Easement and Nuisance Case Digest

BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ

Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs), purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered land covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu.[3] He took possession of the property and declared it for tax purposes in his name.[4]

Prior to the sale, however, the entire length of the land from north to south was already traversed in the middle by railroad tracks owned by petitioner Bomedco used for hauling sugar cane from the fields to petitioner’s sugar mill and unknown to Valdez heirs Bomedco was able to have the disputed middle lot placed in its name in the Cadastral Survey and was claimed by Bomedco as its own and was declared for tax purposes in its name. It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment of compensation for the use of the land.

Extraordinary Acquisitive Prescription Under Art. 1137 of the Civil Code - No extraordinary acquisitive prescription because petitioner unequivocally declared the property to be a “central railroad right of way” or “sugar central railroad right of way” in its real estate tax until 1963. Art. 1137 does not apply to easement. The mere expiration of the period of easement in 1959 did not convert petitioner’s possession into an adverse one. Mere material possession of land is not adverse possession as against the owner and is insufficient to vest title, unless such possession is accompanied by the intent to possess as an owner.[27] There should be a hostile use of such a nature and exercised under such circumstances as to manifest and give notice that the possession is under a claim of right. Legal position was assumed in 1965 – complaint filed in 1989.

Laches – No laches. Records show that respondent heirs only learned about petitioner’s claim on their property when they discovered the inscription for the cadastral survey in the records of the Bureau of Lands in 1989. Respondents lost no time in demanding an explanation for said claim in their letters to the petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them, they instituted their complaint before the Regional Trial Court of Cebu City on June 8, 1989.

Acquisition of Easement of Right of Way By Prescription Under Art. 620 of the Civil Code

Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. In this case, the presence of railroad tracks for the passage of petitioner’s trains denotes the existence of an apparent but discontinuous easement of right of way. And under Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by title. Unfortunately, petitioner Bomedco never acquired any title over the use of the railroad right of way whether by law, donation, testamentary succession or contract. Its use of the right of way, however long, never resulted in its acquisition of the easement because, under Article 622, the discontinuous easement of a railroad right of way can only be acquired by title and not by prescription.To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by mere tolerance of the respondent heirs.

Obra v. Padua

In their complaint, respondents alleged that their residential houses, erected on a lot commonly owned by them and were located west of the properties of the Obras, Bucasases, and Baduas. Their only access to the national highway was a pathway established in 1955 traversed the northern portion of petitioner’s property and the southern portion of the properties of the Bucasases and Baduas. However, petitioner Obra constructed a fence on the northern boundary of their property; thus, blocking respondents’ access to the national highway. Respondents demanded the demolition of the fence, but petitioner refused. Petitioner claimed that no easement of right of way was established either by law or agreement thus articles 649 and 650 was not complied with. The spouses Badua and Bucasas failed to file an answer; consequently, they were declared in default and thus a new pathway was used which however, traversed the southern portion of petitioner’s property. Sometime in 2001, petitioner constructed a fence on this portion of her lot, which again restricted the use of respondents’ “new” pathway. Aggrieved and prejudiced by petitioner’s action, respondents filed on March 6, 2001 a Motion to Enforce the July 7, 2000 Decision of the RTC. They alleged that the Decision of the RTC dismissing the case was based on the existence of a new pathway which they had been using since 1995. Thus, they asserted that petitioner was prohibited from closing said passage.

It was held that since the respondents failed to comply with Art. 649 and 650, the case was dismissed and such dismissal cannot be construed to encompass any grant of right-of-way to respondents relating to the southern portion owned by petitioner.

No voluntary easement was established between the parties. Glaring is the fact that the terms of the arrangement were not agreed upon by the parties, more particularly, the payment of the proper indemnity. The evidence is not ample enough to support the conclusion that there was a verbal agreement on the right-of-way over the southern portion, More so, since a right-of-way is an interest in the land, any agreement creating it should be drawn and executed with the same formalities as a deed to a real estate, and ordinarily must be in writing. No written instrument on this agreement was adduced by respondents.

NPC v. TiangcoTiangcos are the owners of a parcel of land with an area of 152,187 square. On the other hand, petitioner NPC is a government-owned and controlled corporation created for the purpose of undertaking the development and generation of power from whatever source and under their charter they can acquire private property and exercise the right of eminent domain. NPC requires 19,423 square meters of the respondents’ aforementioned property, across which its Transmission Line Project will traverse and within which the portion sought to be expropriated stand fruit-bearing tress, such as mango, avocado, jackfruit, casuy, santol, calamansi, sintones and coconut trees. NPC made it clear that it is interested only in acquiring an easement of right-of-way over the respondents’ property and that ownership of the area over which the right-of-way will be established shall remain with the respondents. For this reason, NPC claims that it should pay, in addition to the agreed or adjudged value of the improvements on the area, only an easement fee in an amount equivalent to ten per cent (10%) of the market value of the property as declared by the respondents or by the Municipal Assessor, whichever is lower, as provided for under Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938.6Should NPC pay for the value of the land being taken, or should it be limited to what is provided for under P.D. 938, that is, ten per cent (10%) of its market value as declared by the owner or the assessor (whichever is lower), considering that the purpose for which the property is being taken is merely for the establishment of a safe and

free passage for its overhead transmission lines?In several cases, the Court struck down NPC’s consistent reliance on Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938.18 True, an easement of a right-of-way transmits no rights except the easement itself, and the respondents would retain full ownership of the property taken. Nonetheless, the acquisition of such easement is not gratis. The limitations on the use of the property taken for an indefinite period would deprive its owner of the normal use thereof. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land taken. As correctly observed by the CA, considering the nature and the effect of the installation power lines, the limitations on the use of the land for an indefinite period would deprive respondent of normal use of the property. Finally, if NPC were to have its way, respondents will continue to pay the realty taxes due on the affected portion of their property, an imposition that, among others, merits the rejection of NPC’s thesis of payment of a mere percentage of the property’s actual value.For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land.

NPC v. Suares

In issue in the present petition is whether petitioner, the National Power Corporation, in its acquisition of an easement of right of way (aerial) over a parcel of land, only a fee, not the full value of the land, must be paid. In accordance with Section 2 of Presidential Decree No. 42, petitioner deposited with the Philippine National Bank, Legazpi City Branch the amount of P7,465.71“representing the provisional value” of the property,[3] alleged to cover an area of 24,350 square meters. Respondents filed on May 5, 1997 their Answer with Counterclaim, alleging that the property covers an area of 34,950, not 24,350 square meters, and that petitioner had already constructed two transmission towers in the middle of the property, cut down more or less 737 trees of different varieties (169 fruit bearing coconut trees, 11 coconut trees seven years old and below, 36 various species of fruit trees, 89 bamboo trees, 77 banana trees, 39 shade trees and 50 madre de cacao trees)[4] and an estimated 562.86 board feet of hardwood trees and 706.80 board feet of softwood trees.[5] They thus moved for the determination of just compensation which was granted by the court which appointed commissioners for the purpose and the amount of P783,860.46. Petitioner contends that since it merely seeks an aerial easement over the property, the decision of the appellate court affirming the trial court’s order for the payment of just compensation in the amount of P783, 860.46 representing the total value of the property and excluding the application of Section 3A (b) of RA 6395 is erroneous. Petitioner’s plea for the application of Section 3A(b) of RA 6395 which directs the payment of an amount equivalent to only 10% of the market value of the property as just compensation for an easement of right of way does not lie. True, an easement of right of way transmits no rights except the easement itself, and respondent retains full ownership of the property. The acquisition of such easement is, nevertheless, not gratis. As correctly observed by the CA, considering the nature and the effect of the installation of power lines, the limitations on the use of the land for an indefinite period would deprive respondent of normal use of the property. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land. Petitioner’s assertion that respondents can still make use of the property by planting corn, rice, root crops and similar plants[11] fails to consider that the property was originally tilled and suited for, as reflected in the Commissioners’ Report, 234 fruit bearing coconut trees, 617 abaca plants, 50 madre de cacao and 23 jackfruit trees.[12] That petitioner prohibited respondents from planting trees higher than three meters clearly shows that the easement had impaired respondents’ beneficial enjoyment of their property to warrant the imposition of payment of its full value.

Goldcrest v. Cypress

Petitioner Goldcrest is the developer of Cypress Gardens, a ten-storey building located at Herrera Street, Legaspi Village, Makati City. On April 26, 1977, Goldcrest executed a Master Deed and Declaration of Restrictions which constituted Cypress Gardens into a condominium project and incorporated respondent Cypress to manage the condominium project and to hold title to all the common areas. Title to the land on which the condominium stands was transferred to Cypress but Goldcrest retained ownership of the two-level penthouse unit on the ninth and tenth floors of the condominium registered under Condominium Certificate of Title. Goldcrest and its directors, officers, and assigns likewise controlled the management and administration of the Condominium until 1995. Following the turnover of the administration and management of the Condominium to the board of directors of Cypress in 1995, it was discovered that certain common areas pertaining to Cypress were being occupied and encroached upon by Goldcrest. Thus, in 1998, Cypress filed a complaint with damages against Goldcrest before the Housing and Land Use Regulatory Board (HLURB), seeking to compel the latter to vacate the common areas it allegedly encroached on and to remove the structures it built thereon. WON GOLDCREST BUILT AN OFFICE STRUCTURE ON A SUPPOSED ENCROACHED AREA IN THE OPEN SPACE OF THE ROOF DECK and WON THE APPELLATE COURT ERRED IN RULING THAT PETITIONER IMPAIRED THE EASEMENT ON THE PORTION OF THE ROOF DECK DESIGNATED AS A LIMITED COMMON AREA. That Goldcrest built an office structure on the roof deck’s limited common area is supported by substantial evidence and established facts, to wit: (1) the ocular inspection reports submitted by HLURB Inspector Edwin D. Aquino; (2) the fact that the second ocular inspection of the roof deck was intended to measure the actual area encroached upon by Goldcrest; (3) the fact that Goldcrest had been fined for building a structure on the limited common area; and (4) the fact that Goldcrest neither denied the structure’s existence nor its encroachment on the roof deck’s limited common area. On the second issue, Goldcrest has no right to erect an office structure on the limited common area despite its exclusive right to use the same. We note that not only did Goldcrest’s act impair the easement, it also illegally altered the condominium plan, in violation of Section 22 of Presidential Decree No. 957. The owner of the dominant estate cannot violate any of the following prescribed restrictions on its rights on the servient estate, to wit: Art. 626 and 627 (1) it can only exercise rights necessary for the use of the easement;20 (2) it cannot use the easement except for the benefit of the immovable originally contemplated;21 (3) it cannot exercise the easement in any other manner than that previously established;22 (4) it cannot construct anything on it which is not necessary for the use and preservation of the easement;23 (5) it cannot alter or make the easement more burdensome;24 (6) it must notify the servient estate owner of its intention to make necessary works on the servient estate;25 and (7) it should choose the most convenient time and manner to build said works so as to cause the least convenience to the owner of the servient estate.26 Any violation of the above constitutes impairment of the easement.

Privatization v. Legaspi

Caruff owned several parcels of land along Roxas Boulevard and to finance their construction of Legaspi Tower they obtained a loan from PNB accommodated by a real estate mortgage where they planned to build the said Tower. However, Caruff failed to pay its loan with PNB, the latter foreclosed the mortgage and acquired some of the properties of Caruff at the sheriff’s auction sale. Thereafter, Proclamation No. 50 was issued and Asset Privatization Trust (APT) became the assignee and transferee of all its rights and titles to and interests in its receivables with Caruff, including the properties it acquired from the foreclosure of Caruff’s mortgage. Caruff filed a case against PNB before the RTC of Manila, Branch 2, whereby Caruff sought the nullification of PNB’s foreclosure of its properties. A Compromise Agreement was later entered into by Caruff, PNB, and the National Government thru APT wherein they agreed that Caruff would transfer and convey in favor of the National Government, thru the APT, the lot covered by TCT No. 127649 (now TCT No. 200760), where it built the generating set and sump pumps. Legaspi filed a case for Declaration of the existence of an easement and alleged that the act of Caruff of constructing the powerhouse and sump pumps on its property constituted a voluntary easement in favor of the respondent. It prayed, among other things, that judgment be rendered declaring the existence of an easement over the portion of the property. WON THE PRESENCE OF THE GENERATOR SET (GENERATING SET) AND SUMP PUMPS CONSTITUES AN EASEMENT. An easement or servitude is “a real right constituted on another’s property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.” The statutory basis of this right is Article 613 of the Civil Code, which provides: Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. There are two sources of easements: by law or by the will of the owners. Article 619 of the Civil Code states: Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements. In the present case, neither type of easement was constituted over the subject property. Moreover, Article 613 of the Civil Code does not apply, since no true easement was constituted or existed, because both properties were owned then by Caruff. Art. 624 applies : The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. From the foregoing, it can be inferred that when the owner of two properties alienates one of them and an apparent sign of easement exists between the two estates, entitlement to it continues, unless there is a contrary agreement, or the indication that the easement exists is removed before the execution of the deed. In relation thereto, the Compromise Agreement, as approved by the court, clearly states, among other things, that: Caruff, pledged that it was assigning, transferring, and conveying the subject property in favor of the National Government thru the APT “free from any and all liens and encumbrances.”

Salimbango v. Tan

Ceniza siblings inherited several lots from their mother. Lots A, B, and C were adjacent to a city street. But Lots D and E were not, they being interior lots. Victoria became the owner of Lot A, one of the three lots adjacent to the city street. Victoria and her husband (the Salimbangons) constructed a residential house on this lot and built two garages on it. One garage abutted the street while the other, located in the interior of Lot A, used the alley or easement of right of way existing on Lot B to get to the street. Victoria had this alley cemented and gated. Subsequently, however, respondent spouses Santos and Erlinda Tan (the Tans) bought Lots B, C, D, and E from all their owners. The Tans built improvements on Lot B that spilled into the easement area. They also closed the gate that the Salimbangons built. Unable to use the old right of way, the Salimbangons lodged a complaint with the City Engineer of Mandaue against the Tans. As originally constituted in that agreement, each of Lots A and B was to contribute a strip of 1.5 meters between them that when combined formed a 3-meter wide alley leading from Lots D and E to the street. To the extent that Lots A and B retained the right to use the 1.5-meter portion that they contributed to the establishment of the easement, the agreement gave their owners the right to use the common alley as well. As Eduardo testified, however, the true intent of the heirs was to give Lots D and E access to the street. Lots A and B did not need this alley since they were facing the street. Consequently, when the owner of Lots D and E also became the owner of Lot B, the easement of right of way on Lot B became extinct by operation of law. The existence of a dominant estate and a servient estate is incompatible with the idea that both estates belong to the same person.

Quintanilla v. Abangon

Sometime in the 1960s, Perfecta bought Lot No. 3771-B-1-A, with an area of 2,244 square meters, located at Inayawan, Cebu City (the dominant estate) from one Dionisio Abasolo, who formerly owned all the properties therein. Thereafter, Perfecta donated the dominant estate to Apolinardito, who is now the registered owner thereof.[4] Petitioners own QC Rattan Inc., a domestic corporation engaged in the manufacture and export of rattan-made furniture. In the conduct of their business, they use vans to haul and transport raw materials and finished products. As they wanted to expand their business and construct a warehouse on their property (the dominant estate), they asked for a right of way from Pedro sometime in April 1994. However, Pedro sold the subject property to Daryl who constructed a warehouse over the servient estate, enclosing the same with a concrete fence. Petitioners, thus, sought the imposition of an easement of right of way but RTC dismissed the case for lack of merit because petitioners failed to establish that the imposition of the right of way was the least prejudicial to the servient estate. Moreover, the RTC observed that petitioners' insistence on passing through the servient estate would make for easy and convenient access to the main thoroughfare for their vans. On this premise, the RTC opined that mere convenience to the dominant estate was not necessarily the basis for setting up a compulsory easement of right of way. Aggrieved, petitioners went to the CA on appeal but RTC decision was affirmed thus this petition. a) IN A COMPULSORY EASEMENT OF RIGHT OF WAY, AS SET FORTH IN THE PRECONDITIONS UNDER ARTICLES 649 AND 650 OF THE NEW CIVIL CODE, THE DETERMINATION OF THE LEAST PREJUDICIAL OR LEAST DAMAGE TO THE SERVIENT ESTATE SHOULD BE AT THE TIME OF THE FILING OF THE ORIGINAL COMPLAINT AND NOT AFTER THE FILING, ESPECIALLY WHEN THE OWNER OF THE SERVIENT ESTATE IS GUILTY OF ABUSE OF RIGHTS CONSIDERED AS THE GREATEST OF ALL

POSSIBLE WRONGS OR BAD FAITH BY CONSTRUCTING A CONCRETE FENCE AND WAREHOUSE THEREON THROUGH MISREPRESENTATION TO THE OFFICE OF THE CEBU CITY BUILDING OFFICIAL THAT IT HAD GRANTED A RIGHT OF WAY OF SIX (6) METERS TO PETITIONERS; AND b) WHETHER OR NOT COMPLIANCE WITH THE PRECONDITIONS SET FORTH IN ARTICLES 649 AND 650 OF THE NEW CIVIL CODE IS SUPERIOR TO THE “MERE CONVENIENCE RULE AGAINST THE OWNER OF THE DOMINANT ESTATE.” We hold that Apolinardito as owner of the dominant estate together with Perfecta failed to discharge the burden of proving the existence and concurrence of all the requisites in order to validly claim a compulsory right of way against respondents. It should be remembered that to be entitled to a legal easement of right of way, the following requisites must be satisfied: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; and (4) the right of way claimed is at the point least prejudicial to the servient estate. The fourth requisite is absent. As between a right of way that would demolish a fence of strong materials to provide ingress and egress to a public highway and another right of way which although longer will only require a van or vehicle to make a turn, the second alternative should be preferred. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the easement, the same should not be imposed. Finally, worthy of note, is the undisputed fact that there is already a newly opened public road barely fifty (50) meters away from the property of appellants, which only shows that another requirement of the law, that is, there is no adequate outlet, has not been met to establish a compulsory right of way.

Velasco v. Meralco

Velasco was the owner of 3 adjoining lots. He then sold two of these to Meralco who later constructed a substation. It was only separated from the house of petitioner by a wire fence.

HELD:

General rule is that everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others, and so long as this level is not surpassed, he may not complain against them. But if the prejudice exceeds the inconveniences that such proximity habitually brings, the neighbor who causes such disturbance is held responsible for the resulting damage, being guilty of causing nuisance.

The test is whether the rights of property, of health or of comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the condition of living, or of holding property, in a particular locality in fact devoted to uses which involve the emission of noise although ordinary care is taken to confine it within reasonable bounds.

Estate of Francisco v. CA

Francisco owned a Quonset constructed on a lot owned by Philippine Ports Authority by virtue of the authority given by the later. The Quonset was used for the storage of copra. Due to Zoning ordinance no. 157 which campaigns against illegal squatters and unsanitary surroundings, the Mayor ordered the removal or relocation of the building. Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on 24 May 1989. Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court. On 7 August 1989, the Trial Court 1 denied the Writ of Prohibition and upheld the power of respondent Mayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal. On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In its place sprang shanties and nipa huts, photographs of which have been attached to petitioner's Memorandum.

The focal issue for determination is whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building.

Respondents cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. The storage of copra in the quonset building is a legitimate business. By its nature, it cannot be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. While the Sangguniang Bayan may provide for the abatement of a nuisance, it cannot declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. [Municipal councils] do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se nor can they authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such. These things must be determined in the ordinary courts of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry . . . . If it be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board. The petitioner is entitled to a fair and impartial heating before a judicial tribunal. Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no compelling necessity for precipitate action. It follows then that respondent public officials of the Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the Court of Appeals, the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue. For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset building.

CAPILI vs. CARDAÑAG.R. No. 157906 November 2, 2006

FACTS:Jasmin Cardaña was walking along the perimeter fence of the San Roque Elementary School when a branch of a  caimito tree located within the school premises fell on her, causing her instantaneous death. The Cardañas filed a case for damages averring that petitioner’s gross negligence and lack of foresight caused the death of their daughter.

Petitioner denied the accusation. Petitioner contends she was unaware of the state of the dead and rotting tree and no one informed her of its condition and that the tree was an imminent danger to anyone. She argues that she could not see the immediate danger posed by the tree by its mere sighting even as she and the other teachers conducted ground inspections. She further argues that, even if she should have been aware of the danger, she exercised her duty by assigning the disposition of the tree to another teacher.

The trial court dismissed the complaint for failure of the respondents to establish negligence on the part of the petitioner. CA reversed the decision.

ISSUE:Is petitioner is negligent and liable for the death of Jasmin Cardaña?

HELD:Yes.

RULING:The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a danger that is foreseeable. As the school principal, petitioner was tasked to see to the maintenance of the school grounds and safety of the children within the school and its premises. That she was unaware of the rotten state of a tree whose falling branch had caused the death of a child speaks ill of her discharge of the responsibility of her position.

The fact, however, that respondents’ daughter, Jasmin, died as a result of the dead and rotting tree within the school’s premises shows that the tree was indeed an obvious danger to anyone passing by and calls for application of the principle of res ipsa loquitur.

“The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant’s negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.”

The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter was a result of petitioner’s negligence, being in charge of the school.

Petitioner’s explanation is wanting. As school principal, petitioner is expected to oversee the safety of the school’s premises. 1âwphi1The fact that she failed to see the immediate danger posed by the dead and rotting tree shows she failed to exercise the responsibility demanded by her position. Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises supervision over her assignee.

Gancayco v. City Gov’t

In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of land located at 746 Epifanio delos Santos Avenue (EDSA),[3] Quezon City with an area of 375 square meters and covered by Transfer Certificate of Title (TCT) No. RT114558.

On 27 March 1956, the Quezon City Council issued Ordinance No. 2904, entitled “An Ordinance Requiring the Construction of Arcades, for Commercial Buildings to be Constructed in Zones Designated as Business Zones in the Zoning Plan of Quezon City, and Providing Penalties in Violation Thereof.”[4]

An arcade is defined as any portion of a building above the first floor projecting over the sidewalk beyond the first storey wall used as protection for pedestrians against rain or sun.[5]

Ordinance No. 2904 required the relevant property owner to construct an arcade with a width of 4.50 meters and height of 5.00 meters along EDSA, from the north side ofSantolan Road to one lot after Liberty Avenue, and from one lot before Central Boulevard to the Botocan transmission line.

At the outset, it bears emphasis that at the time Ordinance No. 2904 was passed by the city council, there was yet no building code passed by the national legislature. Thus, the regulation of the construction of buildings was left to the discretion of local government units. Under this particular ordinance, the city council required that the arcade is to be created by constructing the wall of the ground floor facing the sidewalk a few meters away from the property line. Thus, the building owner is not allowed to construct his wall up to the edge of the property line, thereby creating a space or shelter under the first floor. In effect, property owners relinquish the use of the space for use as an arcade for pedestrians, instead of using it for their own purposes.

The ordinance was amended several times. On 8 August 1960, properties located at the Quezon City-San Juan boundary were exempted by Ordinance No. 60-4477 from the construction of arcades. This ordinance was further amended by Ordinance No. 60-4513, extending the exemption to commercial buildings from Balete Street to Seattle Street. Ordinance No. 6603 dated 1 March 1966 meanwhile reduced the width of the arcades to three meters for buildings along V. Luna Road, Central District, Quezon City.

The ordinance covered the property of Justice Gancayco. Subsequently, sometime in 1965, Justice Gancayco sought the exemption of a two-storey building being constructed on his property from the application of Ordinance No. 2904 that he be exempted from constructing an arcade on his property.

On 2 February 1966, the City Council acted favorably on Justice Gancayco’s request and issued Resolution No. 7161, S-66, “subject to the condition that upon notice by the City Engineer, the owner shall, within reasonable time, demolish the enclosure of said arcade at his own expense when public interest so demands.”[6]

Decades after, in March 2003, the Metropolitan Manila Development Authority (MMDA) conducted operations to clear obstructions along the sidewalk of EDSA in Quezon City pursuant to Metro Manila Council’s (MMC) Resolution No. 02-28, Series of 2002.[7] The resolution authorized the MMDA and local government units to “clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all illegal structures and obstructions.”[8]

On 28 April 2003, the MMDA sent a notice of demolition to Justice Gancayco alleging that a portion of his building violated the National Building Code of the Philippines(Building Code)[9] in relation to Ordinance No. 2904. The MMDA gave Justice Gancayco fifteen (15) days to clear the portion of the building that was supposed to be an arcade along EDSA.[10]

Justice Gancayco did not comply with the notice. Soon after the lapse of the fifteen (15) days, the MMDA proceeded to demolish the party wall, or what was referred to as the “wing walls,” of the ground floor structure. The records of the present case are not entirely clear on the extent of the demolition; nevertheless, the fact of demolition was not disputed. At the time of the demolition, the affected portion of the building was being used as a restaurant.

On 29 May 2003, Justice Gancayco filed a Petition[11] with prayer for a temporary restraining order and/or writ of preliminary injunction before the Regional Trial Court (RTC) of Quezon City, docketed as Civil Case No. Q03-49693, seeking to prohibit the MMDA and the City Government of Quezon City from demolishing his property. In his Petition,[12] he alleged that the ordinance authorized the taking of private property without due process of law and just compensation, because the construction of an arcade will require 67.5 square meters from the 375 square meter property. In addition, he claimed that the ordinance was selective and discriminatory in its scope and application when it allowed the owners of the buildings located in the Quezon City-San Juan boundary to Cubao Rotonda, and Balete to Seattle Streets to construct arcades at their option. He thus sought the declaration of nullity of Ordinance No. 2904 and the payment of damages. Alternately, he prayed for the payment of just compensation should the court hold the ordinance valid.

The City Government of Quezon City claimed that the ordinance was a valid exercise of police power, regulating the use of property in a business zone. In addition, it pointed out that Justice Gancayco was already barred by estoppel, laches and prescription.

Similarly, the MMDA alleged that Justice Gancayco could not seek the nullification of an ordinance that he had already violated, and that the ordinance enjoyed the presumption of constitutionality. It further stated that the questioned property was a public nuisance impeding the safe passage of pedestrians. Finally, the MMDA claimed that it was merely implementing the legal easement established by Ordinance No. 2904.[13]

The RTC rendered its Decision on 30 September 2003 in favor of Justice Gancayco.[14] It held that the questioned ordinance was unconstitutional, ruling that it allowed the taking of private property for public use without just compensation. The RTC said that because 67.5 square meters out of Justice Gancayco’s 375 square meters of property were being taken without compensation for the public’s benefit, the ordinance was confiscatory and oppressive. It likewise held that the ordinance violated owners’ right to equal protection of laws. The dispositive portion thus states:

WHEREFORE, the petition is hereby granted and the Court hereby declares Quezon City Ordinance No. 2094,[15] Series of 1956 to be unconstitutional, invalid and void ab initio. The respondents are hereby permanently enjoined from enforcing and implementing the said ordinance, and the respondent MMDA is hereby directed to immediately restore the portion of the party wall or wing wall of the building of the petitioner it destroyed to its original condition.

IT IS SO ORDERED.

The MMDA thereafter appealed from the Decision of the trial court. On 18 July 2006, the Court of Appeals (CA) partly granted the appeal.[16] The CA upheld the validity of Ordinance No. 2904 and lifted the injunction against the enforcement and implementation of the ordinance. In so doing, it held that the ordinance was a valid exercise of the right of the local government unit to promote the general welfare of its constituents pursuant to its police powers. The CA also ruled that the ordinance established a valid classification of property owners with regard to the construction of arcades in their respective properties depending on the location. The CA further stated that there was no taking of private property, since the owner still enjoyed the beneficial ownership of the property, to wit:

Even with the requirement of the construction of arcaded sidewalks within his commercial lot, appellee still retains the beneficial ownership of the said property. Thus, there is no “taking” for public use which must be subject to just compensation. While the arcaded sidewalks contribute to the public good, for providing safety and comfort to passersby, the ultimate benefit from the same still redounds to appellee, his commercial establishment being at the forefront of a busy thoroughfare like EDSA. The arcaded sidewalks, by their nature, assure clients of the commercial establishments thereat some kind of protection from accidents and other hazards. Without doubt, this sense of protection can be a boon to the business activity therein engaged. [17]

Nevertheless, the CA held that the MMDA went beyond its powers when it demolished the subject property. It further found that Resolution No. 02-28 only refers to sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila, thus excluding Justice Gancayco’s private property. Lastly, the CA stated that the MMDA is not clothed with the authority to declare, prevent or abate nuisances. Thus, the dispositive portion stated:

WHEREFORE, the appeals are PARTLY GRANTED. The Decision dated September 30, 2003 of the Regional Trial Court, Branch 224, Quezon City, is MODIFIED, as follows:

1) The validity and constitutionality of Ordinance No. 2094,[18] Series of 1956, issued by the City Council of Quezon City, is UPHELD; and

2) The injunction against the enforcement and implementation of the said Ordinance is LIFTED.

SO ORDERED.

This ruling prompted the MMDA and Justice Gancayco to file their respective Motions for Partial Reconsideration.[19]

On 10 May 2007, the CA denied the motions stating that the parties did not present new issues nor offer grounds that would merit the reconsideration of the Court.[20]

Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA filed their respective Petitions for Review before this Court. The issues raised by the parties are summarized as follows:

I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED FROM ASSAILING THE VALIDITY OF ORDINANCE NO. 2904.

II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL.

III. WHETHER OR NOT THE WING WALL OF JUSTICE GANCAYCO’S BUILDING IS A PUBLIC NUISANCE.

IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE PROPERTY OF JUSTICE GANCAYCO.

The Court’s Ruling

Estoppel

The MMDA and the City Government of Quezon City both claim that Justice Gancayco was estopped from challenging the ordinance, because, in 1965, he asked for an exemption from the application of the ordinance. According to them, Justice Gancayco thereby recognized the power of the city government to regulate the construction of buildings.

To recall, Justice Gancayco questioned the constitutionality of the ordinance on two grounds: (1) whether the ordinance “takes” private property without due process of law and just compensation; and (2) whether the ordinance violates the equal protection of rights because it allowed exemptions from its application.

On the first ground, we find that Justice Gancayco may still question the constitutionality of the ordinance to determine whether or not the ordinance constitutes a “taking” of private property without due process of law and just compensation. It was only in 2003 when he was allegedly deprived of his property when the MMDA demolished a portion of the building. Because he was granted an exemption in 1966, there was no “taking” yet to speak of.

Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,[21] we held:

It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced in the special conditions imposed by the City Mayor in subject business permit does not preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts which are clearly beyond the scope of one's authority are null and void and cannot be given any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void or ultra vires. (Emphasis supplied.)

Recently, in British American Tobacco v. Camacho,[22] we likewise held:

We find that petitioner was not guilty of estoppel. When it made the undertaking to comply with all issuances of the BIR, which at that time it considered as valid, petitioner did not commit any false misrepresentation or misleading act. Indeed, petitioner cannot be faulted for initially undertaking to comply with, and subjecting itself to the operation of Section 145(C), and only later on filing the subject case praying for the declaration of its unconstitutionality when the circumstances change and the law results in what it perceives to be unlawful

discrimination. The mere fact that a law has been relied upon in the past and all that time has not been attacked as unconstitutional is not a ground for considering petitioner estopped from assailing its validity. For courts will pass upon a constitutional question only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. (Emphasis supplied.)

Anent the second ground, we find that Justice Gancayco may not question the ordinance on the ground of equal protection when he also benefited from the exemption. It bears emphasis that Justice Gancayco himself requested for an exemption from the application of the ordinance in 1965 and was eventually granted one. Moreover, he was still enjoying the exemption at the time of the demolition as there was yet no valid notice from the city engineer. Thus, while the ordinance may be attacked with regard to its different treatment of properties that appears to be similarly situated, Justice Gancayco is not the proper person to do so.

Zoning and the regulation of the

construction of buildings are valid

exercises of police power .

In MMDA v. Bel-Air Village Association,[23] we discussed the nature of police powers exercised by local government units, to wit:

Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare.

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking 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.

To resolve the issue on the constitutionality of the ordinance, we must first determine whether there was a valid delegation of police power. Then we can determine whether the City Government of Quezon City acted within the limits of the delegation.

It is clear that Congress expressly granted the city government, through the city council, police power by virtue of Section 12(oo) of Republic Act No. 537, or the Revised Charter of Quezon City,[24] which states:

To make such further ordinances and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.

Specifically, on the powers of the city government to regulate the construction of buildings, the Charter also expressly provided that the city government had the power to regulate the kinds of buildings and structures that may be erected within fire limits and the manner of constructing and repairing them.[25]

With regard meanwhile to the power of the local government units to issue zoning ordinances, we apply Social Justice Society v. Atienza.[26] In that case, the Sangguniang Panlungsod of Manila City enacted an ordinance on 28 November 2001 reclassifying certain areas of the city from industrial to commercial. As a result of the zoning ordinance, the oil terminals located in those areas were no longer allowed. Though the oil companies contended that they stood to lose billions of pesos, this Court upheld the power of the city government to pass the assailed ordinance, stating:

In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to fulfil the objectives of the government. Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare. However, the interference must be reasonable and not arbitrary. And to forestall arbitrariness, the methods or means used to protect public health, morals, safety or welfare must have a reasonable relation to the end in view.

The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the area where the depot is situated from industrial to commercial. A zoning ordinance is defined as a local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs. As a result of the zoning, the continued operation of the businesses of the oil companies in their present location will no longer be permitted. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality. Consequently, the enactment of Ordinance No. 8027 is within the power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those affected cannot be said to be unjust... (Emphasis supplied)

In Carlos Superdrug v. Department of Social Welfare and Development,[27] we also held:

For this reason, when the conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare.

Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect of the provision in question, there is no basis for its nullification in view of the presumption of validity which every law has in its favor. (Emphasis supplied.)

In the case at bar, it is clear that the primary objectives of the city council of Quezon City when it issued the questioned ordinance ordering the construction of arcades were the health and safety of the city and its inhabitants; the promotion of their prosperity; and the improvement of their morals, peace, good order, comfort, and the convenience. These arcades provide safe and convenient passage along the sidewalk for commuters and pedestrians, not just the residents of Quezon City. More especially so because the contested portion of the building is located on a busy segment of the city, in a business zone along EDSA.

Corollarily, the policy of the Building Code,[28] which was passed after the Quezon City Ordinance, supports the purpose for the enactment of Ordinance No. 2904. The Building Code states:

Section 102. Declaration of Policy. – It is hereby declared to be the policy of the State to safeguard life, health, property, and public welfare, consistent with the principles of sound environmental management and control; and to this end, make it the purpose of this Code to provide for all buildings and structures, a framework of minimum standards and requirements to regulate and control their location, site, design quality of materials, construction, occupancy, and maintenance.

Section 1004 likewise requires the construction of arcades whenever existing or zoning ordinances require it. Apparently, the law allows the local government units to determine whether arcades are necessary within their respective jurisdictions.

Justice Gancayco argues that there is a three-meter sidewalk in front of his property line, and the arcade should be constructed above that sidewalk rather than within his property line. We do not need to address this argument inasmuch as it raises the issue of the wisdom of the city ordinance, a matter we will not and need not delve into.

To reiterate, at the time that the ordinance was passed, there was no national building code enforced to guide the city council; thus, there was no law of national application that prohibited the city council from regulating the construction of buildings, arcades and sidewalks in their jurisdiction.

The “wing walls” of the building are not

nuisances per se.

The MMDA claims that the portion of the building in question is a nuisance per se.

We disagree.

The fact that in 1966 the City Council gave Justice Gancayco an exemption from constructing an arcade is an indication that the wing walls of the building are not nuisancesper se. The wing walls do not per se immediately and adversely affect the safety of persons and property. The fact that an ordinance may declare a structure illegal does not necessarily make that structure a nuisance.

Article 694 of the Civil Code defines nuisance as any act, omission, establishment, business, condition or property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or, (5) hinders or impairs the use of property. A nuisance may be per se or per accidens. A nuisance per se is that which affects the immediate safety of persons and property and may summarily be abated under the undefined law of necessity.[29]

Clearly, when Justice Gancayco was given a permit to construct the building, the city council or the city engineer did not consider the building, or its demolished portion, to be a threat to the safety of persons and property. This fact alone should have warned the MMDA against summarily demolishing the structure.

Neither does the MMDA have the power to declare a thing a nuisance. Only courts of law have the power to determine whether a thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp.,[30] we held:

We agree with petitioner's contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary courts of law. If a thing be in fact, a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan. (Emphasis supplied.)

MMDA illegally demolished

the property of Justice Gancayco.

MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of 2002, it is empowered to demolish Justice Gancayco’s property. It insists that the Metro Manila Council authorized the MMDA and the local government units to clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in

Metro Manila of all illegal structures and obstructions. It further alleges that it demolished the property pursuant to the Building Code in relation to Ordinance No. 2904 as amended.

However, the Building Code clearly provides the process by which a building may be demolished. The authority to order the demolition of any structure lies with the Building Official. The pertinent provisions of the Building Code provide:

SECTION 205. Building Officials. — Except as otherwise provided herein, the Building Official shall be responsible for carrying out the provisions of this Code in the field as well as the enforcement of orders and decisions made pursuant thereto.

Due to the exigencies of the service, the Secretary may designate incumbent Public Works District Engineers, City Engineers and Municipal Engineers act as Building Officials in their respective areas of jurisdiction.

The designation made by the Secretary under this Section shall continue until regular positions of Building Official are provided or unless sooner terminated for causes provided by law or decree.

xxx xxx xxx

SECTION 207. Duties of a Building Official. — In his respective territorial jurisdiction, the Building Official shall be primarily responsible for the enforcement of the provisions of this Code as well as of the implementing rules and regulations issued therefor. He is the official charged with the duties of issuing building permits.

In the performance of his duties, a Building Official may enter any building or its premises at all reasonable times to inspect and determine compliance with the requirements of this Code, and the terms and conditions provided for in the building permit as issued.

When any building work is found to be contrary to the provisions of this Code, the Building Official may order the work stopped and prescribe the terms and/or conditions when the work will be allowed to resume. Likewise, the Building Official is authorized to order the discontinuance of the occupancy or use of any building or structure or portion thereof found to be occupied or used contrary to the provisions of this Code.

xxx xxx xxx

SECTION 215. Abatement of Dangerous Buildings. — When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the degree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines. (Emphasis supplied.)

MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions, Inc.[31] is applicable to the case at bar. In that case, MMDA, invoking its charter and the Building Code, summarily dismantled the advertising media installed on the Metro Rail Transit (MRT) 3. This Court held:

It is futile for MMDA to simply invoke its legal mandate to justify the dismantling of Trackworks' billboards, signages and other advertising media. MMDA simply had no power on its own to dismantle, remove, or destroy the billboards, signages and other advertising media installed on the MRT3 structure by Trackworks. In Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., and Metropolitan Manila Development Authority v. Garin, the Court had the occasion to rule that MMDA's powers were limited to the formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installing a system, and administration. Nothing in Republic Act No. 7924 granted MMDA police power, let alone legislative power.

Clarifying the real nature of MMDA, the Court held:

...The MMDA is, as termed in the charter itself, a "development authority". It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz:

Sec.2. Creation of the Metropolitan Manila Development Authority.- xxx.

The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of local government units concerning purely local matters.

The Court also agrees with the CA's ruling that MMDA Regulation No. 96-009 and MMC Memorandum Circular No. 88-09 did not apply to Trackworks' billboards, signages and other advertising media. The prohibition against posting, installation and display of billboards, signages and other advertising media applied only to public areas, but MRT3, being private property pursuant to the BLT agreement between the Government and MRTC, was not one of the areas as to which the prohibition applied. Moreover, MMC Memorandum Circular No. 88-09 did not apply to Trackworks' billboards, signages and other advertising media in MRT3, because it

did not specifically cover MRT3, and because it was issued a year prior to the construction of MRT3 on the center island of EDSA. Clearly, MMC Memorandum Circular No. 88-09 could not have included MRT3 in its prohibition.

MMDA's insistence that it was only implementing Presidential Decree No. 1096 (Building Code) and its implementing rules and regulations is not persuasive. The power to enforce the provisions of the Building Code was lodged in the Department of Public Works and Highways (DPWH), not in MMDA, considering the law's following provision, thus:

Sec. 201. Responsibility for Administration and Enforcement. -The administration and enforcement of the provisions of this Code including the imposition of penalties for administrative violations thereof is hereby vested in the Secretary of Public Works, Transportation and Communications, hereinafter referred to as the "Secretary."

There is also no evidence showing that MMDA had been delegated by DPWH to implement the Building Code. (Emphasis supplied.)

Additionally, the penalty prescribed by Ordinance No. 2904 itself does not include the demolition of illegally constructed buildings in case of violations. Instead, it merely prescribes a punishment of “a fine of not more than two hundred pesos (P200.00) or by imprisonment of not more than thirty (30) days, or by both such fine and imprisonment at the discretion of the Court, Provided, that if the violation is committed by a corporation, partnership, or any juridical entity, the Manager, managing partner, or any person charged with the management thereof shall be held responsible therefor.” The ordinance itself also clearly states that it is the regular courts that will determine whether there was a violation of the ordinance.

As pointed out in Trackworks, the MMDA does not have the power to enact ordinances. Thus, it cannot supplement the provisions of Quezon City Ordinance No. 2904 merely through its Resolution No. 02-28.

Lastly, the MMDA claims that the City Government of Quezon City may be considered to have approved the demolition of the structure, simply because then Quezon City Mayor Feliciano R. Belmonte signed MMDA Resolution No. 02-28. In effect, the city government delegated these powers to the MMDA. The powers referred to are those that include the power to declare, prevent and abate a nuisance[32] and to further impose the penalty of removal or demolition of the building or structure by the owner or by the city at the expense of the owner.[33]

MMDA’s argument does not hold water. There was no valid delegation of powers to the MMDA. Contrary to the claim of the MMDA, the City Government of Quezon City washed its hands off the acts of the former. In its

Answer,[34] the city government stated that “the demolition was undertaken by the MMDA only, without the participation and/or consent of Quezon City.” Therefore, the MMDA acted on its own and should be held solely liable for the destruction of the portion of Justice Gancayco’s building.

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 84648 is AFFIRMED.