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Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-28021 December 15, 1977

JULIAN SANTULAN substituted by his children named PATROCINIO, ADORACION, ARTURO, CONSTANCIA, and PEPITA, all surnamed SANTULAN and minor grandchildren, JOCELYN, ROSAURO and ROBERTO, all surnamed SANTULAN assisted by their guardian ad litem, PATROCINIO SANTULAN petitioners-appellants,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF AGRICULTURE AND NATURAL RESOURCES, THE DIRECTOR OF LANDS, and ANTONIO LUSIN, substituted by his Heirs named TEODOSIA BALANZA (widow) and Children LEOPOLDO, ARMANDO. ALFONSO, EMILIANO, MAGDALENA, ERLINDA and ESTRELLA (ESTER), all surnamed LUSIN, and Heirs of CAROLINA LUSIN-LUCERO named MANOLITO LUCERO and MARIO LUCERO, respondents-appellees.

Isidoro Crisostomo for appellants Heirs of Julian Santulan.

Romulo C. Felizmeña for appellees Heirs of Antonio Lusin.

Solicitor General Arturo A. Alafriz Assistant Solicitor General Esmeraldo Umali and Solicitor Conrado T. Limcaoco for The Executive Secretary, etc.

AQUINO, J.

This case is about the lease of a parcel of foreshore land of the public domain with an area of about four and one-half hectares located at Barrio Kaingin, Kawit, Cavite abutting on Bacoor Bay and the Ankaw Creek.

It is protracted controversy that has been pending for more than thirty years between the rival claimants Julian Santulan plan and Antonio Lusin, who have been succeeded by their heirs.

Santulan claimed that foreshore land was an extension of his land, Lot No. 986 of the Kawit cadastre, with an area of 17,301 square meters, registered in his name in 1937 under Original Certificate of Title No. 6 which was issued by virtue of a free patent. The northern boundary of Lot No. 986 is Bacoor (Manila) Bay (Exh. A). The said foreshore land was allegedly formed by soil deposits accumulated by the alluvial action of the sea.

On December 5, 1942 Santulan caused the said land to be surveyed. The survey plan was approved by the Director of Lands in 1944 (Exh. B). On December 29, 1942 Santulan, pursuant to Lands Administrative Order No. 7-1, filed an application, F.L.A. No. V 562, to lease for five years for agricultural purposes an area of 36,120 square meters of the said foreshore land (Exh. F).

On that same date, December 29, 1942, Santulan, pursuant to Act No. 3077 and Lands Administrative Order No. 8-3, filed with the Bureau of Lands an application for a revocable permit to occupy the said land. He indicated therein that he would use the land for 11 capiz beds and oyster beds, the planting of bakawan and pagatpat and later to be developed into a fishpond" (Exh. G).

Seven years later, or on December 22, 1949, Santulan filed with the Bureau of Fisheries an application for an ordinary fishpond permit or lease of the said foreshore land (Special Use Permit, pp. A. No. 5114, Exh. H).

At the instance of the Director of Fisheries, the Director of Forestry investigated the condition of the said foreshore land. The latter in his first indorsement dated June 19, 1950 found that it was swampy "and not an improved fishpond as alleged by Antonio Lusin" and that it is within the disposable areas for agricultural purposes under the jurisdiction of the Bureau of Lands (Exh. L-1).

The chief of the division of commercial fisheries sent a letter to Lusin dated April 28, 1950 apprising him that he was reported to have illegally entered the area covered by Santulan's fishpond permit application and directing him to refrain from introducing improvements, with the warning that court proceedings would be taken against him (Exh. J).

On January 12, 1951 an attorney, acting for the Director of Lands wrote the following letter to Lusin advising him to vacate the disputed land and maintain the status quo:

Mr. Antonio Lusin
Caiñgin, Kawit, Cavite

S i r:

We have been informed that the area which is presently controverted by and between you and Julian Santulan, under the applications noted above, was recently entered by you and some companion and that you are destroying the dikes and other improvements previously constructed thereon by said Julian Santulan.

If this information is true, and inasmuch as you are aware that the controversy is still pending final adjudgment in this Office, is desired that you take proper advice and leave the area and its existing improvements in status quo in order to avoid possible confusion of rights which ma delay the final disposition of the area in question.

You are advised further that the acts imputed to you may make you liable to prosecution and punishment under the law; and that whatever improvements you may make for yourself in the premises will not legally accrue to your benefit, nor will they serve as basis for a claim to preferential rights. (Paragraphing supplied, Exh, J-1).

Santulan declared the said foreshore land in his name for tax purposes. Tax Declaration No. 2923, which took effect in 1948 and which cancelled Tax Declaration No. 13816 also in Santulan's name, shows that the land was assessed at P460. He paid the realty taxes due on the said land for the years 1945-46, 1948-55 and 195760 (Exh. C, D and E, el seq.).

On the other hand, Antonio Lusin in 1942 and 1945 (he died in 1962) filed with the Bureau of Lands applications for a revocable-permit and lease of a foreshore land, respectively, for the purpose of producing salt on the said land. He claimed that he had been in the continuous and exclusive possession of the land since 1920, when it was still under water, and that he had used it as a site of his fish corrals.

He allegedly converted two hectares of the said land into a fishpond. The entire area was enclosed with mud dikes and provided with a concrete sluice gate and another sluice gate made of wood On the northern part of the land bordering the bay were bamboo stakes placed at close intervals to serve as water breakers to protect the mud dikes from being washed away by the action of the sea. Lusin introduced the alleged improvements from 1951 to 1953.

The 1942 foreshore lease applications of Santulan and Lusin gave rise to Bureau of Lands Conflict No. 8 (N). The Director of Lands in his decision in that case dated February 1, 1951 found that the disputed land is foreshore land covered and uncovered by the flow and ebb of the ordinary tides that it is an extension of Santulan's Lot No. 986 and it was formerly a part of the sea; that Santulan was the first to enter the land and to make dikes thereon, and that Lusin entered the land later and made dikes also (Exh. K made a part hereof for reference as Annex A).

The Director ruled that the disputed foreshore land was subject "to reparian rights which may he invoked by Santulan as owner of the upland in accordance with section 32 of Lands Administrative Order No. 7-1" (Exh. K). Hence the Director rejected Lusin's application for a foreshore lease and for a revocable permit and gave due course to Santulan's foreshore lease application.

Lusin filed a motion for reconsideration. The Director in his order of October 19, 1951 denied that motion. lie found that Lusin was a possessor in bad faith: that it is not true that Lusin had improved and possessed the said foreshore land for twenty years, that the disputed area is covered by water, two to three feet deep during ordinary tides and is exposed land after the ebb of the tides, and that Lusin's alleged possession and improvements could not nullify Santulan's preferential right to lease the land by reason of his riparian rights. The Director ordered Lusin to vacate the land within sixty days from notice (Exh. L made a part hereof for reference as Annex B).

Lusin appealed to the Acting Secretary of Agriculture and Natural Resources who in his decision of October 13, 1952 dismissed the appeal and affirmed the Director's 1951 decision (Exh. M made a part hereof for reference as Annex C). Lusin's motion for reconsideration was denied in the Secretary's order of February 28, 1953 (Exh. N made a part hereof for reference as Annex D).

Lusin asked for a reinvestigation of the case. His request was granted. The Department ordered a reinvestigation on May 12, 1953.

After receipt of the report of reinvestigation, the Undersecretary of Agriculture and Natural Resources, by authority of the Secretary, in his order of December 14, 1954, reaffirmed the rejection of Lusin's revocable permit and foreshore lease applications but ordered Santulan to reimburse to Lusin the appraised value of his improvements (Exh. O made a part hereof for reference as Annex E).

Lusin appealed to the President of the Philippines after his motion for reconsideration was denied in the Undersecretary's order of May 19, 1955 (Exh. OO made a part hereof for reference as Annex F).

Executive Secretary Juan C. Pajo, by authority of the President, held in his decision of April 10, 1958 that section 32 of Lands Administrative Order No. 7-1 (promulgated by the Secretary of Agriculture and Natural Resources on April 30, 1936 pursuant to Acts Nos. 2874 and 3038) was "rendered obsolete" by section 67 of the Public Land Law which took effect on December 1, 1936 (Exh. P made a part hereof for reference as Annex G).

On the basis of the foregoing ruling and since the record is silent as to whether or not the land in question has been declared by the President as not necessary for the public service and as open to disposition (Sec. 61, Public Land Law), the Executive Secretary sustained Lusin's appeal and reversed the orders of the Director of Lands and the Secretary of Agriculture and Natural Resources in favor of Santulan. Secretary Pajo decided the case in the alternative as follows:

On the assumption that the land in question has been declared open for disposition and is not necessary for the public service, this Office directs that an oral bidding for the leasing thereof to interested parties pursuant to the provisions of Section 67 of Commonwealth Act .No. 141 be conducted and the contract of lease awarded to the highest bidder whoever shall be the highest bidder, if other than the appellant, shall be required to pay to the appellant the appraised value of the improvements introduced by him on the land to be determined by that Department.

If the land in question has not been so declared, this Office directs that a revocable permit under Section 68 of Commonwealth Act No. 141 be Id to the appellant requiring him to pay permit fees since the year 1951.

Accordingly, the orders and decisions of that Department and the Bureau of Lands are hereby revoked.

Santulan's case was distinguished from that of Gonzalo Monzon whose Lot No. 987 adjoins Santulan's Lot No. 986. Executive Secretary Fred Ruiz Castro (now Chief Justice) in his decision of May 10, 1954 upheld the preferential right of Monzon to lease the foreshore land north of his lot, which foreshore land is adjacent to the foreshore land now in dispute in this case (Exh. Q made a part hereof for reference as Annex H).

Santulan's motion for reconsideration was denied in the letter of the Acting Executive Secretary dated August 20, 1959 (Exh. W).

On October 22, 1959 Santulan filed in the Court of First Instance of Cavite a petition for certiorari wherein he alleged that the Executive Secretary committed a grave abuse of discretion in misinterpreting certain provisions of Act No. 2874, Commonwealth Act No. 141, and Lands Administrative Order No. 7-1.

In the lower court the parties agreed that the case Involves only a question of law. On August 18. 1961 the lower court dismissed the petition and affirmed the Executive Secretary's decision. Santulan appealed to the Court of Appeals which in its resolution of July 21, 1967 elevated the record to this Court on the ground that Santulan in his brief raised only the legal questions of whether the Public Land Law repealed section 32 of Lands Administrative Order No. 7 1 and whether the Executive Secretary's decision is "legally sound and correct" (CA-G. R. No. 30708-R).

It should be emphasized that. as found by tile investigators of the Bureau of Lands, Santulan was the prior possessor of the foreshore land in question. lie had it surveyed in 1942. The survey plan Psu-115357) was approved by the Director of Lands in 1944. Santulan paid the realty taxes on that land .

It should further be underscored that the regulations pie him a preferential right to lease the land as a riparian owner. Lands Administrative Order No. 7-1 dated April 30. 1936. which was issued by the Secretary of Agriculture and Natural Resources upon the recommendation of the Director of Lands for the disposition of alienable lands of the public domain, provides:

32. Preference of the Reparian Owner — The owner of the property adjoining foreshore lands, marshy lands or lands covered with water bordering upon shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property as may not be needed for the public service, subject to the laws and regulations governing lands of this nature, provided that he applies therefor within sixty (60) days from the date he receives a communication from the Director of Lands advising him of his preferential right.

Paragraph 32 quoted above is a substantial copy of paragraph 4 of Lands Administrative Order No. 8-3 dated April 20, 1936, which was promulgated by the Secretary of Agriculture and Natural Resources upon the recommendation of the Director of Lands for issuance of temporary permits of occupation and use of agricultural lands of the public domain.

The word "riparian" in paragraphs 32 and 4 of the departmental regulations is used in a broad sense as referring to any property having a water frontage (Shepard's Point Land Co. vs. Atlantic Hotel, 44 S. E. 39, 45, 132 N. C. 517, 65 C. J. S. 143, note 84). Strictly speaking, "riparian" refers to rivers. A riparian owner is a person who owns land situated on the bank of a river.

But in paragraphs 32 and 4, the term "riparian owner" embraces not only the owners of lands on the banks of rivers but also the littoral owners, meaning the owners of lands bordering the shore of the sea or lake or other tidal waters. The littoral is the coastal region including both the land along the coast and the water near the coast or the shore zone between the high and low watermarks.

Therefore, on the basis of paragraphs 32 and 4 of the said administrative regulations, Santulan or his heirs Should be allowed to leased or occupy the said foreshore land.

But the Executive Secretary ruled that paragraph 32 was rendered obsolete by Commonwealth Act No. 141 or, as held by the trial court, Lands Administrative Order No. 7-1 was repealed by the Public Land Law. Is that conclusion correct? We hold that it is wrong.

It is true that Lands Administrative Orders Nos. 7-1 and 8-3 were issued when the 1919 Public Land Act was in force or before the present Public Land Law took effect on December 1, 1936. But that circumstance would not necessarily mean that the said departmental regulations are not good under the 1936 Public Land Law.

In rationalizing the alleged repeal of paragraph 32, the Executive Secretary cited the following provisions of Act No. 2874, the 1919 Public Land Act (15 Public Land laws 24):

SEC. 64. The lease or sale shall be adjudicated to the highest bidder; and if there is no bidder besides the applicant, it shall be adjudicated to him. The provisions of section twenty-seven of this Act shall be applied wherever applicable. If all or part of the lots remain unleased or unsold the Director of Lands Shall from time to time announce in the Offcial Gazette or otherwise the lease or sale of those lots if necessary . (Section 27 refers to sealed bidding).

The Executive Secretary held that the above-quoted section 64 was by the for provisions of on wealth Act No. 141 which took effect on December 1, 1936:

SEC. 67. The lease or sale shall be made through oral bidding-, and ajudication shall be made to the highest bidder. However, where m applicant has made improvements on the land by virtue of a permit issued to him by competent authority, the sale or lease shall be made by sealed bidding as prescribed in section twenty-six of this Act, the provisions of which shall be applied wherever applicable. If all or Dart of the lots remain unleased or unsold. the Director of Lands shall from time to time announce in the Official Gazzate, or in any other newspapers of general circulation, the lease or sale of those lots, if necessary. (Section 26, like section 27 of Act No. 2874, refers to sealed bidding).

The Executive Secretary noted that under section 64 of Act No. 2874 sealed bidding was the general rule of procedure in an award of a lease of foreshore land and that the t is entitled to equal the bid of the highest bidder. On the other hand, under 67, oral bidding is the general rule.

Hence, the Executive Secretary assumed that, while under section 64 of the 1919 old Public Land Act, the fact that the applicant has a preferential right to lease foreshore land was a crucial factor it is thus under section 67 of the 1936 Public Land Law because in oral bidding the appellant is not entitled to equal the bid of the highest bidder.

The Executive Secretary concluded that, because the preferential right of the applicant to lease foreshore land was immaterial under 67 of the present Public Land Law, paragraph 32 of Lands Administrative Order No. 7-1, which gives such preference. had become "idle and useless".

That conclusion is wrong because it is based on the erroneous hypothesis that section 64 of the 1919 Public Land Act is different from section 67 of the 1936 Public Land Law. They are not different. The truth is that section 64 was amended by Act No. 3517 which took effect on February 4, 1919 (24 Public Laws 416). Section 64, as thus amended, is substantially the same as section 67 of the 1936 Public Land Law.

That fact was overlooked by the Executive Secretary. Hence, his conclusion, that paragraph 32 of Lands Administrative Order No. 71 was repealed or rendered obsolete by section 67 of the present Public Land Law, is wrong because its premise is wrong.

In other words, paragraph 32 of Lands Administrative Order No. 7-1, issued on April 30, 1936, was promulgated under section 64 of the old Public Land Law, as amended. And since the amended section 64 was substantially reproduced in section 67 of the 1936 Public Land Law, it is glaringly incorrect to say that section 67 rendered obsolete the said paragraph 32. Paragraph 32 is still in force and is good under the existing Public Land Law.

The foregoing discussion reveals that the Executive Summary's rationalization of the alleged repeal of paragraph 32 of Lands Administrative Order No. 7-1 (identical to paragraph 4 of Lands Administrative Order No. 8-3) is not only deficient in clarity and cogency but is predicated on the false assumption that section 64 of the 1919 Public Land Act is different from section 67 of the present Public Land Law. Consequently, the aforementioned decision of Executive Secretary Juan C. Pajo under review bas to be set aside.

This case is governed by the precedent established in the case of Gonzalo Monzon, which, as already noted, is similar to this cm since the foreshore land involved in the Monzon case is adjacent to the foreshore land involved in this case.

In the Monzon case, the Office of the President, applying the oft-cited paragraph 32 of Lands Administrative Order No. 7-1 held that Monzon, the littoral owner of the registered land abutting upon the foreshore land, has the preferential right to lease the foreshore land,

The location of the lots of Santulan and Monzon and the foreshore lands abutting thereon is shown in the following sketch bawd on the plan, Psu-115357 (Exh. B):

Manila Bay or Bacoor Bay

Disputed Area
Psu-1 15357	Psu- 1 15358
Foreshore land	Forshore land
claimed by	leased to
Julian Santulan	Gonzalo Monzon
and
Antonio Lusin

Lot No. 986	Lot no. 987
Belonging to	Belonging to
Julian Santulan	Gonzalo Monzon

Considering that the foreshore land abutting upon Santolan's lot is in the same situation as the foreshore land abutting upon Monzon's lot, there is no reason why Santulan should not enjoy, with respect to the disputed foreshore land, the rights given to Monzon over the foreshore land adjacent to his lot.

Now, then, is there any justification for giving to the littoral owner the preferential right to lease the foreshore land abutting on his land?

That rule in paragraph 32 is in consonance with article 4 of the Spanish Law of Waters of 1866 which provides that, while lands added to the shores by accretions and alluvial deposits caused by the action of the sea form part of the public domain, such lands, "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 coast guard service", shall be declared by the Government "to be the property of the owner of the estates adjacent thereto and as increment thereof" (cited in Ignacio vs. Director of Lands, 108 Phil. 335, 338).

In other words, article 4 recognizes the preferential right of the littoral owner (riparian according to paragraph 32) to the foreshore land formed by accretions or alluvial deposits due to the action of the sea (Ker & Co. vs. Cauden 6 Phil. 732, 736, 223 U.S. 268, 56 L. Ed. 432, 435; Jover vs. Insular Government, 10 Phil. 522, 40 Phil. 1094, 1100, 221 U.S. 623, 55 L. Ed. 884).

The reason for that preferential right is the same as the justification for giving accretions to the riparian owner, which is that accretion compensates the riparian owner for the diminutions which his land suffers by reason of the destructive force of the waters (Cortes vs. City of Manila, 10 Phil. 567). So, in the case of littoral lands, he who loses by the encroachments of the sea should gain by its recession (Banks vs. Ogden 2 Wall. 57, 67, 17 L. Ed. 818, 821).

That preferential right is recognized in American jurisprudence where the rule is that the owner of the land adjacent to navigable waters has certain riparian or littoral rights of a proprietary nature not possessed by the general public which rights are incident to the ownership of the banks or the uplands: riparian as respects the waters of a river and littoral as to sea waters or the waters of a lake (65 C.J. S. 143-145).

It may be mentioned that the Director of Lands stated in his manifestation of October 26, 1977 that Lands Administrative Orders Nos. 7-1 and 8-3 are still in force and have not been superseded by any later regulations and that the directive of the President of the Philippines to the Director of Lands dated May 24, 1966, stopping the grant of foreshore leases all along Manila Bay, towards Cavite and Bataan, has not rendered the instant case moot and academic "because the foreshore lease application involved is pending award."

In view of the foregoing considerations, the trial court's decision and the decision of the Executive Secretary dated April 10, 1958 are reversed and set aside and the order of the Undersecretary of Agriculture and Natural Resources dated December 14, 1954 and the orders of the Director of Lands dated February I and October 19, 1951 are affirmed.

The lease application of Julian Santulan mentioned in the order of February 1, 1951 should be recorded in the names of his heirs and the obligation to make reimbursement mentioned in the dispositive part of the Undersecretary's order should now devolve upon the heirs of Santolan. The reimbursement should be made to the heirs of the late Antonio Lusin The obligation to vacate the disputed land, as required in the Director's order of October 19, 1951 devolves upon the heirs of Lusin Costs in both instances against respondent heirs of Lusin (As amended by Resolution of February 17, 1977.

SO ORDERED.

Barredo (Actg. Chairman), Antonio, Concepcion Jr. and Guerrero, JJ., concur.

Guerrero, J., was designated to sit in the Second Division.

Fernando and Santos, JJ., are on leave.

 

Annexes to Opinion in L-28021, Julian Santolan
vs. Executive , et al.

F. L. A. No. V-562, R. P. A. (New). Julian Santolan, Applicant & Contestant vs. F. L. A. (New), R. P. A. (New), B. L. Conflict No. 8 (N) Psu- 1 15357, Kawit, Cavite.

Julian Santolan, Applicant-Appellant vs. Antonio Lusin, Applicant-Appellant, D.A.N.R. Case No. 625, Psu- 1 15357, Kawit, Cavite.

Annex A — Order of Director of Lands dated February 1, 1951.

Annex B — Order of Director of Lands dated October 19, 1951.

Annex C — Decision of Acting Secretary of Agriculture and Natural Resources dated October 13, 1952.

Annex D — Order of Secretary of Agriculture and Natural Resources dated February 28,1953.

Annex E — Order of Undersecretary of Agriculture and Natural Resource dated December 14, 1954.

Annex F — Order of Undersecretary of Agriculture and Natural Resources dated May 19, 1955.

Annex G — Decision of Executive Secretary Juan C. Pajo dated April 10, 1958.

Annex H — Decision of Executive Secretary Fred Ruiz Castro dated -May 10, 1954 in Emiliano del Rosario vs. Gonzalo Monzon.

ANNEX A

O R D E R

Julian Santolan, who owns Lot No. 986 of the Kawit Cadastre, under a free patent grant with Original Certificate of Title No. 6 issued to him on June 9, 1937, claims preferential rights to all the areas extending seaward from the said lot. He caused the said areas to be surveyed for him in 1942, and the survey plan thereof was approved in 1944, as may be seen in the Survey Plan Psu-115357 of this Office which is reproduced in the sketch drawn. on the back of the last page hereof. Except the portion marked "A" in the sketch, he made a foreshore lease application and a revocable permit application for these areas in 1942 to devote the areas applied for to fishpond purposes. Presently, he now includes the portion "A" in his applications herein mentioned to be devoted to the same purposes — in fact, he now intends to utilize the entire area comprised in his Survey Psu-115357 for fishery purposes and has filed therefor with the Bureau of Fisheries fishpond permit application No. 5114. Upon this claim he contests the revocable permit (new) application and the foreshore lease (new) application for the portion O these mm marked "X" in the sketch which were filed by Antonio Lusin in 1942 and 1945, respectively, for salt-producing purposes.

Lot No. 986 of the Kawit Cadastre, mentioned above as owned by Julian Santolan, a to be bounded on the north by the Bacoor Bay. It is evident therefore that the areas now in Santolan's Survey Psu-115357, were formerly parts of the bay, and that presently they exist as a result of the of the waters of the sea. Investigation disclosed that these areas are now foreshore lands, — covered and uncovered by the flow and ebb of the tides. Santolan was found to have entered the areas first and made dikes Lusin was found to have entered lately and made does also. None of them, however, has obtained from this Office any permit of occupancy and use, and their applications are not yet approved.

On the basis alone of actual occupancy or introduction of improvements neither of the parties here may claim preferential rights, for under the law and regulations, it is only such occupancy and introduction of improvements as are made upon the authority of an official permit issued by this Office which could serve as a reason for holding a sealed bidding in a public auction of the right to low at which the permittee is given the preferred right to equal the highest bid that might be put by any other party. This is the rule prescribed by Section 67 of Commonwealth Act No. 141 (the Public land Act)' It appears, however, that the areas — portions "A", "X" and the parts extending up to the Bar Bay now, as may be seen in the sketch, — which are comprised by Santolan's Survey Plan -Psu-115357, are immediately adjoining Lot No. 986, which is his private property, and are extensions of the said lot to the sea. The areas, being foreshore lands, are therefore subject to riparian fights which may be invoked by Santolan as owner of the upland in accordance With Section 32 of lands Administrative Order No. 7-1 which provides the following:

Sec. 32. The owner of the property adjoining foreshore lands, marshy lands, or lands covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property as may not be needed for the public service, subject to the laws and regulations governing lands of this nature, provided that he applies therefor within 60 days from the date he receives a communication from the Director of Lands advising him of his preferential right

As Julian Santolan is interested in utilizing the entire area covered by his Survey Psu- 1 15357 over which he is fully entitled to exercise his riparian rights, the above-noted foreshore lease (new) application and revocable (new) application of Antonio Lusin, both covering the portion marked "X" in the sketch, are hereby rejected. The lease application of Santolan, shall be recorded as Foreshore Urn Application No. 562 and given due course for the whole area (including portion "A) shown in the said sketch.

SO ORDERED.

Manila, Philippines, February 1, 1951.

JOSE P. DANS
Director of Lands

 

ANNEX B

O R D E R

Counsel for respondent Antonio Lusin has filed in due time a motion for the reconsideration of our Order of February 1, 1951, which resolved this case in favor of contestant Julian Santolan, praying that the said order be set aside and the case, reopened for purposes of a formal hearing for the submission of evidence. Substantially stated, respondent Lusin claims that he is entitled to preference because he has been in possession of the premises for a period of over twenty years, placing stakes and planting aquatic trees for the raising and cultivation of shell fish and sea shells, besides constructing dikes for pending fish and making salt beds, — all these works undertaken by him being the cause for the gradual filling of the area and its conversion into a productive state. He contends that the areas under question had been formed thru "artificial accretion" caused by his own labor and, consequently, he has the right of pre-emption.

There is no question, however, that the areas under question are parts of the foreshore. Under Section 61 of Commonwealth Act No. 141 (Public Land Act), they are disposable to private parties by k only and not otherwise; and under Section 67 of the same Act, the lease shall be made thru oral bidding, the adjudication to be made to the highest bidder.

There is no question also that the areas under question extend to the sea from lot No. 986 of the Kawit Cadastre, which is actually owned by respondent Santolan under Original Certificate of Title No. 6 of the land records of Cavite. Undoubtedly, respondent has riparian rights to the foreshore in question which he can invoke against contestant Lusin under the provisions of Section 32 of Lands Administrative Order No. 7-1, quoted in toto in the order sought to be reconsidered.

Records show that the areas under question are also involved in the Fishpond Application No. 5114 of Julian Santolan with the Bureau of Fisheries which is also contested by Antonio. lt appears that upon request of the Director of Fisheries to the Bureau of Forestry for certification as to the availability of the areas for fishery purposes, the latter made investigation, inquiring at the same time into the claim of Antonio Lusin, made formally in writing, that he has improved the areas into a fishpond and has been in occupation thereof for more than 20 years. The Bureau of Forestry made the findings that those areas are within the disposable areas for agricultural purposes under the jurisdiction of the Bureau of Lands; and that they are swampy lands, formerly under sea water of the Bacoor Bay, "and not an improved fishpond as alleged by Antonio Lusin". These findings were transmitted to the Director of Fisheries under first indorsement dated June 19, 1950.

Our own investigating officer, reporting on this case on January 25, 1951, stated the following: "On December 15, 1950, when I conducted the first ocular inspection of the premises in the presence of both parties, the only visible improvements found thereon are the newly-constructed dikes made thereon by Julian Santolan, a few bacauan and ape-ape trees of about two to three years old, bamboo stakes placed thereon at intervals, and a small old hut located at almost the middle of the land in question. All these improvements were claimed to have been introduced by Julian Santolan. Antonio Lusin, however, claimed that those bamboo stakes found therein were his."

It is evident from the findings of both the inspecting officer of the Bureau of Forestry and our own investigating officer that the areas under question are foreshore lands, and that they have not been really improved and possessed by respondent Lusin for over twenty years as he alleged. The improvements found therein have been recently made, and they are not of such nature and extent as would have changed the character of the areas as foreshore. In fact, according to the investigating officer, the areas have been seen by him on different occasions, and he found that the same, as well as the neighboring areas in the same belt, were covered by tidal waters of from 2 to 3 feet deep during ordinary rise of the tides, and uncovered by the tides at ebb.

There is, therefore, no reason for changing our disposition in our order of February 1, 1951. It is not necessary to re-open the case to receive evidence on respondent's allegation that he has been in possession of the premises for over 20 years and has gradually improved them because, aside from the fact that the allegation is belied by the physical condition of the premises, whatever evidence may be gathered on that allegation could not change the nature of the areas as foreshore, nor would it avoid the rights of contestant as riparian owner. The presence of the respondent in the premises has not been authorize by competent authorities, and his introduction of improvements thereon was not done with proper permit of temporary occupancy and -use such as is prescribed in our administrative practice. The circumstances under which he made improvements cannot justify his claim for a preferred right under Section 67 of the Public Land Act; on the contrary, he stands to forfeit the improvements to the Government for, as reported by our investigating officer, he entered the Premises and commenced making the improvements after contestant Santolan himself has already made improvements, and after he has been warned on December 15, 1950 by the investigating officer not to continue working, which warning was confirmed by us in our letter to him of January 12, 1951. His bad faith is quite evident, and he cannot avail of his presence in the premises now to demand the issuance to him of a provisional or revocable permit of temporary occupancy and use under our rules and regulations in order to legal his entry and give validity to his improvements. The right to demand issuance of such a permit is concomittant to the right of contestant Santolan to be a preferred applicant by virtue of his riparian right recognized in Section 32 of Lands Administrative Order No. 7-1 cited hereinabove.

IN VIEW HEREOF, the instant motion for reconsideration and reinvestigation of respondent Antonio Lusin is hereby denied, and he shall vacate the premises within 60 days from receipt of notice hereof.

SO ORDERED.

Manila, Philippines, October 19, 1951.

JOSE P. DANS
Director of Lands

 

ANNEX C

D E C I S I O N

The order of the Director of Lands dated February 1, 1951, rejected Foreshore Lease Application (New) and Revocable Permit Application (New) of Antonio Lusin and gave due course to the Foreshore Lease Application No. 562 of Julian Santolan. Antonio Lusin claims that the order is against the fact and the law. He presented three (3) motions for reconsideration: one on October 19, 1951; the other on December 12, 1951; and the last on April 9, 1952. Said motions were all denied. Hence, the present appeal. The subject of contention is the strip of land having an area of 41/2 hectares from Lot No. 986 of the Kawit Cadastre No. 203 to the waters of Bacoor Bay. Lot No. 986 is covered by I Certificate of Title No. 6 issued to Julian Santolan on June 9, 1937. Santolan's titled property is bounded on the north by Bacoor Bay.

On December 5, 1942, Santolan filed his foreclosure km application for the entire tract entervening between his property and Bacoor Bay. So he caused Psu- 115357 to be executed and same was approved in 1944 by the Director of Lands.

On November 26, 1945, Antonio Lusin applied for permit for an area of 4.5 for salt bed purposes. The area for which permit was asked is by his F.L.A. (New) filed on November 17, 1945, the boundaries of which are as follows:

NE — V. del Rosario and E. del Rosario

SE — Julian Santolan

SW — Ankaw River

NW — Bacoor Bay

The two applications of Santolan and Lusin cover the same area. Julian Santolan duly protested in 1946 against Lusin's application. The question to be decided in this appeal is: Which of the two applicants, Julian Santolan or Antonio Lusin, has right of preference to the land in controversy?

By virtue of the fact that he is a riparian owner, Julian Santolan has the right of preference pursuant to the provisions of Section 32 Of Administrative Order No. 7-1, which reads as follows:

Sec. 32. The owner of the property adjoining foreshore lands, marshy lands, or hinds covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property as may not be needed for the public service, subject in the laws and regulations governing lands of this nature, provided that he applies therefor within sixty (60) days from the date he receives communication from the Director of Lands advising him of his preferential right.

It is true that appellant Lusin introduced improvements on the in question, but that fact does not give him preferential right , not only because he had not acquired any permit from the Bureau of Lands before doing so, but also because his entry on the was duly protested by Santolan.

IN VIEW OF ALL THE FOREGOING, and finding that the order of the Director of lands on Feb. 1, 1951, is in accordance with the facts of record and the provisions of the law on the matter, the herein appeal from said order should be, as hereby it is, dismissed.

SO ORDERED.

Manila, Philippines, October 13, 1952.

JOSE S. CAMUS
Acting Secretary of Agriculture
and Natural Resources

 

ANNEX D

O R D E R

This is a motion filed by Antonio Lusin, thru counsel, for the reconsideration of the decision of this Office dated October 13, 1952, dismissing his appeal from the decision of the Director of Lands under date of February 1, 1951.

In support of the said motion for reconsideration, Lusin substantially alleges that he has been improving the land in question since 1920, spending for such improvements no more than P20,000.00, and for that reason, he should be given the preferential right to acquire the said land. To reinforce his allegation, movant cites the case of Rosalia Vida Vda. de Tirona vs. Magdaleno Tragico, CA G.R. No. 9050, decided by the Court of Appeals on June 30, 1943, wherein it was held that because Tragico has constructed fishpond on a portion of the land in question by means of the improvements he has introduced thereon and has possessed the land for sufficient time to acquire the land by right of prescription, he was awarded the land in dispute.

We have found this allegation of movant to be far from the truth. lt is the finding of the investigating officer who made an investigation of this case that it is Julian Santolan and not movant Lusin who has been actually occupying the land in question and introducing improvements thereon. The pertinent portion of his M reads as follows:

On December 16, 1950,, when I conducted the first ocular inspection of the premises in the presence of both parties, the only visible improvements found thereon were the newly constructed dikes made thereon by Julius Santolan, a few bacauan and ape-ape trees of about two to three years old, bamboo stakes placed thereon at intervals and a small old hut located at almost the middle of the land in question. All these improvements were claimed to have been introduced thereon by Julian Santolan. Antonio Lusin, however, claimed that the bamboo stakes found thereon were his.

Moreover, according to the further finding of the said investigating officer, the WW in question fails under the category of foreshore land. That portion of his report referring to this finding is hereby quoted as follows:

It may not be amiss to state in this connection that I have. or different occassions, the opportunity to inspect the land subject hereof on both high and low tides. During ordinary low tide, the whole area. and further seaward, is entirely ex to the surface while during ordinary high tide, it is wholly covered with tidal water with an approximate depth of two to three feet. The land in question in its entirety is marshy covered and uncovered by the ebb and flow of tidal water.

As the land is a foreshore land, the same is susceptible to the riparian right of the owner of the adjoining land. According to Section 32 of Lands Administrative Order No. 7-1, the owner of the property adjoining foreshore land, shall be given preference to apply for such land adjoining his property as may not be needed for the public service. Inasmuch as the land in question adjoins Lot No. 980, Kawit Cadastre, which is a private property of Julian Santolan, said Julian Santolan shall have the preference right to apply therefor over and above any other applicant. It may be mentioned, in this connection, that the said case of Rosalia Vida Vda. de Tirona vs. Magdaleno Tragico who had and improved the land claimed by him, it is Santolan and riot movant Lusin who has been actually occupying and improving the land subject of the present controversy.

WHEREFORE, the instant motion for reconsideration filed by Antonio Lusin, as well as his request for reinvestigation of this case, should be, as hereby it is, denied.

SO ORDERED.

Manila, Philippines, February 28,1953.

FERNANDO LOPEZ
Secretary of Agriculture and
Natural Resources

 

ANNEX E

O R D E R

On October 13, 1952, the Office a in connection with the above-case can, the dispositive portion of which reads as follows:

In view of all the foregoing and that the order of the Director of Lands on February 1, 1961, is in with the facts of record and the provisions of law on the matter the herein appeal from the said order should be, as hereby it is dismissed.

From the said decision Antonio Lusin filed a motion for reconsideration which was denied as per order of this Office dated February 28, 1953. Still not satisfied with the aforementioned order, Lusin again filed a second notion for reconsideration predicating his motion on the following grounds:

1. That he (Lusin) is in actual ion of the land in question since 1920;

2. That said area is an agricultural land actually devoted to fishpond and, therefore, is not a foreshore land;

3. That even granting without admitting that Santolan is a riparian owner, Santolan had lost his riparian right thereto in view of the continuous ion by Lusin of the area since 1920; and

4. That in the investigation relied upon by the Director of Lands in his decision and confirmed by this Office, the movant herein was not given opportunity to be heard because the said investigation was never completed, and as a result, the conclusions of the investigator thereat were one sided

Adhering to its Policy of giving party litigants the outmost opportunity to present their respective sides of the case, this Office ordered a reinvestigation of the case to determine whether or not the allegations of Antonio Lusin are true.

From the said reinvestigation, the facts of this case may be stated as follows:

The disputed area is a strip of land containing an approximate area of 4-1/2 hectares located at the Barrio of Kaingin, Municipality of Kawit, Province of Cavite- lt is bounded on the North by Bacoor Bay, on the East by the property occupied by Vicente del Rosario and E. del Rosario, on the South by Lot No. 896 of Kawit Cadastre No. 203; and on the West by Ankaw River. Lot 986, mentioned above as the boundary of the area in question on the South, is owned and possessed by Julian Santolan, his ownership thereof being evidenced by a free patent grant with Original Certificate of Title No. 6 issued on June 9, 1937. The only issue to be resolved in this case is whether or not Julian Santolan, as riparian owner, is entitled to the preference provided for in Section 32, Lands Administrative Order No. 7-1, which reads as follows:

32. Preference of Riparian Owner.— The owner of the property adjoining foreshore lands, marshy lands, or lands covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply or such lands adjoining his property as may not be needed for the public service, subject to the laws and regulations governing Ian of this nature, provided that he applies therefor within sixty (60) days from the date he receives a communication from the Director of Lands advising him of his preferential right.

During the reinvestigation of this case by a representative of this Office, it was disclosed that Antonio Lusin is the actual occupant of the area in question - his present possession thereof dating back as of 1951. During his occupation, Lusin has introduced considerable improvements in the area investing his fife sa therein. Today, a portion of approximately two hectares of the said area is a complete fishpond surrounded with dikes. A concrete gate was constructed on the western side of the fishpond in 1951. Water breakers were constructed around the dikes to protect them from the action of the waves. The remaining portion of the area in question is fenced with bamboo stakes.

On the other hand, it is apparent that the area in question is an extension of Lot 986 to the sea and that its present existence is the result of the continuous recession of the water of the sea. There is no doubt that the area in question is a foreshore, it being situated along the shore lying between medium high and low water marks and is covered and uncovered by the flow and ebb of ordinary tide.

Both Parties claim prior ion of the disputed area, Santolan's claim dating way back in 1907, the year he claims said area was donated to him by his father-in-law while Lusin alleges that he was already in possession of the same since 1920. The evidence presented by both parties during the reinvestigation were so diametrically opposed with each other that they only create doubts as to the veracity of the respective claims of said parties. From the testimonies of witnesses for both sides, there could be gathered sufficient grounds to believe that prior to 1942, neither Party Possessed the area to the exclusion of the other. Rather, there are good reasons to believe that both parties fished in the premises jointly and/or simultaneously without claiming the property exclusively for themselves because then the area was covered with water which at that time was still deep. It was only in 1942 that Julian Santolan took positive step to claim the property by filing a foreshore lease and a revocable permit application for said area with the intention of converting the same into a fishpond. Santolan caused said area to be surveyed in 1942, the survey plan was approved in 1944 as may be seen in survey Plan Psu- 115357 of the Bureau of Lands. Since 1942, Santolan exercised dominion over the property although Lusin occasionally entered the premises with a similar intention of claiming the area for himself. In January of 1951 Lusin entered the area in question and wrested the n thereof from Santolan. Since then up to the present, Lusin is in continuous possession of the same notwithstanding the vigorous opposition of Santolan.

Lusin alleges that the area in question does not fall within the purview of the above quoted Section 32 of Lands Administrative Order No. 7-1 on the theory that the lands enumerated in said provision, whether foreshore lands, marshy lands, or lands covered with water, must be bordering upon the shores or banks of navigable lakes or rivers. And it is argued that the area in question is bordering the shores of Manila Bay, which is neither a lake nor a river, the owner of the adjoining property is not en to the preferential right accorded by said Lands Administrative Order.

We cannot agree with this contention. This Office is of the opinion and so holds that the said provision of Lands Administrative Order No. 7-1, Section 32 speaks of the following kinds of lands, distinct and separate from one another:

(1) Foreshore lands

(2) Marshy lands, or

(3) Land covered with water bordering upon the shores of navigable lakes or rivers.

The phrase "bordering upon the shores of navigable lakes or river" in said provision modifies only the third classification, that is, "lands covered with water", for if the law that said phrase should modify the three types of land enumerated are then the punctuation mark, comma, should not have been placed before the alternative "or" but instead between the words "water" and "bordering" making said provision to appear as follows:

The owner of the property adjoining foreshore ands marshy lands or lands covered with water, bordering upon the shores or banks of navigable lakes or rivers ... .

The use of the alternative "or" instead of the conjunction "and" shows the intention of the law in segregating foreshore lands from marshy lands and those two from lands covered with water bordering upon shores of navigable lakes or rivers.

It is also alleged that even granting that Santolan was the preferential rights accorded to a riparian owner, said right has prescribed on the ground that Lusin has been in continuous ion of the said area since 1920. This allegation was not duly proven during the reinvestigation. While Lusin claims ion of the disputed area since 1920, on the other hand. Santolan claims that he possessed the same since 1907 when it was donated to him by his father-in-law. As we have- already stated, it is the - finding of this Office that prior to 1942, neither party the premises exclusively. It was only in 1942 when Santolan took positive steps to claim the area for himself. There are even evidence on record that Santolan paid the land taxes for the area in 1936. In 1951, Lusin effected his entry to the area up to the present. It may be recalled, however, that these actuations of Lusin had been the subject of a criminal complaint filed by Santolan before the Justice of the Peace Court of Kawit, Cavite, wherein Lusin was acquitted on the ground that his guilt was not proven beyond reasonable doubt.

Needless to say, proof beyond reasonable doubt is absolutely necessary before conviction in criminal cases could be had. On the other hand, preponderance of evidence is sufficient to prove a matter of fact in civil and/or administrative cases. The preponderance of evidence adduced at the reinvestigation of this case conducted by a representative of this Office, shows that the present occupation of Lusin of the area in question was effected by force, although there are good reasons to believe that such force was employed by Lusin to assert what he believed was his right over the property in question.

From the foregoing facts and circumstances, it is therefore, apparent that the area in question is a foreshore land, and Santolan, being the riparian owner, is entitled to the preferential rights accorded by the provision of Section 32 of Lands Administrative Order No. 7-1. Considering, however, the fact that during the reinvestigation of this case, it was disclosed that Antonio Lusin had introduced considerable improvements in the premises and had invested his life savings therefor, and considering further that if Santolan were the one who converted the area into a fishpond, as he intends to do, he would have incurred the same expenses as was incurred by Lusin in the premises in question, it is the belief of this Office that justice would be fully served if Santolan be required to reimburse Lusin of the value of the improvements now existing in the area as may be appraised by the Committee on Appraisal of the Bureau of Lands.

WHEREFORE, the above-noted foreshore lease (New) application and revocable permit (New) application of Antonio Lusin should remain, as hereby it is, REJECTED; and Foreshore Lease Application No. V-65 of Julian Santolan given due course, PROVIDED, he reimburses Antonio Lusin of the appraised value of the improvements now existing in the area within sixty (60) days after notification of said appraisal.

The Director of Lands is hereby directed to instruct the Committee on Appraisal concerned to make the necessary appraisal of the value of the improvements now existing in the area in question within thirty (30) days from receipt of this order and to notify Julian Santolan of the result of said appraisal.

In the event that Julian Santolan fails to reimburse Antonio Lusin of the appraisal value of the said improvements within the period specified in this order, he shall lose his preferential rights over the area and Antonio Lusin will be allowed to file an appropriate public land application therefor.

SO ORDERED.

Manila, Philippines, December 14, 1954.

By Authority of the Secretary:

JAIME M. FERRER
Undersecretary of Agriculture
and Natural Resources

 

ANNEX F

O R D E R

On December 14, 1954, this Office issued an order in connection with the above-entitled case wherein the rejection of the foreshore lease application and revocable permit (both new) of Antonio Lusin was upheld and Foreshore Lease Action No. V-62 of Julian Santolan given due course provided he reimburses Antonio Lusin of the appraised value of the improvements now existing in the area within sixty (60) days after notification of said appraisal.

From said order, both parties to this conflict filed separate motions seeking reconsideration of the same.

Santolan premised his motion on the theory that as fat as that po of the order which requires him to reimburse Lusin of the appraised value of the improvements within sixty (60) days after notification of said appraisal is concerned, same is contrary to the provisions of Commonwealth Act No. 141 and of the New Civil Code.

Santolan argues that the best procedure that should have been followed in the disposition of this case was for the Government to forfeit all the improvements introduced by Lusin in the area in question in its (Government's) favor and then let Santolan pay to the Government the appraised value of said improvements within ten (10) years after notification of said appraisal. He further argues that the "law does not authorize the Secretary of Agriculture and Natural Resources to dispose of the proceeds of the sale of the improvement to any person whomsoever", and "certainly the Secretary does not claim the prerogative of disbursing government funds without authority of law."

In the first place, the order sought to be reconsidered does not contemplate any ale from which proceeds could be disposed of by the Secretary "to any person whomsoever". In the second Place, in the issuance of the order sought to be reconsidered this Office has taken into consideration the Provisions of Wealth Act No. 141 and those of the Civil Code cited by movant Santolan with in go me respect to the forfeiture ' favor of the government of the improvements found in the areas covered by rejected applications. However, this Office is also fully aware of that cardinal principle that 'no man shall enrich himself at the expense of another.

During the reinvestigation of this case by a representative of this Office, it was found that Lusin was the, actual occupant of the disputed area since 1951. During his occupation, Lusin was introduced considerable improvements in the area, investing his life savings therein. At the time of inspection, approximately two (2) hectares of the said area was a veritable and complete with dikes and water breakers, and the remaining portion was surrounded with bamboo stakes. While this Office of Lusin's occupation as having effected by force, this Office also believes that such force was employed by Lusin only to enforce what he believed was his right over the property in question. This being the case, justice and equity demands that Lusin should be compensated of the improvements introduced by him in the area in question by whomsoever shall enjoy the fruits of his (Lusin's) toil. Julian Santolan, being the person who shall benefit from said improvements, it is only fair and just that he should reimburse Lusin of the value of said improvements, especially considering that the said area adjudicated to Santolan is already a producing fishpond.

Antonio Lusin, on the other hand, contends that the order sought to be reconsidered is contrary to the facts of the case and to the law applicable thereto.

Lusin assigns the following errors as having been allegedly committed by this Office:

(1) In holding that the possession of Lusin dated only as Of 195 1;

(2) In holding that the ion of Lusin was effected through force;

(3) In holding that Section 32 of Lands Administrative Order No. 7-1 is applicable in the instant case;

(4) In not holding that the preferential rights of Julian Santolan, granting that he has any, has already prescribed; and

(5) In giving due course to the foreshore lease application of Santolan for the entire area in question.

With respect to the first two assignments of errors, a review of the records of this case shows that the findings of this Office are in accordance with the facts of the case as deduced from the reinvestigation Of this conflict, and as supported by previous records of this case. This Office, therefore, finds no sufficient ground to disturb its findings of facts.

Anent the next two assignments of errors, which are mere reiteration of movant's allegation in his previous memorandum, and which were thoroughly passed upon by this Office, it is believed that discussing them further is no longer necessary since after another close examination of the case, this Office finds its disposition in this particular respect well justified and in accordance with the law and regulations applicable thereto.

Now coming to the last allegation, Lusin contends that the foreshore lease application of Julian Santolan, if given the course, should not cover the entire area in question. Movant Lusin advances the theory that since the reason behind the law in granting preferential rights to reparian owners is to compensate for whatever loss said riparian owner may suffer from the actions of the water, said riparian owner cannot stand to lose more than what he owns, and therefore, since Santolan's property, which adjoins the area in question, is only two (2) hectares, Santolan can never lose more than two hectares.

Section 32 of Lands Administrative Order No. 7-1, the particular Point of law involved provides as follows:

32. Preference of Riparian Owner.— The owner of the property adjoining foreshore lands, marshy lands, or lands covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands, adjoining his property as may not be needed for the public service, subject to the laws and regulations governing lands of this nature, provided that he applied therefor within sixty (60) days from the date he receives a communication from the Director of Lands advising him of his preferential right.

The above-quoted provision of the Lands Administrative Order does not impose any restriction or limitation with respect to the extent of the area to which a riparian owner is preferred as long as said area is not needed for public service. The said order, being clear on this point, this Office has no other alternative but to interpret said regulation in the meaning it clearly conveys.

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the instant motion for reconsideration filed respectively by the conflicting parties herein, should be, as hereby they are, denied.

SO ORDERED.

Manila, Philippines, May 19, 1955.

By authority of the Secretary:

JAIME N. FERRER
Undersecretary of Agriculture
and Natural Resources

 

ANNEX G

4th Indorsemen

Manila, April 10, 1958

Respectfully returned to the Secretary of Agriculture and Natural Resources, Manila.

This is with reference to the appeal by Antonio Lusin from the order of that Department in DANR Case No. 625 (Julian Santolan vs. Antonio Lusin) dated May 19. 1955, whereby his motion for reconsideration of the order of that office of December 14, 1954, rejecting his foreshore lease application for the disputed land but awarding to him the right of reimbursement for the improvements he had introduced thereon and giving due course to appellee's application therefor, was denied.

The land in question is a foreshore land of about 4-1/2 hectares located along Bacoor Bay in barrio Kaingin, Kawit, Cavite. A preferential right to lease it is claimed by the appellant on the ground that he has been in the continuous and exclusive possession thereof since 1920. when said land was still under water and used as a site of his fish corals. On the other hand, it is alleged by the appellee that the disputed lot is an extension of his property into the sea, as he is the owner of Lot No. 986 which, according to its technical description, borders Bacoor Bay on the North; that the present foreshore land was formed by soil deposits brought by the action of the sea; and that he has the right of preference to apply for the land in question in accordance with Section 32 of Lands Administrative Order No. 7-1.

Upon the foregoing facts, the Director of Lands in an order dated February 1, 1951, rejected the appellant's foreshore lease application and forfeited the improvements he had introduced thereon in favor of the appellee. From this order, Lusin appealed to the Secretary of Agriculture and Natural Resources after his three motions for reconsideration had been denied. On October 13, 1952, the Secretary dismiss his appeal. Thereafter, the appellant moved for a reconsideration of the Secretary's decision but his motion was denied on February 28, 1953. He then filed another motion requesting a formal reinvestigation of the case. The motion was granted and that Department ordered a reinvestigation of the case on May 12, 1953.

In the reinvestigation of the case, the following facts were established: That Lusin had converted two (2) hectares of the area in dispute into a veritable fishpond; and that the entire area in question was enclosed with dikes and provided with two (2) sluice gates, one of which was made of concrete and the other of lumber; that on the northern part of the disputed land bordering Bacoor Bay were bamboo poles placed at close intervals serving as water breakers to protect the mud dikes from being washed away by the action of the sea; that all of these improvements were introduced by Lusin in 1951 up to the time of the reinvestigation; that the disputed land was, as it still is. bounded on the South by Lot No. 986 of Julian Santolan; that said land was formed by soil deposits brought by the action of the sea; that in December 1942, Santulan caused the survey of the land, and the survey plan was approved by the Director of Lands in 1944; that on December 29, 1942, Santulan filed a foreshore lease application covering an area of 36,120 square meters of the land in dispute; that the filing of Santolan's foreshore lease application resulted in the investigation of the case in March 1943, involving the parties herein. and that said investigation was not finally terminated for unknown reasons.

After receiving and considering the report of the reinvestigation, that office on December 14, 1954, issued an order modifying its previous stand by giving the appellant the right to reimbursement for the improvements he had introduced on the disputed lot, the dispositive part of which reads:

Wherefore, the above noted foreshore lease (New) application and revocable permit (New) application of Antonio Lusin should remain, as hereby it is, REJECTED; and Foreshore Lease application No. V-62 of Julian Santulan given due course, PROVIDED, he reimburse Antonio Lusin of the appraised value of the improvements now existing in the area within sixty (60) days after notification of said appraisal.

xxx xxx xxx

In the event that Julian Santulan fails to reimburse Antonio Lusin of the appraised value of the said improvements within the period specified in this order, he shall lose his preferential rights over the area and Antonio Lusin will be allowed to file an appropriate public land application therefor.

The appellant moved for a reconsideration of the foregoing order but his motion was denied on May 19, 1955. Dissatisfied, he appealed to this Office, averring that the Department erred in finding the following: That the possession of Antonio Lusin of the land in question began only in 195 1; that since 1942, Julian Santulan had been exercising dominion over the property in question; that the area in question is apparently an extension of lot No. 986 into the sea and that its present existence was the result of the continuous recession of the sea; that the possession of Antonio Lusin over the property in question was effected through force; that Section 32, Lands Administrative Order No. 7-1, is applicable to the instant case; and that the preferential rights of Julian Santolan, granting he has any, has not prescribed. He contends further that the Department erred in rejecting his foreshore lease application and in giving due course to that of the appellee.

The main issue presented by the parties to be resolved in this controversy is, which of them has a better right to lease the foreshore land under consideration? For a clear resolution of the question, it is necessary to look into the legal provisions governing the administration and disposition of foreshore lands. As correctly held by that Department and the Bureau of Lands, the administration and disposition of foreshore lands are governed by Chapter IX, Title III of Commonwealth Act No. 141, (Secs. 58 and 59), otherwise known as the Public Land Act.

Section 61 of said law provides that foreshore lands shall be disposed of to private parties by lease only and not otherwise, as soon as the President, upon recommendation by the Secretary of Agriculture and Natural Resources, shall declare that the same are not necessary for the public service and are open to disposition, The procedure for the award of a lease of foreshore land is found in Section 67 of the same law which provides, as a general rule, that the award of the right to lease a foreshore land shall be determined by oral bidding, except where improvements were introduced thereon by reason of a permit issued by competent authority, in which case the award thereof shall be determined by sealed bidding pursuant to the provisions of section 26, whereby the permittee is granted the right to equal the highest bidder.

Noteworthy is the fact that both parties herein claim to have been in prior possession of the land in controversy than the other. Not one of them, however, was granted a permit by competent authority to occupy and use the land and introduce improvements thereon. Since not one of them was granted such a permit, the fact that one or the other had been in prior possession of the premises in question is immaterial, as will be seen hereafter, in the determination of the instant controversy. Neither is the alleged finding that one of the parties herein entered the premises and introduced improvements thereon in bad faith material to the resolution of the case.

It is likewise significant to note that while the Bureau held that none of the parties herein was entitled to a preferential right to lease the land in question "on the basis alone of Actual occupancy or introduction of improvements," it ruled that the appellee, Julian Santolan, by reason of the fact that he was, as he still is, a riparian owner of the disputed area, had a preferential right to apply for a lease therefor, citing Section 32 of Lands Administrative Order No. 7-1, which reads:

Sec. 32. The owner of the property adjoining foreshore lands, marshy lands, or lands covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property as may not be needed for the public service, subject to the laws and regulations governing lands of this nature, provided that he applies therefor within 60 days from the date he receives a communication from the Director of Lands advising him of his preferential right.

In this appeal, the appellant reiterates his contention before that Department that the foregoing is not applicable to the instant case "because the property in question borders upon the shores or banks of the Manila Bay and not upon navigable lakes or rivers." The fallacy of the argument is too obvious to require any discussion since the provision expressly speaks of foreshore lands. At any rate, this Office finds that Section 32 of Lands Administrative Order No. 7-1 has been rendered obsolete by Commonwealth Act No. 141.

Lands Administrative Order No. 7-1, dated April 30, 1936, but made effective on January 1, 1936, was promulgated before. the passage of Commonwealth Act No. 141. Its provisions which have not been altered, modified or amended, particularly Section 32 thereof, were promulgated pursuant to the existing public land law at the time of its promulgation, namely, Act No. 2874. A perusal of Section 32 of Lands Administrative Order No. 7-1 will show that while it speaks of a preferential right to apply for a foreshore land, it does not specify the mode of application, i.e., whether by sale, lease, homestead, permit, etc., contemplated by it. Nevertheless it is clear under Act No. 2874 that a foreshore land may be the subject only of a lease (Sec. 58), or of a revocable permit to occupy and use it (Sec. 65). Seemingly therefore Section 32 of Lands Administrative Order No. 7-1 contemplates an application for a lease of foreshore land or a revocable permit to use or occupy it. However, Section I of said order provides, among other things, the following:

... Those rules and regulations shall not apply to applications for temporary occupation or provisional use of Said lands and property which shall be governed by the provisions of Section 1844 of the Administrative Code, as amended, by Acts Nos. 3077 and 3852, Lands Administrative Order No. 8 and other regulations promulgated thereunder.

Since Lands Administrative Order No. 7-1 expressly exempts from its operation temporary permits for the use and occupation of public lands, the conclusion is inescapable that Section 32 thereof contemplates an application for a lease under Section 58 of Act No. 2874 only and does not include a revocable permit application under Section 65 of said Act.

The procedure for the award of the right to lease a foreshore land under Act No. 2874 is found in Section 64 thereof, which reads:

Sec. 64. The lease or sale shall be adjudicated to the highest bidder; and if there is no bidder besides the applicant, it shall be adjudicated to him. The provisions of Section twenty-seven of this Act shall be applied wherever applicable.

Section 67 of Commonwealth Act No. 141, repealing the foregoing provisions, provides:

Sec. 67. The lease or sale shall be made through oral bidding; and adjudication shall be made to the highest bidder. However, where an has made improvements on the land by virtue of a permit issued to him by competent authority, the sale or lease shall be made by sealed bidding as prescribed in section twenty-six of this Act, "the provisions of which shall he applied wherever applicable. x x" (Italics supplied).

While Section 64 of Act No. 2874 makes a reference to Section 27 of the same Act, Section 67 of Commonwealth Act No. 141 also Makes a reference to Section 26 of the latter law, Section 26 of Commonwealth Act No. 141 is practically a reproduction of Section 27 of Act No. 2874 and prescribes the manner or procedure of determining an award through sealed bidding in the sale of a public land. Under its provision, an applicant is given the option or right to equal the highest bidder.

Section 67 of Commonwealth Act No. 141 differs, however, from Section 64 of Act No. 2874 in that while the latter provides that "section twenty- seven of this Act shall be applied wherever applicable," making sealed bidding the general rule of procedure in determining an award of a lease of foreshore land, the former Provides the contrary, as under its provisions sealed bidding is not the general rule of procedure in the determination of lease awards of foreshore lands but may be resorted to only when the conditions specified therein are present.

Since Section 64 of Act No. 2874 provides that Section 27 thereof should be applied wherever applicable in determining an award of a lease of foreshore land, the mere fact that the land is covered by a lease application therefor warrants the holding of a sealed bidding for its disposition, whereby the applicant therefor should be granted the option or right to equal the highest bid. In such a legal set-up, the question of preference in the right to apply for a lease of foreshore land became a necessary consequence, as one need only apply to be entitled to the right to equal the highest bid hence, the applicability of Section 32 of Lands Administrative Order No. 7-1.

On the other hand, under Section 67 of Commonwealth Act No. 141, a foreshore land may be leased, as a general rule, by oral bidding only. In such a case, the award of the foreshore lease shall always be made to the highest bidder, notwithstanding the fact that one among the bidders is an applicant, as no one in an oral bidding is entitled to equal the highest bid, unlike in the case of a sealed bidding either under Section 27 of Act No. 2874 or under Section 26 of Commonwealth Act No. 141. Since the award of a foreshore lease shall be given to the highest bidder in an oral bidding, the necessity of determining who among several interested parties has a preferential right to apply for the land has been obviated under the present law, because the mere fact that one is an applicant does not entitle him to equal the highest bid, rendering the provisions of Section 32 of Lands Administrative Order No. 7-1 Idle and useless.

Parenthetically, it may be stated that the appellee brought to the attention of this Office its previous decision in DANR Case No. 694 (Del Rosario vs. Monzon), where the facts involved therein are more or less similar to those in the present controversy. While this Office in that case relied on Section 32 of Lands Administrative Order No. 7-1 in resolving the appeal therein, it did not touch on the question of whether or not said provision is still enforceable, as the same was not squarely placed in issue. For this reason, the ruling in that case can not be availed of as a precedent in the adjudication of the one under consideration.

In the instant case the parties are vying for the preferential right to apply for a lease of the disputed land, as if by the mere fact of application the land should be disposed of by scaled bidding, whereby the recognized applicant therefor should be given the right accorded to applicants under Section 26 of Commonwealth Act No. 141. The only instance under Section 67 of Commonwealth Act No. 141 when a foreshore land may be leased through sealed bidding is when the conditions specified therein — namely, a that improvements had been introduced on the land and (b) that said improvements were introduced thereon by reason of a permit issued by competent authority — are present, in which case the permittee shall be granted the right to equal the highest bid. In the absence of these conditions, the land should be leased through oral bidding only and, as stated earlier. the question of preference in the right to apply therefor is immaterial.

As the conditions specified in Section 67 of Commonwealth Act No. 141 are not present in the instant case, the land in question can be leased only through oral bidding, if it can be disposed of under the provisions of Section 61 of said Act, which requires as a condition sine qua non in the lease of foreshore lands that the same have been declared by the President not necessary for the public service and are open for disposition. Without such a declaration, a foreshore land may only be occupied and used by private persons for lawful purposes upon the issuance of a revocable permit therefor under Section 68 of Commonwealth Act No. 141. Since the record is silent as to whether or not the land under consideration has been so declared, this Office is constrained to render two alternative resolutions of the instant case.

On the assumption that the land in question has been declared open for disposition and is not necessary for the public service, this Office directs that an oral bidding for the leasing thereof to interested parties pursuant to the provisions of Section 67 of Commonwealth Act No. 141 be conducted and the contract of lease awarded to the highest bidder. Whoever shall be the highest bidder, if other than the appellant, shall be required to pay to the appellant the appraised value of the improvements introduced by him on the land to be determined by that Department.

If the land in question has not been so declared, this Office directs that a revocable permit under Section 68 of Commonwealth Act No. 141 be issued to the appellant requiring him to pay permit fees since the year 1951.

Accordingly, the orders and decisions of that Department and the Bureau of Lands are hereby revoked. The record of the case is returned herewith.

By authority of the President:

(SGD) JUAN C. PAJO
Executive Secretary

ANNEX H

5th Indorsement

Manila, May 10, 1954

Respectfully returned to the Honorable, the Secretary of Agriculture and Natuaral Resources, Manila.

In his decision of February 4, 1952, the Director ofLands amended the miscellaneous sales application of Emiliano del Rosario by excluding therefrom portion "B" and adjudicating the same to Gonzalo Monzon under his foreshore lease application. On appeal by Del Rosario, the decision of the Director of Lands was affirmed by the Secretarty of Agriculture and Natural Resources on February 6, 1953. Del Rosario now appeals to this office.

The question presented for determination is, whichof theparties has a better right to the area in question?

It appears that the area in dispute, portion "B", is a foreshore land, an extension od portion "a", which lies immediately adjacent to lot No. 987, private property ofMonzon. The record shows that Monzon and his predecessor in interest have been in possession od said area since before the war, using it as a site for their oyster and "kapis" beds and for the fish coral. It was only in 1951 that Del Rosario through stealth occupied a portion of area in question, building earthen dikes preparatory to converting the land into a fishpond. His entry upon the area was duly protested by Monzon with the Bureau of Lands and the Bureau of Fisheries, both of wich is advised Del Rosario to vacate the premises and to refrain from introducing further improvements thereon.

Upon the facts and the circumstances narrated above, and the pursuant to Section 32 of Lands Administrative Order No. 7-1, which gives tot he owner of the property adjoining foreshores lands and the prefrential right to apply therefor under the provisions of the Public Act, it is evident that Monzon has a better right than Del Rosario tot he area in dispute which, as stated above, is aforeshore land.

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

The record of the case is returned herewith.

By authority of the President:

(SGD.) FRED RUIZ CASTRO

executive Secretary

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