City of Manila vs Chinese Community 12/05/2015

Republic of the PhilippinesSUPREME COURTManila

EN BANC
G.R. No. L-14355 October 31, 1919
THE CITY OF MANILA, plaintiff-appellant, vs.CHINESE
COMMUNITY OF MANILA, ET AL., defendants-appellees.
City Fiscal Diaz for appellant. Crossfield and O'Brien, Williams, Ferrier
and Sycip, Delgado and Delgado, Filemon Sotto, and Ramon Salinas for
appellees.

JOHNSON, J.:
The important question presented by this appeal is: In expropriation
proceedings by the city of Manila, may the courts inquire into, and hear
proof upon, the necessity of the expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila presented a
petition in the Court of First Instance of said city, praying that certain lands,
therein particularly described, be expropriated for the purpose of
constructing a public improvement. The petitioner, in the second paragraph
of the petition, alleged:
That for the purpose of constructing a public improvement, namely,
the extension of Rizal Avenue, Manila, it is necessary for the plaintiff to
acquire ownership in fee simple of certain parcels of land situated in the
district of Binondo of said city within Block 83 of said district, and within the
jurisdiction of this court.
 The defendant, the Comunidad de Chinos de Manila [Chinese
Community of Manila], answering the petition of the plaintiff, alleged that it
was a corporation organized and existing under and by virtue of the laws of
the Philippine Islands, having for its purpose the benefit and general welfare
of the Chinese Community of the City of Manila; that it was the owner of
parcels one and two of the land described in paragraph 2 of the complaint;
that it denied that it was either necessary or expedient that the said parcels
be expropriated for street purposes; that existing street and roads furnished
ample means of communication for the public in the district covered by such
proposed expropriation; that if the construction of the street or road should
be considered a public necessity, other routes were available, which would
fully satisfy the plaintiff's purposes, at much less expense and without
disturbing the resting places of the dead; that it had a Torrens title for the
lands in question; that the lands in question had been used by the defendant
for cemetery purposes; that a great number of Chinese were buried in said
cemetery; that if said expropriation be carried into effect, it would disturb
the resting places of the dead, would require the expenditure of a large sum
of money in the transfer or removal of the bodies to some other place or site
and in the purchase of such new sites, would involve the destruction of
existing monuments and the erection of new monuments in their stead, and
would create irreparable loss and injury to the defendant and to all those
persons owning and interested in the graves and monuments which would
have to be destroyed; that the plaintiff was without right or authority to
expropriate said cemetery or any part or portion thereof for street purposes;
and that the expropriation, in fact, was not necessary as a public
improvement.

The defendant Ildefonso Tambunting, answering the petition, denied

each and every allegation of the complaint, and alleged that said
expropriation was not a public improvement; that it was not necessary for
the plaintiff to acquire the parcels of land in question; that a portion of the
lands in question was used as a cemetery in which were the graves of his
ancestors; that monuments and tombstones of great value were found
thereon; that the land had become quasi-public property of a benevolent
association, dedicated and used for the burial of the dead and that many
dead were buried there; that if the plaintiff deemed it necessary to extend
Rizal Avenue, he had offered and still offers to grant a right of way for the
said extension over other land, without cost to the plaintiff, in order that the
sepulchers, chapels and graves of his ancestors may not be disturbed; that
the land so offered, free of charge, would answer every public necessity on
the part of the plaintiff.
 The defendant Feliza Concepcion de Delgado, with her husband, Jose
Maria Delgado, and each of the other defendants, answering separately,
presented substantially the same defense as that presented by the
Comunidad de Chinos de Manila and Ildefonso Tambunting above referred to.
The foregoing parts of the defense presented by the defendants have
been inserted in order to show the general character of the defenses
presented by each of the defendants. The plaintiff alleged that the
expropriation was necessary. The defendants each alleged (a) that no
necessity existed for said expropriation and (b) that the land in question was
a cemetery, which had been used as such for many years, and was covered
with sepulchres and monuments, and that the same should not be converted
into a street for public purposes.

Upon the issue thus presented by the petition and the various
answers, the Honorable Simplicio del Rosario, judge, in a very elucidated
opinion, with very clear and explicit reasons, supported by ambulance of
authorities, decided that there was no necessity for the expropriation of the
particular strip of land in question, and absolved each and all of the
defendants from all liability under the complaint, without any finding as to
costs.

From that judgment the plaintiff appealed and presented the above
question as its principal ground of appeal.
The theory of the plaintiff is, that once it has established the fact,
under the law, that it has authority to expropriate land, it may expropriate
any land it may desire; that the only function of the court in such
proceedings is to ascertain the value of the land in question; that neither the
court nor the owners of the land can inquire into the advisible purpose of
purpose of the expropriation or ask any questions concerning the necessities
therefor; that the courts are mere appraisers of the land involved in
expropriation proceedings, and, when the value of the land is fixed by the
method adopted by the law, to render a judgment in favor of the defendant
for its value.

That the city of Manila has authority to expropriate private lands for
public purposes, is not denied. Section 2429 of Act No. 2711 (Charter of the
city of Manila) provides that "the city (Manila) . . . may condemn private
property for public use."
 The Charter of the city of Manila contains no procedure by which the
said authority may be carried into effect. We are driven, therefore, to the
procedure marked out by Act No. 190 to ascertain how the said authority
may be exercised. From an examination of Act No. 190, in its section 241,
we find how the right of eminent domain may be exercised. Said section 241
provides that, "The Government of the Philippine Islands, or of any province
or department thereof, or of any municipality, and any person, or public or
private corporation having, by law, the right to condemn private property for
public use, shall exercise that right in the manner hereinafter prescribed."
Section 242 provides that a complaint in expropriation proceeding shall
be presented; that the complaint shall state with certainty the right of
condemnation, with a description of the property sought to be condemned
together with the interest of each defendant separately.
Section 243 provides that if the court shall find upon trial that the
right to expropriate the land in question exists, it shall then appoint
commissioners.
Sections 244, 245 and 246 provide the method of procedure and duty
of the commissioners. Section 248 provides for an appeal from the judgment
of the Court of First Instance to the Supreme Court. Said section 248 gives
the Supreme Court authority to inquire into the right of expropriation on the
part of the plaintiff. If the Supreme Court on appeal shall determine that no
right of expropriation existed, it shall remand the cause to the Court of First
Instance with a mandate that the defendant be replaced in the possession of
the property and that he recover whatever damages he may have sustained
by reason of the possession of the plaintiff.

It is contended on the part of the plaintiff that the phrase in said

section, "and if the court shall find the right to expropriate exists," means
simply that, if the court finds that there is some law authorizing the plaintiff
to expropriate, then the courts have no other function than to authorize the
expropriation and to proceed to ascertain the value of the land involved; that
the necessity for the expropriation is a legislative and not a judicial question.

Upon the question whether expropriation is a legislative function

exclusively, and that the courts cannot intervene except for the purpose of
determining the value of the land in question, there is much legal legislature.
Much has been written upon both sides of that question. A careful
examination of the discussions pro and con will disclose the fact that the
decisions depend largely upon particular constitutional or statutory
provisions. It cannot be denied, if the legislature under proper authority
should grant the expropriation of a certain or particular parcel of land for
some specified public purpose, that the courts would be without jurisdiction
to inquire into the purpose of that legislation.
 If, upon the other hand, however, the Legislature should grant general
authority to a municipal corporation to expropriate private land for public
purposes, we think the courts have ample authority in this jurisdiction, under
the provisions above quoted, to make inquiry and to hear proof, upon an
issue properly presented, concerning whether or not the lands were private
and whether the purpose was, in fact, public. In other words, have no the
courts in this jurisdiction the right, inasmuch as the questions relating to
expropriation must be referred to them (sec. 241, Act No. 190) for final
decision, to ask whether or not the law has been complied with? Suppose in
a particular case, it should be denied that the property is not private
property but public, may not the courts hear proof upon that question? Or,
suppose the defense is, that the purpose of the expropriation is not public
but private, or that there exists no public purpose at all, may not the courts
make inquiry and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for

public purposes. Can it be possible that said authority confers the right to
determine for itself that the land is private and that the purpose is public,
and that the people of the city of Manila who pay the taxes for its support,
especially those who are directly affected, may not question one or the
other, or both, of these questions? Can it be successfully contended that the
phrase used in Act No. 190, "and if the court upon trial shall find that such
right exists," means simply that the court shall examine the statutes simply
for the purpose of ascertaining whether a law exists authorizing the
petitioner to exercise the right of eminent domain? Or, when the case arrives
in the Supreme Court, can it be possible that the phrase, "if the Supreme
Court shall determine that no right of expropriation exists," that that simply
means that the Supreme Court shall also examine the enactments of the
legislature for the purpose of determining whether or not a law exists
permitting the plaintiff to expropriate?

We are of the opinion that the power of the court is not limited to that
question. The right of expropriation is not an inherent power in a municipal
corporation, and before it can exercise the right some law must exist
conferring the power upon it. When the courts come to determine the
question, they must only find (a) that a law or authority exists for the
exercise of the right of eminent domain, but (b) also that the right or
authority is being exercised in accordance with the law.
 In the present case there are two conditions imposed upon the
authority conceded to the City of Manila: First, the land must be private;
and, second, the purpose must be public. If the court, upon trial, finds that
neither of these conditions exists or that either one of them fails, certainly it
cannot be contended that the right is being exercised in accordance with
law.
Whether the purpose for the exercise of the right of eminent domain is
public, is a question of fact. Whether the land is public, is a question of fact;
and, in our opinion, when the legislature conferred upon the courts of the
Philippine Islands the right to ascertain upon trial whether the right exists for
the exercise of eminent domain, it intended that the courts should inquire
into, and hear proof upon, those questions. Is it possible that the owner of
valuable land in this jurisdiction is compelled to stand mute while his land is
being expropriated for a use not public, with the right simply to beg the city
of Manila to pay him the value of his land? Does the law in this jurisdiction
permit municipalities to expropriate lands, without question, simply for the
purpose of satisfying the aesthetic sense of those who happen for the time
being to be in authority? Expropriation of lands usually calls for public
expense. The taxpayers are called upon to pay the costs. Cannot the owners
of land question the public use or the public necessity?

As was said above, there is a wide divergence of opinion upon the

authority of the court to question the necessity or advisability of the exercise
of the right of eminent domain. The divergence is usually found to depend
upon particular statutory or constitutional provisions.
It has been contended and many cases are cited in support of that
contention, and section 158 of volume 10 of Ruling Case Law is cited as
conclusive that the necessity for taking property under the right of
eminent domain is not a judicial question. But those who cited said section
evidently overlooked the section immediately following (sec. 159), which
adds: "But it is obvious that if the property is taken in the ostensible behalf
of a public improvement which it can never by any possibility serve, it is
being taken for a use not public, and the owner's constitutional rights call for
protection by the courts. While many courts have used sweeping expression
in the decisions in which they have disclaimed the power of supervising the
power of supervising the selection of the sites of public improvements, it
may be safely said that the courts of the various states would feel bound to
interfere to prevent an abuse of the discretion delegated by the legislature,
by an attempted appropriation of land in utter disregard of the possible
necessity of its use, or when the alleged purpose was a cloak to some
sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon
Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry.
etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., 620.)
 Said section 158 (10 R. C. L., 183) which is cited as conclusive
authority in support of the contention of the appellant, says:
The legislature, in providing for the exercise of the power of eminent
domain, may directly determine the necessity for appropriating private
property for a particular improvement for public use, and it may select the
exact location of the improvement. In such a case, it is well settled that the
utility of the proposed improvement, the extent of the public necessity for its
construction, the expediency of constructing it, the suitableness of the
location selected and the consequent necessity of taking the land selected
for its site, are all questions exclusively for the legislature to determine, and
the courts have no power to interfere, or to substitute their own views for
those of the representatives of the people.
Practically every case cited in support of the above doctrine has been
examined, and we are justified in making the statement that in each case
the legislature directly determined the necessity for the exercise of the right
of eminent domain in the particular case. It is not denied that if the
necessity for the exercise of the right of eminent domain is presented to the
legislative department of the government and that department decides that
there exists a necessity for the exercise of the right in a particular case, that
then and in that case, the courts will not go behind the action of the
legislature and make inquiry concerning the necessity. But, in the case of
Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am.
St. rep., 622, 628]), which was cited in support of the doctrine laid down in
section 158 above quoted, the court said:
But when the statute does not designate the property to be taken nor
how may be taken, then the necessity of taking particular property is a
question for the courts. Where the application to condemn or appropriate is
made directly to the court, the question (of necessity) should be raised and
decided in limene.
The legislative department of the government was rarely undertakes to
designate the precise property which should be taken for public use. It has
generally, like in the present case, merely conferred general authority to
take land for public use when a necessity exists therefor. We believe that it
can be confidently asserted that, under such statute, the allegation of the
necessity for the appropriation is an issuable allegation which it is competent
for the courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep.,
402, 407].)
 There is a wide distinction between a legislative declaration that a
municipality is given authority to exercise the right of eminent domain, and a
decision by the municipality that there exist a necessity for the exercise of
that right in a particular case. The first is a declaration simply that there
exist reasons why the right should be conferred upon municipal corporation,
while the second is the application of the right to a particular case. Certainly,
the legislative declaration relating to the advisability of granting the power
cannot be converted into a declaration that a necessity exists for its exercise
in a particular case, and especially so when, perhaps, the land in question
was not within the territorial authority was granted.
Whether it was wise, advisable, or necessary to confer upon a
municipality the power to exercise the right of eminent domain, is a question
with which the courts are not concerned. But when that right or authority is
exercised for the purpose of depriving citizens of their property, the courts
are authorized, in this jurisdiction, to make inquiry and to hear proof upon
the necessity in the particular case, and not the general authority.
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is
cited as a further conclusive authority upon the question that the necessity
for the exercise of the right of eminent domain is a legislative and not a
judicial question. Cyclopedia, at the page stated, says:
In the absence of some constitutional or statutory provision to the
contrary, the necessity and expediency of exercising the right of eminent
domain are questions essentially political and not judicial in their character.
The determination of those questions (the necessity and the expediency)
belongs to the sovereign power; the legislative department is final and
conclusive, and the courts have no power to review it (the necessity and the
expediency) . . . . It (the legislature) may designate the particular property
to be condemned, and its determination in this respect cannot be reviewed
by the courts.
 The volume of Cyclopedia, above referred to, cites many cases in
support of the doctrine quoted. While time has not permitted an examination
of all of said citations, many of them have been examined, and it can be
confidently asserted that said cases which are cited in support of the
assertion that, "the necessity and expediency of exercising the right of
eminent domain are questions essentially political and not judicial," show
clearly and invariably that in each case the legislature itself usually, by a
special law, designated the particular case in which the right of eminent
domain might be exercised by the particular municipal corporation or entity
within the state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15
Am. Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am.
Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs.
Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water
Power Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668;
Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S.,
351 [erroneously cited as 242 U.S.].)
In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the
Supreme Court of the United States said: "It is erroneous to suppose that
the legislature is beyond the control of the courts in exercising the power of
eminent domain, either as to the nature of the use or the necessity to the
use of any particular property. For if the use be not public or no necessity for
the taking exists, the legislature cannot authorize the taking of private
property against the will of the owner, notwithstanding compensation may be
required."
In the case of School Board of Carolina vs. Saldaa (14 Porto Rico,
339, 356), we find the Supreme Court of Porto Rico, speaking through
Justice MacLeary, quoting approvingly the following, upon the question which
we are discussing: "It is well settled that although the legislature must
necessarily determine in the first instance whether the use for which they
(municipalities, etc.) attempt to exercise the power is a public one or not,
their (municipalities, etc.) determination is not final, but is subject to
correction by the courts, who may undoubtedly declare the statute
unconstitutional, if it shall clearly appear that the use for which it is
proposed to authorize the taking of private property is in reality not public
but private." Many cases are cited in support of that doctrine.
Later, in the same decision, we find the Supreme Court of Porto Rico
says: "At any rate, the rule is quite well settled that in the cases under
consideration the determination of the necessity of taking a particular piece
or a certain amount of land rests ultimately with the courts." (Spring Valley
etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
 In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571
[41 L. R. A., N. S., 1024]), the Supreme Court of Connecticut approvingly
quoted the following doctrine from Lewis on Eminent Domain (3d ed.),
section 599: "In all such cases the necessity of public utility of the proposed
work or improvement is a judicial question. In all such cases, where the
authority is to take property necessary for the purpose, the necessity of
taking particular property for a particular purpose is a judicial one, upon
which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71
S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky.,
390, 403.)
The taking of private property for any use which is not required by the
necessities or convenience of the inhabitants of the state, is an unreasonable
exercise of the right of eminent domain, and beyond the power of the
legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs.
Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co.,
132 Ky., 692, 697.)
In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537,
564), the Supreme Court of the State of Maryland, discussing the question
before us, said: "To justify the exercise of this extreme power (eminent
domain) where the legislature has left it to depend upon the necessity that
may be found to exist, in order to accomplish the purpose of the
incorporation, as in this case, the party claiming the right to the exercise of
the power should be required to show at least a reasonable degree of
necessity for its exercise. Any rule less strict than this, with the large and
almost indiscriminate delegation of the right to corporations, would likely
lead to oppression and the sacrifice of private right to corporate power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the
court said: "Its right to condemn property is not a general power of
condemnation, but is limited to cases where a necessity for resort to private
property is shown to exist. Such necessity must appear upon the face of the
petition to condemn. If the necessary is denied the burden is upon the
company (municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116
Fed., 852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)
 It is true that naby decisions may be found asserting that what is a
public use is a legislative question, and many other decisions declaring with
equal emphasis that it is a judicial question. But, as long as there is a
constitutional or statutory provision denying the right to take land for any
use other than a public use, it occurs to us that the question whether any
particular use is a public one or not is ultimately, at least, a judicial question.
The legislative may, it is true, in effect declare certain uses to be public, and,
under the operation of the well-known rule that a statute will not be declared
to be unconstitutional except in a case free, or comparatively free, from
doubt, the courts will certainly sustain the action of the legislature unless it
appears that the particular use is clearly not of a public nature. The decisions
must be understood with this limitation; for, certainly, no court of last resort
will be willing to declare that any and every purpose which the legislative
might happen to designate as a public use shall be conclusively held to be
so, irrespective of the purpose in question and of its manifestly private
character Blackstone in his Commentaries on the English Law remarks that,
so great is the regard of the law for private property that it will not authorize
the least violation of it, even for the public good, unless there exists a very
great necessity therefor.
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme
Court of the United States said: "That government can scarcely be deemed
free where the rights of property are left solely defendant on the legislative
body, without restraint. The fundamental maxims of free government seem
to require that the rights of personal liberty and private property should be
held sacred. At least no court of justice in this country would be warranted in
assuming that the power to violate and disregard them a power so
repugnant to the common principles of justice and civil liberty lurked in
any general grant of legislature authority, or ought to be implied from any
general expression of the people. The people ought no to be presumed to
part with rights so vital to their security and well-being without very strong
and direct expression of such intention." (Lewis on Eminent Domain, sec.
603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann.,
182.)
 Blackstone, in his Commentaries on the English Law said that the right
to own and possess land a place to live separate and apart from others
to retain it as a home for the family in a way not to be molested by others
is one of the most sacred rights that men are heirs to. That right has been
written into the organic law of every civilized nation. The Acts of Congress of
July 1, 1902, and of August 29, 1916, which provide that "no law shall be
enacted in the Philippine Islands which shall deprive any person of his
property without due process of law," are but a restatement of the time-
honored protection of the absolute right of the individual to his property.
Neither did said Acts of Congress add anything to the law already existing in
the Philippine Islands. The Spaniard fully recognized the principle and
adequately protected the inhabitants of the Philippine Islands against the
encroachment upon the private property of the individual. Article 349 of the
Civil Code provides that: "No one may be deprived of his property unless it
be by competent authority, for some purpose of proven public utility, and
after payment of the proper compensation Unless this requisite (proven
public utility and payment) has been complied with, it shall be the duty of
the courts to protect the owner of such property in its possession or to
restore its possession to him , as the case may be."
The exercise of the right of eminent domain, whether directly by the
State, or by its authorized agents, is necessarily in derogation of private
rights, and the rule in that case is that the authority must be strictly
construed. No species of property is held by individuals with greater tenacity,
and none is guarded by the constitution and laws more sedulously, than the
right to the freehold of inhabitants. When the legislature interferes with that
right, and, for greater public purposes, appropriates the land of an individual
without his consent, the plain meaning of the law should not be enlarged by
doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306
and cases cited [73 Am. Dec., 576].)
The statutory power of taking property from the owner without his
consent is one of the most delicate exercise of government authority. It is to
be watched with jealous scrutiny. Important as the power may be to the
government, the inviolable sanctity which all free constitutions attach to the
right of property of the citizens, constrains the strict observance of the
substantial provisions of the law which are prescribed as modes of the
exercise of the power, and to protect it from abuse. Not only must the
authority of municipal corporations to take property be expressly conferred
and the use for which it is taken specified, but the power, with all
constitutional limitation and directions for its exercise, must be strictly
pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases
cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)
 It can scarcely be contended that a municipality would be permitted to
take property for some public use unless some public necessity existed
therefor. The right to take private property for public use originates in the
necessity, and the taking must be limited by such necessity. The appellant
contends that inasmuch as the legislature has given it general authority to
take private property for public use, that the legislature has, therefore,
settled the question of the necessity in every case and that the courts are
closed to the owners of the property upon that question. Can it be imagined,
when the legislature adopted section 2429 of Act No. 2711, that it thereby
declared that it was necessary to appropriate the property of Juan de la
Cruz, whose property, perhaps, was not within the city limits at the time the
law was adopted? The legislature, then, not having declared the necessity,
can it be contemplated that it intended that a municipality should be the sole
judge of the necessity in every case, and that the courts, in the face of the
provision that "if upon trial they shall find that a right exists," cannot in that
trial inquire into and hear proof upon the necessity for the appropriation in a
particular case?
The Charter of the city of Manila authorizes the taking of private
property for public use. Suppose the owner of the property denies and
successfully proves that the taking of his property serves no public use:
Would the courts not be justified in inquiring into that question and in finally
denying the petition if no public purpose was proved? Can it be denied that
the courts have a right to inquire into that question? If the courts can ask
questions and decide, upon an issue properly presented, whether the use is
public or not, is not that tantamount to permitting the courts to inquire into
the necessity of the appropriation? If there is no public use, then there is no
necessity, and if there is no necessity, it is difficult to understand how a
public use can necessarily exist. If the courts can inquire into the question
whether a public use exists or not, then it seems that it must follow that
they can examine into the question of the necessity.
The very foundation of the right to exercise eminent domain is a
genuine necessity, and that necessity must be of a public character. The
ascertainment of the necessity must precede or accompany, and not follow,
the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind.,
511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry.
etc. Co., 72 Ohio St., 368.)
 The general power to exercise the right of eminent domain must not
be confused with the right to exercise it in a particular case. The power of
the legislature to confer, upon municipal corporations and other entities
within the State, general authority to exercise the right of eminent domain
cannot be questioned by the courts, but that general authority of
municipalities or entities must not be confused with the right to exercise it in
particular instances. The moment the municipal corporation or entity
attempts to exercise the authority conferred, it must comply with the
conditions accompanying the authority. The necessity for conferring the
authority upon a municipal corporation to exercise the right of eminent
domain is admittedly within the power of the legislature. But whether or not
the municipal corporation or entity is exercising the right in a particular case
under the conditions imposed by the general authority, is a question which
the courts have the right to inquire into.
The conflict in the authorities upon the question whether the necessity
for the exercise of the right of eminent domain is purely legislative and not
judicial, arises generally in the wisdom and propriety of the legislature in
authorizing the exercise of the right of eminent domain instead of in the
question of the right to exercise it in a particular case. (Creston Waterworks
Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the power of restricting
the exercise of eminent domain to the actual reasonable necessities of the
case and for the purposes designated by the law. (Fairchild vs. City of St.
Paul. 48 Minn., 540.)
And, moreover, the record does not show conclusively that the plaintiff
has definitely decided that their exists a necessity for the appropriation of
the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly
indicate that the municipal board believed at one time that other land might
be used for the proposed improvement, thereby avoiding the necessity of
distributing the quiet resting place of the dead.
Aside from insisting that there exists no necessity for the alleged
improvements, the defendants further contend that the street in question
should not be opened through the cemetery. One of the defendants alleges
that said cemetery is public property. If that allegations is true, then, of
course, the city of Manila cannot appropriate it for public use. The city of
Manila can only expropriate private property.
It is a well known fact that cemeteries may be public or private. The
former is a cemetery used by the general community, or neighborhood, or
church, while the latter is used only by a family, or a small portion of the
community or neighborhood. (11 C. J., 50.)
 Where a cemetery is open to public, it is a public use and no part of
the ground can be taken for other public uses under a general authority. And
this immunity extends to the unimproved and unoccupied parts which are
held in good faith for future use. (Lewis on Eminent Domain, sec. 434, and
cases cited.)
The cemetery in question seems to have been established under
governmental authority. The Spanish Governor-General, in an order creating
the same, used the following language:
The cemetery and general hospital for indigent Chinese having been
founded and maintained by the spontaneous and fraternal contribution of
their protector, merchants and industrials, benefactors of mankind, in
consideration of their services to the Government of the Islands its internal
administration, government and regime must necessarily be adjusted to the
taste and traditional practices of those born and educated in China in order
that the sentiments which animated the founders may be perpetually
effectuated.
It is alleged, and not denied, that the cemetery in question may be
used by the general community of Chinese, which fact, in the general
acceptation of the definition of a public cemetery, would make the cemetery
in question public property. If that is true, then, of course, the petition of the
plaintiff must be denied, for the reason that the city of Manila has no
authority or right under the law to expropriate public property.
But, whether or not the cemetery is public or private property, its
appropriation for the uses of a public street, especially during the lifetime of
those specially interested in its maintenance as a cemetery, should be a
question of great concern, and its appropriation should not be made for such
purposes until it is fully established that the greatest necessity exists
therefor.
While we do not contend that the dead must not give place to the
living, and while it is a matter of public knowledge that in the process of
time sepulchres may become the seat of cities and cemeteries traversed by
streets and daily trod by the feet of millions of men, yet, nevertheless such
sacrifices and such uses of the places of the dead should not be made unless
and until it is fully established that there exists an eminent necessity
therefor. While cemeteries and sepulchres and the places of the burial of the
dead are still within the memory and command of the active care of the
living; while they are still devoted to pious uses and sacred regard, it is
difficult to believe that even the legislature would adopt a law expressly
providing that such places, under such circumstances, should be violated.
 In such an appropriation, what, we may ask, would be the measure of
damages at law, for the wounded sensibilities of the living, in having the
graves of kindred and loved ones blotted out and desecrated by a common
highway or street for public travel? The impossibility of measuring the
damage and inadequacy of a remedy at law is too apparent to admit of
argument. To disturb the mortal remains of those endeared to us in life
sometimes becomes the sad duty of the living; but, except in cases of
necessity, or for laudable purposes, the sanctity of the grave, the last resting
place of our friends, should be maintained, and the preventative aid of the
courts should be invoked for that object. (Railroad Company vs. Cemetery
Co., 116 Tenn., 400; Evergreen Cemetery Association vs. The City of New
Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs.
Kurtz, 2 Peters, 566.)
In the present case, even granting that a necessity exists for the
opening of the street in question, the record contains no proof of the
necessity of opening the same through the cemetery. The record shows that
adjoining and adjacent lands have been offered to the city free of charge,
which will answer every purpose of the plaintiff.
For all of the foregoing, we are fully persuaded that the judgment of
the lower court should be and is hereby affirmed, with costs against the
appellant. So ordered.
Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.
City of Manila vs Chinese Community of Manila
City of Manila vs Chinese Community of Manila , GR 14355 (1D), 31
October 1919
FACTS: Petitioner (City of Manila) filed a petition praying that certain
lands be expropriated for the purpose of constructing a public improvement
namely, the extension of Rizal Avenue, Manila and claiming that such
expropriation was necessary.
Herein defendants, on the other hand, alleged (a) that no necessity
existed for said expropriation and (b) that the land in question was a
cemetery, which had been used as such for many years, and was covered
with sepulchres and monuments, and that the same should not be converted
into a street for public purposes.
The lower court ruled that there was no necessity for the expropriation
of the particular strip of land in question.
 Petitioner therefore assails the decision of the lower court claiming that
it (petitioner) has the authority to expropriate any land it may desire; that
the only function of the court in such proceedings is to ascertain the value of
the land in question; that neither the court nor the owners of the land can
inquire into the advisable purpose of the expropriation or ask any questions
concerning the necessities therefor; that the courts are mere appraisers of
the land involved in expropriation proceedings, and, when the value of the
land is fixed by the method adopted by the law, to render a judgment in
favor of the defendant for its value.

ISSUE: W/N the courts may inquire into and hear proof upon the
necessity of the expropriation?

HELD: Yes. The courts have the power to restrict the exercise of
eminent domain to the actual reasonable necessities of the case and for the
purposes designated by the law. When the municipal corporation or entity
attempts to exercise the authority conferred, it must comply with the
conditions accompanying such authority. The necessity for conferring the
authority upon a municipal corporation to exercise the right of eminent
domain is, without question, within the power of the legislature. But whether
or not the municipal corporation or entity is exercising the right in a
particular case under the conditions imposed by the general authority, is a
question that the courts have the right to inquire into
Republic of the PhilippinesSUPREME COURTManila
SECOND DIVISION

G.R. No. 107916 February 20, 1997

PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA
MODAY, petitioners, vs.COURT OF APPEALS, JUDGE EVANGELINE S.
YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR
AND MUNICIPALITY OF BUNAWAN, respondents.

ROMERO, J.:
The main issue presented in this case is whether a municipality may
expropriate private property by virtue of a municipal resolution which was
disapproved by the Sangguniang Panlalawigan. Petitioner seeks the reversal
of the Court of Appeals decision and resolution, promulgated on July 15,
1992 and October 22, 1992 respectively, 1 and a declaration that Municipal
Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void.
 On July 23, 1989, the Sangguniang Bayan of the Municipality of
Bunawan in Agusan del Sur passed Resolution No. 43-89, "Authorizing the
Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare
Portion of Lot No. 6138-Pls-4 Along the National Highway Owned by Percival
Moday for the Site of Bunawan Farmers Center and Other Government
Sports Facilities." 2

In due time, Resolution No. 43-89 was approved by then Municipal

Mayor Anuncio C. Bustillo and transmitted to the Sangguniang Panlalawigan
for its approval. On September 11, 1989, the Sangguniang Panlalawigan
disapproved said Resolution and returned it with the comment that
"expropriation is unnecessary considering that there are still available lots in
Bunawan for the establishment of the government center." 3
The Municipality of Bunawan, herein public respondent, subsequently
filed a petition for Eminent Domain against petitioner Percival Moday before
the Regional Trial Court at Prosperidad, Agusan del Sur. 4 The complaint was
later amended to include the registered owners, Percival Moday's parents,
Zotico and Leonora Moday, as party defendants.
On March 6, 1991, public respondent municipality filed a Motion to
Take or Enter Upon the Possession of Subject Matter of This Case stating
that it had already deposited with the municipal treasurer the necessary
amount in accordance with Section 2, Rule 67 of the Revised Rules of Court
and that it would be in the government's best interest for public respondent
to be allowed to take possession of the property.
Despite petitioners' opposition and after a hearing on the merits, the
Regional Trial Court granted respondent municipality's motion to take
possession of the land. The lower court held that the Sangguniang
Panlalawigan's failure to declare the resolution invalid leaves it effective. It
added that the duty of the Sangguniang Panlalawigan is merely to review the
ordinances and resolutions passed by the Sangguniang Bayan under Section
208 (1) of B.P. Blg. 337, old Local Government Code and that the exercise of
eminent domain is not one of the two acts enumerated in Section 19 thereof
requiring the approval of the Sangguniang Panlalawigan. 5 The dispositive
portion of the lower court's Order dated July 2, 1991 reads:
WHEREFORE, it appearing that the amount of P632.39 had been
deposited as per Official Receipt No. 5379647 on December 12, 1989 which
this Court now determines as the provisional value of the land, the Motion to
Take or Enter Upon the Possession of the Property filed by petitioner through
counsel is hereby GRANTED. The Sheriff of this Court is ordered to forthwith
place the plaintiff in possession of the property involved.
 Let the hearing be set on August 9, 1991 at 8:30 o'clock in the
morning for the purpose of ascertaining the just compensation or fair market
value of the property sought to be taken, with notice to all the parties
concerned.
SO ORDERED. 6
Petitioners' motion for reconsideration was denied by the trial court on
October 31, 1991.

Petitioners elevated the case in a petition for certiorari alleging grave

abuse of discretion on the part of the trial court, but the same was dismissed
by respondent appellate court on July 15, 1992. 7 The Court of Appeals held
that the public purpose for the expropriation is clear from Resolution No. 43-
89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not
declare Resolution No. 43-89 invalid, expropriation of petitioners' property
could proceed.
Respondent appellate court also denied petitioners' motion for
reconsideration on October 22, 1992. 8

Meanwhile, the Municipality of Bunawan had erected three buildings on

the subject property: the Association of Barangay Councils (ABC) Hall, the
Municipal Motorpool, both wooden structures, and the Bunawan Municipal
Gymnasium, which is made of concrete.

In the instant petition for review filed on November 23, 1992,

petitioner seeks the reversal of the decision and resolution of the Court of
Appeals and a declaration that Resolution No. 43-89 of the Municipality of
Bunawan is null and void.
On December 8, 1993, the Court issued a temporary restraining order
enjoining and restraining public respondent Judge Evangeline Yuipco from
enforcing her July 2, 1991 Order and respondent municipality from using and
occupying all the buildings constructed and from further constructing any
building on the land subject of this petition. 9
Acting on petitioners' Omnibus Motion for Enforcement of Restraining
Order and for Contempt, the Court issued a Resolution on March 15, 1995,
citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering
him to pay the fine and to demolish the "blocktiendas" which were built in
violation of the restraining order. 10
Former Mayor Anuncio C. Bustillo paid the fine and manifested that he
lost in the May 8, 1995 election. 11 The incumbent Mayor Leonardo Barrios,
filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate
Dissolution of the Temporary Restraining Order" and Memorandum on June
11, 1996 for the Municipality of Bunawan. 12
 Petitioners contend that the Court of Appeals erred in upholding the
legality of the condemnation proceedings initiated by the municipality.
According to petitioners, the expropriation was politically motivated and
Resolution No. 43-89 was correctly disapproved by the Sangguniang
Panlalawigan, there being other municipal properties available for the
purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo be
ordered to pay damages for insisting on the enforcement of a void municipal
resolution.

The Court of Appeals declared that the Sangguniang Panlalawigan's

reason for disapproving the resolution "could be baseless, because it failed
to point out which and where are those available lots.'" Respondent court
also concluded that since the Sangguniang Panlalawigan did not declare the
municipal board's resolution as invalid, expropriation of petitioners' property
couldproceed. 13

The Court finds no merit in the petition and affirms the decision
of the Court of Appeals.
Eminent domain, the power which the Municipality of Bunawan
exercised in the instant case, is a fundamental State power that is
inseparable from sovereignty. 14 It is government's right to appropriate, in
the nature of a compulsory sale to the State, private property for public use
or purpose. 15 Inherently possessed by the national legislature, the power of
eminent domain may be validly delegated to local governments, other public
entities and public utilities. 16 For the taking of private property by the
government to be valid, the taking must be for public use and there must be
just compensation. 17
The Municipality of Bunawan's power to exercise the right of eminent
domain is not disputed as it is expressly provided for in Batas Pambansa Blg.
337, the local Government Code 18 in force at the time expropriation
proceedings were initiated. Section 9 of said law states:
Sec. 9. Eminent Domain. A local government unit may, through its
head and acting pursuant to a resolution of its sanggunian, exercise the right
of eminent domain and institute condemnation proceedings for public use or
purpose.
What petitioners question is the lack of authority of the municipality to
exercise this right since the Sangguniang Panlalawigan disapproved
Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
 Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days
after receiving copies of approved ordinances, resolutions and executive
orders promulgated by the municipal mayor, the sangguniang panlalawigan
shall examine the documents or transmit them to the provincial attorney, or
if there be none, to the provincial fiscal, who shall examine them promptly
and inform the sangguniang panlalawigan in writing of any defect or
impropriety which he may discover therein and make such comments or
recommendations as shall appear to him proper.
(2) If the sangguniang panlalawigan shall find that any municipal
ordinance, resolution or executive order is beyond the power conferred upon
the sangguniang bayan or the mayor, it shall declare such ordinance,
resolution or executive order invalid in whole or in part, entering its actions
upon the minutes and advising the proper municipal authorities thereof. The
effect of such an action shall be to annul the ordinance, resolution or
executive order in question in whole or in part. The action of the
sangguniang panlalawigan shall be final.
xxx xxx xxx (Emphasis supplied.)
The Sangguniang Panlalawigan's disapproval of Municipal Resolution
No. 43-89 is an infirm action which does not render said resolution null and
void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the
Sangguniang Panlalawigan the power to declare a municipal resolution
invalid on the sole ground that it is beyond the power of the Sangguniang
Bayan or the Mayor to issue. Although pertaining to a similar provision of law
but different factual milieu then obtaining, the Court's pronouncements in
Velazco v. Blas, 19 where we cited significant early jurisprudence, are
applicable to the case at bar.
The only ground upon which a provincial board may declare any
municipal resolution, ordinance, or order invalid is when such resolution,
ordinance, or order is "beyond the powers conferred upon the council or
president making the same." Absolutely no other ground is recognized by
the law. A strictly legal question is before the provincial board in its
consideration of a municipal resolution, ordinance, or order. The provincial
(board's) disapproval of any resolution, ordinance, or order must be
premised specifically upon the fact that such resolution, ordinance, or order
is outside the scope of the legal powers conferred by law. If a provincial
board passes these limits, it usurps the legislative function of the municipal
council or president. Such has been the consistent course of executive
authority. 20
 Thus, the Sangguniang Panlalawigan was without the authority to
disapprove Municipal Resolution No. 43-89 for the Municipality of Bunawan
clearly has the power to exercise the right of eminent domain and its
Sangguniang Bayan the capacity to promulgate said resolution, pursuant to
the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that
Resolution No. 43-89 is valid and binding and could be used as lawful
authority to petition for the condemnation of petitioners' property.
As regards the accusation of political oppression, it is alleged that
Percival Moday incurred the ire of then Mayor Anuncio C. Bustillo when he
refused to support the latter's candidacy for mayor in previous elections.
Petitioners claim that then incumbent Mayor C. Bustillo used the
expropriation to retaliate by expropriating their land even if there were other
properties belonging to the municipality and available for the purpose.
Specifically, they allege that the municipality owns a vacant seven-hectare
property adjacent to petitioners' land, evidenced by a sketch plan. 21
The limitations on the power of eminent domain are that the use must
be public, compensation must be made and due process of law must be
observed. 22 The Supreme Court, taking cognizance of such issues as the
adequacy of compensation, necessity of the taking and the public use
character or the purpose of the taking, 23 has ruled that the necessity of
exercising eminent domain must be genuine and of a public character. 24
Government may not capriciously choose what private property should be
taken.
After a careful study of the records of the case, however, we find no
evidentiary support for petitioners' allegations. The uncertified photocopy of
the sketch plan does not conclusively prove that the municipality does own
vacant land adjacent to petitioners' property suited to the purpose of the
expropriation. In the questioned decision, respondent appellate court
similarly held that the pleadings and documents on record have not pointed
out any of respondent municipality's "other available properties available for
the same purpose." 25 The accusations of political reprisal are likewise
unsupported by competent evidence. Consequently, the Court holds that
petitioners' demand that the former municipal mayor be personally liable for
damages is without basis.
WHEREFORE, the instant petition is hereby DENIED. The questioned
Decision and Resolution of the Court of Appeals in the case of "Percival
Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are
AFFIRMED. The Temporary Restraining Order issued by the Court on
December 8, 1993 is LIFTED.
SO ORDERED.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.
FIRST DIVISION
[G.R. No. 127820. July 20, 1998]
 MUNICIPALITY OF PARAAQUE, petitioner, vs. V.M. REALTY
CORPORATION, respondent.
DECISION
PANGANIBAN, J.:
A local government unit (LGU), like the Municipality of Paraaque,
cannot authorize an expropriation of private property through a mere
resolution of its lawmaking body. The Local Government Code expressly and
clearly requires an ordinance or a local law for the purpose. A resolution that
merely expresses the sentiment or opinion of the Municipal Council will not
suffice. On the other hand, the principle of res judicata does not bar
subsequent proceedings for the expropriation of the same property when all
the legal requirements for its valid exercise are complied with.
Statement of the Case
These principles are applied by this Court in resolving this petition for
review on certiorari of the July 22, 1996 Decision[1] of the Court of
Appeals[2] in CA GR CV No. 48048, which affirmed in toto[3] the Regional
Trial Courts August 9, 1994 Resolution.[4] The trial court dismissed the
expropriation suit as follows:
The right of the plaintiff to exercise the power of eminent domain is
not disputed. However, such right may be exercised only pursuant to an
Ordinance (Sec. 19, R.A. No. 7160). In the instant case, there is no such
ordinance passed by the Municipal Council of Paraaque enabling the
Municipality, thru its Chief Executive, to exercise the power of eminent
domain. The complaint, therefore, states no cause of action.
Assuming that plaintiff has a cause of action, the same is barred by a
prior judgment. On September 29, 1987, the plaintiff filed a complaint for
expropriation involving the same parcels of land which was docketed as Civil
Case No. 17939 of this Court (page 26, record). Said case was dismissed
with prejudice on May 18, 1988 (page 39, record). The order of dismissal
was not appealed, hence, the same became final. The plaintiff can not be
allowed to pursue the present action without violating the principle of [r]es
[j]udicata. While defendant in Civil Case No. 17939 was Limpan Investment
Corporation, the doctrine of res judicata still applies because the judgment in
said case (C.C. No. 17939) is conclusive between the parties and their
successors-in-interest (Vda. de Buncio vs. Estate of the late Anita de Leon).
The herein defendant is the successor-in-interest of Limpan Investment
Corporation as shown by the Deed of Assignment Exchange executed on
June 13, 1990.
WHEREFORE, defendants motion for reconsideration is hereby granted.
The order dated February 4, 1994 is vacated and set aside.
This case is hereby dismissed. No pronouncement as to costs.
SO ORDERED.[5]
Factual Antecedents
 Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993,
[6] the Municipality of Paraaque filed on September 20, 1993, a Complaint
for expropriation[7] against Private Respondent V.M. Realty Corporation over
two parcels of land (Lots 2-A-2 and 2-B-1 of Subdivision Plan Psd-17917),
with a combined area of about 10,000 square meters, located at Wakas, San
Dionisio, Paraaque, Metro Manila, and covered by Torrens Certificate of Title
No. 48700. Allegedly, the complaint was filed for the purpose of alleviating
the living conditions of the underprivileged by providing homes for the
homeless through a socialized housing project.[8] Parenthetically, it was also
for this stated purpose that petitioner, pursuant to its Sangguniang Bayan
Resolution No. 577, Series of 1991,[9] previously made an offer to enter into
a negotiated sale of the property with private respondent, which the latter
did not accept.[10]
Finding the Complaint sufficient in form and substance, the Regional
Trial Court of Makati, Branch 134, issued an Order dated January 10, 1994,
[11] giving it due course. Acting on petitioners motion, said court issued an
Order dated February 4, 1994,[12] authorizing petitioner to take possession
of the subject property upon deposit with its clerk of court of an amount
equivalent to 15 percent of its fair market value based on its current tax
declaration.
On February 21, 1994, private respondent filed its Answer containing
affirmative defenses and a counterclaim,[13] alleging in the main that (a)
the complaint failed to state a cause of action because it was filed pursuant
to a resolution and not to an ordinance as required by RA 7160 (the Local
Government Code); and (b) the cause of action, if any, was barred by a prior
judgment or res judicata. On private respondents motion, its Answer was
treated as a motion to dismiss.[14] On March 24, 1994,[15] petitioner filed
its opposition, stressing that the trial courts Order dated February 4, 1994
was in accord with Section 19 of RA 7160, and that the principle of res
judicata was not applicable.
Thereafter, the trial court issued its August 9, 1994 Resolution[16]
nullifying its February 4, 1994 Order and dismissing the case. Petitioners
motions for reconsideration and transfer of venue were denied by the trial
court in a Resolution dated December 2, 1994.[17] Petitioner then appealed
to Respondent Court, raising the following issues:
1. Whether or not the Resolution of the Paraaque Municipal Council No.
93-95, Series of 1993 is a substantial compliance of the statutory
requirement of Section 19, R.A. 7180 [sic] in the exercise of the power of
eminent domain by the plaintiff-appellant.
2. Whether or not the complaint in this case states no cause of action.
3. Whether or not the strict adherence to the literal observance to the
rule of procedure resulted in technicality standing in the way of substantial
justice.
 4. Whether or not the principle of res judicata is applicable to the
present case.[18]
As previously mentioned, the Court of Appeals affirmed in toto the trial
courts Decision. Respondent Court, in its assailed Resolution promulgated on
January 8, 1997,[19] denied petitioners Motion for Reconsideration for lack
of merit.
Hence, this appeal.[20]
The Issues
Before this Court, petitioner posits two issues, viz.:
1. A resolution duly approved by the municipal council has the same
force and effect of an ordinance and will not deprive an expropriation case of
a valid cause of action.
2. The principle of res judicata as a ground for dismissal of case is not
applicable when public interest is primarily involved.[21]
The Courts Ruling
The petition is not meritorious.
First Issue:
Resolution Different from an Ordinance
Petitioner contends that a resolution approved by the municipal council
for the purpose of initiating an expropriation case substantially complies with
the requirements of the law[22] because the terms ordinance and resolution
are synonymous for the purpose of bestowing authority [on] the local
government unit through its chief executive to initiate the expropriation
proceedings in court in the exercise of the power of eminent domain.[23]
Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the
Rules and Regulations Implementing the Local Government Code, which
provides: If the LGU fails to acquire a private property for public use,
purpose, or welfare through purchase, the LGU may expropriate said
property through a resolution of the Sanggunian authorizing its chief
executive to initiate expropriation proceedings.[24] (Italics supplied.)
The Court disagrees. The power of eminent domain is lodged in the
legislative branch of government, which may delegate the exercise thereof to
LGUs, other public entities and public utilities.[25] An LGU may therefore
exercise the power to expropriate private property only when authorized by
Congress and subject to the latters control and restraints, imposed through
the law conferring the power or in other legislations.[26] In this case,
Section 19 of RA 7160, which delegates to LGUs the power of eminent
domain, also lays down the parameters for its exercise. It provides as
follows:
 Section 19. Eminent Domain. A local government unit may, through its
chief executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws: Provided, however, That
the power of eminent domain may not be exercised unless a valid and
definite offer has been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be expropriated:
Provided, finally, That, the amount to be paid for the expropriated property
shall be determined by the proper court, based on the fair market value at
the time of the taking of the property. (Emphasis supplied)
Thus, the following essential requisites must concur before an LGU can
exercise the power of eminent domain:
1. An ordinance is enacted by the local legislative council authorizing
the local chief executive, in behalf of the LGU, to exercise the power of
eminent domain or pursue expropriation proceedings over a particular
private property.
2. The power of eminent domain is exercised for public use, purpose or
welfare, or for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section
9, Article III of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of
the property sought to be expropriated, but said offer was not accepted.[27]
In the case at bar, the local chief executive sought to exercise the
power of eminent domain pursuant to a resolution of the municipal council.
Thus, there was no compliance with the first requisite that the mayor be
authorized through an ordinance. Petitioner cites Camarines Sur vs. Court of
Appeals[28] to show that a resolution may suffice to support the exercise of
eminent domain by an LGU.[29] This case, however, is not in point because
the applicable law at that time was BP 337,[30] the previous Local
Government Code, which had provided that a mere resolution would enable
an LGU to exercise eminent domain. In contrast, RA 7160,[31] the present
Local Government Code which was already in force when the Complaint for
expropriation was filed, explicitly required an ordinance for this purpose.
 We are not convinced by petitioners insistence that the terms
resolution and ordinance are synonymous. A municipal ordinance is different
from a resolution. An ordinance is a law, but a resolution is merely a
declaration of the sentiment or opinion of a lawmaking body on a specific
matter.[32] An ordinance possesses a general and permanent character, but
a resolution is temporary in nature. Additionally, the two are enacted
differently -- a third reading is necessary for an ordinance, but not for a
resolution, unless decided otherwise by a majority of all the Sanggunian
members.[33]
If Congress intended to allow LGUs to exercise eminent domain
through a mere resolution, it would have simply adopted the language of the
previous Local Government Code. But Congress did not. In a clear
divergence from the previous Local Government Code, Section 19 of RA
7160 categorically requires that the local chief executive act pursuant to an
ordinance. Indeed, [l]egislative intent is determined principally from the
language of a statute. Where the language of a statute is clear and
unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would
be either impossible or absurd or would lead to an injustice.[34] In the
instant case, there is no reason to depart from this rule, since the law
requiring an ordinance is not at all impossible, absurd, or unjust.
Moreover, the power of eminent domain necessarily involves a
derogation of a fundamental or private right of the people.[35] Accordingly,
the manifest change in the legislative language -- from resolution under BP
337 to ordinance under RA 7160 -- demands a strict construction. No
species of property is held by individuals with greater tenacity, and is
guarded by the Constitution and laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes with that right and,
for greater public purposes, appropriates the land of an individual without
his consent, the plain meaning of the law should not be enlarged by doubtful
interpretation.[36]
Petitioner relies on Article 36, Rule VI of the Implementing Rules,
which requires only a resolution to authorize an LGU to exercise eminent
domain. This is clearly misplaced, because Section 19 of RA 7160, the law
itself, surely prevails over said rule which merely seeks to implement it.[37]
It is axiomatic that the clear letter of the law is controlling and cannot be
amended by a mere administrative rule issued for its implementation.
Besides, what the discrepancy seems to indicate is a mere oversight in the
wording of the implementing rules, since Article 32, Rule VI thereof, also
requires that, in exercising the power of eminent domain, the chief executive
of the LGU must act pursuant to an ordinance.
 In this ruling, the Court does not diminish the policy embodied in
Section 2, Article X of the Constitution, which provides that territorial and
political subdivisions shall enjoy local autonomy. It merely upholds the law
as worded in RA 7160. We stress that an LGU is created by law and all its
powers and rights are sourced therefrom. It has therefore no power to
amend or act beyond the authority given and the limitations imposed on it
by law. Strictly speaking, the power of eminent domain delegated to an LGU
is in reality not eminent but inferior domain, since it must conform to the
limits imposed by the delegation, and thus partakes only of a share in
eminent domain.[38] Indeed, the national legislature is still the principal of
the local government units, which cannot defy its will or modify or violate it.
[39]
Complaint Does Not State a Cause of Action
In its Brief filed before Respondent Court, petitioner argues that its
Sanguniang Bayan passed an ordinance on October 11, 1994 which
reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts
of its mayor regarding the subject expropriation.[40]
This argument is bereft of merit. In the first place, petitioner merely
alleged the existence of such an ordinance, but it did not present any
certified true copy thereof. In the second place, petitioner did not raise this
point before this Court. In fact, it was mentioned by private respondent, and
only in passing.[41] In any event, this allegation does not cure the inherent
defect of petitioners Complaint for expropriation filed on September 23,
1993. It is hornbook doctrine that:
x x x in a motion to dismiss based on the ground that the complaint
fails to state a cause of action, the question submitted before the court for
determination is the sufficiency of the allegations in the complaint itself.
Whether those allegations are true or not is beside the point, for their truth
is hypothetically admitted by the motion. The issue rather is: admitting them
to be true, may the court render a valid judgment in accordance with the
prayer of the complaint?[42]
The fact that there is no cause of action is evident from the face of the
Complaint for expropriation which was based on a mere resolution. The
absence of an ordinance authorizing the same is equivalent to lack of cause
of action. Consequently, the Court of Appeals committed no reversible error
in affirming the trial courts Decision which dismissed the expropriation suit.
Second Issue:
Eminent Domain Not Barred by Res Judicata
As correctly found by the Court of Appeals[43] and the trial court,[44]
all the requisites for the application of res judicata are present in this case.
There is a previous final judgment on the merits in a prior expropriation case
involving identical interests, subject matter and cause of action, which has
been rendered by a court having jurisdiction over it.
 Be that as it may, the Court holds that the principle of res judicata,
which finds application in generally all cases and proceedings,[45] cannot
bar the right of the State or its agent to expropriate private property. The
very nature of eminent domain, as an inherent power of the State, dictates
that the right to exercise the power be absolute and unfettered even by a
prior judgment or res judicata. The scope of eminent domain is plenary and,
like police power, can reach every form of property which the State might
need for public use.[46] All separate interests of individuals in property are
held of the government under this tacit agreement or implied reservation.
Notwithstanding the grant to individuals, the eminent domain, the highest
and most exact idea of property, remains in the government, or in the
aggregate body of the people in their sovereign capacity; and they have the
right to resume the possession of the property whenever the public interest
requires it.[47] Thus, the State or its authorized agent cannot be forever
barred from exercising said right by reason alone of previous non-
compliance with any legal requirement.
While the principle of res judicata does not denigrate the right of the
State to exercise eminent domain, it does apply to specific issues decided in
a previous case. For example, a final judgment dismissing an expropriation
suit on the ground that there was no prior offer precludes another suit
raising the same issue; it cannot, however, bar the State or its agent from
thereafter complying with this requirement, as prescribed by law, and
subsequently exercising its power of eminent domain over the same
property.[48] By the same token, our ruling that petitioner cannot exercise
its delegated power of eminent domain through a mere resolution will not
bar it from reinstituting similar proceedings, once the said legal requirement
and, for that matter, all others are properly complied with. Parenthetically
and by parity of reasoning, the same is also true of the principle of law of
the case. In Republic vs De Knecht,[49] the Court ruled that the power of
the State or its agent to exercise eminent domain is not diminished by the
mere fact that a prior final judgment over the property to be expropriated
has become the law of the case as to the parties. The State or its authorized
agent may still subsequently exercise its right to expropriate the same
property, once all legal requirements are complied with. To rule otherwise
will not only improperly diminish the power of eminent domain, but also
clearly defeat social justice.
WHEREFORE, the petition is hereby DENIED without prejudice to
petitioners proper exercise of its power of eminent domain over subject
property. Costs against petitioner.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

 EN BANC
G.R. No. L-18841 January 27, 1969
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-
appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Antonio A. Torres and Solicitor Camilo D. Quiason for plaintiff-
appellant.Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-
appellant.
REYES, J.B.L., J.:
Direct appeals, upon a joint record on appeal, by both the plaintiff
and the defendant from the dismissal, after hearing, by the Court of First
Instance of Manila, in its Civil Case No. 35805, of their respective complaint
and counterclaims, but making permanent a preliminary mandatory
injunction theretofore issued against the defendant on the interconnection of
telephone facilities owned and operated by said parties.
The plaintiff, Republic of the Philippines, is a political entity exercising
governmental powers through its branches and instrumentalities, one of
which is the Bureau of Telecommunications. That office was created on 1 July
1947, under Executive Order No. 94, with the following powers and duties,
in addition to certain powers and duties formerly vested in the Director of
Posts: 1awphil.t
SEC. 79. The Bureau of Telecommunications shall exercise the
following powers and duties:
(a) To operate and maintain existing wire-telegraph and radio-
telegraph offices, stations, and facilities, and those to be established to
restore the pre-war telecommunication service under the Bureau of Posts, as
well as such additional offices or stations as may hereafter be established to
provide telecommunication service in places requiring such service;
(b) To investigate, consolidate, negotiate for, operate and maintain
wire-telephone or radio telephone communication service throughout the
Philippines by utilizing such existing facilities in cities, towns, and provinces
as may be found feasible and under such terms and conditions or
arrangements with the present owners or operators thereof as may be
agreed upon to the satisfaction of all concerned;
(c) To prescribe, subject to approval by the Department Head,
equitable rates of charges for messages handled by the system and/or for
time calls and other services that may be rendered by said system;
(d) To establish and maintain coastal stations to serve ships at sea or
aircrafts and, when public interest so requires, to engage in the international
telecommunication service in agreement with other countries desiring to
establish such service with the Republic of the Philippines; and
 (e) To abide by all existing rules and regulations prescribed by the
International Telecommunication Convention relative to the accounting,
disposition and exchange of messages handled in the international service,
and those that may hereafter be promulgated by said convention and
adhered to by the Government of the Republic of the Philippines. 1
The defendant, Philippine Long Distance Telephone Company (PLDT
for short), is a public service corporation holding a legislative franchise, Act
3426, as amended by Commonwealth Act 407, to install, operate and
maintain a telephone system throughout the Philippines and to carry on the
business of electrical transmission of messages within the Philippines and
between the Philippines and the telephone systems of other countries. 2 The
RCA Communications, Inc., (which is not a party to the present case but has
contractual relations with the parties) is an American corporation authorized
to transact business in the Philippines and is the grantee, by assignment, of
a legislative franchise to operate a domestic station for the reception and
transmission of long distance wireless messages (Act 2178) and to operate
broadcasting and radio-telephone and radio-telegraphic communications
services (Act 3180). 3
Sometime in 1933, the defendant, PLDT, and the RCA
Communications, Inc., entered into an agreement whereby telephone
messages, coming from the United States and received by RCA's domestic
station, could automatically be transferred to the lines of PLDT; and vice-
versa, for calls collected by the PLDT for transmission from the Philippines to
the United States. The contracting parties agreed to divide the tolls, as
follows: 25% to PLDT and 75% to RCA. The sharing was amended in 1941 to
30% for PLDT and 70% for RCA, and again amended in 1947 to a 50-50
basis. The arrangement was later extended to radio-telephone messages to
and from European and Asiatic countries. Their contract contained a
stipulation that either party could terminate it on a 24-month notice to the
other. 4 On 2 February 1956, PLDT gave notice to RCA to terminate their
contract on 2 February 1958. 5
 Soon after its creation in 1947, the Bureau of Telecommunications set
up its own Government Telephone System by utilizing its own appropriation
and equipment and by renting trunk lines of the PLDT to enable government
offices to call private parties. 6 Its application for the use of these trunk lines
was in the usual form of applications for telephone service, containing a
statement, above the signature of the applicant, that the latter will abide by
the rules and regulations of the PLDT which are on file with the Public
Service Commission. 7 One of the many rules prohibits the public use of the
service furnished the telephone subscriber for his private use. 8 The Bureau
has extended its services to the general public since 1948, 9 using the same
trunk lines owned by, and rented from, the PLDT, and prescribing its (the
Bureau's) own schedule of rates. 10 Through these trunk lines, a Government
Telephone System (GTS) subscriber could make a call to a PLDT subscriber
in the same way that the latter could make a call to the former.
On 5 March 1958, the plaintiff, through the Director of
Telecommunications, entered into an agreement with RCA Communications,
Inc., for a joint overseas telephone service whereby the Bureau would
convey radio-telephone overseas calls received by RCA's station to and from
local residents. 11 Actually, they inaugurated this joint operation on 2
February 1958, under a "provisional" agreement. 12
On 7 April 1958, the defendant Philippine Long Distance Telephone
Company, complained to the Bureau of Telecommunications that said bureau
was violating the conditions under which their Private Branch Exchange
(PBX) is inter-connected with the PLDT's facilities, referring to the rented
trunk lines, for the Bureau had used the trunk lines not only for the use of
government offices but even to serve private persons or the general public,
in competition with the business of the PLDT; and gave notice that if said
violations were not stopped by midnight of 12 April 1958, the PLDT would
sever the telephone connections. 13 When the PLDT received no reply, it
disconnected the trunk lines being rented by the Bureau at midnight on 12
April 1958. 14 The result was the isolation of the Philippines, on telephone
services, from the rest of the world, except the United States. 15
At that time, the Bureau was maintaining 5,000 telephones and had
5,000 pending applications for telephone connection. 16 The PLDT was also
maintaining 60,000 telephones and had also 20,000 pending applications. 17
Through the years, neither of them has been able to fill up the demand for
telephone service.
 The Bureau of Telecommunications had proposed to the PLDT on 8
January 1958 that both enter into an interconnecting agreement, with the
government paying (on a call basis) for all calls passing through the
interconnecting facilities from the Government Telephone System to the
PLDT. 18 The PLDT replied that it was willing to enter into an agreement on
overseas telephone service to Europe and Asian countries provided that the
Bureau would submit to the jurisdiction and regulations of the Public Service
Commission and in consideration of 37 1/2% of the gross revenues. 19 In its
memorandum in lieu of oral argument in this Court dated 9 February 1964,
on page 8, the defendant reduced its offer to 33 1/3 % (1/3) as its share in
the overseas telephone service. The proposals were not accepted by either
party.
On 12 April 1958, plaintiff Republic commenced suit against the
defendant, Philippine Long Distance Telephone Company, in the Court of First
Instance of Manila (Civil Case No. 35805), praying in its complaint for
judgment commanding the PLDT to execute a contract with plaintiff, through
the Bureau, for the use of the facilities of defendant's telephone system
throughout the Philippines under such terms and conditions as the court
might consider reasonable, and for a writ of preliminary injunction against
the defendant company to restrain the severance of the existing telephone
connections and/or restore those severed.
Acting on the application of the plaintiff, and on the ground that the
severance of telephone connections by the defendant company would isolate
the Philippines from other countries, the court a quo, on 14 April 1958,
issued an order for the defendant:
(1) to forthwith reconnect and restore the seventy-eight (78) trunk
lines that it has disconnected between the facilities of the Government
Telephone System, including its overseas telephone services, and the
facilities of defendant; (2) to refrain from carrying into effect its threat to
sever the existing telephone communication between the Bureau of
Telecommunications and defendant, and not to make connection over its
telephone system of telephone calls coming to the Philippines from foreign
countries through the said Bureau's telephone facilities and the radio
facilities of RCA Communications, Inc.; and (3) to accept and connect
through its telephone system all such telephone calls coming to the
Philippines from foreign countries until further order of this Court.
On 28 April 1958, the defendant company filed its answer, with
counterclaims.
 It denied any obligation on its part to execute a contrary of services
with the Bureau of Telecommunications; contested the jurisdiction of the
Court of First Instance to compel it to enter into interconnecting agreements,
and averred that it was justified to disconnect the trunk lines heretofore
leased to the Bureau of Telecommunications under the existing agreement
because its facilities were being used in fraud of its rights. PLDT further
claimed that the Bureau was engaging in commercial telephone operations in
excess of authority, in competition with, and to the prejudice of, the PLDT,
using defendants own telephone poles, without proper accounting of
revenues.
After trial, the lower court rendered judgment that it could not
compel the PLDT to enter into an agreement with the Bureau because the
parties were not in agreement; that under Executive Order 94, establishing
the Bureau of Telecommunications, said Bureau was not limited to servicing
government offices alone, nor was there any in the contract of lease of the
trunk lines, since the PLDT knew, or ought to have known, at the time that
their use by the Bureau was to be public throughout the Islands, hence the
Bureau was neither guilty of fraud, abuse, or misuse of the poles of the
PLDT; and, in view of serious public prejudice that would result from the
disconnection of the trunk lines, declared the preliminary injunction
permanent, although it dismissed both the complaint and the counterclaims.
Both parties appealed.
Taking up first the appeal of the Republic, the latter complains of the
action of the trial court in dismissing the part of its complaint seeking to
compel the defendant to enter into an interconnecting contract with it,
because the parties could not agree on the terms and conditions of the
interconnection, and of its refusal to fix the terms and conditions therefor.
 We agree with the court below that parties can not be coerced to
enter into a contract where no agreement is had between them as to the
principal terms and conditions of the contract. Freedom to stipulate such
terms and conditions is of the essence of our contractual system, and by
express provision of the statute, a contract may be annulled if tainted by
violence, intimidation, or undue influence (Articles 1306, 1336, 1337, Civil
Code of the Philippines). But the court a quo has apparently overlooked that
while the Republic may not compel the PLDT to celebrate a contract with it,
the Republic may, in the exercise of the sovereign power of eminent domain,
require the telephone company to permit interconnection of the government
telephone system and that of the PLDT, as the needs of the government
service may require, subject to the payment of just compensation to be
determined by the court. Nominally, of course, the power of eminent domain
results in the taking or appropriation of title to, and possession of, the
expropriated property; but no cogent reason appears why the said power
may not be availed of to impose only a burden upon the owner of
condemned property, without loss of title and possession. It is
unquestionable that real property may, through expropriation, be subjected
to an easement of right of way. The use of the PLDT's lines and services to
allow inter-service connection between both telephone systems is not much
different. In either case private property is subjected to a burden for public
use and benefit. If, under section 6, Article XIII, of the Constitution, the
State may, in the interest of national welfare, transfer utilities to public
ownership upon payment of just compensation, there is no reason why the
State may not require a public utility to render services in the general
interest, provided just compensation is paid therefor. Ultimately, the
beneficiary of the interconnecting service would be the users of both
telephone systems, so that the condemnation would be for public use.
The Bureau of Telecommunications, under section 78 (b) of Executive
Order No. 94, may operate and maintain wire telephone or radio telephone
communications throughout the Philippines by utilizing existing facilities in
cities, towns, and provinces under such terms and conditions or
arrangement with present owners or operators as may be agreed upon to
the satisfaction of all concerned; but there is nothing in this section that
would exclude resort to condemnation proceedings where unreasonable or
unjust terms and conditions are exacted, to the extent of crippling or
seriously hampering the operations of said Bureau.
 A perusal of the complaint shows that the Republic's cause of action
is predicated upon the radio telephonic isolation of the Bureau's facilities
from the outside world if the severance of interconnection were to be carried
out by the PLDT, thereby preventing the Bureau of Telecommunications from
properly discharging its functions, to the prejudice of the general public.
Save for the prayer to compel the PLDT to enter into a contract (and the
prayer is no essential part of the pleading), the averments make out a case
for compulsory rendering of inter-connecting services by the telephone
company upon such terms and conditions as the court may determine to be
just. And since the lower court found that both parties "are practically at one
that defendant (PLDT) is entitled to reasonable compensation from plaintiff
for the reasonable use of the former's telephone facilities" (Decision, Record
on Appeal, page 224), the lower court should have proceeded to treat the
case as one of condemnation of such services independently of contract and
proceeded to determine the just and reasonable compensation for the same,
instead of dismissing the petition.
This view we have taken of the true nature of the Republic's petition
necessarily results in overruling the plea of defendant-appellant PLDT that
the court of first instance had no jurisdiction to entertain the petition and
that the proper forum for the action was the Public Service Commission.
That body, under the law, has no authority to pass upon actions for the
taking of private property under the sovereign right of eminent domain.
Furthermore, while the defendant telephone company is a public utility
corporation whose franchise, equipment and other properties are under the
jurisdiction, supervision and control of the Public Service Commission (Sec.
13, Public Service Act), yet the plaintiff's telecommunications network is a
public service owned by the Republic and operated by an instrumentality of
the National Government, hence exempt, under Section 14 of the Public
Service Act, from such jurisdiction, supervision and control. The Bureau of
Telecommunications was created in pursuance of a state policy reorganizing
the government offices
to meet the exigencies attendant upon the establishment of the free
and independent Government of the Republic of the Philippines, and for the
purpose of promoting simplicity, economy and efficiency in its operation
(Section 1, Republic Act No. 51)
and the determination of state policy is not vested in the Commission
(Utilities Com. vs. Bartonville Bus Line, 290 Ill. 574; 124 N.E. 373).
Defendant PLDT, as appellant, contends that the court below was in
error in not holding that the Bureau of Telecommunications was not
empowered to engage in commercial telephone business, and in ruling that
said defendant was not justified in disconnecting the telephone trunk lines it
had previously leased to the Bureau. We find that the court a quo ruled
correctly in rejecting both assertions.
 Executive Order No. 94, Series of 1947, reorganizing the Bureau of
Telecommunications, expressly empowered the latter in its Section 79,
subsection (b), to "negotiate for, operate and maintain wire telephone or
radio telephone communication service throughout the Philippines", and, in
subsection (c), "to prescribe, subject to approval by the Department Head,
equitable rates of charges for messages handled by the system and/or for
time calls and other services that may be rendered by the system". Nothing
in these provisions limits the Bureau to non-commercial activities or
prevents it from serving the general public. It may be that in its original
prospectuses the Bureau officials had stated that the service would be
limited to government offices: but such limitations could not block future
expansion of the system, as authorized by the terms of the Executive Order,
nor could the officials of the Bureau bind the Government not to engage in
services that are authorized by law. It is a well-known rule that erroneous
application and enforcement of the law by public officers do not block
subsequent correct application of the statute (PLDT vs. Collector of Internal
Revenue, 90 Phil. 676), and that the Government is never estopped by
mistake or error on the part of its agents (Pineda vs. Court of First Instance
of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co. vs. Pineda,
98 Phil. 711, 724).
The theses that the Bureau's commercial services constituted unfair
competition, and that the Bureau was guilty of fraud and abuse under its
contract, are, likewise, untenable.
First, the competition is merely hypothetical, the demand for
telephone service being very much more than the supposed competitors can
supply. As previously noted, the PLDT had 20,000 pending applications at
the time, and the Bureau had another 5,000. The telephone company's
inability to meet the demands for service are notorious even now. Second,
the charter of the defendant expressly provides:
SEC. 14. The rights herein granted shall not be exclusive, and the
rights and power to grant to any corporation, association or person other
than the grantee franchise for the telephone or electrical transmission of
message or signals shall not be impaired or affected by the granting of this
franchise: (Act 3436)
And third, as the trial court correctly stated, "when the Bureau of
Telecommunications subscribed to the trunk lines, defendant knew or should
have known that their use by the subscriber was more or less public and all
embracing in nature, that is, throughout the Philippines, if not abroad"
(Decision, Record on Appeal, page 216).
 The acceptance by the defendant of the payment of rentals, despite
its knowledge that the plaintiff had extended the use of the trunk lines to
commercial purposes, continuously since 1948, implies assent by the
defendant to such extended use. Since this relationship has been maintained
for a long time and the public has patronized both telephone systems, and
their interconnection is to the public convenience, it is too late for the
defendant to claim misuse of its facilities, and it is not now at liberty to
unilaterally sever the physical connection of the trunk lines.
..., but there is high authority for the position that, when such
physical connection has been voluntarily made, under a fair and workable
arrangement and guaranteed by contract and the continuous line has come
to be patronized and established as a great public convenience, such
connection shall not in breach of the agreement be severed by one of the
parties. In that case, the public is held to have such an interest in the
arrangement that its rights must receive due consideration. This position
finds approval in State ex rel. vs. Cadwaller, 172 Ind. 619, 636, 87 N.E. 650,
and is stated in the elaborate and learned opinion of Chief Justice Myers as
follows: "Such physical connection cannot be required as of right, but if such
connection is voluntarily made by contract, as is here alleged to be the case,
so that the public acquires an interest in its continuance, the act of the
parties in making such connection is equivalent to a declaration of a purpose
to waive the primary right of independence, and it imposes upon the
property such a public status that it may not be disregarded" citing Mahan
v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629, and the reasons upon which it
is in part made to rest are referred to in the same opinion, as follows:
"Where private property is by the consent of the owner invested with a
public interest or privilege for the benefit of the public, the owner can no
longer deal with it as private property only, but must hold it subject to the
right of the public in the exercise of that public interest or privilege conferred
for their benefit." Allnut v. Inglis (1810) 12 East, 527. The doctrine of this
early case is the acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina Tel. &
Tel. Co., 74 S.E. 636, 638).
It is clear that the main reason for the objection of the PLDT lies in
the fact that said appellant did not expect that the Bureau's telephone
system would expand with such rapidity as it has done; but this expansion is
no ground for the discontinuance of the service agreed upon.
The last issue urged by the PLDT as appellant is its right to
compensation for the use of its poles for bearing telephone wires of the
Bureau of Telecommunications. Admitting that section 19 of the PLDT charter
reserves to the Government
 the privilege without compensation of using the poles of the grantee
to attach one ten-pin cross-arm, and to install, maintain and operate wires
of its telegraph system thereon; Provided, however, That the Bureau of
Posts shall have the right to place additional cross-arms and wires on the
poles of the grantee by paying a compensation, the rate of which is to be
agreed upon by the Director of Posts and the grantee;
the defendant counterclaimed for P8,772.00 for the use of its poles
by the plaintiff, contending that what was allowed free use, under the
aforequoted provision, was one ten-pin cross-arm attachment and only for
plaintiff's telegraph system, not for its telephone system; that said section
could not refer to the plaintiff's telephone system, because it did not have
such telephone system when defendant acquired its franchise. The
implication of the argument is that plaintiff has to pay for the use of
defendant's poles if such use is for plaintiff's telephone system and has to
pay also if it attaches more than one (1) ten-pin cross-arm for telegraphic
purposes.
As there is no proof that the telephone wires strain the poles of the
PLDT more than the telegraph wires, nor that they cause more damage than
the wires of the telegraph system, or that the Government has attached to
the poles more than one ten-pin cross-arm as permitted by the PLDT charter,
we see no point in this assignment of error. So long as the burden to be
borne by the PLDT poles is not increased, we see no reason why the
reservation in favor of the telegraph wires of the government should not be
extended to its telephone lines, any time that the government decided to
engage also in this kind of communication.
In the ultimate analysis, the true objection of the PLDT to continue
the link between its network and that of the Government is that the latter
competes "parasitically" (sic) with its own telephone services. Considering,
however, that the PLDT franchise is non-exclusive; that it is well-known that
defendant PLDT is unable to adequately cope with the current demands for
telephone service, as shown by the number of pending applications therefor;
and that the PLDT's right to just compensation for the services rendered to
the Government telephone system and its users is herein recognized and
preserved, the objections of defendant-appellant are without merit. To
uphold the PLDT's contention is to subordinate the needs of the general
public to the right of the PLDT to derive profit from the future expansion of
its services under its non-exclusive franchise.
 WHEREFORE, the decision of the Court of First Instance, now under
appeal, is affirmed, except in so far as it dismisses the petition of the
Republic of the Philippines to compel the Philippine Long Distance Telephone
Company to continue servicing the Government telephone system upon such
terms, and for a compensation, that the trial court may determine to be just,
including the period elapsed from the filing of the original complaint or
petition. And for this purpose, the records are ordered returned to the court
of origin for further hearings and other proceedings not inconsistent with this
opinion. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Fernando, Capistrano, Teehankee and Barredo, JJ., concur.

THIRD DIVISION
[G.R. No. 138896. June 20, 2000]
BARANGAY SAN ROQUE, TALISAY, CEBU, petitioner, vs. Heirs of
FRANCISCO PASTOR, namely: EUGENIO SYLIANCO, TEODORO
SYLIANCO, ISABEL SYLIANCO, EUGENIA S. ONG, LAWRENCE
SYLIANCO, LAWSON SYLIANCO, LAWINA S. NOTARIO, LEONARDO
SYLIANCO JR. and LAWFORD SYLIANCO, respondents.
DECISION
PANGANIBAN, J.:
An expropriation suit is incapable of pecuniary estimation. Accordingly,
it falls within the jurisdiction of the regional trial courts, regardless of the
value of the subject property.

The Case
Before us is a Petition for Review on Certiorari assailing the March 29,
1999 Order[1] of the Regional Trial Court (RTC) of Cebu City (Branch 58) in
Civil Case No. CEB-21978, in which it dismissed a Complaint for eminent
domain. It ruled as follows:
"Premises considered, the motion to dismiss is hereby granted on the
ground that this Court has no jurisdiction over the case. Accordingly, the
Orders dated February 19, 1999 and February 26, 1999, as well as the Writ
of Possession issued by virtue of the latter Order are hereby recalled for
being without force and effect."[2]
Petitioner also challenges the May 14, 1999 Order of the RTC denying
reconsideration.

The Facts
 Petitioner filed before the Municipal Trial Court (MTC) of Talisay, Cebu
(Branch 1)[3] a Complaint to expropriate a property of the respondents. In
an Order dated April 8, 1997, the MTC dismissed the Complaint on the
ground of lack of jurisdiction. It reasoned that "[e]minent domain is an
exercise of the power to take private property for public use after payment
of just compensation. In an action for eminent domain, therefore, the
principal cause of action is the exercise of such power or right. The fact that
the action also involves real property is merely incidental. An action for
eminent domain is therefore within the exclusive original jurisdiction of the
Regional Trial Court and not with this Court."[4]

Assailed RTC Ruling

The RTC also dismissed the Complaint when filed before it, holding
that an action for eminent domain affected title to real property; hence, the
value of the property to be expropriated would determine whether the case
should be filed before the MTC or the RTC. Concluding that the action should
have been filed before the MTC since the value of the subject property was
less than P20,000, the RTC ratiocinated in this wise:
"The instant action is for eminent domain. It appears from the current
Tax Declaration of the land involved that its assessed value is only One
Thousand Seven Hundred Forty Pesos (P1,740.00). Pursuant to Section 3,
paragraph (3), of Republic Act No. 7691, all civil actions involving title to, or
possession of, real property with an assessed value of less than P20,000.00
are within the exclusive original jurisdiction of the Municipal Trial Courts. In
the case at bar, it is within the exclusive original jurisdiction of the Municipal
Trial Court of Talisay, Cebu, where the property involved is located.
"The instant action for eminent domain or condemnation of real
property is a real action affecting title to or possession of real property,
hence, it is the assessed value of the property involved which determines the
jurisdiction of the court. That the right of eminent domain or condemnation
of real property is included in a real action affecting title to or possession of
real property, is pronounced by retired Justice Jose Y. Feria, thus, Real
actions are those affecting title to or possession of real property. These
include partition or condemnation of, or foreclosures of mortgage on, real
property. x x x"[5]
Aggrieved, petitioner appealed directly to this Court, raising a pure
question of law.[6] In a Resolution dated July 28, 1999, the Court denied the
Petition for Review "for being posted out of time on July 2, 1999, the due
date being June 2, 1999, as the motion for extension of time to file petition
was denied in the resolution of July 14, 1999."[7] In a subsequent
Resolution dated October 6, 1999, the Court reinstated the Petition.[8]
 Respondents, on the other hand, contend that the Complaint for
Eminent Domain affects the title to or possession of real property. Thus, they
argue that the case should have been brought before the MTC, pursuant to
BP 129 as amended by Section 3 (3) of RA 7691. This law provides that
MTCs shall have exclusive original jurisdiction over all civil actions that
involve title to or possession of real property, the assessed value of which
does not exceed twenty thousand pesos or, in civil actions in Metro Manila,
fifty thousand pesos exclusive of interest, damages of whatever kind,
attorneys fees, litigation expenses and costs.
We agree with the petitioner that an expropriation suit is incapable of
pecuniary estimation. The test to determine whether it is so was laid down
by the Court in this wise:
"A review of the jurisprudence of this Court indicates that in
determining whether an action is one the subject matter of which is not
capable of pecuniary estimation, this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is
primarily for the recovery of a sum of money, the claim is considered
capable of pecuniary estimation, and whether jurisdiction is in the municipal
courts or in the courts of first instance would depend on the amount of the
claim. However, where the basic issue is something other than the right to
recover a sum of money, or where the money claim is purely incidental to, or
a consequence of, the principal relief sought, like in suits to have the
defendant perform his part of the contract (specific performance) and in
actions for support, or for annulment of a judgment or to foreclose a
mortgage, this Court has considered such actions as cases where the subject
of the litigation may not be estimated in terms of money, and are cognizable
exclusively by courts of first instance. The rationale of the rule is plainly that
the second class cases, besides the determination of damages, demand an
inquiry into other factors which the law has deemed to be more within the
competence of courts of first instance, which were the lowest courts of
record at the time that the first organic laws of the Judiciary were enacted
allocating jurisdiction (Act 136 of the Philippine Commission of June 11,
1901)."10
In the present case, an expropriation suit does not involve the
recovery of a sum of money. Rather, it deals with the exercise by the
government of its authority and right to take private property for public
use.11 In National Power Corporation v. Jocson,12 the Court ruled that
expropriation proceedings have two phases:
 "The first is concerned with the determination of the authority of the
plaintiff to exercise the power of eminent domain and the propriety of its
exercise in the context of the facts involved in the suit. It ends with an order,
if not of dismissal of the action, of condemnation declaring that the plaintiff
has a lawful right to take the property sought to be condemned, for the
public use or purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the filing of the complaint.
An order of dismissal, if this be ordained, would be a final one, of course,
since it finally disposes of the action and leaves nothing more to be done by
the Court on the merits. So, too, would an order of condemnation be a final
one, for thereafter as the Rules expressly state, in the proceedings before
the Trial Court, no objection to the exercise of the right of condemnation (or
the propriety thereof) shall be filed or heard.
"The second phase of the eminent domain action is concerned with the
determination by the court of the just compensation for the property sought
to be taken. This is done by the Court with the assistance of not more than
three (3) commissioners. The order fixing the just compensation on the
basis of the evidence before, and findings of, the commissioners would be
final, too. It would finally dispose of the second stage of the suit, and leave
nothing more to be done by the Court regarding the issue. x x x"
It should be stressed that the primary consideration in an
expropriation suit is whether the government or any of its instrumentalities
has complied with the requisites for the taking of private property. Hence,
the courts determine the authority of the government entity, the necessity of
the expropriation, and the observance of due process.13 In the main, the
subject of an expropriation suit is the governments exercise of eminent
domain, a matter that is incapable of pecuniary estimation.
True, the value of the property to be expropriated is estimated in
monetary terms, for the court is duty-bound to determine the just
compensation for it. This, however, is merely incidental to the expropriation
suit. Indeed, that amount is determined only after the court is satisfied with
the propriety of the expropriation.
Verily, the Court held in Republic of the Philippines v. Zurbano that
"condemnation proceedings are within the jurisdiction of Courts of First
Instance,"14 the forerunners of the regional trial courts. The said case was
decided during the effectivity of the Judiciary Act of 1948 which, like BP 129
in respect to RTCs, provided that courts of first instance had original
jurisdiction over "all civil actions in which the subject of the litigation is not
capable of pecuniary estimation."15 The 1997 amendments to the Rules of
Court were not intended to change these jurisprudential precedents.
 We are not persuaded by respondents argument that the present
action involves the title to or possession of a parcel of land. They cite the
observation of retired Justice Jose Y. Feria, an eminent authority in remedial
law, that condemnation or expropriation proceedings are examples of real
actions that affect the title to or possession of a parcel of land.16
Their reliance is misplaced. Justice Feria sought merely to distinguish
between real and personal actions. His discussion on this point pertained to
the nature of actions, not to the jurisdiction of courts. In fact, in his pre-bar
lectures, he emphasizes that jurisdiction over eminent domain cases is still
within the RTCs under the 1997 Rules.
To emphasize, the question in the present suit is whether the
government may expropriate private property under the given set of
circumstances. The government does not dispute respondents title to or
possession of the same. Indeed, it is not a question of who has a better title
or right, for the government does not even claim that it has a title to the
property. It merely asserts its inherent sovereign power to "appropriate and
control individual property for the public benefit, as the public necessity,
convenience or welfare may demand."17
WHEREFORE, the Petition is hereby GRANTED and the assailed
Orders SET ASIDE. The Regional Trial Court is directed to HEAR the case. No
costs.
SO ORDERED.
Republic of the PhilippinesSUPREME COURTManila
EN BANC

G.R. No. L-20620 August 15, 1974

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, vs.CARMEN
M. VDA. DE CASTELLVI, ET AL., defendants-appellees.
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates for
defendant-appellees.

ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of Pampanga in
its Civil Case No. 1623, an expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred
to as the Republic) filed, on June 26, 1959, a complaint for eminent domain
against defendant-appellee, Carmen M. Vda. de Castellvi, judicial
administratrix of the estate of the late Alfonso de Castellvi (hereinafter
referred to as Castellvi), over a parcel of land situated in the barrio of San
Jose, Floridablanca, Pampanga, described as follows:
 A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo 23666.
Bounded on the NE by Maria Nieves Toledo-Gozun; on the SE by national
road; on the SW by AFP reservation, and on the NW by AFP reservation.
Containing an area of 759,299 square meters, more or less, and registered
in the name of Alfonso Castellvi under TCT No. 13631 of the Register of
Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun
(hereinafter referred to as Toledo-Gozun over two parcels of land described
as follows:
A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan Psd, 26254.
Bounded on the NE by Lot 3, on the SE by Lot 3; on the SW by Lot 1-B, Blk.
2 (equivalent to Lot 199-B Swo 23666; on the NW by AFP military
reservation. Containing an area of 450,273 square meters, more or less and
registered in the name of Maria Nieves Toledo-Gozun under TCT No. 8708 of
the Register of Deeds of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan Psd
26254. Bounded on the NE by Lot No. 3, on the SE by school lot and national
road, on the SW by Lot 1-B Blk 2 (equivalent to Lot 199-B Swo 23666), on
the NW by Lot 1-B, Blk-1. Containing an area of 88,772 square meters, more
or less, and registered in the name of Maria Nieves Toledo Gozun under TCT
No. 8708 of the Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things, that the fair
market value of the above-mentioned lands, according to the Committee on
Appraisal for the Province of Pampanga, was not more than P2,000 per
hectare, or a total market value of P259,669.10; and prayed, that the
provisional value of the lands be fixed at P259.669.10, that the court
authorizes plaintiff to take immediate possession of the lands upon deposit
of that amount with the Provincial Treasurer of Pampanga; that the court
appoints three commissioners to ascertain and report to the court the just
compensation for the property sought to be expropriated, and that the court
issues thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the provisional
value of the lands at P259,669.10.
 In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged,
among other things, that the land under her administration, being a
residential land, had a fair market value of P15.00 per square meter, so it
had a total market value of P11,389,485.00; that the Republic, through the
Armed Forces of the Philippines, particularly the Philippine Air Force, had
been, despite repeated demands, illegally occupying her property since July
1, 1956, thereby preventing her from using and disposing of it, thus causing
her damages by way of unrealized profits. This defendant prayed that the
complaint be dismissed, or that the Republic be ordered to pay her P15.00
per square meter, or a total of P11,389,485.00, plus interest thereon at 6%
per annum from July 1, 1956; that the Republic be ordered to pay her
P5,000,000.00 as unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz,
Dolores G. viuda de Gil, Paloma Castellvi, Carmen Castellvi, Rafael Castellvi,
Luis Castellvi, Natividad Castellvi de Raquiza, Jose Castellvi and Consuelo
Castellvi were allowed to intervene as parties defendants. Subsequently,
Joaquin V. Gozun, Jr., husband of defendant Nieves Toledo Gozun, was also
allowed by the court to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer of
Pampanga the amount of P259,669.10, the trial court ordered that the
Republic be placed in possession of the lands. The Republic was actually
placed in possession of the lands on August 10, 1959. 1
In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun
alleged, among other things, that her two parcels of land were residential
lands, in fact a portion with an area of 343,303 square meters had already
been subdivided into different lots for sale to the general public, and the
remaining portion had already been set aside for expansion sites of the
already completed subdivisions; that the fair market value of said lands was
P15.00 per square meter, so they had a total market value of
P8,085,675.00; and she prayed that the complaint be dismissed, or that she
be paid the amount of P8,085,675.00, plus interest thereon at the rate of
6% per annum from October 13, 1959, and attorney's fees in the amount of
P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed
on February 11, 1960, and also intervenor Joaquin Gozun, Jr., husband of
defendant Maria Nieves Toledo-Gozun, in his motion to dismiss, dated May
27, 1960, all alleged that the value of the lands sought to be expropriated
was at the rate of P15.00 per square meter.
 On November 4, 1959, the trial court authorized the Provincial
Treasurer of Pampanga to pay defendant Toledo-Gozun the sum of
P107,609.00 as provisional value of her lands. 2 On May 16, 1960 the trial
Court authorized the Provincial Treasurer of Pampanga to pay defendant
Castellvi the amount of P151,859.80 as provisional value of the land under
her administration, and ordered said defendant to deposit the amount with
the Philippine National Bank under the supervision of the Deputy Clerk of
Court. In another order of May 16, 1960 the trial Court entered an order of
condemnation. 3
The trial Court appointed three commissioners: Atty. Amadeo Yuzon,
Clerk of Court, as commissioner for the court; Atty. Felicisimo G.
Pamandanan, counsel of the Philippine National Bank Branch at
Floridablanca, for the plaintiff; and Atty. Leonardo F. Lansangan, Filipino
legal counsel at Clark Air Base, for the defendants. The Commissioners, after
having qualified themselves, proceeded to the performance of their duties.
On March 15,1961 the Commissioners submitted their report and
recommendation, wherein, after having determined that the lands sought to
be expropriated were residential lands, they recommended unanimously that
the lowest price that should be paid was P10.00 per square meter, for both
the lands of Castellvi and Toledo-Gozun; that an additional P5,000.00 be
paid to Toledo-Gozun for improvements found on her land; that legal interest
on the compensation, computed from August 10, 1959, be paid after
deducting the amounts already paid to the owners, and that no
consequential damages be awarded. 4 The Commissioners' report was
objected to by all the parties in the case by defendants Castellvi and
Toledo-Gozun, who insisted that the fair market value of their lands should
be fixed at P15.00 per square meter; and by the Republic, which insisted
that the price to be paid for the lands should be fixed at P0.20 per square
meter. 5
After the parties-defendants and intervenors had filed their respective
memoranda, and the Republic, after several extensions of time, had adopted
as its memorandum its objections to the report of the Commissioners, the
trial court, on May 26, 1961, rendered its decision 6 the dispositive portion of
which reads as follows:
WHEREFORE, taking into account all the foregoing circumstances, and
that the lands are titled, ... the rising trend of land values ..., and the
lowered purchasing power of the Philippine peso, the court finds that the
unanimous recommendation of the commissioners of ten (P10.00) pesos per
square meter for the three lots of the defendants subject of this action is fair
and just.
xxx xxx xxx
 The plaintiff will pay 6% interest per annum on the total value of the
lands of defendant Toledo-Gozun since (sic) the amount deposited as
provisional value from August 10, 1959 until full payment is made to said
defendant or deposit therefor is made in court.
In respect to the defendant Castellvi, interest at 6% per annum will
also be paid by the plaintiff to defendant Castellvi from July 1, 1956 when
plaintiff commenced its illegal possession of the Castellvi land when the
instant action had not yet been commenced to July 10, 1959 when the
provisional value thereof was actually deposited in court, on the total value
of the said (Castellvi) land as herein adjudged. The same rate of interest
shall be paid from July 11, 1959 on the total value of the land herein
adjudged minus the amount deposited as provisional value, or P151,859.80,
such interest to run until full payment is made to said defendant or deposit
therefor is made in court. All the intervenors having failed to produce
evidence in support of their respective interventions, said interventions are
ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial and/or
reconsideration, upon the grounds of newly-discovered evidence, that the
decision was not supported by the evidence, and that the decision was
against the law, against which motion defendants Castellvi and Toledo-Gozun
filed their respective oppositions. On July 8, 1961 when the motion of the
Republic for new trial and/or reconsideration was called for hearing, the
Republic filed a supplemental motion for new trial upon the ground of
additional newly-discovered evidence. This motion for new trial and/or
reconsideration was denied by the court on July 12, 1961.
On July 17, 1961 the Republic gave notice of its intention to appeal
from the decision of May 26, 1961 and the order of July 12, 1961. Defendant
Castellvi also filed, on July 17, 1961, her notice of appeal from the decision
of the trial court.
The Republic filed various ex-parte motions for extension of time
within which to file its record on appeal. The Republic's record on appeal was
finally submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint opposition
to the approval of the Republic's record on appeal, but also a joint
memorandum in support of their opposition. The Republic also filed a
memorandum in support of its prayer for the approval of its record on
appeal. On December 27, 1961 the trial court issued an order declaring both
the record on appeal filed by the Republic, and the record on appeal filed by
defendant Castellvi as having been filed out of time, thereby dismissing both
appeals.
 On January 11, 1962 the Republic filed a "motion to strike out the
order of December 27, 1961 and for reconsideration", and subsequently an
amended record on appeal, against which motion the defendants Castellvi
and Toledo-Gozun filed their opposition. On July 26, 1962 the trial court
issued an order, stating that "in the interest of expediency, the questions
raised may be properly and finally determined by the Supreme Court," and
at the same time it ordered the Solicitor General to submit a record on
appeal containing copies of orders and pleadings specified therein. In an
order dated November 19, 1962, the trial court approved the Republic's
record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant Toledo-
Gozun did not appeal.
The motion to dismiss the Republic's appeal was reiterated by
appellees Castellvi and Toledo-Gozun before this Court, but this Court denied
the motion.
In her motion of August 11, 1964, appellee Castellvi sought to
increase the provisional value of her land. The Republic, in its comment on
Castellvi's motion, opposed the same. This Court denied Castellvi's motion in
a resolution dated October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated October 6,
1969, praying that they be authorized to mortgage the lands subject of
expropriation, was denied by this Court or October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel
for the estate of the late Don Alfonso de Castellvi in the expropriation
proceedings, filed a notice of attorney's lien, stating that as per agreement
with the administrator of the estate of Don Alfonso de Castellvi they shall
receive by way of attorney's fees, "the sum equivalent to ten per centum of
whatever the court may finally decide as the expropriated price of the
property subject matter of the case."
---------
Before this Court, the Republic contends that the lower court erred:
1. In finding the price of P10 per square meter of the lands subject of
the instant proceedings as just compensation;
2. In holding that the "taking" of the properties under expropriation
commenced with the filing of this action;
3. In ordering plaintiff-appellant to pay 6% interest on the adjudged
value of the Castellvi property to start from July of 1956;
4. In denying plaintiff-appellant's motion for new trial based on newly
discovered evidence.
In its brief, the Republic discusses the second error assigned as the
first issue to be considered. We shall follow the sequence of the Republic's
discussion.
 1. In support of the assigned error that the lower court erred in
holding that the "taking" of the properties under expropriation commenced
with the filing of the complaint in this case, the Republic argues that the
"taking" should be reckoned from the year 1947 when by virtue of a special
lease agreement between the Republic and appellee Castellvi, the former
was granted the "right and privilege" to buy the property should the lessor
wish to terminate the lease, and that in the event of such sale, it was
stipulated that the fair market value should be as of the time of occupancy;
and that the permanent improvements amounting to more that half a million
pesos constructed during a period of twelve years on the land, subject of
expropriation, were indicative of an agreed pattern of permanency and
stability of occupancy by the Philippine Air Force in the interest of national
Security. 7
Appellee Castellvi, on the other hand, maintains that the "taking" of
property under the power of eminent domain requires two essential
elements, to wit: (1) entrance and occupation by condemn or upon the
private property for more than a momentary or limited period, and (2)
devoting it to a public use in such a way as to oust the owner and deprive
him of all beneficial enjoyment of the property. This appellee argues that in
the instant case the first element is wanting, for the contract of lease relied
upon provides for a lease from year to year; that the second element is also
wanting, because the Republic was paying the lessor Castellvi a monthly
rental of P445.58; and that the contract of lease does not grant the Republic
the "right and privilege" to buy the premises "at the value at the time of
occupancy." 8
Appellee Toledo-Gozun did not comment on the Republic's argument in
support of the second error assigned, because as far as she was concerned
the Republic had not taken possession of her lands prior to August 10, 1959.
9

In order to better comprehend the issues raised in the appeal, in so far

as the Castellvi property is concerned, it should be noted that the Castellvi
property had been occupied by the Philippine Air Force since 1947 under a
contract of lease, typified by the contract marked Exh. 4-Castellvi, the
pertinent portions of which read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND ENTERED into by and between
INTESTATE ESTATE OF ALFONSO DE CASTELLVI, represented by CARMEN M.
DE CASTELLVI, Judicial Administratrix ... hereinafter called the LESSOR and
THE REPUBLIC OF THE PHILIPPINES represented by MAJ. GEN. CALIXTO
DUQUE, Chief of Staff of the ARMED FORCES OF THE PHILIPPINES,
hereinafter called the LESSEE,
WITNESSETH:
 1. For and in consideration of the rentals hereinafter reserved and the
mutual terms, covenants and conditions of the parties, the LESSOR has, and
by these presents does, lease and let unto the LESSEE the following
described land together with the improvements thereon and appurtenances
thereof, viz:
Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752, parte de
la hacienda de Campauit, situado en el Barrio de San Jose, Municipio de
Floridablanca Pampanga. ... midiendo una extension superficial de cuatro
milliones once mil cuatro cientos trienta y cinco (4,001,435) [sic] metros
cuadrados, mas o menos.
Out of the above described property, 75.93 hectares thereof are
actually occupied and covered by this contract. .
Above lot is more particularly described in TCT No. 1016, province of
Pampanga ...
of which premises, the LESSOR warrants that he/she/they/is/are the
registered owner(s) and with full authority to execute a contract of this
nature.
2. The term of this lease shall be for the period beginning July 1, 1952
the date the premises were occupied by the PHILIPPINE AIR FORCE, AFP
until June 30, 1953, subject to renewal for another year at the option of the
LESSEE or unless sooner terminated by the LESSEE as hereinafter provided.
3. The LESSOR hereby warrants that the LESSEE shall have quiet,
peaceful and undisturbed possession of the demised premises throughout
the full term or period of this lease and the LESSOR undertakes without cost
to the LESSEE to eject all trespassers, but should the LESSOR fail to do so,
the LESSEE at its option may proceed to do so at the expense of the
LESSOR. The LESSOR further agrees that should he/she/they sell or
encumber all or any part of the herein described premises during the period
of this lease, any conveyance will be conditioned on the right of the LESSEE
hereunder.
4. The LESSEE shall pay to the LESSOR as monthly rentals under this
lease the sum of FOUR HUNDRED FIFTY-FIVE PESOS & 58/100 (P455.58) ...
 5. The LESSEE may, at any time prior to the termination of this lease,
use the property for any purpose or purposes and, at its own costs and
expense make alteration, install facilities and fixtures and errect additions ...
which facilities or fixtures ... so placed in, upon or attached to the said
premises shall be and remain property of the LESSEE and may be removed
therefrom by the LESSEE prior to the termination of this lease. The LESSEE
shall surrender possession of the premises upon the expiration or
termination of this lease and if so required by the LESSOR, shall return the
premises in substantially the same condition as that existing at the time
same were first occupied by the AFP, reasonable and ordinary wear and tear
and damages by the elements or by circumstances over which the LESSEE
has no control excepted: PROVIDED, that if the LESSOR so requires the
return of the premises in such condition, the LESSOR shall give written
notice thereof to the LESSEE at least twenty (20) days before the
termination of the lease and provided, further, that should the LESSOR give
notice within the time specified above, the LESSEE shall have the right and
privilege to compensate the LESSOR at the fair value or the equivalent, in
lieu of performance of its obligation, if any, to restore the premises. Fair
value is to be determined as the value at the time of occupancy less fair
wear and tear and depreciation during the period of this lease.
6. The LESSEE may terminate this lease at any time during the term
hereof by giving written notice to the LESSOR at least thirty (30) days in
advance ...
7. The LESSEE should not be responsible, except under special
legislation for any damages to the premises by reason of combat operations,
acts of GOD, the elements or other acts and deeds not due to the negligence
on the part of the LESSEE.
8. This LEASE AGREEMENT supersedes and voids any and all
agreements and undertakings, oral or written, previously entered into
between the parties covering the property herein leased, the same having
been merged herein. This AGREEMENT may not be modified or altered
except by instrument in writing only duly signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract of lease
(Exh. 4, Castellvi) is 'similar in terms and conditions, including the date',
with the annual contracts entered into from year to year between defendant
Castellvi and the Republic of the Philippines (p. 17, t.s.n., Vol. III)". 11 It is
undisputed, therefore, that the Republic occupied Castellvi's land from July
1, 1947, by virtue of the above-mentioned contract, on a year to year basis
(from July 1 of each year to June 30 of the succeeding year) under the terms
and conditions therein stated.
 Before the expiration of the contract of lease on June 30, 1956 the
Republic sought to renew the same but Castellvi refused. When the AFP
refused to vacate the leased premises after the termination of the contract,
on July 11, 1956, Castellvi wrote to the Chief of Staff, AFP, informing the
latter that the heirs of the property had decided not to continue leasing the
property in question because they had decided to subdivide the land for sale
to the general public, demanding that the property be vacated within 30
days from receipt of the letter, and that the premises be returned in
substantially the same condition as before occupancy (Exh. 5 Castellvi). A
follow-up letter was sent on January 12, 1957, demanding the delivery and
return of the property within one month from said date (Exh. 6 Castellvi). On
January 30, 1957, Lieutenant General Alfonso Arellano, Chief of Staff,
answered the letter of Castellvi, saying that it was difficult for the army to
vacate the premises in view of the permanent installations and other
facilities worth almost P500,000.00 that were erected and already
established on the property, and that, there being no other recourse, the
acquisition of the property by means of expropriation proceedings would be
recommended to the President (Exhibit "7" Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance of
Pampanga, in Civil Case No. 1458, to eject the Philippine Air Force from the
land. While this ejectment case was pending, the Republic instituted these
expropriation proceedings, and, as stated earlier in this opinion, the Republic
was placed in possession of the lands on August 10, 1959, On November 21,
1959, the Court of First Instance of Pampanga, dismissed Civil Case No.
1458, upon petition of the parties, in an order which, in part, reads as
follows:
1. Plaintiff has agreed, as a matter of fact has already signed an
agreement with defendants, whereby she has agreed to receive the rent of
the lands, subject matter of the instant case from June 30, 1966 up to 1959
when the Philippine Air Force was placed in possession by virtue of an order
of the Court upon depositing the provisional amount as fixed by the
Provincial Appraisal Committee with the Provincial Treasurer of Pampanga;
2. That because of the above-cited agreement wherein the
administratrix decided to get the rent corresponding to the rent from 1956
up to 1959 and considering that this action is one of illegal detainer and/or
to recover the possession of said land by virtue of non-payment of rents, the
instant case now has become moot and academic and/or by virtue of the
agreement signed by plaintiff, she has waived her cause of action in the
above-entitled case. 12
The Republic urges that the "taking " of Castellvi's property should be
deemed as of the year 1947 by virtue of afore-quoted lease agreement. In
American Jurisprudence, Vol. 26, 2nd edition, Section 157, on the subject of
"Eminent Domain, we read the definition of "taking" (in eminent domain) as
follows:
 Taking' under the power of eminent domain may be defined generally
as entering upon private property for more than a momentary period, and,
under the warrant or color of legal authority, devoting it to a public use, or
otherwise informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment
thereof. 13
Pursuant to the aforecited authority, a number of circumstances must
be present in the "taking" of property for purposes of eminent domain.
First, the expropriator must enter a private property. This circumstance
is present in the instant case, when by virtue of the lease agreement the
Republic, through the AFP, took possession of the property of Castellvi.
 Second, the entrance into private property must be for more than a
momentary period. "Momentary" means, "lasting but a moment; of but a
moment's duration" (The Oxford English Dictionary, Volume VI, page 596);
"lasting a very short time; transitory; having a very brief life; operative or
recurring at every moment" (Webster's Third International Dictionary, 1963
edition.) The word "momentary" when applied to possession or occupancy of
(real) property should be construed to mean "a limited period" not
indefinite or permanent. The aforecited lease contract was for a period of
one year, renewable from year to year. The entry on the property, under the
lease, is temporary, and considered transitory. The fact that the Republic,
through the AFP, constructed some installations of a permanent nature does
not alter the fact that the entry into the land was transitory, or intended to
last a year, although renewable from year to year by consent of 'The owner
of the land. By express provision of the lease agreement the Republic, as
lessee, undertook to return the premises in substantially the same condition
as at the time the property was first occupied by the AFP. It is claimed that
the intention of the lessee was to occupy the land permanently, as may be
inferred from the construction of permanent improvements. But this
"intention" cannot prevail over the clear and express terms of the lease
contract. Intent is to be deduced from the language employed by the
parties, and the terms 'of the contract, when unambiguous, as in the instant
case, are conclusive in the absence of averment and proof of mistake or
fraud the question being not what the intention was, but what is
expressed in the language used. (City of Manila v. Rizal Park Co., Inc., 53
Phil. 515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348).
Moreover, in order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered (Art.
1371, Civil Code). If the intention of the lessee (Republic) in 1947 was really
to occupy permanently Castellvi's property, why was the contract of lease
entered into on year to year basis? Why was the lease agreement renewed
from year to year? Why did not the Republic expropriate this land of Castellvi
in 1949 when, according to the Republic itself, it expropriated the other
parcels of land that it occupied at the same time as the Castellvi land, for
the purpose of converting them into a jet air base? 14 It might really have
been the intention of the Republic to expropriate the lands in question at
some future time, but certainly mere notice - much less an implied notice
of such intention on the part of the Republic to expropriate the lands in the
future did not, and could not, bind the landowner, nor bind the land itself.
The expropriation must be actually commenced in court (Republic vs.
Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or color of
legal authority. This circumstance in the "taking" may be considered as
present in the instant case, because the Republic entered the Castellvi
property as lessee.
 Fourth, the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected. It may be conceded that the
circumstance of the property being devoted to public use is present because
the property was used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in such a
way as to oust the owner and deprive him of all beneficial enjoyment of the
property. In the instant case, the entry of the Republic into the property and
its utilization of the same for public use did not oust Castellvi and deprive
her of all beneficial enjoyment of the property. Castellvi remained as owner,
and was continuously recognized as owner by the Republic, as shown by the
renewal of the lease contract from year to year, and by the provision in the
lease contract whereby the Republic undertook to return the property to
Castellvi when the lease was terminated. Neither was Castellvi deprived of
all the beneficial enjoyment of the property, because the Republic was bound
to pay, and had been paying, Castellvi the agreed monthly rentals until the
time when it filed the complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for
purposes of eminent domain cannot be considered to have taken place in
1947 when the Republic commenced to occupy the property as lessee
thereof. We find merit in the contention of Castellvi that two essential
elements in the "taking" of property under the power of eminent domain,
namely: (1) that the entrance and occupation by the condemnor must be for
a permanent, or indefinite period, and (2) that in devoting the property to
public use the owner was ousted from the property and deprived of its
beneficial use, were not present when the Republic entered and occupied the
Castellvi property in 1947.
 Untenable also is the Republic's contention that although the contract
between the parties was one of lease on a year to year basis, it was "in
reality a more or less permanent right to occupy the premises under the
guise of lease with the 'right and privilege' to buy the property should the
lessor wish to terminate the lease," and "the right to buy the property is
merged as an integral part of the lease relationship ... so much so that the
fair market value has been agreed upon, not, as of the time of purchase, but
as of the time of occupancy" 15 We cannot accept the Republic's contention
that a lease on a year to year basis can give rise to a permanent right to
occupy, since by express legal provision a lease made for a determinate
time, as was the lease of Castellvi's land in the instant case, ceases upon the
day fixed, without need of a demand (Article 1669, Civil Code). Neither can
it be said that the right of eminent domain may be exercised by simply
leasing the premises to be expropriated (Rule 67, Section 1, Rules of Court).
Nor can it be accepted that the Republic would enter into a contract of lease
where its real intention was to buy, or why the Republic should enter into a
simulated contract of lease ("under the guise of lease", as expressed by
counsel for the Republic) when all the time the Republic had the right of
eminent domain, and could expropriate Castellvi's land if it wanted to
without resorting to any guise whatsoever. Neither can we see how a right to
buy could be merged in a contract of lease in the absence of any agreement
between the parties to that effect. To sustain the contention of the Republic
is to sanction a practice whereby in order to secure a low price for a land
which the government intends to expropriate (or would eventually
expropriate) it would first negotiate with the owner of the land to lease the
land (for say ten or twenty years) then expropriate the same when the lease
is about to terminate, then claim that the "taking" of the property for the
purposes of the expropriation be reckoned as of the date when the
Government started to occupy the property under the lease, and then assert
that the value of the property being expropriated be reckoned as of the start
of the lease, in spite of the fact that the value of the property, for many good
reasons, had in the meantime increased during the period of the lease. This
would be sanctioning what obviously is a deceptive scheme, which would
have the effect of depriving the owner of the property of its true and fair
market value at the time when the expropriation proceedings were actually
instituted in court. The Republic's claim that it had the "right and privilege"
to buy the property at the value that it had at the time when it first occupied
the property as lessee nowhere appears in the lease contract. What was
agreed expressly in paragraph No. 5 of the lease agreement was that,
should the lessor require the lessee to return the premises in the same
condition as at the time the same was first occupied by the AFP, the lessee
would have the "right and privilege" (or option) of paying the lessor what it
would fairly cost to put the premises in the same condition as it was at the
commencement of the lease, in lieu of the lessee's performance of the
undertaking to put the land in said condition. The "fair value" at the time of
occupancy, mentioned in the lease agreement, does not refer to the value of
the property if bought by the lessee, but refers to the cost of restoring the
property in the same condition as of the time when the lessee took
possession of the property. Such fair value cannot refer to the purchase
price, for purchase was never intended by the parties to the lease contract.
It is a rule in the interpretation of contracts that "However general the terms
of a contract may be, they shall not be understood to comprehend things
that are distinct and cases that are different from those upon which the
parties intended to agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property should
not be reckoned as of the year 1947 when the Republic first occupied the
same pursuant to the contract of lease, and that the just compensation to be
paid for the Castellvi property should not be determined on the basis of the
value of the property as of that year. The lower court did not commit an
error when it held that the "taking" of the property under expropriation
commenced with the filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just
compensation" is to be determined as of the date of the filing of the
complaint. This Court has ruled that when the taking of the property sought
to be expropriated coincides with the commencement of the expropriation
proceedings, or takes place subsequent to the filing of the complaint for
eminent domain, the just compensation should be determined as of the date
of the filing of the complaint. (Republic vs. Philippine National Bank, L-
14158, April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it is
undisputed that the Republic was placed in possession of the Castellvi
property, by authority of the court, on August 10, 1959. The "taking" of the
Castellvi property for the purposes of determining the just compensation to
be paid must, therefore, be reckoned as of June 26, 1959 when the
complaint for eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to be
expropriated, which had never been under lease to the Republic, the
Republic was placed in possession of said lands, also by authority of the
court, on August 10, 1959, The taking of those lands, therefore, must also
be reckoned as of June 26, 1959, the date of the filing of the complaint for
eminent domain.
2. Regarding the first assigned error discussed as the second issue
the Republic maintains that, even assuming that the value of the
expropriated lands is to be determined as of June 26, 1959, the price of
P10.00 per square meter fixed by the lower court "is not only exhorbitant
but also unconscionable, and almost fantastic". On the other hand, both
Castellvi and Toledo-Gozun maintain that their lands are residential lands
with a fair market value of not less than P15.00 per square meter.
 The lower court found, and declared, that the lands of Castellvi and
Toledo-Gozun are residential lands. The finding of the lower court is in
consonance with the unanimous opinion of the three commissioners who, in
their report to the court, declared that the lands are residential lands.
The Republic assails the finding that the lands are residential,
contending that the plans of the appellees to convert the lands into
subdivision for residential purposes were only on paper, there being no overt
acts on the part of the appellees which indicated that the subdivision project
had been commenced, so that any compensation to be awarded on the basis
of the plans would be speculative. The Republic's contention is not well
taken. We find evidence showing that the lands in question had ceased to be
devoted to the production of agricultural crops, that they had become
adaptable for residential purposes, and that the appellees had actually taken
steps to convert their lands into residential subdivisions even before the
Republic filed the complaint for eminent domain. In the case of City of
Manila vs. Corrales (32 Phil. 82, 98) this Court laid down basic guidelines in
determining the value of the property expropriated for public purposes. This
Court said:
In determining the value of land appropriated for public purposes, the
same consideration are to be regarded as in a sale of property between
private parties. The inquiry, in such cases, must be what is the property
worth in the market, viewed not merely with reference to the uses to which
it is at the time applied, but with reference to the uses to which it is plainly
adapted, that is to say, What is it worth from its availability for valuable
uses?
So many and varied are the circumstances to be taken into account in
determining the value of property condemned for public purposes, that it is
practically impossible to formulate a rule to govern its appraisement in all
cases. Exceptional circumstances will modify the most carefully guarded
rule, but, as a general thing, we should say that the compensation of the
owner is to be estimated by reference to the use for which the property is
suitable, having regard to the existing business or wants of the community,
or such as may be reasonably expected in the immediate future. (Miss. and
Rum River Boom Co. vs. Patterson, 98 U.S., 403).
In expropriation proceedings, therefore, the owner of the land has the
right to its value for the use for which it would bring the most in the market.
17
The owner may thus show every advantage that his property possesses,
present and prospective, in order that the price it could be sold for in the
market may be satisfactorily determined. 18 The owner may also show that
the property is suitable for division into village or town lots. 19
 The trial court, therefore, correctly considered, among other
circumstances, the proposed subdivision plans of the lands sought to be
expropriated in finding that those lands are residential lots. This finding of
the lower court is supported not only by the unanimous opinion of the
commissioners, as embodied in their report, but also by the Provincial
Appraisal Committee of the province of Pampanga composed of the
Provincial Treasurer, the Provincial Auditor and the District Engineer. In the
minutes of the meeting of the Provincial Appraisal Committee, held on May
14, 1959 (Exh. 13-Castellvi) We read in its Resolution No. 10 the following:
3. Since 1957 the land has been classified as residential in view of its
proximity to the air base and due to the fact that it was not being devoted to
agriculture. In fact, there is a plan to convert it into a subdivision for
residential purposes. The taxes due on the property have been paid based
on its classification as residential land;
The evidence shows that Castellvi broached the idea of subdividing her
land into residential lots as early as July 11, 1956 in her letter to the Chief of
Staff of the Armed Forces of the Philippines. (Exh. 5-Castellvi) As a matter of
fact, the layout of the subdivision plan was tentatively approved by the
National Planning Commission on September 7, 1956. (Exh. 8-Castellvi). The
land of Castellvi had not been devoted to agriculture since 1947 when it was
leased to the Philippine Army. In 1957 said land was classified as residential,
and taxes based on its classification as residential had been paid since then
(Exh. 13-Castellvi). The location of the Castellvi land justifies its suitability
for a residential subdivision. As found by the trial court, "It is at the left side
of the entrance of the Basa Air Base and bounded on two sides by roads
(Exh. 13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the poblacion,
(of Floridablanca) the municipal building, and the Pampanga Sugar Mills are
closed by. The barrio schoolhouse and chapel are also near (T.S.N.
November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the
same condition as the land of Castellvi. The lands of Toledo-Gozun adjoin the
land of Castellvi. They are also contiguous to the Basa Air Base, and are
along the road. These lands are near the barrio schoolhouse, the barrio
chapel, the Pampanga Sugar Mills, and the poblacion of Floridablanca (Exhs.
1, 3 and 4-Toledo-Gozun). As a matter of fact, regarding lot 1-B it had
already been surveyed and subdivided, and its conversion into a residential
subdivision was tentatively approved by the National Planning Commission
on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As early as June, 1958, no
less than 32 man connected with the Philippine Air Force among them
commissioned officers, non-commission officers, and enlisted men had
requested Mr. and Mrs. Joaquin D. Gozun to open a subdivision on their
lands in question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
 We agree with the findings, and the conclusions, of the lower court
that the lands that are the subject of expropriation in the present case, as of
August 10, 1959 when the same were taken possession of by the Republic,
were residential lands and were adaptable for use as residential subdivisions.
Indeed, the owners of these lands have the right to their value for the use
for which they would bring the most in the market at the time the same
were taken from them. The most important issue to be resolved in the
present case relates to the question of what is the just compensation that
should be paid to the appellees.
The Republic asserts that the fair market value of the lands of the
appellees is P.20 per square meter. The Republic cites the case of Republic
vs. Narciso, et al., L-6594, which this Court decided on May 18, 1956. The
Narciso case involved lands that belonged to Castellvi and Toledo-Gozun, and
to one Donata Montemayor, which were expropriated by the Republic in 1949
and which are now the site of the Basa Air Base. In the Narciso case this
Court fixed the fair market value at P.20 per square meter. The lands that
are sought to be expropriated in the present case being contiguous to the
lands involved in the Narciso case, it is the stand of the Republic that the
price that should be fixed for the lands now in question should also be at
P.20 per square meter.
We can not sustain the stand of the Republic. We find that the price of
P.20 per square meter, as fixed by this Court in the Narciso case, was based
on the allegation of the defendants (owners) in their answer to the complaint
for eminent domain in that case that the price of their lands was P2,000.00
per hectare and that was the price that they asked the court to pay them.
This Court said, then, that the owners of the land could not be given more
than what they had asked, notwithstanding the recommendation of the
majority of the Commission on Appraisal which was adopted by the trial
court that the fair market value of the lands was P3,000.00 per hectare.
We also find that the price of P.20 per square meter in the Narciso case was
considered the fair market value of the lands as of the year 1949 when the
expropriation proceedings were instituted, and at that time the lands were
classified as sugar lands, and assessed for taxation purposes at around
P400.00 per hectare, or P.04 per square meter. 22 While the lands involved
in the present case, like the lands involved in the Narciso case, might have a
fair market value of P.20 per square meter in 1949, it can not be denied that
ten years later, in 1959, when the present proceedings were instituted, the
value of those lands had increased considerably. The evidence shows that
since 1949 those lands were no longer cultivated as sugar lands, and in
1959 those lands were already classified, and assessed for taxation
purposes, as residential lands. In 1959 the land of Castellvi was assessed at
P1.00 per square meter. 23
 The Republic also points out that the Provincial Appraisal Committee of
Pampanga, in its resolution No. 5 of February 15, 1957 (Exhibit D),
recommended the sum of P.20 per square meter as the fair valuation of the
Castellvi property. We find that this resolution was made by the Republic the
basis in asking the court to fix the provisional value of the lands sought to be
expropriated at P259,669.10, which was approved by the court. 24 It must be
considered, however, that the amount fixed as the provisional value of the
lands that are being expropriated does not necessarily represent the true
and correct value of the land. The value is only "provisional" or "tentative",
to serve as the basis for the immediate occupancy of the property being
expropriated by the condemnor. The records show that this resolution No. 5
was repealed by the same Provincial Committee on Appraisal in its resolution
No. 10 of May 14, 1959 (Exhibit 13-Castellvi). In that resolution No. 10, the
appraisal committee stated that "The Committee has observed that the value
of the land in this locality has increased since 1957 ...", and recommended
the price of P1.50 per square meter. It follows, therefore, that, contrary to
the stand of the Republic, that resolution No. 5 of the Provincial Appraisal
Committee can not be made the basis for fixing the fair market value of the
lands of Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting Assistant
Provincial Assessor of Pampanga, dated February 8, 1961 (Exhibit K), to the
effect that in 1950 the lands of Toledo-Gozun were classified partly as sugar
land and partly as urban land, and that the sugar land was assessed at P.40
per square meter, while part of the urban land was assessed at P.40 per
square meter and part at P.20 per square meter; and that in 1956 the
Castellvi land was classified as sugar land and was assessed at P450.00 per
hectare, or P.045 per square meter. We can not also consider this
certification of the Acting Assistant Provincial Assessor as a basis for fixing
the fair market value of the lands of Castellvi and Toledo-Gozun because, as
the evidence shows, the lands in question, in 1957, were already classified
and assessed for taxation purposes as residential lands. The certification of
the assessor refers to the year 1950 as far as the lands of Toledo-Gozun are
concerned, and to the year 1956 as far as the land of Castellvi is concerned.
Moreover, this Court has held that the valuation fixed for the purposes of the
assessment of the land for taxation purposes can not bind the landowner
where the latter did not intervene in fixing it. 25
 On the other hand, the Commissioners, appointed by the court to
appraise the lands that were being expropriated, recommended to the court
that the price of P10.00 per square meter would be the fair market value of
the lands. The commissioners made their recommendation on the basis of
their observation after several ocular inspections of the lands, of their own
personal knowledge of land values in the province of Pampanga, of the
testimonies of the owners of the land, and other witnesses, and of
documentary evidence presented by the appellees. Both Castellvi and
Toledo-Gozun testified that the fair market value of their respective land was
at P15.00 per square meter. The documentary evidence considered by the
commissioners consisted of deeds of sale of residential lands in the town of
San Fernando and in Angeles City, in the province of Pampanga, which were
sold at prices ranging from P8.00 to P20.00 per square meter (Exhibits 15,
16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The commissioners also considered
the decision in Civil Case No. 1531 of the Court of First Instance of
Pampanga, entitled Republic vs. Sabina Tablante, which was expropriation
case filed on January 13, 1959, involving a parcel of land adjacent to the
Clark Air Base in Angeles City, where the court fixed the price at P18.00 per
square meter (Exhibit 14-Castellvi). In their report, the commissioners,
among other things, said:
... This expropriation case is specially pointed out, because the
circumstances and factors involved therein are similar in many respects to
the defendants' lands in this case. The land in Civil Case No. 1531 of this
Court and the lands in the present case (Civil Case No. 1623) are both near
the air bases, the Clark Air Base and the Basa Air Base respectively. There is
a national road fronting them and are situated in a first-class municipality.
As added advantage it may be said that the Basa Air Base land is very near
the sugar mill at Del Carmen, Floridablanca, Pampanga, owned by the
Pampanga Sugar Mills. Also just stone's throw away from the same lands is
a beautiful vacation spot at Palacol, a sitio of the town of Floridablanca,
which counts with a natural swimming pool for vacationists on weekends.
These advantages are not found in the case of the Clark Air Base. The
defendants' lands are nearer to the poblacion of Floridablanca then Clark Air
Base is nearer (sic) to the poblacion of Angeles, Pampanga.
The deeds of absolute sale, according to the undersigned
commissioners, as well as the land in Civil Case No. 1531 are competent
evidence, because they were executed during the year 1959 and before
August 10 of the same year. More specifically so the land at Clark Air Base
which coincidentally is the subject matter in the complaint in said Civil Case
No. 1531, it having been filed on January 13, 1959 and the taking of the
land involved therein was ordered by the Court of First Instance of
Pampanga on January 15, 1959, several months before the lands in this case
were taken by the plaintiffs ....
 From the above and considering further that the lowest as well as the
highest price per square meter obtainable in the market of Pampanga
relative to subdivision lots within its jurisdiction in the year 1959 is very well
known by the Commissioners, the Commission finds that the lowest price
that can be awarded to the lands in question is P10.00 per square meter. 26
The lower court did not altogether accept the findings of the
Commissioners based on the documentary evidence, but it considered the
documentary evidence as basis for comparison in determining land values.
The lower court arrived at the conclusion that "the unanimous
recommendation of the commissioners of ten (P10.00) pesos per square
meter for the three lots of the defendants subject of this action is fair and
just". 27 In arriving at its conclusion, the lower court took into consideration,
among other circumstances, that the lands are titled, that there is a rising
trend of land values, and the lowered purchasing power of the Philippine
peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328,
this Court said:
A court of first instance or, on appeal, the Supreme Court, may change
or modify the report of the commissioners by increasing or reducing the
amount of the award if the facts of the case so justify. While great weight is
attached to the report of the commissioners, yet a court may substitute
therefor its estimate of the value of the property as gathered from the
record in certain cases, as, where the commissioners have applied illegal
principles to the evidence submitted to them, or where they have
disregarded a clear preponderance of evidence, or where the amount
allowed is either palpably inadequate or excessive. 28
 The report of the commissioners of appraisal in condemnation
proceedings are not binding, but merely advisory in character, as far as the
court is concerned. 29 In our analysis of the report of the commissioners, We
find points that merit serious consideration in the determination of the just
compensation that should be paid to Castellvi and Toledo-Gozun for their
lands. It should be noted that the commissioners had made ocular
inspections of the lands and had considered the nature and similarities of
said lands in relation to the lands in other places in the province of
Pampanga, like San Fernando and Angeles City. We cannot disregard the
observations of the commissioners regarding the circumstances that make
the lands in question suited for residential purposes their location near the
Basa Air Base, just like the lands in Angeles City that are near the Clark Air
Base, and the facilities that obtain because of their nearness to the big sugar
central of the Pampanga Sugar mills, and to the flourishing first class town of
Floridablanca. It is true that the lands in question are not in the territory of
San Fernando and Angeles City, but, considering the facilities of modern
communications, the town of Floridablanca may be considered practically
adjacent to San Fernando and Angeles City. It is not out of place, therefore,
to compare the land values in Floridablanca to the land values in San
Fernando and Angeles City, and form an idea of the value of the lands in
Floridablanca with reference to the land values in those two other
communities.
 The important factor in expropriation proceeding is that the owner is
awarded the just compensation for his property. We have carefully studied
the record, and the evidence, in this case, and after considering the
circumstances attending the lands in question We have arrived at the
conclusion that the price of P10.00 per square meter, as recommended by
the commissioners and adopted by the lower court, is quite high. It is Our
considered view that the price of P5.00 per square meter would be a fair
valuation of the lands in question and would constitute a just compensation
to the owners thereof. In arriving at this conclusion We have particularly
taken into consideration the resolution of the Provincial Committee on
Appraisal of the province of Pampanga informing, among others, that in the
year 1959 the land of Castellvi could be sold for from P3.00 to P4.00 per
square meter, while the land of Toledo-Gozun could be sold for from P2.50 to
P3.00 per square meter. The Court has weighed all the circumstances
relating to this expropriations proceedings, and in fixing the price of the
lands that are being expropriated the Court arrived at a happy medium
between the price as recommended by the commissioners and approved by
the court, and the price advocated by the Republic. This Court has also taken
judicial notice of the fact that the value of the Philippine peso has
considerably gone down since the year 1959. 30 Considering that the lands of
Castellvi and Toledo-Gozun are adjoining each other, and are of the same
nature, the Court has deemed it proper to fix the same price for all these
lands.
3. The third issue raised by the Republic relates to the payment of
interest. The Republic maintains that the lower court erred when it ordered
the Republic to pay Castellvi interest at the rate of 6% per annum on the
total amount adjudged as the value of the land of Castellvi, from July 1,
1956 to July 10, 1959. We find merit in this assignment of error.
In ordering the Republic to pay 6% interest on the total value of the
land of Castellvi from July 1, 1956 to July 10, 1959, the lower court held that
the Republic had illegally possessed the land of Castellvi from July 1, 1956,
after its lease of the land had expired on June 30, 1956, until August 10,
1959 when the Republic was placed in possession of the land pursuant to the
writ of possession issued by the court. What really happened was that the
Republic continued to occupy the land of Castellvi after the expiration of its
lease on June 30, 1956, so much so that Castellvi filed an ejectment case
against the Republic in the Court of First Instance of Pampanga. 31 However,
while that ejectment case was pending, the Republic filed the complaint for
eminent domain in the present case and was placed in possession of the land
on August 10, 1959, and because of the institution of the expropriation
proceedings the ejectment case was later dismissed. In the order dismissing
the ejectment case, the Court of First Instance of Pampanga said:
 Plaintiff has agreed, as a matter of fact has already signed an
agreement with defendants, whereby she had agreed to receive the rent of
the lands, subject matter of the instant case from June 30, 1956 up to 1959
when the Philippine Air Force was placed in possession by virtue of an order
of the Court upon depositing the provisional amount as fixed by the
Provincial Appraisal Committee with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30, 1956 to
August 10, 1959, she should be considered as having allowed her land to be
leased to the Republic until August 10, 1959, and she could not at the same
time be entitled to the payment of interest during the same period on the
amount awarded her as the just compensation of her land. The Republic,
therefore, should pay Castellvi interest at the rate of 6% per annum on the
value of her land, minus the provisional value that was deposited, only from
July 10, 1959 when it deposited in court the provisional value of the land.
4. The fourth error assigned by the Republic relates to the denial by
the lower court of its motion for a new trial based on nearly discovered
evidence. We do not find merit in this assignment of error.
After the lower court had decided this case on May 26, 1961, the
Republic filed a motion for a new trial, supplemented by another motion,
both based upon the ground of newly discovered evidence. The alleged
newly discovered evidence in the motion filed on June 21, 1961 was a deed
of absolute sale-executed on January 25, 1961, showing that a certain
Serafin Francisco had sold to Pablo L. Narciso a parcel of sugar land having
an area of 100,000 square meters with a sugar quota of 100 piculs, covered
by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for P14,000, or
P.14 per square meter.
In the supplemental motion, the alleged newly discovered evidence
were: (1) a deed of sale of some 35,000 square meters of land situated at
Floridablanca for P7,500.00 (or about P.21 per square meter) executed in
July, 1959, by the spouses Evelyn D. Laird and Cornelio G. Laird in favor of
spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a deed of
absolute sale of a parcel of land having an area of 4,120,101 square meters,
including the sugar quota covered by Plantation Audit No. 161 1345, situated
at Floridablanca, Pampanga, for P860.00 per hectare (a little less than P.09
per square meter) executed on October 22, 1957 by Jesus Toledo y Mendoza
in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the motions
for a new trial.
 To warrant the granting of a new trial based on the ground of newly
discovered evidence, it must appear that the evidence was discovered after
the trial; that even with the exercise of due diligence, the evidence could not
have been discovered and produced at the trial; and that the evidence is of
such a nature as to alter the result of the case if admitted. 32 The lower court
correctly ruled that these requisites were not complied with.
The lower court, in a well-reasoned order, found that the sales made
by Serafin Francisco to Pablo Narciso and that made by Jesus Toledo to the
Land Tenure Administration were immaterial and irrelevant, because those
sales covered sugarlands with sugar quotas, while the lands sought to be
expropriated in the instant case are residential lands. The lower court also
concluded that the land sold by the spouses Laird to the spouses Aguas was
a sugar land.
We agree with the trial court. In eminent domain proceedings, in order
that evidence as to the sale price of other lands may be admitted in evidence
to prove the fair market value of the land sought to be expropriated, the
lands must, among other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands mentioned in
those deeds of sale were residential, the evidence would still not warrant the
grant of a new trial, for said evidence could have been discovered and
produced at the trial, and they cannot be considered newly discovered
evidence as contemplated in Section 1(b) of Rule 37 of the Rules of Court.
Regarding this point, the trial court said:
The Court will now show that there was no reasonable diligence
employed.
 The land described in the deed of sale executed by Serafin Francisco,
copy of which is attached to the original motion, is covered by a Certificate
of Title issued by the Office of the Register of Deeds of Pampanga. There is
no question in the mind of the court but this document passed through the
Office of the Register of Deeds for the purpose of transferring the title or
annotating the sale on the certificate of title. It is true that Fiscal Lagman
went to the Office of the Register of Deeds to check conveyances which may
be presented in the evidence in this case as it is now sought to be done by
virtue of the motions at bar, Fiscal Lagman, one of the lawyers of the
plaintiff, did not exercise reasonable diligence as required by the rules. The
assertion that he only went to the office of the Register of Deeds 'now and
then' to check the records in that office only shows the half-hazard [sic]
manner by which the plaintiff looked for evidence to be presented during the
hearing before the Commissioners, if it is at all true that Fiscal Lagman did
what he is supposed to have done according to Solicitor Padua. It would
have been the easiest matter for plaintiff to move for the issuance of a
subpoena duces tecum directing the Register of Deeds of Pampanga to come
to testify and to bring with him all documents found in his office pertaining
to sales of land in Floridablanca adjacent to or near the lands in question
executed or recorded from 1958 to the present. Even this elementary
precaution was not done by plaintiff's numerous attorneys.
The same can be said of the deeds of sale attached to the
supplementary motion. They refer to lands covered by certificate of title
issued by the Register of Deeds of Pampanga. For the same reason they
could have been easily discovered if reasonable diligence has been exerted
by the numerous lawyers of the plaintiff in this case. It is noteworthy that all
these deeds of sale could be found in several government offices, namely, in
the Office of the Register of Deeds of Pampanga, the Office of the Provincial
Assessor of Pampanga, the Office of the Clerk of Court as a part of notarial
reports of notaries public that acknowledged these documents, or in the
archives of the National Library. In respect to Annex 'B' of the supplementary
motion copy of the document could also be found in the Office of the Land
Tenure Administration, another government entity. Any lawyer with a
modicum of ability handling this expropriation case would have right away
though [sic] of digging up documents diligently showing conveyances of
lands near or around the parcels of land sought to be expropriated in this
case in the offices that would have naturally come to his mind such as the
offices mentioned above, and had counsel for the movant really exercised
the reasonable diligence required by the Rule' undoubtedly they would have
been able to find these documents and/or caused the issuance of subpoena
duces tecum. ...
It is also recalled that during the hearing before the Court of the
Report and Recommendation of the Commissioners and objection thereto,
Solicitor Padua made the observation:
 I understand, Your Honor, that there was a sale that took place in this
place of land recently where the land was sold for P0.20 which is contiguous
to this land.
The Court gave him permission to submit said document subject to the
approval of the Court. ... This was before the decision was rendered, and
later promulgated on May 26, 1961 or more than one month after Solicitor
Padua made the above observation. He could have, therefore, checked up
the alleged sale and moved for a reopening to adduce further evidence. He
did not do so. He forgot to present the evidence at a more propitious time.
Now, he seeks to introduce said evidence under the guise of newly-
discovered evidence. Unfortunately the Court cannot classify it as newly-
discovered evidence, because tinder the circumstances, the correct
qualification that can be given is 'forgotten evidence'. Forgotten however, is
not newly-discovered evidence. 33
The granting or denial of a motion for new trial is, as a general rule,
discretionary with the trial court, whose judgment should not be disturbed
unless there is a clear showing of abuse of discretion. 34 We do not see any
abuse of discretion on the part of the lower court when it denied the motions
for a new trial.
WHEREFORE, the decision appealed from is modified, as follows:
(a) the lands of appellees Carmen Vda. de Castellvi and Maria Nieves
Toledo-Gozun, as described in the complaint, are declared expropriated for
public use;
(b) the fair market value of the lands of the appellees is fixed at P5.00
per square meter;
(c) the Republic must pay appellee Castellvi the sum of P3,796,495.00
as just compensation for her one parcel of land that has an area of 759,299
square meters, minus the sum of P151,859.80 that she withdrew out of the
amount that was deposited in court as the provisional value of the land, with
interest at the rate of 6% per annum from July 10, 1959 until the day full
payment is made or deposited in court;
(d) the Republic must pay appellee Toledo-Gozun the sum of
P2,695,225.00 as the just compensation for her two parcels of land that
have a total area of 539,045 square meters, minus the sum of P107,809.00
that she withdrew out of the amount that was deposited in court as the
provisional value of her lands, with interest at the rate of 6%, per annum
from July 10, 1959 until the day full payment is made or deposited in court;
(e) the attorney's lien of Atty. Alberto Cacnio is enforced; and
(f) the costs should be paid by appellant Republic of the Philippines, as
provided in Section 12, Rule 67, and in Section 13, Rule 141, of the Rules of
Court.
IT IS SO ORDERED.
 Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muoz Palma
and Aquino, JJ., concur.
Castro, Fernando, Teehankee and Makasiar, JJ., took no part.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION
G.R. No. L-60077 January 18, 1991
NATIONAL POWER CORPORATION, petitioner, vs.SPS.
MISERICORDIA GUTIERREZ and RICARDO MALIT and THE
HONORABLE COURT OF APPEALS, respondents.
Pedro S. Dabu for private respondents.

BIDIN, J.:
This is a petition for review on certiorari filed by the National Power
Corporation (NPC) seeking the reversal or modification of the March 9, 1986
Decision of the Court of Appeals in CA G.R. No. 54291-R entitled "National
Power Corporation v. Sps. Misericordia Gutierrez and Ricardo Malit",
affirming the December 4, 1972 Decision of the then Court of First Instance
of Pampanga, Fifth Judicial District, Branch II, in Civil Case No. 2709,
entitled National Power Corporation v. Matias Cruz, et al.
The undisputed facts of the case, as found by the Court of Appeals, are
as follows:
Plaintiff National Power Corporation, a government owned and
controlled entity, in accordance with Commonwealth Act No. 120, is invested
with the power of eminent domain for the purpose of pursuing its objectives,
which among others is the construction, operation, and maintenance of
electric transmission lines for distribution throughout the Philippines. For the
construction of its 230 KV Mexico-Limay transmission lines, plaintiff's lines
have to pass the lands belonging to defendants Matias Cruz, Heirs of Natalia
Paule and spouses Misericordia Gutierrez and Ricardo Malit covered by tax
declarations Nos. 907, 4281 and 7582, respectively.
Plaintiff initiated negotiations for the acquisition of right of way
easements over the aforementioned lots for the construction of its
transmission lines but unsuccessful in this regard, said corporation was
constrained to file eminent domain proceedings against the herein
defendants on January 20, 1965.
 Upon filing of the corresponding complaint, plaintiff corporation
deposited the amount of P973.00 with the Provincial Treasurer of Pampanga,
tendered to cover the provisional value of the land of the defendant spouses
Ricardo Malit and Misericordia Gutierrez. And by virtue of which, the plaintiff
corporation was placed in possession of the property of the defendant
spouses so it could immediately proceed with the construction of its Mexico-
Limay 230 KV transmission line. In this connection, by the trial court's order
of September 30, 1965, the defendant spouses were authorized to withdraw
the fixed provisional value of their land in the sum of P973.00.
The only controversy existing between the parties litigants is the
reasonableness and adequacy of the disturbance or compensation fee of the
expropriated properties.
Meanwhile, for the purpose of determining the fair and just
compensation due the defendants, the court appointed three commissioners,
comprised of one representative of the plaintiff, one for the defendants and
the other from the court, who then were empowered to receive evidence,
conduct ocular inspection of the premises, and thereafter, prepare their
appraisals as to the fair and just compensation to be paid to the owners of
the lots. Hearings were consequently held before said commissioners and
during their hearings, the case of defendant Heirs of Natalia Paule was
amicably settled by virtue of a Right of Way Grant (Exh. C) executed by
Guadalupe Sangalang for herself and in behalf of her co-heirs in favor of the
plaintiff corporation. The case against Matias Cruz was earlier decided by the
court, thereby leaving only the case against the defendant spouses Ricardo
Malit and Misericordia Gutierrez still to be resolved. Accordingly, the
commissioners submitted their individual reports. The commissioner for the
plaintiff corporation recommended the following:
. . . that plaintiff be granted right of way easement over the 760
square meters of the defendants Malit and Gutierrez land for plaintiff
transmission line upon payment of an easement fee of P1.00 therefor. . . .
(Annex M)
The commissioner for the defendant spouses recommended the
following:
. . . that Mr. and Mrs. Ricardo Malit be paid as disturbance
compensation the amount of P10.00 sq. meter or the total amount of
P7,600.00' (Annex K)
The Court's commissioner recommended the following:
. . . the payment of Five (P 5.OO) Pesos per square meter of the area
covered by the Right-of-way to be granted, . . .(Annex L)
The plaintiff corporation urged the Court that the assessment as
recommended by their commissioner be the one adopted. Defendant
spouses, however, dissented and objected to the price recommended by
both the representative of the court and of the plaintiff corporation.
 With these reports submitted by the three commissioners and on the
evidence adduced by the defendants as well as the plaintiff for the purpose
of proving the fair market value of the property sought to be expropriated,
the lower court rendered a decision the dispositive portion of which reads as
follows:
WHEREFORE, responsive to the foregoing considerations, judgment is
hereby rendered ordering plaintiff National Power Corporation to pay
defendant spouses Ricardo Malit and Misericordia Gutierrez the sum of
P10.00 per square meter as the fair and reasonable compensation for the
right-of-way easement of the affected area, which is 760 squares, or a total
sum of P7,600.00 and P800.00 as attorney's fees' (Record on Appeal, p. 83)
Dissatisfied with the decision, the plaintiff corporation filed a motion
for reconsideration which was favorably acted upon by the lower court, and
in an order dated June 10, 1973, it amended its previous decision in the
following tenor:
On the basis of an ocular inspection made personally by the
undersigned, this court finally classified the land of the spouses Ricardo Malit
and Misericordia to be partly commercial and partly agricultural, for which
reason the amount of P10.00 per sq. meter awarded in the decision of
December 4,1972 is hereby reduced to P5.00 per square meter as the fair
and reasonable market value of the 760 square meters belonging to the said
spouses.
There being no claim and evidence for attorney's fees, the amount of
P800.00 awarded as attorney's fees, in the decision of December 4, 1972 is
hereby reconsidered and set aside. (Annex S)
Still not satisfied, an appeal was filed by petitioner (NPC) with the
Court of Appeals but respondent Court of Appeals in its March 9, 1982,
sustained the trial court, as follows:
WHEREFORE, finding no reversible error committed by the court a quo,
the appealed judgment is hereby affirmed with costs against the plaintiff-
appellant.
Hence, the instant petition.
The First Division of this Court gave due course to the petition and
required both parties to submit their respective memoranda (Resolution of
January 12, 1983). It also noted in an internal resolution of August 17, 1983
that petitioner flied its memorandum while the respondents failed to file their
memorandum within the period which expired on February 24,1983; hence,
the case was considered submitted for decision.
The sole issue raised by petitioner is
WHETHER PETITIONER SHOULD BE MADE TO PAY SIMPLE EASEMENT
FEE OR FULL COMPENSATION FOR THE LAND TRAVERSED BY ITS
TRANSMISSION LINES.
 It is the contention of petitioner that the Court of Appeals committed
gross error by adjudging the petitioner liable for the payment of the full
market value of the land traversed by its transmission lines, and that it
overlooks the undeniable fact that a simple right-of-way easement (for the
passage of transmission lines) transmits no rights, except that of the
easement. Full ownership is retained by the private respondents and they
are not totally deprived of the use of the land. They can continue planting
the same agricultural crops, except those that would result in contact with
the wires. On this premise, petitioner submits that if full market value is
required, then full transfer of ownership is only the logical equivalent.
The petition is devoid of merit. The resolution of this case hinges on
the determination of whether the acquisition of a mere right-of-way is an
exercise of the power of eminent domain contemplated by law.1wphi1
The trial court's observation shared by the appellate court show that ".
. . While it is true that plaintiff are (sic) only after a right-of-way easement,
it nevertheless perpetually deprives defendants of their proprietary rights as
manifested by the imposition by the plaintiff upon defendants that below
said transmission lines no plant higher than three (3) meters is allowed.
Furthermore, because of the high-tension current conveyed through said
transmission lines, danger to life and limbs that may be caused beneath said
wires cannot altogether be discounted, and to cap it all plaintiff only pays the
fee to defendants once, while the latter shall continually pay the taxes due
on said affected portion of their property."
The foregoing facts considered, the acquisition of the right-of-way
easement falls within the purview of the power of eminent domain. Such
conclusion finds support in similar cases of easement of right-of-way where
the Supreme Court sustained the award of just compensation for private
property condemned for public use (See National Power Corporation vs.
Court of Appeals, 129 SCRA 665, 1984; Garcia vs. Court of Appeals, 102
SCRA 597,1981). The Supreme Court, in Republic of the Philippines vs.
PLDT, * thus held that:
Normally, of course, the power of eminent domain results in the taking
or appropriation of title to, and possession of, the expropriated property; but
no cogent reason appears why said power may not be availed of to impose
only a burden upon the owner of condemned property, without loss of title
and possession. It is unquestionable that real property may, through
expropriation, be subjected to an easement of right-of-way.
In the case at bar, the easement of right-of-way is definitely a taking
under the power of eminent domain. Considering the nature and effect of
the installation of the 230 KV Mexico-Limay transmission lines, the limitation
imposed by NPC against the use of the land for an indefinite period deprives
private respondents of its ordinary use.
 For these reasons, the owner of the property expropriated is entitled to
a just compensation, which should be neither more nor less, whenever it is
possible to make the assessment, than the money equivalent of said
property. Just compensation has always been understood to be the just and
complete equivalent of the loss which the owner of the thing expropriated
has to suffer by reason of the expropriation (Province of Tayabas vs. Perez,
66 Phil. 467 [1938]; Assoc. of Small Land Owners of the Phils., Inc. vs.
Secretary of Agrarian Reform, G.R. No. 78742; Acuna vs. Arroyo, G.R. No.
79310; Pabrico vs. Juico, G.R. No. 79744; Manaay v. Juico, G.R. No.
79777,14 July 1989, 175 SCRA 343 [1989]). The price or value of the land
and its character at the time it was taken by the Government are the criteria
for determining just compensation (National Power Corp. v. Court of
Appeals, 129 SCRA 665, [1984]). The above price refers to the market value
of the land which may be the full market value thereof. According to private
respondents, the market value of their lot is P50.00 per square meter
because the said lot is adjacent to the National and super highways of
Gapan, Nueva Ecija and Olongapo City.
Private respondents recognize the inherent power of eminent domain
being exercised by NPC when it finally consented to the expropriation of the
said portion of their land, subject however to payment of just compensation.
No matter how laudable NPC's purpose is, for which expropriation was
sought, it is just and equitable that they be compensated the fair and full
equivalent for the loss sustained, which is the measure of the indemnity, not
whatever gain would accrue to the expropriating entity (EPZA v. Dulay, 149
SCRA 305 [1987]; Mun. of Daet v. Court of Appeals, 93 SCRA 503 (1979]).
It appearing that the trial court did not act capriciously and arbitrarily
in setting the price of P5.00 per square meter of the affected property, the
said award is proper and not unreasonable.
On the issue of ownership being claimed by petitioner in the event that
the price of P5.00 per square meter be sustained, it is well settled that an
issue which has not been raised in the Court a quo cannot be raised for the
first time on appeal as it would be offensive to the basic rules of fair play,
justice and due process . . . (Filipino Merchants v. Court of Appeals, G.R. No.
85141, November 8, 1989, 179 SCRA 638; Commissioner of Internal
Revenue v. Procter and Gamble Philippines Manufacturing Corporation, 160
SCRA 560 [1988]; Commissioner of Internal Revenue v. Wander Philippines,
Inc., 160 SCRA 573 1988]). Petitioner only sought an easement of right-of-
way, and as earlier discussed, the power of eminent domain may be
exercised although title was not transferred to the expropriator.
WHEREFORE, the assailed decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
 Fernan, C.J. and Feliciano, J., concur.Gutierrez, Jr., J., I concur but
believe payment should be P10.00 a sq. meter at the very least.

U.S. Supreme Court

United States v. Causby, 328 U.S. 256 (1946)
United States v. Causby
No. 630
Argued May 1, 1946
Decided May 27, 1946
328 U.S. 256

CERTIORARI TO THE COURT OF CLAIMS

Syllabus
Respondents owned a dwelling and a chicken farm near a municipal
airport. The safe path of glide to one of the runways of the airport passed
directly over respondents' property at 83 feet, which was 67 feet above the
house, 63 feet above the barn and 18 feet above the highest tree. It was
used 4% of the time in taking off and 7% of the time in landing. The
Government leased the use of the airport for a term of one month
commencing June 1, 1942, with a provision for renewals until June 30, 1967,
or six months after the end of the national emergency, whichever was
earlier. Various military aircraft of the United States used the airport. They
frequently came so close to respondents' property that they barely missed
the tops of trees, the noise was startling, and the glare from their landing
lights lighted the place up brightly at night. This destroyed the use of the
property as a chicken farm and caused loss of sleep, nervousness, and fright
on the part of respondents. They sued in the Court of Claims to recover for
an alleged taking of their property and for damages to their poultry
business. The Court of Claims found that the Government had taken an
easement over respondents' property, and that the value of the property
destroyed and the easement taken was $2,000; but it made no finding as to
the precise nature or duration of the easement.
Held:
1. A servitude has been imposed upon the land for which respondents
are entitled to compensation under the Fifth Amendment. Pp. 328 U. S. 260-
267.
(a) The common law doctrine that ownership of land extends to the
periphery of the universe has no place in the modern world. Pp. 328 U. S.
260-261.
(b) The air above the minimum safe altitude of flight prescribed by the
Civil Aeronautics Authority is a public highway and part of the public domain,
as declared by Congress in the Air Commerce Act of 1926, as amended by
the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.
 (c) Flights below that altitude are not within the navigable air space
which Congress placed within the public domain, even though they are
within the path of glide approved by the Civil Aeronautics Authority. Pp. 328
U. S. 263-264.
Page 328 U. S. 257

(d) Flights of aircraft over private land which are so low and frequent
as to be a direct and immediate interference with the enjoyment and use of
the land are as much an appropriation of the use of the land as a more
conventional entry upon it. Pp. 328 U. S. 261-262, 328 U. S. 264-267.
2. Since there was a taking of private property for public use, the
claim was "founded upon the Constitution," within the meaning of 141(1)
of the Judicial Code, and the Court of Claims had jurisdiction to hear and
determine it. P. 328 U. S. 267.
3. Since the court's findings of fact contain no precise description of
the nature or duration of the easement taken, the judgment is reversed, and
the cause is remanded to the Court of Claims so that it may make the
necessary findings. Pp. 328 U. S. 267-268.
(a) An accurate description of the easement taken is essential, since
that interest vests in the United States. P. 328 U. S. 267.
(b) Findings of fact on every "material issue" are a statutory
requirement, and a deficiency in the findings cannot be rectified by
statements in the opinion. Pp. 328 U. S. 267-268.
(c) A conjecture in lieu of a conclusion from evidence would not be a
proper foundation for liability of the United States. P. 328 U. S. 268.
104 Ct.Cls. 342, 60 F.Supp. 751, reversed and remanded.
The Court of Claims granted respondents a judgment for the value of
property destroyed and damage to their property resulting from the taking
of an easement over their property by low-flying military aircraft of the
United States, but failed to include in its findings of fact a specific description
of the nature or duration of the easement. 104 Ct.Cls. 342, 60 F.Supp. 751.
This Court granted certiorari. 327 U.S. 775. Reversed and remanded, p. 328
U. S. 268.
Page 328 U. S. 258

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This is a case of first impression. The problem presented is whether
respondents' property was taken within the meaning of the Fifth Amendment
by frequent and regular flights of army and navy aircraft over respondents'
land at low altitudes. The Court of Claims held that there was a taking, and
entered judgment for respondent, one judge dissenting. 60 F.Supp. 751. The
case is here on a petition for a writ of certiorari which we granted because of
the importance of the question presented.
 Respondents own 2.8 acres near an airport outside of Greensboro,
North Carolina. It has on it a dwelling house, and also various outbuildings
which were mainly used for raising chickens. The end of the airport's
northwest-southeast runway is 2,220 feet from respondents' barn and 2,275
feet from their house. The path of glide to this runway passes directly over
the property -- which is 100 feet wide and 1,200 feet long. The 30 to 1 safe
glide angle [Footnote 1] approved by the Civil Aeronautics Authority
[Footnote 2] passes over this property at 83 feet, which is 67 feet above the
house, 63 feet above the barn and 18 feet above the highest tree. [Footnote
3] The use by the United States of this airport is pursuant to a lease
executed in May, 1942, for a term commencing June 1, 1942 and ending
June 30, 1942, with a provision for renewals until June 30, 1967, or six
Page 328 U. S. 259
months after the end of the national emergency, whichever is the
earlier.
Various aircraft of the United States use this airport -- bombers,
transports, and fighters. The direction of the prevailing wind determines
when a particular runway is used. The northwest-southeast runway in
question is used about four percent of the time in taking off and about seven
percent of the time in landing. Since the United States began operations in
May, 1942, its four-motored heavy bombers, other planes of the heavier
type, and its fighter planes have frequently passed over respondents' land
buildings in considerable numbers and rather close together. They come
close enough at times to appear barely to miss the tops of the trees, and at
times so close to the tops of the trees as to blow the old leaves off. The
noise is startling. And, at night, the glare from the planes brightly lights up
the place. As a result of the noise, respondents had to give up their chicken
business. As many as six to ten of their chickens were killed in one day by
flying into the walls from fright. The total chickens lost in that manner was
about 150. Production also fell off. The result was the destruction of the use
of the property as a commercial chicken farm. Respondents are frequently
deprived of their sleep, and the family has become nervous and frightened.
Although there have been no airplane accidents on respondents' property,
there have been several accidents near the airport and close to respondents'
place. These are the essential facts found by the Court of Claims. On the
basis of these facts, it found that respondents' property had depreciated in
value. It held that the United States had taken an easement over the
property on June 1, 1942, and that the value of the property destroyed and
the easement taken was $2,000.
Page 328 U. S. 260
 I. The United States relies on the Air Commerce Act of 1926, 44 Stat.
568, 49 U.S.C. 171 et seq., as amended by the Civil Aeronautics Act of
1938, 52 Stat. 973, 49 U.S.C. 401 et seq. Under those statutes, the United
States has "complete and exclusive national sovereignty in the air space"
over this country. 49 U.S.C. 176(a). They grant any citizen of the United
States "a public right of freedom of transit in air commerce [Footnote 4]
through the navigable air space of the United States." 49 U.S.C. 403. And
"navigable air space" is defined as "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C.
180. And it is provided that "such navigable airspace shall be subject to a
public right of freedom of interstate and foreign air navigation." Id. It is
therefore argued that, since these flights were within the minimum safe
altitudes of flight which had been prescribed, they were an exercise of the
declared right of travel through the airspace. The United States concludes
that, when flights are made within the navigable airspace without any
physical invasion of the property of the landowners, there has been no
taking of property. It says that, at most, there was merely incidental damage
occurring as a consequence of authorized air navigation. It also argues that
the landowner does not own superadjacent airspace which he has not
subjected to possession by the erection of structures or other occupancy.
Moreover, it is argued that, even if the United States took airspace owned by
respondents, no compensable damage was shown. Any damages are said to
be merely consequential for which no compensation may be obtained under
the Fifth Amendment.
It is ancient doctrine that at common law ownership of the land
extended to the periphery of the universe -- cujus
Page 328 U. S. 261
est solum ejus est usque and coelum. [Footnote 5] But that doctrine
has no place in the modern world. The air is a public highway, as Congress
has declared. Were that not true, every transcontinental flight would subject
the operator to countless trespass suits. Common sense revolts at the idea.
To recognize such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the public interest,
and transfer into private ownership that to which only the public has a just
claim.
 But that general principle does not control the present case. For the
United States conceded on oral argument that, if the flights over
respondents' property rendered it uninhabitable, there would be a taking
compensable under the Fifth Amendment. It is the owner's loss, not the
taker's gain, which is the measure of the value of the property taken. United
States v. Miller, 317 U. S. 369. Market value fairly determined is the normal
measure of the recovery. Id. And that value may reflect the use to which the
land could readily be converted, as well as the existing use. United States v.
Powelson, 319 U. S. 266, 319 U. S. 275, and cases cited. If, by reason of the
frequency and altitude of the flights, respondents could not use this land for
any purpose, their loss would be complete. [Footnote 6] It would be as
complete as if the United States had entered upon the surface of the land
and taken exclusive possession of it.
We agree that, in those circumstances, there would be a taking.
Though it would be only an easement of flight
Page 328 U. S. 262
which was taken, that easement, if permanent and not merely
temporary, normally would be the equivalent of a fee interest. It would be a
definite exercise of complete dominion and control over the surface of the
land. The fact that the planes never touched the surface would be as
irrelevant as the absence in this day of the feudal livery of seisin on the
transfer of real estate. The owner's right to possess and exploit the land --
that is to say, his beneficial ownership of it -- would be destroyed. It would
not be a case of incidental damages arising from a legalized nuisance, such
as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. In
that case, property owners whose lands adjoined a railroad line were denied
recovery for damages resulting from the noise, vibrations, smoke, and the
like, incidental to the operations of the trains. In the supposed case, the line
of flight is over the land. And the land is appropriated as directly and
completely as if it were used for the runways themselves.
There is no material difference between the supposed case and the
present one, except that, here, enjoyment and use of the land are not
completely destroyed. But that does not seem to us to be controlling. The
path of glide for airplanes might reduce a valuable factory site to grazing
land, an orchard to a vegetable patch, a residential section to a wheat field.
Some value would remain. But the use of the airspace immediately above
the land would limit the utility of the land and cause a diminution in its
value. [Footnote 7] That was the philosophy of Portsmouth Harbor Land &
Hotel Co. v.
Page 328 U. S. 263
 United States, 260 U. S. 327. In that case, the petition alleged that the
United States erected a fort on nearby land, established a battery and a fire
control station there, and fired guns over petitioner's land. The Court,
speaking through Mr. Justice Holmes, reversed the Court of Claims which
dismissed the petition on a demurrer, holding that "the specific facts set
forth would warrant a finding that a servitude has been imposed." [Footnote
8] 260 U.S. at 260 U. S. 330. And see Delta Air Corp. v. Kersey, 193 Ga.
862, 20 S.E.2d 245. Cf. United States v. 357.25 Acres of Land, 55 F.Supp.
461.
The fact that the path of glide taken by the planes was that approved
by the Civil Aeronautics Authority does not change the result. The navigable
airspace which Congress has placed in the public domain is "airspace above
the minimum safe altitudes of flight prescribed by the Civil Aeronautics
Authority." 49 U.S.C. 180. If that agency prescribed 83 feet as the
minimum safe altitude, then we would have presented the question of the
validity of the regulation. But nothing of the sort has been done. The path of
glide governs the method of operating -- of landing or taking off. The
altitude required for that operation is not the minimum safe altitude of flight
which is the downward reach of the navigable airspace. The minimum
prescribed by the authority is 500 feet during the day and 1000 feet at night
for air carriers (Civil Air Regulations, Pt. 61, 61.7400, 61.7401, Code
Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet for
Page 328 U. S. 264
other aircraft depending on the type of plane and the character of the
terrain. Id., Pt. 60, 60.350-60.3505, Fed.Reg.Cum.Supp., supra. Hence,
the flights in question were not within the navigable airspace which Congress
placed within the public domain. If any airspace needed for landing or taking
off were included, flights which were so close to the land as to render it
uninhabitable would be immune. But the United States concedes, as we have
said, that, in that event, there would be a taking. Thus, it is apparent that
the path of glide is not the minimum safe altitude of flight within the
meaning of the statute. The Civil Aeronautics Authority has, of course, the
power to prescribe air traffic rules. But Congress has defined navigable
airspace only in terms of one of them -- the minimum safe altitudes of flight.
 We have said that the airspace is a public highway. Yet it is obvious
that, if the landowner is to have full enjoyment of the land, he must have
exclusive control of the immediate reaches of the enveloping atmosphere.
Otherwise buildings could not be erected, trees could not be planted, and
even fences could not be run. The principle is recognized when the law gives
a remedy in case overhanging structures are erected on adjoining land.
[Footnote 9] The landowner owns at least as much of the space above the
ground as the can occupy or use in connection with the land. See Hinman v.
Pacific Air Transport, 84 F.2d 755. The fact that he does not occupy it in a
physical sense -- by the erection of buildings and the like -- is not material.
As we have said, the flight of airplanes, which skim the surface but do not
touch it, is as much an appropriation of the use of the land as a more
conventional entry upon it. We would not doubt that, if the United States
erected
Page 328 U. S. 265
an elevated railway over respondents' land at the precise altitude
where its planes now fly, there would be a partial taking, even though none
of the supports of the structure rested on the land. [Footnote 10] The reason
is that there would be an intrusion so immediate and direct as to subtract
from the owner's full enjoyment of the property and to limit his exploitation
of it. While the owner does not in any physical manner occupy that stratum
of airspace or make use of it in the conventional sense, he does use it in
somewhat the same sense that space left between buildings for the purpose
of light and air is used. The superadjacent airspace at this low altitude is so
close to the land that continuous invasions of it affect the use of the surface
of the land itself. We think that the landowner, as an incident to his
ownership, has a claim to it, and that invasions of it are in the same
category as invasions of the surface. [Footnote 11]
In this case, as in Portsmouth Harbor Land & Hotel Co. v. United
States, supra, the damages were not merely consequential. They were the
product of a direct invasion of respondents' domain.
Page 328 U. S. 266
As stated in United States v. Cress, 243 U. S. 316, 243 U. S. 328,
". . . it is the character of the invasion, not the amount of damage
resulting from it, so long as the damage is substantial, that determines the
question whether it is a taking."
We said in United States v. Powelson, supra, p. 319 U. S. 279, that,
while the meaning of "property" as used in the Fifth Amendment was a
federal question, "it will normally obtain its content by reference to local
law." If we look to North Carolina law, we reach the same result. Sovereignty
in the airspace rests in the State "except where granted to and assumed by
the United States." Gen.Stats.1943, 63-11. The flight of aircraft is lawful
 "unless at such a low altitude as to interfere with the then existing use
to which the land or water, or the space over the land or water, is put by the
owner, or unless so conducted as to be imminently dangerous to persons or
property lawfully on the land or water beneath."
Id., 63-13. Subject to that right of flight, "ownership of the space
above the lands and waters of this State is declared to be vested in the
several owners of the surface beneath." Id., 63-12. Our holding that there
was an invasion of respondents' property is thus not inconsistent with the
local law governing a landowner's claim to the immediate reaches of the
superadjacent airspace.
The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable under the
Fifth Amendment. The airspace, apart from the immediate reaches above
the land, is part of the public domain. We need not determine at this time
what those precise limits are. Flights over private land are not a taking,
unless they are so low and so frequent as to be a direct and immediate
interference with the enjoyment and use of the land. We need not speculate
on that phase of the present case. For the findings of the Court
Page 328 U. S. 267
of Claims plainly establish that there was a diminution in value of the
property, and that the frequent, low-level flights were the direct and
immediate cause. We agree with the Court of Claims that a servitude has
been imposed upon the land.
II. By 145(1) of the Judicial Code, 28 U.S.C. 250(1), the Court of
Claims has jurisdiction to hear and determine
"All claims (except for pensions) founded upon the Constitution of the
United States or . . . upon any contract, express or implied, with the
Government of the United States."
We need not decide whether repeated trespasses might give rise to an
implied contract. Cf. Portsmouth Harbor Land & Hotel Co. v. United States,
supra. If there is a taking, the claim is "founded upon the Constitution," and
within the jurisdiction of the Court of Claims to hear and determine. See
Hollister v. Benedict & Burnham Mfg. Co., 113 U. S. 59, 113 U. S. 67; Hurley
v. Kincaid, 285 U. S. 95, 285 U. S. 104; Yearsley v. W. A. Ross Construction
Co., 309 U. S. 18, 309 U. S. 21. Thus, the jurisdiction of the Court of Claims
in this case is clear.
 III. The Court of Claims held, as we have noted, that an easement was
taken. But the findings of fact contain no precise description as to its nature.
It is not described in terms of frequency of flight, permissible altitude, or
type of airplane. Nor is there a finding as to whether the easement taken
was temporary or permanent. Yet an accurate description of the property
taken is essential, since that interest vests in the United States. United
States v. Cress, supra, 243 U. S. 328-329, and cases cited. It is true that
the Court of Claims stated in its opinion that the easement taken was
permanent. But the deficiency in findings cannot be rectified by statements
in the opinion. United States v. Esnault-Pelterie, 299 U. S. 201, 299 U. S.
205-206; United States v. Seminole Nation, 299 U. S. 417, 299 U. S. 422.
Findings of fact on every "material issue" are a statutory
Page 328 U. S. 268
requirement. 53 Stat. 752, 28 U.S.C. 288. The importance of
findings of fact based on evidence is emphasized here by the Court of
Claims' treatment of the nature of the easement. It stated in its opinion that
the easement was permanent because the United States "no doubt intended
to make some sort of arrangement whereby it could use the airport for its
military planes whenever it had occasion to do so." That sounds more like
conjecture, rather than a conclusion from evidence, and if so, it would not be
a proper foundation for liability of the United States. We do not stop to
examine the evidence to determine whether it would support such a finding,
if made. For that is not our function. United States v. Esnault-Pelterie,
supra, p. 299 U. S. 206.
Since on this record it is not clear whether the easement taken is a
permanent or a temporary one, it would be premature for us to consider
whether the amount of the award made by the Court of Claims was proper.
The judgment is reversed, and the cause is remanded to the Court of
Claims so that it may make the necessary findings in conformity with this
opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or decision of
this case.
[Footnote 1]
A 30 to 1 glide angle means one foot of elevation or descent for every
30 feet of horizontal distance.
[Footnote 2]
Military planes are subject to the rules of the Civil Aeronautics Board
where, as in the present case, there are no Army or Navy regulations to the
contrary. Cameron v. Civil Aeronautics Board, 140 F.2d 482.
[Footnote 3]
The house is approximately 16 feet high, the barn 20 feet, and the
tallest tree 65 feet.
 [Footnote 4]
"Air commerce" is defined as including "any operation or navigation of
aircraft which directly affects, or which may endanger safety in, interstate,
overseas, or foreign air commerce." 49 U.S.C. 401(3).
[Footnote 5]
1 Coke, Institutes, 19th Ed. 1832, ch. 1, 1(4a); 2 Blackstone,
Commentaries, Lewis Ed.1902, p. 18; 3 Kent, Commentaries, Gould Ed.
1896, p. 621.
[Footnote 6]
The destruction of all uses of the property by flooding has been held to
constitute a taking. Pumpelly v. Green Bay Co., 13 Wall. 166; United States
v. Lynah, 188 U. S. 445; United States v. Welch, 217 U. S. 333.
[Footnote 7]
It was stated in United States v. General Motors Corp., 323 U. S. 373,
323 U. S. 378,
"The courts have held that the deprivation of the former owner, rather
than the accretion of a right or interest to the sovereign, constitutes the
taking. Governmental action short of acquisition of title or occupancy has
been held, if its effects are so complete as to deprive the owner of all or
most of his interest in the subject matter, to amount to a taking."
The present case falls short of the General Motors case. This is not a
case where the United States has merely destroyed property. It is using a
part of it for the flight of its planes.
Cf. Warren Township School Dist. v. Detroit, 308 Mich. 460, 14 N.W.2d
134; Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385;
Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42 N.E.2d 575.
[Footnote 8]
On remand, the allegations in the petition were found not to be
supported by the facts. 64 Ct.Cls. 572.
[Footnote 9]
Baten's Case, 9 Coke R. 53b; Meyer v. Metzler, 51 Cal. 142; Codman
v. Evans, 7 Allen 431, 89 Mass. 431; Harrington v. McCarthy, 169 Mass.
492, 48 N.E. 278. See Ball, The Vertical Extent of Ownership in Land, 76
U.Pa.L.Rev. 631, 658-671.
[Footnote 10]
It was held in Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E.
716, that ejectment would lie where a telephone wire was strung across the
plaintiff's property, even though it did not touch the soil. The court stated,
pp. 491-492:
 ". . . an owner is entitled to the absolute and undisturbed possession
of every part of his premises, including the space above, as much as a mine
beneath. If the wire had been a huge cable, several inches thick and but a
foot above the ground, there would have been a difference in degree, but
not in principle. Expand the wire into a beam supported by posts standing
upon abutting lots without touching the surface of plaintiff's land, and the
difference would still be one of degree only. Enlarge the beam into a bridge,
and yet space only would be occupied. Erect a house upon the bridge, and
the air above the surface of the land would alone be disturbed."
[Footnote 11]
See Bouve, Private Ownership of Navigable Airspace Under the
Commerce Clause, 21 Amer.Bar Assoc.Journ. 416, 421-422; Hise, Ownership
and Sovereignty of the Air, 16 Ia.L.Rev. 169; Eubank, The Doctrine of the
Airspace Zone of Effective Possession, 12 Boston Univ.L.Rev. 414.
MR. JUSTICE BLACK, dissenting.
The Fifth Amendment provides that "private property" shall not "be
taken for public use, without just compensation." The Court holds today that
the Government has "taken" respondents' property by repeatedly flying
Army bombers directly above respondents' land at a height of eighty-three
feet where the light and noise from these planes caused respondents to lose
sleep, and their chickens to be killed. Since the effect of the Court's decision
is
Page 328 U. S. 269
to limit, by the imposition of relatively absolute Constitutional barriers,
possible future adjustments through legislation and regulation which might
become necessary with the growth of air transportation, and since, in my
view, the Constitution does not contain such barriers, I dissent.
 The following is a brief statement of the background and of the events
that the Court's opinion terms a "taking" within the meaning of the Fifth
Amendment: since 1928, there has been an airfield some eight miles from
Greensboro, North Carolina. In April, 1942, this airport was taken over by
the Greensboro-High Point Municipal Airport Authority, and it has since then
operated as a municipal airport. In 1942, the Government, by contract,
obtained the right to use the field "concurrently, jointly, and in common"
with other users. Years before, in 1934, respondents had bought their
property, located more than one-third of a mile from the airport. Private
planes from the airport flew over their land and farm buildings from 1934 to
1942. and are still doing so. But though these planes disturbed respondents
to some extent, Army bombers, which started to fly over the land in 1942 at
a height of eighty-three feet, disturbed them more, because they were
larger, came over more frequently, made a louder noise, and, at night, a
greater glare was caused by their lights. This noise and glare disturbed
respondents' sleep, frightened them, and made them nervous. The noise and
light also frightened respondents' chickens so much that many of them flew
against buildings and were killed.
The Court's opinion seems to indicate that the mere flying of planes
through the column of air directly above respondents' land does not
constitute a "taking." Consequently, it appears to be noise and glare, to the
extent and under the circumstances shown here, which make the
government a seizer of private property. But the allegation
Page 328 U. S. 270
of noise and glare resulting in damages constitutes at best, an action
in tort where there might be recovery if the noise and light constituted a
nuisance, a violation of a statute, [Footnote 2/1] or were the result of
negligence. [Footnote 2/2] But the Government has not consented to be
sued in the Court of Claims except in actions based on express or implied
contract. And there is no implied contract here, unless, by reason of the
noise and glare caused by the bombers, the Government can be said to have
"taken" respondents' property in a Constitutional sense. The concept of
taking property, as used in the Constitution, has heretofore never been given
so sweeping a meaning. The Court's opinion presents no case where a man
who makes noise or shines light onto his neighbor's property has been
ejected from that property for wrongfully taking possession of it. Nor would
anyone take seriously a claim that noisy automobiles passing on a highway
are taking wrongful possession of the homes located thereon, or that a city
elevated train which greatly interferes with the sleep of those who live next
to it wrongfully takes their property. Even the one case in this Court which,
in considering the sufficiency of a complaint, gave the most elastic meaning
to the phrase "private property be taken," as used in the Fifth Amendment,
did not go so far. Portsmouth Harbor Land & Hotel Co. v. United States, 260
U.S.
 Page 328 U. S. 271
327. I am not willing, nor do I think the Constitution and the decisions
authorize me, to extend that phrase so as to guarantee an absolute
Constitutional right to relief not subject to legislative change, which is based
on averments that, at best, show mere torts committed by Government
agents while flying over land. The future adjustment of the rights and
remedies of property owners, which might be found necessary because of
the flight of planes at safe altitudes, should, especially in view of the
imminent expansion of air navigation, be left where I think the Constitution
left it -- with Congress.
Nor do I reach a different conclusion because of the fact that the
particular circumstance which under the Court's opinion makes the tort here
absolutely actionable is the passing of planes through a column of air at an
elevation of eighty-three feet directly over respondents' property. It is
inconceivable to me that the Constitution guarantees that the airspace of
this Nation needed for air navigation is owned by the particular persons who
happen to own the land beneath to the same degree as they own the surface
below. [Footnote 2/3] No rigid Constitutional rule, in my judgment,
commands that the air must be considered as marked off into separate
compartments by imaginary metes and bounds in order to synchronize air
ownership with land ownership. I think that the Constitution entrusts
Congress with full power to control all navigable airspace. Congress has
already acted under that power. It has by statute, 44 Stat. 568, 52 Stat.
973, provided that
"the United States of America is . . . to possess and exercise complete
and exclusive national sovereignty in the
Page 328 U. S. 272
air space [over] the United States."
 This was done under the assumption that the Commerce Clause of the
Constitution gave Congress the same plenary power to control navigable
airspace as its plenary power over navigable waters. H.Rep. No. 572, 69th
Cong., 1st Sess., p. 10; H.Rep. No. 1162, 69th Cong., 1st Sess., p. 14;
United States v. Commodore Park, Inc., 324 U. S. 386. To make sure that
the airspace used for air navigation would remain free, Congress further
declared that "navigable airspace shall be subject to a public right of
freedom of interstate and foreign air navigation," and finally stated
emphatically that there exists "a public right of freedom of transit . . .
through the navigable airspace of the United States." Congress thus declared
that the air is free -- not subject to private ownership and not subject to
delimitation by the courts. Congress and those acting under its authority
were the only ones who had power to control and regulate the flight of
planes. "Navigable air-space" was defined as "airspace above the minimum
safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49
U.S.C. 180. Thus, Congress has given the Civil Aeronautics Authority
exclusive power to determine what is navigable airspace subject to its
exclusive control. This power derives specifically from the Section which
authorizes the Authority to prescribe
"air traffic rules governing the flight of, and for the navigation,
protection, and identification of, aircraft, including rules as to safe altitudes
of flight and rules for the prevention of collisions between aircraft, and
between aircraft and land or water vehicles."
Here, there was no showing that the bombers flying over respondents'
land violated any rule or regulation of the Civil Aeronautics Authority. Yet,
unless we hold the Act unconstitutional, at least such a showing would be
necessary before the courts could act without interfering with the exclusive
authority which Congress gave to the administrative agency. Not even a
Page 328 U. S. 273
showing that the Authority has not acted at all would be sufficient. For,
in that event, were the courts to have any authority to act in this case at all,
they should stay their hand till the Authority has acted.
 The broad provisions of the Congressional statute cannot properly be
circumscribed by making a distinction, as the Court's opinion does, between
rules of safe altitude of flight while on the level of cross-country flight and
rules of safe altitude during landing and taking off. First, such a distinction
cannot be maintained from the practical standpoint. It is unlikely that
Congress intended that the Authority prescribe safe altitudes for planes
making cross-country flights while, at the same time, it left the more
hazardous landing and take-off operations unregulated. The legislative
history, moreover, clearly shows that the Authority's power to prescribe air
traffic rules includes the power to make rules governing landing and take-off.
Nor is the Court justified in ignoring that history by labeling rules of safe
altitude while on the level of cross-country flight as rules prescribing the safe
altitude proper and rules governing take-off and landing as rules of
operation. For the Conference Report explicitly states that such distinctions
were purposely eliminated from the original House Bill in order that the
Section on air traffic rules "might be given the broadest construction by the .
. . [Civil Aeronautics Authority] . . . and the courts." [Footnote 2/4] In
construing the statute narrowly the Court
Page 328 U. S. 274
thwarts the intent of Congress. A proper broad construction, such as
Congress commanded, would not permit the Court to decide what it has
today without declaring the Act of Congress unconstitutional. I think the Act
given the broad construction intended is constitutional.
No greater confusion could be brought about in the coming age of air
transportation than that which would result were courts by Constitutional
interpretation to hamper Congress in its efforts to keep the air free. Old
concepts of private ownership of land should not be introduced into the field
of air regulation. I have no doubt that Congress will, if not handicapped by
judicial interpretations of the Constitution, preserve the freedom of the air,
and at the same time, satisfy the just claims of aggrieved persons. The noise
of newer, larger, and more powerful planes may grow louder and louder and
disturb people more and more. But the solution of the problems precipitated
by these technological advances and new ways of living cannot come about
through the application of rigid Constitutional restraints formulated and
enforced by the courts. What adjustments may have to be made, only the
future can reveal. It seems certain, however,
Page 328 U. S. 275
 the courts do not possess the techniques or the personnel to consider
and act upon the complex combinations of factors entering into the
problems. The contribution of courts must be made through the awarding of
damages for injuries suffered from the flying of planes, or by the granting of
injunctions to prohibit their flying. When these two simple remedial devices
are elevated to a Constitutional level under the Fifth Amendment, as the
Court today seems to have done, they can stand as obstacles to better
adapted techniques that might be offered by experienced experts and
accepted by Congress. Today's opinion is, I fear, an opening wedge for an
unwarranted judicial interference with the power of Congress to develop
solutions for new and vital and national problems. In my opinion, this case
should be reversed on the ground that there has been no "taking" in the
Constitutional sense.
[Footnote 2/1]
Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761.
[Footnote 2/2]
As to the damage to chickens, Judge Madden, dissenting from this
judgment against the Government said,
"When railroads were new, cattle in fields in sight and hearing of the
trains were alarmed, thinking that the great moving objects would turn aside
and harm them. Horses ran away at the sight and sound of a train or a
threshing machine engine. The farmer's chickens have to get over being
alarmed at the incredible racket of the tractor starting up suddenly in the
shed adjoining the chicken house. These sights and noises are a part of our
world, and airplanes are now and will be to a greater degree, likewise a part
of it. These disturbances should not be treated as torts in the case of the
airplane any more than they are so treated in the case of the railroad or
public highway."
104 Ct.Cls. 342, 358.
[Footnote 2/3]
The House, in its report on the Air Commerce Act of 1926, stated:
"The public right of flight in the navigable air space owes its source to
the same constitutional basis which, under decisions of the Supreme Court,
has given rise to a public easement of navigation in the navigable waters of
the United States regardless of the ownership of adjacent or subjacent soil."
House Report No. 572, 69th Congress, First Session, page 10.
[Footnote 2/4]
The full statement read:
 "The substitute provides that the Secretary shall by regulation
establish air traffic rules for the navigation, protection, and identification of
all aircraft, including rules for the safe altitudes of flight and rules for the
prevention of collisions between vessels and aircraft. The provision as to
rules for taking off and alighting, for instance, was eliminated as
unnecessary specification, for the reason that such rules are but one class of
air traffic rules for the navigation and protection of aircraft. Rules as to
marking were eliminated for the reason that such rules were fairly included
within the scope of air rules for the identification of aircraft. No attempt is
made by either the Senate bill or the House amendment to fully define the
various classes of rules that would fall within the scope of air traffic traffic
rules, as, for instance, lights and signals along airways and at airports and
upon emergency landing fields. In general, these rules would relate to the
same subjects as those covered by navigation laws and regulations and by
the various State motor vehicle traffic codes. As noted above, surplusage
was eliminated in specifying particular air traffic rules in order that the term
might be given the broadest possible construction by the Department of
Commerce and the courts."
House Report No. 1162, 69th Congress, 1st Session, p. 12.
That the rules for landing and take-off are rules prescribing "minimum
safe altitudes of flight" is shown by the following further statement in the
House Report:
". . . the minimum safe altitudes of flight . . . would vary with the
terrain and location of cities and would coincide with the surface of the land
or water at airports."
Id. at p. 14.
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THIRD DIVISION
[G.R. No. 125218. January 23, 1998]
FILSTREAM INTERNATIONAL INCORPORATED, petitioner, vs.
COURT OF APPEALS, JUDGE FELIPE S. TONGCO and THE CITY OF
MANILA, respondent.
[G.R. No. 128077. January 23, 1998]
 FILSTREAM INTERNATIONAL INCORPORATED, petitioner, vs.,
COURT OF APPEALS, ORLANDO MALIT, ANTONIO CAGUIAT, ALICIA
CABRERA, ARMANDO LACHICA, JACINTO CAGUIAT, GLORIA
ANTONIO, ELIZALDE NAVARRA, DOLORES FUENTES, SUSANA ROY,
ANTONIO IBANEZ, BENIGNO BASILIO, LUCERIA DEMATULAC,
FLORENCIA GOMEZ, LAZARO GOMEZ, JOSE GOMEZ, VENANCIO
MANALOTO, CRISTINO UMALI, DEMETRIA GATUS, PRISCILLA
MALONG, DOMINGO AGUILA, RAMON SAN AGUSTIN, JULIAN
FERRER, JR., FRANCISCO GALANG, FLORENTINO MALIWAT,
SEVERINA VILLAR, TRINIDAD NAGUIT, JOSE NAGUIT, FORTUNATO
AGUSTIN CABRERA, GAUDENCIO INTAL, DANILO DAVID, ENRIQUE
DAVID, VICENTE DE GUZMAN, POLICARPIO LUMBA, BELEN PALMA,
ELEN SOMVILLO, LEONARDO MANICAD, OPRENG MICLAT, BENITA
MATA, GREGORIO LOPEZ, MARCELINA SAPNO, JESUS MERCADO, and
CALIXTO GOMEZ, respondent.
DECISION
FRANCISCO, J.:
In resolving the instant petitions, the Court is tasked to strike a
balance between the contending interests when the state exercised its power
of eminent domain. On one side we have the owners of the property to be
expropriated who must be duly compensated for the loss of their property,
while on the other is the State which must take the property for public use.
Petitioner, Filstream International Inc., is the registered owner of the
properties subject of this dispute consisting of adjacent parcels of land
situated in Antonio Rivera Street, Tondo II, Manila, with a total area of
3,571.10 square meters and covered by T.C.T. Nos. 203937, 203936,
169198, 169199, 169200 and 169202 of the Register of Deeds of Manila.
On January 7, 1993, petitioner filed an ejectment suit before the
Metropolitan Trial Court of Manila (Branch 15) docketed as Civil Case No.
140817-CV against the occupants of the abovementioned parcels of land
(herein private respondents in G.R. No. 128077) on the grounds of
termination of the lease contract and non-payment of rentals. Judgment was
rendered by the MTC on September 14, 1993 ordering private respondents
to vacate the premises and pay back rentals to petitioner.[1]
Not satisfied, private respondents appealed the decision to the
Regional Trial Court of Manila, Branch 4 (Civil Case No. 93-68130) which in
turn affirmed the decision of the MTC in its decision dated February 22,
1994. Still not content, private respondents proceeded to the Court of
Appeals via a petition for review (CA-G.R. SP No. 33714). The result
however remained the same as the CA affirmed the decision of the RTC in its
decision dated August 25, 1994.[2]
 Thereafter, no further action was taken by the private respondents, as
a result of which the decision in the ejectment suit became final and
executory.
However, it appeared that during the pendency of the ejectment
proceedings private respondents filed on May 25, 1993, a complaint for
Annulment of Deed of Exchange against petitioner Filstream which was
docketed in Civil Case No. 93-66059 before the RTC of Manila, Branch 43. It
was at this stage that respondent City of Manila came into the picture when
the city government approved Ordinance No. 7813[3] on November 5, 1993,
authorizing Mayor Alfredo S. Lim to initiate the acquisition by negotiation,
expropriation, purchase, or other legal means certain parcels of land
registered under T.C.T. Nos. 169193, 169198, 169190, 169200, 169202, and
169192 of the Registry of Deeds of Manila which formed part of the
properties of petitioner then occupied by private respondents. Subsequently,
the City of Manila approved Ordinance No. 7855[4] declaring the
expropriation of certain parcels of land situated along Antonio Rivera and
Fernando Ma. Guerero streets in Tondo, Manila which were owned by Mr.
Enrique Quijano Gutierez, petitioners predecessor-in-interest. The said
properties were to be sold and distributed to qualified tenants of the area
pursuant to the Land Use Development Program of the City of Manila.
On May 23, 1994, respondent City of Manila filed a complaint for
eminent domain (Civil Case No. 94-70560) before the RTC of Manila, Branch
42,[5] seeking to expropriate the aforecited parcels of land owned by
petitioner Filstream which are situated at Antonio Rivera Street, Tondo II,
Manila.[6]
Pursuant to the complaint filed by respondent City of Manila,the trial
court issued a Writ of Possession[7] in favor of the former which ordered the
transfer of possession over the disputed premises to the City of Manila.
 At this juncture, petitioner Filstream filed a motion to dismiss the
complaint for eminent domain as well as a motion to quash the writ of
possession. The motion to dismiss was premised on the following grounds:
no valid cause of action; the petition does not satisfy the requirements of
public use and a mere clandestine maneuver to circumvent the writ
execution issued by the RTC of Manila, Branch 4 in the ejectment suit;
violation of the constitutional guarantee against non-impairment of
obligation and contract; price offered was too low hence violative of the just
compensation provision of the constitution and the said amount is without
the certification of the City Treasurer for availability of funds.[8] With respect
to the motion to quash the writ of possession, petitioner raised the following
objections: failure to comply with Section 2 of Rule 67 of the Rules of Court,
Ordinance No. 7813 is a void enactment for it was approved without a public
hearing and violative of the constitutional guarantee against impairment of
obligation and contracts; the price is too low and unconscionable violating
the just compensation provision of the constitution, and the said writ is
tainted with infirmity considering the absence of a certification from the City
of Manila that there is an immediately available fund for the subject
expropriation.[9]
Respondent City of Manila filed its opposition[10] to petitioner
Filstreams two motion and to which petitioner accordingly filed a reply.[11]
On September 30, 1994, the RTC of Manila, Branch 42, issued an order
denying petitioner Filstreams motion to dismiss and the motion to quash the
Writ of Possession and declared as follows:
IN FINE, the defendants motion to dismiss and motion to quash writ of
possession are both without merit and are hereby DENIED and the subject
parcels of lands covered by TCT Nos. 203937, 203936, 169198, 169199,
169200, and 169202 (of the Register of Deeds of Manila) located at Antonio
Rivera Street, Tondo II, Manila with a total area of 3,571.10 square meters
are hereby declared CONDEMNED in favor of the City of Manila for
distribution and resale to all poor and landless qualified residents/tenants in
the said area under the citys land-for-the-landless program upon payment of
just compensation which is yet to be determined by this Court.[12]
Petitioner filed a motion for reconsideration[13] as well as a
supplemental motion for reconsideration[14] seeking the reversal of the
above-quoted order but the same were denied.[15] Still, petitioner filed a
subsequent motion to be allowed to file a second motion for reconsideration
but it was also denied.
Aggrieved, petitioner filed on March 31, 1996, a Petition for Certiorari
with the Court of Appeals (CA-G.R. SP No. 36904) seeking to set aside the
September 30, 1994 order of the RTC of Manila, Branch 42. However, on
March 18, 1996, respondent CA issued a resolution dismissing the petition in
this wise:
 It appearing that the above-entitled petition is insufficient in form and
substance -- it does not comply with Section 2(a), Rule 6 of the Revised
Internal Rules of the Court of Appeals which requires that the petition shall
be x x x accompanied by x x x other pertinent documents and papers, aside
from the fact that copies of the pleadings attached to the petition are blurred
and unreadable -- this Court resolved to summarily DISMISS the same
(petition).[16]
Petitioner filed a motion for reconsideration and attached clearer
copies of the pertinent documents and papers pursuant to Section 2(a) Rule
6 of the Revised Internal Rules of the Court of Appeals. But on May 20,
1996, respondent CA issued a resolution denying the motion as petitioner
failed to submit clearer and readable copies of the pleadings.[17] This
prompted petitioner to proceed to this Court giving rise to the instant
petition for review on certiorari under Rule 45 and docketed herein as G.R.
No. 125218, assailing the dismissal of its petition by the CA in its resolution
dated March 18, 1996 as well as that of its motion for reconsideration in the
resolution dated May 20, 1996.
Meanwhile, owing to the finality of the decision in the ejectment suit
(Civil Case No 140817 CV), the MTC of Manila, Branch 15, upon motion of
petitioner Filstream, issued a Writ of Execution as well as a Notice to Vacate
the disputed premises.[18] Private respondents filed a Motion to
Recall/Quash the Writ of Execution and Notice to Vacate[19] alleging the
existence of a supervening event in that the properties subject of the dispute
have already been ordered condemned in an expropriation proceeding in
favor of the City of Manila for the benefit of the qualified occupants thereof,
thus execution shall be stayed. Petitioner opposed the motion, reiterating
that the decision in the ejectment case is already final and executory and
disputed private respondents right to interpose the expropriation
proceedings as a defense because the latter were not parties to the same.
For its part, the City of Manila filed on March 13, 1996, a motion for
intervention with prayer to stay/quash the writ of execution on the ground
that it is the present possessor of the property subject of execution.
In its order dated March 14, 1996, the MTC of Manila, Branch 14,
denied private respondents motion as it found the allegations therein bereft
of merit and upheld the issuance of the Writ of Execution and Notice to
Vacate in petitioners favor.[20] Subsequently, the trial court also denied the
motion filed by the City of Manila.
 On April 22, 1996, the trial court issued an order commanding the
demolition of the structure erected on the disputed premises. To avert the
demolition, private respondents filed before the RTC of Manila, Branch 14, a
Petition for Certiorari and Prohibition with prayer for the issuance of a
temporary restraining order and preliminary injunction (docketed as Civil
Case No. 96-78098). On April 29, 1996, the RTC of Manila, Branch 33,
issued a TRO enjoining the execution if the writ issued in Civil Case No.
140817-CV by the MTC of Manila, Branch 14.[21] Subsequently, the RTC
issued a writ of preliminary injunction on May 14, 1996.[22]
On May 15, 1996, the City of Manila filed its Petition for Certiorari and
Prohibition with prayer for the issuance of a temporary restraining order and
preliminary injunction which was raffled to Branch 23 of the RTC of Manila
(docketed as Civil Case No. 96-78382), seeking the reversal of the orders
issued by the MTC of Manila, Branch 14, which denied its motion to intervene
and quash the writ of execution in Civil Case No. 140817-CV.
Thereafter, upon motion filed by the City of Manila, an order was
issued by the RTC of Manila, Branch 10, ordering the consolidation of Civil
Case No. 96-78382 with Civil Case No. 96-78098 pending before Branch 14
of the RTC of Manila.[23] On May 21, 1996, the RTC of Manila, Branch 14,
issued an injunction in Civil Case No. 96-78098 enjoining the implementation
of the writ of execution until further orders from the court.[24] Petitioner
Filstream filed a Motion to Dissolve the Writ of Preliminary Injunction and to
be allowed to post a counter-bond but the trial court denied the same.
Filstream then filed a motion for reconsideration from the order of denial but
pending resolution of this motion for voluntary inhibition of the presiding
judge of the RTC of Manila, Branch 14. The motion for inhibition was
granted[25] and as a result, the consolidated cases (Civil Case No. 96-78382
and 96-78098) were re-raffled to the RTC of Manila, Branch 33.
During the proceedings before the RTC of Manila, Branch 33, petitioner
Filstream moved for the dismissal of the consolidated cases (Civil Case No.
96-78382 and 96-78098) for violation of Supreme Court Circular No. 04-94
(forum shopping) because the same parties, causes of action and subject
matter involved therein have already been disposed of in the decision in the
ejectment case (Civil Case No. 140817) which has already become final and
executory prior to the filing of these consolidated cases.
On December 9, 1996, an order was issued by the RTC of Manila,
Branch 33, ordering the dismissal of Civil Cases Nos. 96-78382 and 96-
78098 for violation of Supreme Court Circular No. 04-94.[26] Immediately
thereafter, petitioner Filstream filed an Ex-parte Motion for Issuance of an
Alias Writ of Demolition and Ejectment and a supplemental motion to the
same dated January 10 and 13, 1997, respectively,[27] before the MTC of
Manila, Branch 15, which promulgated the decision in the ejectment suit
(Civil Case No. 140817-CV). On January 23, 1997, the court granted the
motion and issued the corresponding writ of demolition.
 As a consequence of the dismissal of the consolidated cases, herein
private respondents filed a Petition for Certiorari and Prohibition with prayer
for the issuance of a temporary restraining order and preliminary injunction
before the Court of Appeals (docketed as CA-G.R. SP No. 43101)[28]
assailing the above-mentioned order of dismissal by the RTC of Manila,
Branch 33, as having been issued with grave abuse of discretion tantamount
to lack or in excess of jurisdiction.
In a resolution dated January 28, 1997, the Court of Appeals granted
herein private respondents prayer for the issuance of a temporary
restraining order and directed the MTC of Manila, Branch 15, to desist from
implementing the order of demolition dated January 23, 1997, unless
otherwise directed.[29]
At the conclusion of the hearing for the issuance of a writ of
preliminary injunction, the Court of Appeals, in its resolution dated February
18, 1997, found merit in private respondents allegations in support of their
application of the issuance of the writ and granted the same, to wit:
Finding that the enforcement or implementation of the writ of
execution and notice to vacate issued in Civil Case No. 140817-CV, the
ejectment case before respondent Judge Jiro, during the pendency of the
instant petition, would probably be in violation of petitioners right, and would
tend to render the judgment in the instant case ineffectual, and probably
work injustice to the petitioners, the application for the issuance of a writ of
preliminary injunction is hereby GRANTED.
WHEREFORE, upon the filing of a bond in the amount of P150,000.00,
let a writ of preliminary injunction be issued enjoining respondents, their
employees, agents, representatives and anyone acting in their behalf from
enforcing or executing the writ of execution and notice to vacate issued in
Civil Case No. 140817-CV of the court of respondent Judge Jiro, or otherwise
disturbing the status quo, until further orders of this Court.[30]
In turn, petitioner Filstream is now before this Court via a Petition for
Certiorari under Rule 65 (G.R. No. 128077), seeking to nullify the
Resolutions of the Court of Appeals dated January 28, 1997 and February
18, 1997 which granted herein private respondents prayer for a TRO and
Writ of Preliminary Injunction, the same being null and void for having been
issued in grave abuse of discretion.
Upon motion filed by petitioner Filstream, in order to avoid any
conflicting decision on the legal issues raised in the petitions, the Court
ordered that the later petition, G.R. No. 128077 be consolidated with G.R.
No. 128077 in the resolution of March 5, 1997.[31]
 The issue raised in G.R. No. 125218 is purely procedural and technical
matter. Petitioner takes exception to the resolutions of respondent CA dated
March 18, 1996 and May 20, 1996 which ordered the dismissal of its Petition
for Certiorari for non-compliance with Sec. 2(a) of Rule 6 of the Revised
Internal Rules of the Court of Appeals by failing to attach to its petition other
pertinent documents and papers and for attaching copies of pleadings which
are blurred and unreadable. Petitioner argues that respondent appellate
court seriously erred in giving more premium to form rather than the
substance.
We agree with the petitioner. A strict adherence to the technical and
procedural rules in this case would defeat rather than meet the ends of
justice as it would result in the violation of the substantial rights of
petitioner. At stake in the appeal filed by petitioner before the CA is the
exercise of their property rights over the disputed premises which have been
expropriated and have in fact been ordered condemned in favor of the City
of Manila. In effect, the dismissal of their appeal in the expropriation
proceedings based on the aforementioned grounds is tantamount to a
deprivation of property without due process of law as it would automatically
validate the expropriation proceedings based on the aforementioned grounds
is tantamount to a deprivation of property without due process of law as it
would automatically validate the expropriation proceedings which the
petitioner is still disputing. It must be emphasized that where substantial
rights are affected, as in this case, the stringent application of procedural
rules may be relaxed if only to meet the ends of substantial justice.
In these instances, respondent CA can exercise its discretion to
suspend its internal rules and allow the parties to present and litigate their
causes of action so that the Court can make an actual and complete
disposition of the issues presented in the case. Rather than simply
dismissing the petition summarily for non-compliance with respondent courts
internal rules, respondent CA should have instead entertained petitioner
Filstreams petition for review on Certiorari, and ordered petitioner to submit
the corresponding pleadings which it deems relevant and replace those
which are unreadable. This leniency could not have caused any prejudiced to
the rights of the other parties.
With regard to the other petition, G.R. No. 128077, petitioner
Filstream objects to the issuance by respondent CA of the restraining order
and the preliminary injunction enjoining the execution of the writ of
demolition issued in the ejectment suit (Civil Case No. 140817-CV) as an
incident to private respondents pending petition assailing the dismissal by
the RTC of Manila, Branch 33, of the consolidated petitions for certiorari filed
by private respondents and the City of Manila on the ground of forum
shopping.
 The propriety of the issuance of the restraining order and the writ of
preliminary injunction is but a mere incient to the actual controversy which
is rooted in the assertion of the conflicting rights of the parties in this case
over the disputed premises. In order to determine whether private
respondents are entitled to the injunctive reliefs granted by respondent CA,
we deemed it proper to extract the source of discord.
Petitioner Filstream anchors its claim by virtue of its ownership over
the properties and the existence of a final and executory judgment against
private respondents ordering the latters ejectment from the premises (Civil
Case No. 140817-CV).
Private respondents claim on the other hand hinges on an alleged
supervening event which has rendered the enforcement of petitioners rights
moot, that is, the expropriation proceedings (Civil Case No. 94-70560)
undertaken by the City of Manila over the disputed premises for the benefit
of herein private respondents. For its part, the City of Manila is merely
exercising its power of eminent domain within its jurisdiction by
expropriating petitioners properties for public use.
There is no dispute as to the existence of a final and executory
judgment in favor of petitioner Filstream ordering the ejectment of private
respondents from the properties subject of this dispute. The judgment in the
ejectment suit became final and executory after private respondents failed to
interpose any appeal from the adverse decision of the Court of Appeals
dated August 25, 1994 in CA-G.R. SP No. 33714. Thus, petitioner has every
right to assert the execution of this decision as it had already became final
and executory.
However, it must also be conceded that the City of Manila has an
undeniable right to exercise its power of eminent domain within its
jurisdiction. The right to expropriate private property for public use is
expressly granted to it under Section 19 of the 1991 Local Government
Code, to wit:
 SECTION 19. Eminent Domain A local government unit may, through
its chief executive and acting pursuant to an ordinance, exercise the power
of eminent domain for public use, or purpose, or welfare for the benefit of
the poor and the landless, upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent laws: Provided, however,
that the power of eminent domain may not be exercised unless a valid and
definite offer has been previously made to the owner, and such offer was not
accepted; Provided, further, That the local government unit may immediately
take possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of at least
fifteen (15%) of the fair market value of the property based on the current
tax declaration of the property to be expropriated: Provided, finally, That the
amount to be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the taking of the
property. (Italics supplied)
More specifically, the City of Manila has the power to expropriate
private property in the pursuit of its urban land reform and housing program
as explicitly laid out in the Revised Charter of the City of Manila (R.A. No.
409) as follows:
General powers The city may have a common seal and alter the same
at pleasure, and may take, purchase, receive, hold, lease, convey, and
dispose of real and personal property for the general interest of the city,
condemn private property for public use, contract and be contracted with,
sue and be sued, and prosecute and defend to final judgment and execution,
and exercise all the powers hereinafter conferred. (R.A. 409, Sec. 3; Italics
supplied).
xxxxxxxxx
Sec. 100. The City of Manila is authorized to acquire private lands in
the city and to subdivide the same into home lots for sale on easy terms to
city residents, giving first priority to the bona fide tenants or occupants of
said lands, and second priority to laborers and low-salaried employees. For
the purpose of this section, the city may raise necessary funds by
appropriations of general funds, by securing loans or by issuing bonds, and,
if necessary, may acquire the lands through expropriation proceedings in
accordance with law, with the approval of the President x x x. (Italics
supplied).
In fact, the City of Manilas right to exercise these prerogatives
notwithstanding the existence of a final and executory judgment over the
property to be expropriated has been upheld by this Court in the case of
Philippine Columbian Association vs. Panis, G.R. No. 106528, December 21,
1993.[32] Relying on the aforementioned provisions of the Revised Charter
of the City of Manila, the Court declared that:
 The City of Manila, acting through its legislative branch, has the
express power to acquire private lands in the city and subdivide these lands
into home lots for sale to bona-fide tenants or occupants thereof, and to
laborers and low-salaried employees of the city.
That only a few could actually benefit from the expropriation of the
property does not diminish its public use character. It is simply not possible
to provide all at once land and shelter for all who need them (Sumulong v.
Guerrero, 154 SCRA 461 [1987]).
Corollary to the expanded notion of public use, expropriation is not
anymore confined to vast tracts of land and landed estates (Province of
Camarines Sur v. Court of Appeals, G.R. Nol 103125, May 17, 1993; J. M.
Tuason and Co., Inc. v. Land Tenure Administration, 31 SCRA 413 [1970]). It
is therefore of no moment that the land sought to be expropriated in this
case is less than the half a hectare only (Pulido v. Court of Appeals, 122
SCRA 63 [1983]).
Through the years, the public use requirement in eminent domain has
evolved into a flexible concept, influenced by changing conditions (Sumulong
v. Guerrero, supra; Manotok v. National Housing Authority, 150 SCRA 89
[1987]; Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 [1983]). Public
use now includes the broader notion of indirect public benefit or advantage,
including a particular, urban land reform and housing.[33]
We take judicial notice of the fact that urban land reform has become
a paramount task in view of the acute shortage of decent housing in urban
areas particularly in Metro Manila. Nevertheless, despite the existence of a
serious dilemma, local government units are not given an unbridled
authority when exercising their power of eminent domain in pursuit of
solutions to these problems. The basic rules still have to be followed, which
are as follows: no person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws (Art. 3, Sec. 1, 1987 Constitution); private property
shall not be taken for public use without just compensation (Art. 3, Section
9, 1987 Constitution). Thus the exercise by local government units of the
power of eminent domain is not without limitations. Even Section 19 of the
1991 Local Government Code is very explicit that it must comply with the
provisions of the Constitution and pertinent laws, to wit:
SECTION 19. Eminent Domain. A local government unit may, through
its chief executive and acting pursuant to an ordinance, exercise the power
of eminent domain for public use, or purpose, or welfare for the benefit of
the poor and the landless, upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent laws: x x x. (Italics
supplied).
 The governing law that deals with the subject of expropriation for
purposed of urban land reform and housing in Republic Act No. 7279 (Urban
Development and Housing Act of 1992) and Sections 9 and 10 of which
specifically provide as follows:
Sec. 9. Priorities in the acquisition of Land Lands for socialized housing
shall be acquired in the following order:
(a) Those owned by the Government or any of its sub-divisions,
instrumentalities, or agencies, including government-owned or controlled
corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas of Priority Development, Zonal
Improvement sites, and Slum Improvement and Resettlement Program sites
which have not yet been acquired;
(e) Bagong Lipunan Improvement sites and Services or BLISS sites
which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this section
shall not apply. The local government units shall give budgetary priority to
on-site development of government lands.
Sec. 10. Modes of Land Acquisition. The modes of acquiring lands for
purposes of this Act shall include, among others, community mortgage, land
swapping, land assembly or consolidation, land banking, donation to the
Government, joint venture agreement, negotiated purchase, and
expropriation: Provided, however, That expropriation shall be resorted to
only when other modes of acquisition have been exhausted: Provided
further, That where expropriation is resorted to, parcels of land owned by
small property owners shall be exempted for purposes of this Act: Provided,
finally, That abandoned property, as herein defined, shall be reverted and
escheated to the State in a proceeding analogous to the procedure laid down
in Rule 91 of the Rules of Court.
For the purpose of socialized housing, government-owned and
foreclosed properties shall be acquired by the local government units, or by
the National Housing Authority primarily through negotiated purchase:
Provided, That qualified beneficiaries who are actual occupants of the land
shall be given the right of first refusal. (Italics supplied).
 Very clear from the abovequoted provisions are the limitations with
respect to the order of priority in acquiring private lands and in resorting to
expropriation proceedings as means to acquire the same. Private lands rank
last in the order of priority for purposes of socialized housing. In the same
vein, expropriation proceedings are to be resorted to only when the other
modes of acquisition have been exhausted. Compliance with these conditions
must be deemed mandatory because these are the only safeguards in
securing the right of owners of private property to due process when their
property is expropriated for public use.
Proceeding from the parameters laid out in the above disquisitions, we
now pose the crucial question: Did the city of Manila comply with the
abovementioned conditions when it expropriated petitioner Filstreams
properties? We have carefully scrutinized the records of this case and found
nothing that would indicate the respondent City of Manila complied with Sec.
9 and Sec. 10 of R.A. 7279. Petitioners Filstreams properties were
expropriated and ordered condemned in favor of the City of Manila sans any
showing that resort to the acquisition of other lands listed under Sec. 9 of RA
7279 have proved futile. Evidently, there was a violation of petitioner
Filstreams right to due process which must accordingly be rectified.
Indeed, it must be emphasized that the State has a paramount
interest in exercising its power of eminent domain for the general good
considering that the right of the State to expropriate private property as long
as it is for public use always takes precedence over the interest of private
property owners. However we must not lose sight of the fact that the
individual rights affected by the exercise of such right are also entitled to
protection, bearing in mind that the exercise of this superior right cannot
override the guarantee of due process extended by the law to owners of the
property to be expropriated. In this regard, vigilance over compliance with
the due process requirements is in order.
WHEREFORE, the petitions are hereby GRANTED. In G.R. 125218, the
resolutions of the Court of Appeals in CA-G.R. SP No. 36904 dated March 18,
1996 and May 20, 1996 are hereby REVERSED and SET ASIDE. In G.R. No.
128077, the resolution of the Court of Appeals in CA-G.R. SP No. 43101
dated January 28, 1997 and February 18, 1997 are REVERSED and SET
ASIDE.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Melo, and Panganiban, JJ.,
concur.

FIRST DIVISION
[G.R. No. 137152. January 29, 2001]
 CITY OF MANDALUYONG, petitioner, vs. ANTONIO N.,
FRANCISCO N., THELMA N., EUSEBIO N., RODOLFO N., all surnamed
AGUILAR, respondents.
DECISION
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of Court of the
Orders dated September 17, 1998 and December 29, 1998 of the Regional
Trial Court, Branch 168, Pasig City[1] dismissing the petitioners Amended
Complaint in SCA No. 1427 for expropriation of two (2) parcels of land in
Mandaluyong City.
The antecedent facts are as follows:
On August 4, 1997, petitioner filed with the Regional Trial Court,
Branch 168, Pasig City a complaint for expropriation entitled City of
Mandaluyong, plaintiff v. Antonio N., Francisco N., Thelma N., Eusebio N.,
Rodolfo N., all surnamed Aguilar, defendants. Petitioner sought to
expropriate three (3) adjoining parcels of land with an aggregate area of
1,847 square meters registered under Transfer Certificates of Title Nos.
59780, 63766 and 63767 in the names of the defendants, herein
respondents, located at 9 de Febrero Street, Barangay Mauwag, City of
Mandaluyong; on a portion of the 3 lots, respondents constructed residential
houses several decades ago which they had since leased out to tenants until
the present; on the vacant portion of the lots, other families constructed
residential structures which they likewise occupied; in 1983, the lots were
classified by Resolution No. 125 of the Board of the Housing and Urban
Development Coordinating Council as an Area for Priority Development for
urban land reform under Proclamation Nos. 1967 and 2284 of then President
Marcos; as a result of this classification, the tenants and occupants of the
lots offered to purchase the land from respondents, but the latter refused to
sell; on November 7, 1996, the Sangguniang Panlungsod of petitioner, upon
petition of the Kapitbisig, an association of tenants and occupants of the
subject land, adopted Resolution No. 516, Series of 1996 authorizing Mayor
Benjamin Abalos of the City of Mandaluyong to initiate action for the
expropriation of the subject lots and construction of a medium-rise
condominium for qualified occupants of the land; on January 10, 1996,
Mayor Abalos sent a letter to respondents offering to purchase the said
property at P3,000.00 per square meter; respondents did not answer the
letter. Petitioner thus prayed for the expropriation of the said lots and the
fixing of just compensation at the fair market value of P3,000.00 per square
meter.[2]
 In their answer, respondents, except Eusebio N. Aguilar who died in
1995, denied having received a copy of Mayor Abalos offer to purchase their
lots. They alleged that the expropriation of their land is arbitrary and
capricious, and is not for a public purpose; the subject lots are their only real
property and are too small for expropriation, while petitioner has several
properties inventoried for socialized housing; the fair market value of
P3,000.00 per square meter is arbitrary because the zonal valuation set by
the Bureau of Internal Revenue is P7,000.00 per square meter. As
counterclaim, respondents prayed for damages of P21 million.[3]
Respondents filed a Motion for Preliminary Hearing claiming that the
defenses alleged in their Answer are valid grounds for dismissal of the
complaint for lack of jurisdiction over the person of the defendants and lack
of cause of action. Respondents prayed that the affirmative defenses be set
for preliminary hearing and that the complaint be dismissed.[4] Petitioner
replied.
On November 5, 1997, petitioner filed an Amended Complaint and
named as an additional defendant Virginia N. Aguilar and, at the same time,
substituted Eusebio Aguilar with his heirs. Petitioner also excluded from
expropriation TCT No. 59870 and thereby reduced the area sought to be
expropriated from three (3) parcels of land to two (2) parcels totalling 1,636
square meters under TCT Nos. 63766 and 63767.[5]
The Amended Complaint was admitted by the trial court on December
18, 1997. Respondents, who, with the exception of Virginia Aguilar and the
Heirs of Eusebio Aguilar had yet to be served with summons and copies of
the Amended Complaint, filed a Manifestation and Motion adopting their
Answer with Counterclaim and Motion for Preliminary Hearing as their
answer to the Amended Complaint.[6]
The motion was granted. At the hearing of February 25, 1998,
respondents presented Antonio Aguilar who testified and identified several
documentary evidence. Petitioner did not present any evidence. Thereafter,
both parties filed their respective memoranda.[7]
On September 17, 1998, the trial court issued an order dismissing the
Amended Complaint after declaring respondents as small property owners
whose land is exempt from expropriation under Republic Act No. 7279. The
court also found that the expropriation was not for a public purpose for
petitioners failure to present any evidence that the intended beneficiaries of
the expropriation are landless and homeless residents of Mandaluyong. The
court thus disposed of as follows:
WHEREFORE, the Amended Complaint is hereby ordered dismissed
without pronouncement as to cost.
SO ORDERED.[8]
Petitioner moved for reconsideration. On December 29, 1998, the
court denied the motion. Hence this petition.
 Petitioner claims that the trial court erred
IN UPHOLDING RESPONDENTS CONTENTION THAT THEY QUALIFY AS
SMALL PROPERTY OWNERS AND ARE THUS EXEMPT FROM EXPROPRIATION.
[9]
Petitioner mainly claims that the size of the lots in litigation does not
exempt the same from expropriation in view of the fact that the said lots
have been declared to be within the Area for Priority Development (APD) No.
5 of Mandaluyong by virtue of Proclamation No. 1967, as amended by
Proclamation No. 2284 in relation to Presidential Decree No. 1517.[10] This
declaration allegedly authorizes petitioner to expropriate the property, ipso
facto, regardless of the area of the land.
Presidential Decree (P.D.) No. 1517, the Urban Land Reform Act, was
issued by then President Marcos in 1978. The decree adopted as a State
policy the liberation of human communities from blight, congestion and
hazard, and promotion of their development and modernization, the
optimum use of land as a national resource for public welfare.[11] Pursuant
to this law, Proclamation No. 1893 was issued in 1979 declaring the entire
Metro Manila as Urban Land Reform Zone for purposes of urban land reform.
This was amended in 1980 by Proclamation No. 1967 and in 1983 by
Proclamation No. 2284 which identified and specified 245 sites in Metro
Manila as Areas for Priority Development and Urban Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic Act No. 7279,
the Urban Development and Housing Act of 1992. The law lays down as a
policy that the state, in cooperation with the private sector, undertake a
comprehensive and continuing Urban Development and Housing Program;
uplift the conditions of the underprivileged and homeless citizens in urban
areas and resettlement areas by making available to them decent housing at
affordable cost, basic services and employment opportunities and provide for
the rational use and development of urban land to bring about, among
others, equitable utilization of residential lands; encourage more effective
people's participation in the urban development process and improve the
capability of local government units in undertaking urban development and
housing programs and projects.[12] Towards this end, all city and municipal
governments are mandated to conduct an inventory of all lands and
improvements within their respective localities, and in coordination with the
National Housing Authority, the Housing and Land Use Regulatory Board, the
National Mapping Resource Information Authority, and the Land Management
Bureau, identify lands for socialized housing and resettlement areas for the
immediate and future needs of the underprivileged and homeless in the
urban areas, acquire the lands, and dispose of said lands to the
beneficiaries of the program.[13]
The acquisition of lands for socialized housing is governed by several
provisions in the law. Section 9 of R.A. 7279 provides:
 Sec. 9. Priorities in the Acquisition of Land.Lands for socialized housing
shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or controlled
corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority Development, Zonal
Improvement Program sites, and Slum Improvement and Resettlement
Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS Sites
which have not yet been acquired;
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this section
shall not apply. The local government units shall give budgetary priority to
on-site development of government lands.
Lands for socialized housing are to be acquired in the following order:
(1) government lands; (2) alienable lands of the public domain; (3)
unregistered or abandoned or idle lands; (4) lands within the declared Areas
for Priority Development (APD), Zonal Improvement Program (ZIP) sites,
Slum Improvement and Resettlement (SIR) sites which have not yet been
acquired; (5) BLISS sites which have not yet been acquired; and (6)
privately-owned lands.
There is no dispute that the two lots in litigation are privately-owned
and therefore last in the order of priority acquisition. However, the law also
provides that lands within the declared APDs which have not yet been
acquired by the government are fourth in the order of priority. According to
petitioner, since the subject lots lie within the declared APD, this fact
mandates that the lots be given priority in acquisition.[14]
Section 9, however, is not a single provision that can be read separate
from the other provisions of the law. It must be read together with Section
10 of R.A. 7279 which also provides:
 Section 10. Modes of Land Acquisition.The modes of acquiring lands for
purposes of this Act shall include, among others, community mortgage, land
swapping, land assembly or consolidation, land banking, donation to the
Government, joint-venture agreement, negotiated purchase, and
expropriation: Provided, however, That expropriation shall be resorted
to only when other modes of acquisition have been exhausted:
Provided, further, That where expropriation is resorted to, parcels of
land owned by small property owners shall be exempted for
purposes of this Act: Provided, finally, That abandoned property, as herein
defined, shall be reverted and escheated to the State in a proceeding
analogous to the procedure laid down in Rule 91 of the Rules of Court.[15]
For the purposes of socialized housing, government-owned and
foreclosed properties shall be acquired by the local government units, or by
the National Housing Authority primarily through negotiated purchase:
Provided, That qualified beneficiaries who are actual occupants of the land
shall be given the right of first refusal.
Lands for socialized housing under R.A. 7279 are to be acquired in
several modes. Among these modes are the following: (1) community
mortgage; (2) land swapping, (3) land assembly or consolidation; (4) land
banking; (5) donation to the government; (6) joint venture agreement; (7)
negotiated purchase; and (8) expropriation. The mode of expropriation is
subject to two conditions: (a) it shall be resorted to only when the other
modes of acquisition have been exhausted; and (b) parcels of land owned by
small property owners are exempt from such acquisition.
Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands.
It enumerates the type of lands to be acquired and the heirarchy in their
acquisition. Section 10 deals with the modes of land acquisition or the
process of acquiring lands for socialized housing. These are two different
things. They mean that the type of lands that may be acquired in the
order of priority in Section 9 are to be acquired only in the modes
authorized under Section 10. The acquisition of the lands in the priority
list must be made subject to the modes and conditions set forth in the next
provision. In other words, land that lies within the APD, such as in the
instant case, may be acquired only in the modes under, and subject to the
conditions of, Section 10.
 Petitioner claims that it had faithfully observed the different modes of
land acquisition for socialized housing under R.A. 7279 and adhered to the
priorities in the acquisition for socialized housing under said law.[16] It,
however, did not state with particularity whether it exhausted the other
modes of acquisition in Section 9 of the law before it decided to expropriate
the subject lots. The law states expropriation shall be resorted to when other
modes of acquisition have been exhausted. Petitioner alleged only one mode
of acquisition, i.e., by negotiated purchase. Petitioner, through the City
Mayor, tried to purchase the lots from respondents but the latter refused to
sell.[17] As to the other modes of acquisition, no mention has been made.
Not even Resolution No. 516, Series of 1996 of the Sangguniang Panlungsod
authorizing the Mayor of Mandaluyong to effect the expropriation of the
subject property states whether the city government tried to acquire the
same by community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the government, or joint venture
agreement under Section 9 of the law.
Section 9 also exempts from expropriation parcels of land owned by
small property owners.[18] Petitioner argues that the exercise of the power
of eminent domain is not anymore conditioned on the size of the land sought
to be expropriated.[19] By the expanded notion of public use, present
jurisprudence has established the concept that expropriation is not anymore
confined to the vast tracts of land and landed estates, but also covers small
parcels of land.[20] That only a few could actually benefit from the
expropriation of the property does not diminish its public use character.[21]
It simply is not possible to provide, in one instance, land and shelter for all
who need them.[22]
While we adhere to the expanded notion of public use, the passage of
R.A. No. 7279, the Urban Development and Housing Act of 1992 introduced
a limitation on the size of the land sought to be expropriated for socialized
housing. The law expressly exempted small property owners from
expropriation of their land for urban land reform. R.A. No. 7279 originated
as Senate Bill No. 234 authored by Senator Joey Lina[23] and House Bill No.
34310. Senate Bill No. 234 then provided that one of those lands not
covered by the urban land reform and housing program was land actually
used by small property owners within the just and equitable retention limit
as provided under this Act.[24] Small property owners were defined in
Senate Bill No. 234 as:
4. Small Property Ownersare those whose rights are protected under
Section 9, Article XIII of the Constitution of the Philippines, who own small
parcels of land within the fair and just retention limit provided under this Act
and which are adequate to meet the reasonable needs of the small property
owners family and their means of livelihood.[25]
 The exemption from expropriation of lands of small-property owners
was never questioned on the Senate floor.[26] This exemption, although
with a modified definition, was actually retained in the consolidation of
Senate Bill No. 234 and House Bill No. 34310 which became R.A. No. 7279.
[27]
The question now is whether respondents qualify as small property
owners as defined in Section 3 (q) of R.A. 7279. Section 3 (q) provides:
Section 3 x x x (q). Small property owners refers to those whose only
real property consists of residential lands not exceeding three hundred
square meters (300 sq.m.) in highly urbanized cities and eight hundred
square meters (800 sq.m.) in other urban areas.
Small-property owners are defined by two elements: (1) those owners
of real property whose property consists of residential lands with an area of
not more than 300 square meters in highly urbanized cities and 800 square
meters in other urban areas; and (2) that they do not own real property
other than the same.
The case at bar involves two (2) residential lots in Mandaluyong City, a
highly urbanized city. The lot under TCT No. 63766 is 687 square meters in
area and the second under TCT No. 63767 is 949 square meters, both
totalling 1,636 square meters in area. TCT No. 63766 was issued in the
names of herein five (5) respondents, viz:
FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single;
EUSEBIO N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single and
ANTONIO N. AGUILAR, married to Teresita Puig; all of legal age, Filipinos.
[28]
TCT No. 63767 was issued in the names of the five (5) respondents
plus Virginia Aguilar, thus:
FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single;
EUSEBIO N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single and
ANTONIO N. AGUILAR, married to Teresita Puig; and VIRGINIA N. AGUILAR,
single, all of legal age, Filipinos.[29]
 Respondent Antonio Aguilar testified that he and the other registered
owners are all siblings who inherited the subject property by intestate
succession from their parents.[30] Their father died in 1945 and their
mother in 1976.[31] Both TCTs were issued in the siblings names on
September 2, 1987.[32] In 1986, however, the siblings agreed to
extrajudicially partition the lots among themselves, but no action was taken
by them to this end. It was only eleven (11) years later, on November 28,
1997 that a survey of the two lots was made[33] and on February 10, 1998,
a consolidation subdivision plan was approved by the Lands Management
Service of the Department of Environment and Natural Resources.[34] The
co-owners signed a Partition Agreement on February 24, 1998[35] and on
May 21, 1998, TCT Nos. 63766 and 63767 were cancelled and new titles
issued in the names of the individual owners pursuant to the Partition
Agreement.
Petitioner argues that the consolidation of the subject lots and their
partition was made more than six (6) months after the complaint for
expropriation was filed on August 4, 1997, hence, the partition was made in
bad faith, for the purpose of circumventing the provisions of R.A. 7279.[36]
At the time of filing of the complaint for expropriation, the lots subject
of this case were owned in common by respondents. Under a co-ownership,
the ownership of an undivided thing or right belongs to different persons.
[37] During the existence of the co-ownership, no individual can claim title
to any definite portion of the community property until the partition thereof;
and prior to the partition, all that the co-owner has is an ideal or abstract
quota or proportionate share in the entire land or thing.[38] Article 493 of
the Civil Code however provides that:
Art. 493. Each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its enjoyment,
except when personal rights are involved. But the effect of the alienation or
the mortgage, with respect to the co-owners shall be limited to the portion
which may be allotted to him in the division upon termination of the co-
ownership.[39]
Before partition in a co-ownership, every co-owner has the absolute
ownership of his undivided interest in the common property. The co-owner is
free to alienate, assign or mortgage his interest, except as to purely
personal rights.[40] He may also validly lease his undivided interest to a
third party independently of the other co-owners.[41] The effect of any such
transfer is limited to the portion which may be awarded to him upon the
partition of the property.[42]
 Article 493 therefore gives the owner of an undivided interest in the
property the right to freely sell and dispose of his undivided interest.[43]
The co-owner, however, has no right to sell or alienate a concrete specific or
determinate part of the thing owned in common, because his right over the
thing is represented by a quota or ideal portion without any physical
adjudication.[44] If the co-owner sells a concrete portion, this, nonetheless,
does not render the sale void. Such a sale affects only his own share,
subject to the results of the partition but not those of the other co-owners
who did not consent to the sale.[45]
In the instant case, the titles to the subject lots were issued in
respondents names as co-owners in 1987ten (10) years before the
expropriation case was filed in 1997. As co-owners, all that the respondents
had was an ideal or abstract quota or proportionate share in the lots. This,
however, did not mean that they could not separately exercise any rights
over the lots. Each respondent had the full ownership of his undivided
interest in the property. He could freely sell or dispose of his interest
independently of the other co-owners. And this interest could have even
been attached by his creditors.[46] The partition in 1998, six (6) months
after the filing of the expropriation case, terminated the co-ownership by
converting into certain and definite parts the respective undivided shares of
the co-owners.[47] The subject property is not a thing essentially indivisible.
The rights of the co-owners to have the property partitioned and their share
in the same delivered to them cannot be questioned for "[n]o co-owner shall
be obliged to remain in the co-ownership."[48] The partition was merely a
necessary incident of the co-ownership;[49] and absent any evidence to the
contrary, this partition is presumed to have been done in good faith.
Upon partition, four (4) co-owners, namely, Francisco, Thelma, Rodolfo
and Antonio Aguilar each had a share of 300 square meters under TCT Nos.
13849, 13852, 13850, 13851.[50] Eusebio Aguilars share was 347 square
meters under TCT No. 13853[51] while Virginia Aguilars was 89 square
meters under TCT No. 13854.[52]
It is noted that Virginia Aguilar, although granted 89 square meters
only of the subject lots, is, at the same time, the sole registered owner of
TCT No. 59780, one of the three (3) titles initially sought to be expropriated
in the original complaint. TCT No. 59780, with a land area of 211 square
meters, was dropped in the amended complaint. Eusebio Aguilar was
granted 347 square meters, which is 47 square meters more than the
maximum of 300 square meters set by R.A. 7279 for small property owners.
In TCT No. 13853, Eusebios title, however, appears the following annotation:
subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules of
Court with respect to the inheritance left by the deceased Eusebio N. Aguilar.
[53]
 Eusebio died on March 23, 1995,[54] and, according to Antonios
testimony, the former was survived by five (5) children.[55] Where there are
several co-owners, and some of them die, the heirs of those who die, with
respect to that part belonging to the deceased, become also co-owners of
the property together with those who survive.[56] After Eusebio died, his
five heirs became co-owners of his 347 square-meter portion. Dividing the
347 square meters among the five entitled each heir to 69.4 square meters
of the land subject of litigation.
Consequently, the share of each co-owner did not exceed the 300
square meter limit set in R.A. 7279. The second question, however, is
whether the subject property is the only real property of respondents for
them to comply with the second requisite for small property owners.
Antonio Aguilar testified that he and most of the original co-owners do
not reside on the subject property but in their ancestral home in Paco,
Manila.[57] Respondents therefore appear to own real property other than
the lots in litigation. Nonetheless, the records do not show that the ancestral
home in Paco, Manila and the land on which it stands are owned by
respondents or any one of them. Petitioner did not present any title or proof
of this fact despite Antonio Aguilars testimony.
On the other hand, respondents claim that the subject lots are their
only real property[58] and that they, particularly two of the five heirs of
Eusebio Aguilar, are merely renting their houses and therefore do not own
any other real property in Metro Manila.[59] To prove this, they submitted
certifications from the offices of the City and Municipal Assessors in Metro
Manila attesting to the fact that they have no registered real property
declared for taxation purposes in the respective cities. Respondents were
certified by the City Assessor of Manila;[60] Quezon City;[61] Makati City;
[62] Pasay City;[63] Paranaque;[64] Caloocan City;[65] Pasig City;[66]
Muntinlupa;[67] Marikina;[68] and the then municipality of Las Pias[69] and
the municipality of San Juan del Monte[70] as having no real property
registered for taxation in their individual names.
Finally, this court notes that the subject lots are now in the possession
of respondents. Antonio Aguilar testified that he and the other co-owners
filed ejectment cases against the occupants of the land before the
Metropolitan Trial Court, Mandaluyong, Branches 59 and 60. Orders of
eviction were issued and executed on September 17, 1997 which resulted in
the eviction of the tenants and other occupants from the land in question.
[71]
IN VIEW WHEREOF, the petition is DENIED and the orders dated
September 17, 1998 and December 29, 1998 of the Regional Trial Court,
Branch 168, Pasig City in SCA No. 1427 are AFFIRMED.
SO ORDERED.
EN BANC
 DIOSDADO LAGCAO, G.R. No. 155746
DOROTEO LAGCAO and
URSULA LAGCAO,
Petitioners, Present:

DAVIDE, C.J.,
PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,*
CALLEJO, SR.,
AZCUNA,*
TINGA and
CHICO-NAZARIO,* JJ.
JUDGE GENEROSA G. LABRA,
Branch 23, Regional Trial Court,
Cebu, and the CITY OF CEBU,
Respondent. Promulgated:

October 13, 2004

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CORONA, J.:

Before us is a petition for review of the decision dated July 1, 2002 of

the Regional Trial Court, Branch 23, Cebu City[1] upholding the validity of
the City of Cebus Ordinance No. 1843, as well as the lower courts order
dated August 26, 2002 denying petitioners motion for reconsideration.
 In 1964, the Province of Cebu donated 210 lots to the City of Cebu.
One of these lots was Lot 1029, situated in Capitol Hills, Cebu City, with an
area of 4,048 square meters. In 1965, petitioners purchased Lot 1029 on
installment basis. But then, in late 1965, the 210 lots, including Lot 1029,
reverted to the Province of Cebu.[2] Consequently, the province tried to
annul the sale of Lot 1029 by the City of Cebu to the petitioners. This
prompted the latter to sue the province for specific performance and
damages in the then Court of First Instance.

On July 9, 1986, the court a quo ruled in favor of petitioners and

ordered the Province of Cebu to execute the final deed of sale in favor of
petitioners. On June 11, 1992, the Court of Appeals affirmed the decision of
the trial court. Pursuant to the ruling of the appellate court, the Province of
Cebu executed on June 17, 1994 a deed of absolute sale over Lot 1029 in
favor of petitioners. Thereafter, Transfer Certificate of Title (TCT) No. 129306
was issued in the name of petitioners and Crispina Lagcao.[3]

After acquiring title, petitioners tried to take possession of the lot only
to discover that it was already occupied by squatters. Thus, on June 15,
1997, petitioners instituted ejectment proceedings against the squatters.
The Municipal Trial Court in Cities (MTCC), Branch 1, Cebu City, rendered a
decision on April 1, 1998, ordering the squatters to vacate the lot. On
appeal, the RTC affirmed the MTCCs decision and issued a writ of execution
and order of demolition.

However, when the demolition order was about to be implemented,

Cebu City Mayor Alvin Garcia wrote two letters[4] to the MTCC, requesting
the deferment of the demolition on the ground that the City was still looking
for a relocation site for the squatters. Acting on the mayors request, the
MTCC issued two orders suspending the demolition for a period of 120 days
from February 22, 1999. Unfortunately for petitioners, during the suspension
period, the Sangguniang Panlungsod (SP) of Cebu City passed a resolution
which identified Lot 1029 as a socialized housing site pursuant to RA 7279.
[5] Then, on June 30, 1999, the SP of Cebu City passed Ordinance No.
1772[6] which included Lot 1029 among the identified sites for socialized
housing. On July, 19, 2000, Ordinance No. 1843[7] was enacted by the SP of
Cebu City authorizing the mayor of Cebu City to initiate expropriation
proceedings for the acquisition of Lot 1029 which was registered in the name
of petitioners. The intended acquisition was to be used for the benefit of the
homeless after its subdivision and sale to the actual occupants thereof. For
this purpose, the ordinance appropriated the amount of P6,881,600 for the
payment of the subject lot. This ordinance was approved by Mayor Garcia on
August 2, 2000.
 On August 29, 2000, petitioners filed with the RTC an action for
declaration of nullity of Ordinance No. 1843 for being unconstitutional. The
trial court rendered its decision on July 1, 2002 dismissing the complaint
filed by petitioners whose subsequent motion for reconsideration was
likewise denied on August 26, 2002.

In this appeal, petitioners argue that Ordinance No. 1843 is

unconstitutional as it sanctions the expropriation of their property for the
purpose of selling it to the squatters, an endeavor contrary to the concept of
public use contemplated in the Constitution.[8] They allege that it will
benefit only a handful of people. The ordinance, according to petitioners,
was obviously passed for politicking, the squatters undeniably being a big
source of votes.

In sum, this Court is being asked to resolve whether or not the

intended expropriation by the City of Cebu of a 4,048-square-meter parcel of
land owned by petitioners contravenes the Constitution and applicable laws.

Under Section 48 of RA 7160,[9] otherwise known as the Local

Government Code of 1991,[10] local legislative power shall
be exercised by the Sangguniang Panlungsod of the city. The
legislative acts of the Sangguniang Panlungsod in the exercise of its
lawmaking authority are denominated ordinances.

Local government units have no inherent power of eminent domain

and can exercise it only when expressly authorized by the legislature.[11] By
virtue of RA 7160, Congress conferred upon local government units the
power to expropriate. Ordinance No. 1843 was enacted pursuant to Section
19 of RA 7160:

SEC. 19. Eminent Domain. A local government unit may, through its
chief executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws xxx. (italics supplied).

Ordinance No. 1843 which authorized the expropriation of petitioners

lot was enacted by the SP of Cebu City to provide socialized housing for the
homeless and low-income residents of the City.
 However, while we recognize that housing is one of the most serious
social problems of the country, local government units do not possess
unbridled authority to exercise their power of eminent domain in seeking
solutions to this problem.

There are two legal provisions which limit the exercise of this power:
(1) no person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws;[12] and (2) private property shall not be taken for public use without
just compensation.[13] Thus, the exercise by local government units of the
power of eminent domain is not absolute. In fact, Section 19 of RA 7160
itself explicitly states that such exercise must comply with the provisions of
the Constitution and pertinent laws.

The exercise of the power of eminent domain drastically affects a

landowners right to private property, which is as much a constitutionally-
protected right necessary for the preservation and enhancement of personal
dignity and intimately connected with the rights to life and liberty.[14]
Whether directly exercised by the State or by its authorized agents, the
exercise of eminent domain is necessarily in derogation of private rights.[15]
For this reason, the need for a painstaking scrutiny cannot be
overemphasized.

The due process clause cannot be trampled upon each time an

ordinance orders the expropriation of a private individuals property. The
courts cannot even adopt a hands-off policy simply because public use or
public purpose is invoked by an ordinance, or just compensation has been
fixed and determined. In De Knecht vs. Bautista,[16] we said:

It is obvious then that a land-owner is covered by the mantle of

protection due process affords. It is a mandate of reason. It frowns on
arbitrariness, it is the antithesis of any governmental act that smacks of
whim or caprice. It negates state power to act in an oppressive manner. It
is, as had been stressed so often, the embodiment of the sporting idea of
fair play. In that sense, it stands as a guaranty of justice. That is the
standard that must be met by any governmental agency in the exercise of
whatever competence is entrusted to it. As was so emphatically stressed by
the present Chief Justice, Acts of Congress, as well as those of the
Executive, can deny due process only under pain of nullity. xxx.
 The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public character.[17] Government
may not capriciously or arbitrarily choose which private property should be
expropriated. In this case, there was no showing at all why petitioners
property was singled out for expropriation by the city ordinance or what
necessity impelled the particular choice or selection. Ordinance No. 1843
stated no reason for the choice of petitioners property as the site of a
socialized housing project.

Condemnation of private lands in an irrational or piecemeal fashion or

the random expropriation of small lots to accommodate no more than a few
tenants or squatters is certainly not the condemnation for public use
contemplated by the Constitution. This is depriving a citizen of his property
for the convenience of a few without perceptible benefit to the public.[18]

RA 7279 is the law that governs the local expropriation of property for
purposes of urban land reform and housing. Sections 9 and 10 thereof
provide:

SEC 9. Priorities in the Acquisition of Land. Lands for socialized

housing shall be acquired in the following order:

(a) Those owned by the Government or any of its subdivisions,

instrumentalities, or agencies, including government-owned or controlled
corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas or Priority Development, Zonal

Improvement Program sites, and Slum Improvement and Resettlement
Program sites which have not yet been acquired;

(e) Bagong Lipunan Improvement of Sites and Services or BLISS which

have not yet been acquired; and

(f) Privately-owned lands.

 Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this section
shall not apply. The local government units shall give budgetary priority to
on-site development of government lands. (Emphasis supplied).

SEC. 10. Modes of Land Acquisition. The modes of acquiring lands

for purposes of this Act shall include, among others, community mortgage,
land swapping, land assembly or consolidation, land banking, donation to the
Government, joint venture agreement, negotiated purchase, and
expropriation: Provided, however, That expropriation shall be resorted
to only when other modes of acquisition have been exhausted:
Provided further, That where expropriation is resorted to, parcels of land
owned by small property owners shall be exempted for purposes of this Act:
xxx. (Emphasis supplied).

In the recent case of Estate or Heirs of the Late Ex-Justice Jose B.L.
Reyes et al. vs. City of Manila,[19] we ruled that the above-quoted
provisions are strict limitations on the exercise of the power of eminent
domain by local government units, especially with respect to (1) the order of
priority in acquiring land for socialized housing and (2) the resort to
expropriation proceedings as a means to acquiring it. Private lands rank last
in the order of priority for purposes of socialized housing. In the same vein,
expropriation proceedings may be resorted to only after the other modes of
acquisition are exhausted. Compliance with these conditions is mandatory
because these are the only safeguards of oftentimes helpless owners of
private property against what may be a tyrannical violation of due process
when their property is forcibly taken from them allegedly for public use.

We have found nothing in the records indicating that the City of Cebu
complied strictly with Sections 9 and 10 of RA 7279. Ordinance No. 1843
sought to expropriate petitioners property without any attempt to first
acquire the lands listed in (a) to (e) of Section 9 of RA 7279. Likewise, Cebu
City failed to establish that the other modes of acquisition in Section 10 of
RA 7279 were first exhausted. Moreover, prior to the passage of Ordinance
No. 1843, there was no evidence of a valid and definite offer to buy
petitioners property as required by Section 19 of RA 7160.[20] We therefore
find Ordinance No. 1843 to be constitutionally infirm for being violative of
the petitioners right to due process.
 It should also be noted that, as early as 1998, petitioners had already
obtained a favorable judgment of eviction against the illegal occupants of
their property. The judgment in this ejectment case had, in fact, already
attained finality, with a writ of execution and an order of demolition. But
Mayor Garcia requested the trial court to suspend the demolition on the
pretext that the City was still searching for a relocation site for the
squatters. However, instead of looking for a relocation site during the
suspension period, the city council suddenly enacted Ordinance No. 1843 for
the expropriation of petitioners lot. It was trickery and bad faith, pure and
simple. The unconscionable manner in which the questioned ordinance was
passed clearly indicated that respondent City transgressed the Constitution,
RA 7160 and RA 7279.

For an ordinance to be valid, it must not only be within the corporate

powers of the city or municipality to enact but must also be passed
according to the procedure prescribed by law. It must be in accordance with
certain well-established basic principles of a substantive nature. These
principles require that an ordinance (1) must not contravene the Constitution
or any statute (2) must not be unfair or oppressive (3) must not be partial
or discriminatory (4) must not prohibit but may regulate trade (5) must be
general and consistent with public policy, and (6) must not be unreasonable.
[21]

Ordinance No. 1843 failed to comply with the foregoing substantive

requirements. A clear case of constitutional infirmity having been thus
established, this Court is constrained to nullify the subject ordinance. We
recapitulate:

first, as earlier discussed, the questioned ordinance is repugnant to the

pertinent provisions of the Constitution, RA 7279 and RA 7160;

second, the precipitate manner in which it was enacted was plain

oppression masquerading as a pro-poor ordinance;

third, the fact that petitioners small property was singled out for
expropriation for the purpose of awarding it to no more than a few squatters
indicated manifest partiality against petitioners, and

fourth, the ordinance failed to show that there was a reasonable

relation between the end sought and the means adopted. While the objective
of the City of Cebu was to provide adequate housing to slum dwellers, the
means it employed in pursuit of such objective fell short of what was legal,
sensible and called for by the circumstances.
 Indeed, experience has shown that the disregard of basic liberties and
the use of short-sighted methods in expropriation proceedings have not
achieved the desired results. Over the years, the government has tried to
remedy the worsening squatter problem. Far from solving it, however,
governments kid-glove approach has only resulted in the multiplication and
proliferation of squatter colonies and blighted areas. A pro-poor program
that is well-studied, adequately funded, genuinely sincere and truly
respectful of everyones basic rights is what this problem calls for, not the
improvident enactment of politics-based ordinances targeting small private
lots in no rational fashion.

WHEREFORE, the petition is hereby GRANTED. The July 1, 2002

decision of Branch 23 of the Regional Trial Court of Cebu City is REVERSED
and SET ASIDE.

SO ORDERED.

RENATO C. CORONA
Associate Justice

ECOND DIVISION
[G.R. No. 152230. August 9, 2005]
JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION, INC.,
petitioner, vs. MUNICIPALITY (now CITY) OF PASIG, METRO
MANILA, respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review of the Decision[1] of the Court of
Appeals (CA) in CA-G.R. CV No. 59050, and its Resolution dated February
18, 2002, denying the motion for reconsideration thereof. The assailed
decision affirmed the order of the Regional Trial Court (RTC) of Pasig, Branch
160, declaring the respondent Municipality (now City) of Pasig as having the
right to expropriate and take possession of the subject property.
The Antecedents
 The Municipality of Pasig needed an access road from E. R. Santos
Street, a municipal road near the Pasig Public Market, to Barangay Sto.
Tomas Bukid, Pasig, where 60 to 70 houses, mostly made of light materials,
were located. The road had to be at least three meters in width, as required
by the Fire Code, so that fire trucks could pass through in case of
conflagration.[2] Likewise, the residents in the area needed the road for
water and electrical outlets.[3] The municipality then decided to acquire 51
square meters out of the 1,791-square meter property of Lorenzo Ching
Cuanco, Victor Ching Cuanco and Ernesto Ching Cuanco Kho covered by
Transfer Certificate of Title (TCT) No. PT-66585,[4] which is abutting E. R.
Santos Street.
On April 19, 1993, the Sangguniang Bayan of Pasig approved an
Ordinance[5] authorizing the municipal mayor to initiate expropriation
proceedings to acquire the said property and appropriate the fund therefor.
The ordinance stated that the property owners were notified of the
municipalitys intent to purchase the property for public use as an access
road but they rejected the offer.
On July 21, 1993, the municipality filed a complaint, amended on
August 6, 1993, against the Ching Cuancos for the expropriation of the
property under Section 19 of Republic Act (R.A.) No. 7160, otherwise known
as the Local Government Code. The plaintiff alleged therein that it notified
the defendants, by letter, of its intention to construct an access road on a
portion of the property but they refused to sell the same portion. The
plaintiff appended to the complaint a photocopy of the letter addressed to
defendant Lorenzo Ching Cuanco.[6]
The plaintiff deposited with the RTC 15% of the market value of the
property based on the latest tax declaration covering the property. On
plaintiffs motion, the RTC issued a writ of possession over the property
sought to be expropriated. On November 26, 1993, the plaintiff caused the
annotation of a notice of lis pendens at the dorsal portion of TCT No. PT-
92579 under the name of the Jesus Is Lord Christian School Foundation,
Incorporated (JILCSFI) which had purchased the property.[7] Thereafter, the
plaintiff constructed therein a cemented road with a width of three meters;
the road was called Damayan Street.
In their answer,[8] the defendants claimed that, as early as February
1993, they had sold the said property to JILCSFI as evidenced by a deed of
sale[9] bearing the signature of defendant Ernesto Ching Cuanco Kho and
his wife.
When apprised about the complaint, JILCSFI filed a motion for leave to
intervene as defendant-in-intervention, which motion the RTC granted on
August 26, 1994.[10]
 In its answer-in-intervention, JILCSFI averred, by way of special and
affirmative defenses, that the plaintiffs exercise of eminent domain was only
for a particular class and not for the benefit of the poor and the landless. It
alleged that the property sought to be expropriated is not the best portion
for the road and the least burdensome to it. The intervenor filed a crossclaim
against its co-defendants for reimbursement in case the subject property is
expropriated.[11] In its amended answer, JILCSFI also averred that it has
been denied the use and enjoyment of its property because the road was
constructed in the middle portion and that the plaintiff was not the real
party-in-interest. The intervenor, likewise, interposed counterclaims against
the plaintiff for moral damages and attorneys fees.[12]
During trial, Rolando Togonon, the plaintiffs messenger, testified on
direct examination that on February 23, 1993, he served a letter of Engr.
Jose Reyes, the Technical Assistant to the Mayor on Infrastructure, to
Lorenzo Ching Cuanco at his store at No. 18 Alkalde Jose Street, Kapasigan,
Pasig. A lady received the same and brought it inside the store. When she
returned the letter to him, it already bore the signature of Luz Bernarte. He
identified a photocopy of the letter as similar to the one he served at the
store. On cross-examination, he admitted that he never met Luz Bernarte.
[13]
Edgardo del Rosario, a resident of Sto. Tomas Bukid since 1982
declared that he would pass through a wooden bridge to go to E. R. Santos
Street. At times, the bridge would be slippery and many had met accidents
while walking along the bridge. Because of this, they requested Mayor
Vicente Eusebio to construct a road therein. He attested that after the
construction of the cemented access road, the residents had water and
electricity.[14]
Augusto Paz of the City Engineers Office testified that, sometime in
1992, the plaintiff constructed a road perpendicular from E. R. Santos Street
to Sto. Tomas Bukid; he was the Project Engineer for the said undertaking.
Before the construction of the road, the lot was raw and they had to put
filling materials so that vehicles could use it. According to him, the length of
the road which they constructed was 70 meters long and 3 meters wide so
that a fire truck could pass through. He averred that there is no other road
through which a fire truck could pass to go to Sto. Tomas Bukid.[15]
Manuel Tembrevilla, the Fire Marshall, averred that he had seen the
new road, that is, Damayan Street, and found that a fire truck could pass
through it. He estimated the houses in the area to be around 300 to 400.
Tembrevilla also stated that Damayan Street is the only road in the area.
[16]
Finally, Bonifacio Maceda, Jr., Tax Mapper IV, testified that, according
to their records, JILCSFI became the owner of the property only on January
13, 1994.[17]
 The plaintiff offered in evidence a photocopy of the letter of Engr. Jose
Reyes addressed to Lorenzo Ching Cuanco to prove that the plaintiff made a
definite and valid offer to acquire the property to the co-owners. However,
the RTC rejected the same letter for being a mere photocopy.[18]
For the defendant-intervenor, Normita del Rosario, owner of the
property located across the subject property, testified that there are other
roads leading to E. R. Santos Street. She asserted that only about ten
houses of the urban poor are using the new road because the other
residents are using an alternative right-of-way. She averred that she did not
actually occupy her property; but there were times that she visited it.[19]
Danilo Caballero averred that he had been a resident of Sto. Tomas
Bukid for seven years. From his house, he could use three streets to go to E.
R. Santos Street, namely, Catalina Street, Damayan Street and Bagong Taon
Street. On cross-examination, he admitted that no vehicle could enter Sto.
Tomas Bukid except through the newly constructed Damayan Street.[20]
Eduardo Villanueva, Chairman of the Board of Trustees and President
of JILCSFI, testified that the parcel of land was purchased for purposes of
constructing a school building and a church as worship center. He averred
that the realization of these projects was delayed due to the passing of the
ordinance for expropriation.[21]
The intervenor adduced documentary evidence that on February 27,
1993, Lorenzo Ching Cuanco and the co-owners agreed to sell their property
covered by TCT No. PT-66585 for P1,719,000.00.[22] It paid a down
payment of P1,000,000.00 for the property. After payment of the total
purchase price, the Ching Cuancos executed a Deed of Absolute Sale[23]
over the property on December 13, 1993. On December 21, 1993, TCT No.
PT-92579 was issued in the name of JILCSFI.[24] It declared the property
for taxation purposes under its name.[25]
On September 3, 1997, the RTC issued an Order in favor of the
plaintiff, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing and in accordance with Section
4, Rule 67 of the Revised Rules of Court, the Court Resolves to DECLARE the
plaintiff as having a lawful right to take the property in question for purposes
for which the same is expropriated.
The plaintiff and intervenor are hereby directed to submit at least two
(2) names of their recommended commissioners for the determination of
just compensation within ten (10) days from receipt hereof.
SO ORDERED.[26]
The RTC held that, as gleaned from the declaration in Ordinance No.
21, there was substantial compliance with the definite and valid offer
requirement of Section 19 of R.A. No. 7160, and that the expropriated
portion is the most convenient access to the interior of Sto. Tomas Bukid.
 Dissatisfied, JILCSFI elevated the case to the CA on the following
assignment of errors:
First Assignment of Error
THE LOWER COURT SERIOUS[LY] ERRED WHEN IT RULED THAT
PLAINTIFF-APPELLEE SUBSTANTIALLY COMPLIED WITH THE LAW WHEN IT
EXPROPRIATED JILS PROPERTY TO BE USED AS A RIGHT OF WAY.
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING JILS EVIDENCE
PROVING THAT THERE WAS NO PUBLIC NECESSITY TO WARRANT THE
EXPROPRIATION OF THE SUBJECT PROPERTY.[27]
The Court of Appeals Decision
In a Decision dated March 13, 2001, the CA affirmed the order of the
RTC.[28] The CA agreed with the trial court that the plaintiff substantially
complied with Section 19 of R.A. No. 7160, particularly the requirement that
a valid and definite offer must be made to the owner. The CA declared that
the letter of Engr. Reyes, inviting Lorenzo Ching Cuanco to a conference to
discuss with him the road project and the price of the lot, was a substantial
compliance with the valid and definite offer requirement under said Section
19. In addition, the CA noted that there was also constructive notice to the
defendants of the expropriation proceedings since a notice of lis pendens
was annotated at the dorsal portion of TCT No. PT-92579 on November 26,
1993.[29]
Finally, the CA upheld the public necessity for the subject property
based on the findings of the trial court that the portion of the property
sought to be expropriated appears to be, not only the most convenient
access to the interior of Sto. Tomas Bukid, but also an easy path for vehicles
entering the area, particularly fire trucks. Moreover, the CA took into
consideration the provision of Article 33 of the Rules and Regulations
Implementing the Local Government Code, which regards the construction or
extension of roads, streets, sidewalks as public use, purpose or welfare.[30]
On April 6, 2001, JILCSFI filed a motion for reconsideration of the said
decision alleging that the CA erred in relying on the photocopy of Engr.
Reyes letter to Lorenzo Ching Cuanco because the same was not admitted in
evidence by the trial court for being a mere photocopy. It also contended
that the CA erred in concluding that constructive notice of the expropriation
proceeding, in the form of annotation of the notice of lis pendens, could be
considered as a substantial compliance with the requirement under Section
19 of the Local Government Code for a valid and definite offer. JILCSFI also
averred that no inspection was ever ordered by the trial court to be
conducted on the property, and, if there was one, it had the right to be
present thereat since an inspection is considered to be part of the trial of the
case.[31]
 The CA denied the motion for reconsideration for lack of merit. It held
that it was not precluded from considering the photocopy[32] of the letter,
notwithstanding that the same was excluded by the trial court, since the fact
of its existence was duly established by corroborative evidence. This
corroborative evidence consisted of the testimony of the plaintiffs messenger
that he personally served the letter to Lorenzo Ching Cuanco, and Municipal
Ordinance No. 21 which expressly stated that the property owners were
already notified of the expropriation proceeding. The CA noted that JILCSFI
failed to adduce controverting evidence, thus the presumption of regularity
was not overcome.[33]
The Present Petition
In this petition, petitioner JILCSFI raises the following issues: (1)
whether the respondent complied with the requirement, under Section 19 of
the Local Government Code, of a valid and definite offer to acquire the
property prior to the filing of the complaint; (2) whether its property which is
already intended to be used for public purposes may still be expropriated by
the respondent; and (3) whether the requisites for an easement for right-of-
way under Articles 649 to 657 of the New Civil Code may be dispensed with.
The petitioner stresses that the law explicitly requires that a valid and
definite offer be made to the owner of the property and that such offer was
not accepted. It argues that, in this case, there was no evidence to show
that such offer has been made either to the previous owner or the petitioner,
the present owner. The petitioner contends that the photocopy of the letter
of Engr. Reyes, notifying Lorenzo Ching Cuanco of the respondents intention
to construct a road on its property, cannot be considered because the trial
court did not admit it in evidence. And assuming that such letter is
admissible in evidence, it would not prove that the offer has been made to
the previous owner because mere notice of intent to purchase is not
equivalent to an offer to purchase. The petitioner further argues that the
offer should be made to the proper party, that is, to the owner of the
property. It noted that the records in this case show that as of February
1993, it was already the owner of the property. Assuming, therefore, that
there was an offer to purchase the property, the same should have been
addressed to the petitioner, as present owner.[34]
 The petitioner maintains that the power of eminent domain must be
strictly construed since its exercise is necessarily in derogation of the right to
property ownership. All the requirements of the enabling law must,
therefore, be strictly complied with. Compliance with such requirements
cannot be presumed but must be proved by the local government exercising
the power. The petitioner adds that the local government should, likewise,
comply with the requirements for an easement of right-of-way; hence, the
road must be established at a point least prejudicial to the owner of the
property. Finally, the petitioner argues that, if the property is already
devoted to or intended to be devoted to another public use, its expropriation
should not be allowed.[35]
For its part, the respondent avers that the CA already squarely
resolved the issues raised in this petition, and the petitioner failed to show
valid and compelling reason to reverse the CAs findings. Moreover, it is not
the function of the Supreme Court to weigh the evidence on factual issues all
over again.[36] The respondent contends that the Ching Cuancos were
deemed to have admitted that an offer to purchase has been made and that
they refused to accept such offer considering their failure to specifically deny
such allegation in the complaint. In light of such admission, the exclusion of
the photocopy of the letter of Engr. Reyes, therefore, is no longer significant.
[37]
The Ruling of the Court
The petition is meritorious.
At the outset, it must be stressed that only questions of law may be
raised by the parties and passed upon by the Supreme Court in petitions for
review on certiorari.[38] Findings of fact of the CA, affirming those of the
trial court, are final and conclusive and may not be reviewed on appeal.[39]
Nonetheless, where it is shown that the conclusion is a finding
grounded on speculations, surmises or conjectures or where the judgment is
based on misapprehension of facts, the Supreme Court may reexamine the
evidence on record.[40]
Eminent Domain: Nature and Scope
The right of eminent domain is usually understood to be an ultimate
right of the sovereign power to appropriate any property within its territorial
sovereignty for a public purpose. The nature and scope of such power has
been comprehensively described as follows:
 It is an indispensable attribute of sovereignty; a power grounded in
the primary duty of government to serve the common need and advance the
general welfare. Thus, the right of eminent domain appertains to every
independent government without the necessity for constitutional recognition.
The provisions found in modern constitutions of civilized countries relating to
the taking of property for the public use do not by implication grant the
power to the government, but limit the power which would, otherwise, be
without limit. Thus, our own Constitution provides that [p]rivate property
shall not be taken for public use without just compensation. Furthermore,
the due process and equal protection clauses act as additional safeguards
against the arbitrary exercise of this governmental power.[41]
Strict Construction and Burden of Proof
The exercise of the right of eminent domain, whether directly by the
State or by its authorized agents, is necessarily in derogation of private
rights.[42] It is one of the harshest proceedings known to the law.
Consequently, when the sovereign delegates the power to a political unit or
agency, a strict construction will be given against the agency asserting the
power.[43] The authority to condemn is to be strictly construed in favor of
the owner and against the condemnor.[44] When the power is granted, the
extent to which it may be exercised is limited to the express terms or clear
implication of the statute in which the grant is contained.[45]
Corollarily, the respondent, which is the condemnor, has the burden of
proving all the essentials necessary to show the right of condemnation.[46]
It has the burden of proof to establish that it has complied with all the
requirements provided by law for the valid exercise of the power of eminent
domain.
The grant of the power of eminent domain to local government units is
grounded on Section 19 of R.A. No. 7160 which reads:
SEC. 19. Eminent Domain. A local government unit may, through its
chief executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws; Provided, however, That
the power of eminent domain may not be exercised unless a valid and
definite offer has been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be expropriated:
Provided, finally, That the amount to be paid for the expropriated property
shall be determined by the proper court based on the fair market value at
the time of the taking of the property.
 The Court declared that the following requisites for the valid exercise
of the power of eminent domain by a local government unit must be
complied with:
1. An ordinance is enacted by the local legislative council authorizing
the local chief executive, in behalf of the local government unit, to exercise
the power of eminent domain or pursue expropriation proceedings over a
particular private property.
2. The power of eminent domain is exercised for public use, purpose or
welfare, or for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section
9, Article III of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of
the property sought to be expropriated, but said offer was not accepted.[47]
Valid and Definite Offer
Article 35 of the Rules and Regulations Implementing the Local
Government Code provides:
ARTICLE 35. Offer to Buy and Contract of Sale. (a) The offer to buy
private property for public use or purpose shall be in writing. It shall specify
the property sought to be acquired, the reasons for its acquisition, and the
price offered.
(b) If the owner or owners accept the offer in its entirety, a contract of
sale shall be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a
price higher than that offered to them, the local chief executive shall call
them to a conference for the purpose of reaching an agreement on the
selling price. The chairman of the appropriation or finance committee of the
sanggunian, or in his absence, any member of the sanggunian duly chosen
as its representative, shall participate in the conference. When an agreement
is reached by the parties, a contract of sale shall be drawn and executed.
(d) The contract of sale shall be supported by the following
documents:
(1) Resolution of the sanggunian authorizing the local chief executive
to enter into a contract of sale. The resolution shall specify the terms and
conditions to be embodied in the contract;
(2) Ordinance appropriating the amount specified in the contract; and
(3) Certification of the local treasurer as to availability of funds
together with a statement that such fund shall not be disbursed or spent for
any purpose other than to pay for the purchase of the property involved.
 The respondent was burdened to prove the mandatory requirement of
a valid and definite offer to the owner of the property before filing its
complaint and the rejection thereof by the latter.[48] It is incumbent upon
the condemnor to exhaust all reasonable efforts to obtain the land it desires
by agreement.[49] Failure to prove compliance with the mandatory
requirement will result in the dismissal of the complaint.[50]
An offer is a unilateral proposition which one party makes to the other
for the celebration of a contract.[51] It creates a power of acceptance
permitting the offeree, by accepting the offer, to transform the offerors
promise into a contractual obligation.[52] Corollarily, the offer must be
complete, indicating with sufficient clearness the kind of contract intended
and definitely stating the essential conditions of the proposed contract.[53]
An offer would require, among other things, a clear certainty on both the
object and the cause or consideration of the envisioned contract.[54]
The purpose of the requirement of a valid and definite offer to be first
made to the owner is to encourage settlements and voluntary acquisition of
property needed for public purposes in order to avoid the expense and delay
of a court action.[55] The law is designed to give to the owner the
opportunity to sell his land without the expense and inconvenience of a
protracted and expensive litigation. This is a substantial right which should
be protected in every instance.[56] It encourages acquisition without
litigation and spares not only the landowner but also the condemnor, the
expenses and delays of litigation. It permits the landowner to receive full
compensation, and the entity acquiring the property, immediate use and
enjoyment of the property. A reasonable offer in good faith, not merely
perfunctory or pro forma offer, to acquire the property for a reasonable price
must be made to the owner or his privy.[57] A single bona fide offer that is
rejected by the owner will suffice.
The expropriating authority is burdened to make known its definite and
valid offer to all the owners of the property. However, it has a right to rely on
what appears in the certificate of title covering the land to be expropriated.
Hence, it is required to make its offer only to the registered owners of the
property. After all, it is well-settled that persons dealing with property
covered by a Torrens certificate of title are not required to go beyond what
appears on its face.[58]
In the present case, the respondent failed to prove that before it filed
its complaint, it made a written definite and valid offer to acquire the
property for public use as an access road. The only evidence adduced by the
respondent to prove its compliance with Section 19 of the Local Government
Code is the photocopy of the letter purportedly bearing the signature of
Engr. Jose Reyes, to only one of the co-owners, Lorenzo Ching Cuanco. The
letter reads:
MR. LORENZO CHING CUANCO
 18 Alcalde Jose Street
Capasigan, Pasig
Metro Manila
Dear Mr. Cuanco:
This refers to your parcel of land located along E. Santos Street,
Barangay Palatiw, Pasig, Metro Manila embraced in and covered by TCT No.
66585, a portion of which with an area of fifty-one (51) square meters is
needed by the Municipal Government of Pasig for conversion into a road-
right of way for the benefit of several residents living in the vicinity of your
property. Attached herewith is the sketch plan for your information.
In this connection, may we respectfully request your presence in our
office to discuss this project and the price that may be mutually agreed upon
by you and the Municipality of Pasig.
Thank you.
Very truly yours,
(Sgd.)
ENGR. JOSE L. REYES
Technical Asst. to the Mayor
on Infrastructure[59]
It bears stressing, however, that the respondent offered the letter only
to prove its desire or intent to acquire the property for a right-of-way.[60]
The document was not offered to prove that the respondent made a definite
and valid offer to acquire the property. Moreover, the RTC rejected the
document because the respondent failed to adduce in evidence the original
copy thereof.[61] The respondent, likewise, failed to adduce evidence that
copies of the letter were sent to and received by all the co-owners of the
property, namely, Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto
Kho.
The respondent sought to prove, through the testimony of its
messenger, Rolando Togonon, that Lorenzo Ching Cuanco received the
original of the said letter. But Togonon testified that he merely gave the
letter to a lady, whom he failed to identify. He stated that the lady went
inside the store of Lorenzo Ching Cuanco, and later gave the letter back to
him bearing the signature purportedly of one Luz Bernarte. However,
Togonon admitted, on cross-examination, that he did not see Bernarte
affixing her signature on the letter. Togonon also declared that he did not
know and had never met Lorenzo Ching Cuanco and Bernarte:
Q And after you received this letter from that lady, what did you do
afterwards?
A I brought it with me, that letter, and then I went to Caruncho.
Q So, [M]r. Witness, you are telling this Honorable Court that this
letter intended to Mr. Lorenzo was served at Pasig Trading which was
situated at No. 18 Alkalde Jose Street on February 23, 1993?
 A Yes, Maam.
ATTY. TAN:
That is all for the witness, Your Honor.
COURT:
Do you have any cross-examination?
ATTY. JOLO:
Just a few cross, Your Honor, please. With the kind permission of the
Honorable Court.
COURT:
Proceed.
CROSS-EXAMINATION
BY ATTY. JOLO:
Q Mr. Witness, do you know Mr. Lorenzo Ching [Cuanco]
A I do not know him.
Q As a matter of fact, you have not seen him even once, isnt not (sic)?
A Yes, Sir.
Q This Luz Bernarte, do you know her?
A I do not know her.
Q As a matter of fact, you did not see Mrs. Bernarte even once?
A That is correct.
Q And as a matter of fact, [M]r. Witness, you did not see Mrs. Luz
Bernarte affixing her signature on the bottom portion of this demand letter,
marked as Exh. C-2?
A Yes, Sir.[62]
Even if the letter was, indeed, received by the co-owners, the letter is
not a valid and definite offer to purchase a specific portion of the property
for a price certain. It is merely an invitation for only one of the co-owners,
Lorenzo Ching Cuanco, to a conference to discuss the project and the price
that may be mutually acceptable to both parties.
There is no legal and factual basis to the CAs ruling that the
annotation of a notice of lis pendens at the dorsal portion of petitioners TCT
No. PT-92579 is a substantial compliance with the requisite offer. A notice of
lis pendens is a notice to the whole world of the pendency of an action
involving the title to or possession of real property and a warning that those
who acquire an interest in the property do so at their own risk and that they
gamble on the result of the litigation over it.[63] Moreover, the lis pendens
was annotated at the dorsal portion of the title only on November 26, 1993,
long after the complaint had been filed in the RTC against the Ching
Cuancos.
 Neither is the declaration in one of the whereas clauses of the
ordinance that the property owners were already notified by the municipality
of the intent to purchase the same for public use as a municipal road, a
substantial compliance with the requirement of a valid and definite offer
under Section 19 of R.A. No. 7160. Presumably, the Sangguniang Bayan
relied on the erroneous premise that the letter of Engr. Reyes reached the
co-owners of the property. In the absence of competent evidence that,
indeed, the respondent made a definite and valid offer to all the co-owners
of the property, aside from the letter of Engr. Reyes, the declaration in the
ordinance is not a compliance with Section 19 of R.A. No. 7160.
The respondent contends, however, that the Ching Cuancos, impliedly
admitted the allegation in its complaint that an offer to purchase the
property was made to them and that they refused to accept the offer by
their failure to specifically deny such allegation in their answer. This
contention is wrong. As gleaned from their answer to the complaint, the
Ching Cuancos specifically denied such allegation for want of sufficient
knowledge to form a belief as to its correctness. Under Section 10,[64] Rule
8 of the Rules of Court, such form of denial, although not specific, is
sufficient.
Public Necessity
We reject the contention of the petitioner that its property can no
longer be expropriated by the respondent because it is intended for the
construction of a place for religious worship and a school for its members. As
aptly explained by this Court in Manosca v. Court of Appeals,[65] thus:
It has been explained as early as Sea v. Manila Railroad Co., that:
A historical research discloses the meaning of the term public use to
be one of constant growth. As society advances, its demands upon the
individual increases and each demand is a new use to which the resources of
the individual may be devoted. for whatever is beneficially employed for the
community is a public use.
Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There was a time when it
was felt that a literal meaning should be attached to such a requirement.
Whatever project is undertaken must be for the public to enjoy, as in the
case of streets or parks. Otherwise, expropriation is not allowable. It is not
so any more. As long as the purpose of the taking is public, then the power
of eminent domain comes into play. As just noted, the constitution in at least
two cases, to remove any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots for resale at cost to
individuals. The other is the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the
general welfare satisfies the requirements of public use.
 Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs.
Land Tenure Administration, has viewed the Constitution a dynamic
instrument and one that is not to be construed narrowly or pedantically so
as to enable it to meet adequately whatever problems the future has in
store. Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly
observed that what, in fact, has ultimately emerged is a concept of public
use which is just as broad as public welfare.
Petitioners ask: But (w)hat is the so-called unusual interest that the
expropriation of (Felix Manalos) birthplace become so vital as to be a public
use appropriate for the exercise of the power of eminent domain when only
members of the Iglesia ni Cristo would benefit? This attempt to give some
religious perspective to the case deserves little consideration, for what
should be significant is the principal objective of, not the casual
consequences that might follow from, the exercise of the power. The purpose
in setting up the marker is essentially to recognize the distinctive
contribution of the late Felix Manalo to the culture of the Philippines, rather
than to commemorate his founding and leadership of the Iglesia ni Cristo.
The practical reality that greater benefit may be derived by members of the
Iglesia ni Cristo than by most others could well be true but such a peculiar
advantage still remains to be merely incidental and secondary in nature.
Indeed, that only a few would actually benefit from the expropriation of
property, does not necessarily diminish the essence and character of public
use.
The petitioner asserts that the respondent must comply with the
requirements for the establishment of an easement of right-of-way, more
specifically, the road must be constructed at the point least prejudicial to the
servient state, and that there must be no adequate outlet to a public
highway. The petitioner asserts that the portion of the lot sought to be
expropriated is located at the middle portion of the petitioners entire parcel
of land, thereby splitting the lot into two halves, and making it impossible for
the petitioner to put up its school building and worship center.
The subject property is expropriated for the purpose of constructing a
road. The respondent is not mandated to comply with the essential
requisites for an easement of right-of-way under the New Civil Code. Case
law has it that in the absence of legislative restriction, the grantee of the
power of eminent domain may determine the location and route of the land
to be taken[66] unless such determination is capricious and wantonly
injurious.[67] Expropriation is justified so long as it is for the public good
and there is genuine necessity of public character.[68] Government may not
capriciously choose what private property should be taken.[69]
 The respondent has demonstrated the necessity for constructing a
road from E. R. Santos Street to Sto. Tomas Bukid. The witnesses, who were
residents of Sto. Tomas Bukid, testified that although there were other ways
through which one can enter the vicinity, no vehicle, however, especially fire
trucks, could enter the area except through the newly constructed Damayan
Street. This is more than sufficient to establish that there is a genuine
necessity for the construction of a road in the area. After all, absolute
necessity is not required, only reasonable and practical necessity will suffice.
[70]
Nonetheless, the respondent failed to show the necessity for
constructing the road particularly in the petitioners property and not
elsewhere.[71] We note that the whereas clause of the ordinance states that
the 51-square meter lot is the shortest and most suitable access road to
connect Sto. Tomas Bukid to E. R. Santos Street. The respondents complaint
also alleged that the said portion of the petitioners lot has been surveyed as
the best possible ingress and egress. However, the respondent failed to
adduce a preponderance of evidence to prove its claims.
On this point, the trial court made the following findings:
The contention of the defendants that there is an existing alley that
can serve the purpose of the expropriator is not accurate. An inspection of
the vicinity reveals that the alley being referred to by the defendants
actually passes thru Bagong Taon St. but only about one-half (1/2) of its
entire length is passable by vehicle and the other half is merely a foot-path.
It would be more inconvenient to widen the alley considering that its sides
are occupied by permanent structures and its length from the municipal road
to the area sought to be served by the expropriation is considerably longer
than the proposed access road. The area to be served by the access road is
composed of compact wooden houses and literally a slum area. As a result of
the expropriation of the 51-square meter portion of the property of the
intervenor, a 3-meter wide road open to the public is created. This portion of
the property of the intervenor is the most convenient access to the interior
of Sto. Tomas Bukid since it is not only a short cut to the interior of the Sto.
Tomas Bukid but also an easy path for vehicles entering the area, not to
mention the 3-meter wide road requirement of the Fire Code.[72]
 However, as correctly pointed out by the petitioner, there is no showing
in the record that an ocular inspection was conducted during the trial. If, at
all, the trial court conducted an ocular inspection of the subject property
during the trial, the petitioner was not notified thereof. The petitioner was,
therefore, deprived of its right to due process. It bears stressing that an
ocular inspection is part of the trial as evidence is thereby received and the
parties are entitled to be present at any stage of the trial.[73] Consequently,
where, as in this case, the petitioner was not notified of any ocular
inspection of the property, any factual finding of the court based on the said
inspection has no probative weight. The findings of the trial court based on
the conduct of the ocular inspection must, therefore, be rejected.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Decision and Resolution of the Court of Appeals are REVERSED AND SET
ASIDE. The RTC is ordered to dismiss the complaint of the respondent
without prejudice to the refiling thereof.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ.,
concur.
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. Nos. L-60549, 60553 to 60555 October 26, 1983
 HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona)
ANASTACIO C. CABILAO, HEIRS OF CIPRIANO CABILAO (represented
by Jose Cabilao) MODESTA CABILAO, HEIRS OF ROMAN CABUENAS
(represented by Alberto Cabuenas), AGRIPINO GABISAY and
PRUDENCIA MABINI, ANTONIO LABRADOR and LUCIA GABISAY,
GERONIMO MABINI and MARCELINA SABAL, INOCENCIO MABINI
and ARSENIA REYES, PATRICIO MABINI and GREGORIA BORRES,
ANICETO GADAPAN and MAXIMA GABISAY, BARTOLOME MAGNO and
CALINECA E. MAGNO, ALBERTO CABUENAS, NARCISO CABUENAS and
VICTORIA CABUENAS, EUTIQUIOSENO, HEIRS OF ESPERIDION
CABUENAS (represented by Alberto Cabuenas), MAXIMINA NAVARO,
SULPICIO NAVARO, EDUARDO NAVARO, MARTINIANO ROMA (in
representation of Arcadio Mabini, deceased), MARTIN SENO, FAUSTO
ARDA, MAXIMA CABILAO, ESTRELLA SENO, EDUVEGIS S. CABILAO,
ROSARIO CABILAO, MINORS DANILO, SOCORRO, JOSEFINA and
MARITES, all surnamed Cabilao, JUAN BORRES (represented by
Francisca Borres), RAMON JABADAN, JESUS ALIPAR and LEONILA
KABAHAR, ANTONIO LABRADOR, HEIRS OF NICASIO GABISAY
(represented by Arsenio Gabisay), PACIFICO LABRADOR, DEMETRIO
LABRADOR and FRUCTOSA TABURA, VENANCIO DEL MAR, MARINO
DEL MAR, HEIRS OF TEODORA ARCILLO (represented by Brigida
Arcillo) DIONISIA GABUNADA, HEIRS OF BUENAVENTURA
FRANCISCO (represented by Felicidad Sadaya Francisco), HEIRS OF
VICTORIA C. CABUENAS (represented by Alberto Cabuenas) HEIRS
OF CIPRIANO GABUNADA (represented by Claudio Gabunada),
petitioners, vs.HON. JUAN Y. REYES, Executive Judge and Presiding
Judge of Branch I, COURT OF FIRST instance OF CEBU, and the
PHILIPPINE TOURISM AUTHORITY, respondents.
George M. Baladjay, Mario G. dela Victoria, Olegario Sarmiento, Jr.,
and Democrito Barcenas for petitioners.
The Solicitor General for respondent Judge.
F.A. Sugue & Elino B. Lingas for Philippine Tourism Authoirity

GUTIERREZ, JR., J.:

 This is a petition for certiorari with preliminary injunction challenging
the constitutionality of Presidential Decree No. 564, the Revised Charter of
the Philippine Tourism Authority, and Proclamation No. 2052 declaring the
barangays of Sibugay, Malubog, Babag and Sirao including the proposed
Lusaran Dam in the City of Cebu and in the municipalities of Argao and
Dalaguete in the province of Cebu as tourist zones. The petitioners ask that
we restrain respondent Court of First Instance of Cebu and the Philippine
Tourism Authority (PTA) from enforcing and implementing the writs of
possession issued in four (4) expropriation cases filed by PTA against the
petitioners: Civil Cases Nos. R-19562, R-19684, R-20701, and R-21608 of
the Court of First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4) Complaints with the
Court of First Instance of Cebu City for the expropriation of some 282
hectares of rolling land situated in barangays Malubog and Babag, Cebu City,
under PTA's express authority "to acquire by purchase, by negotiation or by
condemnation proceedings any private land within and without the tourist
zones" for the purposes indicated in Section 5, paragraph B(2), of its Revised
Charter (PD 564), more specifically, for the development into integrated
resort complexes of selected and well-defined geographic areas with
potential tourism value. As uniformly alleged in the complaints, the purposes
of the expropriation are:
xxx xxx xxx
V
Plaintiff, in line with the policy of the government to promote tourism
and development of tourism projects will construct in Barangays Malubog,
Busay and Babag, all of Cebu City, a sports complex (basketball courts,
tennis courts, volleyball courts, track and field, baseball and softball
diamonds, and swimming pools), clubhouse, gold course, children's
playground and a nature area for picnics and horseback riding for the use of
the public.
The development plan, covering approximately 1,000 hectares,
includes the establishment of an electric power grid in the area by the
National Power Corporation, thus assuring the supply of electricity therein for
the benefit of the whole community. Deep wells will also be constructed to
generate water supply within the area. Likewise, a complex sewerage and
drainage system will be devised and constructed to protect the tourists and
nearby residents from the dangers of pollution.
Complimentary and support facilities for the project will be
constructed, including public rest houses, lockers, dressing rooms, coffee
shops, shopping malls, etc. Said facilities will create and offer employment
opportunities to residents of the community and further generate income for
the whole of Cebu City.
 Plaintiff needs the property above described which is directly covered
by the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their
respective Opposition with Motion to Dismiss and/or Reconsideration. The
defendants in Civil Case No. R-19562 filed a manifestation adopting the
answer of defendants in Civil Case No. R-19864. The defendants, now
petitioners, had a common allegation in that the taking is allegedly not
impressed with public use under the Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the
issue of public use, that there is no specific constitutional provision
authorizing the taking of private property for tourism purposes; that
assuming that PTA has such power, the intended use cannot be paramount
to the determination of the land as a land reform area; that limiting the
amount of compensation by Legislative fiat is constitutionally repugnant; and
that since the land is under the land reform program, it is the Court of
Agrarian Relations and not the Court of First Instance that has jurisdiction
over the expropriation cases.
The Philippine Tourism Authority having deposited with The Philippine
National Bank, Cebu City Branch, an amount equivalent to 10% of the value
of the properties pursuant to Presidential Decree No. 1533. the lower court
issued separate orders authorizing PTA to take immediate possession of the
premises and directing the issuance of writs of possession.
On May 25, 1982, petitioners filed this petition questioning the orders
of the respondent Judge, The respondents have correctly restated the
grounds in the petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the Constitution
does not provide for the expropriation of private property for tourism or
other related purposes;
B. The writs of possession or orders authorizing PTA to take immediate
possession is premature because the "public use" character of the taking has
not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent domain
law;
D. The properties in question have been previously declared a land
reform area; consequently, the implementation of the social justice pro-
,vision of the Constitution on agrarian reform is paramount to the right of
the State to expropriate for the purposes intended;
 E. Proclamation No. 2052 declaring certain barangays in Cebu City,
which include the lands subject of expropriation as within a tourist zone, is
unconstitutional for it impairs the obligation of contracts; "F. Since the
properties are within a land reform area, it is the Court of Agrarian Relations,
not the lower court, that has jurisdiction pursuant to Pres. Decree No. 946;
F. The forcible ejectment of defendants from the premises constitutes a
criminal act under Pres. Decree No. 583;
In their memorandum, the petitioners have summarized the issues as
follows:
I. Enforcement of the Writ of Possession is Premature:
II. Presidential Decree 564 Amending Presidential Decree l89 is
Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore,
Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered by the
Land Reform Program Violates the Constitution:
V. Presidential Proclamation 2052 is Unconstitutional:
VI. Presidential Decree No 1533 is Unconstitutional:
VII. The Court of First Instance has no Jurisdiction:
VIII. The Filing of the Present Petition is not Premature.
The issues raised by the petitioners revolve around the proposition
that the actions to expropriate their properties are constitutionally infirm
because nowhere in the Constitution can a provision be found which allows
the taking of private property for the promotion of tourism.
The petitioners' arguments in their pleadings in support of the above
proposition are subsumed under the following headings:
1. Non-compliance with the "public use" requirement under the
eminent domain provision of the Bill of Rights.
2. Disregard of the land reform nature of the property being
expropriated.
3. Impairment of the obligation of contracts.
There are three provisions of the Constitution which directly provide
for the exercise of the power of eminent domain. Section 2, Article IV states
that private property shall not be taken for public use without just
compensation. Section 6, Article XIV allows the State, in the interest of
national welfare or defense and upon payment of just compensation to
transfer to public ownership, utilities and other private enterprises to be
operated by the government. Section 13, Article XIV states that the
Batasang Pambansa may authorize upon payment of just compensation the
expropriation of private lands to be subdivided into small lots and conveyed
at cost to deserving citizens.
 While not directly mentioning the expropriation of private properties
upon payment of just compensation, the provisions on social justice and
agrarian reforms which allow the exercise of police power together with the
power of eminent domain in the implementation of constitutional objectives
are even more far-reaching insofar as taking of private property is
concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social justice to ensure the dignity,
welfare, and security of all the people. Towards its end, the State shall
regulate the acquisition, ownership, use, enjoyment, and disposition of
private property, and equitably diffuse property ownership and profits.
xxx xxx xxx
Section 12, Article XIV provides:
See. 12. The State shall formulate and implement an agrarian reform
program aimed at emancipating the tenant from the bondage of the soil and
achieving the goals enunciated in this Constitution.
The equitable diffusion of property ownership in the promotion of
social justice implies the exercise, whenever necessary, of the power to
expropriate private property. Likewise there can be no meaningful agrarian
reform program unless the power to expropriate is utilized.
We cite all the above provisions on the power to expropriate because
of the petitioners' insistence on a restrictive view of the eminent domain
provision. The thrust of all constitutional provisions on expropriation is in the
opposite direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus (40 Phil.
550) categorized the restrictive view as wholly erroneous and based on a
misconception of fundamentals.
The petitioners look for the word "tourism" in the Constitution.
Understandably the search would be in vain. The policy objectives of the
framers can be expressed only in general terms such as social justice, local
autonomy, conservation and development of the national patrimony, public
interest, and general welfare, among others. The programs to achieve these
objectives vary from time to time and according to place, To freeze specific
programs like Tourism into express constitutional provisions would make the
Constitution more prolix than a bulky code and require of the framers a
prescience beyond Delphic proportions. The particular mention in the
Constitution of agrarian reform and the transfer of utilities and other private
enterprises to public ownership merely underscores the magnitude of the
problems sought to be remedied by these programs. They do not preclude
nor limit the exercise of the power of eminent domain for such purposes like
tourism and other development programs.
 In the leading case of Visayan Refining Co. v. Camus (supra), this
Court emphasized that the power of eminent domain is inseparable from
sovereignty being essential to the existence of the State and inherent in
government even in its most primitive forms. The only purpose of the
provision in the Bill of Rights is to provide some form of restraint on the
sovereign power. It is not a grant of authority -
The power of eminent domain does not depend for its existence on a
specific grant in the constitution. It is inherent in sovereignty and exists in a
sovereign state without any recognition of it in the constitution. The
provision found in most of the state constitutions relating to the taking of
property for the public use do not by implication grant the power to the
government of the state, but limit a power which would otherwise be without
limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that
"public use" means literally use by the public and that "public use" is not
synonymous with "public interest", "public benefit", or "public welfare" and
much less "public convenience. "
The petitioners face two major obstacles. First, their contention which
is rather sweeping in its call for a retreat from the public welfare orientation
is unduly restrictive and outmoded. Second, no less than the lawmaker has
made a policy determination that the power of eminent domain may be
exercised in the promotion and development of Philippine tourism.
The restrictive view of public use may be appropriate for a nation
which circumscribes the scope of government activities and public concerns
and which possesses big and correctly located public lands that obviate the
need to take private property for public purposes. Neither circumstance
applies to the Philippines. We have never been a laissez faire State, And the
necessities which impel the exertion of sovereign power are all too often
found in areas of scarce public land or limited government resources.
 Certain aspects of parliamentary government were introduced by the
1973 amendments to the Constitution with further modifications in the 1976
and 1981 amendments. Insofar as the executive and legislative departments
are concerned, the traditional concept of checks and balances in a
presidential form was considerably modified to remove some roadblocks in
the expeditious implementation of national policies. There was no such
change for the judiciary. We remain as a checking and balancing department
even as all strive to maintain respect for constitutional boundaries. At the
same time, the philosophy of coordination in the pursuit of developmental
goals implicit in the amendments also constrains in the judiciary to defer to
legislative discretion iii the judicial review of programs for economic
development and social progress unless a clear case of constitutional
infirmity is established. We cannot stop the legitimate exercise of power on
an invocation of grounds better left interred in a bygone age and time.* As
we review the efforts of the political departments to bring about self-
sufficiency, if not eventual abundance, we continue to maintain the liberal
approach because the primary responsibility and the discretion belong to
them.
There can be no doubt that expropriation for such traditions' purposes
as the construction of roads, bridges, ports, waterworks, schools, electric
and telecommunications systems, hydroelectric power plants, markets and
slaughterhouses, parks, hospitals, government office buildings, and flood
control or irrigation systems is valid. However, the concept of public use is
not limited to traditional purposes. Here as elsewhere the Idea that "public
use" is strictly limited to clear cases of "use by the public" has been
discarded.
In the United States, the rule was enunciated in Berman v. Parker
(348 U.S. 25; 99 L. ed. 27) as follows:
We do not sit to determine whether a particular housing project is or is
not desirable. The concept of the public welfare is broad and inclusive. See
DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424, 96 L ed 469, 472, 72 S
Ct 405. The values it represents are spiritual as well as physical, aesthetic as
well as monetary. It is within the power of the legislature to determine that
the community should be beautiful as well as healthy, spacious as well as
clean, well-balanced as well as carefully patrolled. In the present case, the
Congress and its authorized agencies have made determinations that take
into account a wide variety of values. It is not for us to reappraise them. If
those who govern the District of Columbia decide that the Nation's Capital
should be beautiful as well as sanitary, there is nothing in the Fifth
Amendment that stands in the way.
 Once the object is within the authority of Congress, the right to realize
it through the exercise of eminent domain is clear. For the power of eminent
domain is merely the means to the end. See Luxton v. North River Bridge
Co. 153 US 525, 529, 530, 38 L ed 808, 810, 14 S Ct 891; United States v.
Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated from the rest
of North Carolina because of the flooding of the reservoir of a dam thus
making the provision of police, school, and health services unjustifiably
expensive, the government decided to expropriate the private properties in
the village and the entire area was made part of an adjoining national park.
The district court and the appellate court ruled against the expropriation or
excess condemnation. The Court of Appeals applied the "use by the public"
test and stated that the only land needed for public use was the area directly
flooded by the reservoir. The village may have been cut off by the dam but
to also condemn it was excess condemnation not valid under the "Public use"
requirement. The U.S. Supreme Court in United States ex rel TVA v. Welch
(327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It
stated:
The Circuit Court of Appeals, without expressly relying on a compelling
rule of construction that would give the restrictive scope to the T.V.A. Act
given it by the district court, also interpreted the statute narrowly. It first
analyzed the facts by segregating the total problem into distinct parts, and
thus came to the conclusion that T.V.A.'s purpose in condemning the land in
question was only one to reduce its liability arising from the destruction of
the highway. The Court held that use of the lands for that purpose is a
"private" and not a "public use" or, at best, a "public use" not authorized by
the statute. we are unable to agree with the reasoning and conclusion of the
Circuit Court of Appeals.
We think that it is the function of Congress to decide what type of
taking is for a public use and that the agency authorized to do the taking
may do so to the still extent of its statutory authority, United States v.
Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580, 16 S Ct
427. ...
xxx xxx xxx
 ... But whatever may be the scope of the judicial power to determine
what is a "public use" in Fourteenth Amendment controversies, this Court
has said that when Congress has spoken on this subject "Its decision is
entitled to deference until it is shown to involve an impossibility." Old
Dominion Land Co. v. United States, 269, US 55, 66, 70 L ed 162, 46 S Ct
39. Any departure from this judicial restraint would result in courts deciding
on what is and is not a governmental function and in their invalidating
legislation on the basis of their view on that question at the moment of
decision, a practice which has proved impracticable in other fields. See Case
v. Bowles decided February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S
Ct 438. New York v. United States, 326 US 572 ante 326, 66 S Ct 310). We
hold that the T.V.A. took the tracts here involved for a public purpose, if, as
we think is the case, Congress authorized the Authority to acquire, hold, and
use the lands to carry out the purposes of the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando has aptly
summarized the statutory and judicial trend as follows:
The taking to be valid must be for public use. There was a time when it
was felt that a literal meaning should be attached to such a requirement.
Whatever project is undertaken must be for the public to enjoy, as in the
case of streets or parks. Otherwise, expropriation is not allowable. It is not
any more. As long as the purpose of the taking is public, then the power of
eminent domain comes into play. As just noted, the constitution in at least
two cases, to remove any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots for resale at cost to
individuals. The other is in the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the
general welfare satisfies the requirement of public use. (Fernando, The
Constitution of the Philippines, 2nd ed., pp. 523-524)
The petitioners' contention that the promotion of tourism is not "public
use" because private concessioners would be allowed to maintain various
facilities such as restaurants, hotels, stores, etc. inside the tourist complex is
impressed with even less merit. Private bus firms, taxicab fleets, roadside
restaurants, and other private businesses using public streets end highways
do not diminish in the least bit the public character of expropriations for
roads and streets. The lease of store spaces in underpasses of streets built
on expropriated land does not make the taking for a private purpose.
Airports and piers catering exclusively to private airlines and shipping
companies are still for public use. The expropriation of private land for slum
clearance and urban development is for a public purpose even if the
developed area is later sold to private homeowners, commercial firms,
entertainment and service companies, and other private concerns.
 The petitioners have also failed to overcome the deference that is
appropriately accorded to formulations of national policy expressed in
legislation. The rule in Berman u. Parker (supra) of deference to legislative
policy even if such policy might mean taking from one private person and
conferring on another private person applies as well as in the Philippines.
... Once the object is within the authority of Congress, the means by
which it will be attained is also for Congress to determine. Here one of the
means chosen is the use of private enterprise for redevelopment of the area.
Appellants argue that this makes the project a taking from one businessman
for the benefit of another businessman. But the means of executing the
project are for Congress and Congress alone to determine, once the public
purpose has been established. Selb Luxton v. North River Bridge Co. (US)
supra; cf. Highland v. Russel Car & Snow Plow Co. 279 US 253, 73 L ed 688,
49 S Ct 314. The public end may be as well or better served through an
agency of private enterprise than through a department of government-or so
the Congress might conclude. We cannot say that public ownership is the
sole method of promoting the public purposes of community redevelopment
projects. What we have said also disposes of any contention concerning the
fact that certain property owners in the area may be permitted to
repurchase their properties for redevelopment in harmony with the over-all
plan. That, too, is a legitimate means which Congress and its agencies may
adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348 US 33, 34)
An examination of the language in the 1919 cases of City of Manila v.
Chinese Community of Manila (40 Phil, 349) and Visayan Refining Co. vs.
Camus, earlier cited, shows that from the very start of constitutional
government in our country judicial deference to legislative policy has been
clear and manifest in eminent domain proceedings.
The expressions of national policy are found in the revised charter of
the Philippine Tourism Authority, Presidential Decree No. 564:
WHEREAS, it is the avowed aim of the government to promote
Philippine tourism and work for its accelerated and balanced growth as well
as for economy and expediency in the development of the tourism plant of
the country;
xxx xxx xxx
SECTION 1. Declaration of Policy. - It is hereby declared to be the
policy of the State to promote, encourage, and develop Philippine tourism as
an instrument in accelerating the development of the country, of
strengthening the country's foreign exchange reserve position, and of
protecting Philippine culture, history, traditions and natural beauty,
internationally as well as domestically.
The power of eminent domain is expressly provided for under Section
5 B(2) as follows:
xxx xxx xxx
 2. Acquisition of Private Lands, Power of Eminent Domain. To
acquire by purchase, by negotiation or by condemnation proceedings any
private land within and without the tourist zones for any of the following
reasons: (a) consolidation of lands for tourist zone development purposes,
(b) prevention of land speculation in areas declared as tourist zones, (c)
acquisition of right of way to the zones, (d) protection of water shed areas
and natural assets with tourism value, and (e) for any other purpose
expressly authorized under this Decree and accordingly, to exercise the
power of eminent domain under its own name, which shall proceed in the
manner prescribed by law and/or the Rules of Court on condemnation
proceedings. The Authority may use any mode of payment which it may
deem expedient and acceptable to the land owners: Provided, That in case
bonds are used as payment, the conditions and restrictions set forth in
Chapter III, Section 8 to 13 inclusively, of this Decree shall apply.
xxx xxx xxx
The petitioners rely on the Land Reform Program of the government in
raising their second argument. According to them, assuming that PTA has
the right to expropriate, the properties subject of expropriation may not be
taken for the purposes intended since they are within the coverage of
"operation land transfer" under the land reform program. Petitioners claim
that certificates of land transfer (CLT'S) and emancipation patents have
already been issued to them thereby making the lands expropriated within
the coverage of the land reform area under Presidential Decree No. 2; that
the agrarian reform program occupies a higher level in the order of priorities
than other State policies like those relating to the health and physical well-
being of the people; and that property already taken for public use may not
be taken for another public use.
We have considered the above arguments with scrupulous and
thorough circumspection. For indeed any claim of rights under the social
justice and land reform provisions of the Constitution deserves the most
serious consideration. The Petitioners, however, have failed to show that the
area being developed is indeed a land reform area and that the affected
persons have emancipation patents and certificates of land transfer.
 The records show that the area being developed into a tourism
complex consists of more than 808 hectares, almost all of which is not
affected by the land reform program. The portion being expropriated is 282
hectares of hilly and unproductive land where even subsistence farming of
crops other than rice and corn can hardly survive. And of the 282 disputed
hectares, only 8,970 square meters-less than one hectare-is affected by
Operation Land Transfer. Of the 40 defendants, only two have emancipation
patents for the less than one hectare of land affected. And this 8,970 square
meters parcel of land is not even within the sports complex proper but forms
part of the 32 hectares resettlement area where the petitioners and others
similarly situated would be provided with proper housing, subsidiary
employment, community centers, schools, and essential services like water
and electricity-which are non-existent in the expropriated lands. We see no
need under the facts of this petition to rule on whether one public purpose is
superior or inferior to another purpose or engage in a balancing of
competing public interests. The petitioners have also failed to overcome the
showing that the taking of the 8,970 square meters covered by Operation
Land Transfer forms a necessary part of an inseparable transaction involving
the development of the 808 hectares tourism complex. And certainly, the
human settlement needs of the many beneficiaries of the 32 hectares
resettlement area should prevail over the property rights of two of their
compatriots.
The invocation of the contracts clause has no merit. The non-
impairment clause has never been a barrier to the exercise of police power
and likewise eminent domain. As stated in Manigault v. Springs (199 U.S.
473) "parties by entering into contracts may not stop the legislature from
enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544)
which involved the expropriation of land for a public plaza. The Court stated:
xxx xxx xxx
 ... What is claimed is that there must be a showing of necessity for
such condemnation and that it was not done in this case in support of such a
view, reliance is placed on City of Manila v. Arenano Law Colleges. (85 Phil.
663 [1950]) That doctrine itself is based on the earlier case of City of Manila
v. Chinese Community of Manila, (50 Phil. 349) also, like Camus, a 1919
decision. As could be discerned, however, in the Arellano Law Colleges
decision. it was the antiquarian view of Blackstone with its sanctification of
the right to one's estate on which such an observation was based. As did
appear in his Commentaries: "So great is the regard of the law for private
property that it will not, authorize the least violation of it, even for the public
good, unless there exists a very great necessity thereof." Even the most ,
cursory glance at such well-nigh absolutist concept of property would show
its obsolete character at least for Philippine constitutional law. It cannot
survive the test of the 1935 Constitution with its mandates on social justice
and protection to labor. (Article II, Section 5 of the 1935 Constitution reads:
"The promotion of social justice to unsure the well-being and economic
security of all the people should be the concern of the State." Article XI,
Section 6 of the same Constitution provides: "The State shall afford
protection to labor, especially to working women and minors, and shall
regulate the relation between landowner and tenant, and between labor and
capital in industry and in agriculture. The State may provide for compulsory
arbitration.") What is more, the present Constitution pays even less heed to
the claims of property and rightly so. After stating that the State shall
promote social justice, it continues: "Towards this end, the State shall
regulate the acquisition, ownership, use, enjoyment, and disposition of
private property, and equitably diffuse property ownership and profits."
(That is the second sentence of Article II, Section 6 of the Constitution) If
there is any need for explicit confirmation of what was set forth in
Presidential Decree No. 42, the above provision supplies it. Moreover, that is
merely to accord to what of late has been the consistent course of decisions
of this Court whenever property rights are pressed unduly. (Cf. Alalayan v.
National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172;
Agricultural Credit and Cooperative Financing Administration v. Confederation
of Unions, L-21484, Nov. 29, 1969, 30 SCRA 649; Edu v. Ericta, L-32096,
Oct. 24, 1970, 35 SCRA 481; Phil. Virginia Tobacco Administration v. Court
of Industrial Relations, L-32052, July 25, 1975, 65 SCRA 416) The statement
therefore, that there could be discerned a constitutional objection to a lower
court applying a Presidential Decree, when it leaves no doubt that a grantee
of the power of eminent domain need not prove the necessity for the
expropriation, carries its own refutation.
xxx xxx xxx
 The issue of prematurity is also raised by the petitioners. They claim
that since the necessity for the taking has not been previously established,
the issuance of the orders authorizing the PTA to take immediate possession
of the premises, as well as the corresponding writs of possession was
premature.
Under Presidential Decree No. 42, as amended by Presidential Decree
No. 1533, the government, its agency or instrumentality, as plaintiff in an
expropriation proceedings is authorized to take immediate possession,
control and disposition of the property and the improvements, with power of
demolition, notwithstanding the pendency of the issues before the court,
upon deposit with the Philippine National Bank of an amount equivalent to
10% of the value of the property expropriated. The issue of immediate
possession has been settled in Arce v. Genato (supra). In answer to the
issue:
... whether the order of respondent Judge in an expropriation case
allowing the other respondent, ... to take immediate possession of the parcel
of land sought to be condemned for the beautification of its public plaza,
without a prior hearing to determine the necessity for the exercise of the
power of eminent domain, is vitiated by jurisdictional defect, ...
this Court held that:
... It is not disputed that in issuing such order, respondent Judge relied
on Presidential Decree No. 42 issued on the 9th of November, 1972.
(Presidential Decree No. 42 is entitled "Authorizing the Plaintiff in Eminent
Domain Proceedings to Take Possession of the Property involved Upon
Depositing the Assessed Value for Purposes of Taxation.") The question as
thus posed does not occasion any difficulty as to the answer to be given.
This petition for certiorari must fail, there being no showing that compliance
with the Presidential Decree, which under the Transitory Provisions is
deemed a part of the law of the land, (According to Article XVII, Section 3
par. (2) of the Constitution: "All proclamations, orders, decrees, instructions
and acts promulgated, issued, or done by the incumbent President shall be
part of the law of the land, and shall remain valid, legal, binding, and
effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent
proclamations. orders, decrees instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the
regular National Assembly") would be characterized as either an act in
excess of jurisdiction or a grave abuse of discretion. So we rule.
Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449-
50, June 9, 1980), this Court held:
 ... condemnation or expropriation proceedings is in the nature of one
that is quasi-in-rem wherein the fact that the owner of the property is made
a party is not essentially indispensable insofar was least as it conncerns is
the immediate taking of possession of the property and the preliminary
determination of its value, including the amount to be deposited.
In their last argument, the petitioners claim that a consequence of the
expropriation proceedings would be their forcible ejectment. They contend
that such forcible ejectment is a criminal act under Presidential Decree No.
583. This contention is not valid. Presidential Decree No. 583 prohibits the
taking cognizance or implementation of orders designed to obstruct the land
reform program. It refers to the harassment of tenant- farmers who try to
enforce emancipation rights. It has nothing to do with the expropriation by
the State of lands needed for public purposes. As a matter of fact, the
expropriated area does not appear in the master lists of the Ministry of
Agrarian Reforms as a teranted area. The petitioners' bare allegations have
not been supported with particulars pointing to specific parcels which are
subject of tenancy contracts. The petitioners may be owner-tillers or may
have some form of possessory or ownership rights but there has been no
showing of their being tenants on the disputed lands.
The petitioners have failed to overcome the burden of anyone trying to
strike down a statute or decree whose avowed purpose is the legislative
perception is the public good. A statute has in its favor the presumption of
validity. All reasonable doubts should be resolved in favor of the
constitutionality of a law. The courts will not set aside a law as violative of
the Constitution except in a clear case (People v. Vera, 65 Phil. 56). And in
the absence of factual findings or evidence to rebut the presumption of
validity, the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor of
Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the development of the 808
hectares includes plans that would give the petitioners and other displaced
persons productive employment, higher incomes, decent housing, water and
electric facilities, and better living standards. Our dismissing this petition is,
in part, predicated on those assurances. The right of the PTA to proceed with
the expropriation of the 282 hectares already Identified as fit for the
establishment of a resort complex to promote tourism is, therefore,
sustained.
WHEREFORE, the instant petition for certiorari is hereby DISMISSE D
for lack of merit.
SO ORDERED.
Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana,
Escolin and Relova, JJ., concur.
Aquino, J, concurs in the result.
De Castro, J, is on leave.
 SECOND DIVISION
[G.R. No. 137285. January 16, 2001]
ESTATE OF SALUD JIMENEZ, petitioner, vs. PHILIPPINE
EXPORT PROCESSING ZONE, respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision[1] and
the Resolution[2]of the Court of Appeals[3] dated March 25, 1998 and
January 14, 1999, respectively, which ordered the Presiding Judge of the
Regional Trial Court of Cavite City, Branch 17, to proceed with the hearing of
the expropriation proceedings regarding the determination of just
compensation for Lot 1406-B while setting aside the Orders dated August 4,
1997[4] and November 3, 1997 of the said Regional Trial Court which
ordered the peaceful turnover to petitioner Estate of Salud Jimenez of said
Lot 1406-B.
The facts are as follows:
On May 15, 1981, private respondent Philippine Export Processing
Zone (PEZA), then called as the Export Processing Zone Authority (EPZA),
initiated before the Regional Trial Court of Cavite expropriation
proceedings[5] on three (3) parcels of irrigated riceland in Rosario, Cavite.
One of the lots, Lot 1406 (A and B) of the San Francisco de Malabon Estate,
with an approximate area of 29,008 square meters, is registered in the
name of Salud Jimenez under TCT No. T-113498 of the Registry of Deeds of
Cavite.
More than ten (10) years later[6], the said trial court in an Order[7]
dated July 11, 1991 upheld the right of private respondent PEZA to
expropriate, among others, Lot 1406 (A and B). Reconsideration of the said
order was sought by petitioner contending that said lot would only be
transferred to a private corporation, Philippine Vinyl Corp., and hence would
not be utilized for a public purpose.
In an Order[8] dated October 25, 1991, the trial court reconsidered
the Order dated July 11, 1991 and released Lot 1406-A from expropriation
while the expropriation of Lot 1406-B was maintained. Finding the said order
unacceptable, private respondent PEZA interposed an appeal to the Court of
Appeals.
Meanwhile, petitioner wrote a letter to private respondent offering two
(2) proposals, namely:
1. Withdrawal of private respondents appeal with respect to Lot 1406-
A in consideration of the waiver of claim for damages and loss of income for
the possession of said lot by private respondent.
 2. The swap of Lot 1406-B with Lot 434 covered by TCT No. T-14772
since private respondent has no money yet to pay for the lot.
Private respondents Board approved the proposal and the compromise
agreement was signed by private respondent through its then administrator
Tagumpay Jardiniano assisted by Government Corporate Counsel Oscar I.
Garcia. Said compromise agreement[9] dated January 4, 1993 is quoted
hereunder:
1. That plaintiff agrees to withdraw its appeal from the Order of the
Honorable Court dated October 25, 1991 which released lot 1406-A from the
expropriation proceedings. On the other hand, defendant Estate of Salud
Jimenez agrees to waive, quitclaim and forfeit its claim for damages and loss
of income which it sustained by reason of the possession of said lot by
plaintiff from 1981 up to the present.
2. That the parties agree that defendant Estate of Salud Jimenez shall
transfer lot 1406-B with an area of 13,118 square meters which forms part
of the lot registered under TCT No. 113498 of the Registry of Deeds of
Cavite to the name of the plaintiff and the same shall be swapped and
exchanged with lot 434 with an area of 14,167 square meters and covered
by Transfer Certificate of Title No. 14772 of the Registry of Deeds of Cavite
which lot will be transferred to the name of Estate of Salud Jimenez.
3. That the swap arrangement recognizes the fact that the lot 1406-B
covered by TCT No. T-113498 of the estate of defendant Salud Jimenez is
considered expropriated in favor of the government based on Order of the
Honorable Court dated July 11, 1991. However, instead of being paid the just
compensation for said lot, the estate of said defendant shall be paid with lot
434 covered by TCT No. T-14772.
4. That the parties agree that they will abide by the terms of the
foregoing agreement in good faith and the Decision to be rendered based on
this Compromise Agreement is immediately final and executory.
The Court of Appeals remanded the case to the trial court for the
approval of the said compromise agreement entered into between the
parties, consequent with the withdrawal of the appeal with the Court of
Appeals. In the Order[10] dated August 23, 1993, the trial court approved
the compromise agreement.
However, private respondent failed to transfer the title of Lot 434 to
petitioner inasmuch as it was not the registered owner of the covering TCT
No. T-14772 but Progressive Realty Estate, Inc. Thus, on March 13, 1997,
petitioner Estate filed a Motion to Partially Annul the Order dated August 23,
1993.[11]
 In the Order[12] dated August 4, 1997, the trial court annulled the
said compromise agreement entered into between the parties and directed
private respondent to peacefully turn over Lot 1406-A to the petitioner.
Disagreeing with the said Order of the trial court, respondent PEZA
moved[13] for its reconsideration. The same proved futile since the trial
court denied reconsideration in its Order[14] dated November 3, 1997.
On December 4, 1997, the trial court, at the instance[15] of petitioner,
corrected the Orders dated August 4, 1997 and November 3, 1997 by
declaring that it is Lot 1406-B and not Lot 1406-A that should be
surrendered and returned to petitioner.
On November 27, 1997, respondent interposed before the Court of
Appeals a petition for certiorari and prohibition[16] seeking to nullify the
Orders dated August 4, 1997 and November 3, 1997 of the trial court.
Petitioner filed its Comment[17]on January 16, 1998.
Acting on the petition, the Court of Appeals in a Decision[18]dated
March 25, 1998 upheld the rescission of the compromise agreement,
ratiocinating thus:
A judicial compromise may be enforced by a writ of execution, and if a
party fails or refuses to abide by the compromise, the other party may
regard it as rescinded and insist upon his original demand. This is in
accordance with Article 2041 of the Civil Code which provides:
If one of the parties fails or refuses to abide by the compromise, the
other party may either enforce the compromise or regard it as rescinded and
insist upon his original demand.
The Supreme Court had the occasion to explain this provision of law in
the case of Leonor v. Sycip (1 SCRA 1215). It ruled that the language of the
abovementioned provision denotes that no action for rescission is required
and that the aggrieved party by the breach of compromise agreement, may
regard the compromise agreement already rescinded, to wit:
 It is worthy of notice, in this connection, that, unlike Article 2039 of
the same Code, which speaks of a cause of annulment or rescission of the
compromise and provides that the compromise may be annulled or rescinded
for the cause therein specified, thus suggesting an action for annulment or
rescission, said Article 2041 confers upon the party concerned not a cause
for rescission, or the right to demand rescission, of a compromise, but the
authority, not only to regard it as rescinded, but, also, to insist upon his
original demand. The language of this Article 2041, particularly when
contrasted with that of Article 2039, denotes that no action for rescission is
required in said Article 2041, and that the party aggrieved by the breach of a
compromise agreement may, if he chooses, bring the suit contemplated or
involved in his original demand, as if there had never been any compromise
agreement, without bringing an action for rescission thereof. He need not
seek a judicial declaration of rescission, for he may regard the compromise
agreement already, rescinded.
Nonetheless, it held that:
Having upheld the rescission of the compromise agreement, what is
then the status of the expropriation proceedings? As succinctly discussed in
the case of Leonor v. Sycip, the aggrieved party may insist on his original
demand as if there had never been any compromise agreement. This means
that the situation of the parties will revert back to status before the
execution of the compromise agreement, that is, the second stage of the
expropriation proceedings which is the determination of the just
compensation.[19]
xxx
Thus, the appellate court partially granted the petition by setting aside
the order of the trial court regarding the peaceful turn over to the Estate of
Salud Jimenez of Lot No. 1406-B and instead ordered the trial judge to
proceed with the hearing of the expropriation proceedings regarding the
determination of just compensation over Lot 1406-B.[20]
Petitioner sought[21] reconsideration of the Decision dated March 25,
1998. However, public respondent in a Resolution[22] dated January 14,
1999 denied petitioners motion for reconsideration.
Hence, this petition anchored on the following assignment of errors, to
wit:
I
 THE COURT OF APPEALS COMMITTED GRAVE AND REVERSIBLE
ERROR IN GIVING DUE COURSE TO THE SPECIAL CIVIL ACTION
FILED BY RESPONDENT PEZA IN CA-G.R. SP. NO. 46112 WHEN IT
WAS MADE A SUBSTITUTE FOR LOST APPEAL IN CLEAR
CONTRAVENTION OF THE HONORABLE COURTS RULING IN SEMPIO
VS. COURT OF APPEALS (263 SCRA 617) AND ONGSITCO VS. COURT
OF APPEALS (255 SCRA 703) AND DESPITE THE FACT THAT THE
ORDER OF THE CAVITE REGIONAL TRIAL COURT IS ALREADY FINAL
AND EXECUTORY.
II
GRANTING IN GRATIA ARGUMENTI THAT THE SPECIAL CIVIL
ACTION OF CERTIORARI IS PROPER, THE COURT OF APPEALS
NEVERTHELESS WRONGLY INTERPRETED THE PHRASE ORIGINAL
DEMAND CONTAINED IN ARTICLE 2041 OF THE CIVIL CODE. THE
ORIGINAL DEMAND OF PETITIONER ESTATE IS THE RETURN OF THE
SUBJECT LOT (LOT 1406-B) WHICH IS SOUGHT TO BE
EXPROPRIATED AND NOT THE DETERMINATION OF JUST
COMPENSATION FOR THE LOT. FURTHERMORE, EVEN IF THE
INTERPRETATION OF THE COURT OF APPEALS OR THE IMPORT OF
THE PHRASE IN QUESTION IS CORRECT, IT IS ARTICLE 2039 OF THE
CIVIL CODE AND NOT ARTICLE 2041 WHICH IS APPLICABLE TO
COMPROMISE AGREEMENTS APPROVED BY THE COURTS.[23]
We rule in favor of the respondent.
Petitioner contends that the Court of Appeals erred in entertaining the
petition for certiorari filed by respondent under Rule 65 of the Rules of
Court, the same being actually a substitute for lost appeal. It appeared that
on August 11, 1997, respondent received the Order of the trial court dated
August 4, 1997 annulling the compromise agreement. On August 26, 1997,
the last day for the filing of a notice of appeal, respondent filed instead a
motion for reconsideration. The Order of the trial court denying the motion
for reconsideration was received by respondent on November 23, 1997. The
reglementary period to appeal therefore lapsed on November 24, 1997. On
November 27, 1997, however, respondent filed with the Court of Appeals a
petition for certiorari docketed as CA-G.R. SP. No. 46112. Petitioner claims
that appeal is the proper remedy inasmuch as the Order dated August 4,
1997 of the Regional Trial Court is a final order that completely disposes of
the case. Besides, according to petitioner, respondent is estopped in
asserting that certiorari is the proper remedy inasmuch as it invoked the
fifteen (15) day reglementary period for appeal when it filed a motion for
reconsideration on August 26, 1997 and not the sixty (60) day period for
filing a petition for certiorari under Rule 65 of the Rules of Court.
 The Court of Appeals did not err in entertaining the petition for
certiorari under Rule 65 of The Rules of Court. A petition for certiorari is the
proper remedy when any tribunal, board, or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction
and there is no appeal, nor any plain, speedy, and adequate remedy at law.
[24] Grave abuse of discretion is defined as the capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. An error of
judgment committed in the exercise of its legitimate jurisdiction is not the
same as grave abuse of discretion. An abuse of discretion is not sufficient by
itself to justify the issuance of a writ of certiorari. The abuse must be grave
and patent, and it must be shown that the discretion was exercised
arbitrarily and despotically.[25]
As a general rule, a petition for certiorari will not lie if an appeal is the
proper remedy thereto such as when an error of judgment as well as of
procedure are involved. As long as a court acts within its jurisdiction and
does not gravely abuse its discretion in the exercise thereof, any supposed
error committed by it will amount to nothing more than an error of judgment
reviewable by a timely appeal and not assailable by a special civil action of
certiorari. However, in certain exceptional cases, where the rigid application
of such rule will result in a manifest failure or miscarriage of justice, the
provisions of the Rules of Court which are technical rules may be relaxed.
Certiorari has been deemed to be justified, for instance, in order to prevent
irreparable damage and injury to a party where the trial judge has
capriciously and whimsically exercised his judgment, or where there may be
danger of clear failure of justice, or where an ordinary appeal would simply
be inadequate to relieve a party from the injurious effects of the judgment
complained of.[26]
Expropriation proceedings involve two (2) phases. The first phase ends
either with an order of expropriation (where the right of plaintiff to take the
land and the public purpose to which they are to be devoted are upheld) or
an order of dismissal. Either order would be a final one since it finally
disposes of the case. The second phase concerns the determination of just
compensation to be ascertained by three (3) commissioners. It ends with an
order fixing the amount to be paid to the defendant. Inasmuch as it leaves
nothing more to be done, this order finally disposes of the second stage. To
both orders the remedy therefrom is an appeal.[27]
 In the case at bar, the first phase was terminated when the July 11,
1991 order of expropriation became final and the parties subsequently
entered into a compromise agreement regarding the mode of payment of
just compensation. When respondent failed to abide by the terms of the
compromise agreement, petitioner filed an action to partially rescind the
same. Obviously, the trial could only validly order the rescission of the
compromise agreement anent the payment of just compensation inasmuch
as that was the subject of the compromise. However, on August 4, 1991, the
trial court gravely abused its discretion when it ordered the return of Lot
1406-B. It, in effect, annulled the Order of Expropriation dated July 11, 1991
which was already final and executory.
We affirm the appellate courts reliance on the cases of Aguilar v.
Tan[28] and Bautista v. Sarmiento[29] wherein it was ruled that the
remedies of certiorari and appeal are not mutually exclusive remedies in
certain exceptional cases, such as when there is grave abuse of discretion,
or when public welfare so requires. The trial court gravely abused its
discretion by setting aside the order of expropriation which has long become
final and executory and by ordering the return of Lot 1406-B to the
petitioner. Its action was clearly beyond its jurisdiction for it cannot modify a
final and executory order. A final and executory order can only be annulled
by a petition to annul the same on the ground of extrinsic fraud and lack of
jurisdiction[30] or a petition for relief from a final order or judgment under
Rule 38 of the Rules of Court. However, no petition to that effect was filed.
Hence, though an order completely and finally disposes of the case, if appeal
is not a plain, speedy and adequate remedy at law or the interest of
substantial justice requires, a petition for certiorari may be availed of upon
showing of lack or excess of jurisdiction or grave abuse of discretion on the
part of the trial court.
 According to petitioner the rule that a petition for certiorari can be
availed of despite the fact that the proper remedy is an appeal only applies
in cases where the petition is filed within the reglementary period for appeal.
Inasmuch as the petition in the case at bar was filed after the fifteen (15)
day regulatory period to appeal, said exceptional rule as enshrined in the
cases of Aguilar v. Tan[31] and Bautista v. Sarmiento[32] is not applicable.
We find this interpretation too restrictive. The said cases do not set as a
condition sine qua non the filing of a petition for certiorari within the fifteen
(15) day period to appeal in order for the said petition to be entertained by
the court. To espouse petitioners contention would render inutile the sixty
(60) day period to file a petition for certiorari under Rule 65. In Republic v.
Court of Appeals[33], which also involved an expropriation case where the
parties entered into a compromise agreement on just compensation, this
Court entertained the petition for certiorari despite the existence of an
appeal and despite its being filed after the lapse of the fifteen (15) day
period to appeal the same. We ruled that the Court has not too infrequently
given due course to a petition for certiorari, even when the proper remedy
would have been an appeal, where valid and compelling considerations
would warrant such a recourse.[34] If compelled to return the subject parcel
of land, the respondent would divert its budget already allocated for
economic development in order to pay petitioner the rental payments from
the lessee banks. Re-adjusting its budget would hamper and disrupt the
operation of the economic zone. We believe that the grave abuse of
discretion committed by the trial court and the consequent disruption in the
operation of the economic zone constitutes valid and compelling reasons to
entertain the petition.
Petitioner next argues that the instances cited under Section 1 of Rule
41 of the Rules of Court[35] whereby an appeal is not allowed are exclusive
grounds for a petition for certiorari. Inasmuch as the August 4 1997 Order
rescinding the compromise agreement does not fall under any of the
instances enumerated therein, a petition for certiorari will not prosper. This
reasoning is severely flawed. The said section is not phrased to make the
instances mentioned therein the sole grounds for a petition for certiorari. It
only states that Rule 65 may be availed of under the grounds mentioned
therein, but it never intended said enumeration to be exclusive. It must be
remembered that a wide breadth of discretion is granted a court of justice in
certiorari proceedings.[36]
 In the second assignment of error, petitioner assails the interpretation
by the Court of Appeals of the phrase original demand in Article 2041 of the
New Civil Code vis-a-vis the case at bar. Article 2041 provides that, If one of
the parties fails or refuses to abide by the compromise, the other party may
either enforce the compromise or regard it as rescinded and insist upon his
original demand. According to petitioner, the appellate court erred in
interpreting original demand as the fixing of just compensation. Petitioner
claims that the original demand is the return of Lot 1406-B as stated in
petitioners motion to dismiss[37] the complaint for expropriation inasmuch
as the incorporation of the expropriation order in the compromise agreement
subjected the said order to rescission. Since the order of expropriation was
rescinded, the authority of respondent to expropriate and the purpose of
expropriation have again become subject to dispute.
Petitioner cites cases[38] which provide that upon the failure to pay by
the lessee, the lessor can ask for the return of the lot and the ejectment of
the former, this being the lessors original demand in the complaint. We find
said cases to be inapplicable to this instant case for the reason that the case
at bar is not a simple ejectment case. This is an expropriation case which
involves two (2) orders: an expropriation order and an order fixing just
compensation. Once the first order becomes final and no appeal thereto is
taken, the authority to expropriate and its public use cannot anymore be
questioned.
Contrary to petitioners contention, the incorporation of the
expropriation order in the compromise agreement did not subject said order
to rescission but instead constituted an admission by petitioner of
respondents authority to expropriate the subject parcel of land and the
public purpose for which it was expropriated. This is evident from paragraph
three (3) of the compromise agreement which states that the swap
arrangement recognizes the fact that Lot 1406-B covered by TCT No. T-
113498 of the estate of defendant Salud Jimenez is considered expropriated
in favor of the government based on the Order of the Honorable Court dated
July 11, 1991. It is crystal clear from the contents of the agreement that the
parties limited the compromise agreement to the matter of just
compensation to petitioner. Said expropriation order is not closely
intertwined with the issue of payment such that failure to pay by respondent
will also nullify the right of respondent to expropriate. No statement to this
effect was mentioned in the agreement. The Order was mentioned in the
agreement only to clarify what was subject to payment.
 This Court therefore finds that the Court of Appeals did not err in
interpreting original demand to mean the fixing of just compensation. The
authority of respondent and the nature of the purpose thereof have been put
to rest when the Expropriation Order dated July 11, 1991 became final and
was duly admitted by petitioner in the compromise agreement. The only
issue for consideration is the manner and amount of payment due to
petitioner. In fact, aside from the withdrawal of private respondents appeal
to the Court of Appeals concerning Lot 1406-A, the matter of payment of
just compensation was the only subject of the compromise agreement dated
January 4, 1993. Under the compromise agreement, petitioner was
supposed to receive respondents Lot No. 434 in exchange for Lot 1406-B.
When respondent failed to fulfill its obligation to deliver Lot 434, petitioner
can again demand for the payment but not the return of the expropriated
Lot 1406-B. This interpretation by the Court of Appeals is in accordance with
Sections 4 to 8, Rule 67 of the Rules of Court.
We also find as inapplicable the ruling in Gatchalian v. Arlegui[39], a
case cited by petitioner, where we held that even a final judgment can still
be compromised so long as it is not fully satisfied. As already stated, the
expropriation order was not the subject of the compromise agreement. It
was only the mode of payment which was the subject of the compromise
agreement. Hence, the Order of Expropriation dated July 11, 1991 can no
longer be annulled.
After having invoked the provisions of Article 2041, petitioner
inconsistently contends that said article does not apply to the case at bar
inasmuch as it is only applicable to cases where a compromise has not been
approved by a court. In the case at bar, the trial court approved the
compromise agreement. Petitioner insists that Articles 2038, 2039 and 1330
of the New Civil Code should apply. Said articles provide that:
Article 2038. A compromise in which there is mistake, fraud, violence,
intimidation, undue influence, or falsity of documents, is subject to the
provisions of Article 1330 of this Code.
However, one of the parties cannot set up a mistake of fact as against
the other if the latter, by virtue of the compromise, has withdrawn from a
litigation already commenced.
Article 2039. When the parties compromise generally on all differences
which they might have with each other, the discovery of documents referring
to one or more but not to all of the questions settled shall not itself be a
cause for annulment or rescission of the compromise, unless said documents
have been concealed by one of the parties.
But the compromise may be annulled or rescinded if it refers only to
one thing to which one of the parties has no right, as shown by the newly
discovered documents.(n)
 Article 1330. A contract where consent is given through mistake,
violence, intimidation, undue influence, or fraud is voidable.[40]
The applicability of the above-quoted legal provisions will not change
the outcome of the subject of the rescission. Since the compromise
agreement was only about the mode of payment by swapping of lots and not
about the right and purpose to expropriate the subject Lot 1406-B, only the
originally agreed form of compensation that is by cash payment, was
rescinded.
This Court holds that respondent has the legal authority to expropriate
the subject Lot 1406-B and that the same was for a valid public purpose. In
Sumulong v. Guerrero[41], this Court has ruled that,
the public use requirement for a valid exercise of the power of eminent
domain is a flexible and evolving concept influenced by changing conditions.
In this jurisdiction, the statutory and judicial trend has been summarized as
follows:
this Court has ruled that the taking to be valid must be for public use.
There was a time when it was felt that a literal meaning should be attached
to such a requirement. Whatever project is undertaken must be for the
public to enjoy, as in the case of streets or parks. Otherwise expropriation is
not allowable. It is not anymore. As long as the purpose of the taking is
public, then the power of eminent domain comes into play It is accurate to
state then that at present whatever may be beneficially employed for the
general welfare satisfies the requirement of public use. [Heirs of Juancho
Ardona v. Reyes, 125 SCRA 220 (1983) at 234-235 quoting E. Fernando, the
Constitution of the Philippines 523-4 (2nd Ed. 1977)
The term public use has acquired a more comprehensive coverage. To
the literal import of the term signifying strict use or employment by the
public has been added the broader notion of indirect public benefit or
advantage.
In Manosca v. Court of Appeals, this Court has also held that what
ultimately emerged is a concept of public use which is just as broad as public
welfare.[42]
Respondent PEZA expropriated the subject parcel of land pursuant to
Proclamation No. 1980 dated May 30, 1980 issued by former President
Ferdinand Marcos. Meanwhile, the power of eminent domain of respondent is
contained in its original charter, Presidential Decree No. 66, which provides
that:
 Section 23. Eminent Domain. For the acquisition of rights of way, or of
any property for the establishment of export processing zones, or of low-cost
housing projects for the employees working in such zones, or for the
protection of watershed areas, or for the construction of dams, reservoirs,
wharves, piers, docks, quays, warehouses and other terminal facilities,
structures and approaches thereto, the Authority shall have the right and
power to acquire the same by purchase, by negotiation, or by condemnation
proceedings. Should the authority elect to exercise the right of eminent
domain, condemnation proceedings shall be maintained by and in the name
of the Authority and it may proceed in the manner provided for by law.
(italics supplied)
Accordingly, subject Lot 1406-B was expropriated for the construction
of terminal facilities, structures and approaches thereto. The authority is
broad enough to give the respondent substantial leeway in deciding for what
public use the expropriated property would be utilized. Pursuant to this
broad authority, respondent leased a portion of the lot to commercial banks
while the rest was made a transportation terminal. Said public purposes
were even reaffirmed by Republic Act No. 7916, a law amending respondent
PEZAs original charter, which provides that:
Sec. 7. ECOZONE to be a Decentralized Agro-Industrial, Industrial,
Commercial/Trading, Tourist, Investment and Financial Community. Within
the framework of the Constitution, the interest of national sovereignty and
territorial integrity of the Republic, ECOZONE shall be developed, as much as
possible, into a decentralized, self-reliant and self-sustaining industrial,
commercial/trading, agro-industrial, tourist, banking, financial and
investment center with minimum government intervention. Each ECOZONE
shall be provided with transportation, telecommunications and other facilities
needed to generate linkage with industries and employment opportunities for
its own habitants and those of nearby towns and cities.
The ECOZONE shall administer itself on economic, financial, industrial,
tourism development and such other matters within the exclusive
competence of the national government. (italics supplied)
Among the powers of PEZA enumerated by the same law are:
Sec. 12. Functions and Powers of PEZA Board. ---- The Philippine
Economic Zone Authority (PEZA) Board shall have the following function and
powers:
(a) Set the general policies on the establishment and operations of the
ECOZONE, Industrial estate, exports processing zones, free trade zones, and
the like;
xxx
 (c) Regulate and undertake the establishment, operation and
maintenance of utilities, other services and infrastructure in the ECOZONE,
such as heat, light and power, water supply, telecommunications, transport,
toll roads and bridges, port services, etc. and to fix just, reasonable and
competitive rates, fares, charges and fees thereof.[43]
In Manila Railroad Co. v. Mitchel[44], this Court has ruled that in the
exercise of eminent domain, only as much land can be taken as is necessary
for the legitimate purpose of the condemnation. The term necessary, in this
connection, does not mean absolutely indispensable but requires only a
reasonable necessity of the taking for the stated purpose, growth and future
needs of the enterprise. The respondent cannot attain a self-sustaining and
viable ECOZONE if inevitable needs in the expansion in the surrounding
areas are hampered by the mere refusal of the private landowners to part
with their properties. The purpose of creating an ECOZONE and other
facilities is better served if respondent directly owns the areas subject of the
expansion program.
The contention of petitioner that the leasing of the subject lot to banks
and building terminals was not expressly mentioned in the original charter of
respondent PEZA and that it was only after PEZA devoted the lot to said
purpose that Republic Act No. 7916 took effect, is not impressed with merit.
It should be pointed out that Presidential Decree No. 66 created the
respondent PEZA to be a viable commercial, industrial and investment area.
According to the comprehensive wording of Presidential Decree No. 66, the
said decree did not intend to limit respondent PEZA to the establishment of
an export processing zone but it was also bestowed with authority to
expropriate parcels of land for the construction of terminal facilities,
structures and approaches thereto. Republic Act No. 7916 simply
particularized the broad language employed by Presidential Decree No. 66 by
specifying the purposes for which PEZA shall devote the condemned lots,
that is, for the construction and operation of an industrial estate, an export
processing zone, free trade zones, and the like. The expropriation of Lot
1406-B for the purpose of being leased to banks and for the construction of
a terminal has the purpose of making banking and transportation facilities
easily accessible to the persons working at the industries located in PEZA.
The expropriation of adjacent areas therefore comes as a matter of necessity
to bring life to the purpose of the law. In such a manner, PEZAs goal of being
a major force in the economic development of the country would be realized.
Furthermore, this Court has already ruled that:
 (T)he Legislature may directly determine the necessity for
appropriating private property for a particular improvement for public use,
and it may select the exact location of the improvement. In such a case, it is
well-settled that the utility of the proposed improvement, the existence of
the public necessity for its construction, the expediency of constructing it,
the suitableness of the location selected, are all questions exclusively for the
legislature to determine, and the courts have no power to interfere or to
substitute their own views for those of the representatives of the people.
In the absence of some constitutional or statutory provision to the
contrary, the necessity and expediency of exercising the right of eminent
domain are questions essentially political and not judicial in their character.
[45]
Inasmuch as both Presidential Decree No. 66 and Republic Act No.
7916, bestow respondent with authority to develop terminal facilities and
banking centers, this Court will not question the respondents lease of certain
portions of the expropriated lot to banks, as well as the construction of
terminal facilities.
Petitioner contends that respondent is bound by the representations of
its Chief Civil Engineer when the latter testified before the trial court that the
lot was to be devoted for the construction of government offices. Anent this
issue, suffice it to say that PEZA can vary the purpose for which a
condemned lot will be devoted to, provided that the same is for public use.
Petitioner cannot impose or dictate on the respondent what facilities to
establish for as long as the same are for public purpose.
Lastly, petitioner appeals to the sense of justice and equity to this
Court in restoring the said lot to its possession. From the time of the filing of
the expropriation case in 1981 up to the present, respondent has not yet
remunerated the petitioner although respondent has already received
earnings from the rental payments by lessees of the subject property.
We have ruled that the concept of just compensation embraces not
only the correct determination of the amount to be paid to the owners of the
land, but also the payment of the land within a reasonable time from its
taking. Without prompt payment, compensation cannot be considered just
inasmuch as the property owner is made to suffer the consequences of being
immediately deprived of his land while being made to wait for a decade or
more before actually receiving the amount necessary to cope with his loss.
[46] Payment of just compensation should follow as a matter of right
immediately after the order of expropriation is issued. Any delay in payment
must be counted from said order. However, the delay to constitute a violation
of due process must be unreasonable and inexcusable; it must be
deliberately done by a party in order to defeat the ends of justice.
 We find that respondent capriciously evaded its duty of giving what is
due to petitioner. In the case at bar, the expropriation order was issued by
the trial court in 1991. The compromise agreement between the parties was
approved by the trial court in 1993. However, from 1993 up to the present,
respondent has failed in its obligation to pay petitioner to the prejudice of
the latter. Respondent caused damage to petitioner in making the latter to
expect that it had a good title to the property to be swapped with Lot 1406-
B; and meanwhile, respondent has been reaping benefits from the lease or
rental income of the said expropriated lot. We cannot tolerate this oppressive
exercise of the power of eminent domain by respondent. As we have ruled in
Cosculluela vs. Court of Appeals:[47]
In the present case, the irrigation project was completed and has been
in operation since 1976. The project is benefiting the farmers specifically and
the community in general. Obviously, the petitioners land cannot be returned
to him. However, it is high time that the petitioner be paid what was due him
eleven years ago. It is arbitrary and capricious for a government agency to
initiate expropriation proceedings, seize a persons property, allow the
judgment of the court to become final and executory and then refuse to pay
on the ground that there are no appropriations for the property earlier taken
and profitably used. We condemn in the strongest possible terms the
cavalier attitude of government officials who adopt such a despotic and
irresponsible stance.
Though the respondent has committed a misdeed to petitioner, we
cannot, however, grant the petitioners prayer for the return of the
expropriated Lot No. 1406-B. The Order of expropriation dated July 11,
1991, has long become final and executory. Petitioner cited Provincial
Government of Sorsogon v. Rosa E. Vda. De Villaroya[48] to support its
contention that it is entitled to a return of the lot where this Court ruled that
under ordinary circumstances, immediate return to the owners of the unpaid
property is the obvious remedy. However, the said statement was not the
ruling in that case. As in other cases where there was no prompt payment by
the government, this Court declared in Sorsogon that the Provincial
Government of Sorsogon is expected to immediately pay as directed. Should
any further delay be encountered, the trial court is directed to seize any
patrimonial property or cash savings of the province in the amount
necessary to implement this decision. However, this Court also stressed and
declared in that case that In cases where land is taken for public use, public
interest, however, must be considered.
In view of all the foregoing, justice and equity dictate that this case be
remanded to the trial court for hearing of the expropriation proceedings on
the determination of just compensation for Lot 1406-B and for its prompt
payment to the petitioner.
 WHEREFORE, the instant petition is hereby denied. The Regional Trial
Court of Cavite City is hereby ordered to proceed with the hearing of the
expropriation proceedings, docketed as Civil Case No. N-4029, regarding the
determination of just compensation for Lot 1406-B, covered and described in
TCT No. T-113498-Cavite, and to resolve the same with dispatch.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.