Haystack: Mercado v. Municipal President of Macabebe (GR 37986, 1 March 1934)

Mercado v. Municipal President of Macabebe
[G.R. No. 37986. March 1, 1934.]
Second Division, Diaz (J): 4 concur

Facts: Mariano Mercado, the original owner of the hacienda, in order to facilitate the cutting and transportation of firewood and other products, produced on the said hacienda, towards the Nasi River on the east or towards Limasan creek on the west, connected the two recesses or bodies of water in question by means of excavation and, after having so connected them, made other excavations at both ends towards the said directly connecting both bodies of water, and which later became known as the Batasan-Limasan or Pinac Buñgalun creek. Said Batasan-Limasan or Pinac Buñgalun creek or canal already existed at the time of the institution of the registration proceedings wherein judgment was rendered resulting in the issuance of certificate of title 329 in favor of Romulo Mercado. On the plan of the land, which was presented in the said case, the aforesaid creek appears; and at the time the case was tried as well as when the certificate of title was issued in favor of the Romulo Mercado, none of the herein defendants nor the Insular Government filed opposition or objection thereto.

Once the said Batasan-Limasan or Pinac Buñgalun creek or canal was opened from the Nasi River to Limasan creek, not only the residents of the hacienda and those who visited it but also some of the residents of the nearby barrios and municipalities began to use it as a means of communication in attending to their needs, sometimes with the permission of the owners of the hacienda, and at other times without even the latter's knowledge. It was then that Romulo Mercado, the appellant's (Eufemia Mercado) predecessor in interest, decided to convert the said creek into a fish pond and with that object in view, in 1928 he closed the two openings thereof towards the Nasi River on one side and Limasan creek on the other side. The Secretary of Commerce ordered Romulo Mercado to remove the two dikes which he had constructed at both ends of the creek named Batasan-Limasan or Pinac Buñgalun, which traverses part of the hacienda described in certificate of title 329 of the registry of deeds of Pampanga, and formerly belonging to Romulo Mercado, but which now belonging to the Eufenua by virtue of a formal donation made to her.

Eufemia Mercado appealed the order of the Secretary of Commerce with the CFI Pampanga; which later dismissed said appeal, holding the creek in question as property of the public domain. Hence, the present petition.

The Supreme Court affirmed the judgment appealed from, with costs against the appellant.

1. Notice cannot constitute sufficient evidence
A mere notice does not constitute sufficient evidence that the creek in question is the property of the public domain. Such evidence cannot be given any weight, as it was not established that anyone ever obtained the privilege of fishing in the Batasan-Limasan creek, such privilege being placed at public auction.

2. Public and Private ownership under the Spanish Civil Code of 1889

1. As to Public Ownership; Articles 339 of the Spanish Civil Code of 1889 provides that property of public ownership includes “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." Article 407 of the same Code provides that “(1) Rivers and their natural channels; (2) Continuous or intermittent waters from springs or brooks running in then natural channels and the channels themselves; (3) Waters rising continuously or intermittently on lands of public; xxx (8) Waters which flow continuously or intermittently from lands belonging to private persons, to the State, to provinces, or to towns from the moment they leave such lands; xxx” are of public ownership.
2. As to Private Ownership; Article 408 of the Spanish Civil Code of 1889 provides that “(1) Waters, either continuous or intermittent rising on private estates, while they run through them; (2) Lakes and ponds and their beds when formed by nature on such estates; (3) Subterranean waters found therein; (4) Rain waters falling thereon as long as they remain within their boundaries; and (5) The channels of flowing streams, continuous or intermittent formed by rain water, and those of brooks crossing estates which are not of public ownership” are of private ownership.
3. Further, "the water, bed, banks, and floodgates of a ditch or aqueduct are deemed to be an integral part of the estate or building for which the waters are intended. The owners of estates through or along the boundaries of which the aqueduct passes can assert no ownership over it, nor any right to make use of its beds or banks, unless they base their claim on title deed which specify the right or the ownership claimed."

3. Article 408(5) speaks of channel of creeks and not the creek itself
Appellant cannot invoke in her favor the Article 408 (5) on the ground that although it is true that the Batasan-Limasan or Pinac Buñgalun creek passes through her hacienda, it is none the less true that it is not included in any of the kinds of private property therein enumerated. The appellant and her predecessors in interest, in closing the two openings of the said creek and converting it into a fish pond, not only appropriated for themselves the channel of the said creek but also the creek itself.

4. Creek and brook distinguished
A creek is not a brook because the latter is but a short, almost, continuous stream of water (Diccionario de la Real Academia Española), while the former is a recess or arm extending from a river, which participates in the ebb and flow of the sea. (15 Enciclopedia Juridica Española, 216.)

5. Creeks are property of public domain
Article 339 provides that canals, rivers, torrents, and those of a similar character are property of public ownership, and the similarity between rivers, canals, and creeks undoubtedly obvious on the ground that, as has been stated, a creek is no other than arm extending from a river. Furthermore, under article 407, the Batasan-Limasan or Pinac Buñgalun creek may be considered as belonging to the class of property enumerated in paragraph 8 thereof. And, in addition to the foregoing, the Contentious Court of Spain (Tribunal Contencioso de España) in a decision dated June 25, 1890, laid down the doctrine that creeks are property of the public domain (15 Enciclopedia Juridica Española, 216).

6. Use and enjoyment of a creek may be acquired or lost through prescription
Even granting that the Batasan-Limasan creek acquired the proportions which it had, before it was closed, as a result of excavations made by the laborers of the appellant's predecessor in interest, it being a fact that, since the time it was opened as a water route between the Nasi River and Limasan creek, the owners thereof as well as strangers, that is, both the residents of the hacienda and those of other nearby barrios and municipalities, had been using it not only for their bancas to pass through but also for fishing purposes, if the appellant and her predecessors in interest had acquired any right to the creek in question by virtue of excavations which they had made thereon, they had lost such right through prescription inasmuch as they failed to obtain, and in fact they have not obtained, the necessary authorization to devote it to their own use to the exclusion of all others. The use and enjoyment of a creek, as any other property susceptible of appropriation, may be acquired or lost through prescription, and the appellant and her predecessors in interest certainly lost such right through the said cause, and they cannot now claim it exclusively for themselves after the general public had been openly using the same from 1906 to 1928.

7. Title does not confer any right to the creek
It is useless for the appellant to allege that she has obtained certificate of title 329 in her favor because the said certificate does not confer upon her any right to the creek in question, inasmuch as the said creek, being of the public domain, is included among the various exceptions enumerated in section 39 of Act 496 to which the said certificate is subject by express provision of the law, and furthermore, because it so appears in the certificate itself.

8. Government of the Philippine Islands v. Santos does not apply in present case
The doctrine laid down in the case of the Government of the Philippine Islands vs. Santos (G.R. No. 27202, promulgated September 2, 1927, not reported) is not applicable in the present case because the subject matter in that case is not of the same nature as the Batasan-Limasan or Pinac Buñgalun creek. The thing involved therein was simply a date or, in the words of the trial court, a low depression on the defendant's land where there was a waterway passable by bancas at high tide, but which completely dried up at low tide and during the dry season. The thing involved herein, the Batasan-Limasan creek, is perfectly navigable by bancas throughout the year. Furthermore, in the case of Urbano Santos, the creek in question was closed a few years after excavations had been made in the land under consideration.

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