Iloilo Ice and Cold Storage v.

Municipal Council Ponente: Trent Facts: Issue: Plaintiff constructed an ice and cold storage plant in Iloilo city. Nearby residents made complaints to Municipal Council that the smoke from the plant was very injurious to their health and comfort. Committee investigated and reported that the complaints were well-founded. Municipal Council passed a resolution ordered petitioner to elevate the smokestacks or else, the municipal president will execute an order requiring the closing or suspension of operations of petitioner. Petitioner filed an action to enjoin Municipal Council from carrying into effect said resolution. preliminary injunction was issued Municipal Council: smoke discharged from the smokestacks of the factory is prejudicial and injurious to the public health

WON the municipal council has the power to declare the plant of petitioner a nuisance as operated and the method of abating it Held: Yes, but only if it is a nuisance per se. Ratio: Sec. 39(j), Municipal Code: Municipal council is empowered to declare and abate nuisances Nuisance: anything that worketh hurt, inconvenience or damages. 2 classes: o Nuisances per se- unquestionably and under all circumstances nuisances (gambling houses, houses of ill fame, etc.) o Nuisances per accidens Whether a particular thing is a nuisance is a question of fact, to be determined in the first instance before the term nuisance can be applied to it. This is true of a legitimate calling, trade, or business such as an ice plant. Rutton v. City of Camden: The right to abate public nuisances is a common law right and is derived in every instance of its exercise, from the same source that of necessity. It is akin to the right of destroying property for the public safety, in case of a devastating fire or other controlling exigency. But the necessity must be present to justify the exercise of the right, and whether present or not, must be submitted to a jury under the guidance of a court. The question of nuisance can conclusively be decided, 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 of municipal charters, cannot, to any degree, control such decision. Municipal councils have the power to declare and abate nuisances, but it is equally clear that they do 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 they authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation, or use is not such. These must be determined in the ordinary courts of law. The ice factory is not a nuisance per se. It is a legitimate industry, beneficial to the people, and conducive to their health and comfort. If it be in fact a nuisance due to the manner of its operation, the question cannot be determined by a mere resolution of the board. Petitioner is entitled to a fair and impartial hearing before a judicial tribunal. Petitioner cannot be compelled to build its smokestack higher if said stack is in fact a nuisance, for the reason that the stack was built under authority granted by the municipal council. If the charter or license does not expressly subject the business or industry to the exercise of the police power by the State, it is conceded by the great preponderance of authority that such a reservation is implied to the extent that may be reasonably necessary for the public welfare. Monteverde v. Generoso (1928) Ponente: Malcolm Facts: Monteverde is the owner of a parcel of land in Sta. Ana, Davao. It is bounded on the northwest by the Agdao River. Tambongan Creek (a branch of Agdao River) runs through Monteverdes land. It is a navigable property which is of public ownership. Monteverde constructed 2 dams across Agdao River and 5 dams across Tambongan Creek for fishpond purposes. 2 dams in Agdao River were destroyed by order of district engineer. Provincial governor also threatened to destroy the dams in Tambongon Creek. motive: to safeguard public health/sanitation obstructing the flow of water in the river causes development of stagnant water which breeds mosquitoes. Monteverde sought to restrain the governor, the district engineer and health officer denied by CFI

Issue: WON a provincial governor and other provincial officials are authorized to remove without a hearing or legal process any private construction on a navigable stream. Held: No Ratio: With the exception of Art. 24 of the Law of Waters, no law expressly empowers the provincial governor to order the removal of obstructions and the destruction of nuisances in a navigable stream. On the contrary, the law specifically grants the municipal council the power by ordinance or resolution to declare, prevent and abate nuisances (Sec. 2625, Admin Code) Art. 24, Spanish Law of Waters: any person may, upon his own private property, construct artificial ponds of sea water , having communication with the sea, for use as bathing places or vivaries, or for any other commercial or recreative purpose, notice thereof being given to the governor of the province. During two months, the governor shall have power to order the suspension of the work if, after consultation with the naval officer in command and the provincial engineer, it appear that the work might be substantially prejudicial to the public interests. In such an event the interested party may appeal to the Government applicability dependent on the principles of existing public law. 2 classes of nuisances: o Nuisances per se- affect the immediate safety of persons and property, may be summarily abated under the undefined law of necessity o Nuisances per accidens- municipal authorities have no right to compel the abatement of a particular thing or act as a nuisance without reasonable notice to the person alleged to be maintaining or doing the same of the time and place of hearing before a tribunal authorized to decide whether such thing or act constitutes a nuisance. A dam or fishery constructed in a navigable stream is not a nuisance per se. A dam or fishpond may be found to be a nuisance where it endangers or impairs the health or depreciates property by causing water to become stagnant. Public health may be conserved only in a legal manner. Due process must be observed before citizens property or personal rights or liberty can be interfered with. Lawton v. Steele: In the process of abating a nuisance there are limitations both in respect of the agencies which may be employed, and as to what may be done in execution of the remedy. If the property were of great value, it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have food reason to complain of such act, as depriving him of his property without due process of law. But where the property is of trifling value, it is within the power of the legislature to order its summary abatement. There is no law authorizing the summary abatement of nuisances by the provincial governor and, the dams and fishponds are not of trifling value. Defendants are prohibited from destroying the dams and fishponds in question. Sitchon v. Aquino (1956) Petitioner: Concepcion Facts: 6 class suits against the City Engineer of Manila to enjoin him from carrying out his threat to demolish the houses of petitioners on the ground that said houses constitute public nuisances. Case No. L-8191: instituted by Sitchon, Gavino and Adoremos in their own behalf and 22 other persons who constructed houses at a public street known as Calabash Road, Manila without the consent of authorities. Some of them paid concession fees or damages for the use of said portions of the street without prejudice to the order to vacate. City Engineer ordered them to vacate and remove their houses otherwise he would demolish said houses at their expense. Case No. L-8397: brought by de la Cruz, Perez and Fernando constructed houses at Antipolo and Alcerigas Streets without authority thereof. Roads and drainage on both sides were obstructed. Some ditches used for drainage were obliterated which cannot be opened and repaired or placed in proper condition because of said houses. City Engineer ordered them to vacate and remove their houses. Case No. L-8500: Pena, Morales and Villanueva without authority, occupied portions of R. Papa Extension. They were also ordered to vacate the premises and remove their houses. Case No. L-8513: Brotamonte, Blanquiso, Justiniano withot authority occupied portions of the bed of a branch of Estero de San Miguel. They were given the usual warning. Case No. L-8516: Navarro, Salas and Digap occupied portions of the bed of Pasig River, at about the end of Rio Vista St. (Same warning) Case No. L-8620: Sayo, Lamco and Bernardo occupied portions of Torres Bugallon, Cavite, Misericordia and Antipolo Sts. They were given the usual warning followed by a threat to demolish their houses.

 Issue: Held: Ratio:

6th case: CFI held that the houses of petitioners constitute public nuisance and the City Engineer is the official authorized to abate said public nuisance. Petitioners: 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, and under Art. 701-702 of NCC, the power to remove public nuisances is vested in the district health officer, not in city engineer.

City Engineer had advised and ordered petitioners to remove said houses within periods stated in the notices. Petitioners do not question the sufficiency of said periods and never asked for an opportunity to show that their houses do not constitute public nuisances. Said houses are on public streets, except of the houses in cases 8513 and 8516 which are built on river beds. Said houses are public nuisances pursuant to Art. 694 and 695 CC. Art. 694: A nuisance is any act, omission, establishment, business, condition of property, or anything else which: 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 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 Art. 700. The district health officer shall take care that one or all of the 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. But, Sec. 31, RA 409 (Revised Charter of the City of Manila) places upon the city engineer the duty to have charge of the care of streets, canals and esteros; to prevent the encroachment of private buildings on the streets and public places; to have supervision of all private docks, wharves, piers and other property bordering on the harbor, rivers, esteros and waterways and issue permits for the construction, repair and removal of the same and enforce all ordinances relating to the same; to have the care and custody of all sources of water supply; to cause buildings dangerous to the public to be torn down; and to order the removal of buildings and structures erected in violation of the ordinances. Art. 700 and 702, CC should yield to RA 409 not only because the former preceded the latter, but because RA 409 is a special provision specifically designed for the City of Manila, whereas Art. 700 and 702 are general provisions applicable throughout the Philippines. Sec. 1122, Revised Ordinance of the City of Manila: 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. Houses constructed without authority, on public streets and waterways, obstruct at all times the free use by the public of said streets and waterways= nuisances per se, aside from public nuisances. Summary removal thereof, without judicial process may be authorized by statute or municipal ordinance, despite the due process clause. Police power justifies the abatement or destruction, by summary proceedings, of whatever may be regarded as a public nuisance; the legislature may authorize the summary abatement of a nuisance without judicial process or proceeding. When necessary to insure public safety, legislature may under its police power authorize municipal authorities summarily to destroy property without legal process or previous notice to the owner.