THE MUNICIPALITY OF ABUCAY, PLAINTIFF AND APPELLEE, VS. ABUCAY PLANTATION CO. AND B. A. GREEN, DEFENDANTS AND APPELLANTS.

The municipality of Abucay, Province of
Bataan, brought this action to compel the defendants to open to the
public the country roads Gabon, Mabatang and Laon, situated within the
said municipality; to remove the wire fences constructed by them, and
to refrain in the future from closing the said roads to the public.
Plaintiff alleged jn its complaint that the said roads were for public
use from time immemorial and that the defendants, claiming to be the
owners thereof because included in their title to the plantation known
as the “Abucay Plantation Company,” illegally closed them to the
public. The defendants in their answer only denied generally and
specifically the material allegations of the complaint. Upon motion of
the plaintiff, the court issued a preliminary injunction ordering the
defendants to remove the fences or obstructions which they placed upon
the roads, and enjoining them, until further order, from preventing and
obstructing the public from using said roads. After the plaintiff had
adduced its evidence at the trial, counsel for the defendants moved to
dismiss the case upon the grounds that the plaintiff had not
established its cause of action; that it had not been established that
the municipal council of Abucay had authorized the municipal president,
by ordinance or resolution, to represent the plaintiff in the case,
wherefore, its standing in the case had not been proved, and that it
had not been established likewise that the municipal council of Abucay
had agreed to institute the action. The court denied the motion to
dismiss, and at the same time decided the case declaring the Gabon,
Mabatang and Laon roads open and destined for public use, and made the
preliminary injunction permanent, with the costs to the defendants. The
latter moved for a new trial, excepted to the order denying said
motion, and, finally, presented the bill of exceptions which was
approved by resolution of this court of October 23, 1934 in the
mandamus case, G. R. No. 42535, between the same parties.

As to the facts, the plaintiff established that the three roads
in question had existed during the Spanish regime and were always
destined for the use of the public and considered as property of the
municipality of Abucay, open for the common use and passage of the
inhabitants of the town, although they were then only footpaths with no
well-defined width that they have now, which is six (6) meters according
to the cadastral plans. A portion of the Gabon road crosses the
hacienda of the Abucay Plantation Company, and the latter’s officers
built a fence thereon and prevented its use by the public. In the
partial decisions rendered in cadastral case No. 3 of Abucay on March
28, 1919 and February 2, 1922, the court held that the Gabon and Laon
roads belonged to the municipality of Abucay, destined for common and
public use, and ordered that the corresponding decrees be issued in
favor of said municipal corporation. And in the partial decisions
rendered on August 5, 1922, and July 21, 1927, in cadastral cases Nos.
7 and 9 of the same municipality, the court likewise held that all
highways, roads, streets, and alleys found within the lands included in
the cadastral plans, among them being the Mabatang road, were public
property of the Government of the Philippine Islands. In the plan of
the hacienda of the defendant corporation it appears that the three
roads aforesaid are excluded from the lands of the hacienda and are
public roads destined for the common use of the inhabitants of the town
of Abucay.

In support of the motion to dismiss, counsel for the defendants
alleged that the plaintiff’s action should be dismissed because it did
not establish that the municipal council of Abucay had approved an
ordinance or resolution authorizing the institution of the action and
empowering the municipal president to represent it in, the case. We
believe that the contention is without merit. The complaint shows that
the one who instituted the action was the municipality of Abucay, not
the municipal president. Section 2165 of the Revised Administrative
Code authorizes municipalities to sue by instituting civil actions, and
to be sued. In the absence of any evidence to the contrary, the
presumption must be that the municipal council of Abucay, whose members
represent the municipality under Article IX, Title IX, of the aforesaid
Code, agreed by resolution or ordinance to bring the present action
(sec. 334, No. 14, Code of Civil Procedure). As to the other point, we
note that the municipal president did not represent either the
municipality of Abucay or the municipal council in the case. The
complaint only shows that the municipal president signed for the
municipality of Abucay, plaintiff, after the latter’s name was made to
appear as plaintiff. In these circumstances it can not be held that the
municipal president represented the municipality of Abucay or its
municipal council in the case, and it must also be presumed that said
official was actually authorized to sign the complaint for the
plaintiff (sec. 334, No. 31, Code of Civil Procedure). We, therefore,
reach the conclusion and so hold that the first assignment of error is
untenable.

As has been said, the court did not immediately pass upon the
motion to dismiss filed by counsel for the defendants, but denied the
same in its decision and at the same time considered the case on its
merits without waiting for the defendants to present their evidence.
The latter contend that the court erred in not affording them an
opportunity to present their evidence after denying their motion, and
state in their brief that they filed said motion conditionally, that
is, without prejudice to their right to adduce evidence should the
motion to dismiss be denied. We have gone over the transcript of record
and found that counsel for the defendants did not reserve such right
but submitted the motion without any condition. The defendants
insinuate that one of their attorneys made the reservation which does
not appear in the transcript but which, in a conversation with the
judge, the latter accepted as having been actually made. We cannot
accept the contention upon this point because it does not appear in the
record and the trial judge, in his decision, stated indirectly that the
defendants did not reserve their right to adduce evidence. As between
what appears of record and what does not appear therein and which is
further denied by the other party, we choose to believe the former.

The motion to dismiss filed by counsel for the defendants during
the trial and after the plaintiff had closed its evidence was in effect
a demurrer to the sufficiency of plaintiff’s evidence. In reality it
was based upon the fact that the plaintiff had not established its
standing or right to bring the action; hence, the defendants overlooked
the ordinance or resolution to that effect enacted and approved by the
municipal council of Abucay. It is a practice sanctioned by the
jurisprudence in this jurisdiction to permit both in criminal and civil
cases the presentation of motions to dismiss or demurrers to the
evidence based upon the insufficiency of the evidence of the
prosecution or of the plaintiff, and it has been invariably held that
when the accused or the defendants do not reserve their right to adduce
evidence, the courts may decide the case upon the evidence only thus
submitted, and on appeal, should the evidence be sufficient to affirm
the appealed decision, the case will not be remanded for a new trial to
receive the evidence suppressed. (U. S. vs. Abaroa, 3 Phil., 116; U. S. vs. Romero, 22 Phil., 565; U. S. vs. De la Cruz, 28 Phil., 279; U. S. vs. Choa Chiok, 36 Phil., 831; Demeterio vs. Lopez, 50 Phil., 45; Moody, Aronson & Co. vs. Hotel Bilbao, 50 Phil., 198; Ortiz vs.
Balgos, 54 Phil., 171.) The same rule applies in election cases, except
that when the protestee reserves his right to adduce evidence, it is
the duty of the court to overrule the motion to dismiss and to require
him to introduce his evidence in support of his defenses or
counterprotest, if any. (Demeterio vs. Lopez, supra.)

In the brief filed by counsel for the defendants, they cite the ruling in Demeterio vs. Lopez, supra,
thus giving the impression that the said ruling favors their stand. A
reading of the doctrine in said case reveals a confirmation of the rule
that when a defendant in a civil case presents a motion to dismiss upon
the ground of the insufficiency of plaintiff’s evidence, without
reserving his right to present his own evidence, should the motion to
dismiss be overruled, he loses his right to adduce his evidence, and
the court may decide the case upon its merits taking into account only
the evidence for the plaintiff. The reason assigned for the doctrine
thus established is, that in such cases it must be understood that the
party filing the motion to dismiss without any reservation renounces
its right to present evidence.

In the case of Ortiz vs. Balgos, supra, the
doctrine has been reiterated and the cases wherein the doctrine has
been uniformly laid down has been cited with approval. It will be seen
from a reading of the decision that the different result reached
therein was due to the fact that the motion or demurrer was not based
upon the insufficiency of plaintiff’s evidence, but upon the legal
question raised that a necessary party defendant had not been included
in the complaint.

Finding, therefore, that the defendants did not reserve their right
to adduce their evidence, we hold that the second assignment of error
is untenable.

The last assignment of error refers to the denial of the motion for
new trial. In view of the conclusions heretofore reached, we hold that
the motion for new trial was properly denied by the court and no error
was thereby committed.

For the foregoing considerations, the appealed judgment is
affirmed, with the costs of this instance to the defendants and
appellants. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Diaz, Laurel, and Concepcion, JJ., concur.