ANGEL MASCUÑANA AND ANGELES M. VERDEFLOR, PETITIONERS-APPELLANTS, VS. THE PROVINCIAL BOARD OF NEGROS OCCIDENTAL, MUNI­CIPAL COUNCIL OF TALISAY, NEGROS OCCIDENTAL, LEON T. TREYES…

This appeal is about the legality of Resolution No. 59, dated
September 8, 1962, of the municipal council of Talisay,
Negros Occidental, declaring, as municipal property
closed to vehicular traffic, a piece of land situated near the intersec­tion of
Burgos and Rizal Streets and adjacent to the bank of
the Minuluan River and to some lots of the Talisay cadastre.

According to the petition, among those adjacent lots are Lot No.
80 owned by Angel Mascuñana and Lots 81-A, 81-B and
81-C registered in the names of his children, Angeles M. Verdeflor,
Angel, Jr. and Manuel.

Angel Mascuñana alleged that the piece
of land in question is the terminus or extension of Burgos
Street.  It
is occupied by Councilor Leon T. Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano who had constructed houses thereon.

Mascuñana and his daughter, Angeles, in
a letter dated March 20, 1962
informed the mayor of Talisay that that portion of Burgos
Street was occupied by squatters.  Mascuñana said that
the constructions of the squatters were prejudicial to the public particularly
to the owner of Lot No. 81-A, his daughter Angeles, who wanted to build a
residential house on her lot.  Mascuñana asked the mayor to take the necessary steps to
clear the area of squatters so that the public could use that part of Burgos
Street.

The mayor took up Mascuñana’s request
with the muni­cipal council.  The council
indorsed Mascuñana’s letter to the municipal
treasurer for verification, opinion and comment.

The treasurer found that the alleged portion or extension of Burgos
Street mentioned in Mascuñana’s
letter is the property of the municipality
of Talisay.  The treasurer was not certain as to whether
the said land had been used as a street, or had been withdrawn from that use or
had been abandoned or had never been designated for public use.  To determine the “character” of the
said land, he suggested that the matter be referred to the municipal attorney
for further study.

On July 30, 1962 the acting provincial fiscal, to whom the matter
was referred by the municipal attorney of Talisay,
rendered the opinion that “Burgos Street is a municipal street and under
the law is a property devoted for public use” and is outside the commerce
of man; that there was no record to show that that portion of Burgos Street in
question had been withdrawn from public use by the municipal council, and that
nonuser alone would not destroy its public nature.

The members of the municipal council of Talisay
made an ocular inspection of the questioned area.  They concluded that there was no valid reason
for opening it to vehicular traffic.  The
council passed the aforementioned Resolution No. 59 which reads in part as
follows:

“x x x, THE
COUNCIL RESOLVED, that considering the above-mentioned portion of land being a
municipal property, therefore, to declare the same as closed or not necessary
for vehicular traffic.

“FURTHER RESOLVED, that this Body will take up on their next
coming session the question of the resident presently having their houses
located on the portion of land referred to in this resolution.”

A month later, or on October
20, 1962, the municipal council passed Resolution No. 82 wherein it
referred once more to the provincial fiscal the question of whether the
municipality has legal authority “to dispose of, lease, transfer, sale
(sell), mortgage and subdivide to the present
occupants” the land in question.

In a letter dated November 2, 1962 the acting provincial fiscal
informed the municipal council of Talisay that the
closure of a municipal street is governed by section 2246 of the Revised
Administrative Code which authorizes a municipal council to close a municipal
road, street, alley, park or square, after indemnifying any person prejudiced
thereby, and to use or con­vey for any lawful purpose such property withdrawn
from public servitude.

The fiscal advised that any resolution approving the closure of
the street should be accompanied with the following data required in a circular
of the Executive Bureau:  (1) the re­commendation of the district
engineer; (2) certified copies of documents executed by owners of lots adjacent
to the street to be closed waiving all claims for damages to their respective
properties, and (3) a statement of the provincial fiscal as to the sufficiency
of the documents submitted.

The matter did not end there. 
The controversy was elevated to the provincial board of Negros Occidental. 
That board resolved on June 26, 1964 to make an ocular inspection of
Burgos Street together with the municipal council of Talisay,
the parties concerned and the provincial fiscal.

After that ocular inspection, or on June 30, 1965, the provin­cial fiscal rendered an
opinion upholding the validity of the municipal council’s Resolution No. 59 and
stating that the coun­cil may dispose of the land in question, as its
patrimonial pro­perty, in any manner which it may deem proper.  The opinion contains the following findings:

“The immediate conclusion reached after the investigation is
that the parcel of land claimed to be an extension of Burgos Street of the
Municipality of Talisay does not practically exist as
a street; there is a small alley between houses from a meeting of two streets
leading towards a creek passable by one person at a time or with one following
another with a length of about twenty meters. 
Even without those houses, the width of the alley could not be widened
to conform with Burgos Street
as it is on the brink of a creek which in turn connects to the open sea.  That portion of land cannot be even
considered as part of Burgos Street
nor (may) it be properly called a thoroughfare. 
Such being the case, the require­ment of Section 2246 of the Revised
Administrative Code need not be complied with.”

In view of those findings, the provincial board passed on July 30, 1965 Resolution No. 1035
approving the municipal coun­cil’s Resolution No. 59.

More than seven months later, or on March 15, 1966, Mascuñana and his daughter Angeles filed in the Court of
First Instance of Negros Occidental against the
provincial board, the municipal council and the four occupants of the area in
question, namely, Councilor Leon T. Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano, a petition wherein they prayed that Resolution. No. 59 of the municipal council and Reso­lution
No. 1035 of the provincial board
be declared void. 
They also prayed for other equitable relief.

Annexed to the said petition is a cadastral map showing the lots
and streets in the Talisay poblacion.  That map of the Talisay
cadastre, which was traced by Adolfo T. Treyes on
July 25 and 26, 1960 under the supervision of Rafael Guerrero, Jr., a private
land surveyor, is known as Index Sheet No. 102, approved by the Director of
Lands on February 25, 1916.  It shows that while Burgos
Street ends at the bank of the river (its mouth
appa­rently), Zamora, Capitan Saba,
Libertad and Bonifacio
Streets end at the shores of Guimaras
Strait.

The petitioners alleged that a verification of the cadastral map
would show that the disputed area which is between Lots 82 and 81, was originally a part of Burgos
Street. 
They further alleged that Resolution No. 59 is void because there was no
com­pliance with the three requisites, prescribed in section 161 of the
Compilation of Provincial Circulars of the Executive Bureau, for the closure of
municipal streets as authorized in section 2246 of the Revised Administrative
Code.

The petitioners insinuated that the municipal council was
influenced by Councilor Treyes, one of the occupants
of the dis­puted area.  They alleged that
the provincial board made itself a party to an illegal act in order to justify
the stay of Councilor Treyes in that area.

The provincial board in its answer alleged that section 2246
cannot be invoked because the disputed portion is not a part of Burgos
Street.  The
municipal council did not file any answer. 
The four private respondents filed motions to dismiss.

In his motion respondent Treyes alleged
that he had occupied a part of the disputed area since 1942 and that he had
constructed thereon a house worth not less than P47,000
while his three co-respondents had occupied the area for more than twenty
years.  For that reason, according to Treyes, the remedy of declaratory relief is not proper in
this case since it would not terminate the uncertainty or controversy.  Treyes further
alleged that if, as shown in Mascuñana’s letter to
the mayor, he had subdivided his lot and transferred it to his three children, he
is not a real party in interest.  The
other three private respondents adopted the arguments of Treyes
in their motion to dismiss.

The petitioners in their opposition contended that their action
might be treated as an action for prohibition wherein they seek to enjoin the
enforcement of Resolution No. 59.

The lower court issued a minute or laconic order dated August 8, 1966 which reads:  “Finding the argument in support of the
motion to dismiss to be well-founded, the petition dated March 7, 1966 is hereby dismissed”.  It denied petitioners’ motion for
reconsideration in the same curt manner: 
“Finding the Motion for Reconsideration to be without merit, the
same is hereby denied”.

Mascuñana and Angeles M. Verdeflor appealed. 
The four private respondents did not file any appellees‘
brief.  The fiscal filed an appellees‘ brief for the provincial board and the municipal
council.  (The council, being in default
for not having answered the petition had no right to file an appellees‘ brief).

The issue is whether the petition states a cause of action which
the trial court should have tried on the merits instead of having summarily
dismissed it in a minute order
on the basis of the private respondents’ motions to dismiss and without having
discussed petitioners’ contentions.

As Angel Mascuñana had transferred his Lot
81 to his children, he might have ceased to have a direct interest in the
opening to vehicular traffic of the disputed area.  But his co-petitioner, Angeles M. Verdeflor, as the owner of Lot 81-A,
has such an interest because that lot is adjacent to the said area.  (Note that the cadastral map shows that Lot
80, belonging to Angel Mascuñana, as a lot
distinct and separate from Lot 81, has some proximity to
the disputed area).

The petitioners labor under the impression that their action is
for declaratory relief.  On the other
hand, the fiscal, as counsel for the provincial board, contends that an action
to declare void Resolution No. 59 of the municipal council is not an action for
declaratory relief because section 1, Rule 64 of the Rules of Court refers to
an ordinance and not to a resolution.

A municipal ordinance is not the same as a resolution of the
municipal council.  Legislative acts
passed by the muni­cipal council in the exercise of its lawmaking authority are
denominated ordinances (Sec. 2227, Revised Administrative Code).

A resolution is less solemn and formal than an ordinance.  It “is an act of a special or temporary
character, not pres­cribing a permanent rule of government, but is merely
declaratory of the will or opinion of a municipal corporation in a given
matter, and in the nature of a ministerial or administrative act, and is not a
law” (62 C.J.S. 786-7).

In reality, petitioners’ action is not for declaratory relief but
is an ordinary action for the enforcement of section 2246 of the Revised
Administrative Code and for the opening to vehicular traffic of the disputed
area.  That section reads as follows:

“SEC. 2246.  Authority to close thoroughfare.  With the prior authorization of the
Department Head, a municipal council may close any municipal road, street,
alley, park, or square; but no
such way or place aforesaid, or any part thereof, shall be closed without
indemnifying any person prejudiced thereby.

“Property thus withdrawn from public servitude may be used or
conveyed for any purpose for which other real pro­perty belonging to the
municipality might be lawfully used or conveyed.”

As stated on pages 9 to 11 of their brief, petitioners’ con­tention
is that Resolution No. 59 is void because the municipal council did not observe
the requisites delineated in section 161
of the Compilation of Provincial Circulars which requisites were
prescribed by the Executive Bureau for the implementation of section 2246.

If the disputed area is proven to have been a part of Burgos
Street, as the cadastral map seems to indicate,
and if its closure to vehicular traffic, as effectuated under Reso­lution No.
59, is held to be illegal, petitioner Verdeflor might
claim damages.

Thus, in Abella vs. Municipality of Naga, 90 Phil. 385, it was held that where the municipality
closed that part of a muni­cipal street, which ran between the public market
and the plain­tiff’s property, and the said adjoining property owner was ad­mittedly
damaged by such action, he was entitled to receiver the amount of the damage by virtue of
section 2246.  The munici­pality’s
contention that it was not liable for damages because it acted in the exercise
of its police power and or the public welfare was not sustained.  (Compare with Unson
vs. Lacson and Genato
Commercial Corp., 100 Phil. 695 and 112 Phil. 752, regarding the lease of a
part of a Manila street to a private firm which was declared void).

Mascuñana’s letter to the mayor shows petitioners’
cause of action.  In that letter, he
requested the mayor to clear the disputed area of squatters because their
constructions are prejudicial to the public in general and, in particular, to
petitioner Verdeflor as owner of Lot
81-A.

From petitioners’ viewpoint, they have reason to com­plain of a delict or wrong caused by the closure of the disputed area
to vehicular traffic due to the acts of the private respondents in occupying
that area and to the act of the public respondents in giving to that closure a
semblance of legality by means of their resolutions which have been questioned
by the petitioners in this case.

The finding of the fiscal and other provincial officials during
their ocular inspection that the disputed area is not a part of Burgos Street because it is not passable at all strengthens
petitioners’ cause of action that the resolution declaring it closed to
vehicular traffic should be voided and that the area should be cleared of
squatters so that it could be used by the public.

If, as revealed in the cadastral map, the disputed area was
originally a part of Burgos Street, then the constructions of the four private
respondents on said area, which obstruct and interfere with the free passage of
the street, may possibly be characterized as a nuisance which can be abated
summarily (Arts. 694 and 695, Civil Code; Letter of Instruction No. 19, dated
October 2, 1972, 68 O. G. 7962; Sitchon vs. Aquino, 98 Phil. 458).

The trial court in disposing of the case in a minute order gave
the impression that it had ignored or cavalierly treated petitioners’
contentions.

It is true that there is no rule requiring a trial court to make
findings of fact and law in an order of dismissal.  The constitutional requirement of making
findings of fact and law applies only to decisions.  Nevertheless, it should be borne in mind that
a trial court’s order dismissing a complaint or peti­tion is appealable like a final judgment.  Therefore, for the satisfaction of the losing
party and to assist the appellate court in
resolving the appeal, the trial court should take some pains to reason
out its order of dismissal and should not merely in­corporate therein, by
reference, the motion to dismiss.

We should not be understood as having prejudged this case in
favor of the petitioners-appellants. 
What is being underscored is that the ends of justice would be better
served by holding in this case a trial on the merits if no amicable settlement
is arrived at during the pre-trial or if there is no agreed statement of
facts.  The legal points raised by the
petitioners should be resolved in a decision on the merits of the case.

WHEREFORE, the trial court’s minute order of dismissal is
reversed and set aside with costs against the private res­pondents-appellees.

SO ORDERED.

Concepcion, Jr., and Santos,
JJ., concur.

Antonio, J., in the result.

Barredo, J., (Acting Chairman), concur with the observation that an order of
dismissal under Rule 16 is comparable to a judgment contemplated in Sec. 1 of
Rule 36.

Fernando, J., no part.