G.R. No.

L-3714 January 26, 1909

ISABELO MONTANO MAR!IAL, petitioner-appellee,
vs.
T"E INS#LAR GO$ERNMENT, ET AL., respondents.
T"E INS#LAR GO$ERNMENT, appellant.
Attorney-General Araneta, for appellant.
F. Buencamino, for appellee.
TRA!E, J.:
Isabelo Montano presents a petition to the Court of Land Registration for the inscription of a piece of
land in the barrio of Libis, municipality of Caloocan, used as a fishery having a superficial area of
1,!" s#uare meters, and bounded as set out in the petition$ its value according to the last
assessment being %"".", &nited 'tates currency.
(his petition )as opposed by the 'olicitor-*eneral in behalf of the +irector of Lands, and by the
entity ,no)n asObras Pias de la Sagrada Mitra, the former on the ground that the land in #uestion
belonged to the *overnment of the &nited 'tates, and the latter, that it )as the absolute o)ner of all
the dry land along the eastern boundary of the said fishery.
(he Court of Land Registration in its decision of +ecember 1, 1-., dismissed the said oppositions
)ithout costs and decreed, after a general entry by default, the ad/udication and registration of the
property described in the petition, in favor of Isabelo Montano y Marcial.
0rom this decision only counsel for the +irector of 1ublic Lands appealed to this court. It is a ,indred
case to Cirilo Mapa s. !"e #nsular Goernment, decided by this court on 0ebruary 1-, 1-!,
reported in 1 1hil. Rep., 12".
3s some discussion has arisen as to the scope of that decision, it appears opportune to reaffirm the
principle there laid do)n. (he issue )as, )hether the lands used as a fishery , for the gro)th of nipa,
and as salt deposits, inland some distance from the sea, and asserted, though not clearly proved to
be overflo)ed at high tide could be registered as private property on the strength of ten years4
occupation, under paragraph . of section "5 of 3ct 6o. -7. of the 1hil. Commission. (he point
decided )as that such land )ithin the meaning of the 3ct of Congress of 8uly 1, 1-7, )as
agricultural, the reasoning leading up to the conclusion being that congress having divided all the
public lands of the Islands into three classes it must be included in one of the three, and being
clearly neither forest nor mineral, it must of necessity fall into t)o division of agricultural land. In the
concurring opinion, in order to avoid misapprehension on the part of those not familiar )ith &nited
'tates land legislation and a misunderstanding of the reach of the doctrine, it )as pointed out that
under the decision of the 'upreme Court of the &nited 'tates the phrase 9public lands9 is held to be
e#uivalent to 9public domain,9 and dos not by any means include all lands of *overnment o)nership,
but only so much of said lands as are thro)n open to private appropriation and settlement by
homestead and other li,e general la)s. 3ccordingly, 9government land9 and 9public domain9 are not
synonymous items$ the first includes not only the second, but also other lands of the *overnment
already reserved or devoted to public use or sub/ect to private right. In other )ords, the *overnment
o)ns real estate )hich is part of the 9public lands9 and other real estate )hich is not part thereof.
(his meaning attached to the phrase 9public lands9 by Congress in its land legislation is settled by
usage and ad/udication beyond a doubt, and )ithout variation. It is therefore doing the utmost
violence to all rules of construction to contend that in this la), dealing )ith the same sub/ect-matter
in connection )ith these Islands, a different meaning had, )ithout indication or motive, been
imported into the )ords. (hey cannot have one meaning in any other statute and a different and
conflicting meaning in this statute. :here property in general is referred to therein, other and apt
phrases are used in order to include it$ for instance, section 17 provides 9that all t"e property and
rig"ts )hich have been ac#uired in the 1hil. Islands by the &nited 'tates ... are hereby placed under
the control of the *overnment of the said Islands.9 (herefore, there is much real property belonging
to the *overnment )hich is not affected by statutes for the settlement, prescription or sale of public
lands. ;<amples in point are properties occupied by public buildings or devoted to municipal or other
governmental uses.
3mong the authorities cited in the Mapa case are t)o, 'hively s. =o)lby >1"7 &.'., 1?, and
Mann s. (acoma Land Co. >1"@ &.'., 72@?, in )hich it )as held that general public land la)s did
not apply to land over )hich the tide ebbs and flo)s. Mr. 8ustice *ray, in 'hively s. =o)lby, )hich is
in itself an epitome of the 3merican La) of :aters, spea,ing of the tide lands, said:
=ut Congress has never underta,en by general la)s to dispose of such lands. . . .
(he Congress of the &nited 'tates, in disposing of the public lands, has constantly acted
upon the theory that those lands, )hether in the interior, or on the coast, above high- )ater
mar,, may be ta,en up by actual occupants, in order to encourage the settlement of the
country, but that the navigable )ater and the soils under them. )hether )ithin the above the
ebb and flo) of the tide, shall be and remain public high)ays$ and being chiefly valuable for
the public purposes of commerce, navigation, and fishery, and for the improvement
necessary to secure and promote those purposes, shall not be granted a)ay during the
period of territorial government. >1p. 5! and 5-.?
(he conclusions of the court are in part stated as follo)s:
Lands under tide )aters are incapable of cultivation or improvement in the manner of lands
above high-)ater mar,. (hey are of great value to the public for the purposes of commerce,
navigation, and fishery. (heir improvement by individuals, )hen permitted, is incidental or
subordinate to the public use and right. (herefore the title and the control of them are vested
in the sovereign for the benefit of the )hole people . . . .
&pon the ac#uisition of a territory by the &nited 'tates, )hether by cession from one of the
'tates, or by treaty )ith a foreign country, or by discovery and settlement, the same title and
dominion passed to the &nited 'tates, for the benefit of )hole people, and in trust for the
several 'tates to be ultimately created out of the territory . . . .
(he &nited 'tates, )hile hold the country as a territory, having all the po)ers both of national
and municipal government, may grant, for appropriate purposes, titles or rights in the soil
belo) high-)ater mar, of tide )aters. =ut that have never done so in general la)s. >1p. "2
and "!.?
In Mann s. (acoma Land Co., it )as said by Mr. 8ustice =re)er >p. 7!5?$
It is settled that the general legislation of Congress in respect to public lands does not e<tend
to tide lands .... It provided that the scrip might be located on the unoccupied and
unappropriated public lands. 3s said in 6e)hall s. 'anger >-7 &.'., 2.1, 2.@.? 9(he )ords
9public lands9 are habitually used in our legislation to described such as are sub/ect to sale
or other disposal under general la)s.9
In Illinois Central R.R. Company s. Illinois >15. &.'., @!2? Mr. 8ustice 0ield, delivering the opinion of
the court, said:
(hat the 'tate holds the title tot he lands under the navigable )aters of la,e Michigan )ithin
its limits, in the same manner that the 'tate hold title to soils under tide )ater, by the
common la), )e have already sho)n, and that title necessarily carries )ith it control over
the )aters above them )henever the lands are sub/ected to use. =ut it is a title different in
character from that )hich the 'tates holds in lands intended for sale. It is different from the
title )hich the &nited 'tates hold in the public lands )hich are open to preemption and sale.
It is a title held in trust for the people of the 'tates that they may en/oy the navigation of the
)aters, carry on commerce over them, and have liberty of fishing therein freed from the
obstruction or interference of private parties. (he interest of the people in the navigation of
the )aters and in commerce over them may be improved in many instances by the erection
of )harves, doc,s, and piers therein, for )hich purpose the 'tate may grant parcels of the
submerged lands$ and so long as their disposition is made for such purposes, no valid
ob/ections can be made to the grants .... (he control of the 'tate for the purposes of the trust
can never be lost, e<cept as to such parcels as are used in promoting the interests of the
public therein, or can be disposed of )ithout any substantial impairment of the public interest
in the lands and )aters remaining .... (he 'tate can no more abdicate its trust over property
in )hich the )hole people are interested, li,e navigable )aters and soils under them, so as
to leave them entirely under the use and control of private parties, e<cept in the instance of
parcels mentioned for the improvement of the navigation and use of the )aters, or )hen
parcels can be disposed of )ithout impairment of the public interest in )hat remains, that
can abdicate its police po)ers in the administration of government and the preservation of
the peace .... 'o )ith trusts connected )ith public property, or property of a special
character, li,e lands under navigable )aters, they can not be placed entirely beyond the
direction and control of the 'tate.
(he o)nership of the navigable )aters of the harbor and the lands under them is a sub/ect of
public concern to the )hole people of the 'tate. (he trust )ith )hich they are held, therefore,
is governmental and can not be alienated, e<cept in those instances mentioned of parcels
used in the improvement of the interest thus held, or )hen parcels can be disposed of
)ithout detriment to the public interest in the lands and )aters remaining. . . . . >1p. 5"7-
5"".?
Mr. 8ustice 0ields #uotes from an opinion by Mr. 8ustice =radley, delivered in a case in the Circuit
Court, spea,ing of lands under )ater, as follo)s >p. 5"2?:
=eing sub/ect to this trust, they )ere publici $uris$ in other )ords, they )ere held for the use
of the people at large. It is true that to utiliAe the fisheries, especially those of shellfish, it )as
necessary to parcel them out to particular operators, and employ the rent or consideration for
the benefit of the )hole people$ but this did not alter the character of the title. (he land
remained sub/ect to all other public uses as before, especially to those of navigation and
commerce, )hich are al)ays paramount to those of public fisheries. It is also true that
portions of the submerged shoals and flats, )hich really interfered )ith navigation, and could
better subserve the purposes of commerce by being filled up and reclaimed, )ere disposed
of to individuals for that purpose. =ut neither did these dispositions of useless parts affect the
character of the title to the remainder.
(hese citations are thus given at length in order to ma,e clear, first, the lands under the ebb and flo)
of the tide of navigable )aters are not in 3merica understood to be included in the phrase 9public
lands9 in 3cts of Congress of &nited 'tates$ nor, perforce, can they best understood in la)s of the
1hilippine Commission dra)n immediately under the sanction of those 3cts$ and second, that such
lands are under e<isting Congressional legislation the sub/ect of private o)nership, any occupation
therefore be subordinate to the public purpose of navigation and fishery. :hile as )ell in the original
thirteen 'tates in )hich there )as never a national public domain to )hich the land la)s of Congress
could apply as in 'tates more recently created out of that domain and )hich upon their formation
became masters of their o)n land policy the local la)s govern riparian and littoral rights, sub/ect only
to Congressional control in matters of foreign and interstate commerce > &.'. s. Mission Roc, Co.,
1!- &. '., @-1?, yet, as to the unappropriated public lands constituting the public domain the sole
po)er of legislation is vested in Congress, )hich are uniformly and consistently declined to assume
the function of authoriAing or regulating private appropriation of such rights. (herefore, in the
absence of specific Congressional legislation, it is impossible for individuals to ac#uire title under the
ten years provision of 3ct 6o. -7. or even through a definite grants from the local legislature of lands
beneath navigable )aters in )hich the tide ebbs and flo)s, e<cept for )harf-age or other purposes
au<iliary to navigation or other public uses, unless in conformity )ith the pree<isting local la) of the
3rchipelago.
(he matter is d)elt is upon for the reason that the late 3ttorney-*eneral in his very able brief calls
attention to the effect apprehended from the e<tension of the )ords 9agricultural lands9 as used in
3ct 6o. -7. to include all public lands not forest or mineral in character, specifying t)o acts of the
1hilippine Commission, the validity of )hich he fears might thereby be called into #uestion. (he first
of these, 3ct 6o. 1@-, dedicates to use of the 6avy +epartment of the &nited 'tates *overnment
certain ground and buildings in Cavite, )hile the other, 3ct 6o. 1."5, is a fore-shore la) regulating
the control and disposal of filled *overnment lands. If the term 9agricultural lands9 be held to include
all government property not forest or mineral in character, he suggests that these 3cts, not being in
conformity )ith the procedure of 3ct 6o. -7., as approved by Congress, )ould be invalid, and
moreover, that the 1hilippine *overnment )ould be seriously tied up in the management and
disposition of other lands o)ned by it.
:ithout finally passing on this #uestion in relation to lands the o)ners of )hich are not before us
parties to this action, it is appropriate, in ans)ering the argument of the la) officer of the 'tate, to
point out that this conse#uence appears to be avoided by the restricted sense given to the )ords
9public lands9 or 9public domain9 in the 3ct of Congress and in 3ct 6o. -7., as hereinbefore noted.
6either the property affected by 3ct 6o. 1@-, already in use by the 6avy +epartment of the &nited
'tates, nor the foreshore land mentioned in 3ct 6o. 1."5, )hich is under the ebb and flo) of the
tide, )as, in so far as appears in the 3cts before us, part of the public domain to be disposed of
under sections 1@, 15, 1", and 1. of the 3ct of congress of 8uly 1, 1-7, and for that reason it is not
included in any of the three subdivisions of 9public lands9 as agricultural or other)ise, although it
)as part of the property ac#uired in the 1hilippine Islands by the &nited 'tates by the treaty of
peace )ith 'pain, )hich by section 17 of that 3ct )as 9placed under the control of the *overnment
of said Islands, to be administered for the benefit of the inhabitants thereof.9 It )ould seem that the
validity of the Cavite 3ct can not be successfully assailed on this ground, )hile it may )ell be that
(he 0ore-shore 3ct on e<amination )ill be found to fall, as to its general purpose, )ithin the
authoriAation of section 11 of the 3ct of Congress, )hereby the duty is imposed upon the Island
government of improving the harbors and navigable )aters in the interest of commerce.
3s a conse#uence, it follo)s that (he 1ublic Land 3ct did not apply to the fisheries in the Mapa
case, if they are to be regarded as constituting, in a general sense, land under tidal )aters. It
becomes necessary, therefore, to refer to the character of the lands.
3lthough argued at different times, five of these cases have been presented substantially together,
all being covered by one brief of the late 3ttorney-*eneral in behalf of the *overnment in )hich, )ith
many interesting historical and graphic citations he describes that part of the marginal seashore of
the 1hilippine Islands ,no)n asmanglares, )ith their characteristic vegetation. In brief, it may be
said that they are mud flats, alternately )ashed and e<posed by the tide, in )hich gro) various
,indred plants )hich )ill not live e<cept )hen )atered by the sea, e<tending their roots deep into the
mud and casting their seeds, )hich also germinate there. (hese constitute the mangrove flats of the
tropics, )hich e<ist naturally, but )hich are also, to some e<tent, cultivated by man for the sa,e of
the combustible )ood of the mangrove and li,e trees as )ell as for the useful nipa palm propagated
thereon. 3lthough these flats are literally tidal lands, yet )e are of the opinion that they can not be so
regarded in the sense in )hich that term is used in the cases cited or in general 3merican
8urisprudence. (he )aters flo)ing over them are not available for purpose of navigation, and they
9may be disposed of )ithout impairment of the public interest in )hat remains.9 Mr. 8ustice =radley,
in the passage #uoted by Mr. 8ustice 0ield, ma,es an e<ception of submerged shoals and flats. In
Railroad Company s. 'churmeir >25 &.'., 727? , a *overnment patent of public land bordering
upon a river )as held to include a parcel submerge at very high )ater and separated from the
mainland by a slough in )hich the )ater ran )hen ordinarily high. In Mobile s. Ballett >51 &.'.,
7.?, at page 7... Mr. 8ustice Catron remar,ed in his dissenting opinion:
. . . and that a mud flat, flo)ed by tide )ater, is the sub/ect of grant by the *overnment to an
individual, I thin, can not )ell be doubted by anyone ac#uainted )ith the southern country$
)hen such valuable portions of it are mud flats, in the constant course of reclamation.
In several of the older 'tates along the 3tlantic coast such flats, either by force of ordinance, custom,
/udicial construction, or local la)s are held to pass under private grants as appurtenant to the
uplands. >:inslo) s.1atten, @5 Maine, 7"$ Litchfield s. 'cituate, 1@" Mass., @-$ 1eople s. 6e)
Cor, and 'taten Island 0erry Co., .! 6.C., 21$ 'tevens s. 1.D 6. Railroad, " Eroom, @5 6.8. La),
"@7.? (here is even stronger reason for e<cepting mud flats from the rule of tide lands in these
Islands, o)ing to the peculiarities of their configuration and to the nature of the tropical gro)th
thereon, and )hatever may be action of the tide, )e do not thin, that in the 1hilippines such of the
shoals covered by this vegetation, )hether spontaneously or by cultivation, as are not available for
free navigation, or re#uired for any other purpose of general benefit, can be considered tidal land
reserved for public use alone, under the governmental trust for commerce and public fishery, but on
the contrary, )e regard them as public property, susceptible of a sort of cultivation and of
improvement, and as such, sub/ect to occupation under paragraph . of section "5 of the Land La).
Instances may hereafter arise of fisheries unduly established in )hat are clearly navigable )aters
)hich )ould constitute a nuisance, and not be the sub/ect of prescription or of grant. 3 brief
reference to the five cases under consideration in this court, ho)ever, )ill serve to sho) that they all
fairly fall )ithin the benefits of the la). In the Mapa case
1
the property )as far from the the sea,
partly occupied as fish pond, as nipa land, and as a salt pit. It does not appear )hether it )as
connected )ith the sea by nature or by art, or )hether the tide ebbed or flo)ed upon it, or )hether
the salt )as sufficient to impart to any portion of it a mineral character. In the 'antiago case
7
there
)as a fishery about t)o thousand yards from the sea, )ith )hich it communicated by a river, and a
portion of the inclosure )as dedicated to gro)ing the a#uatic tree called baca%an. (he fishery had
been constructed by man, upon land heretofore so)n )ith this tree. In the *utierreA case
@
it )as
sho)n that the land )as partly highland, gro)ing fruit trees, and partly lo)land , converted by the
occupant of the upland into a fishery by this labor. In the =aello case,
5
the river running to the sea
)as a hundred meters a)ay, the salt )ater therefrom reaching the lo)land by means of an artificial
canal cut by the o)ner of the land )hen he gave up cultivating baca%an thereon, an made it into a
fishery. In the Montano case, although there )as a considerable depth of )ater over the soil, yet
before the fishery )as made, some thirty years before the trial, baca%an had been so)n and
propagated in the mud by the o)ner )ho finally sold the entire cut )hen he built the di,es.
3ll these lots, in their original state, )hether near the sea or at a distance from it inland, and )hether
bare or )ashed by the tides, )ere not covered by )aters practically navigable and )ere filled,
)hether naturally or artificially, )ith vegetation sometimes cultivated and in common use for fuel and
for building purposes, and they )ere all adapted to fisheries or fish hatcheries by the labor of man
introducing or regulating the access of salt )ater thereto. It is obvious that that all five cases are of
the same general nature and that one rule must be applied to them all.
In this discussion of the meaning )hich the Congress of the &nited 'tates attached to the phrase
9public lands9 in the 1hilippine =ill, )e have assumed that it )as used in the same sense as in other
la)s enacted by that body. If, ho)ever, it can be considered as employed )ith reference to the
peculiar conditions of the territory to )hich it )as to be applied and to the local la) or usage
prevailing therein, the result )ould not be different. In many of its general features the 'panish la)
of public lands in the 1hilippines resembled the 3merican. *overnment property )as of t)o ,inds F
first, that of public use or service, said to be of public o)nership, and second, that of having a private
character or use. >Civil Code, arts. @@- and @5.? Lands of the first class, )hile they retain their
public character are inalienable$ those of the second are not.
=y the royal decree of 0ebruary 1@, 1!-5, it )as enacted that all 9the land, soil, ground not under
cultivation, and forests in the 1hilippine Islands should be considered saleable cro)n lands,9 )hich
are not included in the four e<ceptions stated, among )hich )ere 9those )hich belonged to the
forest Aones )hich the 'tate desires to hold for the Common)ealth.9 (his corresponds in the main to
the 3merican classification into *overnment property, public lands, and forest reserve. Mineral lands
are else)here defined. It is to be noted, ho)ever, that in the t)o languages terms ordinarily
e#uivalent are not in this relation employed in the same sense and that lands de dominio
publico signify #uite a different thing from the arbitrary ;nglish 1hrases 9public lands9 or 9public
domain.9
(he La) of :aters of 1!.., )hich )as the latest 'panish La) of :aters e<tended to these Islands,
provides that private property can not be ac#uired in lands preserving the character of public
o)nership >title 1, art. 1, par. 7-?, and among the lands declared of public o)nership and use by
article 1 of chapter 1 of title " of the same la) are:
!"e seas"ore. F =y shore is understood the land alternately covered and uncovered by the
sea in its tidal movement. Its interior, or land limit, is the point reached by the highest and
e#uinoctial tides. 3t those places not affected by tides, the land limit is the highest point
reached by sea )ater in ordinary storms or hurricanes. >1ar. @.?
'o that under this legislation the same #uestion also presented itself as to )hat constituted
seashore, )hich )as of public use and trust and therefore not alienable. (his #uestion can not be
said to have been settled by official ruling at the time of the 3merican occupation. 0rom the official
records it appears that there )ere then pending for registration a great number of
possessory e&pedientes, t)enty-t)o of )hich, made before 3pril 12, 1!-", )ere from the 1rovince of
1ampanga alone, in )hich the land )as described as manglares. &nder the royal decree of 1!-5
such manglares appear at the outset to have been registered and considered alienable and numbers
of them )ere conceded by ad/ustment, including considerable tracts in the to)n of 'e<moan and
Lubao in 1ampanga. Claims having been made that on account of the trees gro)ing thereon they
formed part of the forest reserve and also because, being covered and uncovered by the tide, they
)ere part of the shore, and in either case )ere inalienable, the engineer in chief of the forestry
district of the center of LuAon addressed, on 8anuary 2, 1!-@, a communication to the inspector
general de montes > 0orestry +epartment? in )hich he e<pressed an opinion that as part of the
shore they )ere not sub/ect to private o)nership and as,ed for an early decision of the #uestion. Gn
6ovember 7., 1!-@, the acting inspector-general notified the chief of the district of the Eisayas in
Mindanao that his e<cellency, the governor-general, had that they ordered all action suspended
on e&pedientes ofmanglar and nipa lands and salt marshes until the #uestions involved in regard
thereto should be determined. In this condition the matter remained until the e<piration of the
'panish sovereignty.
=y article 15 of the La) of :aters the right of shore fishery )as declared public, but by article 7@
authority might be granted individuals to establish shore hatcheries for fish and shellfish, and by
article 1" salt-)ater ponds on private ground not communicating )ith the sea by )ater navigable by
boats )ere recogniAed as private property, )hile chapter 1 permitted and regulated the draining of
s)amps and marshes, both of private and of public o)nership.
&nder this uncertain and some)hat unsatisfactory condition of the la) the custom had gro)n up of
convertingmanglares and nipa lands into fisheries )hich became common feature of settlements
along the coast and at the time of the change of sovereignty constituted one of the most productive
industries of the Islands, the abrogation of )hich )ould destroy vested interests and prove a public
disaster. In our opinion it )as the ob/ect of Congress not to )or, such a result but, on the contrary, in
furtherance of the purposes of the treaty of 1aris, to recogniAe and safeguard such property.
(herefore, the /udgment of the Court of Land Registration is affirmed, )ithout costs.
!orres, Mapa, and Carson, ''., concur.
S%&ara'% O&(n(on)
ARELLANO, C.J., concurring:
I concur in the foregoing decision, but reserve my opinion as to the scope of the phrase 9public
lands9 in the 3ct of Congress referred to.
*ILLIAR+, J., concurring in the result.
In the case of Mapa s. !"e #nsular Goernment > 1 1hil. Rep., 12" ? it is stated in the opinion,
page 12., that F
(he only #uestion submitted tot he court belo) or to this court by the 3ttorney-*eneral is the
#uestion )hether the land in controversy is agricultural land )ithin the meaning of the
section above #uoted.
(he section #uoted is section "5, paragraph ., 3ct 6o. -7., in )hich the phrase used is 9agricultural
public lands.9
(hroughout the opinion the phrase (public lands9 is repeatedly and e<clusively used. (he entire
discussion )as directed to the #uestion as to )hether the property there in #uestion being 9public
land,9 it could be considered asagricultural public land, and the conclusion reached is stated at page
1!7, as follo)s:
In other )ords, that the phrase 9agricultural land,9 as used in 3ct 6o. -7., means those
public lands ac#uired from 'pain )hich are not timber or mineral lands.
In that case the land in #uestion )as a long distance from the sea. In fact, the entire to)n of Molo
)as bet)een it and the )ater. It could in no sense be called tidal land. (herefore, the opinion )as
devoted to a consideration of not )hat )ere 9public lands9 but )hether this particular tract )as or
)as not agricultural public land. (he #uestion )hat the phrase 9public lands9 meant neither
considered nor decided in that opinion, for its resolution )as not necessary. In the concurring
opinion, ho)ever, that #uestion )as discussed and it )as stated that the phrase 9public lands9 used
in 3ct 6o. -7. must be interpreted according to the 3merican understanding of the )ords employed
and the meaning of the terms as definitely fi<ed by the decrees of the &nited 'tates 'upreme Court.
(his statement )as not necessary to the decision of the case then under discussion and )as
moreover, as shall attempt to sho) hereafter, not a correct statement made in that opinion, to the
effect that there may be real property belonging to the *overnment )hich )ould not be included in
the phrase 9public lands,9 there can be no doubt concerning its correctness. (his is and al)ays has
been apparent. It is indicated by articles @@- and @5 of the Civil Code, )hich are as follo)s:
3R(. @@-. 1roperty of public o)nership is F
1. (hat destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges
constructed by the 'tate, and ban,s, shores, roadsteads, and that of a similar character.
7. (hat belonging e<clusively to the 'tate )ithout being for public use )hich is destined to
some public service, or to the development of the national )ealth, such as )alls, fortresses,
and other )or,s for the defense of the territory, and mines, until concession has been
granted.
3R(. @5. 3ll other property belonging to the 'tate )hich has not the conditions stated in the
preceding article is considered as private property.
3rticles 75 and 7" of the Regulations for the ;<ecution of the Mortgage La) also indicate it. (hese
articles are as follo)s:
3R(. 75. 3ll real estate and property rights thereto may be recorded, )ithout e<ception,
)hether belonging to private parties, to the 'tate, to the province, to the municipality, or to
civil or ecclesiastical corporations.
3R(. 7". ;<ceptions to the record re#uired by article 7 of the la) are:
0irst. 1roperty )hich belongs e<clusively to the eminent domain of the 'tate, and )hich is for
the use of all, such as the shores of the sea, islands, rivers and their borders, )agon roads,
and roads of all ,inds, )ith the e<ception of railroads$ streets, par,s, public promenades, and
commons of to)ns. provided they are not lands of common profit to the inhabitants$ )alls of
cities and par,s, ports, and roadsteads, any other analogous property during the time they
are in common and general use, al)ays reserving the servitudes established by la) on the
shores of the sea and borders of navigable rivers.
'econd. 1ublic temples dedicated to the Catholic faith.
In the Mapa case it )as not necessary to decide, nor )as it there decided, )hat the real property
)as )hich, belonging to the government, still )ould not come )ithin the phrase 9public lands,9 nor
ho) private persons could ac#uire rights in such property, nor )hether that phrase should have the
same meaning here as it has in the &nited states. In the present case, it is said in the opinion that
9all these five cases are of the same general character, and that the same rule should be applied to
all.9 If it )as not necessary to decide in the Mapa case the #uestions above mentioned, )hy is it
necessary to discuss and decide them hereH :e are all agreed >1? that these lands are not tidal
lands and are public lands, and >7? that they are agricultural lands. Baving arrived at these
conclusions, I see no reason for the #uestion as to )hat the result )ould be if they )ere tidal lands.
It is apparent that anything said upon that #uestion is not necessary to the decision of these cases
and is obiter dictum.
:hether 3ct. 6o. 1."5, relating to the reclaimed land in Manila near the Luneta, is authoriAed by
section 11 of the 3ct of Congress of 8uly 1, 1-7, or by section 17, is a #uestion outside of the issues
in the case at bar, and it seems unnecessary no) to commit the court to any definite resolution
thereof. If it is the purpose of the decision to announce the doctrine that rights in tidal )aters in the
1hilippines must be governed by the principles already announced by the 'upreme Court in the
decisions cited, this ob/ection attains greater force. (hus construed, it decides the rights of
innumerable persons in the Islands )ho have reclaimed land from the sea and built upon it, none of
)hom has had an opportunity to be heard before his rights are thus decided.
(hese ob/ections to the decision, on the ground that it discusses and apparently decides #uestions
not before the court, and )hich affect parties not before it, )ould not be so serious if the conclusions
reached )ere sound. =ut they are, as I believe, erroneous. (he decisions of the 'upreme Court of
the &nited 'tates cited the opinion have nothing to do either )ith the #uestion as to )hat rights
private persons can ac#uire in tidal lands in the 1hilippines or )ith the meaning )hich should be
given to the phrase 9public lands9 found in the 3ct of Congress of 8uly 1, 1-7.
1. &pon the first #uestion as to private rights in tidal lands, it has been definitely settled by the
'upreme Court at :ashington in many decisions, )hich are collected in the case of
'hively s. =o)lby >1"7 &.'., 1 ?, cited in the opinion, that the rights of private persons in such lands
depend upon the la) of the 'tate )here the lands are. (he court said in that case >p. 5? :
EII. (he later /udgments of this court clearly establish that the title and rights of riparian or
littoral proprietors in the soil belo) high )ater mar, of navigable )aters are governed by the
local la)s of the several 'tates, sub/ect, of course, to the rights granted to the &nited 'tates
by the Constitution.
It also appears from that case that these la)s vary in different 'tates. (he court said, at page 7.:
(he foregoing summary of the la)s of the original 'tates sho)s that there is no universal
and uniform la) upon the sub/ect$ but that each 'tate has dealt )ith the lands under the tide
)aters )ithin its borders according to its o)n vie)s of /ustice and policy, reserving its o)n
control over such lands, or granting rights therein to individuals or corporations, )hether
o)ners of the ad/oining upland or not, as it considered for the best interests of the public.
*reat caution, therefore, is necessary in applying precedents in one 'tate to cases arising in
another.
In Massachusetts the o)ner of the upland is the o)ner in fee to the lo)-)ater mar, if not beyond
1 rods. In other 'tates he is the o)ner in fee only to high-)ater mar,. In Minnesota the o)ner of
the upland has the e<clusive right to occupy the shore in front of his land, not only to lo)-)ater mar,
but even into the )ater to the point of navigability, and to occupy it for purely private purposes. 3nd
he is so far the o)ner of the land under )ater to the point of navigability that he can sell portions
thereof and retain himself the shore line. > Banford s. 't. 1aul D +.R. Co., 5@ Minn., 15.? It )ill be
observed that some of the cases cited in support of the decision in the case at bar arose in
Massachusetts and Minnesota. (he result is that )hen the 'upreme Court of the &nited 'tates
decides a case relating to such lands it necessarily decides it according to the la) of the 'tate from
)hich it comes. 'o that if any la) of 3merican origin is to be applied here it can not be a national la)
of )aters for none e<ists. It must be necessarily be the la) of some one of the different 'tates. (his
)ould re#uire a selection of the /urisprudence of one of those 'tates )hich this court should not
attempt to ma,e.
3t the cession of the Islands to the &nited 'tates there )as in force here a body of la)s relating to
this sub/ect. (hese la)s are still in force. (hey are found in the La) of :aters of 1!.. and in articles
52 to 57" of the Civil Code. Cases )hich have heretofore arisen in this court have been decided
)ith reference to these la)s and not )ith reference to the decisions of the 'upreme Court of the
&nited 'tates relating to cases arising there. 3mong others are the cases of Ier D Co. s. Cuden >.
1hil. Rep., 2@7?, and 8over s. Insular *overnment
1
>6o. 7.25, decided March 7", 1-!?. (hat
#uestions relating to tidal lands should continue to be so decided seems to me free from doubt. It
may be said that the decision does not intend to announce a contrary doctrine. If it does not, I see no
purpose, for e<ample, in the long citation from the case of Illinois Central R. Co. s. Illinois >15. &.'.,
@!2?, nor in the declaration that the purpose of the citation of these decisions is to sho) in the
second place that the rights in tidal lands are not under the legislation of Congress the sub/ect of
private property.
7. (he second #uestion relates to the meaning )hich should be given to the phrase 9public lands9 in
the 3ct of Congress of 8uly 1, 1-7. In the concurring opinion in the Mapa case it )as stated, as has
been seen, that it has the same meaning here as in the &nited 'tates. (his doctrine seems to be
reiterated in the opinion in this case. 3fter announcing it in e#uivocal terms, it is said, to be sure that
the result )ould be the same if the )ords )ere to be construed )ith reference to the local la). (his
)ould be true if the la)s of the other t)o /urisdictions )ere the same. =ut it is easily demonstrated
that they are not.
:ith reference to tidal lands, )e have seen that in some of the 'tates private persons are the
o)ners of the land bet)een high and lo) )ater mar,. =y the La) of :aters of 1!.., and article @@-
of the Civil Code, the shore or beach is public property. It not only does not belong to private
persons, but it is not even the private property of the 'tate.
(he difference bet)een the t)o systems is more mar,ed )hen )e consider public roads and streets
and the beds of non-navigable rivers. =y the common la) of ;ngland, )hich has been follo)ed by
and is no) in force in a great many of the 'tates, the beds of such rivers belong to the o)ners of the
ad/oining land. =ut by the la) here in force >arts. @@- and 52, Civil Code? they are public property
and can not be considered even as the private property of the 'tate. (he same is true of streets and
roads. >3rts. @@- and @55, Civil Code.? :hen the &nited 'tates issues a patent for public land
o)ned by it situated in the 'tate of Minnesota, for e<ample, and bounded by a non-navigable river.
the patentee becomes the o)ner of one-half of the bed of the river. :hen the 'panish *overnment
issued a patent for land in the 1hilippines bounded by river, the patentee did not become the o)ner
of the bed of the river. Bis o)nership e<tended only to lo)-)ater mar,.
:hat has been said of rivers is true of roads. If the phrase 9public lands9 be given the meaning here
that it has in the &nited 'tates, )henever the +irector of 1ublic Lands grants a patent for land
bounded by a non-navigable river or road the patentee )ill become the o)ner of one-half of the bed
of the river and one-half of the road. (his result )ould be in direct conflict )ith the articles of the Civil
Code above cited, and )ould amount to a repeal thereof. 'uch a result Congress never could have
intended. 1rior to the treaty of 1aris the 'panish *overnment )as the o)ner of the roads and the
beds of streams in the 1hilippines in trust for the benefit of the people. (he treaty itself did not
change this status. Gn the contrary, it preserved rights of property as they then e<isted. =y the treaty,
the &nited 'tates ac#uired interest )hich the 'panish *overnment had in roads and the beds of
streams. It did not become the absolute o)ner thereof.
(he la)s of 'pain relating to this matter )ere continued in force by the proclamation of *eneral
Merritt. (his )ould have been the result even )ithout any proclamation.>3merican Ins.
Co. s. Canter, 1 1et., "11.? (hey are in force no), and the *overnment is still the o)ner of roads
and the beds of rivers unless Congress by the use of the phrase 9public lands9 in the 3ct of 8uly 1,
1-7, has repealed the articles of the Civil Code above cited. I do not thin, that such an intention
can be attributed to it . It is more reasonable to say that it is intended to give to the phrase the
meaning )hich )as given to it by the la)s in force in the territory )here the 3ct )as to ta,e effect.
3nd this intention is more apparent )hen )e consider that there then e<isted article @5 of the Civil
Code, )hich contained a complete definition of these lands belonging to the *overnment, )hich it
had the right to dispose of as private property. It had no intention of disposing of property )hich it
held in trust. (he property )hich the Commission intended to dispose of by 3ct 6o. -7. )as
undoubtedly the private property of the 'tate as defined by article @5.
(o say that Congress had a different purpose )ould be to attribute to it an intention to discriminate
against the 1hilippines and to impose upon the Islands la)s other than those there in force, a thing
)hich it has never done )hen legislating in regard to its land situated )ithin a particular 'tate. 3s )e
have seen, it has al)ays allo)ed each 'tate to determine for itself the la)s )hich shall govern real
'tate to determine for itself the la)s )hich shall govern real estate )ithin its borders. :hen this
court is called upon to define the phrase 9public lands9 as used in the 3ct of Congress and in 3ct 6o.
-7., it should in my opinion say that it includes the property described in article @5 of the Civil
Code.
0or the reasons above stated, I agree )ith the result in this case, but I dissent from those parts of
the opinion )hich I have discussed.
,oo'no'%)
1
1 1hil. Rep., 12".
7
1age "-@, post.
@
1age 2-., post.
5
1age 2-", post.
*ILLIAR+, J., concurring in the result.
1
1 1hil. Rep., "77.