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PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[G.R. No. L-40474. August 29, 1975.]

CEBU OXYGEN & ACETYLENE CO., INC., Petitioner, v. HON. PASCUAL A. BERCILLES, Presiding Judge, Branch XV, 14th Judicial District, and JOSE L. ESPELETA, Assistant Provincial Fiscal, Province of Cebu, representing the Solicitor General’s Office and the Bureau of Lands, Respondents.

Jose Antonio B. Conde for Petitioner.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Trial Attorney David R. Hilario for Respondents.

SYNOPSIS


Petitioner applied for registration of title over a portion of M. Gorces Street in Cebu City. Said portion was declared an abandoned road by the City Council of Cebu the same not being included in the Cebu Development Plan, and later, by authority of the City Council, was sold by the Acting Mayor to petitioner who was the highest bidder at a public bidding.

The trial court dismissed petitioner’s application on motion of the Assistant Provincial Fiscal on the ground that the property sought to be registered being a public road intended of public use is considered part of the public domain and therefore outside the commerce of men.

On petition for review, the Supreme Court set aside the trial court’s order the directed the latter to proceed with the hearing of petition’s application for registration of title.


SYLLABUS


1. MUNICIPAL CORPORATIONS; STREETS; POWER OF MUNICIPAL COUNCIL TO WITHDRAW PORTION OF STREET FROM PUBLIC USE. — Where a portion of the city street is withdrawn from public use by the city council, which under the city charter is empowered to close any city road, street or alley, boulevard, avenue, park or square, the property thus withdraw from public servitude become patrimonial property and be used or conveyed for any purpose for which any real property belonging to the city may be lawfully used or conveyed.

2. PROPERTY; PROPERTY OF PUBLIC DOMAIN MAY BE CONVERTED INTO PATRIMONIAL PROPERTY. — Under Article 422 of the Civil Code, "property of public dominion, when no longer intended for public service, shall form part of the patrimonial property of the State.


D E C I S I O N


CONCEPCION, JR., J.:


This is a petition for the review of the order of the Court of First Instance of Cebu dismissing petitioner’s application for registration of title over a parcel of land situated in the City of Cebu.

The parcel of land sought to be registered was originally a portion of M. Borces Street, Mabolo, Cebu City. On September 23, 1968, the City Council of Cebu, through Resolution No. 2193, approved on October 3, 1968, declared the terminal portion of M. Borces Street, Mabolo, Cebu City, as an abandoned road, the same not being included in the City Development Plan. 1 Subsequently, on December 19, 1968, the City Council of Cebu passed Resolution No. 2755, authorizing the Acting City Mayor to sell the land through a public bidding. 2 Pursuant thereto, the lot was awarded to the herein petitioner being the highest bidder and on March 3, 1969, the City of Cebu, through the Acting City Mayor, executed a deed of absolute sale to the herein petitioner for a total consideration of P10,800.00. 3 By virtue of the aforesaid deed of absolute sale, the petitioner filed an application with the Court of First Instance of Cebu to have its title to the land registered. 4

On June 26, 1974, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that the property sought to be registered being a public road intended for public use is considered part of the public domain and therefore outside the commerce of man, Consequently, it cannot be subject to registration by any private individual. 5

After hearing the parties, on October 11, 1914 the trial court issued an order dismissing the petitioner’s application for registration of title. 6 Hence, the instant petition for review.

For the resolution of this case, the petitioner poses the following questions:chanrob1es virtual 1aw library

(1) Does the City Charter of Cebu City (Republic Act No. 3857) under Section 31, paragraph 34, give the City of Cebu the valid right to declare a road as abandoned? and

(2) Does the declaration of the road, as abandoned, make it the patrimonial property of the City of Cebu which may be the object of a common contract?

(1) The pertinent portions of the Revised Charter of Cebu City provides:jgc:chanrobles.com.ph

"Section 31. Legislative Powers. Any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers:chanrob1es virtual 1aw library

x       x       x


(34) . . .; to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed."cralaw virtua1aw library

From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road or street. In the case of Favis v. City of Baguio, 7 where the power of the city Council of Baguio City to close city streets and to vacate or withdraw the same from public use was similarly assailed, this court said:jgc:chanrobles.com.ph

"5. So it is, that appellant may not challenge the city council’s act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use.

"Such power to vacate a street or alley is discretionary, And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may he served incidentally will not invalidate the vacation ordinance."cralaw virtua1aw library

(2) Since that portion of the city street subject of petitioner’s application for registration of title was withdrawn from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract.

Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State."cralaw virtua1aw library

Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and unequivocal terms, states that: "Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed."cralaw virtua1aw library

Accordingly, withdrawal of the property in question from public use and its subsequent sale to the petitioner is valid. Hence, the petitioner has a registerable title over the lot in question.

WHEREFORE, the order dated October 11, 1974, rendered by the respondent court in Land Reg. Case No. N-948, LRC Rec. No. N-44531 is hereby set aside, and the respondent court is hereby ordered to proceed with the hearing of the petitioner’s application for registration of title.

SO ORDERED.

Makalintal, C.J., Fernando, Barredo and Aquino, JJ., concur.

Endnotes:



1. Annex A, p. 11, rollo.

2. Annex B, p. 12, rollo.

3. Annex C, p. 13, rollo.

4. Annex D, p. 15, rollo.

5. Annex E, p. 18, rollo.

6. Annex F, p. 20, rollo.

7. G.R. No. L-29910, April 25, 1969; SCRA 1060.

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