Dear PAO,

My neighbor is using the sidewalk for his fish ball cart, which is attached to a motorcycle. On multiple occasions, it has indirectly led to accidents because the pedestrians were forced to walk in the middle of the road to avoid the cart. My neighbor asserts that what he is doing is legal because the cart is readily movable and not a fixed structure. Is he legally correct?

Francis T.

Dear Francis T.,

No, your neighbor is not correct. On the contrary, the sidewalk belongs to the public; hence, it must be utilized and devoted for public use.

Foremost, Section 52, Article V of Republic Act (RA) 4136, otherwise known as the Land Transportation and Traffic Code, provides that “no person shall drive or park a motor vehicle upon or along any sidewalk, path or alley not intended for vehicular traffic or parking.” Since your neighbor’s fish ball cart, attached to a motorcycle, is parked on the sidewalk, he directly violated the said provision of the law.

Furthermore, Section 30 of the Philippine Highway Act (RA 917, as amended by Presidential Act 17) prevents and penalizes the conversion of sidewalk for commercial or private purposes, to wit:

“Section 30. Penalties. – It shall be unlawful for any person to usurp any portion of a right-of-way, to convert any part of any public highway, bridge, wharf or trail to his own private use or to obstruct the same in any manner, or to use any highway ditch for irrigation or other private purposes, and any person so offending shall be punished by a fine of not more than two hundred pesos or by imprisonment not exceeding three months.”

Additionally, in Dacanay vs. Mayor Asistio, et al. (citing the old case of Umali vs. Aquino, IC. A. Rep. 339), GR 93654, May 06, 1992, Ponente: Associate Justice Carolina Griño-Aquino, the Supreme Court ruled that occupation of sidewalks is a nuisance per se, saying:

“The occupation and use of private individuals of sidewalks and other public places devoted for public use constitute both public and private nuisances and nuisance per se, and this applies to even case involving the use or lease of public places under permits and licenses issued by competent authority, upon the theory that such holders could not take advantage of their unlawful permits and license and claim that the land in question is a part of a public street or a public place devoted to public use, hence, beyond the commerce of man.”

Thus, your neighbor cannot convert the sidewalk for his own personal and commercial use, regardless if he is using a movable cart and not a permanent structure. Sidewalks are meant to be a shared space for the benefit of the community as a whole. It is a public place that is beyond the commerce of man.

We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support