TITLE IV.

SOME SPECIAL
PROPERTIES
Maricar Corina Canaya

Chapter 1 - WATERS
Section 1
OWNERSHIP OF WATERS

Art. 502. The following are of public

dominion:

(1) Rivers and their natural beds;

(2) Continuous or intermittent waters of springs and brooks
running in their natural beds and the beds themselves;
(3) Waters rising continuously or intermittently on
lands of public dominion;
(4) Lakes and lagoons formed by nature on public lands,
and their beds;
(5) Rain waters running through ravines or sand beds, which
are also of public dominion;

(6) Subterranean waters on public lands;

(7) Waters found within the zone of operation of
public works, even if constructed by a contractor;
(8) Waters rising continuously or intermittently on
lands belonging to private persons, to the State, to
a province, or to a city or a municipality from the
moment the leave such lands;
(9) The waste waters of fountains, sewers and
public establishments.

Public waters are for the use of the general public, therefore,
if a river runs thru two
municipalities, neither may monopolize its use, or obstruct its
use by another municipality by, for example, the construction
of a dam. (Bautista v. Alarcon, 3 Phil. 631)
Can a dam be removed?

Yes, a dam can be ordered removed. (Mangaldan v.

Manaoag, 38 Phil. 455).

Is a river in general a part of public

dominion?

A river, whether navigable or not, is of

public dominion, since the law makes no
distinction, hence a non-navigable river
cannot be acquired by prescription

We have to note that:

A creek is merely an arm of a river, and must,

therefore, be classified as property of public
dominion
A spring is a place thru which water comes up from
the earth by the operation of natural resources,
although originally artificially opened by man.
Esteros are of public dominion, and are, therefore,
nonregisterable

We have to note that:

A stream located within private land is

still property of public dominion (hence,
public water), even if the Torrens Title of
the land does not show the existence of
said stream.

Can lots which had always formed part

of a lake be subject to registration?

No, Lots which had always formed part of a lake,

washed and inundated by the waters thereof are
not subject to registration, being outside the
commerce of men.
Since the lots are of public domain, the
registration court doe not have jurisdiction to
adjudicate said lots as private property, the
principle of res judicata does not apply (Republic
v. Lat Vda. de Castillo,GR 69002)

Art. 503. The following are of private

ownership:

(1) Continuous or intermittent waters rising on lands

of private ownership, while running through the
same;
(2) Lakes and lagoons, and their beds, formed by
Nature on such lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they
remain within the boundaries;

Art 503

(5) The beds of fl owing waters,

continuous or intermittent, formed by
rain water and those of brooks,
crossinglands which are not of public
dominion

Art 503

In every drain or aqueduct, the water, bed, banks

and
floodgates shall be considered as an integral part of
the land or building for which the waters are
intended. The owners of lands, through which or
along the boundaries of which the aqueduct passes,
cannot claim ownership over it, or any right to the
use of its bed or banks, unless the claim is based on
titles of ownership specifying the right or ownership
claimed.

Are There Really Private Waters?

It would seem that there are private waters in Art.

503. However, this is very much in conflict with
Sec. 2, Art. XII of the 1987 Constitution is in conflict.
Art. XII, Sec. 2 says that:

All lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the
State.

It is to note that

Waters rising on private lands are private

waters, until they go to lands of public dominion,
in which case they become public waters
Waste waters of private establishments are not
public
waters.
Under the new Water Code, there are no private
waters.

How about foreshore lands?

Foreshore land is that part of the land which is

between
high and low water and left dry by the flux and reflux
of the tides. It is a strip of land that lies between the
high and low water marks and is alternatively wet and
dry according to the flow of the tide
(Republic v. Imperial, Jr., 303 SCRA 127)

Section 2
THE USE OF PUBLIC WATERS

Art. 504. The use of public waters is

acquired:

(1) By administrative concession;

(2) By prescription for ten years.
The extent of the rights and obligations of
the use shall be that established, in the first
case, by the terms of the concession, and,
in the second case, by the manner and form
in which the waters have been used.

Rules that Govern the Use of Public

Waters

If acquired by administrative concession the terms

of
the concession.
If acquired by prescription for 10 years the manner
and form of using the waters (under the old Code, the
period was 20 years)

Governing Law for an

Administrative Concession

Secs. 14-17 of the Irrigation Law (Act 2152 as amended

by Act 3523) govern the procedure for obtaining an
administrative concession.
An application therefore must be made to the Secretary
of Public Works and Communications thru the
Director of Public Works.

Order of Preference in Obtaining a

Concession

In obtaining a concession, the order of

preference is as follows:
(a) The first to appropriate is given a better
right to ask for a concession.
(b) When the claimants appropriated at the
same time, preference is given in accordance
with the use intended, in this order:

1) domestic use (like drinking, cooking)

2) agricultural use or power development for
agricultural purposes
3) industrial uses
4) fishponds
5) mining uses or milling connected with mining
purposes.
To obtain a concession for water, there must be a
legislative franchise.

Honorio Bulao v. CA, et al. GR 101983

involves water and water rights and is

thus a water dispute

Art. 505. Every concession for

the use of waters is understood to
be without prejudice to third
persons.

Eusebio v. Aguas, 47 Phil. 567

A person given a concession should not

build a dam
that would divert the flow of the waters
and cause damage to others. The injured
party has the right to ask for the removal
of the dam. This is true, even if the injury
is only expected and not yet actual.

Art. 506. The right to make use

of public waters is extinguished by
the lapse of the concession and
by non-user for five years.

Extinguishment of the Right to Make Use

of Public Waters

even if there be a concession, non-user

for five years would extinguish the right
to make use of public waters.
Non-user applies also when the use was
first acquired by prescription.

Non-user is total or partial

abandonment.
Partial abandonment results in a
lawful use only of that part not yet
abandoned.
Fortuitous events excuse non-users.

Section 3
THE USE OF WATERS OF PRIVATE
OWNERSHIP

Art. 507.

The owner of a piece of land on which a spring or

brook rises,
be it continuous or intermittent,
may use its waters while they run through the
same,
but after the waters leave the land they shall
become public,
and their use shall be governed by the Special
Law of Waters of August 3, 1866, and by the

Conversion of Waters When They Leave

Private Lands

On the land of A, waters rise. Said waters may

be used by A, but after they leave the land,
said waters belong to the public unless they
enter a private estate instead, in which case,
said estate will have their use until they
finally leave said private estate.

Riparian Ownership

Riparian rights flow out of riparian

ownership.
To be riparian, land must have actual
contact with the water, not be merely
proximate to it

Riparian Rights

(a) right to the natural fl ow of the

waters
(b) right of access to and use of the
waters
(c) right of accretion.

Art. 508.

The private ownership

of the beds of rain waters
does not give a right to make works or
constructions
which may change their course to the damage of
third persons,
or whose destruction, by the force of floods, may
cause such damage.

Art. 509.

No one may enter private property

to search waters or make use of them
without permission from the owners,
except as provided by the Mining Law.

Art. 510.

The ownership which the proprietor of a

piece
of land has over the waters rising thereon
does not prejudice the rights
which the owners of lower estates may
have legally acquired to the use thereof.

Sideco vs Cerenas

There are neighbors: A, a new owner who occupies

the
higher estate; and B, who occupies the lower one.
Waters rise on As estate.
Although A is the owner of said waters, still he
cannot divert the course of the waters in such a way
as to prevent B from using said waters in case B had
already previously acquired the right to use the
same.
Vested rights are protected by the law.

Art. 511

Every owner of a piece of land

has the right to construct within his property,
reservoirs for rain waters,
provided he causes no damage to the public
or to third persons.

Section 4
SUBTERRANEAN WATERS

Art. 512.

Only the owner of a piece of land, or

another person with his permission, may
make explorations thereon for subterranean
waters, except as provided by the Mining Law.
Explorations for subterranean waters on lands
of public dominion may be made only with the
permission of the
administrative authorities.

Art. 513.

Waters artificially brought forth in

accordance with the Special Law of
Waters of August 3, 1866, belong to the
person who brought them up.

Mirasol vs Mun. of Tabaco

If you allow another to incur expenses by

permitting him to bore a well on your own
land, you cannot later on refuse
permission for him to use the well without
reimbursing him therefor, otherwise fraud
will be encouraged. As a matter of fact,
you can be considered in estoppel.

Art. 514.

When the owner of waters artificially

brought to the surface abandons them to
their natural course, they shall become
of public dominion.

Section 5
GENERAL PROVISIONS

Art. 515.

The owner of a piece of land on which there are

defensive works to check waters, or on which, due to
a change of their course, it may be necessary to
reconstruct such works,
shall be obliged, at his election,
either to make the necessary repairs or construction
himself, or to permit them to be done, without
damage to him, by the owners of the lands which
suffer or are clearly exposed to suffer injury.

A, on his lot, constructed a dam to

check certain waters. But the dam is
now in great need of repair. May the
adjoining owners demand the repair?

Ans.

Yes, because their properties may be

damaged. A
can be obliged to either:
(a) repair the dam himself,
(b) or let the others repair the dam.
Cost will be borne by those who would be
benefited.
No damage must be caused on As land

Art. 516.

The provisions of the preceding article are

applicable to the case in which it may be
necessary to clear a piece of land of matter,
whose accumulation or fall may obstruct the
course of the waters, to the damage or peril
of third persons.

On As lot is a large deposit of matter.

As neighbors feel that the deposit might
fall, and hence, might obstruct the
course of the waters which they need.
May the neighbors ask for the removal of
said accumulated matter?

Yes, A can be obliged to either:

(a) clear the land himself,
(b) or have the land cleared by others.
But the neighbors cannot take matters
into their own hands and just construct a
canal on As estate, for their only
recourse is to exercise the option.

Art. 517. All the owners who participate in the

benefits arising from the works referred to in
the two preceding articles, shall be obliged to
contribute to the expenses of construction in
proportion to their respective interests.
Those who by their fault may have caused the
damage shall be liable for the expenses.

Art. 518.

All matters not expressly determined by

the provisions of this Chapter shall be
governed by the special Law of Waters of
August 3, 1866, and by the Irrigation
Law.

Presidential Decree 1067

A DECREE INSTITUTING A WATER CODE,
THEREBY REVISING AND CONSOLIDATING THE
LAWS GOVERNING THE OWNERSHIP,
APPROPRIATION, UTILIZATION, EXPLOITATION,
DEVELOPMENT,
CONSERVATION AND PROTECTION OF WATER
RESOURCES

Art. 4. Waters, as used in this Code,

refers to water under the ground,
water above the ground,
water in the atmosphere
and the waters of the sea within the
territorial jurisdiction of the Philippines.

Art. 5. The following belong to the State:

a. Rivers and their natural beds;

b. Continuous or intermittent waters of springs and
brooks running in their natural beds and the beds
themselves;
c. Natural lakes and lagoons;
d. All other categories of surface waters such as water
flowing over lands, water from rainfall whether natural
or artificial, and water from agricultural runoff, seepage
and drainage;

e. Atmospheric water;
f. Subterranean or ground waters; and
g. Seawater.

Art. 6. The following waters found on

private lands also belong to the State:

a. Continuous or intermittent waters rising on such

lands;
b. Lakes and lagoons naturally occurring on such
lands;
c. Rain water falling on such lands;
d. Subterranean or ground waters; and
e. Waters in swamps and marshes.

Waters may be appropriated in accordance

with the law (Sec. 9)
Waters may be appropriated for Domestic,
Municipal, Irrigation, Power generation,
Fisheries, Livestock raising, Industrial,
Recreational; and other purposes. (Sec. 10)

Where the issue involved is not on a settlement of

water
rights dispute, but the enjoyment of a right to water
use for which a permit was already granted, the
regular court has jurisdiction over the dispute, not
the National Water Resources Council. (Amistoso v.
Ong, 130 SCRA 228)