LEONOR WRIGHT DE DIOKNO AND RAMON DIOKNO, PLAINTIFFS AND APPELLANTS, VS. THE CITY OF MANILA, DEFENDANT AND APPELLEE.

This
is an appeal from a decision of the Court of First Instance of Manila
sustaining a demurrer to the complaint and dismissing the action. The
complaint in question reads as follows:

“The plaintiffs allege:

“1.
That the plaintiffs and the defendant are residents in the City of
Manila. The City of Manila is an organized public corporation under
special charter.

“2. That the plaintiffs are the owners and are enjoying peaceful possession of the following described property:

”
‘A parcel of land (lot No. 8) with the buildings and improvements
thereon, situated on the SW. line of Calle Real, now M. H. del Pilar,
District of Ermita, bounded on the NE. by Calle Real, now M. H. del
Pilar; on the SE. by an alley, now Calle Militar; on the SW. by the
property of the City of Manila, now E. A. Perkins, and on the NW. by
the property of the City of Manila, now Calle Soldado, containing an
area of 437.80 square meters, more or less.’

“3. That the adjoining property on the southwest side of the above described property is described as follows:

”
‘A parcel of land situated in the District of Ermita, bounded on the
north by an alley adjoining Calle Real and the bay; on the east by the
property of Josefa Cembrano, now Leonor Wright de Diokno; on the south
by another alley paralleled to the above named one, now Calle Militar,
and on the west by the bay, containing an area of 343.67 square meters.’

“4. The property described in paragraph 3 of this complaint was dedicated as public plaza and was named during the Spanish government ‘Plaza de Armas.’

“5.
That on or about July 7, 1910, His Excellency the Governor-General,
Honorable W. Cameron Forbes, granted, sold and conveyed the parcel of
land described in paragraph 3 of this complaint to the City of Manila,
belonging then to the Government of the Philippine Islands, under the
express condition that the said land premises shall be used solely for
public street, and that at any time the City of Manila shall not sell
or incumber or attempt to sell or incumber the said property. Copy of
the deed executed by His Excellency, Honorable W. Cameron Forbes, was
attached to the original complaint marked Exhibit A and is made a part
of this complaint.

“6. That the City of Manila accepted
the conditional sale and conveyance of the parcel of land described in
paragraph 2 of this amended complaint, took possession of the premises
and, based on this document marked Exhibit A, applied for the
registration of the said parcel of land, and the title was issued in
favor of the said city.

“7. That in the year 1919, the
plaintiffs purchased the property described in paragraph 2 of this
complaint from the previous owners in the amount of P35,000, because of
the sea view and the direct breeze from the sea and for the prospective
interest they may have for the opening of the street in the adjoining
property granted, sold and conveyed, as above stated, to the City of
Manila.

“8. That in spite of the condition expressed in
the deed marked Exhibit A, the City of Manila sold and incumbered the
property, described in paragraph 3 of this complaint, to Mr. E. A.
Perkins, who has built a house in the said parcel of land described in
paragraph 3 of this complaint, covering the building located in the
parcel of land described in paragraph 2 of this complaint on the
southwest side.

“9. That in view of the sale and
incumbrance made by the City of Manila to Mr. E. A. Perkins of the
parcel of land described in paragraph 2 of this complaint, the
plaintiffs lost the sea view and the direct breeze from the southwest
side, which said plaintiffs were enjoying before the above mentioned
sale to Mr. E. A. Perkins, and are now deprived to enjoy the commodity
of bounding their property on the southwest side with a public street
and diminished the market price of said, property, and lost also the
prospective interest they had when they purchased the parcel of land
described in paragraph 3 of this amended complaint.

“10.
That if the street is opened on the southwest side of the property
described in paragraph 3 of this complaint, imposed as a condition in
the document Exhibit A, the market price of the property described in
paragraph 2 of this complaint will be increased and should be valued at
P60,000.

“11. That in view of the fact that the City of
Manila did not comply with the condition imposed by His Excellency,
Honorable W. Cameron Forbes, in accordance with the terms of the deed,
marked Exhibit A, the plaintiffs suffered damages to the amount of
P25,000.

“It is, therefore, prayed for that decision be
rendered, ordering the City of Manila to build the street on the
premises described in paragraph 2 of this complaint, in accordance with
the terms of the deed, marked Exhibit A, or otherwise be condemned to
pay the amount of P25,000 in favor of the plaintiffs, with costs. The
plaintiffs further pray for any other relief which the court may deem
just and equitable.

“Manila, P. I., February 17, 1925.”

Exhibit A, referred to in paragraph 5 of the complaint, reads as follows:

“Know all men by these presents:

“That,
I, W. Cameron Forbes, Governor-General of the Philippine Islands, party
of the first part, in consideration of the sum of one peso (P1)
Philippine currency, receipt whereof is hereby acknowledged, and for
other good and valuable consideration hereinafter set forth, under and
by virtue of the authority vested in me by Act of the Philippine
Legislature Numbered Eighteen hundred and ninety, for and in the name
of the Government of the Philippine Islands do hereby grant, sell and
convey to the Government of the City of Manila, party of the second
part, for public streets purposes, all that tract or parcel of land
together with all building and improvement thereon situated in the City
of Manila, Philippine Islands, bounded and described as follows:

“Beginning
at a point marked A, on plan J-106-60, said point being S. 68° 24′ 00”
W. ang. 27.6 meters from the southeast corner of the house No. 249,
Calle Real, Ermita.

“Thence S. 69° 08′ W. along the north side of an alley adjoining Calle Real, and the bay 18.00 meters to point B on plan;

“Thence N. 23° 26′ W. along the bay 19.44 meters to point marked C on plan;

“Thence
N. 77° 02′ E. along the S. side of a small alley adjoining Calle Real
and the bay 20.27 meters to point marked D on plan;

“Thence S. 16° 47′ E. along W. side of Josefa Cembrano’s property 16.70 meters to point of beginning;

“Said parcel of land being bounded:

“On
the north by an alley adjoining Calle Real and the bay; on the east by
property of Josefa Cembrano; on the south by another alley paralleled
to the above-named one; on the west by the bay.

“Containing 343.67 square meters.

“The
above described parcel of land being shown on plan J-10-60, entitled
‘City property in near of No. 249 Calle Real, District of Ermita.’

“Scale: 1:200.

“Date: February 28, 1907.

‘All bearing refer to Magnetic Meridian.

“This
conveyance is hereby made upon the express condition which is hereby
accepted as a part of the consideration hereof that the land and
premises hereby granted shall not be alienated or incumbered by the
said party of the second part but shall be used solely for a public
street and that if at any time the said party of the second part shall
sell or incumber or attempt to sell or incumber the said premises or if
at any time the aforesaid property or any part thereof shall cease to
be used for a public street, then this grant shall thereupon become
null and void and all the right, title and interest hereby granted to
the said Government of the City of Manila in and to the aforesaid
property shall thereupon cease and determine and revert to the
Government of the Philippine Islands and the said Government of the
Philippine Islands may reenter upon said premises and take possession
thereof.

“In witness whereof I have set my hand and caused
the seal of the Government of the Philippine Islands to be affixed
hereto this 7th day of July, nineteen hundred and ten.

(Sgd.)		“W. CAMERON FORBES
		“Governor-General
	“(Sello del Gobierno)

“In the presence of
(Sgd.)		“THOMAS CARY WELCH
		“GM. EGEM.
		“(Acknowledgment) “

The
defendant demurred to the complaint on the ground that it did not state
facts sufficient to constitute a cause of action. The demurrer was
sustained by an order dated March 4, 1925. On March 9 the plaintiffs
filed an exception to the order and announced their intention to appeal
to the Supreme Court and, on March 31, filed a motion declining to
amend the complaint. The court below thereupon rendered judgment
dismissing the complaint with the costs against the plaintiffs.

Upon appeal, the plaintiffs-appellants present only one assignment of
error, namely, that the court erred in sustaining the demurrer to the
complaint and in not requiring the defendant to answer said complaint.

The discussion of the legal issues involved in the case is simplified
by bearing in mind that this is not an action to set aside or enjoin an
alleged illegal sale, nor is it a question of maintaining a street
already in existence. Neither is it here a case of building lots
purchased in reliance on a plat or map showing streets, alleys, and
other public places. The action is brought (1) to compel the City of
Manila to open and construct a new street or, (2) in default thereof,
to pay damages to the plaintiffs.

The first alternative may
be disposed of in very few words. Judicial compulsion to open a new
street could only be enforced through the issuance of a writ of
mandamus. It is settled beyond argument that the planning and opening
of new streets is discretional with municipal corporations and it is
equally well settled that in the absence of fraud or gross abuse,
mandamus will not lie to control such discretion.

As to the
claim for damages the plaintiffs allege in paragraph 11 of the
complaint “that in view of the fact that the City of Manila did not
comply with the condition imposed by His Excellency, Honorable W.
Cameron Forbes, in accordance with the terms of the deed, marked
Exhibit A, the plaintiffs suffered damages to the amount of P25,000.”

A street is a public improvement and the general rule is that a
municipal corporation cannot be held liable in damages for failure to
construct such improvements. The rule is thus stated in Ruling Case Law:

“The
liability of a municipal corporation with respect to the construction
of public improvements does not extend to matters which are left by law
to its discretion, and it cannot be held civilly liable for failure to
construct or to supply a particular public improvement, upon proof that
such improvement was so urgently required by public convenience and
necessity that the corporation was neglectful of its duties in not
supplying it. The decision as to which of the many needed improvements
the available funds should be expended upon is an executive or
administrative function involving the exercise of judgment and after it
has once been rendered it is not open to review by the courts. Even
when the construction of a public improvement is necessary to prevent a
dangerous menace to life and limb, if the municipality in which such a
situation exists is under no positive duty to construct the
improvement, it is not civilly liable for failing to do so. * * * ” (19
R. C. L., 1089.)

Judge Dillon, in his work
on Municipal Corporations, says: “A municipal corporation is not liable
to an action for damages, either for the nonexercise of, or for the
manner in which, in good faith, it exercises, discretionary powers of a
public or legislative character.” (See also Ewen vs. City of Philadelphia, 194 Pa. St., 548; McDade vs. City of Chester, 117 Pa. St., 414; Wheeler vs. City of Cincinnati, 19 Ohio St., 19; Forsyth vs. Mayor and Council of Atlanta, 45 Ga., 153; Fisher vs. City of Boston, 104 Mass., 87.)

Authorities might be multiplied indefinitely. It is true that the
decisions are, not all on one side, but the great weight of authority
supports the rule above stated. But the appellants argue that the land
here in question has been a public plaza and that the city is liable in damages for its closing under section 2246 of the Administrative Code which reads as follows:

“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.”

The only allegation in the complaint bearing upon this point is paragraph 4 which reads:

“The property described in paragraph 3 of this complaint was dedicated as public plaza and was named during the Spanish government ‘Plaza de Armas.'”

It will be noted that it is not alleged that the land has been a plaza subsequent to the Spanish regime; in fact, as far as the complaint shows, the plaza
might have been closed or discontinued before the American occupation
and long before the appellants acquired their interest in the adjoining
property; the conveyance of the land by the Governor-General to the
city so indicates. Very obviously the complaint fails to show a cause
of action upon this ground.

We find no error in the decision
appealed from and it is therefore affirmed with the costs against the
appellants. So ordered.

Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.