Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-9966 February 14, 1916

TRINIDAD DE AYALA, ET AL., plaintiffs-appellants, vs. ANTONIO M. BARRETTO, ET AL., defendants-appellees. D.R. Williams for appellants. C.W. O'Brien for appellees. TRENT, J.: This is a suit for a permanent injunction against the erection and operation of a combined brewery and ice plant on Calle General Solano in the city of Manila, on the ground that it will be a nuisance. From a judgment denying the relief prayed for, the plaintiffs have appealed. 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. General Solano has long been a fashionable residence street and the dwellings located upon it are large and expensive. At the present day, however, some of these residence are being used for other purposes. There are now upon this street a coal yard, a warehouse, and a cigarette factory, all very near the proposed location of the defendant's brewery, and there are also a public school and a club on the street. Just across the river is located the large power plant of the electric railroad and light company, consuming about 50 tons of coal per day. To the north of this street are located some sawmills and lumberyards and to the west, across the river, are located large warehouses and a large tobacco factory. The street is used by all kinds of freight vehicles and a double street-car track traverses its entire length. Launches, tugs and lighters are continually navigating the Pasig River, which lies to the rear of the south side of the street. In 1914 the assessed valuation of the property on the south side of the street was raised P2 per square meter over that on the north side of the street because of its increasing value for manufacturing and industrial enterprises. There was testimony by one of the plaintiffs' witnesses, a real estate expert, that in his opinion the whole of this space would eventually be devoted to manufacturing and other business use. It is attractive for such purposes by reason of its transportation facilities by both land and water. Under these facts we do not think that it can be said with entire correctness that the street in question is a strictly residential street. That it is not purely a residence street is clear, and that there are numerous businesses near it in nearly every direction is also clear. There is no doubt that the appropriateness of the locality selected by the defendants as the site of their proposed plant must have considerable bearing upon the question whether the plant will create a nuisance. (Joyce on Nuisances, sections 95 et seq.) It appears that the locality in question is gradually being transformed from a fashionable residence district into an industrial center. In Eller vs. Koehler (68 Ohio, 51), it was said: All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of city, business of no kind is desirable or welcome. On the other hand, one who becomes a resident of a trading or manufacturing neighborhood, or who remains, while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen

neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable. In Stevens vs. Rockport Granite Co. (216 Mass., 486) it was said: The law of nuisance affords no rigid rule to be applied in all instances. It is elastic. It undertakes to require only that which is fair and reasonable under all circumstances. In a commonwealth like this, which depends for its material prosperity so largely on the continued growth and enlargement of manufacturing of diverse varieties, "extreme rights" cannot be enforced. One who settles in a district, which possesses natural resources of a special kind, cannot prohibit the development of those resources merely because it may interfere in some degree with personal satisfaction or aesthetic enjoyment. No one can move into a quarter given over to foundries and boiler shops and demand the quiet of a farm. On the other hand, the noisy or noisome factory cannot with immunity invade territory stamped by use for residence. xxx xxx xxx

The neighborhood in question is of a mixed character. It is adjacent to the sea, with inlets upon a somewhat bold and rocky shore. On this account it has become increasingly attractive for summer residence. The plaintiffs and others near by, and more at a greater distance, have estates for this purpose. Nature also has planted valuable stone quarries in the vicinity, which have been opened and worked, and are useful not only to their owners but also in centres of population where they give beauty and strength to public buildings. This circumstances renders apposite the words of James, L. J., in Salvin vs. North Brancepeth Coal Co., (L. R. 9 Ch., 705, 709). "If some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes." 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. The evidence upon this point is as follows: Dr. Stafford testified that the smoke would be very irritating to say the least, but admitted that he did not know how the proposed plant was to be operated or the kind of machinery that would be used. Mr. Sellner testified that from his own observation of breweries they were more or less noisy and emitted odors. Mr. Zobel, one of the plaintiffs and a director and treasurer of the San Miguel Brewery, testified that from his knowledge of that brewery he would say that the machinery in the new brewery would make more or less noise and that there would be smells. He also admitted that he did not know what kind of machinery was to be used by the new plant nor the height of the proposed smokestack. For the defense, Mr. Strong, a mechanical engineer, who was furnishing the engines and boilers for the new plant, testified that if properly set up they would produce practically no vibration. Mr. Robinson, city engineer of the city of Manila, testified that considering the height of the proposed smokestacks, the nearby residents should not be materially distributed by smoke, and that if the machinery was properly set up there should be practically no noise.

Mr. Duffy, chief engineer of the Government ice plant at Manila, testified that he operated three 200horsepower and one 100-horsepower boilers, consuming approximately 28 to 30 tons of coal per day, but when all the boilers, engines, and machinery were in operation, there was no noise or jar discernible outside the building. Considering the proposed machinery for the new brewery, he was of the opinion that there should be absolutely no noise or jar, and considering the height of the proposed smokestack, no material annoyance from the smoke. Mr. Liebenow, inspector of hulls and boilers, testified that if the machinery was properly handled, there should be no noise or jar except when the boilers were "blown out," and that there should be very little smoke. Dr. Newberne of the Philippine Health Service thought that, given the height of the proposed smokestack, the smoke ought of be carried away from the vicinity. From a sanitary standpoint the new brewery would not interfere materially with the comfort or enjoyment of nearby residents, although it might from an aesthetic standpoint. His department had never received any complaints concerning the San Miguel Brewery. Attorney Hamilton testified that while in Covington, Kentucky, he used to pass daily a brewery several times larger that the San Miguel Brewery and never noticed any noises or smells emanating therefrom. Mr. Van Hoven, claim agent of the Manila Electric Railroad and Light Company, testified that this company consumed about 50 tons of coal per day, and that their smokestack was 172 feet high. They had never received any complaints from the hospital, occupying the islands in the river about 600 feet distant, nor from the residents on General Solano. Mr. Whelan, the engineer in charge of transferring the machinery of the new brewery from Hongkong to Manila, testified that the machinery was in a condition so that when in operation there would be no noise or jar. The smokestack was to be so high that there would be no smoke nuisance. The washing of bottles would be done inside a case and could not be heard ten feet away. The handling of barrels and cooperage work would not cause any more noise than handling of any other kind of cargo. Mr. Barretto, director and secretary of the new brewery company, who had originally constructed the San Miguel Brewery, testified that the cookers, vats, etc., were to be inclosed so that no fumes could escape except through vent pipes in the roof. When he constructed the San Miguel Brewery, located on Calle Aviles, some distance from the new brewery, no complaints were made. Mr. Schneider, brewmaster of the San Miguel Brewery, a witness for the plaintiffs, testified in rebuttal that the cleaning of bottles always made noise, as well as the cooperage work on the kegs. The smell of boiling beer was not disagreeable to him, but it might be to others who were not accustomed to it. Since the fumes thrown off from a brewery are heavier than air, they always settle, and so it would not matter if they were forced out through the roof. A Mr. and Mrs. Schultz and a Dr. Burke had complained to him about the smoke, noise, and smells from the San Miguel Brewery. The former lived in front of the brewery across the street and the latter lived alongside of it. He had been brewmaster of the San Miguel Brewery for the past ten years. Mrs. Schultz, for the plaintiffs, testified that while living opposite the San Miguel Brewery she had noticed noises and smells emanating from the brewery and that her husband had complained to the brewery people twice, telling them that it was very noisy and dirty. They lived there in front of the brewery did not interfere with them particularly. Mr. Calvo lives in front of the brewery on the opposite side of the street. He himself was never disturbed by the brewery, but they noticed the noises and smells coming from the brewery. It was sometimes necessary to cover the meals to avoid the soot from the smokestacks. While the testimony of Mr. Schneider, the brewmaster of the San Miguel Brewery, is to the effect that fumes from the beer making will settle to the ground, he does not say what their intensity is. That they could not be great would seem apparent from the fact that this witness recalled only two complaints that he had received from nearby residents of the San Miguel Brewery during his ten years' employment there. Again, Mrs. Schultz and Mr. Calvo emphasized the noise rather than the smells, and it seems from the testimony of Mr. Whelan

that the noise of the bottle washing, at least, will not be perceptible outside the building by reason of this work being done inside a case. Hence, the testimony of Mr. Schneider that the noise of the bottle washing could be heard outside the building evidently was based upon the conditions obtaining in the plant where he is employed. 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. It is possible that plaintiffs, or some of them, might prove damages by reason of property depreciation. But all events, this is not a proper case for the issuance of the extra-ordinary remedy of injunction. The judgment appealed from is affirmed, with costs against the appellants. So ordered.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-18390 December 20, 1971 PEDRO J. VELASCO, plaintiff-appellant, vs. MANILA ELECTRIC CO., ET AL., defendants-appellees. RESOLUTION

REYES, J.B.L., J.: Both appellant Velasco and appellee Manila Electric have filed their respective motions to reconsider the decision of this Court dated 6 August 1971. For the sake of clarity, the two motions will be here dealt with separately. A APPELLANT'S MOTION FOR RECONSIDERATION The thrust of this motion is that the decision has incorrectly assessed appellant's damages and unreasonably reduced their amount. It is first argued that the decision erred in not taking into account, in computing appellant's loss of income, the appellant's undeclared income of P8,338.20, assessed by the Bureau of Internal Revenue for the year 1954, in addition to his declared income for that year (P10,975), it being argued that appellant never claim any other source of income besides his professional earnings. Several circumstances of record disprove this claim. (1) That the amount of P8,338.20 was kept apart from ordinary earnings of appellant for the year 1954 (P10,975), and not declared with it, is in itself circumstantial evidence that it was not of comparable character. (2) If it was part of his ordinary professional income, appellant was guilty of fraud in not declaring it and he should not be allowed to derive advantage from his own wrongdoing. (3) The decision pointed out that by including the undeclared amount in appellant's disclosed professional earning for 1954, to a grand total of P19,313.20, the income for said year becomes abnormally high (in fact, more that double), as compared to appellant's earnings for the preceding years, 1951-1953, that averaged not more that P7,000 per annum. Such abnormality justifies the Court's refusal to consider the undisclosed P8,338.20 as part of appellant's regular income for the purpose of computing the reduction in his earnings as a result of the complained acts of appellee. (4) Finally, the true source of the undeclared amount lay in appellant's own knowledge, but he chose not to disclose it; neither did he call upon the assessing revenue officer to reveal its character. Appellant Velasco urges that the damages awarded him are inadequate considering the present high cost of living, and calls attention to Article 1250 of the present Civil Code, and to the doctrines laid down in People vs. Pantoja G.R. No. L-18793, 11 October 1968, 25 SCRA 468. We do not deem the rules invoked to be applicable. Article 1250 of the Civil Code is to the effect that: ART. 1250. In case an extraordinary inflation or deflation of the currency stipulated should supervene, the value of the currency at the time of the establishment of the obligation shall be the basis of payment, unless there is an agreement to the contrary. It can be seen from the employment of the words "extraordinary inflation or deflation of the currency stipulated" that the legal rule envisages contractual obligations where a specific currency is selected by the parties as the

medium of payment; hence it is inapplicable to obligations arising from tort and not from contract, as in the case at bar, besides there being no showing that the factual assumption of the article has come into existence. As to the Pantoja ruling, the regard paid to the decreasing purchase of the peso was considered a factor in estimating the indemnity due for loss of life, which in itself is not susceptible of accurate estimation. It should not be forgotten that the damages awarded to herein appellant were by no means full compensatory damages, since the decision makes clear that appellant, by his failure to minimize his damages by means easily within his reach, was declared entitled only to a reduced award for the nuisance sued upon (Steel vs. Rail & River Coal Co., 43 Ohio App. 228,182 N.E. 552); and the amount granted him had already taken into account the changed economic circumstances. Nor is the fact that appellant lost a chance to sell his house for P95,000 to Jose Valencia constitute a ground for an award of damages in that amount. As remarked in the main decision, there is no adequate proof of loss, since there is no evidence of the depreciation in the market value of the house in question caused by the acts of defendant Meralco The house, after all, has remained with appellant and he admits in his motion for reconsideration (page 48) that properties have increased in value by 200% since then. For the foregoing reasons, the motion for reconsideration is denied. B APPELLEE'S MOTION TO RECONSIDER Appellee Manila Electric Company argues that in case the noise emitted by its substation can not be brought down to the 50 decibel level imposed by our decision in chief, the remedy of the appellant would be to compel appellee Company to acquire and pay for the value of the house, under the so-called doctrine of "inverse condemnation and cites in support our doctrines in Bengzon vs. Province of Pangasinan, 62 Phil. 816, and Republic vs. Philippine Long Distance Telephone Co., L-18841, 27 January 1969, 26 SCRA 620-634. But as pointed out by appellant in his opposition, this issue was not raised, nor was the inverse condemnation doctrine invoked in the trial court, so that it would be improper to consider it on appeal, and worse still, on a motion for reconsideration of the decision on the merits. Furthermore, there is no showing that it is impossible to reduce the substation noise to the level decreed by this Court in the main decision. On the contrary, appellee's own evidence is that the noise can be reduced by erecting a wall barrier on the line separating the substation lot and the property of appellant. The version that appellee did not erect the wall because of the objections of appellant's wife was denied by her, and there is no preponderance of evidence in favor of appellee on this point. Moreover, since it was appellant Dr. Velasco who complained, his wife's objection would not suffice to constitute a waiver of his claim. As to the petition to increase the sound level prescribed by his Court from 50 to 55 decibels on the ground that present "ambient sound already ranges from 44 to 55 decibels in the mornings", the same can not be granted. As shown by the evidence at the trial, the intensity of the noise emitted by appellee's transformers are most objectionable at night, when people are endeavoring to rest and sleep in compensation for the fatigue and tensions accumulated during daytime. WHEREFORE, appellee's motion to reconsider is likewise denied. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-24245 April 11, 1972 LEONOR FARRALES, assisted by her husband, EMILIO FARRALES, plaintiffs-appellants, vs. THE CITY MAYOR OF BAGUIO, THE CHIEF OF POLICE, THE MARKET SUPERINTENDENT AND THE CITY TREASURER, defendants-appellees. Ernesto C. Hidalgo and Pedro O. Trinidad for plaintiff-appellants. The City Attorney for defendants-appellees.

MAKALINTAL, J.:p This appeal by the plaintiffs from the decision of the Court of First Instance of Baguio in its Civil Case No. 622 was taken to the Court of Appeals and subsequently certified by the latter to this Court for the reason that only questions of law are involved. The decision appealed from states the facts and conclusions arrived at by the court a quo, as follows: This is an action for damages. Plaintiff was the holder of a municipal license to sell liquor and sari-sari goods. When the temporary building where she had her stall was demolished in order that the city might construct a permanent building, Plaintiff was ordered to move her goods to another temporary place until the permanent building was completed. She did not like the location pointed out by city officials where she could install her temporary stall. Instead, taking the law into her own hands, Plaintiff built a temporary shack at one end of the Rice Section, Baguio City Market (see Exhibits 3, 4, and 6), without seeking prior permit or permission from any city official. When the police threatened to demolish this shack, which was built on the cement passageway at the end of the Rice Section building, Plaintiff came to this Court seeking an injunction. Before this Court would issue an injunction, a hearing was held where this Court refused to issue the same unless Plaintiff could show proper permit. Plaintiff could not do so, so the police demolished the shack, brought the materials and goods to the City Hall and subsequently delivered both materials and goods to Plaintiff. Plaintiff cited the police for contempt but this Court, in an order dated September 19, 1956, denied Plaintiff's petition. That order was final in character not interlocutory and no appeal having been made would operate as res judicata to his present suit which is based on the same act of demolition. To evade the effects of res judicata, Plaintiff amended her complaint so as to include as Defendants the policemen whom she claims did the demolishing. The only question to be determined by this Court is whether the demolition of the shack was in order or not. There is no doubt Plaintiff had not permit to build the shack and this shack was built in the passageway where people pass when going to the hangar market building. Plaintiff insists that the proper procedure should have been for either the City Engineer or the City Health Officer to commence legal proceedings for the abatement of this "nuisance". This Court believes that the police officers properly demolished the shack for it had been built in defiance of orders from City Hall officials. Plaintiff had been assigned a place where to install her shack she did not like this and, following her own desires, built the shack in the middle of a passage. Should the police wait for the City Engineer or City Health Officer to act in order to clear the

passageway of this illegal construction? This Court believes that they could clear the passageway on their own responsibility, just like they can push a car that is parked in the wrong place without waiting for court proceedings. In fact in the case of Verzosa v. City of Baguio, G.R. No. L-13546, Sept. 30, 1960, our Supreme Court permitted the removal of a building built under temporary permit on Session Road without court proceedings simply because the temporary permit had expired. In this present case, with greater reason the removal of Plaintiff's building is justified. The complaint of Plaintiff is therefore, dismissed with costs against Plaintiff. The first error assigned by the appellant refers to the order of the trial court refusing to declare the defendants in default and allowing them to file their answer to the complaint after the expiration of the reglementary period for that purpose. Such action of the court was justified and indeed explained by it in an order dated September 29, 1956, denying the plaintiff's motion for reconsideration of the permission granted on August 24, 1956 to the defendants to file their answer. The Court said: The stenographic notes of that day show that Atty. Baclit appeared in this case on behalf of the Plaintiffs and when the issue of the sufficiency of Plaintiffs' complaint was raised by the City Attorney, and Atty. Baclit said he had no knowledge of the same, this Court suspended hearing to wait for Atty. Benjamin Rillera, attorney of record of Plaintiffs and who was the one who filed the Motion to Declare Defendant in Default. Subsequently that morning, Atty. Rillera came and manifested to this Court his willingness to withdraw his motion and, to allow Defendants to file their answer. This was the reason for the order of this Court dated August 24, 1956. Plaintiffs are bound by the actuations of their Counsel. The fact that he refused to file a motion for reconsideration and instead insisted in withdrawing as counsel for Plaintiffs would be no justification of revoking the order of August 24, 1956. The motion for reconsideration filed by Plaintiffs personally is, therefore, denied for lack of merit. The other errors assigned by the appellant have to do with the merits of the case. The appellant's contention is that the shack or temporary stall put up by her inside the premises of the Baguio City Market was not a nuisance or if it was a nuisance at all it was one per accidens and not per se and therefore could be abated only after the corresponding judicial proceeding. The uncontradicted evidence does not support the appellant's contention. In the first place she had no permit to put up the temporary stall in question in the precise place where she did so. In the second place, its location on the cement passageway at the end of the Rice Section building was such that it constituted an obstruction to the free movement of people. As the court a quo correctly observed, this fact is shown clearly on the photographs marked Exhibits 3, 4 and 6. Judging by these photographs it cannot even be said that what the appellant constructed was a temporary stall. It was nothing more than a lean-to, improvised with pieces of used scrap iron roofing sheets. It was obviously not a "building" within the meaning of the Charter of the City of Baguio (Art. V, Section 2557 [d] Adm. Code) relied upon by the appellant and under which the power "to cause buildings, dangerous to the public, to be made secure or torn down, is vested in the City Engineer, subject to the approval of the City Mayor. It is true that under Article 702 of the Civil Code "the District Officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against public nuisance;" but in this case the failure to observe this provision is not in itself a ground for the award of damages in favor of the appellant and against the appellees. According to Article 707 of the same Code, a public official extrajudicially abating a nuisance shall be liable for damages in only two cases: (1) if he causes unnecessary injury, or (2) if an alleged nuisance is later declared by the courts to be not a real nuisance. Here no unnecessary injury was caused to the appellant, and not only was there no judicial declaration that the alleged nuisance was not really so but the trial court found that it was in fact a nuisance. Indeed it may be said that the abatement thereof was not summary, but through a judicial proceeding. The appellant, after having been warned by the city police of Baguio that the lean-to she had put up without a permit would be demolished, went to court and asked for an injunction. A hearing was then held and the court refused to issue the writ unless she showed the proper permit. The denial of her petition for injunction upon her failure to produce such a permit was in effect an authority for the police to carry out the act which was sought to be enjoined. And it

was an authority which was later confirmed by the same court in its decision. Under the circumstances there is absolutely no ground to award damages in favor of the appellant. WHEREFORE, the judgment appealed from is affirmed, without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo and Antonio, JJ., concur. Makasiar, J., concurs in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17760 October 31, 1962

RAMCAR, INC., petitioner, vs. EUSEBIO S. MILLAR, ET AL., respondents. Jose Perez Cardenas for petitioner. Antonio Fa. Quesada for respondents. REYES, J.B.L., J.: Petitioner Ramcar Inc., operates and maintains an auto repair and body building shop at No. 1241 (formerly No. 1377) General Luna Street, Ermita, Manila, while the seven private respondents reside near or around the shop. Respondents brought an action before the Court of First Instance of Manila to abate the said establishment as a nuisance. That Court, after trial, dismissed the complaint, and not satisfied with the decision, the plaintiffs (respondents now) appealed the case to the Court of Appeals. The appellate court reversed the trial court's decision and entered judgment against Ramcar, Inc. as follows: WHEREFORE, the decision of the lower court is hereby reversed and another one rendered declaring that the operation and maintenance of the establishment of the defendant corporation at No. 1241 (formerly No. 1377) General Luna St., Ermita, Manila, is a public nuisance and violates the provisions of Zonification Ordinance No. 2830, as amended by Ordinance No. 2906, of the City of Manila; ordering the defendants-appellees to remove the said establishment and all buildings and structures built therein within 30 days from the finality of this judgment; and, condemning defendantappellee Ramcar, Inc., to pay plaintiffs-appellants the sum of P10,000.00 as special damages and P2,000.00 as attorney's fees, without costs in this instance. Whereupon, Ramcar, Inc. petitioned this Court for a review on certiorari. Petitioner 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. As found by the Appeals Court, 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". The Court of Appeals, however, found that the place is a commercial zone, as the business would not be permitted in a residential zone. It further appears that Ramcar, Inc. has been granted a license and permit to operate a garage; and it claims that such license entitles it to conduct its body building business, and that Section 5 of Ordinance No. 2830, as amended by Ordinance No. 2906 of the City of Manila, allows it to conduct its business at the present site. The said ordinance restricts the kinds of business, buildings and establishments that may be built on commercial zones and the enumeration of permitted activities includes "6. Garage and gasoline service stations". A body building shop is not within the purview of "garage", which designates a shop for storing, repairing and servicing motor vehicles, being merely a modern substitute for the ancient livery stable (Legum vs. Carlin, 99 ALR, 536) The Court of Appeals correctly held on this point:

It is clear that the business of Ramcar, Inc. is not a mere garage or automobile repair and painting shop, much less, a gasoline service station, within the contemplation of Section 5 of the City Ordinances. Besides the usual services of vehicle storage, of supplying gas, and of making repairs, the shop also assembles and rebuilds car and truck bodies which require more than ordinary labor and skill and involves the use of tools and machinery with the concomitant noise created by the use of those tools and machines. While repair work may be considered as a necessary incident of a garage or gasoline service station for purposes of goodwill when they involve minor repairs, body assembling or rebuilding certainly makes such kind of business more than a mere garage and gas service station and, for zonification purposes, should not be confused with and must be separated from a garage or gas service business. In fact, it has been held in Uy Chao vs. Aguilar, G.R. No. L-9069, 28 March 1958, that to repair presupposes decay, dilapidation, injury, or partial destruction of the repaired element, i.e., broken or damaged parts of a structural whole to their original condition. Clearly, the term can not apply to the building or remodeling of bodies or structures. The second assigned error refers to the appreciation of documentary and testimonial evidence on record, and incorporates certain testimonials of some neighbors of petitioner attesting to their non-molestation by the shop in question; and, proceeding therefrom, petitioner argues that its business is not a nuisance in its present location. Whether a particular thing is or is not a nuisance is a question of fact (Iloilo Cold Storage Co. vs. Municipal Council, 24 Phil. 471; 61 C.J.S. 864) and is properly within the jurisdiction of the Court of Appeals, whose findings of fact are conclusive. Under this same assignment of error, petitioner argues that it is only the City, under its Charter, that can determine whether a business, occupation, act, or building is a nuisance or not, and suggests that the remedy is an action against the City of Manila only for a determination of whether or not the subject matter thereof is a nuisance. While Section 18 of Republic Act 409 grants legislative powers to the municipal board to declare, prevent, and provide for the abatement of nuisances, inaction by the board does not preclude the ultimate power of courts to determine the existence of a nuisance in a particular case tried before them (Rutton vs. City of Camden, 23 Am. Rep. 203, 209; Iloilo Cold Storage Co. vs. Municipal Council, supra). The decision appealed from condemns the petitioner to pay P10,000.00, as "special damages", and P2,000.00 as attorney's fees to the respondents, For the annoyance and discomfort caused by the constant noise emanating from the corporation's shop, as well as to counsel fees where the defendant's (herein petitioner) acts or omissions have compelled them to litigate . . . . As last assignment of error, petitioner vehemently asserts that the award of damages has no sanction in law, and because its business was covered by a valid license, the decision tends to punish a citizen who acted with diligence and in accordance with law. In disposing of this assigned error, it is enough to point out that the zoning ordinance prohibited the body building operations of petitioner. Contrary to petitioner's pretense that nowhere in the Civil Code is the award of damages arising from a nuisance authorized, said Code provides: ART. 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.

WHEREFORE, 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 in all other respects, the judgment below is affirmed. Costs in this instance against petitioner Ramcar, Inc. Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Barrera, Dizon, Regala and Makalintal, JJ., concur. Paredes and Padilla, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26053 February 21, 1967

CITY OF MANILA, plaintiff-appellee, vs. GERARDO GARCIA CARMENCITA VILLANUEVA, MODESTA PARAYNO NARCISO PARAYNO, JUAN ASPERAS, MARIA TABIA SIMEON DILIMAN, AQUILINO BARRIOS LEONORA RUIZ, LAUREANO DIZO, BERNABE AYUDA LEOGARDA DE LOS SANTOS, ISABELO OBAOB ANDREA RIPARIP, JOSE BARRIENTOS, URBANO RAMOS,1 ELENA RAMOS, ESTEFANIA NEPACINA, MODESTA SANCHEZ, MARCIAL LAZARO, MARCIANA ALANO, HONORIO BERIO SEDORA ORAYLE, GLORIA VELASCO, WILARICO RICAMATA, BENEDICTO DIAZ, ANA DEQUIZ (MRS.) ALUNAN, LORENZO CARANDANG, JUAN PECAYO, FELICIDAD MIRANDA EMIGDIO EGIPTO, defendants-appellants. Mauricio Z. Alunan for defendants-appellants. City Fiscal's Office for plaintiff-appellee. SANCHEZ, J.: Plaintiff City of Manila is owner of parcels of land, forming one compact area, bordering Kansas, Vermont and Singalong streets in Malate, Manila, and covered by Torrens Titles Nos. 49763, 37082 and 37558. Shortly after liberation from 1945 to 1947, defendants entered upon these premises without plaintiff's knowledge and consent. They built houses of second-class materials, again without plaintiff's knowledge and consent, and without the necessary building permits from the city. There they lived thru the years to the present. In November, 1947, the presence of defendants having previously been discovered, defendants Felicidad Miranda (Emigdio Egipto), Modesta C. Parayno, Benedicto Diaz, Laureano Dizo, Jose Barrientos, Elena Ramos, Estefania Nepacina, Modesta Sanchez, Honorio Berio, Gloria Velasco, Ana Dequis Alunan and Benedicto Ofiaza (predecessor of defendant Carandang) were given by Mayor Valeriano E. Fugoso written permits each labeled "lease contract" to occupy specific areas in the property upon conditions therein set forth. Defendants Isabelo Obaob and Gerardo Garcia (in the name of Marta A. Villanueva) received their permits from Mayor Manuel de la Fuente on January 29 and March 18, respectively, both of 1948. The rest of the 23 defendants exhibited none. For their occupancy, defendants were charged nominal rentals. Following are the rentals due as of February, 1962: Area in sq.m. 66.00 87.75 39.00 35.20 54.00 Monthly Rental P7.92 10.53 4.68 5.76 4.32 Amt. due from date of delinquency to Feb. 1962 P1,628.97 379.08 9.36 570.24 99.36
1wph1.t

NAME 1. Gerardo Garcia 2. Modesta C. Parayno 3. Juan Asperas 4. Maria Tabia 5. Aquilino Barrios (Leonora Ruiz)

6. Laureano Dizo 7. Bernabe Ayuda 8. Isabelo Obaob 9. Jose Barrientos 10. Cecilia Manzano in lieu of Urbano Ramos (deceased) 11. Elena Ramos 12. Estefania Nepacina 13. Modesta Sanchez 14. Marcial Lazaro 15. Marciana Alano 16. Honorio Berio 17. Gloria Velasco 18. Wilarico Ricamata 19. Benedicto Diaz 20. Ana Dequis Alunan 21. Lorenzo Carandang 22. Juan N. Pecayo 23. Felicidad Miranda

35.00 39.60 75.52 39.53 46.65 34.80 41.80 33.48 22.40 25.80 24.00 32.40 45.83 40.20 64.26 45.03 25.52 48.02

2.80 3.17 9.06 4.74 5.60 2.78 3.34 2.68 1.79 2.06 1.92 2.59 3.67 4.82 7.71 5.40 3.06 5.76

22.40 323.34 208.38 744.18 Paid up to Feb. 1962. 186.26 504.34 444.88 688.32 255.44 188.16 56.98 739.68 Paid up to March 1962. 30.84 437.40 30.60 132.48 P7,580.69

Epifanio de los Santos Elementary School is close, though not contiguous, to the property. Came the need for this school's expansion; it became pressing. On September 14, 1961, plaintiff's City Engineer, pursuant to the Mayor's directive to clear squatters' houses on city property, gave each of defendants thirty (30) days to vacate and remove his construction or improvement on the premises. This was followed by the City Treasurer's demand on each defendant, made in February and March, 1962, for the payment of the amount due by reason of the occupancy and to vacate in fifteen (15) days. Defendants refused. Hence, this suit to recover possession.2 The judgment below directed defendants to vacate the premises; to pay the amounts heretofore indicated opposite their respective names; and to pay their monthly rentals from March, 1962, until they vacate the said premises, and the costs. Defendants appealed. 1. We are called upon to rule on the forefront question of whether the trial court properly found that the city needs the premises for school purposes. The city's evidence on this point is Exhibit E, the certification of the Chairman, Committee on Appropriations of the Municipal Board. That document recites that the amount of P100,000.00 had been set aside in Ordinance 4566, the 1962-1963 Manila City Budget, for the construction of an additional building of the Epifanio de los Santos Elementary School. It is indeed correct to say that the court below, at the hearing, ruled out the admissibility of said document. But then, in the decision under review, the trial judge obviously revised his views. He there declared that there was need for defendants to vacate the premises for school expansion; he cited the very document, Exhibit E, aforesaid.

It is beyond debate that a court of justice may alter its ruling while the case is within its power, to make it conformable to law and justice.3 Such was done here. Defendants' remedy was to bring to the attention of the court its contradictory stance. Not having done so, this Court will not reopen the case solely for this purpose.4 Anyway, elimination of the certification, Exhibit E, as evidence, would not profit defendants. For, in reversing his stand, the trial judge could well have taken because the was duty bound to take judicial notice5 of Ordinance 4566. The reason being that the city charter of Manila requires all courts sitting therein to take judicial notice of all ordinances passed by the municipal board of Manila.6 And, Ordinance 4566 itself confirms the certification aforesaid that an appropriation of P100,000.00 was set aside for the "construction of additional building" of the Epifanio de los Santos Elementary School. Furthermore, defendants' position is vulnerable to assault from a third direction. Defendants have absolutely no right to remain in the premises. The excuse that they have permits from the mayor is at best flimsy. The permits to occupy are recoverable on thirty days' notice. They have been asked to leave; they refused to heed. It is in this factual background that we say that the city's need for the premises is unimportant. The city's right to throw defendants out of the area cannot be gainsaid. The city's dominical right to possession is paramount. If error there was in the finding that the city needs the land, such error is harmless and will not justify reversal of the judgment below.7 2. But defendants insist that they have acquired the legal status of tenants. They are wrong. They entered the land, built houses of second-class materials thereon without the knowledge and consent of the city. Their homes were erected without city permits. These constructions are illegal. In a language familiar to all, defendants are squatters: Since the last global war, squatting on another's property in this country has become a widespread vice. It was and is a blight. Squatters' areas pose problems of health, sanitation. They are breeding places for crime. They constitute proof that respect for the law and the rights of others, even those of the government, are being flouted. Knowingly, squatters have embarked on the pernicious act of occupying property whenever and wherever convenient to their interests without as much as leave, and even against the will, of the owner. They are emboldened seemingly because of their belief that they could violate the law with impunity. The pugnaciousness of some of them has tied up the hands of legitimate owners. The latter are thus prevented from recovering possession by peaceful means. Government lands have not been spared by them. They know, of course, that intrusion into property, government or private, is wrong. But, then, the mills of justice grind slow, mainly because of lawyers who, by means, fair or foul, are quite often successful in procuring delay of the day of reckoning. Rampancy of forcible entry into government lands particularly, is abetted by the apathy of some public officials to enforce the government's rights. Obstinacy of these squatters is difficult to explain unless it is spawned by official tolerance, if not outright encouragement or protection. Said squatters have become insensible to the difference between right and wrong. To them, violation of law means nothing. With the result that squatting still exists, much to the detriment of public interest. It is high time that, in this aspect, sanity and the rule of law be restored. It is in this environment that we look into the validity of the permits granted defendants herein. These permits, erroneously labeled "lease" contracts, were issued by the mayors in 1947 and 1948 when the effects of the war had simmered down and when these defendants could have very well adjusted themselves. Two decades have now elapsed since the unlawful entry. Defendants could have, if they wanted to, located permanent premises for their abode. And yet, usurpers that they are, they preferred to remain on city property. Defendants' entry as aforesaid was illegal. Their constructions are as illegal, without permits.8 The city charter enjoins the mayor to "safeguard all the lands" of the City of Manila.9

Surely enough, the permits granted did not "safeguard" the city's land in question. It is our considered view that the Mayor of the City of Manila cannot legalize forcible entry into public property by the simple expedient of giving permits, or, for that matter, executing leases. Squatting is unlawful and no amount of acquiescence on the part of the city officials will elevate it into a lawful act. In principle, a compound of illegal entry and official permit to stay is obnoxious to our concept of proper official norm of conduct. Because, such permit does not serve social justice; it fosters moral decadence. It does not promote public welfare; it abets disrespect for the law. It has its roots in vice; so it is an infected bargain. Official approval of squatting should not, therefore, be permitted to obtain in this country where there is an orderly form of government. We, accordingly, rule that the Manila mayors did not have authority to give permits, written or oral, to defendants, and that the permits herein granted are null and void. 3. Let us look into the houses and constructions planted by defendants on the premises. They clearly hinder and impair the use of that property for school purposes. The courts may well take judicial notice of the fact that housing school children in the elementary grades has been and still is a perennial problem in the city. The selfish interests of defendants must have to yield to the general good. The public purpose of constructing the school building annex is paramount.10 In the situation thus obtaining, the houses and constructions aforesaid constitute public nuisance per se. And this, for the reason that they hinder and impair the use of the property for a badly needed school building, to the prejudice of the education of the youth of the land.11 They shackle the hands of the government and thus obstruct performance of its constitutionally ordained obligation to establish and maintain a complete and adequate system of public education, and more, to "provide at least free public primary instruction".12 Reason dictates that no further delay should be countenanced. The public nuisance could well have been summarily abated by the city authorities themselves, even without the aid of the courts.13 4. Defendants challenge the jurisdiction of the Court of First Instance of Manila. They say that the case should have been started in the municipal court. They prop up their position by the averment that notice for them to vacate was only served in September, 1961, and suit was started in July, 1962. Their legal ground is Section 1, Rule 70 of the Rules of Court. We have reached the conclusion that their forcible entry dates back to the period from 1945 to 1947. That entry was not legalized by the permits. Their possession continued to remain illegal from incipiency. Suit was filed long after the oneyear limitation set forth in Section 1 of Rule 70. And the Manila Court of First Instance has jurisdiction.14 Upon the premises, we vote to affirm the judgment under review. Costs against defendants-appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur.

Footnotes
1

Substitute by Cecilia Manzano, R.A. p. 70 and Tr., p. 16. Civil Case No. 51087. Court of First Instance of Manila.

Section 5, Rule 124 of the 1940 Rules of Court, now Section 5, Rule 135 of the new Rules of Court; Veluz vs. The Justice of the Peace of Sariaya, 42 Phil. 557, 563.
3

People vs. Singh 45 Phil. 676, 679. Section 5, Rule 128, 1940 Rules of Court; Section 1, Rule 129, new Rules of Court. Section 50, Manila Charter.

Section 3, Rule 53, 1950 Rules of Court; Section 5, Rule 61, new Rules of Court; J. M. Tuason & Co., Inc. vs. Magdangal, L-15539, January 30, 1962; Joson vs. Nable, 87 Phil. 337, 340; J.M. Tuason & Co., Inc. vs. de la Rosa, L-21904, October 29, 1966.
7 8

Sections 34 and 86, Revised Ordinances of the City of Manila, Ordinance No. 1600. Section 11(b), Manila Charter. Dillon, Municipal Corporation, 5th Edition, Vol. III, pp. 1593-1594. Article 694(5), Civil Code. Section 5, Article XIV, Constitution.

10

11

12

Sitchon vs. Aquino, 98 Phil. 459, 464-466; Halili vs. Lacson, 98 Phil. 772, 774-775; Quinto vs. Lacson, 50 O.G. No. 29, pp. 5095-5096.
13

Vol. I, Nuevas Remedial Law, 1960 Ed., p. 597 and cases cited; Vol. 111, Moran Comments on the Rules of Court, 1963 ed., p. 274.
14

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 95279 July 25, 1991 ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN, Administrator, petitioner, vs. HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES, respondents. Bienvenido G. Martin for petitioner. Laurencio Saavedra for private respondents.

MELENCIO-HERRERA, J.:p Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan, which was ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent municipal employees implemented the demolition, for which reason they are also impleaded. The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 by Gregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino, said land was declared for the exclusive use of port facilities. On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San, surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the storage of copra. On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin San by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of the municipality; noting its antiquated and dilapidated structure; and. stressing the "clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." This was followed by another letter of 19 May 1989 of the same tenor. Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on 24 May 1989. Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4). On 7 August 1989, the Trial Court 1 denied the Writ of Prohibition and upheld the power of respondent Mayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal.

On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In its place sprang shanties and nipa huts, photographs of which have been attached to petitioner's Memorandum. On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822) 2 initially reversed the Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to order summarily, and without any judicial proceeding, the demolition of the quonset building, which was not a nuisance per se and that petitioner is in legal possession of the land on which the building stands by virtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration to petitioner of the building materials removed upon demolition, and the payment to it of attorney's fees of P10,000.00, were also ordered. However, upon reconsideration sought by reswever, upon reconsideration sought by respondent officials, Respondent Court 3 reversed itself on 13 June 1990 stating that "although Municipal Mayor Valencia initially issued an order demolition without judicial process, the deficiency was remedied when appellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oral argument after appellees (respondent officials) filed their answer." Respondent Court then quashed the Writ of Prohibition and set aside the order of restitution and payment of attorney's fees. Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal. The focal issue for determination is whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building. Respondent justify the demolition in the exercise of police power and for reasons of health, safety and general welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such power, invoking provisions of the Local Government Code. Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela . . ." It is not disputed that the quonset building, which is being used for the storage of copra, is located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should be relocated. And in the event that an immediate relocation of the building can not be accomplished, Section 16 of the Ordinance provides: A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within twelve (12) months from the approval of this Ordinance, otherwise the non-conforming use may be condemned or removed at the owner's expense. Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being in contravention of the requirements of due process, as originally held by the respondent Court. Moreover, the enforcement and administration of the provisions of the Ordinance resides with the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who may call upon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the Ordinance (id., Sec. 2, Ibid.). And any person aggrieved by the decision of the Zoning Administrator regarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals (id., Sec. 7, Ibid.). That a summary remedy can not be resorted to is further evident from the penal provisions of said Ordinance, reading: Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished by a fine of not less than fifty pesos (P50.00) but not more than two hundred pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six (6) months, or both, at the discretion of the Court . . . (ibid., Sec. 11). [Emphasis ours].

Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial remedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to be instituted judicial proceedings in connection with the violation of ordinances" (Local Government Code, Sec. 141 [2] [t]). Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet 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, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens 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. The provincial governor, district engineer or district health officer is not authorized to destroy private property consisting of dams and fishponds summarily and without any judicial proceedings whatever under the pretense that such private property constitutes a nuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se. A dam or fishpond may be a nuisance per accidenswhere it endangers or impairs the health or depreciates property by causing water to become stagnant. (Monteverde v. Generoso, supra). While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149 [ee]), it can not declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. [Municipal councils] 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 extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such. These things must be determined in the ordinary courts of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry . . . . If it be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board. The petitioner is entitled to a fair and impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal Council, 24 Phil. 47 [1913]). Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no compelling necessity for precipitate action. It follows then that respondent public officials of the Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the Court of Appeals, the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue. For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset building. WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SET ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the just compensation due petitioner for the demolition of its quonset building. SO ORDERED. Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes 1 Judge Salvador A. Memoracion, presiding. 2 Penned by Justice Conrado T. Limcaoco and concurred in by Justices Arturo B. Buena and Jainal D. Rasul, of the Fourteenth Division. 3 ibid.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-62050 November 25, 1983 JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents. Marciano C. Dating, Jr. and Jose & Fuentebella for petitioner. The Solicitor General for respondents.

ESCOLIN, J.:

+.wph!1

Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate Court, of the judgment of conviction handed down by the then Municipal Court of Daet, Camarines Norte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose Timoner, finding petitioner guilty of the crime of grave coercion, as follows:
t.hqw

WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 in the Revised Penal Code, and hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended party in the amount of P5,000.00 as damages, without subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby ordered ACQUITTED. The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner, then Mayor of Daet, Camarines Norte, accompanied by two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the complaining witness and the store belonging to one Lourdes PiaRebustillos. These establishments had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements. Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against Lourdes PiaRebustillos and others for judicial abatement of their stalls. The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per se. Dayaon was never able to reopen his barbershop business. Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense of grave coercion before the Municipal Court of Daet. As already noted, the said court exonerated the two policemen, but convicted petitioner of the crime charged as principal by inducement. On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present recourse.

Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful authority. We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit:
t.hqw

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; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (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. 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. The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended for closure by the Municipal Health Officer. In fact, the Court of First Instance of Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as a nuisance per-se. Thus:
t.hqw

Under the facts of the case, as well as the law in point, there is no semblance of any legality or right that exists in favor of the defendants to build a stall and conduct their business in a sidewalk, especially in a highway where it does not only constitute a menace to the health of the general public passing through the street and also of the unsanitary condition that is bred therein as well as the unsightly and ugly structures in the said place. Moreover, even if it is claimed and pretended that there was a license, permit or toleration of the defendants' makeshift store and living quarters for a number of years does not lend legality to an act which is a nuisance per se. Such nuisance affects the community or neighborhood or any 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 annoyance to the public by the invasion of its rights the fact that it is in a public place and annoying to all who come within its sphere [Baltazar vs. Carolina Midland, Ry, Co., 54 S.C. 242, 32 SB 258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260R, March 25, 1964; 61 O.G. 2487]. xxx xxx xxx ... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject of this complaint as well as those occupied by the impleaded defendants are nuisances per se and therefore orders the defendants to demolish the stall and vacate the premises immediately ... But even without this judicial pronouncement, petitioner could not have been faulted for having fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement of a public nuisance without judicial proceedings.
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ART. 699. The remedies against a public nuisance are: [l] A prosecution under the Penal Code or any local ordinance; or [2] A civil action; or [3] Abatement, without judicial proceedings. In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid recommendation of the Municipal Health Officer. Having then acted in good faith in the performance of his duty, petitioner incurred no criminal liability. Grave coercion is committed when "a person who, without authority of law, shall by means of violence, prevent another from doing something not prohibited by law or compel to do something against his will, either it be right or wrong." 1 The three elements of grave coercion are: [1] that any person be prevented by another from doing something not prohibited by law, or compelled to do something against his will, be it right or wrong; [2] that the prevention or compulsion be effected by violence, either by material force or such display of it as would produce intimidation and control the will of the offended party, and [3] that the person who restrained the will and liberty of another had no right to do so, or, in other words, that the restraint was not made under authority of law or in the exercise of a lawful right. 2 The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set aside and petitioner is acquitted of the crime charged. Costs de oficio. SO ORDERED.
1wph1.t

Makasiar (Chairman), Aquino, Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.

Footnotes

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1 Article 286, Revised Penal Code. 2 Justice Ramon C. Aquino, The Revised Penal Code, Book 11, 1976,p.1392.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee, vs. THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant. W. H. Lawrence, for appellant. W. L. Wright, for appellee. CARSON, J.: An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative. The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island. The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics. On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy. After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor how long they had been there when the boys found them. It appears, however, that some months before the accident, during the construction of the defendant's plant, detonating caps of the same size and kind as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to have been lying for a considerable time, and from the place where they were found would seem to have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap. No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is evidence that any effort ever was made to forbid these children from visiting the defendant company's premises, although it must be assumed that the company or its employees were aware of the fact that they not infrequently did so. Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen. The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they were found. The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard. It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company's track; that some of these caps were used in blasting a well on the company's premises a few months before the accident; that not far from the place where the caps were found the company has a storehouse for the materials, supplies and so forth, used by it in its operations as a street railway and a purveyor of electric light; and that the place, in the neighborhood of which the caps were found, was being used by the company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had the caps under its possession and control. We think also that the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they were found, with the expectation that they would be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the company or some of its employees either willfully or through an oversight left them exposed at a point on its premises which the general public, including children at play, where not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam about in pastime or in play. Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimidating or rather assuming that the blasting work on the company's well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman

employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the defendant company's directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious or negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its employees. Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code. ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in which any kind of fault or negligence occurs. ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them. xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties. xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage. ART. 1908 The owners shall also be liable for the damage caused 1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substances which may not have been placed in a safe and proper place. Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not established the liability of the defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence: (1) Damages to the plaintiff. (2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty. (3) The connection of cause and effect between the negligence and the damage. These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts developed in the case under consideration. It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents. But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant company's premises, and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise to the accident, which should be deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place where they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him. In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon. In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad company's premises, at a place where the railroad company knew, or had good reason to suppose, children would be likely to come, and there found explosive signal torpedoes left unexposed by the railroad company's employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable, left in such condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine. In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable. As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad company was liable for in injury received by an infant while upon its premises, from idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to the negligence of the company), the principles on which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is

according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the case." The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation or license to cross the premises of another can not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another's premises. Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States. On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and American, formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout." In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the defendant's premises, without defendant's express permission or invitation, and while there, was by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to, the defendant was under no obligation to make provision. We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the defendant company owed him no duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's premises. We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him there by manual force?" What difference, in reason we may observe in this case, is there between an express license to the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be killed, and which would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life." Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that (p. 515): Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises of another, says: In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.) The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do what will with his own property or that children should be kept under the care of their parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parent could in any event be imputed to the child so as to deprive it a right to recover in such cases a point which we neither discuss nor decide. But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred. Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is because we can not agree with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the case." As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express permission or invitation' but it is wholly different question whether such youth can be said to have been free from fault when he willfully and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by "the particular circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands. In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became frightened and ran away. True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries

which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances. The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily depends of his own acts and their consequences; and at the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1). We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the accident which inflicted the injury. The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.) The Patidas contain the following provisions: The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.) And they even said that when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit. 7, Partida 2.) According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.) And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in point. In that case the court said: According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and the injury there exists the relation of cause and effect; but if the injury produced should not be the result of acts or omissions of a third party, the latter has no obligation to repair the same, although such acts or omission were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of the injured party himself. The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient without proof that it, and no other cause, gave rise to the damage." See also judgment of October 21, 1903. To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and the damage there exists the relation of cause and effect; but if the damage caused does not arise from the acts or omissions of a third person, there is no obligation to make good upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is shown that the immediate cause of the damage has been the recklessness of the injured party himself. And again In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is duty of him who shall claim damages to establish their existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the principle, the first setting forth in detail the necessary points of the proof, which are two: An act or omission on the part of the person who is to be charged with the liability, and the production of the damage by said act or omission. This includes, by inference, the establishment of a relation of cause or effect between the act or omission and the damage; the latter must be the direct result of one of the first two. As the decision of March 22, 1881, said, it is necessary that the damages result immediately and directly from an act performed culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision of October 29, 1887.) Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.) (Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.) Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are many cases (personal injury cases) was exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction to require the application of "the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party were the immediate causes of the accident. The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to replace it. This produces the event giving occasion for damagesthat is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through his act or omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can not recover." We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the detonating caps, the property of defendant, and carrying the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of this case, we neither discuss nor decide. Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and ten days thereafter let the record be returned to the court wherein it originated, where the judgment will be entered in favor of the defendant for the costs in first instance and the complaint dismissed without day. So ordered. Arellano, C.J., Torres and Moreland, JJ., concur. Johnson, J., concurs in the result.

Footnotes
1

Phil. Rep., 85.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3422 June 13, 1952

HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, 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 requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario. It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the 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 one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, 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 that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8. The doctrine may be stated, in short, as follows: 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. (See 65 C.J.S., p. 455.) The principle reason for the doctrine is that the condition or appliance in question although 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 is an 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 attract the 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 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.

There are numerous cases in which the attractive nuisance doctrine has not been 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 of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170. Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by petitioner that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual needs no further discussion. The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs. Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.

Separate Opinions PABLO, J., disidente: La recurrente tiene dos estanques de agua, de nueve pies de profundidad, como anexos indispensables a su fabrica de hielo; estan constuidos dentro de un solar que esta cercado pero con una puerta de entrada siempre abierta en donde pasan libremente los coches que distribuyen hielo y las personas que lo compran de la fabrica; cualquiera puede entrar sin distincion alguna, no hay ningun guardia en la puerta que impida la entrada de cualquiera persona. A dichos dos entanques tiene libre acceso el publico. Es evidente que la recurrente debio haber cercado dichos estanques como medida ordinaria de precaucion para que los ninos de corta edad no pueden entrar, tanto mas cuanto que los bordes de esos estanques solo tienen un pie de altura la superficie del terreno. El cerco puesto en el perimento del solar, con puerta continuamente abierta, no es suficiente medida para impedir que los ninos puedan meterse en los entanques. Ese cerco con su puerta abierta es como un velo transparente con que se cubre una mujer semidesnuda en un teatro, pica la curiosidad y atrae la atencion del publico. Los nios son curiosos por naturaleza y los de ocho aos no tienen perfecto conocimiento de las cosas. Alucinados por la natural atraccion de las aguas, se meteran en ellas con peligro de sus vidas, a menos que exista algo que les impida. Voto con la confirmacion de la decision apelada.