentals. he has right to retain the land on which he has built in good

faith until he is reimbursed the expenses incurred by him. Possibly he might be made to pay rental only when the

owner of the land chooses not to appropriate the improvement and requires the builder in good faith to pay for the

land but that the builder is unwilling or unable to pay the land, and then they decide to leave things as they are and

assume the relation of lessor and lessee, and should they disagree as to the amount of rental then they can go to the

court to fix that amount. (Emphasis supplied)

Should the parties not agree to leave things as they are and to assume the relation of lessor and lessee, another

remedy is suggested in the case ofIgnacio vs. Hilario, supra, wherein the court has ruled that the owner of the land

in entitled to have the improvement removed when after having chosen to sell his land to the other party, i.e., thebuilder in good faith fails to pay for the same.

A further remedy is indicated in the case ofBernardo vs. Bataclan, supra, where this Court approved the sale of the

land and the improvement in a public auction applying the proceeds thereof first to the payment of the value of the

land and the excess, if any, to be delivered to the owner of the house in payment thereof.

The appellants herein, owners o the land, instead of electing any of the alternative above indicated chose to seek

recovery of the value of their land by asking for a writ of execution; levying on the house of the builder; and selling

the same in public auction. Sand because they are the highest bidder in their own auction sale, they now claim they

acquired title to the building without necessity of paying in cash on account of their bid. In other words, they in

effect pretend to retain their land and acquire the house without paying a cent therefor.

This contention is without merit. This Court has already held in Matias vs. The Provincial Sheriff of Nueva Ecija(74

Phil., 326) that while it is the inveriable practice, dictated by common sense, that where the successful bidder is theexecution creditor himself, he need not pay down the amount of the bid if it does not exceed the amount of his

judgement, nevertheless, when their is a claim by a third-party, to the proceeds of the sale superior to his judgment

credit, the execution creditor, as successful bidder, must pay in cash the amount of his bid as a condition precedent

to the issuance to him of the certificate of sale. In the instant case, the Court of Appeals has already adjudged that

appellee Blas is entitled to the payment of the unpaid balance of the purchase price of the school building. Blas is

actually a lien on the school building are concerned. The order of the lower court directing the Timbang spouses, as

successful bidders, to pay in cash the amount of their bid in the sum of P5,750.00 is therefore correct.

With respect to the order of the court declaring appellee Filipinas Colleges, Inc. part owner of the land to the extent

of the value of its personal properties sold at public auction in favor of the Timbang, this Court Likewise finds the

same as justified, for such amount represents, in effect, a partial payment of the value of the land. If this resulted in

the continuation of the so-called involuntary partnership questioned by the difference between P8,200.00 the

unpaid balance of the purchase price of the building and the sum of P5,750.00 amount to be paid by the

Timbangs, the order of the court directing the sale of such undivided interest of the Filipinas Colleges, Inc. is

likewise justified to satisfy the claim of the appellee Blas.

Considering that the appellant spouses Marcelino Timbang and Maria Garcia Timbang may not voluntarily pay the

sum of P5,750.00 as ordered, thereby further delaying the final termination of this case, the first part of the

dispositive portion of the order appealed from is modified in the sense that upon failure of the Timbang spouses to

pay to the Sheriff or to Manila Gervacio Blas said sum of P5,750.00 within fifteen (15) days from notice of the final


14/15

judgment, an order of execution shall issue in favor of Maria Gervasio Blas to be levied upon all properties of the

Timbang spouses not exempt from execution for the satisfaction of the said amount.

In all other respects, the appealed order of the court a quois hereby affirmed, with costs against the appellants.

It is so ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.

G.R. No. L-12730 August 22, 1960

C.N. HODGES,plaintiff-appellant,

vs.

AMADOR D. GARCIA,defendant-appellee.

Gellada, Mirasol and Vallar for appellant.

Roque E. Evidente for appellee.

GUTIERREZ DAVID, J.:

This is an action filed with the Court of First Instance of Iloilo for the recovery of the possession of a portion of land

designated as Lot No. 908-Q with an area of 5,931 square meters, which is alleged to have been seperated from

plaintiff's lands by the "natural change" in the course of a river. The case having been decided adversely against the

plaintiff, the latter appealed to the Court of Appeals. The court, however, certified the caseto this Court on the

ground that it was decided upon a stipulation of facts and for that reason questions of fact can no longer be raised on

appeal.

It appears that the land in dispute was formerly a part of Lot No. 908 of the Cadastral Survey of Jaro, Iloilo, which

lot was acquired by plaintiff C.N. Hodges from Salustiano Mirasol in January, 1950, and subsequently registered in

his name as evidenced by Transfer Certificate of Title No. T-2504 issued by the Register of Deeds of Iloilo. This

property was bounded on the north by the Salog River. Adjoining that river on the other side is Lot No. 2290, which

was purchased by defendant Amador D. Garcia from Dr. Manuel Hechanova on April 15, 1950. On July 12 of that

same year, defendant had the land, which was originally surveyed in 1912 and was then bounded on the SE and SWby the Salog river, had inreased in area by the river bank, and that the added area, which bounds the land on the SE

and SW, is in turn bounded on the SE and SW by the Salog river. In due time, defendant applied for the registration

of the additional area under the Land Registration Act, and on March 22, 1952, the cadastral court rendered a

decision holding that the land sought to be registered is an accretion to Lot No. 2290 and decreeing that the land be

registered in his name. On June 30, 1952, the corresponding Original Certificate of Title No. O-229 was issued in

favor of the defendant.

Plaintiff claims in these proceedings that the Salog river changed its course and that the land in dispute which

appears to be a portion of the area added to Lot No. 2290 as above mentionedwas separated from his Lot No.

908 by the current of the river, and the separation was abrupt, like in avulsion, so that under Art. 374 of the Civil

Code (Art. 463 of the new) he retains ownership thereof. No evidence, however, was presented by plaintiff to show

that the change in the course of the river was sudden or that it occurred through avulsion. In the absence of such

evidence, the presumption is that the change was gradual and caused by accretion and erosion. (Payatas EstateImprovement Co. vs. Tuason, 53 Phil., 55) In any event, it was agreed upon by the parties in open court that "from

the year 1917 until the construction of the dike (in 1939) along the river . . ., the course of the Salog river, starting

from the edge of lot 2290,gradually ate up the bank towards the side of the poblacion of Jaro and at the same time

gradually deposited sediments towards the side of Lot No. 2290;" that "when the defendant bought lot No. 2290

from Dr. Manuel Hechanova in 1950, he found out that there was an accretion along one side of said lot, as now

shown on this plan, PSU-12743-A;" that "by virtue of such accretion towards lot 2290, the defendant applied for its

registration under the Land Registration Act, and decision was on March 22, 1950 by the Court of First Instance of

Iloilo;" that "effectively, original certificate of title No. O-229, dated June 30, 1952, was issued to the defendant;"


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and that "because of thegradual deposit of sediments of the Salog River along his land, lot 2290 , the defendant has

been in possession of said land since 1950 until now, while the plaintiff and his predecessors in interest since the

gradual loss of lot No 908-Q, covered by water, has never been in actual possession of the said lot." The foregoing

facts have never been denied or contradicted by plaintiff, and they clearly show that the increase in area of Lot No.

2290 by the river bank was due to alluvion or accretions which it gradually received (from 1917 to 1939, or for a

period of 22 years) from the effects of the current of the river.

It should here be stated that in the cadastral proceedings wherein the land object of this action was sought to be

registered by herein defendant Amador D. Garcia, plaintiff C.N. Hodges did not file any opposition despite due

publication of the notice of the application and hearing. The record also shows that the land now being claimed by

plaintiff had been litigated in three civil cases. (Exhs. "4", "5" and "6".) In those cases, herein defendant was

recognized as the owner of the land and held legally entitled to its possession. In fact, the land in question had been

adjudged to be owned by him as an accretion to his lot No. 2290. (See exh. "6" decision of the Court of Appeals in

Candelaria Efe, et al. vs. Amador D. Garcia, CA-G.R. No. 9306-R, October 28, 1952, Reyes, J.B.L., J.,ponente.)

It clearly appearing that the land in question has become part of defendant's estate as a result of accretion, it follows

that said land now belongs to him. The fact that the accretion to his land used to pertain to plaintiff's estate, which is

covered by a Torrens certificate of title, cannot preclude him (defendant) from being the owner thereof. Registration

does not protect the riparian owner against the diminution of the area of his land through gradual changes in the

course of the adjoining stream. Accretions which the banks of rivers may gradually receive from the effect of thecurrent become the property of the owners of the banks. (Art. 366 of the old Civil Code; art. 457 of the new.) Such

accretions are natural incidents to land bordering on running streams and the provisions of the Civil Code in that

respect are not affected by the Land Registration Act. (Payatas Estate Improvement Co. vs. Tuason, supra).

In view of the foregoing, the decision appealed from is affirmed, with costs against plaintiff-appellant.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Barrera, JJ.,concur.

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