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Volume XVI . Numbers 4-S
PHILIPPINE
LAW JOURNAL
OCTOBER and NOVEMBER, 1936
(.anttnls
The Regalian Doctrine-By IO')'ge Bocobo ....
An Act to Provide for the Conservation, Disposition, and
PAGE
151
Development of Mineral Lands and Minerals 154
Recent Decisions of the PhilipPine Supreme Court 207
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SubscriptiOl1-Students I'l.OO pm' annum; all otke-rs 1'5.00 per annU71t.
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PHILIPPINE LAW JOURNAL
Vol. XVI OCTOBER lind NOVEMBER, 19:16
Trl E REGALlAN DOCTHINE
By J ORGE BOCORD 1
Nos. 45
The mining bill nOw under study by the Commi ttee on
Mines of the National Assembly adopts t.he B. egaiian doctrine
by virtue of which all minerals, even those found in private
lands, belong to the State. There are three t heories on t he
subject of owner ship of minerals found in pri vate lands:
1. That the minerals belong t.o the owner of the soil in
virtue of the pdnciple that whoever owns the soil also owns
everything above it to the sk ies, ;.me'! unrller it to the center of
the earth.
2. That they belong to the king or t.o the State, This is
called the Regalian doct rine, which is adopted by the mining
bill referred to.
3. That the metal belongs to the finder on the theory that.
it is r es Il!lll iu8, without any ownel', and therefore it should be
awarded to the first occupant.
The first theor ), obtains in FI'ance, England, l.ind the United
States, The second theory, the Regalian doctrine, obtains in
Spain, the Philippines, Mexico and the South republics,
The third theory is sustained by some juri sts. The majorit.y
of the Spanish jurists assail the Regalian doctrine. Among
these jurists are the eminent Manresa and Sanchez Roman.
Incidentally, it should be noted that although these two authors
vet'y often disagree, they concur in r ejecting the Sp;:lIlish la w
on the point of ownership of minerals in private lands. I\'lan-
resa says thai the Regaiian doctrine must be based on the obso-
lete idea of the feudal times that all lands belonged to the King.
He adds that if this feudal theory is r ejected, as it should be.
t hen there' is no other ;:titel'nati ve than to proclaim the com-
munistic idea that all means and instruments of production
should belong to everybody. Sanchez Roman aRrees with 1''1all-
resa on this last point. Moreover, in advocating that mineral:;
' LL. B., LL.D., Professor of Civil LiI\\" and President of
of t he
15:! PHILIPPINE LAW JOURNAL
should belong to the owner of the soil, Sanchez Romiin advances,
among others, the following reasons:
1. That such principle, awarding minerals to the owner
of t he land rests upon It profound res pect for private property,
whose concept does not. allow any limitation on the enj oyment.
the owner.
2. The minerals, which are considered part of t.he real prop-
el'ly by virtue of the right of accession, should belong to the
owner of the principal thing, which is the land.
3. Thi s solution of the problem is in harmony with the othel'
principles of Civil Law, which define the extent of ownershi p.
The writer of t hese lines has quoted these two eminent jurists
in order to show that. although the Civil Code of Spain and the
Spanish mining laws (including those in force here during the
Spanish regime) have adopted the Regalian doctrine, yet such
positive legislation does not agrce with the best thought among
the Spanish jur ists.
However, it seems that this quest ion has been settled by
the Constit.ution of the Philippines in favor of the Regalian
doctrine. Section 1, of Article XII, provides n.mong other things,
as follows:
"Section 1. All agr!cultural, timber, and minel'al lanrl.s of the public
domain, water$, mJ1!f'l'fIis, of potential and other nntul'al l'eSctlurces
Uf the Philippines belong to the Stale."
The mining bill, therefore, is merely carrying out the prin-
ciple as enunciated in the above provision of the Constitution
of the Philippines. But it. may be ;t::;ked whether the method
:.,dopted in t.he bill is conducive to the best interests of the coun-
try, According to Sections 24 and 28 of the bill, prospectors
may enter upon private lands by paying just compensation,
with the owner's per mission. If t he landowner refuses to grant.
permission, the prospector may enter upon the land upon depo
siting with the Court an amount for damages to cr ops and im-
provements, The landowner has no right to the minerals.
It seems to the writer that the owner of the private land
should be preferred in regard to prospecti ng and mines
in his own land. This is done in the Spanish Mining Law of
1868, Section 16, in regard to the placers. provided the land-
owner develops the land for mineral s wi t hin a certain perioci
of time.
.
li it be argued that the mining industry should be en-
('ouraged and that minerals found in private lands should there
THE REGALIAN
,
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fore be open to explorat ion and development by anybody, the
proper solution is that the landowner should be preferred in
locating claims on his own land. If he does not c.are to do so,
and a third person wants to prospect, a special proceeding for
expropriation should be instituted by the latter and the Courts
will declare whether the cultivation of the land 01' the explora-
liun for mineral:; is more in keeping wi th the public interest.
If the Courts decide that the land should be explored and located
for minerals, then the owner should be compensated not only
for the surface taken but he should also be given some sh{lre
at' interest in the mining venture,
The policy proposed in the mining bill of openi ng pr ivale
lands to expluration for minerals instead of giving preference
to the landowneJ', may lead to several evil s, among which the
following may be mentioned:
1. There may be violent conflicts between the prosvector
and the owner of the land when the latter refuses to allow
exploration bJ' thi rd p.,,ons. It is true that the mining bill
allows the Courts to fix the damages in such case, the bill
does not give the landowner more than compensat ion for the
crops and improvements, and so he may not like the idea of hi s
land being upon by others,
2. The average Filipi no citizen has always cher ished t he
idea that everything on or underneath his land belongs to him.
rhe Commonwealth government, by strictly enforcing the Re-
galian doctrine-which was liberally interpreted by the Spanish
government in favor of the landowner-might cause disillusion
and discontent among hundreds of thousands of small fa rmers
all over the islands when they see the gold and other valuable
metals in their own lands taken away by others. Not only that,
but if the prestige and the solidity of land ownershi J) are jeopar-
dized. we might the impairment of one of the most sacred
sentiments in the heart of the Fili pino, and that is, his love for
his OWIl land. This is a civic virtue which wise statesmanship
should at all times conserve and uphold, for it is one of the
bulwarks of every stable government,