G.R. No. L-12659 - Abelardo Landingin vs. Paulo Gacad
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12659 October 28, 1960
ABELARDO LANDINGIN,plaintiff-appellant,
vs.
PAULO GACAD,defendant-appellee.
Joaquin Ortega for appellant.
Sulpicio Soriano for appellee.
PAREDES,J.:
Plaintiff Abelardo Landingin is the owner of two fishing contraptions locally known asparigdigconstructed in 1954, in Calpay Shoal, Municipality of Sual, Pangasinan for which he paid the municipal licenses thereof up to the years 1955. In 1949, an ordinance was enacted and approved by the Municipal Council of Sual, limiting the distance of fish corrals to a minimum of 200 meters from each other. About January 3, 1955, defendant Paulo Gacad commenced the construction ofparigdigof plaintiff, nearer to the center of Calpay Shoal, thereby blocking the flow of fish locally known as "Armang" to plaintiff'sparigdig. A committee appointed by the municipal Mayor of Sual to investigate the case, reported that defendant'sparigdigwas constructed within 10 meters from plaintiff'sparigdig. As defendant insisted to continue with the operation of hisparigdig, the plaintiff filed an action for injunction in the court of First Instance of Pangasinan to compel the defendant to remove hisparigdig. A writ of preliminary injunction was issued, commanding the defendant to desist from committing further acts tending to block, fully or partially, the flow of fish locally known as "armang" to the plaintiffparigdig. On March 18, 1955, the trial court granted the motion to dismiss filed by defendant, based upon the ground that the complaint states no cause of action. The plaintiff appealed and in his brief alleged that the order of dismissal was erroneous.
The pertinent portions of Ordinance No. 9 of the Municipality Council of Sual, provide:
SECTION. 1 LICENSE AND FEES. The privilege of taking fish form the municipal waters other than erecting fish, corrals, traps and other fishing tackles, operating fishponds, or oysters culture beds, or catching bangos fry shall be granted to persons qualified to pay all necessary fees promulgated by this ordinance, payment of the corresponding fees for the fishing apparatus used herein specified: Provided, that no fisherman or fishermen shall catch fish within 200 meters from a fish corral unless himself is the owner of the corral provided further, that this fees herein which is an annual fee, may be paid quarterly, if so desired by the applicant:
a) Fish Corrals, baclad or pasabing: | |
From 1 m. ......... 3 m. high | P40.00 |
3 m. ......... 5 m. | P80.00 |
5 m. ............ above | 120.00 |
b) Sapiao one light only | 120.00 |
Sapiao with two or more lights | 200.00 |
c) Salambao orparigdig | 40.00 |
xxx xxx xxx
(Emphasis supplied.)
Plaintiff-appellants claims that the case comes within the operation and purview of the above qouted ordinance, stating that (1) aparigdigis a fish corral; (2) The defendant has not secured the required license for hisparigdig, and therefore, is not entitled to the Court's protection, and (3) granting, arguendo that the ordinance does not embraceparigdigin the distance limitations, the court. nevertheless, is called upon to determine the necessity of a reasonable distance betweenparigdigs.
The is no question in our mind thatparigdigis not a fish corral. From the very ordinance just qouted, "fish corrals, a baclad or pasabing," under (a), and "Salambao" orparigdig, under (c), are entirely distinct and separate items. If the intention of the municipal council was to consider fish corral andparigdigas the same fishing contraptions, it would have listed the two items together, inasmuch as they all have the same license fees, in one group.
Moreover, Act No. 4003, as amended by Commonwealth Act No. 471 defines fish corral as follows:
A fish corral or baclad means a stationary weir or trap devised to intercept and capture fish, consisting of rows or stakes or bamboo, palma brava or other materials fenced with either split bamboo matting or wire nettings with one or more enclosures usually with easy entrance but difficult exit, and with or without leaders to direct the fish to the catching chambers or pound.
The alleged sketch showing the constructions ofparigdig, attached as Annex "A" to the Opposition to the Motion to dismiss, submitted by plaintiff-appellant is not before us. Counsel for plaintiff-appellant, however, described theparigdigas follows:
As can be seen in the sketch,parigdigconstitutes is two (2)identical structures 12 meters apart. Each structure is composed of two parallel posts 5 rows of posts parallel to each other, on top of which are enjoined bamboo railings similar to raft. Between these two structures, a fishing net is hanged with a circumference of 50 meters more or less, attached to four posts equiped with ropes and pulley to enable the net to be raised or lowered at will.
This descriptions ofparigdig, does not coincide with the description of a fish corral given in the said Act No. 4003, which further strengthens the conclusions that aparigdigis not the same as "fish corral". The failure of said ordinance to prescribe a distance limitation for contraptions other than fish corrals, shows the legislative intention of allowing the use ofparigdigand contraptions, other than fish corrals, at any place the fisherman may choose, without regard to distance. In other words, oneparigdigmay be constructed and operated at distance of less than 200 meters from anotherparigdig.
Having reached the above conclusions, it follows that the complaint must be dismissed for a failure to state a cause of action, irrespective of whether the defendant has or had no license to construct and operate aparigdig. At any rate, the municipality of Sual, and not the plaintiff, can take action for the enforcement of the ordinance in question. Regarding the necessity of determining and prescribing distances among fishermen, the plaintiff may make representations to the same Municipal Council to that effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ.,concur.