In the Philippines, the tension between private property rights and public land use often converges at the banks of water bodies. A common point of contention is whether a private landowner can fence off a creek passing through or adjacent to their property. Under Philippine law, the answer is a definitive no. Creeks are considered property of the public dominion, and their obstruction constitutes both a violation of environmental laws and a public nuisance.
1. The Legal Nature of Creeks
Under the Civil Code of the Philippines (Article 420), canals, rivers, and creeks are classified as property of public dominion. This means they are intended for public use and are outside the commerce of man. They cannot be registered under the Torrens system, they cannot be acquired through prescription, and they cannot be validly burdened by private structures.
Furthermore, Presidential Decree No. 1067, otherwise known as the Water Code of the Philippines, reinforces this by stating that all waters belong to the State. Specifically:
- Article 3(d): All waters found in the Philippines belong to the State.
- Article 5: The ownership of water by the State cannot be barred by prescription.
2. The Legal Easement: The "Three-Meter Rule"
Even if a person’s land title appears to cover an area adjacent to a creek, the law imposes a mandatory legal easement for public use. Article 51 of the Water Code specifies the width of these margins that must remain unobstructed:
| Area Classification | Mandatory Easement Width |
|---|---|
| Urban Areas | 3 meters |
| Agricultural Areas | 20 meters |
| Forest Areas | 40 meters |
Prohibited Acts within the Easement: No person is allowed to build any structure—including fences, walls, or houses—within these zones. These areas are reserved for recreation, navigation, floatage, fishing, and salvage. Fencing off a creek effectively "appropriates" this public space for private use, which is a direct violation of the law.
3. Obstruction as a Public Nuisance
A fence that blocks a creek or its bank is legally classified as a nuisance under Article 694 of the Civil Code. A nuisance is any act or omission that:
- Injures or endangers the health or safety of others;
- Annoys or offends the senses;
- Obstructs or interferes with the free passage of any public highway or street, or any body of water.
Because a creek is a body of water for public use, its obstruction is a public nuisance. Local Government Units (LGUs) have the authority to summarily abate (remove) these obstructions without a judicial order under the principle of protecting the general welfare.
4. Environmental and Penal Consequences
Fencing or obstructing a creek does not just result in the removal of the fence; it carries criminal and administrative weight.
The Republic Act No. 9275 (Clean Water Act)
This law prohibits the unauthorized use of water resources and the obstruction of water bodies. Illegal structures in creeks often lead to the accumulation of silt and garbage, exacerbating flooding in the community.
PD 1067 (Water Code) Penalties
Violators can face:
- Fines: Significant administrative fines imposed by the National Water Resources Board (NWRB).
- Imprisonment: Criminal prosecution for those who persist in obstructing the natural flow of water.
- Demolition: The Department of Public Works and Highways (DPWH) or the LGU can dismantle the fence at the owner's expense.
5. Right of Way vs. Public Access
There is a distinction between a Private Right of Way (an easement between two private estates) and the Public Right of Way regarding water bodies.
- A creek is not a "right of way" that must be granted by a neighbor; it is a public thoroughfare by its very nature.
- Landowners cannot claim "privacy" or "security" as a valid legal defense for fencing a creek. The public's right to access the water and the state's right to maintain the flow of the waterway take precedence over the individual's desire for enclosure.
6. Jurisdictional Authority
If a creek is being fenced off, several agencies have the power to intervene:
- The Barangay/LGU: Under the Local Government Code, they can pass ordinances and execute orders to clear obstructions from waterways.
- DENR: Through the Mines and Geosciences Bureau or the Environmental Management Bureau, they monitor the integrity of riverbanks and creeks.
- DPWH: Responsible for maintaining the "clearance" of flood control projects and public easements.
Legal Summary: In the Philippines, you can own the land beside a creek, but you can never own the creek itself or the easement strip bordering it. Fencing these areas is an illegal act of encroachment that subjects the perpetrator to both civil liability and criminal prosecution.