1

G.R. No. L-12958 May 30, 1960

FAUSTINO IGNACIO, applicant-appellant, vs. THE DIRECTOR OF LANDS and LAUREANO VALERIANO, oppositors-appellees. Acting Assistant Solicitor General Pacifico P. de Castro and Solicitor Crispin V. Bautista for appellee Director of Lands. Benjamin H. Aquino for appellee Laureano Veleriano. MONTEMAYOR, J.: Faustino Ignacio is appealing the decision of the Court of First Instance of Rizal, dismissing his application for the registration of a parcel of land. On January 25, 1950, Ignacio filed an application for the registration of a parcel of land (mangrove), situated in barrio Gasac, Navotas, Rizal, with an area of 37,877 square meters. Later, he amended his application by alleging among others that he owned the parcel applied for by right of accretion. To the application, the Director of Lands, Laureano Valeriano and Domingo Gutierrez filed oppositions. Gutierrez later withdrew his opposition. The Director of Lands claimed the parcel applied for as a portion of the public domain, for the reason that neither the applicant nor his predecessor-ininterest possessed sufficient title thereto, not having acquired it either by composition title from the Spanish government or by possessory information title under the Royal Decree of February 13, 1894, and that he had not possessed the same openly, continuously and adversely under a bona fide claim of ownership since July 26, 1894. In his turn, Valeriano alleged he was holding the land by virtue of a permit granted him by the Bureau of Fisheries, issued on January 13, 1947, and approved by the President. It is not disputed that the land applied for adjoins a parcel owned by the applicant which he had acquired from the Government by virtue of a free patent title in 1936. It has also been established that the parcel in question was formed by accretion and alluvial deposits caused by the action of the Manila Bay which boarders it on the southwest. Applicant Ignacio claims that he had occupied the land since 1935, planting it with api-api trees, and that his possession thereof had been continuous, adverse and public for a period of twenty years until said possession was distributed by oppositor Valeriano. On the other hand, the Director of Lands sought to prove that the parcel is foreshore land, covered by the ebb and flow of the tide and, therefore, formed part of the public domain. After hearing, the trial court dismissed the application, holding that the parcel formed part of the public domain. In his appeal, Ignacio assigns the following errors: I. The lower court erred in holding that the land in question, altho an accretion to the land of the applicant-appellant, does not belong to him but forms part of the public domain. II. Granting that the land in question forms part of the public domain, the lower court nevertheless erred in not declaring the same to be the necessary for any public use or purpose and in not ordering in the present registration proceedings. III. The lower court erred in not holding that the land in question now belongs to the applicant-appellant by virtue of acquisitive prescription, the said land having ceased to be of the public domain and became the private or patrimonial property of the State. IV. The lower court erred in not holding that the oppositor Director of Lands is now in estoppel from claiming the land in question as a land of the public domain. Appellant contends that the parcel belongs to him by the law of accretion, having been formed by gradual deposit by action of the Manila Bay, and he cites Article 457 of the New Civil Code (Article 366, Old Civil Code), which provides that: To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. The article cited is clearly inapplicable because it refers to accretion or deposits on the banks of rivers, while the accretion in the present case was caused by action of the Manila Bay.

2
Appellant next contends that Articles 1, 4 and 5 of the Law of Waters are not applicable because they refer to accretions formed by the sea, and that Manila Bay cannot be considered as a sea. We find said contention untenable. A bay is a part of the sea, being a mere indentation of the same: Bay. An opening into the land where the water is shut in on all sides except at the entrance; an inlet of the sea; an arm of the sea, distinct from a river, a bending or curbing of the shore of the sea or of a lake. 7 C.J. 1013-1014 (Cited in Francisco, Philippine Law of Waters and Water Rights p. 6) Moreover, this Tribunal has some cases applied the Law of Waters on Lands bordering Manila Bay. (See the cases of Ker & Co. vs. Cauden, 6 Phil., 732, involving a parcel of land bounded on the sides by Manila Bay, where it was held that such land formed by the action of the sea is property of the State; Francisco vs. Government of the P.I., 28 Phil., 505, involving a land claimed by a private person and subject to the ebb and flow of the tides of the Manila Bay). Then the applicant argues that granting that the land in question formed part of the public domain, having been gained from the sea, the trial court should have declared the same no longer necessary for any public use or purpose, and therefore, became disposable and available for private ownership. Article 4 of the Law of Waters of 1866 reads thus: ART. 4. Lands added to the shores by accretions and alluvial deposits caused by the action of the sea, form part of the public domain. When they are no longer washed by the waters of the sea and are not necessary for purposes of public utility, or for the establishment of special industries, or for the coastguard service, the Government shall declare them to be the property of the owners of the estates adjacent thereto and as increment thereof. Interpreting Article 4 of the Law of Waters of 1866, in the case of Natividad vs. Director of Lands, (CA) 37 Off. Gaz., 2905, it was there held that: Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no longer washed by the waters of the sea and is not necessary for purposes of public utility, or for the establishment of special industries, or for coastguard service, the government shall declare it to be the property of the owners of the estates adjacent thereto and as an increment thereof. We believe that only the executive and possibly the legislative departments have the authority and the power to make the declaration that any land so gained by the sea, is not necessary for purposes of public utility, or for the establishment of special industries, on for coast-guard service. If no such declaration has been made by said departments, the lot in question forms part of the public domain. (Natividad vs. Director of Lands, supra.) The reason for this pronouncement, according to this Tribunal in the case of Vicente Joven y Monteverde vs. Director of Lands , 93 Phil., 134, (cited in Velayo's Digest, VI. I, p. 52). . . . is undoubtedly that the courts are neither primarily called upon, nor indeed in a position to determine whether any public land are to be used for the purposes specified in Article 4 of the Law of Waters. Consequently, until a formal declaration on the part of the Government, through the executive department or the Legislature, to the effect that the land in question is no longer needed for coast guard service, for public use or for special industries, they continue to be part of the public domain, not available for private appropriation or ownership. Appellant next contends that he had acquired the parcel in question through acquisitive prescription, having possessed the same for over ten years. In answer, suffice it to say that land of the public domain is not subject to ordinary prescription. In the case of Insular Government vs. Aldecoa & Co ., 19 Phil., 505 this Court said: The occupation or material possession of any land formed upon the shore by accretion, without previous permission from the proper authorities, although the occupant may have held the same as owner for seventeen years and constructed a wharf on the land, is illegal and is a mere detainer, inasmuch as such land is outside of the sphere of commerce; it pertains to the national domain; it is intended for public uses and for the benefit of those who live nearby. We deem it unnecessary to discuss the other points raised in the appeal. In view of the foregoing, the appealed decision is hereby affirmed, with costs. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur. G.R. No. L40474 August 29, 1975

3
CEBU OXYGEN & ACETYLENE CO., INC., petitioner, vs. HON. PASCUAL A. BERCILLES Presiding Judge, Branch XV, 14th Judicial District, and JOSE L. ESPELETA, Assistant Provincial Fiscal, Province of Cebu, representing the Solicitor General's Office and the Bureau of Lands, respondents. Jose Antonio R Conde for petitioner. Office of the Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Trial Attorney David R. Hilario for respondents. . CONCEPCION, Jr., J.: This is a petition for the review of the order of the Court of First Instance of Cebu dismissing petitioner's application for registration of title over a parcel of land situated in the City of Cebu. The parcel of land sought to be registered was only a portion of M. Borces Street, Mabolo, Cebu City. On September 23, 1968, the City Council of Cebu, through Resolution No. 2193, approved on October 3, 1968, declared the terminal portion of M. Borces Street, Mabolo, Cebu City, as an abandoned road, the same not being included in the City Development Plan. 1 Subsequently, on December 19, 1968, the City Council of Cebu passed Resolution No. 2755, authorizing the Acting City Mayor to sell the land through a public bidding. 2 Pursuant thereto, the lot was awarded to the herein petitioner being the highest bidder and on March 3, 1969, the City of Cebu, through the Acting City Mayor, executed a deed of absolute sale to the herein petitioner for a total consideration of P10,800.00. 3 By virtue of the aforesaid deed of absolute sale, the petitioner filed an application with the Court of First instance of Cebu to have its title to the land registered. 4 On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that the property sought to be registered being a public road intended for public use is considered part of the public domain and therefore outside the commerce of man. Consequently, it cannot be subject to registration by any private individual. 5 After hearing the parties, on October 11, 1974 the trial court issued an order dismissing the petitioner's application for registration of title. 6 Hence, the instant petition for review. For the resolution of this case, the petitioner poses the following questions: (1) Does the City Charter of Cebu City (Republic Act No. 3857) under Section 31, paragraph 34, give the City of Cebu the valid right to declare a road as abandoned? and (2) Does the declaration of the road, as abandoned, make it the patrimonial property of the City of Cebu which may be the object of a common contract? (1) The pertinent portions of the Revised Charter of Cebu City provides: Section 31. Legislative Powers. Any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers: xxx xxx xxx (34) ...; to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed. From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road or street. In the case of Favis vs. City of Baguio, 7 where the power of the city Council of Baguio City to close city streets and to vacate or withdraw the same from public use was similarly assailed, this court said: 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use.

4
Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. (2) Since that portion of the city street subject of petitioner's application for registration of title was withdrawn from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract. Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and unequivocal terms, states that: "Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." Accordingly, the withdrawal of the property in question from public use and its subsequent sale to the petitioner is valid. Hence, the petitioner has a registerable title over the lot in question. WHEREFORE, the order dated October 11, 1974, rendered by the respondent court in Land Reg. Case No. N-948, LRC Rec. No. N-44531 is hereby set aside, and the respondent court is hereby ordered to proceed with the hearing of the petitioner's application for registration of title. SO ORDERED. Makalintal, C.J, Fernando, Barredo and Aquino, JJ., concur. G.R. No. L-2017 November 24, 1906

THE MUNICIPALITY OF OAS, plaintiff-appellee, vs. BARTOLOME ROA, defendant-appellant. Del-Pan, Ortigas and Fisher, for appellant. Enrique Llopiz for appellee. WILLARD, J.: The plaintiff brought this action for the recovery of a tract of land in the pueblo of Oas, claiming that it was a part of the public square of said town. The defendant in his answer alleged that he was the owner of the property. Judgment was rendered in favor of the plaintiff and the defendant has brought the case here by bill of exceptions. As we look at the case, the only question involved is one of fact. Was the property in question a part of the public square of the town of Oas? The testimony upon this point in favor of the plaintiff consisted of statements made by witnesses to the effect that this land had always been a part of the public square, and of certain resolutions adopted by the principalia of the pueblo reciting the same fact, the most important of these being the minutes of the meeting of the 27th of February, 1892. In that document it is expressly stated that this land was bought in 1832 by the then parish priest for the benefit of the pueblo. It recites various proceedings taken thereafter in connection with this ownership, including among them an order of the corregidor of Nueva Caceres prohibiting the erection of houses upon the land by reason of the fact above recited namely, that the land belonged to the pueblo. This resolution terminated with an order to the occupant of the building then standing upon the property that he should not repair it. The defendant signed this resolution. It further appears that the same building was almost entirely destroyed by a baguio on the 13th and 14th of May, 1893, and that the authorities of the puebo ordered the complete demolition thereof. The resolution of the 31st of May, 1893, declared that the then owner of the building, Jose Castillo, had no right to reconstruct it because it was situated upon land which did not belong to him. This resolution was also signed by the defendant. The evidence on the part of the defendant tends to show that in 1876 Juana Ricarte and Juana Riquiza sold the land in question to Juan Roco, and that on the 17th day of December, 1894, Jose Castillo sold it to the defendant. No deed of conveyance from Juan Roco to Jose Castillo was presented in evidence, but Castillo, testifying as a witness, said that he had bought the property by verbal contract from Roco, his father-in-law. The defendant, after his purchase in 1894, procured a possessory of information which was allowed by an order of the justice of the peace of Oas on the 19th day of January, 1895, and recorded in the Registry of Property on the 28th of March of the same year.

5
In this state of the evidence, we can not say that the proof is plainly and manifestly against the decision of the court below. Unless it is so, the finding of fact made by that court can not be reversed. (De la Rama vs. De la Rama, 201 U. S., 303.) The two statements signed by Roa, one in 1892 and the other in 1893, are competent evidence against him. They are admissions by him to the effect that at that time the pueblo was the owner of the property in question. They are, of course, not conclusive against him. He was entitled to, and did present evidence to overcome the effect of these admissions. The evidence does not make out a case of estoppel against him. (sec. 333, par. 1, Code of Civil Procedure.) The admissibility of these statements made by Roa do not rest upon section 278 of the Code of Civil Procedure, which relates to declarations or admissions made by persons not a party to the suit, but it rests upon the principle that when the defendant in a suit has himself made an admission of any fact pertinent to issue involved, it can be received against him. This action was commenced on the 17th of December, 1902. There is no evidence of any adverse occupation of this land for thirty years, consequently the extraordinary period of prescription does not apply. The defendant can not rely upon the ordinary period of prescription of ten years because he was not a holder in good faith. He knew at that time of his purchase in 1894, and had so stated in writing, that the pueblo was the owner of the property. So that, even if the statute of limitations ran against a municipality in reference to a public square, it could not avail the defendant in this case. It appears that Roa has constructed upon the property, and that there now stands thereon, a substantial building. As early as 1852 this land had been used by the municipality constructed thereon buildings for the storage of property of the State, quarters for the cuadrilleros, and others of a like character. It therefore had ceased to be property used by the public and had become a part of the bienes patrimoniales of the pueblo. (Civil Code, arts. 341, 344.) To the case are applicable those provisions of the Civil Code which relate to the construction by one person of a building upon land belonging to another. Article 364 of the Civil Code is as follows: Where there has been bad faith, not only on the part of the person who built, sowed, or planted on another's land, but also on the part of the owner of the latter, the rights of both shall be the same as if they had acted in good faith. Bad faith on the part of the owner is understood whenever the act has been executed in his presence with his knowledge and tolerance and without objection. The defendant constructed the building in bad faith for, as we have said, he had knowledge of the fact that his grantor was not the owner thereof. There was a bad faith also on the part of the plaintiff in accordance with the express provisions of article 364 since it allowed Roa to construct the building without any opposition on its part and to so occupy it for eight years. The rights of the parties must, therefore, be determined as if they both had acted in good faith. Their rights in such cases are governed by article 361 of the Civil Code, which is as follows: The owner of the land on which the building, sowing, or planting is done in good faith shall have a right to appropriate as his own the work, sowing, or planting after the indemnity mentioned in articles 453 and 454, or, to oblige the person who has built or planted, to pay him the value of the land and to force the person who sowed to pay the proper rent. The judgment of the court below is so modified as to declare that the plaintiff is the owner of the land and that it has the option of buying the building thereon, which is the property of the defendant, or of selling to him the land on which it stands. The plaintiff is entitled to recover the costs of both instances.1wphil.net After the expiration of twenty days let judgment be entered in accordance herewith and at the proper time thereafter let the record be remanded to the court below for proper action. So ordered. Johnson, Carson and Tracey, JJ., concur. G.R. No. L-24440 June 30, 1969

THE PROVINCE OF ZAMBOANGA DEL NORTE, plaintiff-appellee, vs. CITY OF ZAMBOANGA, SECRETARY OF FINANCE AND COMMISSIONER OF INTERNAL REVENUE, defendants-appellants. RESOLUTION

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REYES, J.B.L., J.: Professing respect for the principles enunciated by this Court in its decision of 28 March 1968, in Case G. R. No. L-24440, entitled Province of Zamboanga del Norte vs. City of Zamboanga, et al., 1 the appellant City seeks reconsideration of our decision in so far as the latter declares that Republic Act 3039 is unconstitutional and void in so far as the same seeks to deprive the Province of Zamboanga del Norte of its share in the 26 lots situated within the City of Zamboanga, and hereinafter enumerated, without just compensation, for the reason that said 26 lots are patrimonial property of the old Province of Zamboanga. Said 26 lots are declared in the main decision to be the following: TCT Number Lot Number U s e The movant City contends that the 26 lots aforestated were not patrimonial property of the former Province of Zamboanga, for the reason that said 26 lots have always been used for public purposes, such as school sites, playgrounds and athletic fields for schools. To bolster its contention, the City of Zamboanga submitted photographs, plans and a sworn certification of its City Engineer to the effect that: (a) Twenty-one lots (Nos. 17, 177, 179, 181-A, 181-B, 182 to 197) are part and parcel of the Zamboanga Trade School; (b) Three lots (Nos. 169, 175 and 176) are part and parcel of the Zamboanga Normal College; (c) Lot No. 127-D is the Pasonanca Elementary School; (d) Lot No. 4147 is the Bolong Elementary School; (e) Lot No. 159-B is part and parcel of the Baliwasan Elementary School. Appellant City of Zamboanga, therefore, prays that the main decision be partly reconsidered and that all title to, and ownership of, the 26 lots be declared to have been validly vested in said City free of charge by Republic Act No. 3039. The motion for reconsideration is vigorously opposed by plaintiff-appellee Province of Zamboanga del Norte, which contends that the evidence sought to be filed by the appellant City is not newly discovered evidence and is, therefore, inadmissible at this stage of the proceedings. Alternatively, the appellee Province of Zamboanga contends that the 26 lots are vacant, or that the buildings existing thereon were constructed in bad faith; and that the said Province has additional evidence to show that most of these properties are not actually devoted to public use or governmental purposes.1awphil.nt Considering that both contending parties are actually subdivisions of one entity, the Republic of the Philippines, so that public interest is involved and demands that the issues presented be determined speedily without regard to technicalities, the Court resolved that, in the interest of justice and equity, its main decision and that of the court below be reconsidered and set aside, in so far as they affect the twenty-six lots heretofore enumerated, and the monetary indemnities awarded. Instead, the records are ordered remanded to the court of origin for a new trial, wherein the parties shall be given opportunity to adduce and submit any evidence in their possession to show whether or not the 26 lots aforesaid were or were not actually devoted to public use or governmental purposes prior to the enactment of Republic Act No. 3039. Thereafter, the Court of First Instance shall decide the issues anew, taking into account the evidence submitted by the parties and the principles of law laid down by this Supreme Court in its main decision of the present case, dated 28 March 1968. So ordered. No costs. Concepcion, C.J., Makalintal, Dizon, J., took no part. G.R. No. L-5631 Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.

October 17, 1910

THE MUNICIPALITY OF CATBALOGAN, petitioner-appellee, vs. THE DIRECTOR OF LANDS, opponent-appellant. Attorney-General Villamor, for appellant. Provincial fiscal Barrios, for appellee.

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TORRES, J.: On June 19, 1908, the municipal president of the pueblo of Catbalogan, Province of Samar, filed, in the name of the municipality, an application with the Court of Land Registration in which he asked for the registration, in conformity with the Land Registration Act, of a parcel of land of which the said municipality was the absolute owner, bounded on the north by calle Corto south of the church square, on the east by Second Avenue, on the south by land belonging to Smith, Bell & Co., and on the west by First Avenue; the application states that the said land has an area of 666.60 square meters and its description and boundaries are given in detail in the map attached to the application, which sets forth that the property described was appraised at the last assessment levied for the purpose of the payment of the land tax, and that there is no encumbrance on it; that no one other than the applicant, to the latter's best knowledge and belief, has any right or interest therein; that the said land was acquired by possession and material occupation for a large number of years and is at present occupied by the applicant as a municipal corporation duly organized; and that, in the unlikely event of the denial of the said application, made in accordance with the Land Registration Act, the applicant invokes the benefits of chapter 6 of Act No. 926, since the said corporation has been in poossession of the land mentioned, which is entirely surrounded by a fence, and has been cultivating it for a great many years. On March 18, 1909, the Attorney-General, in representation of the Director of Lands, filed a writing opposing the registration solicited and alleged that the land in question belonged to the United States and was under the control of the Government of the Philippines Islands. He asked that the applicant's prayer be denied and that, in case the said property should be declared to belong to the Insular Government, the same be awarded to it, together with the issuance thereto of the proper certificate of registration. The case having been heard on March 22, 23, and 24, 1909, and oral evidence adduced by both parties, the judge, on the 24th of the said month, overruled the opposition of the Director of Lands, and decreed, after a declaration of general default, that the property in question be awarded to the applicant, the municipality of Catbalogan, and be registered in its name. The Attorney-General, in representation of the Director of Lands, excepted to this ruling and announced his purpose of filing a bill of exceptions. He asked at the same time for a new trial on the grounds that the findings of fact of the court were openly and manifestly contrary to the weight of the evidence, and that the latter did not justify the said decision which, he alleged, was contrary to law. This motion was denied and exception was taken thereto by the Attorney-General, who duly presented the required bill of exceptions which was certified and forwarded to this court. The question submitted to the decision of this court, through the appeal raised by the Attorney-General in representation of the Director of Lands, is whether the lot occupied by the court-house of the municipality of Catbalogan, of the Islands and Province of Samar, belongs to the said municipality or is state land under the control of the Insular Government. In order to obtain a better understanding of the final conclusion to be established in this decision, it is meet to state: That for the purpose of the establishment of new pueblos in this Archipelago, at the beginning of its occupation by the Spaniards, an endeavor was always made to find, in favorable places, a nucleus of inhabitants and, later, near the pueblos already established, barrios, which ordinarily served as a basis for the formation of other new pueblos that became a populated as the centers on which they were dependent. The executive authorities and other officials who then represented the Spanish Government in these Islands were obliged to adjust their procedure, in the fulfillment of their duties with regard to the establishment and laying out of new towns, to the Laws of the Indies, which determined the course that they were to pursue for such purposes, as may be seen by the following: Law 6, title 5, book 4, of the Recompilation of the Laws of the Indies, provides, among other things: That within the boundaries which may be assigned to it, there must be at least thirty residents, and each one of them must have a house, etc. Law 7 of the same title and book contains this provision: Whoever wishes to undertake to establish a new town in the manner provided for, of not more than thirty nor less than ten residents, shall be granted the time and territory necessary for the purpose and under the same conditions. It may be affirmed that years afterwards all the modern pueblos of the Archipelago were formed by taking as a basis for their establishment the barrios already populated by a large number of residents who, under the agreement to build the church of the new pueblo, the court-house, and afterwards the schoolhouse, obtained from the General Government the administrative separation of their barrio from the pueblo on which it depended and in whose territory it was previously comprised. In such cases procedure analogous to that prescribed by the Laws of the Indies was observed.

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For the establishment, then, of new pueblos, the administrative authority of the province, in representation of the Governor-General, designated the territory for their location and extension and the metes and bounds of the same; and before alloting the lands among the new settlers, a special demarcation was made of the places which were to serve as the public square of the pueblo, for the erection of the church, and as sites for the public buildings, among others, the municipal building or the casa real, as well as of the lands which were to constitute the commons, pastures, and propios of the municipality and the streets and roads which were to intersect the new town were laid out, as many be seen by the following laws: Law 7, title 7, book 4, of the Recompilation of the Laws of the Indies, provides: The district or territory to be given for settlement by composition shall be allotted in the following manner: There shall be first be set apart the portion required for the lots of the pueblo, the exido or public lands, and pastures amply sufficient for the stock which the residents may have, and as much more as propios del lugar or common lands of the locality ; the rest of the territory and district shall be divided into four parts one of them, of his choice, shall be for him who takes upon himself the obligation to fund the pueblo, and the other three shall be apportioned equally among the settlers. Law 8, of the same title and book, prescribes, among other things: That, between the main square and the church, there shall be constructed the casas reales or municipal buildings, the cabildo, concejo, customs buildings, etc. Law 14 of the said title and book, also directs among other things: That the viceroys shall set aside such lands as to them appear suitable as the common lands (propios) of the pueblos that have none, therewith to assist in the payment of the salaries of the corregidores, and sufficient public lands (exidos) and pasture lands as provided for and prescribed by law. Law 1, title 13 of the aforesaid book, provides the following: Such viceroys and governors as have due authority shall designate to each villa and lugar newly founded and settled the lands and lots which they may need and may be given to them, without detriment to a third party, as propios, and a statement shall be sent to us of what was designated and given to each, in order that we may have such action approved. The municipality of Catbalogan, as the provincial seat of Samar, must have been the first and oldest pueblo established in the said province and has been occupying, if not since time immemorial, as affirmed in the application, at least for a long period of years, some forty or forty-five years according to the evidence given at trial, the lot in litigation on which it had built the successive court-house buildings constructed for the public service of the head municipality authority and his council. Some of these buildings were burned and others were ruined by typhoons. The courthouse building aforesaid has been used and enjoyed quietly and peaceably and without any opposition up to the present time, wherefore it is to be presumed that, on founding the pueblo and on proceeding to designate and demarcate the area of land to be occupied by the town of Catbalogan, with its square, streets, church, and other public buildings, the said lot was also designated as a site for the municipal or court building, in accordance with the laws hereinbefore mentioned, and that the adjudication of the lot to the municipality for its court-house was duly confirmed by the Spanish Government, as must be inferred, in view of the continuous possession for so long a time up to the present; nor does the record show that the court-house of the said pueblo was ever built on any other lot than the one in question. It is to be noted that, in former times, the court-house buildings of the pueblos were called casas reales(royal buildings), undoubtedly for the purpose of giving greater dignity to the principle of authority represented in them and inculcating respect among the inhabitants of the pueblo toward the building where the chief local authority exercised his governmental duties and at the same time administered justice, for the old pedaneos or petty mayors, later called capitanes or gobernadorcillos, while they had governmental powers, at the same time administered justice as local judges. In paragraph 92 of the royal ordinances of February 26, 1768, the following appears, among other things: And because, while there is a notable excess of pomp in the buildings of the ministers and parish priests, there is, on the other hand, great abandonment of the casas reales which, as a general rule, are not habitable on account of their uncomfortable and ruinous conditions, etc., . . . it is ordered that in all the pueblos, and especially in those of the seats of government, the native inhabitants thereof shall erect decent and convenient municipal buildings modeled after the plans to be furnished by the central government, and that therein the gobernadorcillos shall have their court rooms and their jails for the security of prisoners, and all leaks and other damages shall be repaired in time in order that, through neglect they may not cause greater detriment and expense.

9
If the inhabitants of a pueblo, at the time of its foundation, were obliged to erect their casa real of municipal building, it is to be supposed that they built it on their own ground after a designation of the site had been made by the governmental authority of the province a designation which had to be made, according to the Laws of the Indies, at the same time as that of the main plaza and of the site to be occupied by the temple of church, which latter building is so necessary and indispensable for every pueblo as well as the casa real or court-house, since in them, respectively, divine worship is had and the local authorities perform their duties. The land designated for the church is considered to belong thereto, and likewise the land intended for the court-house should be deemed to be the property of municipality, since no pueblo was able to exist administratively without having a church of its own and a court-house which should be the seat of its local authority and its municipal government. It should be remembered that the court-house and the church of every pueblo were always built, in accordance with the provisions of the Laws of the Indies, on one of the sides of the plaza mayor or main square of the town, either together or the same side, or each buildings on an opposite side; but the said square nearly always occupies a central site within the territory of the pueblo, with the frequent exception of where the town has extended toward only one end or side of the territory, in which event its main square ceased to be in the center of the town. However, the said square was never located outside of the inhabited place, as were the commons and pasturages. (Law 13, title 7, book 4, Recompilation of the Laws of the Indies.) It is of course to presumed, in accordance with the provisions of the laws aforementioned, that the main square of the pueblo of Catbalogan occupies nearly the central part of its territory, and that the lot on which were successively constructed the several court-houses which the said pueblo has and, in situated on one of the sides of the said square and consequently in a central point and not outside the town. It can not, however, on account of this circumstances, be concluded that the said lot formed a part of the commons, exido, or the pasturage lands of the said pueblo, but consisted of land which belonged to the pueblo and was legally acquired through the distribution and adjudication of lots made at the beginning of its foundation, as proved by the laws hereinbefore quoted. In technical administrative terms bienes propios are: Cultivated real properties, pasturage, houses or any other property which a city, village, or hamlet has for the payment of the public expenses. The administration of this class of property lay with the municipalities, and they could be alienated after proper procedure and authorization of the competent superior authorities in accordance with the administrative laws. It is therefore unquestionable that the assets of each pueblo comprised its bienes propios and the revenues or products derived therefrom, and this fact is recognized in the Ordenanza de Intendentes of 1786, the forty-seventh article of which reads: The funds which any pueblo may have left over as an annual surplus from the products of its property and its taxes, after meeting the expenses specified in its own particular ordinance, shall be invested in the purchase of real estate and revenue-bearing investments, so that, having a sufficient income for the payment of its obligations and to aid in defraying its ordinary needs, the excise taxes, which are always a burden to the public, may be abolished; and in case it should have no such taxes, nor annuities to redeem on its common properties (propios), the said surplus shall be applied to promote establishments useful to the pueblo and to its province, or by investments to be previous proposed by the intendentes and approved by the junta superior. From the foregoing it is concluded that the land in question is the common property of the pueblo and is comprised within the patrimonial property of the municipality of Catbalogan, to which it was awarded for the construction thereon of the court-house, on the demarcation and distribution being made of the lands which were to be occupied by the town in its development, in accordance with the provisions of the Laws of the Indies, and other complementary laws, at a time when there was an excess of land and a few inhabitants to occupy them. It was for this reason that the royal cedula of October 15, 1754, directed that neither the possessors of unappropriate crown lands, nor their successors in interest, should be disturbed or denounced, although they had no titles, it being sufficient for them to prove their prior possession to obtain a title by just prescription. The said municipality is today in possession of the land in litigation, as the owner thereof, under the protection of the civil and administrative laws which guarantee the right of ownership of the corporations that are capable of contracting, acquiring, and possessing real and personal property. Article 343 of the Civil Code reads: The property of provinces an of towns is divided into property for public use and patrimonial property. Article 344 of the same codes prescribes: Property for public use in provinces and in towns comprises the provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public works of general services supported by the said towns or provinces.

10
All other property possessed by either is patrimonial, and shall be governed by the provisions of this code, unless otherwise prescribed in special laws. Section 2 of Act No. 82, entitled "The Municipal Code," is as follows: (a) Pueblos incorporated under this Act shall be designated as municipalities ( municipios), and shall be known respectively by the names heretofore adopted. Under such names they may sue and be sued, contract and be contracted with, acquire and hold real and personal property for the general interest of the municipality, and exercise all the powers hereinafter conferred upon them. (b) All property and property rights vested in any pueblo under its former organization shall continue to be vested in the same municipality after its incorporation under this Act. By this last-cited administrative Act the rights of the old municipalities to acquire real and personal property, in accordance with their former organization, are recognized, and it is declared that the said property and rights shall continue to pertain to the municipalities created in harmony with the provisions of the Municipal Code, on account of such property being the patrimonial property of the municipalities. Under these principles, perfectly in accord with both the old and the mother legislation of this country, the municipality of Catbalogan ought to be considered as the owner of the land in question, on account of the same having been awarded to it as its own, under its exclusive ownership, on the founding of the pueblo, for the erection of the courthouse, the record of the case showing no proof nor data to the contrary. As the plaintiff municipality, the applicant, has been occupying the property on which its court-house is situated during such a long space of time, much longer than that required for extraordinary prescription (art. 1959 of the Civil Code), it can not be denied that the presumption exists, in its favor, that it has been holding the land in its character of owner, since the trial record exhibits no proof that any other parcel of land, distinct from that in controversy, was awarded to the said municipality for the erection thereon of its court-house, a court-house and the land on which to build it being necessary and indispensable for the existence of the pueblo. The title under which the municipality of Catbalogan holds and enjoys the said lot is the same as that under which it is recognized as a pueblo and under which the municipality is justified in its present occupancy of the territory where the town is established with its streets, squares, and common lands (terreno comunal), a title identical with that now held by the church, as a religious institution, to the land now occupied by the temple that exists in the said pueblo. 1awph!l.net At the time of the beginning of the foundation of the pueblo mentioned and of the distribution or allotment of the lands among its first inhabitants, who, in accordance with the Laws of the Indies, must have numbered at least thirty men with their respective families, for the purpose of founding a pueblo, perhaps none of them was provided with any particular title to accredit the fact that this or that parcel of land had fallen to him in the allotment. Possibly the facts pertaining to the distribution of the lands were entered in the record kept of the organization of the pueblo, if one such was made, for it must be remembered that, in ancient times and up to the years immediately preceding the beginning of the nineteenth century, fewer records were made than in modern times, and, besides, the Laws of the Indies themselves recommended that, in administrative proceeding, the institution of suits should be avoided in so far as possible where verbal information and investigations could be had to enable proper action to be taken. Besides the reasons hereinabove noted, there is that of the continuous and constant renovation of the personnel which composed the officials of a municipality in the Philippines, for the pedaneo or gobernadorcillo, histenientes, judges, and other subordinates were first chosen and appointed annually, and after every two years; and, though in the beginning the capitan pedaneo of the pueblo may have had in his possession the record of the necessary concession and award of the land on which the court-house was built, and that of the pueblo of Catbalogan was constructed of stone, it would in nowise be strange that, in spite of the zeal and diligence which may have been exercised by his many successors, the said record or title should have disappeared or been destroyed in the case of Catbalogan, during the lapse of so long a time; indeed, it would be marvelous and extraordinary that such a document should exist, intrusted to the more or less diligent care of so many municipal officials who, at the most, occupied their offices but two years. It is certain, however, that the successive court-houses which the said pueblo has had have occupied the land in question without opposition on the part of anyone, or of the state, and including the building which served as a court-house, together with the land on which it is built, as one of the properties which form the assets of the pueblo of Catbalogan, as they should be classed, it is incontrovertible that the right of the said municipality therein must be respected, as the right of ownership is consecrated and sanctioned by the laws of every civilized county in the interest and for the benefit of society, public order, and civilization itself. As has been shown in the preceding paragraphs, the land in litigation, which is a lot occupied by the court-house, anciently termed the casa real, of the pueblo of Catbalogan, pertains to the said pueblo, awarded to the same, not gratuitously, but on account of the necessity arising from its

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organization, and forms a part, as a patrimonial property, of its municipal assets, and therefore it is not comprised within the common land ( terreno comunal) which may have been granted to the said pueblo. Law 8, title 3, book 6 of the Recompilation of the Laws of the Indies, is not applicable to the question at issue with respect to the said land or lot, nor are the provisions of article 53 of the ordinances of good government, before cited, of February 26, 1768, nor the subsequent royal decrees of February 28, August 1, 1883, and of January 17, 1885, relative to the legua or terreno comunal; and, consequently, the doctrine laid down in the decision rendered in the case of The City of Manila vs. The Insular Government (10 Phil. Rep., 327) is likewise inapplicable, for the reason that the land in dispute is not that of a common, but of a building lot of which the pueblo of Catbalogan had absolute need at the beginning of its organization for the erection thereon of its court-house. This was duly proved at trial, without possible contradiction. Notwithstanding the number of years during which the municipality of Catbalogan has been in possession of the lot, once it has been shown by unquestionable evidence that the property was assigned to it as its own, in order that it might erect its court-house thereon, as it did do at the beginning of its foundation, and its possession of the said land not being by mere unlawful occupation, the municipality has no need to rely upon the right of prescription, although, being entitled to acquire and possess property in the character of owner, according to its organic law, it is not understood why it could not acquire such right by prescription in accordance with law, it being, as it is, a juridical person susceptible of rights and duties. The present case has nothing to do with any contract made by the old municipality of Catbalogan, nor administrative acts or procedure of the applicant herein, but relates to its right of ownership in a parcel of land vested with the character of bien propio of its own, or patrimonial property; for which reason the doctrine established in the decision rendered in the case of Aguado vs. The City of Manila (9 Phil. Rep., 513) is also inapplicable, inasmuch as the said municipality, in the exercise of the right of ownership in its own property, has an independent personality of its own, recognized by law, and does not act as a mere delegate of the central authority. For the foregoing reasons, and considering that the municipality of Catbalogan is the owner of the land occupied by its court-house and that it is entitled to have the said property registered in its name in the Court of Land Registration, it is proper, in our opinion, to affirm and we hereby affirm the judgment appealed from in its present form. Arellano, C.J., Moreland and Trent, JJ., concur. G.R. No. L-7054 January 20, 1913

MUNICIPALITY OF HINUNANGAN, plaintiff-appellee, vs. THE DIRECTOR OF LANDS, defendant-appellant. Attorney-General Villamor, for appellant. Provincial Fiscal De la Rama, for appellee. MORELAND, J.: This is an appeal from the judgment of the Court of Land Registration, ordering the registration of the title of the petitioner to the lands described in the petition. The appeal is taken by the Insular Government from the registration of the title of one of the parcels of land only. It is situated in the municipality of Hinunangan, Province of Leyte, and contains an area of 10,328.8 square meters. It is bounded on the northeast by the maritime zone; on the southeast by North America Street; on the southwest by Manilili Street, and on the northwest by San Isidro Labrador Street. Upon this lot is built a stone fort which has stood there from time immemorial and was in times past used as a defense against the invasion of the Moros. Formerly, as now, the defense of the national territory against invasion by foreign enemies rested upon the state and not upon the towns and villages and for this reason all of the defenses were constructed by the National Government. In volume 2, book 3, title 7, law 1 of the Laws of the Indies appears the following: We command that all the ground roundabout the castles and fortresses be clear and unoccupied, and if any building is erected within 300 paces of the wall or other building so strong that even at a greater distance it would prejudice the defenses, it shall be torn down, and the owner of the same shall be paid from the Royal Treasury for the damages caused him. Book 4, title 7, law 12, reads as follows:

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We order that, for the security and defense of the cities as is now assured by the castles and fortresses, no building shall be erected within 300 paces of the walls or stockades of the new cities. Article 339 of the Civil Code is as follows, in part: ART. 339. The following are public property: xxx xxx xxx

2. That which belongs privately to the state, which is not for public use and which is destined for the public good or to increase the national riches, such as walls, fortresses and other constructions for the defense of the country, and the mines as long as no concession in regard to them is made. Article 341 of the Civil Code provides: ART. 341. Public property, when it ceases to be used for the public good or for the necessities of the defense of the country, becomes a part of the property of the state. From these provisions it seems clear that the fortress in question was erected for the national defense and was a part of the property of the state destined and used for that purpose. As a necessary result, the land upon which it stands must also have been dedicated to that purpose. The fact that said fortress may not have been used for many years for the purposes for which it was originally built does not of necessity deprive the state of its ownership therein. As we have seen, the Civil Code provides that, when the fortress ceases to be used for the purposes for which it was constructed, it becomes the property of the state in what may be called the private sense. That the municipality may have exercised within recent years acts of ownership over the land by permitting it to be occupied and consenting to the erection of private houses thereon does not determine necessarily that the land has become the property of the municipality. We have held in several cases that, where the municipality has occupied lands distinctly for public purposes, such as for the municipal court house, the public school, the public market, or other necessary municipal building, we will, in the absence of proof to the contrary, presume a grant from the state in favor of the municipality; but, as indicated by the wording, that rule may be invoked only as to property which is used distinctly for public purposes. It cannot be applied against the state when occupied for any other purpose. The evidence does not disclose that the municipality has used the land for purposes distinctly public. The judgment in relation to the parcel of land heretofore described is reversed and the petition as to that parcel dismissed. In all other respects the judgment is affirmed. So ordered. Arellano, C.J., Torres, Mapa, Johnson, and Trent, JJ., concur. G.R. No. L-24950 March 25, 1926

VIUDA DE TAN TOCO, plaintiff-appellant, vs. THE MUNICIPAL COUNCIL OF ILOILO, defendant-appellee. Arroyo & Evangelista for appellant. Provincial Fiscal Borromeo Veloso for appelle. VILLAMOR, J.: It appears from the record that the widow of Tan Toco had sued the municipal council of Iloilo for the amount of P42,966.40, being the purchase price of two strips of land, one on Calle J. M. Basa consisting of 592 square meters, and the other on Calle Aldiguer consisting of 59 square meters, which the municipality of Iloilo had appropriated for widening said street. The Court of First Instance of Iloilo sentenced the said municipality to pay the plaintiff the amount so claimed, plus the interest, and the said judgment was on appeal affirmed by this court. 1 On account of lack of funds the municipality of Iloilo was unable to pay the said judgment, wherefore plaintiff had a writ of execution issue against the property of the said municipality, by virtue of which the sheriff attached two auto trucks used for street sprinkling, one police patrol automobile, the

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police stations on Mabini street, and in Molo and Mandurriao and the concrete structures, with the corresponding lots, used as markets by Iloilo, Molo, and Mandurriao. After notice of the sale of said property had been made, and a few days before the sale, the provincial fiscal of Iloilo filed a motion which the Court of First Instance praying that the attachment on the said property be dissolved, that the said attachment be declared null and void as being illegal and violative of the rights of the defendant municipality. Plaintiffs counsel objected o the fiscal's motion but the court, by order of August 12, 1925, declared the attachment levied upon the aforementioned property of the defendant municipality null and void, thereby dissolving the said attachment. From this order the plaintiff has appealed by bill of exceptions. The fundamental question raised by appellant in her four assignments of error is whether or not the property levied upon is exempt from execution. The municipal law, section 2165 of the Administrative Code, provides that: Municipalities are political bodies corporate, and as such are endowed with the faculties of municipal corporations, to be exercised by and through their respective municipal government in conformity with law. It shall be competent for them, in their proper corporate name, to sue and be sued, to contract and be contracted with, to acquire and hold real and personal property for municipal purposes, and generally to exercise the powers hereinafter specified or otherwise conferred upon them by law. For the purposes of the matter here in question, the Administrative Code does not specify the kind of property that a municipality may acquire. However, article 343 of the Civil Code divides the property of provinces and towns (municipalities) into property for public use and patrimonial property. According to article 344 of the same Code, provincial roads and foot-path, squares, streets, fountains and public waters, drives and public improvements of general benefit built at the expense of the said towns or provinces, are property for public use. All other property possessed by the said towns and provinces is patrimonial and shall be subject to the provisions of the Civil Code except as provided by special laws. Commenting upon article 344, Mr. Manresa says that "In accordance with administrative legislation" (Spanish) we must distinguish, as to the patrimonial property of the towns, "between that a common benefit and that which is private property of the town. The first differs from property for public use in that generally its enjoyment is less, as it is limited to neighbors or to a group or class thereof; and, furthermore, such use, more or less general, is not intrinsic with this kind of property, for by its very nature it may be enjoyed as though it were private property. The third group, that is, private property, is used in the name of the town or province by the entities representing it and, like and private property, giving a source of revenue." Such distinction, however, is of little practical importance in this jurisdiction in view of the different principles underlying the functions of a municipality under the American rule. Notwithstanding this, we believe that the principle governing property of the public domain of the State is applicable to property for public use of the municipalities as said municipal is similar in character. The principle is that the property for public use of the State is not within the commerce of man and, consequently, is inalienable and not subject to prescription. Likewise, property for public of the municipality is not within the commerce of man so long as it is used by the public and, consequently, said property is also inalienable. The American Law is more explicit about this matter as expounded by Mcquilin in Municipal Corporations, volume 3, paragraph 1160, where he says that: States statutes often provide the court houses, jails and other buildings owned by municipalities and the lots on which they stand shall be exempt from attachment and execution. But independent of express statutory exemption, as a general proposition, property, real and personal, held by municipal corporations, in trust for the benefit of their inhabitants, and used for public purposes, is exempt. For example, public buildings, school houses, streets, squares, parks, wharves, engines and engine houses, and the like, are not subject to execution. So city waterworks, and a stock of liquors carried in a town dispensary, are exempt. The reason for the exemption is obvious. Municipal corporations are created for public purposes and for the good of the citizens in their aggregate or public capacity. That they may properly discharge such public functions corporate property and revenues are essential, and to deny them these means the very purpose of their creation would be materially impeded, and in some instances practically destroy it. Respecting this subject the Supreme Court of Louisiana remarked: "On the first view of this question there is something very repugnant to the moral sense in the idea that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected by legal process to the satisfaction of its creditors. This consideration,

14
deduced from the principles of moral equity has only given way to the more enlarged contemplation of the great and paramount interests of public order and the principles of government." It is generally held that property owned by a municipality, where not used for a public purpose but for quasi private purposes, is subject to execution on a judgment against the municipality, and may be sold. This rule applies to shares of stock owned by a municipal corporation, and the like. But the mere fact that corporate property held for public uses is being temporarily used for private purposes does not make it subject execution. If municipal property exempt from execution is destroyed, the insurance money stands in lieu thereof and is also exempt. The members or inhabitants of a municipal corporation proper are not personally liable for the debts of the municipality, except that in the New England States the individual liability of the inhabitant is generally maintained. In Corpus Juris, vol 23, page 355, the following is found: Where property of a municipal or other public corporation is sough to be subjected to execution to satisfy judgments recovered against such corporation, the question as to whether such property is leviable or not is to be determined by the usage and purposes for which it is held. The rule is that property held for public uses, such as public buildings, streets, squares parks, promenades, wharves, landing places fire engines, hose and hose carriages, engine houses, public markets, hospitals, cemeteries, and generally everything held for governmental purposes, is not subject to levy and sale under execution against such corporation. The rule also applies to funds in the hands of a public officer. Likewise it has been held that taxes due to a municipal corporation or country cannot be seized under execution by a creditor of such corporation. But where a municipal corporation or country owns in its proprietary, as distinguished from its public or governmental capacity, property not useful or used for a public purpose but for quasi private purposes, the general rule is that such property may be seized and sold under execution against the corporation, precisely as similar property of individuals is seized and sold. But property held for public purposes is not subject to execution merely because it is temporarily used for private purposes, although if the public use is wholly abandoned it becomes subject to execution. Whether or not property held as public property is necessary for the public use is a political, rather than a judicial question. In the case of City of New Orleans vs. Louisiana Construction Co., Ltd. (140 U. S., 654; 35 Law. ed., 556), it was held that a wharf for unloading sugar and molasses, open to the public, was property for the public use of the City of New Orleans and was not subject to attachment for the payment of the debts of the said city. In that case it was proven that the said wharf was a parcel of land adjacent to the Mississippi River where all shipments of sugar and molasses taken to New Orleans were unloaded. That city leased the said wharf to the Louisiana Construction Company, Ltd., in order that it might erect warehouses so that the merchandise upon discharge might not be spoiled by the elements. The said company was given the privilege of charging certain fees for storing merchandise in the said warehouses and the public in general had the right to unload sugar and molasses there by paying the required fees, 10 per cent of which was turned over to the city treasury. The United States Supreme Court on an appeal held that the wharf was public property, that it never ceased to be such in order to become private property of the city; wherefore the company could not levy execution upon the wharf in order to collect the amount of the judgment rendered in favor thereof. In the case of Klein vs. City of New Orleans (98 U. S., 149; 25 Law. ed., 430), the Supreme Court of the United States that a public wharf on the banks of the Mississippi River was public property and not subject to execution for the payment of a debt of the City of New Orleans where said wharf was located. In this case a parcel of land adjacent to the Mississippi River, which formerly was the shore of the river and which later enlarged itself by accession, was converted into a wharf by the city for public use, who charged a certain fee for its use. It was held that the land was public property as necessary as a public street and was not subject to execution on account of the debts of the city. It was further held that the fees collected where also exempt from execution because they were a part of the income of the city. In the case of Tufexis vs. Olaguera and Municipal Council of Guinobatan (32 Phil., 654), the question raised was whether for the payment of a debt to a third person by the concessionaire of a public market, the said public market could be attached and sold at public auction. The Supreme Court held that:

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Even though a creditor is unquestionably entitled to recover out of his debtor's property, yet when among such property there is included the special right granted by the Government of usufruct in a building intended for a public service, and when this privilege is closely related to a service of a public character, such right of the creditor to the collection of a debt owed him by the debtor who enjoys the said special privilege of usufruct in a public market is not absolute and may be exercised only through the action of court of justice with respect to the profits or revenue obtained under the special right of usufruct enjoyed by debtor. The special concession of the right of usufruct in a public market cannot be attached like any ordinary right, because that would be to permit a person who has contracted with the state or with the administrative officials thereof to conduct and manage a service of a public character, to be substituted, without the knowledge and consent of the administrative authorities, by one who took no part in the contract, thus giving rise to the possibility of the regular course of a public service being disturbed by the more or less legal action of a grantee, to the prejudice of the state and the public interests. The privilege or franchise granted to a private person to enjoy the usufruct of a public market cannot lawfully be attached and sold, and a creditor of such person can recover his debt only out of the income or revenue obtained by the debtor from the enjoyment or usufruct of the said privilege, in the same manner that the rights of such creditors of a railroad company can be exercised and their credit collected only out of the gross receipts remaining after deduction has been made therefrom of the operating expenses of the road. (Law of November 12, 1896, extended to the overseas provinces by the royal order of August 3, 1886.) For the reasons contained in the authorities above quoted we believe that this court would have reached the same conclusion if the debtor had been municipality of Guinobatan and the public market had been levied upon by virtue of the execution. It is evident that the movable and immovable property of a municipality, necessary for governmental purpose, may not be attached and sold for the payment of a judgment against the municipality. The supreme reason for this rule is the character of the public use to which such kind of property is devoted. The necessity for government service justifies that the property of public of the municipality be exempt from execution just as it is necessary to exempt certain property of private individuals in accordance with section 452 of the Code of Civil Procedure. Even the municipal income, according to the above quoted authorities, is exempt from levy and execution. In volume 1, page 467, Municipal Corporations by Dillon we find that: Municipal corporations are instituted by the supreme authority of a state for the public good. They exercise, by delegation from the legislature, a portion of the sovereign power. The main object of their creation is to act as administrative agencies for the state, and to provide for the police and local government of certain designated civil divisions of its territory. To this end they are invested with certain governmental powers and charged with civil, political, and municipal duties. To enable them beneficially to exercise these powers and discharge these duties, they are clothed with the authority to raise revenues, chiefly by taxation, and subordinately by other modes as by licenses, fines, and penalties. The revenue of the public corporation is the essential means by which it is enabled to perform its appointed work. Deprived of its regular and adequate supply of revenue, such a corporation is practically destroyed and the ends of its erection thwarted. Based upon considerations of this character, it is the settled doctrine of the law that only the public property but also the taxes and public revenues of such corporations cannot be seized under execution against them, either in the treasury or when in transit to it. Judgments rendered for taxes, and the proceeds of such judgments in the hands of officers of the law, are not subject to execution unless so declared by statute. The doctrine of the inviolability of the public revenues by the creditor is maintained, although the corporation is in debt, and has no means of payment but the taxes which it is authorized to collect. Another error assigned by counsel for appellant is the holding of the court a quo that the proper remedy for collecting the judgment in favor of the plaintiff was by way or mandamus. While this question is not necessarily included in the one which is the subject of this appeal, yet we believe that the holding of the court, assigned as error by appellant's counsel, is true when, after a judgment is rendered against a municipality, it has no property subject to execution. This doctrine is maintained by Dillon (Municipal Corporations, vol. 4, par. 1507, 5th ed.) based upon the decisions of several States of the Union upholding the same principle and which are cited on page 2679 of the aforesaid work. In this sense this assignment of error, we believe, is groundless. By virtue of all the foregoing, the judgment appealed from should be and is hereby affirmed with costs against the appellant. So ordered. Avancea, C. J., Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real., JJ., concur. G.R. No. L-4012 June 30, 1952

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MUNICIPALITY OF BATANGAS, plaintiff-cross-defendant-appellee, vs. ALBINO N. CANTOS, JULIA B. CANTOS, ANACLETO BERANA AND HILARIA GAMBOA, defendants-appellants. ALBINO N. CANTOS, and JULIA B. CANTOS, cross-plaintiffs. JOSE CAEDO, et als., cross-defendants-appellees. Provincial Fiscal Mateo L. Alcasid and Eulalio Chaves for the cross-defendant appellee. Mariano A. Albert and F. Agrava for cross-plaintiffs appellants. Gutierrez and Blay for cross-defendants and appellees. BAUTISTA ANGELO, J.: This is an action for specific performance brought by the municipality of Batangas against the spouses Albino N. Cantos and Julia B. Cantos, as principals, and Anacleto Beraa and Hilaria Gamboa, as sureties to compel the latter "to remove the Cine Batangas Building from the public school site -situated on the parcel of land" belonging to the municipality at their expense, and to the recover the sum of P2,000 as liquidated damages. Defendants answered he complaint setting up certain special defenses and a counter-claim. In a counter-claim, defendants included as crossdefendants Jose Caedo, Pedro M. Bernabe, Roman L. Perez, Olegario B. Cantos, Jose M. Montalvo, Atilano Magadia, Juan Buenafe, Francisco Atienza, Gabriel D. Gomez, Esteban R. Luna Francisco Medrano and Federico Blay, the first two as former mayors of the municipality of Batangas and the rest as the acting mayor, vice-mayor and councilors of the same municipality, respectively. In the counter-claim, it is prayed that the plaintiff and the cross-defendants be sentenced to pay the sum of P10,000 as punitive damages, and the sum of P200 daily from August 16, 1946, until the possession of Cine Batangas has been actually returned to the defendants, as actual damages. On October 17, 1947, defendants filed a motion to dismiss alleging as main reason the fact that the nature of the complaint is one of unlawful detainer and as such the case comes within the exclusive jurisdiction of the justice of the peace court, to which plaintiff filed an opposition, and the motion was denied in an order of November 27, 1947, the court holding that the cause of action alleged in the complaint is not one of unlawful detainer but of specific performance of the contract entered into on October 27, 1945. On June 14, 1948, after trial, the court rendered judgment as prayed for in the complaint. From this judgment the defendants took the case to the Court of Appeals, which, however, certified it to this Court upon the ground that one of the questions raised by the appellants in their brief is whether the present action is one of illegal detainer which places this case within the exclusive jurisdiction of the justice of the peace court of Batangas, or one of which comes within the jurisdiction of the Court of First Instance, a jurisdictional issue should be passed upon by this Court. The principal allegations of the complaint are: plaintiff is the power of a parcel of a land in the province of Batangas, which is the site of Batangas Elementary School No. 2; this property was acquired by plaintiff sometime in 1908 or 1909 for the purpose of devoting it exclusively to school purposes, but the building existing thereon was burned on December 26, 1941; in view of the officer of spouses Albino N. Cantos and Julia B. Cantos to lease for a period of five years a portion of said site consisting of 800 square meters on which they planned to erect a cinematographic building for Japanese propaganda, the municipal council of Batangas approved resolution No. 20 whereby said offer was accepted subject to the following conditions: the municipality of Batangas can cancel the contract "at any time the government finds a need for the said site", in which case the lessee should give up the land leased, and remove the building constructed thereon, and upon failure on his part to do so, the municipal government will have the right to demolish the building at the expense of the lessee, or claim ownership over said building; on July 1, 1943, a contract of lease was entered into between the municipality of Batangas and Albino N. Cantos embodying the terms and conditions specified in said resolution No. 20; after the execution of said contract, Albino N. Cantos constructed a cinematograph building on the portion of the school site covered by the lease; on October 27, 1945, another agreement was entered into between the municipality of Batangas and the spouses Cantos whereby the latter agreed to vacate the site occupied by the building beginning April 1, 1946, and to definitely remove the building therefrom and their expense on April 15, 1946, and to insure the due fulfillment of this agreement the spouses, Cantos, as principals, and their co-defendants Anacleto Berana and Hilaria Gamboa, as sureties, executed a bond in favor of the municipality whereby they bound themselves to strictly comply with the condition stipulated, and in case of court action to pay the sum of P2,000 as liquidated damages; the spouses Cantos failed to remove the building as agreed upon, and so on August 10, 1946, said spouses were served with notice by the municipality informing them of the imperative necessity to remove the building in view of the urgent need it has of the site for school purposes, and as said spouses failed to heed the demand, the present action was brought. The counterclaim of the defendants contains the following averments: plaintiff municipality is the owner of the parcel of land situated in a commercial zone on which it built and a school building known as Batangas Elementary School No. 2; this property was not appropriate for school purposes as

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the motor and the other vehicular traffic along the streets bordering he same endanger the lives of the children attending the school and so the Division Superintendent of schools recommended that it be sold and another more suitable property be acquired for school purposes; sometime in April, 1940, the spouses Cantos offered to buy the property for P30,000; this offer was rejected in Resolutions Nos. 132 and 136 of the municipal Council of Batangas, but later the action was reconsidered and Resolution No. 126 was approved recommending the sale at public auction of the property for the sum of P30,000, but before the sale could be carried out; on April 9, 1943, Resolution No. 20 was approved authorizing the lease of a portion of the property to spouses Cantos for a period of five years at a yearly rental of P120, and on July 1, 1943, the corresponding contract of lease was executed; spouses Cantos constructed a theater building thereon and equipped the same with the necessary cinematograph machinery and accessories, and after its constructions, it was operated and opened to the public until shortly before the liberation of the Philippines; in the early part of 1945, spouses Cantos sought to retake possession of the building, but acting mayor Jose Caedo, instead of acceding to the request, denounced the theater as enemy property as a result of which it was taken possession by the United States Military authorities; after certain effort on their part, the spouses were able to regain possession of the theater from the military authorities and applied to the municipal authorities of Batangas for a permit to resume the operation of the theater, but far from granting their request, the then mayor Pedro M. Bernabe reffered the matter to the municipal council which on October 16, 1945, approved Resolution No. 24 declaring null and void the contract of lease entered on July 1, 1943, and on October 26, 1945, said spouses were obliged to execute a contract whereby they promised to demolish the building on or before April 15, 1946 (Exhibit "B"); considering said contract exhibit "B" to be null and void because their consent was obtained through fraud, deceit and intimidation, spouses Cantos refrained from demolishing the theater is stipulated and informed the municipal authorities of their decision and accordingly; and because of this attitude of spouses Cantos, the municipal authorities made the use of authorities made use of the police force to take possession of the theater and placed guards thereon with instructions not to permit the spouses to enter it thus preventing them from enjoying a right by law belongs to them. These special defense are practically reiterated in this appeal by this appeal by appellants with the addition of the ground invoked in their motion to dismiss to the effect that this case, being one of unlawful detainer, comes within the exclusive jurisdiction of the justice of the peace court of Batangas. The claim that the nature of the action instituted by the plaintiff is one of unlawful detainer is not well taken. A mere perusal of the complaint will clearly show that its purpose is to exact specific performance of the contract entered into by the plaintiff and the spouses Cantos on October 27, 1945, whereby the latter bound themselves to vacate the premises leased and to remove the building they had constructed thereon or before April 15, 1946. There is no allegation in the complaint that the defendants are still in possession of the premises leased which would necessitate their ejection therefrom so much so that in the prayer the only relief invoked by the plaintiff is an injunction directed against said spouses, including their bondsmen, ordering them to remove the building they had constructed thereon at their expense in accordance with their stipulation. That this is exactly the situation of the parties is well understood by the defendants so much so that in their answer, far from alleging the defense of jurisdiction, they concentrated their effort in disputing the validity of the contract exhibit "B" upon the plea that it was executed by the spouses Cantos through force, deceit and intimidation. It was only later when they thought of invoking this defense in a separate motion to dismiss. Another circumstance which negatives their contention that the nature of this action is one of unlawful detainer is their express allegation in their answer that the plaintiff had already taken possession of the leased premises, including the theater, when the municipal authorities came to realize that the defendants adopted an unflinching determination not to demolish the theater because of their belief that said contract was illegal and has no binding effect upon them. The attitude of the defendants in bringing into this case the cross-defendants who intervened in the execution of the disputed contract in an attempt to make them responsible for certain punitive damages they have allegedly suffered, furnishes another proof of their understanding and that the nature of the action is really one of specific performance. We are, therefore, of the opinion that the lower court did not err in denying the motion to dismiss. Defendants contend that Resolution No. 24 approved by the municipal council of Batangas on October 16, 1945, declaring null and void the contract of lease exhibit "1", entered into on July 1, 1943 on the ground that the property in question is of public use, and cannot be the subject of a private contract as decided by the Supreme Court in Cavite vs. Rojas, 30 Phil. 603, has been illegally approved, and as a corollary the contract exhibit "B" which was subsequently entered into in the line with the suggestion contained in resolution No. 24, is also null and void, and they predicate their contention upon the ground that the property in question has already become patrimonial or private property of the municipality of Batangas for the reason that said municipality has long abondoned its plan of using it for school purposes because it was not appropriate for school in view of its proximity to the street and the danger it offers to the lives of the school children. They contend that if that property to be considered patrimonial or private property of the municipality, the resulting conclusion is that the contract exhibit "1" is valid and binding, whereas the contract exhibit "B" is null and void, there is no contract to enforce and so the complaint must fail for lack of sufficient cause of action. The claim that the leased premises have ceased to be public property and have become patrimonial or private property of the municipality of Batangas has no foundation in fact nor in law. The evidence shows that the leased premises were only a portion of parcel of land owned by the

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municipality of Batangas containing an area of about 7,104 square meters on which the municipality had built prior to the war a school building which was known as the Batangas Elementary School No. 2. This property has always been devoted to school purposes. It is true that the school building was destroyed or burned by the retreating Philippine-American Forces on December 26, 1941, and for that reason the Division Superintendent of Schools has recommended that the property be sold and another one be acquired which is more suitable for school purposes and, in line with said recommendation, the municipal council of Batangas recommended its sale for the sum of P30,000; but war broke out and the sale was never carried out. The offer of spouses Cantos to purchase it was never accepted. The plan to buy a new lot did not materialize. Then this plan was abondoned and immediately after liberation the municipal authorities decided to resume its previous plan of using the property for school purposes. On the face of these facts, which stand undisputed, no other feasible conclusion can be drawn than that the property continued to be as it was before, one dedicated to public use, a purpose which was later reiterated by the municipal authorities after liberation. The mere attempt to sell the property with the idea of acquiring another one more suitable for school purposes did not have the effect of destroying its nature as to convert it into a patrimonial or private property of the municipality. Granting, for the sake argument, the Resolution No. 24 did not have the effect of nullifying the contract of the lease exhibit "1", or that it was not novated by the subsequent contract entered into between the parties on October 27, 1945, as claimed by the defendants, the situation obtaining would be the same from the point of view of the plaintiff in view of the fact that under said contract exhibit "1" the defendants Cantos have expressly agreed to lease the property subject to the express condition that the municipality can rescind or annul the same "at any time that the municipality of Batangas would need the aforementioned site leased for any important purpose which may arise during the duration of the contract." It appears that immediately after liberation, the municipal authorities of Batangas decided to resume their school activities as a means to restore normally to the life of the people and demanded from the spouses Cantos the return of the property because it was urgently needed for school purposes, and it cannot be denied that this is an important purpose which squarely comes within the purview of the contract of the parties. Whether this case is viewed under the original contract exhibit "1" or under the subsequent contract with exhibit "B", concluded between the municipality of Batangas and the spouses Cantos, the right of municipality to terminate the contract of lease and to demand from the defendants the removal of the building they had constructed on the leased premises is clear and cannot be disputed. We are, however, of the opinion that the contract exhibit "B" is valid an binding because the same had been entered into voluntary and merely as a concession on the part of the municipality to give to the spouses Cantos an opportunity to remove the building within a reasonable time and as their interest and convenience may warrant. Their contention that they executed said contract through force, deceit and intimidation is not supported in any evidence. Rather the evidence shows that said contract is but a mere implementation of the original contract wherein the municipality served notice upon the defendants of its desire to terminate the lease as early as possible and to have the property returned in the same condition as it was before. We do not find any error in the decision of the lower court. Wherefore, the decision appealed from is hereby affirmed, with costs against the appellants. Paras, C.J., Feria, Tuason, J., concurs in the result. G.R. No. L-7909 Pablo, Bengzon, Padilla, Montemayor and Labrador, JJ., concur.

January 18, 1957

CIPRIANO E UNSON, petitioner-appellant, vs. HON. ARSENIO H. LACSON, as Mayor of the City of Manila, and GENATO COMMERCIAL CORPORATION, respondents-appellees. Plantilla, Unson and Limjoco for appellant. City Fiscal Eugenio Angeles and Assistant City Fiscal Arsenio Naawa for appellee Mayor Lacson. Arturo A. Alafriz for appellee Genato Commercial Corporation. CONCEPCION, J.: This is an action to annual a municipal ordinance and cancel a contract of lease of part of "Callejon de Carmen," in the City of Manila. Its Mayor and the Genato Commercial Corporation hereinafter referred to as Genato, for the sake of brevity lessor and lessee, respectively, under said contract, are the respondents herein. After due trial, the Court of First Instance of Manila rendered a decision dismissing the petition, with costs against the petitioner, who has appealed from said decision. The case is before us the validity of a municipal ordinance is involved therein. Petitioner, Cipriano E. Unson, is the owner of Lot No. 10, Block 2537, of the Cadastral Survey of the City of Manila, with an area of 1,537.20 square meters, more or less. It is bounded, on the North, by R. Hidalgo Streets; on the East or Northeast, by Lot No. 12, belonging to Genato, and, also, by a narrow strip of land running eastward (from 1.68 to 2.87 meters in width and from 29.90 to 28.4 meters in lenght), known as Lot No. 11 (of about

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123.7 squares meters), which the City of Manila regards as its patrimonial property; on the West, by private property whose owner is not named in the record; and on the South or Southeast, by a strip of land, narrower than Lot 11, running from East to West (about 1.68 meters in which in width and 26.14 meters in lenght, or an area of about 45 square meters, more or less), known as Lot No. 9, which is also claimed by said City as its patrimonial property. Immediately South of this Lot No. 9 is the Northern half of Callejon del Carmen, which is separated from its Southern half by the Estro de San Sebastian. Several structures exist on the lot of petitioner Unson. There is a sizeable building on the Northern part, adjoining R. Hidalgo Street, and a small building known as "Commerce Building" on the Southern portion, which adjoins the aforesaid Lot No. 9. Unson's lot is, and for several years has been leased to the National Government, for use by the "Mapa High School", as "Rizal Annex" thereof, which has an enrollment of over 1,500 students. On or about September 28, 1951, the Municipal Board of Manila passed Ordinance No. 3470 withdrawing said Northern portion of Callejon del Carmen from public use, declaring it patrimonial property of the City and authorizing its lease to Genato. The ordinance provides: SECTION 1. Those portions of the Callejon del Carmen, Quiapo, having an aggregate area of 709.27 square meters and adjacent to the premises of the Genato Commercial Corporation, are hereby withdrawn from public use. SEC. 2. The above piece of land described in Section 1 hereof is hereby declared as patrimonial property of the government of the City of Manila. SEC. 3. The lessee of the aforesaid city property with an aggregate area of 709.27 square meters to Genato Commercial Corporation at a monthly rental of P0.20 per square meters is hereby authorized. SEC. 4. This Ordinance shall take effect upon its approval. (Exhibit 2-A, p. 10, Folder of Exhs.) Upon approval of this ordinance by the City Mayor, the lease contract therein mentioned (pp. 13-21, Record on Appeal) was entered into and Genato constructed a building on said portion of Callejon del Carmen, at a distance of about 0.765 meter from the Southern boundary of said Lot No. 9. This strip of Callejon del Carmen and said Lot No. 9 thus form an open space of about 2.445 meters in width, more or less, separating said building constructed by Genato and the "Commerce Building" on Unson's lot. Prior thereto, the latter had, on its Southern boundary, two (2) exits on Callejon del Carmen, which exits had to be closed upon the construction of said building by Genato. Hence, alleging that Ordinance No. 3470 and the aforementioned contract of lease with Genato are illegal, petitioner instituted this action, with the prayer (a) That respondent Genato Commercial Corporation be immediately enjoined from doing further work in the construction of a wall/or building on that portion of Callejon del Carmen leased to them immediately upon the petitioner's filing a nominal bond of P500.00, in such other amount as the court may fix; (b) That, after trial, the injunction above-mentioned be made permanent, and ordering the respondent Genato Commercial Corporation to remove whatever construction has been done by them on said property; (c) That, also after trial, the Hon. Arsenio H. Lacson, Mayor of the City of Manila, be ordered to cancel or revoke the building permit and the lease granted to him over the Callejon del Carmen to the Genato Commercial Corporation; (d) That respondents be ordered to pay the costs of this suit: and for whatever equitable relief this Honorable Court may deem just and proper under the premises. (Record on Appeal, p. 5). The respondents filed their respective answers maintaining the legality of the municipal ordinance and the contract of lease in question, and, after due trial, the lower court rendered its aforementioned decision dismissing the case, upon the ground that as owner of Callejon del Carmen, the City of Manila "has full authority to withdraw such alley from public use and to convert it into patrimonial property" and that . . . The City of Manila as owner has the right to use and to dispose of such alley without other limitations that those established by law (Article 428, New Civil Code), so that when the city of Manila withdrew it from public use and converted it into patrimonial property, it simply exercised its right of ownership. The fact that in the Manila Charter there is no provision authorizing the Municipal Board to withdraw from public use a street and to convert it into patrimonial property, can not be construed to mean that the Municipal Board has no right at all to do so. That would be a negation of its right of ownership. Section 18, letter (x),of the Manila Charter gives the Municipal Board power and authority to lay out, construct and improve streets, avenues, alleys, sidewalks, etc. and as corollary to that right is the right to close a street and to convert it into patrimonial property. Furthermore, Ordinance No. 3470 of the Municipal Board was submitted to and approved by the National Planning Commission. This body was created by an executive order of the President of the Republic, and vested with the power and authority to lay out, construct, vacate, and close

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streets, avenues, sidewalks, etc. Assuming that the power and authority to vacate or close a street rest with the State, this power as delegated to the National Planning Commission by the President in the exercise of his emergency power, and when this body approved said ordinance, it did so in the exercise of the power delegated to it by the State. Hence the validity of the ordinance is unquestionable. (Record on Appeal, pp. 27-29.) Hence, this appeal taken by petitioner Unson, who insists that said Municipal Ordinance No. 3470 is illegal and, accordingly, that the aforementioned contract of lease between Genato and the City of Manila is null and void. In this connection, respondents have been unable to cite any legal provision specifically vesting in the City of Manila the power to close Callejon del Carmen. Indeed, section 18 (x) of Republic Act No. 409 upon which appellees rely authorizes the Municipal Board of Manila, "subject to the provisions of existing laws, to provide for the laying out, construction and improvement . . . of streets, avenues, alleys . . . and other public places," but it says nothing about the closing of any such places. The significance of this silence becomes apparent when contrasted with section 2246 of the Revised Administrative Code, explicitly vesting in municipal councils of regularly organized municipalities the power to close any municipal road, street, alley, park or square, provided that persons prejudiced thereby are duly indemnified, and that the previous approval of the Department Head shall have been secured. The express grant of such power to the aforementioned municipalities and the absence of said grant to the City of Manila lead to no other conclusion than that the power was intended to be withheld from the latter. Incidentally, said section 2246 refutes the view, set forth in the decision appealed from, to the effect that the power to withdraw a public street from public use is incidental to the alleged right of ownership of the City of Manila, and that the authority to close a thorough fare is a corollary to the right to open the same. If the ownership of the public road carried with it necessarily the unqualified right of a municipal corporation to close it, by withdrawing the same from public use, then Congress would have no power to require, as a condition sine qua non, to the exercise of such right, either the prior approval of the Department Head or the payment of indemnity to the persons injured thereby. Again, pursuant to section 2243 of the Revised Administrative Code, the municipal council of regular municipalities shall have authority, among others: (a) To establish and maintain municipal roads, streets, alleys, sidewalks, plazas, parks, playgrounds, levees, and canals. If, as the lower court held, the power to "construct" an alley entailed the authority to "close" it, then section 2246, above referred to, would have been unnecessary. To our mind, the main flaw in appellees' pretense and in the position taken by his Honor, the trial Judge, is one of perspective. They failed to note that municipal corporations in the Philippines are mere creatures of Congress; that, as such, said corporations possess, and may exercise,only such power as Congress may deem to fit to grant thereto; that charters of municipal corporations should not be construed in the same manner as constitutions;1 and that doubts, on the powers of such corporations, must be resolved in favor of the State, and against the grantee. 2 Lastly, the authority of the local governments to enact municipal ordinances is subject to the general limitation that the same shall not be "repugnant to law". This is so by specific provision of section 2238 of the Revised Administrative Code, as well as because Congress must be presumed to have withheld from municipal corporations, as its agents or delegates, the authority to defeat, set at naughty or nullify its own acts (of Congress)unless the contrary appears in the most explicit, indubitable, and unequivocal manner and it does no so appear in the case at bar. What is more, section 18(x) of Republic Act No. 409, positively declares that the power of the City of Manila to provide for the construction of streets and alleys shall be "subject to the provisions of existing law. . . . However, the ordinance and the contract of the lease under consideration are inconsistent with Article 638 of the Civil Code of the Philippines, the first paragraph of which reads: The banks of rivers and streams, even in case they are of private ownership, are subject throughout their entire length and within a zone of three meters along their margins, to the easement of the public use in the general interest of navigation, float age, fishing and salvage. Obviously, the building constructed by Genato on the portion of Callejon del Carmen in dispute renders it impossible for the public to use the zone of three meters along the Northern margin of the Estero de San Sebastian for the purposes set forth in said Article 638. We are not unmindful of the cases of Ayala de Roxas vs. City of Manila (6 Phil., 251) and Chang Hang Ling vs. City of Manila (9 Phil., 215), in which this Court refused to enforce a similar easement provided for in Article 553 of the Civil Code of Spain upon private property adjoining the Estero de Sibacong and the Estero de la Quinta, respectively. The decisions in said cases were predicated, however, upon the fact that, under the Spanish Law of Waters, "the power of the administration do not extend to the establishment of new easements upon private property but simply to preserve old ones," and that, pursuant to the Philippine Bill (Act of Congress of July 1, 1902) and Article 349 of the Civil Code of Spain, no one shall be deprived of his property, except by competent authority and with sufficient cause of public utility, always after proper indemnity. These considerations are inapplicable to the case at bar, for, as regards Callejon del Carmen, the aforementioned easement of public use is not new. Besides, said alley is not private property. It belongs to the State.3 And, even if it were for it is not patrimonial property of the City of Manila, the same as a creature of Congress, which may abolish

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said municipal corporation and assume the power to administer directly the patrimony of the City, for the benefit of its inhabitants cannot so use or dispose of said alley as to defeat the policy set forth in the said Article 638 by the very legal creator of said political unit. (III Dillon on Municipal Corporations, pp. 1769-1771, 1781-1783,1803-1804.) It is urged, however, that the absence of authority of the Municipal Board of Manila has been cured by the fact that Ordinance no. 3470 had been approved by the National Urban Planning Commission. This pretense in untenable for: 1. In the case of the University of the East vs. The City of Manila (96 Phil., 316), decided on December 23, 1954, we held, in effect, that the grant of powers to the National Urban Planning Commission, under Executive Orders Nos. 98 and 367, amounted to an undue delegation of legislative powers, for lack of "specific standards and limitations to guide the commission in the exercise of the wide discretion granted to it." 2. Said Commission created by the Executive Order No. 98, dated March 11, 1946, pursuant to the emergency powers of the President under Commonwealth Act No. 671, could not possibly confer upon the City of Manila any power denied thereto by its New Charter Republic Act No. 409 not only because said emergency powers became inoperative as soon as Congress met in regular sessions after the liberation of the Philippines (Aranetavs. Dinglasan, Rodriguez vs. Treasurer of the Philippines, Guerrero vs. Com. of Customs, and Barredo vs.Commission on Elections, 45 Off. Gaz., 4411, 4419; Rodriguez vs. Gella, 49 Off. Gaz., 465), but, also, because in case of conflict between said executive order, dated March 11, 1946, and the aforementioned Republic Act. No. 409, which was approved, and became effective, on June 18, 1949, the latter must prevail, being posterior in point of time, as well as act of the principal (in relation to the emergency powers delegated to the President, by Commonwealth Act No. 671), which must prevail over that of the agent. 3. Pursuant to said executive order, the acts of the municipal corporations, relative to the reconstruction and development of urban areas even if within the scope of the general authority vested in said local governments by the charters thereof shall be ineffective unless approved by the National Urban Planning Commission, or in accordance with the plans adopted or regulations issued by the same. In other words, the purpose of said executive order was not to enlarge the powers of local governments, but to qualify and limit the same, with a view to accomplishing a coordinated, adjusted, harmonious reconstruction and development of said urban areas. 4. Properties devoted to public use, such as public streets, alleys and parks are presumed to belong to the State. Municipal corporations may not acquire the same, as patrimonial property, without a grant from the National Government, the title of which may not be divested by prescription (Municipality of Tigbauan vs. Director of Lands, 35 Phil., 584). Hence, such corporations may not register a public plaza (Nicolas vs. Jose, 6 Phil., 598). A local government may not even lease the same (Municipality of Cavite vs. Rojas, 30 Phil., 602). Obviously, it may not establish title thereto, adverse to the State, by withdrawing the plaza and, hence, an alley from public use and declaring the same to be patrimonial property of the municipality or city concerned, without express, or, at least, clear grant of authority therefor by Congress. 5. In fact, the Department of Engineering and Public Works of the City of Manila had objected to the lease in question, upon the ground that Callejon del Carmen is communal property. In its 1st indorsement of June 4, 1953, to the City of Mayor, said department used the following language: 1. Records in the present lease of Genato Commercial Corporation of a portion of City property measuring 709.27 square meters, more or less, show that this Office had consistently been strongly against the lessee of this City property . Even before the passage of Ordinance No. 3470 (withdrawing from public use those portions of Callejon del Carmen, Quiapo, adjacent to the premises of Genato Commercial Corporations; declaring the same as patrimonial property of the government of the City of Manila and authorizing the lease of said City property with an aggregate area of 709.27 square meters to Genato Commercial Corporation at a monthly rental of P0.20 per square meter), this office had voiced its vigorous protest to the lease of this City property to Genato Commercial Corporation several times, in view of the fact that the lots applied for are communal property which can not be leased or otherwise disposed of (Cavite vs. Roxas, 30 Phil., 602).This Office had registered its strong objection to the lease of this property as per our 2nd Indorsement dated Aug. 2, 1951, 4th Indorsement dated August 7, 1951 and 3rd Indorsement dated August 27, 1951, all of which were submitted by this Office prior to the enactment of Ordinance 3470 on September 28,1951 and its subsequent approval on October 3, 1951. . . . It can, therefore, clearly be seen from the foregoing, that this Office had been strongly against the lease of this City property in view of the fact that this is a communal property. The property herein applied by Mr. Francisco G. Genato is also communal property of the City of Manila and disapproval of the same is strongly recommended. (Exhibit C, pp. 4-5, par. 1, Folder of Exhibits; emphasis supplied.) Wherefore, the decision appealed from is hereby reversed and another one shall be entered declaring Ordinance No. 3470, as well as the contract of the lease in dispute, null and void, with costs against the respondents. It is so ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J.B.L., and Endencia, JJ., concur. G.R. No. L-5543 December 9, 1910

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THE MUNICIPALITY OF TACLOBAN, petitioner-appellee, vs. THE DIRECTOR OF LANDS, opponent-appellant. Attorney-General Villamor, for appellant. TORRES, J.: On April 6, 1908, the municipal president of Tacloban, in behalf of his municipality, presented a written application in the court of Land Registration, soliciting the registration of a parcel of land, of which the said municipality is the absolute owner according to the Land Registration Act, situated in the town proper of Tacloban and bounded on the north by Calle Gran Capitan, on the south by Calle San Roque, on the east by Calle San Juan, and on the west by the lands of Juliana Daylo and Norberto Romualdez, containing 4,055.91 square meters and whose description, meters, and bounds are set forth in the plan accompanying the application. It was represented that the said property was appraised at the last assessment, levied for the purpose of the payment of the land tax, at $811 United States currency, and the buildings at $11,250 United States currency; that the said land was acquired at a very remote date as a gift from various landowners who were then residents of the pueblo of Tacloban; that there was no encumbrance of any kind on the property, and no person other than the applicants who had any right or interest therein; that the land was occupied by three buildings of strong materials: two primary public schools and the municipal building now occupied by the provincial high school of Leyte; and that, in the improbable event of the said application not being in accordance with the Land Registration Act, the benefits provided in chapter 6 of Act no. 926 would be invoked, inasmuch as the municipality had been in possession of the land since time immemorial, and for seventy years past, more or less, had used it for building purposes, the property being inclosed on all sides by a board and bamboo fence. In consequence of the summons and publications made by the Court of Land Registration, the Attorney-General, in behalf of the Director of Lands, opposed the registration applied for' and alleged that the land in question belonged to the Government of the United States and was under the control of the Government of the Philippine Islands, and asked that the said application be denied. The case was heard on January 18, 1909, and testimony having been produced by both parties, the court, in view of the findings reached thereby and on the same date, rendered judgment by decreeing the adjudication and registration of the land described in the application and plan presented, which were attached to the record, a general default first having been ordered to be recorded in accordance with the provisions of Act No. 496. The Solicitor-General excepted to this judgment and moved for a new hearing on the grounds that findings of fact of the court were contrary to the weight of the evidence, that the evidence did not sufficiently warrant the judgment, and that the latter was contrary to law; and the proper bill of exceptions being presented, it was certified and forwarded to the clerk of this court. As the decision rendered by this court in case No. 5631, 1 originating in the Court of Land Registration and brought before us on appeal by the Attorney-General in representation of the Director of Lands, refers to the inscription in the Court of Land Registration of a parcel of land situated within the town of Catbalogan, the capital of the Province and Island of Samar, which land had been and was occupied by the court-house or municipal building of the said pueblo, so likewise the present decision concerns the inscription in the Court of Land Registration of a parcel of land situated within the town of Tacloban, the capital of the adjoining Province and Island of Leyte, which land is at present occupied by three buildings of strong materials and serve, two of them, as primary schools for both sexes, and the other as the courthouse or municipal building of the said pueblo and a part of which is devoted to the use of the provincial high school. The question submitted to this court for decision, through the appeal by the Attorney-General in representation of the Director of Lands, is whether the lot, at present occupied by two public school buildings and the municipal building of Tacloban and also used as quarters for the provincial high school, belongs to the municipality, or is public Government land under the control of the Government of these Islands. Whereas the land in litigation is now occupied by the court-house or municipal building of Tacloban, the capital of Leyte, and in order to avoid annoying repetitious, the relevant part of the decision rendered in case No. 5631, concerning the registration of land occupied by the municipal building or court-house of the pueblo of Catbalogan, the capital of Samar, is herein reproduced and is of the following purport (219-221): In order to obtain a better understanding of the final conclusion to established this decision, it is meet to state: That for the purpose of the establishment of new pueblos in this archipelago, at the beginning of its occupation by the Spaniards, an endeavor was always made to find, in favorable places, a certain number of inhabitants and, later, near the pueblos already established, barrios, which ordinarily served as a basis for the formation of other new pueblos that became as populated as the centers on which they were defendant.

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The executive authorities and other officials who then represented the Spanish Government in these Islands were obliged to adjust their procedure, in the fulfillment of their duties, with regard to the establishment and laying out of new towns, to the Laws of the Indies which determined the course that they were to pursue for such purposes, as may be seen by the following: Law 6, title 5, book 4, of the Recompilation of the Laws of the Indies, provides, among other things: "That within the boundaries which may be assigned to it, there must be at least thirty residents and each one of them must have a house, etc." Law 7 of the same title and book contains this provision: "Whoever wishes to undertake to establish a new town in the manner provided for, of not more than thirty nor less than ten residents, shall be granted the time and territory necessary for the purpose and under the same conditions." It may be affirmed that years afterwards all the modern pueblos of the archipelago were formed by taking as a basis for their establishment the barrios already populated by a large number of residents who, under the agreement to build the church of the new pueblo, the court-house and afterwards the schoolhouse, obtained from the General Government the administrative separation of their barrio from the pueblo on which it depended, in whose territory it was previously comprised. In such cases a procedure analogous to that prescribed by the Laws of the Indies was observed. For the establishment, then, of new pueblos, the administrative authority of the province, in representation of the Governor-General, designated the territory for their location and extension and the metes and bounds of the same; and before alloting the lands among the new settlers, a special demarcation was made of the places which were to serve as the public square of the pueblo, for the erection of the church and as sites for the public buildings, among others, the municipal buildings or the casa real, as well as of the lands which were to constitute the commons, pastures, and propios of the municipality, and the streets and roads which were to intersect the new town were laid out as may be seen by the following laws: Law 7, title 7, book 4, of the Recompilation of the Laws of the Indies, provides: "The district of territory to be given for settlement by composition shall be alloted in the following manner: There shall first be set apart the portion required for the lots of the pueblo, the exido or public lands, and pastures amply sufficient for the stock which the resident may have, and as much more as propios del lugar, or common lands of the locality; the rest of the territory and district shall be divided into four parts one of them, of his choice, shall be for him who takes upon himself the obligation to found the pueblo, and the other three parts shall be apportioned equally among the settlers." Law 8, of the same title and book, prescribes, among other things: "That between the main square and the church there shall be constructed the casa reales or municipal buildings, the cabildo, concejo, customs buildings, etc." Law 14 of the said title and book also directs among other things: "That the viceroys shall have set aside such lands as to them appear suitable as the common lands (propios) of the pueblos that have none, therewith to assist in the payment of the salaries of the corregidores and sufficient public lands (exidos) and pasture lands as provided for and prescribed by law." Law 1, title 13 of the aforesaid book, provides the following: "Such viceroys and governors as have due authority shall designate to each villa and lugar newly founded and settled the lands and lots which they may need and may be given to them, without detriment to a third party, as propios, and a statement shall be sent to us of what was designated and given to each, in order that we may have such action approved." The pueblo and municipality of Tacloban, as the capital of the Island and Province of Leyte, must have been one of the first of the pueblos established and of which the said province is composed and there being no record that its casa real or municipal court-house was erected on any other or different land, it is to be presumed that, on founding that pueblo and on the competent authority proceeding to designate and demarcate the area of land to be occupied as a site and for the future extension of the town of Tacloban, with its square, streets, and lots of the temple and other public buildings, the lot in question was also designated for the court-house, in accordance with the laws hereinbefore mentioned, and in fact the municipal building was erected thereon very long ago, more than thirty years, according to the witnesses examined, and the municipal president, the

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applicant, averred that the pueblo of Tacloban had acquired the said lot by donation and had possessed it since time immemorial. It is also to be presumed that the adjudication of the said land in favor of the municipality to enable it to build its court-house thereon, was duly confirmed by the Spanish Government, as must be inferred, without proof to the contrary, in view of its continuos and peaceable possession for so long a period extending to the present time; nor does the record show that any other lot or different parcel of land was adjudicated to it, inasmuch as it was necessary and absolutely indispensable that every pueblo established should have its own casa real or court-house, the seat to its local authority, and also a church where its in- habitants might worship God. For the reason, other paragraphs of the said decision are quoted here below and are as follows (pp. 22-224): It is to be noted that, in former times, the court-house buildings of the pueblos were called casas reales(royal buildings), indoubtedly for the purpose of giving greater dignity to the principle of authority represented in them and inculcating respect among the inhabitants of the pueblo toward the building where the first local authority exercised his governmental duties and at the same time administered justice, for the old pedaneos or petty mayors, later called capitanes or gobernadorcillos, while they had governmental powers, at the same time administered justice as local judges. In paragraph 92 of the royal ordinances of February 26, 1768, the following appears, among other things: "And because, while there is a notable excess of pomp in the buildings of the doctrinary ministers and parish priests, there is, on the other hand, great abandonment of the casas reales which, as a general rule, are not habitable on account of their inconvenient and ruinous condition, etc., . . . it is ordered that in all the pueblos, and specially in those of the seats of government, the native inhabitants thereof shall erect decent and convenient municipal buildings modeled after the plans to be furnished by the Central Government, and that therein the gobernadorcillos shall have their court rooms and their jails for the security of prisoners, and all leaks and other damages shall be repaired in time in order that, through omission, they may not cause greater detriment and expense." If the inhabitants of a pueblo, at the time of its foundation, were obliged to erect their casa real or municipal building, it is to be supposed that they built it on their own ground after a designation of the site had been made by the government authority of the province a designation which had to be made, according to the Laws of the Indies, at the same time with that of the main plaza and of the site to be occupied by the temple or church, which latter building is so necessary and indispensable for every pueblo, as well as the casa realor court-house, since in them, respectively, divine worship is had and the local authorities perform their duties. The land designated for the church is considered to belong thereto, and likewise the land intended for the court-house should be deemed to be the property of the pueblo awarded to it for the purposes of the public service of the municipality, since no pueblo was able to exist administratively without having a church of its own and a court-house which should be the seat of its local authority and its municipal government. It should be remembered that the court-house and the church of every pueblo were always built, in accordance with the provisions of the Laws of the Indies, on one of the sides of the plaza mayor or main square of the town, when not on the lateral line it self, each building on an opposite side; but the said square occupies nearly always a central site within the territory of the pueblo, with the exception of the frequent case where the town has extended toward only one end or side of the territory, in which event its main square ceased to be in the center of the town. However, the said square was never located outside of the inhabited place, as were the common and pasturages. (Law 13, title 7, book 4, Recompilation of the Laws of the Indies.) In the document Exhibit B, which is a certified copy of the minutes of the session held by the municipal council and the principal elders of the pueblo of Tacloban on September 23, 1910, it appears to have been recorded, among other things, that the lands belonging to the municipality are the lots where the municipal building and the school-houses for both sexes are built and, in front of these constructions, the public square, on one side of which stands the parochial church. From this description it is inferred that the said municipal building and shoolhouses are situated, together with the square and the church, in a central part of the town of Tacloban, where, in accordance with the express provisions of the Laws of the Indies, they should have been established, and the said buildings could not have been erected and the plaza mayor or main square located outside the town; therefore it can neither be presumed nor concluded that the land converted into a public square and the lots on which the parochial church and the schoolhouses now stand formed a part of the terreno comunal, exido or public pasturage land of the pueblo before mentioned. The land in controversy belongs to the municipality of Tacloban. Taking into account that neither the court-house of a pueblo not is schoolhouses were constructed outside the town proper, at a distance from its inhabitants, the existence on the said land of two public schoolhouses, erected a great may years ago and used for purposes of instruction of children of both sexes residing in Tacloban, supports the characterization of the property as being private ( bien propio), or part of the municipal assets, which is the status of the aforementioned land, and therefore the lot on which the said municipal building and schoolhouses are built is not a

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part of an exido, dehesa (public pasturage), or terreno comunal (common), because such lands could only be situated outside of a town, in accordance with the provisions contained in laws 13 and 14, title 7, and 12 and 14, title 12, book 4, and law 8, title 3, book 6, of the Recompilation of the Laws of the Indies, an din No. 53 of the royal ordinances of February 26, 1768. Notwithstanding the circumstances, not very favorable to instruction, which prevailed at that epoch, 1550, it was provided withal, by the sovereign of Spain, in law 18, title 1, book 6 of the Recompilation before cited, that instruction should be given to the natives by teachers who should teach them the Spanish language. Later, in No. 93 of the royal ordinances before referred to, a reminder was given as to compliance with the said Law of the Indies and other old ordinances relative to the establishment in the pueblos of schools under the direction of teachers well versed in the Spanish language, a provision confirmed by royal cedulas of June 11, 1815, and October 20, 1817, which emphasized the need of the establishment of schools for the instruction and education of the boys and girls. By royal cedula of November 14, 1816, especially addressed to the "Governor, Captain-General of the Philippines," the king of Spain prescribed that For this purpose it is ordered, by the laws and ordinances of the Indies and by various royal cedulas issued for their execution, especially those of January 28, 1778, November 5, 1782, and June 7, 1815, that the construction of the said schoolhouses be proceeded with in such pueblos of the Indies where there are none. . . . And having again taken this matter into consideration, and desiring to remove the causes which may tend to delay the execution of the orders given, and to facilitate in so far as possible the remedying of the damages complained of by the said delegates, in agreement with the statements made to me by my council of the Indies in the consultation had on January 16 of this year, I hereby authorize you, after obtaining the required and indispensable reports, immediately to provide for the erection and establishment of primary schools in all the pueblos were they may be deemed necessary and proper for the civilization of the Indians. You shall endow these institutions with the revenues and excises specified in the said royal cedulas, and in default thereof, with such others as you may deem more opportune and less onerous, acting on the advice of my royal court, which you shall first consult, and you shall report the action taken to my supreme council for its approval, without prejudice, however, to your carrying it into effect. It is my will that you so. Dated at the palace, November 14, 1816. I, the King. Finally, the royal decree of December 20, 1863, in its article 7, provides as follows: ART. 7. The teachers shall enjoy the salary and other advantages provided for by the regulations. The said salary, as well as the establishment of the school, acquisition and preservation of school material and supplies, and the rent of the building where there be no public one for the purpose, shall constitute and obligatory expenditure to be paid out of the respective local appropriation. So that the existence of schools of learning in the pueblos of these Islands really was a need felt and recognized in those remote times by the sovereign and the governing authorities of this country; and if the schools were, and are, necessary and indispensable for the progress and prosperity of the pueblos, and likewise the temples for divine worship, and the court-house the seat of the authorities for the government and proper administration of a town, it is imperative to recognize that the church, the courthouse and the schoolhouse must have been built on lands comprised within the territory of each pueblo and expressly set aside for the purpose by the superior authority, with whose permission the church, municipal building, and school were erected. No one to this date has doubted that the land on which a church is built belongs to the followers of the faith to which it is dedicated, for the reason that if the government of this country had not, in the name of the sovereign, granted the land required for its construction, churches or temples could not have been built at the time of the foundation of the pueblos. For the same reason, it is of course to be presumed that a lot for the court-house and another for a schoolhouse were granted and awarded to the pueblo while in period of establishment, as propios. A proof that the grant was so made is in the very fact that the said buildings were erected on those lots without opposition or contradiction on the part of the state, or of the superior authorities, under whose permission the buildings in question were constructed for use as schools and a court-house. There are, in fact, pueblos which are without buildings for a court-house and schools, owing either to their absolute lack of means, negligence on the part of their principal residents or of their municipal councils, or to the central government's having provided that the said buildings should be devoted to other uses more suitable to the state, in which latter case the government paid the rental of the urban properties that were used and served as a schoolhouse and as municipal offices. It having been provided in article 3 of the said royal decree of December 20, 1863, that there should be at least one school for males and another for females in each pueblo of these Islands, it was prescribed in article 7, preinserted herein, that the salary of the teachers, the establishment of the school, the acquisition and preservation of school material and supplies, and the rental of the building, where there was no public one for the purpose, should constitute an obligatory expenditure to be paid out of the respective local appropriation. By this legal, administrative provision it is recognized that in some pueblos there are public-school buildings, as in the case of the pueblo of Tacloban, due to the zeal and patriotism of their

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principal residents; and it must be concluded that the court-house and the two schoolhouses aforementioned, together with the land on which they are erected, are, for lack of proof to the contrary, the private property of and belong to the said municipality and form a part of its municipal funds or assets. In technical administrative terms, bienes propios are cultivated real properties, pasturages, houses or any other property which a city, village, or hamlet has for the payment of the public expenses. The administration of this class of property pertained to the municipalities. It could be alienated after proper procedure and authorization of the competent superior authorities, in accordance with the administrative laws. It is therefore unquestionable that the assets of each pueblo comprised its bienes propios and the revenues or products derived therefrom, and this fact is recognized in the "ordenanza de intendentes" of 1786, the forty-seventh article of which reads: The funds which any pueblo may have left over as an annual surplus from the products of its propios and itsarbitrios, after meeting the expenses specified in its own particular ordinance, shall be invested in the purchase of real estate and revenue-bearing investments, so that, having a sufficient income for the payment of its obligations and to aid in defraying its ordinary needs, the excise taxes, which are always a burden to the public, may be abolished; and in case it should have no such taxes, nor annuities to redeem on its propios or common properties, the said surplus shall be applied to promote establishments useful to the pueblo and to this province, any such investment to be previously proposed by the intendentes and approved by the junta superior. Many years afterwards the royal decree of May 19, 1893, confirmed the old legislation by defining, in its twenty-fourth article, the property and revenues which constitute the assets of the pueblos, and which are, among others: 4 The revenues and products of urban and rustic properties belonging to the pueblo. From this, the conclusion is drawn that the pueblos may have and hold revenue-bearing property of their own, and with all the more reason if the property had by a municipality is dedicated to the public service, as are the buildings and lot possessed under title of ownership by the municipality of Tacloban and which, without any doubt whatever, from a part of its municipal estate or assets, in accordance with the provisions of the said royal decree of May 19, 1893. From the aforementioned decision rendered in case No. 5631, relative to the registration of certain real property belonging to the municipality of Catbalogan, the following quotations are also taken (pp. 225, 226): The said municipality is to-day in possession of the land in litigation, as the owner thereof, under the protection of the civil and administrative laws which guarantee the right of ownership of the corporations that are capable of contracting, acquiring, and possessing real and personal property. Article 343 of the Civil Code reads: "The property of provinces of towns is divided into property for public use and patrimonial property." Article 344 of the same code prescribes: "Property for public use in provinces and in towns comprises the provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public works of general service supported by the said towns or provinces. "All other property possessed by either is patrimonial, and shall be governed by the provisions of this code, unless otherwise prescribed in special laws." Section 2 of Act No. 82, entitled "A General Act for the organization of municipal governments in the Philippine Islands," is as follows: "Pueblos incorporated under this Act shall be designated as municipalities ( municipios), and shall be known respectively by the names heretofore adopted. Under such names they may sue and be sued, contract and be contracted with, acquire and hold real and personal property for the general interests of the municipality, and exercise all the powers hereinafter conferred upon them. "All property and property rights vested in any pueblo under its former organization shall continue to be vested in the same municipality after its incorporation under this Act." By this last-cited Act, of an administrative character, the rights of the old municipalities to acquire real and personal property, in accordance with their former organization, are recognized, and it is declared that the said property and rights shall continue to pertain to the municipalities created in harmony with the provisions of the Municipal Code, on account of such property being the patrimonial property of the municipalities.

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In accordance with these principle, which harmonize perfectly with both the old and the modern legislation of this country, and taking into consideration the spirit underlying the Laws of the Indies, and the purposes and tendencies of their provisions, ever favorable to the original holders of the land where, under the Spanish sovereignty, new towns were organized, the municipality of Tacloban ought to be considered as the owner of the land on which the municipal building and two schoolhouses, of a building character, were erected, on account of having been awarded to it as its exclusive property, on the founding of the said pueblo, for the record of the case offers no proof nor data whatever contrary to such award or grant. As the said municipality, the applicant has been occupying the property by its own buildings during such a long space of time, much longer than that required for extraordinary prescription (art. 1959, Civil Code), it can not be denied that the presumption exists, in its favor, that it has been holding the land in its character of owner, since the trial record exhibits no proof that any other parcel of land, distinct from that in controversy, was awarded to the said municipality of the erection thereon of its court-house and schools, a church, school, and a municipal building being necessary and indispensable for the normal existence of a regularly constituted pueblo. The title under which the municipality of Tacloban holds and enjoys the land, the registration of which is in question, is the same as that now recognized to exist in favor of the said pueblo in support of its occupancy of the territory within which the town is established with its streets and squares, a title identical with that held at the present time by the church, as a religious institution, to the land now occupied by the temple that exists in the said pueblo. The grant and demarcation of the land to be occupied by the town, as well as the distribution and allotment of the parcels thereof which were to constitute its squares and streets and of those to be occupied by the church, the municipal and other public buildings, and also of the parcels to be apportioned among its first settlers, must all have been set forth in a record made at least in the archives of the provincial government, since it is improbable that it could have been kept in those of the municipal building, considering the changes wrought by time; wherefore it is not at all strange that the first settlers of a town in information should lack their respective titles to accredit their ownership to the parcels of land which fell to each of them in the partition made of the lots, for in those remote times fewer records were kept, the archipelago was sparsely populated and there were abundant lands for distribution, for which reasons the mere fact of the erection of a church, the municipal building, and school, carries with it the presumption that the land on which they are built was alloted to the Church and to the municipality for the public service. No proof whatever was offered at trial against such a presumption, and therefore there exists no legal ground nor equitable reason why the right of the municipality of Tacloban to the land in question ought no to be respective, a right of ownership consecrated by the laws of every civilized country for the benefit of society, of public order, and of civilization itself. lawphi1.net In view of the facts logically and justly supposed and of the legal grounds above noted, it is of course shown that the municipality of Tacloban, as an administrative entity susceptible of rights and duties, has no need to rely upon the right that is derived from prescription in order that it may be held and reputed to be the owner of the land or lot on which buildings belonging to it are erected, for the construction of which the said land was assigned and adjudicated to it when the pueblo was founded, as has been amply proven in the preceding paragraphs. For the purpose of proving that the said land occupied by the court-house and schools of the pueblo of Tacloban, the capital of Leyte, is not comprised within an exido, dehesa, or terreno comunal, it behooves us to state that in the initial foundation of a pueblo in these Islands, in accordance with the provisions of the Recompilation of the Laws of the Indies, lands were marked out for it which had an area such as would be inclosed by a perimeter 4leguas in length, in the figure permitted by the conditions and circumstances of the place. This measure of area was that adopted also when the undertaking of founding a town in a given place, with the authorization of the Government, was intrusted to a private part by virtue of a contract, as when the legitimate representatives of the sovereign motu propio proceeded with the organization of a pueblo in the manner an under the conditions required by the laws in force in that epoch. In either case, on the demarcation of the land to the occupied by the new pueblo and before proceeding to distribute the lots among its settlers, they decided upon the sites for the location of the public square and the streets of the town and the lots on which the temple, the municipal and other public buildings should be constructed, and afterwards they set aside, without the perimeter within which the pueblo was to situated, a certain area of land which was to constitute the exido, dehesa, or terreno comunal, and all in accordance with the Laws of the Indies. So that the square and streets, and the lots to be occupied by the temple, the municipal building, and the schools, could be in no manner situated nor comprised within the terreno comunal, dehesa, or exido of a pueblo, inasmuch as the said lots were necessarily within the town, and the latter lands without it.lawphi1.net Subsequent provisions of law confirm the foregoing statements, and in this connection the royal decree of February 28, 1883, provides: ARTICLE 1. The legua comunal for the Philippine Islands, under the provisions of Law 8, Title 3, Book 6 of the Recopilacion de Indias, so far as the pueblos already established and those which may be established hereafter are concerned, shall be of an area of 20,000 feet, equivalent to a league of 20 degrees, without regard to the geometrical figure resulting from the topography of the locality, or to conditions relating to property rights over the land itself or over land adjoining the same.

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ART. 2. The pueblos not having said land alloted to them may apply and obtain the same by means of the corresponding proceedings. ART. 3. When the conditions so required, the pueblos may institute proceedings to obtain an extension of said comunal land, in order that the latter may be in keeping with the number of inhabitants, the number of heads of cattle owned by them, and the topographical conditions of each pueblo. In order to comply with and carry out the said royal decree, the General Government, on the recommendation of the Direccion General de Administracion Civil, promulgated among other regulations the following: For the legua comunal uncultivated land shall be selected, whenever possible, which may be in proper condition for the pasture of cattle and cultivation of building timber and the necessary industries to meet the requirements of the inhabitants. The area of the land, having been determined by the General Government, the Bureau of Forestry shall proceed with the designation and the setting of boundary marks of the new comunal land, and a certificate shall be executed in the same form as previously stated. And in order to clear up any doubts with respect to the fulfillment of the said royal decree of February 28, 1883, it was provided by royal order of January 17, 1885, that The legua or dehesa comunal shall be situated on uncultivated lands within the territorial limits of the pueblo for whose benefit it was intended and shall not comprise lands belonging to the district of another pueblo. It having been proved in a conclusive manner that the land in litigation is situated within the town of Tacloban and on the side of its public square, it is unquestionable that under no consideration could it be comprised within the pasturage land known as dehesa comunal which, if the pueblo of Tacloban had any, would be outside the perimetrical limits of the town, though within its territorial district, among its uncultivated lands; and therefore the said law 8, title 3, book 6, article 53 of the Ordinances on Good Government, of February 26, 1768, which treats of the comunal lands of the pueblos, and the royal decrees, order, and superior decree before referred to, have no application in the present case, neither does the doctrine established in The City of Manila vs. The Insular Government (10 Phil. Rep., 327) apply, inasmuch as the present case does not concern comunal land, but a lot owned by the municipality of Tacloban, situated in the town, together with the buildings thereon erected, all held by its as property of its own of a patrimonial character, without contradiction or proof of any kind to the contrary. It must not be forgotten that the concession and adjudication of lands or lots for the construction of the temple, the municipal building, and the schoolhouses, were made in obedience to a need at the time of the foundation of the pueblo, while the demarcation and concession of comunal land or dehesa comunal were effected for the convenience of its settlers. We have endeavored to find among the precedents of reported American cases a doctrine opposed to the conclusions herein established, but have found no well-defined one in an analogous case. The decision rendered in the suit of The United States vs. Santa Fe (165 U.S., 675), involves the right acquired through operation of the law by the city of Santa Fe, to 4 square leagues of land in the immediate vicinity thereof, by virtue of a grant made in fact by the laws of the Recopilacion de Indias, a right which was not recognized as legitimate by the Supreme Court and it therefore reversed the judgment of the lower court with instructions to dismiss the application looking to the establishment of that claim. The case at bar is entirely distinct from that in case just cited, and therefore the doctrine laid down in the decision of the Supreme Court of the United States is not applicable to this litigation, for the reason that the four leagues of land specified in the Laws of the Indies were those usually assigned to a pueblo, in the demarcation of the site at the beginning of its foundation, as the territory which it might occupy in its subsequent development, but, after the said four leagues had been populated, any unappropriated or uncultivated portion of territory which it should succeeded in annexing to its original territory had to be so annexed by virtue of an express grant from the sovereign power as an exido, dehesa, or terreno comunal. This theory, based entirely on the legal provisions above cited, bears no relation whatever to the case of the segragation of a populated barrio, with its lots and lands or private ownership, from the original pueblo of which it formed a part, and its annexation to another adjoining pueblo, which could only be accomplished through action and decision taken by the General Government, with the approval of the Government of Spain. Moreover, it is likewise to be noted that the municipality of Tacloban, in the exercise of the right of ownership over bienes propios exclusively belonging to it, has an independent personality of its own, recognized by law, and does not act, with respect to its patrimonial property, as a mere delegated agent of the central power, without prejudice to the right of inspection established by the administrative laws for the benefit of the pueblo itself and the country in general; wherefore the doctrine established in the case of Aguado vs. The City of Manila (9 Phil. Rep., 513) is likewise inapplicable to this litigation, inasmuch as the present case does not concern any contract entered into by the said municipality and a private party, nor administrative acts or proceedings whereby the municipality might be considered as a delegate of the Government. itc-alf

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For the foregoing reasons, and holding that the municipality of Tacloban is the legitimate owner of the land now occupied by its court-house and two public schoolhouses and has a perfect right to have the said land registered in its name in the registry of property, in accordance with law, it is competent, in our opinion, to affirm, as we hereby do, the judgment appealed from, exactly as pronounced by the Court of Land Registration. Arellano, C.J., Moreland and Trent, JJ., concur. Footnotes 1 Municipality of Catbalogan vs. Director of Lands, page 216, supra.