THIRD DIVISION

[G.R. NO. 136438 : November 11, 2004]

TEOFILO C. VILLARICO, Petitioner, v. VIVENCIO SARMIENTO, SPOUSES BESSIE

SARMIENTO-DEL MUNDO & BETH DEL MUNDO, ANDOK'S LITSON
CORPORATION and MARITES' CARINDERIA, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals
dated December 7, 1998 in CA-G.R. CV No. 54883, affirming in toto the Decision2 of the
Regional Trial Court (RTC) of Parañaque City, Branch 259, dated November 14, 1996,
in Civil Case No. 95-044.

The facts of this case, as gleaned from the findings of the Court of Appeals, are:

Teofilo C. Villarico, petitioner, is the owner of a lot in La Huerta, Parañaque City,

Metro Manila with an area of sixty-six (66) square meters and covered by Transfer
Certificate of Title (T.C.T.) No. 95453 issued by the Registry of Deeds, same city.

Petitioner's lot is separated from the Ninoy Aquino Avenue (highway) by a strip of land
belonging to the government. As this highway was elevated by four (4) meters and
therefore higher than the adjoining areas, the Department of Public Works and
Highways (DPWH) constructed stairways at several portions of this strip of public land
to enable the people to have access to the highway.

Sometime in 1991, Vivencio Sarmiento, his daughter Bessie Sarmiento and her
husband Beth Del Mundo, respondents herein, had a building constructed on a portion
of said government land. In November that same year, a part thereof was occupied by
Andok's Litson Corporation and Marites' Carinderia, also impleaded as respondents.

In 1993, by means of a Deed of Exchange of Real Property, petitioner acquired a 74.30

square meter portion of the same area owned by the government. The property was
registered in his name as T.C.T. No. 74430 in the Registry of Deeds of Parañaque
City.

In 1995, petitioner filed with the RTC, Branch 259, Parañaque City, a complaint for
accion publiciana against respondents, docketed as Civil Case No. 95-044. He alleged
inter alia that respondents' structures on the government land closed his "right of way"
to the Ninoy Aquino Avenue; and encroached on a portion of his lot covered by T.C.T.
No. 74430.

Respondents, in their answer, specifically denied petitioner's allegations, claiming that

they have been issued licenses and permits by Parañaque City to construct their
buildings on the area; and that petitioner has no right over the subject property as it
belongs to the government.
After trial, the RTC rendered its Decision, the dispositive portion of which reads:

"WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring the defendants to have a better right of possession over the subject land
except the portion thereof covered by Transfer Certificate of Title No. 74430 of the
Register of Deeds of Parañaque;

2. Ordering the defendants to vacate the portion of the subject premises described in
Transfer Certificate of Title No. 74430 and gives its possession to plaintiff; and
cralawlibrary

3. Dismissing the claim for damages of the plaintiff against the defendants, and likewise
dismissing the claim for attorney's fees of the latter against the former.

Without pronouncement as to costs.

SO ORDERED."3

The trial court found that petitioner has never been in possession of any portion of the
public land in question. On the contrary, the defendants are the ones who have been in
actual possession of the area. According to the trial court, petitioner was not deprived
of his "right of way" as he could use the Kapitan Tinoy Street as passageway to the
highway.

On appeal by petitioner, the Court of Appeals issued its Decision affirming the trial
court's Decision in toto, thus:

"WHEREFORE, the judgment hereby appealed from is hereby AFFIRMED in toto, with
costs against the plaintiff-appellant.

SO ORDERED."4

In this petition, petitioner ascribes to the Court of Appeals the following assignments of
error:

"I

THE FINDINGS OF FACT OF THE HON. COURT OF APPEALS CONTAINED A CONCLUSION

WITHOUT CITATION OF SPECIFIC EVIDENCE ON WHICH THE SAME WAS BASED.

II

THE HON. COURT OF APPEALS ERRED IN CONSIDERING THAT THE ONLY ISSUE IN
THIS CASE IS WHETHER OR NOT THE PLAINTIFF-APPELLANT HAS ACQUIRED A RIGHT
OF WAY OVER THE LAND OF THE GOVERNMENT WHICH IS BETWEEN HIS PROPERTY
AND THE NINOY AQUINO AVENUE.

III
THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT ACCION PUBLICIANA IS
NOT THE PROPER REMEDY IN THE CASE AT BAR.

IV

THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT THE EXISTENCE OF THE
PLAINTIFF-APPELLANT'S RIGHT OF WAY DOES NOT CARRY POSSESSION OVER THE
SAME.

THE HON. COURT OF APPEALS ERRED IN NOT RESOLVING THE ISSUE OF WHO HAS
THE BETTER RIGHT OF POSSESSION OVER THE SUBJECT LAND BETWEEN THE
PLAINTIFF-APPELLANT AND THE DEFENDANT-APPELLEES."5

In their comment, respondents maintain that the Court of Appeals did not err in ruling
that petitioner's action for accion publiciana is not the proper remedy in asserting his
"right of way" on a lot owned by the government.

Here, petitioner claims that respondents, by constructing their buildings on the lot in
question, have deprived him of his "right of way" and his right of possession over a
considerable portion of the same lot, which portion is covered by his T.C.T. No. 74430
he acquired by means of exchange of real property.

It is not disputed that the lot on which petitioner's alleged "right of way" exists belongs
to the state or property of public dominion. Property of public dominion is defined by
Article 420 of the Civil Code as follows:

"ART. 420. The following things are property of public dominion:

(1) Those intended for public use such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and other of similar
character.

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth."

Public use is "use that is not confined to privileged individuals, but is open to the
indefinite public."6 Records show that the lot on which the stairways were built is for the
use of the people as passageway to the highway. Consequently, it is a property of
public dominion.

Property of public dominion is outside the commerce of man and hence it: (1) cannot
be alienated or leased or otherwise be the subject matter of contracts; (2) cannot be
acquired by prescription against the State; (3) is not subject to attachment and
execution; and (4) cannot be burdened by any voluntary easement.7

Considering that the lot on which the stairways were constructed is a property of public
dominion, it can not be burdened by a voluntary easement of right of way in favor of
herein petitioner. In fact, its use by the public is by mere tolerance of the government
through the DPWH. Petitioner cannot appropriate it for himself. Verily, he can not claim
any right of possession over it. This is clear from Article 530 of the Civil Code which
provides:

"ART. 530. Only things and rights which are susceptible of being appropriated may be
the object of possession."

Accordingly, both the trial court and the Court of Appeals erred in ruling that
respondents have better right of possession over the subject lot.

However, the trial court and the Court of Appeals found that defendants' buildings were
constructed on the portion of the same lot now covered by T.C.T. No. 74430 in
petitioner's name. Being its owner, he is entitled to its possession.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals
dated December 7, 1998 in CA-G.R. CV No. 54883 is AFFIRMED with MODIFICATION in
the sense that neither petitioner nor respondents have a right of possession over the
disputed lot where the stairways were built as it is a property of public dominion. Costs
against petitioner.

SO ORDERED.

Panganiban, (Chairman), Carpio Morales and Garcia, JJ., concur.

Corona, J., on leave.
FACTS

Teofilo C. Villarico, petitioner, is the owner of a lot in La Huerta, Parañaque City

separated from the Ninoy Aquino Avenue (highway) by a strip of land belonging to the
government

elevated by four (4) meters

Department of Public Works and Highways (DPWH) constructed stairways at several

portions of this strip of public land to enable the people to have access to the highwa

Vivencio Sarmiento, his daughter Bessie Sarmiento and her husband Beth Del Mundo,
respondents herein, had a building constructed on a portion of said government land

a part thereof was occupied by Andok's Litson Corporation and Marites' Carinderia

means of a Deed of Exchange of Real Property, petitioner acquired a 74.30 square

meter portion of the same area owned by the government

registered in his name as T.C.T. No. 74430 in the Registry of Deeds of Paranaque City.

petitioner filed with the RTC, Branch 259, Parañaque City, a complaint for accion
publiciana against respondents

He alleged inter alia that respondents' structures on the government land closed his
"right of way" to the Ninoy Aquino Avenue; and encroached on a portion of his lot
covered by T.C.T. No. 74430.

they have been issued licenses and permits by Parañaque City to construct their
buildings on the area; and that petitioner has no right over the subject property as it
belongs to the government

Declaring the defendants to have a better right of possession over the subject land
except the portion thereof covered by Transfer Certificate of Title No. 74430 of the
Register of Deeds of Paranaque

Ordering the defendants to vacate the portion of the subject premises described in
Transfer Certificate of Title No. 74430 and gives its possession to plain

The trial court found that petitioner has never been in possession of any portion of the
public land in question.

the defendants are the ones who have been in actual possession of the are

trial court, petitioner was not deprived of his "right of way" as he could use the Kapitan
Tinoy Street as passageway to the highway.

On appeal by petitioner, the Court of Appeals issued its Decision affirming the trial
court's Decision in toto

ISSUE
RULING

It is not disputed that the lot on which petitioner's alleged "right of way" exists belongs
to the state or property of public dominion

Considering that the lot on which the stairways were constructed is a property of public
dominion, it cannot be burdened by a voluntary easement of right of way in favor of
herein petitioner.

its use by the public is by mere tolerance of the government through the DPW.
Petitioner cannot appropriate it for himself. He cannot claim any right of possession
over it

Accordingly, both the trial court and the Court of Appeals erred in ruling that
respondents have better right of possession over the subject lot

the trial court and the Court of Appeals found that defendants' buildings were
constructed on the portion of the same lot now covered by T.C.T. No. 74430 in
petitioner's name. Being its owner, he is entitled to its possession

neither petitioner nor respondents have a right of possession over the disputed lot
where the stairways were built as it is a property of public dominion