532 Phil. 109
CARPIO MORALES, J.:
. . . I personally visited the area applied for by the herein applicant and found that the same is actually occupied and used by them as a sanctuary of their marine equipment which they are using in their construction work of the Iloilo Port. The applicant has also introduced some facilities on the area applied for in the repair and maintenance of said equipment. A portion of the land applied for has already been filled up by the applicant as they are in need of a land area for the repair and maintenance of their equipment and in the loading and unloading of materials that they use in the construction of the Iloilo City Port.Petitioner Siain Enterprises Inc. (SIAIN), who purchased from the DBP the properties previously owned by WESVICO including Lot 3309,[6] filed on September 29, 1986 a foreshore lease application[7] over the foreshore land adjacent to the properties it bought from DBP.
x x x x[5] (Emphasis and underscoring supplied)
. . . While it cannot be denied that protestant is now the registered owner of the property adjoining the foreshore in question, the disputed foreshore cannot be considered to have been built or formed by means of accretion but is a reclaimed land made by respondent F.F. Cruz and Company for the purpose of utilizing the same in the loading and unloading of their equipment and materials and for the repair and maintenance of said equipment which respondents use in the reclamation of the Iloilo City Port. This is supported by the findings of the District Land Officer Norberto Bernas who, in his letter dated February 18, 1984 to this Office, reported that he personally visited the foreshore in question and found that the same is now actually occupied and used by the respondent company as a sanctuary of its marine equipment which it is using in its construction work of the Iloilo City Port and that a portion of the land applied for has already been filled up by the applicant to be utilized in the repair and maintenance of its equipment and in the loading and unloading of materials it uses in the construction of the Iloilo City Port. It is therefore clear that the foreshore in question is neither an accretion nor an accessory to protestants' property. While protestant SEI appears to be owner of the property adjacent to the disputed foreshore, it cannot be considered as a riparian owner within the contemplation of the aforementioned law.[11] (Emphasis and underscoring supplied)
WHEREFORE, it is ordered that the protest of SIAIN Enterprises, Inc. be, as it hereby it is, dismissed and this case, dropped from the records. Both Foreshore Lease Application Nos. (VI-5) 220 and (VI-1) 176 of SIAIN Enterprises, Inc. and F.F. Cruz and Co., Inc. respectively, shall be amended in such a way that SIAIN's application shall cover SEVENTY (70) linear meters of the disputed foreshore adjoining Lot 3309 while F.F. Cruz's application shall cover SIXTY (60) linear meters thereof. Accordingly, both applications shall be give due course in accordance with the provisions of the Public Land Law, otherwise known as Commonwealth Act No. 141, as amended.[12] (Underscoring supplied)SIAIN appealed to the Secretary of the Department of Environment and Natural Resources (DENR), arguing that the LMB:
By Decision[14] of May 6, 1997, then DENR Acting Secretary Antonio G.M. La Viña set aside the LMB Order, the pertinent portions of which decision read:
- . . . made [a] false assumption of fact when it considered the foreshore area under . . . controversy as reclaimed land;
- . . . committed a grave error in not considering the preferential right of the riparian owner/littoral owner, . . . to apply for a lease over the foreshore under controversy; [and]
- . . . erred in awarding sixty (60) linear meters of the foreshore under controversy to [F.F. Cruz].[13]
It is blatant error to consider the contested area as reclaimed land as it has no basis in fact, in law and jurisprudence.
The area in question is unquestionably a natural foreshore for which various applicants prior to the herein parties have applied. CRUZ's F.L.A. No. (VI-1) 176 itself which was filed on July 7, 1983, long after it had allegedly filled up the area undeniably shows CRUZ's admission that it is a foreshore and not something else.
The assumption that the contested area is a reclaimed land runs smack against the provision of Article 5 of the Spanish Law on Waters of August 3, 1866 stating that:
"Lands reclaimed from the sea in consequence of works constructed by the State, or by provinces, pueblos or private persons, with proper permission, shall become the property of the party constructing such works, unless otherwise provided by the terms of the grant of authority."
We cannot find in the records anything to show that a "permission" was ever sought by or granted to, CRUZ for the alleged reclamation of the land in question.The DENR Acting Secretary thus ordered that the application of F.F. Cruz be amended to exclude the disputed foreshore area adjacent to Lot 3309 and that SIAN's application be given due course.
x x x x
It is by reason of the Director of Lands' erroneous classification of the contested area as "reclaimed" that he awarded 60 linear meters thereof to CRUZ. However, as heretofore discussed, the said area in question is clearly a natural foreshore and SIAIN is correct in claiming it to be so. Hence, the law that applies in this case is Section 32 of Lands Administrative Order No. 7-1 which was issued by the Secretary of the then Department of Agriculture and Natural Resources . . .
x x x x
It is an undisputed fact that SIAIN is the registered owner of the land adjoining the foreshore area in controversy. Hence SIAIN is the riparian/littoral owner insofar as the contested foreshore area is concerned and should enjoy the preferential right to lease the entire one hundred thirty (130) linear meters of said area adjoining its property, which includes the sixty (60) linear meters thereof awarded to CRUZ in the questioned Order.
x x x x[15] (Emphasis supplied; underscoring partly in the original and partly supplied)
By Decision[17] of March 12, 1999, the Office of the President, through then Executive Secretary Ronaldo B. Zamora, reversed the decision of the DENR Acting Secretary and reinstated that of the LMB in this wise:
- IN DISREGARDING THE FINDINGS OF THE DIRECTOR OF LANDS MANAGEMENT BUREAU THAT THE CONTROVERTED AREA IS A RECLAIMED LAND UNDERTAKEN BY APPELLANT F.F. CRUZ . . .
- IN RULING THAT [SIAIN] HAS A PREFERENTIAL RIGHT OVER THE PROPERTY IN DISPUTE; [and]
- IN ISSUING THE SUBJECT DECISION CONSIDERING THAT HE IS NOT EMPOWERED BY LAW OR RULE TO ISSUE THE SAME.[16]
Records reveal that WESVICO, who may be considered as the real riparian owner, had previously availed itself of the preferential right to apply for the foreshore area adjacent to its property. However, it withdrew its application, and instead sought the titling of said property via a petition for registration filed with the court, which eventually archived the case for petitioner's lack of interest. In net effect, WESVICO's preferential right adverted to, albeit initially pursued, was thereafter abandoned due to its voluntary withdrawal of the corresponding application and its erroneous resort to some other mode of acquisition, i.e., the filing of a petition for registration. Consequent to such abandonment, it may be said that WESVICO had already waived its preferential right over the controverted area at the time SIAIN purchased the adjacent property. As vendee, SIAIN was subrogated not only to the rights and actions of its predecessor-in-interest, WESVICO, but also to the absence/lack of those.In its petition for review before the Court of Appeals, SIAIN raised the issues of 1) whether the disputed area is reclaimed land or foreshore land and if found to be foreshore land, 2) whether SIAIN has preferential right to lease the same.[19]
Also decidedly going for CRUZ is the fact that it applied for the disputed area, occupied the same and introduced improvements thereon long before SIAIN filed its own lease application. Subject to certain exceptions, it is axiomatic in public land grant that he who is first in time is preferred or stronger in law – Priore in tempore, potior jure.
It may be, as stated by the DENR, that the contested area abuts upon the titled property of SIAIN, a circumstance which ordinarily would accord that firm a preferential right to lease the property in question, the rule being that a riparian/littoral owner enjoys preference over the abutting foreshore lands formed by accretion or alluvial deposits.
x x x x
. . . The principle thus enunciated in Santulan properly applies where the adjoining lot is a natural foreshore, meaning that the foreshore was formed by what may rightfully be considered as accretion, or the settling down, by natural causes, of soil, earth and other deposits. But such is not what it obtains in this case, contrary to the bare assertion of the DENR Acting Secretary that the "area in question is unquestionably a natural foreshore." . . .
x x x x
Not being the product of accretion, the disputed strip of foreshore land cannot be the proper subject of a riparian or littoral claim.
x x x x
The actuality of the DENR not formally granting CRUZ a permit to undertake reclamation works on the disputed area can be conceded. But in the light of the Bernas report, . . . there can be no quibbling that CRUZ occupied and raised, thru filling, the area to its present level, with the implicit consent, if not approval, of lands authorities. That consent and/or approval have been given may be deduced from the fact that the Bureau of Lands required the payment of, and received from appellant, the amount of P40,032.00 as occupation fee. Any suggestion that CRUZ, after paying the occupational fee, merely planted itself on the disputed area without as much as dredging and filling the same is unacceptable. In a very real sense, therefore, the reclamation work undertaken by CRUZ was with the proper permission, or at least the acquiescence of the Bureau of Lands, the agency which, following Insular Government v. Aldecoa (19 Phil. 505), is empowered to grant such permit in behalf of the DENR Secretary.[18] (Emphasis and underscoring supplied)
The DENR Secretary found the LMB's classification of the disputed area as "reclaimed" erroneous for lack of basis in fact, law and jurisprudence.
- Preference of Riparian Owner. – The owner of the property adjoining foreshore 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 therefore within sixty (60) days from the date he receives a communication from the Director of Lands advising him of his preferential right.[23] (Emphasis supplied)
Now, then, is there any justification for giving to the littoral owner the preferential right to leasethe foreshore land abutting on his land?Furthermore, as reflected above, the Office of the President, finding that F.F. Cruz's occupation and introduction of improvements on the contested area long before SIAIN filed its lease application, held that "it is axiomatic in public land grant that he who is first in time is preferred or stronger in law."
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 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 owners of the estates adjacent thereto and as increment thereof."
In other words, article 4 recognizes the preferential right of the littoral (riparian according to paragraph 32) to the foreshore land formed by accretions or alluvial deposits due to the action of the sea.
The reason for the preferential right is the same as the justification for giving accretions to the riparian owner for the diminutions which his land suffers by reason of the destructive force of the waters. So, in the case of littoral lands, he who loses by the encroachments of the sea should gain by its recession.[25] (Emphasis and underscoring supplied)
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. Strictly speaking, "riparian" refers to rivers. A riparian owner is a person who owns land situated on a bank of a river.[24] Supra.
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 of the shore zone between the high and low watermarks.