Cebu Oxygen and Acetylene Co. v. Berciles (Digested Case)

Re: Closure and opening of roads thru an ordinance (Sec. 21)

FACTS: This is a petition for review of an order dismissing petitioner's application for registration of title over a parcel of land. The parcel of land sought to be registered was only a portion of M. Borces Street, Mabolo, Cebu City. The City Council of Cebu, through a resolution, declared the terminal portion of said street abandoned road. Subsequently, the City Council of Cebu passed another resolution, authorizing the Acting City Mayor to sell the land through a public bidding. Pursuant thereto, the lot was awarded to the herein petitioner. The City of Cebu, through the Acting City Mayor, executed a deed of absolute sale to the herein petitioner. The petitioner filed an application with the Court of First instance of Cebu to have its title to the land registered. However, 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.

ISSUES:

(1) WON the City Charter of Cebu City (RA 3857) give the City of Cebu the valid right to declare a road as abandoned.

(2) WON 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.

(3) WON the property in question is registrable by the petitioner.

HELD:

(1) Yes. The pertinent portions of the Revised Charter of Cebu City provides that the city council has the authority "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 Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." From the foregoing, it is undoubtedly clear that the City of Cebu is empowered to close a city road or street.

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 Since that portion of the city street subject of petitioner's application for registration of title was withdrawn from public use, it follows that such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract.

(3) Yes.  Since the 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.