property notes

CHAPTER TWORIGHT OF ACCESSION

Art. 440. The ownership of property gives the right byaccession to everything which is produced thereby, orwhich is incorporated or attached thereto, eithernaturally or artificially. Accession- the right of the owner of a thing, real or

personal, to become the owner of everything which isproduced thereby, or which is incorporated or attachedthereto, either naturally or artificially

Article 440 does not apply to property that belongs to thepublic dominion. (Sps. Gulla v Heris of Labrador, G.R. No.149418, July 27, 2006.)

Accession v. Accessory Accession Accessoryare the fruits of, or additionsto, or improvements upon, athing (the principal). Theconcept includes accession inits three forms of building,planting, and sowing (see Art.445.), and accession natural,such as alluvion (see Art.457.), avulsion (see Art. 459.),change of course of rivers (seeArts. 461-462.), and formationof islands. (see Arts. 464-465.)

are things joined to, or included with,the principal thing for the latter’sembellishment, better use, orcompletion (e.g., key of a house; frameof a picture; bracelet of a watch;machinery in a factory; bow of aviolin)

are not necessary to theprincipal thing

accessory and the principal thing mustgo together

Both can exist only in relation to the principal.

Accession, not a mode of acquiring ownership

1. Accession is not one of the modes of acquiringownership enumerated in Article 712.

2. The theory adopted in the Civil Code is thataccession is merely a consequence or incidence ofownership.

3. In the other modes of acquiring ownership, there isno previously existing ownership which is not true inthe case of accession which presupposes a pre-existing right of ownership.

4. Accession is an exercise of the right of ownership,an extension of dominion over a principal thing to anaccessory.

Kinds of Accession

1. Accession discreta - the extension of the right ofownership of a

person to the products of a thing which belongs to suchperson. It is based on the principle of justice for it is just that the

owner of a thing should also own its fruits (discreta). Under the Civil Code, it takes place with respect to:

(a) natural fruits;(b) industrial fruits; and(c) civil fruits. (Art. 441)

2. Accession continua - the extension of the right ofownership of a person to that which is incorporatedor attached to a thing which belongs to such person. It is based on convenience and necessity for it is more

practical that the owner of the principal should also own

AQUINO, CJU | P a g e | 1 | PROPERTY: Right of Accession [De Leon and Prado; verbatim]

the accessory (continua) instead of establishing a co-ownership.

Classification of Accession Continua:1) With reference to real property

a) accession industrial(1) building (2) planting (3) sowingb) accession natural(1) alluvium (2) avulsion(3) change of course of rivers(4) formation of islands2) With respect to personal property

a) adjunction or conjunction(1) inclusion (engraftment)(2) soldadura (attachment)(3) tejido (weaving)(4) pintura (painting)(5) escritura (writing)b) mixture (confusion — liquids; commixtion — solids) c) specification – turning one thing belonging to another intosomething else ex. grapes owned by A turned into wine by B

Art. 441. To the owner belongs:(1) The natural fruits;(2) The industrial fruits;(3) The civil fruits.

Right of owner to the fruits The general rule is that all fruits belong to the owner of a

thing. The fruits may be in the form of damages sufferedby the owner of a land, for example, by its wrongfuloccupation by another consisting of the value of thefruits produced. (Quizon v. Salud, 12 Phil. 109 [1908].)

Exceptions. — There are exceptions to the rule in Article441.

In the following cases, a person, other than the owner of aproperty, owns the fruits thereof:

(a) possession in good faith by another, in which case, thepossessor in good faith is entitled to the fruits receivedbefore the possession is legally interrupted (Art. 546.);

(b) usufruct, in which case the usufructuary is entitled toall the fruits of the property on usufruct (Art. 566.);

(c) lease of rural lands, in which case the lessee is likewiseentitled to the fruits of the land (Art. 1680.) with theowner, of course, getting the civil fruits in the form ofrents paid by the lessee (Art. 1654.);

(d) pledge, in which case, the pledgee is entitled to receivethe fruits, income, dividends, or interests which the pledgeearns or produces but with the obligation to compensate orset-off what he receives with those which are owing him(Art. 2102, par. 7.); and

(e) antichresis, in which case the creditor acquires theright to receive the fruits of an immovable of his debtor,


but with the obligation to apply them, first, to the interest ifowing, and then to the principal amount of the credit. (Art.2132.)

Art. 442. Natural fruits are the spontaneous products ofthe soil, and the young and other products of animals.

Industrial fruits are those produced by lands of anykind through cultivation or labor.

Civil fruits are the rents of buildings, the price ofleases of lands and other property and the amount ofperpetual or life annuities or other similar income.

Natural Fruits2 Kinds:(a) the spontaneous products of the soil- that is, human labordoes not intervene Ex. herbs, common grass.(b) the young and other products of animals. (See Art. 442,par. 1).Ex. chicks and chicken eggs.

Notes. Standing trees being an integral part of the land are

generally not fruits. They are immovables. (Art. 415[2]) The second kind is considered as natural fruits whatever

care or management, scientific or otherwise, may havebeen given by man since the law makes no distinction. Theowner of a female cow is presumed to be the owner of itsyoung by the right of accretion. He cannot, therefore, becharged with robbery of the offspring of his cow. (U.S. v.Caballero)

Under the rule of partus sequitur ventrem, to the ownerof female animals would also belong the young of suchanimals although this right is lost when the owner mixeshis cattle with those of another. This rule merelycontinues the ownership which the owner of the femalehad while the young was still in the womb of the mother.

This maxim is based on two good reasons: (a) First,often times, it is not known who the male is. (b) Second,during the pregnancy of the female, its owner is greatlyburdened by the consequential expenses and virtualuselessness of the animal, and it is only fair that when theyoung is born, the owner should gain, or at least recoverhis loss.

PROBLEMS.(a) A leased a female animal from B. During the period ofthe lease, the animal produced a sibling. Who owns theyoung (sibling)? ANS.: A owns the young, for after all a contract of lease isonerous. It should be observed that by virtue of thecontract of lease, the general rule that the owner of thefemale is also the owner of the young must give way.

(b) Suppose in the preceding problem, A was merelygiven the animal by way of commodatum (gratuitousborrowing), would your answer be the same?ANS.: No. This time the owner of the female retainsownership in view of the gratuitous contract.

Industrial Fruits


The distinction between natural fruits and industrial fruitsis not always easily determined for it is sometimes difficultto ascertain that part of the product which corresponds tothe forces of nature and that part which corresponds to theindustry of man. (3 Manresa. Thus:

(1) Grass, as the zacate for horse, is ordinarily a natural fruitbut is considered an industrial fruit when it is cultivated asfoodfor horses.

(2) Wild mushrooms are natural fruits but cultivatedmushrooms are industrial fruits.

(3) Standing trees are not fruits although they produce fruitsthemselves but they may be considered as industrial fruitswhen they are cultivated or exploited to carry on an industry.

Civil Fruits Article 442 considers three things as civil fruits: rents of

buildings; prices of leases (rents) of lands and otherproperty

(including movables); and the amount of perpetual or lifeannuities or other similar income. A tenant who continues occupying a land after the

expiration of the lease contract inspite of the demand madeupon them to vacate may be considered a usurper orpossessor in bad faith and may be sued not only for thereturn of the land but also the natural fruits as well as thecivil fruits which consist of the rents for the buildings (ifany) and the price of the lease of the land. In such case, his

liability arises, not by virtue of the contract of lease butby virtue of the right of accession which accompaniesthe right of recovery.

Rent is a civil fruit that belongs to the owner of theproperty producing it by right of accession.Consequently and ordinarily, rents falling due from thetime of the perfection of the sale to the buyer who nevertook actual control and possession of the property (i.e.,there was no delivery) until its rescission by finaljudgment should belong to the owner of the property(party to whom property was awarded because of theviolation by the vendor of the former’s right of firstrefusal) during that period.

As a consequence of the rescission of the sale, it is as ifthe buyer never bought and became the lessor of thesubject property. (Equatorial Realty Development, Inc. v.Mayfair Theater, Inc.)

A dividend, whether in the form of cash or stock, isincome or fruit (and consequently should go to theusufructuary rather than the owner of the shares of stockin usufruct) for it is declared only out of the profits of acorporation and not out of its capital.

Art. 443. He who receives the fruits has the obligationto pay the expenses made by a third person in theirproduction, gathering, and preservation.

Application. — This article applies where the owner ofproperty recovers the same from a possessor and the


possessor has not yet received the fruits although they mayhave already been gathered or harvested; or the possessorhas already received the fruits but is ordered to return thesame to the owner. The owner is obliged to reimburse theprevious possessor for the expenses incurred by the latterfor their production, gathering, and preservation.

Reason for the rule. — The expenses incurred by anotherhave inured to the benefit of the owner who receives thefruits for without such expenses there would have been nofruits. It is, therefore, just and proper to pay such expenses.Moreover, the rule is in keeping with the principle that noone may unjustly enrich himself at the expense of another

Effect of bad faith. — The owner cannot excuse himselffrom his obligation by alleging bad faith on the part of thepossessor because Article 443 makes no distinction andbecause the expenses made were necessary without whichthe owner would not have received the fruits

Article 443 is applicable when the fruits or crops havealready been gathered or harvested when the ownerrecovers possession; hence, the principle of accessiondiscreta applies. So, a possessor in bad faith ordered toreturn the fruits he had gathered, has a right “to deduct theexpenses of planting and harvesting.’’

The good or bad faith of the possessor is material where thefruits are still pending (ungathered) at the time he gave uphis possession. Under Article 449, a builder, planter orsower, in bad faith has no right of reimbursement for

expenses; nor to the fruits. In other words, the ownergets the fruits without indemnity by the principle ofaccession continua. But the possessor in bad faith isentitled to reimbursement for the necessary expenses ofpreservation of the land.(Art. 452.)

In any case, Article 443 should be read in connectionwith Articles 544 to 551 which provide for the effects ofpossession in good faith and bad faith. Under Article544, a possessor in good faith has no right toreimbursement for his expenses since he is entitled tofruits already received.

Only expenses incurred by the possessor for theproduction, gathering and preservation (notimprovement) of the fruits are reimburseable.

(a) Even where such expenses exceed the value of thefruits which may well happen if a calamity occurs whichdecreases their value, the owner must pay the expensesjust the same because the law makes no distinction.

(b) Moreover, he who is entitled to the benefits andadvantages must assume the risks and losses. The owner,however, may free himself of the expenses by permittingthe possessor to complete the harvesting and gatheringof the fruits for himself.

Suppose the expenses exceed the value of the fruits (aswhen, for example, typhoons have damaged the crops)must there still be a reimbursement for the expenses?


ANS.: Yes, if the owner insists on being entitled to the fruits.This is because: (a) the law makes no exception ordistinction; (b) the same thing would have happened had theowner been also the planter; (c) he who gets expectedadvantages must be prepared to shoulder losses. It isunderstood, of course, that if the fruits had not yet beengathered, no indemnity is required. PROBLEMS.A is the owner of a piece of land upon which fruits weregrown, raised, harvested, and gathered by B in bad faith.Who should be considered the owner of the fruits?ANS.: A should be considered the owner of the fruits, sincehe is the owner of the land, and B is a planter in bad faith buthe must reimburse B for the expenses for production,gathering, and preservation. The reason for reimbursing Beven though he is in bad faith, is that were it not for the saidnecessary cultivation expenses, there would not be any fruitsgrown at all, or left or preserved. Thus, this article is merelyin consonance with the principle that no one may enrichhimself unjustly at another’s expense.[NOTE: Under Art. 449, “He who builds, plants, or sows inbad faith on the land of another, loses what is built, planted,or sown without right to indemnity.”

How can this Article 449 be reconciled with the answer tothe example given above?ANS.: Art. 449 applies only if the crops have not yet beengathered (here the landowner gets the fruits withoutindemnity by the principle of accession continua). On theother hand, Art. 443 applies when the crops have alreadybeen gathered (hence, accession continua cannot apply). It

should be observed that in the example given, the cropswere already gathered. Thus, in one case, the possessor inbad faith was ordered to return the fruits he had gathered“with a right to deduct the expenses of planting andharvesting.” (Tacas v. Tobon)

Art. 444. Only such as are manifest or born areconsidered as natural or industrial fruits.

With respect to animals, it is sufficient that theyare in the womb of the mother, although unborn.

When natural fruits and industrial fruits deemed to exist. It may be necessary to prorate or allocate the fruits to

different persons. Civil fruits are easily prorated forunder Article 544 they are deemed to accrue daily andbelong to the possessor in good faith in that proportion.Natural and industrial fruits while still pending(ungathered) are real property. Their special naturerequires rules so that the time when they are deemed toexist must be definitely fixed.

Civil fruits accrue daily (Art. 544) and are thereforeconsidered in the category of personal property; naturaland industrial fruits, while still growing, are realproperty. (b) Civil fruits can be pro-rated; natural andindustrial fruits ordinarily cannot. (See Art. 544).

Guidelines (De Leon)(1) With respect to plants which produce only one cropand then perish (e.g., rice, corn, sugar), they should bedeemed manifest or existing from the time the seedlings


appear from the ground;

(2) As to plants and trees which live for years and giveperiodic fruits (e.g., mangoes, coconuts, oranges), the fruitsare not deemed existing until they actually appear on theplants or trees;

(3) As regards animals, they are deemed existing at thebeginning of the maximum ordinary period of gestation(when there can be no doubt that they are already in thewomb of the mother), this being the surest criterion of theirexistence in the mother’s womb; and

(4) With respect to fowls, by analogy, the fact of appearanceof the chicks should retroact to the beginning of incubation.

While products of the soil are considered natural orindustrialfruits only if manifest or visible, the young ofanimals areconsidered natural fruits only if existing in thewomb of the mother, though unborn. Thus, the secondparagraph of Article 444 is an exception or qualification tothe first paragraph thereof.

SECTION 2. — Right of Accession with Respect toImmovable Property

Art. 445. Whatever is built, planted or sown on the landof another and the improvements or repairs madethereon, belong to the owner of the land, subject to theprovisions of the following articles.

Accession Continua: Principles Accession follows the principal. — This means that the

owner of the latter acquires the ownership of the former.With respect to accession relating to immovables, theland is usually the principal (see Arts. 447, 448, 454.);with respect to accession involving movables, the lawprovides rules for determining which is the principal.(Arts. 467, 468.)

Accession follows the principal. — This means that theowner of the latter acquires the ownership of the former.With respect to accession relating to immovables, theland is usually the principal (see Arts. 447, 448, 454.);with respect to accession involving movables, the lawprovides rules for determining which is the principal.(Arts. 467, 468.)

Effect of good faith and bad faith. — Good faithexonerates a person from punitive liability but bad faithmay give rise to dire consequences. As a general rule, aperson who acts in bad faith has no rights. He may alsobe held liable for damages. (Arts. 447-455.) However, aperson, whether in good faith or bad faith, is entitled toreimbursement for necessary expenses of preservation(Art. 452.) as well as expenses for cultivation,gathering, and preservation. (Art. 443.)

Effect where both parties in bad faith. — The bad faithof one party neutralizes the bad faith of the other.Where the parties are equally in bad faith, they shallboth be considered as being in good faith. (Art. 453.)


Where the landowner and the builder, planter or sower areboth in good faith or bad faith, neither party may demandas a matter of right the removal of the improvementsagainst the will of the other for such right is available onlyto a party in good faith where the other is in bad faith. (seeArts. 447, 449, 450, 453-455.)

No one should unjustly enrich himself at the expense ofanother. This principle is generally applicable. Thus, theright of the owner of land to acquire what is built, planted,or sown with the materials of another is subject to theobligation to pay their value (Art. 447.); and if thematerials belong to a third person, the owner shall answersubsidiarily for their value unless he exercises his right ofremoval. (Art. 455.) The builder, planter, or sower,although in bad faith, is entitled to reimbursement for thenecessary expenses of preservation of the land. (Art. 452.)

General Rule on Accession Industrial Articles 445 and 446 give the general rule that the

accessory follows the principal. (see Art. 437.) The land isthe principal and what is built, the accessory. An exceptionis provided in Article 120 of the Family Code (Exec. OrderNo. 209.) with respect to improvements made on theseparate property of the spouses.

(1) The word “building’’ is a generic term for all architecturalwork with roof built for the purpose of being used as aman’s dwelling, or for offices, clubs, theaters, etc. Awarehouse, where its circumstances and details do notappear in the record, could not be construed as the class of

buildings mentioned in Article 1404 of the old CivilCode, which became Article 158 of the new Civil Codeand now Article 120 of the Family Code. (Binondo v.Mier)

(2) The word “repairs’’ implies the putting of somethingback into the condition in which it was originally andnot an improvement in the condition thereof by addingsomething new thereto. (Javier v. Javier)

“Art. 120. The ownership of improvements, whether forutility or adornment, made on the separate property of thespouses at the expense of the partnership or through theacts or efforts of either or both spouses shall pertain to theconjugal partnership, or to the original owner-spouse,subject to the following rules: When the costs of theimprovement made by the conjugal partnership and anyresulting increase in value are more than the value of theproperty at the time of the improvement, the entireproperty of one of the spouses shall belong to the conjugalpartnership, subject to reimbursement of the value of theproperty of the owner-spouse at the time of theimprovement; otherwise, said property shall be retained inownership by the owner-spouse, likewise subject toreimbursement of the cost of the improvement. In eithercase, the ownership of the entire property shall be vestedupon the reimbursement, which shall be made at the timeof the liquidation of the conjugal partnership.(1) It is important to Note which is Bigger or Greater

(a) the value of the property just before the improvementwas made; or


(b) its value after the improvement including the cost.(2) Rules If (a) is greater, the whole thing belongs to the

owner-spouse, without prejudice to reimbursement of theconjugal partnership.

If (b) is greater, the whole thing belongs to the conjugalpartnership but the owner-spouse must be reimbursed.

(3) If on the lot of the husband worth P1,000,000, a 5-million-peso (P5,000,000) house is constructed, the house and lotwill belong to the conjugal partnership, but it willreimburse the husband P1,000,000. The ownership will bevested in the conjugal partnership at the time ofreimbursement and this reimbursement will be made whenthe conjugal partnership is liquidated.

(4) In No. 3, if the house costs less than P1,000,000, thehusband will be the owner of the house and lot, but he mustreimburse the conjugal partnership the cost of the house.

For Article 445 to be applicable, the owner of the landmust be known. Otherwise, no decision can be rendered onthe ownership of the things planted, built, or sown until ahearing shall have been accorded to whomsoever isentitled thereto.

Some Latin Legal Maxims in Connection with AccessionIndustrial Accessorium non ducit sed sequitor suum principali. (The

accessory does not lead but follows its principal. Or: if theprincipal is given, the accessory is also given; but if the

accessory is given, this does not necessarily mean thatthe principal is also given.)

Accessorium sequitor naturam rei cui accedit. (Theaccessory follows the nature of that to which it relates.)

Aedifi catum solo, solo cedit. (What is built upon theland goes with it; or the land is the principal, andwhatever is built on it becomes the accessory.)

When builder and owner of land and materials, sameperson No provision; The reason for the provision is readily

apparent; recourse to the rules of accession are totallyunnecessary and inappropriate where the ownership ofland and of the materials used to build thereon areconcentrated on one and the same person. Even if thelaw did not provide for accession, the landowner wouldnecessarily own the building, because he has paid forthe materials and labor used in constructing it. (Gaboyav. Cui)

Art. 446. All works, sowing, and planting arepresumed made by the owner and at his expense,unless the contrary is proved.

The two disputable (juris tantum) presumptions underthis Article are: (a) The works, sowing, and plantingwere made by the owner. (See Art. 437 on surface right,and Art. 445).

They were made at the owner’s expense. (This is soeven if another actually undertook the task, for then he


might have been acting only as the agent. Morever, even ifhe did not so act as agent, we may still presume that theundertaking was made with the landowner’s consent. If thebuilding be large, expensive, or important, common sensemay direct us to believe that the owner of the building isalso the owner of the land. BUT this would not be the casefor under the principles of accession, we must stillpresume that the owner of the land is the person whoerected the building.

He who alleges the contrary of the presumptionsestablished in Article 446 has the burden of proof.

Example I own a piece of land containing rice crops and afence. It is presumed that I made the plantings and thefence at my expense. This presumption is howeverrebuttable, as the contrary may be proved, according to thelaw. The usefulness of the presumption lies in the fact thatI do not have to prove anymore that they were constructedat my expense, since I have the presumption in my favor.Whoever alleges the contrary should prove his contention.[NOTE: The two presumptions in this Article are rules ofevidence or of substantive law, not mere rules ofprocedural law.]

Art. 447. The owner of the land who makes thereon,personally or through another, plantings, constructionsor works with the materials of another, shall pay theirvalue; and, if he acted in bad faith, he shall also beobliged to the reparation of damages. The owner of thematerials shall have the right to remove them only in case

he can do so without injury to the work constructed, orwithout the plantings, constructions or works beingdestroyed. However, if the landowner acted in badfaith, the owner of the materials may remove them inany event, with a right to be indemnified for damages.

This Article treats of the rights and obligations of: (a)the owner of the land who uses the materials of another;(b) the owner of the materials.

Under Article 446, it is presumed that all works, sowingand planting have been made by the owner and at hisexpense. But as the presumption is prima facie, it maybe overcome by proof to the contrary

Article 447 presupposes that the owner of the materialsis in good faith. Good faith is always presumed (Art.527.) and he is deemed a possessor in good faith who isnot aware that there exists in his title or mode ofacquisition any flaw which invalidates it. (Art. 526.)

If the landowner acted in good faith — He becomesthe owner of the materials but he must pay for theirvalue. The only exception is when they can be removedwithout destruction to the work made or to the plants. Insuch a case, the owner of the materials can removethem. (b) If the landowner is in bad faith — Hebecomes the owner of the materials but he must pay: 1)their value; 2) and damages. [The exception is whenthe owner of the materials decides to remove themwhether or not destruction would be caused. (In this


case, the materials would still belong to the owner of saidmaterials, who in addition will still be entitled todamages).]

If the landowner acted in good faith — 1) The owner ofthe materials is entitled to reimbursement (provided hedoes not remove them). 2) He is entitled to removal(provided no substantial injury is caused).

If the landowner acted in bad faith — 1) The owner of thematerials is entitled to the ABSOLUTE right of removaland damages (whether or not substantial injury is caused).2) He is entitled to reimbursement and damages (in case hechooses not to remove).

The law says that the owner of the land “shall pay theirvalue,’’ implying that the owner is not given the option toreturn the materials instead of reimbursing their value.Nevertheless, if the materials have not been damaged ortransformed and can be returned in their original condition,the landowner may do so at his expense, of course, evenwithout the consent of the owner of the materials.

Illustrative Examples(a) A, on his land, constructed a house with the materials ofB. A is in good faith. Can B remove said materials? ANS.: No, B cannot remove said materials because to do sowould necessarily injure the house. (Art. 447).

(b) A rented B’s land, and built on it a house, with materialsbelonging to C. A was in good faith. Are A and C co-owners

of the house?ANS.: No, they are not co-owners of the house because bythe principle of accession, just because a person’smaterials were used, it does not follow that the owner ofthe materials becomes owner of any part of the building.At most, C is entitled to reimbursement for their value.(Liwanag v. Yu-Sonquian, 5 Phil. 147).

(c) A, on his land, constructed a house with the materialsof B. A is in bad faith. Can B remove the materials even ifin doing so, the whole structure will be destroyed? Can Balso ask for damages?ANS.: Yes, B is allowed the right of absolute removal aswell as indemnifi cation for damages. (This is to penalizeA’s bad faith.) (Art. 447).

(d) What is the measure of damages? ANS.: “Indemnification for damages shall comprehendnot only the value of the loss suffered (dano emergente ordanos) but also that of the profi ts which the obligee failedto realize (lucro cessante or perjuicios).” (Art. 2200).

Problems.(a) The law says: “Pay their value” (reimbursement).Suppose the landowner wants to return the materialsinstead of reimbursing their value, may this be done evenwithout the consent of the former owner of the materials?ANS.: It depends:1) If no damage has been made to the materials, or they

have not been transformed — as a result of theconstruction — they may be returned (of course, at the


landowner’s expense).2) If damage has been made or there has been a

transformation, they cannot be returned anymore. (Notethat the law does not grant this option to the landowner).

(b) The law says: “the owner of the materials shall have theright to remove ...” Suppose the landowner has alreadydemolished or removed the plantings, constructions, orworks, is the owner of the materials still entitled to claimthem? ANS.: Although there are differences of opinion on thismatter, the best rule seems to be that the owner of thematerials is still entitled to get them since the law makes nodistinction. Moreover, the landowner may insist on returningsaid materials for evidently there is no accession. (Ibid.).

(c) A builds a house on his land using the materials of B.Later, A sells the house and land to C. Against whom will Bhave a right of action, against A, the builder, or C, the buyer?ANS.: The law is silent on this point, but it would seem thatthe right of action should be directed against C, since it washe who benefi ted from the accession.

Meaning of Bad Faith and Good Faith in Connection withArt. 447 Although Art. 447 does not define good faith or bad faith,

we may, by analogy, apply the definitions provided for inArts. 453 and 526

The builder, planter or sower is in BAD faith if he makesuse of the land or materials which he knows belong to

another. (Thus, one who buys land without verifyingwhether or not the land belongs to another with aTorrens Title and who subsequently builds on it, is abuilder in bad faith, if indeed the land is alreadyregistered under the Land Registration Law in the nameof another. [J.M. Tuason and Co. v. Macalingdong, L-15398, Dec. 24, 1962]). Thus, also, a purchaser is not abuilder in good faith where he has presumptiveknowledge of an existing Torrens Title in favor ofanother. [J.M. Tuason v. Mumar, L-21544, Sep. 30,1968]. Likewise, one who is aware of a notice of lispendens is a purchaser in bad faith. [Clemente v. Pascua,L-25153, Oct. 4, 1968].)

He is in GOOD faith if he did not know that he had noright to such land or materials. (If a landowner with aTorrens Title builds beyond the boundaries of hisproperty as stated in the certifi cate of title (and thusconstructs partly on his neighbor’s land), is henecessarily in bad faith? No, for he may still be in goodfaith. No one, not even a surveyor, can determine theprecise location of his land by simply examining histitle. (Co Tao v. Chico, L-49167, Apr. 30, 1968).

The owner of the materials is in BAD faith if he allowsanother to use the materials without informing him ofthe ownership thereof.

The owner of the materials is in GOOD faith if he didnot know that another was using his materials; orgranting that he did know, if he informed the user of theownership thereof and made the necessary prohibition.


Rule if both parties acted in bad faith They are considered to have acted in good faith.

Rule When Landowner is in Good Faith But Owner ofMaterials is in Bad Faith There is no provision of the law on this point, but it would

seem that the landowner would not only be exempted fromreimbursement, but he would also be entitled toconsequential damages (as when for instance, the materialsare of an inferior quality). Moreover, the owner of thematerials would lose all rights to them, such as the right ofremoval, regardless of whether or not substantial injurywould be caused.

Presumption of Good Faith Good faith is always presumed, and upon him who alleges

bad faith rests the burden of proof. (See Art. 527).

Art. 448. The owner of the land on which anything hasbeen built, sown or planted in good faith, shall have theright to appropriate as his own the works, sowing orplanting, after payment of the indemnity provided for inarticles 546 and 548, or to oblige the one who built orplanted to pay the price of the land, and the one whosowed, the proper rent. However, the builder or plantercannot be obliged to buy the land if its value isconsiderably more than that of the building or trees. Insuch case, he shall pay reasonable rent, if the owner ofthe land does not choose to appropriate the building ortrees after proper indemnity. The parties shall agree upon

the terms of the lease and in case of disagreement, thecourt shall fix the terms thereof.

When a person builds in good faith on the land ofanother, the applicable provision is Article 448. Thebuilder, etc. in bad faith on the land of another loseswhat is built, etc. without right to indemnity. Whatgovern are Articles 449 and 450.

Good faith under Article 448 consists in the honestbelief of the builder, sower, or planter, that the land he isbuilding, sowing, or planting on, is his or that by sometitle he has a right to build, etc. thereon, and hisignorance of any defect or flaw in his title. (seePleasantville Dev. Corp. v. Court of Appeals)

It implies honesty of intention, and freedom fromknowledge of circumstances which ought to put thebuilder, etc. upon inquiry.(see Philippine National Bankv. De Jesus, 411 SCRA 557 [2003].

The rule on good faith laid down in Article 526 shall beapplied in determining whether a builder, etc. had actedin good faith.

(1) Ownership of land claimed by two or more parties. —Article 448 refers to a land whose ownership is claimedby two or more parties, one of whom has built someworks or sown or planted something. It has no applicationto a case where the owner of the land is the builder, etc.who then later loses ownership of the land by sale or


donation. (Pecson v. Court of Appeals)

(2) Requirement of good faith. — Article 448, in relation toArticles 546 and 548, applies where the builder, planter, orsower acted in good faith, i.e., he honestly believed himselfto have a claim of title (Alburo v. Villanueva, 7 Phil. 227[1906]; see Arts. 525-526.); or he proceeded with theknowledge, tolerance, consent, or permission of the owner.(De Guzman v. Fuenle). But one cannot be deemed a builderin good faith where there is a presumptive knowledge of theTorrens title issued to the registered owner of the land indispute. (J.M. Tuazon Co., Inc. v. Vda. de Lumanlan)

Article 448 applies only where one builds, etc. on land inthe belief that he is the owner of the land; it does not applywhere one’s interest in the land is merely that of a holdersuch as a mere lessee under a rental contract (Balucaneg v.Francisco, 122 SCRA 498 [1983].), an agent, or ausufructuary. (Macasaet v. Macasaet)

Hence, lessees, much less sublessees, cannot be possessorsnor builders in good faith over rented land because theyknow that their occupancy of the premises continues onlyduring the life of the lease or sublessees, as the case maybe, and, they cannot as a matter of right recover the valueof their improvements from the lessor, much less retain thepremises until they are reimbursed; 4 otherwise, it wouldalways be in the power of the lessee to “improve’’ thelessor out of the latter’s property. (Jimenez v. Palucia, Inc.)

(3) Presumption of good faith. — As good faith is presumed, he

who alleges bad faith on the part of the builder, etc. has theburden of proof. (Art. 527.)

(4) Presence of negligence. — The good faith of thebuilder, etc. does not necessarily preclude negligencewhich gives right to damages under Article 2176. (see Art.456.) A lot buyer who constructs improvements on thewrong property erroneously delivered by the owner’sagent, honestly believing that the said lot was what hebought from the petitioner (seller), is not guilty ofnegligence, and his violation of the contract of sale orinstallment may not be the basis to negate the presumptionof good faith assuch violation has no bearing on his state of mind at thetime he built the improvements. (see Pleasantville Dev.Corp. v. Courtof Appeals, supra.)

It has been held that unless one is versed in thescience of surveying, “no one can determine the preciseextent or location of his property by merely examining histitle.’’

(5) Application to both public and private lands. — Theprovision makes no distinction between private land andland of public dominion. Thus, where it was shown thatduring the Spanish regime a private company was givenverbal permission by the politico-military governor of aprovince to occupy the land and shore in question whichwere part of the public domain and then constructedthereon a warehouse, a pier and a retaining wall, thecompany was considered a builder in good faith under


the provisions of Article 448. (Insular Government v.Aldecoa & Co.)

Option given to landowner(1) Option alternative. — The landowner can exercise aremedyof his own liking. He is given an option, either:

(a) to appropriate the improvement upon payment of therequired indemnity (Arts. 546, 548.); or

(b) to oblige the builder or planter to pay the price of theland (unless its value is considerably more than that ofthe building or trees), and the sower, to pay the properrent.

Where a co-ownership is terminated by a partition and itappears that the improvement constructed by an erstwhilecoowner has encroached upon a portion pertaining to anothercoowner which was, however, made in good faith, theprovisions of Article 448 would apply to determine therespective rights of the parties. It is the co-owner whoseportion is encroached upon who has the option to sell thatportion or buy the improvement. (Ignacio v. IntermediateAppellate Court, 193 SCRA 17 [1991].)

(2) Communication of choice. — The choice of the ownershall produce effect from the time it has been communicatedto the other party. (see Art. 1202; Tayag v. Yuseco, 105 Phil.484 [1959].) Once properly made, it cannot be changed bythe former without the consent of the latter.(3) Good faith of builder, etc., immaterial. — It is immaterialthat the builder acted in good faith or that “peculiar

circumstances supervened after the institution of the caselike, for instance, the introduction of certain major repairsand other substantial improvements’’ because the optiongiven by law to retain the premises and pay for theimprovements thereon or to sell the said premises to thebuilder belongs to the owner of the property. (ManotokRealty, Inc. v. Tecson, 164 SCRA 587 [1988].)

Reason for option Whatever is built, planted or sown on the land of

another, the improvements or repairs made thereon,belong to the owner of the land. (Art. 446.)

Where, however, the planter, builder, or sower has actedin good faith, a conflict of rights arises between theowners, and it becomes necessary to protect the ownerof the improvements without causing injustice to theowner of the land. In view of the impracticability ofcreating what Manresa calls a state of “forced co-ownership,’’ the law has provided a just and equitablesolution by giving the owner of the land the option orchoice to acquire the improvements after payment of theproper indemnity or to oblige the builder or planter topay for the land and the sower to pay the proper rent.

It is the owner of the land who is allowed to exercise theoption because his right is older and because, by theprinciple of accession he is entitled to the ownership ofthe accessory thing. (Bernardo v. Bataclan)

The obvious benefit to the builder is that instead ofbeing outrightly ejected from the land, he can compelthe landowner to make a choice between the twooptions, either to pay for the improvement or to sell the


land. (Technogas Phils. Manufacturing Corp. v. Court ofAppeals)

Builder's etc., right limited to reimbursement The right to choose is given to the landowner and not to the

builder. The only right given to the builder in good faith isthe right to reimbursement for the improvement. It is nevercontemplated that a possessor or builder in good faith shallhave an absolute right of appropriating for himself theentire harvests or fruits without giving the rightful ownerany share. The right of a builder in good faith cannot defeatthat of the owner of the land to whom belong, by settledrule, the fruits — jus fruendi. Nor can he compel the ownerof the land to sell it to him.

It is to be noted that as regards sowing, the alternative rightgiven to the owner of the land is merely to demand theproper rent from the person who sowed. This is due to thefact that sowing is temporary, and after harvest, the conflictbetween the rights of owner of the land and the sower nolonger exists.

In a case, a public service corporation (i.e., Manila RailroadCo.) built its track on a land without any opposition orprotest from the owner who merely stood by. It was heldthat the owner (who may not be considered in good faith)was deemed to have waived his right to recover possessionof his property and the construction thereon. His onlyremedy (i.e., he has no option) would be to recoverdamages for the value of the property taken consideringthat the corporation merely exercised its power of eminentdomain as authorized by law.

Right of landowner to remove or demolish improvement Since the option is given to the landowner and it is

limited to paying for the improvement or selling his landto the builder, etc., he cannot refuse to exercise his rightof choice and compel the builder to remove or demolishthe improvement. An order by a court compelling abuilder in good faith to remove his building from a landbelonging to another who chooses neither to pay forsuch building nor sell the land is null and void for beingoffensive to Article 448.

The landowner is entitled to such removal only whenafter having chosen to sell his land, the other party failsto pay for the same.

The improvement must be of a permanent character,attached to the soil with an idea of perpetuity, but it is ofa transitory character or is transferable, there is noaccession and, therefore, the landowner has every rightto have the same removed from his property. (Alviola v.Court of Appeals)

Right to improvement before payment Landowner’s right to acquire ownership. — When a

person builds in good faith on land belonging to another,the landowner does not ipso facto acquire ownership ofwhat has been built; he must first identify the builderbefore he can appropriate the same. Where the issue asto whether a person is a planter in good faith or not isstill unresolved, the court may not enjoin the gatheringof crops thereon by the planter as this would, in effect,mean that said planter is a planter in bad faith. (Inter-Regional Development Corp. v. Court of Appeals)


Until the indemnity which includes necessary and usefulexpenses (Art. 546.) has been paid in full by the landownerwho has elected to appropriate the improvements, thebuilder, etc., may retain both the land and theimprovements even against the real owner. (Mercado v.Court of Appeals)◦ Purpose of right. — The right of retention is considered

as one of the measures devised by the law for theprotection of builders in good faith. Its object is toguarantee full and prompt reimbursement as it permitsthe actual possessor to remain in possession while hehas not been reimbursed (by the person who defeatedhim in the case for possession of the property) for thosenecessary expenses and useful improvements made byhim on the thing possessed. Accordingly, a builder ingood faith cannot be compelled to pay rentals duringthe period of retention nor be disturbed in hispossession by ordering him to vacate. (Nuguid v. Courtof Appeals)

◦ Offsetting necessary and useful expenses. — The ownerof the land is prohibited from offsetting orcompensating the necessary and useful expenses withthe fruits received by the builder-possessor in goodfaith. Otherwise, the security provided by law would beimpaired. This is so because the right to the expensesand the right to the fruits both pertain to the possessor,making compensation juridically impossible; and onecannot be used to reduce the other. (Ibid.)

◦ Where improvements destroyed. — Where theimprovements have been destroyed by a fortuitousevent without the fault of the landowner, the basis for

the builder’s right to retain the premises isextinguished; hence, there is no other recourse forhim but to vacate the premises and deliver the sameto the landowner. (Manotok Realty, Inc. v. Tecson)

◦ Where property of public dominion. — The right ofretention of a builder in good faith until payment ofthe proper indemnity applies only on private land. Itcannot be invoked and applied to property of publicdominion such as a road because public interest isinvolved. The people cannot be deprived of the useof the land. Thus, in a case where a provincial board,without authority of law, granted exclusive use fortwenty years of an unfinished provincial road to alumber company in consideration of the lattercompleting the construction of the same, it was heldthat the board may elect between paying thecompany which acted in good faith the total cost ofconstruction with interest or upon securing theauthorization of the proper authorities, designatesuch road a toll road to raise the necessary funds toreimburse the company. (Calapan Lumber Co. v.Community Sawmill Co.)

◦ Where builder, etc. in bad faith. — Since good faithis the legal foundation of the right of retention, if thebuilder, etc. is in bad faith, he loses what he hasbuilt, etc. without right to any indemnity. (Tufexis v.Chunaco, [C.A.] 36 O.G. 2454.) The builder, etc.will also lose the right of retention in case he fails topay for the land after the landowner has chosen torequire the former to pay the price of the land, or thesower, to pay the proper rent, because he is the one


required to pay, not the landowner. (Bernardo v.Bataclan)

Liability of builder, etc. to pay rents The land is considered, in the meanwhile, as an inherent

part of the improvements. This being the existing juridicalrelation created by law between the parties, it is clear thatthe landowner (who has chosen to appropriate theimprovements) has absolutely no right to demand rents forthe occupation of the land, as the right to retain theimprovements while the corresponding indemnity is notpaid, implies the tenancy or possession in fact of the landon which they are built.

A contrary rule would render nugatory the builder’s right ofretention. This right may be annotated as a lien on thecertificate of title

If the landowner does not choose to appropriate theimprovements and he cannot oblige the builder, etc. (whenhe is without financial means) to pay the price of the land,the latter shall pay reasonable rent. If they cannot agree onthe terms of the lease then they may go to court to fix thesame.

Liability of builder, etc. to account for fruits received. Once the landowner elects to appropriate the

improvements, the builder, etc. cannot exactly beconsidered a possessor in good faith. Hence, whateverfruits (rents) he receives during the period of retention mustbe deducted from whatever indemnity is due to him; and incase it exceeds the value of the indemnity, the excess shallbe returned to the owner of the land. (Mendoza v. de

Guzman) The above is true if the improvements (e.g., building)

are leased to another by the builder, etc. But if thebuilding is occupied by the builder himself who acted ingood faith, the landowner has no right to collect rents forthe occupation of the land while the latter retains thebuilding.

Right of landowner to require payment of value of land. The landowner may oblige the builder or planter to buythe land. Value of land considerably more than that of the

improvements. — This right cannot be exercised if thevalue of the land is considerably more than that of thebuilding or trees. The purpose of the exception is toprevent injustice as when, for example, a structure worthonly P100,000 is built on a commercial land with amarket value of P1,000,000.

It is considered inequitable in such case to compel thebuilder or planter to pay the price of the land. A “forcedlease’’ is created between the parties if the landownerdoes not choose to appropriate the improvement afterproper indemnity. The builder or planter shall payreasonable rent. The court shall fix the terms of the leasein case the parties cannot agree thereon. (Art. 448, lasttwo sentences). As to when the land’s value “isconsiderably more’’ than that of the improvement willhave to be determined by the court taking intoconsideration the circumstances of each particular case.

But if the value of the land is considerably more than thevalue of the improvement, then respondents Go may


elect to lease the land, in which case the parties shall agreeupon the terms of the lease. Should they fail to agree onsaid terms, the court of origin is directed to fix the terms ofthe lease. From the moment petitioners shall have exercisedtheir option, respondents Go shall pay reasonable monthlyrent up to the time the parties agree on the terms of thelease or until the court fixes such terms. x x x’’

Remedies of landowner where builder or planter refuses orfails to pay. Where a person built a portion of his house on another’s

land, it would be unfair or impractical for the latter to payfor said portion of the house “which is not only prejudicialbut is certainly a nuisance to his property.’’ But the lawdoes not force the owner to buy the house. The onlyworkable solution is for the owner to sell the portion of hislot occupied by the house. Article 448 admits of nodistinction. If the builder fails to pay for the land, thelandowner can avail of his remedies under the law.

Suppose the landowner rightfully exercised his option torequire the builder or planter to pay the value of the land,but the builder or planter refuses or fails to pay, whatremedies are available to the parties? (1) They may assumethe relation of lessor-lessee, and should there bedisagreement on the terms of the lease, the courts could fixthem (Miranda v. Fadullon, 97 Phil. 801 [1955].); or theymay sell the property at public action and apply theproceeds of the sale, first, to the value of the land and theexcess to the improvements. (Bernardo v. Bataclan, 66 Phil.598 [1938].) (2) Should no other arrangement be agreedupon, the owner of the land does not automatically become

the owner of the improvement. (see Filipinas Colleges,Inc. v. Timbang, 106 Phil. 247 [1959].) An action by thelandowner for performance to buy the land is notavailable for a person cannot be compelled to enter intoa contract without his consent or against his will (seeArts. 1305, 1318[2].); nor for the same reason, may thecourt impose upon the parties a “forced lease.’’ Thelandowner’s remedy is an ordinary action for therecovery of the price of the land or to have theimprovements removed at the builder’s expense.(Ignacio v. Hilario, supra; Depra v. Dumlao, supra; seeBernardo v. Bataclan, supra.)

Effect of alienation by owner of land with improvements. Where purchaser paid only price of land. — In a case, a

chapel was built on the land of another. The owner of theland sold the same to a purchaser who paid only for thevalue of the land but not for the chapel which he knewhad been constructed by another. Who should pay for thevalue of the building? Ordinarily, the purchaser as theowner of the land is entitled to all improvementsexisting thereon. But he should pay for the value of thechapel because the indemnity must be borne by theperson benefited by the accession. A purchaser, inaccordance with Article 453, who buys land withimprovements belonging to another knowing such fact,places himself in the position of an owner of land whohas acted in bad faith.

Where purchaser paid also value of improvements. — Ifthe new owner has paid for the improvements, the actionmay still be brought against him without prejudice to his


right to recover from the former owner. (Ibid.) It can bepresumed that the purchase price of the land includes theimprovements.

Option given to purchaser. — The owner of a land bypurchase where a house was constructed by a builder ingood faith is given the choice, if the former owner had notexercised his option, either to pay for the value of thehouse, or require the builder to pay for the value of theland.

Where land registered under the Torrens system. — If theland is registered under the Torrens system and thecertificate of title shows the holder to be the owner of theland and the improvements thereon, any purchaser forvalue, without notice, who buys the land on reliance onsuch title will take the property free from the builder’s lien.

Cases not Covered Other provisions of law govern. — Article 448 does not

apply to cases which are governed by other provisions oflaw, such as co-ownership, usufruct, agency, lease, etc.Where there is a contractual relation existing between thelandowner and the builder, planter, or sower, theirstipulations, primarily, and the pertinent provisions of theCivil Code on obligations and contracts including those onspecial contracts, suppletorily, would govern.

Article 448, in relation to Article 546 which provides forfull reimbursement of useful improvements and retention ofthe premises until reimbursement is made, applies onlywhere both the builder and landowner acted in good faith.(see Arts. 449454.)

(a) A lessee who constructed a building on the leased landcannot be characterized as a builder in good faith because the

lessee knows at the outset that he is not the owner of theland and that his occupancy continues only during the lifeof the lease. He has no pretension of being the owner ofthe land. A contrary rule would place it within the powerof the lessee “to improve his landlord out of his property.’’The rights of the lessee are governed by Article 1678.)(b) A co-owner is not a third person with respect to theland owned in common for it cannot be said that itexclusively belongs to another but of which he is a co-owner. However, where the co-ownership is terminated bypartition and “it appears that the house of the defendant (aformer coowner) overlaps or occupies a portion of theland pertaining to the plaintiff (another former co-owner)which the defendant built in good faith, then Article 448should apply even when there was a co-ownership Improvement constructed on one’s own land

subsequently sold. — Article 448 is not also applicable,where a person constructs a house on his own land andlater sold said land to another, for then there can be noquestion as to good or bad faith on the part of thebuilder. (Goleongco v. Regalado, 92 Phil. 387 [1952].)That issue is entirely irrelevant where the true ownerhimself is the builder, etc. Nevertheless, the provision onindemnity in Article 448 may be applied by analogywhere the owner-builder, etc. later lost ownership of theland to another who became the uncontested owner byvirtue of a court judgment, considering that the primaryintent of Article 448 is to avoid a state of forcedcoownership especially where the parties in the mainagree that Articles 448 and 546 are applicable andindemnity for the improvements may be paid although


they differ as to the basis of the indemnity. Builder, a belligerent occupant. — It does not also apply

when the builder is a belligerent occupant. It has been heldthat “the rules of the Civil Code concerning industrialaccession were not designed to regulate relations betweenprivate persons and a sovereign belligerent, nor intended toapply to constructions made exclusively for prosecuting awar, when military necessity is temporarily paramount.

Consequently, the Japanese occupant is not regarded as apossessor in bad faith of the lands taken from thedefendants and converted into an airfield and campsite; itsuse thereof was merely temporary, demanded by warnecessities and exigencies. But while the defendantsremained the owners of their respective lands, the Republicof the Philippines succeeded to the ownership or possessionof the constructions made thereon by the enemy occupantfor war purposes, unless the treaty of peace shouldotherwise provide; and it is under no obligation to payindemnity for such constructions and improvements.’’(Republic v. Lara)

Constructions not in the nature of buildings. — TheSpanish text of Article 361, now Article 448, limits itsapplication to “buildings’’ constructed on another’s land,not to partition railings, shelves, and other fixtures made ina building belonging to the owner of the land. The verb“edificar’’ cannot be properly used to describe the makingof fence, partition, window, door, desk, or chair.

Property of public dominion. — It does not apply toproperty of public dominion such as roads on grounds ofpublic interest for the people have the right to the use ofthem.

BAR X purchased subdivision Lot 6. Instead of building on

Lot 6, X in good faith built an apartment house worth P8million on Lot 7, which is valued at P8.5 millionbelonging to Z and without Z’s knowledge.

Questions:(a) Who has the preferential right of consolidatingownership on both land and building?(b) May Z compel X to remove the apartment house?(c) May Z compel X to buy the land?(d) If X agrees to pay Z for the latter’s land but fails tocomply, may Z demand removal of the apartment?(e) Before a settlement is reached between X and Z, mayZ demand rental for his land? Explain your answers. Answers:(a) Z has the preferential right, for he has the optionreferred to in Art. 448.(b) No, Z cannot compel the removal or demolition, forsuch alternative is not granted him under the Article.(c) Yes, Z can compel X to buy the land, since its value isnot considerably more than the value of the apartment, thedifference being only P.5 million.(d) This time the answer is YES, according to the case ofIgnacio v. Hilario, 76 Phil. 605. Since the landowner Zhas chosen to sell the land, the builder must pay. If hecannot pay, he should not be allowed to use the land to theowner’s detriment. Hence, he must remove the building.(e) Before settlement is reached between X and Z, Z maynot legally demand rental for his land, for after all X is abuilder in good faith, and is entitled to retain in the


meantime. This right of retention would be nugatory if hewere to be made to pay.

[NOTE: The answers given hereinabove are based on thepremise that the builder is in GOOD FAITH, as stated inthe problem. Be it remembered, however, that if theproblem had dealt with lots covered by Torrens Titles, Xwho erroneously builds on the adjoining lot in thesubdivision should be considered a builder in BAD FAITH,there being presumptive knowledge of the Torrens Title, thearea, and the extent of the boundaries.

Reason for the Provision It is true as a rule that whatever isbuilt, planted, or sown on the land of another should, by theprinciple of accession, belong to him (landowner).However, when the planter, builder, or sower has acted ingood faith, a confl ict of rights arises between the owners,and it becomes necessary to protect the owners of bothwithout causing injustice to either. In view of theimpracticability of creating what Manresa calls a state offorced co-ownership (Vol. 3, 4th Ed., p. 213), the law hasprovided a just and equitable solution. (Bernardo v.Bataclan, 37 O.G. No. 74, p. 1382; see also Co Tao v. ChanChico, L-49167, Apr. 30, 1949). [NOTE: The builder isconsidered in good faith if he thought that the land was his:the landowner is in good faith if he did not know thatsomebody was building on his land, or even if he did know,if he expressed his objection.

Why Option Is Given to the Landowner and Not to thePlanter or Builder It is the owner of the land who is

allowed to exercise the option because:(a) his right is older;(b) and because, by the principle of accession, he isentitled to the ownership of the accessory thing. However,the lien of the builder on the constructions may beannotated in the certifi cate of title by means of a petitionfi led in the original case wherein the decree ofregistration under the Torrens system was entered. This isto protect the right of the builder to the indemnity, in casethe property is sold to a purchaser for value.

Indemnity in Case of Appropriation In case the ownerchooses to appropriate the thing built, or sown, orplanted, how much indemnity should be paid by him?

ANS.: The indemnity provided for in Arts. 546 and 548 ofthe new Civil Code. (Mendoza and Enriquez v. DeGuzman, 52 Phil. 1641). Please note, however, thatownership over the thing built or sown or planted does notpass to the landowner till after payment therefor has beengiven. (TS, Jan. 2, 1928). Payment is to be made either onthe date fi xed by agreement or the date fi xed by theCourt. (Bataclan v. CFI, 61 Phil. 428).

[NOTE: After the owner of the land has given to thebuilder or possessor in good faith the proper indemnities,the builder or possessor may be ordered to VACATE theland. (People v. Repato, L-17985, Sep. 29, 1962).].

The Indemnities to be Given(a) Necessary Expenses. (Art. 546, par. 1).(b) Useful Expenses. (Art. 546, par. 2).


(c) Luxurious Expenses — if he desires to appropriate themfor himself. (Art. 548).

[NOTE: Necessary expenses are those made for thepreservation of the thing (4 Manresa 270) or those withoutwhich the thing would deteriorate or be lost (8 Scaevola 408)such as those incurred for cultivation, production, andupkeep. (Mendoza v. De Guzman, 52 Phil. 164). Necessaryexpenses include necessary repairs (Alburo v. Villanueva, 7Phil. 277). By ordinary repairs are understood such as arerequired by the wear and tear due to the natural use of thething, and are indispensable for its preservation. (Art. 529,Civil Code).

Upon the other hand, useful expenses are those that augmentthe income of the thing upon which they are spent (4Manresa 274), or add value to the property (Aringo v. Arena,14 Phil. 263) but do not include the value of farmingimplements or work animals which do not remain on theland. (Valenzuela v. Lopez, 51 Phil. 279).].

Problem A builder constructed in good faith a house onthe land of X. X elected to appropriate the house and boundhimself to pay the proper indemnities. Before theindemnities are given —

(a) May the builder retain the house?(b) Is the builder entitled to the rents that accrue in themeantime (in case the building is leased to another)?(c) Is the builder entitled to the fruits that will accrue duringthe time he retains the premises?(d) Is the owner of the land entitled to collect rent from the

builder while the latter retains the house? ANS.: (a) Yes, the builder is entitled to retain the houseuntil he is paid the full indemnities since he is a builder ingood faith. (See Art. 546; see also Grana and Torralba v.Court of Appeals, et al., L-12486, Aug. 3, 1960).Incidentally, this right of retention may be recorded on thecertifi cate of title, and thus constitute a lien on theproperty. (b) No, the builder is not entitled to the rents, since hispossession is no longer that of a possessor in good faith.Note that election by the landowner had already beenmade. Therefore, if the builder receives the rents, he mustdeduct them from whatever indemnity is due him.(c) No, for again we may say that during said retention, heis not considered a possessor in good faith. (Ibid.). (d) No, otherwise the right of retention till indemnity isgiven would be rendered nugatory.

Rights of Landowner Before He Makes the ChoiceBefore the landowner exercises the option, it is evidentthat he is not yet the owner of whatever has been built,planted, or sown, for his only right in the meantime is toexercise the option. (TS, May 21, 1928). Neither buildernor landowner can oust each other, for until indemnity ispaid, the builder has the right of retention. (See Martinezv. Baganus, 28 Phil. 500). It has been held by theSpanish Supreme Court that ownership over theaccessory passes only after payment of the indemnity.(TS, Jan. 2, 1928).

BAR.


A constructed a house on land belonging to B in the beliefthat the land was his own. Upon discovering the fact, Bdemanded that A should pay him the value of the land, but Afailed to do so. (a) Did A’s failure to pay automatically makeB the owner of the house by right of accession? Reasons. (b)What remedies are available to the parties? Discuss.ANS.: (a) A’s failure did NOT automatically make B theowner of the house by the right of accession. REASON: Nosuch right is given by Art. 448 of the Civil Code. Said Articlemerely gives the landowner an option to appropriate forhimself the house upon payment of the proper indemnity, orto compel the builder to buy the land upon which the househas been built, unless the value of the land be considerablymore than the value of the house (in which case, rent shouldbe paid). Our Supreme Court has held that there is nothing inthe language of the law (Arts. 448 and 548), which wouldjustify the conclusion that upon failure of the builder to paythe value of the land when such is demanded by thelandowner, the latter automatically becomes the owner of theimprovements. (Filipinas Colleges, Inc. v. Maria GarciaTimbang, L-12812, Sep. 13, 1959). Indeed, ownership overthe accessory passes only after payment of the indemnity.(TS, Jan. 2, 1928)(b) The parties have the following remedies: 1) They mayleave things as they are and assume the relation of lessor andlessee. The rent may be fi xed by the court in case ofdisagreement. (Miranda v. Fadullon, 51 O.G. 6226). 2) Thelandowner may have the house removed. This right ofdemolition exists because he has chosen to sell his land, andthe builder has failed to pay. (Ignacio v. Hilario, 76 Phil.605). 3) The landowner may consider the price of the land as

an ordinary money debt of the builder. Therefore, he mayenforce payment thru an ordinary action for the recoveryof a money debt. The execution of the judgment may bedone by levying on the land and the house both of whichmay be sold at a public auction. The landowner will thenkeep for himself the proceeds equivalent to the value ofthe land; the rest will be turned over to the builder, whocannot complain of any deficiency.

PROBLEMIf the landowner elects to compel the builder to buy theland, is the builder entitled to the right of retention?ANS.: No, because he is the one required to pay. Had thelandowner chosen to appropriate the building but has notyet paid the indemnity, the answer would be otherwise.(See Bernardo v. Bataclan, 37 O.G. 1382).[NOTE: If the value of the land is more than the value ofthe building, can the landowner still avail himself of theoption of compelling the builder to pay for the land? Yes,unless the value of the land is considerably more than thevalue of the building. The meaning of “considerablymore” is to be determined by the facts of the case.].

Art. 449. He who builds, plants or sows in bad faith onthe land of another, loses what is built, planted or sownwithout right to indemnity.

Effect of Building, Planting or Sowing in Bad Faith —Loss of Object Without Indemnity See Comments underArt. 451.

Applicability of the Article to Growing Crops Art. 449


applies, in the case of planting or sowing, only to growingor standing crops, not to gathered crops, which aregoverned by Art. 443.

Art. 450. The owner of the land on which anything hasbeen built, planted or sown in bad faith may demand thedemolition of the work, or that the planting or sowing beremoved, in order to replace things in their formercondition at the expense of the person who built, plantedor sowed; or he may compel the builder or planter to paythe price of the land, and the sower the proper rent.

Right to what is built, etc. — As a just punishment for badfaith, apart from the fact that he who seeks equity mustcome to court with clean hands, the builder, planter, orsower forfeits what he has built, planted, or sown withoutany right to be paid indemnity therefor.

Right to necessary expenses. — He is, however, entitled, asa matter of justice, to reimbursement for necessaryexpenses of preservation of the land incurred by him (Art.452.) but without the right of retention until reimbursedwhich right is given to a possessor in good faith.

Right to expenses of production. — Again, a distinctionshould be made with regard to the expenses incurred in theproduction of fruits.

(a) If the products have already been gathered (i.e., separatedfrom the land) by the builder and they are ordered deliveredto the owner of the land, the builder should be reimbursed forthe expenses incurred for the production, gathering, andpreservation of the fruits in accordance with Article 443, forthen the principle of accession no longer applies in favor of

the owner of the land. (b) If the crop is still standing or growing at the time theowner of the land recovers it, the planter in bad faith losesthem without the right to any indemnity in accordancewith Article 449 which thus constitutes an exception toArticle 443

Where the crops in question have been gathered by thereceiver appointed by the court, the acts of the receiver ofthe property in litigation inure to the benefit of theprevailing party. So, where the prevailing party is theowner of the land, to all intents and purposes, the cropswere gathered by him.

Instances of bad faith. — There is bad faith, forexample, where one:

(a) bought a house from another with full knowledge ofthe fact that the land belonged to the landlord of the seller(De Guzman v. Rivera, 4 Phil. 420 [1905].); or (b) simply took possession of a land which its formerpossessors were compelled to abandon by reason of war(Roman Catholic Church v. Certain Municipalities ofIlocos Sur, 10 Phil. 1 [1908].); or (c) bought a land with notice that there was some defect inthe title of the vendor and could not have failed to knowthat another had been holding the land under a claim ofownership (Tagala v. Ybeas, [C.A.] 49 O.G. 200.); or hadpresumptive knowledge of the owner’s Torrens title(Rodriguez, Sr. v. Francisco, 6 SCRA 917 [1962].); or(d) had been found by the trial court to be a builder in badfaith and ordered to deliver the improvements to the


owner which finding is presumed correct until reversed by ahigher court, and, therefore, notwithstanding allegation ofgood faith, is not entitled to retain possession untilreimbursed pending appeal (De Leon v. Caluag, 21 SCRA 85[1967].); or (e) bought a parcel of land and then constructed a newbuilding after the filing of action against him for annulmentof the sale of the land (Mindanao Academy, Inc. v. Yap, 13SCRA 190 [1965].); or (f) bought a parcel of land with the knowledge that theproperty was under litigation and then planted about 3,000coconut trees thereon (Lumungo v. Usman, 25 SCRA 225[1968].); or (g) built a house on a lot after his predecessor-in-interest, hisparents, had been summoned in civil case regarding said lot,and even reconstructed the house into a bigger one while thecase was pending. (Santos v. Mojica, 26 SCRA 703 [1969].)

Art. 450. The owner of the land on which anything hasbeen built, planted or sown in bad faith may demand thedemolition of the work, or that the planting or sowing beremoved, in order to replace things in their formercondition at the expense of the person who built, plantedor sowed; or he may compel the builder or planter to paythe price of the land, and the sower the proper rent.(363a)

Art. 451. In case of the two preceding articles, thelandowner is entitled to damages from the builder,planter or sower. (n)

This provision applies when the owner of the landchooses not to exercise his right to appropriate theimprovements granted him by Article 449. Together withArticles 450 and 451, the following are the threealternative rights of the owner in good faith:

(1) to appropriate what has been built, planted, or sown inbad faith without any obligation to pay any indemnitytherefor except for necessary expenses for thepreservation of the land (Art. 452.), plus damages; or (2) to ask the removal or demolition of what has beenbuilt, etc. at the builder’s, etc. expense, plus damages; or (3) to compel the builder or planter to pay the price orvalue of the land, whether or not the value of the land isconsiderably more than the value of the improvements,and the sower, to pay the proper rent, plus damages. Article 451 does not provide the basis for damages. The

amount should reasonably correspond with the value ofthe properties lost or destroyed as a result of theoccupation in bad faith, as well as the fruits (natural,industrial or civil) from those properties that the ownerof the land reasonably expected to obtain. (Heirs ofRamon Dunan, Sr. v. Uy, 344 SCRA 238 [2000].) In acase, where a lessee was found to be a builder in badfaith, the owner of the land was held entitled to damagesequivalent to the fair rental value of the land beginningfrom the time the lessee started construction until theowner recovered possession thereof. (Bugatti v. Court ofAppeals, 136 SCAD 318, 343 SCRA 335 [2000].)

The sower should only pay the proper rent becausesowing is temporary, the crop being harvested after afew months. (I Capistrano, op. cit., p. 416.)


Based also on the three preceding articles, the following arehis liabilities:

(1) He loses what is built, planted, or sown without right toindemnity except for necessary expenses;(2) He may be required to remove or demolish the work, etc.in order to replace things in their former condition at hisexpense;(3) He may be compelled to pay the price of the land, and inthe case of the sower, to pay the rent; and (4) He is liable, as a further punishment for his bad faith, fordamages.

Art. 452. The builder, planter or sower in bad faith isentitled to reimbursement for the necessary expenses ofpreservation of the land.

Right to reimbursement for necessary expenses of builder,etc. in bad faith.

Necessary expenses shall be refunded to everypossessor, including one in bad faith but only thepossessor in good faith is entitled to retain the thing untilhe is reimbursed. (Art. 546.)

In the same way that necessary expenses for cultivation,gathering, and preservation must be paid by him whoreceives the fruits regardless of good or bad faith of thethird person who incurred said expenses (Art. 443.), thebuilder, etc., whether in good faith or bad faith, isentitled to reimbursement for the necessary expensesspent to preserve the land (Art. 452.) since the owner ofthe land would have paid such expenses anyway even ifthe improvements had not been made. However, the

builder, etc. shall lose the improvements without rightto indemnity. (Art. 449.) He is subject to otherliabilities. (supra.)

Examples of necessary expense of preservation of theland are those for defense work to prevent erosion ofpart of the land bordering a river from beingsegregated and carried away by the current of thewaters; and those for litigation in defense of the landagainst claims of usurpers. (I Capistrano, op. cit., p.417.) Irrigation expenses are useful expenses but notnecessary for the preservation of the land. But realproperty taxes may be considered necessary expensesunder Article 452 for their non-payment may result inthe public sale of the land for tax delinquency or itsforfeiture to the government.

Art. 453. If there was bad faith, not only on the part ofthe person who built, planted or sowed on the land ofanother, but also on the part of the owner of such land,the rights of one and the other shall be the same asthough both had acted in good faith.

It is understood that there is bad faith on the partof the landowner whenever the act was done with hisknowledge and without opposition on his part. (364a)

Both considered in good faith. — Where both partiesacted in bad faith, their rights shall be determined asif both acted in good faith. (see Bagtas, Jr. v. Court ofAppeals, 170 SCRA 177 [1989].) Here, the bad faithof one extinguishes and neutralizes in just reciprocity,that of the other. He who knowingly allows himself to


be deceived may not complain as a deceived person. (3Manresa 223.) The case would fall under Article 448.(see Art. 470, last par.)

If the owner of the lot acted in bad faith but the builder,etc. proceeded in good faith, Article 447 becomesapplicable. (Art. 454.) It is as if the owner built on hisland in bad faith with the materials of another. UnderArticle 449, the builder in bad faith is not entitled toindemnity.

When both in bad faith. — The second paragraph ofArticle 453 defines bad faith on the part of thelandowner (see Municipality of Oas v. Roa, 7 Phil. 20[1906]; Merchant v. City of Manila, 11 Phil. 116 [1908];Martinez v. Baganus, 28 Phil. 500 [1914].) but not badfaith on the part of the builder, etc. Nevertheless abuilder is in bad faith if he builds knowing that the landdoes not belong to him, and that he has no right,permission, or authority to do so. (see Art. 526.) Goodfaith, however, is always presumed. (Art. 527.)

Illustrative Cases Builder made improvements after landowner made

some acts to recover land sold by landowner and boughtby builder in bad faith. Facts: In violation of the 5-yearprohibition period under the Public Land Law, F sold toI his homestead. F tried to recover the land two (2) yearsafter the sale but I refused unless he was paid the valueof the improvements made after recovery was sought.

Issue: Is I entitled to the value of the improvements? Held: No. Since F never lost title over the homestead thereis no need for him to repurchase the same from I or for I to

execute a deed of reconveyance in his favor. The case isactually for mutual restitution. While both acted in badfaith because they know the sale to be void andconsequently, under Article 453, considered both acted ingood faith, I, however, cannot recover the value of hisimprovements because they were made only after F hadmade some acts to recover land. By so doing, I acted inbad faith and as penalty therefor, he must forfeit hisimprovements without right to indemnity under Article449. (Felices v. Iriola, 103 Phil. 125 [1958].)

Lessee seeks application of Article 453 in support ofhis claim for reimbursement for his house.

Facts: E and S, respondents, who are mother and son, arethe owners of a residential lot. They borrowed from F theamount of P100. With the consent of respondents, Foccupied the residential lot and built thereon a house oflight materials without any agreement as to payment forthe use of said residential lot. Again, respondents obtainedloans from F totalling P740 (including first loan). Fdemolished his house of light materials and constructedone of strong materials. He paid no rentals as before.Consequently, the respondents, for and in consideration ofP1,000 representing the total outstanding loan of P740plus P260 in cash, sold their residential lot to F, with aright to repurchase within a period of six (6) years. Therespondents paid in full the purchase price of P1,000 but Frefused to vacate unless he was first reimbursed the valueof his house. Hence, the filing of this complaint byrespondents. The Court of Appeals concluded that Article448 was inapplicable and that F was not entitled toreimbursement for his house but that he could remove the


same at his expense. Issue: Is Article 448 applicable? Held: No. (1) F, a builder in bad faith. — Article 448 isinapplicable to the factual millieu herein. Said provisionapplies only when the builder, planter, or sower believes hehad the right to build, plant, or sow because he thinks heowns the land or believes himself to have claim of title. Inthis case, F makes no pretense of ownership whatsoever. Heconcedes that he was a builder in bad faith but maintains thatthe respondents should also be held in bad faith, so that bothof them being in bad faith, Article 453 of the Civil Codeshould apply. By the same token, however, that Article 448 isnot applicable, neither is Article 453 under the ambience ofthis case. (2) F, without right to reimbursement. — Since F cannot beclassified as a builder in good faith under Article 448 nor as avendee a retro who made useful improvements during thelifetime of the pacto de retro, F has no right toreimbursement of the value of the house which he haderected on the residential lot of the respondents, much less tothe retention of the premises until he is reimbursed.(3) F’s rights akin to those of a usufructuary. — The rights ofF are more akin to those of a usufructuary under Article 579,who may make on the property useful improvements butwith no right to be indemnified therefor. He may, however,remove such improvements should it be possible to do sowithout damage to the property. For if the improvementsmade by the usufructuary were subject to indemnity, wewould have a dangerous and unjust situation in which theusufructuary could dispose of the owner’s funds bycompelling him to pay for improvements which perhaps he

would not have made. (Floresca v. Evangelista, 96 SCRA130 [1980].)

Art. 454. When the landowner acted in bad faith andthe builder, planter or sower proceeded in good faith,the provisions of article 447 shall apply.

If the owner of the land acted in bad faith in the sensethat “the act was done with his knowledge andwithout opposition on his part’’ (Art. 453.), but thebuilder proceeded in good faith, Article 447 becomesapplicable. It is as if the owner built on his land inbad faith with the material of another. Hence, heshould pay the value of the materials plus damages.

“Through another,’’ as used in Article 447, may wellrefer to the owner of the materials who in good faithuses the same in building, planting, or sowing on theland whose owner acts in bad faith. (see 3 Manresa223-225.)

Art. 455. If the materials, plants or seeds belong to athird person who has not acted in bad faith, the ownerof the land shall answer subsidiarily for their valueand only in the event that the one who made use ofthem has no property with which to pay.

This provision shall not apply if the owner makesuse of the right granted by Article 450. If the owner ofthe materials, plants or seeds has been paid by thebuilder, planter or sower, the latter may demand fromthe landowner the value of the materials and labor.(365a)


This article deals solely with the right of the owner ofthe materials regardless of the good or bad faith of theowner of the land and of the builder, planter or sower,the rights of the owner and the builder, etc. beinggoverned by the preceding articles.

(1) Owner of materials acted in good faith regardless ofthe good or bad faith of the others. — He is entitled toreimbursement for the value of the materials principallyfrom the builder, etc. because he is the one who madeuse of the same. If the latter is insolvent, the owner ofthe land shall be subsidiarily liable, because he isbenefited by the accession when he appropriates what isbuilt, etc

2) Owner of materials acted in bad faith but the others ingood faith. — If the materials were used “with hisknowledge and without opposition on his part,’’ but theowner of the land and the builder, etc., acted in goodfaith, he forfeits his rights to his materials without theright to be indemnified, as the case falls under Article449 and makes himself liable for any consequentialdamages. (Art. 451.) It is the same as if he himself built,planted, or sowed.

(3) Only builder, etc. acted in bad faith. — If the ownerof the land appropriates the accession, the builder, etc.shall be principally liable to the owner of the materialsfor their value plus damages. In case of insolvency ofthe builder, etc., the owner of the land shall besubsidiarily liable to the owner of the materials for theirvalue but not for damages for he acted in good faith.

The builder, etc. is also liable to the owner of the land. (Arts.

450, 451.) (4) Only owner of land acted in good faith. — The

landowner can exercise his alternative rights underArticles 449 and 450 with a right to demand damagesfrom both. (Art. 451.) Since both the owner of thematerials and the builder, etc. acted in bad faith, asbetween them, they are treated as having both actedin good faith. Hence, the owner of the materials isentitled to be reimbursed by the builder, etc.

The owner of the land is not subsidiarily liable to theowner of the materials or to the builder, etc. in case thelatter pays the value of the materials (par. 2.) because as tothe owner of the land, the last two are in bad faith.

(5) All acted in bad faith. — In this case, Article 455will apply for, in accordance with Article 453, theirrights shall be the same as though all of them acted ingood faith.

(6) Liability of landowner. — He shall be subsidiarilyliable for the value of the materials if the followingrequisites are present: (a) The owner of the materialshas not acted in bad faith; (b) The builder, etc. has noproperty with which to pay; and (c) He (landowner)appropriates the accession to himself.

If he makes use of the right granted him by Article 450,i.e., he compels the builder, etc. in bad faith to remove theimprovements (so the materials will be returned to theirowner) or to pay the price of the land, or, in the case of thesower, to pay the proper rent, he shall not be subsidiarilyliable.

(7) Right of builder, etc. who pays owner ofmaterials. — If the builder, etc. pays the owner of the


materials, the former may seek reimbursement from thelandowner for the value of the materials and labor toprevent unjust enrichment of the landowner at theexpense of the builder, etc. This is true if: (a) Thebuilder, etc., acted in good faith; and (b) The owner ofthe land appropriates the improvement.

If the owner of the land acted in bad faith, he shall paythe value of the materials with damages. The builder,etc., or the owner of the materials may remove themwhether or not injury would be caused, also withdamages. (Arts. 447, 454.)

Art. 456. In the cases regulated in the preceding articles,good faith does not necessarily exclude negligence, whichgives right to damages under article 2176.

Good faith may co-exist with negligence Good faith does not necessarily preclude negligence, for,

in fact, in negligence there is no intention to do wrong orcause damage unlike in bad faith which presupposessuch intention.

A party guilty of negligence, irrespective of his goodfaith, shall be liable for the damage done in accordancewith the rule on culpa aquiliana or quasi-delict providedin Article 21766 of the Civil Code.

Art. 457. To the owners of lands adjoining the banks ofrivers belong the accretion which they gradually receivefrom the effects of the current of the waters.

Article 457 treats of alluvion (or alluvium), a form of

accession natural In the light of said article, it may be defined as the

accretion which the banks of rivers gradually receivefrom the effects of the current of the waters andwhich belong to the owners of lands adjoining thesaid banks.7

It has been defined as “the increment which landsabutting rivers gradually receive as a result of thecurrent of the waters’’ (2 Castan 218.), or “the gradualand imperceptible addition to the banks of rivers.’’

Although alluvion and accretion are often usedsynonymously in connection with Article 457, theyare not exactly the same.

The first is applied to the deposit of soil or to the soilitself, while the second denotes the act or process bywhich a riparian land gradually and imperceptivelyreceives addition made by the water to which the landis contiguous. In other words, alluvion is broughtabout by accretion. But the latter term is also used torefer to the former. Thus, in Article 457, accretion isused to mean the addition or increase received by theland.

One claiming accretion has the burden of proof.

Requisites of alluvion or accretion Accretion, as a mode of acquiring property under

Article 457 requires the concurrence of three (3)requisites which, if present, automatically give to theowners of lands adjoining the banks of rivers orstreams any accretion gradually received from theeffects of the current of waters.


(1) The deposit or accumulation of soil or sediment mustbe gradual and imperceptible. — When the boundarybetween two estates is a river or a stream, the bed ofwhich belongs to neither of them, the gradual increase ofone side is for the benefit thereof and does not prejudicethe property on the opposite side because in accordancewith Article 457, the owner of adjoining estate increasedby alluvium acquires title thereto by accretion. (Roxas v.Tuason, 9 Phil. 408 [1907].)

(a) This requisite is present where the “Cagayan River didmove year by year from 1919 to 1968’’ or for a period of 49years, “and within this period,’’ the alluvium deposited hascaused “the original lands of the plaintiffs’’ to “becomegreater in area,’’ and “the addition in every year isimperceptible in nature, one could not discern it but can bemeasured after the lapse of a certain time.’’ (Agustin v.Intermediate Appellate Court, 187 SCRA 218 [1991].)(b) A sudden and forceful action like that of flooding is notthe alluvial process contemplated under Article 457. It is theslow and hardly perceptible accumulation of soil depositsthat the law grants to the riparian owner. (Binalay v. Manalo,195 SCRA 374 [1991].) The opinion has been expressed,however, that if the alluvial deposit is sudden as when theformation is made overnight after a flood, the rule applicableto formation of islands should govern. Others believe thatArticle 457 would still apply. As long as it is indisputablethat the formation is alluvium, there is no sound reason whythe article should not apply. (I Capistrano, op. cit., p. 420; see3 Manresa 233-234.)

(2) The accretion results from the effects or action of thecurrent of the waters of the river. — The word current

indicates the participation of the body of water in theebb and flow of waters due to high and low tide. (seeHilario v. City of Manila, 19 SCRA 931 [1967].)Hence, alluvion must be the exclusive work of natureand not made artificially by the riparian owner. Theincrease or accretion which in a latent, incessant andspontaneous manner is received by the land from thenatural effects of the current depositing, in the courseof time, sediments and alluvial matter along theshore, must, therefore, be the work of nature.

(a) Thus, the fact that all or almost the whole area of theincreased portion is soft and unsettled, one is naturallyconvinced that it was formed by alluvion, and that forsuch reason, it appertains to the owner of the landbordering thereon by virtue of the right of accretionrecognized by law. ((b) Alluvium, produced gradually, due to defensive worksconstructed by a riparian owner to protect his propertyagainst the damaging actions of the water and notdesigned expressly to bring about accretion, should alsobelong to him because the reason behind the law exists insuch case.(c) But deposits consisting of boulders, soil, sawdust, andother filling materials, caused by human intervention areexcluded from Article 457 and, as such, would still be partof the public domain. (Vda. de Nazareno v. Court ofAppeals, supra.) When there is no evidence whatsoever toprove that the addition was made gradually through theeffects of the current of the water but, on the contrary,there is evidence that the alleged alluvial deposits wereman-made, a riparian owner does not acquire the additions


to his land. As held by the Supreme Court in a case: “It is

preposterous to believe that almost four (4) hectares ofland came into being because of the effects of theMeycauayan and Bocaue rivers. The lone witness of theprivate respondents who happens to be their overseerand whose husband was first cousin of their fathernoticed the four hectare accretion to the twelve hectarefishpond only in 1939. The respondents claim that at thispoint in time, accretion had already taken place. If so,their witness was incompetent to testify to a gradual andimperceptible increase to their land in the years before1939. However, the witness testified that in that year,she observed an increase in the area of the originalfishpond which is now the land in question. If she wastelling the truth, the accretion was sudden. However,there is evidence that the alleged alluvial deposits wereartificial and man-made and not the exclusive result ofthe current of the Meycauayan and Bocaue rivers.

The alleged alluvial deposits came into being notbecause of the sole effect of the current of the rivers butas a result of the transfer of the dike towards the riverand encroaching upon it. The land sought to beregistered is not even dry land cast imperceptibly andgradually by the river’s current on the fishpondadjoining it. It is under two meters of water. The privaterespondents’ own evidence shows that the water in thefishpond is two meters deep on the side of the pilapilfacing the fishpond and only one meter deep on the sideof the pilapil facing the river. Hence, the riparian ownerdoes not acquire the additions to his land caused by

special works expressly intended or designed to bringabout accretion. When the private respondentstransferred their dikes towards the river bed, the dikeswere meant for reclamation purposes and not toprotect their property from the destructive force ofthe waters of the river.’’

(3) The land where accretion takes place must beadjacent to the bank of a river. — Article 457 dealswith accessions of lands situated on banks of riversbut not on the seashore. (Pascual v. Angeles, 13 Phil.441 [1909].) Lands added to the shores by accretionand alluvial deposits caused by the action of the seaform part of the public domain.8 (Art. 4, SpanishLaw of Waters, August 3, 1866.)

(a) Thus, Article 457 does not apply where the accretion iscaused by action of Manila Bay, it being a part of the sea,a mere indentation of the same. Until a formal declarationon the part of the government through the executive or thelegislative department, to the effect that such lands are nolonger needed for coast guard service, for public use, orfor special industries, they continue to be part of thepublic domain, not available for private appropriation orownership nor subject to ordinary prescription, beingoutside the sphere of commerce. (Ignacio v. Director ofLands, 108 Phil. 335 [1960]; De Buyser v. Director ofLands, 121 SCRA 13 [1983].) (b) The provision was held also not applicable where theparcels of land bought by the respondent border on theeastern branch of the Cagayan River and the claimedaccretion (Lot 821) lies on the bank of the river notadjacent to the land (Lot 307) owned by him but directly


opposite said land across the river. Any accretion formed bythe eastern branch of the river which the respondent mayclaim must be deposited on or attached to Lot 307. (c) But accretions on the bank of a lake, like Laguna de Bay,have been held to belong to the owners of the lands to whichthey are added. (d) Under Article 502(4), lakes and their beds belong to thepublic domain. Under the Spanish Law of Waters which wasextended to the Philippines and is still in force today (exceptinsofar as its provisions are inconsistent with the new CivilCode and the Water Code of the Philippines [Pres. DecreeNo. 1967].), “the natural bed or basin of lakes, ponds, or poolis the ground covered by their waters when at their highestordinary depth’’ during the dry season (Sec. 74 thereof.), and“accretion’’ deposited gradually upon lands contiguous tocreeks, streams, rivers and lakes, by accessions or sedimentsfrom the waters thereof belong to the owners of such lands.’’(Sec. 84 thereof.) Therefore, portions of land formed byaccretion not forming part of the bed of a lake (i.e., notcovered by its waters at their highest ordinary depth) do notbelong to the public domain. (Government v. Colegio de SanJose, 53 Phil. 432 [1929].) Laguna de Bay is a lake and that part around it whichbecomes covered with water four or five months a year, notdue to tidal action, but due to rain, cannot be considered aspart of the bed or basin of the Bay nor as foreshore lands,and, therefore, registerable under the Torrens system.(Republic v. Court of Appeals, 131 SCRA 532 [1984].) (e) When an island has been formed in a river (CagayanRiver), and a grant for the part of the island is obtained fromthe State, accretion added thereto in the course of time

belongs to the owner of that portion of the island to whichit is added. The island must be treated as if it weremainland. (Banatao v. Dabbay, 38 Phil. 612 [1918].)Article 457, in speaking of accretion which the banks ofrivers may gradually receive from the effect of the current,presupposes that the river continues its existence; if theriver disappears, it is Article 461 which governs.The addition formed by alluvion belongs automatically tothe riparian owner as a natural incident to ownership.9The law does not require an express act of appropriationor possession to acquire ownership of the alluvialaccumulation. (Cortes v. City of Manila, supra; PayatasEstate Improvement Co. v. Tuason, 53 Phil. 55 [1929];Roxas v. Tuason, supra; 3 Manresa 236.) But privatepersons cannot, by themselves, reclaim land from publicwaters (e.g., Laguna de Bay) without proper permissionfrom government authorities, and even if such reclamationhas been authorized, the reclaimed land does notautomatically belong to the party claiming the same asthey may still be subject to the terms of the authorityearlier granted. (Republic v. Court of Appeals, supra.)

Elements of river and their ownership A river is a compound concept consisting of three

elements: (1) running waters, (2) the bed, and (3) thebanks. All these parts constitute the river, the wholeriver; it cannot exist without all its parts. (see Art.420[1].)

Since a river is but one compound concept, it shouldhave only one nature, i.e., it should either be totallypublic or completely private. And since rivers,


whether navigable or not, are of public dominion (seeArt. 420[1].), it is implicit that all the three componentelements be of the same nature also. (Hilario v. City ofManila, 19 SCRA 931 [1967]; see Binalay v. Manalo,195 SCRA 374 [1991]; see Sec. 5[a], Water Code, infra.)

River bed. Article 70 of the Spanish Law of Waterswhich defines beds of rivers and creeks, provides: “Thenatural bed or channel of a creek or river is the groundcovered by its waters during the highest (ordinary)floods.’’◦ “Natural’’ is not made synonymous to “original’’ or

“prior condition.’’ On the contrary, even if a rivershould leave its original bed so long as it is due tothe force of nature, the new course would still fallwithin the scope of the definition provided above.Hence, the law must have used the word “natural’’only because it is in keeping with the ordinary natureand concept of a river always to have bed and banks.(

◦ River beds are classified as property of the publicdomain under Article 420(1) and Article 502(1).Hence, they are not open to registration under theTorrens system. (Republic v. Court of Appeals,supra.) And where a riparian owner claims that adried river bed is his by accretion, in order to bringthe same under the operation and coverage of theLand Registration Law (now Property RegistrationDecree [Pres. Decree No. 1529].), a petition for theregistration of land title should be filed.

◦ The approval by the court and the Land RegistrationAuthority of a subdivision plan covering the

increased area is not sufficient. The law does notauthorize the inclusion of an area not embraced inthe title or in excess of what is stated in the title.(Republic v. Heirs of Abrille

River banks. Article 73 of the Spanish Law of Watersdefines the phrase banks of a river as referring to“those lateral strips or zones of its bed which arewashed by the stream only during such high floods asdo not cause inundations.’’ The use of the words “ofits bed (de sus alveos)’’ clearly indicates the intent ofthe law to consider the banks — for all legal purposes— as part of the river bed.◦ Since undeniably, all beds of rivers are of public

ownership, it follows that the banks which formpart of them, are also of public ownership. Article420(2) is very clear that “property intended forpublic use such as x x x rivers, x x x banks,shores, x x x and others of similar character’’ areproperty of public domain. (see Art. 638.) Riverbanks are declared as public property since theyare destined for public use.

◦ That plants can and do grow on the banks whichotherwise could not have grown in the bed whichis constantly subjected to the flow of the watersproves the distinction between “beds’’ and“banks’’ in the physical order. However, in thelegal order, legal definitions prevail.

Reasons for AlluvionThe following reasons have been given for granting ariparian owner the right to any land or alluvion deposited


by a river: (1) to compensate him for the danger of loss that he

suffers because of the location of his land (for estatesbordering on rivers are exposed to floods and otherdamage produced by the destructive force of the waters);

(2) to compensate him for the encumbrances and variouskinds of easements to which his property is subject (

(3) to promote the interests of agriculture for the riparianowner is in the best position to utilize the accretion.

Furthermore, it is almost impossible to prove fromwhose lands the gradual additions came from.

Alluvion caused by artificial works. (1) The above reasons do not exist where there is a high

protecting wall built on the riparian property borderingon an estero (river) on which a house stands, and wheresaid estero has no regular and continuous current thatmight damage or destroy the riparian property by forceand, therefore, the alluvium deposited immediatelyoutside the wall is not the alluvium contemplated bylaw.

(2) Similarly, a riparian owner cannot acquire theaddition to his land caused by special works (e.g., dikes)expressly intended by him to bring about accretion (i.e.,for reclamation purposes) and not to protect his propertyfrom the destructive force of the waters of the river. ◦ Where, however, the accreted land had been formed

gradually due to the effect of the water current of thecreek, the riparian owner may invoke the benefit ofalluvion to support his claim of title thereto. The factthat the fish traps set up in the creek might have

slowed down its current, and might have beenbrought about or caused accretion, will not affecthis ownership, in the absence of evidence, toshow that the setting up or erection of the fishtraps was expressly intended to cause or bringabout the accretion.

Accretions affecting lands registered under the Torrenssystem.

(1) In case of diminution of area. — Accretions underArticle 457 are natural incidents to land bordering onrunning rivers or streams and are not affected by theregistration law. ◦ It follows that registration does not protect the

riparian owner against diminution of the area ofhis land through gradual changes in the course ofthe adjoining stream. Accretions which the banksof rivers may gradually receive from the effect ofthe current become the property of the owners ofthe banks.

(2) In case of increase of area. — On the other hand,an alluvion, although by mandate of Article 457 isautomatically owned by the riparian owner from themoment the soil deposit can be seen, does notautomatically become registered land, just becausethe lot which receives such accretion is covered by aTorrens title, thereby making the alluvial propertyimprescriptible. ◦ (a) Ownership of a piece of land is one thing;

registration under the Torrens system of thatownership is another. Ownership over the


accretion received by the land adjoining a river isgoverned by the Civil Code. Imprescriptibility ofregistered land is provided in the registration law.

◦ (b) Registration under the Land Registration andCadastral Acts does not vest or give title to the land,but merely confirms and, thereafter, protects the titlealready possessed by the owner, making itimprescriptible by occupation of third parties. But toobtain this protection, the land must be placed underthe operation of the registration laws, whereincertain judicial procedures have been provided.

◦ (c) So, alluvial deposit acquired by a riparian ownerof registered land by accretion may be subjected toacquisition through prescription by a third person, bythe failure of such owner to register said accretionwithin the prescribed period.

Art. 458. The owners of estates adjoining ponds orlagoons do not acquire the land left dry by the naturaldecrease of the waters, or lose that inundated by them inextraordinary floods.

Estates adjoining ponds or lagoons Since this provision refers only to ponds and lagoons,

it has no application when the estate adjoins a creek,stream, river, or lake. For purposes of alluvion, lakes areof the same category of creeks, streams, and rivers.

◦ (1) Pond is a body of stagnant water without anoutlet, larger than a puddle and smaller than a lake, or alike body of water with a small outlet.

◦ (2) Lagoon is a small lake, ordinarily of fresh

water, and not very deep, fed by floods, the hollowbed of which is bounded by elevations of land.

◦ (3) Lake is a body of water formed indepressions of the earth, ordinarily fresh water,coming from rivers, brooks or springs, and connectedwith the sea by them. According to this definition,Laguna de Bay is a lake. It is connected with ManilaBay by the Pasig River.

◦ Some commentators believe that Article 458does not deal with alluvion. Actually, it provides anexception to the general rule on alluvion. But thearticle does not exclude loss or acquisition byprescription of the lands to which it refers.

Art. 459. Whenever the current of a river, creek ortorrent segregates from an estate on its bank a knownportion of land and transfers it to another estate, theowner of the land to which the segregated portionbelonged retains the ownership of it, provided that heremoves the same within two years.

Avulsion defined. Article 459 treats of avulsion or force of river,

another form of accession natural (1) In the light of said article, it may be defined as the

accretion which takes place when the current of ariver, creek or torrent segregates from an estate on itsbank a known portion and transfers it to anotherestate, in which case, the owner of the estate to whichthe segregated portion belonged, retains theownership thereof.


(2) It has also been defined as the accretion which takesplace when the current of a river, creek, or torrentsegregates a known portion of land from an estate on itsbanks and transfers it to another estate (3 Manresa 243.);or the accretion taking place in the estate on the bank ofa river caused not by the slow and constant action of thewaters but by the violent and sudden action of a torrent.

(3) The term is also used to refer to the segregation ortransfer itself of a known portion of land to another bythe force of the current.

Distinguished from alluvion In alluvion, the deposit of soil is gradual, while in

avulsion, it is sudden or abrupt In alluvion, the deposit of the soil belongs to the owner

of the property where the same was deposited, while inavulsion, the owner of the property from which a partwas detached retains the ownership thereof; and

In alluvion, the soil cannot be identified, while inavulsion, the detached portion can be identified.

Where there had been accretions to the land adjacent tothe bank of a river, the riparian owner does not lose theownership of such accretions even if they are separatedby avulsion from the land (i.e., a known portion thereof)by the sudden change of course of the river.

Requisites of avulsion (1) The segregation and transfer must be caused by the

current of a river, creek, or torrent. — It will be useful todefine the terms used by the law. ◦ Current refers to the continuous movement of a

body of water, often horizontal, in a certaindirection.

◦ River has been defined as “a natural surfacestream of water of considerable volume andpermanent or seasonal flow’’ (Webster’s 3rd Int.Dictionary, p. 1962.), emptying into an ocean,lake or other body of water.

◦ Creek11 is a small islet extending further into theland; a natural stream of water normally smallerthan and often tributary to a river.

◦ Torrent is a violent stream of water as a floodedriver or one suddenly raised by a heavy rain anddescending a steep incline; a raging flood orrushing stream of water.

Suppose a known portion of land is transferred fromone estate to another by other forces of nature thanthe current of a river, such as when land from amountain slope rolls down to another estate by reasonof an earthquake, will Article 459 apply? A notedauthority has opined that in the absence of an expressprovision on the matter, Article 459 can be applied byanalogy. (II Tolentino, op. cit., p. 122, citing Borell ySoler, pp. 298299.) The spirit of the article justifiesits application.

(2) The segregation and transfer must be sudden orabrupt. — Thus, where the evidence conclusivelyshowed that prior to or about the year 1888 theparcels of lands in question formed an integral part ofthe Payatas Estate and that in that year andsubsequent years owing to the sudden and marked


changes in the course of the San Mateo River, theparcels were separated from the main part of the PayatasEstate and were transferred to another side of the river, itwas held that said parcels still belonged to the PayatasEstate, pursuant to Article 459

But where the only evidence in the case to show that thetract of land of thirty hectares had been separated by thecurrent and transported to the other side of the river wasthe testimony of one or two witnesses who declared“that the bank was eaten away every year to a certainextent by the [San Mateo] river, that is, the river x x xdestroyed the bank of the river,’’ it was impossible to saythat the current of this river had separated from theMariquina Estate a known parcel and had transferred itto the Payatas Estate side. The mere fact that thirty yearsago the land in question was on the Mariquina side ofthe river was held not sufficient to prove that Article 368(now Art. 459.) was applicable.

In the absence of evidence as to whether the change inthe course of a river was caused by accretion anderosion (alluvion) or whether it had occurred throughavulsion, the presumption is that the change was gradualand was caused by alluvion.

(3) The portion of land transported must be known oridentifiable. — In avulsion, the detached portion mustbe known or at least, identifiable. The law contemplatesmass of earth suddenly transferred from one estate toanother and, therefore, removable by the original owner.Even if the detached portion be placed on top of another

land instead of being adjoined to it, Article 459 is stillapplicable as long as it can be identified as comingfrom the estate from which it was detached.

If only soil is removed by the water and spread overanother’s land such that no known portion can be saidto exist which can be removed, there is no avulsion.The latter acquires ownership by right of accretion.

Removal within 2 years The former owner preserves his ownership of the

segregated portion provided he removes (not merelyclaims) the same within the period of two years. Theperiod is considered sufficient for the original ownerto effect the removal of the transferred portion whichmay be of considerable area. Although Article 459does not expressly say, it would seem that his failureto do so would have the effect of automaticallytransferring ownership over it to the owner of theother estate

The law does not expressly require that the newowner take formal possession of the segregatedportion. Neither does it make distinction betweenvoluntary or involuntary failure to remove, andbetween private land and land of the public domain.

Reasons for clause on removal The segregated portion is usually very small and it is

thus useless to the original owner of the land fromwhich it originated and which is generally far fromthe other land;

The principle involved is similar to that underlyingArticle 460 whereby the owner of uprooted trees


must claim them within six (6) months; If the owner of the separated portion retains his

ownership without any qualification, he would have aright to enter the other estate at any time, and thiseasement, aside from preventing the owner of the latterestate from enjoying his property, may create ill-feelingbetween them; and

After a time the transferred portion may becomepermanently attached, physically speaking to the otherland; the original owner should, therefore, remove it assoon as possible and within two years.

[NOTE: In the absence of evidence that the change inthe course of the river was sudden or that it occurredthrough alluvium, the presumption is that the changewas gradual and was caused by alluvium and erosion. ]

PROBLEMS. Suppose the detached portion is placed on TOP and not

merely alongside or adjacent to another’s land, will thearticle apply?

ANS.: In avulsion, it is essential that the detached portion beknown or identifi able. Therefore, mere placing on top willnot make the article inapplicable as long as identifi cation isstill possible. But if because of some force, say continuousrain, the two have so mixed with each other that identification cannot take place, the article should not apply. In thiscase, the principles of commixtion or confusion (althoughgenerally used only in connection with personal property)should, it is believed, apply.

Suppose the detached portion is not attached to another’s

land but simply is in the middle of the river, what ruleapplies?

ANS.: Ownership still remains with the person fromwhose land it had been detached, as in Art. 463.

Art. 460. Trees uprooted and carried away by thecurrent of the waters belong to the owner of the landupon which they may be cast, if the owners do notclaim them within six months. If such owners claimthem, they shall pay the expenses incurred ingathering them or putting them in a safe place.

Application. — This provision applies only touprooted trees. If a known portion of land with treesstanding thereon is carried away by the current toanother land, Article 459 governs.

Liability of claimant. — The original owner claimingthe trees is liable to pay the expenses incurred by theowner of the land upon which they have been cast ingathering them, or putting them in a safe place (e.g.,transplanting them in order to preserve them). (Ibid.)

Period for making claim. — The period for making aclaim was increased from one month to six months.One month was considered insufficient for there maybe quite a number of trees involved and they may bedifficult to transport. The period is a conditionprecedent and not a period of prescription. After aclaim is made within six months an action may bebrought within the period provided by law forprescription of movables.


Rule on Uprooted Trees Example: Because of the forceof the river current, some trees on the estate of A wereuprooted and cast on the estate of B. Who owns thetrees?

ANS.: A should still be considered as the owner of theuprooted trees, but if he does not claim them within sixmonths, B will become the owner. If A makes the claim, hewill have to shoulder the expenses for gathering or puttingthem in a safe place. Failure to make the claim within sixmonths will bar any future action to recover the trees.

In the example given above, even if the trees have beentransplanted by the owner of the land upon which theyhave been cast on his own land — ownership stillpertains to the person who lost the trees provided thatthe claim was made properly. (See 3 Manresa 244).Incidentally, the owner of the land upon which the treeshave been cast, does not have to wait for six monthsbefore he can temporarily set them aside to make properuse of his own land

If say within 4 months a claim is made, but no steps areyet taken to recover the trees, may an action still be filed afterwards for recovery of the trees?

ANS.: It is submitted that the answer is YES, provided theaction is brought within the period set by law for prescriptionof movable (since uprooted) property. (Art. 1140 — 4 yearsfor ordinary prescription). The six-month period given in Art.460 should be considered only as a condition precedent; inother words, A has to make the claim within six months. Therecovery (as distinguished from the claim) can be madewithin the period for prescription. If no claim is made withinsix months, the ownership changes.

If instead of being uprooted, the trees still remainattached to land that has been carried away, it is Art.459 that must govern.

Must Owner of Land Upon Which the UprootedTrees Have Been Cast Be Given Compensation?

ANS. It depends. If he has incurred expenses forpreserving them, as when he gathered them in a safe placefor eventual return, or when he transplants them, only forpreservation purposes, he is doubtless entitled toindemnifi cation. If he has done nothing, he cannotdemand indemnifi cation (See 3 Manresa, pp. 243-244)unless he has suffered in any way, and the real owner hasbenefi ted, in that, for example, they were not carriedaway by the current. (See Art. 22).Art. 461. River beds which are abandoned through thenatural change in the course of the waters ipso factobelong to the owners whose lands are occupied by thenew course in proportion to the area lost. However, theowners of the lands adjoining the old bed shall havethe right to acquire the same by paying the valuethereof, which value shall not exceed the value of thearea occupied by the new bed.

Belong to owners of lands occupied by new course.— The former provision gave the ownership of theabandoned river bed to the riparian owners along thebed. Article 461 gives that right now to the owners oflands occupied by the new course in proportion to thearea lost. The new solution is by way ofcompensation for the loss of the land occupied by thenew bed. It is considered more equitable to


compensate the actual losers than to add land to thosewho have nothing.

The new rule may, however, be impractical for the newcourse may be far from the old bed.

Ownership acquired ipso facto. — According to DeanCapistrano, a member of the Code Commission whichdrafted the new Civil Code, “the words ipso facto wereinserted to make it clear that the rule applies by the merefact of the occurrence of a natural change in the courseof the waters. The Code Commission was of the opinionthat the contrary doctrine of the case of Panlilio v.Mercado, 44 Phil. 695 (infra.), was erroneous andshould not be followed.’’

Note that Article 461 speaks of river beds which areabandoned. The words may be construed to mean thatwhere there is abandonment by the government of itsright over the old bed, the owner of the invaded landautomatically acquires ownership of the same withoutthe necessity of any formal act on his part

“In proportion to the area lost.’’ — The phrase impliesthat there are two or more owners whose lands areoccupied by the new bed. Therefore, if only one ownerlost a portion of his land, the entire old bed shouldbelong to him.

Right of owners of land adjoining the old bed. — Theyare given the preferential right to acquire the same bypaying the value thereof to promote the interest ofagriculture because the riparian owners of the old coursecan better cultivate the same. The indemnification to bepaid shall not exceed the value of the area occupied bythe new bed. The problem here is that its value may be

much greater than the old bed. In case ofdisagreement, the courts shall fix the reasonableindemnity.

Requisites: There must be a natural change in the course of the

waters of the river. — Article 461 contemplates anatural change in the course of the waters of a river. Itdoes not apply to man-made or artificial accretions,nor to accretions to lands that adjoin canals or esterosor artificial drainage systems. (Ronquillo v. Court ofAppeals, 195 SCRA 433 [1991]; Republic v. Court ofAppeals, 132 SCRA 214 [1984].) If the riparianowners are entitled to be compensated for the damageto or loss of property due to natural causes there is allthe more reason to compensate him when the changein the course of the river is effected through artificialmeans. ◦ Note that the law speaks of change of river

course. If a river simply dries up or disappears,the bed left dry will belong to public dominion.(see Art. 502[1].) The river must continue to existwith a new bed.

The change must be abrupt or sudden. — Where thechange in the course of the water of the river isgradual or imperceptible, it is Article 457 thatgoverns in which case the accretion belongs to theowners of the riparian lots, unless they have lost theirownership thereof thru any of means recognized bylaw. ◦ Of course, the change must be more or less

permanent in nature. The change in the river


course must leave dry the old bed and open up a newbed.

The changing of the course must be more or lesspermanent, and not temporary overfl ooding of another’sland.

There must be a defi nite abandonment by thegovernment. If the government shortly after the changedecides and actually takes steps to bring the river to itsold bed, Art. 461 will not apply, for here, we cannot saythat there was an abandonment. The government is notcompelled to stand by idly and let nature take its course.Thus, the government may redirect the course even inthe face of opposition from those who may be affected

The river must continue to exist, that is, it must notcompletely dry up or disappear. If indeed there is acomplete drying up, who would own the dried up riverbed? Under the old Code, the Court of Appeals, applyingArt. 370 (old Code) to this case of disappearance, heldthat the old bed belonged to the riparian owners if thegovernment did not claim it. Under the new Code, itwould seem that it should belong to public dominion,since no private lands are injured and since as a ruleunder Art. 502, a river bed belongs to public dominion,unless otherwise provided by the law.

When River Beds deemed Abandoned Article 461 now provides that “river beds which are

abandoned through the natural change in the course of thewaters ipso facto belong to the owners whose lands areoccupied by the new course x x x.’’ According to DeanCapistrano, the insertion of the word ipso facto makes “it

clear that the rule applies by the mere fact of theoccurrence of a natural change in the course of thewater’’

The word “abandonment’’ implies the giving up orrelinquishment of something. It is an action whichobviously cannot be done by an inanimate property likea river. Under both articles, the change in the course of ariver does not ipso facto result in the abandonment of theriver but must be the reason for its abandonment, i.e., theriver is abandoned because of or through the naturalchange in the course of the water. So, as stated by theSupreme Court in the Panlilio case, “while theabandonment of the bed may be the consequences of theriver changing its course it is not necessarily the actionof the river itself which is the only and final determiningfactor in such abandonment.’’

It would have been different if the law says the riverbeds are considered abandoned or are “ipso facto’’abandoned upon a river changing its course or words tothat effect. Abandonment is still necessary. Theacquisition of ownership of the old bed bythe prejudicedlandowners would be ipso facto — without the necessityof any express act of possession on their part —provided there is really an abandonment by thegovernment. (see Villanueva v. Claustro, 23 Phil. 54[1912].) If a prejudiced landowner abandons his right tothe old bed, or the new river bed is on land of the publicdomain, the old bed belongs to public dominion.

Example: Jose’s and Maria’s estates face each other andadjoin a river. Later, the river naturally changes itscourse and the river bed is abandoned. The new river


bed happens to be in the land of Maximo. Who owns theabandoned river bed?

ANS. Maximo owns the ENTIRE abandoned river bed tocompensate him for the loss of the land now occupied by thenew river bed.

▪ [NOTE: “In proportion to the area lost” has noapplication if only one owner has lost; here, he getsthe entire abandoned river bed. The “proportion”applies when there are two or more owners whohave lost a portion of their lots; in this case, theENTIRE abandoned bed will go to themproportionately, that is, in proportion to the areaeach has lost.].

▪ [NOTE: Under the old law (Art. 370 of the old CivilCode), the adjoining riparian owners became theowners of the abandoned bed; but under the newCivil Code, said bed belongs to the owner of theproperty the river now occupies. In justifying thechange, the Code Commission said: “The purposeof this provision is to compensate for the loss of theland occupied by the new bed. It is more equitableto compensate the actual losers than to add land tothose who have lost nothing.” (Report of the CodeCommission, p. 96).].

RATIONALE FOR INSERTING PHRASE “IPSO FACTO” According to Dean Francisco Capistrano, member of the

Code Commission, “the words ipso facto were inserted inorder to make it clear that the rule applies by the mere factof the occurrence of a natural change in the course of thewaters. The Code Commission was of the opinion that thecontrary doctrine of the case of Panlilio v. Mercado, supra

(concerning the right of the government to take steps tobring back the river to its old course) was erroneous andshould not be followed.”

The validity of this observation is doubted by JusticeJ.B.L. Reyes and Justice Ricardo C. Puno who havewritten that: “The validity of this observation may bedoubtful. To illustrate: Suppose the government spenthuge sums for the building of a dam for the benefi t ofthe public, then a change of bed occurs. Would not thegovernment be entitled to bring back the river to the oldcourse? It would seem unreasonable to require thegovernment to go thru the process of eminent domainproceedings before doing so.”

The writer is inclined to agree with Reyes and Puno for“abandonment” implies an “intent not to return.” If stepsare undertaken to restore the river to its original course,there is no “abandonment.”

What “ipso facto” (automatically) should mean as usedin Art. 461 is that the prejudiced landownerautomatically becomes the owner of the abandoned riverbed, once the conditions stated in the article are fulfi lledor manifest, without the necessity of any action orexercise of possession on their part. In other words, theirmode of acquisition would be by virtue of the law. (SeeVillanueva v. Claustro, 23 Phil. 54). The acquisitionwould thus be ipso facto — provided there is really anabandonment.

BAR QUESTIONS1. (a) A and B each own a parcel of land on opposite sides

of a river. The river changed its course and passed thru


D’s land not adjoining either A’s or B’s land. As a result ofthis change of course, D lost 10 hectares of land. Assumingthat the area of the abandoned river bed between the landsof A and B is also 10 hectares, who is entitled to theaccession, and why?

ANS.: D, in view of his loss. (Art. 461). 2. The Director of Lands sold to A 24 hectares of public land

at P200 per square meter. The land was adjoining a river,which, after the sale changed its course and left its bed dry,the area of which is two hectares. The purchaser A claimedand occupied this portion, alleging the right of accretion.The Director of Lands claimed that the sale covered only24 hectares, hence, A has no right to the two hectares.Decide

ANS.: Under the old Law, A would be correct but under thenew Civil Code a distinction has to be made. If the river inits new course occupies private land, then the owner of theprivate land becomes the owner of the abandoned river bedwithout prejudice to A’s right to buy it from him. If the newriver bed is on land of the public domain, the abandonedriver bed is of public domain, and is thus, in a sense, ownedby the government. (See Art. 461).3. A owns a parcel of land adjoining the bank of the

Pampanga River. The land on the opposite bank is ownedby B. The river suddenly changed its natural course, andthe new river bed passed through more than one-half of theland of B.

The ownership of the abandoned river bed is claimed by: 1)A as owner of the adjacent land; 2) B who lost more thanone-half of his land to the new river bed; and 3) Thegovernment on the ground that the abandoned river bed is

part of the public domain. Determine the rights, if any, of each of the claimants.Explain fully, giving reasons. ANS.: It is clear under Art. 461 that B ipso facto owns theabandoned river bed in proportion to the area which B lost(unless of course the government takes steps to bring backthe river to its old course). Insofar as there is an excess,the excess still belongs to the property of publicdominion. Under the law, the owners of the adjacent oradjoining lands are given in the “interest of agriculture”the right to reimburse the “prejudiced owner” the value ofthe area lost, hence, strictly speaking, A, as owner of theadjacent land is given the right to so reimburse B forHALF of the abandoned river bed (HALF only, because itshould be remembered that B himself is an adjacentowner, entitled to the same right of reimbursement).While it may seem more just, under a liberal interpretationof the law, to refuse A the right of reimbursement sinceafter all B, himself an adjacent owner, is in a position tocultivate the abandoned river bed, and since he was theone who lost over half of his land; and while indeed theright of reimbursement under Art. 461 obviouslycontemplates a situation where the landowner who lostland is NOT himself an adjacent owner; still it should notbe forgotten that A himself has been deprived of the use ofthe river, and to partly indemnify him, he should be giventhe right to pay for the value of the HALF hereinabovereferred to. Equity cannot afford to be one-sided. Art. 462. Whenever a river, changing its course bynatural causes, opens a new bed through a private


estate, this bed shall become of public dominion.

New bed through private estate becomes of publicdominion

The bed of a public river or stream is of public ownership.(Art. 502[1].) If the river changes its course and opens anew bed, this bed becomes of public dominion even if it ison private property. Just as the old bed had been of publicdominion before the abandonment, the new riverbed shalllikewise be of public dominion. Note that the change ofcourse must be by natural means and not due to man-madecauses. (Morandarte v. Court of Appeals, 436 SCRA 243[2004].)

Article 462 makes no distinction whether a river isnavigable or floatable or not. The old provision refers onlyto “navigable or floatable’’ rivers. The paragraph consistingof the following is omitted. “The owner of the estate shallrecover it in the event that the waters leave it dry again,either naturally or as the result of any work legallyauthorized for the purpose.’’ In such case, Article 461applies.

Rule if New River Bed is Itself Abandoned: bed is itselfabandoned because of a new change of course, the formerowner of the fl ooded land regained ownership. (SeeSanchez v. Pascual, 11 Phil. 395 which applied the rule). Itis interesting to observe that under the new Code, no suchprovision is found. In view of its elimination, what rulegoverns? It is believed that the following solution would bejust: apply Art. 461, that is, the owner of the land fl oodedby the new change of course would own the newlyabandoned bed. Upon the other hand, if the river goes back

to its old course (thus, fl ooding the original bed), theowner of the land originally fl ooded would get back theownership of the land (bed) which he had lost. Thus, itwould only be in this latter case when the case ofSanchez v. Pascual (supra) would still apply

In the case of Salvador Crespo v. Maria Bolandos, et al.,L-13267, July 26, 1960, the court held that when for the first time, a fl ood moved the Pampanga River into the lotsof the plaintiffs, the bed thus newly covered by its waterbecame property of public ownership. But when the nextfl ood transferred the river bed farther south intoplaintiff’s lands, they ipso facto recovered the bed theyhad fi rst lost, even as the new bed on their propertyaccrued to the public domain.

◦ [NOTE: The abandoned river bed is given to theowner(s) of the land(s) onto which the river changedits course instead of the riparian owner(s). (Celestialv. Cachopero, 413 SCRA 469 {2003}).].

Art. 463. Whenever a current of a river divides itselfinto branches, leaving a piece of land or part thereofisolated, the owner of the land retains his ownership.He also retains it if a portion of land is separated fromthe estate by the current.

Article 463 does not refer to the formation of islandsthrough accretion treated in Articles 464 and 465 but tothe formation of an island caused by a river dividingitself into branches resulting in: ◦ (1) the isolation (without being physically

transferred to another place) of a piece of land or


part thereof; or ◦ (2) the separation (or physical transfer) of a portion of

land from an estate by the current. (see Art. 459.) The owner preserves his ownership of the isolated or

separated property. The provision applies whether the riverbe navigable or floatable or not, for in both cases the ownershould not lose his ownership simply because a change ofriver course converted his land into an island.

Example: A’s estate adjoins a river, but the river dividesitself into branches, thus affecting A’s property. A howeverremains the owner of the portion (this time — an island)which:

(a) may be isolated from the rest (here, the portion has notphysically moved, but there is ISOLATION(b) or may be separated from the rest (here, the portion hasphysically moved — hence, the SEPARATION).

◦ [NOTE: The Article refers to the “formation of islandby the branching off of a river” as distinguished fromthe “formation of islands by successive accumulation ofalluvial deposits (unidentifi able sediment)” referred toin Arts. 464 and 465. In the fi rst, no accession takesplace, the owner retaining his ownership of thesegregated portion; in the second, accession takes place.(See 3 Manresa 268).].

t. 463 applies whether the river is navigable or not, for inboth cases, the owner should not be deprived of hisdominion over the segregated or isolated property. (3Manresa, pp. 267268).

Art. 464. Islands which may be formed on the seas within

the jurisdiction of the Philippines, on lakes, and onnavigable or floatable rivers belong to the State. (371a)

Art. 465. Islands which through successiveaccumulation of alluvial deposits are formed in non-navigable and non-floatable rivers, belong to theowners of the margins or banks nearest to each ofthem, or to the owners of both margins if the island isin the middle of the river, in which case it shall bedivided longitudinally in halves. If a single island thusformed be more distant from one margin than fromthe other, the owner of the nearer margin shall be thesole owner thereof.

(1) If formed: (a) on the seas within the jurisdiction ofthe Philippines, (b) on lakes, and (c) on navigable orfloatable rivers, the island belongs to the State (Art.464.) as part of its patrimonial property (see Arts. 422,424.);

(2) If formed in non-navigable and non-floatable rivers: ◦ (a) It belongs to the nearest riparian owner or owner

of the margin or bank nearest to it as he is consideredin the best position to cultivate and develop theisland. (see Art. 457.) No specific act of possessionover the accretion is required. If, however, theriparian owner fails to assert his claim thereof, thesame may yield to the adverse possession of thirdparties, as indeed even accretion to land titled underthe Torrens system must itself be registered.

The possessor may claim ignorance of the law,specifically, Article 465 but such is not, under Articles 3


and 526, an adequate and valid defense to support a claim ofgood faith. Hence, not qualifying as a possessor in goodfaith, he may acquire ownership over the island only throughuninterrupted adverse possession for a period of 30 yearsunder Article 1137. (Jagualing v. Court of Appeals, 194SCRA 607 [1991].)

◦ (b) The island is divided longtitudinally in halves, if itis in the middle of the river. (Art. 465; see Banatao v.Dabbay, 38 Phil. 612 [1918].) If the island formed islonger than the property of the riparian owner, the latteris deemed ipso jure to be the owner of that portionwhich corresponds to the length of that portion of hisproperty along the margin of the river. (Jagualing v.Court of Appeals, supra.)

If a new island is formed between an existing island and anopposite bank, the owner of the older island is considered ariparian owner together with the owner of the land adjoiningthe bank for the purpose of determining ownership of theisland under Article 465.

Note: Rivers are property of public dominion. Article 420makes no distinction between navigable and non-navigablerivers.

Concept of Navigable River A navigable river is one which forms in its ordinary

condition by itself or by uniting with other waters acontinuous highway over which commerce is or may becarried on.

In American jurisprudence, the prevailing test of whether a

river is navigable in law is whether it is navigable infact; and it is navigable in fact if it is used or susceptibleof being used, in its ordinary condition, as a highway ofcommerce, that is, for trade and travel in the usual andordinary modes

In this respect, however, “highway of commerce’’ doesnot mean a passage for commercial intercourse of allkinds, including transportation of persons and propertyby common carriers. If it is capable in its natural state ofbeing used for purposes of commerce, no matter in whatmode the commerce may be carried on, it is navigable infact, and, therefore, becomes a public river or highway.It is sufficient if it is capable of floating vessels, boats,or other craft, or rafts of logs, or logs in quantities tomake it of commercial value.

Furthermore, the rule of civil law is that a navigableriver is one that is “floatable,’’ that is, a river admittingfloats. Thus, a floatable stream is considered a navigablestream. (Macatangay v. Secretary of Public Works andCommunication)

QUESTIONS Who owns island formed by unidentifi able accumulated

deposits? ANS.: It depends(a) If formed on the sea —1) Within the territorial waters or maritime zone orjurisdiction of the Philippines — STATE. 2) Outside of our territorial jurisdiction — The FIRSTCOUNTRY TO EFFECTIVELY OCCUPY the SAME.(This is in accordance with the principles of Public


International Law for “discovery and occupation consideredas a defi nite mode of acquiring territory.’’) (b) If formed on lakes, or navigable or fl oatable rivers — theState. (This is also patrimonial property)(c) If formed on non-navigable or non-fl oatable rivers —1) If NEARER in margin to one bank, owner of nearermargin is SOLE owner. (Art. 465).2) If EQUIDISTANT, the island shall be dividedlongitudinally in halves, each bank getting half. (Art. 465).

DEFINITIONS(a) Navigable or fl oatable river — if useful for fl oatage andcommerce, whether the tides affect the water or not (45 C.J.403-404); should benefi t trade and commerce.(b) Non-Navigable — opposite of (a). State has duty to declare which rivers are navigable and

which are not. The nearer margin has better chances of developing the

island in the interest of agriculture Rule to Follow if a New Island is Formed Between the

Older Island and the Bank: In this case, the owner of theolder island is considered a riparian owner, and if the newisland is nearer in margin to the older island, the owner ofthe older island should be considered also the owner of thenew island. (See Manresa 262-263, 265).

SECTION 3. — Right of Accession with Respect toMovable Property

Art. 466. Whenever two movable things belonging todifferent owners are, without bad faith, united in such a

way that they form a single object, the owner of theprincipal thing acquires the accessory, indemnifyingthe former owner thereof for its value.

In the light of Article 466, adjunction (or conjunction)may be defined as the union of two movable thingsbelonging to different owners in such a way that theyform a single object, but each one of the componentthings preserves its value.

‘Adjunction’ Defi ned : It is the process by virture ofwhich two movable things belonging to different ownersare united in such a way that they form a single object. ◦ Example: A varnishes his chair with the varnish of B.

Good and Bad Faith :◦ Ajunction may be done: (a) in good faith; (b) or in

bad faith. Another name for adjunction is conjunction

Characteristics of AdjunctionIn order that adjunction may take place, it is necessary that:

(1) There are two movables belonging to different owners;(2) They are united in such a way that they form a singleobject; and(3) They are so inseparable that their separation wouldimpair their nature or result in substantial injury to eithercomponent.

In determining the right of the parties in adjunction,regard is had only to the things joined and not to the


persons. But where there is a mere change of form orvalue which does not destroy the identity of thecomponent parts, the original owners may demand theirseparation. (see Art. 469.)

Kinds of Adjunction(a) inclusion (example: sapphire set on a ring). (b) soldering (example: joining legs made of lead to a body alsomade of lead).

[NOTE:1) ferruminatio — objects are of the same metal 2) plumbatura — objects are of different metals

(c) plumbatura — objects are of different metals(d) pintura (or painting) (e) weaving Ownership of new object formed by adjunction.(1) If the union took place without bad faith, the owner of theprincipal thing acquires the accessory, with the obligation toindemnify the former owner of the accessory for its value in itsuncontroverted state.(2) If the union took place in bad faith, Article 470 applies.

PROBLEMA in good faith uses the varnish of B in varnishing his (A’s) table.What are their rights? ANS.: A will become the owner of the varnish (in fact, of thewhole varnished table) but he must indemnify B for the value ofthe varnish.[NOTE: A is considered in good faith if he reasonably believedthat the varnish was his when as a matter of fact, it was not. The

law says: “He is deemed a possessor in good faith who is notaware that there exists in his title or mode of acquisition any flaw which invalidates it x x x. Mistake upon a doubtful or difficult question of law may be the basis of good faith.” (Art. 526,1st and 3rd paragraphs).].

Art. 467. The principal thing, as between two thingsincorporated, is deemed to be that to which the otherhas been united as an ornament, or for its use orperfection.

Art. 468. If it cannot be determined by the rule givenin the preceding article which of the two thingsincorporated is the principal one, the thing of thegreater value shall be so considered, and as betweentwo things of equal value, that of the greater volume.In painting and sculpture, writings, printed matter,engraving and lithographs, the board, metal, stone,canvas, paper or parchment shall be deemed theaccessory thing.

Tests to determine principal in adjunction. To determine which, as between two things

incorporated, is the principal and which is the accessory,Articles 467 and 468 provide certain criteria. In theorder of application, the principal is that:

(1) To which the other (accessory) has been united asan ornament or for its use or perfection. (Art. 467.) Thisis “the rule of importance and purpose’’;(2) Of greater value, if they are of unequal values;


(3) Of greater volume, if they are of an equal value(Art. 468.); and (4) Finally, that of greater merits taking intoconsideration all the pertinent legal provisions (e.g., Art.475) applicable as well as the comparative merits, utilityand volume of their respective things.

The second test is reasonable because, as a general rule,things of greater value are more important than things ofsmaller value. The third test is purely arbitrary but is basedon the necessity of resolving the matter somehow.

The special rule regarding painting, etc. in the secondparagraph of Article 468 is based on the consideration thatwhat is painted, etc. is of greater value or importance thanthe board, etc. inasmuch as the exceptions mentioned arespecified, its provision can not be applied by analogy tocases of adjunction of similar nature which are deemedexcluded. Such cases shall be determined in accordancewith Articles 467 and 468.

In case adjunction takes place as to three or more things,Article 466, et seq. should be applied in an equitablemanner.

The principal should be determined and distinguished fromthe others which would be considered the accessories.Should there be two or more things that could beconsidered principals with respect to the others, still thecourt should determine by resort to reasonable meanswhich is the principal thing and which are the accessorythings.

Test to Determine Which Is the Principal and Which Is theAccessory

The principal is (in the order of preference):(a) that to which the other has been united as an ornament, orfor its use, or perfection (Art. 467); [NOTE: The accessory isthat which has been united as an ornament, etc. (This is the testof INTENTION).]. (b) that of greater value (Art. 468); (c) that of greater volume (Art. 468);(d) fi nally that which has greater merits (from the combinedconsideration of utility and volume). [NOTE: With reference toa motor vehicle, the engine may be considered as the principal,all the other parts of the vehicle being regarded as mereaccessories. ]

“In painting and sculpture, writings, printed matter,engraving and lithographs, the board, metal, stone,canvas, paper or parchment shall be deemed theaccessory thing.’’ (Art. 468). This is because what hasbeen written, printed, etc. is considered of greaterimportance.

[NOTE: Since the special rule specifi es the specialcases, analogous cases which are not enumerated shouldnot be solved analogously, but in accordance with thegeneral tests provided for in Arts. 467 and 468, fi rstparagraph. “When certain things are enumerated, thosenot included are deemed excluded.” (See 3 Manresa286).].

Rule to Follow if the Adjunction Concerns Three orMore Things : In this case, determine which is really theprincipal. All the rest should be considered accessories.If there be two principals, still it should be determinedwhich, as between them, should be considered the


principal, and which is the accessory.

Art. 469. Whenever the things united can be separatedwithout injury, their respective owners may demand theirseparation. Nevertheless, in case the thing united for theuse, embellishment or perfection of the other, is muchmore precious than the principal thing, the owner of theformer may demand its separation, even though the thingto which it has been incorporated may suffer some injury.

When separation of things united allowed. Separation without injury. — Whenever the separation can

be done without injury (not destruction), their respectiveowners may demand their separation. Here, there has beenno real accession. Article 469 apparently contemplatesadjunction by inclusion and by soldering in whichseparation is possible without injury to the things united.

Accessory much more precious. — Under the secondparagraph, where the thing (e.g., diamond) united for theuse, embellishment or perfection of the other, is much more(see Art. 448.) precious than the principal thing (e.g., goldring), the owner of the former may demand its separationeven though the principal thing may suffer some injury.The owner who made or caused the union or incorporationshall bear the expenses for separation because he is the oneconsidered at fault although he also acted in good faith.

Owner of principal acted in bad faith. — The owner of theaccessory thing may separate it even if the principal thingbe destroyed. (Art. 470.)

Here, there is no real accession. (3 Manresa 288). Hence,we have the rule indicated in the fi rst paragraph

[NOTE: It is understood that the fi rst paragraph canapply only to soldering and inclusion because in all therest, separation would result in substantial injury.

In the second paragraph of the article, separation,although with injury (but not destruction) is allowed, ifthe thing united for the use, embellishment, or perfectionof the other is much more precious than the principal. ◦ Example: When a valuable diamond (the accessory

— because it is for embellishment of the ring) is setin good faith on a silver ring, the owner of thediamond can ask for separation, even though therewill be injury to the ring. Expenses for the separationmust of course be borne by the person who causedthe union, considering that both parties are in goodfaith

Art. 470. Whenever the owner of the accessory thinghas made the incorporation in bad faith, he shall losethe thing incorporated and shall have the obligation toindemnify the owner of the principal thing for thedamages he may have suffered. If the one who hasacted in bad faith is the owner of the principal thing,the owner of the accessory thing shall have a right tochoose between the former paying him its value or thatthe thing belonging to him be separated, even though,for this purpose it be necessary to destroy the principalthing; and in both cases, furthermore, there shall beindemnity for damages. If either one of the owners hasmade the incorporation with the knowledge andwithout the objection of the other, their respectiverights shall be determined as though both acted in


good faith.

Adjunction in bad faith. (1) Bad faith on the part of owner of accessory:(a) He shall lose the thing incorporated; and (b) He shall be liable for damage to the owner of the thing. (2) Bad faith on the part of owner of principal:

(a) The owner of the accessory thing is given the optioneither:

1) to require the owner of the principal thing to paythe value of the accessory thing; or

2) to have the accessory thing separated even if forthe

purpose it be necessary to destroy the principalthing;

and(b) He shall be entitled to damages, in either case.

The option given above is applicable to the adjunctionprovided in Article 469 but not to the cases mentioned in thesecond paragraph of Article 468 (paintings, etc.) for separation isnot possible. In such cases, the owner of the accessory thing islimited to the first option with the right to indemnity for damages.(3 Manresa 293.)

(3) Bad faith on the part of both. — Under the third paragraph,their respective rights shall be determined as though both acted ingood faith. Article 453 should be applied. There is bad faith wheneither one of the owners made the union with the knowledge andwithout the objection of the other. (see Art. 453, par. 2.)

Example of the First Paragraph (Owner of Accessory Isin Bad Faith).

◦ If I, in bad faith, will use my varnish on the chair ofmy brother, I loses all rights to the varnish.Moreover, I will be responsible for damages.

Example of the Second Paragraph (Owner of thePrincipal is in Bad Faith).

◦ If I, in bad faith, will use my brother’s lead insoldering my pipes, my brother has the right to askfor payment of the lead plus damages; or, he maychoose to have the lead removed from the pipes evenif the pipes be destroyed, plus damages

Effect of Bad Faith on the Part of Both ; Both should beconsidered in good faith. (Art. 470, 3rd par.).

Art. 471. Whenever the owner of the materialemployed without his consent has a right to anindemnity, he may demand that this consist in thedelivery of a thing equal in kind and value, and in allother respects, to that employed, or else in the pricethereof, according to expert appraisal.

The material employed may be the principal or theaccessory the owner of which has right to an indemnitybecause he acted in good faith while the other who madethe incorporation without his consent, acted in bad faith.The innocent owner has the option to demand thedelivery of a thing equal in kind and value and in allother respects (e.g., quantity, quality, appearance) to that


employed; or the payment of its price, including itssentimental value (Art. 475.) as appraised by experts.

The right option granted by Article 471 is without prejudiceto the right given to the owner of the accessory thing todemand its separation from the principal thing under thesecond paragraph of Articles 469 and 470.

Indemnity — How Paid : Either by (a) delivery of a thingequal in kind and value (quantity, quality); (b) or paymentof price as appraised by experts. (Here, sentimental valuemust be considered). (Art. 475).

Rule Applicable Only if Consent of Owner Had Not BeenObtained. The right to indemnity applies only if materialwas employed without the owner’s consent. The materialmay have been the principal or the accessory.

Art. 472. If by the will of their owners two things of thesame or different kinds are mixed, or if the mixtureoccurs by chance, and in the latter case the things are notseparable without injury, each owner shall acquire aright proportional to the part belonging to him, bearingin mind the value of the things mixed or confused. (381)

Art. 473. If by the will of only one owner, but in goodfaith, two things of the same or different kinds are mixedor confused, the rights of the owners shall be determinedby the provisions of the preceding article. If the one whocaused the mixture or confusion acted in bad faith, heshall lose the thing belonging to him thus mixed orconfused, besides being obliged to pay indemnity for thedamages caused to the owner of the thing with which hisown was mixed.

Articles 472 and 473 deal with mixture which takesplace when two or more things belonging to differentowners are mixed or combined with the respectiveidentities of the component parts destroyed or lost. Asdistinguished from adjunction, there is a greater degreeof inter-penetration and, in certain cases, evendecomposition of the things which have been mixed. (3Manresa 277.)

There are two kinds of mixture: (1) commixtion or themixture of solid things belonging to different owners;and (2) confusion or the mixture of liquid thingsbelonging to different owners. They may be voluntary orby chance.

RULES Mixture by will of the owners. — Their rights shall be

first governed by their stipulations; in the absence of anystipulation, each owner acquires a right or interest in themixture in proportion to the value of his material as inco-ownership. (see Art. 485.)

Mixture caused by an owner in good faith or by chance.— The share of each owner shall also be proportional tothe value of the part which belonged to him. (see Art.413, par. 1.) The rule is different in cases of accessionwhich give to the owner of the principal, right over theaccessory. (see Art. 440.) Strictly speaking, there is noaccession in mixture since there is neither a principal noran accessory◦ If the things mixed are exactly of the same kind and

quality, there is no conflict of rights; all that is


needed would be to divide the mixture equally orproportionately, as the case may be, between thedifferent owners.

◦ Co-ownership arises when the things mixed are ofdifferent kinds or quality.13 Nevertheless, if the thingsmixed can be separated without injury, their respectiveowners may demand their separation. The expensesincident to separation shall be borne by all the ownersin proportion to their respective interests in the mixture.(3 Manresa 299-300.) Note that good faith does notnecessarily exclude negligence which gives right todamages. (Art. 456.)

◦ Mixture caused by an owner in bad faith. — The actornot only forfeits the thing belonging to him but alsobecomes liable to pay indemnity for the damagescaused to the other owner. (Art. 473, par. 2.)

◦ Mixture made with the knowledge and without theobjection of the other owner. — Applying theprovisions of Article 470 (par. 3.) by analogy, theirrespective rights shall be determined as though bothacted in good faith.

Arts. 472 and 473 deal with MIXTURE, which is thecombination or union of materials where the respectiveidentities of the component elements are lost. [Asdistinguished from adjunction, there is in mixture greaterinter-penetration or decomposition of the objects that havebeen mixed

Two Kinds of Mixture (a) COMMIXTION (if solids aremixed). (b) CONFUSION (if liquids are mixed).

RULES:◦ If the mixture is caused by one owner in good faith, or

by the will of both owners, or by chance (accident),or by a common agent, then CO-OWNERSHIPresults, each owner acquiring an interest or rightproportional to the value of his material. (Example:If A’s palay was by chance mixed with B’s rice, Aand B are now co-owners of the mixture inproportion to the value of their respective materials.[Santos v. Bernabe, 54 Phil. 19]).

◦ If the mixture is made by one owner in BAD FAITH,then — 1) he loses his material (in favor of theother);

2) and is liable for damages◦ (This is to penalize his bad faith.) ◦ (Example: If a thief steals some cattle belonging to

another, mixes them with his own, but can no longeridentify which is his or the others and does notremember how many were stolen, the thief shouldlose all the cattle he originally had, because this is acase of commixtion in bad faith and everything musttherefore belong to the offended party.

When Mixture Is Made by Common Consent It isunderstood that in this case, the stipulations of theparties should be controlling.

Rule if Parts Mixed Are of Same Kind, Quantity, andQuality When the things mixed or confused are ofexactly the same kind, quantity, and quality, all that isneeded would be to divide the mixture into two equalparts.

Rule in Case Mixture Was Caused by the Negligence ofOne of the Parties The party negligent is liable for hisculpa aquiliana and should indemnify for damages. (Art.


2176). Note that good faith does not necessarily excludenegligence. (Art. 456).

Art. 474. One who in good faith employs the material ofanother in whole or in part in order to make a thing of adifferent kind, shall appropriate the thing thustransformed as his own, indemnifying the owner of thematerial for its value. If the material is more preciousthan the transformed thing or is of more value, its ownermay, at his option, appropriate the new thing to himself,after fi rst paying indemnity for the value of the work, ordemand indemnity for the material. If in the making ofthe thing bad faith intervened, the owner of the materialshall have the right to appropriate the work to himselfwithout paying anything to the maker, or to demand ofthe latter that he indemnify him for the value of thematerial and the damages he may have suffered.However, the owner of the material cannot appropriatethe work in case the value of the latter, for artistic orscientifi c reasons, is considerably more than that of thematerial.

Article 474 deals with accession by specification whichtakes place whenever the work of a person is done on the materialof another, such material, in consequence of the work itself,undergoing a transformation. It is the imparting of a new form to the material belongingto another (3 Sanchez Roman 100.); or the making of the materialof another into a thing of a different kind (Art. 474.), such as whenflour is made into bread, or grapes into wine, or clay into bricks

RULES(1) Person made use of material of another in good faith. — Theworker becomes the owner of the new thing but he mustindemnify the owner (also in good faith) of the material for itsvalue. (a) Exception. — If the material is more precious or ofmore value than the new thing, the owner of the material maychoose: 1) to appropriate the new thing to himself but must payfor the value of the work or labor; or 2) to demand indemnityfor the material. Where the person who made use of the materialacted in good faith but the owner thereof acted in bad faith, therules provided in Article 470 (par. 2.) may be applied byanalogy. The maker may appropriate the new thing withoutpaying the owner of the material or require the owner to payhim the value of the thing or the value of his work or labor, witha right to indemnity for damages.

(2) Person made use of material of another in bad faith. —The owner of the material has the option either to appropriatethe work to himself without paying the maker; or to demand thevalue of the material plus damages. (a) Exception. — The firstoption is not available in case the value of the work, for artisticor scientific reasons, is considerably more than that of thematerial. (see Art. 448.) This exception prevents unjustenrichment of the owner of the material at the expense of themaker. Here, the labor or work is considered as the principal. Byway of illustration, a piece of canvas worth P100 may have beenused in bad faith in painting a masterpiece worth P100,000. Insuch a case to allow the owner of the material to appropriate thepainting would be manifestly unjust and would unduly enrichhim at the expense of the painter. Or one’s material may havebeen used in good faith by a scientist in the making of a new


instrument of tremendous scientific value. For the same reason, theowner of the material is not allowed to appropriate the thing apartfrom the consideration that the country and the world in generalmay lose the benefit of such instrument, if allowed to fall in thehands of an ignorant owner of the material.

(3) Person made use of material of another with the consentand without objection of the latter. — Applying the provisions ofArticle 470 (par. 3.) by analogy, their rights shall be determined asthough both acted in good faith.

Specification (specifi catio) is the giving of a new form toanother’s material thru the application of labor. (See 3 SanchezRoman 100). The material undergoes a transformation or change ofidentity.Examples

◦ baking a cake with the fl our of another◦ using the paint of another to make a painting on your

own canvas [NOTE: If you use your own paint on thecanvas of another, this is adj

◦ unction. Reason: the canvas is considered the accessory,in Article 468 on adjunction.].

◦ using clothing materials of another to make a suit.[NOTE: In the case of Aguirre v. Pheng, L-20851, Sep.3, 1966, the Supreme Court considered thereconditioning of a tank (in good faith) as a case ofSPECIFICATION, with the entity making thereconditioning entitled to indemnity for its work orlabor. It should be observed, however, that under Art.474, it is generally the worker, not the owner of thematerial who is entitled to appropriate the fi nished

product. It is only when the material is moreprecious (or of more value) than the transformedthing that the owner of the material is given thepreference or choice.].

ADJUNCTION MIXTURE SPECIFICATION

involves at least two things

involves at least two things

may involve only one thing (may be more) but form is changed

as a rule, accessoryfollows principal

as a rule, co-ownership results

as a rule, accessoryfollows principal

the things joined retain their nature

the things mixed or confused may either retain or lose their respective natures

the new object retains or preserves the nature of the original object

Art. 475. In the preceding articles, sentimental valueshall be duly appreciated.

It is often that a thing for some sentimental reasons(as a gift on account of graduation) may be worth (toits owner) much more than its actual value.

Sentimental value shall be duly appreciated in thepayment of the proper indemnity in accessions withrespect to movable property in the cases provided inthe preceding articles. Article 475 applies particularlyto Article 468 (par. 1.) and Article 469. (par. 2.)

Sentimental value attached to a thing (e.g., paintings,wedding rings, precious stones, and other jewels) isnot always easy to estimate because it depends upon aperson’s subjective evaluation. In the adjudication ofmoral damages, the sentimental value of property,real or personal, may be considered by the court.(Art. 2218.)


property notes

Documents

accession discreta

case of accession

principal thing mustgo

ownership of property

right byaccession

right ofownership of

existing ownership

fruits discreta