COLLEGE OF LAW

Philippine-Japan Friendship Highway, Sasa, Davao City

Name : Salman M. Johayr

Year and Program : 2nd Year; 4-year program

Instructor : Atty. Kristine Mae Quibod

Subject : Law on Property

Date submitted : September 24, 2020

Case Digests

TITLE VIII. NUISANCE

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 1. Bengzon v. Province of Pangasinan
(G.R. No. L-41941; January 9, 1936)

Facts:

Here, the plaintiff owned a house constructed of wood and covered with nipa on
Avenida Rizal, municipality of Lingayen, Province of Pangasinan; that he had and his family
have resided there for twenty-seven years, his family being composed of eight members.
Their house is two stories constructed upon a lot which contains 720 square meter. Upon the
adjacent lot the defendant, during the years 1924 and 1925, constructed a reinforced
concrete stand pipe 28 meters high and nine meters in diameter. Within the base of this
cylindrical tank there are three machines: One electrical, one gasoline and one crude oil. On
the side of the tank nearest the plaintiff's residence and at a distance of 3.4 meters is a
chimney which rises to about the height of the gable of the house. The tank itself is 3.8
meters from the house of the plaintiff.

On March 1927, the plaintiff protested to the governor of the province for the manner
in which the plant was being operated and asked that he be indemnified for the value of his
house and lot so that he might move his family and his effects to another residence.

Issue:

Whether or not an action for damages will prosper for maintaining a nuisance
continuously injurious to the plaintiff and his family

Ruling:

Yes. In locating its pumping station within 3.8 meters from the house of the plaintiff,
the defendant should reasonably have foreseen that the noise, vibrations, smoke, odor and
sparks coming from the plant during its operation, not only during the day but during the
night as well, would cause a constant annoyance, discomfort and danger both to the
property of the plaintiff and the health and comport of himself and his family. The chimney
which is just opposite the plaintiff's house at a distance of only 3.4 meters emits smoke,
gases of crude oil and gasoline and occasionally sparks well. The plaintiff testified that at
times the smoke blinds him and his family affecting their lungs and their eyes and that the
noise and vibrations affect their sleep. As against the testimony of the plaintiff, who is
exposed day in and day out to these conditions, and of his neighbors who corroborate him,
the brief ocular inspection made by the court on one day, although conducted with eminent
fairness, seems to us to be entitled to less weight. The witnesses for the defendant, its
employees, naturally minimize the harmful effects to the plaintiff of the operation of the
machines in the pumping plant. But the evidence as a whole leaves us with clear conviction
that the construction and operation of this pumping plant in such close proximity to the
plaintiff's residence has rendered the same practically uninhabitable without exposing to risk
the comfort, health and, in case of fire, even the live of the plaintiff and his family.

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 2. Ayala v. Baretto

(G.R. No. L-9966; February 14, 1916)

Facts:

The complaint alleged that he erection and operation of a combined brewery and ice
plant on Calle General Solano in the city of Manila, constitutes nuisance.

The twenty-two plaintiffs are either residents of property owners on Calle General
Solano. Twelve of them are actual resident of the street and of these twelve, six are lessees
of property owned by other plaintiffs. This street connects Echague and Aviles Streets. All
three parallel the Pasig River. Echague is almost wholly given over to industrial enterprises,
and Aviles also has some factories, etc., upon it, including the San Miguel Brewery. This
latter brewery is a long established business, is adjacent to many residences, and is, in fact,
closer to some of the plaintiffs than is the proposed brewery.

Issue:

Whether or not the plant will create a nuisance

Ruling:

No. After a careful consideration of all the evidence of record, we have come to the
conclusion that the locality surrounding the site of the proposed plant has not sufficiently the
impress of a residential district as to justify us in holding that the plant will be incongruous
with its surroundings. This conclusion is made easier in view of the fact that another brewery
is in fact closer to several of the plaintiffs than that of the defendants will be. The fact that
this latter brewery is not on the same street is immaterial. Distance is what counts in a
matter of this kind. Noise, smells, and smoke are no respecters of streets.

Is there evidence of record that the proposed plant will be operated so carelessly as
to materially increase the noise, smells, and smoke emanating therefrom? We think not. On
the contrary, the evidence is that a brewery, properly run, is not an unbearable neighbor and
that the defendants are installing modern machinery in every respect. For the defense, there
is evidence of engineers and others that there will be no noise, vibrations, or smells, and but
little, if any, smoke which will materially affect nearby residents. We think that the
preponderating weight of the evidence is to the effect that the new brewery will be operated
with a minimum of offense to nearby residents, and that in view of the semi-industrial
character of the locality, what noise, etc., is produced, cannot be held to be unreasonable.

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 3. Ramcar v. Millar

(G.R. No. L-17760; October 31, 1962)

Facts:

Petitioner Ramcar has been engaged in the auto repair and body building business
since 1938 up to the present, except when it was interrupted during the Japanese
occupation. It transferred its place of business to its present site from 1049 R. Hidalgo
Street, Manila, on December 20, 1951 because the old location was within the 100-meter
radius from the Jose Rizal College, in violation of City ordinances. the nature of the
corporation's activities, actually engaged in, consists in repairing and building bodies of
motor vehicles, and involves the use of tools and machinery that give rise to much noise and
annoyance during all hours of the day up to nighttime; and its employees oftentimes work on
Sundays and holidays. At the time of the transfer, respondent Eusebio S. Millar and his
family were already residing on his own land adjacent to that of Ramcar, Inc. He and his co-
respondents repeatedly petitioned the city authorities for the closure of the shop to no avail,
because city authorities were "at loggerheads as to whether the immediate vicinity where the
business of Ramcar, Inc. is located is a residential or a commercial zone

Issue:

Whether or not business is a nuisance in its present location.

Ruling:

Article 697. The abatement of a nuisance does not preclude the right of any person
injured to recover damages for its past existence and, in the general provisions on
Damages, the same Code states:

ART. 2196. The rules under this Title are without prejudice to special provisions on damages
formulated elsewhere in this Code .

However, the business of the petitioner is not a nuisance per se. It is only on account
of its location that it is a public nuisance. To abate it, it is not necessary, as the appealed
decision decrees, to remove all building an structures built in the place where it is presently
located as these, or parts thereof, may be utilized for pursuit that are not forbidden by law or
ordinance.

The decision appealed from is modified by permanently enjoining the petitioner only
from operating its body building operations or activities in its present location, without
requiring the demolition of the existing building.

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 4. Iloilo Cold Storage v. Municipal Council

(G.R. No. L-7012; March 26, 1913)

Facts:

Plaintiff is the owner of an ice and cold storage plant. Nearby residents made
complaints regarding the smoke that the plant emits saying that it was very injurious to their
health and comfort. The defendant made investigations and later on passed a resolution
which demands that the smokestacks of the said factory be elevated or else the factory
operations will be closed or suspended. Plaintiff opposed by filing for injunction.

Issue:

Whether or not the resolution alone issued by the municipal council is sufficient to
label and abate the supposed nuisance in this case

Ruling:

No. There are two kinds of nuisances: nuisances per se and per accidens. The
former are recognized as nuisances under any and all circumstances. The latter are such
only because of the special circumstances and conditions surrounding them. The former
may be abated even by private individuals however the latter is different; it needs a
determination of the facts which is a judicial function.

The question of nuisance can conclusively be decided, for all legal uses, by the
established courts of law or equity alone, and that the resolution of officers, or of boards
organized by force of municipal charters, cannot, to any degree, control such decision. City
Council cannot, by a mere resolution or motion, declare any particular thing a nuisance
which has not theretofore been pronounced to be such by law, or so adjudged by judicial
determination.

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 5. Espiritu v. Municipal Council

(G.R. No. L-11014; January 21, 1958)

Facts:

Market building of the town of Pozorrubio was destroyed during the last world war,
and after Liberation, the market vendors began constructing temporary and make-shifts
stalls, even small residences, on a portion of the town plaza. The Municipal Treasurer
collected from these stall owners fees per month. In time, the whole municipal market was
rehabilitated, but the owners of the structures on the plaza failed and refused to transfer to
said market place.

The Municipal Council of Pozorrubio received petitions from civic organizations for
the removal of the market stalls on the plaza, which were being used not only as stalls, but
also for residence purposes, said organization desiring to convert said portion of the plaza
into a children's park. As a result, the Municipal Council of Pozorrubio No. 20, Series of
1951, stating that the public market had already been rehabilitated, and ordering the
occupants and owners of the structures on the plaza to remove their buildings within sixty
days from receipt of the resolution.

Issue:

Whether or not town plaza can be used for the construction of market stalls and
leased

Ruling:

No. There is absolutely no question that the town plaza cannot be used for the
construction of market stalls, specially of residences, and that such structures constitute a
nuisance subject to abatement according to law. Town plazas are properties of public
dominion, to be devoted to public use and to be made available to the public in general.
They are outside the commerce of man and cannot be disposed of or even leased by the
municipality of Pozorrubio to private parties. While in case of war or during an emergency,
town plazas may be occupied temporarily by private individuals, as was done and as was
tolerated by the municipality of Pozorrubio, when the emergency has ceased said temporary
occupation or use must also cease, and the town officials should see to it that the town
plazas should ever be kept open to the public and free from encumbrances or illegal
constructions.

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 6. Canlas v. Aquino

(G.R. No. L-16815; July 24, 1961)

Facts:

Spouses Arsenio L. Canlas and Adena Gonzales-Canlas was granted a permit to

build a house/hospital in San Jose, Municipality of Concepcion Tarlac. On December 1,
1958 the Spouses Canlas applied for a permit to operate a hospital from the Director of
Hospitals and on January 14, 1949 the Provincial Board of Tarlac granted its approval. On
the other hand, Jaime Tayal acquired a permit to construct a rice mill in front of the Canlas
Clinic.

Issue:

Whether or not the construction of the rice mill is a nuisance

Ruling:

Yes, the construction and operation will hinder the operations of the Canlas Clinic.
The rice mill will emit smoke. Vapour, palay husk dusk and dirt at the same time the noise
the mill will bring about which is detrimental to the fast recovery of the patients.

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 7. San Rafael Homeowners v. City of Manila

(G.R. Nos. L-26833 and L-26834 July 28, 1972)

Facts:

The City of Manila scheduled a bidding for the construction of a Garbage and Refuse
Disposal Plant which must be pollution-free and never be a nuisance pursuant to City
Ordinance No. 5274, authorizing the establishment, equipping and construction of a garbage
and refuse disposal plant. he City of Manila advertised for and received bids for the
construction of the plant in accordance with specifications previously prepared by the
respondents. Six bids were received: four firms offered to construct a compost plant, one
firm offered to put up an incinerator with a thermal power station to generate electricity, and
another offered a combined compost and incinerating plant. however, the Committee on
Awards decided to reject all the bids on the ground that none of them complied with the
requirement in the ordinance that the garbage and refuse disposal plant should be capable
of being operated on a self-liquidating basis. New specifications were drawn which defined
the term "Garbage and Refuse Disposal Plant" to mean "pollution-free incinerator plant
complete with accessories and all other auxiliaries that may render it a self-liquidating
project,"

However, herein petitioner contends that the advertised bidding for an incinerator
was in excess of the respondents' authority because an incinerator is a nuisance per se and
because its establishment would violate Ordinance No. 5274, the City Charter of Manila, the
Revised Administrative Code, and the Local Autonomy Act. Thus, the operation of an
incinerator may give rise to a nuisance which should be prevented.

Issue:

Whether or not the argument of the petitioners that composting is better than
incineration as a method of garbage and refuse disposal and that incineration will prove to
be a nuisance is meritorious.

Ruling:

It is entirely pointless to go into an academic discussion of the relative merits of the

composting and the incineration methods of garbage and refuse disposal for purposes of
deciding whether or not at this stage prohibition should issue to stop the bidding called for by
the respondents. The instant petitions for that purpose are premature. Certainly the court
cannot and should not substitute its judgment this early for that of the respondents, and on a
purely theoretical basis rule that the bids submitted should not be opened, or if opened
should not be accepted, because not one of the plants therein offered to be established
would serve the purpose envisaged and because, if so established, it would so pollute the
environment as to constitute a nuisance. If and when such a result becomes a reality, or at
least an imminent threat, that will be the time the petitioners may come to court .That they
are not successful now will not preclude them from doing so, because a continuing nuisance
calls for a continuing remedy.

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 8. Tamin v. CA

G.R. No. 97477, May 8, 1992

Facts:

The plaintiff (petitioner municipality herein) is the owner of a 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 for public plaza under Presidential
Proclamation No. 365 dated March 15, 1968; that during the incumbency of the late Mayor
Isidoro E. Real, Sr. or in 1958, the municipality leased an Area of 1,350 square meters to the
defendants (respondents herein) subject to the condition that they should vacate the place in
case it is needed for public purposes; that the defendants religiously paid the rentals until
1967; that thereafter, the defendants refused to pay the rentals; that the incumbent mayor
discovered that the defendants filed a "Cadastral Answer" over said lot; that the defendants
refused to vacate the place despite efforts of the municipality; that the national government
had alloted an appropriation for the construction of a municipal gymnasium within the public
plaza but the said construction which was already started could not continue because of the
presence of the buildings constructed by the 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 derive benefit from the accomplishment of the project.

The trial court granted the petitioner municipality's motion for a writ of possession
"with the ancillary writ of demolition to place in possession the plaintiff on the land subject of
this case, to the end that the public construction thereon will not be jeopardized."

Issue:

Whether or not the buildings constructed by the respondents are nuisance.

Ruling:

The buildings constructed by the respondents shall be considered a nuisance should

the pending administrative case declare that the subject land is part of public dominion. The
Civil Code provides under Art. 694 that “A nuisance is any act, omission, establishment,
business, condition of property or anything else which hinders or impairs the use of
property." Thus, if the administrative case is decided against the respondent, his continued
use of the buildings hinders or impairs the use of the property by the municipality making
such building a nuisance.

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 9. Lucena Grand v. JAC Liner

(G.R. No. 148339. February 23, 2005)

Facts:

The City of Lucena enacted an ordinance which provides, inter alia, that: all buses,
mini-buses and out-of-town passenger jeepneys shall be prohibited from entering the city
and are hereby directed to proceed to the common terminal, for picking-up and/or dropping
of their passengers; and (b) all temporary terminals in the City of Lucena are hereby
declared inoperable starting from the effectivity of this ordinance. It also provides that all
jeepneys, mini-buses, and buses shall use the grand central terminal of the city.

Issue:

Whether or not terminals are public nuisance

Ruling:

Neither are terminals public nuisances as petitioner argues. For their operation is a
legitimate business which, by itself, cannot be said to be injurious to the rights of property,
health, or comfort of the community. But even assuming that terminals are nuisances due to
their alleged indirect effects upon the flow of traffic, at most they are nuisance per accidens,
not per se. Unless a thing is nuisance per se, however, it may not be abated via an
ordinance, without judicial proceedings, as was done in the case at bar.

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 10. Hidalgo v. Balandan

(91 Phil 448; G.R. No. L-3422; June 13, 1952)

Facts:

Guillermo Balandan and his wife is claiming damages in the sum of P2,000 for the
death of their son, Mario. Petitioner was the owner of an Ice plant, who had in their premises
2 tanks filled of water, 9 feet deep. The factory was fenced but Ingress and egress was
easily made because the gates were always open and there was no guard assigned in the
said gate. Also the tanks didn’t have any barricade or fence. One day when Mario was
playing with his friend, they saw the tank inside the factory and began playing and swimming
inside it. While bathing, Mario sank to the bottom of the tank, only to be fished out later,
already as a cadaver, having died of ‘asphyxia secondary to drowning.’ The lower decided in
the favor of the parents saying that the petitioner is liable for damages due to the doctrine of
attractive nuisance.

Issue:

Whether or not the doctrine of attractive nuisance is applicable in this case

Ruling:

No. The doctrine of attractive nuisance states that “One who maintains on his
premises dangerous instrumentalities or appliances of a character likely to attract children in
play, and who fails to exercise ordinary care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is
technically a trespasser in the premises. American Jurisprudence shows us that the
attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as
natural, in the absence of some unusual condition or artificial feature other than the mere
water and its location. In the case bar, the tanks themselves cannot fall under such doctrine
thus the petitioners cannot be held liable for Mario’s death.

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 11. City of Cebu v. Judge Gako

(AM 08-2111; May 7, 2008)

Facts:

The Court initially referred the complaint to the Office of the Court Administrator
(OCA) for evaluation, report and recommendation. The OCA later found the respondent
judge administratively liable for undue delay in deciding the case and for gross ignorance of
the law, which is tantamount to grave abuse of judicial authority, when he violated the
doctrine of non-interference. The OCA, therefore, recommended that the case be re-
docketed as a regular administrative matter; the respondent judge be fined P11,000.00 and
be suspended without pay for 6 months; and the motion to direct the respondent to
compulsorily inhibit himself from all cases pending in his court in which complainant is a
party-litigant be denied for being judicial in character. Subsequently, the Court designated
Court of Appeals Associate Justice Enrico A. Lanzanas to further investigate and evaluate
the charges leveled against the respondent.

Issue:

Whether or not Judge Gako is liable.

Ruling:

Yes. After weighing the arguments and the evidence of the parties, the Investigating
Justice found the respondent judge liable only for undue delay in deciding case. The Court
upholds the findings and conclusions of the Investigating Justice, but modifies the
recommended penalty.

On the charge that the respondent judge unduly arrogated unto himself the duty of a
counsel, in Civil Case No. CEB-26607, by calling a witness to the stand and conducting the
latter's direct testimony even if the respective counsels were not interested or did not intend
to present said person as their witness, the Court finds nothing irregular in the same.
Revealed in the hearings of the said case is that the respondent judge intended to obtain
enlightenment from the said witness, the project director of one of the signatories to the
contract being litigated. In not a few cases, this Court has declared that the trial judge, if he
is not satisfied after hearing all the evidence adduced by the parties, may, in the exercise of
sound discretion, on his own motion and in furtherance of justice, call additional witnesses or
recall some or the same witnesses for the purpose of questioning them himself to enlighten
him on particular facts or issues involved in the case.

As to the four charges of willful violation of laws and rules, the Court finds them
without merit. The complainant failed to clearly prove error or ill will on the part of the
respondent judge in denying the motion to dismiss Civil Case No. CEB-26066. Granting that
respondent erred in denying the motion, the complainant should have appealed or petitioned

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 12. RP v. Mijares
(GR No. 170615; July 9, 2009)

Facts:

This case against respondents started from a controversy involving a parcel of land owned
by the Philippine Communications Satellite Corporation (PHILCOMSAT) located in Barangay
Pinugay, Baras, Rizal. Claiming that the subject land is covered by the Comprehensive
Agrarian Reform Program (CARP), members of the Southern Pinugay Farmers Multi-
Purpose Cooperative, Inc. (SPFMPCI) occupied about 100 hectares thereof. They
introduced improvements such as houses, fruit-bearing trees, vegetables, palay and other
crops.

PHILCOMSAT filed a protest before the Department of Agrarian Reform (DAR)

claiming that the land was exempt from CARP coverage since it was an integral part of the
Philippine Space Communications Operation. The DAR denied the protest. PHILCOMSAT
then filed a petition for review with the Court of Appeals. During the pendency of the petition,
respondent Mayor Roberto G. Ferrera issued an order directing respondent Engr. Romeo
Querubin to demolish the said houses and improvements. Meanwhile, in a pending case
between PHILCOMSAT and SPFMPCI before the Commission on the Settlement of Land
Problems, respondent Commissioner Rufino V. Mijares issued an order interposing no
objection to the order of demolition. Ferrera then directed Querubin to implement the order.
He also sought police assistance. On March 24, 2000, the houses and improvements on the
subject land were demolished and destroyed. As a result, SPFMPCI filed an administrative
case for grave misconduct and harassment against respondents before the Office of the
Ombudsman. In their Joint Counter-Affidavit, respondents argued that the SPFMPCI
members were not in the list of occupants/potential farmer-beneficiaries Thus, they were
illegal entrants whose houses and improvements constituted a nuisance that may be abated.

Issue:

Whether or not the summary demolition of the houses owned by farmer-members of

the SPFMPCI violated RA 7279 and PD 1096 and thus, constituted nuisance

Ruling:

No. The Supreme Court instead finds the reliance of both parties on the provisions of
Rep. Act No. 7279 and P.D. No. 1096 misplaced and that the demolition implemented by
respondents in order. If under Rep. Act No. 7279, demolition and eviction are allowed when
individuals have been identified as professional squatters and squatting syndicates or when
they occupy danger areas and other public places, and under P.D. No. 1096, they construct
dangerous and ruinous buildings or structures, thus, more reason the SPFMPCI members
should be summarily evicted and their structures and dwellings demolished. The parcel of
land involved in this case is a security zone whose operations must be protected from any
form of disruption. It must be protected from all types of squatters, including the SPFMPCI
members, who might create danger to a very important national telecommunications facility.
Hence, Clearly, respondents acted within the limits of the law when they implemented the
demolition.

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 13. Telmo v. Bustamante

(GR No. 182567; July 13, 2009)

Facts:

The complaint alleged that respondent is a co-owner of a real property of 616 square
meters in Brgy. Halang, Naic, Cavite, known as Lot 952-A and covered by Transfer
Certificate of Title No. T-957643 of the Register of Deeds of Cavite. Petitioner and Elizalde
Telmo (Telmos) are the owners of the two (2) parcels of land denominated as Lot 952-B and
952-C, respectively, located at the back of respondents lot. When his lot was transgressed
by the construction of the Noveleta-Naic-Tagaytay Road, respondent offered for sale the
remaining lot to the Telmos. The latter refused because they said they would have no use for
it, the remaining portion being covered by the roads 10-meter easement. The complaint
further alleged that, on May 8, 2005, respondent caused the resurvey of Lot 952-A in the
presence of the Telmos

On May 10, 2005, respondent put up concrete poles on his lot. However, around 7:00
p.m. of the same day, the Telmos and their men allegedly destroyed the concrete poles. The
following day, respondents relatives went to Brgy Chairman Consumo to report the
destruction of the concrete poles. Consumo told them that he would not record the same,
because he was present when the incident occurred. Consumo never recorded the incident
in the barangay blotter. Respondent complained that he and his co-owners did not receive
any just compensation from the government when it took a portion of their property for the
construction of the Noveleta-Naic-Tagaytay Road. Worse, they could not enjoy the use of
the remaining part of their lot due to the abusive, Illegal, and unjust acts of the Telmos and
Consumo.

Issue:

Whether or not petitioner’s contention that the concrete posts erected by respondent
were a public nuisance under Article 694

Ruling:

No. The Supreme Court held in negative and finds no merit on the contention of the
petitioner that respondent’s concrete posts were in the nature of a nuisance per se, which
may be the subject of summary abatement sans any judicial proceedings

It should be noted that a nuisance per se is that which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of necessity.
Evidently, the concrete posts summarily removed by petitioner did not at all pose a hazard to
the safety of persons and properties, which would have necessitated immediate and
summary abatement. What they did, at most, was to pose an inconvenience to the public by
blocking the free passage of people to and from the national road.

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 14. Gancayco v. Government

(GR NO. 177807 October 11, 2011)

Facts:

The consolidated petitions of Retired Justice Emilio Gancayco, City Government of

Quezon City and the Metro Manila Development Authority stemmed from a local ordinance
pertaining to Construction of Arcades, and the clearing of Public Obstructions. Gaycanco
owns a property, of which he was able to obtain a building permit for a two-storey
commercial building, which was situated along EDSA, in an area which was designated as
part of a Business/Commercial Zone by the Quezon City Council. The Quezon City Council
also issued Ordinance No. 2904, which orders the construction of Arcades for Commercial
Buildings.

The ordinance was amended to not require the properties located at the Quezon City
- San Juan boundary, and commercial buildings from Balete - Seattle Street to construct the
arcades, moreover, Gancayco had been successful in his petition to have his property,
already covered by the amended ordinance, exempted from the ordinance. MMDA on April
28, 2003, sent a notice to Gancayco, under Ordinance no. 2904, part of his property had to
be demolished, if he did not clear that part within 15 days, which Gancayco did not comply
with, and so the MMDA had to demolish the party wall, or “wing walls. Gancayco then filed a
temporary restraining order and/or writ of preliminary injunction before the RTC of Quezon
City, seeking to prohibit the demolition of his property, without due process and just
compensation, claiming that Ordinance no. 2904 was discriminatory and selective. He
sought the declaration of nullity of the ordinance and payment for damages.

Issue:

Whether or not the wing wall of Gancayco’s property be constituted as a public

nuisance

Ruling:

No. Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else that (1) injures or endangers
the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or
disregards decency or morality; (4) obstructs or interferes with the free passage of any public
highway or street, or any body of water; or, (5) hinders or impairs the use of property. A
nuisance may be per se or per accidens. A nuisance per se is that which affects the
immediate safety of persons and property and may summarily be abated under the
undefined law of necessity. Neither does the MMDA have the power to declare a thing a
nuisance. Only courts of law have the power to determine whether a thing is a nuisance. In
AC Enterprises v. Frabelle Properties Corp., 506 SCRA 625 (2006), we held: We agree with
petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as
the Local Government Code, the Sangguniang Panglungsod is empowered to enact
ordinances declaring, preventing or abating noise and other forms of nuisance. It bears
stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a
nuisance per se and order its condemnation. It does not have the power to find, as a fact,
that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it
authorize the extrajudicial condemnation and destruction of that as a nuisance which in its
nature, situation or use is not such.

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 15. Perez v. Spouses Madrona

(GR NO. 184478 March 21, 2012)

Facts:

Respondent-spouses Madrona are registered owners of a residential property

located in Marikina City and covered by TCT No. 169365. Respondents built their house
thereon and enclosed it with a concrete fence and steel gate. Later, respondents were
notified that the structure that they built encroached on the sidewalk and that is in violation of
PD 1096 of the National Building Code and RA 917 on Illegally occupied/constructed
improvements within the road right-of-way. The respondent-spouses are given 7 days to
remove the said structure. Respondent Madrona contended that (1) contained an
accusation libelous in nature as it is condemning him and his property without due process;
(2) has no basis and authority since there is no court order authorizing him to demolish their
structure; (3) cited legal bases which do not expressly give petitioner authority to demolish;
and (4) contained a false accusation since their fence did not in fact extend to the sidewalk.
Respondents filed a complaint for injunction.

Issue:

Whether or not respondents’ structure is a nuisance per se

Ruling:

No. If petitioner indeed found respondents’ fence to have encroached on the

sidewalk, his remedy is not to demolish the same summarily after respondents failed to heed
his request to remove it. Instead, he should go to court and prove respondents’ supposed
violations in the construction of the concrete fence. Indeed, unless a thing is a nuisance per
se, it may not be abated summarily without judicial intervention.

In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., on the need for judicial
intervention when the nuisance is not a nuisance per se, is well worth mentioning. In said
case,

Respondents cannot seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. That applies to a nuisance per se, or
one which affects the immediate safety of persons and property and may be summarily
abated under the undefined law of necessity (Monteverde v. Generoso). The storage of
copra in the building is a legitimate business. By its nature, it cannot be said to be injurious
to rights of property, of health or of comfort of the community. If it be a nuisance per
accidents it may be so proven in a hearing conducted for that purpose. It is not per se a
nuisance warranting its summary abatement without judicial intervention.

Respondents’ fence is not a nuisance per se. By its nature, it is not injurious to the
health or comfort of the community. It was built primarily to secure the property of
respondents and prevent intruders from entering it. And as correctly pointed out by
respondents, the sidewalk still exists. If petitioner believes that respondents’ fence indeed
encroaches on the sidewalk, it may be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary
abatement without judicial intervention is unwarranted.

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 16. Linda Rana v.Teresita Lee Wong

[GR No. 192862, JUNE 20, 2014]

Facts:

Teresita Lee Wong (Wong) and Spouses Shirley and Ruben Ang Ong (Sps. Ong) are
co-owners pro-indiviso of a residential land situated in Peace Valley Subdivision, Lahug,
Cebu City, covered by Transfer Certificate of Title (TCT) No. 1391605 (Wong-Ong property),
abutting a 10-meter wide subdivision road.
On the opposite side of the subject road, across the Wong-Ong property, are the
adjacent lots of Spouses Wilson and Rosario Uy (Sps. Uy) and Spouses Reynaldo and
Linda Rana (Sps. Rana), respectively covered by TCT Nos. 1240958 (Uy property) and T-
1155699 (Rana property). The said lots follow a rolling terrain with the Rana property
standing about two (2) meters higher than and overlooking the Uy property, while the Wong-
Ong property is at the same level with the subject road. Thereafter, Sps. Rana elevated and
cemented a portion of the subject road that runs between the Rana and Wong-Ong
properties (subject portion) in order to level the said portion with their gate. Sps. Rana
likewise backfilled a portion (subject backfilling) of the perimeter fence separating the Rana
and Uyproperties without erecting a retaining wall that would hold the weight of the added
filling materials. The matter was referred to the Office of the Barangay Captain of Lahug as
well as the Office of the Building Official of Cebu City (OBO), but to no avail.
On September 19, 1997, Wong, Sps. Ong, and Sps. Uy (Wong, et al.) filed a Complaint
for Abatement of Nuisance with Damages against Sps. Rana before the RTC.

Issue:

Whether or not the elevated and cemented subject portion is a nuisance

Ruling:

No. With respect to the elevated and cemented subject portion, the Court finds that the same
is not a nuisance per se. By its nature, it is not injurious to the health or comfort of the
community. It was built primarily to facilitate the ingress and egress of Sps. Rana from their
house which was admittedly located on a higher elevation than the subject road and the
adjoining Uy and Wong-Ong properties.Since the subject portion is not a nuisance per
se(but actually a nuisance per accidensas will be later discussed) it cannot be summarily
abated. As such, Wong, et al.’s demolition of Sps. Rana’s subject portion, which was not
sanctioned under the RTC’s November 27, 1997 Order,remains unwarranted.
However, Sps. Rana themselves have caused damage to the Sps. Wong, as the
records establish, Sps. Rana, without prior consultation with Wong, et al. and to their sole
advantage, elevated and cemented almost half61 of the 10-meter wide subject road. As
homeowners of Peace Valley Subdivision, Wong, et al. maintain the rights to the
unobstructed use of and free passage over the subject road. By constructing the subject
portion, Sps. Rana introduced a nuisance per accidens that particularly transgressed the
aforesaid rights.

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 17. Cruz v. Pandacan Hiker’s Club, Inc.
[GR No. 188213, JANUARY 11, 2016]
Facts:

Here, the acts of petitioners prompted the filing of a Complaint before the Prosecutor's
Office and the Office of the Ombudsman by the group that claims to be the basketball court's
owners, herein respondents Pandacan Hiker's Club, Inc. and its president Ilao. In the
complaint, they alleged that PHC is the group that had donated, administered and operated
the subject basketball court for the Pandacan community until its alleged destruction by
petitioners. In answer, Cruz alleged that the basketball court affected the peace in the
barangay and was the subject of many complaints from residents asking for its closure. Cruz
maintained that the court's users never heeded the barangay officials' efforts to pacify them
and when the basketball ring was once padlocked, such was just removed at will while
members of the complainants' club continued playing. When Cruz asked for the PHC to
return the steel bar and padlock, the request was simply ignored, thus, prompting her to
order Dela Cruz to destroy the basketball ring. The destruction was allegedly also a
response to the ongoing clamor of residents to stop the basketball games.
The Office of the Ombudsman dismissed the complaint filed by Ilao, having found that
the act of destroying the basketball ring was only motivated by Cruz and Dela Cruz
performing their sworn duty. The office found that though the cutting of the ring was "drastic,"
it was done by the barangay officials within their lawful duties, as the act was only the result
of the unauthorized removal of and failure to return the steel bar and padlock that were
earlier placed thereon. After the Ombudsman's dismissal, the complainants Ilao filed a
petition for review.
Issue:

Whether or not the act of destroying the basketball ring was one in abatement of a
public nuisance

Ruling:

No. The destructive acts of petitioners, however, find no legal sanction. This Court
has ruled time and again that no public official is above the law.The Court of Appeals
correctly ruled that although petitioners claim to have merely performed an abatement of a
public nuisance, the same was done summarily while failing to follow the proper procedure
therefor and for which, petitioners must be held administratively liable. Prevailing
jurisprudence holds that unless a nuisance is a nuisance per se, it may not be summarily
abated.
In the case at bar, none of the tribunals below made a factual finding that the
basketball ring was a nuisance per se that is susceptible to a summary abatement. And
based on what appears in the records, it can be held, at most, as a mere nuisance per
accidens, for it does not pose an immediate effect upon the safety of persons and property,
the definition of a nuisance per se. A basketball ring, by itself, poses no immediate harm or
danger to anyone but is merely an object of recreation. Neither is it, by its nature, injurious to
rights of property, of health or of comfort of the community and, thus, it may not be abated as
a nuisance without the benefit of a judicial hearing.

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