EMINENT DOMAIN NOTES

BY

ATTY ROBERTO A. DEMIGILLO

1. THE POWER TO REGULATE DOES NOT INCLUDE THE POWER TO

CONFISCATE UNLESS THERE IS A NECESSITY TO DESTROY IT
AS IN THE CASE OF ILLEGALLY POSSESSED ARTICLES.
QUEZON CITY VS ERICTA

2. THE ACQUISITION OF THE RIGHT OF WAY CONSTITUTES

TAKING. IT PERPETUALLY DEPRIVES OWNERS OF THEIR
PROPRIETARY RIGHTS . NPC V GUTIERREZ

3. THE GENERAL RULE IS THAT THE TAKING IS THE CRITICAL

DATE IN DETERMINING THE JUST COMPENSATION. THERE WILL
BE AN INJUSTICE TO THE EXPROPRIATOR IF THE INCERMENTAL
ADVANTAGES ARISING FROM THE USE TO WHICH THE
GOVERNMENT DEVOTED THE PROPERTY EXPROPRIATED WILL
ACCRUE IN FAVOR OF THE OWNER.

4, ONE OF THE ELEMENTS OF TAKING IS THE ENTRY INTO THE

PROPERTY UNDER WARRANT OF COLOR OF LEGAL AUTHORITY.
WHEN THE ENTRY IS NOT WITH THE INTENT TO EXPROPRIATE,
THERE IS NO TAKING.

5. A ZONING ORDINANCE WHICH LIMITS A WHOLESOME

PROPERTY TO A USE WHICH CANNOT REASONABLY BE MADE
OF IT CONSTITUTES TAKING OF SUCH PROPERTY WITHOUT JUST
COMPENSATION. A DISTINCTION SHOULD BE MADE BETWEEN
DESTRUCTION FROM NECESSITY AND EMINENT DOMAIN.

6. PROPERTY TAKEN IN THE EXERCISE OF POLICE POWER IS

DESTROYED BECAUSE IT IS NOXIOUS OR INTENDED FOR A
NOXIOUS PURPOSE WHILE PROPERTY TAKEN UNDER THE
POWER OF EMINENT DOMAIN IS INTENDED FOR PUBLIC USE
AND IS WHOLESOME.

7. THE PRIVILEGE ENJOYED BY SENIOR CITIZENS DOES NOT COME

DIRECTLY FROM THE STATE BUT RATHER FROM THE PRIVATE
ESTABLISHMENTS CONCERNED. THE TAX CREDIT BENEFITS
GRANTED BY LAW TO THOSE ESTABLISHMENTS CAN BE
DEEMED AS THEIR JUST COMPENSATION.

8. THE FACT THAT PRIVATE BUSINESSES USE PUBLIC STREETS

DOEST NOT DETRACT FROM THE PUBLIC CHARACTED OF THE
EXPROPRIATION OF PROPERTY FOR STREETS.
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9. THE PROHIBITION AGAINST THE IMPAIRMENT OF CONTRACTS

IS NOT A BARRIER TO THE EXERCISE OF EMINENT DOMAIN.

10. EXPROPRIATION IS NOT CONFINED TO LANDED ESTATES. THE

STATE HAS BROAD DISCRETION TO DESIGNATE THE
PARTICULAR PROPERTY TO BE TAKEN AND HOW MUCH MAY BE
EXPROPRIATED. ITS CHOICE WILL BE LEFT UNDISTURBED IN
THE ABSENCE OF A CLEAR SHOWING OF FRAUD, BAD FAITH OR
GROSS ABUSE OF DISCRETION

11. PRIVATE PROPERTY CANNOT BE EXPROPRIATED TO THE USE

THAT IS NOT PUBLIC.

12. WHERE THE INTENDED BENEFICIARY IS A PRIVATE

HOMEOWNERS ASSOCIATION, THE PURPOSE IS NOT PUBLIC AND
THE NECESSITY ISNOT SHOWN.

13. TO DETERMINE THE JUST COMPENSATION, THE BASIS SHOULD

BE THE VALUE AT THE TIME THE PROPERTY WAS TAKEN. THE
NATURE OF THE LAND AT THE TIME OFTAKING IS THE
PRINCIPAL CRITERION FOR DETERMINING JUST
COMPENSATION. LEGAL INTEREST SHOULD ACCRUE FROM
THAT DATE.

14. THE DETERMINATION OF JUST COMPENSATION IN EMINENT

DOMAIN CASES IS A JUDICIAL FUNCTION. THE METHOD OF
ASCERTAINING THE JUST COMPENSATION UNDER PD 1533 IS AN
IMPERMISSIBLE ENCROACHMENT ON JUDICIAL PREROGATIVE.

15. WHILE REPUBLIC ACT 6657 PROVIDES THAT THE JUST

COMPENSATION WILL BE DETERMINED BY THE DEPARTMENT
OF AGRARIAN REFORM, THE DETERMINATION IS ONLY
PRELIMINARY. THE COURTS STILL HAVE THE RIGHT TO REVIEW
IT.

16. THE PROCESS OF EXPROPRIATION IS NOT COMPLETED UNTIL

PAYMENT OF JUST COMPENSATION. THE FAILURE OF THE
REPUBLIC TO PAY FOR A PERIOD OF 57 YEARS RENDERED THE
EXPROPRIATION PROCESS INCOMPLETE. RECOVERY OF
POSSESSION IS IN ORDER.

17. WHERE PRIVATE PROPERTY IS TAKEN BY THE GOVERNMENT

FOR PUBLIC USE WITHOUT FIRST ACQUIRING TITLE TO IT
THROUGH EXPROPRIATION OR NEGOTIATED SALE, THE ACTION
OF THE OWNER TO RECOVER THE LAND OR ITS VALUE DOES
NOT PRESCRIBE.

18. UNTIL EXPROPRIATION PROCEEDINGS ARE ACTUALLY FILED, A

LANDOWNER CANNOT BE DEPRIVED OF HIS RIGHTS OVER THE
LAND.
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19. THE OWNER OF A PARCEL OF LAND CAN RECOVER POSSESSION

FROM SQUATTERS EVEN IF HE AGREED TO TRANSFER THE
PROPERTY TO THE GOVERNMENT UNTIL THE TRANSFER IS
CONSUMMATED OR AN EXPROPRIATION CASE IS FILED.

20. UNTIL THE OWNER OF THE PROPERTY EXPROPRIATED IS PAID

JUST COMPENSATION, HIS TITLE CANNOT BE CANCELLED.

21. PROPERTY ALREADY DEVOTED TO PUBLIC USE CAN STILL BE

THE SUBJECT OF EXPRORPIATION PROVIDED THIS IS DONE
DIRECTLY BY THE NATIONAL LEGISLATURE OR UNDER A
SPECIFIC POINT OF AUTHORITY TO THE DELEGATE. A MERE
GENERAL AUTHORITY MAY NOT SUFFICE.

22. THE ISSUE OF NECESSITY IS ESEENTIALLY POLITICAL WHEN

DECIDED BY THE LEGISLATURE AND AS A RULE, NOT SUBJECT
TO JUDICIAL REVIEW. BUT WHERE THE QUESTION IS DECIDED
BY AMERE DELEGATE OF THE LEGISLATURE, THE COURT MAY
ASSUME THE POWER TO INQUIRE WHETHER THE AUTHORITY
CONFERRED UPON THE DELEGATE HAS BEEN CORRECTLY OR
PROPERLY EXERCISED.

23. NOT EVERY TAKING IS COMPENSABLE AS TI MAY BE JUSTIFIED

UNDER THE POLICE POWER. WHERE THERE IS A VALID
EXERCISE OF POLICE POWER AIMED AT IMPORVING THE
GENERAL WELFARE, WHATEVER DAMAGES SUSTAINED BY
PROPERTY OWNERS ARE REGARDED AS MERELY INCIDENTAL
TO A PROPER EXECUTION OF SUCH POWER.

24. WHEN ONE OR MORE OF THE PROPERTY INTERESTS ARE

APPROPRIATED AND APPLIED TO SOMEPUBLIC PURPOSE, THERE
IS ALREADY COMPENSABLE TAKING EVEN IF BARE TITLE TO
THE PROPERTY STILL REMAINS WITH THE PRIVATE OWNER.

25. IF IT IS PATRIMONIAL PROPERTY OF THEMUNICIPALITY, THAT

PROPERTY ACQUIRED BY THE MUNICIPALITY WITH ITS
PRIVATE FUNDS IN ITS CORPORATE OR PRIVATE CAPACITY AND
COMPENSATION IS REQUIRED.

26. IF IT IS ANY PROPERTY HELD BY THE MUNICIPALITY FOR THE

STATE IN TRUST FOR THE INHABITANTS, THE STATE IS FREE TO
DISPOSE OF IT AT WILL.

27. THE LGU CANNOT EXERCISE POWER FO EMINENT DOMAIN

UNLESS A VALID AND DEFINITE OFFER HAS BEEN PREVIOUSLY
MADE TO THE OWNER AND SUCH OFFER WAS NOT ACCEPTED.

28, AS A RULE, JUST COMPENSATION SHOULD BE FIXED AS OF THE

DATE OF FILING OF THE COMPLAINT. EXCEPTION IS IF THE
EXPROPRIATOR ENTERS UPON THE PROPERTY TO BE
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CONDEMED BEFORE FILING THE COMPLAINT FOR

EXPROPRIATION AND THE OWNER IS DEPRIVED OF THE
BENEFICIAL USE OF HIS PROPERTY, THEN, JUST COMPENSATION
IS DETERMINED AT THE TIME OF TAKING.

29. IF THE OWNER IS NOT PAID THE FULL AMOUNT OF HIS

PROPERTY EXPROPRIATED AFTER A FINAL JUDGMENT WAS
MADE, HIS OPTIONS ARE A\ HE CAN FILE A SUIT FOR
GARNISHMENT AND B/ THE OWNER CAN FILE A PETITION FOR
MANDAMUS.