Eminent Domain Who Exercises Power City of Manila v. Chinese Cemetery of Manila 40 Phil 349
Eminent Domain Who Exercises Power City of Manila v. Chinese Cemetery of Manila 40 Phil 349
Eminent Domain Who Exercises Power City of Manila v. Chinese Cemetery of Manila 40 Phil 349
ISSUE(S): Whether or not the City of Manila has the right to exercise the right of expropriation? And whether or not a private
property devoted for public use be expropriated?
The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public
character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo,
Ry. etc. Co., 72 Ohio St., 368.)
the record does not show conclusively that the plaintiff has definitely decided that there exists a necessity for the
appropriation of the particular land described in the complaint. Aside from insisting that there exists no necessity for the alleged
improvements, the defendants further contend that the street in question should not be opened through the cemetery. One of the
defendants alleges that said cemetery is public property. If that allegations is true, then, of course, the city of Manila cannot
appropriate it for public use. The city of Manila can only expropriate private property.
It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general community,
or neighborhood, or church, while the latter is used only by a family, or a small portion of the community or neighborhood. (11 C.
J., 50.)
Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses under
a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good faith for future use.
(Lewis on Eminent Domain, sec. 434, and cases cited.)
It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which fact,
in the general acceptation of the definition of a public cemetery, would make the cemetery in question public property. If that is
true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila has no authority or right under
the law to expropriate public property.
But, whether or not the cemetery is public or private property, its appropriation for the uses of a public street, especially
during the lifetime of those specially interested in its maintenance as a cemetery, should be a question of great concern, and its
appropriation should not be made for such purposes until it is fully established that the greatest necessity exists therefor.
*SCRA:
17.ID.; ID.; ID.; ID.; ID.Land already devoted to a public use cannot be taken by the public for another
use which is inconsistent with the first without special authority from the Legislature or authority granted
by necessary and reasonable implication.
24.ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.Held: That since the city of Manila is only permitted to condemn
private property for public use and since the Chinese Cemetery in the city of Manila is a public cemetery
already devoted to a public use, the city of Manila cannot condemn a portion of the cemetery for a public
street. City of Manila vs. Chinese Community of Manila., 40 Phil. 349, No. 14355 October 31, 1919