EUFEMIA MERCADO V. THE MUNICIPAL PRESIDENT OF MACABEBE, PAMPANGA, and THE SECRETARY OF COMMERCE AND COMMUNICATIONS

G.R. No. L-37986             March 1, 1934

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 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 in favor of Romulo Mercado.

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 because residents nearby started using it.

The Secretary of Commerce ordered Romulo Mercado to remove the two dikes which he had constructed at both ends of the creek. 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, this petition.

ISSUE

Whether the subject property belong to Eufemia Mercado.

RULING

No. 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.

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. 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.”

Appellant cannot invoke in her favor the Article 408 (5) on the ground that although it is true that the BatasanLimasan 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.

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.