Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Juan L. Fontanilla for plaintiff-appellant.
Lichauco, Picaso and Agcaoili and Roman Mabanta, Jr. for defendant-appellee Shell Company.
The City Attorney for defendant-appellee City of Baguio.
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. 2209. 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 ... marked "Exhibit A" and made a part hereof, situated in the City of Baguio, containing an area of 335 sq. m....
and
Also a parcel of land containing an area of 100 sq. m. more or less, marked as "Lot B" on Sketch Plan...
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 "[1] to '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 uphelding the two questioned resolutions and dismissing the complaint, with costs.
We first address ourselves to the preliminary questions raised in the appeal.lawphi1.nêt
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: .
... 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 every 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....6
The requirement of notice specified in the aforequoted 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 to 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 2558 of the Review 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 remains, or any cemetery, sewer, sewer connection or connections, either on, in, or upon public or private property; .... 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 patrimonia 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 Genato 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 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.
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 property 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 ... real ... property, for the benefit of the city...."
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 heroin 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 from those sustained by kind, and not merely in degree, 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 or 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 route for outlet as the regularly constituted public with such 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.
Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Barredo, JJ., concur.
Reyes, J.B.L., Actg. C.J., concurs and certifies that the Chief Justice voted in favor of this opinion before going on official leave.
Castro, J., is on leave.
Capistrano, J., took no part.
Footnotes
1Leo 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.
2The 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.
3Civil Case No. 1081, entitled "Antonio C. Favis, Plaintiff, vs. The City of Baguio and the Shell Company of the Philippines, Limited, Defendants".
437 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.
562 C.J.S., p. 787.
6Subsection (L), Section 2553 of the Revised Administrative Code [City Charter of Baguio], emphasis supplied.
7Emphasis supplied.
8See: Appellee Shell's brief, p. 23, .
9Unson vs. Lacson, 100 Phil. 695. 700.
10Emphasis supplied.
11Unson vs. Lacson, supra, at p. 699, emphasis supplied.
12Cf. Joven vs. Director of Lands, 93 Phil. 134, 136-137; Ignacio vs. Director of Lands, L-12958, May 30, 1960.
1311 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 purpose and should not be closed." Torrance vs. Caddo Parish Police Jury (1960), 119 So. 2d 617, 620.
15II 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.
16Puyper 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.
17Tr., March 6, 1962, p. 32.
18Richmond 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.
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