The power of eminent domain

Dennis Gorecho - Kuwentong Peyups

The power of eminent domain is an extraordinary power the government must wield with circumspection and utmost regard for procedural requirements.

Two interesting episodes of Extraordinary Attorney Woo revolve around the issue of expropriation, which is a government proceeding obliging a land owner to part with his real property for public use or for public benefit.

Episode 4 is the legal battle of three brothers over the monetary compensation for the land they inherited from their parents, which became the subject of an expropriation. 

The two eldest brothers managed to pressure the younger brother to execute a memorandum on the division of the compensation where the youngest will be left with 260 million won in debt while they will receive five and three billion won, respectively.

With the help of Attorney Woo, the memorandum was nullified for its iniquitous provisions. But the youngest brother decided that they will split the remaining money evenly after payment of the taxes.

In Episode 7 and 8, Atty. Woo and her colleagues at Hanbada Law Firm won a case against their biggest rival, Taesan, in having a tree designated as a natural monument when the local government intended to construct a road that would cut through the fictional village of Sodeokdong.

In real life, the 500-year-old “hackberry tree” located on a hill in Dongbu Village in the southern city of Changwon will soon be designated as a natural monument.

An investigation noted that a Dangjip temple used to exist beside the tree, and annual ritual—celebrated on first day of the 10th lunar month—of worshipping the tree as the village guardian has been a handed-down tradition.

The power of eminent domain is an inherent competence of the state. It is essential to a sovereign.

The government may acquire real property needed as right-of-way, site or location for any national government infrastructure project through donation, negotiated sale, expropriation or any other mode of acquisition as provided by law.

The eminent domain power is subjected to certain constitutional limits such as: The property acquired must be taken for a “public use”; the state must pay “just compensation” in exchange for the property; no person must be deprived of his/her property without due process of law (Article III, Section 9 of the 1987 Constitution).

Public use includes any use that is of “usefulness, utility, or advantage, or what is productive of general benefit of the public.” (Vda. de Ouano v. Republic, 657 Phil. 391)  

Just compensation is “the fair value of the property as between one who receives, and one who desires to sell, x x x fixed at the time of the actual taking by the government.” (NIA v. Diaz GR 147245. March 31, 2005).

The payment must be done in a timely manner. (Republic v. Posada GR 214310, February 24, 2020)

Between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a position as good as (but not better than) the position he was in before the taking occurred. (National Power Corp.n v. Manalastas, 779 Phil. 510)

One of the landmark cases on eminent domain I remember while at the UP College of Law involved the De Knecht properties. 

The Department of Public Works and Highways (DPWH) was implementing the westward extension of EDSA through a project that will address flood control and drainage problems as well as easing traffic congestion in the Baclaran and outlying areas.

The government acquired about 80 to 85 percent of the properties starting with the lands from Taft Avenue up to Roxas Boulevard including the lands in Fernando Rein-Del Pan streets through negotiated purchases of the lands whose owners did not raise any objection as to arbitrariness on the choice of the project and of the route.

It is only with respect to the remaining 10 to 15 percent along the route that the government cannot negotiate through a sales agreement with a few land owners, including a parcel of land owned by the De Knecht family with an area of 8,102.68 square meters, more or less, located at the corner of the south end of Edsa and F.B. Harrison in Pasay City.

In 1979, the government initiated expropriation proceedings.

In 1980, the Supreme Court ruled that the choice of area for the extension of Edsa was arbitrary. It annulled the writ of possession and enjoined the trial court from taking further action in the expropriation case.

On February 17, 1983, the B.P. No. 340 was passed which expropriated the concerned  properties  by legislation.

On February 12, 1990, the Supreme Court rendered a decision upholding the validity of B.P. No.340 where it ruled that an expropriation proceeding that was earlier dismissed may be the subject of a subsequent legislation for expropriation. (GR  87335. February 12,1990).

Peyups is the moniker of University of the Philippines. Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, e-mail info@sapalovelez.com, or call 0917-5025808 or 0908-8665786.


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