8/12/2019 PLJ Volume 16 Number 4-5-01- Jorge Bocobo-The Regalian Doctrine

1/4

.....Qu :UVolume XVI .Numbers 4 S

PHILIPPINE

L W JOURN LOCTO ER and NOVEMBER 1936

.anttnls

The Regalian Doctrine By IO ) ge Bocobo

An Act to Provide for the Conservation, Disposition, and

PAGE151

Development of Mineral Lands and Minerals 154

Recent Decisions of the PhilipPine Supreme Court 207

- == -=_ .... -Publi6h.ed 1/ 1.(lnthly dw ing the academic year. Ju.ly til March i n d u ~ tSubscriptiOl1-Students I l.OO pm' annum; all otke-rs 1 5.00 per annU71t.

8/12/2019 PLJ Volume 16 Number 4-5-01- Jorge Bocobo-The Regalian Doctrine

2/4

PHILIPPINE LAW JOURNALVol. XVI OCTOBER lind NOVEMBER 19:16

Trl E REGALlAN DO CT HINEy J ORGE BOCORD 1

Nos. 45

The mining bill nOw under study by the Co mmi ttee onMines of the National Assembly adopts t.he B.egaiian doctrineby virtue of which all minerals, even those found in privatelands, belong to the State. There are three t heories on t hesubject of ownersh ip of minerals found in pri vate lands:

1. That the minerals belong t.o the owner of the soil invirtue of the pdnciple that whoever owns the soil also ownseverything above t to the sk ies, ;.me' unrller t to the center ofthe earth.

2. That they belong to the king or t.o th e State, This iscalled the Regalian doct rine, which is adopted by the miningbill referred to.

3. That the metal belongs to the finder on the th eo ry tha t.t is r s l lll iu8 without any ownel , and therefore it should eawarded to the first occupant.

The first theor ), obtains in FIance, England, l.ind the UnitedStates, The second theory, the Regalian doctrine, obtains inSpain, the Philippines, Mexico and the South A m e r i c ~ m republics ,The third theory is sustained by some jurists. The majorit.yof the Spanish jurists assail the Regalian doctrine. Amongthese ju rists are the eminent Manresa and Sanchez Roman.Incidentally, it should be noted that although these two authorsvet'y often disagree, they concur in rejectin g the Sp;:lIlish la won 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 add s that if this feudal theory is r ejected, as it should be.then there is no other ;:titel nati ve than to proclaim the com-munistic idea tha t all means and instruments of productionshould belong to everybody. Sanchez Roman aRrees with 1''1all-resa on this last point. Moreover, in advocating that mineral :;

LL.B., LL.D., Professo r of Civil LiI\\ and President of h ~ U n i v e r f ; i t ~of the P h i l i p p i n ~ s

8/12/2019 PLJ Volume 16 Number 4-5-01- Jorge Bocobo-The Regalian Doctrine

3/4

15: PHILIPPINE LAW JO URNALshould belong to the owner of the soil, Sanchez Romiin advances,among others, the following reasons:

1. That such principle, awarding minerals to the ownerof t he land rests upon t profound res pect for private property,whose co ncept does not. allow any limitation on the enjoyment

the owner.2. The minerals, which are considered part of t.he real prop-el'ly by virtue of the right of accession, should be long to the

owner of the principal thing, which is the land.3. This solution of the problem is in harmony with the othel'

principles of Civil Law, which define the extent of ownershi p.The writer of these lines has quoted these two eminent juristsin order to show that. although the Civil Code of Spain and theSpanish mining laws (including those in force here during theSpanish regime) have adopted the Regalian doctrine, yet suchpositive legislation does not agrce with the best thought amongthe Spanish ju r ists .

However, it seems that this quest ion has been settled bythe Constit.ution of the Philippines in favor of the Regaliandoctrine. 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 publicdomain, water$, mJ1 f'l'fIis, of potential c n e r g ~ , and other nntul'al l'eSctlurces

f 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, Acco rd ing to Sections 24 and 28 of the bill, prospectorsmay enter upon private lands by paying just compensation, ~ mwith the owner 's per mission. If t he landowner refuses to grant.permission, the prospector may en ter upon the land upon depo siting with the Court an amount for damages to crops and im-provements, The landowner has no righ t to the minerals.

It seems to the writer that the owner of the private landshould be preferred in regard to prospecti ng and l o ~ t i n minesin his own land. This is done in the Spanish Mining Law of1868, Section 16, in regard to the placers. provided the land-

8/12/2019 PLJ Volume 16 Number 4-5-01- Jorge Bocobo-The Regalian Doctrine

4/4

T H E REGALIAN D O C l R ~ r -.0 . .fore be open to explorat ion and development by anybody, theproper solution is that the landowner should be preferred inlocating claims on his own la nd. f he does not c.are to do so,and a third person wants to prospect, a special proceeding forexpropriation should be instituted by the latter and the Courtswill declare whether the cultivation of the land 01 the explora-liun for mineral:; s more in keeping wi th the public interest.f the Courts decide that the land should be explored and locatedfor minerals, then the owner should be compensated not onlyfor the surface taken but he should also be given some sh{lreat interest in the mining venture,

The policy proposed in the mining bill of openi ng pr ivalelands to explura tion for minerals instead of giving preferenceto the landowneJ, may lead to several evil s, among which thefollowing may be mentioned:1. There may be violent conflicts between the prosvectorand the owner of the land when the latter refuses to allowexploration bJ thi rd p.,,ons. It is true that the mining bill

allows the Courts to fix the damages in such case, b ~ t the billdoes not give the landowner more than compensat ion for thecrops and improvements, and so he may not like the idea of hi sland being e n t e r ~ d upon by oth ers,2. The average Filipino citizen has always cherished t heidea 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 Spanishgovernment in favor of the landowner-might cause disillusionand discontent among hundreds of thousands of small fa rmersall over the islands wh en they see the gold and othe r valuablemetals 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 S ~ the impairment of one of the most sacredsentiments in the heart of the Filipino, and that is, his love forhis OWIl land. This is a civic virtue which wise statesmanshipshould at all times conserve and uphold, for it is one of thebulwarks of every stable government,