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Provisional Remedies (Rule 66-67 Cases)

1. TECSON VS. COMELEC

FACTS:
Respondent Ronald Allan Kelly Poe, also known as
Fernando Poe, Jr. filed his certificate of candidacy
for the position of President of the Republic of
the Philippines.

In his certificate of candidacy, FPJ, representing
himself to be a natural-born citizen of
the Philippines.

Victorino X. Fornier, petitioner in G.R. No. 161824,
initiated before the Commission on Elections
("COMELEC") to disqualify FPJ and to deny due
course or to cancel his certificate of candidacy
upon the thesis that FPJ made a material
misrepresentation in his certificate of candidacy by
claiming to be a natural-born Filipino citizen when
in truth, according to Fornier, his parents were
foreigners; his mother, Bessie Kelley Poe, was an
American, and his father, Allan Poe, was a Spanish
national, being the son of Lorenzo Pou, a Spanish
subject.

Granting, petitioner asseverated, that Allan F. Poe
was a Filipino citizen, he could not have
transmitted his Filipino citizenship to FPJ, the
latter being an illegitimate child of an alien
mother. Petitioner based the allegation of the
illegitimate birth of respondent on two assertions -
first, Allan F. Poe contracted a prior marriage to a
certain Paulita Gomez before his marriage to Bessie
Kelley and, second, even if no such prior marriage
had existed, Allan F. Poe, married Bessie Kelly
only a year after the birth of respondent.

The COMELEC dismissed SPA No. 04-003 for lack
of merit.

Fornier filed his motion for reconsideration. The
motion was denied.

Fornier assailed the decision of the COMELEC
before this Court conformably with Rule 64, in
relation to Rule 65, of the Revised Rules of Civil
Procedure.

The other petitions, later consolidated with G. R.
No. 161824 both challenging the jurisdiction of the
COMELEC and asserting that, under Article VII,
Section 4, paragraph 7, of the 1987 Constitution,
only the Supreme Court had original and exclusive
jurisdiction to resolve the basic issue on the case.

ISSUES:

WHETHER OR NOT FORNIER MAY ASSAIL
THE DECISION OF THE COMELEC BEFORE
THE SUPREME COURT CONFORMABLY WITH
RULE 64 IN RELATION TO RULE 65 OF THE
REVISED RULES OF CIVIL PROCEDURE.

WHETHER OR NOT THE OTHER PETITIONERS
MAY ASSAIL THE DECISION OF THE
COMELEC BEFORE THE SUPREME COURT
CONFORMABLY ARTICLE VII, SECTION 4,
PARAGRAPH 7, OF THE 1987 CONSTITUTION.
RULING:

AS TO THE FIRST ISSUE
Decisions of the COMELEC on disqualification cases
may be reviewed by the Supreme Court per Rule 64
[2]
in an
action for certiorari under Rule 65
[3]
of the Revised Rules of
Civil Procedure. Section 7, Article IX, of the 1987
Constitution also reads
"Each Commission shall decide by a
majority vote of all its Members any case
or matter brought before it within sixty
days from the date of its submission for
decision or resolution. A case or matter is
deemed submitted for decision or
resolution upon the filing of the last
pleading, brief, or memorandum, required
by the rules of the Commission or by the
Commission itself. Unless otherwise
provided by this Constitution or by law,
any decision, order, or ruling of each
Commission may be brought to the
Supreme Court on certiorari by the
aggrieved party within thirty days from
receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same
Constitution provides that judicial power is vested in one
Supreme Court and in such lower courts as may be
established by law which power includes the duty of the
courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
It is sufficiently clear that the petition brought up in G.
R. No. 161824 was aptly elevated to, and could well be
taken cognizance of by, this Court. A contrary view could
be a gross denial to our people of their fundamental right
to be fully informed, and to make a proper choice, on who
could or should be elected to occupy the highest
government post in the land.

AS TO THE SECOND ISSUE
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Petitioners Tecson, et al., in G. R. No. 161434, and
Velez, in G. R. No. 161634, invoke the provisions of Article
VII, Section 4, paragraph 7, of the 1987 Constitution in
assailing the jurisdiction of the COMELEC when it took
cognizance of SPA No. 04-003 and in urging the Supreme
Court to instead take on the petitions they directly
instituted before it. The Constitutional provision cited
reads:
"The Supreme Court, sitting en banc, shall
be the sole judge of all contests relating to
the election, returns, and qualifications of
the President or Vice-President, and may
promulgate its rules for the purpose."
Ordinary usage would characterize a "contest" in
reference to a post-election scenario. Election contests
consist of either an election protest or a quo warranto which,
although two distinct remedies, would have one objective
in view, i.e., to dislodge the winning candidate from
office. A perusal of the phraseology in Rule 12, Rule 13,
and Rule 14 of the "Rules of the Presidential Electoral
Tribunal," promulgated by the Supreme Court en banc on 18
April 1992, would support this premise -
Rule 12. Jurisdiction. - The Tribunal shall
be the sole judge of all contests relating
to the election, returns, and
qualifications of the President or Vice-
President of the Philippines.
Rule 13. How Initiated. - An election
contest is initiated by the filing of an
election protest or a petition for quo
warranto against the President or Vice-
President. An election protest shall not
include a petition for quo warranto. A
petition for quo warranto shall not
include an election protest.
Rule 14. Election Protest. - Only the
registered candidate for President or for
Vice-President of the Philippines who
received the second or third highest
number of votes may contest the election
of the President or the Vice-President, as
the case may be, by filing a verified
petition with the Clerk of the
Presidential Electoral Tribunal within
thirty (30) days after the proclamation of
the winner.
The rules categorically speak of the jurisdiction of the
tribunal over contests relating to the election, returns and
qualifications of the "President" or "Vice-President", of
the Philippines, and not of "candidates" for President or
Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps,
intrudes into, or unlawfully holds or exercises a public
office.
[5]
In such context, the election contest can only
contemplate a post-election scenario. In Rule 14, only a
registered candidate who would have received either the
second or third highest number of votes could file an
election protest. This rule again presupposes a post-
election scenario.
It is fair to conclude that the jurisdiction of the
Supreme Court, defined by Section 4, paragraph 7, of the
1987 Constitution, would not include cases directly
brought before it, questioning the qualifications of a
candidate for the presidency or vice-presidency before the
elections are held.
Accordingly, G. R. No. 161434, entitled "Maria
Jeanette C. Tecson, et al., vs. Commission on Elections et
al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs.
Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would
have to be dismissed for want of jurisdiction.
2. DIVINAGRACIA v. CONSOLIDATED
BROADCASTING

FACTS:

Respondents Consolidated Broadcasting System,
Inc. (CBS) and Peoples Broadcasting Service, Inc.
(PBS) were grantees of legislative franchises by
virtue of two laws, Republic Act (R.A.) No. 7477
and R.A. No. 7582.

The CBS and PBS radio networks are two of the
three networks that comprise the well-known
"Bombo Radyo Philippines.

Section 9 of R.A. No. 7477 and Section 3 of R.A.
No. 7582 contain a common provision predicated
on the "constitutional mandate to democratize
ownership of public utilities.

It further appears that following the enactment of
these franchise laws, the NTC issued four (4)
Provisional Authorities to PBS and six (6)
Provisional Authorities to CBS, allowing them to
install, operate and maintain various AM and FM
broadcast stations in various locations throughout
the nation. These Provisional Authorities were
issued between 1993 to 1998, or after the enactment
of R.A. No. 7477 and R.A. No. 7582.

Petitioner Santiago C. Divinagracia filed two
complaints both dated 1 March 1999 with the NTC,
respectively lodged against PBS and CBS. He
alleged that he was "the actual and beneficial
owner of Twelve percent (12%) of the shares of
stock" of PBS and CBS separately, and that despite
the provisions in R.A. No. 7477 and R.A. No. 7582
mandating the public offering of at least 30% of the
common stocks of PBS and CBS, both entities had
failed to make such offering. Thus, Divinagracia
commonly argued in his complaints that the failure
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Provisional Remedies (Rule 66-67 Cases)


on the part of PBS and CBS "to comply with the
mandate of their legislative franchise is a misuse of
the franchise conferred upon it by law and it
continues to exercise its franchise in contravention
of the law to the detriment of the general public
and of complainant who are unable to enjoy the
benefits being offered by a publicly listed
company.

The NTC issued a consolidated decision
dismissing both complaints. it held that the
complaints actually constituted collateral attacks
on the legislative franchises of PBS and CBS since
the sole issue for determination was whether the
franchisees had violated the mandate to
democratize ownership in their respective
legislative franchises. The NTC ruled that it was
not competent to render a ruling on that issue, the
same being more properly the subject of an action
for quo warranto to be commenced by the Solicitor
General in the name of the Republic of the
Philippines, pursuant to Rule 66 of the Rules of
Court.

After the NTC had denied Divinagracias motion
for reconsideration, he filed a petition for review
under Rule 43 of the Rules of Court with the Court
of Appeals. The Court of Appeals rendered a
decision

upholding the NTC. The appellate court
agreed with the earlier conclusion that the
complaints were indeed a collateral attack on the
legislative franchises of CBS and PBS and that
a quo warranto action was the proper mode to
thresh out the issues raised in the complaints.

ISSUES:

WHETHER OR NOT THE CORRECT REMEDY IS
AN ACTION FOR QUO WARRANTO UNDER
RULE 66 OF THE RULES OF COURT.

RULING:
There is in fact a more appropriate, more narrowly-tailored
and least restrictive remedy that is afforded by the law.
Such remedy is that adverted to by the NTC and the Court
of Appeals the resort to quo warranto proceedings under
Rule 66 of the Rules of Court.
Under Section 1 of Rule 66, "an action for the usurpation of
a public office, position or franchise may be brought in the
name of the Republic of the Philippines against a person
who usurps, intrudes into, or unlawfully holds or exercises
public office, position or franchise."
61
Even while the action
is maintained in the name of the Republic
62
, the Solicitor
General or a public prosecutor is obliged to commence
such action upon complaint, and upon good reason to
believe that any case specified under Section 1 of Rule 66
can be established by proof.
63

The special civil action of quo warranto is a prerogative writ
by which the Government can call upon any person to
show by what warrant he holds a public office or exercises
a public franchise.
64
It is settled that "[t]he determination of
the right to the exercise of a franchise, or whether the right
to enjoy such privilege has been forfeited by non-user, is
more properly the subject of the prerogative writ of quo
warranto, the right to assert which, as a rule, belongs to the
State upon complaint or otherwise, the reason being that
the abuse of a franchise is a public wrong and not a private
injury."
65
A forfeiture of a franchise will have to be declared
in a direct proceeding for the purpose brought by the State
because a franchise is granted by law and its unlawful
exercise is primarily a concern of Government.
66
Quo
warranto is specifically available as a remedy if it is thought
that a government corporation has offended against its
corporate charter or misused its franchise.
67

Petitioners argue that since their prayer involves the
cancellation of the provisional authority and CPCs, and not
the legislative franchise, then quo warranto fails as a
remedy. The argument is artificial. The authority of the
franchisee to engage in broadcast operations is derived in
the legislative mandate. To cancel the provisional authority
or the CPC is, in effect, to cancel the franchise or otherwise
prevent its exercise. By law, the NTC is incapacitated to
frustrate such mandate by unduly withholding or
canceling the provisional authority or the CPC for reasons
other than the orderly administration of the frequencies in
the radio spectrum.
What should occur instead is the converse. If the courts
conclude that private respondents have violated the terms
of their franchise and thus issue the writs of quo
warranto against them, then the NTC is obliged to cancel
any existing licenses and CPCs since these permits draw
strength from the possession of a valid franchise. If the
point has not already been made clear, then licenses issued
by the NTC such as CPCs and provisional authorities are
junior to the legislative franchise enacted by Congress. The
licensing authority of the NTC is not on equal footing with
the franchising authority of the State through Congress.
The issuance of licenses by the NTC implements the
legislative franchises established by Congress, in the same
manner that the executive branch implements the laws of
Congress rather than creates its own laws. And similar to
the inability of the executive branch to prevent the
implementation of laws by Congress, the NTC cannot,
without clear and proper delegation by Congress, prevent
the exercise of a legislative franchise by withholding or
canceling the licenses of the franchisee.
And the role of the courts, through quo
warranto proceedings, neatly complements the traditional
separation of powers that come to bear in our analysis. The
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courts are entrusted with the adjudication of the legal
status of persons, the final arbiter of their rights and
obligations under law. The question of whether a
franchisee is in breach of the franchise specially enacted for
it by Congress is one inherently suited to a court of law,
and not for an administrative agency, much less one to
which no such function has been delegated by Congress. In
the same way that availability of judicial review over laws
does not preclude Congress from undertaking its own
remedial measures by appropriately amending laws, the
viability of quo warranto in the instant cases does not
preclude Congress from enforcing its own prerogative by
abrogating the legislative franchises of respondents should
it be distressed enough by the franchisees violation of the
franchises extended to them.
3. MIGUEL R. CORNEJO, petitioner,
vs. ANDRES GABRIEL, provincial governor of Rizal, and
the PROVINCIAL BOARD OF RIZAL, composed of
ANDRES GABRIEL, PEDRO MAGSALIN and
CATALINO S. CRUZ, respondents.
FACTS:
The petitioner in this case, the suspended
municipal president of Pasay, Rizal, seeks by these
proceedings in mandamus to have the provincial governor
and the provincial board of the Province of Rizal
temporarily restrained from going ahead with
investigation of the charges filed against him pending
resolution of the case, and to have an order issue directed
to the provincial governor commanding him to return the
petitioner to his position as municipal president of Pasay.
The provincial governor has filed an answer to the
petition, in which he alleges as a special defense that
numerous complaints have been received by him against
the conduct of Miguel R. Cornejo, municipal president of
Pasay; that these complaints were investigated by him; that
he came to the conclusion that agreeable to the powers
conferred upon provincial governors, the municipal
president should be temporarily suspended, and that an
investigation is now being conducted by the provincial
board.
Counsel for petitioner has argued, with much
eloquence, that his client has been deprived of an office, to
which he was elected by popular vote, without having an
opportunity to be heard in his own defense. The
respondents reply that all that the provincial governor and
the provincial board have done in this case is to comply
with the requirements of the law which they are sworn to
enforce.
ISSUE: Whether the petitioner, being a municipal officer,
has been deprived of his right to due process when he was
suspended without notice and hearing
RULING:
The fact should not be lost sight of that we are
dealing with an administrative proceeding and not with a
judicial proceeding. As Judge Cooley, the leading
American writer on constitutional Law, has well said, due
process of law is not necessarily judicial process; much of
the process by means of which the Government is carried
on, and the order of society maintained, is purely executive
or administrative, which is as much due process of law, as
is judicial process. In certain proceedings, therefore, of an
administrative character, it may be stated, without fear of
contradiction, that the right to a notice and hearing are not
essential to due process of law.
For this petition to come under the due process of
law prohibition, it would be necessary to consider an office
as "property." It is, however, well settled in the United
States, that a public office is not property within the sense
of the constitutional guaranties of due proces of law, but is
a public trust or agency. Decisions are numerous to the
effect that public offices are mere agencies or trust, and not
property as such. The basic idea of government in the
Philippine Islands, as in the United States, is that of a
popular representative government, the officers being
mere agents and not rulers of the people, one where no one
man or set of men has a proprietary or contractual right to
an office.
A later compilation of the pertinent authorities is to be
found in 22 Ruling Case Law, pp. 564, 565. On the subject
of suspension of public officers it is heared said:
The suspension of an officer pending his trial for
misconduct, so as to tie his hands for the time
being, seems to be universally accepted as fair, and
often necessary. . . . Notice and hearing are not
prerequisite to suspension unless required by
statute and therefore suspension without such
notice does not deprive the officer of property
without due process of law. Nor is a suspension
wanting in due process of law or a denial of the
equal protection of the laws because the evidence
against the officer is not produced and he is not
given an opportunity to confront his accusers and
cross-examine the witnesses.lawph!l.net
The suggestion that an unfriendly governor might
unduly delay the hearing is also without much force. The
same might be said of any administrative officer, or in fact
of any judicial officer. The presumption, again, is that
every officer will do his duty promptly, and if he does not,
certainly a remedy can be found to make him do so. Not
only this, but the law before us expedites the proceedings
by fixing a short period of ten days within which the
provincial governor must lay the charges before the
provincial board, which must be heard by the latter body
within fifteen days. Of more compelling force is the
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suggestion from the other side that the public interest
might suffer detriment by postponing the temporary
suspension until after the hearing.
4. Municipality of Bian vs. Garcia Decemberm 22,
1989
Facts:
The expropriation suit was commenced by
complaint of the Municipality of Bian, Laguna filed in the
RTC. The complaint named as defendants the owners of
eleven (11) adjacent parcels of land in Bian The land
sought to be expropriated was intended for use as the new
site of a modern public market and the acquisition was
authorized by a resolution of the Sangguniang Bayan. One
of the defendants, Francisco filed a MTD. Her motion was
filed pursuant to Section 3, Rule 67. Her "motion to
dismiss" was thus actually a pleading, taking the place of
an answer in an ordinary civil action; it was not an
ordinary motion governed by Rule 15, or a "motion to
dismiss" within the contemplation of Rule 16. Respondent
Judge issued a writ of possession in favor of the plaintiff
Municipality.
Francisco filed a "Motion for Separate Trial. She
alleged she had the special defense of "a constitutional
defense of vested right via a pre-existing approved
Locational Clearance from the H.S.R.C. The Court granted
the motion. It directed that a separate trial be held for
Francisco regarding her special defenses.
Judge issued order dismissing the complaint "as
against defendant FRANCISCO," and amending the Writ
of Possessions as to "exclude therefrom and from its force
and effects said defendant .. and her property ..."
The Municipality filed a MR. Francisco filed an
"Ex-Parte Motion for Execution and/or Finality of Order,"
contending that the Order had become "final and executory
for failure of the Municipality to file a motion for
reconsideration and/or appeal within the reglementary
period," i.e "fifteen (15) days counted from the notice of the
final order .. appealed from.
The Municipality contended that "multiple appeals are
allowed by law" in actions of eminent domain, and hence
the period of appeal is thirty (30), not fifteen (15) days;the
special civil action of partition and accounting under Rule
69.
Issue: whether the special civil action of eminent domain
under Rule 67 is a case "wherein multiple appeals are
allowed, as regards which 'the period of appeal shall be
thirty [30] days, instead of fifteen (15) days
Held:
In actions of eminent domain, as in actions for
partition, since no less than two (2) appeals are allowed by
law, the period for appeal from an order of condemnation
is thirty (30) days counted from notice of order and not the
ordinary period of fifteen (15) days prescribed for actions
in general, conformably with the provision of Section 39 of
BP129 to the effect that in "appeals in special proceedings
in accordance with Rule 109 of the Rules of Court and
other cases wherein multiple appeals are allowed, the
period of appeal shall be thirty (30) days, a record of
appeal being required.
The municipality's MR was therefore timely presented,
well within the thirty-day period laid down by law
therefor; and it was error for the Trial Court to have ruled
otherwise and to have declared that the order sought to be
considered had become final and executory.
It is claimed by the Municipality that the issuance of such a
separate, final order or judgment had given rise "ipso facto
to a situation where multiple appeals became available."
The Municipality is right. In an action against several
defendants, the court may, when a several judgment is
proper, render judgment against one or more of them,
leaving the action to proceed against the others. " In lieu of
the original record, a record on appeal will per force have
to be prepared and transmitted to the appellate court. More
than one appeal being permitted in this case, therefore, "the
period of appeal shall be thirty (30) days, a record of
appeal being required as provided by the Implementing
Rules in relation to Section 39 of B.P. Blg. 129.
5. NATIONAL POWER CORPORATION VS. JOCSON
GR No. 94193-99
February 25, 1992

FACTS:

Petitioner is a GOCC created and existing by virtue
of Republic Act No. 6395.

In order to carry out its purposes, it is authorized
to exercise the power of eminent domain.

Petitioner filed 7 eminent domain cases before the
RTC. Subsequently, a Motion to consolidate these cases for
joint trial and an Urgent Motion to Fix Provisional Value
was filed.

The respondent judge issued an Order fixing the
provisional values of the subject areas.

In compliance w/ the said Order, petitioner
deposited the total sum of P23,180,828.00 w/ the PNB.

The defendants filed a motion for reconsideration
alleging that the provisional value of the property involved
had been set much too low.

Respondent judge issued an Order increasing the
provisional values of the properties enumerated in the
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motions for reconsideration, directing the petitioner to
deposit "whatever differential between the amounts above
fixed and those already deposited w/in 24 hours from
receipt of the Order" and holding in abeyance the issuance
of the writ of possession pending compliance therewith.

In compliance w/ the said Order, petitioner
immediately deposited the additional sum of
P22,866,860.00 w/ the PNB.

Respondent Judge issued an Order mandatorily
requiring the defendants:
. . . to state in writing w/in 24 hours whether or not they are
amenable to accept and withdraw the amounts already
deposited by the plaintiff for each of them at final and full
satisfaction of the value of their respective property
affected by expropriation, and this is mandatory.
[t]he Writ of Possession sought for by the plaintiff will be
issued immediately after manifestation of acceptance and
receipt of said amounts.
ISSUE: W/N prior hearing is required before the Republic
of the Philippines can be granted immediate possession of
the property.

HELD: No.

In Municipality of Bian vs. Hon. Jose Mar Garcia, et al., the
Court ruled that there are 2 stages in every action of
expropriation:
The first is concerned with the determination of the
authority of the plaintiff to exercise the power of eminent
domain and the propriety of its exercise in the context of
the facts involved in the suit. It ends with an order, if not of
dismissal of the action, "of condemnation declaring that the
plaintiff has a lawful right to take the property sought to be
condemned, for the public use or purpose described in the
complaint, upon the payment of just compensation to be
determined as of the date of the filing of the complaint." An
order of dismissal, if this be ordained, would be a final one,
of course, since it finally disposes of the action and leaves
nothing more to be done by the Court on the merits. So,
too, would an order of condemnation be a final one, for
thereafter as the Rules expressly state, in the proceedings
before the Trial Court, "no objection to the exercise of the
right of condemnation (or the propriety thereof) shall be
filed or heard."
The second phase of the eminent domain action is
concerned with the determination by the Court of the "just
compensation for the property sought to be taken." This is
done by the Court with the assistance of not more than 3
commissioners. The order fixing the just compensation on
the basis of the evidence before, and findings of, the
commissioners would be final, too. It would finally dispose
of the second stage of the suit, and leave nothing more to
be done by the Court regarding the issue. . . .
However, upon the filing of the complaint or at any time
thereafter, the petitioner has the right to take or enter upon
the possession of the property involved upon compliance
with P.D. No. 42 which requires the petitioner, after due
notice to the defendant, to deposit with the PNB in its main
office or any of its branches or agencies, "an amount
equivalent to the assessed value of the property for
purposes of taxation." This assessed value is that indicated
in the tax declaration.
P.D. No. 42 repealed the "provisions of Rule 67 of the Rules
of Court and of any other existing law contrary to or
inconsistent" with it. Accordingly, it repealed Section 2 of
Rule 67 insofar as the determination of the provisional
value, the form of payment and the agency with which the
deposit shall be made, are concerned.
It will be noted that under section Section 2 of Rule 67, the
court has the discretion to determine the provisional value
which must be deposited by the plaintiff to enable it "to
take or enter upon the possession of the property." Notice
to the parties is not indispensable.
P.D. No. 42, however, effectively removes the discretion of
the court in determining the provisional value. What is to
be deposited is an amount equivalent to the assessed value for
taxation purpose. No hearing is required for that purpose.
All that is needed is notice to the owner of the property
sought to be condemned.
6. National Power Corporation v. Heirs of Macabangkit
Sangkay GR No. 165828. August 24, 2011

Facts:
NPC undertook the Agus River Hydroelectric Power
Plant Project to generate electricity for Mindanao
The project included several underground tunnels to be
used in diverting the water flow from the Agus River to the
hydroelectric plants
The respondents, heirs of Macabangkit, as owners of
land sued NPC in the RTC for the recovery of damages and
property with the alternative prayer for the payment of just
compensation, alleging that one of the NPC's tunnels
traversed their land and was constructed without their
knowledge and consent
NPC countered that respondent heirs had no right to
compensation since a mere legal easements on the land
was established and their cause of action already
prescribed, under either:
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a] RA 6395, Section 3[i] - "a period of only five
years from the date of the construction within which the
affected landowner could bring a claim against it OR
b] Article 620 of Civil Code [being a continuous
and apparent legal easement] - underground tunnel being
susceptible to acquisitive prescription after the lapse of 10
years
Issue:
W/N the construction of the tunnel constituted taking of
the land and entitled owners to just compensation
Held: YES
NPC constructed a tunnel underneath the land without
going through formal expropriation proceedings and
without procuring their consent
NPC's construction adversely affected the owners' rights
and interests because the subterranean intervention by
NPC prevented them from introducing any developments
on the surface, and from disposing of the land or any
portion of it, either by sale or mortgage
RTC and CA correctly ruled that there was full taking on
the part of NPC, notwithstanding that the owners were not
completely and actually dispossessed
Settled rule: Taking of private property for public use, to
be compensable, need not be an actual physical taking or
appropriation
The expropriator's action may be short of
acquisition of title, physical possession, or occupancy but
may still amount to a taking
Compensable taking includes destruction,
restriction, diminution, or interruption of the rights of
ownership or of the common and necessary use and
enjoyment of the property in a lawful manner, lessening or
destroying its value
It is neither necessary that the owner be wholly
deprived of the use of his property, nor material whether
the property is removed from the possession of the owner,
or in any respect changes hands
NPC should pay just compensation for the entire land at
P500.00/square meter based on the prevailing market value
of the property at the time of the filing of the complaint
Interest at the rate of 12% per annum is IMPOSED on the
principal amount of P113, 532,500.00 as just compensation,
reckoned from the filing of the complaint on November 21,
1997 until the full liability is paid
7. Barangay San Roque v. Heirs of Francisco Pastor
Expropriation suit is incapable of pecuniary estimation; thus, it
falls within the jurisdiction of the RTC, regardless of the value of
the subject property.
Facts:
Petitioner filed before the MTC a complaint to
expropriate a property of the respondents
MTC dismissed the complaint on the ground of lack of
jurisdiction, stating that in an action for eminent domain,
the principal cause is the exercise of such power or right;
thus, it is within the exclusive original jurisdiction of the
RTC
RTC also dismissed the complaint holding that an action
for eminent domain affected title to real property; hence,
the value of the property to be expropriated would
determine whether the case should be filed before the MTC
or RTC and since the value of the property was less than
P20, 000.00 or P1, 740.00 to be exact, it should be filed
before the MTC
Petitioner appealed directly to this Court raising a pure
question of law, in which the court denied the Petition for
Review for being posted out of time
Issue:
Whether the MTC has jurisdiction over cases for eminent
domain where the assessed value is below P20, 000 or the
RTC.
Held: RTC
We agree with the petitioner that an expropriation suit is
incapable of pecuniary estimation
The court adopted the criterion of first ascertaining the
nature of the principal action or remedy sought:
1] If it is primarily for the recovery of sum of
money, the claim is considered capable of pecuniary
estimation; the jurisdiction would depend on the amount
of the claim
2] If the basic issue is other than the right to
recover money or the money claim is purely incidental to
or a consequence of the principal relief sought --- subject of
litigation may not be estimated in terms of money and are
cognizable exclusively by the courts of first instance
In the present case, an expropriation suit does not
involve the recovery of a sum of money
It deals with the exercise by the government of its
authority and right to take private property for public use
The value of the property to be expropriated is estimated
in monetary terms, however, it is merely incidental to the
expropriation suit because the amount of compensation is
determined only after the court is satisfied with the
propriety of the expropriation.

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8. BARDILLON VS BRGY. MASILI OF CALAMBA
Facts: Respondent Brgy. Masili filed 2 complaints for
eminent domain owned by petitioner Bardillon. The 1st
complaint was filed with MTC following a failure to reach
an agreement on the purchase offer of 200k. The MRC
dismissed the case for lack of interest for failure of Brgy
and its counsel to appear at pre-trial.
The 2nd complaint was filed before the RTC over the same
lot and for the same purpose (erection of a multi-purpose
barangay hall). Bardillon filed a motion to dismisson the
ground of res judicata. Judge denied motion holding that
the MTC which ordered the dismissal of the first case had
no jurisdiction over the expropriation proceeding. RTC
decided in favor of Brgy and issued a Writ of Possession.
CA dismissed the petition , no grave abuse of discretion
because the 2nd complaint was not barred by res judicata,
since MTC had no jurisdiction over the action. Bardillon
claims that since the value of the land is only P11k, the
MTC had jurisdiction over the case.
Issue:
Whether the MTC had jurisdiction over the case -
NO
whether the dismissal before the MTC constituted
res judicata -NO
whether the CA erred when it ignored the issue
entry upon the premise (writ of possession) -NO
Ratio:
Jurisdiction
An expropriation deals with the exercise by the
government of its authority and right to take property for
public use. As such, it is incapable of pecuniary estimation
and should be filed with the RTCs.

The SC explained in Brgy. San Roque v heirs of
Pastor that the primary cinsideration in an expropriation
suit is whether the government has complied with the
requisites for the taking of private property. The courts
determine the authority of the government entitym the
necessity of the expropriation, and the observance of due
process. The subject of expropriation suits is the
government's exercise of eminent domain, a matter that is
incapable of pecuniary estimation. Although the value if
the property is estimated in monetary terms, this is merely
incidental to the suit. The amount is determined only after
the court is satisfied with the propriety of the
expropriation.
Res Judicata
One of the requisites of the doctrine of res judicata is that
the court that rendered the final judgment has jurisdiction
over the subject matter and the parties. Since the MTC had
no jurisdiction over expropriation proceedings, res judicata
does not apply even if the order of dismissal may have
been an adjudication on the merits.
Legality of entry into premises
Bardillon argued that the CA erred when it ignored the
RTC's Writ of Possession over her
property issued despite the pending MR. SC not
persuaded. The requirement for the issuance of writ if
Possession in an expropriation case are governed by Sec. 2,
Rule 67. On the part of the LGUs, it is also governed by Sec.
19 of the LGC. The requisites for authorizing immediate
entry are: 1) the filing of a complaint for expropriation
sufficient in form and substance and 2) the deposit of the
amount equivalent to 15% of the FMV of the property to be
expropriated based on its current tax declaration. In the
instant case, the issuance of the writ after it had filed the
complaint and deposited the amount required was proper.
The issue of necessity of the expropriation is a matter
properly addressedto the RTC in the course of the
proceedings. If petitioner objects to the necessity of the
takeover of her property, she should say so in her Answer.
The RTC has the power to inquire into the legality of the
exercise of the right of eminent domain and to determine
whether there is a genuine necessity for it.
9. NATIONAL POWER CORP., Petitioner,
vs. SPOUSES NORBERTO AND JOSEFINA DELA
CRUZ, METROBANK, Dasmarias, Cavite Branch,
REYNALDO FERRER, and S.K. DYNAMICS
MANUFACTURER CORP., Respondents.
Facts:
- NAPOCOR filed a Complaint for eminent domain and
expropriation of an easement of right-of-way over portions
of land within the areas of Dasmarias and Imus, Cavite
for the construction and maintenance of the proposed
Dasmarias-Zapote 230 kV Transmission Line Project
against respondents as registered owners of the parcels of
land sought to be expropriated.
- After respondents filed their respective answers to
petitioners Complaint, petitioner deposited PhP 5,788.50
to cover the provisional value of the land in accordance
with Section 2, Rule 67 of the Rules of Court.
-Then petitioner filed an Urgent Ex-Parte Motion for the
Issuance of a Writ of Possession, which the trial court
granted. The trial court issued a Writ of Possession over
the lots owned by respondents spouses de la Cruz and
respondent Ferrer.
- However, the trial court dropped the Dela Cruz spouses
and their mortgagee, Metrobank, as parties-defendants in
view of the Motion to Intervene filed by
respondent/intervenor Virgilio M. Saulog, who claimed
ownership of the land sought to be expropriated from
respondents spouses Dela Cruz.
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- the trial court terminated the pre-trial in so far as
respondent Ferrer was concerned, considering that the sole
issue was the amount of just compensation, and issued an
Order directing the constitution of a Board of
Commissioners with respect to the property of respondent
S.K. Dynamics
- As to the just compensation for the property of Saulog,
successor-in-interest of the Dela Cruz spouses, the trial
court ordered the latter and petitioner to submit their
compromise agreement.
- The commissioners conducted an ocular inspection of S.K.
Dynamics property and they recommended that the
property of S.K. Dynamics to be expropriated by petitioner
be valued at PhP 10,000.00 per square meter. And the
valuation is Based on the analysis of data gathered and
making the proper adjustments with respect to the
location, area, shape, accessibility, and the highest and best
use of the subject properties.
*******
IT is to be noted that the commissioners did not afford the
parties the opportunity to introduce evidence in their
favor, nor did they conduct hearings before them. In fact,
the commissioners did not issue notices to the parties to
attend hearings nor provide the concerned parties the
opportunity to argue their respective causes.
Upon the submission of the commissioners report,
petitioner was not notified of the completion or filing of it
nor given any opportunity to file its objections to it. ******
- Respondent Ferrer filed a motion adopting in toto the
commissioners report with respect to the valuation of his
property. The trial court consequently issued the Order
approving the commissioners report, and granted
respondent Ferrers motion to adopt the subject report.
- Subsequently, the just compensation for the disparate
properties to be expropriated by NAPOCOR for its project
was uniformly pegged at PhP 10,000.00 per square meter.
- NAPOCOR filed a Motion for Reconsideration of the
abovementioned Order, but said motion was denied in the
trial courts Order.
- The basis of NAPOCOR in seeking to set aside the Order
is its claim that the Commissioners Report fixing the just
compensation at P10,000.00 per square meter is exorbitant,
unjust and unreasonable. To support its contention,
NAPOCOR invoked Provincial Appraisal Committee
Report No. 08-95 dated October 25, 1995 which set the just
compensation of lots along Gen. Aguinaldo Highway at
P3,000.00 per sq.m. only.
- Unsatisfied with the amount of just compensation,
NAPOCOR then filed an appeal before the CA. But The CA
find nothing on record which would warrant the reversal
of the Order.
- NAPOCOR did not file a Motion for Reconsideration of
the CA Decision.
It directly filed a petition for review before the supreme
Court.
Issues:
1. Whether or not the NAPOCOR was deprived of due
process when it was not given the opportunity to present
evidence before the commissioners.
2. Whether or not the legal basis for the determination of
just compensation was insufficient.
Held:
1. YES.
Based on the pertinent provisions (Sections 6,7&8) on
expropriation, under Rule 67 of the Rules of Court, It is
clear that in addition to the ocular inspection performed by
the two (2) appointed commissioners in this case, they are
also required to conduct a hearing or hearings to determine
just compensation; and to provide the parties the
following: (1) notice of the said hearings and the
opportunity to attend them; (2) the opportunity to
introduce evidence in their favor during the said hearings;
and (3) the opportunity for the parties to argue their
respective causes during the said hearings.
The appointment of commissioners to ascertain just
compensation for the property sought to be taken is a
mandatory requirement in expropriation cases. In the
instant expropriation case, where the principal issue is the
determination of just compensation, a hearing before the
commissioners is indispensable to allow the parties to
present evidence on the issue of just compensation. While
it is true that the findings of commissioners may be
disregarded and the trial court may substitute its own
estimate of the value, the latter may only do so for valid
reasons, that is, where the commissioners have applied
illegal principles to the evidence submitted to them, where
they have disregarded a clear preponderance of evidence,
or where the amount allowed is either grossly inadequate
or excessive. Thus, "trial with the aid of the commissioners
is a substantial right that may not be done away with
capriciously or for no reason at all."
In this case, the fact that no trial or hearing was conducted
to afford the parties the opportunity to present their own
evidence should have impelled the trial court to disregard
the commissioners findings. The absence of such trial or
hearing constitutes reversible error on the part of the trial
court because the parties (in particular, petitioners) right
to due process was violated.
2. YES.
IN this case, the sole basis for the determination of just
compensation was the commissioners ocular inspection of
the properties in question, as gleaned from the
commissioners October 5, 1999 report. The trial courts
reliance on the said report is a serious error considering
that the recommended compensation was highly
speculative and had no strong factual moorings. For one,
the report did not indicate the fair market value of the lots
occupied by the Orchard Golf and Country Club, Golden
City Subdivision, Arcontica Sports Complex, and other
business establishments cited. Also, the report did not
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show how convenience facilities, public transportation, and
the residential and commercial zoning could have added
value to the lots being expropriated.
Moreover, the trial court did not amply explain the nature
and application of the "highest and best use" method to
determine the just compensation in expropriation cases. No
attempt was made to justify the recommended "just price"
in the subject report through other sufficient and reliable
means such as the holding of a trial or hearing at which the
parties could have had adequate opportunity to adduce
their own evidence, the testimony of realtors in the area
concerned, the fair market value and tax declaration, actual
sales of lots in the vicinity of the lot being expropriated on
or about the date of the filing of the complaint for
expropriation, the pertinent zonal valuation derived from
the Bureau of Internal Revenue, among others.
More so, the commissioners did not take into account that
the Asian financial crisis in the second semester of 1997
affected the fair market value of the subject lots. Judicial
notice can be taken of the fact that after the crisis hit the
real estate market, there was a downward trend in the
prices of real estate in the country.
Furthermore, the commissioners report itself is flawed
considering that its recommended just compensation was
pegged as of October 5, 1999, or the date when the said
report was issued, and not the just compensation as of the
date of the filing of the complaint for expropriation, or as
of November 27, 1998. The period between the time of the
filing of the complaint (when just compensation should
have been determined), and the time when the
commissioners report recommending the just
compensation was issued (or almost one [1] year after the
filing of the complaint), may have distorted the correct
amount of just compensation.

Notes : ( Definition of Just Compensation as stated in this
case)
Just compensation is defined as the full and fair equivalent
of the property sought to be expropriated. The measure is
not the takers gain but the owners loss. The
compensation, to be just, must be fair not only to the owner
but also to the taker. Even as undervaluation would
deprive the owner of his property without due process, so
too would its overvaluation unduly favor him to the
prejudice of the public.
To determine just compensation, the trial court should first
ascertain the market value of the property, to which should
be added the consequential damages after deducting
therefrom the consequential benefits which may arise from
the expropriation. If the consequential benefits exceed the
consequential damages, these items should be disregarded
altogether as the basic value of the property should be paid
in every case.
The market value of the property is the price that may be
agreed upon by parties willing but not compelled to enter
into the contract of sale. Not unlikely, a buyer desperate to
acquire a piece of property would agree to pay more, and a
seller in urgent need of funds would agree to accept less,
than what it is actually worth.
Among the factors to be considered in arriving at the fair
market value of the property are the cost of acquisition, the
current value of like properties, its actual or potential uses,
and in the particular case of lands, their size, shape,
location, and the tax declarations thereon.
It is settled that just compensation is to be ascertained as of
the time of the taking, which usually coincides with the
commencement of the expropriation proceedings. Where
the institution of the action precedes entry into the
property, the just compensation is to be ascertained as of
the time of the filing of the complaint.

10. Republic of the Philippines, represented by Air
Transportation Office, versus Sarabia
Facts:
In 1956, ATO justly expropriated a portion of the property
of Sarabia
ATO took possession and control of the portion of
respondents property
ATO utilized the property for parking area, control
tower, airport fire rescue station, terminal, and HQ of
PNP aviation security
ATO assured respondents payment. However, the parties
did not agree on the amount for just compensation.
In 1998, Republic filed with RTC an action for the
expropriation of the whole property
In 1999, RTC appointed commissioners to ascertain
just compensation
Commissioners submitted report
On hearing, the court required ATO to prove that
portions not occupied by the government is still
needed for public purpose. ATO did not present
evidence as they countered there was no need to do
so, being that almost 1/2 of the entire property has
already been devoted to public purpose
RTC held against ATO, ruling that the additional area
submitted for expropriation is not needed by ATO for
public purpose
RTC adopted commissioners report which fixed the
just compensation using the current market value of the
lot in 1999 (at the time of the issuance of the writ of
possession - because this is the time of legal
acquisition of property).
ATO filed a notice of appeal and record on appeal, the
entire records were then transmitted to the CA. CA
affirmed RTC decision. MR was denied. PR under Rule 45
was filed.
ATO contends that the just compensation fixed by the
trial court based on the market value of the property
after the commencement of the expropriation
proceedings contradicts established jurisprudence
ATO also contends that the just compensation for the
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entire lot should be fixed in the amount based on its
assessed value in 1956
Issue:
WON just compensation should be reckoned from the time
of actual taking or at the issuance of the writ of possession
WON just compensation for the entire property should be
fixed in the amount based on its assessed value in 1956
Held:
1. SC agrees with ATO. It said that the value of the
property as it was when the government took possession of
the land represents its true value for just compensation, not
as of the time of the institution of the expropriation
proceeding.
2. SC disagreed with ATO. It ruled that there is nothing on
record that ATO occupied the remaining portion of the
property (back in 1956, only a portion of the lot was
occupied). To add to that, neither did it ever present proof
that said unoccupied portion is necessary for public use.

Therefore, the Petition is PARTIALLY GRANTED - CA
decision is modified in the sense that it was wrong in
computing just compensation based on the market value at
the time of the issuance of the writ of possession.
11. Yujuico vs. Atienza, Jr 472 SCRA 463
On 8 December 1995, the City Council of Manila enacted
an Ordinance authorizing the City Mayor to acquire by
negotiation or expropriation certain parcels of land for
utilization as a site for the Francisco Benitez Elementary
School. The Ordinance provides that an amount not to
exceed the fair market value of the land then prevailing in
the area will be allocated out of the Special Education Fund
(SEF) of the City of Manila (City). Failing to acquire the
land by negotiation, the City filed a case for eminent
domain against petitioner as owner of the property. On
RTC, the case is in favor of the City. The judgment became
final and executory, no appeal having been interposed by
either party. On 6 April 2001, petitioner filed a Motion for
Execution of Judgment which the trial court granted.
Pursuant to a Writ of Execution, the branch sheriff served a
Notice of Garnishment on the funds of the City deposited
with the Land Bank of the Philippines, YMCA Branch,
Manila (Land Bank) to satisfy the judgment. Invoking
jurisprudence holding that public funds cannot be made
subject to garnishment, the City filed a motion to quash the
Notice of Garnishment.
On 6 June 2002, petitioner filed a Petition for Mandamus
against the members of the CSB, the same respondents in
the petition for contempt of court, seeking to compel them
to pass a resolution appropriating the amount necessary to
pay the balance of the just compensation awarded to
petitioner. Upon petitioners motion, it directed its
consolidation with the expropriation case before Branch 15.
In a Decision dated 9 October 2002, the lower court (Branch
15) granted the petition for mandamus. Specifically, it
ordered respondents to immediately pass a resolution
appropriating the necessary amount and the
corresponding disbursement thereof for the full and
complete payment of the balance of the court-adjudged
compensation still due petitioner. Respondents filed a
motion for reconsideration, which the trial court denied.
With respondents not interposing an appeal, the Decision
became final and executory. However, respondents filed a
Petition for Relief from Judgment,[43] wherein they also
prayed for a temporary restraining order (TRO) and a writ
of preliminary injunction. Respondents invoked excusable
negligence as a ground for their failure to seasonably file
an appeal. While it denied the application for TRO in view
of its prior order granting petitioners Motion for
Execution, the court granted the Petition for Relief from
Judgment. Finding the Order unacceptable, petitioner
elevated it to this Court by way of a petition for certiorari
under Rule 45.
Respondents assail the correctness and propriety of the
mode of appeal resorted to by petitioner. According to
them, the order granting the petition for relief from
judgment is an interlocutory order which cannot be made
the subject of an appeal. Respondents have correctly
pointed out that an interlocutory order cannot be made
subject to an appeal. However, when viewed in context,
the recitals of the petition clearly disclose and the Court is
convinced that the lower court committed grave abuse of
discretion amounting to lack or excess of jurisdiction when
it granted respondents petition for relief from judgment.
While this case should have been elevated to this Court not
by way of a petition for review under Rule 45 but through
a special civil action for certiorari under Rule 65, in the
exercise of our sound discretion and in order to write finis
to this case which has needlessly dragged on for so long,
we shall treat the petition as a special civil action for
certiorari. After all, it was filed within the reglementary
period for the filing of a Rule 65 petition. Anent the alleged
breach of the rule on hierarchy of courts, the doctrine is not
an iron-clad dictum. The rule may be relaxed when
exceptional and compelling circumstances warrant the
exercise of this Courts primary jurisdiction. In this case,
the judgment sought to be satisfied has long attained
finality and the expropriated property has been utilized as
a school site for five (5) years now; yet, the awarded just
compensation has not been fully paid. These
circumstances, in the Courts estimation, merit the
relaxation of the technical rules of procedure to ensure that
substantial justice will be served.
Concerning petitioners alleged failure to implead the CSB
or its new members before the trial court, respondents
argue that since there are five (5) new members in the CSB
any decision in the case requiring the CSB to act as a body
would prove to be legally impossible. The former members
of the CSB could no longer be compelled to act according
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to the orders of the Court since they no longer have the
capacity to do so. On the other hand, respondents
continue, the new members cannot be directed to comply
with the Courts judgment either; they have never been
impleaded in the case; thus, the Court never acquired
jurisdiction over their persons.
ISSUE: WON respondent is justified in not paying the
petitioner her just compensation.
HELD: NO. While this Court recognizes the power of LGU
to expropriate private property for public use, it will not
stand idly by while the expropriating authority maneuvers
to evade the payment of just compensation of property
already in its possession. The notion of expropriation is
hard enough to take for a private owner. He is compelled
to give up his property for the common weal. But to give it
up and wait in vain for the just compensation decreed by
the courts is too much to bear. In cases like these, courts
will not hesitate to step in to ensure that justice and fair
play are served. The notion of expropriation is hard
enough to take for a private owner. He is compelled to give
up his property for the common weal. But to give it up and
wait in vain for the just compensation decreed by the
courts is too much to bear. In cases like these, courts will
not hesitate to step in to ensure that justice and fair play
are served. The decision rendering just compensation in
petitioners favor was promulgated way back in the year
2000.[87] Five years have passed, yet the award still has
not been fully satisfied. The reversion of the expropriated
property to the petitioner would prove not to be a remote
prospect should respondents and the City they represent
insist on trudging on their intransigent course.
Sec. 4, RA 8974 (AN ACT TO FACILITATE THE
ACQUISITION OF RIGHT-OF-WAY, SITE OR
LOCATION FOR NATIONAL GOVERNMENT
INFRASTRUCTURE PROJECTS AND FOR OTHER
PURPOSES)
Section 4. Guidelines for Expropriation Proceedings. -
Whenever it is necessary to acquire real property for the
right-of-way or location for any national government
infrastructure project through expropriation, the
appropriate implementing agency shall initiate the
expropriation proceedings before the proper court under
the following guidelines:
(a) Upon the filing of the complaint, and after due notice to
the defendant, the implementing agency shall immediately
pay the owner of the property the amount equivalent to the
sum of (1) one hundred percent (100%) of the value of the
property based on the current relevant zonal valuation of
the Bureau of Internal Revenue (BIR); and (2) the value of
the improvements and/or structures as determined under
Section 7 hereof;
(b) In provinces, cities, municipalities and other areas
where there is no zonal valuation, the BIR is hereby
mandated within the period of sixty (60) days from the
date of the expropriation case, to come up with a zonal
valuation for said area; and
(c) In case the completion of a government infrastructure
project is of utmost urgency and importance, and there is
no existing valuation of the area concerned, the
implementing agency shall immediately pay the owner of
the property its proffered value taking into consideration
the standards prescribed in Section 5 hereof.
Upon compliance with the guidelines abovementioned, the
court shall immediately issue to the implementing agency
an order to take possession of the property and start the
implementation of the project.
Before the court can issue a Writ of Possession, the
implementing agency shall present to the court a certificate
of availability of funds from the proper official concerned.
In the event that the owner of the property contests the
implementing agencys proffered value, the court shall
determine the just compensation to be paid the owner
within sixty (60) days from the date of filing of the
expropriation case. When the decision of the court becomes
final and executory, the implementing agency shall pay the
owner the difference between the amount already paid and
the just compensation as determined by the court.
Sec. 19, RA 7160 (LOCAL GOVERNMENT CODE)
Section 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, or 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 the 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 the expropriated property shall
be determined by the proper court, based on the fair
market value at the time of the taking of the property.