G.R. No. L-29910. April 25, 1969
ANTONIO C. FAVIS, PLAINTIFF-APPELLANT, VS. THE CITY OF BAGUIO AND THE SHELL COMPANY OF THE PHILIPPINES, LIMITED, DEFENDANTS-APPELLEES.
SANCHEZ, J.:
Key targets in plaintiff’s complaint for the restoration of the
original measurement – 8 meters wide – of the dead end of Lapu-Lapu
Street are: (1) Resolution No. 132,
Series of 1961, authorizing the lease by the City of Baguio
(hereinafter referred to as the City) to Shell Company of the Philippines,
Limited (Shell, for short) of Lot 25 of the Baguio
Market Subdivision and a portion of Lapu-Lapu Street
abutting said lot; and (2) Resolution No. 215, Series of 1961, amending the
first mentioned resolution by authorizing the vacation of the leased portion of
Lapu-Lapu Street and the conversion of the remainder
by the side thereof into an alley of 5 meters wide (4 meters in actual
use). Plaintiff wants these resolutions
stricken down as invalid. The court
below ruled in the negative. This appeal
is the offshoot.
The facts are as follows:
On April 30, 1957,
Antonio Favis bought a parcel of land of about 1,000
square meters – Lot 2-E-3-B-3-B-2 of the subdivision
plan (LRC) Psd-2179 – from the Assumption Convent, Inc. Said lot is bounded on the southwest by Lot
2-E-3-B-3-B-1 (proposed road), owned by Assumption Convent, Inc. and part of
subdivision plan Psd-2179.
Simultaneous with the sale, Assumption donated to the City –
“for road purposes” – the lot indicated in its subdivision plan as
the proposed road – Lot 2-E-3-B-3-B-1 aforesaid, 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.
Lapu-Lapu
Street is actually Lot 27
in the amendatory plan (Bcs-56-Amd 2, Residence Section “B”)
and is a portion of a big tract of land registered in the name of the City,
known as Baguio Market Subdivision, for all of which
the City holds Transfer Certificate of Title No. 2208. It branches out to various parts of the
market subdivision. From its
intersecting point with Dagohoy
Street and going northward, Lapu-Lapu Street is eight (8)
meters wide;[1]
it abruptly ends as it meets portions of two lots – the donated road
aforementioned and the lot owned by Olmina Fernandez
(Lot 2-E-3-B-1-A, Bsd-26963). Fernandez’ lot is fenced, with buildings; and
there is a sharp depression of at least 2 meters at the precise point it meets Lapu-Lapu Street.
Ocular inspection conducted by the trial court disclosed that 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.
Lot 25 of the Baguio
Market Subdivision is northernmost in said subdivision and contains an area of
approximately 400 square meters.
Immediately next to it, to the north, is the lot of Olmina
Fernandez aforesaid. 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 for another ten years. Shell constructed thereon a service station
of 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
described as follows:
“A parcel of land, known as Lot No. 25, of the Market
Subdivision and shown as ‘Lot A’ on Sketch Plan x x x marked ‘Exhibit A’ and made a
part hereof, situated in the City of Baguio,
containing an area of 335 sq. m. x x x“
and
“Also a parcel of land containing an area of 100 sq. m. more
or less, marked as ‘Lot B’ on Sketch Plan x x x“.
Lot 25 (Lot A), it is to be noted, is the same lot leased to
Shell way back in June, 1947 and the lease of Lot B is merely an addition
thereto. This additional area, taken
from Lapu-Lapu Street
is five (5) meters wide and twenty (20) meters long and abuts Lot
25.
About three weeks later, the City, thru its Mayor, entered into a
formal contract of lease with Shell.[2]
Shell filed an application with the Office of the City Engineer
of Baguio for a building permit for the construction
of a new and bigger gasoline station on the leased premises. Said office, in a letter to the City Council
thru the City Mayor dated June 30,1961, noted that the leased “[l]ot ‘B’ 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 street 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.
Apparently to obviate any and all objections to the lease of the
additional area to Shell, the City Council of Baguio,
on July 19, 1961, passed Resolution No. 215, amending Resolution No. 132,
Series of 1961, by converting that “portion of Lapu-Lapu
Street lying southeast from Lot B of the sketch plan prepared March 10, 1961 by
Private Land Surveyor Perfecto B. Espiritu, beginning
at this portion’s intersection with Dagohoy Street,
into an alley 5.00 meters wide (4 m. now in actual use); declaring for this
purpose, that said Lot B shall not be a part of this alley.”
On November 29, 1961,
Favis commenced suit for the annulment of the lease
contract with damages in the Court of First Instance of Baguio.[3]
He prayed that (1) defendants be ordered to stop, remove and/or demolish
whatever constructions had been introduced at the additional leased area on Lapu-Lapu Street; (2) the building permit and contract of
lease entered into by and between the defendants be cancelled and revoked for
being null and void; and (3) defendants be directed to pay, jointly and
severally, actual, compensatory, corrective and consequential damages totalling P50,000, attorneys’ fees in the sum of P2,000,
and the costs.
After hearing, the lower court, on May 21, 1962, rendered judgment upholding the two
questioned resolutions and dismissing the complaint, with costs.
We first address ourselves to the preliminary questions raised in
the appeal.
1. Amongst these is appellant’s charge 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.”
This objection is directed at form, not at substance. 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.”[4]
Such resolution may operate regardless of the name by which it is called.[5]
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. Appellant cites lack of
advertisement or direct notice to owners of contiguous properties whose rights
might be affected, as another ground to show invalidity of the
resolutions. The pertinent provision of
the charter reads, thus:
“x x x to
carry into effect by ordinance the powers hereinbefore granted in this subsection,
but no ordinance shall provide for more than one project of any of the kinds
named herein, nor create more than one district, assessment, and fund
necessary and appropriate therefor, and in each
and every such ordinance provision shall be made for notice to any and all
persons interested, giving them and each of them not less than two weeks from
and after the date of depositing a notice in the post-office at Baguio in a securely sealed postpaid wrapper addressed to
each person affected thereby and assessed thereunder
at his last known place of residence, or at Baguio if
no place of residence is known, or to an agent who may be or may have been
appointed by such person in writing, in which to appear and file objection to
either the work itself, the method or manner of assessment, the
time or times and method of payment therefor,
or to all thereof, and such other and further objection or objections as may
seem to any such person or persons reasonable and proper in the premises: such notice shall set forth the nature of the
proposed improvement, the estimated cost therefor,
the total amount of the assessment to be levied therefor,
and the amount to be levied upon each parcel of the property or
possession of the addressee; any and every such appearance and objection shall
be made and heard only before the city council, and council may, at any such
hearing alter, modify, or increase the area of such district, the total assessment
thereof, or any individual area or assessment objected to therein, and shall
decide any and ever such objection within ten days after the filing thereof and
give notice of such decision to the person or persons interested in the manner
hereinbefore provided for notice of such assessment within five days
thereafter. x x
x“[6]
The requirement of notice specified in the afore-quoted provision
of the city charter is not applicable to the case at bar. It will be observed that the notice is to be
given “to any, and all persons interested”,
to be placed in a securely sealed postpaid wrapper addressed “to each
person affected thereby and assessed thereunder.” The
accent is on the word and. The
person “affected” must also be “assessed”. And then, “such notice shall set forth
the nature of the proposed improvement, the estimated cost therefor,
the total amount of the assessment to be levied therefor,
and the amount to be levied upon each parcel of the property or possession of
the addressee.” In turn, the council, after hearing objections, may
“alter, modify, or increase the area of [the] district, the total assessment
thereof, or any individual area or assessment objected to therein.”
Clearly then, this method of giving notice applies only when an
ordinance calls for an assessment. So
that where no assessment has been made or is to be made, such notice need not
be given.
In the case at bar, the resolutions in question do not at all
call for any kind of assessment against appellant or his land. Hence, the notice that appellant would want
to have, need not be given.
Besides, appellant did actually protest Resolution 132
authorizing the lease to Shell. Such
protest was, however, overruled. And the
council passed Resolution 215, in effect, confirming the lease. The purpose of notice – on the assumption
that appellant is entitled thereto – is subserved. Appellant has no cause for complaint.
3. We now direct attention
to appellant’s plaint that the questioned resolutions narrowed down, much to
his prejudice, the width of Lapu-Lapu
Street at its connecting point with the donated
road which, in turn, leads to his land.
The reduction of the usable width from 8 meters to 4 meters cannot be
done, so he argues, because said resolutions violate Executive Order No. 113,
Series of 1955, issued by President Ramon Magsaysay,
particularly the following:
“IV. MUNICIPAL ROADS:
All highways not included in the above classifications, Municipal
and city roads shall have a right-of-way of not less than ten (10) meters;
provided that the principal streets of town sites located on public lands shall
have a width of sixty (60) meters and all other streets a width of not less
than fifteen (15) meters.”[7]
We do not go along with appellant. First, because the 2.5
meter opening connecting the donated road and Lapu-Lapu
Street has always been
that wide since the donated road was opened. The fact that this opening is 2.5 meters, is confirmed by the ocular inspection personally
made by the trial judge himself. The
occupancy by Shell of a portion of the road right-of-way did not in any way put
appellant to any more inconvenience than he already had. His outlet of Lapu-Lapu Street
of 2.5 meters still remains the same.
In the second place, the resolutions in question do not have the
effect of decreasing the width of the opening because said opening is far from
the leased portion of Lapu-Lapu
Street. The
said leased portion is on the left side of Lapu-Lapu Street, whereas the
opening lies on the right-uppermost part of Lapu-Lapu Street. That leased strip does not reach said
opening. In fact, while the lease
contract authorized Shell to take 5 meters wide of Lapu-Lapu Street, Shell occupied
only 4 meters wide.[8]
Thirdly, the executive order could not have been violated
because even before its promulgation, Lapu-Lapu Street was only 8
meters wide, and the said executive order did not demand widening to 10 meters
of existing streets. For it to have so
ordered would have entailed huge expenditure not only on the part of Baguio City
but many other municipal corporations as well which have streets less than 10
meters wide. For, compensation for the
expropriation of private property would have to be given.
4. 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.
Considering that “municipal corporations in the Philippines
are mere creatures of Congress; that, as such, said corporations possessed, and
may exercise, only such power as Congress may deem fit to grant
thereto”,[9] a
reference to the organic act of the City of Baguio appears to be in
order. In subsection (L) of Section 2553
of the Revised 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 mains, or any cemetery, sewer, sewer connection or
connections, either on, in, or upon public or private property; x x x.”[10]
Undoubtedly, the City is explicitly empowered to close a city
street.
We may drive home the point by presenting here the converse of
the rule as set forth in Unson vs. Lacson, supra.
There, as here, the municipal board passed an ordinance (No. 3470)
withdrawing the northern portion of Callejon del
Carmen from public use, declaring it patrimonial property of the City of Manila
and authorizing its lease to Genato Commercial
Corporation. Unson
had a lot bordering Callejon del
Carmen on which several buildings stood.
One of such buildings was known as “Commerce
Building”. Prior to the construction of Genato’s building on the leased premises, Unson’s lot had on its southern boundary two exits on Callejon del Carmen which had to
be closed upon the construction of said building. Unson went to court
alleging that the ordinance and the contract of lease with Geneto
were illegal. The trial court upheld the
city’s authority to withdraw such alley for public use and to convert it into
patrimonial property. But, on appeal, we
held:
“In this connection, respondents have been unable to cite any
legal provision specifically vesting in the City of Manila
the power to close Callejon del
Carmen. Indeed, section 18(x) of
Republic Act No. 409 – upon which appellees rely –
authorizes the Municipal Board of Manila ‘subject to the provisions of existing
laws, to provide for the laying out, construction and improvement …..
of streets, avenues, alleys ….. and
other public places,’ but it says nothing about the closing of
any such places. The significance of
this silence becomes apparent when contrasted with section 2246 of the Revised
Administrative Code, explicitly vesting in municipal councils of
regularly organized municipalities the power to close any municipal
road, street, alley, park or square, provided that persons prejudiced
thereby are duly indemnified, and, that the previous approval of the Department
Head shall have been secured. The express grant of such power to the
aforementioned municipalities and the absence of said grant to the City of Manila
lead to no other conclusion than that the power was intended to be withheld
from the latter.”[11]
5. So it is, that appellant may not challenge the city council’s act of
withdrawing a strip of Lapu-Lapu
Street at its dead end from public use and
converting the remainder thereof into an alley.
These are acts well within the ambit of the power to close a city
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.[12]
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.[13]
Deemed as material factors which a municipality must consider in
deliberating upon the advisability of closing a street are: “the topography of the property
surrounding the street in the light of ingress and egress to other streets; the
relationship of the street in the 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. These appear in the resolution (Resolution
215) itself, thus:
“WHEREAS, that portion of the road right-of-way of Lapu-Lapu Street, Baguio, beginning with its
intersection, with Dagohoy
Street does not have much traffic, being in fact a
dead-end street;
AND WHEREAS, the conversion of this portion of Lapu-Lapu
Street into a five-meter alley would neither prejudice nor damage any person or
property;
AND WHEREAS, in the subdivision scheme of the burned area of the
City Market Subdivision, already approved by the City Council, provision was
made for another road behind Lapu-Lapu
Street intersecting Dagohoy Street.”
Besides, there are the specific findings by the trial court that
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 leased to
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 all 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.
6. From the fact that the
leased strip of 100 square meters was 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.”
Authority is not wanting for the proposition that “[p]roperty
for public use of provinces and towns are governed by the same principles as
property of public dominion of the same character.”[15]
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 x x
x real x x x property, for the benefit of the city x x x.”
7. We now look into
appellant’s averment that by reducing the original width of Lapu-Lapu
Street, his entrance and exit to and from his property has become very
difficult; that it is now impossible for his big trucks and trailers to turn
around; that it made the area around it very dangerous in case of fire; and
that it has caused perpetual danger, annoyance, irreparable loss and damage not
only to the public in general but especially to herein plaintiff in
particular. For all these, he asks for
damages.
First to the governing principle:
“The general rule is that one whose property does not abut on 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. The circumstances in some cases
may be such as to give a right to damages to a property owner, even though his
property does not abut on the closed section.
But 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
kind, and not merely in degree, from those sustained by the public generally.”[16]
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 that the 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.”
Furthermore, it is physically impossible to connect Lapu-Lapu
street in its entire width – 8 meters – with the area donated to the City by
Assumption Convent, for the reason that the only, outlet between them is
2.5 meters wide. Even appellant’s
allegation that by reducing the width of Lapu-Lapu
Street it is now impossible for his big trucks to turn around is of dubious
veracity on the face of his testimony that turning around at the original Lapu-Lapu Street or at the junction of Lapu-Lapu
Street and the donated road has not been tried before and that his trucks
actually do their maneuvering at the intersection of Dagohoy
Street and Lapu-Lapu Street.[17]
Further, as stated in the resolution, provision has been “made for
another road behind Lapu-Lapu
Street and intersecting Dagohoy Street.”
It has been said that –
“The Constitution does not undertake to guarantee to a
property owner the public maintenance of the most convenient route to his
door. The law will not permit him to be
cut off from the public thoroughfares, but he must content himself with such
route for outlet as the regularly constituted public authority may deem most
compatible with the public welfare. When
he acquires city property, he does so in tacit recognition of these
principles. If, subsequent to his appreciation,
the city authorities abandon a portion of the street to which his property is
not immediately adjacent, 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.”[18]
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. Costs
against plaintiff-appellant.
Reyes, J.B.L., Acting C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, and Barredo, JJ., concur.
Concepcion, C.J., voted in favor of this opinion before going on
official leave.
Castro, J., on official leave,
did not take part.
Capistrano, J., did not take
part.
[1]
Leo V. Bernardez, a senior civil engineer in the
Office of the City Engineer of Baguio City, testified
that the actual width of Lapu-Lapu
Street is “about eight meters plus a sidewalk
on the shoulder of the road of about one and a half meters.” Tr. April 2, 1962, p. 54.
[2]
The contract was signed by Shell’s Vice President and General Manager on June 1, 1961 and by the City Mayor of Baguio on June 9,
1961.
[3]
Civil Case No. 1081, entitled “Antonio C. Favis, Plaintiff, vs. The City of Baguio and the Shell Company of the Philippines, Limited,
Defendants”.
[4]
37 Am Jur.,
p. 667. Dillon comments, thus: “But mere form will not affect
the validity of the action of the council if its adoption be attended by all
the solemnities which the law requires in the case of an act complying with the
prescribed form. Thus, when the statute
declares that the action of the council shall be evidenced by a resolution, the
fact that it is embodied in an ordinance does not affect its validity. The ordinance has all the essential elements
of the resolution, and, in addition, is adopted by a more formal and
deliberative procedure than a resolution.
And a resolution concerning a subject which is inherently legislative in its character and for which an ordinance is
required, will, if adopted with all the formalities required in the case of an
ordinance, be regarded as an ordinance and given effect accordingly. The substance, and not the form, of the
corporate act is what governs. But if the charter requires the act to be
done by ordinance, a resolution cannot receive effect as an ordinance if it is
not affirmatively established that it was passed with all the formalities and
published in the same manner as an ordinance.” Dillon, Municipal Corporations,
5th ed., vol. II, pp. 894-897.
[5]
62 C. J. S., p. 787.
[6]
Subsection (L), Section 2553 of the Revised Administrative Code [City Charter
of Baguio], underscoring supplied.
[7]
Underscoring supplied.
[8]
See: Appellee
Shell’s Brief, p. 23.
[9] Unson vs. Lacson, 100
Phil. 695, 700.
[10]
Emphasis supplied.
[11] Unson vs.
Lacson, supra, at p. 699, emphasis
supplied.
[12] Cf.
Joven vs. Director of Lands, 93 Phil. 134,
136-137; Ignacio vs. Director of Lands, L-12958, May 30, 1960.
[13] 11 McQuillin, Municipal Corporations, 3rd
ed., p. 128, citing cases.
[14] “The
aforementioned factors, although not supplying all considerations, nevertheless
furnish a fair standard for the determination by a governing body as to whether
a street is useful for public purposes and should not be closed.” Torrance
vs. Caddo Parish Police Jury (1960), 119 So. 2d 617,
620.
[15]
II Tolentino, Civil Code of the Philippines, 1963
ed., p. 36, citing 3 Manresa 111; Tan Toco vs. Municipality of Iloilo, 49 Phil. 52, 55; Espiritu vs. Municipal Council (S.C.) 54 Off. Gaz. 5140; City
of Manila vs. Guevarra, (C.A.)
50 Off. Gaz. 868; Province of Rizal vs. Santos, (C.A.) 56 Off. Gaz. 7968.
[16] Puyper vs.
Pure Oil. Co. (1952), 60 So. 2d. 569, 573, citing 18 Am. Jur., p. 856, emphasis supplied. See also: Coy vs. City of Tulsa
(1933), 2 F. Supp. 411, 414.
[17]
Tr., March 6, 1962, p. 32.
[18] Richmond
vs. City of Hinton (1936),
185 S.E. 411, 412-413. See also:
New York, C. & St. L.R. Co. vs. Bucsi
(1934), 190 N. E. 562, 565.