Accession Natural

G.R. No. L-17645 October 30, 1962

JULIANA ZAPATA, applicant-appellee, vs.DIRECTOR OF LANDS, opponent-appellant.

Abel de Ocera for applicant-appellee.Office of the Solicitor General for opponent-appellant.

PADILLA, J.:

It appears that Juliana Zapata owns two parcels of land situated in the municipality of Santo Tomas, province of Pampanga, adjoining a non-navigable and non-floatable river called the Candalaga Creek. The two parcels are designated as Lot No. 25 and the northern part of Lot No. 16 of the Cadastral Survey of San Fernando, Pampanga.1 The first lot contains a superficial area of 6,592 square meters and is registered in her name, as show by transfer certificate of title No. 12907 issued by the Register of Deeds in and for the province of Pampanga (Exhibit A). Her ownership or title to a part of Lot No. 16 was confirmed by a decree entered on 21 November 1955 by the Court of First Instance of Pampanga ordering that the "remaining portion of Lot No. 16 with an area of 474 square meters" be registered "in the name of Juliana Zapata" [(Exhibit A-1]; Cad. case No. 1, G.L. R.O. Cad. Record No. 137).

In 1915, when the cadastral survey of San Fernando was begun, the width of the Candalaga Creek adjoining the two parcels of land owned by Juliana Zapata was about 90 or to 100 meters. At present, the width is 15 meters because soil had been accumulated by the water current of the river on the banks of Lot No. 25 and of that part of Lot No. 16 owned by Juliana Zapata. The accreted land is delimited in plan Psu-140515 and designated as Lot 1, 2 and 3, the first containing an area of 6,260 square meters, the second, 449 and the third, 2,238 (Exhibit B) and described in the technical descriptions (Exhibit C).

In a verified petition filed on 16 June 1956 in the Court of First Instance of Pampanga, Juliana Zapata claims that the aforesaid three lots belong to her by accretion, was provided for in article 457 of the Civil Code, and prays that the same be registered in her name under the Land Registration Act (Land Reg. Case No. N-273, L. R. C. rec. No. 1167). On 19 October 1956 on her motion the court entered an order of general default against all persons except the Director of Lands. On 24 October 1956 the Director of Lands objected to the petition and prayed that the registration of the three lots in the name of Jualiana Zapata be denied and that they be declared to form part of the public domain.

After trial, on 26 December 1956 the court rendered judgment, as follows:

WHEREFORE, the Court, overruling the opposition of the Director of Lands, and confirming the order of general default herein entered, and the applicant's title to the aforesaid Lots Nos. 1, 2 and 3, referred to in plan Psu-140515, aforecited, hereby

orders that the same be registered in the name of Juliana Zapata, the herein applicant . . . . Once this decision becomes final, let the corresponding decree issue.

The Court of Appeals certified to this Court the appeal taken by the Director of Lands because only questions of law are involved.

The appellant contends that article 457 of the Civil Code providing that —

To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters,

cannot apply and does not support the appellee's claim that the accretion or deposit of alluvial soil, which is delimited in plan Psu-140515 and designated as Lots 1, 2 and 3, belongs to her as riparian owner, because such accretion it "was not due to the natural effect of the current but was artificially induced on account of the erection of the fish traps on the creek." The contention cannot be sustained. The appellant does not dispute that the accreted land delimited in plan Psu-140515 and designated as Lots 1, 2 and 3 adjoining Lot No. 25 and that part of Lot No. 16. both owned by the appellee, had been formed gradually due to the effect of the water current of the Candalaga Creek, but claims that the accretion was artificially brought about by the setting up of fish traps, such as salag net, bunuan (Bamboo trap), sabat (cutting of channels) and fencing that the fishermen had built in the stream. True, those fish traps might have slowed down the current of the Candalaga Creek and might have brought about or caused the accretion, but as there is no evidence to show that the setting up or erection of the fish trap was expressly intended or designed to cause or bring about the accretion, the appellee may still invoke the benefit of the provisions of Article 457 of the Civil Code to supper her claim of title thereto. Moreover, the fishermen who since 1894 used to set up fish traps in the creek (P. 7 t.s.n.), later on secured permit from the Government that auctioned off the right or license to set up fish traps in the creek (p. 6, t.s.n.), and the setting up of such fish traps stopped or was discontinued even before 1926 (p. 7 t.s.n.), all go to show that the alluvial accretion was no entirely due to the setting up of such fish traps.

The decree appealed from is affirmed, without pronouncement as to costs.

Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Paredes, Dizon, Regala and Makalintal, JJ., concur.Reyes, J.B.L. and Barrera, JJ., took no part.

G.R. No. L-4012 March 25, 1908

MAXIMO CORTES Y PROSPERO, petitioner-appellant, vs.THE CITY OF MANILA, respondent-appellee.

J.R. Serra for appellant.M. Reyes for appellee.

TORRES, J.:

On the 26th of September, 1906, Maximo Cortes filed a written application for the registration of a parcel of land owned by him, free of all incumbrances, situated in Calle Aguilar, corner of Calle Cecilia in the district of Binondo, this city, together with the buildings erected thereon, which land has an area of 1,172.21 square meters, its boundaries being stated in the application. The land was acquired by the applicant by purchase from Higinio Francisco y Prospero, according to a deed of sale dated July 3, 1894, recorded in the registry of property, no other person having any title to or interest therein, and the property was assessed, for the purpose of taxation of the last fiscal year, at $1,444, United States currency. The buildings erected thereon were paid for by the applicant with his own money, and the application is accompanied by the deed of sale, plan, and technical description of the land.

The examiner of titles reported, in due course, that the said building lot was attached by reason of certain proceedings instituted against the applicant for reason and rebellion, yet, inasmuch as the land was acquired by him more than ten years previously, he could be considered the real owner thereof by prescription; but that, in order to obtain title, it was necessary for him to show that said attachment had been discharged or canceled, for which reason he considered the title of the applicant to be defective and that it could not be registered.

Against the claim of the applicant the attorney for the city of Manila objected and reproduced the verbal opposition offered in the case, alleging that both the plan and the technical description exhibited contained errors; that there was an excess in the measurement which affected the interests of the city, and that, should the application be granted, an area of 33.40 square meters of the Meisic Creek would become the property of Maximo Cortes, when, as a matter of fact, the said creek was one of public use and belonged to the city of manila. For these reasons he asked that the registration applied for be denied in so far as it affected the Meisic Creek, with costs against the applicant.

Upon an examination of the evidence adduced, the judge rendered his decision on the 11th of March, sustaining the opposition of the city of Manila, and ordering that the said land, including its walls, be adjudicated and registered in favor of the applicant upon presentation of an amended description, showing the measurements of the property, including its walls but excluding therefrom the rest of the land shown in Exhibit A.

The applicant asked that the case be reopened on account of his having discovered very important proof; to this end he filed an affidavit stating that he had learned the whereabouts of the original owner of the land, who was better informed with respect to its conditions and location; but, as said motion was overruled, he excepted to the judgment and also moved for a new trial on the ground that the decision of the court was contrary to law and to the weight of the evidence. This motion was likewise denied and exception taken.

The dominion of the applicant, Maximo Cortes, over the land or building lot acquired by him from Higinio Francisco y Prospero, according to the public deed executed before a notary on the 3rd of July, 1894, registered in the registry of property, is unquestionable and has been fully proven; and, in view of the validity of his title, the city attorney had to limit his opposition to the registration simply to its effect upon the Meisic Creek. The court, upon previous declaration of general default, then ordered the adjudication and registration of the title of the applicant, Cortes, to said building lot upon submitting an amended description of the land.

It having been satisfactorily shown that the portion of land included in the technical description presented by the applicant, situated between the lot to which said instrument refers and the bed of the Meisic Creek, has been gradually formed by alluvion, as the result of the current in the said stream, it can not be denied that said portion of land with an area of 33.40 square meters, belongs by right accretion to the owner of the land referred to in the instrument of the 3rd of July, 1894, exhibited by the applicant.

The Law of Waters, promulgated by royal decree of the 3d of August, 1866, and extended to these Islands by a royal decree dated April 8, 1873, provides in article 84 that —

The accretion resulting from the gradual deposit by or sedimentation from the waters belongs to the owners of land bordering on streams, torrents, lakes, and rivers.

Article 366 of the Civil Code provides that —

The accretions which banks of rivers may gradually received from the effects of the currents belong to the owners of the estates bordering thereon.

There is no evidence whatever to prove that the addition to the said property was made artificially by the owner; therefore, the facts alleged and proven in the proceedings must stand. The increase or accretion which in a latent, incessant, and spontaneous manner is received by the land from the effects of the current depositing, in the course of time, sediment and alluvial matter along the shore, is undeniably the work of nature and lawfully belongs to the owner of the property; and from the fact that all or almost the whole area of said increased portion is soft and unsettled, one is naturally convinced that it was formed by alluvion, and that for such reason it appertains to the owner of the land bordering thereon by virtue of the right of accretion recognized by the law.

The reason therefore is quite evident because, if lands bordering on streams are exposed to floods and other damage due to destructive force of the waters, and if by virtue of law they are subject to incumbrances and various kinds of easements, it is only just that such risks or dangers as may prejudice the owners thereof should in some way be compensated by the right of accretion.

And, although the acts of possession exercised over the bordering land are always understood legally to cover that portion added to the property by accretion, in this case shrubs have been planted there, which furnish additional proof that Maximo Cortes has exercised rights of ownership and possession over the whole area of the property the registration of which he requests.

For the reasons above set forth it is our opinion that the judgment appealed from should be reversed, as we do hereby reverse the same, and that the court below should direct that the land to which the appellant refers be recorded in the registry of property in accordance with the law, including that portion of the same added by accretion up to the water line of the Meisic River, without any special ruling as to costs. So ordered.

Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.

G.R. No. L-19570 April 27, 1967

JOSE V. HILARIO, JR., plaintiff-appellant, vs.THE CITY OF MANILA, defendant-appellee, DIRECTOR OF PUBLIC WORKS, CITY ENGINEER OF MANILA, FERNANDO BUSUEGO and EUGENIO SESE, defendants-appellants, MAXIMO CALALANG, intervenor; DIRECTOR OF MINES, intervenor.

Maximo Calalang for plaintiff and appellant.Gregorio Ejercito and Leandro L. Arguelles for defendant-appellee City of Manila.Office of the Solicitor General for other defendants and appellants.

BENGZON, J.P., J.:

Dr. Jose Hilario was the registered owner of a large tract of land — around 49 hectares in area — located at Barrio Guinayang, in San Mateo, Rizal.1 Upon his death, this property was inherited by his son, herein plaintiff-appellant Jose Hilario, Jr., to whom a new certificate of title2 was issued.

During the lifetime of plaintiff's father, the Hilario estate was bounded on the western side by the San Mateo River.3 To prevent its entry into the land, a bamboo and lumber post dike or ditch was constructed on the northwestern side. This was further fortified by a stonewall built on the northern side. For years, these safeguards served their purpose. However, in 1937, a great and extraordinary flood occurred which inundated the entire place including the neighboring barrios and municipalities. The river destroyed the dike on the northwest, left its original bed and meandered into the Hilario estate, segregating from the rest thereof a lenticular place of land. The disputed area is on the eastern side of this lenticular strip which now stands between the old riverbed site and the new course.4

In 1945 the U.S. Army opened a sand and gravel plant within the premises5 and started scraping, excavating and extracting soil, gravel and sand from the nearby areas the River. The operations eventually extended northward into this strip of land. Consequently, a claim for damages was filed with the U.S. War Department by Luis Hilario, the then administrator of Dr. Hilario's estate. The U.S. Army paid.6 In 1947, the plant was turned over to herein defendants-appellants and appellee who took over its operations and continued the extractions and excavations of gravel and sand from the strip of land along an area near the River.

On October 22, 1949, plaintiff filed his complaint7 for injunction and damages against the defendants City Engineer of Manila, District Engineer of Rizal, the Director of Public Works, and Engr. Busuego, the Engineer-in-charge of the plant. It was prayed that the latter be restrained from excavating, bulldozing and extracting gravel, sand and soil from his property and that they solidarily pay to him P5,000.00 as damages. Defendants' answer alleged, in affirmative defense, that the extractions were made from the riverbed while counterclaiming with a prayer for injunction against plaintiff—who, it was claimed, was preventing them from their operations.

Subsequently, the Bureau of Mines and Atty. Maximo Calalang were respectively allowed to join the litigation as intervenors. The former complained that the disputed area was within

the bed of the river so that plaintiff should not only be enjoined from making extractions therefrom but should also be ordered to pay the fees and penalties for the materials taken by him. On the other hand, the latter claimed that he was authorized by plaintiff to extract materials from the disputed area but this notwithstanding, the Provincial Treasurer of Rizal collected from him a sand and gravel fee which would be an illegal exaction if the disputed area turns out to be of private ownership. Answers to the two complaints in intervention were duly filed by the affected parties.

On March 14, 1954, defendants filed a petition for injunction against plaintiff and intervenor Calalang in the same case, alleging that the latter have fenced off the disputed area in contravention of an agreement8 had between the latter and the Director of Public Works wherein he defendants were allowed to continue their operations but subject to the final outcome of the pending suit. It was prayed that plaintiff and intervenor Calalang be ordered to remove the fence and allow defendants' men to continue their operations unhampered. Opposition to this petition was filed by the other side, with a prayer for counter injunction. On March 23, 1954, the lower court issued an order maintaining the status quo and allowing the defendants to continue their extractions from the disputed area provided a receipt9 in plaintiff's favor be issued for all the materials taken.

On May 13, 1954, plaintiff amended his complaint. Impleaded as additional defendants were the City of Manila,10 the Provincial Treasurer of Rizal,11 and Engr. Eugenio Sese, the new Engineer-in-charge of the plant. Plaintiff also converted his claim to one purely for damages directed against the City of Manila and the Director of Public Works, solidarily, in the amount of P1,000,000.00, as the cost of materials taken since 1949, as well as those to be extracted therefrom until defendants stop their operations.

Came the separate amended answers of the several defendants. Manila City denied ownership of the plant and claimed that the City Engineer, acted merely as a deputy of the Public Works Director. The other defendants12 put up, as special defense, the agreement between plaintiff and the Public Works Director, and asserted a P1.2 million counterclaim for damages against plaintiff. The rest13 renewed the same defense; that the disputed area was part of the public domain, since it was situated on the riverbanks.

On November 3, 1954, the defendant City Engineer of Manila filed a petition to delimit the area of excavation and asked the lower court to authorize his men to extend their operations west of the camachile tree in the disputed area. This met vigorous opposition from plaintiff and intervenor Calalang. On May 27, 1955, the petition was denied.

Finally, on December 21, 1956, the lower court rendered its decision on the merits. The dispositive portion provided:14

WHEREFORE, judgment is hereby rendered against the defendants City of Manila and the Director of Public Works, to pay solidarily the herein plaintiff the sum of P376,989.60, as the cost of gravel and sand extracted from plaintiff's land, plus costs. Judgment is likewise hereby rendered against the defendant Provincial Treasurer of Rizal, ordering him to reimburse to intervenor Maximo Calalang the amount of P236.80 representing gravel fees illegally collected. Finally, defendants herein are perpetually enjoined from extracting any sand or gravel from plaintiff's property which is two-fifths northern portion of the disputed area.

It is so ordered.

None of the parties litigants seemed satisfied with this decision and they all sought a reconsideration of the same. On August 30, 1957, the lower court resolved the motions to reconsider with an order, the dispositive portion of which provided:15

WHEREFORE, the court hereby denies the motion for reconsideration filed by plaintiff and intervenor Calalang; dismisses the complaint with respect to defendant City of Manila; holds that the northern two-fifths portion of the area in controversy belongs to the plaintiff with right to the immediate possession thereof and hereby enjoins the defendants and intervenor Bureau of Mines to vacate the same and to stop from extracting gravel thereon. The Court however hereby dismisses the case against the defendant Bureau of Public Works and its agents and employees insofar as the claim for money is concerned without prejudice to plaintiffs taking such action as he may deem proper to enforce said claim against the proper party in accordance with law.

It is so ordered.

Still unsatisfied, plaintiff and intervenor Calalang filed a second motion for reconsideration. The lower court stood firm on its ruling of August 30, 1957.16

Hence, this appeal.17 The defendants Director of Public Works, City Engineer of Manila, and Engrs. Busuego and Sese have also appealed from the declaration made by the lower court that the northern two-fifths of the disputed area belongs to plaintiff Hilario.

The parties herein have presented before this Court mixed questions of law and fact for resolution and adjudication. Foremost among them is this legal query; when a river, leaving its old bed, changes its original course and opens a new one through private property, would the new riverbanks lining said course be of public ownership also?18

The defendants answer in the affirmative. They claim that under the Law of Waters of August 3, 1866, the riverbanks are, by definition, considered part of the riverbed which is always of public ownership. On the other hand, plaintiff would have the question resolved in the negative. He maintains that not all riverbanks are of public ownership because: (1) Art. 372 of the old Civil Code, which governs this particular case, speaks only of the new bed; nothing is said about the new banks; (2) Art. 73 of the Law of Waters which defines the phrase "banks of a river" cannot be applied in the case at bar in conjunction with the other articles cited by defendants since that article applies only to banks of natural riverbeds and the present, River is not in its natural bed; and (3) if all banks were of public ownership, then Art. 553 of the old Civil Code and the second sentence, first paragraph of Art. 73 of the Law of Waters can never have any application.

Since the change in the course of the River took place in 1937, long before the present Civil Code took effect,19 the question before Us should be determined in accordance with the provisions of the old Civil Code and those of the Law of Waters of August 3, 1866.

We agree with defendants that under the cited laws, all riverbanks are of public ownership — including those formed when a river leaves its old bed and opens a new course through a private estate. Art. 339 of the old Civil Code is very clear. Without any qualifications, it provides:

Property of public ownership is —

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, riverbanks, shores, roadsteads, and that of a similar character; (Emphasis supplied)

Moreover, as correctly contended by defendants, the riverbank is part of the riverbed. Art. 73 of the Law of Waters which defines the phrase "banks of a river" provides:

By the phrase "banks of a river" is understood those lateral strips or zones of its bed which are washed by the stream only during such high floods as do not cause inundations. ... (Emphasis supplied)

The use the of words "of its bed [de sus alveos]" clearly indicates the intent of the law to consider the banks — for all legal purposes — as part of the riverbed. The lower court also ruled — correctly — that the banks of the River are paint of its bed.20 Since undeniably all beds of rivers are of public ownership,21 it follows that the banks, which form part of them, are also of public ownership.

Plaintiff's contention that Arts. 70 and 73 of the Law of Waters cannot apply because Art. 312 of the old Civil Code mentions only the new bed but omits the banks, and that said articles only apply to natural — meaning original — bed and banks is untenable. Art. 70, which defines beds of rivers and creeks, provides:

The natural bed or channel of a creek or river is the ground covered by its waters during the highest [ordinary] floods.22 (Emphasis supplied)

Art. 372 of the old Civil Code which provides that —

Whenever a navigable or floatable river changes its course from natural causes and opens a new bed through a private estate, the new bed shall be of public ownership, but the owner of the estate shall recover it in the event that the waters leave it dry again either naturally or as the result of any work legally authorized for this purpose. (Emphasis supplied)

did not have to mention the banks because it was unnecessary. The nature of the banks always follows that of the bed and the running waters of the river. A river is a compound concept consisting of three elements: (1) the running waters, (2) the bed and (3) the banks. 23 All these constitute the river. American authorities are in accord with this view:

'River' consists of water, a bed and banks.24

A "river" consists of water, a bed and banks, these several parts constituting the river, the whole river. It is a compound idea; it cannot exist without all its paints. Evaporate the water, and you have a dry hollow. If you could sink the bed, instead of a river, you would have a fathomless gulf. Remove the banks, and you have a boundless flood.25

Since a river is but one compound concept, it should have only one nature, i.e., it should either be totally public or completely private. And since rivers are of public ownership, 26 it is implicit that all the three component elements be of the same nature also. As Manresa commented:

Realmente no puede imaginarse un rio sin alveo y sin ribera; de suerte que al decir el Codigo Civil que los rios son de dominio publico, parece que debe ir implicito el dominio publico de anquellos tres elementos que integran el rio.27

However, to dispel all possible doubts, the law expressly makes all three elements public. Thus, riverbanks and beds are public under Arts. 339 and 407, respectively, of the Code, while the flowing waters are declared so under Art. 33, par. 2 of the Law of Waters of 1866.

Articles 70, 72 and 73 of the Law of Waters speak of natural beds and their banks. Plaintiff now equates the term "natural" with the word "original" so that a change in the course of a river would render those articles inapplicable. However, the premise is incorrect. Diccionario De La Real Academia Española defines the word "natural" as follows:

NATURAL — perteneciente a la naturaleza o conforme a la calidad o propriedad de las cosas; nativo, originario de un pueblo o nacion; hecho con verdad, ni artificio, mezcla ni composicion alguna; ingenuo y sin doblez en su modo de proceder; diceze tambien de las cosas que imitar a la naturaleza con propiedad; regular y que comunmente sucede, y por eso, facilmente creible; que se produce por solas las fuerzas de la naturaleza, como contrapuesto a sobre natural y milagroso, (Emphasis supplied)

"Natural" is not made synonymous to "original" or "prior condition". On the contrary, even if a river should leave its original bed so long as it is due to the force of nature, the new course would still fall within the scope of the definition provided above. Hence, the law must have used the word "natural" only because it is in keeping with the ordinary nature and concept of a river always to have a bed and banks.

Plaintiff's third point is not lightly to be taken. Indeed, it would seem possible to acquire private ownership of banks under Art. 553 of the old Civil Code which provides:

Las riberas de los rios, aun cuando sean de dominio privado, estan sujetas en toda su extension y en sus margenes, en una zona de tres metros, a la servidumbre de uso publico en interes general de la navegacion, la flotacion, la pesca y el salvamento. (Emphasis supplied) .

And plaintiff is not without jurisprudential backing for in Commonwealth vs. Gungun,28 it was said that the private ownership of the banks was not prohibited. His point is then neatly brought home with the proposition that it is precisely when a river changes its course and opens a new bed through a private estate that there can be private ownership of the banks.

A study of the history of Art. 553 will however reveal that it was never intended to authorize the private acquisition of riverbanks. That could not have been legally possible in view of the legislative policy clearly enunciated in Art. 339 of the Code that all riverbanks were of public ownership. The article merely recognized and preserved the vested rights of riparian owners who, because of prior law or custom, were able to acquire ownership over the banks. This was possible under the Siete Partidas which was promulgated in 1834 yet.29 Under Law 6, Title 28, Partidas 3, the banks of rivers belonged to the riparian owners, following the Roman Law rule.30 In other words, they were privately owned then. But subsequent legislation radically changed this rule. By the Law of Waters of August 3, 1866, riverbanks became of public ownership, albeit impliedly only because considered part of the bed — which was

public — by statutory definition.31 But this law, while expressly repealing all prior inconsistent laws, left undisturbed all vested rights then existing.32 So privately owned banks then continued to be so under the new law, but they were subjected by the latter to an easement for public use. As Art. 73 provides:

Se entienden por riberas de un rio las fajas o zonis laterales de sus alveos que solamente sor bañadas por las aguas en las crecidas que no causan inundacion. El dominio privado de las riberas esta suieto a la survidumbre de tres metros de zona para uso publico, en el interest general de la navegacion, la flotacion, la pesca y el salvamento. ... (Emphasis supplied).1äwphï1.ñët

This was perhaps the reconciliation effected between the private ownership of the banks, on the one hand, and the policy of the law on the other hand, to devote all banks to public use.33 The easement would preserve the private ownership of the banks and still effectuate the policy of the law. So, the easement in Art. 73 only recognized and preserved existing privately owned banks; it did not authorize future private appropriation of riverbanks.

The foregoing observation is confirmed by the still subsequent Law of Waters of June 13, 1879, which was principally based on the Law of August 3, 1865.34 Art. 36 of the new law, which was a substantial reenactment of Art. 73 of the Law of Waters of August 3, 1866, reads:

Las riberas, aun cuando sean de dominio privado en virtud de antigue ley o de costumbre, estan sujetas en toda su extension las margenes en una zona de tres metros, a la servidumbre de uso publico en interes general de la navegacion, la flotacion la pesca y el salvamento. ... (Emphasis supplied)

The new law also affirmed the public ownership of rivers and their beds, and the treatment of the banks as part of the bed.35 But nowhere in the law was there any provision authorizing the private appropriation of the banks. What it merely did was to recognize the fact that at that time there were privately owned banks pursuant to the Siete Partidas, and to encumber these with an easement for public use.

However, the public nature of riverbanks still obtained only by implication. But with the promulgation of the Civil Code of 1889, this fact was finally made explicit in Art. 339 thereof. Riverbanks were declared as public property since they were destined for public use. And the first paragraph of Art. 36 of the Law of Waters of 1879 was substantially reenacted in Art. 553 of the Code.36 Hence, this article must also be understood not as authorizing the private acquisition of riverbanks but only as recognizing the vested titles of riparian owners who already owned the banks.

The authority, then, for the private ownership of the banks is neither the old Civil Code nor the Law of Waters of 1866 but the Siete Partidas. Unfortunately, plaintiff cannot invoke it. Law 6, Title 28, Partida 3, which provides for private ownership of banks, ceased to be of force in this jurisdiction as of 1871 yet when the Law of Waters of August 3, 1866, took effect.37 Since the change in the course of the River took place in 1937, the new banks which were formed could not have been subjected to the provisions of the Siete Partidas which had already been superseded by then.

Coming to the factual issues: both parties assail the conclusion made by the lower court that only the northern two-fifths of the disputed area remained as plaintiff's private property.

This conclusion was apparently based on the findings that the portion where rice and corn were found38 in the ocular inspection of June 15, 1951, was on the northern two-fifths of the disputed area; that this cannot be a part of the bed because of the existence of vegetation which could not have grown underwater, and that this portion is man-made. However, there is no evidentiary basis for these findings. The area indicated by Nos. 1 and 2 in Exh. D-1 where no excavations had been made, appears to be more on the south-western one-fourth of the disputed area. The American cases39 cited by the lower court cannot apply here. Our Law of Waters, in defining "beds" and considers the latter is part of the former. Those cited cases did not involve a similar statutory provision. That plants can and do grow on the banks which otherwise could not have grown in the bed which is constantly subjected to the flow of the waters proves the distinction between "beds" and "banks" in the physical order. However, We are dealing with the legal order where legal definitions prevail. And apart from these considerations, We also note the considerable difficulty which would attend the execution of the ruling of the lower court. The latter failed to indicate fixed markers from which an exact delimitation of the boundaries of the portion could be made. This flaw is conducive to future litigations.

Plaintiff's theory is that the disputed area, although covered at times by flood waters, cannot be considered as within the banks of the River because: (1) such floods are only accidental, and (2) even if they are regular, the flooding of the area is due to the excavations and extractions made by defendants which have caused the widening of the channel. 40

Defendants claim, however, that the area is always covered by the normal yearly floods and that the widening of the channel is due to natural causes.

There is a gravel pit41 located along the west side of the River. This is about 500 meters long.42 A greater part of this pit occupies a portion of the strip of land that was sliced by the River from the rest of the Hilario estate. As shown in Exhs. D and D-1, this strip of land is that western segment of the Hilario estate bounded on the west by the same lines connecting stakes 23 through 27, which form part of the western boundary of the estate, and on the east, bounded by the western waterline of the River.

Now, the disputed area, generally speaking,43 is only that part of the gravel pit which is within the strip of land. Its northern tip is that point where the so-called "secondary bank" line intersects the west River waterline up north; its southern boundary is along the line connecting stakes 23 and 24. From these two ends, the disputed area measures approximately 250 meters long. The eastern boundary is the western River waterline at low tide and the western boundary is the "secondary bank" line, a line passing near stake 24 and running almost parallel to the line connecting stakes 25 and 26. Around the later part of 1949, the disputed area was about 150 to 160 meters wide.44 This increased to about 175 to 180 meters by the later part of 1950. And by January, 1953, the distance from the "secondary bank" line to the west waterline was about 230 meters.45

This increasing width of the disputed area could be attributed to the gradual movement of the River to the east. Since it entered into the Hilario estate, the River has not stayed put. 46

Vicente Vicente, plaintiff's witness declared47 that after the River changed its course in 1937, the distance between the old and the new river sites was about 100 meters. Exh. D-2 shows that in 1943, the south end of the River was about 5 meters southeast of stake 24. 48

Honorato Sta. Maria, another witness for plaintiff, indicated the flow of this course with a blue line in Exh. D-1.49 This blue line is about 100 meters from the line connecting stakes 25 and 26, which was also the east boundary of the old River.50 Around 1945 to 1949, the River was about 193 meters51 east of this line. This measurement is based on the testimonies of

two defense witnesses52 and stated that during that period, the River passed along the Excavated Area and the New Accretion Area53 sites, as shown in Exh. 54. By the later part of 1949 up to November 1950, the west waterline was from 248 to 270 meters 54 east of the aforesaid boundary line. And finally in January, 1953, based on the scale in Exh. 3-Calalang, the west waterline was from 300 to 305 meters away already. Hence, from 100 meters in 1937, the River had moved to 305 meters eastward in 1953.

There are two questions to be resolved here. First, where on the strip of land are the lateral borders of the western riverbank? And second, where have defendants made their extractions?

Anent the first question, the key is supplied by Art. 73 of the Law of Waters which defines the limits of banks of rivers —

By the phrase "banks of a river" is understood those lateral strips or zones of its bed which are washed by the stream only during such high floods as do not cause in inundations. ... (Emphasis supplied)

The farthest extremity of the bank on the west side would, therefore, be that lateral line or strip which is reached by the waters during those high floods that do not cause inundations. In other words, the extent reached by the waters when the River is at high tide.

However, there is a difference between the topography of the two sides immediately adjoining the River. The line indicated as "primary bank"55 in Exh. 3-Calalang, which is on the east, is about 3 meters high and has a steep grade right at the edge where it drops almost vertically to the watercourse level. The precipice here, which is near the east waterline, is very easily detectible. But the opposite side has no such steep activity. In fact, it is almost flat with the bed of the River, especially near the water edge, where it is about 30 to 50 cms. high only. But it gradually slopes up to a height of about 2 to 2-½ meters along the line indicated as "secondary bank", which is quite far from the waterline. This "bank" line is about 1-½ meters higher than the level of the gravel pit and there are erosions here. This is about 175 meters west from the November 1950 waterline, and about 100 meters west from the camachile tree.56

During the dry season, the waterlevel of the River is quite low — about knee-deep only. However, during the rainy season, the River generally becomes swollen, and the waterlevel rises, reaching up to the neck.57 However, considering the peculiar characteristics of the two sides banking the river, the rise in the waterlevel would not have the same effect on the two sides. Thus, on the east, the water would rise vertically, until the top of the "primary bank" is reached, but on the west, there would be a low-angled inclined rise, the water covering more ground until the "secondary bank" line is reached. In other words, while the water expansion on the east is vertical, that on the west is more or less lateral, or horizontal.

The evidence also shows that there are two types of floods in the area during the rainy season.58 One is the so-called "ordinary" flood, when the river is swollen but the flowing water is kept within the confines, of the "primary" and "secondary" banks. This occurs annually, about three to four times during the period. Then there is the "extraordinary" flood, when the waters overflow beyond the said banks, and even inundate the surrounding areas. However, this flood does not happen regularly. From 1947 to 1955, there were only three such floods.59 Now, considering that the "ordinary" flood easily cover the west side —

since any vertical rise of the waterlevel on the east would necessarily be accompanied by a lateral water expansion on the west — the "inundations" which the law mentions must be those caused by the "extraordinary" floods which reach and overflow beyond both "primary" and "secondary" banks. And since the "primary" bank is higher than the "secondary" bank, it is only when the former is reached and overflowed that there can be an inundation of the banks — the two banks. The question therefore, may be stated thus: up to what extent on the west side do the highest flood waters reach when the "primary" bank is not overflowed?

Defendants have presented several witnesses who testified on the extent reached by the ordinary flood waters. David Ross, a bulldozer operator at the plant since 1945, testified 60

that from 1945 to 1949, when the River was still passing along the site where the camachile tree is located, the annual flood waters reached up to the "secondary bank" line. These floods usually took from 3 to 5 days to recede, during which time their work was suspended. Corroboration is supplied by Macario Suiza, a crane operator in the plant since 1945, and by Fidel Villafuerte, a plant employee since 1946. Suiza stated61 that from 1947 to 1949, the area enclosed within the blue lines and marked as Exh. 54-B — which includes the New Accretion Area was always covered by water when it rained hard and they had to stop work temporarily. The western extremity of this area reaches up to the "secondary bank" line. Villafuerte stated62 that in the ordinary floods when the water was just 50 cm. below the top of the "primary bank", the waters would go beyond the camachile tree by as much as 100 meters westward and just about reach the "secondary bank" line. Further corroboration is supplied by plaintiff's own evidence. Exh. 1-Calalang states that from 1947 to 1949, based on the casual observations made by geologist David Cruz, the area between the "primary" and "secondary" banks were always covered by the non-inundating ordinary floods.

From 1950 to 1952, We have the testimony of Ross who stated63 that there were still floods but they were not as big anymore, except one flood in 1952, since the River had already moved to the east. Engr. Ricardo Pacheco, who made a survey of the disputed area in November 1952, and who conducted actual observations of the extent of the water reach when the river was swollen, testified64 that the non-inundating flood regularly reached up to the blue zigzag line along the disputed area, as shown in Exh. I-City Engineer Manila. This blue line, at the point where it intersects line BB,65 is about 140 meters west of the waterline and about 20 meters west of the camachile tree. His testimony was based on three floods 66

which he and his men actually recorded. Corroboration is again supplied by Exh. 1-Calalang. According to Cruz' report, the floods in 1950 and 1951 barely covered the disputed area. During the normal days of the rainy season, the waters of the swollen river did not reach the higher portions of the gravel pit which used to be submerged. One cause for this was the lesser amount of rainfall from 1949 to 1951. But two floods occurred from October 16 to 28, 1952, which overflowed the whole area and inundated the banks. From 1953 to 1955, when the River was farther away to the east, the flood waters still covered the west side. 67

Testifying on the extent reached by the water during the rainy season in 1954, Ross stated68

that it reached up to the camachile tree only. The last and latest data comes from Engr. Magbayani Leaño, the Engineer-in-charge of the plant from August 1954. He testified69 that as of December 1955, when the disputed area was underwater, the water reach was about 20 meters or less to the east from the camachile tree.

From all the foregoing, it can be safely concluded: (1) that from 1945 to 1949, the west bank of the River extended westward up to the "secondary bank" line; (2) that from 1950 to 1952, this bank had moved, with the River, to the east its lateral borders running along a line just 20 meters west of the camachile tree; and (3) that from 1953 to 1955, the extremities of the

west bank further receded eastward beyond the camachile tree, until they lay just about 20 meters east of said tree.

To counteract the testimonies of the defense witnesses, plaintiff presented two rebuttal witnesses70 who told a somewhat different story. However, their testimonies are not convincing enough to offset the dovetailing testimonies of the defense witnesses who were much better qualified and acquainted with the actual situs of the floods. And said defense witnesses were corroborated by plaintiffs' own evidence which contradicts the aforesaid rebuttal witnesses.

However, plaintiff maintains that the floods which cover the area in question are merely accidental and hence, under Art. 77 of the Law of Waters,71 and following the ruling in Government vs. Colegio de San Jose,72 he is deemed not to have lost the inundated area. This is untenable. Plaintiff's own evidence73 shows that the river floods with annual regularity during the rainy season. These floods can hardly be called "accidental." The Colegio de San Jose case is not exactly in point. What was mainly considered there was Art. 74 of the Law of Waters relating to lakes, ponds and pools. In the case at bar, none of these is involved.

Also untenable is plaintiff's contention that the regular flooding of the disputed area was due to the continuous extraction of materials by defendants which had lowered the level of said area and caused the consequent widening of the channel and the river itself. The excavations and extractions of materials, even from the American period, have been made only on the strip of land west of the River.74 Under the "following-the-nature-of-things" argument advanced by plaintiff, the River should have moved westward, where the level of the ground had been lowered. But the movement has been in the opposite direction instead. Therefore, it cannot be attributed to defendants' operation. Moreover, plaintiff's own evidence indicates that the movement eastward was all due to natural causes. Thus, Exh. 1-Calalang shows that the movement eastward of the channel by as much as 31 meters, from 1950 to 1953, was due to two typhoons which caused the erosion of the east bank and the depositing of materials on the west side which increased its level from as much as .93 to 2 meters.

Plaintiff's assertion that the defendants also caused the unnatural widening of the River is unfounded. Reliance is made on the finding by the lower court that in 1943, the River was only 60 meters wide as shown in Exh. D-2, whereas in 1950, it was already 140 meters wide as shown in Exh. D. However, Exh. D-2 only shows the width of the River near the southwestern boundary of the Hilario estate. It does not indicate how wide it was in the other parts, especially up north. And Eligio Lorenzo, plaintiff's own witness, admitted75 on cross-examination that the width of the new river was not uniform. This is confirmed by Exhs. D and D-1 which show that the new river was wider by as much as 50% up north than it was down south. The 140-meter distance in Exh. D was at the widest part up north whereas down south, near the mouth of the Bulobok River, it was only 70 meters wide. Lastly, the scale in Exh. 3-Calalang will show that in January 1953, the River, near the same point also, was less than 50 meters wide.

The only remaining question now is to determine if the defendants have really confined their operations within the banks of the River as alleged by them. To resolve this, We have to find out from what precise portion in the disputed area the defendants have extracted gravel and sand since they did not extract indiscriminately from within the entire area. None of the parties' briefs were very helpful but the evidence on record discloses that defendants made their extractions only within specified areas during definite periods.

From 1947 to the early part of 1949, the defendants conducted their operations only in the New Accretion Area along a narrow longitudinal zone contiguous to the watercourse then. This zone, marked as Exh. 2-City Engineer Manila, is about one (1) km. long and extends northward up to pt. 50.35 in Exh. 54. However, no extractions nor excavations were undertaken west of this zone, i.e., above the "temporary bank" line.76 These facts are corroborated by plaintiff's witnesses. That the extractions were near the river then finds support in Vicente's testimony77 while Leon Angeles and Mrs. Salud Hilario confirm the fact that defendants have not gone westward beyond the "temporary bank" line.78 This line is located east of the "secondary bank" line, the lateral extremity of the west bank then.

In the later part of 1949, plaintiff prohibited the defendants from extracting along the New Accretion Area and constructed a fence across the same. This forced the defendants to go below southeast of — the "Excavated Area" and the New Accretion Area sites in Exh. 54. 79

Engr. Busuego, testifying80 in 1952, indicated their are of extraction as that enclosed within the red dotted line in Exh. D-1 which lies on the south end of the strip of land. Only a small portion of the southeastern boundary of the disputed area is included. The ocular inspection conducted on June 15, 1951, confirms this.81 Exh. 4-Calalang shows the total amount of materials taken from within the area from 1949 to 1951.82 Thus, from 1950 up to 1953, although the defendants were able to continue their operations because of the agreement between the plaintiff and the Director of Public Works,83 they were confined only to the southeastern portion of the disputed area. On the other hand, the lateral extremities of the west bank then ran along a line about 20 meters west of the camachile tree in the New Accretion Area.

From 1954 to 1955, defendants' area of operation was still farther near of the New Accretion Area. They were working within a confined area along the west waterline, the northern and western boundaries of which were 20 meters away east from the camachile tree.84 Ross indicated85 this zone in Exh. 54 as that portion on the southern end of the disputed area between the blue lines going through the words "Marikina River Bed" and the red zigzag line indicating the watercourse then. Engr. Leaño even stated, 86 that they got about 80% of the materials from the river itself and only 20% from the dry bed. The sand and gravel covered by Exhs. LL to LL-55 were all taken from here. The foregoing facts are not only corroborated by Mrs. Hilario87 but even admitted by the plaintiff in his opposition88 to defendants' petition to extend their area of operation west of the camachile tree. And because their petition was denied, defendants could not, and have not,89 gone beyond the lateral line about 20 meters east from said tree, which has already been established as the lateral extremity of the west bank during the period.

It appears sufficiently established, therefore, that defendants have not gone beyond the receding western extremities of the west riverbank. They have confined their extraction of gravel and sand only from within the banks of the river which constitute part of the public domain — wherein they had the right to operate. Plaintiff has not presented sufficient evidence that defendants have gone beyond the limits of the west bank, as previously established, and have invaded his private estate. He cannot, therefore, recover from them.

As a parting argument, plaintiff contends that to declare the entire disputed area as part of the riverbanks would be tantamount to converting about half of his estate to public ownership without just compensation. He even adds that defendants have already exhausted the supply in that area and have unjustly profited at his expense. These arguments, however, do not detract from the above conclusions.

First of all, We are not declaring that the entire channel, i.e., all that space between the "secondary bank" line and the "primary bank" line, has permanently become part of the riverbed. What We are only holding is that at the time the defendants made their extractions, the excavations were within the confines of the riverbanks then. The "secondary bank" line was the western limit of the west bank around 1945 to 1949 only. By 1955, this had greatly receded to the line just 20 meters east of the camachile tree in the New Accretion Area. All that space to the west of said receding line90 would still be part of plaintiff's property — and also whatever portion adjoining the river is, at present, no longer reached by the non-inundating ordinary floods.

Secondly, it is not correct to say that plaintiff would be deprived of his property without any compensation at all. Under Art. 370 of the old Civil Code, the abandoned bed of the old river belongs to the riparian owners either fully or in part with the other riparian owners. And had the change occurred under the Civil Code of the Philippines, plaintiff would even be entitled to all of the old bed in proportion to the area he has lost.91

And, lastly, defendants cannot be accused of unjustly profiting at plaintiff's expense. They were not responsible for the shifting of the River. It was due to natural causes for which no one can be blamed. And defendants were extracting from public property then, under proper authorization. The government, through the defendants, may have been enriched by chance, but not unjustly.

Considering the conclusions We have thus reached, the other questions involved in the remaining assignments of errors — particularly those apropos the doctrine of state immunity from suit and the liability of defendant City of Manila — are rendered moot.

Wherefore, the decision and orders appealed from are hereby set aside and another judgment is hereby entered as follows:

(1) Defendants City of Manila and the Director of Public Works and his agents and employees are hereby absolved from liability to plaintiff since they did not extract materials from plaintiff's property but from the public domain.

(2) All that portion within the strip of land in question, starting from the line running parallel to the western waterline of the river and twenty meters east from the camachile tree in the New Accretion Area measured along line AA in Exhs. 3-Calalang, 13 and 54, and going to the west up to the western boundaries of the Hilario estate, is hereby declared as not part of the public domain and confirmed as part of plaintiff's private property. No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. L-17652 June 30, 1962

IGNACIO GRANDE, ET AL., petitioners, vs.HON. COURT OF APPEALS, DOMINGO CALALUNG, and ESTEBAN CALALUNG, respondents.

Bartolome Guirao and Antonio M. Orara for petitioners.Gonzales and Fernandez for respondents.

BARRERA, J.:

This is an appeal taken by petitioners Ignacio, Eulogia, Alfonso, Eulalia, and Sofia Grande, from the decision of the Court of Appeals (CA-G.R. No. 25169-R) reversing that of the Court of First Instance of Isabela (Civil Case No. 1171), and dismissing petitioners' action against respondents Domingo and Esteban Calalung, to quiet title to and recover possession of a parcel of land allegedly occupied by the latter without petitioners' consent.

The facts of the case, which are undisputed, briefly are: Petitioners are the owners of a parcel of land, with an area of 3.5032 hectares, located at barrio Ragan, municipality of Magsaysay (formerly Tumauini), province of Isabela, by inheritance from their deceased mother Patricia Angui (who inherited it from her parents Isidro Angui and Ana Lopez, in whose name said land appears registered, as shown by Original Certificate of Title No. 2982, issued on June 9, 1934). Said property is identified as Lot No. 1, Plan PSU-83342. When it was surveyed for purposes of registration sometime in 1930, its northeastern boundary was the Cagayan River (the same boundary stated in the title). Since then, and for many years thereafter, a gradual accretion on the northeastern side took place, by action of the current of the Cagayan River, so much so, that by 1958, the bank thereof had receded to a distance of about 105 meters from its original site, and an alluvial deposit of 19,964 square meters (1.9964 hectares), more or less, had been added to the registered area (Exh. C-1).

On January 25, 1958, petitioners instituted the present action in the Court of First Instance of Isabela against respondents, to quiet title to said portion (19,964 square meters) formed by accretion, alleging in their complaint (docketed as Civil Case No. 1171) that they and their predecessors-in-interest, were formerly in peaceful and continuous possession thereof, until September, 1948, when respondents entered upon the land under claim of ownership. Petitioners also asked for damages corresponding to the value of the fruits of the land as well as attorney's fees and costs. In their answer (dated February 18, 1958), respondents claim ownership in themselves, asserting that they have been in continuous, open, and undisturbed possession of said portion, since prior to the year 1933 to the present.

After trial, the Court of First Instance of Isabela, on May 4, 1959, rendered a decision adjudging the ownership of the portion in question to petitioners, and ordering respondents to vacate the premises and deliver possession thereof to petitioners, and to pay to the latter P250.00 as damages and costs. Said decision, in part, reads:

It is admitted by the parties that the land involved in this action was formed by the gradual deposit of alluvium brought about by the action of the Cagayan River, a navigable river. We are inclined to believe that the accretion was formed on the northeastern side of the land covered by Original Certificate of Title No. 2982 after the survey of the registered land in 1931, because the surveyors found out that the northeastern boundary of the land surveyed by them was the Cagayan River, and not the land in question. Which is indicative of the fact that the accretion has not yet started or begun in 1931. And, as declared by Pedro Laman, defendant witness and the boundary owner on the northwest of the registered land of the plaintiffs, the accretion was a little more than one hectare, including the stony portion, in 1940 or 1941. Therefore, the declarations of the defendant Domingo Calalung and his witness, Vicente C. Bacani, to the effect that the land in question was formed by accretion since 1933 do not only contradict the testimony of defendants' witness Pedro Laman, but could not overthrow the incontestable fact that the accretion with an area of 4 hectare more or less, was formed in 1948, reason for which, it was only

declared in that same year for taxation purposes by the defendants under Tax Dec. No. 257 (Exh. "2") when they entered upon the land. We could not give credence to defendants' assertion that Tax Dec. No. 257 (Exh. "2") cancelled Tax Dee. No. 28226 (Exh. "1"), because Exh. "2" says that "tax under this declaration begins with the year 1948. But, the fact that defendants declared the land for taxation purposes since 1948, does not mean that they become the owner of the land by mere occupancy, for it is a new provision of the New Civil Code that ownership of a piece of land cannot be acquired by occupation (Art. 714, New Civil Code). The land in question being an accretion to the mother or registered land of the plaintiffs, the accretion belongs to the plaintiffs (Art. 457, New Civil Code; Art. 366, Old Civil Code). Assuming arguendo, that the accretion has been occupied by the defendants since 1948, or earlier, is of no moment, because the law does not require any act of possession on the part of the owner of the riparian owner, from the moment the deposit becomes manifest (Roxas v. Tuason, 9 Phil. 408; Cortez v. City of Manila, 10 Phil. 567). Further, no act of appropriation on the part of the reparian owner is necessary, in order to acquire ownership of the alluvial formation, as the law does not require the same (3 Manresa, C.C., pp. 321-326).

This brings us now to the determination of whether the defendants, granting that they have been in possession of the alluvium since 1948, could have acquired the property by prescription. Assuming that they occupied the land in September, 1948, but considering that the action was commenced on January 25, 1958, they have not been in possession of the land for ten (10) years; hence, they could not have acquired the land by ordinary prescription (Arts. 1134 and 1138, New Civil Code). Moreover, as the alluvium is, by law, part and parcel of the registered property, the same may be considered as registered property, within the meaning of Section 46 of Act No. 496: and, therefore, it could not be acquired by prescription or adverse possession by another person.

Unsatisfied, respondents appealed to the Court of Appeals, which rendered, on September 14, 1960, the decision adverted to at the beginning of this opinion, partly stating:

That the area in controversy has been formed through a gradual process of alluvium, which started in the early thirties, is a fact conclusively established by the evidence for both parties. By law, therefore, unless some superior title has supervened, it should properly belong to the riparian owners, specifically in accordance with the rule of natural accession in Article 366 of the old Civil Code (now Article 457), which provides that "to the owner of lands adjoining the banks of rivers, belongs the accretion which they gradually receive from the effects of the current of the waters." The defendants, however, contend that they have acquired ownership through prescription. This contention poses the real issue in this case. The Court a quo, has resolved it in favor of the plaintiffs, on two grounds: First, since by accession, the land in question pertains to the original estate, and since in this instance the original estate is registered, the accretion, consequently, falls within the purview of Section 46 of Act No. 496, which states that "no title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession"; and, second, the adverse possession of the defendant began only in the month of September, 1948, or less than the 10-year period required for prescription before the present action was instituted.

As a legal proposition, the first ground relied upon by the trial court, is not quite correct. An accretion to registered land, while declared by specific provision of the Civil Code to belong to the owner of the land as a natural accession thereof, does not ipso jure become entitled to the protection of the rule of imprescriptibility of title established by the Land Registration Act. Such protection does not extend beyond the area given and described in the certificate. To hold otherwise, would be productive of confusion. It would virtually deprive the title, and the technical description of the land given therein, of their character of conclusiveness as to the identity and area of the land that is registered. Just as the Supreme Court, albeit in a negative manner, has stated that registration does not protect the riparian owner against the erosion of the area of his land through gradual changes in the course of the adjoining stream (Payatas Estate Development Co. v. Tuason, 53 Phil. 55), so registration does not entitle him to all the rights conferred by Land Registration Act, in so far as the area added by accretion is concerned. What rights he has, are declared not by said Act, but by the provisions of the Civil Code on accession: and these provisions do not preclude acquisition of the addition area by another person through prescription. This Court has held as much in the case of Galindez, et al. v. Baguisa, et al., CA-G.R. No. 19249-R, July 17, 1959.

We now proposed to review the second ground relied upon by the trial court, regarding the length of time that the defendants have been in possession. Domingo Calalung testified that he occupied the land in question for the first time in 1934, not in 1948 as claimed by the plaintiffs. The area under occupancy gradually increased as the years went by. In 1946, he declared the land for purposes of taxation (Exhibit 1). This tax declaration was superseded in 1948 by another (Exhibit 2), after the name of the municipality wherein it is located was changed from Tumauini to Magsaysay. Calalung's testimony is corroborated by two witnesses, both owners of properties nearby. Pedro Laman, 72 years of age, who was Municipal president of Tumauini for three terms, said that the land in question adjoins his own on the south, and that since 1940 or 1951, he has always known it to be in the peaceful possession of the defendants. Vicente C. Bacani testified to the same effect, although, he said that the defendants' possession started sometime in 1933 or 1934. The area thereof, he said, was then less than one hectare.

We find the testimony of the said witnesses entitled to much greater weight and credence than that of the plaintiff Pedro Grande and his lone witness, Laureana Rodriguez. The first stated that the defendants occupied the land in question only in 1948; that he called the latter's attention to the fact that the land was his, but the defendants, in turn, claimed that they were the owners, that the plaintiffs did not file an action until 1958, because it was only then that they were able to obtain the certificate of title from the surveyor, Domingo Parlan; and that they never declared the land in question for taxation purposes or paid the taxes thereon. Pedro Grande admitted that the defendants had the said land surveyed in April, 1958, and that he tried to stop it, not because he claimed the accretion for himself and his co-plaintiffs, but because the survey included a portion of the property covered by their title. This last fact is conceded by the defendants who, accordingly, relinquished their possession to the part thus included, containing an area of some 458 square meters.1äwphï1.ñët

The oral evidence for the defendants concerning the period of their possession — from 1933 to 1958 — is not only preponderant in itself, but is, moreover, supported

by the fact that it is they and not the plaintiffs who declared the disputed property for taxation, and by the additional circumstance that if the plaintiff had really been in prior possession and were deprived thereof in 1948, they would have immediately taken steps to recover the same. The excuse they gave for not doing so, namely, that they did not receive their copy of the certificate of title to their property until 1958 for lack of funds to pay the fees of the surveyor Domingo Parlan, is too flimsy to merit any serious consideration. The payment of the surveyor's fees had nothing to do with their right to obtain a copy of the certificate. Besides, it was not necessary for them to have it in their hands, in order to file an action to recover the land which was legally theirs by accession and of which, as they allege, they had been illegally deprived by the defendants. We are convinced, upon consideration of the evidence, that the latter, were really in possession since 1934, immediately after the process of alluvion started, and that the plaintiffs woke up to their rights only when they received their copy of the title in 1958. By then, however, prescription had already supervened in favor of the defendants.

It is this decision of the Court of Appeals which petitioners seek to be reviewed by us.

The sole issue for resolution in this case is whether respondents have acquired the alluvial property in question through prescription.

There can be no dispute that both under Article 457 of the New Civil Code and Article 366 of the old, petitioners are the lawful owners of said alluvial property, as they are the registered owners of the land which it adjoins. The question is whether the accretion becomes automatically registered land just because the lot which receives it is covered by a Torrens title thereby making the alluvial property imprescriptible. We agree with the Court of Appeals that it does not, just as an unregistered land purchased by the registered owner of the adjoining land does not, by extension, become ipso facto registered land. Ownership of a piece of land is one thing, and registration under the Torrens system of that ownership is quite another. Ownership over the accretion received by the land adjoining a river is governed by the Civil Code. Imprescriptibility of registered land is provided in the registration law. Registration under the Land Registration and Cadastral Acts does not vest or give title to the land, but merely confirms and thereafter protects the title already possessed by the owner, making it imprescriptible by occupation of third parties. But to obtain this protection, the land must be placed under the operation of the registration laws wherein certain judicial procedures have been provided. The fact remain, however, that petitioners never sought registration of said alluvial property (which was formed sometime after petitioners' property covered by Original Certificate of Title No. 2982 was registered on June 9, 1934) up to the time they instituted the present action in the Court of First Instance of Isabela in 1958. The increment, therefore, never became registered property, and hence is not entitled or subject to the protection of imprescriptibility enjoyed by registered property under the Torrens system. Consequently, it was subject to acquisition through prescription by third persons.

The next issue is, did respondents acquire said alluvial property through acquisitive prescription? This is a question which requires determination of facts: physical possession and dates or duration of such possession. The Court of Appeals, after analyzing the evidence, found that respondents-appellees were in possession of the alluvial lot since 1933 or 1934, openly, continuously and adversely, under a claim of ownership up to the filing of the action in 1958. This finding of the existence of these facts, arrived at by the Court of Appeals after

an examination of the evidence presented by the parties, is conclusive as to them and can not be reviewed by us.

The law on prescription applicable to the case is that provided in Act 190 and not the provisions of the Civil Code, since the possession started in 1933 or 1934 when the pertinent articles of the old Civil Code were not in force and before the effectivity of the new Civil Code in 1950. Hence, the conclusion of the Court of Appeals that the respondents acquired alluvial lot in question by acquisitive prescription is in accordance with law.

The decision of the Court of Appeals under review is hereby affirmed, with costs against the petitioners. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes and Dizon, JJ., concur.Reyes, J.B.L., Regala and Makalintal, JJ., took no part.

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

FAUSTINO IGNACIO, applicant-appellant, vs.THE DIRECTOR OF LANDS and LAUREANO VALERIANO, oppositors-appellees.

Acting Assistant Solicitor General Pacifico P. de Castro and Solicitor Crispin V. Bautista for appellee Director of Lands.Benjamin H. Aquino for appellee Laureano Veleriano.

MONTEMAYOR, J.:

Faustino Ignacio is appealing the decision of the Court of First Instance of Rizal, dismissing his application for the registration of a parcel of land.

On January 25, 1950, Ignacio filed an application for the registration of a parcel of land (mangrove), situated in barrio Gasac, Navotas, Rizal, with an area of 37,877 square meters. Later, he amended his application by alleging among others that he owned the parcel applied for by right of accretion. To the application, the Director of Lands, Laureano Valeriano and Domingo Gutierrez filed oppositions. Gutierrez later withdrew his opposition. The Director of Lands claimed the parcel applied for as a portion of the public domain, for the reason that neither the applicant nor his predecessor-in-interest possessed sufficient title thereto, not having acquired it either by composition title from the Spanish government or by possessory information title under the Royal Decree of February 13, 1894, and that he had not possessed the same openly, continuously and adversely under a bona fide claim of ownership since July 26, 1894. In his turn, Valeriano alleged he was holding the land by virtue of a permit granted him by the Bureau of Fisheries, issued on January 13, 1947, and approved by the President.

It is not disputed that the land applied for adjoins a parcel owned by the applicant which he had acquired from the Government by virtue of a free patent title in 1936. It has also been established that the parcel in question was formed by accretion and alluvial deposits caused

by the action of the Manila Bay which boarders it on the southwest. Applicant Ignacio claims that he had occupied the land since 1935, planting it with api-api trees, and that his possession thereof had been continuous, adverse and public for a period of twenty years until said possession was distributed by oppositor Valeriano.

On the other hand, the Director of Lands sought to prove that the parcel is foreshore land, covered by the ebb and flow of the tide and, therefore, formed part of the public domain.

After hearing, the trial court dismissed the application, holding that the parcel formed part of the public domain. In his appeal, Ignacio assigns the following errors:

I. The lower court erred in holding that the land in question, altho an accretion to the land of the applicant-appellant, does not belong to him but forms part of the public domain.

II. Granting that the land in question forms part of the public domain, the lower court nevertheless erred in not declaring the same to be the necessary for any public use or purpose and in not ordering in the present registration proceedings.

III. The lower court erred in not holding that the land in question now belongs to the applicant-appellant by virtue of acquisitive prescription, the said land having ceased to be of the public domain and became the private or patrimonial property of the State.

IV. The lower court erred in not holding that the oppositor Director of Lands is now in estoppel from claiming the land in question as a land of the public domain.

Appellant contends that the parcel belongs to him by the law of accretion, having been formed by gradual deposit by action of the Manila Bay, and he cites Article 457 of the New Civil Code (Article 366, Old Civil Code), which provides that:

To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters.

The article cited is clearly inapplicable because it refers to accretion or deposits on the banks of rivers, while the accretion in the present case was caused by action of the Manila Bay.

Appellant next contends that Articles 1, 4 and 5 of the Law of Waters are not applicable because they refer to accretions formed by the sea, and that Manila Bay cannot be considered as a sea. We find said contention untenable. A bay is a part of the sea, being a mere indentation of the same:

Bay. — An opening into the land where the water is shut in on all sides except at the entrance; an inlet of the sea; an arm of the sea, distinct from a river, a bending or curbing of the shore of the sea or of a lake. 7 C.J. 1013-1014 (Cited in Francisco, Philippine Law of Waters and Water Rights p. 6)

Moreover, this Tribunal has some cases applied the Law of Waters on Lands bordering Manila Bay. (See the cases of Ker & Co. vs. Cauden, 6 Phil., 732, involving a parcel of land bounded on the sides by Manila Bay, where it was held that such land formed by the action of the sea is property of the State; Francisco vs. Government of the P.I., 28 Phil., 505,

involving a land claimed by a private person and subject to the ebb and flow of the tides of the Manila Bay).

Then the applicant argues that granting that the land in question formed part of the public domain, having been gained from the sea, the trial court should have declared the same no longer necessary for any public use or purpose, and therefore, became disposable and available for private ownership. Article 4 of the Law of Waters of 1866 reads thus:

ART. 4. Lands added to the shores by accretions and alluvial deposits caused by the action of the sea, form part of the public domain. When they are no longer washed by the waters of the sea and are not necessary for purposes of public utility, or for the establishment of special industries, or for the coastguard service, the Government shall declare them to be the property of the owners of the estates adjacent thereto and as increment thereof.

Interpreting Article 4 of the Law of Waters of 1866, in the case of Natividad vs. Director of Lands, (CA) 37 Off. Gaz., 2905, it was there held that:

Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no longer washed by the waters of the sea and is not necessary for purposes of public utility, or for the establishment of special industries, or for coastguard service, the government shall declare it to be the property of the owners of the estates adjacent thereto and as an increment thereof. We believe that only the executive and possibly the legislative departments have the authority and the power to make the declaration that any land so gained by the sea, is not necessary for purposes of public utility, or for the establishment of special industries, on for coast-guard service. If no such declaration has been made by said departments, the lot in question forms part of the public domain. (Natividad vs. Director of Lands, supra.)

The reason for this pronouncement, according to this Tribunal in the case of Vicente Joven y Monteverde vs. Director of Lands, 93 Phil., 134, (cited in Velayo's Digest, VI. I, p. 52).

. . . is undoubtedly that the courts are neither primarily called upon, nor indeed in a position to determine whether any public land are to be used for the purposes specified in Article 4 of the Law of Waters.

Consequently, until a formal declaration on the part of the Government, through the executive department or the Legislature, to the effect that the land in question is no longer needed for coast guard service, for public use or for special industries, they continue to be part of the public domain, not available for private appropriation or ownership.

Appellant next contends that he had acquired the parcel in question through acquisitive prescription, having possessed the same for over ten years. In answer, suffice it to say that land of the public domain is not subject to ordinary prescription. In the case of Insular Government vs. Aldecoa & Co., 19 Phil., 505 this Court said:

The occupation or material possession of any land formed upon the shore by accretion, without previous permission from the proper authorities, although the occupant may have held the same as owner for seventeen years and constructed a wharf on the land, is illegal and is a mere detainer, inasmuch as such land is outside

of the sphere of commerce; it pertains to the national domain; it is intended for public uses and for the benefit of those who live nearby.

We deem it unnecessary to discuss the other points raised in the appeal.

In view of the foregoing, the appealed decision is hereby affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.

G.R. No. L-61647 October 12, 1984

REPUBLIC OF THE PHILIPPINES (DIRECTOR OF LANDS), petitioner,

vs.

THE HON. COURT OF APPEALS, BENJAMIN TANCINCO, AZUCENA TANCINCO REYES, MARINA TANCINCO IMPERIAL and MARIO C. TANCINCO, respondents.

The Solicitor General for petitioner.

Martin B. Laurea for respondents.

GUTIERREZ, JR., J.:ñé+.£ªwph!1

This is a petition for certiorari to set aside the decision of the respondent Court of Appeals (now Intermediate Appellate Court) affirming the decision of the Court of First Instance of Bulacan, Fifth Judicial District, Branch VIII, which found that Lots 1 and 2 of Plan Psu-131892 are accretion to the land covered by Transfer Certificate of Title No. 89709 and ordered their registration in the names of the private respondents.

Respondents Benjamin Tancinco, Azucena Tancinco Reyes, Marina (should be "Maria") Tancinco Imperial and Mario C. Tancinco are registered owners of a parcel of land covered by Transfer Certificate of Title No. T-89709 situated at Barrio Ubihan, Meycauayan, Bulacan bordering on the Meycauayan and Bocaue rivers.

On June 24, 1973, the private respondents filed an application for the registration of three lots adjacent to their fishpond property and particularly described as follows: têñ.£îhqwâ£

Lot 1-Psu-131892

(Maria C. Tancinco)

A parcel of land (lot 1 as shown on plan Psu-131892), situated in the Barrio of Ubihan, Municipality of Meycauayan, Province of Bulacan. Bounded on the NE., along line 1-2, by Lot 3 of plan Psu-131892; on the SE., along lines 2-3-4, by Meycauayan River; on the S.W., along fines 4-5-6-7-8-9, by Bocaue River; on the NE., along line 9-10, by property of Joaquina Santiago; on the E., NE., and NW., along lines 10-11-12-1, by property of Mariano Tancinco (Lot 2, Psu-111877). ... containing an area of THIRTY THREE THOUSAND NINE HUNDRED THIRTY SEVEN (33,937) SQUARE METERS. ...

Lot 2-Psu-131892

(Maria C. Tancinco)

A parcel of land (Lot 2 as shown on plan Psu-131892), situated in the Barrio of Ubihan, Municipality of Meycauayan, Province of Bulacan. Bounded on the E., along line 1-2, by property of Rafael Singson; on the S., along line 2-3, by Meycauayan River; on the SW., along line 3-4, by Lot 3 of plan Psu-131892; and on the N., along line 4-1, by property of Mariano Tancinco (Lot 1, Psu-111877). ... containing an area of FIVE THOUSAND FOUR HUNDRED FIFTY THREE (5,453) SQUARE METERS. ...

Lot 3-Psu-131892

(Maria C. Tancinco)

A parcel of land (Lot 3 as shown on plan Psu-131892), situated in the Barrio of Ubihan, Municipality of Meycauayan, Province of Bulacan. Bounded on the NE., along line 1-2, by

property of Mariano Tancinco (Lot 1, Psu-111877); and along line 2-3, by Lot 2 of plan Psu-131892; on the S., along line 3-4, by Meycauayan River, on the SW., along line 4-5, by Lot 1 of plan Psu-131892; and along line 5-6 by property of Mariano Tancinco (Lot 2, Psu-111877), and on the NW., along line 6-1, by property of Joaquina Santiago. ... containing an area of ONE THOUSAND NINE HUNDRED EIGHTY FIVE (1,985) SQUARE METERS. ...

On April 5, 1974, Assistant Provincial Fiscal Amando C. Vicente, in representation of the Bureau of Lands filed a written opposition to the application for registration.

On March 6, 1975, the private respondents filed a partial withdrawal of the application for registration with respect to Lot 3 of Plan Psu-131892 in line with the recommendation of the Commissioner appointed by the Court.

On March 7, 1975, Lot 3 was ordered withdrawn from the application and trial proceeded only with respect to Lots 1 and 2 covered by Plan Psu-131892.

On June 26, 1976, the lower court rendered a decision granting the application on the finding that the lands in question are accretions to the private respondents' fishponds covered by Transfer Certificate of Title No. 89709. The dispositive portion of the decision reads: têñ.£îhqwâ£

WHEREFORE, it appearing that Lots 1 & 2 of plan Psu-131892 (Exh. H) are accretions to the land covered by Transfer Certificate of Title No. 89709 of the Register of Deeds of Bulacan, they belong to the owner of said property. The Court, therefore, orders the registration of lots 1 & 2 situated in the barrio of Ubihan, municipality of Meycauayan, province of Bulacan, and more particularly described in plan Psu-131892 (Exh. H) and their accompanying technical descriptions (Exhs. E, E-1) in favor of Benjamin Tancinco, married to Alma Fernandez and residing at 3662 Heatherdown, Toledo, Ohio 43614 U.S.A.; Azucena Tancinco Reyes, married to Alex Reyes, Jr., residing at 4th St., New Manila, Quezon City; Marina Tancinco Imperial, married to Juan Imperial, residing at Pasay Road, Dasmariñas Village, Makati, Rizal; and Mario C. Tancinco, married to Leticia Regidor, residing at 1616 Cypress St., Dasmariñas Village, Makati, Rizal, all of legal age, all Filipino citizens.

On July 30, 1976, the petitioner Republic appealed to the respondent Court of Appeals.

On August, 19, 1982, the respondent Court rendered a decision affirming in toto the decision of the lower court. The dispositive portion of the decision reads: têñ.£îhqwâ£

DAHIL DITO, ang hatol na iniakyat ay sinasangayunan at pinagtitibay sa kanyang kabuuan nang walang bayad.

The rule that the findings of fact of the trial court and the Court of Appeals are binding upon this Court admits of certain exceptions. Thus in Carolina Industries Inc. v. CMS Stock Brokerage, Inc. (97 SCRA 734) we held that this Court retains the power to review and rectify the findings of fact of said courts when (1) the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd, and impossible; (3) where there is grave abuse of discretion, (4) when the judgment is based on a misapprehension of facts; and (5) when the court, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee.

There are facts and circumstances in the record which render untenable the findings of the trial court and the Court of Appeals that the lands in question are accretions to the private respondents' fishponds.

The petitioner submits that there is no accretion to speak of under Article 457 of the New Civil Code because what actually happened is that the private respondents simply transferred their dikes further down the river bed of the Meycauayan River, and thus, if there is any accretion to speak of, it is man-made and artificial and not the result of the gradual and imperceptible sedimentation by the waters of the river.

On the other hand, the private respondents rely on the testimony of Mrs. Virginia Acuña to the effect that: têñ.£îhqwâ£

xxx xxx xxx

... when witness first saw the land, namely, Lots 1 & 2, they were already dry almost at the level of the Pilapil of the property of Dr. Tancinco, and that from the boundaries of the lots, for about two (2) arms length the land was still dry up to the edge of the river; that sometime in 1951, a new Pilapil was established on the boundaries of Lots 1 & 2 and soil from the old Pilapil was transferred to the new Pilapil and this was done sometime in 1951; that the new lots were then converted into fishpond, and water in this fishpond was two (2) meters deep on the side of the Pilapil facing the fishpond ... .

The private respondents submit that the foregoing evidence establishes the fact of accretion without human intervention because the transfer of the dike occurred after the accretion was complete.

We agree with the petitioner.

Article 457 of the New Civil Code provides: têñ.£îhqwâ£

To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters.

The above-quoted article requires the concurrence of three requisites before an accretion covered by this particular provision is said to have taken place. They are (1) that the deposit be gradual and imperceptible; (2) that it be made through the effects of the current of the water; and (3) that the land where accretion takes place is adjacent to the banks of rivers.

The requirement that the deposit should be due to the effect of the current of the river is indispensable. This excludes from Art. 457 of the New Civil Code all deposits caused by human intervention. Alluvion must be the exclusive work of nature. In the instant case, there is no evidence whatsoever to prove that the addition to the said property was made gradually through the effects of the current of the Meycauayan and Bocaue rivers. We agree with the observation of the Solicitor General that it is preposterous to believe that almost four (4) hectares of land came into being because of the effects of the Meycauayan and Bocaue rivers. The lone witness of the private respondents who happens to be their overseer and whose husband was first cousin of their father noticed the four hectare accretion to the twelve hectare fishpond only in 1939. The respondents claim that at this point in time, accretion had already taken place. If so, their witness was incompetent to testify to a gradual and imperceptible increase to their land in the years before 1939. However, the witness testified that in that year, she observed an increase in the area of the original fishpond which is now the land in question. If she was telling the truth, the accretion was sudden. However, there is evidence that the alleged alluvial deposits were artificial and man-made and not the exclusive result of the current of the Meycauayan and Bocaue rivers. The alleged alluvial deposits came into being not because of the sole effect of the current of the rivers but as a result of the transfer of the dike towards the river and encroaching upon it. The land sought to be registered is not even dry land cast imperceptibly and gradually by the river's current on the fishpond adjoining it. It is under two meters of water. The private respondents' own evidence shows that the water in the fishpond is two meters deep on the side of the pilapil facing the fishpond and only one meter deep on the side of the pilapil facing the river

The reason behind the law giving the riparian owner the right to any land or alluvion deposited by a river is to compensate him for the danger of loss that he suffers because of the location of his land. If estates bordering on rivers are exposed to floods and other evils produced by the destructive force of the waters and if by virtue of lawful provisions, said estates are subject to incumbrances and various kinds of easements, it is proper that the risk or danger which may prejudice the owners thereof should be compensated by the right of accretion. (Cortes v. City of Manila, 10 Phil. 567). Hence, the riparian owner does not acquire the additions to his land caused by special works expressly intended or designed to bring about accretion. When the private respondents transferred their dikes towards the river bed, the dikes were meant for reclamation purposes and not to protect their property from the destructive force of the waters of the river.

We agree with the submission of the Solicitor General that the testimony of the private respondents' lone witness to the effect that as early as 1939 there already existed such alleged alluvial deposits, deserves no merit. It should be noted that the lots in question were not included in the survey of their adjacent property conducted on May 10, 1940 and in the Cadastral Survey of the entire Municipality of Meycauayan conducted between the years 1958 to 1960. The alleged accretion was declared for taxation purposes only in 1972 or 33 years after it had supposedly permanently formed. The only valid conclusion therefore is that the said areas could not have been there in 1939. They existed only after the private respondents transferred their dikes towards the bed of the Meycauayan river in 1951. What private respondents claim as accretion is really an encroachment of a portion of the Meycauayan river by reclamation.

The lower court cannot validly order the registration of Lots 1 & 2 in the names of the private respondents. These lots were portions of the bed of the Meycauayan river and are therefore classified as property of the public domain under Article 420 paragraph 1 and Article 502, paragraph 1 of the Civil Code of the Philippines. They are not open to registration under the Land Registration Act. The adjudication of the lands in question as private property in the names of the private respondents is null and void.

WHEREFORE, the instant petition is GRANTED. The decision appealed from is hereby REVERSED and SET ASIDE. The private respondents are ordered to move back the dikes of their fishponds to their original location and return the disputed property to the river to which it belongs.

SO ORDERED.1äwphï1.ñët

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

G.R. No. 92161 March 18, 1991

SIMPLICIO BINALAY, PONCIANO GANNABAN, NICANOR MACUTAY, DOMINGO ROSALES, GREGORIO ARGONZA, EUSTAQUIO BAUA, FLORENTINO ROSALES, TEODORO MABBORANG, PATRICIO MABBORANG and FULGENCIO MORA, petitionersvs.GUILLERMO MANALO and COURT OF APPEALS, respondents.

Josefin De Alban Law Office for Petitioners.

FELICIANO, J.:p

The late Judge Taccad originally owned a parcel of land situated in Tumauini, Isabela having an estimated area of twenty (20) hectares. The western portion of this land bordering on the Cagayan River has an elevation lower than that of the eastern portion which borders on the national road. Through the years, the western portion would periodically go under the waters of the Cagayan River as those waters swelled with the coming of the rains. The submerged portion, however, would re-appear during the dry season from January to August. It would remain under water for the rest of the year, that is, from September to December during the rainy season.

The ownership of the landholding eventually moved from one person to another. On 9 May 1959, respondent Guillermo Manalo acquired 8.65 hectares thereof from Faustina Taccad, daughter of Judge Juan Taccad. The land sold was described in the Deed of Absolute Sale 1 as follows:

. . . a parcel of agricultural land in Balug, Tumauini, Isabela, containing an area of 8.6500 hectares, more or less; bounded on the North by Francisco Forto on the East by National Road; on South by Julian Tumolva and on the West by Cagayan River; declared for taxation under Tax Declaration No. 12681 in the name of Faustina Taccad, and assessed at P 750.00. . . .

Later in 1964, respondent Manalo purchased another 1.80 hectares from Gregorio Taguba who had earlier acquired the same from Judge Juan Taccad. The second purchase brought the total acquisition of respondent Manalo to 10.45 hectares. The second piece of property was more particularly described as follows:

. . . a piece of agricultural land consisting of tobacco land, and containing an area of 18,000 square meters, more or less, bounded on the North by Balug Creek; on the South, by Faustina Taccad (now Guillermo R. Manalo); on the East, by a Provincial Road; and on the West, by Cagayan River assessed at P 440.00, as tax Declaration No. 3152. . . . 2

During the cadastral survey conducted at Balug, Tumauini, Isabela on 21 October 1969, the two (2) parcels of land belonging to respondent Manalo were surveyed and consolidated into one lot, designated as Lot No. 307, Pls-964. Lot 307 which contains 4.6489 hectares includes: (a) the whole of the 1.80 hectares acquired from Gregorio Taguba; and (b) 2.8489

hectares out of the 8.65 hectares purchased from Faustina Taccad. As the survey was conducted on a rainy month, a portion of the land bought from Faustina Taccad then under water was left unsurveyed and was not included in Lot 307.

The Sketch Plan 3 submitted during the trial of this case and which was identified by respondent Manalo shows that the Cagayan River running from south to north, forks at a certain point to form two (2) branches—the western and the eastern branches—and then unites at the other end, further north, to form a narrow strip of land. The eastern branch of the river cuts through the land of respondent Manalo and is inundated with water only during the rainy season. The bed of the eastern branch is the submerged or the unsurveyed portion of the land belonging to respondent Manalo. For about eight (8) months of the year when the level of water at the point where the Cagayan River forks is at its ordinary depth, river water does not flow into the eastern branch. While this condition persists, the eastern bed is dry and is susceptible to cultivation.

Considering that water flowed through the eastern branch of the Cagayan River when the cadastral survey was conducted, the elongated strip of land formed by the western and the eastern branches of the Cagayan River looked very much like an island. This strip of land was surveyed on 12 December 1969. 4 It was found to have a total area of 22.7209 hectares and was designated as Lot 821 and Lot 822. The area of Lot 822 is 10.8122 hectares while Lot 821 has an area of 11.9087 hectares. Lot 821 is located directly opposite Lot 307 and is separated from the latter only by the eastern branch of the Cagayan River during the rainy season and, during the dry season, by the exposed, dry river bed, being a portion of the land bought from Faustina Taccad. Respondent Manalo claims that Lot 821 also belongs to him by way of accretion to the submerged portion of the property to which it is adjacent.

Petitioners who are in possession of Lot 821, upon the other hand, insist that they own Lot 821. They occupy the outer edges of Lot 821 along the river banks, i.e., the fertile portions on which they plant tobacco and other agricultural products. They also cultivate the western strip of the unsurveyed portion during summer. 5 This situation compelled respondent Manalo to file a case for forcible entry against petitioners on 20 May 1969. The case was dismissed by the Municipal Court of Tumauini, Isabela for failure of both parties to appear. On 15 December 1972, respondent Manalo again filed a case for forcible entry against petitioners. The latter case was similarly dismissed for lack of jurisdiction by the Municipal Court of Tumauini, Isabela.

On 24 July 1974, respondent Manalo filed a complaints 6 before the then Court of First Instance of Isabela, Branch 3 for quieting of title, possession and damages against petitioners. He alleged ownership of the two (2) parcels of land he bought separately from Faustina Taccad and Gregorio Taguba for which reason he prayed that judgment be entered ordering petitioners to vacate the western strip of the unsurveyed portion. Respondent Manalo likewise prayed that judgment be entered declaring him as owner of Lot 821 on which he had laid his claim during the survey.

Petitioners filed their answer denying the material allegations of the complaint. The case was then set for trial for failure of the parties to reach an amicable agreement or to enter into a stipulation of facts. 7 On 10 November 1982, the trial court rendered a decision with the following dispositive portion:

WHEREFORE, in the light of the foregoing premises, the Court renders judgment against the defendants and in favor of the plaintiff and orders:

1. That plaintiff, Guillermo Manalo, is declared the lawful owner of the land in question, Lot No. 821, Pls-964 of Tumauini Cadastre, and which is more particularly described in paragraph 2-b of the Complaint;

2. That the defendants are hereby ordered to vacate the premises of the land in question, Lot No. 821, Pls-964 of Tumauini Cadastre, and which is more particularly described in paragraph 2-b of the Complaint;

3. That the defendants are being restrained from entering the premises of the land in question, Lot No. 821, Pls-964 of Tumauini Cadastre, and which is more particularly described in paragraph 2-b of the Complaint; and

4. That there is no pronouncement as to attorney's fees and costs.

SO ORDERED. 8

Petitioners appealed to the Court of Appeals which, however, affirmed the decision of the trial court. They filed a motion for reconsideration, without success.

While petitioners insist that Lot 821 is part of an island surrounded by the two (2) branches of the Cagayan River, the Court of Appeals found otherwise. The Court of Appeals concurred with the finding of the trial court that Lot 821 cannot be considered separate and distinct from Lot 307 since the eastern branch of the Cagayan River substantially dries up for the most part of the year such that when this happens, Lot 821 becomes physically (i.e., by land) connected with the dried up bed owned by respondent Manalo. Both courts below in effect rejected the assertion of petitioners that the depression on the earth's surface which separates Lot 307 and Lot 821 is, during part of the year, the bed of the eastern branch of the Cagayan River.

It is a familiar rule that the findings of facts of the trial court are entitled to great respect, and that they carry even more weight when affirmed by the Court of Appeals. 9 This is in recognition of the peculiar advantage on the part of the trial court of being able to observe first-hand the deportment of the witnesses while testifying. Jurisprudence is likewise settled that the Court of Appeals is the final arbiter of questions of fact. 10 But whether a conclusion drawn from such findings of facts is correct, is a question of law cognizable by this Court. 11

In the instant case, the conclusion reached by both courts below apparently collides with their findings that periodically at the onset of and during the rainy season, river water flows through the eastern bed of the Cagayan River. The trial court held:

The Court believes that the land in controversy is of the nature and character of alluvion (Accretion), for it appears that during the dry season, the body of water separating the same land in controversy (Lot No. 821, Pls-964) and the two (2) parcels of land which the plaintiff purchased from Gregorio Taguba and Justina Taccad Cayaba becomes a marshy land and is only six (6) inches deep and twelve (12) meters in width at its widest in the northern tip (Exhs. "W", "W-l", "W-2", "W-3" and "W-4"), It has been held by our Supreme Court that "the owner of the riparian land which receives the gradual deposits of alluvion, does not have to make an express act of

possession. The law does not require it, and the deposit created by the current of the water becomes manifest" (Roxas vs. Tuazon, 6 Phil. 408). 12

The Court of Appeals adhered substantially to the conclusion reached by the trial court, thus:

As found by the trial court, the disputed property is not an island in the strict sense of the word since the eastern portion of the said property claimed by appellants to be part of the Cagayan River dries up during summer. Admittedly, it is the action of the heavy rains which comes during rainy season especially from September to November which increases the water level of the Cagayan river. As the river becomes swollen due to heavy rains, the lower portion of the said strip of land located at its southernmost point would be inundated with water. This is where the water of the Cagayan river gains its entry. Consequently, if the water level is high the whole strip of land would be under water.

In Government of the Philippine Islands vs. Colegio de San Jose, it was held that —

According to the foregoing definition of the words "ordinary" and "extra-ordinary," the highest depth of the waters of Laguna de Bay during the dry season is the ordinary one, and the highest depth they attain during the extra-ordinary one (sic); inasmuch as the former is the one which is regular, common, natural, which occurs always or most of the time during the year, while the latter is uncommon, transcends the general rule, order and measure, and goes beyond that which is the ordinary depth. If according to the definition given by Article 74 of the Law of Waters quoted above, the natural bed or basin of the lakes is the ground covered by their waters when at their highest ordinary depth, the natural bed or basin of Laguna de Bay is the ground covered by its waters when at their highest depth during the dry season, that is up to the northeastern boundary of the two parcels of land in question.

We find the foregoing ruling to be analogous to the case at bar. The highest ordinary level of the waters of the Cagayan River is that attained during the dry season which is confined only on the west side of Lot [821] and Lot [822]. This is the natural Cagayan river itself. The small residual of water between Lot [821] and 307 is part of the small stream already in existence when the whole of the late Judge Juan Taccad's property was still susceptible to cultivation and uneroded. 13

The Court is unable to agree with the Court of Appeals that Government of the Philippine Islands vs. Colegio de San Jose 14 is applicable to the present case. That case involved Laguna de Bay; since Laguna de Bay is a lake, the Court applied the legal provisions governing the ownership and use of lakes and their beds and shores, in order to determine the character and ownership of the disputed property. Specifically, the Court applied the definition of the natural bed or basin of lakes found in Article 74 of the Law of Waters of 3

August 1866. Upon the other hand, what is involved in the instant case is the eastern bed of the Cagayan River.

We believe and so hold that Article 70 of the Law of Waters of 3 August 1866 is the law applicable to the case at bar:

Art. 70. The natural bed or channel of a creek or river is the ground covered by its waters during the highest floods. (Emphasis supplied)

We note that Article 70 defines the natural bed or channel of a creek or river as the ground covered by its waters during the highest floods. The highest floods in the eastern branch of the Cagayan River occur with the annual coming of the rains as the river waters in their onward course cover the entire depressed portion. Though the eastern bed substantially dries up for the most part of the year (i.e., from January to August), we cannot ignore the periodical swelling of the waters ( i.e., from September to December) causing the eastern bed to be covered with flowing river waters.

The conclusion of this Court that the depressed portion is a river bed rests upon evidence of record. Firstly, respondent Manalo admitted in open court that the entire area he bought from Gregorio Taguba was included in Lot 307. 15 If the 1.80 hectares purchased from Gregorio Taguba was included in Lot 307, then the Cagayan River referred to as the western boundary in the Deed of Sale transferring the land from Gregorio Taguba to respondent Manalo as well as the Deed of Sale signed by Faustina Taccad, must refer to the dried up bed (during the dry months) or the eastern branch of the river (during the rainy months). In the Sketch Plan attached to the records of the case, Lot 307 is separated from the western branch of the Cagayan River by a large tract of land which includes not only Lot 821 but also what this Court characterizes as the eastern branch of the Cagayan River.

Secondly, the pictures identified by respondent Manalo during his direct examination depict the depressed portion as a river bed. The pictures, marked as Exhibits "W" to "W-4", were taken in July 1973 or at a time when the eastern bed becomes visible. 16 Thus, Exhibit "W-2" which according to respondent Manalo was taken facing the east and Exhibit "W-3" which was taken facing the west both show that the visible, dried up portion has a markedly lower elevation than Lot 307 and Lot 821. It has dike-like slopes on both sides connecting it to Lot 307 and Lot 821 that are vertical upward and very prominent. This topographic feature is compatible with the fact that a huge volume of water passes through the eastern bed regularly during the rainy season. In addition, petitioner Ponciano Gannaban testified that one had to go down what he called a "cliff" from the surveyed portion of the land of respondent Manalo to the depressed portion. The cliff, as related by petitioner Gannaban, has a height of eight (8) meters. 17

The records do not show when the Cagayan River began to carve its eastern channel on the surface of the earth. However, Exhibit "E" 18 for the prosecution which was the Declaration of Real Property standing in the name of Faustina Taccad indicates that the eastern bed already existed even before the sale to respondent Manalo. The words "old bed" enclosed in parentheses—perhaps written to make legitimate the claim of private ownership over the submerged portion—is an implied admission of the existence of the river bed. In the Declaration of Real Property made by respondent Manalo, the depressed portion assumed the name Rio Muerte de Cagayan. Indeed, the steep dike-like slopes on either side of the eastern bed could have been formed only after a prolonged period of time.

Now, then, pursuant to Article 420 of the Civil Code, respondent Manalo did not acquire private ownership of the bed of the eastern branch of the river even if it was included in the deeds of absolute sale executed by Gregorio Taguba and Faustina Taccad in his favor. These vendors could not have validly sold land that constituted property of public dominion. Article 420 of the Civil Code states:

The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth. (Emphasis supplied)

Although Article 420 speaks only of rivers and banks, "rivers" is a composite term which includes: (1) the running waters, (2) the bed, and (3) the banks. 19 Manresa, in commenting upon Article 339 of the Spanish Civil Code of 1889 from which Article 420 of the Philippine Civil Code was taken, stressed the public ownership of river beds:

La naturaleza especial de los rios, en punto a su disfrute general, hace que sea necesario considerar en su relacion de dominio algo mas que sus aguas corrientes. En efecto en todo rio es preciso distinguir 1. esta agua corriente; 2. el alveo o cauce, y 3. las riberas. Ahora bien: son estas dos ultimas cosas siempre de dominio publico, como las aguas?

Realmente no puede imaginarse un rio sin alveo y sin ribera; de suerte que al decir el Codigo civil que los rios son de dominio publico, parece que debe ir implicito el dominio publico de aquellos tres elementos que integran el rio. Por otra parte, en cuanto a los alveos o cauces tenemos la declaracion del art. 407, num 1, donde dice: son de dominion publico . . . los rios y sus cauces naturales; declaracion que concuerda con lo que dispone el art. 34 de la ley de [Aguas], segun el cual, son de dominion publico: 1. los alveos o cauces de los arroyos que no se hallen comprendidos en el art. 33, y 2. los alveos o cauces naturales de los rios en la extension que cubran sus aguas en las mayores crecidas ordinarias. 20 (Emphasis supplied)

The claim of ownership of respondent Manalo over the submerged portion is bereft of basis even if it were alleged and proved that the Cagayan River first began to encroach on his property after the purchase from Gregorio Taguba and Faustina Taccad. Article 462 of the Civil Code would then apply divesting, by operation of law, respondent Manalo of private ownership over the new river bed. The intrusion of the eastern branch of the Cagayan River into his landholding obviously prejudiced respondent Manalo but this is a common occurrence since estates bordering on rivers are exposed to floods and other evils produced by the destructive force of the waters. That loss is compensated by, inter alia, the right of accretion acknowledged by Article 457 of the Civil Code. 21 It so happened that instead of increasing the size of Lot 307, the eastern branch of the Cagayan River had carved a channel on it.

We turn next to the issue of accretion. After examining the records of the case, the Court considers that there was no evidence to prove that Lot 821 is an increment to Lot 307 and the bed of the eastern branch of the river. Accretion as a mode of acquiring property under Article 457 of the Civil Code requires the concurrence of three (3) requisites: (a) that the deposition of soil or sediment be gradual and imperceptible; (b) that it be the result of the action of the waters of the river (or sea); and (c) that the land where accretion takes place is adjacent to the banks of rivers (or the sea coast). 22 The Court notes that the parcels of land bought by respondent Manalo border on the eastern branch of the Cagayan River. Any accretion formed by this eastern branch which respondent Manalo may claim must be deposited on or attached to Lot 307. As it is, the claimed accretion (Lot 821) lies on the bank of the river not adjacent to Lot 307 but directly opposite Lot 307 across the river.

Assuming (arguendo only) that the Cagayan River referred to in the Deeds of Sale transferring ownership of the land to respondent Manalo is the western branch, the decision of the Court of Appeals and of the trial court are bare of factual findings to the effect that the land purchased by respondent Manalo received alluvium from the action of the aver in a slow and gradual manner. On the contrary, the decision of the lower court made mention of several floods that caused the land to reappear making it susceptible to cultivation. A sudden and forceful action like that of flooding is hardly the alluvial process contemplated under Article 457 of the Civil Code. It is the slow and hardly perceptible accumulation of soil deposits that the law grants to the riparian owner.

Besides, it is important to note that Lot 821 has an area of 11.91 hectares. Lot 821 is the northern portion of the strip of land having a total area of 22.72 hectares. We find it difficult to suppose that such a sizable area as Lot 821 resulted from slow accretion to another lot of almost equal size. The total landholding purchased by respondent Manalo is 10.45 hectares (8.65 hectares from Faustina Taccad and 1.80 hectares from Gregorio Taguba in 1959 and 1964, respectively), in fact even smaller than Lot 821 which he claims by way of accretion. The cadastral survey showing that Lot 821 has an area of 11.91 hectares was conducted in 1969. If respondent Manalo's contention were accepted, it would mean that in a span of only ten (10) years, he had more than doubled his landholding by what the Court of Appeals and the trial court considered as accretion. As already noted, there are steep vertical dike-like slopes separating the depressed portion or river bed and Lot 821 and Lot 307. This topography of the land, among other things, precludes a reasonable conclusion that Lot 821 is an increment to the depressed portion by reason of the slow and constant action of the waters of either the western or the eastern branches of the Cagayan River.

We turn finally to the issue of ownership of Lot 821. Respondent Manalo's claim over Lot 821 rests on accretion coupled with alleged prior possession. He alleged that the parcels of land he bought separately from Gregorio Taguba and Faustina Taccad were formerly owned by Judge Juan Taccad who was in possession thereof through his (Judge Taccad's) tenants. When ownership was transferred to him, respondent Manalo took over the cultivation of the property and had it declared for taxation purposes in his name. When petitioners forcibly entered into his property, he twice instituted the appropriate action before the Municipal Trial Court of Tumauini, Isabela. Against respondent Manalo's allegation of prior possession, petitioners presented tax declarations standing in their respective names. They claimed lawful, peaceful and adverse possession of Lot 821 since 1955.

If respondent Manalo had proved prior possession, it was limited physically to Lot 307 and the depressed portion or the eastern river bed. The testimony of Dominga Malana who was a tenant for Justina Taccad did not indicate that she was also cultivating Lot 821. In fact, the

complaints for forcible entry lodged before the Municipal Trial Court of Tumauini, Isabela pertained only to Lot 307 and the depressed portion or river bed and not to Lot 821. In the same manner, the tax declarations presented by petitioners conflict with those of respondent Manalo. Under Article 477 of the Civil Code, the plaintiff in an action for quieting of title must at least have equitable title to or interest in the real property which is the subject matter of the action. The evidence of record on this point is less than satisfactory and the Court feels compelled to refrain from determining the ownership and possession of Lot 821, adjudging neither petitioners nor respondent Manalo as owner(s) thereof.

WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-GR CV No. 04892 are hereby SET ASIDE. Respondent Manalo is hereby declared the owner of Lot 307. The regularly submerged portion or the eastern bed of the Cagayan River is hereby DECLARED to be property of public dominion. The ownership of Lot 821 shall be determined in an appropriate action that may be instituted by the interested parties inter se. No pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

FIRST DIVISION

G.R. No. 108065 July 6, 1993

SPOUSES FELIX BAES AND RAFAELA BAES, petitioners, vs.THE COURT OF APPEALS AND REPUBLIC OF THE PHILIPPINES, respondents.

Lorenzo F. Miravite for petitioners.

The Solicitor General for respondents.

CRUZ, J.:

This is an appeal by way of certiorari from the decision of the respondent Court of Appeals which affirmed in totothe ruling of the trial court in Civil Case No. 0460-P, the dispositive portion of which read thus:

WHEREFORE, judgment is hereby rendered declaring null and void TCT Nos. 14405, 29592, 29593, 29594, 29595, and TCT No. 29593's derivative titles TCT Nos. 124725, 124726, 124727 and 124729, and ordering the Register of Deeds for Pasay City to cancel them and issue new ones in their stead in the name of the plaintiff after segregating from TCT No. 29593 452 sq. m., the actual area of Lot 2958-C (covered by cancelled TCT No. 11043) belonging to defendant Felix Baes. The counterclaim is hereby dismissed.

Let a copy of this Decision be furnished the Register of Deeds for Pasay City.

SO ORDERED.

The controversy began in 1962, when the government dug a canal on a private parcel of land, identified as Lot 2958 and covering an area of P33,902 sq.m., to streamline the Tripa de Gallina creek.

This lot was later acquired by Felix Baes, who registered it in his name under TCT No. 10990 and then had it subdivided into three lots, namely: (a) Lot 2958-A, with an area of 28,889 sq.m.; (b) Lot 2958-B, with an area of 3,588 sq.m.; and (c) Lot 2958-C, with an area of 452 sq.m., covered by TCT Nos. 11041, 11042 and 11043, respectively.

In exchange for Lot 2958-B, which was totally occupied by the canal, the government gave Baes a lot with exactly the same area as Lot 2958-B through a Deed of Exchange of Real Property dated June 20, 1970. 1 The property, which was near but not contiguous to Lot 2956-C, was denominated as Lot 3271-A and later registered in the name of Felix Baes under TCT No. 24300. The soil displaced by the canal was used to fill up the old bed of the creek.

Meanwhile, Baes had Lot 2958-C and a portion of Lot 2958-A designated as Lot 1, Blk., 4, resurveyed and subdivided. On January 12, 1968, he submitted a petition for the approval of his resurvey and subdivision plans, claiming that after the said lots were plotted by a competent surveyor, it was found that there were errors in respect of their bearings and distances.

The resurvey-subdivision plan was approved by the Court of First Instance of Pasay City in an order dated January 15, 1968. 2

As a result, the old TCTs covering the said lots were canceled and new ones were issued, to wit: (a) Lot 1-A, Blk. 4, with 672 sq.m., under TCT No. T-14404; (b) Lot 1-B, with 826 sq.m., representing the increase in area after the resurvey, under TCT No. T-14405; (c) Lot 2958-C-1, with 452 sq.m., under TCT No. T-14406; and (d) Lot 2958-C-2, with 2,770 sq.m. representing the increase after resurvey, under TCT No. T-14407.

Lots 2958-C-1 and 2958-C-2 were later consolidated and this time further subdivided into four (4) lots, namely, Lot 1, with an area of 147 sq.m.; Lot 2, with an area of 950 sq.m.; Lot 3, with an area of 257 sq.m.; and Lot 4, with an area of 1,868 sq.m., which were respectively issued TCT Nos. 29592, 29593, 29594, and 29595.

In 1978, the Republic of the Philippines discovered that Lot 1-B (with TCT No. 14405 and an area of 826 sq.m.), on which the petitioners had erected an apartment building, covered Lot 3611 of the Pasay Cadastre, which is a filled-up portion of the Tripa de Gallina creek. Moreover, Lot 2958-C (covered by TCT Nos. 29592 to 29595, with an increased area of 2,770 after resurvey and subdivision) had been unlawfully enlarged.

On November 17, 1982, it filed a petition for cancellation of TCT Nos. 14405 and 29592 to 29595. 3

Baes did not object in his answer to the cancellation of TCT Nos. 29592, 29594 and 29595 and was notable to prove during the trial that the government utilized a portion of Lot 2 under, TCT No. 29593. The trial court therefore decreed (correctly) that the original Lot 2958-C (with an area of 452 sq.m.) be reverted to its status before the resurvey-subdivision of Lot 2958-C.

The only remaining dispute relates to Lot 1-B (TCT No. 14405), which the petitioners, relying on Article 461 of the Civil Code, are claiming as their own. The government rejects this claim and avers that the petitioners had already been fully compensated for it on June 20, 1970 when they agreed to exchange their Lot 2958-B with Lot 3271-A belonging to the government.

Article 461 of the Civil Code states:

River beds which are abandoned through the natural change in the course of the waters ipso factobelong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the land adjoining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed. (Emphasis supplied)

A portion of the Tripa de Gallina creek was diverted to a man-made canal which totally occupied Lot 2958-B (with an area of 3,588 sq.m.) belonging to Felix Baes. Thus, the petitioners claim that they became the owners of the old bed (which was eventually filled up by soil excavated from Lot 2958-B) by virtue of Article 461.

The petitioners rely heavily on Dr. Arturo M. Tolentino's interpretation of this Article, to wit:

This article (461) refers to a natural change in the course of a stream. If the change of the course is due to works constructed by concessioners authorized by the government, the concession may grant the abandoned river bed to the concessioners. If there is no such grant, then, by analogy, the abandoned river bed will belong to the owners of the land covered by the waters, as provided in this article, without prejudice to a superior right of third persons with sufficient title. (Citing 3 Manresa 251-252; 2 Navarro Amandi, 100-101; 3 Sanchez Roman 148)

We agree.

If the riparian owner is entitled to compensation for the damage to or loss of his property due to natural causes, there is all the more reason to compensate him when the change in the course of the river is effected through artificial means. The loss to the petitioners of the land covered by the canal was the result of a deliberate act on the part of the government when it sought to improve the flow of the Tripa de Gallina creek. It was therefore obligated to compensate the Baeses for their loss.

We find, however, that the petitioners have already been so compensated. Felix Baes was given Lot 3271-A in exchange for the affected Lot 2958-B through the Deed of Exchange of Real Property dated June 20, 1970. This was a fair exchange because the two lots were of the same area and value and the agreement was freely entered into by the parties. The petitioners cannot now claim additional compensation because, as correctly observed by the Solicitor General,

. . . to allow petitioners to acquire ownership of the dried-up portion of the creek would be a clear case of double compensation and unjust enrichment at the expense of the state.

The exchange of lots between the petitioners and the Republic was the result of voluntary negotiations. If these had failed, the government could still have taken Lot 2958-B under the power of eminent domain, upon payment of just compensation, as the land was needed for a public purpose.

WHEREFORE, the petition is DENIED, with costs against the petitioners. It is so ordered.

Griño-Aquino, Bellosillo and Quiason, JJ., concur.

SECOND DIVISION

[G.R. No. 98045. June 26, 1996]

DESAMPARADO VDA. DE NAZARENO and LETICIA NAZARENO TAPIA, petitioners, vs. THE COURT OF APPEALS, MR. & MRS. JOSE SALASALAN, MR. & MRS. LEO RABAYA, AVELINO LABIS, HON. ROBERTO G. HILARIO, ROLLEO I. IGNACIO, ALBERTO M. GILLERA and HON. ABELARDO G. PALAD, JR., in their official and/or private capacities, respondents.

SYLLABUS

1. CIVIL LAW; OWNERSHIP; RIGHTS OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY; ARTICLE 457; REQUISITES.- In the case of Meneses vs. CA, this Court held that accretion, as a mode of acquiring property under Art. 457 of the Civil Code, requires the concurrence of these requisites: (1) that the deposition of soil or sediment be gradual and imperceptible; (2) that it be the result of the action of the waters of the river (or sea); and (3) that the land where accretion takes place is adjacent to the banks of rivers (or the sea coast). These are called the rules on alluvion which if present in a case, give to the owners of lands adjoining the banks of rivers or streams any accretion gradually received from the effects of the current of waters.

2. ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR.- Where the accretion was formed by the dumping of boulders, soil and other filling materials on portions of the Balacanas Creek and the Cagayan River bounding petitioner's land, it cannot be claimed that the accumulation was gradual and imperceptible, resulting from the action of the waters or the current of the creek and the river. In Hilario vs. City of Manila, this Court held that the word “current” indicates the participation of the body of water in the ebb and flow of waters due to high and low tide. Not having met the first and second requirements of the rules of alluvion, petitioners cannot claim the rights of a riparian owner.

3. ID.; ID.; ID.; ID.; ID.; THAT DEPOSIT IS DUE TO THE CURRENT OF THE RIVER, MANDATORY.- In Republic vs. CA, this Court ruled that the requirement that the deposit should be due to the effect of the current of the river is indispensable. This excludes from Art. 457 of the Civil Code all deposits caused by human intervention. Putting it differently, alluvion must be the exclusive work of nature. Thus, in Tiongco vs. Director of Lands, et al., where the land was not formed solely by the natural effect of the water current of the river bordering said land but is also the consequence of the direct and deliberate intervention of man, it was deemed a man-

made accretion and, as such, part of the public domain. In the case at bar, the subject land was the direct result of the dumping of sawdust by the Sun Valley Lumber Co. consequent to its sawmill operations.

4. ID.; PUBLIC LANDS; FINDINGS AS SUCH BY THE BUREAU OF LANDS, RESPECTED.- The mere filing of the Miscellaneous Sales Application constituted an admission that the land being applied for was public land, having been the subject of a Survey Plan wherein said land was described as an orchard. Furthermore, the Bureau of Lands classified the subject land as an accretion area which was formed by deposits of sawdust in the Balacanas Creek and the Cagayan river, in accordance with the ocular inspection conducted by the Bureau of Lands. This Court has often enough held that findings of administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality. Again, when said factual findings are affirmed by the Court of Appeals, the same are conclusive on the parties and not reviewable by this Court.

5. ID.; PUBLIC LAND LAW; JURISDICTION OVER PUBLIC LANDS.- Having determined that the subject land is public land, a fortiori, the Bureau of Lands, as well as the Office of the Secretary of Agriculture and Natural Resources have jurisdiction over the same in accordance with the Public Land Law. Under Sections 3 and 4 thereof, the Director of Lands has jurisdiction, authority and control over public lands. Here respondent Palad as Director of Lands, is authorized to exercise executive control over any form of concession, disposition and management of the lands of the public domain. He may issue decisions and orders as he may see fit under the circumstances as long as they are based on the findings of fact. In the case of Calibo vs. Ballesteros, this Court held that where, in the disposition of public lands, the Director of Lands bases his decision on the evidence thus presented, he clearly acts within his jurisdiction, and if he errs in appraising the evidence, the error is one of judgment, but not an act of grave abuse of discretion annullable by certiorari.

6. ADMINISTRATIVE LAW; ADMINISTRATIVE REMEDIES; EXHAUSTED IN CASE AT BAR.- The administrative remedies have been exhausted. Petitioners could not have intended to appeal to respondent Ignacio as an Officer-In-Charge of the Bureau of Lands. The decision being appealed from was the decision of respondent Hilario who was the Regional Director of the Bureau of Lands. Said decision was made "for and by authority of the Director of Lands." It would be incongruous to appeal the decision of the Regional Director of the Bureau of Lands acting for the Director of the Bureau of Lands to an Officer-In-Charge of the Bureau of Lands. In any case, respondent Ignacio's official designation was "Undersecretary of the Department of Agriculture and Natural Resources." He was only an "Officer-In-Charge" of the Bureau of Lands. When he acted on the late Antonio Nazareno's motion for reconsideration by affirming or adopting respondent Hilario's decision, he was acting on said motion as an Undersecretary on behalf of the Secretary of the Department. In the case of Hamoy vs. Secretary of Agriculture and Natural Resources, this Court held that the Undersecretary of Agriculture and Natural Resources may modify, adopt, or set aside the orders or decisions of the Director of Lands with respect to questions involving public lands under the administration and control of the Bureau of Lands and the Department of Agriculture and Natural Resources. He cannot, therefore, be said to have acted beyond the bounds of his jurisdiction under Sections 3, 4 and 5 of Commonwealth Act No. 141.

APPEARANCES OF COUNSEL

Manolo L. Tagarda, Sr. for petitioners.Arturo R. Legaspi for private respondents.

D E C I S I O N

ROMERO, J.:

Petitioners Desamparado Vda. de Nazareno and Leticia Nazareno Tapia challenge the decision of the Court of Appeals which affirmed the dismissal of petitioners' complaint by the Regional Trial Court of Misamis Oriental, Branch 22. The complaint was for annulment of the verification, report and recommendation, decision and order of the Bureau of Lands regarding a parcel of public land.

The only issue involved in this petition is whether or not petitioners exhausted administrative remedies before having recourse to the courts.

The subject of this controversy is a parcel of land situated in Telegrapo, Puntod, Cagayan de Oro City. Said land was formed as a result of sawdust dumped into the dried-up Balacanas Creek and along the banks of the Cagayan river.

Sometime in 1979, private respondents Jose Salasalan and Leo Rabaya leased the subject lots on which their houses stood from one Antonio Nazareno, petitioners' predecessor-in-interest. In the latter part of 1982, private respondents allegedly stopped paying rentals. As a result, Antonio Nazareno and petitioners filed a case for ejectment with the Municipal Trial Court of Cagayan de Oro City, Branch 4. A decision was rendered against private respondents, which decision was affirmed by the Regional Trial Court of Misamis Oriental, Branch 20.

The case was remanded to the municipal trial court for execution of judgment after the same became final and executory. Private respondents filed a case for annulment of judgment before the Regional Trial Court of Misamis Oriental, Branch 24 which dismissed the same. Antonio Nazareno and petitioners again moved for execution of judgment but private respondents filed another case for certiorari with prayer for restraining order and/or writ of preliminary injunction with the Regional Trial Court of Misamis Oriental, Branch 25 which was likewise dismissed. The decision of the lower court was finally enforced with the private respondents being ejected from portions of the subject lots they occupied.

Before he died, Antonio Nazareno caused the approval by the Bureau of Lands of the survey plan designated as Plan Csd-106-00571 with a view to perfecting his title over the accretion area being claimed by him. Before the approved survey plan could be released to the applicant, however, it was protested by private respondents before the Bureau of Lands.

In compliance with the order of respondent District Land Officer Alberto M. Gillera, respondent Land Investigator Avelino G. Labis conducted an investigation and rendered a report to the Regional Director recommending that Survey Plan No. MSI-10-06-000571-D (equivalent to Lot No. 36302, Cad. 237) in the name of Antonio Nazareno, be cancelled and that private respondents be directed to file appropriate public land applications.

Based on said report, respondent Regional Director of the Bureau of Lands Roberto Hilario rendered a decision ordering the amendment of the survey plan in the name of Antonio Nazareno by segregating therefrom the areas occupied by the private respondents who, if qualified, may file public land applications covering their respective portions.

Antonio Nazareno filed a motion for reconsideration with respondent Rolleo Ignacio, Undersecretary of the Department of Natural Resources and Officer-in-Charge of the Bureau of Lands who denied the motion. Respondent Director of Lands Abelardo Palad then ordered him to vacate the portions adjudicated to private respondents and remove whatever improvements they have introduced thereon. He also ordered that private respondents be placed in possession thereof.

Upon the denial of the late Antonio Nazareno's motion for reconsideration, petitioners Desamparado Vda. de Nazareno and Leticia Tapia Nazareno, filed a case before the RTC, Branch 22 for annulment of the following: order of investigation by respondent Gillera, report and recommendation by respondent Labis, decision by respondent Hilario, order by respondent Ignacio affirming the decision of respondent Hilario and order of execution by respondent Palad. The RTC dismissed the complaint for failure to exhaust administrative remedies which resulted in the finality of the administrative decision of the Bureau of Lands.

On appeal, the Court of Appeals affirmed the decision of the RTC dismissing the complaint. Applying Section 4 of C.A. No. 141, as amended, it contended that the approval of the survey plan belongs exclusively to the Director of Lands. Hence, factual findings made by the Metropolitan Trial Court respecting the subject land cannot be held to be controlling as the preparation and approval of said survey plans belong to the Director of Lands and the same shall be conclusive when approved by the Secretary of Agriculture and Natural Resources.[1]

Furthermore, the appellate court contended that the motion for reconsideration filed by Antonio Nazareno cannot be considered as an appeal to the Office of the Secretary of Agriculture and Natural Resources, as mandated by C.A. No. 141 inasmuch as the same had been acted upon by respondent Undersecretary Ignacio in his capacity as Officer-in-Charge of the Bureau of Lands and not as Undersecretary acting for the Secretary of Agriculture and Natural Resources. For the failure of Antonio Nazareno to appeal to the Secretary of Agriculture and Natural Resources, the present case does not fall within the exception to the doctrine of exhaustion of administrative remedies. It also held that there was no showing of oppressiveness in the manner in which the orders were issued and executed.

Hence, this petition.

Petitioners assign the following errors:

I. PUBLIC RESPONDENT COURT OF APPEALS IN A WHIMSICAL, ARBITRARY AND CAPRICIOUS MANNER AFFIRMED THE DECISION OF THE LOWER COURT WHICH IS CONTRARY TO THE PREVAILING FACTS AND THE LAW ON THE MATTER;

II. PUBLIC RESPONDENT COURT OF APPEALS IN A WHIMSICAL, ARBITRARY AND CAPRICIOUS MANNER AFFIRMED THE DECISION OF THE LOWER COURT DISMISSING THE ORIGINAL CASE WHICH FAILED TO CONSIDER THAT THE EXECUTION ORDER OF PUBLIC RESPONDENT ABELARDO G. PALAD, JR., DIRECTOR OF LANDS, MANILA, PRACTICALLY CHANGED THE DECISION OF PUBLIC RESPONDENT ROBERTO HILARIO, REGIONAL DIRECTOR, BUREAU OF LANDS, REGION 10, THUS MAKING THE CASE PROPER SUBJECT FOR ANNULMENT WELL WITHIN THE JURISDICTION OF THE LOWER COURT.

The resolution of the above issues, however, hinges on the question of whether or not the subject land is public land. Petitioners claim that the subject land is private land being an accretion to his titled property, applying Article 457 of the Civil Code which provides:

"To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters."

In the case of Meneses v. CA,[2] this Court held that accretion, as a mode of acquiring property under Art. 457 of the Civil Code, requires the concurrence of these requisites: (1) that the deposition of soil or sediment be gradual and imperceptible; (2) that it be the result of the action of the waters of the river (or sea); and (3) that the land where accretion takes

place is adjacent to the banks or rivers (or the sea coast). These are called the rules on alluvion which if present in a case, give to the owners of lands adjoining the banks of rivers or streams any accretion gradually received from the effects of the current of waters.

For petitioners to insist on the application of these rules on alluvion to their case, the above-mentioned requisites must be present. However, they admit that the accretion was formed by the dumping of boulders, soil and other filling materials on portions of the Balacanas Creek and the Cagayan River bounding their land.[3] It cannot be claimed, therefore, that the accumulation of such boulders, soil and other filling materials was gradual and imperceptible, resulting from the action of the waters or the current of the Balacanas Creek and the Cagayan River. In Hilario v. City of Manila,[4] this Court held that the word "current" indicates the participation of the body of water in the ebb and flow of waters due to high and low tide. Petitioners' submission not having met the first and second requirements of the rules on alluvion, they cannot claim the rights of a riparian owner.

In any case, this court agrees with private respondents that petitioners are estopped from denying the public character of the subject land, as well as the jurisdiction of the Bureau of Lands when the late Antonio Nazareno filed his Miscellaneous Sales Application MSA (G-6) 571.[5] The mere filing of said Application constituted an admission that the land being applied for was public land, having been the subject of Survey Plan No. MSI-10-06-000571-D (Equivalent to Lot No. 36302, Cad-237) which was conducted as a consequence of Antonio Nazareno's Miscellaneous Sales Application wherein said land was described as an orchard. Said description by Antonio Nazareno was, however, controverted by respondent Labis in his investigation report to respondent Hilario based on the findings of his ocular inspection that said land actually covers a dry portion of Balacanas Creek and a swampy portion of Cagayan River. The investigation report also states that except for the swampy portion which is fully planted to nipa palms, the whole area is fully occupied by a part of a big concrete bodega of petitioners and several residential houses made of light materials, including those of private respondents which were erected by themselves sometime in the early part of 1978.[6]

Furthermore, the Bureau of Lands classified the subject land as an accretion area which was formed by deposits of sawdust in the Balacanas Creek and the Cagayan river, in accordance with the ocular inspection conducted by the Bureau of Lands.[7] This Court has often enough held that findings of administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality.[8] Again, when said factual findings are affirmed by the Court of Appeals, the same are conclusive on the parties and not reviewable by this Court.[9]

It is this Court's irresistible conclusion, therefore, that the accretion was man-made or artificial. In Republic v. CA,[10] this Court ruled that the requirement that the deposit should be due to the effect of the current of the river is indispensable. This excludes from Art. 457 of the Civil Code all deposits caused by human intervention. Putting it differently, alluvion must be the exclusive work of nature. Thus, in Tiongco v. Director of Lands, et al.,[11] where the land was not formed solely by the natural effect of the water current of the river bordering said land but is also the consequence of the direct and deliberate intervention of man, it was deemed a man-made accretion and, as such, part of the public domain.

In the case at bar, the subject land was the direct result of the dumping of sawdust by the Sun Valley Lumber Co. consequent to its sawmill operations.[12] Even if this Court were to take into consideration petitioners' submission that the accretion site was the result of the late Antonio Nazareno's labor consisting in the dumping of boulders, soil and other filling materials into the Balacanas Creek and Cagayan River bounding his land,[13] the same would still be part of the public domain.

Having determined that the subject land is public land, a fortiori, the Bureau of Lands, as well as the Office of the Secretary of Agriculture and Natural Resources have Jurisdiction over the same in accordance with the Public Land Law. Accordingly, the court a quo dismissed petitioners' complaint for non-exhaustion of administrative remedies which ruling the Court of Appeals affirmed.

However, this Court agrees with petitioners that administrative remedies have been exhausted. Petitioners could not have intended to appeal to respondent Ignacio as an Officer-in-Charge of the Bureau of Lands. The decision being appealed from was the decision of respondent Hilario who was the Regional Director of The Bureau of Lands. Said decision was made "for and by authority of the Director of Lands."[14] It would be incongruous to appeal the decision of the Regional Director of the Bureau of Lands acting for the Director of the Bureau of Lands to an Officer-In-Charge of the Bureau of Lands.

In any case, respondent Rolleo Ignacio's official designation was "Undersecretary of the Department of Agriculture and Natural Resources." He was only an "Officer-In-Charge" of the Bureau of Lands. When he acted on the late Antonio Nazareno's motion for reconsideration by affirming or adopting respondent's Hilario's decision, he was acting on said motion as an Undersecretary on behalf of the Secretary of the Department. In the case of Hamoy v. Secretary of Agriculture and Natural Resources,[15] This Court held that the Undersecretary of Agriculture and Natural Resources may modify, adopt, or set aside the orders or decisions of the Director of Lands with respect to questions involving public lands under the administration and control of the Bureau of Lands and the Department of Agriculture and Natural Resources. He cannot therefore, be said to have acted beyond the bounds of his jurisdiction under Sections 3, 4 and 5 of Commonwealth Act No. 141.[16]

As borne out by the administrative findings, the controverted land is public land, being an artificial accretion of sawdust. As such, the Director of Lands has jurisdiction, authority and control over the same, as mandated under Sections 3 and 4 of the Public Land Law (C.A. No. 141) which states, thus:

"Sec. 3. The Secretary of Agriculture and Natural Resources shall be the exclusive officer charged with carrying out the provisions of this Act through the Director of Lands who shall act under his immediate control.

Sec. 4. Subject to said control, the Director of Lands shall have direct executive control of the survey, classification, lease, sale or any other form of concession or disposition and management of the lands of the public domain, and his decisions as to questions of fact shall be conclusive when approved by the Secretary of Agriculture and Natural Resources."

In connection with the second issue, petitioners ascribe whim, arbitrariness or capriciousness in the execution order of public respondent Abelardo G. Palad, the Director of Lands. This Court finds otherwise since said decision was based on the conclusive finding that the subject land was public land. Thus, this Court agrees with the Court of Appeals that the Director of Lands acted within his rights when he issued the assailed execution order, as mandated by the aforecited provisions.

Petitioners' allegation that respondent Palad's execution order directing them to vacate the subject land practically changed respondent Hilario's decision is baseless. It is incorrect for petitioners to assume that respondent Palad awarded portions of the subject land to private respondents Salasalans and Rayabas as they had not yet been issued patents or titles over the subject land. The execution order merely directed the segregation of petitioners' titled lot from the subject land which was actually being occupied by private respondents

before they were ejected from it. Based on the finding that private respondents were actually in possession or were actually occupying the subject land instead of petitioners, respondent Palad, being the Director of Lands and in the exercise of this administrative discretion, directed petitioners to vacate the subject land on the ground that private respondents have a preferential right, being the occupants thereof.

While private respondents may not have filed their application over the land occupied by them, they nevertheless filed their protest or opposition to petitioners' Miscellaneous Sales Application, the same being preparatory to the filing of an application as they were in fact directed to do so. In any case, respondent Palad's execution order merely implements respondent Hilario's order. It should be noted that petitioners' own application still has to be given due course.[17]

As Director of lands, respondent Palad is authorized to exercise executive control over any form of concession, disposition and management of the lands of the public domain.[18] He may issue decisions and orders as he may see fit under the circumstances as long as they are based on the findings of fact.

In the case of Calibo v. Ballesteros,[19] this Court held that where, in the disposition of public lands, the Director of Lands bases his decision on the evidence thus presented, he clearly acts within his jurisdiction, and if he errs in appraising the evidence, the error is one of judgment, but not an act or grave abuse of discretion annullable by certiorari. Thus, except for the issue of non-exhaustion of administrative remedies, this Court finds no reversible error nor grave abuse of discretion in the decision of the Court of Appeals.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.