10e. closure and opening of roads.docx

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Closure and Opening of Roads

MACASIANO vs. DIOKNO G.R. No. 97764 August 10, 1992

FACTS:

1. Respondent municipality passed Ordinance No. 86, which

authorized the closure of certain streets located at Baclaran,

Parañaque, Metro Manila and the establishment of a flea marketthereon.

2. The said ordinance was approved by the municipal council

pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and

regulating the use of certain city and/or municipal streets, roads and

open spaces within Metropolitan Manila as sites for flea market

and/or vending areas, under certain terms and conditions.

3. On July 20, 1990, the Metropolitan Manila Authority approved

Ordinance No. 86, s. 1990 of the municipal council of respondent

municipality subject to the following conditions:

1. That the aforenamed streets are not used for vehicular traffic, and that the

majority of the residents do not oppose the establishment of the flea

market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall

be marked distinctly, and that the 2 meters on both sides of the road shall be

used by pedestrians;

3. That the time during which the vending area is to be used shall be clearly

designated;

4. That the use of the vending areas shall be temporary and shall beclosed once the reclaimed areas are developed and donated by the

Public Estate Authority.

4. The municipal council of Parañaque issued a resolution

authorizing Parañaque Mayor Walfrido N. Ferrer to enter into

contract with any service cooperative for the establishment,

operation, maintenance and management of flea markets and/or

vending areas.

5. Subsequently, respondent municipality and respondent Palanyag,

a service cooperative, entered into an agreement whereby the latter

shall operate, maintain and manage the flea market in the

aforementioned streets with the obligation to remit dues to the

treasury of the municipal government of Parañaque.

6. Petitioner Brig. Gen. Macasiano, PNP Superintendent of the

Metropolitan Traffic Command, ordered the destruction and

confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran.

These stalls were later returned to respondent Palanyag.On October

16, 1990, petitioner Brig. General Macasiano wrote a letter to

respondent Palanyag giving the latter ten (10) days to discontinue

the flea market; otherwise, the market stalls shall be dismantled.

7. Hence, respondents municipality and Palanyag filed with the tria

court a joint petition for prohibition and mandamus with damages and

prayer for preliminary injunction.

8. The trial court issued a temporary restraining order to enjoin

petitioner from enforcing his letter-order of October 16, 1990 pending

the hearing on the motion for writ of preliminary injunction.

9. The trial court issued an order upholding the validity of OrdinanceNo. 86 s. 1990 of the Municipality' of Parañaque and enjoining

petitioner Brig. Gen. Macasiano from enforcing his letter-orde

against respondent Palanyag. Hence, this petition was filed by the

petitioner

ISSUE: Whether Ordinance No. 86 passed by the responden

municipality is valid.

HELD:

The property of provinces, cities and municipalities is divided into

property for public use and patrimonial property (Art. 423, CiviCode). As to what consists of property for public use, Article 424 o

Civil Code states:

Art. 424. Property for public use, in the provinces, cities and

municipalities, consists of the provincial roads, city streets, the

squares, fountains, public waters, promenades, and public works

for public service paid for by said provinces, cities o

municipalities.

All other property possessed by any of them is patrimonial and

shall be governed by this Code, without prejudice to the

provisions of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt

Garcia Extension and Opena streets are local roads used for

public service and are therefore considered public properties o

respondent municipality. Properties of the local governmen

which are devoted to public service are deemed public and are

under the absolute control of Congress. Hence, loca

governments have no authority whatsoever to control or

regulate the use of public properties unless specific authority is

vested upon them by Congress. One such example of this

authority given by Congress to the local governments is the power to

close roads as provided in Section 10, Chapter II of the Loca

Government Code.

However, the legal provision which gives authority to loca

government units to close roads and other similar public places

should be read and interpreted in accordance with basic principles

already established by law. These basic principles have the effect o

limiting such authority of the province, city or municipality to close a

public street or thoroughfare. Article 424 of the Civil Code lays

down the basic principle that properties of public dominion

devoted to public use and made available to the public in



general are outside the commerce of man and cannot be

disposed of or leased by the local government unit to private

persons. Aside from the requirement of due process which

should be complied with before closing a road, street or park,

the closure should be for the sole purpose of withdrawing the

road or other public property from public use when

circumstances show that such property is no longer intended or

necessary for public use or public service. When it is already

withdrawn from public use, the property then becomes

patrimonial property of the local government unit concerned . It

is only then that the respondent municipality can "use or

convey them for any purpose for which other real property

belonging to the local unit concerned might be lawfully used or

conveyed" in accordance with the last sentence of Section 10,

Chapter II of Blg. 337, known as Local Government Code .

However, those roads and streets which are available to the

public in general and ordinarily used for vehicular traffic are still

considered public property devoted to public use. In such case,

the local government has no power to use it for another purpose

or to dispose of or lease it to private persons.

Even assuming, in gratia argumenti, that respondent

municipality has the authority to pass the disputed ordinance,

the same cannot be validly implemented because it cannot be

considered approved by the Metropolitan Manila Authority due

to non-compliance by respondent municipality of the conditions

imposed by the former for the approval of the ordinance .

Respondent municipality has not shown any iota of proof that it has

complied with the foregoing conditions precedent to the approval of

the ordinance.

Verily, the powers of a local government unit are not absolute. They

are subject to limitations laid down by toe Constitution and the laws

such as our Civil Code.

As what we have said in the Dacanay case, the general public have

a legal right to demand the demolition of the illegally constructed

stalls in public roads and streets and the officials of respondent

municipality have the corresponding duty arising from public office to

clear the city streets and restore them to their specific public

purpose.

The instant case as well as the Dacanay case, involves an ordinance

which is void and illegal for lack of basis and authority in laws

applicable during its time. However, at this point, We find it worthy to

note that Batas Pambansa Blg. 337, known as Local Government

Lode, has already been repealed by Republic Act No. 7160 known as

Local Government Code of 1991 which took effect on January 1,

1992. Section 5(d) of the new Code provides that rights and

obligations existing on the date of effectivity of the new Code and

arising out of contracts or any other source of prestation involving a

local government unit shall be governed by the original terms and

conditions of the said contracts or the law in force at the time such

rights were vested.

ACCORDINGLY, the petition is GRANTED.

_____________________________________________________

CEBU OXYGEN & ACETYLENE CO., INC. vs. BERCILLES, et al.

G.R. No. L40474 August 29, 1975

FACTS:

1. Petitioner applied for registration of title over a parcel of land which

was a portion of M. Borces Street, Mabolo, Cebu City.

2. The City Council of Cebu, through Resolution No. 2193 declared

the terminal portion of M. Borces Street, Mabolo, Cebu City, as an

abandoned road, the same not being included in the City

Development Plan.

3. Subsequently, the City Council of Cebu passed Resolution No

2755, authorizing the Acting City Mayor to sell the land through a

public bidding.

4. Pursuant thereto, the lot was awarded to the herein petitione

being the highest bidder and the City of Cebu, through the Acting

City Mayor, executed a deed of absolute sale to the herein petitione

over the parcel of land.

5. By virtue of the aforesaid deed of absolute sale, the petitioner filed

an application with the Court of First instance of Cebu to have its titleto the land registered.

6. The Assistant Provincial Fiscal of Cebu filed a motion to dismiss

the application on the ground that the property sought to be

registered being a public road intended for public use is considered

part of the public domain and therefore outside the commerce o

man. Consequently, it cannot be subject to registration by any private

individual.

7. The trial court issued an order dismissing the petitioner's

application for registration of title. Hence, this petition.

ISSUES:

(1) Does the City Charter of Cebu City (Republic Act No. 3857) unde

Section 31, paragraph 34, give the City of Cebu the valid right to

declare a road as abandoned? and

(2) Does the declaration of the road, as abandoned, make it the

patrimonial property of the City of Cebu which may be the object of a

common contract?



HELD:

(1) The pertinent portions of the Revised Charter of Cebu City

provides:

Section 31. Legislative Powers. Any provision of law and

executive order to the contrary notwithstanding, the City Council

shall have the following legislative powers:

xxx xxx xxx

(34) ...; to close any city road, street or alley, boulevard, avenue,

park or square. Property thus withdrawn from public servitude

may be used or conveyed for any purpose for which other real

property belonging to the City may be lawfully used or conveyed.

From the foregoing, it is undoubtedly clear that the City of Cebu

is empowered to close a city road or street.

The city council, it would seem to us, is the authority competent to

determine whether or not a certain property is still necessary for

public use. Such power to vacate a street or alley is discretionary.

And the discretion will not ordinarily be controlled or interfered with

by the courts, absent a plain case of abuse or fraud or collusion.

Faithfulness to the public trust will be presumed. So the fact that

some private interests may be served incidentally will not invalidate

the vacation ordinance.

(2) Since that portion of the city street subject of petitioner's

application for registration of title was withdrawn from public

use, it follows that such withdrawn portion becomes patrimonial

property which can be the object of an ordinary contract.

Article 422 of the Civil Code expressly provides that "Property of

public dominion, when no longer intended for public use or for public

service, shall form part of the patrimonial property of the State."

Besides, the Revised Charter of the City of Cebu heretofore quoted,

in very clear and unequivocal terms, states that: "Property thus

withdrawn from public servitude may be used or conveyed for any

purpose for which other real property belonging to the City may be

lawfully used or conveyed."

Accordingly, the withdrawal of the property in question frompublic use and its subsequent sale to the petitioner is valid.

Hence, the petitioner has a registerable title over the lot in

question.

WHEREFORE, the respondent court is hereby ordered to proceed

with the hearing of the petitioner's application for registration of title.

FAVIS vs. THE CITY OF BAGUIO

G.R. No. L-29910 April 25, 1969

FACTS:

Antonio Favis bought a parcel of land of from the Assumption

Convent, Inc. Said lot is bounded on the southwest by a lot donated

by Assumption Convent, Inc. for road purposes to the City of Baguio.

This donated road is used by Favis as his means of egress and

ingress from his residence to a public street called Lapu-Lapu Street

At the exact connecting point of Lapu-Lapu Street and the donated

road (which leads to appellant's land), the road opening is only 2.5

meters wide.

Lapu-Lapu Street is actually Lot 27 and is a portion of a big

tract of land registered in the name of the City, known as Baguio

Market Subdivision. Lot 25 of the Baguio Market Subdivision is

northernmost in said subdivision. As far back as June, 1947, the City

by virtue of Resolution No. 115, Series of 1947, of the City Council of

Baguio leased this Lot 25 to Shell for a ten-year period renewable fo

another ten years. Shell constructed thereon a service station o

about 335 square meters.

On May 10, 1961, the City Council of Baguio passed

Resolution No. 132 authorizing the City thru its Mayor to lease to

Shell two parcels of land – Lot No. 25 and a parcel of land containing

an area of 100 sq. m. more or less. About three weeks later, the City,

thru its Mayor entered into a formal contract of lease with Shell.

Shell filed an application with the Office of the City Engineer ofBaguio for a building permit for the construction of a new and bigge

gasoline station on the leased premises. Said office, in a letter to the

City Council noted that the leased "portion which consists of 100

square meters is exactly within the road right-of-way of Lapu-Lapu

Street," is for public use, and may not be leased.

On July 5, 1961, appellant Antonio C. Favis lodged a letter-

protest against the additional lease made in favor of Shell. He

claimed that it would diminish the width of Lapu-Lapu Street to five

meters only; that it would destroy the symmetry of the said stree

thus making it look very ugly; and that the City was bereft of authority

to lease any portion of its public streets in favor of anyone.

The City Council of Baguio, on July 19, 1961, passed

Resolution No. 215, amending Resolution No. 132, by converting tha

"portion of Lapu-Lapu Street lying southeast from the leased

additional lot into an alley 5.00 meters wide (4 m. now in actual use)

declaring for this purpose, that leased additional portion shall not be

a part of this alley."

Favis commenced suit for the annulment of the lease

contract with damages in the Court of First Instance of Baguio After



hearing, the lower court, on May 21, 1962, rendered judgment

uphelding the two questioned resolutions and dismissing the

complaint.

Appellant contends that the resolutions directing the partial

closing of Lapu-Lapu Street and the lease thereof are invalid.

Because, so appellant avers, those resolutions contravene the City

Charter. He relies on subsection (L) of Section 2553 of the Revised

Administrative Code. It provides that the powers granted to the City— including the power to close streets — shall be carried "into effect

by ordinance."

The main thrust of appellant's arguments is that the city

council does not have the power to close city streets like Lapu-Lapu

Street. He asserts that since municipal bodies have no inherent

power to vacate or withdraw a street from public use, there must be a

specific grant by the legislative body to the city or municipality

concerned.

ISSUES:

1. Whether or not the closure of city streets needs to be embodied

in an ordinance.

2. Whether or not city councils have the power to close city streets

and withdraw them from public use.

3. Whether or not the power to vacate streets by the city council

can be interfered with by the courts.

4. Whether or not the strip withdrawn from public use may be the

subject of a contract of lease.

5. Whether or not appellant is entitled to damages.

HELD:

1. It has been held that "even where the statute or municipal

charter requires the municipality to act by ordinance, if a resolution is

passed in the manner and with the statutory formality required in the

enactment of an ordinance, it will be binding and effective as an

ordinance." Such resolution may operate regardless of the name by

which it is called.

Resolutions No. 132 and 215, Series of 1961, were

unanimously approved with all the councilors present and voting,

carried the seal of the city council, were signed by the City Vice-

Mayor, the Presiding Officer, approved by the City Mayor, and

attested by the City Secretary. With the presumption of validity of the

resolution and the other presumption that official duty has been

regularly performed, the embattled resolutions are just as good as

ordinances and have the same force.

2. A reference to the organic act of the City of Baguio appears

to be in order. In subsection (L) of Section 2558 of the Review

Administrative Code (Baguio Charter), the language of the grant of

authority runs thus —

(L) To provide for laying out, opening, extending, widening

straightening, closing up, constructing, or regulating, in

whole or in part , any public plaza, square, street, sidewalk

trail, park, waterworks, or water remains, or any cemetery

sewer, sewer connection or connections, either on, in, or

upon public or private property; ....

Undoubtedly, the City is explicitly empowered to close a city

street.

3. Such power to vacate a street or alley is discretionary. And

the discretion will not ordinarily be controlled or interfered with by the

courts, absent a plain case of abuse or fraud or collusion

Faithfulness to the public trust will be presumed. So the fact tha

some private interests may be served incidentally will not invalidate

the vacation ordinance.

Deemed as material factors which a municipality must conside

in deliberating upon the advisability of closing a street are: "the

topography of the property surrounding the street in the light o

ingress and egress to other streets; the relationship of the street inthe road system throughout the subdivision; the problem posed by

the 'dead end' of the street; the width of the street; the cost of

rebuilding and maintaining the street as contrasted to its ultimate

value to all of the property in the vicinity; the inconvenience of those

visiting the subdivision; and whether the closing of the street would

cut off any property owners from access to a street." 14

We now take a look at the factors Considered by the City

Council of Baguio in vacating a portion of Lapu-Lapu Street. The

WHEREAS clauses in Resolution 215 provides that the subjec

portion of Lapu-Lapu Street does not have traffic and is in fact a deadend street; that the conversion of such portion into an alley would

neither prejudice nor damage any person or property; and that in the

subdivision scheme of the burned area of the City Marke

Subdivision, already approved by the City Council, provision was

made for another road behind Lapu-Lapu Street interesting Dagohoy

Street.

Besides, there are the specific findings by the trial court tha

the "2.5 opening is sufficient for Plaintiff to enter and exit from the lot

he purchased from Assumption Convent, Inc."; that the "present road

right of way was rendered narrow by surrounding properties and

is sufficient for the needs of the Plaintiff"; and that the "portion leasedto Shell Company was not necessary for public use." We are bound

by these findings of fact.

By the embattled resolutions, no right of the public is

overwhelmed, none defeated. Public interest was not at a

disregarded. On the contrary, some benefit did flow from the

withdrawal of a portion of the street and the lease thereof. The City

saves from the cost of maintenance, gets some income yet.



Given the precept that the discretion of a municipal corporation

is broad in scope and should thus be accorded great deference in the

spirit of the Local Autonomy Law (R.A. 2264), and absent a clear

abuse of discretion, we hold that the withdrawal for lease of the

disputed portion of Lapu-Lapu Street and the conversion of the

remainder of the dead-end part thereof into an alley, does not call for,

and is beyond the reach of, judicial interference.

4. From the fact that the leased strip of 100 square meterswas withdrawn from public use, it necessarily follows that such

leased portion becomes patrimonial property. Article 422 of the Civil

Code indeed provides that property of public domain, "when no

longer intended for public use or public service, shall form part of the

patrimonial property of the State." There is no doubt that the strip

withdrawn from public use and held in private ownership may be

given in lease. For amongst the charter powers given the City of

Baguio (Section 2541, Revised Administrative Code [Charter of the

City of Baguio] ) is to "lease ... real ... property, for the benefit of the

city...."

5. "The general rule is that one whose property does not abuton the closed section of a street has no right to compensation for the

closing or vacation of the street, if he still has reasonable access to

the general system of streets. To warrant recovery in any such case

the property owner must show that the situation is such that he has

sustained special damages differing in from those sustained by kind,

and not merely in degree, the public generally ."

In the case at bar, no private right of appellant has been

invaded. No special damage or damages he will incur by reason of

the closing of a portion of Lapu-Lapu Street at its dead-end. His

property does not abut that street. In fact, the court has found thatthe remaining portion of Lapu-Lapu Street, which actually is 4 meters

in width, is sufficient for the needs of appellant and that the leased

portion — subject of this suit — "was not necessary for public use."

He may suffer loss because of the inconvenience imposed, but the

public treasury cannot be required to recompense him. Such case

is damnum absque injuria (loss without injury).

For the reasons given, the appealed judgment of the Court of

First Instance of Baguio declaring valid Resolution No. 132, Series of

1961, and Resolution No. 215, Series of 1961, both of the City

Council of Baguio, and ordering the dismissal of the complaint as

well as the counterclaim, is hereby affirmed.

Sangalang vs. Intermediate Appellate Court

G.R. No. 71169 December 22, 1988

FACTS:

1. Bel-Air Village is located north of Buendia Avenue extension

across a stretch of commercial block from Reposo Street in the wes

up to Zodiac Street in the east.

2. Bel-Air Village was owned and developed into a residentia

subdivision in the 1950s by Makati Development Corporation

(hereinafter referred to as MDC), which in 1968 was merged with

appellant Ayala Corporation.

3. The lots which were acquired by appellees Sangalang and

spouses Gaston and spouses Briones were all sold by MDC subjec

to certain conditions and easements contained in Deed Restrictions

which formed a part of each deed of sale. The pertinent provisions in

said Deed Restrictions, which are common to all lot owners in Bel-Ai

Village provide that the subdivision lots will only be used for

residential purposes.

4. When MDC sold the above-mentioned lots to appellees

predecessors-in-interest, the whole stretch of the commercial block

between Buendia Avenue and Jupiter Street, from Reposo Street in

the west to Zodiac Street in the east, was still undeveloped. So in

1966, MDC constructed a fence or wall on the commercial block

along Jupiter Street. This wall was subsequently destroyed and

rebuilt twice.

5. On April 4, 1975, the municipal council of Makati enacted itsordinance No. 81, providing for the zonification of Makati. Under this

Ordinance, Bel-Air Village was classified as a Class A Residentia

Zone, with its boundary in the south extending to the center line o

Jupiter Street.

6. Under the above zoning classifications, Jupiter Street, therefore, is

a common boundary of Bel-Air Village and the commercial zone.

7. Meanwhile, in 1972, Bel-Air Village Association (BAVA) had

installed gates at strategic locations across Jupiter Street which were

manned and operated by its own security guards who were

employed to maintain, supervise and enforce traffic regulations in the

roads and streets of the village.

8. Then, on January 17, 1977, the Office of the Mayor of Makat

wrote BAVA directing that, in the interest of public welfare and for the

purpose of easing traffic congestion, certain streets in Bel-Air Village

should be opened for public use.

9. BAVA voluntary opened some streets to be opened for public use

Jupiter Street was not among them.



9. On August 12, 1977, the municipal officials of Makati concerned

allegedly opened, destroyed and removed the gates

constructed/located at the corner of Reposo Street and Jupiter Street

as well as the gates/fences located/constructed at Jupiter Street and

Makati Avenue forcibly, and then opened the entire length of Jupiter

Street to public traffic.

10. With the opening of Zodiac Street from Estrella Street to Jupiter

Street and also the opening to the public of the entire length of Jupiter Street, there was a tremendous increase in the volume of

traffic and the different residential lots located in the northern side of

Jupiter Street ceased to be used for purely residential purposes.

They became, for all purposes, commercial in character.

11. Then, on January 27, 1978, appellant donated the entire Jupiter

Street from Metropolitan Avenue to Zodiac Street to BAVA.

12. Subsequently, the plaintiffs-appellees brought the present action

for damages against the defendant-appellant Ayala Corporation

predicated on both breach of contract and on tort or quasi-delict.

13. After trial on the merits, the then Court of First Instance of Rizal,

Pasig, Metro Manila, rendered a decision in favor of the appellees.

14. On appeal, the Court of Appeals rendered a reversal, hence the

present petition.

ISSUE: Whether or not Ayala Corp. should be held liable for breach

of contract and thus liable for damages considering that the opening

of Jupiter Street for public use violates the restrictive easements in

the Deed Restrictions in the titles and deeds of sale of subdivision lot

owners.

HELD:

There is a recognition under both Ordinances Nos. 81 and 8 1-01

that Jupiter Street lies as the boundary between Bel-Air Village and

Ayala Corporation's commercial section. And since 1957, it had been

considered as a boundary not as a part of either the residential or

commercial zones of Ayala Corporation's real estate development

projects. Hence, it cannot be said to have been "for the exclusive

benefit" of Bel-Air Village residents.

It was the opinion of the Court of Appeals, as we said, that Ayala's

liability therefor, if one existed, had been overtaken by the passage

of Ordinances Nos. 81 and 82-01, opening Jupiter Street to

commerce.

Jupiter Street lies as a mere boundary, a fact acknowledged by the

authorities of Makati and the National Government and, as a scrutiny

of the records themselves reveals, by the petitioners themselves, as

the articles of incorporation of Bel-Air Village Association itself would

confirm. As a consequence, Jupiter Street was intended for the use

by both -the commercial and residential blocks. It was not originally

constructed, therefore, for the exclusive use of either block, least of

all the residents of Bel-Air Village, but, we repeat, in favor of both, as

distinguished from the general public.

We absolve the Ayala Corporation primarily owing to our finding tha

it is not liable for the opening of Jupiter Street to the general public

Insofar as these petitions are concerned, we likewise exculpate the

private respondents, not only because of the fact that Jupiter Stree

is not covered by the restrictive easements based on the "deedrestrictions" but chiefly because the National Government itself

through the Metro Manila Commission (MMC), had reclassified

Jupiter Street into high density commercial (C-3) zone, pursuant to

its Ordinance No. 81-01. Hence, the petitioners have no cause of

action on the strength alone of the said "deed restrictions.

It is not that we are saying that restrictive easements, especially the

easements herein in question, are invalid or ineffective. As far as the

Bel-Air subdivision itself is concerned, certainly, they are valid and

enforceable. But they are, like all contracts, subject to the overriding

demands, needs, and interests of the greater number as the State

may determine in the legitimate exercise of police power. Ou jurisdiction guarantees sanctity of contract and is said to be the "law

between the contracting parties, but while it is so, it canno

contravene 'law, morals, good customs, public order, or public

policy. Above all, it cannot be raised as a deterrent to police power

designed precisely to promote health, safety, peace, and enhance

the common good, at the expense of contractual rights, wheneve

necessary.

Undoubtedly, the MMC Ordinance represents a legitimate exercise o

police power. The petitioners have not shown why we should hold

otherwise other than for the supposed "non-impairment" guaranty othe Constitution, which, as we have declared, is secondary to the

more compelling interests of general welfare. The Ordinance has no

been shown to be capricious or arbitrary or unreasonable to warran

the reversal of the judgments so appealed. In that connection, we

find no reversible error to have been committed by the Court of

Appeals.

WHEREFORE, premises considered, these petitions are DENIED.

10e. closure and opening of roads.docx

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