Preferential right

This case is about the rights of a riparian or littoral owner, or the owner of the land adjacent to the banks of rivers or shores of the sea to the accretions or alluvial deposits due to the actions of the sea or river.

The case concerned a foreshore area near the sea which was the subject of a Foreshore Lease Application on November 16, 1989 by Berto who had already been using it as “dock board” of his fishing business. In his application Berto declared that he was the owner of the land adjoining the said foreshore area. On November 23, 1990, Berto was awarded the Foreshore Lease Agreement (FLA) over the area by the Department of Environment and Natural Resources (DENR).

On March 4, 1994 however Lito filed his protest questioning the grant of the FLA to Bert. He claimed that he was the owner of the land adjoining the said foreshore area. To prove his claim Lito presented his TCT issued on January 20, 1975 showing that his Lot 2-B immediately adjoins the foreshore area applied for by Berto. So Lito asked for the cancellation of the FLA due to fraud and misrepresentation committed by Bert.

Pursuant to the order of the City Environment and Natural Resources Officer (CENRO), a Geodetic Engineer surveyed the area and submitted a sketch on December 10, 1995 clearly showing that Lito’s property is in between the foreshore land and Bert’s property. But on February 1, 1996, the DENR Regional Director issued an order dismissing Lito’s protest on the ground that “in view of all the circumstances and facts gathered, the foreshore area is separate and distinct from the parcel of land, Lot 2-B registered in Lito’s name. So Lito has no legal personality to question the veracity of possession and occupation of Berto over the said foreshore area as the same was by virtue of a valid award granted by the DENR. Was the Regional Director correct?

No. It is undisputed that Lito is the registered owner of the land adjacent to the foreshore area leased to Berto which is covered by TCT 8423 issued on January 20, 1975. Thus prior to Berto’s application on November 16, 1989 and the grant of the FLA on November 23, 1990, Lito already owned the land adjacent to the foreshore land. This was confirmed by the sketch submitted by the Geodetic Engineer on December 12, 1995.

Being the owner of the land adjoining the foreshore area, Lito is the riparian or littoral owner who has a preferential right to lease the foreshore area as provided in paragraph 32 of the Lands Administrative Order No 7-1 dated April 30, 1936. The rule in this paragraph is in consonance with Article 4 of the Spanish Law of Waters of 1866 which provides that while these lands form part of the public domain, they shall be declared by the Government to be the property of the owners of the estates adjacent thereto and as increment thereof when they are no longer washed by the waters of the sea and are not necessary for purposes of public utility, or for the establishment of special industries or for coast guard services. The reason for the preferential right is that accretion compensates the riparian owner for the diminutions which his land suffers by reason of destructive force of the waters. So he who loses by encroachments of the sea should gain by its recession.

In this case, Bert committed fraud when he misrepresented himself as the riparian owner in his application for the foreshore lease. Under stipulation no. 15 of the FLA, any fraud or misrepresentation committed by the applicant is a ground for cancellation of rescission of the FLA (Cantoja vs. Lim, G.R. 168386, March 29, 2010).

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