property week 14

7/29/2019 Property Week 14

1/49

FIRST DIVISION[G.R. No. L-8191. February 27, 1956.]

DIOSDADO A. SITCHON, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity asCity Engineer of the City of Manila, Respondent-Appellee.

[G.R. No. L-8397. February 27, 1956]RICARDO DE LA CRUZ, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as

City Engineer of the City of Manila, Respondent-Appellee.[G.R. No. L-8500. February 27, 1956]

FELINO PEA, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as C ity

Engineer of the City of Manila, Respondent-Appellee.[G.R. No. L-8513. February 27, 1956]

SANTIAGO BROTAMONTE, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacityas City Engineer of the City of Manila, Respondent-Appellee.

[G.R. No. L-8516. February 27, 1956] ERNESTO NAVARRO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as

the City Engineer of the City of Manila, Respondent-Appellee.[G.R. No. L-8620. February 27, 1956]

AMADO SAYO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as CityEngineer of the City of Manila, Respondent-Appellee.

D E C I S I O N CONCEPCION,J.:

These are six (6) class suits against the City Engineer of Manila to enjoin him from carrying

out his threat to demolish the houses ofPetitioners herein, upon the ground that said houses

constitute public nuisances. In due course, the Court of First Instance of Manila rendered

separate, but substantially identical, decisions adverse to the Petitioners, who have appealed

therefrom directly to this Court. Inasmuch as the fact are not disputed and the same issues

have been raised in all these cases, which were jointly heard before this Court, we deem it fit

to dispose of the appeals in one decision.

1. Case No. L-8191 (Case No. 21530 of the Court of First Instance of Manila) was instituted by

Diosdado A. Sitchon, Luis Gavino and Ponciano Adoremos, in their own behalf and in

representation of twenty-two (22) persons, named in an annex to the petition. In 1947 and

1948, said Petitioners occupied portions of the public street known as Calabash Road, City of

Manila, and constructed houses thereon, without the consent of the authorities. Later on,

some of them paid concession fees or damages, for the use of said portions of the street,to a collector of the city treasurer, who issued receipts with an annotation

reading:chanroblesvirtuallawlibrarywithout prejudice to the order to vacate. On or about

July 5, 1952, RespondentCity Engineer advised and ordered them to vacate the place and

remove their houses therefrom before August 5, 1952, with the warning that otherwise he

would effect the demolition of said houses at their expense. This notice having been

unheeded, a demolition team of the office of the City Engineer informed the Petitioners in

December, 1953, that their houses would be removed, whereupon the case was instituted

for the purpose already stated. At the instance ofPetitioners herein, the lower court issued a

writ of preliminary injunction.

2. Case No. L-8397 (Case No. 21755 of the Court of First Instance of Manila) was brought by

Ricardo de la Cruz, Isidro Perez and Fernando Figuerroa, in their behalf and in representation

of two hundred sixty-seven (267) persons, who, sometime after the liberation of Manila,

occupied portions of Antipolo and Algeciras Streets, of said city, and constructed housesthereon, without any authority therefor. Several Petitionerslater paid concession fees or

damages to a collector of the city treasurer, and were given receipts with the

annotation:chanroblesvirtuallawlibrarywithout prejudice to the order to vacate. The

constructions were such that the roads and drainage on both sides thereof were obstructed.

In some places, the ditches used for drainage purposes were completely obliterated. What is

more, said ditches cannot be opened, repaired or placed in proper condition because of said

houses. On or about May 15, 1952, RespondentCity Engineer advised them to vacate the

place and remove their houses within a stated period, with the warning already referred to.

Hence, the institution of the case, upon the filing of which a writ of preliminary injunction

was issued.

3. Felino Pea, Francisco Morales and Jose Villanueva filed case No. L-8500 (Case No. 21535of the Court of First Instance of Manila), on their own behalf and in representation of about

thirty (30) persons, who, without the aforementioned authority, occupied portions of the

street area of R. Papa Extension, City of Manila, sometime after its liberation. As in the

preceding cases, several Petitionerspaid concession fees or damages to a collector of the

city treasurer, without prejudice to the order to vacate, which was given on May 10, 1952,

with the warning that should they fail to remove said houses, Respondentwould do so, at

their expense. Upon being advised, later on, of the intention of Respondents agents to carry

out said threat, the corresponding petition was filed and a writ of preliminary injunction

secured.

4. Santiago Brotamonte, Godofredo Blanquiso and Salvador Justiniano commenced case No.

L-8513 (Case No. 21531 of the Court of First Instance of Manila), on their behalf and in

representation of forty-two (42) other persons, who, without any authority, occupied

portions of the bed of a branch of the Estero de San Miguel, City of Manila, and constructed

houses thereon, sometime in 1947 and 1948. As in the cases already mentioned, some of

them paid concession fees or damages, without prejudice to the order to vacate, which

was given, with the usual warning, in December, 1953. The institution of the case and a writ

of preliminary injunction soon followed.

5. In case No. L-8516 (Case No. 21580 of the Court of First Instance of Manila), Ernesto

Navarro, Pablo Salas and Herminigildo Digap are Petitioners, on their own behalf and in that

of fifteen (15) persons, who, sometime after the liberation of Manila, occupied portions of

the bed of the Pasig River, at about the end of Rio Vista Street, San Miguel, Manila, which are

covered and uncovered by the tide, and erected houses there on without any authority

therefor. Concession fees or damages were paid by some of them, without prejudice to

the order to vacate. After giving, on or about June 20, 1952, the corresponding notice and

warning, which were not heeded, Respondent threatened to demolish said housesat Petitioners expense, whereupon the case was instituted and a writ of preliminary

injunction secured.

6. Case No. L-8620 (Case No. 22143 of the Court of First Instance of Manila) was filed by

Amado Sayo, Marciano Lamco and Victor Bernardo, on their behalf and in that of twenty-two

(22) other persons, who, in 1946 and 1947, occupied portions of Torres Bugallon, Cavite,

Misericordia and Antipolo Streets, in the City of Manila, and constructed houses thereon,

without any authority therefor. Some paid monthly rentals and/or damages, and/or

concession fees from 1946 to 1951, without prejudice to the order to vacate, which was

given on May 1, 1952, with the usual warning, followed, about two (2) years later, by a threat

to demolish said houses. Hence, the case, upon the filing of which writ of preliminary

injunction was issued.

After appropriate proceedings, the Court of First Instance of Manila rendered separate

decisions, the dispositive part of which, except in case No. L-8620, is of the followingtenor:chanroblesvirtuallawlibrary


2/49

Por tanto, el Juzgado sobresee esta causa por falta de meritos y ordena al ingeniero de la

ciudad de Maniia que haga la demolicion o la remocion de las citadas casas, dentro de quince

dias despues de haber avisado al efecto a los aqui recurrentes, y a costa de los mismos.

In said case No. L-8620, the lower court rendered judgment as

follows:chanroblesvirtuallawlibrary

In view of the foregoing considerations the Court hereby

declares:chanroblesvirtuallawlibrary

(a) that the houses of all Petitioners in this case erected on the land which forms part of

Torres Bugallon, Cavite, Misericordia and Antipolo Streets constitute public nuisance as

defined by section 1112 of Ordinance No. 1600 of the City of Manila and by Article 694paragraphs 4 and 5 of the Civil Code and

(b) that the City Engineer of the City of Manila is the official authorized by Article 1112 of

Ordinance No. 1600 of the City of Manila and Article 699, paragraph 3 of the Civil Code to

abate said public nuisance and charge the expenses thereof to Petitioners.

Petitioners contend that said decisions should be reversed upon the ground that, in trying to

demolish their respective houses without notice and hearing, the city engineer sought to

deprive them of their property without due process of law, apart from the fact that, under

Articles 701 and 702 of the new Civil Code, the power to remove public nuisances is vested in

the district health officer, not in Respondentcity engineer. It should be noted, however, that,

before expressing his intent to demolish the houses in question, Respondenthad advised and

ordered the Petitioners to remove said houses, within the periods stated in the

corresponding notices; chan roblesvirtualawlibrarythatPetitioners do not question, and have

not questioned, the reasonableness or sufficiency of said periods; chan

roblesvirtualawlibraryand that they have never asked Respondentherein to give them an

opportunity to show that their houses do not constitute public nuisances. Besides, it is not

disputed that said houses are standing on public streets, with the exception of the houses

involved in cases Nos. 8513 and 8516, which are built on portions of river beds. It is clear,

therefore, that said houses are public nuisances, pursuant to Articles 694 and 695 of the Civil

Code of the Philippines, which is Republic Act No. 386, reading:chanroblesvirtuallawlibrary

ART. 694. A nuisance is any act, omission, establishment, business, condition of property,

or anything else which:chanroblesvirtuallawlibrary

(1) Injures or endangers the health or safety o f others; chan roblesvirtualawlibraryor

(2) Annoys or offends the senses; chan roblesvirtualawlibraryor

(3) Shocks, defies or disregards decency or morality; chan roblesvirtualawlibraryor

(4) Obstructs or interferes with the free passage of any public highway or street, or anybody of water; chan roblesvirtualawlibraryor

(5) Hinders or impairs the use of property.

ART. 695. Nuisance is either public or private. A public nuisance affects a community or

neighborhood or any considerable number of persons, although the extent of the annoyance,

danger or damage upon individuals may be unequal. A private nuisance is one that is not

included in the foregoing definition. (Italics supplied.)

It is true that Articles 700 a nd 702 of the same Code provide:chanroblesvirtuallawlibrary

ART. 700. The district health officer shall take care that one or all of t he remedies against

a public nuisance are availed of.

ART. 702. The district health officer shall determine whether or not abatement, without

judicial proceedings, is the best remedy against a public nuisance.

However, section 31 of Republic Act No. 409, the Revised Charter of the City of Manila,

specifically places upon the city engineer the duty, among others, to have charge ofthe cralaw care of cralaw streets, canals and esteros cralaw; chan roblesvirtualawlibraryto

prevent the encroachment of private buildings cralaw on the streets and public

places cralaw; chan roblesvirtualawlibraryto have supervision cralaw of all private docks,

wharves, piers cralaw and other property bordering on the harbor, rivers, esteros and

waterways cralaw and cralaw issue permits for the construction, repair and removal of the

same and enforce all ordinances relating to the same; chan roblesvirtualawlibraryto have

the care and custody of all sources of water supply cralaw ; chan roblesvirtualawlibraryto

cause buildings dangerous to the public to be cralaw; chan roblesvirtualawlibrarytorn

down; chan roblesvirtualawlibraryand to order the removal of buildings and structures

erected in violation of the ordinances cralaw. Obviously, articles 700 and 702 of Republic

Act No. 386, should yield to said section 31 of Republic Act No. 409, not only because theformer preceded the latter, but, also, because said section 31 of Republic Act No. 409 is a

special provision specifically designed for the City of Manila, whereas said Articles 700 and

702 of the Civil Code are general provisions applicable throughout the Philippines. Moreover,

section 1122 of the Revised Ordinance of the City of Manila (No. 1600) explicitly authorizes

the action sought to be taken by Respondentherein, by providing:chanroblesvirtuallawlibrary

Whenever the owner or person responsible for any unauthorized obstruction shall, after

official notice from the proper department, refuse or neglect to remove the same within a

reasonable time, such obstruction shall be deemed a public nuisance, and the city engineer is

authorized to remove the same at the owners expense.

Again, houses constructed, without governmental authority, on public streets and

waterways, obstruct at all times the free use by the public of said streets and waterways,

and, accordingly, constitute nuisances per se, aside from public nuisances. As such, the

summary removal thereof, without judicial process or proceedings may be authorized by the

statute or municipal ordinance, despite the due process clause. (66 C.J.S. 733-734.)

The police power of the state justifies the abatement or destruction, by summary

proceedings, of whatever may be regarded as a public nuisance; chan

roblesvirtualawlibraryand the legislature may authorize the summary abatement of a

nuisance without judicial process or proceeding.

cralaw The remedy of summary abatement for violation of a municipal ordinance may be

used against a public nuisance. (66 C.J.S. 855, 856.)

When necessary to insure the public safety, the legislature may under its police power

authorize municipal authorities summarily to destroy property without legal process or

previous notice to the owner.

cralaw It is not an objection to the validity of a police regulation that it does not provide for

a hearing or for notice to the owner before his property is subjected to restraint ordestruction. (12 Am. Jur. 356, 357.)

In the exercise of the police power the state may authorize its officers summarily to abate

public nuisances without resort to legal proceedings and without notice or a hearing.

Municipal Corporations generally have power to cause the abatement of public nuisances

summarily without resort to legal proceedings. (39 Am. Jur. 455, 456, 457.)

Being in conformity with the facts and the law, the decisions appealed from are hereby

affirmed in toto, and the writs of preliminary injunction issued by the lower court dissolved,

with costs against Petitioners-Appellants. It is SO ORDERED.


3/49

G.R. No. L-18390 August 6, 1971PEDRO J. VELASCO, plaintiff-appellant,vs.MANILA ELECTRIC CO., WILLIAM SNYDER, its President; JOHN COTTON andHERMENEGILDO B. REYES, its Vice-Presidents; and ANASTACIO A. AGAN,City Engineer of Quezon City, defendants-appellees.Q. Paredes, B. Evangelista and R. T. Durian for plaintiff-appellant.Ross, Selph and Carrascoso for defendants-appellees Manila Electric Co., etc., et al.Asst. City Fiscal Jaime R. Agloro for defendant-appellee Anastacio A. Agan, etc.

REYES, J.B.L., J. :The present case is direct appeal (prior to Republic Act 5440) by the herein plaintiff-appellant, Pedro J. Velasco (petitioner in L-14035; respondent in L-13992) * from thedecision of the Court of First Instance of Rizal, Quezon City Branch, in its Civil CaseNo. 1355, absolving the defendants from a complaint for the abatement of the sub-station as a nuisance and for damages to his health and business in the amount ofP487,600.00.In 1948, appellant Velasco bought from the People's Homesite and HousingCorporation three (3) adjoining lots situated at the corner of South D and South 6Streets, Diliman, Quezon City. These lots are within an area zoned out as a "firstresidence" district by the City Council of Quezon City. Subsequently, the appellantsold two (2) lots to the Meralco, but retained the third lot, which was farthest from thestreet-corner, whereon he built his house.

In September, 1953, the appellee company started the construction of the sub-stationin question and finished it the following November, without prior building permit orauthority from the Public Service Commission (Meralco vs. Public ServiceCommission, 109 Phil. 603). The facility reduces high voltage electricity to a currentsuitable for distribution to the company's consumers, numbering not less than 8,500residential homes, over 300 commercial establishments and about 30 industries(T.s.n., 19 October 1959, page 1765). The substation has a rated capacity of "2transformers at 5000 Kva each or a total of 10,000 Kva without fan cooling; or 6250Kva each or a total of 12,500 Kva with fan cooling" (Exhibit "A-3"). It was constructedat a distance of 10 to 20 meters from the appellant's house (T.s.n., 16 July 1956,page 62; 19 December 1956, page 343; 1 June 1959, page 29). The company built astone and cement wall at the sides along the streets but along the side adjoining theappellant's property it put up a sawale wall but later changed it to an interlink wire

fence.It is undisputed that a sound unceasingly emanates from the substation. Whether thissound constitutes an actionable nuisance or not is the principal issue in this case.Plaintiff-appellant Velasco contends that the sound constitutes an actionable nuisanceunder Article 694 of the Civil Code of the Philippines, reading as follows:

A nuisance is any act, omission, establishment, business conditionof property or anything else which:(1) Injuries or endangers the health or safety of others; or(2) Annoys or offends the senses;xxx xxx xxx

because subjection to the sound since 1954 had disturbed the concentration andsleep of said appellant, and impaired his health and lowered the value of his property.Wherefore, he sought a judicial decree for the abatement of the nuisance and askedthat he be declared entitled to recover compensatory, moral and other damagesunder Article 2202 of the Civil Code.

ART. 2202. In crimes and quasi-delicts, the defendant shall beliable for all damages which are the natural and probableconsequences of the act or omission complained of. It is notnecessary that such damages have been foreseen or could havereasonably been foreseen by the defendant.

After trial, as already observed, the court below dismissed the claim of the plaintiff,finding that the sound of substation was unavoidable and did not constitute nuisance;that it could not have caused the diseases of anxiety neurosis, pyelonephritis,ureteritis, lumbago and anemia; and that the items of damage claimed by plaintiff

were not adequate proved. Plaintiff then appealed to this Court.The general rule is that everyone is bound to bear the habitual or customaryinconveniences that result from the proximity of others, and so long as this level is notsurpassed, he may not complain against them. But if the prejudice exceeds theinconveniences that such proximity habitually brings, the neighbor who causes suchdisturbance is held responsible for the resulting damage, 1 being guilty of causingnuisance.While no previous adjudications on the specific issue have been made in thePhilippines, our law of nuisances is of American origin, and a review of authoritiesclearly indicates the rule to be that the causing or maintenance of disturbing noise orsound may constitute an actionable nuisance (V. Ed. Note, 23 ALR, 2d 1289). Thebasic principles are laid down in Tortorella vs. Traiser & Co., Inc., 90 ALR 1206:

A noise may constitute an actionable nuisance, Rogers vs. Elliott,146 Mass, 349, 15 N.E. 768, 4 Am. St. Rep. 316, Stevens v.

Rockport Granite Co., 216 Mass. 486, 104 N.E. 371, Ann. Cas.1915B, 1954, Stodder v. Rosen Talking Machine Co., 241 Mass.245, 135 N. E. 251, 22 A. L. R. 1197, but it must be a noise whichaffects injuriously the health or comfort of ordinary people in thevicinity to an unreasonable extent. Injury to a particular person in apeculiar position or of specially sensitive characteristics will notrender the noise an actionable nuisance. Rogers v. Elliott, 146Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316. In the conditions ofpresent living noise seems inseparable from the conduct of manynecessary occupations. Its presence is a nuisance in the popularsense in which that word is used, but in the absence of statutenoise becomes actionable only when it passes the l imits ofreasonable adjustment to the conditions of the locality and of the

needs of the maker to the needs of the listener. What those limitsare cannot be fixed by any definite measure of quantity or quality.They depend upon the circumstances of the particular case. Theymay be affected, but are not controlled, by zoningordinances. Beane v. H. J. Porter, Inc., 280 Mass. 538, 182 N. E.823, Marshal v. Holbrook, 276 Mass. 341, 177 N. E. 504, Strachanv. Beacon Oil Co., 251 Mass. 479, 146 N. E. 787. The delimitationof designated areas to use for manufacturing, industry or generalbusiness is not a license to emit every noise profitably attending theconduct of any one of them. Bean v. H. J. Porter, Inc.. 280 Mass.538, 182 N. E. 823. The test is whether rights of property of healthor of comfort are so injuriously affected by the noise in question thatthe sufferer is subjected to a loss which goes beyond thereasonable limit imposed upon him by the condition of living, or of

holding property, in a particular locality in fact devoted to useswhich involve the emission of noise although ordinary care is taken


4/49

to confine it within reasonable bounds; or in the vicinity of propertyof another owner who though creating a noise is acting withreasonable regard for the rights of those affected by it. Stevens v.Rockport Granite Co., 216 Mass. 486, 104 NE 371, Ann. Cas.1915B, 1054.

With particular reference to noise emanating from electrical machinery andappliances, the court, in Kentucky & West Virginia Power Co. v. Anderson, 156 S. W.2d 857, after a review of authorities, ruled as follows:

There can be no doubt but that commercial and industrial activities

which are lawful in themselves may become nuisances if they areso offensive to the senses that they render the enjoyment of life andproperty uncomfortable. It is no defense that skill and care havebeen exercised and the most improved methods and appliancesemployed to prevent such result. Wheat Culvert Company v.Jenkins, 246 Ky. 319, 55 S. W. 2d 4; 46 C.J. 683, 705; 20 R. C. L.438; Annotations, 23 A. L. R. 1407; 90 A. L. R. 1207. Of course, thecreation of trifling annoyance and inconvenience does notconstitute an actionable nuisance, and the locality and surroundingsare of importance. The fact that the cause of the complaint must besubstantial has often led to expressions in the opinions that to be anuisance the noise must be deafening or loud or excessive andunreasonable. Usually it was shown to be of that character. Thedeterminating factor when noise alone is the cause of complaint is

not its intensity or volume. It is that the noise is of such character asto produce actual physical discomfort and annoyance to a person ofordinary sensibilities, rendering adjacent property less comfortableand valuable. If the noise does that it can well be said to besubstantial and unreasonable in degree; and reasonableness is aquestion of fact dependent upon all the circumstances andconditions. 20 R. C. L. 445, 453; Wheat Culvert Company v.Jenkins, supra. There can be no fixed standard as to what kind ofnoise constitutes a nuisance. It is true some witnesses in this casesay they have been annoyed by the humming of thesetransformers, but that fact is not conclusive as to the nonexistenceof the cause of complaint, the test being the effect which is hadupon an ordinary person who is neither sensitive nor immune to the

annoyance concerning which the complaint is made. In the absenceof evidence that the complainant and his family are supersensitiveto distracting noises, it is to be assumed that they are persons ofordinary and normal sensibilities. Roukovina v. Island FarmCreamery Company, 160 Minn. 335, 200 N. W. 350, 38 A. L. R.1502.xxx xxx xxxIn Wheat Culvert Company vs. Jenkins, supra, we held aninjunction was properly decreed to stop the noise from theoperation of a metal culvert factory at night which interfered with thesleep of the occupants of an adjacent residence. It is true theclanging, riveting and hammering of metal plates produces a sounddifferent in character from the steady hum or buzz of the electricmachinery described in this case. In the Jenkins case the noise was

loud, discordant and intermittent. Here it is interminable andmonotonous. Therein lies the physical annoyance and disturbance.

Though the noise be harmonious and slight and trivial in itself, theconstant and monotonous sound of a cricket on the earth, or thedrip of a leaking faucet is irritating, uncomfortable, distracting anddisturbing to the average man and woman. So it is that theintolerable, steady monotony of this ceaseless sound, loud enoughto interfere with ordinary conversation in the dwelling, produces aresult generally deemed sufficient to constitute the cause of it anactionable nuisance. Thus, it has been held the continuous andmonotonous playing of a phonograph for advertising purposes on

the street even though there were various records, singing,speaking and instrumental, injuriously affected plaintiff's employeesby a gradual wear on their nervous systems, and otherwise, is anuisance authorizing an injunction and damages. Frank F. Stodder,et al. v. Rosen Talking Machine Company, 241 Mass. 245, 135 N.E. 251, 22 A. L. R. 1197.

The principles thus laid down make it readily apparent that inquiry must be directed atthe character and intensity of the noise generated by the particular substation of theappellee. As can be anticipated, character and loudness of sound being of subjectiveappreciation in ordinary witnesses, not much help can be obtained from thetestimonial evidence. That of plaintiff Velasco is too plainly biased and emotional tobe of much value. His exaggerations are readily apparent in paragraph V of hisamended complaint, signed by him as well as his counsel, wherein the noisecomplained of as

fearful hazardous noise and clangor are produced by the saidelectric transformer of the MEC's substation, approximating a noiseof a reactivated about-to-explode volcano, perhaps like the nervewracking noise of the torture chamber in Germany's Dachau orBuchenwald (Record on Appeal, page 6).

The estimate of the other witnesses on the point of inquiry are vague and imprecise,and fail to give a definite idea of the intensity of the sound complained of. Thus:OSCAR SANTOS, Chief Building Inspector, Department of Engineering, Quezon City____ "the sound (at the front door of plaintiff Velasco's house) becomes noticeableonly when I tried to concentrate ........" (T.s.n., 16 July 1956, page 50)SERAFIN VILLARAZA, Building Inspector ____ "..... l ike a high pitch note." (the trialcourt's description as to the imitation of noise made by witness:"........ more of ahissing sound) (T.s.n., 16 July 1956, pages 59-60)

CONSTANCIO SORIA, City Electrician ____ "........ humming sound" ..... "of a runningcar". (T.s.n., 16 July 1956, page 87)JOSE R. ALVAREZ, Sanitary Engineer, Quezon City Health Department ____ ".....substation emits a continuous rumbling sound which is audible within the premisesand at about a radius of 70 meters." "I stayed there from 6:00 p.m. to about 1:00o'clock in the morning" ..... "increases with the approach of twilight." (T.s.n., 5September 1956, pages 40-44)NORBERTO S. AMORANTO, Quezon City Mayor ____ (for 30 minutes in the streetat a distance of 12 to 15 meters from sub-station) "I felt no effect on myself." "..... no[piercing noise]" (T.s.n., 18 September 1956, page 189)PACIFICO AUSTRIA, architect, appellant's neighbor: "..... like an approachingairplane ..... around five kilometers away." (T.s.n., 19 November 1956, pages 276-277)ANGEL DEL ROSARIO, radiologist, appellant's neighbor: "..... as if it is a runningmotor or a running dynamo, which disturbs the ear and the hearing of a person."T.s.n., 4 December 1956, page 21)


5/49

ANTONIO D. PAGUIA, lawyer ____ "It may be likened to the sound emitted by thewhistle of a boat at a far distance but it is very audible." (T.s.n., 19 December 1956,page 309)RENE RODRIGUEZ, sugar planter and sugar broker, appellant's neighbor ____ "Itsounds like a big motor running continuously." (T.s.n., 19 December 1956, page 347)SIMPLICIO BELISARIO, Army captain, ____ (on a visit to Velasco) "I can comparethe noise to an airplane C-47 being started - the motor." [Did not notice the noise fromthe substation when passing by, in a car, Velasco's house] (T.s.n., 7 January 1957,pages 11-12)

MANOLO CONSTANTINO, businessman, appellant's neighbor ____ "It disturbs ourconcentration of mind." (T.s.n., 10 January 1957, page 11)PEDRO PICA, businessman, appellant's neighbor: "..... We can hear it very well [at adistance of 100 to 150 meters]. (T.s.n., 10 January 1957, page 41)CIRENEO PUNZALAN, lawyer ____ "..... a continuous droning, ..... like the sound ofan airplane." (T.s.n., 17 January 1957, page 385)JAIME C. ZAGUIRRE, Chief, Neuro-Psychiatry Section, V. Luna Gen. Hospital ____"..... comparatively the sound was really loud to bother a man sleeping." (T.s.n., 17January 1957, page 406)We are thus constrained to rely on quantitative measurements shown by the record.Under instructions from the Director of Health, samplings of the sound intensity weretaken by Dr. Jesus Almonte using a sound level meter and other instruments. Withinthe compound of the plaintiff-appellant, near the wire fence serving as property l inebetween him and the appellee, on 27 August 1957 at 11:45 a.m., the sound level

under the sampaloc tree was 46-48 decibels, while behind Velasco's kitchen, themeter registered 49-50; at the same places on 29 August 1957, at 6:00 a.m., thereadings were 56-59 and 61-62 decibels, respectively; on 7 September 1957, at 9:30a.m., the sound level under the sampaloc tree was 74-76 decibels; and on 8September 1957 at 3:35 in the morning, the reading under the same tree was 70decibels, while near the kitchen it was 79-80 decibels. Several measurements werealso taken inside and outside the house (Exhibit "NN-7, b-f"). The ambient sound ofthe locality, or that sound level characteristic of it or that sound predominating minusthe sound of the sub-station is from 28 to 32 decibels. (T.s.n., 26 March 1958, pages6-7)Mamerto Buenafe, superintendent of the appellee's electrical laboratory, also tooksound level samplings. On 19 December 1958, between 7:00 to 7:30 o'clock in theevening, at the substation compound near the wire fence or property line, the

readings were 55 and 54 and still near the fence close to the sampaloc tree, it was 52decibels; outside but close to the concrete wall, the readings were 42 to 43 decibels;and near the transformers, it was 76 decibels (Exhibit "13").Buenafe also took samplings at the North General Hospital on 4 January 1959between 9:05 to 9:45 in the evening. In the different rooms and wards from the first tothe fourth floors, the readings varied from 45 to 67 decibels.Technical charts submitted in evidence show the following intensity levels in decibelsof some familiar sounds: average residence: 40; average office: 55; averageautomobile, 15 feet: 70; noisiest spot at Niagara Falls: 92 (Exhibit "11- B"); averagedwelling: 35; quiet office: 40; average office: 50; conversation: 60; pneumatic rockdrill: 130 (Exhibit "12"); quiet home average living room: 40; home ventilation fan,outside sound of good home airconditioner or automobile at 50 feet: 70 (Exhibit "15-A").Thus the impartial and objective evidence points to the sound emitted by theappellee's substation transformers being of much higher level than the ambient soundof the locality. The measurements taken by Dr. Almonte, who is not connected with

either party, and is a physician to boot (unlike appellee's electrical superintendentBuenafe), appear more reliable. The conclusion must be that, contrary to the findingof the trial court, the noise continuously emitted, day and night, constitutes anactionable nuisance for which the appellant is entitled to relief, by requiring theappellee company to adopt the necessary measures to deaden or reduce the soundat the plaintiff's house, by replacing the interlink wire fence with a partition made ofsound absorbent material, since the relocation of the substation is manifestlyimpracticable and would be prejudicial to the customers of the Electric Company whoare being serviced from the substation.Appellee company insists that as the plaintiff's own evidence (Exhibit "NN-7[c]") theintensity of the sound (as measured by Dr. Almonte) inside appellant's house is only46 to 47 decibels at the consultation room, and 43 to 45 decibels within the treatmentroom, the appellant had no ground to complain. This argument is not meritorious,because the noise at the bedrooms was determined to be around 64-65 decibels, andthe medical evidence is to the effect that the basic root of the appellant's ailments washis inability to sleep due to the incessant noise with consequent irritation, thusweakening his constitution and making him easy prey to pathogenic germs that couldnot otherwise affect a person of normal health.In Kentucky and West Virginia Co., Inc. vs. Anderson, 156 SW. 857, the average ofthree readings along the plaintiff's fence was only 44 decibels but, because the soundfrom the sub-station was interminable and monotonous, the court authorized aninjunction and damages. In the present case, the three readings along the propertyline are 52, 54 and 55 decibels. Plaintiff's case is manifestly stronger.

Appellee company argues that the plaintiff should not be heard to complain becausethe sound level at the North General Hospital, where silence is observed, is evenhigher than at his residence. This comparison lacks basis because it has not beenestablished that the hospital is located in surroundings similar to the residential zonewhere the plaintiff lived or that the sound at the hospital is similarly monotonous andceaseless as the sound emitted by the sub-station.Constancio Soria testified that "The way the transformers are built, the hummingsound cannot be avoided". On this testimony, the company emphasizes that thesubstation was constructed for public convenience. Admitting that the sound cannotbe eliminated, there is no proof that it cannot be reduced. That the sub-station isneeded for the Meralco to be able to serve well its customers is no reason, however,why it should be operated to the detriment and discomfort of others. 2The fact that the Meralco had received no complaint although it had been operating

hereabouts for the past 50 years with substations similar to the one in controversy isnot a valid argument. The absence of suit neither lessens the company's liabilityunder the law nor weakens the right of others against it to demand their just due.As to the damages caused by the noise, appellant Velasco, himself a physician,claimed that the noise, as a precipitating factor, has caused him anxiety neurosis,which, in turn, predisposed him to, or is concomitant with, the other ailments which hewas suffering at the time of the trial, namely, pyelonephritis, ureteritis and others; thatthese resulted in the loss of his professional income and reduced his life expectancy.The breakdown of his claims is as follows:

Loss of professional earnings P12,600Damage to life expectancy 180,000Moral damages 100,000Loss due to frustration of sale of house 125,000Exemplary damages 25,000

Attorneys' fees 45,000


6/49

A host of expert witnesses and voluminous medical literature, laboratory findings andstatistics of income were introduced in support of the above claims.The medical evidence of plaintiff's doctors preponderates over the expert evidence fordefendant-appellee, not merely because of its positive character but also because thephysicians presented by plaintiff had actually treated him, while the defense expertshad not done so. Thus the evidence of the latter was to a large extent conjectural.That appellant's physical ailments should be due to infectious organisms does notalter the fact that the loss of sleep, irritation and tension due to excessive noiseweakened his constitution and made him easy prey to the infection.Regarding the amount of damages claimed by appellant, it is plain that the same areexaggerated. To begin with, the alleged loss of earnings at the rate of P19,000 perannum is predicated on the Internal Revenue assessment, Exhibit "QQ-1", whereinappellant was found to have undeclared income of P8,338.20 in additional to hisdeclared gross income of P10,975.00 for 1954. There is no competent showing,however, that the source of such undeclared income was appellant's profession. Infact, the inference would be to the contrary, for his gross income from the previousyears 1951 to 1953 [Exhibits "QQ-1 (d)" to "QQ-1 (f)"] was only P8,085.00, P5,860.00and P7,120.00, respectively, an average of P7,000.00 per annum. Moreover, whilehis 1947 and 1948 income was larger (P9,995.00 and P11,900.00), it appears thatP5,000 thereof was the appellant's annual salary from the Quezon MemorialFoundation, which was not really connected with the usual earnings derived frompractice as a physician. Considering, therefore, his actual earnings, the claimed moraldamages of P100,000.00 are utterly disproportionate. The alleged losses for

shortening of appellant's, life expectancy are not only inflated but speculative.As to the demand for exemplary or punitive damages, there appears no adequatebasis for their award. While the appellee Manila Electric Company was convicted forerecting the substation in question without permit from the Public ServiceCommission, We find reasonable its explanation that its officials and counsel hadoriginally deemed that such permit was not required as the installation was authorizedby the terms of its franchise (as amended by Republic Act No. 150) requiring it tospend within 5 years not less than forty million pesos for maintenance and additionsto its electric system, including needed power plants and substations. Neither theabsence of such permit from the Public Service Commission nor the lack of permitfrom the Quezon City authorities (a permit that was subsequently granted) isincompatible with the Company's good faith, until the courts finally ruled that itsinterpretation of the franchise was incorrect.

There are, moreover, several factors that mitigate defendant's liability in damages.The first is that the noise from the substation does not appear to be an exclusivecausative factor of plaintiff-appellant's illnesses. This is proved by the circumstancethat no other person in Velasco's own household nor in his immediate neighborhoodwas shown to have become sick despite the noise complained of. There is alsoevidence that at the time the plaintiff-appellant appears to have been largely indebtedto various credit institutions, as a result of his unsuccessful gubernatorial campaign,and this court can take judicial cognizance of the fact that financial worries can affectunfavorably the debtor's disposition and mentality.The other factor militating against full recovery by the petitioner Velasco in hispassivity in the face of the damage caused to him by the noise of the substation.Realizing as a physician that the latter was disturbing or depriving him of sleep andaffecting both his physical and mental well being, he did not take any steps to bringaction to abate the nuisance or remove himself from the affected area as soon as the

deleterious effects became noticeable. To evade them appellant did not even have tosell his house; he could have leased it and rented other premises for sleeping and

maintaining his office and thus preserve his health as ordinary prudence demanded.Instead he obstinately stayed until his health became gravely affected, apparentlyhoping that he would thereby saddle appellee with large damages.The law in this jurisdiction is clear. Article 2203 prescribes that "The party sufferingloss or injury must exercise the diligence of a good father of a family to minimize thedamages resulting from the act or omission in question". This codal rule, whichembodies the previous jurisprudence on the point, 3 clearly obligates the injured partyto undertake measures that will alleviate and not aggravate his condition after theinfliction of the injury, and places upon him the burden of explaining why he could notdo so. This was not done.Appellant Velasco introduced evidence to the effect that he tried to sell his house toJose Valencia, Jr., in September, 1953, and on a 60 day option, for P95,000.00, butthat the prospective buyer backed out on account of his wife objecting to the noise ofthe substation. There is no reliable evidence, however, how much were appellant's lotand house worth, either before the option was given to Valencia or after he refused toproceed with the sale or even during the intervening period. The existence of aprevious offer for P125,000.00, as claimed by the plaintiff, was not corroborated byValencia. What Valencia testified to in his deposition is that when they werenegotiating on the price Velasco mentioned to him about an offer by someone forP125,000.00. The testimony of Valencia proves that in the dialogue between him andVelasco, part of the subject of their conversation was about the prior offer, but it doesnot corroborate or prove the reality of the offer for P125,000.00. The testimony ofVelasco on this point, standing alone, is not credible enough, what with his penchant

for metaphor and exaggeration, as previously adverted to. It is urged in appellant'sbrief, along the lines of his own testimony, that since one (1) transformer wasmeasured by witness, Jimenez with a noise intensity of 47.2 decibels at a distance of30.48 meters, the two (2) transformers of the substation should create an intensity of94.4 decibels at the same distance. If this were true, then the residence of the plaintiffis more noisy than the noisiest spot at the Niagara Falls, which registers only 92decibels (Exhibit "15-A").Since there is no evidence upon which to compute any loss or damage allegedlyincurred by the plaintiff by the frustration of the sale on account of the noise, his claimtherefore was correctly disallowed by the trial court. It may be added that there is noshowing of any further attempts on the part of appellant to dispose of the house, andthis fact suffices to raise doubts as to whether he truly intended to dispose of it. Hehad no actual need to do so in order to escape deterioration of his health, as

heretofore noted.Despite the wide gap between what was claimed and what was proved, the plaintiff isentitled to damages for the annoyance and adverse effects suffered by him since thesubstation started functioning in January, 1954. Considering all the circumstancesdisclosed by the record, as well as appellant's failure to minimize the deleteriousinfluences from the substation, this Court is of the opinion that an award in theamount of P20,000.00, by way of moderate and moral damages up to the present, isreasonable. Recovery of attorney's fees and litigation expenses in the sum ofP5,000.00 is alsojustified the factual and legal issues were intricate (the transcript of thestenographic notes is about 5,000 pages, side from an impressive number ofexhibits), and raised for the first time in this jurisdiction. 4The last issue is whether the City Engineer of Quezon City, Anastacio A. Agan, a co-defendant, may be held solidarily liable with Meralco.

Agan was included as a party defendant because he allegedly (1) did not require theMeralco to secure a building permit for the construction of the substation; (2) even


7/49

defended its construction by not insisting on such building permit; and (3) did notinitiate its removal or demolition and the criminal prosecution of the officials of theMeralco.The record does not support these allegations. On the first plea, it was not Agan'sduty to require the Meralco to secure a permit before the construction but for Meralcoto apply for it, as per Section 1. Ordinance No. 1530, of Quezon City. The secondallegation is not true, because Agan wrote the Meralco requiring it to submit the planand to pay permit fees (T.s.n., 14 January 1960, pages 2081-2082). On the thirdallegation, no law or ordinance has been cited specifying that it is the city engineer'sduty to initiate the removal or demolition of, or for the criminal prosecution of, thosepersons who are responsible for the nuisance. Republic Act 537, Section 24 (d),relied upon by the plaintiff, requires an order by, or previous approval of, the mayorfor the city engineer to cause or order the removal of buildings or structures inviolation of law or ordinances, but the mayor could not be expected to take actionbecause he was of the belief, as he testified, that the sound "did not have any effecton his body."FOR THE FOREGOING REASONS, the appealed decision is hereby reversed in partand affirmed in part. The defendant-appellee Manila Electric Company is herebyordered to either transfer its substation at South D and South 6 Streets, Diliman,Quezon City, or take appropriate measures to reduce its noise at the property linebetween the defendant company's compound and that of the plaintiff-appellant to anaverage of forty (40) to fifty (50) decibels within 90 days from finality of this decision;and to pay the said plaintiff-appellant P20,000.00 in damages and P5,000.00 for

attorney's fees. In all other respects, the appealed decision is affirmed. No costs.


8/49

G.R. No. L-7012 March 26, 1913THE ILOILO ICE AND COLD STORAGE COMPANY, plaintiff-appellee,vs.THE MUNICIPAL COUNCIL OF ILOILO, ET AL., defendants-appellants.Juan de Leon, Quirico Abeto, and Crecenciano Lozano, for appellants.Bruce, Lawrence, Ross and Block, for appellee.TRENT, J .:According to the pleadings, the plaintiff, upon authority granted by the defendant,constructed an ice and cold storage plant in the city of Iloilo. Some time after the planthad been completed and was in operation, nearby residents made complaints to thedefendant that the smoke from the plant was very injurious to their health andcomfort. Thereupon the defendant appointed a committee to investigate and reportupon the matters contained in said complaints. The committee reported that thecomplaints were well-founded. The defendant counsel then passed a resolution whichreads in part as follows:

That after the approval by the honorable provincial board of this resolution, aperiod of one month will be granted to the said entity. The Iloilo Ice and ColdStorage Company, in which to proceed with the elevation of saidsmokestacks, and if not done, the municipal president wil l execute the orderrequiring the closing or suspension of operations of said establishment.

Upon receipt of this resolution and order, the plaintiff commenced this action in theCourt of First Instance to enjoin the defendant from carrying into effect the saidresolution. The fifth paragraph of the complaint is as follows:

That the defendants intend and threaten to require compliance with saidresolution administratively and without the intervention of the court, and byforce to compel the closing and suspension of operations of the plaintiff'smachinery and consequently of the entire plant, should the plain tiff notproceed with the elevation of the smokestacks to one hundred feet, whichthe plaintiff maintains it is not obliged to do and will not do.

Upon notice and after hearing, a preliminary injunction was issued. Subsequentlythereto the defendant answered, admitting paragraphs 1 and 4 and denying all theother allegations in the complaint, and as a special defense alleged:

1. xxx xxx xxx.2. That the factory of the plaintiff company stands in a central and populateddistrict of the municipality;3. That the quantity of smoke discharged from the smokestacks of said

factory is so great and so dense that it penetrates into the dwelling housessituated near it and causes great annoyance to the residents and prejudiceto their health;4. That the municipal board of health of the city has reported that the smokedischarged from the smokestacks of said factory is prejudicial and injuriousto the public health;5. That the plaintiff company has no right to maintain and operate machineryin its factory under the conditions which it is at present operating the same,without complying with the regulations which were imposed upon it when thelicense for its installation was granted, because it thereby violates theordinances of the city now in force upon the matter.

Wherefore, the defendant prays that it be absolved from the complaint and the plaintiffbe declared to have no right to the remedy asked, and that the preliminary injunctionissued in this case be set aside, with the costs against the plaintiff.

The plaintiff demurred to this answer upon the following grounds:1. That the facts alleged in the answer do not constitute a defense; and

2. That the answer is vague and ambiguous and contains arguments andconclusions of law instead of facts.

This demurrer was sustained, the court saying:The defendant will amend his answer within five days or the injunction will bepermanently granted as prayed for, with costs to the defendant.

To this order the defendant excepted and, not desiring to amend its answer, appealedto this court.It is al leged in paragraph 1 that both the plaintiff and the defendants are corporationsduly organized under the laws of the Philippine Islands; and paragraph 4 sets forththe resolution complained of, the dispositive part of which is inserted above. Theallegations in paragraph 2, 3, 5, 6, 7, and 8, which are specifically denied in theanswer, all (except the fifth) relate to the building of the plant under authority grantedby the defendant, the cost of its construction, the legality of the resolution in question,the power of the defendant to pass such resolution, and the damages which will resultif that resolution is carried into effect. As before stated, the allegations in paragraph 5to the effect that the defendants intend and are threatening to close by force andwithout the intervention of the courts the plaintiff's plant is specifically denied. Theissue in this case, according to the pleadings, relates to the power of the municipalcouncil to declare the plant of the petitioner a nuisance as operated, and the methodof abating it.The municipal council is, under section 39 (j) of the Municipal Code, specificallyempowered "to declare and abate nuisances." A nuisance is, according toBlackstone, "Any thing that worketh hurt, inconvenience, or damages." (3 Black.

Com., 216.) They arise from pursuing particular trades or industries in populousneighborhoods; from acts of public indecency, keeping disorderly houses, and housesof ill fame, gambling houses, etc. (2 Bouv., 248; Millervs. Burch, 32 Tex., 208.)Nuisances have been divided into two classes: Nuisances per se, and nuisances peraccidens. To the first belong those which are unquestionably and under allcircumstances nuisances, such as gambling houses, houses of ill fame, etc. Thenumber of such nuisances is necessarily limited, and by far the greater number ofnuisances are such because of particular facts and circumstances surrounding theotherwise harmless cause of the nuisance. For this reason, it will readily be seen thatwhether a particular thing is a nuisance is generally a question of fact, to bedetermined in the first instance before the term nuisance can be applied to it. This iscertainly true of a legitimate calling, trade, or business such as an ice plant. Does thepower delegated to a municipal council under section 39 (j) of the Municipal Code

commit to the unrestrained will of that body the absolute power of declaring anythingto be a nuisance? Is the decision of that body final despite the possibility that i t mayproceed from animosity or prejudice, from partisan zeal or enmity, from favoritism andother improper influences and motives, easy of concealment and difficult to bedetected and exposed? Upon principle and authority, we think i t does not.In Rutton vs. City of Camden, 39 N.J.L., 122, 129; 23 Am. Rep. 203, 209, the courtsaid:

The authority to decide when a nuisance exists in an authority to find facts,to estimate their force, and to apply rules of law to the case thus made. Thisis the judicial function, and it is a function applicable to a numerous class ofimportant interests. The use of land and buildings, the enjoyment of waterrights, the practice of many trades and occupations, and the business ofmanufacturing in particular localities, all fall on some occasions, in importantrespects, within its sphere. To say to a man that he shall not use his property

as he pleases, under certain conditions, is to deprive him pro tanto of theenjoyment of such property. To find conclusively against him that a state of


9/49

facts exists with respect to the use of his property, or the pursuit of hisbusiness, which subjects him to the condemnation of the law, is to affect hisrights in a vital point. The next thing to depriving a man of his property is tocircumscribe him in its use, and the right to use property is as much underthe protection of the law as the property itself, in any other aspect, is, andthe one interest can no more be taken out of the hands of the ordinarytribunal than the other can. If a man's property cannot be taken away fromhim except upon trial by jury, or by the exercise of the right of eminentdomain upon compensation made, neither can be, in any other mode, belimited in the use of it. The right to abate public nuisances, whether weregard it as existing in the municipalities, or in the community, or in the landof the individual, is a common law right, and is derived, in every instance ofits exercise, from the same source that of necessity. It is akin to the rightof destroying property for the public safety, in case of the prevalence of adevastating fire or other controlling exigency. But the necessity must bepresent to justify the exercise of the right, and whether present or not, mustbe submitted to a jury under the guidance of a court. The finding of asanitary committee, or of a municipal council, or of any other body of asimilar kind, can have no effect whatever for any purpose, upon the ultimatedisposition of the matter of this kind. It cannot be used as evidence in anylegal proceeding, for the end of establishing, finally, the fact of nuisance, andif can be made testimony for any purpose, it would seem that it can be suchonly to show that the persons acting in pursuance of it were devoid of that

malicious spirit which sometimes aggravates a trespass and swells thedamages. I repeat that the question of nuisance can conclusively bedecided, for all legal uses, by the established courts of law or equity alone,and that the resolutions of officers, or of boards organized by force ofmunicipal charters, cannot, to any degree, control such decision.

The leading case upon this point is Yates vs. Milwaukee, (10 Wall., 497; 19 L. ed.,984). The following quotation from this case has been cited or quoted with approval ina great number of cases. (See Notes to this case in 19 L. ed., Notes, page 356.)

But the mere declaration by the city council of Milwaukee that a certainstructure was an encroachment or obstruction did not make structure was anencroachment or obstruction did not make it so, nor could such declarationmake it a nuisance unless it in fact had that character. It is a doctrine not tobe tolerated in this country, that a municipal corporation, without any general

laws either of the city or of the State, within which a given structure can beshown to be a nuisance, can, by its mere declaration that it is one, subject itto removal by any person supposed to be aggrieved, or even by the cityitself. This would place every house, every business, and all the property ofthe city at the uncontrolled will of the temporary local authorities. Yet thisseems to have been the view taken by counsel who defended this case inthe circuit court; for that single ordinance of the city, declaring the wharf ofYates a nuisance, and ordering its abatement, is the only evidence in therecord that it is a nuisance or an obstruction to navigation, or in any mannerinjurious to the public.

In Cole vs. Kegler (64 la., 59, 61) the court said:We do not think the general assembly intended to confer on cities and townsthe power of finally and conclusively determine, without notice or a hearing,and without the right of appeal, that any given thing constitutes a nuisance,

unless, probably, in cases of great emergency, so strong as to justifyextraordinary measures upon the ground of paramount necessity. The law

does not contemplate such an exigency, and therefore does not provide forit. If it did, it would no longer be the undefined law of necessity. (Nelson, J.,in The People vs. The Corporation of Albay, 11 Wend., 539.)Nuisance may be abated by an individual, but they must in fact exist, Thedetermination of the individual that a nuisance exists does not make it so,and if he destroys property on the that it is a nuisance, he is responsible,unless it is established that the property destroyed constituted a nuisance.This precise power, and no more, is conferred by the statute on cities andtowns. In Wood on Nuisances, section 740, it is said: "If the authorities of acity abate a nuisance under authority of an ordinance of the city, they aresubject to the same perils and liabilities as an individual, if the thing in fact isnot nuisance."

In Grossman vs. City of Oakland (30 Ore., 478, 483) the court said:In our opinion this ordinance cannot be sustained as a legitimate exercise ofmunicipal power. The character of the city confers upon it the power toprevent and restrain nuisances, and to "declare what shall constitute anuisance;" but this does not authorize it to declare a particular use ofproperty a nuisance, unless such use comes within the common law orstatutory idea of a nuisance. (2 Wood on Nuisances (3d ed.), 977;Yates vs. Milwaukee, 77 U.S. (10 Wall.), 497; Village of DesPlaines vs. Poyer, 123 Ill., 348; 5 Am. St. Rep., 524; 14 N.E., 677;Quintini vs. City Board of Aldermen, 64 Miss., 483; 60 Am. Rep., 62; 1 So.,625; Chicago & Rock Islands R.R. Co. vs. City of Joliet, 79 Ill., 44;

Hutton vs. City of Camden, 39 N.J. Law, 122; 23 Am. Rep., 203.) By thisprovision of the charter the city is clothed with authority to declare by generalordinance under what circumstances and conditions certain specified acts orthings injurious to the health or dangerous to the public are to constitute andbe deemed nuisances, leaving the question of fact open for judicialdetermination as to whether the particular act or thing complained of comeswithin the prohibited class; but it cannot by ordinance arbitrarily declare anyparticular thing a nuisance which has not heretofore been so declared bylaw, or judicially determined to be such. (City of Denervs. Mullen, 7 Colo.,345).

In Western & Atlantic R. Co. vs. Atlanta (113 Ga., 537, 551), after an extensive reviewof the authorities, the court, per Lumpkin, J., said:

It is our opinion that the provisions of our code require, when a municipal

corporation is seeking to abate a nuisance such as it was alleged the floor ofthe union passenger station was in this case, that the parties interested begiven reasonable notice of the time and place of hearing at which the factwhether the property complained of is or is not a nuisance shall be inquiredinto and determined; that, without such notice and a judgment on the factsby the body invested with power to abate the nuisance, it is unlawful to enterthereon and remove or destroy it as a nuisance. If the thing, as we said, isdeclared by law to be a nuisance, or if it is unquestionably a nuisance, suchas a rabid dog, infected clothing, the carcass of a dead animal on a privatelot, the presence of a smallpox patient on the street, it may be abated by themunicipal authorities at once, by order, from the necessity of the case, andto meet an emergency which exists, to at once protect the health and lives ofthe people.

In Everett vs. City of Council Bluffs (46 Ia., 66, 67), where the council passed an

ordinance declaring trees on certain streets to be a nuisance and ordering themarshall to abate the same, the court held:


10/49

The defendant is incorporated under a special charter, which provides thatthe city council has power "to declare what shall be a nuisance, and toprevent, remove, or abate the same." This general grant of power, however,will not authorize the council to declare anything a nuisance which is notsuch at common law, or has been declared such by statute.

In Frostburg vs. Wineland (98 Md., 239, 243) the court said:The first question, then, in the case revolves itself to this, was the summaryproceeding of the appellants in declaring the two trees in front of theappellee's property to be a nuisance and an obstruction to the paving andcurbing of the street, and di recting them to be removed and destroyed, so farfinal as not to be reviewable by the Courts?This question we think was in effect settled by this court in the recent casesof New Windsorvs. Stocksdale (95 Md., 215) and King vs. Hamil (97 Md.,103). In the latter case it is said that equity will not lend its aid to enforce byinjunction the by-laws or ordinances of a municipal corporation, restrainingan act, unless the act is shown to be a nuisance per se. . . .It is clear, we think, both upon reason and authority, that when a municipalityundertakes to destroy private property which is not a nuisance per se, it thentranscends its powers and its acts are reviewable by a court of equity.

In C.R.I. & P.R. Co. vs. City of Joilet (79 Ill., 25, 44) the court said:As to the ordinance of the common council of the city of Joilet, of September,1872, declaring the railroad a nuisance, we regard that as without effectupon the case, although the charter of the city confers upon the common

council the power to abate and remove nuisances, and to punish the authorsthereof, and to define and declare what shall be deemed nuisances. We will,in this respect, but refer to the language of the Supreme Court of the UnitedState in Yates vs. Milwaukee (10 Wall., 505). (See supra.)

In the leading case of Denvervs. Mullen (7 Colo., 345, 353) where an extendedreview of the authorities is made, the court said:

The basis of authority for the action of the city in the premises is made torest upon certain provisions of the city charter, and certain ordinances, whichare set out as exhibits in the testimony; and the following, among other of theenumerated powers conferred by the legislature upon the city, i n saidcharter, is relied upon, viz: "To make regulations to secure the generalhealth of the inhabitants, to declare what shall be a nuisance, and to preventand remove the same."

The proper construction of this language is that the city is clothed withauthority to declare, by general ordinance, what shall constitute a nuisance.That is to say, the city may, by such ordinance, define, classify and enactwhat things or classes of things, and under what conditions andcircumstances, such specified things are to constitute and be deemednuisances. For instance, the city might, under such authority, declare byordinance that slaughter-houses within the limits of the city, carcasses ofdead animals left lying within the city, goods, boxes, and the like, piled up orremaining for certain length of time on the sidewalks, or other things injuriousto health, or causing obstruction or danger to the public in the use of thestreets and sidewalks, should be deemed nuisances; not that the city councilmay, by a mere resolution or motion, declare any particular thing a nuisancewhich has not theretofore been pronounced to be such by law, or soadjudged by judicial determination. (Everett vs. Council Bluffs, 40 Iowa, 66;

Yates vs. Milwaukee, 10 Wall., 497.) No law or ordinance, under which thecity council assumed to act in respect to this ditch, has been cited which

defines nuisance, or within the meaning of which such ditch iscomprehended.

xxx xxx xxxIt is only certain kinds of nuisances that may be removed or abatedsummarily by the acts of individuals or by the public, such as those whichaffect the health, or interfere with the safety of property or person, or aretangible obstructions to streets and highways under circumstancespresenting an emergency; such clear cases of nuisances per se, are wellunderstood, and need not to be further noticed here to distinguish them fromthe case before us. If it were admitted that this di tch, by reason of itsobstruction to the use of the public streets, at the time of the acts complainedof, was a nuisance, it must also be admitted that it was not a nuisance perse. It was constructed for a necessary, useful and lawful purpose, was usedfor such purpose, and therefore in its nature was not a nuisance, as a matterof law. Nor as a matter of fact was it a nuisance while it was no hurt,detriment, or offense to the public, or to any private citizen. If, then, it hasbecome a nuisance, it is by reason of a change of circumstances broughtabout neither by the ditch itself, nor its use. Indeed, the sole mattercomplained of, to warrant i ts being regarded as a nuisance, is the absenceof bridges at street crossings. The town has become populous; its growthhas extended beyond the ditch and along its line for a great distance; streetslaid out across its course have come to be traveled so much, that withoutbridges, the ditch, as appears by the testimony, has become inconvenient,

detrimental, and an obstruction to the full, safe and lawful use of such streetsas highways by the public. To this extent, and from these causes outside theditch and its use per se, has the ditch come to be a public nuisance, if, as amatter of fact, it is such. But whether it is such or not is a fact which mustfirst be ascertained by judicial determination before it can be lawfully abated,either by the public or by a private person.

In Joyce vs. Woods (78 Ky., 386, 388) the court said:There was no judicial determination that there was a nuisance, and noopportunity offered the owner of the lot to contest that matter. Under theexercise of the police power, it may be conceded that municipalities candeclare and abate nuisances in cases of necessity, without citation andwithout adjudication as to whether there is in fact a nuisance. But wheneverthe action of the municipality in declaring and abating a nuisance goes so far

as to fix a burden upon the owner of the property, he is entitled to be heardupon the question as to the existence of the nuisance. This right to a hearingupon this question may come before or after the nuisance is abated, ascircumstances may require, but there must be an opportunity offered him tobe heard upon that matter before his property can be loaded with the cost ofthe removal of the nuisance. To the extent that property is thus burdened bythe action of the city council, when there is no necessity to precipitate actionwithout adjudication, the owner is deprived of his property, regardless of "thelaw of the land." The meaning of that provision of the constitution hasgenerally been construed to be a law that hears before condemning, andarrives at a judgment for the divestiture of the rights of property through whatis ordinarily understood to be judicial process the general rules thatgovern society in reference, to the rights of property; and it is only in extremecases, where the preservation and repose of society or the protection of the

property rights of a large class of the community absolutely require adeparture, that the courts recognize any exception. In this case there is no


11/49

pretense of a necessity for precipitate action. There is no reason whyappellant should not have been permitted to test the question as to theexistence of the nuisance.

In Everett vs. Marquette (53 Mich., 450, 451) the court, per Cooley, J., said:But it is not necessary in this case to determine whether the permissiongiven by the village council was in due form for the purposes of a permanentappropriation, or even whether the council had the power to consent to suchan appropriation. It is undoubted that the council had general control of thestreets under the village charter; and it was a part of its duty to prevent thecreation of any public nuisance within them. It is not to be assumed thatconsent would have been given to such a nuisance, and when, by formalresolution the council assumed to give permission to complainant to makethe openings and build the stairways complained of, it must have been donein the belief that no public inconvenience would follow. If the permission waseffectual for no other purpose, it at least rebutted any presumption whichmight otherwise have existed, that this partial appropriation of the streetwas per se a nuisance.If the permission was a mere license, and the subsequent action of the citycouncil is to be regarded as a revocation of the license, it does not followthat the plaintiff has by the revocation immediately been converted into awrongdoer. The question will then be whether the act of the complainant inmaintaining his structures constitutes a public nuisance; and while the citycouncil is entitled, under its supervisory control of the public streets, to

consider and pass upon that question for the purpose of deciding upon theinstitution of legal proceedings for abatement, it cannot make itself the judge.Maintaining a nuisance is a public offense; and the fact, as in other cases ofalleged criminality, is to be tried on proper accusation and in the regularcourts. The mere fact that the party makes use of some part of a publicstreet for his private purposes does not make out the public offense. Thiswas decided in People vs. Carpenter (1 Mich., 273), and has never beendoubted in this State.The city in this case proceeding in an act of destruction on an assumptionthat the structures were already condemned as illegal. This wasunwarranted, and it was quite right that the action should be restrained.

The above authorities are collated in Judge Dillon's work on Municipal Corporations,fifth edition, section 684, with the following comment by the author:

It is to secure and promote the public health, safety, and convenience thatmunicipal corporations are so generally and so liberally endowed with powerto prevent and abate nuisances. This authority and i ts summary exercisemay be constitutionally conferred on the incorporated place, and itauthorizes its council to act against that which comes within the legal notionof a nuisance; but such power, conferred in general terms, cannot be takento authorize the extrajudicial condemnation and destruction of that as anuisance which, in its nature, situation, or use, is not such.

The questions discussed in this august array of authorities are exactly those of thepresent case, and the controlling principles and the reasoning upon which they arefounded are so fully and lucidly set forth as to justify us in refraining from comment ofour own. It is clear that municipal councils have, under the code, the power to declareand abate nuisances, but it is equally clear that they do not have the power to find asa fact that a particular thing is a nuisance when such thing is not a nuisance per se;

nor can they authorize the extrajudicial condemnation and destruction of that as a

nuisance which in its nature, situation, or use is not such. These things must bedetermined in the ordinary courts of law.In the present case it is certain that the ice factory of the plaintiff is not a nuisanceperse. It is a legitimate industry, beneficial to the people, and conducive to their healthand comfort. If it be in fact a nuisance due to the manner of its operation, thatquestion cannot de determined by a mere resolution of the board. The petitioner isentitled to a fair and impartial hearing before a judicial tribunal.The respondent has, we think, joined issued by its answer denying that it wasintending to proceed with the abatement of the alleged nuisance by arbitraryadministrative proceedings. This is the issue of the present case, and upon itsdetermination depends whether the injunction should be made permanent (but l imitedin its scope to prohibiting the closing of petitioner's factory by administrative action),or whether the injunction should be dissolved, which will be done in case it be shownthat the municipal officials intend to proceed with the abatement of the allegednuisance in an orderly and legal manner.It is said that the plaintiff cannot be compelled to build its smokestack higher if saidstack is in fact a nuisance, for the reason that the stack was built under authoritygranted by the defendant, and in accordance with the prescribed requirements. If thecharter or license does not expressly subject the business or industry to the exerciseof the police power by the State, it is conceded by the great preponderance ofauthority that such a reservation is implied to the extent that may be reasonablynecessary for the public welfare. (Freud, Police Power, 361 et seq, and 513 etseq.)

For the foregoing reasons, the order sustaining the plaintiff's demurrer to thedefendant's answer is reversed. The record will be returned to the court whence itcame with instructions to proceed with the trial of the cause in accordance with thisopinion. No costs will be allowed in this instance. So ordered.


12/49

G.R. No. L-3422 June 13, 1952HIDALGO ENTERPRISES, INC., petitioner,vs.GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OFAPPEALS, respondents.Quisumbing, Sycip, Quisumbing and Salazar for petitioner.Antonio M. Moncado for respondents.BENGZON, J. :This is an appeal by certiorari, from a decision of the Court of Appeals requiringHidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in thesum of P2,000 for the death of their son Mario.It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plantfactory in the City of San Pablo, Laguna, in whose premises were installed two tanksfull of water, nine feet deep, for cooling purposes of its engine. While the factorycompound was surrounded with fence, the tanks themselves were not provided withany kind of fence or top covers. The edges of the tanks were barely a foot high fromthe surface of the ground. Through the wide gate entrance, which is continually open,motor vehicles hauling ice and persons buying said commodity passed, and any onecould easily enter the said factory, as he pleased. There was no guard assigned onthe gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely8 years old, while playing with and in company of other boys of his age entered thefactory premises through the gate, to take a bath in one of said tanks; and while thusbathing, Mario sank to the bottom of the tank, only to be fished out later, already a

cadaver, having been died of "asphyxia secondary to drowning."The Court of Appeals, and the Court of First Instance of Laguna, took the view thatthe petitioner maintained an attractive nuisance (the tanks), and neglected to adoptthe necessary precautions to avoid accidents to persons entering its premises. Itapplied the doctrine of attractive nuisance, of American origin, recognized in thisJurisdiction in Taylor vs. Manila Electric16 Phil., 8.The doctrine may be stated, in short, as follows: One who maintains on his premisesdangerous instrumentalities or appliances of a character likely to attract children inplay, and who fails to exercise ordinary care to prevent children from playing therewithor resorting thereto, is liable to a child of tender years who is injured thereby, even ifthe child is technically a trespasser in the premises. (See 65 C.J.S., p. 455.)The principle reason for the doctrine is that the condition or appliance in questionalthough its danger is apparent to those of age, is so enticing or alluring to children of

tender years as to induce them to approach, get on or use it, and this attractiveness isan implied invitation to such children (65 C.J.S., p. 458).Now, is a swimming pool or water tank an instrumentality or appliance likely to attractthe little children in play? In other words is the body of water an attractive nuisance?The great majority of American decisions say no.

The attractive nuisance doctrine generally is not applicable to bodies ofwater, artificial as well as natural, in the absence of some unusual conditionor artificial feature other than the mere water and its location.There are numerous cases in which the attractive nuisance doctrine has notbeen held not to be applicable to ponds or reservoirs, pools of water,streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, .. . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho,Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma,Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)

In fairness to the Court of Appeals it should be stated that the above volume ofCorpus Juris Secundum was published in 1950, whereas its decision waspromulgated on September 30, 1949.The reason why a swimming pool or pond or reservoir of water is not considered anattractive nuisance was lucidly explained by the Indiana Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurkingin their waters is always the danger of drowning. Against this danger childrenare early instructed so that they are sufficiently presumed to know thedanger; and if the owner of private property creates an artificial pool on hisown property, merely duplicating the work of nature without adding any newdanger, . . . (he) is not liable because of having created an "attractivenuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the questionwhether the petitioner had taken reasonable precautions becomes immaterial. Andthe other issue submitted by petitioner that the parents of the boy were guilty ofcontributory negligence precluding recovery, because they left for Manila on thatunlucky day leaving their son under the care of no responsible individual needs nofurther discussion.The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved fromliability. No costs.


13/49

G.R. No. 97477 May 8, 1992RTC JUDGE CAMILO E. TAMIN, Presiding Judge, Regional Trial Court, Branch23, Molave, Zamboanga del Sur and the MUNICIPALITY OF DUMINGAG,ZAMBOANGA DEL SUR; represented by MAYOR DOMICIANO E.REAL,petitioners,vs.COURT OF APPEALS, VICENTE MEDINA and FORTUNATAROSELLON, respondents.

GUTIERREZ, JR., J.:The present petition seeks to annul and set aside the decision and resolution datedJanuary 21, 1991 and February 20, 1991, respectively of the Court of Appeals whichdeclared as null and void the October 10, 1991 order of the petitioner Judge in a civilcase "for ejectment with preliminary injunction and damages" filed by petitionermunicipality against the private respondents granting the petitioner municipality'smotion for a writ of possession and the writ issued pursuant to it.On September 24, 1990, petitioner municipality represented by its mayor DomicianoE. Real filed with the Regional Trial Court of Zamboanga del Sur, Branch 23, Molave,presided by the petitioner Judge, a complaint denominated as "Ejectment withPreliminary Injunction and Damages" against respondents Vicente Medina andFortunata Rosellon.The complaint alleged that the plaintiff (petitioner municipality herein) is the owner ofa parcel of residential land located at Poblacion, Dumingag, Zamboanga del Sur with

an area of 5,894 square meters more or less; that the parcel of land was reserved forpublic plaza under Presidential Proclamation No. 365 dated March 15, 1968; thatduring the incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958, themunicipality leased an Area of 1,350 square meters to the defendants (respondentsherein) subject to the condition that they should vacate the place in case it is neededfor public purposes; that the defendants religiously paid the rentals until 1967; thatthereafter, the defendants refused to pay the rentals; that the incumbent mayordiscovered that the defendants filed a "Cadastral Answer" over said lot; that thedefendants refused to vacate the place despite efforts of the municipality; that thenational government had alloted an appropriation for the construction of a municipalgymnasium within the public plaza but the said construction which was alreadystarted could not continue because of the presence of the buildings constructed bythe defendants; that the appropriation for the construction of the gymnasium might be

reverted back to the national government which would result to "irreparable damage,injury and prejudice" to the municipality and its people who are expected to derivebenefit from the accomplishment of the project.The complaint prayed:

1. That a restraining order shall be issued immediately after thefiling of this case;2. That after due notice and hearing, a writ of preliminarymandatory injunction shall be issued against the herein defendantsfor them (sic) form further occupying the leased portion to them(sic), and/or that a Writ of Possession be immediately issued topreserve the rights of the herein plaintiff;3. That judgment should be entered against the herein defendantsto vacate the premises of the leased portion given to them.(CA Rollo, pp. 11-12)

On the same day, September 24, 1990, the petitioner Judge issued an order settingthe preliminary hearing for the issuance of a writ of preliminary mandatory injunctionand/or writ of possession on October 10, 1990.Instead of filing an answer, the respondents filed a motion to dismiss alleging the lackof jurisdiction of the trial court, since the complaint is for illegal detainer which is withinthe original jurisdiction of the municipal court and the pendency of a cadastral case(Cadastral Case No. N-10, LRC Cad. Rec. No. N-108, Lot 9481 [Pls-61] TS-218)between the parties over the ownership of the same parcel of land.On October 10, 1990, the petitioner Judge issued two (2) orders. The first orderdenied the motion to dismiss. The second order granted the petitioner municipality'smotion for a writ of possession "with the ancillary writ of demolition to place inpossession the plaintiff on the land subject of this case, to the end that the publicconstruction thereon will not be jeopardized." (CA Rollo, p. 22)In denying the motion to dismiss, the petitioner Judge said:

xxx xxx xxx2. In the complaint, the plaintiff alleges that the defendant isclaiming ownership over the land which was previously rented todefendant by the plaintiff municipality. This action is, therefore,clearly an accion de reivindicacion, a real action within thejurisdiction of this court.3. As the complaint is for recovery of ownership of the land not toenforce the contract, the Statute of Fraud does not apply.4. The land subject of this case is covered by P.D. No. 365,

withdrawing this land from sale of settlement and reserving thesame for school site purposes under the administration of theDirector of Public School and public plaza under the administrationof the Municipality of Dumingag, therefore the Cadastral court hasno jurisdiction over the land involved in this case. (CA Rollo, p. 20)

The petitioner Judge justified his granting the motion for a writ of possession with theancillary writ of demolition by applying the rule an eminent domain (Rule 67 of theRevised Rules of Court, erroneously referred to as Rule 68) in analogy in that underthis Rule the complainant is given the right to the writ of possession in order thatpublic construction and projects will not be delayed. According to the petitioner Judge,the necessity of a writ of possession is greater in the instant case considering that theparcel of land is covered by a Presidential Proclamation and the on-goingconstruction thereon is being endangered to be left unfinished on account of the

buildings standing on the parcel of land because the appropriation for the constructionmight be reverted back to the national treasury.The private respondents filed an omnibus motion for reconsideration with motion toset aside order and to quash writ of possession and demolition but this was denied inan order dated October 19, 1990.On October 19, 1990, the petitioner municipality implemented the writ of possessionand ancillary writ of demolition issued by the petitioner Judge resulting in thedispossession of the private respondents from the parcel of land and the demolition ofstructures and buildings thereon owned by the respondents.On October 23, 1990, the private respondents filed their answer to the complaintalleging therein that the subject parcel of land has been owned, occupied andpossess by respondent Vicente Medina since 1947 when he bought the subjectparcel from a Subanan native; that the other respondent Fortunata Rosellon leasedfrom Medina a portion of the parcel of land; that the respondents were never lessees

of the petitioner municipality; that Proclamation No-365 issued on March 15, 1968recognized "private rights"; and, that a case is pending before the Cadastral court


14/49

between respondent Medina and petitioner municipality as regards the ownership ofthe subject parcel of land.Before the petitioner Judge could further act on the case, the private respondents fileda petition forcertiorariwith the Court of Appeals questioning the October 10 andOctober 19, 1990 orders of the peti tioner Judge.In a resolution dated November 14, 1990, the petition was given due course and atemporary restraining order was issued enjoining the petitioner Judge fromproceeding with the hearing of the case and from enforcing the October 10, and 19,1990 orders.On January 21, 1990, the appellate court rendered the questioned decision. A motionfor reconsideration was denied in a resolution dated February 20, 1991.Hence, this petition.In a resolution dated November 26, 1991, we gave due course to the petition.The appellate court rightfully upheld the jurisdiction of the Regional Trial Court overthe case based on the allegations in the complaint. The allegations and not the titlecontrol the cause of action of the complaint. (Andamo v. Intermediate Appellate Court,191 SCRA 195 [1990]).The Court said:

First, Does the Regional Trial Court have jurisdiction over the casebrought by the Municipality of Dimangag? As already noted, the gistof the complaint below is that the land in question is part of thepublic domain which the President of the Philippines, underProclamation No. 365, dated March 25, (should be 15) 1968,

reserved for school site and public plaza in the Municipality ofDumingag and that the petitioners, to whom the former town mayorhad leased a part of the land, refused to vacate and to pay rents. Ifthis is the theory on which the complaint is based, then the actionmay really be consid

property week 14

Documents