G.R. No.

136349

January 23, 2006

LOURDES DE LA PAZ MASIKIP, Petitioner, vs. THE CITY OF PASIG, HON. MARIETTA A. LEGASPI, in her capacity as Presiding Judge of the Regional Trial Court of Pasig City, Branch 165 and THE COURT OF APPEALS, Respondents. SANDOVAL GUTIERREZ, J.: FACTS: Petitioner Lourdes Dela Paz Masikip is the owner of a parcel of land in Pasig City, sought to be expropriated by the Respondent Local Government for the "sports development and recreational activities" of the residents of Barangay Caniogan, pursuant to Ordinance No. 42, Series of 1993. Again, in 1994, respondent wrote another letter to petitioner, but this time the purpose was allegedly "in line with the program of the Municipal Government to provide land opportunities to deserving poor sectors of our community." Petitioner sent a reply to respondent stating that the intended expropriation of her property is unconstitutional, invalid, and oppressive, as the area of her lot is neither sufficient nor suitable to "provide land opportunities to deserving poor sectors of our community." Respondent reiterated that the purpose of the expropriation of petitioners property is "to provide sports and recreational facilities to its poor residents." Subsequently, Respondent filed with the trial court a complaint for expropriation, praying that the trial court, after due notice and hearing, issue an order for the condemnation of the property; commissioners be appointed for the purpose of determining the just compensation; and that judgment be rendered. Petitioner filed a Motion to Dismiss which the trial court denyied. On special civil action for certiorari, Appellate Court dismissed the petition for lack of merit. Hence, this petition. ISSUE: WON expropriation is valid. HELD: Its expropriation is not valid. Where the taking by the State of private property is done for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Power of eminent domain "the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor." Power of the State or its instrumentalities to take private property for public use and is inseparable from sovereignty and inherent in government. Lodged in the legislative branch of the government, delegated to LGU, public entities and public utility corporations, subject only to Constitutional limitations. Local governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute. (Local Government Code of 1991, Section 19) "SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That, the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted: Provided, further, That,

the local government unit may immediately take possession of the property upon the filing of expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property."; Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking. The very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. It must be a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit. The City of Pasig has failed to establish that there is a genuine necessity to expropriate petitioners property. Intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of the barangay. Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public.

The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan. Unless the requisite of genuine necessity for the expropriation of ones property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. WHEREFORE, complaint for expropriation is DISMISSED.