P R O P E RT Y

BAGAIPO VS. COURT OF APPEALS:

Case Doctrine: In the absence of evidence that the change in the course of the
river was sudden or that it occurred through avulsion, the presumption is that
the change was gradual and was caused by alluvium and erosion.
FACTS:

Arts 440-475 |1

NO. The trial court and the appellate court both found that the decrease in land area
was brought about by erosion and not a change in the rivers course. This conclusion
was reached after the trial judge observed during ocular inspection that the banks
located on petitioners land are sharp, craggy and very much higher than the land on
the other side of the river. Additionally, the riverbank on respondents side is lower and
gently sloping. The lower land therefore naturally received the alluvial soil carried by
the river current.

Petitioner Dionisia P. Bagaipo is the registered owner of Lot which located southeast
of Davao river. While respondent Leonor Lozano is the owner of a registered parcel of
land located across and opposite the southeast portion of petitioners lot facing the
Davao River.

iii[11]These findings are factual, thus conclusive on this Court, unless there are strong
and exceptional reasons, or they are unsupported by the evidence on record, or the
judgment itself is based on a misapprehension of facts.

On May 26, 1989, Bagaipo filed a complaint i[2] for Recovery of Possession with
Mandatory Writ of Preliminary Injunction and Damages against Lozano for: (1) the
surrender of possession by Lozano of a certain portion of land measuring 29,162
square meters which is supposedly included in the area belonging to Bagaipo under
TCT No. T-15757; and (2) the recovery of a land area measuring 37,901 square
meters which Bagaipo allegedly lost when the Davao River traversed her property.
Bagaipo contended that as a result of a change in course of the said river, her
property became divided into three lots, namely: Lots 415-A, 415-B and 415-C.In
January 1988, Bagaipo commissioned a resurvey of Lot 415 and presented before
the trial court a survey plan

The decrease in petitioners land area and the corresponding expansion of

respondents property were the combined effect of erosion and accretion
respectively. Art. 461 of the Civil Code is inapplicable. Petitioner cannot claim
ownership over the old abandoned riverbed because the same is inexistent. The
riverbeds former location cannot even be pinpointed with particularity since the
movement of the Davao River took place gradually over an unspecified period of time,
up to the present. The rule is well-settled that accretion benefits a riparian owner
when the following requisites are present: 1) That the deposit be gradual and
imperceptible; 2) That it resulted from the effects of the current of the water;
and 3)That the land where accretion takes place is adjacent to the bank of the
river.

ii[3] prepared by Geodetic Engineer Gersacio A. Magno which concluded that the land
presently located across the river and parallel to Bagaipos property still belonged to
the latter and not to Lozano, who planted some 350fruit-bearing trees on Lot 415-C
and the old abandoned river bed.

iv[13] These requisites were sufficiently proven in favor of respondents. In the

absence of evidence that the change in the course of the river was sudden or that it
occurred through avulsion, the presumption is that the change was gradual and was
caused by alluvium and erosion.

For his part, Lozano insisted that the land claimed by Bagaipo is actually an
accretion to their titled property. He asserted that the Davao River did not change its
course and that the reduction in Bagaipos domain was caused by gradual erosion
due to the current of the Davao River. Lozano added that it is also because of the
rivers natural action that silt slowly deposited and added to his land over a long
period of time. He further averred that this accretion continues up to the present and
that registration proceedings instituted by him over the alluvial formation could not be
concluded precisely because it continued to increase in size.
ISSUE/S: WON there was a change in the rivers course which resulted to
avulsion?
HELD:

P R O P E RT Y
RACHEL C. CELESTIAL VS JESSE CACHOPERO Gr. No. 142595.
October 15, 2003
Facts:
Respondent, brother of petitioner, filed an MSA (Miscellaneous
Sales Application) with the Bureau of Lands. Petitioner filed a protest,
claiming preferential right over the land. However, on an ocular inspection,
the Bureau found that the subject land was outside the commerce of man
and thus, denied the petitioners protest. Petitioner thereafter filed an
ejectment case against the respondent. Subsequently, respondent filed
another MSA which the petitioner once again protested against. The DENR
Regional Executive Director declared that the land is suitable for residential
purposes and in the light of the conflicting interest of the parties, ordered that
the land be sold at public auction. Respondent filed a Motion for
Reconsideration of the said order but was denied by the OIC Regional
Executive Director of Region XII. Respondent filed a petition for certiorari,
prohibition and mandamus with preliminary mandatory injunction and
temporary restraining order. Petitioner then moved for the dismissal for lack
of jurisdiction and non-exhaustion of administrative remedies. The RTC
denied respondents petition. The CA on the other hand, reversed and set
aside the decision of the CA and ordered the DENR to process the MSA of
the respondent. Petitioner contends that the RTC had no jurisdiction over the
respondents petition for certiorari.
Issue:

A dried up creek is property of public dominion and

not susceptible to acquisitive prescription

Arts 440-475 |2

As for Celestials claim of ownership over the subject land,

admittedly a dried-up bed of the Salunayan Creek, based on (1)
her alleged long term adverse possession and that of her
predecessor-in-interest, Marcelina Basadre, even prior to
October 22, 1966, when she purchased the adjoining property
from the latter, and (2) the right of accession under Art. 370 of
the Spanish Civil Code of 1889 and/or Article 461 of the Civil
Code, the same must fail.
Since property of public dominion is outside the commerce of
man and not susceptible to private appropriation and acquisitive
prescription, the adverse possession which may be the basis of a
grant of title in the confirmation of an imperfect title refers only
to alienable or disposable portions of the public domain. It is
only after the Government has declared the land to be alienable
and disposableagricultural land that the year of entry,
cultivation and exclusive and adverse possession can be counted
for purposes of an imperfect title.