Title IV.

SOME SPECIAL PROPERTIES

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 they leave such lands;
(9) The waste waters of fountains, sewers and public establishments. (407)

Public waters – are for use of the general public (Bautista v. Alarcon, 3 Phil. 631)
– EXAMPLE:
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. The dam can be ordered removed.
(Mangaldan v. Manaoag, 38 Phil. 455).
River – whether navigable or not, is of public dominion
– a non-navigable river cannot be acquired by prescription. (See Com. v. Meneses, 38 O.G. 2839).
Some Doctrines:
1. Creek – an arm of the river; classified as public dominion
– is really property of public dominion, being an arm or extension of a river.
– But even granting that it is private, still, if used by the general public for a long time (1906-1928),
it has ceased to be private, and the alleged owner or claimant has no right to prevent the public
from using the same. (Mercado v. Mun. Pres. of Macabebe, 59 Phil. 592).
2. Because rivers belong to the public, dams and other constructions thereon cannot be made without
proper authorization. (See Meneses v. Commonwealth, 40 O.G. 7 Supp. 41).
3. Spring – a place thru which water comes up from the earth by the operation of natural resources, although
originally artificially opened by man. (56 Am. Jur. 612).
4. Esteros – are of public dominion; non-registerable (Insular Gov’t. v. Naval, [CA] 40 O.G. 11th Supp. 59).
5. Stream – whether located or not 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.’’ (See Taleon v.
Sec. of Public Works and Communications, L-24281, May 16, 1967).
6. Waters rising on private lands are private waters, until they go to lands of public dominion, in which case
they become public waters. (Art. 502, No. 8).
7. Waste waters of private establishments are not public waters. (Art. 502, No. 9).
8. Under the new Water Code, there are no private waters.
Republic v. Lat Vda. de Castillo
GR 69002, Jan. 30, 1988
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 (Art. 502, par. 4, Civil
Code), the registration court does not have jurisdiction to adjudicate said lots as private property, hence res
judicata does not apply.

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;
(5) The beds of flowing waters, continuous or intermittent, formed by rain water, and those of brooks, crossing
lands which are not of public dominion.
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. (408)
Republic v. Imperial, Jr.
103 SCAD 380, 303 SCRA 127
(1999)
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.

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. (409a)
Rules that Govern the Use of Public Waters:
(a) If acquired by administrative concession — the terms of the concession.
(b) If acquired by prescription for 10 years — the manner and form of using the waters (under the old Code,
the period was 20 years). (See also periods under the Irrigation Law).

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:

(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. (See Sec. 3, Act 2152).
[NOTE: As a rule, property of public dominion may not be acquired by prescription. This article on public
waters gives an exception, insofar as their use is concerned.]
[NOTE: To obtain a concession for water, there must be a legislative franchise. (See Act 4062).].

Fishery Privileges (in municipal waters) – governed by the provisions of Section 67 and 69 of Act 4003, as
amended by Commonwealth Acts 115 and 471.
– The pertinent provisions in the Revised Adm. Code of 1917 (Secs. 2321, 2323, and 2319) have been
thereby modified by Act 4003, as amended. (Vicente San Buenaventura v. Municipality of San Jose, et al., L-
19309, Jan. 30, 1965).

Honorio Bulao v. CA, et al. GR 101983, Feb. 1, 1993

A quasi-delict has the following elements:
a) the damage suffered by the plaintiff;
b) the act or omission of the defendant supposedly constituting fault or negligence; and
c) the causal connection between the act and the damage sustained by the plaintiff.

Governing Laws on Waters:

I. Prior to the New Civil Code:
(1) the Civil Code of Spain of 1889 (the Old Civil Code), which was extended to the Philippines by Royal
Decree of July 31, 1889;
(2) the Spanish Law on Waters of 1866, which was extended to the Philippines by the Royal Decree of
August 3, 1866; and
(3) the Irrigation Act (Act No. 2152), which was passed by the Philippine Legislature in 1912.
II. New Civil Code (R.A. No. 386, as amended) – took effect on August 30, 1950
– repealed expressly those parts and provisions of the Civil Code of 1889
– there was no express repeal of the provisions of the Spanish Law on Waters of 1866 and the
Irrigation Act of 1912
III. 1976, the Water Code of the Philippines (P.D. No. 1067) – EXPRESSLY repealed the provisions of the
Irrigation Act. However, the provisions of the Spanish Law on Waters of 1866 and the New Civil Code on
ownership of waters, easements relating to waters, use of public waters and acquisitive prescription on
the use of waters, were considered repealed only to the extent that they were inconsistent with
the provisions of the Water Code of the Philippines.
– Primarily governs matters relating to waters or water resources
[NOTE: The provisions of the New Civil Code on waters and that of the Spanish Law on Waters of 1866,
which are not in conflict with the Water Code of the Philippines, still apply.]

Ownership of Waters – governed by Section 2, Article XII of the 1987 Philippine Constitution which provides,
part, as follows:
“Sec. 2. 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. x x x”
– State Ownership of Waters: all waters in their natural beds must be considered of public
dominion, whether the waters are found on public property or on private lands. Articles 5 and 6
of the Water Code of the Philippines provide, as follows —
“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 form rainfall whether
natural or artificial, and water from agriculture run-off, seepage and drainage;
e. Atmospheric water;
f. Subterranean or ground water; and
 g. Seawater.

Art. 6. The following waters found on private lands also belong to the States:
a. Continuous or intermittent waters rising on such lands;
b. Lakes and lagoons naturally occurring on such lands;
c. Rain water and falling on such lands;
d. Subterranean or ground waters; and
e. Waters in swamps and marshes.

The owner of the land where the water is found may use the same for domestic purposes without securing
a permit, provided that such use shall be registered, when required by the Council. The Council, however,
may regulate such use when there is wastage, or in times of emergency.”

NOTE: Under existing laws, there are no more waters of private ownership to speak of. In declaring the
waters enumerated in Article 6 of the Water Code of the Philippines as belonging to the State, the said law
has the effect of
repealing the provisions of Article 503 of the New Civil Code because the provisions of the latter law are
totally inconsistent with the former.
For waters found on private lands mentioned in Article 6 of the Water Code of the Philippines, the
owner of the land may use the waters for domestic without securing a permit from the National Water
Resources Council, although the Council may regulate such use in two occasions:
(1) when there is wastage; or
(2) in times of emergency.
Basic State Principles underlying the enactment of the Water Code of the Philippines:
1. All waters belong to the State.
2. All waters that belong to the state can not be the subject of acquisitive prescription.
3. The State may allow the use or development of waters by administration concession.
4. The utilization, exploitation, development, conservation and protection of water resources shall be subject
to the control and regulation of the government through the National Water Resources Council, hereinafter
referred to as the Council.
5. Preference in the use and development of waters shall consider current usages and be responsive to the
changing needs of the country
ORDINARY Acquisitive Prescription EXTRAORDINARY Prescription
requires: ownership and other real rights over immovable
a. possession in GOOD FAITH; and property are acquired though UNINTERRUPTED
b. JUST TITLE for ten (10) years ADVERSE POSSESSION thereof for thirty (30) years
without need of title or of good faith

Difference Between Real Rights and Personal Rights in the Context of Property Ownership
REAL RIGHTS PERSONAL RIGHTS
Pertain to a direct and immediate authority over a Arise from obligations and pertain to a claim or
specific object, whether movable or immovable demand against a specific person or entity for the
performance of an act, the delivery of a thing, or the
abstention from an act
Real rights provide absolute control over property Personal rights are tied to specific obligations between
enforceable against the world. parties.

Grants the holder of the right the power to:

1. Use
2. Enjoy, and
3. Dispose of a property without interference
subject to certain legal restriction.
EXAMPLE: EXAMPLE:
1. Ownership (Dominium), 1. The right to collect payment for goods
2. Usufruct delivered
3. Easements 2. The right to compel specific performance in a
4. Mortgages contract
5. Pledges
As to Subject Matter
Tangible or intangible object (property or right) An obligation involving an act, forbearance, or thing.
As to Enforceability
Enforceable against the whole world (erga omnes) Enforceable only against a specific person or group of
which means they are binding upon all, and third persons (in personam)
parties must respect them
As to Creation
1. By law, These rights are created through: [legal obligation
2. Contracts, or arising from]
3. Other juridical acts affecting property 1. contracts,
2. quasi-contracts,
3. delicts, or
4. quasi-delicts
As to Transferability
 Transferable with the property itself Transfer depends on the obligation and contractual
stipulations.
As to Registration
Immovables – registration in the Registry of Property No registration required for validity
may be required

[Protection of Rights: real rights require registration [Protection of Rights: rely on privity of contract]
(e.g., Torrens Title) for enforceability against third
parties]
Effects on Third Parties
Third parties are bound to respect real rights. Third parties are not directly affected by personal
rights.
In Practice: Lease Agreement
Lessor’s (owns the property) right of ownership over Lessee’s right to occupy the property for an agreed
the property is a real right. period is a personal right enforceable against the
lessor.
In Practice: Sale of Property (e.g. in sale of land)
The buyer acquires ownership (real right) upon proper The seller’s right to collect payment from the buyer is
delivery and registration. a personal right.
Legal Basis
Article 415, Civil Code – Enumerates immovable Article 1165, Civil Code – Remedies for breach of
properties that can be subject to real rights personal rights
Article 428, Civil Code – Ownership as a real right Article 1311, Civil Code – Binding effect of obligations
on specific persons in personal rights

Subterranean or Ground Waters [paragraph (d) of Article 6 of the Water Code of the Philippines]
– belong to the State even if they are found on private lands
– any construction of installations for the utilization of subterranean or ground waters may not be
undertaken unless the plans and specifications thereof are approved by the proper government
agency

Art. 505. Every concession for the use of waters is understood to be without prejudice to third persons. (410)

The Terms of the Concession Should Not Prejudice Third Persons

– EXAMPLE: 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. (Eusebio v. Aguas, 47 Phil. 567).

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. (411a)

Non-user – is total or partial abandonment; reverts the waters to publici juris. (See Sec. 36, Act 2152).
Partial abandonment – results in a lawful use only of that part not yet abandoned. (See 56 Am. Jur. 761).
Fortuitous events excuse non-users. (Op. Atty. Gen. Mar. 9, 1922).

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 Irrigation Law. (412a)

Conversion of Waters When They Leave Private Lands

EXAMPLE: 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 (Art. 507) unless they enter a private estate instead, in which case, said estate will have their
use until they finally leave said private estate. (Sansano v. Castro, 40 O.G. 15, p. 227).

Riparian Ownership
Riparian rights flow out of riparian ownership (56 Am. Jur. 727). To be riparian, land must have actual contact with
the water, not be merely proximate to it. (56 Am. Jur. 731).

Riparian Rights:
(a) right to the natural flow of the waters
(b) right of access to and use of the waters
(c) right of accretion. (See 56 Am. Jur. 726).

Governing Laws:
(a) Spanish Law of Waters of Aug. 3, 1866
(b) Irrigation Law (Act 2152, as amended)
(c) Civil Code.

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. (413)
This article refers to the prohibition to construct injurious works. Damage to third persons is never allowed.

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. (414a)

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. (415)

Owners of Lower Estates Should Not Be Prejudiced

Example: There are neighbors: A, a new owner who occupies the higher estate; and B, who occupies the lower one.
Waters rise on A’s estate. Now, 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. (See Sideco v. Sarenas, 41 Phil. 80).

Pollution of the waters – is actionable, unless due to force majeure (56 Am. Jur. 826).

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. (416)

This article talks about the Right to Construct Reservoirs for Rain Waters.

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. (417a)

2 classes of subterranean waters:

(a) flowing water — more or less permanent; definite course.
(b) percolating water — no definite course or channel, like rain water seeping thru the soil. (67 C.J. 833).

Explorations for Subterranean Waters

Example:
A wants to make explorations for subterranean waters beneath the lot of B, and beneath a lot of public
dominion. Has
A the right to do so?
ANS.: Regarding B’s lot, A should ask B’s permission except if he is already allowed to make explorations
under the Mining Law. Regarding the public lot, A should request permission from the proper 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. (418)

Waters Artificially Brought Forth

Example: (In accordance with the Special Law of Waters of Aug. 3, 1866). A artificially brought up certain
waters. He
owns said waters, so they are of private dominion. The bringing up is usually done thru wells. (56 Am. Jur. 616).

Permitting Another to Construct a Well on Your Land

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. (See Mirasol v. Mun. of Tabaco, 43 Phil. 610).

Digging Up of Artesian Wells

Artesian wells may be dug provided that public waters are not diverted from their natural course,
otherwise the Government can step in. (See Art. 49, par. 2, Spanish Law of Waters). No well may be dug within
mining property unless indemnity is given. (Art. 50, pars. 1 and 2, Spanish Law of Waters).

Artesian Well – is a well that brings groundwater to the surface without pumping because it is under pressure
within a body of rock or sediment known as an aquifer.

Art. 514. When the owner of waters artificially brought to the surface abandons them to their natural course, they
shall become of public dominion. (419)

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. (420)

The Repair of Dangerous Defensive Works on Another’s Land

Example:
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. (Art. 515). No damage must be caused on A’s
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. (421)

The Clearance of Dangerous Matter

On A’s lot is a large deposit of matter. A’s 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?
ANS.: Yes, A can be obliged to either:
(a) clear the land himself,
(b) or have the land cleared by others. (Art. 516). But the neighbors cannot take matters into their
own hands
and just construct a canal on A’s estate, for their only recourse is to exercise the option. (Osmeña v. Camara, 38
O.G. p. 2773).

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. (422)

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. (425a)