Closure and Opening of Roads MACASIANO vs. DIOKNO G.R. No. 97764 FACTS: 1.

Respondent municipality passed Ordinance No. 86, which authorized the closure of certain streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. 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 be closed once the reclaimed areas are developed and donated by the Public Estate Authority.

August 10, 1992

7. Hence, respondents municipality and Palanyag filed with the trial 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 Ordinance No. 86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag. Hence, this petition was filed by the petitioner ISSUE: Whether Ordinance No. 86 passed by the respondent municipality is valid. HELD: The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article 424 of 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 or 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.

4. The municipal council of Paraaque issued a resolution authorizing Paraaque 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 Paraaque. 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.

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 of respondent municipality. Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress. Hence, local 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 Local Government Code. However, the legal provision which gives authority to local 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 of 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 petitioner being the highest bidder and the City of Cebu, through the Acting City Mayor, executed a deed of absolute sale to the herein petitioner 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 title to 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 of 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) under 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.

FAVIS vs. THE CITY OF BAGUIO G.R. No. L-29910 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 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 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 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 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 letterprotest 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. The City Council of Baguio, on July 19, 1961, passed Resolution No. 215, amending Resolution No. 132, by converting that "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 April 25, 1969

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 from public 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.

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. 2. 3. 4. 5. Whether or not the closure of city streets needs to be embodied in an ordinance. Whether or not city councils have the power to close city streets and withdraw them from public use. Whether or not the power to vacate streets by the city council can be interfered with by the courts. Whether or not the strip withdrawn from public use may be the subject of a contract of lease. Whether or not appellant is entitled to damages.

(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 that some private interests may be served incidentally will not invalidate the vacation ordinance. 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. The WHEREAS clauses in Resolution 215 provides that the subject portion of Lapu-Lapu Street does not have traffic and is in fact a dead end 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 Market 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 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.

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 ViceMayor, 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

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 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." 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 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. 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 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." 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 west up to Zodiac Street in the east. 2. Bel-Air Village was owned and developed into a residential 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 subject 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-Air 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 its ordinance No. 81, providing for the zonification of Makati. Under this Ordinance, Bel-Air Village was classified as a Class A Residential Zone, with its boundary in the south extending to the center line of 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 Makati 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 that 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 Street is not covered by the restrictive easements based on the "deed restrictions" 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. Our jurisdiction guarantees sanctity of contract and is said to be the "law between the contracting parties, but while it is so, it cannot 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, whenever necessary. Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power. The petitioners have not shown why we should hold otherwise other than for the supposed "non-impairment" guaranty of the Constitution, which, as we have declared, is secondary to the more compelling interests of general welfare. The Ordinance has not been shown to be capricious or arbitrary or unreasonable to warrant 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.