DACANAY v. ASISTIO, JR.

FACTS:

This is a petition for mandamus to the non-action of the city registered being a public road intended for public use is considered part of the public domain and therefore outside the commerce of man. After hearing the parties, on 11 October 1914 the trial court issued an order dismissing the petitioner's application for registration of title. Hence, the instant petition for review.

The Supreme Court set aside the order of the lower court, and the ordered said court to proceed with the hearing of the petitioner's application for registration of title.

ISSUE:

Whether or not the sale is valid

RULING: Yes it is.

1. City is empowered to close city road or street and withdraw the same from public use. Section 31 of the Revised Charter of Cebu City (Legislative Powers) provides that “any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers xxx 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 Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." It is undoubtedly clear that the City of Cebu is empowered to close a city road or street.

2. Discretion of the city council cannot ordinarily be interfered with by the court. The city council is the authority competent to determine whether or not a certain property is still necessary for public use. The 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 he presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance.

3. Street withdrawn from public use becomes patrimonial property; Subsequent sale valid. When a portion of the city street was withdrawn from public use, such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract. As expressly provided by Article 422 of the Civil Code, "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."

Further, the Revised Charter of the City of Cebu, in very clear and unequivocal terms, states that "property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." Thus, the withdrawal of the property in question from public use and its subsequent sale to the petitioner is valid.