consideration was perfected prior to November 15, 1935,

when the Government of the Commonwealth was

inaugurated; and according to the laws existing at that
time, as construed and applied by this court in McDaniel vs.
Apacible and Cuisia (42 Phil., 749), a valid location of a
mining claim segregated the area from the public domain.

[No. 45859. September 28, 1938]

4. ID. ; ID. ; ID. ; ID.·The legal effect of a valid location of a
mining claim is not only to segregate the area from the
GOLD CREEK MINING CORPORATION, petitioner, vs. public domain,
EULOGIO RODRIGUEZ, Secretary of Agriculture and
Commerce, and QUIRICO ABADILLA, Director of the
Bureau of Mines, respondents. 260

1. CONSTITUTIONAL LAW; CONSTITUTION OF THE

260 PHILIPPINE REPORTS ANNOTATED
PHILIPPINES; ALIENATION OF NATURAL
RESOURCES; MINERAL LANDS.·The fundamental Gold Creek vs. Rodriguez and Abadilla
principle of constitutional construction is to give effect to
the intent of the framers of the organic law and of the but to grant to the locator the beneficial ownership of the
people adopting it. The intention to which force is to be claim and the right to a patent therefor upon compliance
given is that which is embodied and expressed in the with the terms and conditions precribed by law. "Where
constitutional provisions themselves. It is clear that section there is a valid location of a mining claim, the area becomes
1 of Article XII of the Constitution of the Philippines segregated from the public domain and the property of the
prohibits the alienation of natural resources, with the locator." (St. Louis Mining & Milling Co. vs. Montana
exception of public agricultural land.. It seems likewise Mining Co., 171 U. S., 650, 655; 43 Law. ed., 320, 322.)
clear that the term "natural resources", as used therein,
includes mineral lands of the public domain, but not 5. ID. ; ID. ; ID. ; ID.·As the mining claim under
mineral lands which at the time the provision took effect no consideration no longer formed part of the public domain
longer formed part of the public domain. The reason for this when the provisions of Article XII of the Constitution
conclusion is found in -the terms of the provision itself. This became effective, it does not come within the prohibition
prohibition is directed against the alienation of such natural against the alienation of natural resources; and the
resources as were declared to be the property of the State. petitioner has the right to a patent therefor upon
And as only "agricultural, timber, and mineral lands of the compliance with the terms and conditions prescribed by law.
public domain" were declared property of the State, it is fair
to conclude that mineral lands which at the time the 6. ID.; ID.; ID.; ID.; MANDAMUS.·Considering that the
constitutional provision took effect no longer formed part of refusal of the respondents to act on the application for a
the public domain, do not come within the prohibition. patent on its merits was due to their misinterpretation of a
certain constitutional and statutory provisions, following
2. ID.; ID.; ID.; ID.; PRESUMPTION.· A constitutional the precedent established by the Supreme Court of the
provision must be presumed to have been framed and United States in Wilbur vs. United States ex rel. Krushnic
adopted in the light and understanding of prior and existing (280 U. S., 306; 74 Law. ed., 445), a writ of mandamus
laws and with reference to them. "Courts are bound to should issue directing the respondents to dispose of the
presume that the people adopting a constitution are application for patent on its merits, unaffected by the
familiar with the previous and existing laws upon the prohibition against the alienation of natural resources
subjects to which its provisions relate, and upon which they contained in section 1 of Article XII of the Constitution and
express their judgment and opinion in its adoption." (Barry in Commonwealth Act No. 137.
vs. Truax, 13 N. D., 131; 99 N. W., 769; 65 L. R. A., 762.)
ORIGINAL ACTION in the Supreme Court. Mandamus.
3. ID. ; ID. ; ID. ; ID.·The location of the mining claim under The facts are stated in the opinion of the court.
 Claro M. Recto and DeWitt, Perkins & Ponce Enrile for prior to November 15, 1935, petitioner filed with the
petitioner. mining recorder an application for patent, together with a
Solicitor-General Tuason and Ramon Diokno for certificate showing that more than P1,600, worth of labor
respondents. and/or improvements had been expended by petitioner
upon said claim, and with the plat and field notes above
ABAD SANTOS, J.: mentioned; having previously posted a copy of such plat,
together with notice of said application for patent in a
This petition seeks 'to compel the respondents, as Secretary
conspicuous place upon said claim; and filed a copy of such
of Agriculture and Commerce and as Director of the
plat and of such notice in the office of said mining recorder,
Bureau of Mines, respectively, to approve petitioner's
as well as an affidavit of two persons that such notice had
application for patent for a certain mining claim and
been duly posted; that prior to November 15, 1935, the
prepare the necessary papers in relation thereto, and to
notice of
forward and submit said papers for the signature of the
President of the Philippines. 262
The petition alleges that petitioner owns the Nob Frac-

261 262 PHILIPPINE REPORTS ANNOTATED

Gold Creek vs. Rodriguez and Abadilla
VOL. 66, SEPTEMBER 28, 1938 261
petitioner's application for patent was forwarded by the
Gold Creek vs. Rodriguez and Abadilla
mining recorder to the division of mines, so that the latter
could order the publication of said notice, as required by
tion mineral claim, situated in the barrio of Gomok,
law; that the publication of the said notice was made once a
municipality of Itogon, sub-province of Benguet, Mountain
week for a period of sixty days in the "Philippines Herald,"
Province, and located on public lands by C. L. O'Dowd in
"El Debate," and the Official Gazette, commencing
accordance with the provisions of the Act of Congress of
February 13, 1936; that the sum of P113.59 13.59 was
July 1, 1902, as amended by the Act of Congress of
tendered to respondents, as payment for the purchase price
February 6, 1905, and of Act No. 624 of the Philippine
of said claim, the area of which is 4.5434 hectares; and that
Commission, relative to the location of mining claims; that
petitioner has requested the respondents, as Secretary of
said claim was located on January 1, 1929, and the original
Agriculture and Commerce and as Director of the Bureau
declaration of location registered in the office of the mining
of Mines, respectively, to approve its application for patent,
recorder of Benguet, Mountain Province, on January 7,
and to prepare the necessary papers relative to the
1929; that from March 16 to 17, 1934, an amended location
issuance thereof and to submit such papers for the
on the premises was made, for which an amended
signature of the President of the Philippines, but the
declaration of location Was registered in the office of the
respondents have failed and refused, and still fail and
mining recorder on April 3, 1934; that petitioner by itself
refuse, to do so.
and its predecessors in interest, has been in continuous and
Petitioner claims that it is entitled, as a matter of right,
exclusive possession of said claim from the date of location
to the patent applied for, having complied with all the
thereof; that prior to August 9, 1933, petitioner filed in the
requisites of the law f or the issuance of such patent.
office of the Director of Lands an application for an order of
Respondents, in their answer, admit some allegations of
patent survey of said claim, which survey was duly
the petition and deny others, and, by way of special
authorized by the Secretary of Agriculture and Commerce
defense, allege that "petitioner was not and is not entitled
and performed by a mineral land surveyor in the former
as a matter of right to a patent to the 'Nob Fraction' claim
division of mines, Bureau of Science, from August 9, 1933,
because the Constitution provides that 'natural resources,
to April 30, 1934, at the expense of petitioner; that the
with the exception of public agricultural land, shall not be
return of the surveyor, the plat and field notes of the claim
alienated'; and that the respondents are, not only under no
and certificate that more than P1,600 worth of labor and
obligation to approve petitioner's application for a patent to
improvements had been expended on said claim, were
said claim and to prepare the necessary papers in relation
approved by the Director of the Bureau of Science; that
thereto, but, also, in duty bound to prevent the issuance of
said patent and the preparation of the aforesaid papers, inauguration of the Government established under this
because they have sworn to support and defend the Constitution. Natural resources, with the exception of public
Constitution." agricultural land, shall not be alienated, and no license, concession,
This is one of several cases now pending in this court or lease for the exploitation, development, or utilization of any of
which call for an interpretation, a determination of the the natural resources shall be granted for a period exceeding
meaning and scope, of section 1 of Article XII of the twenty-five years, renewable for another twenty-five years, except
Constitution, with reference to mining claims. The cases as to water
have been instituted as test cases, with a view to
determining the status, under the Constitution and the 264
Mining Act
264 PHILIPPINE REPORTS ANNOTATED
263
Gold Creek vs. Rodriguez and Abadilla

VOL. 66, SEPTEMBER 28, 1938 263 rights for irrigation, water supply, fisheries, or industrial uses other
Gold Creek vs. Rodriguez and Abadilla than the development of water power, in which cases beneficial use
may be the measure and the limit of the grant,"
(Commonwealth Act No. 137), of the holders of unpatented
The fundamental principle of constitutional construction is
mining claims which were located under the provisions of
to give effect to the intent of the framers of the organic law
the Act of Congress of July 1, 1902, as amended.
and of the people adopting it. The intention to which force
In view of the importance of the matter, we deem it
is to be given is that which is embodied and expressed in
conducive to the public interest to meet squarely the f
the constitutional provisions themselves. It is clear that the
fundamental question presented, disregarding for that
foregoing constitutional provision prohibits the alienation
purpose certain discrepancies found in the pleadings filed
of natural resources, with the exception of public
in this case. This is in accord with the view expressed by
agricultural land. It seems likewise clear that the term
the Solicitor-General in his memorandum where he says
"natural resources," as used therein, includes mineral
that "the statements of facts in both briefs of the
lands of the public domain, but not mineral lands which at
petitioners may be accepted for the purpose of the legal
the time the provision took effect no longer formed part of
issues raised. We deny some of the allegations in the
the public domain. The reason for this conclusion is found
petitions and allege new ones in our answers, but these
in the terms of the provision itself. It first declares that all
discrepancies are not of such a nature or importance as
agricultural, timber, and mineral lands of the public
should necessitate introduction of evidence before the cases
domain, etc., and other natural resources of the Philippines,
are submitted for decision. From our view of the cases,
belong to the State. It then provides that "their disposition,
these may be submitted on the facts averred in the
exploitation, development, or utilization Shall be limited to
complaints, leaving out the difference between the
citizens of the Philippines, or to corporations or
allegations in the pleadings to be adjusted or ironed out by
associations at least sixty per centum of the capital of
the parties later, which, we are confident, can be
which is owned by such citizens, subject to any existing-
accomplished without much difficulty."
right, grant, lease, or concession at the time of the
Section 1 of Article XII of the Constitution reads as
inauguration of the Government established under this
follows:
Constitution." Next comes the prohibition against the
"SECTION 1. All agricultural, timber, and mineral lands of the alienation of natural resources. This prohibition is directed
public domain, waters, minerals, coal, petroleum, and other mineral against the alienation of such natural resources as were
oils, all forces of potential energy, and other natural resources of the declared to be the property of the State. And as only
Philippines belong to the State, and their disposition, exploitation, "agricultural, timber, and mineral lands of the public
development, or utilization shall be limited to citizens of the domain" were declared property of the State, it is fair to
Philippines, or to corporations or associations at least sixty per conclude that mineral lands which at the time the
centum of the capital of which is owned by such citizens, subject to constitutional provision took effect no longer .formed part
any existing right, grant, lease, or concession at the time of the of the public domain, do not come within the prohibition.
 This brings us to the inquiry of Whether the mining 266
claim involved in the present proceeding formed part of the
public domain on November 15, 1935, when the provisions
266 PHILIPPINE REPORTS ANNOTATED
265 Gold Creek vs. Rodriguez and Abadilla

VOL. 66, SEPTEMBER 28, 1938 265 with the terms and conditions prescribed by law. "Where
there is a valid location of a mining claim, the area
Gold Creek vs. Rodriguez and Abadilla
becomes segregated from the public domain and the
property of the locator." (St. Louis Mining & Milling Co. vs.
of Article XII of the Constitution became effective in Montana Mining Co., 171 U. S., 650, 655; 43 Law. ed., 320,
accordance with section 6 of Article XV thereof. In deciding 322.) "When a location of a mining claim is perfected it has
this point, it should be borne in mind that a constitutional the effect of a grant by the United States of the,right of
provision must be presumed to have been framed and present and exclusive possession, with the right to the
adopted in the light and understanding of prior and exclusive enjoyment of all the surface ground as well as of
existing laws and with reference to them. "Courts are all the minerals within the lines of the claim, except as
bound to presume that the people adopting a constitution limited by the extralateral rights of adjoining locators; and
are familiar with the previous and existing laws upon the this is the locator's right before as well as after the
subjects to which its provisions relate, and upon which they issuance of the patent. While a lode locator acquires a
express their judgment and opinion in its adoption." (Barry vested property right by virtue of his location made in
vs. Truax, 13 N. D., 131; 99 N. W., 769; 65 L. R. A., 762.) compliance with the mining laws, the fee remains in the
It is not disputed that the location of the mining claim government until patent issues." (18 R. C. L., 1152.) In
under consideration was perfected prior to November 15, Noyes vs. Mantle (127 U. S., 348, 351; 32 Law. ed., 168,
1935, when the Government of the Commonwealth was 170), the court said:
inaugurated; and according to the laws existing at that
time, as construed and applied by this court in McDaniel "There is no pretense in this case that the original locators did not
vs. Apacible and Cuisia (42 Phil., 749), a valid location of a comply with. all the requirements of the law in making the location
mining claim segregated the area from the public domain. of the Pay Streak Lode Mining claim, or that the claim was ever
Said the court in that case: "The moment the locator abandoned or forfeited. They were the discoverers of the claim.
discovered a valuable mineral deposit on the lands located, They marked its boundaries by stakes, so that they could be readily
and perfected his location. in accordance with law, the traced. They posted the required notice, which was duly recorded in
power of the United States Government to deprive him of compliance with the regulations of the district. They had thus done
the exclusive right to the possession and enjoyment of the all that was necessary under the law f or the acquisition of an
located claim was gone, the lands had become mineral exclusive right to the possession and enjoyment of the ground. The
lands and they were exempted from lands that could be claim was thenceforth their property. They needed only a patent of
granted to any other person. The reservations of public the United States to render their title perfect, and that they could
lands cannot be made so as to include prior mineral obtain at any time upon proof of what they had done in locating the
perfected locations; and, of course, if a valid mining claim, and of expenditures to a specified' amount in developing it.
location is made upon public lands afterward included in a Until the patent issued the government held the title in trust for
reservation, such inclusion or reservation does not affect the locators or their vendees. The ground itself was not afterwards
the validity of the former location. By such location and open to sale."
perfection, the land located is segregated from the public
domain even as against the Government. (Union Oil Co. vs. In a recent case decided by the Supreme Court of the
Smith, 249 U. S., 337; Van Ness vs. Rooney, 160 Cal., 131; United States, it was said:
27 Cyc., 546.)" "The rule is established by innumerable decisions of this
The legal effect of a valid location of a mining claim is
267
not only to segregate the area from the public domain, but
to grant to the locator the beneficial ownership of the claim
and the right to a patent therefor upon compliance VOL. 66, SEPTEMBER 28, 1938 267
 Gold Creek vs. Rodriguez and Abadilla the right to a patent therefor upon compliance with the
terms and conditions prescribed by law.
court, and of state and lower Federal courts, that when the It remains to consider whether mandamus is the proper
location of a mining claim is perfected under the law, it has remedy in this case, In Wilbur vs. United States ex rel.
the effect of a grant by the United States of the right of Krushnic, supra, the Supreme Court of the United States
present and exclusive possession. The claim is -property in held that "mandamus will lie to compel the Secretary of the
the fullest sense of that term; and may be sold, transferred, Interior to dispose of an application for a patent for a
mortgaged, and inherited without infringing any right or mining claim on its merits, where his refusal fusal to do so
title of the United States. The right of the owner is taxable is based on his misinterpretation of a statute." In the
by the state; and is 'real property,' subject to the lien of a course of its decision the court said: "While the decisions of
judgment recovered against the owner in a state or this court exhibit a reluctance to direct a writ of mandamus
territorial court. (Belk vs. Neagher, 104 U. S., 279, 283; 26 against an executive officer, they recognize the duty to do
L. ed., 735, 737; 1 Mor. Min. Rep., 510; Manuel vs. Wulff, so by settled principles of law in. some cases. (Lane vs.
152 U. S., 505, 510, 511; 38 L. ed., 532-534; 14, Sup. Ct. Hoglund, 244 U. S., 174, 181; 61 L. ed., 1066, 1069; 37 Sup.
Rep., 651; 18 Mor. Min. Rep., 85; Elder vs. Wood, 208 U. S., Ct. Rep., 552; and case cited.) In Roberts vs. United States
226, [317] 232; 52 L. ed., 464, 466; 28 Sup. Ct Rep., 263; (176 U. S., 221, 231; 44 L. ed., 443, 447; 20 Sup. Ct. Rep.,
Bradford vs. Morrison, 212 U. S., 389; 53 L. ed., 564; 29 376), referred to and quoted in the Hoglund case, this court
Sup. Ct. Rep., 349.) The owner is not required to purchase said:
the claim or secure patent f from the United States; but so
" 'Every statute to some extent requires construction by the public
long as he complies with the provisions of the mining laws,
officer whose duties may be defined therein. Such officer must read
his possessory right, for all practical purposes of
the law, and he must therefore, in a certain sense, construe it, in
ownership, is as good as though secured by patent." (Wilbur
order to form a judgment from its language what duty he is directed
vs. United States ex rel. Krushnic, 280 U. S., 306; 74 Law.
by the statute to perform. But that does not necessarily and in all
ed., 445.)
cases make the duty of the officer anything other than a purely
The Solicitor-General admits in- his memorandum that
ministerial one. If the law direct him to perform an act in regard to
the decision in the McDaniel case is determinative of the
which no discretion is committed to him, and which, upon the facts
fundamental question involved in the instant case. But 'he
existing, he is bound to perform, then that act is ministerial,
maintains "that this decision is based on a
although depending upon a statute which requires, in some degree
misapprehension of the authorities on which the court
a construction of its language by the officer. Unless this be so, the
relied," and that it "is not well founded and should be
value of this writ is very greatly impaired. Every executive officer
abandoned." We do not deem it necessary to belabor this
whose duty is plainly devolved upon him by a statute might refuse
point. Whether wellfounded or not, the decision in that case
to perform it, and when his refusal is brought before the court he
was the law when section 1 of Article XII of the
might successfully plead that the performance formance of the duty
Constitution became effective; and even if we were disposed
involved the construction of a statute by him, and therefore it was
to overrule that decision now, our action could not affect
not ministerial, and the court would on that account be powerless to
rights already fixed under it.
give relief. Such a
Our conclusion is that, as the mining claim under
consideration no longer formed part of the public domain 269
when the provisions of Article XII of the Constitution
became effective, it does not come within the prohibition
VOL. 66, SEPTEMBER 28, 1938 269
against the alienation of natural resources; and the
petitioner has Gold Creek vs. Rodriguez and Abadilla

268 limitation of the powers of the court, we think, would be most

unforfunate, as it would relieve from judicial supervision all
268 PHILIPPINE REPORTS ANNOTATED executive officers in the performance of their duties, whenever they
should plead that the duty required of them arose upon the
Gold Creek vs. Rodriguez and Abadilla
construction of a statute, no matter how plain its language, nor how
plainly they violated their duty in refusing to perform the act Constitution was originally embodied in the report
required.' " submitted by the Committee on Nationalization and
Preservation of Lands and Other Natural Resources to the
In the instant case, we are not justified, upon the state of Constitutional Convention on September 17, 1934. It was
the pleadings, to grant the relief sought by the petitioner. later inserted in the first draft of the Constitution as
Considering, however, that the refusal of the respondents section 13 of Article XIII thereof, and finally incorporated
to act on the application for a patent on its merits was due as we find it now. Slight have been the changes undergone
to their misinterpretation of certain constitutional and by the proviso from the time it came out of committee until
statutory provisions, following the precedent established by it was finally adopted. When first submitted and as
the Supreme Court of the United States in Wilbur vs. inserted in the first draft of the Constitution it reads:
United States ex rel Krushnic, supra, a writ of mandamus "subject to any right, grant, lease, or concession existing in
should issue directing the respondents to dispose of the respect thereto on the date of the adoption of the
application for patent on its merits, unaffected by the Constitution." As finally adopted, the proviso reads:
prohibition against the alienation of natural resources "subject to any existing right, grant, lease, or concession at
contained in section 1 of Article XII of the Constitution and the time of the inauguration of the Government established
in Commonwealth Act No. 137. So ordered. under this Constitution." This recognition is not mere
graciousness but springs from the just character of the
Avanceña, C. J., Villa-Real, Imperial, and Diaz, JJ.,
government established; The framers of the Constitution
concur.
were not obscured by the rhetoric of democracy or swayed
LAUREL, J., concurring in the result: to hostility by an intense spirit of nationalism. They well
knew that conservation of our natural resources did not
This is a case, as I understand it, of a mining claim whose mean destruction or annihilation of acquired property
location was duly perfected under a law of the Congress of rights. Withal, they erected a government neither episodic
the United States prior to the inauguration of our nor stationary but well-nigh conservative in the protection
Commonwealth. This law of the Congress is the Act of July of property rights. This, notwithstanding nationalistic and
1, 1902, the first Congressional legislation that gave us a socialist traits discoverable upon even a sudden dip into a
cherished bill of rights. variety of the provisions embodied in the instrument.
I, express the opinion that a perfected location of a But while I regard the recognition and protection of the
mining claim is an "existing right" within the purview of right here invoked inevitable, I feel constrained to withhold
section 1, Article XII, of our Constitution. It is a substantial my assent to the invocation of the case of McDaniel vs.
property right and permits the locator to take all the Apacible and Cuisia ([1922], 42 Phil., 749), insofar as
necessary steps leading to the issuance of a patent. It is not citation thereof may imply unqualified acceptance of or ad-
contingent or expectant because contingency or expectation
271
is neither property nor property right. It is a legal right in
the sense that it is recognized by law and acknowledged by
the Constitution. And recognition im- VOL. 66, SEPTEMBER 28, 1938 271

270 Gold Creek vs. Rodriguez and Abadilla

herence to the broad rule that where there is a valid and

270 PHILIPPINE REPORTS ANNOTATED
perfected location of a mining claim, the area covered is not
Gold Creek vs. Rodriguez and Abadilla only thereby segregated f from the body of the public
domain but becomes the private property of the locator. My
plies protection. I must, therefore, reject the suggestion opinion is that while the locator, under the circumstances,
that by the interposition of the Constitution such a right secures the beneficial ownership or the dominium utile, the
had been wiped out or frittered away notwithstanding the government retains the bare ownership or the dominium
saving clause therein contained and now to be referred directum, until the locator's claim ripens into full
erred to. ownership upon f full compliance with all the requirements
The saving clause in the section involved of the of the law for the issuance of a patent.
 I, therefore, concur in the result. order the respondents to- approve the petitioner's
application for patent, or should we, on the contrary, deny
CONCEPCION, J., dissenting: the remedy prayed for? In other words, should we hold that
the petitioner is entitled to the patent applied for, or on the
With regret, I have to dissent from the opinion of my
contrary, that it has not acquired such right?
learned colleagues in this very important case now under
Section 1 of Article XII of the Constitution provides as
advisement We are concerned with the correct construction
follows:
of a constitutional prohibition in a matter directly related
to the conservation of a great portion of our national "All agricultural, timber, and mineral lands of the public domain,
wealth: the mines. waters, minerals, coal, petroleum, and other mineral oils, all forces
Because of the refusal of the respondents, the Secretary of potential energy, and other natural resources of the Philippines
of Agriculture and Commerce and the Director of the belong to the State, and their disposition, exploitation,
Bureau of Mines, to approve the application of the development, or utilization shall be limited to citizens of the
petitioner, Gold Creek Mining Company, for the issuance in Philippines, or to corporations or associations at least sixty per
its favor of the patent for or title to a mining claim, and to centum of the capital of which is owned by such citizens, subject to
prepare the papers necessary for the issuance of said any existing right, grant, lease, or concession at the time of the
patent and submit them f or the signature of the President inauguration of the Government established under this
of the Philippines, the petitioner seeks to obtain from this constitution. Natural resources, with the exception of public
court a writ of mandamus to compel the respondents to do agricultural land, shall not be alienated, and no license, concession,
what they refused to do. Instead of granting or dismissing or lease for the exploitation, development, or utilization of any of
the petition, the majority orders the respondents to act on the natural resources shall be granted for a period exceeding
the application, which,·they rule,·is not affected by the twenty-five years renewable for another twenty-five years, except as
prohibition against the alienation of natural resources to water rights for irrigation, water supply, fisheries, or industrial
contained in section 1 of Article XII of the Constitution and uses other than the development of water power, in which cases
in Commonwealth Act No. 137. beneficial use may be the measure and the limit of the grant."
This is the first point on which I disagree with the
majority, for the reason that, as alleged in the petition, the 273
respondents refused to approve the petitioner's application
and, on the other hand, that the Solicitor-General pointed VOL. 66, SEPTEMBER 28, 1938 273
out in his memorandum that the statement of facts con-
Gold Creek vs. Rodriguez and Abadilla
272
The majority maintains that the foregoing constitutional
272 PHILIPPINE REPORTS ANNOTATED provision prohibits the alienation of natural resources and
that the term "natural resources" includes mineral lands of
Gold Creek vs. Rodriguez and Abadilla the public domain, but not the mineral lands which at the
time the provision became effective no longer formed part
tained in the briefs of the petitioner may be accepted for of the public domain. The majority further states that the
the purpose of deciding the legal questions raised; and claim in question, having been located prior to the
although there are some discrepancies between the inauguration of the Commonwealth, has ceased to be land
allegations of the parties, they are not of such nature or of the public domain and, therefore, does not fall within the
moment as would require the introduction of evidence prohibition contained in the foregoing section which
before the case is submitted for decision. In my opinion, expressly provides. that the natural resources shall not be
this court should now dispose of the petition for mandamus alienated.
on its merits, granting or dismissing the same, instead of It is true that the mining claim in question was located
ordering the respondents to act on the petitioner's prior to the inauguration of the Commonwealth on
application, it being a fact that said respondents had November 15, 1935. It may be conceded that a location,
already acted by denying said application. once made and perfected, .operates to segregate the land
Now, considering the petition on its merits, should we from the public domain, but this in no wise means that the
Government parts with the absolute ownership over the claim adverse to the application for a patent, the
mining claim by the mere fact of its location. Location corresponding action should be instituted in the proper
should only be understood as segregating the land located court to determine who is entitled to the patent; but no
from the public domain in the sense that it is no longer period is fixed within which the litigation should be
open to location or susceptible of appropriation by another, decided. The law finally requires the payment of a certain
while the locator has not lost his right to or abandoned the sum for every hectare of land covered by the mining claim
mining claim. To give 'a broader meaning and a greater before the patent is issued; but it does not prescribe the
effect to the location of a mining claim is to contend· period within which to pay said sum, which is the price for
against the express provisions of sections 36, 37 and 39 of the alienation of the land by the Government in favor of the
the Act of Congress of July 1, 1902, as amended by section applicant for the title or patent.
9 of another Act of Congress of February 6, 1905,·that I now ask: Within what time must the conditions
location is all that is necessary to acquire absolute prescribed by the law be complied with in order that the
ownership over a located mining claim. This is not the-law. locator may become entitled to the patent? I gather from
From the location of a claim to the issuance of the patent the majority opinion that, as long as the location of the
for or title to the land, is a far cry. Location, without more, mining claim was perfected before the inauguration of the
confers only the right of possession. Thus section 36 of the new Government of the Philippines on November 15, 1935,
Act of Congress of February 6, 1905 refers to the "manner the other conditions may be complied with even after said
of recording, and amount of work necessary to hold date in order that the locator may acquire a right to the
possession of a mining claim." Section 39 of the same Act patent. I dissent on this fundamental point from the
also speaks of the right of possession of the claim, and the
275
right to the issuance of a patent only arises after the
execution of certain works and acts prescribed by law, such
VOL. 66, SEPTEMBER 28, 1938 275
274
Gold Creek vs. Rodriguez and Abadilla

274 PHILIPPINE REPORTS ANNOTATED

majority opinion. I maintain that in prohibiting the
Gold Creek vs. Rodriguez and Abadilla alienation of natural resources, save any existing right, the
Constitution does not refer to the right of location or to the
as the labor or improvements made each year (sec. 36); the inherent right of possession, or to any inchoate or
full description and identification of the land by means of contingent right which are only a means to bring about
plat and field notes (sec. 37); the notice and publication of another right; it refers only to the right to obtain a patent.
the application for a patent by the locator, etc., etc. (sec. And inasmuch as this right cannot be acquired until after
37). compliance with all the conditions prescribed by law, it is
The same majority states: "The legal effect of a valid evident that the prescribed conditions should be complied
location of a mining claim is not only to segregate the area with before the inauguration of the Commonwealth.
from the public domain, but to grant to the locator the Was the petitioner entitled to the issuance of the patent
beneficial ownership of the claim and the right to a patent for the mining claim in question before the inauguration of
therefor upon compliance with the terms and conditions the Commonwealth on November 15, 1935? I hold that he
prescribed by the law." (Underscoring mine.) was not, because on said date, according to the very
Well, then: the Act of Congress does not fix any period allegations of the petition for mandamus, the publication in
within which the conditions prescribed ought to be the newspapers of the application for a patent for a period
complied with. It does specify the time for recording a claim of 60 days as prescribed by law had not been made, as said
in the registry, but it does not determine the period within publication was only commenced on February 13, 1936.
which to make the necessary annual labor or improvements Neither was the payment of P25 per hectare made before
thereon. The law requires universal publication and notice the inauguration of the new Government, that is, the
of the application for a patent for a determinate number of Government had not been paid the price for the alienation
days, but it fails to fix the date when said notice may be of the mineral land when Article XII of the Constitution
made and published. The law requires that, if there be any went into effect. Petitioner's right, therefore, to the patent
had not matured before November 15, 1935, wherefore, he owner, either by abandonment or by forfeiture for non-compliance
falls squarely within the constitutional prohibition. with local regulations or with the statutory requirements as to
A similar thing has been provided for by Act No. 926, annual labor * * *." (1 The Law of Mines and Mining in the United
passed in October, 1903, and Act No. 2874, passed in States, Barringer & Adams, 318; 319.)
November, 1919, in relation to public lands. Section 54, "Prior to the issuance of a patent the locator cannot be said to
paragraph 6, of the first Act, and section 45, paragraph (b), own the fee simple title. The fee resides in the
of the second, provide that those who have been in
possession of agricultural lands of the public domain since 277
July 26, 1894, may acquire a perfect title of ownership; and
it is necessarily inferred that those who commenced their VOL. 66, SEPTEMBER 30, 1938 277
possession of such lands after July 26, 1894 have no right Phil. Trust Co. vs. Smith Navigation Co.
to obtain title, notwithstanding the fact that their
possession may have been for 10, 20 or 30 years. This is general government, whose tribunals, specially charged with the
exactly what the Constitution has provided: to fix a time ultimate conveyance of the title, must pass upon the qualifications
276
of the locator and his compliance with the law. Yet, as between the
locator and everyone else save the paramount proprietor the estate
acquired by a perfected mining location possesses all the attributes
276 PHILIPPINE REPORTS ANNOTATED of a title in fee, and so long as the requirements of the law with
Gold Creek vs. Rodriguez and Abadilla reference to continued development are satisfied, the character of
the tenure remains that of a fee. As between the locator and the
for determining those who have (become entitled to the government, the former is the owner of the beneficial estate, and
patent for a mining claim. the latter holds the fee in trust, to be conveyed to such beneficial
Although the provisions of the Act of Congress of 1905 owner upon his application in that behalf and in compliance with
are very clear and there is no better aid to construction the terms prescribed by the paramount proprietor." (Lindley on.
than the law itself, I nevertheless cite the following Mines, 3d. ed., sec. 539, p. 1200.) (Underscoring mine.)
authorities which support my points of view in this opinion.
I therefore vote for the denial of the petition.
"The locator of a mining claim under the United States laws, prior Writ granted.
to the actual payment of the purchase-money and the issuance to
______________
him of the receipt therefor by the Land Department, possesses a
mere privilege to purchase the property, and a constable's sale of
the mine before payment only passes that privilege * * *."
(Hamilton vs. Southern Nev. G. & S. Min. Co., 33 Fed., 562.)
"* * * But he is not the owner of the land until he pays for it, and
obtains the United States patent. It is a part of the public domain.
In the meantime the defend-. ant is occupying it under a mere
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license from the government, which may be revoked at any time by
the repeal of the act giving it. * * * His license under the statute to
occupy and to work it as mining ground is sufficient for that
purpose until withdrawn by Congress, without purchasing it. * * *"
(U. S. vs. Nelson, Fed. Cas. No. 15,864.) (Underscoring mine.)
"A prospector on the public mineral domain may protect 'himself
in the possession of his pedis possessionis while he is searching for
mineral. His possession so held is good as a possessory title against
all the world, except the government of the United States * * *."
(Crossman vs. Pendery, 8 Fed., 693.)
"A possessory title, while it may not be divested by any one
except the United States, may be avoided by the default of its