G.R. No.

L-14355 October 31, 1919 question was used as a cemetery in which were the graves of his
ancestors; that monuments and tombstones of great value were
THE CITY OF MANILA, plaintiff-appellant, vs. CHINESE COMMUNITY OF found thereon; that the land had becomequasi-public property of a
MANILA, ET AL., defendants-appellees. benevolent association, dedicated and used for the burial of the dead
and that many dead were buried there; that if the plaintiff deemed it
JOHNSON, J.: necessary to extend Rizal Avenue, he had offered and still offers to
grant a right of way for the said extension over other land, without
cost to the plaintiff, in order that the sepulchers, chapels and graves
The important question presented by this appeal is: In expropriation of his ancestors may not be disturbed; that the land so offered, free
proceedings by the city of Manila, may the courts inquire into, and hear of charge, would answer every public necessity on the part of the
proof upon, the necessity of the expropriation? plaintiff.
The defendant Feliza Concepcion de Delgado, with her husband,
PETITIONER City of Manila presented a petition in the CFI praying Jose Maria Delgado, and each of the other defendants, answering
that certain lands be expropriated for the purpose of constructing a separately, presented substantially the same defense as that
public improvement namely, the extension of Rizal Avenue, Manila. presented by the Comunidad de Chinos de Manila and Ildefonso
DEFENDANT Chinese Community of Manila alleged that it was a Tambunting above referred to.
corporation organized and existing under the laws of the Philippines,
having for its purpose the benefit and general welfare of the Chinese The foregoing parts of the defense presented by the defendants have been
Community of the City of Manila; that it was the owner of parcels one inserted in order to show the general character of the defenses presented by
and two of the land described in paragraph 2 of the complaint; that each of the defendants. The plaintiff alleged that the expropriation was
it denied that it was either necessary or expedient that the said necessary. The defendants each alleged (a) that no necessity existed for
parcels be expropriated for street purposes; that existing street and said expropriation and (b) that the land in question was a cemetery, which
roads furnished ample means of communication for the public in the had been used as such for many years, and was covered with sepulchres
district covered by such proposed expropriation; that if the and monuments, and that the same should not be converted into a street for
construction of the street or road should be considered a public public purposes.
necessity, other routes were available, which would fully satisfy the
plaintiff's purposes, at much less expense and without disturbing the
Hon. Judge Simplicio del Rosario decided that there was no necessity for
resting places of the dead; that it had a Torrens title for the lands in
the expropriation of the particular strip of land and absolved each and all of
question; that the lands in question had been used by the defendant
the defendants from all liability.
for cemetery purposes; that a great number of Chinese were buried
in said cemetery; that if said expropriation be carried into effect, it
would disturb the resting places of the dead, would require the Plaintiff appealed. It argued that, under the law, it has authority to expropriate
expenditure of a large sum of money in the transfer or removal of the land, it may expropriate any land it may desire; that the only function of the
bodies to some other place or site and in the purchase of such new court in such proceedings is to ascertain the value of the land in question;
sites, would involve the destruction of existing monuments and the that neither the court nor the owners of the land can inquire into the advisible
erection of new monuments in their stead, and would create purpose of purpose of the expropriation or ask any questions concerning the
irreparable loss and injury to the defendant and to all those persons necessities therefor; that the courts are mere appraisers of the land involved
owning and interested in the graves and monuments which would in expropriation proceedings, and, when the value of the land is fixed by the
have to be destroyed; that the plaintiff was without right or authority method adopted by the law, to render a judgment in favor of the defendant
to expropriate said cemetery or any part or portion thereof for street for its value.
purposes; and that the expropriation, in fact, was not necessary as a
public improvement. That the city of Manila has authority to expropriate private lands
The defendant Ildefonso Tambunting denied each and every for public purposes, is not denied. Section 2429 of Act No. 2711 (Charter of
allegation of the complaint, and alleged that said expropriation was the city of Manila) provides that "the city (Manila) . . . may
not a public improvement; that it was not necessary for the plaintiff to condemn private property forpublic use."
acquire the parcels of land in question; that a portion of the lands in
The Charter of the city of Manila contains no procedure by which the said If, upon the other hand, however, the Legislature should grant general
authority may be carried into effect. We are driven, therefore, to the authority to a municipal corporation to expropriate private
procedure marked out by Act No. 190 to ascertain how the said authority land for public purposes, we think the courts have ample authority in this
may be exercised. From an examination of Act No. 190, in its section 241, jurisdiction, under the provisions above quoted, to make inquiry and to hear
we find how the right of eminent domain may be exercised. Said section 241 proof, upon an issue properly presented, concerning whether or not the lands
provides that, "The Government of the Philippine Islands, or of any province were private and whether the purpose was, in fact, public. In other words,
or department thereof, or of any municipality, and any person, or public or have no the courts in this jurisdiction the right, inasmuch as the questions
private corporation having, by law, the right to condemn private property for relating to expropriation must be referred to them (sec. 241, Act No. 190) for
public use, shall exercise that right in the manner hereinafter prescribed." final decision, to ask whether or not the law has been complied with?
Suppose in a particular case, it should be denied that the property is
Section 242 provides that a complaint in expropriation proceeding shall be not private property but public, may not the courts hear proof upon that
presented; that the complaint shall state with certainty the right of question? Or, suppose the defense is, that the purpose of the expropriation is
condemnation, with a description of the property sought to be condemned not public but private, or that there exists no public purpose at all, may not
together with the interest of each defendant separately. the courts make inquiry and hear proof upon that question?

Section 243 provides that if the court shall find upon trial that the right to The city of Manila is given authority to expropriate private lands
expropriate the land in question exists, it shall then appoint commissioners. for public purposes. Can it be possible that said authority confers the right to
determine for itself that the land is private and that the purpose is public, and
Sections 244, 245 and 2v46 provide the method of procedure and duty of the that the people of the city of Manila who pay the taxes for its support,
commissioners. Section 248 provides for an appeal from the judgment of the especially those who are directly affected, may not question one or the other,
or both, of these questions? Can it be successfully contended that the phrase
Court of First Instance to the Supreme Court. Said section 248 gives the
Supreme Court authority to inquire into the right of expropriation on the part used in Act No. 190, "and if the court upon trial shall find that
such right exists," means simply that the court shall examine thestatutes
of the plaintiff. If the Supreme Court on appeal shall determine that no right of
simply for the purpose of ascertaining whether a law exists authorizing the
expropriation existed, it shall remand the cause to the Court of First Instance
with a mandate that the defendant be replaced in the possession of the petitioner to exercise the right of eminent domain? Or, when the case arrives
in the Supreme Court, can it be possible that the phrase, "if the Supreme
property and that he recover whatever damages he may have sustained by
Court shall determine that no right of expropriation exists," that that simply
reason of the possession of the plaintiff.
means that the Supreme Court shall also examine the enactments of the
legislature for the purpose of determining whether or not a law exists
It is contended on the part of the plaintiff that the phrase in said section, "and permitting the plaintiff to expropriate?
if the court shall find the right to expropriate exists," means simply that, if the
court finds that there is some law authorizing the plaintiff to expropriate, then
We are of the opinion that the power of the court is not limited to that
the courts have no other function than to authorize the expropriation and to
question. The right of expropriation is not an inherent power in a municipal
proceed to ascertain the value of the land involved; that the necessity for the
corporation, and before it can exercise the right some law must exist
expropriation is a legislative and not a judicial question.
conferring the power upon it. When the courts come to determine the
question, they must only find (a) that a law or authority exists for the exercise
Upon the question whether expropriation is a legislative function exclusively, of the right of eminent domain, but (b) also that the right or authority is being
and that the courts cannot intervene except for the purpose of determining exercised in accordance with the law. In the present case there are two
the value of the land in question, there is much legal legislature. Much has conditions imposed upon the authority conceded to the City of Manila: First,
been written upon both sides of that question. A careful examination of the the land must be private; and, second, the purpose must be public. If the
discussions pro and con will disclose the fact that the decisions depend court, upon trial, finds that neither of these conditions exists or that either one
largely upon particular constitutional or statutory provisions. It cannot be of them fails, certainly it cannot be contended that the right is being exercised
denied, if the legislature under proper authority should grant the expropriation in accordance with law.
of a certain or particular parcel of land for some specified public purpose, that
the courts would be without jurisdiction to inquire into the purpose of that
Whether the purpose for the exercise of the right of eminent domain is public,
legislation.
is a question of fact. Whether the land is public, is a question of fact; and, in
our opinion, when the legislature conferred upon the courts of the Philippine constructing it, the suitableness of the location selected and the
Islands the right to ascertain upon trial whether the right exists for the consequent necessity of taking the land selected for its site, are all
exercise of eminent domain, it intended that the courts should inquire into, questions exclusively for the legislature to determine, and the courts
and hear proof upon, those questions. Is it possible that the owner of have no power to interfere, or to substitute their own views for those
valuable land in this jurisdiction is compelled to stand mute while his land is of the representatives of the people.
being expropriated for a use not public, with the right simply to beg the city of
Manila to pay him the value of his land? Does the law in this jurisdiction Practically every case cited in support of the above doctrine has been
permit municipalities to expropriate lands, without question, simply for the examined, and we are justified in making the statement that in each case the
purpose of satisfying the aesthetic sense of those who happen for the time legislature directly determined the necessity for the exercise of the right of
being to be in authority? Expropriation of lands usually calls for public eminent domain in the particular case. It is not denied that if the necessity for
expense. The taxpayers are called upon to pay the costs. Cannot the owners the exercise of the right of eminent domain is presented to the legislative
of land question the public use or the public necessity? department of the government and that department decides that there exists
a necessity for the exercise of the right in a particular case, that then and in
As was said above, there is a wide divergence of opinion upon the authority that case, the courts will not go behind the action of the legislature and make
of the court to question the necessity or advisability of the exercise of the inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co.
right of eminent domain. The divergence is usually found to depend upon vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]),
particular statutory or constitutional provisions. which was cited in support of the doctrine laid down in section 158 above
quoted, the court said:
It has been contended and many cases are cited in support of that
contention, and section 158 of volume 10 of Ruling Case Law is cited as But when the statute does not designate the property to be taken nor
conclusive that the necessity for taking property under the right of eminent how may be taken, then the necessity of taking particular property is
domain is not a judicial question. But those who cited said section evidently a question for the courts. Where the application to condemn or
overlooked the section immediately following (sec. 159), which adds: "But it appropriate is made directly to the court, the question (of necessity)
is obvious that if the property is taken in the ostensible behalf of a public should be raised and decided in limene.
improvementwhich it can never by any possibility serve, it is being taken for a
use not public, and the owner's constitutional rights call for protection by the The legislative department of the government was rarely undertakes to
courts. While many courts have used sweeping expression in the decisions designate the precise property which should be taken for public use. It has
in which they have disclaimed the power of supervising the power of generally, like in the present case, merely conferred general authority to take
supervising the selection of the sites of public improvements, it may be safely land for public use when a necessity exists therefor. We believe that it can be
said that the courts of the various states would feel bound to interfere to confidently asserted that, under such statute, the allegation of the necessity
prevent an abuse of the discretion delegated by the legislature, by an for the appropriation is an issuable allegation which it is competent for the
attempted appropriation of land in utter disregard of the possible necessity of courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402,
its use, or when the alleged purpose was a cloak to some sinister scheme." 407].)
(Norwich City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc.
Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio
There is a wide distinction between a legislative declaration that a
St., 368; State vs. Stewart, 74 Wis., 620.)
municipality is given authority to exercise the right of eminent domain, and a
decision by the municipality that there exist a necessity for the exercise of
Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in that right in a particular case. The first is a declaration simply that there exist
support of the contention of the appellant, says: reasons why the right should be conferred upon municipal corporation, while
the second is the application of the right to a particular case. Certainly, the
The legislature, in providing for the exercise of the power of eminent legislative declaration relating to the advisability of granting the power cannot
domain, may directly determine the necessity for appropriating be converted into a declaration that a necessity exists for its exercise in a
private property for a particular improvement for public use, and it particular case, and especially so when, perhaps, the land in question was
may select the exact location of the improvement. In such a case, it not within the territorial authority was granted.
is well settled that the utility of the proposed improvement, the extent
of the public necessity for its construction, the expediency of
Whether it was wise, advisable, or necessary to confer upon a municipality against the will of the owner, notwithstanding compensation may be
the power to exercise the right of eminent domain, is a question with which required."
the courts are not concerned. But when that right or authority is exercised for
the purpose of depriving citizens of their property, the courts are authorized, In the case of School Board of Carolina vs. Saldaa (14 Porto Rico, 339,
in this jurisdiction, to make inquiry and to hear proof upon the necessity in the 356), we find the Supreme Court of Porto Rico, speaking through Justice
particular case, and not the general authority. MacLeary, quoting approvingly the following, upon the question which we are
discussing: "It is well settled that although the legislature must necessarily
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited determine in the first instance whether the use for which they (municipalities,
as a further conclusive authority upon the question that the necessity for the etc.) attempt to exercise the power is a public one or not, their
exercise of the right of eminent domain is a legislative and not a judicial (municipalities, etc.) determination is not final, but is subject to correction by
question. Cyclopedia, at the page stated, says: the courts, who may undoubtedly declare the statute unconstitutional, if it
shall clearly appear that the use for which it is proposed to authorize the
In the absence of some constitutional or statutory provision to the taking of private property is in reality not public but private." Many cases are
contrary, the necessity and expediency of exercising the right of cited in support of that doctrine.
eminent domain are questions essentially political and not judicial in
their character. The determination of those questions (the necessity Later, in the same decision, we find the Supreme Court of Porto Rico says:
and the expediency) belongs to the sovereign power; the legislative "At any rate, the rule is quite well settled that in the cases under
department is final and conclusive, and the courts have no power to consideration the determination of the necessity of taking a particular
review it (the necessity and the expediency) . . . . It (the legislature) piece or a certain amount of land rests ultimately with the courts." (Spring
may designate the particular property to be condemned, and its Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
determination in this respect cannot be reviewed by the courts.
In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L.
The volume of Cyclopedia, above referred to, cites many cases in support of R. A., N. S., 1024]), the Supreme Court of Connecticut approvingly quoted
the doctrine quoted. While time has not permitted an examination of all of the following doctrine from Lewis on Eminent Domain (3d ed.), section 599:
said citations, many of them have been examined, and it can be confidently "In all such cases the necessity of public utility of the proposed work or
asserted that said cases which are cited in support of the assertion that, "the improvement is a judicial question. In all such cases, where the authority is to
necessity and expediency of exercising the right of eminent domain are take property necessary for the purpose, the necessity of taking particular
questions essentially political and not judicial," show clearly and invariably property for a particular purpose is a judicial one, upon which the owner is
that in each case the legislature itself usually, by a special law, designated entitled to be heard." (Riley vs.Charleston, etc. Co., 71 S. C., 457, 489 [110
the particular case in which the right of eminent domain might be exercised Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390, 403.)
by the particular municipal corporation or entity within the state. (Eastern R.
Co. vs.Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park The taking of private property for any use which is not required by the
Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, necessities or convenience of the inhabitants of the state, is an unreasonable
etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., exercise of the right of eminent domain, and beyond the power of the
390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53; legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, 633;
U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely,
196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as etc. Co., 132 Ky., 692, 697.)
242 U.S.].)
In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537,
In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme 564), the Supreme Court of the State of Maryland, discussing the question
Court of the United States said: "It is erroneous to suppose that the before us, said: "To justify the exercise of this extreme power (eminent
legislature is beyond the control of the courts in exercising the power of domain) where the legislature has left it to depend upon the necessity that
eminent domain, either as to the nature of the use or the necessity to the use may be found to exist, in order to accomplish the purpose of the
of any particular property. For if the use be not public or no necessity for the incorporation, as in this case, the party claiming the right to the exercise of
taking exists, the legislature cannot authorize the taking of private property the power should be required to show at least a reasonable degree of
necessity for its exercise. Any rule less strict than this, with the large and Lecoul vs.Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann.,
almost indiscriminate delegation of the right to corporations, would likely lead 182.)
to oppression and the sacrifice of private right to corporate power."
Blackstone, in his Commentaries on the English Law said that the right to
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: own and possess land a place to live separate and apart from others to
"Its right to condemn property is not a general power of condemnation, but is retain it as a home for the family in a way not to be molested by others is
limited to cases where a necessity for resort to private property is shown to one of the most sacred rights that men are heirs to. That right has been
exist. Such necessity must appear upon the face of the petition to condemn. written into the organic law of every civilized nation. The Acts of Congress of
If the necessary is denied the burden is upon the company (municipality) to July 1, 1902, and of August 29, 1916, which provide that "no law shall be
establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; enacted in the Philippine Islands which shall deprive any person of his
Kiney vs.Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon property without due process of law," are but a restatement of the time-
Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].) honored protection of the absolute right of the individual to his property.
Neither did said Acts of Congress add anything to the law already existing in
It is true that naby decisions may be found asserting that what is a public use the Philippine Islands. The Spaniard fully recognized the principle and
is a legislative question, and many other decisions declaring with equal adequately protected the inhabitants of the Philippine Islands against the
emphasis that it is a judicial question. But, as long as there is a constitutional encroachment upon the private property of the individual. Article 349 of the
or statutory provision denying the right to take land for any use other than a Civil Code provides that: "No one may be deprived of his property unless it
public use, it occurs to us that the question whether any particular use is a be by competent authority, for some purpose of proven public utility, and
public one or not is ultimately, at least, a judicial question. The legislative after payment of the proper compensation Unless this requisite (proven
may, it is true, in effect declare certain uses to be public, and, under the public utility and payment) has been complied with, it shall be theduty of the
operation of the well-known rule that a statute will not be declared to be courts to protect the owner of such property in its possession or to restore its
unconstitutional except in a case free, or comparatively free, from doubt, the possession to him , as the case may be."
courts will certainly sustain the action of the legislature unless it appears that
the particular use is clearly not of a public nature. The decisions must be The exercise of the right of eminent domain, whether directly by the State, or
understood with this limitation; for, certainly, no court of last resort will be by its authorized agents, is necessarily in derogation of private rights, and the
willing to declare that any and every purpose which the legislative might rule in that case is that the authority must be strictly construed. No species of
happen to designate as a public use shall be conclusively held to be so, property is held by individuals with greater tenacity, and none is guarded by
irrespective of the purpose in question and of its manifestly private character the constitution and laws more sedulously, than the right to the freehold of
Blackstone in his Commentaries on the English Law remarks that, so great is inhabitants. When the legislature interferes with that right, and, for greater
the regard of the law for private property that it will not authorize the least public purposes, appropriates the land of an individual without his consent,
violation of it, even for the public good, unless there exists a very great the plain meaning of the law should not be enlarged by doubtly interpretation.
necessity therefor. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am.
Dec., 576].)
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of
the United States said: "That government can scarcely be deemed free The statutory power of taking property from the owner without his consent is
where the rights of property are left solely defendant on the legislative body, one of the most delicate exercise of government authority. It is to be watched
without restraint. The fundamental maxims of free government seem to with jealous scrutiny. Important as the power may be to the government, the
require that the rights of personal liberty and private property should be held inviolable sanctity which all free constitutions attach to the right of property of
sacred. At least no court of justice in this country would be warranted in the citizens, constrains the strict observance of the substantial provisions of
assuming that the power to violate and disregard them a power so the law which are prescribed as modes of the exercise of the power, and to
repugnant to the common principles of justice and civil liberty lurked in any protect it from abuse. Not only must the authority of municipal corporations to
general grant of legislature authority, or ought to be implied from any general take property be expressly conferred and the use for which it is taken
expression of the people. The people ought no to be presumed to part with specified, but the power, with all constitutional limitation and directions for its
rights so vital to their security and well-being without very strong and direct exercise, must be strictly pursued. (Dillon on Municipal Corporations [5th
expression of such intention." (Lewis on Eminent Domain, sec. 603; Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil.,
411.)
It can scarcely be contended that a municipality would be permitted to take exercise the authority conferred, it must comply with the conditions
property for some public use unless some public necessity existed therefor. accompanying the authority. The necessity for conferring the authority upon
The right to take private property for public use originates in the necessity, a municipal corporation to exercise the right of eminent domain is admittedly
and the taking must be limited by such necessity. The appellant contends within the power of the legislature. But whether or not the municipal
that inasmuch as the legislature has given it general authority to take private corporation or entity is exercising the right in a particular case under the
property for public use, that the legislature has, therefore, settled the conditions imposed by the general authority, is a question which the courts
question of the necessity in every case and that the courts are closed to the have the right to inquire into.
owners of the property upon that question. Can it be imagined, when the
legislature adopted section 2429 of Act No. 2711, that it thereby declared The conflict in the authorities upon the question whether the necessity for the
that it was necessary to appropriate the property of Juan de la Cruz, whose exercise of the right of eminent domain is purely legislative and not
property, perhaps, was not within the city limits at the time the law was judicial, arises generally in the wisdom and propriety of the legislature in
adopted? The legislature, then, not having declared the necessity, can it be authorizing the exercise of the right of eminent domain instead of in the
contemplated that it intended that a municipality should be the sole judge of question of the right to exercise it in a particular case. (Creston Waterworks
the necessity in every case, and that the courts, in the face of the provision Co. vs. McGrath, 89 Iowa, 502.)
that "if upon trial they shall find that a right exists," cannot in that trial inquire
into and hear proof upon the necessity for the appropriation in a particular
By the weight of authorities, the courts have the power of restricting the
case?
exercise of eminent domain to the actual reasonable necessities of the case
and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48
The Charter of the city of Manila authorizes the taking of private property Minn., 540.)
for public use. Suppose the owner of the property denies and successfully
proves that the taking of his property serves no public use: Would the courts
And, moreover, the record does not show conclusively that the plaintiff has
not be justified in inquiring into that question and in finally denying the
definitely decided that their exists a necessity for the appropriation of the
petition if no public purpose was proved? Can it be denied that the courts
particular land described in the complaint. Exhibits 4, 5, 7, and E clearly
have a right to inquire into that question? If the courts can ask questions and
indicate that the municipal board believed at one time that other land might
decide, upon an issue properly presented, whether the use is public or not, is be used for the proposed improvement, thereby avoiding the necessity of
not that tantamount to permitting the courts to inquire into the necessity of
distributing the quiet resting place of the dead.
the appropriation? If there is no public use, then there is no necessity, and if
there is no necessity, it is difficult to understand how a public use can
necessarily exist. If the courts can inquire into the question whether a public Aside from insisting that there exists no necessity for the alleged
use exists or not, then it seems that it must follow that they can examine into improvements, the defendants further contend that the street in question
the question of the necessity. should not be opened through the cemetery. One of the defendants alleges
that said cemetery is public property. If that allegations is true, then, of
course, the city of Manila cannot appropriate it for public use. The city of
The very foundation of the right to exercise eminent domain is a genuine
Manila can only expropriate private property.
necessity, and that necessity must be of a public character. The
ascertainment of the necessity must precede or accompany, and not follow,
the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; It is a well known fact that cemeteries may be public or private. The former is
Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry. etc. a cemetery used by the general community, or neighborhood, or church,
Co., 72 Ohio St., 368.) while the latter is used only by a family, or a small portion of the community
or neighborhood. (11 C. J., 50.)
The general power to exercise the right of eminent domain must not be
confused with the right to exercise it in aparticular case. The power of the Where a cemetery is open to public, it is a public use and no part of the
legislature to confer, upon municipal corporations and other entities within ground can be taken for other public uses under a general authority. And this
the State, general authority to exercise the right of eminent domain cannot be immunity extends to the unimproved and unoccupied parts which are held in
questioned by the courts, but that general authority of municipalities or good faith for future use. (Lewis on Eminent Domain, sec. 434, and cases
entities must not be confused with the right to exercise it in particular cited.)
instances. The moment the municipal corporation or entity attempts to
The cemetery in question seems to have been established under of necessity, or for laudable purposes, the sanctity of the grave, the last
governmental authority. The Spanish Governor-General, in an order creating resting place of our friends, should be maintained, and the preventative aid of
the same, used the following language: the courts should be invoked for that object. (Railroad
Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery
The cemetery and general hospital for indigent Chinese having been Association vs. The City of New Haven, 43 Conn., 234;
founded and maintained by the spontaneous and fraternal Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.)
contribution of their protector, merchants and industrials, benefactors
of mankind, in consideration of their services to the Government of In the present case, even granting that a necessity exists for the opening of
the Islands its internal administration, government and regime must the street in question, the record contains no proof of the necessity of
necessarily be adjusted to the taste and traditional practices of those opening the same through the cemetery. The record shows that adjoining
born and educated in China in order that the sentiments which and adjacent lands have been offered to the city free of charge, which will
animated the founders may be perpetually effectuated. answer every purpose of the plaintiff.

It is alleged, and not denied, that the cemetery in question may be used by For all of the foregoing, we are fully persuaded that the judgment of the lower
the general community of Chinese, which fact, in the general acceptation of court should be and is hereby affirmed, with costs against the appellant. So
the definition of a public cemetery, would make the cemetery in question ordered.
public property. If that is true, then, of course, the petition of the plaintiff must
be denied, for the reason that the city of Manila has no authority or right Separate Opinions
under the law to expropriate public property.
STREET, J., dissenting: It may be admitted that, upon the evidence before
But, whether or not the cemetery is public or private property, its us, the projected condemnation of the Chinese Cemetery is unnecessary and
appropriation for the uses of a public street, especially during the lifetime of perhaps ill-considered. Nevertheless I concur with Justice Moir in the view
those specially interested in its maintenance as a cemetery, should be a that the authorities of the city of Manila are the proper judges of the propriety
question of great concern, and its appropriation should not be made for such of the condemnation and that this Court should have nothing to do with the
purposes until it is fully established that the greatest necessity exists therefor. question of the necessity of the taking.

While we do not contend that the dead must not give place to the living, and MOIR, J., dissenting: I dissent from the majority opinion in this case, which
while it is a matter of public knowledge that in the process of time sepulchres has not yet been written, and because of the importance of the question
may become the seat of cities and cemeteries traversed by streets and daily involved, present my dissent for the record.
trod by the feet of millions of men, yet, nevertheless such sacrifices and such
uses of the places of the dead should not be made unless and until it is fully
This is an action by the city of Manila for the expropriation of land for an
established that there exists an eminent necessity therefor. While cemeteries
extension of Rizal Avenue north. The petition for condemnation was opposed
and sepulchres and the places of the burial of the dead are still within by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and
the memory and command of the active care of the living; while they are still various other who obtained permission of the trial court to intervene in the
devoted to pious uses and sacred regard, it is difficult to believe that even the
case.
legislature would adopt a law expressly providing that such places, under
such circumstances, should be violated.
All of the defendants allege in their opposition that the proposed extension of
Rizal Avenue cuts through a part of the Chinese Cemetery, North of Manila,
In such an appropriation, what, we may ask, would be the measure of and necessitates the destruction of many monuments and the removal of
damages at law, for the wounded sensibilities of the living, in having the
many graves.
graves of kindred and loved ones blotted out and desecrated by a common
highway or street for public travel? The impossibility of measuring the
damage and inadequacy of a remedy at law is too apparent to admit of The Court of First Instance of Manila, Honorable S. del Rosario, judge after
argument. To disturb the mortal remains of those endeared to us in life hearing the parties, decided that there was no need for constructing the
sometimes becomes the sad duty of the living; but, except in cases street as and where proposed by the city, and dismissed the petition.
The plaintiff appealed and sets up the following errors: damages. Instead of doing so, the court entered upon the question of the
right of the city to take the property and the necessity for the taking.
1. The court erred in deciding that the determination of the necessity
and convenience of the expropriation of the lands of the defendants The court says:
lies with the court and not with the Municipal Board of the city of
Manila. The controversy relates to whether or not the Chinese Cemetery,
where a great majority of this race is buried and other persons
2. The court erred in permitting the presentation of proofs over the belonging to other nationalities have been formerly inhumed,
objection and exception of the plaintiff tending to demonstrate the is private or public; whether or not said cemetery, in case it is public,
lack of necessity of the projected street and the need of the lands in would be susceptible to expropriation for the purpose of public
question. improvements proposed by the city of Manila; whether or not the
latter is justified of the necessity and expediency of similar
3. The court erred in declaring that the plaintiff had no right to expropriation before its right to the same would be upheld by the
expropriate the lands in question. courts of justice; and whether or not the appreciation of
said necessity pertains to the legislative or the judicial department
before which the expropriation proceedings have been brought.
4. The court erred in dismissing the complaint.

The right of the plaintiff to expropriate property for public use cannot be Relative to the first point, it is not necessary for the court to pass
upon its consideration, in view of the conclusion it has arrived at the
denied. The "right of eminent domain is inherent in all sovereignties and
appreciation of the other points connected with each other.
therefore would exist without any constitutional recognition . . . . The right of
eminent domain antedates constitutions . . . . The right can only be denied or
restricted by fundamental law and is right inherent in society." (15 Cyc., pp. From the testimony of two reputable engineers produced by some of
557-8.) . the defendants, it appears that the land chosen by the plaintiff for the
extension of Rizal Avenue to the municipality of Caloocan is not the
best or the less expensive, although upon it there may be
This general right was recognized in the Philippine Code of Civil Procedure
constructed a straight road, without curves or winding; but that in
effective October 1st, 1901, which prescribed the manner of exercising the
right. (Sections 241 et seq.) order to construct said road upon said land, the city of Manila would
have to remove and transfer to other places about four hundred
graves and monuments, make some grubbings, undergo some
It was further recognized in the Organic Act of July 1st, 1902, which provides leveling and build some bridges the works thereon, together with
in section 74 "that the Government of the Philippine Islands may the construction of the road and the value of the lands expropriated,
grant franchises . . . including the authority to exercise the right of eminent would mean an expenditure which will not be less than P180,000.
domain for the construction and operation of works of public utility and
service, and may authorize said works to be constructed and maintained
over and across the public property of the United States including . . . Beside that considerable amount, the road would have a declivity of
3 per cent which, in order to cover a distance of one kilometer, would
reservations." This provisions is repeated in the Jones Law of August, 1916.
require an energy equivalent to that which would be expanded in
covering a distance of two and one-half kilometers upon a level road.
The legislature of the Islands conferred the right on the city of Manila.
(Section 2429, Administrative Code of 1917; section 2402, Administrative
On the other hand, if the road would be constructed with the
Code of 1916.)
deviation proposed by Ildefonso Tambunting, one of the defendants,
who even offered to donate gratuitously to the city of Manila part of
Clearly having the right of expropriation, the city of Manila selected the line of the land upon which said road will have to be constructed, the
its street and asked the court by proper order to place the plaintiff in plaintiff entity would be able to save more than hundreds of thousand
possession of the land described in the complaint, and to appoint of pesos, which can be invested in other improvements of greater
Commissioners to inspect the property, appraise the value, and assess the pressure and necessity for the benefit of the taxpayers; and it will not
 have to employ more time and incur greater expenditures in the In the absence of some constitutional or statutory provision to the
removal and transfer of the remains buried in the land of the Chinese contrary, the necessity and expediency of exercising the right of
Community and of Sr. Tambunting, although with the insignificant eminent domain are questions essentially political and not judicial in
disadvantage that the road would be little longer by a still more their character. The determination of those questions belongs to the
insignificant extension of 426 meters and 55 centimeters less than sovereign power; the legislative determination is final and conclusive,
one-half kilometer, according to the plan included in the records; but and the courts have no power to review it. It rests with the legislature
it would offer a better panorama to those who would use it, and who not only to determine when the power of eminent domain may be
would not have to traverse in their necessary or pleasure-making exercised, but also the character, quality, method, and extent of such
trips or walks any cemetery which, on account of its nature, always exercise. And this power is unqualified, other than by the necessity of
deserves the respect of the travellers. It should be observed that the providing that compensation shall be made. Nevertheless, under
proposed straight road over the cemetery, which the city of Manila is the express provisions of the constitution of some states the question
proposing to expropriate, does not lead to any commercial, industrial, of necessity is made a judicial one, to be determined by the courts
or agricultural center, and if with said road it is endeavored to benefit and not by the legislature.
some community or created interest, the same object may be
obtained by the proposed deviation of the road by the defendants. While the legislature may itself exercise the right of determining the
The road traced by the plaintiffs has the disadvantage that the lands necessity for the exercise of the power of eminent domain, it may,
on both sides thereof would not serve for residential purposes, for unless prohibited by the constitution, delegate this power to public
the reason that no one has the pleasure to construct buildings upon officers or to private corporations established to carry on enterprises
cemeteries, unless it be in very overcrowded cities, so exhausted of in which the public are interested, and their determination that a
land that every inch thereof represents a dwelling house. necessity for the exercise of the power exists is conclusive. There is
no restraint upon the power except that requiring compensation to be
And it is against the ruling, that it lies with the court to determine the made. And when the power has been so delegated it is a subject of
necessity of the proposed street and not with the municipal board, that the legislative discretion to determine what prudential regulations shall
appellant directs its first assignment of error. be established to secure a discreet and judicious exercise of the
authority. It has been held that in the absence of any statutory
It is a right of the city government to determine whether or not it will construct provision submitting the matter to a court or jury the decision of the
streets and where, and the court's sole duty was to see that the value of the question of necessity lies with the body of individuals to whom the
property was paid the owners after proper legal proceedings ascertaining the state has delegated the authority to take, and the legislature may be
value. express provision confer this power on a corporation to whom the
power of eminent domain is delegated unless prohibited by the
The law gives the city the right to take private property for public use. It is constitution. It is of course competent for the legislature to declare
that the question shall be a judicial one, in which case the court and
assumed it is unnecessary to argue that a public road is a public use.
not the corporation determines the question of necessity. (15 Cyc.,
pp. 629-632.)
But it is argued that plaintiff must show that it is necessary to take this land
for a public improvement. The law does not so read, and it is believed that
the great weight of authority, including the United States Supreme Court, is To the same effect is Lewis on Eminen Domain (3d Edition, section 597).
against the contention.
I quote from the notes to Vol. 5, Encyclopedia of United States Supreme
Court Reports, p. 762, as follows:
The question of necessity is distinct from the question of public use,
and former question is exclusively for the legislature, except that if
the constitution or statute authorizes the taking of property only in Neither can it be said that there is any fundamental right secured by
cases of necessity, then the necessity becomes a judicial question. the constitution of the United States to have the questions of
(McQuillen Municipal Corporations, Vol. IV, pp. 3090-3091.) compensation and necessity both passed upon by one and the same
jury. In many states the question of necessity is never submitted to
the jury which passes upon the question of compensation. It is either
settled affirmatively by the legislature, or left to the judgment of the
 corporation invested with the right to take property by condemnation. (Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting U.S. vs. Jones,
The question of necessity is not one of a judicial character, but rather 109, U.S., 519.)
one for determination by the lawmaking branch of the government.
(Boom Co. vs.Patterson, 98 U.S., 403, 406 [25 L. ed., 206]; United And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it
States vs. Jones, 109 U.S., 513 [27 L. ed., 1015]; Backus vs. Fort said:
Street Union Depot Co., 169 U.S., 557, 568 [42 L. ed., 853].)
Plaintiff contends that the ordinance is void because the general
Speaking generally, it is for the state primarily and exclusively, to statute which authorized the appropriation violates both Article 1,
declare for what local public purposes private property, within its paragraph 10, of the Federal Constitution, and the Fourteenth
limits may be taken upon compensation to the owner, as well as to Amendment, in that it authorizes the municipality to determine the
prescribe a mode in which it may be condemned and taken. necessity for the taking of private property without the owners having
(Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S., 239, 252 an opportunity to be hear as to such necessity; that in fact no
[49 L. ed., 462].) necessity existed for any taking which would interfere with the
company's project; since the city might have taken water from the
Courts have no power to control the legislative authority in the Little Cuyahoga or the Tuscarawas rivers; and furthermore, that it
exercise of their right to determine when it is necessary or expedient has taken ten times as much water as it can legitimately use. It is
to condemn a specific piece of property for public purposes. well settled that while the question whether the purpose of a taking is
(Adirondack R. Co. vs.New York States, 176 U.S., 335 [44 L. ed., a public one is judicial (Hairston vs.Danville & W. R. Co., 208 U.S.
492].) 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. Cas., 1008]),
the necessityand the proper extent of a taking is a legislative
10 R. C. L. (p. 183), states the law as follows: question. (Shoemaker vs. United States, 147 U.S., 282, 298 [57 L.
ed., 170, 184; 13 Supt. Ct. Rep., 361]; United States vs. Gettysburg
158. Necessity for taking ordinarily not judicial question. The Electric R. Co., 160 U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct.
Rep., 427]; United States vs. Chandler-Dunbar Water Power Co.,
legislature, in providing for the exercise the power of eminent
229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup. Ct. Rep., 667].)
domain, may directly determine the necessity for appropriating
private property for a particular improvement or public use, and it
may select the exact location of the improvement. In such a case, it I think the case should be decided in accordance with foregoing citations, but
is well settled that the utility of the proposed improvement, the extent one other point has been argued so extensively that it ought to be
of the public necessity for its construction, the expediency of considered.
constructing it, the suitableness of the location selected and the
consequent necessity of taking the land selected for its site, are all It is contended for the defense that this Chinese Cemetery is a public
questions exclusively for the legislature to determine, and the courts cemetery and that it cannot therefore be taken for public use. In its answer
have no power to interfere, or to substitute their own views for the "Comunidad de Chinos de Manila" says it is "a corporation organized and
these of the representatives of the people. Similarly, when the existing under and by virtue of the laws of the Philippine Islands," and that it
legislature has delegated the power of eminent domain to municipal owns the land which plaintiff seeks to acquire. The facts that it is private
or public service corporation or other tribunals or bodies, and has corporation owning land would seem of necessity to make the land it owns
given them discretion as to when the power is to be called into private land. The fact that it belongs to the Chinese community deprives it of
exercise and to what extent, the court will not inquire into the any public character.
necessity or propriety of the taking.
But admitting that it is a public cemetery, although limited in its use to the
The United States Supreme Court recently said: Chinese Community of the city of Manila, can it not be taken for public use?
Must we let the reverence we feel for the dead and the sanctity of their final
The uses to which this land are to be put are undeniably public uses. resting-place obstruct the progress of the living? It will be instructive to
When that is the case the propriety or expediency of the inquire what other jurisdictions have held on that point.
appropriation cannot be called in question by any other authority.
On the Application of Board of Street Openings of New York City to acquire Cemetery Company on April 9th, 1849, and there was, therefore, a
St. Johns Cemetery (133 N.Y., 329) the court of appeal said: contract between the Cemetery Company and the State of
Pennsylvania, which would be violated by the taking of any part of
. . . The board instituted this proceeding under the act to acquire for their property for street purposes. It was further contended that there
park purposes the title to land below One Hundred and Fifty-fifth were 11,000 persons buried in the cemetery.
street known as St. John's cemetery which belonged to a religious
corporation in the city of New York, commonly called Trinity Church. The court held that property and contracts of all kinds must yield to
It was established as a cemetery as early as 1801, and used for that the demand of the sovereign and that under the power of eminent
purpose until 1839, during which time about ten thousand human domain all properties could be taken, and that if there was a contract
bodies had been buried therein. In 1839 an ordinance was passed between the State of Pennsylvania and the Cemetery Association,
by the city of New York forbidding interments south of Eighty-sixth the contract itself could be taken for public use, and ordered the
street, and since that time no interments have been made in the opening of the street through the cemetery.
cemetery, but Trinity Church has preserved and kept it in order and
prevented any disturbance thereof. In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it is
said:
It is contended on behalf of Trinity Church that under the general
authority given by statute of 1887, this land which had been devoted Although it has been held, that where a state has delegated the
to cemetery purposes could not be taken for a park. The authority power of eminent domain to a person or corporation and where by its
conferred upon the board by the act is broad and general. It is exercise lands have been subject to a public use, they cannot be
authorized to take for park purposes any land south of One Hundred applied to another public use without specific authority expressed or
and Fifty-fifth street. . . . . implied to that effect, yet, the general rule seems to be that the fact
that property is already devoted to a public use, does not exempt it
The fact that lands have previously been devoted to cemetery from being appropriated under the right of eminent domain but it may
purposes does not place them beyond the reach of the power of be so taken for a use which is clearly superior or paramount to the
eminent domain. That is an absolute transcendent power belonging one to which it is already devoted. (Citing many United States
to the sovereign which can be exercised for the public welfare Supreme Court decisions.)
whenever the sovereign authority shall determine that a necessity for
its exercise exists. By its existence the homes and the dwellings of A few cases have been cited where the courts refused to allow the opening
the living, and the resting-places of the dead may be alike of streets through cemeteries, but in my opinion they are not as well
condemned. considered as the cases and authorities relied upon herein.

It seems always to have been recognized in the laws of this state, The holding of this court in this case reverses well settled principles of law of
that under the general laws streets and highways could be laid out long standing and almost universal acceptance.
through cemeteries, in the absence of special limitation or
prohibition. . . .
The other assignments of error need not be considered as they are involved
in the foregoing.
In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the
Supreme Court of the State said: The decision should be reversed and the record returned to the Court of First
Instance with instructions to proceed with the case in accordance with this
This was an action for the opening of a street through a cemetery in decision.
the City of Philadelphia. It was contended for the United American
Mechanics and United Daughters of America Cemetery Association
that by an act of the legislature of the State approved March 20th,
1849, they were forever exempt from the taking of any their property
for streets, roads or alleys and this Act was formally accepted by the
G.R. No. 71169 December 22, 1988 When Jupiter Street was widened in 1972 by 3.5 meters, the fence or
wall had to be destroyed.
JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners, Upon request of BAVA, the wall was rebuilt inside the boundary of
FELIX C. GASTON and DOLORES R. GASTON, JOSE V. BRIONES and the commercial block.
ALICIA R. BRIONES, and BEL-AIR VILLAGE ASSOCIATION, When the appellant finally decided to subdivide and sell the lots in
INC., intervenors-petitioners, vs. INTERMEDIATE APPELLATE COURT, the commercial block between Buendia and Jupiter, BAVA wrote the
and AYALA CORPORATION, respondents. appellant, requesting for confirmation on the use of the commercial
lots. The appellant replied, informing BAVA of the restrictions
SARMIENTO, J.: intended to be imposed in the sale and use of the lots.
Among these restrictions are: that with respect to vehicular traffic
Before the Court are five consolidated petitions. along Buendia Avenue, entrance only will be allowed, and along
Jupiter Street and side streets, both entrance and exit will be
allowed.
I. G.R. No. 71169
Appellant informed BAVA that in a few months it shall subdivide and
sell the commercial lots bordering the north side of Buendia Avenue
Bel-Air Village is located north of Buendia Avenue extension (now Extension from Reposo Street up to Zodiac Street. Appellant also
Sen. Gil Puyat Ave.) across a stretch of commercial block from informed BAVA that it had taken all precautions and will impose upon
Reposo Street in the west up to Zodiac Street in the east, the commercial lot owners deed restrictions which will harmonize and
When Bel-Air Village was planned, this block between Reposo and blend with the development and welfare of Bel-Air Village.
Zodiac Streets adjoining Buendia Avenue in front of the village was In its letter, BAVA acknowledged the above letter of appellant and
designated as a commercial block. informed the latter that the application for special membership of the
Bel-Air Village was owned and developed into a residential commercial lot owners in BAVA would be submitted to BAVA's board
subdivision in the 1950s by Makati Development Corporation which of governors for decision.
in 1968 was merged with appellant Ayala Corporation. Appellant notified BAVA that, after a careful study, it was finally
spouses Sangalang reside at No. 11O Jupiter Street between Makati decided that the height limitation of buildings on the commercial lots
Avenue and Reposo Street; spouses Gaston reside at No. 64 Jupiter shall be increased from 12.5 meters to 15 meters. Appellant further
Street between Makati Avenue and Zodiac Street; spouses Briones informed BAVA that Jupiter Street shall be widened by 3.5 meters to
reside at No. 66 Jupiter Street also between Makati Avenue and improve traffic flow in said street.
Zodiac Street; while appellee Bel-Air Village Association, Inc. (BAVA) Meantime, the municipal council of Makati enacted its ordinance No.
is the homeowners' association in Bel-Air Village which takes care of 81, providing for the zonification of Makati. Under this Ordinance,
the sanitation, security, traffic regulations and general welfare of the Bel-Air Village was classified as a Class A Residential Zone, with its
village. boundary in the south extending to the center line of Jupiter Street.
The lots which were acquired by Sangalang, Gaston and Briones in Similarly, the Buendia Avenue Extension area was classified as
were all sold by MDC subject to certain conditions and easements Administrative Office Zone with its boundary in the North-North East
contained in Deed Restrictions which formed a part of each deed of Extending also up to the center line of Jupiter Street.
sale. The Residential Zone and the Administrative Office Zone, therefore,
When MDC sold the lots to appellees' predecessors-in-interest, the have a common boundary along the center line of Jupiter Street.
whole stretch of the commercial block between Buendia Avenue and The above zoning under Ordinance No. 81 of Makati was later
Jupiter Street, from Reposo Street in the west to Zodiac Street in the followed under the Comprehensive Zoning Ordinance for the
east, was still undeveloped. Access, therefore, to Bel-Air Village was National Capital Region adopted by the Metro Manila Commission as
opened to all kinds of people and even animals. Ordinance 81 -01 on March 14, 1981 (Exh. 19). However, under this
So in 1966, although it was not part of the original plan, MDC ordinance, Bel-Air Village is simply bounded in the South-Southeast
constructed a fence or wall on the commercial block along Jupiter by Jupiter Street-not anymore up to the center line of Jupiter
Street. Street.Likewise, the blockdeep strip along the northwest side of
In 1970, the fence or wall was partly destroyed by typhoon "Yoling." Buendia Avenue Extension from Reposo to EDSA was classified as
The destroyed portions were subsequently rebuilt by the appellant. a High Intensity Commercial Zone.
2. A block deep strip along the northwest side of Buendia Ave. Ext. from requested to advise the village residents of the
Reposo to EDSA." necessity of the opening of the street in the interest
of public welfare.
Under the above zoning classifications, Jupiter Street, therefore, is a
common boundary of Bel-Air Village and the commercial zone. Then, the Municipal Engineer of Makati in a letter addressed to BAVA
advised the latter to open for vehicular and pedestrian traffic the entire
Meanwhile, BAVA had installed gates at strategic locations across portion of Jupiter Street from Makati Avenue to Reposo Street.
Jupiter Street which were manned and operated by its own security
guards who were employed to maintain, supervise and enforce traffic Finally, the municipal officials of Makati concerned allegedly opened,
regulations in the roads and streets of the village. destroyed and removed the gates constructed/located at the corner of
Reposo Street and Jupiter Street as well as the gates/fences
Then, the Office of the Mayor of Makati wrote BAVA directing that, in the located/constructed at Jupiter Street and Makati Avenue forcibly, and then
interest of public welfare and for the purpose of easing traffic congestion, the opened the entire length of Jupiter Street to public traffic.
following streets in Bel-Air Village should be opened for public use:
(11) Before the gates were-removed, there was no parking problem or traffic
a) Amapola Street - from Estrella Street to Mercedes problem in Jupiter Street, because Jupiter Street was not allowed to be used
Street by the general public.
b) Amapola Street -junction of Palma Street gate going
to J. Villena Street However, with the opening of Zodiac Street from Estrella Street to Jupiter
c) Mercedes Street -- from EDSA to Imelda Avenue Street and also the opening to the public of the entire length of Jupiter Street,
and Amapola junction there was a tremendous increase in the volume of traffic passing along
d) Zodiac Street - from Mercedes Street to Buendia Jupiter Street coming from EDSA to Estrella Street, then to Zodiac Street to
Avenue Jupiter Street, and along the entire length of Jupiter Street to its other end at
e) Jupiter Street -- from Zodiac Street to Reposo Street Reposo Street.
connecting Metropolitan Avenue to Pasong Tamo
and V. Cruz Extension intersection In the meantime, the purchasers of the commercial lots between Jupiter
f) Neptune Street - from Makati Avenue to Reposo Street and Buendia Avenue extension had started constructing their
Street Orbit Street - from F. Zobel-Candelaria respective buildings in 1974-1975. They demolished the portions of the fence
intersection to Jupiter Street or wall standing within the boundary of their lots. Many of the owners
g) Paseo de Roxas - from Mercedes Street to Buendia constructed their own fences or walls in lieu of the wall and they employed
Avenue their own security guards.
h) BAVA wrote the Mayor of Makati, expressing the
concern of the residents about the opening of the (12) Then, on January 27, 1978, appellant donated the entire Jupiter Street
streets to the general public, and requesting from Metropolitan Avenue to Zodiac Street to BAVA. However, even before
specifically the indefinite postponement of the plan 1978, the Makati Police and the security force of BAVA were already the
to open Jupiter Street to public vehicles. ones regulating the traffic along Jupiter Street after the gates were opened in
i) However, BAVA voluntarily opened to the public 1977.
Amapola, Mercedes, Zodiac, Neptune and Paseo de
Roxas streets.
j) Later, the Barangay Captain of Bel-Air Village was In October, 1979, the fence at the corner of Orbit and Neptune Streets was
advised by the Office of the Mayor that, in opened and removed. The opening of the whole stretch of Orbit Street from
accordance with the agreement entered into during J.P. Rizal Avenue up to Imelda Avenue and later to Jupiter Street was
the meeting, the Municipal Engineer and the Station agreed to at the conference attended by the President of BAVA in the office
Commander of the Makati Police were ordered to of the Station Commander of Makati, subject to certain conditions, to wit:
open for public use Jupiter Street from Makati
Avenue to Reposo Street. Accordingly, he was
That, maintenance of Orbit St. up to Jupiter St. shall be shouldered by the Manila, into a restaurant, without its knowledge and consent, and in violation
Municipality of Makati. of the deed restrictions which provide that the lot and building thereon must
be used only for residential purposes upon which the prayed for main relief
That, street lights will be installed and maintenance of the same along Orbit was for 'the defendants to permanently refrain from using the premises as
St. from J.P. Rizal Ave. up to Jupiter St. shall be undertaken by the commercial and to comply with the terms of the Deed Restrictions." 6 The trial
Municipality. court dismissed the complaint on a procedural ground, i.e., pendency of an
Identical action, Civil Case No. 32346, entitled "Bel-Air Village Association,
That for the security of the residents of San Miguel Village and Bel-Air Inc. v. Jesus Tenorio." The Court of Appeals 7 affirmed, and held, in addition,
Village, as a result of the opening of Orbit Street, police outposts shall be that Jupiter Street "is classified as High density commercial (C-3) zone as per
Comprehensive Zoning Ordinance No. 81-01 for National Capital
constructed by the Municipality of Makati to be headed by personnel of
Region," 8 following its own ruling in AC-G.R. No. 66649, entitled "Bel-Air
Station No. 4, in close coordination with the Security Guards of San Miguel
Village Association, Inc. vs. Hy-Land Realty & Development Corporation, et
Village and Bel-Air Village.
al."
(13) Thus, with the opening of the entire length of Jupiter Street to public
III. G.R. No. 76394
traffic, 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. Defendants-spouses Eduardo V. Romualdez, Jr. and Buena Tioseco are the
owners of a house and lot located at 108 Jupiter St., Makati, Metro Manila as
(14) Subsequently, the plaintiffs-appellees Jose D. Sangalang and Lutgarda evidenced by Transfer Certificate of Title No. 332394 of the Registry of
Deeds of Rizal. The fact is undisputed that at the time the defendants
D. Sangalang brought the present action for damages against the defendant-
acquired the subject house and lot, several restrictions were already
appellant Ayala Corporation predicated on both breach of contract and on
annotated on the reverse side of their title; however, for purposes of this
tort or quasi-delict A supplemental complaint was later filed by said appellees
appeal we shall quote hereunder only the pertinent ones, to wit:
seeking to augment the reliefs prayed for in the original complaint because of
alleged supervening events which occurred during the trial of the case.
Claiming to be similarly situated as the plaintiffs-appellees, the spouses Felix (b,) This lot/shall be used only for residential purposes.
C. Gaston and Dolores R. Gaston, Jose V. Briones and Alicia R. Briones,
and the homeowners' association (BAVA) intervened in the case. During the early part of 1979, plaintiff noted that certain renovations and
constructions were being made by the defendants on the subject premises,
(15) After trial on the merits, the then Court of First Instance of Rizal, Pasig, for which reason the defendants were advised to inform the plaintiff of the
Metro Manila, rendered a decision in favor of the appellees. kind of construction that was going on. Because the defendants failed to
comply with the request of the plaintiff, the latter's chief security officer visited
the subject premises on March 23, 1979 and found out that the defendants
Court of Appeals reversed finding the decision appealed from as not
supported by the facts and the law on the matter, the same is hereby SET were putting up a bake and coffee shop, which fact was confirmed by
ASIDE and another one entered dismissing the case for lack of a cause of defendant Mrs. Romualdez herself. Thereafter, the plaintiff reminded
defendants that they were violating the deed restriction. Despite said
action.
reminder, the defendants proceeded with the construction of the bake shop.
Consequently, plaintiff sent defendants a letter dated April 30, 1979 warning
II. G.R. No. 74376 them that if they will not desist from using the premises in question for
commercial purposes, they will be sued for violations of the deed restrictions.
This petition was similarly brought by BAVA to enforce the aforesaid
restrictions stipulated in the deeds of sale executed by the Ayala Despite the warning, the defendants proceeded with the construction of their
Corporation. The petitioner originally brought the complaint in the Regional bake shop. 9
Trial Court of Makati, 5 principally for specific performance, plaintiff [now,
petitioner] alleging that the defendant [now, private respondent] Tenorio
allowed defendant [Tenorio's co-private respondent] Gonzalves to occupy
and convert the house at 50 Jupiter Street, Bel-Air Village, Makati, Metro
The trial court 10 adjudged in favor of BAVA. On appeal, the Court of which have lost all relevance to the present-day realities in Makati, now the
Appeals 11 reversed, on the strength of its holding in AC-G.R. No. 66649 premier business hub of the nation, where there is a proliferation of
earlier referred to. numerous commercial enterprises established through the years, in fact even
within the heart of so-called "residential" villages. Thus, it may be said that
BAVA then elevated the matter to the Court by a petition for review on appellants base their position on the inexorable march of progress which has
certiorari. The Court 12 initially denied the petition "for lack of merit, it rendered at naught the continued efficacy of the restrictions. Appellant on the
appearing that the conclusions of the respondent Court of Appeals that other hand, relies on a rigid interpretation of the contractual stipulations
private respondents' bake and coffee shop lies within a commercial zone and agreed upon with appellant Filley, in effect arguing that the restrictions are
that said private respondents are released from their obligations to maintain valid ad infinitum.
the lot known as 108 Jupiter Street for residential purposes by virtue of
Ordinance No. 81 of the Municipality of Makati and Comprehensive Zoning The lower court quite properly found that other commercial establishments
Ordinance No. 81-01 of the Metropolitan Manila Commission, are in accord exist in the same area (in fact, on the same street) but ignored it just the
with law and jurisprudence," 13 for which BAVA sought a reconsideration. same and said-
Pending resolution, the case was referred to the Second Division of this
Court, 14 and thereafter, to the Court En Banc en consulta. 15 Per our The fact that defendants were able to prove the existence of several
Resolution, dated April 29, 1988, we consolidated this case with G.R. Nos. commercial establishments inside the village does not exempt them from
74376 and 82281. 16 liability for violating some of the restrictions evidently choosing to accord
primacy to contractual stipulation. 17
IV. G.R. No. 78182.
The Court of Appeals 18 overturned the lower court, 19 likewise based on AC-
The case stemmed from the leasing by defendant Dolores Filley of her G.R. No. 66649. The respondent Court observed also that J. Romero &
building and lot situated at No. 205 Reposo Street, Bel-Air Village Makati, Associates had been given authority to open a commercial office by the
Metro Manila to her co-defendant, the advertising firm J. Romero and Human Settlements Regulatory Commission.
Associates, in alleged violation of deed restrictions which stipulated that
Filley's lot could only be used for residential purposes. Plaintiff sought V. G.R. No. 82281
judgment from the lower court ordering the defendants to "permanently
refrain" from using the premises in question "as commercial" and to comply
The facts of this case have been based on stipulation. We quote:
with the terms of the deed restrictions.
COMES NOW, the Parties, assisted by their respective counsel and to this
After the proper proceedings, the court granted the plaintiff the sought for
Honorable Court, respectfully enter into the following stipulations of facts, to
relief with the additional imposition of exemplary damages of P50,000.00 and
wit:
attorney's fees of P10,000.00. The trial court gave emphasis to the restrictive
clauses contained in Filley's deed of sale from the plaintiff, which made the
conversion of the building into a commercial one a violation. 1. The parties admit the personal circumstances of each other as well as
their capacities to sue and be sued.
THE COURT ERRED IN NOT RULING THAT BECAUSE THE
APPELLEE(S) HAD ALLOWED THE USE OF THE PROPERTY WITHIN 2. The parties admit that plaintiff BAVA for short) is the legally constituted
THE VILLAGE FOR NON- RESIDENTIAL PURPOSES, IT IS NOW homeowners' association in Bel-Air Subdivision, Makati, Metro Manila.
ESTOPPED FROM ENFORCING THE RESTRICTIVE PROHIBITIONS
SUBJECT MATTER OF THIS CASE. 3. The parties admit that defendant Violets Moncal is the registered owner of
a parcel of land with a residential house constructed thereon situated at No.
Appellants anchor their appeal on the proposition that the Bel-Air Village 104 Jupiter Street, Bel-Air Village, Makati, Metro Manila; that as such lot
area, contrary to plaintiff- appellee's pretension of being a strictly residential owner, she is a member of the plaintiff association.
zone, is in fact commercial and characterize the restrictions contained in
appellant Filley's deed of sale from the appellee as completely outmoded,
4. The parties admit that defendant Majal Development Corporation (Majal In brief, G.R. Nos. 74376, 76394, 78182, and 82281 are efforts to enforce the
for short) is the lessee of defendant Moncal's house and lot located at No. "deed restrictions" in question against specific residents (private respondents
104 Jupiter Street. in the petitions) of Jupiter Street and with respect to G.R. No. 78182, Reposo
Street. The private respondents are alleged to have converted their
5. The parties admit that a deed restrictions is annotated on the title of residences into commercial establishments (a restaurant in G.R. No. 74376,
defendant Moncal, which provides, among others, that the lot in question a bakery and coffee shop in G.R. No. 76394, an advertising firm in G.R. No.
must be used only for residential purposes;' that at time Moncal purchased 78182; and a construction company, apparently, in G.R. No. 82281) in
her aforesaid lot in 1959 said deed restrictions was already annotated in the violation of the said restrictions. 24
said title.
Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold
6. The parties admit that when Moncal leased her subject property to Majal, the vendor itself, Ayala Corporation (formerly Makati Development
she did not secure the consent of BAVA to lease the said house and lot to Corporation), liable for tearing down the perimeter wall along Jupiter Street
the present lessee. that had therefore closed its commercial section from the residences of Bel-
Air Village and ushering in, as a consequence, the full "commercialization" of
Jupiter Street, in violation of the very restrictions it had authored.
7. The parties admit that along Jupiter Street and on the same side where
Moncal's property is located, there are restaurants, clinics placement or
employment agencies and other commercial or business establishments. As We indicated, the Court of Appeals dismissed all five appeals on the basis
These establishments, however, were sued by BAVA in the proper court. primarily of its ruling in AC-G.R. No. 66649, "Bel-Air Village, Inc. v. Hy-Land
Realty Development Corporation, et al.," in which the appellate court
explicitly rejected claims under the same 'deed restrictions" as a result of
8. The parties admit that at the time Moncal purchased the subject property
Ordinance No. 81 enacted by the Government of the Municipality of Makati,
from the Makati Development Corporation, there was a perimeter wall,
as well as Comprehensive Zoning Ordinance No. 8101 promulgated by the
running along Jupiter Street, which wall was constructed by the subdivision
Metropolitan Manila Commission, which two ordinances allegedly allowed the
owner; that at that time the gates of the entrances to Jupiter Street were
closed to public traffic. In short, the entire length of Jupiter which was inside use of Jupiter Street both for residential and commercial purposes. It was
likewise held that these twin measures were valid as a legitimate exercise of
the perimeter wall was not then open to public traffic
police power.
9. The parties admit that subsequent thereto, Ayala tore down the perimeter
wall to give way to the commercial building fronting Buendia Avenue (now Gil The Court of Appeals' reliance on Ordinance Nos. 81. and 8101 is now
J. Puyat Avenue). assailed in these petitions, particularly the Sangalang, et al. petition.

Aside from this fundamental issue, the petitioners likewise raise procedural
10. The parties admit that the Mayor of Makati forcibly opened and removed
questions. G.R. No. 71169, the mother case, begins with one.
the street gates constructed on Jupiter Street and Reposo Street, thereby
opening said streets to the public.
1. G.R. No. 71169
21
The trial court dismissed the petitioner's complaint, a dismissal affirmed on
appeal, 22 According to the appellate court, the opening of Jupiter Street to In this petition, the following questions are specifically put to the Court:
human and vehicular traffic, and the commercialization of the Municipality of
Makati in general, were circumstances that had made compliance by Moncal May the Honorable Intermediate Appellate Court reverse the decision of the
with the aforesaid "deed restrictions" "extremely difficult and trial court on issues which were neither raised by AYALA in its Answers
unreasonable," 23 a development that had excused compliance altogether either to the Complaint or Supplemental Complaint nor specifically assigned
under Article 1267 of the Civil Code. as one of the alleged errors on appeal? 25

VI. The cases before the Court; the Court's decision. May the Honorable Intermediate Appellate Court arbitrarily ignore the
decisive findings of fact of the trial court, even if uncontradicted and/or
documented, and premised mainly on its own unsupported conclusions commercial zones of Ayala Corporation's real estate development projects.
totally reverse the trial court's decision? 26 Thus, the Bel-Air Village Association's articles of incorporation state that Bel-
Air Village is 'bounded on the NE., from Amapola St., to de los Santos Ave.,
May the Honorable Intermediate Appellate Court disregard the trial court's by Estrella St., on the SE from Extrella St., to Pedestrian Lane by E. De los
documented findings that respondent Ayala for its own self-interest and Santos Ave., on the SW., from Pedestrian Lane to Reposo St., by Jupiter
commercial purposes contrived in bad faith to do away with the Jupiter Street Street
perimeter wall it put up three times which wall was really intended to
separate the residential from the commercial areas and thereby insure the . . . . 40 Hence, it cannot be said to have been "for the exclusive benefit" of
privacy and security of Bel Air Village pursuant to respondent Ayala's Bel-Air Village residents.
express continuing representation and/or covenant to do so? 27
We come to the perimeter wall then standing on the commercial side of
a. The first question represents an attack on the appellate court's Jupiter Street the destruction of which opened the street to the public. The
reliance on Ordinances Nos. 81 and 81-01, a matter not supposedly petitioners contend that the opening of the thoroughfare had opened, in turn,
taken up at the trial or assigned as an error on appeal. As a rule, the the floodgates to the commercialization of Bel-Air Village. The wall, so they
Court of Appeals (then the Intermediate Appellate Court) may allege, was designed precisely to protect the peace and privacy of Bel-Air
determine only such questions as have been properly raised to it, Village residents from the din and uproar of mercantile pursuits, and that the
yet, this is not an inflexible rule of procedure. In Hernandez v. Ayala Corporation had committed itself to maintain it. It was the opinion of
Andal, 28 it was stated that "an unassigned error closely related to an the Court of Appeals, as we said, that Ayala's liability therefor, if one existed,
error properly assigned, or upon which the determination of the had been overtaken by the passage of Ordinances Nos. 81 and 82-01,
question raised by the error properly assigned is dependent, will be opening Jupiter Street to commerce.
considered by the appellate court notwithstanding the failure to
assign it as error." 29 It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact
acknowledged by the authorities of Makati and the National Government and,
In Baquiran v. Court of Appeals, 30 we referred to the " modern trend of as a scrutiny of the records themselves reveals, by the petitioners
procedure . . . according] the courts broad discretionary power" 31 and in themselves, as the articles of incorporation of Bel-Air Village Association
which we allowed consideration of matters "having some bearing on the itself would confirm. As a consequence, Jupiter Street was intended for the
issue submitted which the parties failed to raise or the lower court use by both -the commercial and residential blocks. It was not originally
ignore[d]. 32 And in Vda. de Javellana v. Court of Appeals, 33 we permitted constructed, therefore, for the exclusive use of either block, least of all the
the consideration of a 'patent error' of the trial court by the Court of Appeals residents of Bel-Air Village, but, we repeat, in favor of both, as distinguished
under Section 7, of Rule 51, of the Rules of Court, 34 although such an error from the general public.
had not been raised in the brief. But what we note is the fact that the Ayala
Corporation did raise the zoning measures as affirmative defenses, first in its When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it
answers 35 and second, in its brief, 36 and submitted at the trial as was not for the purpose of physically separating the two blocks. According to
exhibits. 37 There is accordingly no cause for complaint on the part of the Ayala Corporation, it was put up to enable the Bel-Air Village Association
petitioners for Ayala's violation of the Rules. But while there was reason for "better control of the security in the area, 41 and as the Ayala Corporation's
the consideration, on appeal, of the said zoning ordinances in question, this "show of goodwill " 42 a view we find acceptable in the premises. For it cannot
Court nevertheless finds as inaccurate the Court of Appeals' holding that be denied that at that time, the commercial area was vacant, "open for [sic]
such measures, had "in effect, [made] Jupiter Street ... a street which could animals and people to have access to Bel-Air Village." 43 There was hence a
be used not only for residential purposes," 38 and that "[It lost its character as necessity for a wall.
a street for the exclusive benefit of those residing in Bel-Air Village
completely." 39 In any case, we find the petitioners' theory, that maintaining the wall was a
matter of a contractual obligation on the part of Ayala, to be pure conjecture.
Among other things, there is a recognition under both Ordinances Nos. 81 The records do not establish the existence of such a purported commitment.
and 8 1-01 that Jupiter Street lies as the boundary between Bel-Air Village For one, the subdivision plans submitted did not mention anything about it.
and Ayala Corporation's commercial section. And since 1957, it had been For another, there is nothing in the "deed restrictions" that would point to any
considered as a boundary not as a part of either the residential or
covenant regarding the construction of a wall. There is no representation or 6. the letter of Atty. Lorayes informing BAVA of the widening of Jupiter Street
promise whatsoever therein to that effect. by 3.5 meters to improve traffic flow in said street to benefit both the
residents of Bel-Air and the future owners of the commercial lots.
With the construction of the commercial buildings in 1974, the reason for
which the wall was built- to secure Bel-Air Village from interlopers had The petitioners cannot successfully rely on the alleged promise by Demetrio
naturally ceased to exist. The buildings themselves had provided formidable Copuyoc, Ayala's manager, to build a "[f]ence along Jupiter with gate for
curtains of security for the residents. It should be noted that the commercial entrance and/or exit 45 as evidence of Ayala's alleged continuing obligation to
lot buyers themselves were forced to demolish parts of the wall to gain maintain a wall between the residential and commercial sections. It should be
access to Jupiter Street, which they had after all equal right to use. observed that the fence referred to included a "gate for entrance and or exit"
which would have defeated the purpose of a wall, in the sense the petitioners
In fine, we cannot hold the Ayala Corporation liable for damages for a would put in one, that is to say, an impenetrable barrier. But as Ayala would
commitment it did not make, much less for alleged resort to machinations in point out subsequently, the proposed fence was not constructed because it
evading it. The records, on the contrary, will show that the Bel-Air Village had become unnecessary when the commercial lot owners commenced
Association had been informed, at the very outset, about the impending use constructions thereon.
of Jupiter Street by commercial lot buyers. We quote:
Be that as it may, the Court cannot visualize any purported obligation by
1. the memorandum of Mr. Carmelo Caluag, President of BAVA, dated May Ayala Corporation to keep the wall on the strength of this supposed promise
10, 1972, informing the BAVA Board of Governors and Barrio Council alone. If truly Ayala promised anything assuming that Capuyoc was
members about the future use of Jupiter Street by the lot owners fronting authorized to bind the corporation with a promise it would have been with
Buendia Avenue. The use of Jupiter Street by the owners of the commercial respect to the fence. It would not have established the pre-existing obligation
lots would necessarily require the demolition of the wall along the commercial alleged with respect to the wall.
block adjoining Jupiter Street.
Obligations arise, among other things, from contract. 46 If Ayala, then, were
2. Exh. J of appellee, the minutes of the joint meeting of BAVA Board of bound by an obligation, it would have been pursuant to a contract. A
Governors and the Bel-Air Barrio Council where the matter that "Buendia lot contract, however, is characterized by a "meeting of minds between two
owners will have equal rights to use Jupiter Street," and that Ayala's "plans persons . 47As a consensual relation, it must be shown to exist as a fact,
about the sale of lots and use of Jupiter Street" were precisely taken up. This clearly and convincingly. But it cannot be inferred from a mishmash of
confirms that from the start BAVA was informed that the commercial lot circumstances alone disclosing some kind of an "understanding," when
owners will use Jupiter Street and that necessarily the wall along Jupiter especially, those disparate circumstances are not themselves incompatible
Street would be demolished. with contentions that no accord had existed or had been reached. 48

3. the letter of Mr. Demetrio Copuyoc to the President of BAVA expressly The petitioners cannot simply assume that the wall was there for the purpose
stating that vehicular entrance and exit to the commercial lots would be with which they now give it, by the bare coincidence that it had divided the
allowed along Jupiter and side streets. residential block from the commercial section of Bel-Air. The burden of proof
rests with them to show that it had indeed been built precisely for that
objective, a proof that must satisfy the requirements of our rules of evidence.
4. the letter of Atty. Salvador J. Lorayes with enclosed copy of proposed
It cannot be made to stand on the strength of plain inferences.
restriction for the commercial lots to BAVA. He proposed restriction again
expressly stated that "Vehicular entrances and exits are allowed thru Jupiter
and any side streets." b. This likewise answers the petitioners' second query, whether or not
the Court of Appeals had "arbitrarily ignore(d) the decisive findings of
the trial court."49 i.e., findings pointing to alleged acts performed by
5. appellee, the minutes of the meeting of the members of BAVA where it is
the Ayala Corporation proving its commitment to maintain the wall
stated "Recently, Ayala Corporation informed the Board that the lots fronting
abovesaid. Specifically, the petitioners refer to, among other things:
Buendia Avenue will soon be offered for sale, and that future lot owners will
be given equal rights to use Jupiter Street as well as members of the (1) Ayala's alleged announcement to Bel- Air Village Association
Association." members that "[the perimeter wall along Jupiter Street will not be
 demolished," 50 (2) Ayala's alleged commitment "during the wall. It was, rather, to regulate the use of the street owing precisely to the
pendency of the case in the trial court" to restore the wall; (3) alleged "planned" nature of Ayala's development project, and real estate
assurances by Copuyoc that the wall will not be removed; (4) alleged development in general, and this could best be done by placing the
contrivances by the corporation to make the association admit as commercial lot owners under the association's jurisdiction.
members the commercial lot buyers which provided them equal
access to Jupiter Street; and (5) Ayala's donation to the association Moreover, Ayala's overtures with the association concerning the membership
of Jupiter Street for "private use" of Bel-Air residents. 51 of commercial lot buyers therein have been shown to be neither perfidious
nor unethical nor devious (paraphrasing the lower court). We quote anew:
682 (1903), where it was held that "whether the plaintiffs services were
solicited or whether they were offered to the defendant for his assistance, (7) Appellant informed BAVA that in a few months it shall subdivide and sell
inasmuch as these services were accepted and made use of by the latter, we the commercial lots bordering the north side of Buendia Avenue Extension
must consider that there was a tacit and mutual consent as to the rendition of from Reposo Street up to Zodiac Street. Appellant also informed BAVA that it
services." (At 686.) In that case, the defendant had enormously benefitted had taken all precautions and will impose upon the commercial lot owners
from the services that entitled the plaintiff to compensation on the theory that deed restrictions which will harmonize and blend with the development and
no one may unjustly enrich himself at the expense of another (Solutio welfare of Bel-Air Village. Appellant further applied for special membership in
indebiti) The facts of this case differ. BAVA of the commercial lot owners. A copy of the deed restrictions for the
commercial lots was also enclosed. The proposed deed restrictions shall
As we stated, the Ayala Corporation's alleged conduct prior to or during the include the 19 meter set back of buildings from Jupiter Street, the
proceedings below are not necessarily at war with claims that no requirement for parking space within the lot of one (1) parking slot for every
commitment had been in fact made. seventy five (75) meters of office space in the building and the limitation of
vehicular traffic along Buendia to entrance only, but allowing both vehicular
With respect to Ayala's alleged announcement before the association, the entrance and vehicular exit through Jupiter Street and any side street.
Court does not agree that Ayala had categorically assumed as an obligation
to maintain the wall "perpetually," i.e., until the year 2007 (the expiration date The alleged undertaking, finally, by Ayala in the deed of donation (over
under the "deed restrictions.") There is nothing in its statement that would Jupiter Street) to leave Jupiter Street for the private use of Bel-Air residents
bare any commitment. In connection with the conference between the parties is belied by the very provisions of the deed. We quote:
"during the pendency" of the trial, it is to be noted that the Ayala Corporation
denies having warranted the restoration of the said wall therein. What, on the IV. The DONEE shall always have Reposo Street, Makati Avenue, and
other hand, appears in the records is the fact that Ayala did make that Paseo de Roxas open for the use of the general public. It is also understood
promise, but provided that the Mayor allowed it. It turned out, however, that that the DONOR shall continue the maintenance of the street at its expense
the Mayor balked at the Idea. 52 But assuming that Ayala did promise to for a period of three years from date hereof."
rebuild the wall (in that conference), it does not seem to us that it did
consequently promise to maintain it in perpetuity.
The donation, on the contrary, gave the general public equal right to it.

It is unfair to say, as the trial court did, that the Ayala had "contrived to make
The Court cannot then say, accepting the veracity of the petitioners' facts"
future commercial lot owners special members of BAVA and thereby acquire
enumerated above, that the Ayala Corporation may be held liable for specific
equal right with the regular members thereof to use Jupiter Street 53 since, as
performance of a demandable obligation, let alone damages.
we stated, the commercial lot buyers have the right, in any event, to make
use of Jupiter Street, whether or not they are members of the association. It
is not their memberships that give them the right to use it. They share that The Court adds that Ayala can hardly be held responsible for the alleged
right with Bel-Air residents from the outset. deterioration of "living and environmental conditions" of the Bel-Air area, as a
consequence of "Ayala's authorized demolition of the Jupiter perimeter wall
in 1974-1975. " We agree with Ayala that until 1976, "there was peace and
The objective of making the commercial lot owners special members of the
quiet" at Jupiter Street, as the petitioners' (Sangalang, Gaston, and Briones)
Bel-Air Village Association was not to accord them equal access to Jupiter complaints admit. Hence, the degeneration of peace and order in Bel-Air
Street and inferentially, to give them the right to knock down the perimeter cannot be ascribed to the destruction of the wall in 1974 and 1975.
What Ayala submits as the real cause was the opening of Jupiter Street to individual right to property should not be made to prevail through the state's
vehicular traffic in 1977., But this was upon orders of the Mayor, and for exercise of its police power."
which the homeowners' association had precisely filed suit to contest the act
of the Mayor. Resolution No. 27, 1960 declaring the western part of High way 54, now E.
de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig
Accordingly, the Court affirms the Court of Appeals' holding that the Ayala River as an industrial and commercial zone, was obviously passed by the
Corporation, in its dealings with the petitioners, the Bel-Air Village Municipal Council of Mandaluyong, Rizal in the exercise of police power to
Association in particular, had "acted with justice, gave the appellees safeguard or promote the health, safety, peace, good order and general
[petitioners] their due and observed honesty and good faith." "Therefore, welfare of the people in the locality. Judicial notice may be taken of the
under both Articles 19 and 21 of the Civil Code, the appellant [Ayala] cannot conditions prevailing in the area, especially where Lots Nos. 5 and 6 are
be held liable for damages." located. The lots themselves not only front the highway; industrial and
commercial complexes have flourished about the place. EDSA, a main traffic
2. G.R. Nos. 74376, 76394, 78182, & 82281 artery which runs through several cities and municipalities in the Metro
Manila area, supports an endless stream of traffic and the resulting activity,
noise and pollution are hardly conducive to the health, safety or welfare of
In the Sangalang case, we absolve the Ayala Corporation primarily owing to
the residents in its route. Having been expressly granted the power to adopt
our finding that it is not liable for the opening of Jupiter Street to the general
zoning and subdivision ordinances or regulations, the municipality of
public. Insofar as these petitions are concerned, we likewise exculpate the
Mandaluyong, through its Municipal Council, was reasonably, if not perfectly,
private respondents, not only because of the fact that Jupiter Street is not
covered by the restrictive easements based on the "deed restrictions" but justified under the circumstances, in passing the subject resolution. 68
chiefly because the National Government itself, through the Metro Manila
Commission (MMC), had reclassified Jupiter Street into high density Undoubtedly, the MMC Ordinance represents a legitimate exercise of
commercial (C-3) zone, pursuant to its Ordinance No. 81-01. Hence, the police power. The petitioners have not shown why we should hold otherwise
petitioners have no cause of action on the strength alone of the said "deed other than for the supposed "non-impairment" guaranty of the Constitution,
restrictions. 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
It is not that we are saying that restrictive easements, especially the
appealed. In that connection, we find no reversible error to have been
easements herein in question, are invalid or ineffective. As far as the Bel-Air
committed by the Court of Appeals.
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 WHEREFORE, premises considered, these petitions are DENIED No
exercise of police power. Our jurisdiction guarantees sanctity of contract and pronouncement as to costs.
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.

2. As this Court held through Justice Jose P. Bengson in Philippine Long

Distance Company vs. City of Davao, et al. police power 'is elastic and must
be responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the
legal progress of a democratic way of life.' We were even more emphatic in
Vda. de Genuino vs. The Court of agrarian Relations, et al., when We
declared: "We do not see why public welfare when clashing with the
G.R. No. 135962 March 27, 2000

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner,

vs. BEL-AIR VILLAGE ASSOCIATION, INC., respondent.

PUNO, J.:

Not infrequently, the government is tempted to take legal shortcuts solve

urgent problems of the people. But even when government is armed with the
best of intention, we cannot allow it to run roughshod over the rule of law.
Again, we let the hammer fall and fall hard on the illegal attempt of the
MMDA to open for public use a private road in a private subdivision. While
we hold that the general welfare should be promoted, we stress that it should
not be achieved at the expense of the rule of law.

Petitioner MMDA is a government agency tasked with the delivery of

basic services in Metro Manila.
Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock,
non-profit corporation whose members are homeowners in Bel-Air
Village, a private subdivision in Makati City. Respondent BAVA is the
registered owner of Neptune Street, a road inside Bel-Air Village.
On December 30, 1995, respondent received from petitioner a notice
requesting respondent to open Neptune Street to public vehicular
traffic starting January 2, 1996.
 On the same day, respondent was told that the perimeter wall Avenue, a national road. Both ends of Neptune Street are guarded by iron
separating the subdivision from the adjacent Kalayaan Avenue would gates.
be demolished.
Respondent instituted against petitioner before the RTC a Civil Case PETITIONER MMDA claims that it has the authority to open Neptune Street
for injunction. Respondent prayed for the issuance of a TRO and to public traffic because it is an agent of the state endowed with police power
preliminary injunction enjoining the opening of Neptune Street and in the delivery of basic services in Metro Manila. One of these basic services
prohibiting the demolition of the perimeter wall. is traffic management which involves the regulation of the use of
thoroughfares to insure the safety, convenience and welfare of the general
TRIAL COURT: issued a temporary restraining order. After due hearing, the public. It is alleged that the police power of MMDA was affirmed by this Court
trial court denied issuance of a preliminary injunction. in the consolidated cases of Sangalang v. Intermediate Appellate
Court. From the premise that it has police power, it is now urged that there is
Respondent questioned the denial before the CA. no need for the City of Makati to enact an ordinance opening Neptune street
to the public.
APPELLATE COURT: conducted an ocular inspection of Neptune
Street and it issued a writ of preliminary injunction enjoining the Police power is an inherent attribute of sovereignty. It bears stressing that
implementation of the MMDA's proposed action. Subsequently, it rendered a police power is lodged primarily in the National Legislature. It cannot be
Decision finding that the MMDA has no authority to order the opening of exercised by any group or body of individuals not possessing legislative
Neptune Street, a private subdivision road and cause the demolition of its power. The National Legislature, however, may delegate this power to
perimeter walls. It held that the authority is lodged in the City Council of the President and administrative boards as well as the lawmaking
Makati by ordinance. bodies of municipal corporations or local government units. Once
delegated, the agents can exercise only such legislative powers as are
conferred on them by the national lawmaking body.
The MR of the decision was denied. Hence, this recourse.
The Local Government Code of 1991 defines a LOCAL GOVERNMENT
ISSUES: UNIT as a "body politic and corporate." one endowed with powers as a
political subdivision of the National Government and as a corporate entity
WON MMDA HAS THE MANDATE TO OPEN NEPTUNE STREET TO representing the inhabitants of its territory.
PUBLIC TRAFFIC PURSUANT TO ITS REGULATORY AND POLICE
POWERS? Our Congress delegated police power to the local government units in the
Local Government Code of 1991. Local government units exercise police
WON THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT power through their respective legislative bodies. The Local Government
BEFORE THE MMDA MAY ORDER THE OPENING OF SUBDIVISION Code of 1991 empowers them to enact ordinances, approve resolutions and
ROADS TO PUBLIC TRAFFIC? appropriate funds for the general welfare of the province, city or municipality,
as the case may be, and its inhabitants pursuant to Sec. 16 of the Code.
WON RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED
FROM DENYING OR ASSAILING THE AUTHORITY OF THE MMDA TO With the passage of RA7924 in 1995, Metropolitan Manila was declared as
OPEN THE SUBJECT STREET? a "special development and administrative region" and the Administration
of "metro-wide" basic services affecting the region placed under "a
Neptune Street is owned by respondent BAVA. It is a private road inside Bel- development authority" referred to as the MMDA.
Air Village, a private residential subdivision in the heart of the financial and
commercial district of Makati City. It runs parallel to Kalayaan Avenue, a "Metro-wide services" are those "services which have metro-wide impact or
national road open to the general public. Dividing the 2 streets is a concrete entail huge expenditures such that it would not be viable for said services to
perimeter wall approximately 15 feet high. The western end of Neptune be provided by the individual local government units comprising Metro
Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road Manila." There are 7 basic metro-wide services and the scope of these
open to public vehicular traffic, while its eastern end intersects Makati services cover the following: (1) development planning; (2) transport and
traffic management; (3) solid waste disposal and management; (4) flood law, either by the Sangguniang Panlungsod of Makati City or by the
control and sewerage management; (5) urban renewal, zoning and land use MMDA, as the legal basis for the proposed opening of Neptune Street.
planning, and shelter services; (6) health and sanitation, urban protection Petitioner MMDA simply relied on its authority under its charter "to rationalize
and pollution control; and (7) public safety. the use of roads and/or thoroughfares for the safe and convenient movement
of persons
It will be noted that the powers of the MMDA are limited to the following acts:
formulation, coordination, regulation, implementation, preparation, Secondly, the MMDA is not the same entity as the MMC in Sangalang.
management, monitoring, setting of policies, installation of a system and Although the MMC is the forerunner of the present MMDA, an examination of
administration. There is no syllable in R.A. No. 7924 that grants the PD824, the charter of the MMC, shows that the latter possessed greater
MMDA police power, let alone legislative power. Even the Metro Manila powers which were not bestowed on the present MMDA.
Council has not been delegated any legislative power. Unlike the legislative
bodies of the local government units, there is no provision in RA7924 that Sec. 1. Creation of the Metropolitan Manila. There is hereby created
empowers the MMDA or its Council to "enact ordinances, approve a public corporation, to be known as the Metropolitan Manila, vested with
resolutions appropriate funds for the general welfare" of the inhabitants of powers and attributes of a corporation including the power to make
Metro Manila. The MMDA is, as termed in the charter itself, "development contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer
authority." It is an agency created for the purpose of laying down policies and and dispose of property and such other powers as are necessary to carry out
coordinating with the various national government agencies. its purposes.

Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Sec. 4. Powers and Functions of the Commission. The Commission shall
Appellate Court where we upheld a zoning ordinance issued by the Metro have the following powers and functions: 10. To establish and operate a
Manila Commission (MMC), the predecessor of the MMDA, as an exercise of transport and traffic center, which shall direct traffic activities;
police power.
The creation of the MMC also carried with it the creation of the Sangguniang
Sangalang v. IAC Petitioners alleged that respondents, who were residents Bayan. The Sangguniang Bayan had the power to recommend to the MMC
along Jupiter Street of the subdivision, converted their residences into the adoption of ordinances, resolutions or measures. It was the MMC itself,
commercial establishments in violation of the "deed restrictions. We ruled however, that possessed legislative powers. All ordinances, resolutions and
that since both Ordinances recognized Jupiter Street as the boundary measures recommended by the Sangguniang Bayan were subject to the
between Bel-Air Village and the commercial district, Jupiter Street was MMC's approval.
not for the exclusive benefit of Bel-Air residents. We upheld the
ordinances, specifically MMC Ordinance No. 81-01, as a legitimate exercise In 1990, President Aquino issued EO392 and constituted the Metropolitan
of police power. The power of the MMC and the Makati Municipal Council to Manila Authority (MMA). The powers and functions of the MMC were
enact zoning ordinances for the general welfare prevailed over the "deed
devolved to the MMA. The MMA's governing body, the Metropolitan Manila
restrictions".
Council was merely given power of: (1) formulation of policies on the delivery
of basic services requiring coordination and consolidation; and (2)
In the second Sangalang/Yabut decision, we held that the opening of Jupiter promulgation resolutions and other issuances, approval of a code of basic
Street was warranted by the demands of the common good in terms of services and the exercise of its rule-making power.
"traffic decongestion and public convenience." The same reason was given
for the opening to public vehicular traffic of Orbit Street, a road inside the
Under the 1987 Constitution, the local government units became primarily
same village. responsible for the governance of their respective political subdivisions.
The MMA's jurisdiction was limited to addressing common problems involving
Contrary to petitioner's claim, the two Sangalang cases do not apply to the basic services that transcended local boundaries. It did not have legislative
case at bar. Firstly, both involved zoning ordinances passed by the power. Its power was merely to provide the local government units technical
municipal council of Makati and the MMC. In the instant case, the basis for assistance in the preparation of local development plans.
the proposed opening of Neptune Street is contained in the notice sent by
petitioner to respondent BAVA. The notice does not cite any ordinance or
Clearly, the MMDA is not a political unit of government. The power IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of
delegated to the MMDA is that given to the Metro Manila Council to the Court of Appeals are affirmed.
promulgate administrative rules and regulations in the implementation
of the MMDA's functions. There is no grant of authority to enact Petition Denied.
ordinances and regulations for the general welfare of the inhabitants of
the metropolis. The Court held that the MMDA does not have the capacity to exercise police power.
Police power is primarily lodged in the National Legislature. However, police power
may be delegated to government units. Petitioner herein is a development authority
The draft of H. B. No. 14170/11116 was presented by the Committee to the and not a political government unit. Therefore, the MMDA cannot exercise police
House of Representatives. The explanatory note to the bill stated that the power because it cannot be delegated to them. It is not a legislative unit of the
proposed MMDA is a "development authority" which is a "national agency, government. Republic Act No. 7924 does not empower the MMDA to enact
not a political government unit." ordinances, approve resolutions and appropriate funds for the general welfare of
the inhabitants of Manila. There is no syllable in the said act that grants MMDA police
It is thus beyond doubt that the MMDA is not a local government unit or a power.
public corporation endowed with legislative power. It is not even a "special
It is an agency created for the purpose of laying down policies and coordinating
metropolitan political subdivision" as contemplated in Section 11, Article X of with various national government agencies, peoples organizations, non-governmental
the Constitution. The creation of a "special metropolitan political subdivision" organizations and the private sector for the efficient and expeditious delivery of basic
requires the approval by a majority of the votes cast in a plebiscite in the services in the vast metropolitan area.
political units directly affected." RA7924 was not submitted to the inhabitants
of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President with the rank and
privileges of a cabinet member. In fact, part of his function is to perform such
other duties as may be assigned to him by the President, whereas in local
government units, the President merely exercises supervisory authority. This
emphasizes the administrative character of the MMDA.

Clearly then, the MMC under PD824 is not the same entity as the MMDA
under RA7924. Unlike the MMC, the MMDA has no power to enact
ordinances for the welfare of the community. It is the local government
units, acting through their respective legislative councils, that possess
legislative power and police power. In the case at bar, the Sangguniang
Panlungsod of Makati City did not pass any ordinance or resolution ordering
the opening of Neptune Street, hence, its proposed opening by petitioner
MMDA is illegal and the respondent Court of Appeals did not err in so ruling.
We desist from ruling on the other issues as they are unnecessary.

We stress that this decision does not make light of the MMDA's noble efforts
to solve the chaotic traffic condition in Metro Manila. Traffic has become a
social disease affecting our people's productivity and the efficient delivery of
goods and services in the country. The MMDA was created to put some
order in the metropolitan transportation system but unfortunately the
powers granted by its charter are limited. Its good intentions cannot
justify the opening for public use of a private street in a private
subdivision without any legal warrant.