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SECOND DIVISION

G.R. No. L-38228 September 12, 1975

MARCIANO YACAPIN, Petitioner, vs. COURT OF FIRST INSTANCE OF MISAMIS ORIENTAL, Branch VIII, presided by HON. BERNARDO TEVES, and EUGENIA EDURIA, BERNARDA, TROPINO and PORFERIO, all surnamed EDURIA, APOLONIO LABALAN, PIO BAGONGON, ARCADIO and PEDRO EDURIA, or their representatives, Respondents.

AQUINO, J.:

Marciano Yacapin filed on February 6, 1974 the instant "petition for review on certiorari" of the order of execution dated February 6, 1973 issued in Civil Case No. 2598 of the Court of First Instance of Misamis Oriental entitled "Eugenia Eduria et al. vs. Pio Bagongon and Marciano Yacapin".chanroblesvirtualawlibrarychanrobles virtual law library

The petition was filed beyond the reglementary thirty-day period contemplated in Republic Act No. 5440. A copy of the order complained of was received by petitioner's counsel on February 9, 1973. Twenty-seven days later, he filed a motion for reconsideration which was denied in the lower court's order of December 19, 1973. A copy of that order was served on petitioner's counsel on January 3, 1974, when he had only three remaining days within which to file the petition for review. The instant petition was belatedly filed on February 6, 1974.chanroblesvirtualawlibrarychanrobles virtual law library

If the petition were treated as a special civil action of certiorari, the issue would be whether the lower court acted with grave abuse of discretion in ordering that the remaining 5,618 square meters of land in litigation should be delivered to the owners thereof. The antecedents of the instant incident are as follows:chanrobles virtual law library

The judgment sought to be executed refers to a parcel of land with an area of 12,075 square meters located at Barrio Agusan, Cagayan de Oro City. In that judgment the northern portion of the land with an area of 2,437.88 square meters was adjudicated to Marciano Yacapin "as owner and possessor" and the remainder with an area of 9,537.12 square meters, was divided equally among the five children of the original owner, Buenaventurada Salon (Decision dated May 9, 1969). Yacapin's portion is known as Lot 19177 covered by Original Certificate of Title No. P-934.chanroblesvirtualawlibrarychanrobles virtual law library

The original writ of execution dated January 22, 1972 directed the parties or "co-owners" to partition the land among themselves. The sheriff manifested on February 29, 1972 that he could not implement the execution because he and Teofilo Bacarrisas, a geodetic engineer, found that the land had an actual area of only 5,618 square meters and not 12,075 square meters.chanroblesvirtualawlibrarychanrobles virtual law library

On April 3, 1972, Bacarrisas, as a commissioner appointed by the lower court, reported that the northern portion of the land containing the area adjudicated to Marciano Yacapin had been eroded by the sea; that the eastern, southern and western boundaries thereof remained unaltered, and that only a portion with an area of 5,618 square meters, included within the southern portion of 9,537.12 square meters adjudicated to the heirs of Buenaventurada Salon, was existing.chanroblesvirtualawlibrarychanrobles virtual law library

On January 29, 1973 Yacapin filed a motion praying that his share of 2,437.88 square meters be taken from the existing area of 5,618 square meters and that the remainder thereof should be divided into five equal shares among the plaintiffs. He filed an objection to the report of Bacarrisas.chanroblesvirtualawlibrarychanrobles virtual law library

As already stated, the lower court issued an order dated February 6, 1973 wherein it found "that the northern portion of the land in litigation which was originally owned by the late Buenaventurada Salon with an area of 12,075 square meters has been eaten up by erosion of the sea inasmuch as this portion faces the Macajalar Bay of Cagayan de Oro and that only 5,618 square meters is left of the land in litigation". It ordered that the remainder of 5,618 square meters "be delivered to the owners pursuant to" its judgment. It is that order which is being assailed herein.chanroblesvirtualawlibrarychanrobles virtual law library

We hold that the lower court did not gravely abuse its discretion in issuing the questioned order. Yacapin could not possibly have any share in the remainder of 5,618 square meters because that portion (which is part of the southern portion adjoining Yacapin's northern portion) clearly belongs to the heirs of Buenaventurada Salon. Yacapin's share, which had long been segregated and of which he was the "administrator and possessor", happened to be under water.chanroblesvirtualawlibrarychanrobles virtual law library

The lower court did not deprive him of his share and did not alter its decision nor annul his free patent title. It was the sea that dispossessed Yacapin of the northern portion (See Aragon vs. Insular Government, 19 Phil. 223; Francisco vs. Government of the Philippine Islands, 28 Phil. 505; Government of the Philippines Islands vs. Cabangis, 53 Phil. 112). He alone should bear the loss of the northern portion (res periit domino suo).chanroblesvirtualawlibrarychanrobles virtual law library

Even without Bacarrisas' report, Yacapin presumably knew that his portion had been overrun by sea water as shown by the prayer in his motion for execution that the northern portion adjudicated to him in the decision of May 9, 1969 be taken from the "existing area" of 5,618 square meters. If that prayer were granted, then the absurd and unjust result would be that a part of the land which had been rightfully and definitely adjudicated to the heirs of Buenaventurada Salon would be ceded to him.chanroblesvirtualawlibrarychanrobles virtual law library

That solution would be unfair to the heirs of Salon whose share of the land had already been reduced from 9,537.12 square meters to 5,618 square meters. It was not their fault that Yacapin's northern portion is now part of the sea. It was the advance of the tidal waters which reduced the area of the land. That was force majeure. Yacapin and the heirs of Buenaventurada Salon were not co-owners of the land.chanroblesvirtualawlibrarychanrobles virtual law library

The lower court in issuing the order of February 6, 1973 simply exercised its inherent power "to control its process and orders so as to make them conformable to law and justice" (Sec. 5[g], Rule 135, Rules of Court).chanroblesvirtualawlibrarychanrobles virtual law library

Wherefore, the petition for certiorari is hereby dismissed with costs against the petitioner. So ordered.