NUISANCE
ART. 694
-rticle &99 pro"ides for the following remedies against public nuisance
RTC JUDGE CAMILO E. TAMIN v. COURT OF APPEALS, VICENTE MEDINA and FORTUNATA ROSELLON, respondents. (. - prosecution under the penal code or an) local ordinance . ci"il action
Facts
%. abatement without 1udicial proceedings *n the present case, the The complaint alleged that the petitioner is the owner of a parcel of
municipalit) chose to file a ci"il action for the reco"er) of possession of the
residential land located at Poblacion, Dumingag, Zamboanga del Sur with an
parcel of land occupied b) the P. :nder the ;ocal
area of 5,894 suare meters more or less! that the parcel of land was
Sangguniang =a)an has to first pass an ordinance before summaril) abate a
reser"ed for public pla#a under Presidential Proclamation $o. %&5 dated
public nuisance.
'arch (5, (9&8! that during the incumbenc) of the late 'a)or *sidoro +. eal, Sr. or in (958, the municipalit) leased an -rea of (,%5 suare meters to the defendants /respondents herein0 sub1ect to the condition that the)
onsidering the facts in the complaint is true then the writ of possession and
should "acate the place in case it is needed for public purposes! that the
writ of demolition would ha"e b een 1ustified. - writ of demolition would ha"e
defendants religiousl) paid the rentals until (9&2! that thereafter, the
been sufficient to e1ect the pri"ate respondent.
defendants refused to pa) the rentals! that the incumbent ma)or disco"ered - public pla#a is outside the commerce of man and constructions thereon can be abated summaril) b) the municipalit). >e ruled in the case of Villanueva v . Castañeda, Jr . /(54 S- (4 ?(982@0
that the defendants filed a 3adastral -nswer3 o"er said lot! that the defendants refused to "acate the place despite efforts of the municipalit)! that the national go"ernment had alloted an appropriation for the construction of a municipal g)mnasium within the public pla#a but the said
+6actl) in point is +spiritu ". 'unicipal ouncil of Po#orrubio, /( Phil. 8&9A 820 where the Supreme ourt declared
construction which was alread) started could not continue because of the presence of the buildings constructed b) the defendants! that the appropriation for the construction of the g)mnasium might be re"erted bac
There is absolutel) no uestion that the town pla#a cannot be used for the construction of maret stalls, speciall) of residences, and that such structures constitute a nuisance sub1ect to abatement according to law. Town pla#as are properties of public dominion, to be de"oted to public use and to be made a"ailable to the public in general. The) are outside the commerce of man and cannot be disposed of or e"en leased b) the municipalit) to pri"ate parties.
to the national go"ernment which would result to 3irreparable damage, in1ur) and pre1udice3 to the municipalit) and its people who are e6pected to deri"e benefit from the accomplishment of the pro1ect.
Iss!" #$"t$"% &% n&t t$" '"t(t(&n"% )!n(c('a*(t+ )!n(c('a*(t+ (s "nt(t*"d t& a %(t &'&ss"ss(&n '&ss"ss(&n and a %(t &- d")&*(t(&n "v"n "-&%" t$" t%(a* &- t$" cas" sta%ts.
-ppl)ing this wellAsettled doctrine, we rule that petitioners had no right in the first place to occup) the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts. The) should ha"e reali#ed and accepted this earlier, considering that e"en before i"il ase $o. 4 was decided, the municipal council of San Bernando had alread) adopted esolution $o. 9, series of (9&4, declaring this area as the paring place and public pla#a of the municipalit).
7eld $o. -rticle &94 of the i"il ode defines nuisance as follows -rt. &94. - nuisance is an) act, omission, establishment, business, condition of propert) or an)thing else which
*f, therefore, the allegations in the complaint are true and that the parcel of land being occupied b) the pri"ate respondents is indeed a public pla#a, then the writ of possession and writ of demolition would ha"e been 1ustified. *n fact, under such circumstances, there would ha"e been no need for a writ of possession in fa"or of the petitioner municipalit) since the pri"ate respondentsC occupation o"er the sub1ect parcel of land can not be recogni#ed b) an) law. - writ of demolition would ha"e been sufficient to e1ect the pri"ate respondents.
/50 7inders or impairs the use of propert). while -rticle &95 pro"ides -rt. &95 $uisance is either public or pri"ate. - public nuisance affects a communit) or neighborhood or an) considerable number of persons, although the e6tent of the anno)ance, danger or damage upon indi"iduals ma) be uneual. . . .
7owe"er, we ha"e to consider the fact that the cadastral proceedings will ultimatel) settle the real owners of the disputed parcel of land. *n case respondent Eicente 'edina is ad1udged the real owner of the parcel of land, then the writ of possession and writ of demolition would necessaril) be null and "oid. $ot onl) that. The demolition of the constructions in the parcel of land would pro"e trul) un1ust to the pri"ate respondents.
-ppl)ing these criteria, we agree with the petitioners that the complaint alleges factual circumstances of a complaint for abatement of public nuisance.
1
NUISANCE
Parentheticall), the issuance of the writ of possession and writ of demolition b) the petitioner Fudge in the e1ectment proceedings was premature. >hat the petitioner should ha"e done was to stop the proceedings in the instant case and wait for the final outcome of the cadastral proceedings.
B* of amarines $orte, in its decision in i"il ase $o. 52, declared said barbershop as a nuisance perAse. =ut e"en without this 1udicial pronouncement, petitioner could not ha"e been faulted for ha"ing fenced off said barbershop. Pa%a%a'$ 8, A%t(c*" 699 8 of the i"il ode authori#es the abatement of a public nuisance without 1udicial proceedings. *n the case at bar, petitioner as ma)or of the town, merel) implemented the aforesaid recommendation of the 'unicipal 7ealth Gfficer. 7a"ing then acted in good faith in the performance of his dut), petitioner incurred no criminal liabilit).
ART. 699 JOSE /PEPITO/ TIMONER, '"t(t(&n"%, vs. T0E PEOPLE OF T0E P0ILIPPINES AND T0E 0ONORA1LE COURT OF APPEALS, IV DIVISION, %"s'&nd"nts. G.R. N&. L2635 N&v")"% 35, 978, ESCOLIN, J. SECOND DIVISION
Petition
Facts
ATTRACTIVE NUISANCE
Gn December (%, (92(, petitioner /'a)or of Daet, amarines $orte0 together with two uniformed policemen, and si6 laborers, arri"ed in front of the stalls along 'aharlia highwa). :pon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded into the sidewal of the 'aharlia highwa). -mong the structures thus barricaded were the barbershop of Pascual Da)aon, the complaining witness and the store belonging to one ;ourdes PiaAebustillos. These establishments had been recommended for closure b) the 'unicipal 7ealth Gfficer for nonAcompliance with certain health and sanitation reuirements(. Subseuentl), petitioner and the two policemen were charged with the offense of gra"e coerc ion before the 'unicipa l ourt of Daet which e6onerated the policemen but con"icted petitioner herein. The - liewise affirmed the decision of the lower court.
0IDALGO ENTERPRISES, INC., petitioner, "s. GUILLERMO 1ALANDAN, ANSELMA ANILA and T0E COURT OF APPEALS, respondents. FACTS Petitioner 7idalgo +nterprises, *nc. 3was the owner of an iceAplant factor) in the it) of San Pablo, ;aguna, in whose premises were installed two tans full of water, nine feet deep, for cooling purposes of its engine. The tans themsel"es were not pro"ided with an) ind of fence or top co"ers. The edges of the tans were barel) a foot high from the surface of the ground. Through the wide gate entrance, which is continuall) open an) one could easil) enter the said factor), as he pleased. There was no guard assigned on the gate.
Iss!"
PlaintiffCs son, 'ario =alandan, a bo) barel) 8 )ears old, while pla)ing with and in compan) of other bo)s of his age entered the factor) premises through the gate, to tae a bath in one of said tans! and while thus bathing, 'ario san to the bottom of the tan, onl) to be fished out later, alread) a cada"er, ha"ing been died of 3asph)6ia secondar) to drowning.3
>G$ the lower court erred in con"icting petitioner of gra"e coercion notwithstanding the recommendation of closure b) the 'unicipal 7ealth Gfficer and the declaration of the B* in i"il case no. 52 that the barbershop is a nuisance per se.
The -, and the B* of ;aguna, too the "iew ruled that petitioner maintained an attracti"e nuisance /the tans0, and neglected to adopt the necessar) precautions to a"oid accidents to persons entering its premises. =oth the - and B* applied the doctrine of attracti"e nuisance, of -merican origin /Taylor vs. Manila Electric0 which states that the &n" $& )a(nta(ns &n $(s '%")(s"s dan"%&!s (nst%!)"nta*(t("s &% a''*(anc"s &- a c$a%act"% *(:"*+ t& att%act c$(*d%"n (n '*a+, and $& -a(*s t& ";"%c(s" &%d(na%+ ca%" t& '%"v"nt c$(*d%"n -%&) '*a+(n t$"%"(t$ &% %"s&%t(n t$"%"t&, (s *(a*" t& a c$(*d &- t"nd"% +"a%s $& (s (n
0"*d Hes,
2 *n holding that the stalls are nuisances per se the lower court in i"il case no. 52 reasoned that there is no semblance of an) legalit) or right that e6ists in fa"or of the defendants to build a stall and conduct their business in a sidewal, especiall) in a highwa) where it does not onl) constitute a )"nac" t& t$" $"a*t$ of the general public passing through the street and also of the !nsan(ta%+ condition that is bred therein as well as the !ns($t*+ and !*+ structures in the said place. 'oreo"er, e"en if it is claimed and pretended that there was a license, permit or toleration of the defendantsC maeshift store and li"ing uarters for a number of )ears does not lend legalit) to an act which is a nuisance per se. Such nuisance affects the communit) or neighborhood or an) considerable number of persons and the general public which posed a danger to the people in general passing and using that place, for in addition, this is an anno)ance to the public b) the in"asion of its rights I the fact that it is in a public place and anno)ing to all who come within its sphere.
The third element is absent in the case at bar, Da)aonCs barbershop was done in abatement of a public nuisance and, therefore, under lawful authorit). The barbershop occupied a portion of the sidewal of the poblacionCs main thoroughfare and had been recommended for closure b) the 'unicipal 7ealth Gfficer. -dd such circumstance to the fact that the 1 Petitioner also filed a complaint in the B* of amarines $orte against ;ourdes PiaAebustillos
3 ART. 699. The remedies against a public nuisance are J. /%0 -batement, without 1udicial
and others for 1udicial abatement of their stalls. The complaint, doceted as i"il ase $o. 52, alleged that these stalls constituted public nuisances as well as nuisances per se.
proceedings.
2
NUISANCE
(- t$" c$(*d (s t"c$n(ca**+ a t%"s'ass"% (n t$" '%")(s"s .
credit card slip at the pa)ment and "erification counter when she felt a sudden gust of wind and heard a loud thud. She looed behind her. She then beheld her daughter Z7*+$+T7 on the floor, her )oung bod) pinned b) the bul of the storeKs giftAwrapping counterstructure. Z7*+$+T7 was cr)ing and screaming for help. -lthough shoced, *S+;D- was uic to as the assistance of the people around in lifting the counter and retrie"ing Z7*+$+T7 from the floor. Z7*+$+T7 was uicl) rushed to the 'aati 'edical enter where she was operated on. She died fourteen /(40 da)s after the accident.
The principle reason for the doctrine is that the condition or appliance in uestion although its danger is apparent to those of age, is so enticing or alluring to children of tender )ears as to induce them to approach, get on or use it, and t$(s att%act(v"n"ss (s an ()'*("d (nv(tat(&n t& s!c$ c$(*d%"n.
ISSUE >G$ a water tan full of water /considered as a bod) of water0 an attracti"e nuisance
-fter the burial of their daughter, pri"ate respondents demanded upon petitioners the reimbursement of the hospitali#ation, medical bills and wae and funeral e6penses which the) had incurred. Petitioners refused to pa). Trial court dismissed the complaint. *t ruled that the pro6imate cause of the fall of the counter on Z7*+$+T7 was her act of clinging to it. *t belie"ed petitionersK witnesses who testified that Z7*+$+T7 clung to the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. *n absol"ing petitioners from an) liabilit), the trial court reasoned that the counter was situated at the end or corner of the nd floor as a precautionar) measure hence, it could not be considered as an attracti"e nuisance.
RULING $G. T$" att%act(v" n!(sanc" d&ct%(n" "n"%a**+ (s n&t a''*(ca*" t& &d("s &- at"%, a%t(-(c(a* as "** as nat!%a*, (n t$" as"nc" &- s&)" !n!s!a* c&nd(t(&n &% a%t(-(c(a* -"at!%" &t$"% t$an t$" )"%" at"% and (ts *&cat(&n. There are numerous cases in which the attracti"e nuisance doctrine has not been held not to be applicable to ponds or reser"oirs, pools of water, streams, canals, dams, ditches, cul"erts, drains, cesspools or sewer pools, . . .
Pri"ate respondents appealed the decision, - ruled in fa"or of respondent. - ga"e credit to the testimon) of respondentKs witness that claimed that when Z7*+$+T7 was ased b) the doctor what she did, Z7*+$+T7 replied, 3?$@othing, * did not come near the counter and the counter 1ust fell on me.3
*n fairness to the ourt of -ppeals it should be stated that the abo"e "olume of orpus Furis Secundum was published in (95, whereas its decision was promulgated on September %, (949.
Iss!" an the respondents be held liable for their unstable counterM 0"*d Hes.
The reason wh) a swimming pool or pond or reser"oir of water is not considered an attracti"e nuisance was lucidl) e6plained b) the *ndiana -ppellate ourt as follows
$egligence is 3the failure to obser"e, for the protection of the interest of another person, that degree of care, precaution and "igilance which the circumstances 1ustl) demand, whereb) such other person suffers in1ur).3 -ccident and negligence are intrinsicall) contradictor)! one cannot e6ist with the other. -ccident occurs when the person concerned is e6ercising ordinar) care, which is not caused b) fault of an) person and which could not ha"e been pre"ented b) an) means suggested b) common prudence. The test in determining the e6istence of negligence is enunciated in the landmar case of Picart v. Smith,?@ thus Did the defendant in doing the alleged negligent act use that reasonale care and caution !hich an ordinarily "rudent "erson !ould have used in the same situation# $f not, then he is guilty of negligence.
Nat!%" $as c%"at"d st%"a)s, *a:"s and '&&*s $(c$ att%act c$(*d%"n. L!%:(n (n t$"(% at"%s (s a*a+s t$" dan"% &- d%&n(n. Aa(nst t$(s dan"% c$(*d%"n a%" "a%*+ (nst%!ct"d s& t$at t$"+ a%" s!--(c("nt*+ '%"s!)"d t& :n& t$" dan"%= and (- t$" &n"% &- '%(vat" '%&'"%t+ c%"at"s an a%t(-(c(a* '&&* &n $(s &n '%&'"%t+, )"%"*+ d!'*(cat(n t$" &%: &- nat!%" (t$&!t add(n an+ n" dan"%, . . . >$"? (s n&t *(a*" "ca!s" &- $av(n c%"at"d an /att%act(v" n!(sanc"./ Therefore, as petitionerCs tans are not classified as attracti"e nuisance, the uestion whether the petitioner had taen reasonable precautions becomes immaterial.
Petitioners were personall) informed b) their emplo)ees of the danger posed b) the unstable counter. Het, the) neither initiated an) concrete action to remed) the situation nor ensure the safet) of the storeKs emplo)ees and patrons as a reasonable and ordinar) prudent man would ha"e done. Thus, as confronted b) the situation petitioners miserabl) failed to discharge the due diligence reuired of a good father of a famil).
JARCO MAR@ETING CORPORATION v CA
Petitioner Farco 'areting orporation is the owner of S)"elKs Department Store, 'aati it). Petitioners ;eonardo Long, Fose Tiope and +lisa Panelo are the storeKs branch manager, operations manager, and super"isor, respecti"el). Pri"ate respondents are spouses and the parents of Zhieneth -guilar /Z7*+$+T70.
Petition was D+$*+D.
*n the afternoon of 9 'a) (98%, *S+;D- and Z7*+$+T7 were at the nd floor of S)"elKs Department Store, 'aati it). *S+;D- was signing her 3
