REPUBLIC VS.

CASTELVI [58 SCRA 336;

G.R. No. L-20620; 15 Aug 1974]
Saturday, January 31, 2009 Posted
by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: In 1947, the republic, through the

Armed Forces of the Philippines (AFP), entered
into a lease agreement with Castelvi on a yearto-year basis. When Castelvi gave notice to
terminate the lease in 1956, the AFP refused.
She then instituted an ejectment proceeding
against the AFP. In 1959, however, the
republic commenced the expropriation
proceedings for the land in question.

Issue: Whether or Not

the compensation should be determined as of
1947 or 1959.

Held: The Supreme Court ruled that the

taking should not be reckoned as of 1947,
and that just compensation should not be
determined on the basis of the value of the
property as of that year.

The requisites for taking are: 1) the

expropriator must enter a private property, 2)
the entry must be for more than a momentary
period, 3) it must be under warrant or color of
authorities, 4) the property must be devoted
for public use or otherwise informally
appropriated or injuriously affected, and 5) the
utilization of the property for public use must
be such a way as to oust the owner and

deprive him of beneficial enjoyment of the

property. Under Sec. 4 Rule 67 of the Rules of
Court, just compensation is to be determined
as of the date of the filing of the complaint.
The Supreme 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 justcompensation should be determined as
of the date of the filing of the complaint. In the
instant case, it is undisputed that the
Republic was placed in possession of the
Castelvi property, by authority of court, on
August 10, 1959. The taking of the Castelvi
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 domainwas filed. There
is no basis to the contention of the
Republic that a lease on a year-to-year basis
can give rise to permanent right to occupy
since by express provision a lease made for a
determinate time, as was the lease of Castelvi
land in the instant case, ceases upon the day
fixed, without need of a demand (Art. 1669,
New Civil Code). The Supreme Court, however,
did not apply Art. 1250 of the New Civil Code
for the adjustment of the peso rate in times of
extraordinary inflation or deflation because
in eminent domain casesthe obligation to pay
arises from law independent of contract.

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 ToledoGozun over two parcels of land described as
follows:

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

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

REPUBLIC OF THE PHILIPPINES, plaintiffappellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET
AL., defendants-appellees.
Office of the Solicitor General for plaintiffappellant.
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 defendantappellee, Carmen M. Vda. de Castellvi, judicial
administratrix of the estate of the late Alfonso

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 ToledoGozun, 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 ToledoGozun 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.
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.

decide as the expropriated price of the

property subject matter of the case."

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.

1. In finding the price of P10 per square meter

of the lands subject of the instant proceedings
as just compensation;

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 ToledoGozun, 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

Before this Court, the Republic contends that

the lower court erred:

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 nonpayment 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 aboveentitled 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 ToledoGozun, 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. 8Castellvi). 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 ToledoGozun 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 ToledoGozun 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 ToledoGozun 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. 30Considering 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; ...

by Jesus Toledo y Mendoza in favor of the Land

Tenure Administration.

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.

We find that the lower court acted correctly

when it denied the motions for a new trial.

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

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 ToledoGozun 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 Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14355

October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

vs.
CHINESE COMMUNITY OF MANILA, ET
AL., defendants-appellees.
City Fiscal Diaz for appellant.
Crossfield and O'Brien, Williams, Ferrier and
Sycip, Delgado and Delgado, Filemon Sotto,
and Ramon Salinas for appellees.

JOHNSON, J.:
The important question presented by this
appeal is: In expropriation proceedings by the
city of Manila, may the courts inquire into, and
hear proof upon, the necessity of the
expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of
Manila presented a petition in the Court of First
Instance of said city, praying that certain lands,
therein particularly described, be expropriated
for the purpose of constructing a public
improvement. The petitioner, in the second
paragraph of the petition, alleged:
That for the purpose of constructing a public
improvement, namely, the extension of Rizal
Avenue, Manila, it is necessary for the plaintiff
to acquire ownership in fee simple of certain
parcels of land situated in the district of
Binondo of said city within Block 83 of said
district, and within the jurisdiction of this court.
The defendant, the Comunidad de Chinos de
Manila [Chinese Community of Manila],
answering the petition of the plaintiff, alleged
that it was a corporation organized and existing
under and by virtue of the laws of the
Philippine Islands, having for its purpose the

benefit and general welfare of the Chinese

Community of the City of Manila; that it was
the owner of parcels one and two of the land
described in paragraph 2 of the complaint; that
it denied that it was either
necessary or expedient that the said parcels be
expropriated for street purposes; that existing
street and roads furnished ample means of
communication for the public in the district
covered by such proposed expropriation; that if
the construction of the street or road should be
considered a public necessity, other routes
were available, which would fully satisfy the
plaintiff's purposes, at much less expense and
without disturbing the resting places of the
dead; that it had a Torrens title for the lands in
question; that the lands in question had been
used by the defendant for cemetery purposes;
that a great number of Chinese were buried in
said cemetery; that if said expropriation be
carried into effect, it would disturb the resting
places of the dead, would require the
expenditure of a large sum of money in the
transfer or removal of the bodies to some other
place or site and in the purchase of such new
sites, would involve the destruction of existing
monuments and the erection of new
monuments in their stead, and would create
irreparable loss and injury to the defendant and
to all those persons owning and interested in
the graves and monuments which would have
to be destroyed; that the plaintiff was without
right or authority to expropriate said cemetery
or any part or portion thereof for street
purposes; and that the expropriation, in fact,
was not necessary as a public improvement.
The defendant Ildefonso Tambunting,
answering the petition, denied each and every
allegation of the complaint, and alleged that
said expropriation was not a public
improvement; that it was not necessary for the
plaintiff to acquire the parcels of land in
question; that a portion of the lands in question
was used as a cemetery in which were the
graves of his ancestors; that monuments and
tombstones of great value were found thereon;
that the land had become quasi-public
property of a benevolent association, dedicated
and used for the burial of the dead and that
many dead were buried there; that if the
plaintiff deemed it necessary to extend Rizal
Avenue, he had offered and still offers to grant

a right of way for the said extension over other

land, without cost to the plaintiff, in order that
the sepulchers, chapels and graves of his
ancestors may not be disturbed; that the land
so offered, free of charge, would answer every
public necessity on the part of the plaintiff.

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.

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.

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 forpublic use."

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;

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 butprivate, 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. ChandlerDunbar 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 timehonored 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 aparticular 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
Associationvs. 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

ISSUE: W/N the courts may inquire into and

petition praying that certain lands be

hear proof upon the necessity of the

expropriated for the purpose of constructing a

expropriation?

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.

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,

Petitioner therefore assails the decision of the

without question, within the power of the

lower court claiming that it (petitioner) has the

legislature. But whether or not the municipal

authority to expropriate any land it may desire;

corporation or entity is exercising the right in a

that the only function of the court in such

particular case under the conditions imposed

proceedings is to ascertain the value of the

by the general authority, is a question that the

land in question; that neither the court nor the

courts have the right to inquire into.

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.

asks the SupremeCourt to declare Comelec

Resolution No. 2772 unconstitutional and void
on the ground that it violates the prohibition
imposed by the Constitution upon the
government against the taking of private
property for public use without just
compensation. On behalf of
therespondent Comelec, the Solicitor General
claimed that the Resolution is a permissible
exercise of the power of supervision (police
power) of the Comelec over the information
operations of print media enterprises during
PHILIPPINE PRESS INSTITUTE VS.
COMELEC [244 SCRA 272; G.R. No.
119694; 22 May 1995]
Saturday, January 31, 2009 Posted
by Coffeeholic Writes
Labels: Case Digests, Political Law

the election period to safeguard and ensure a

fair, impartial and credible election.

Facts: Respondent Comelec promulgated

Resolution No. 2772 directing newspapers to
provide free Comelec space of not less than

Issue:

one-half page for the common use of political

parties and candidates. The Comelec space

Whether or not Comelec Resolution No. 2772 is

shall be allocated by the Commission, free

unconstitutional.

ofcharge, among all candidates to enable them

to make known their qualifications, their stand
on public Issue and their platforms of

Held: The Supreme Court declared the

government. The Comelec space shall also be

Resolution as unconstitutional. It held that to

used by the Commissionfor dissemination of

compel print media companies to donate

vital election information.

Comelec space amounts to taking of

private personal property without payment of

Petitioner Philippine Press Institute, Inc. (PPI), a

the just compensation required in expropriation

non-profit organization

cases. Moreover, the element of necessity for

of newspaper and magazine publishers,

the taking has not been established

RESOLUTION

by respondent Comelec, considering that the

newspapers were not unwilling to sell
advertising space. The taking of private

FELICIANO, J.:

property for public use is authorized by the

constitution, but not without payment of just
compensation. Also Resolution No. 2772 does
not constitute a valid exercise of the police
power of the state. In the case at bench, there
is no showing of existence of a national
emergency to take private property
of newspaper or magazine publishers.

The Philippine Press Institute, Inc. ("PPI") is

before this Court assailing the constitutional
validity of Resolution No. 2772 issued by
respondent Commission on Elections
("Comelec") and its corresponding Comelec
directive dated 22 March 1995, through a
Petition for Certiorari and Prohibition. Petitioner
PPI is a non-stock, non-profit organization of
newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated
Resolution No. 2772, which reads in part:
Sec. 2. Comelec Space. The
Commission shall procure free print space
of not less than one half (1/2) page in at least
one newspaper of general circulation in every
province or city for use as "Comelec
Space" from March 6, 1995 in the case of
candidates for senator and from March 21,
1995 until May 12, 1995. In the absence of said
newspaper, "Comelec Space" shall be obtained
from any magazine or periodical of said
province or city.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-119694 May 22, 1995

PHILIPPINE PRESS INSTITUTE, INC., for
and in behalf of 139 members,
represented by its President, Amado P.
Macasaet and its Executive Director Ermin
F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

Sec. 3. Uses of Comelec Space. "Comelec

Space" shall be allocated by the
Commission, free of charge, among all
candidates within the area in which the
newspaper, magazine or periodical is circulated
to enable the candidates to make known their
qualifications, their stand on public issues and
their platforms and programs of government.

"Comelec Space" shall also be used by the

Commission for dissemination of vital election
information.
Sec. 4. Allocation of Comelec Space. (a)
"Comelec Space" shall also be available to
all candidatesduring the periods stated in
Section 2 hereof. Its allocation shall be equal
and impartial among all candidates for the
same office. All candidates concerned shall be

furnished a copy of the allocation of "Comelec

Space" for their information, guidance and
compliance.
(b) Any candidate desiring to avail himself of
"Comelec Space" from newspapers or
publications based in the Metropolitan Manila
Area shall submit an application therefor, in
writing, to the Committee on Mass Media of the
Commission. Any candidate desiring to avail
himself of "Comelec Space" in newspapers or
publications based in the provinces shall
submit his application therefor, in writing, to
the Provincial Election Supervisor concerned.
Applications for availment of "Comelec Space"
maybe filed at any time from the date of
effectivity of this Resolution.
(c) The Committee on Mass Media and the
Provincial Election Supervisors shall allocate
available"Comelec Space" among the
candidates concerned by lottery of which said
candidates shall be notified in advance, in
writing, to be present personally or by
representative to witness the lottery at the
date, time and place specified in the notice.
Any party objecting to the result of the lottery
may appeal to the Commission.
(d) The candidates concerned shall be notified
by the Committee on Mass Media or the
Provincial Election Supervisor, as the case
maybe, sufficiently in advance and in writing of
the date of issue and the newspaper or
publication allocated to him, and the time
within which he must submit the written
material for publication in the "Comelec
Space".
Sec. 8. Undue Reference to Candidates/Political
Parties in Newspapers. No newspaper or
publication shall allow to be printed or
published in the news, opinion, features, or
other sections of the newspaper or publication
accounts or comments which manifestly favor
or oppose any candidate or political party by
unduly or repeatedly referring to or including
therein said candidate or political party.
However, unless the facts and circumstances
clearly indicate otherwise, the Commission will
respect the determination by the publisher
and/or editors of the newspapers or
publications that the accounts or views
published are significant, newsworthy and of
public interest. (Emphasis supplied)

Apparently in implementation of this

Resolution, Comelec through Commissioner
Regalado E. Maambong sent identical letters,
dated 22 March 1995, to various publishers of
newspapers like the Business World,
the Philippine Star, the Malaya and
the Philippine Times Journal, all members of
PPI. These letters read as follows:
This is to advise you that pursuant to
Resolution No. 2772 of the Commission on
Elections, you aredirected to provide free print
space of not less than one half (1/2) page for
use as "Comelec Space"or similar to the print
support which you have extended during the
May 11, 1992 synchronized elections which
was 2 full pages for each political party fielding
senatorial candidates, from March 6, 1995 to
May 6, 1995, to make known their
qualifications, their stand on public issues and
their platforms and programs of government.
We shall be informing the political parties and
candidates to submit directly to
you their pictures, biographical data, stand on
key public issues and platforms of
government either as raw data or in the form
of positives or camera-ready materials.
Please be reminded that the political
parties/candidates may be accommodated in
your publication any day upon receipt of their
materials until May 6, 1995 which is the last
day for campaigning.
We trust you to extend your full support and
cooperation in this regard. (Emphasis supplied)
In this Petition for Certiorari and Prohibition
with prayer for the issuance of a Temporary
Restraining Order, PPI asks us to declare
Comelec Resolution No. 2772 unconstitutional
and void on the ground that it violates the
prohibition imposed by the Constitution upon
the government, and any of its agencies,
against the taking of private property for public
use without just compensation. Petitioner also
contends that the 22 March 1995 letter
directives of Comelec requiring publishers to
give free "Comelec Space" and at the same
time process raw data to make it cameraready, constitute impositions of involuntary
servitude, contrary to the provisions of Section
18 (2), Article III of the 1987 Constitution.
Finally, PPI argues that Section 8 of Comelec
Resolution No. 2772 is violative of the

constitutionally guaranteed freedom of speech,

of the press and of expression. 1
On 20 April 1995, this Court issued a
Temporary Restraining Order enjoining
Comelec from enforcing and implementing
Section 2 of Resolution No. 2772, as well as the
Comelec directives addressed to various print
media enterprises all dated 22 March 1995.
The Court also required the respondent to file a
Comment on the Petition.
The Office of the Solicitor General filed its
Comment on behalf of respondent Comelec
alleging that Comelec Resolution No. 2772
does not impose upon the publishers any
obligation to provide free print space in the
newspapers as it does not provide any criminal
or administrative sanction for non-compliance
with that Resolution. According to the Solicitor
General, the questioned Resolution merely
established guidelines to be followed in
connection with the procurement of "Comelec
space," the procedure for and mode of
allocation of such space to candidates and the
conditions or requirements for the candidate's
utilization of the "Comelec space" procured. At
the same time, however, the Solicitor General
argues that even if the questioned Resolution
and its implementing letter directives are
viewed as mandatory, the same would
nevertheless be valid as an exercise of the
police power of the State. The Solicitor General
also maintains that Section 8 of Resolution No.
2772 is a permissible exercise of the power of
supervision or regulation of the Comelec over
the communication and information operations
of print media enterprises during the election
period to safeguard and ensure a fair, impartial
and credible election. 2
At the oral hearing of this case held on 28 April
1995, respondent Comelec through its
Chairman, Hon. Bernardo Pardo, in response to
inquiries from the Chief Justice and other
Members of the Court, stated that Resolution
No. 2772, particularly Section 2 thereof and the
22 March 1995 letters dispatched to various
members of petitioner PPI, were not intended
to compel those members to supply Comelec
with free print space. Chairman Pardo
represented to the Court that Resolution and
the related letter-directives were merely

designed to solicit from the publishers the

same free print space which many publishers
had voluntarily given to Comelec during the
election period relating to the 11 May 1992
elections. Indeed, the Chairman stated that the
Comelec would, that very afternoon, meet and
adopt an appropriate amending or clarifying
resolution, a certified true copy of which would
forthwith be filed with the Court.
On 5 May 1995, the Court received from the
Office of the Solicitor General a manifestation
which attached a copy of Comelec Resolution
No. 2772-A dated 4 May 1995. The operative
portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers
vested in it by the Constitution, the Omnibus
Election Code, Republic Acts No. 6646 and
7166 and other election laws, the Commission
on Elections RESOLVED to clarify Sections 2
and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not be
construed to mean as requiring publishers of
the different mass media print publications to
provide print space under pain of prosecution,
whether administrative, civil or criminal, there
being no sanction or penalty for violation of
said Section provided for either in said
Resolution or in Section 90 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus
Election Code, on the grant of "Comelec
space."
2. Section 8 of Res. No. 2772 shall not be
construed to mean as constituting prior
restraint on the part of publishers with respect
to the printing or publication of materials in the
news, opinion, features or other sections of
their respective publications or other accounts
or comments, it being clear from the last
sentence of said Section 8 that the Commission
shall, "unless the facts and circumstances
clearly indicate otherwise . . . respect the
determination by the publisher and/or editors
of the newspapers or publications that the
accounts or views published are significant,
newsworthy and of public interest."
This Resolution shall take effect upon approval.
(Emphasis in the original)

While, at this point, the Court could perhaps

simply dismiss the Petition for Certiorari and
Prohibition as having become moot and
academic, we consider it not inappropriate to
pass upon the first constitutional issue raised in
this case. Our hope is to put this issue to rest
and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model
of clarity in expression. Section 1 of Resolution
No. 2772-A did not try to redraft Section 2;
accordingly, Section 2 of Resolution No. 2772
persists in its original form. Thus, we must
point out that, as presently worded, and in
particular as interpreted and applied by the
Comelec itself in its 22 March 1995 letterdirectives to newspaper publishers, Section 2
of Resolution No. 2772 is clearly susceptible of
the reading that petitioner PPI has given it.
That Resolution No. 2772 does not, in express
terms, threaten publishers who would
disregard it or its implementing letters with
some criminal or other sanction, does not by
itself demonstrate that the Comelec's original
intention was simply to solicit or request
voluntary donations of print space from
publishers. A written communication
officially directing a print media company
to supply free print space, dispatched by a
government (here a constitutional) agency and
signed by a member of the Commission
presumably legally authorized to do so, is
bound to produce a coercive effect upon the
company so addressed. That the agency may
not be legally authorized to impose, or cause
the imposition of, criminal or other sanctions
for disregard of such directions, only
aggravates the constitutional difficulties
inhearing in the present situation. The
enactment or addition of such sanctions by the
legislative authority itself would be open to
serious constitutional objection.
To compel print media companies to
donate "Comelec-space" of the dimensions
specified in Section 2 of Resolution No. 2772
(not less than one-half page), amounts to
"taking" of private personal property for public
use or purposes. Section 2 failed to specify the
intended frequency of such compulsory
"donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May
1995? or everyday or once a week? or as often

as Comelec may direct during the same

period? The extent of the taking or deprivation
is not insubstantial; this is not a case of a de
minimis temporary limitation or restraint upon
the use of private property. The monetary
value of the compulsory "donation," measured
by the advertising rates ordinarily charged by
newspaper publishers whether in cities or in
non-urban areas, may be very substantial
indeed.
The taking of print space here sought to be
effected may first be appraised under the
rubric of expropriation of private personal
property for public use. The threshold
requisites for a lawful taking of private property
for public use need to be examined here: one is
the necessity for the taking; another is
the legal authority to effect the taking. The
element of necessity for the taking has not
been shown by respondent Comelec. It has not
been suggested that the members of PPI are
unwilling to sell print space at their normal
rates to Comelec for election purposes. Indeed,
the unwillingness or reluctance of Comelec to
buy print space lies at the heart of the
problem. 3Similarly, it has not been suggested,
let alone demonstrated, that Comelec has been
granted the power of eminent domain either by
the Constitution or by the legislative authority.
A reasonable relationship between that power
and the enforcement and administration of
election laws by Comelec must be shown; it is
not casually to be assumed.
That the taking is designed to subserve "public
use" is not contested by petitioner PPI. We note
only that, under Section 3 of Resolution No.
2772, the free "Comelec space" sought by the
respondent Commission would be used not
only for informing the public about the
identities, qualifications and programs of
government of candidates for elective office
but also for "dissemination of vital election
information" (including, presumably, circulars,
regulations, notices, directives, etc. issued by
Comelec). It seems to the Court a matter of
judicial notice that government offices and
agencies (including the Supreme Court) simply
purchase print space, in the ordinary course of
events, when their rules and regulations,
circulars, notices and so forth need officially to

be brought to the attention of the general

public.
The taking of private property for public use is,
of course, authorized by the Constitution, but
not without payment of "just compensation"
(Article III, Section 9). And apparently the
necessity of paying compensation for "Comelec
space" is precisely what is sought to be
avoided by respondent Commission, whether
Section 2 of Resolution No. 2772 is read as
petitioner PPI reads it, as an assertion of
authority to require newspaper publishers to
"donate" free print space for Comelec
purposes, or as an exhortation, or perhaps an
appeal, to publishers to donate free print
space, as Section 1 of Resolution No. 2772-A
attempts to suggest. There is nothing at all to
prevent newspaper and magazine publishers
from voluntarily giving free print space to
Comelec for the purposes contemplated in
Resolution No. 2772. Section 2 of Resolution
No. 2772 does not, however, provide a
constitutional basis for compelling publishers,
against their will, in the kind of factual context
here present, to provide free print space for
Comelec purposes. Section 2 does not
constitute a valid exercise of the power of
eminent domain.
We would note that the ruling here laid down
by the Court is entirely in line with the theory
of democratic representative government. The
economic costs of informing the general public
about the qualifications and programs of those
seeking elective office are most appropriately
distributed as widely as possible throughout
our society by the utilization of public funds,
especially funds raised by taxation, rather than
cast solely on one small sector of society, i.e.,
print media enterprises. The benefits which
flow from a heightened level of information on
and the awareness of the electoral process are
commonly thought to be community-wide; the
burdens should be allocated on the same basis.
As earlier noted, the Solicitor General also
contended that Section 2 of Resolution No.
2772, even if read as compelling publishers to
"donate" "Comelec space, " may be sustained
as a valid exercise of the police power of the
state. This argument was, however, made too
casually to require prolonged consideration on

our part. Firstly, there was no effort (and

apparently no inclination on the part of
Comelec) to show that the police power
essentially a power of legislation has been
constitutionally delegated to respondent
Commission. 4 Secondly, while private property
may indeed be validly taken in the legitimate
exercise of the police power of the state, there
was no attempt to show compliance in the
instant case with the requisites of a lawful
taking under the police power. 5
Section 2 of Resolution No. 2772 is a blunt and
heavy instrument that purports, without a
showing of existence of a national emergency
or other imperious public necessity,
indiscriminately and without regard to the
individual business condition of particular
newspapers or magazines located in differing
parts of the country, to take private property of
newspaper or magazine publishers. No attempt
was made to demonstrate that a real and
palpable or urgent necessity for the taking of
print space confronted the Comelec and that
Section 2 of Resolution No. 2772 was itself the
only reasonable and calibrated response to
such necessity available to the Comelec.
Section 2 does not constitute a valid exercise
of the police power of the State.
We turn to Section 8 of Resolution No. 2772,
which needs to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political
Parties in Newspapers. No newspaper or
publication shall allow to be printed or
published in the news, opinion, features, or
other sections of the newspaper or publication
accounts or comments which manifestly favor
or oppose any candidate or political party by
unduly or repeatedly referring to or including
therein said candidate or political party.
However, unless the facts and circumstances
clearly indicate otherwise, the Commission will
respect the determination by the publisher
and/or editors of the newspapers or
publications that the accounts or views
published are significant, newsworthy and of
public interest.
It is not easy to understand why Section 8 was
included at all in Resolution No. 2772. In any
case, Section 8 should be viewed in the context

of our decision in National Press Club v.

Commission on Elections. 6 There the Court
sustained the constitutionality of Section 11 (b)
of R.A. No. 6646, known as the Electoral
Reforms Law of 1987, which prohibits the sale
or donation of print space and airtime for
campaign or other political purposes, except to
the Comelec. In doing so, the Court carefully
distinguished (a) paid political
advertisements which are reached by the
prohibition of Section 11 (b), from (b) the
reporting of news, commentaries and
expressions of belief or opinion by reporters,
broadcasters, editors, commentators or
columnists which fall outside the scope of
Section 11 (b) and which are protected by the
constitutional guarantees of freedom of speech
and of the press:
Secondly, and more importantly, Section 11 (b)
is limited in its scope of application. Analysis
ofSection 11 (b) shows that it purports to apply
only to the purchase and sale, including
purchase and sale disguised as a donation, of
print space and air time for campaign or other
political purposes.Section 11 (b) does not
purport in any way to restrict the reporting by
newspapers or radio ortelevision stations of
news or news-worthy events relating to
candidates, their qualifications, political parties
and programs of government.
Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or
opinion by reporters or broadcaster or editors
or commentators or columnists in respect of
candidates, their qualifications, and programs
and so forth, so long at least as such
comments, opinions and beliefs are not in fact
advertisements for particular candidates
covertly paid for. In sum, Section 11 (b) is not
to be read as reaching any report or
commentary or other coverage that, in
responsible media, is not paid for by
candidates for political office. We read Section
11 (b) as designed to cover only paid political
advertisements of particular candidates.
The above limitation in scope of application of
Section 11 (b) that it does not restrict either
the reporting of or the expression of belief or
opinion or comment upon the qualifications
and programs and activities of any and all
candidates for office constitutes the critical

distinction which must be made between the

instant case and that of Sanidad v. Commission
on Elections. . . . 7 (Citations omitted; emphasis
supplied)
Section 8 of Resolution No. 2772 appears to
represent the effort of the Comelec to establish
a guideline for implementation of the abovequoted distinction and doctrine in National
Press Club an effort not blessed with evident
success. Section 2 of Resolution No. 2772-A
while possibly helpful, does not add
substantially to the utility of Section 8 of
Resolution No. 2772. The distinction between
paid political advertisements on the one hand
and news reports, commentaries and
expressions of belief or opinion by reporters,
broadcasters, editors, etc. on the other hand,
can realistically be given operative meaning
only in actual cases or controversies, on a
case-to-case basis, in terms of very specific
sets of facts.
At all events, the Court is bound to note that
PPI has failed to allege any specific affirmative
action on the part of Comelec designed to
enforce or implement Section 8. PPI has not
claimed that it or any of its members has
sustained actual or imminent injury by reason
of Comelec action under Section 8. Put a little
differently, the Court considers that the precise
constitutional issue here sought to be raised
whether or not Section 8 of Resolution No.
2772 constitutes a permissible exercise of the
Comelec's power under Article IX, Section 4 of
the Constitution to
supervise or regulate the enjoyment or
utilization of all franchise or permits for the
operation of media of communication or
information [for the purpose of ensuring]
equal opportunity, time and space, and the
right of reply, including reasonable, equal rates
therefore, for public information campaigns
and forums among candidates in connection
with the objective of holding free, orderly
honest, peaceful and credible elections
is not ripe for judicial review for lack of an
actual case or controversy involving, as the
very lis mota thereof, the constitutionality of
Section 8.

Summarizing our conclusions:

1. Section 2 of Resolution No. 2772, in its
present form and as interpreted by Comelec in
its 22 March 1995 letter directives, purports to
require print media enterprises to "donate" free
print space to Comelec. As such, Section 2
suffers from a fatal constitutional vice and
must be set aside and nullified.
2. To the extent it pertains to Section 8 of
Resolution No. 2772, the Petition
for Certiorari and Prohibition must be dismissed
for lack of an actual, justiciable case or
controversy.
WHEREFORE, for all the foregoing, the Petition
for Certiorari and Prohibition is GRANTED in
part and Section 2 of Resolution No. 2772 in its
present form and the related letter-directives
dated 22 March 1995 are hereby SET ASIDE as
null and void, and the Temporary Restraining
Order is hereby MADE PERMANENT. The
Petition is DISMISSED in part, to the extent it
relates to Section 8 of Resolution No. 2772. No
pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.

EPZA VS. DULAY [148 SCRA 305; G.R. No.

L-59603; 29 Apr 1987]
Saturday, January 31, 2009 Posted
by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: The four parcels of land which are the

subject of this case is where the Mactan Export
Processing Zone Authority in Cebu (EPZA) is to
be constructed. Private respondent San Antonio
Development Corporation (San Antonio, for
brevity), in which these lands are registered
under,

claimed

that

the

lands

were

expropriated to the government without them

reaching the

agreement as

thecompensation. Respondent Judge

to
Dulay

then issued an order for theappointment of the

commissioners

to

determine

the

justcompensation. It was later found out that

the payment of the government to San Antonio
would be P15 per square meter, which was
objected to by the latter contending that under
PD 1533, the basis of just compensation shall
be

fair

and

according

to

the fair

market

valuedeclared by the owner of the property

sought to be expropriated, or by the assessor,

whichever is lower. Such objection and the

party claims a violation of the guarantee inthe

subsequent Motion for Reconsideration were

Bill of Rights that the private party may not be

denied and hearing was set for the reception of

taken for public use without just compensation,

the commissioners report. EPZA then filed this

no

petition for certiorari and mandamus enjoining

mandate that its own determination shall

the respondent from further hearing the case.

prevail over the courts findings. Much less can

statute,

decree,

or executive

ordercan

the courts be precluded from looking into the

justness of the decreed compensation.
Issue: Whether
mandatory

or

Not

the

mode

exclusive

of

just compensation in

and

determining

PD

1533

is

unconstitutional.

Held: The Supreme

Court ruled

that the

mode of determination of just compensation in

PD

1533

The

method

is

unconstitutional.

of

ascertaining

just compensation constitutes

impermissible

encroachment to judicial prerogatives. It tends

Republic of the Philippines

SUPREME COURT
Manila

to render the courts inutile in a matter in which

EN BANC

under the Constitution is reserved to it for

financial determination. The valuation in the
decree may only serve as guiding principle or
one

of

the

factors

in

determining

just compensation, but it may not substitute

the courts own judgment as to what amount
should be awarded and how to arrive at such
amount.

The

determination

of

just compensation is a judicial function. The

G.R. No. L-59603

April 29, 1987

EXPORT PROCESSING ZONE

AUTHORITY, petitioner,
vs.
HON. CEFERINO E. DULAY, in his capacity
as the Presiding Judge, Court of First
Instance of Cebu, Branch XVI, Lapu-Lapu
City, and SAN ANTONIO DEVELOPMENT
CORPORATION, respondents.
Elena M. Cuevas for respondents.
GUTIERREZ, JR., J.:

executive department or the legislature may

make the initial determination but when a

The question raised in this petition is whether

or not Presidential Decrees Numbered 76, 464,

794 and 1533 have repealed and superseded

Sections 5 to 8 of Rule 67 of the Revised Rules
of Court, such that in determining the just
compensation of property in an expropriation
case, the only basis should be its market value
as declared by the owner or as determined by
the assessor, whichever is lower.
On January 15, 1979, the President of the
Philippines, issued Proclamation No. 1811,
reserving a certain parcel of land of the public
domain situated in the City of Lapu-Lapu,
Island of Mactan, Cebu and covering a total
area of 1,193,669 square meters, more or less,
for the establishment of an export processing
zone by petitioner Export Processing Zone
Authority (EPZA).
Not all the reserved area, however, was public
land. The proclamation included, among
others, four (4) parcels of land with an
aggregate area of 22,328 square meters owned
and registered in the name of the private
respondent. The petitioner, therefore, offered
to purchase the parcels of land from the
respondent in acccordance with the valuation
set forth in Section 92, Presidential Decree
(P.D.) No. 464, as amended. The parties failed
to reach an agreement regarding the sale of
the property.
The petitioner filed with the then Court of First
Instance of Cebu, Branch XVI, Lapu-Lapu City, a
complaint for expropriation with a prayer for
the issuance of a writ of possession against the
private respondent, to expropriate the
aforesaid parcels of land pursuant to P.D. No.
66, as amended, which empowers the
petitioner to acquire by condemnation
proceedings any property for the establishment
of export processing zones, in relation to
Proclamation No. 1811, for the purpose of
establishing the Mactan Export Processing
Zone.
On October 21, 1980, the respondent judge
issued a writ of possession authorizing the
petitioner to take immediate possession of the
premises. On December 23, 1980, the private
respondent flied its answer.
At the pre-trial conference on February 13,
1981, the respondent judge issued an order

stating that the parties have agreed that the

only issue to be resolved is the just
compensation for the properties and that the
pre-trial is thereby terminated and the hearing
on the merits is set on April 2, 1981.
On February 17, 1981, the respondent judge
issued the order of condemnation declaring the
petitioner as having the lawful right to take the
properties sought to be condemned, upon the
payment of just compensation to be
determined as of the filing of the complaint.
The respondent judge also issued a second
order, subject of this petition, appointing
certain persons as commissioners to ascertain
and report to the court the just compensation
for the properties sought to be expropriated.
On June 19, 1981, the three commissioners
submitted their consolidated report
recommending the amount of P15.00 per
square meter as the fair and reasonable value
of just compensation for the properties.
On July 29, 1981, the petitioner Med a Motion
for Reconsideration of the order of February 19,
1981 and Objection to Commissioner's Report
on the grounds that P.D. No. 1533 has
superseded Sections 5 to 8 of Rule 67 of the
Rules of Court on the ascertainment of just
compensation through commissioners; and
that the compensation must not exceed the
maximum amount set by P.D. No. 1533.
On November 14, 1981, the trial court denied
the petitioner's motion for reconsideration and
gave the latter ten (10) days within which to
file its objection to the Commissioner's Report.
On February 9, 1982, the petitioner flied this
present petition for certiorari and mandamus
with preliminary restraining order, enjoining
the trial court from enforcing the order dated
February 17, 1981 and from further proceeding
with the hearing of the expropriation case.
The only issue raised in this petition is whether
or not Sections 5 to 8, Rule 67 of the Revised
Rules of Court had been repealed or deemed
amended by P.D. No. 1533 insofar as the
appointment of commissioners to determine
the just compensation is concerned. Stated in

another way, is the exclusive and mandatory

mode of determining just compensation in P.D.
No. 1533 valid and constitutional?
The petitioner maintains that the respondent
judge acted in excess of his jurisdiction and
with grave abuse of discretion in denying the
petitioner's motion for reconsideration and in
setting the commissioner's report for hearing
because under P.D. No. 1533, which is the
applicable law herein, the basis of just
compensation shall be the fair and current
market value declared by the owner of the
property sought to be expropriated or such
market value as determined by the assessor,
whichever is lower. Therefore, there is no more
need to appoint commissioners as prescribed
by Rule 67 of the Revised Rules of Court and
for said commissioners to consider other highly
variable factors in order to determine just
compensation. The petitioner further maintains
that P.D. No. 1533 has vested on the assessors
and the property owners themselves the power
or duty to fix the market value of the properties
and that said property owners are given the full
opportunity to be heard before the Local Board
of Assessment Appeals and the Central Board
of Assessment Appeals. Thus, the vesting on
the assessor or the property owner of the right
to determine the just compensation in
expropriation proceedings, with appropriate
procedure for appeal to higher administrative
boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464,
794 and 1533, this Court has interpreted the
eminent domain provisions of the Constitution
and established the meaning, under the
fundametal law, of just compensation and who
has the power to determine it. Thus, in the
following cases, wherein the filing of the
expropriation proceedings were all commenced
prior to the promulgation of the
aforementioned decrees, we laid down the
doctrine onjust compensation:
Municipality of Daet v. Court of Appeals (93
SCRA 503, 516),
"And in the case of J.M. Tuason & Co., Inc. v.
Land Tenure Administration, 31 SCRA 413, the
Court, speaking thru now Chief Justice
Fernando, reiterated the 'well-settled (rule) that

just compensation means the equivalent for

the value of the property at the time of its
taking. Anything beyond that is more and
anything short of that is less, than just
compensation. It means a fair and full
equivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain
would accrue to the expropriating entity."
Garcia v. Court ofappeals (102 SCRA 597, 608),
"Hence, in estimating the market value, all the
capabilities of the property and all the uses to
which it may be applied or for which it is
adapted are to be considered and not merely
the condition it is in the time and the use to
which it is then applied by the owner. All the
facts as to the condition of the property and its
surroundings, its improvements and
capabilities may be shown and considered in
estimating its value."
Republic v. Santos (141 SCRA 30, 35-36),
"According to section 8 of Rule 67, the court is
not bound by the commissioners' report. It may
make such order or render such judgment as
shall secure to the plaintiff the property
essential to the exercise of his right of
condemnation, and to the defendant just
compensation for the property expropriated.
This Court may substitute its own estimate of
the value as gathered from the record (Manila
Railroad Company v. Velasquez, 32 Phil. 286)."
However, the promulgation of the
aforementioned decrees practically set aside
the above and many other precedents
hammered out in the course of evidence-laden,
well argued, fully heard, studiously deliberated,
and judiciously considered court proceedings.
The decrees categorically and peremptorily
limited the definition of just compensation
thus:
P.D. No. 76:
"For purposes of just compensation in cases of
private property acquired by the government
for public use, the basis shall be the current
and fair market value declared by the owner or
administrator, or such market value as

determined by the Assessor, whichever is

lower."
P.D. No. 464:
"Section 92. Basis for payment of just
compensation in expropriation proceedings.
In determining just compensation which private
property is acquired by the government for
public use, the basis shall be the market value
declared by the owner or administrator or
anyone having legal interest in the property, or
such market value as determined by the
assessor, whichever is lower."
P.D. No. 794:
"Section 92. Basis for payment of just
compensation in expropriation proceedings.
In determining just compensation when private
property is acquired by the government for
public use, the same shall not exceed the
market value declared by the owner or
administrator or anyone having legal interest in
the property, or such market value as
determined by the assessor, whichever is
lower."

P.D. No. 1533:

"Section 1. In determining just compensation
for private property acquired through eminent
domain proceedings, the compensation to be
paid shall not exceed the value declared by the
owner or administrator or anyone having legal
interest in the property or determined by the
assessor, pursuant to the Real Property Tax
Code, whichever value is lower, prior to the
recommendation or decision of the appropriate
Government office to acquire the property."
We are constrained to declare the provisions of
the Decrees on just compensation
unconstitutional and void and accordingly
dismiss the instant petition for lack of merit.
The method of ascertaining just compensation
under the aforecited decrees constitutes

impermissible encroachment on judicial

prerogatives. It tends to render this Court
inutile in a matter which under the Constitution
is reserved to it for final determination.
Thus, although in an expropriation proceeding
the court technically would still have the power
to determine the just compensation for the
property, following the applicable decrees, its
task would be relegated to simply stating the
lower value of the property as declared either
by the owner or the assessor. As a necessary
consequence, it would be useless for the court
to appoint commissioners under Rule 67 of the
Rules of Court. Moreover, the need to satisfy
the due process clause in the taking of private
property is seemingly fulfilled since it cannot
be said that a judicial proceeding was not had
before the actual taking. However, the strict
application of the decrees during the
proceedings would be nothing short of a mere
formality or charade as the court has only to
choose between the valuation of the owner and
that of the assessor, and its choice is always
limited to the lower of the two. The court
cannot exercise its discretion or independence
in determining what is just or fair. Even a grade
school pupil could substitute for the judge
insofar as the determination of constitutional
just compensation is concerned.
In the case of National Housing Authority v.
Reyes (123 SCRA 245), this Court upheld P.D.
No. 464, as further amended by P.D. Nos. 794,
1224 and 1259. In this case, the petitioner
National Housing Authority contended that the
owner's declaration at P1,400.00 which
happened to be lower than the assessor's
assessment, is the just compensation for the
respondent's property under section 92 of P.D.
No. 464. On the other hand, the private
respondent stressed that while there may be
basis for the allegation that the respondent
judge did not follow the decree, the matter is
still subject to his final disposition, he having
been vested with the original and competent
authority to exercise his judicial discretion in
the light of the constitutional clauses on due
process and equal protection.
To these opposing arguments, this Court ruled
ihat under the conceded facts, there should be
a recognition that the law as it stands must be

applied; that the decree having spoken so

clearly and unequivocably calls for obedience;
and that on a matter where the applicable law
speaks in no uncertain language, the Court has
no choice except to yield to its command. We
further stated that "the courts should recognize
that the rule introduced by P.D. No. 76 and
reiterated in subsequent decrees does not
upset the established concepts of justice or the
constitutional provision on just compensation
for, precisely, the owner is allowed to make his
own valuation of his property."
While the Court yielded to executive
prerogative exercised in the form of absolute
law-making power, its members, nonetheless,
remained uncomfortable with the implications
of the decision and the abuse and unfairness
which might follow in its wake. For one thing,
the President himself did not seem assured or
confident with his own enactment. It was not
enough to lay down the law on determination
of just compensation in P.D. 76. It had to be
repeated and reiterated in P.D. 464, P.D. 794,
and P.D. 1533. The provision is also found in
P.D. 1224, P.D. 1259 and P.D. 1313. Inspite of
its effectivity as general law and the wide
publicity given to it, the questioned provision
or an even stricter version had to be embodied
in cases of specific expropriations by decree as
in P.D. 1669 expropriating the Tambunting
Estate and P.D. 1670 expropriating the Sunog
Apog area in Tondo, Manila.
In the present petition, we are once again
confronted with the same question of whether
the courts under P.D. 1533, which contains the
same provision on just compensation as its
predecessor decrees, still have the power and
authority to determine just compensation,
independent of what is stated by the decree
and to this effect, to appoint commissioners for
such purpose.
This time, we answer in the affirmative.
In overruling the petitioner's motion for
reconsideration and objection to the
commissioner's report, the trial court said:
"Another consideration why the Court is
empowered to appoint commissioners to
assess the just compensation of these

properties under eminent domain proceedings,

is the well-entrenched ruling that 'the owner of
property expropriated is entitled to recover
from expropriating authority the fair and full
value of the lot, as of the time when possession
thereof was actually taken by the province,
plus consequential damages including
attorney's fees from which the consequential
benefits, if any should be deducted, with
interest at the legal rate, on the aggregate sum
due to the owner from and after the date of
actual taking.' (Capitol Subdivision, Inc. v.
Province of Negros Occidental, 7 SCRA 60). In
fine, the decree only establishes a uniform
basis for determining just compensation which
the Court may consider as one of the factors in
arriving at 'just compensation,' as envisage in
the Constitution. In the words of Justice
Barredo, "Respondent court's invocation of
General Order No. 3 of September 21, 1972 is
nothing short of an unwarranted abdication of
judicial authority, which no judge duly imbued
with the implications of the paramount
principle of independence of the judiciary
should ever think of doing." (Lina v. Purisima,
82 SCRA 344, 351; Cf. Prov. of Pangasinan v.
CFI Judge of Pangasinan, Br. VIII, 80 SCRA 117)
Indeed, where this Court simply follows PD
1533, thereby limiting the determination of just
compensation on the value declared by the
owner or administrator or as determined by the
Assessor, whichever is lower, it may result in
the deprivation of the landowner's right of due
process to enable it to prove its claim to just
compensation, as mandated by the
Constitution. (Uy v. Genato, 57 SCRA 123). The
tax declaration under the Real Property Tax
Code is, undoubtedly, for purposes of
taxation."
We are convinced and so rule that the trial
court correctly stated that the valuation in the
decree may only serve as a guiding principle or
one of the factors in determining just
compensation but it may not substitute the
court's own judgment as to what amount
should be awarded and how to arrive at such
amount. A return to the earlier well-established
doctrine, to our mind, is more in keeping with
the principle that the judiciary should live up to
its mission "by vitalizing and not denigrating
constitutional rights." (See Salonga v. Cruz
Pao, 134 SCRA 438, 462; citing Mercado v.

Court of First Instance of Rizal, 116 SCRA 93.)

The doctrine we enunciated in National
Housing Authority v. Reyes, supra, therefore,
must necessarily be abandoned if we are to
uphold this Court's role as the guardian of the
fundamental rights guaranteed by the due
process and equal protection clauses and as
the final arbiter over transgressions committed
against constitutional rights.
The basic unfairness of the decrees is readily
apparent.
Just compensation means the value of the
property at the time of the taking. It means
a fair and full equivalent for the loss sustained.
All the facts as to the condition of the property
and its surroundings, its improvements and
capabilities, should be considered.
In this particular case, the tax declarations
presented by the petitioner as basis for just
compensation were made by the Lapu-Lapu
municipal, later city assessor long before
martial law, when land was not only much
cheaper but when assessed values of
properties were stated in figures constituting
only a fraction of their true market value. The
private respondent was not even the owner of
the properties at the time. It purchased the lots
for development purposes. To peg the value of
the lots on the basis of documents which are
out of date and at prices below the acquisition
cost of present owners would be arbitrary and
confiscatory.
Various factors can come into play in the
valuation of specific properties singled out for
expropriation. The values given by provincial
assessors are usually uniform for very wide
areas covering several barrios or even an
entire town with the exception of the
poblacion. Individual differences are never
taken into account. The value of land is based
on such generalities as its possible cultivation
for rice, corn, coconuts, or other crops. Very
often land described as "cogonal" has been
cultivated for generations. Buildings are
described in terms of only two or three classes
of building materials and estimates of areas
are more often inaccurate than correct. Tax
values can serve as guides but cannot be
absolute substitutes for just compensation.

To say that the owners are estopped to

question the valuations made by assessors
since they had the opportunity to protest is
illusory. The overwhelming mass of land
owners accept unquestioningly what is found in
the tax declarations prepared by local
assessors or municipal clerks for them. They do
not even look at, much less analyze, the
statements. The Idea of expropriation simply
never occurs until a demand is made or a case
filed by an agency authorized to do so.
It is violative of due process to deny to the
owner the opportunity to prove that the
valuation in the tax documents is unfair or
wrong. And it is repulsive to basic concepts of
justice and fairness to allow the haphazard
work of a minor bureaucrat or clerk to
absolutely prevail over the judgment of a court
promulgated only after expert commissioners
have actually viewed the property, after
evidence and arguments pro and con have
been presented, and after all factors and
considerations essential to a fair and just
determination have been judiciously evaluated.
As was held in the case of Gideon v.
Wainwright (93 ALR 2d,733,742):
"In the light of these and many other prior
decisions of this Court, it is not surprising that
the Betts Court, when faced with the
contention that 'one charged with crime, who is
unable to obtain counsel must be furnished
counsel by the State,' conceded that
'[E]xpressions in the opinions of this court lend
color to the argument. . .' 316 U.S., at 462,
463, 86 L ed. 1602, 62 S Ct. 1252. The fact is
that in deciding as it did-that "appointment of
counsel is not a fundamental right, essential to
a fair trial" the Court in Betts v. Brady made
an ubrupt brake with its own well-considered
precedents. In returning to these old
precedents, sounder we believe than the new,
we but restore constitutional principles
established to achieve a fair system of justice. .
."
We return to older and more sound precedents.
This Court has the duty to formulate guiding
and controlling constitutional principles,
precepts, doctrines, or rules. (See Salonga v.
Cruz Pano, supra).

The determination of "just compensation" in

eminent domain cases is a judicial function.
The executive department or the legislature
may make the initial determinations but when
a party claims a violation of the guarantee in
the Bill of Rights that private property may not
be taken for public use without just
compensation, no statute, decree, or executive
order can mandate that its own determination
shall prevail over the court's findings. Much
less can the courts be precluded from looking
into the "just-ness" of the decreed
compensation.
We, therefore, hold that P.D. No. 1533, which
eliminates the court's discretion to appoint
commissioners pursuant to Rule 67 of the Rules
of Court, is unconstitutional and void. To hold
otherwise would be to undermine the very
purpose why this Court exists in the first place.
WHEREFORE, IN VIEW OF THE FOREGOING, the
petition is hereby DISMISSED. The temporary
restraining order issued on February 16, 1982
is LIFTED and SET ASIDE.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz,
Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ.,concur.
Teehankee, C.J., in the result.
Yap, J., on leave.
Petition dismissed. Order lifted and set aside.

Monday, March 5, 2012

United States v. Causby, 328 U.S. 256 (1946)
Posted by Alchemy Business Center and
Marketing Consultancy at 12:16 AM Labels: 328
U.S. 256 (1946), Political Law, United States v.
Causby
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.

(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.
chanroblesvirtualawlibrary
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. 261262, 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.

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) 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. 267268.

(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. chanroblesvirtualawlibrary
U.S. SUPREME COURT
UNITED STATES
v.
CAUSBY et ux.
No. 630
Argued May 1, 1946
Decided May 27, 1946

COUNSEL:
Mr. Walter J. Cummings, Jr., of Washington,
D.C., for petitioner.
Mr. William E. Comer, of Greensboro, N.C., for
respondent.

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 becuase 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 [FN 1] approved by the Civil
Aeronautics Authority [FN 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. [FN 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 months after the end of the
national emergency, whichever is the earlier.
[FN 1] A 30 to 1 glide angle means one foot of
elevation or descent for every 30 feet of
horizontal distance.
[FN 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, 7 Cir., 140 F.2d 482.
[FN 3] The house is approximately 16 feet high,
the barn 20 feet, and the tallest tree 65 feet.
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 per cent of the time in taking off
and about seven per cent 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.
I.
The United States relies on the Air Commerce
Act of 1926, 44 Stat. 568, 49 U.S.C. 171 et
seq., 49 U.S.C.A. 171 et seq., as amended by
the Civil Aeronautics Act of 1938, 52 Stat. 973,
49 U.S.C. 401 et seq., 49 U. S.C.A. 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), 49 U.S.C.A. 176(a). They grant any
citizen of the United States 'a public right of
freedom of transit in air commerce [FN
4] through the navigable air space of the
United States.' 49 U.S.C. 403, 49 U.S.C.A. 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, 49 U.S.C.A. 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.
[FN 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), 49 U.S. C.A.
401(3).

It is ancient doctrine that at common law

ownership of the land extended to the
periphery of the universe -- Cujus est solum
ejus est usque ad coelum. [FN 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.
[FN 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.
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, 63
S.Ct. 276, 147 A.L. R. 55. 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, 275, 63 S.Ct. 1047,
1053, 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. [FN
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.
[FN 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, 23 S.Ct. 349; United States v. Welch, 217
U.S. 333, 30 S.Ct. 527, 28 L.R.A., N.S., 385, 19
Ann.Cas. 680.
We agree that in those circumstances there
would be a taking. Though it would be only an
easement of flight 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, 34 S.Ct. 654, L.R.A.1915A, 887. 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. [FN 7] That was the
philosophy of Portsmouth Harbor Land & Hotel
Co. v. United States, 260 U.S. 327, 43 S.Ct.
135. 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.' [FN
8] 260 U.S. at page 330, 43 S.Ct. at page 137.
And see Delta Air Corp. v. Kersey, 193 Ga. 862,
20 S.E.2d 245, 140 A.L.R. 1352. Cf.United
States v. 357.25 Acres of Land, D.C., 55 F.Supp.
461.
[FN 7] It was stated in United States v. General
Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357,
359, 156 A.L.R. 390, '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, 69 A. L.R. 300; Burnham v. Beverly
Airways, Inc., 311 Mass. 628, 42 N.E.2d 575.
[FN 8] On remand the allegations in the
petition were found not to be supported by the
facts. 64 Ct.Cl. 572.
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, 49 U.S.C.A. 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 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. [FN
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. SeeHinman v.
Pacific Air Transport, 9 Cir., 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 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. [FN 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. [FN
11]
[FN 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, 61 Am.St.Rep. 298.
See Ball, The Vertical Extent of Ownership in
Land, 76 U.Pa.L.Rev. 631, 658-671.
[FN 10] It was held in Butler v. Frontier
Telephone Co., 186 N.Y. 486, 79 N.E. 716, 11
L.R.A.,N.S., 920, 116 Am.St.Rep. 563, 9
Ann.Cas. 858, 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 pages 491, 492 of 186 N.Y.,
page 718 of 79 N.E.: '... 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.'
[FN 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.
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. As stated in United States v. Cress,
243 U.S. 316, 328, 37 S.Ct. 380, 385, '... 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,
319 U.S. at page 279, 63 S.Ct. at page 1054,
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 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), 28 U.S.C.A . 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, 67,
5 S.Ct. 717, 721; Hurley v. Kincaid, 285 U.S. 95,
104, 52 S.Ct. 267, 269; Yearsley v. W. A. Ross
Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413,
415. 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, 37 S.Ct. 385,
386, 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, 205, 206 S., 57 S.Ct. 159, 161,

162; United States v. Seminole Nation, 299 U.S.

417, 422, 57 S.Ct. 283, 287. Findings of fact on
every 'material issue' are a statutory
requirement. 53 Stat. 752, 28 U.S.C. 288, 28
U.S.C.A. 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.' (60 F. Supp. 758.) 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, 299 U.S. at page 206, 57 S.Ct. at page
162.
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 opin on.
REVERSED.
Mr. Justice JACKSON took no part in the
consideration or decision of this case.