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TORTS/NUISANCE ARTICLE 694 VELASCO vs. MANILA ELECTRIC CO.- Nuisance Noise may constitute a nuisance but it must be of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities. FACTS: Velasco bought three (3) adjoining lots. He sold two (2) of these to Meralco and maintained the last one as his residence. Meralco constructed on their lots a sub-station at a distance of 10-20 meters away from appellants house. The company also built a concrete wall at the sides along the streets but put up only an interlink wire fence (previously a sawali wall) on the boundary with appellant. An unceasing sound emanates from the substation, caused by transformers. Such, appellent contends, constitute a nuisance which has worsened his health condition and has lowered the value of his property. Several witnesses came forth but their testimonies were vague and imprecise. Resort was made to a sound level meter. The audible sound from different areas in Velasos property was measured in terms of decibels. It was found that the sound exceeded the average intensity levels of residences. ISSUE: Can there be a nuisance caused by noise or sound? HELD: Yes. Several American decisions are cited showing that noise is an actionable nuisance. In fact, Kentucky v. Anderson dealt with noise emanating from electrical machinery and appliances. The determining factor, however, is not just intensity or volume. It must be of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities. However, appellants testimony is too plainly biased. Nor are the witnesses testimonies revealing on account of different perceptions. Consequently, sound level meters were used. As stated above, the sound exceeds average residential decibels. Also, the testimonies of appellants physicians (which were more reliable since they actually treated him, unlike the appellees) point to the noise as having caused appellant loss of sleep, irritation and tension weakening his constitution. Notable lastly is the fact that in the Kentucky case, where the nuisance was ordered abated, the average reading was 44 decibels while in the instant, the readings include 52, 54, and 55. The decision goes on to discuss the proper award of damages. But Meralco was ordered either to transfer the facilities or reduce the produced sound to around. ___________________ G.R. No. L-33794 May 31, 1982 MANILA ELECTRIC COMPANY, petitioner, vs. COURT OF APPEALS and PEDRO J. VELASCO, respondents. In this Petition for the review of a Decision of the Court of Appeals, 1 judgment may be rendered on the basis of the following enumeration of facts: 1. On February 12, 1948, respondent Pedro J. Velasco (VELASCO, for short) purchased three (3) lots from the People's Homesite and Housing Corporation (PHHC, for short), located at the corner of the then South D and South 6 Streets of Quezon City. 2. The Deed of Sale, among others, provided that: (b) The properties herein sold and any other construction that shall be made thereon shall be usedexclusively for residential purposes and no business, industry or factory of whatever kind or nature shall be allowed or permitted within the premises. xxx xxx xxx (c) The vendor ... shall have the right to enter the premises ... for the purpose of ... installing electric ... lines or any other utility for the community. xxx xxx xxx II. This sale is made under the following terms and conditions the violation of any of which shall entitle the Vendor to rescind this contract and seek the cancellation of the title issued as a result hereof and to repossess the property and dispose of the same as if there had been no previous sale thereof, and said terms and conditions shall likewise be annotated on the certificate or title concerned and considered a burden to the property. xxx xxx xxx III. The terms, burdens, conditions, limitations, incumbrances and restrictions herein contained shall be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto and any reference to the Vendor or Vendee herein shall be understood to include their respective heirs, executors, administrators, successors and assigns. The foregoing conditions were substantially, but not word for word, annotated on the title issued to VELASCO. 3. On January 31, 1952, VELASCO sold two of the aforesaid three lots (the PROPERTY, for short) to petitioner Manila Electric Company (MERALCO, for short), which is the public service company furnishing electric current to the Manila area, including Quezon City. 4. The following year, MERALCO established a substation within the PROPERTY, the construction of which "was started in September, 1953 and was finished the following November". 2 5. On November 29, 1954, VELASCO wrote a letter to MERALCO stating, inter-alia: In mild spirit, the time has come when the undersigned is compelled to call your attention to a previously anticipated wouldbe effect of your electric sub-station, in order to avoid possible bad effects and "repercussions and complications" which might be too late to remedy. xxx xxx xxx The undersigned with his family tried to tolerate for a while, but the severe noise without let up, plus the electrification of the ground, especially that in which the artesian well of the undersigned is located, made life of the whole family unbearable, in a residential district which, by your sub-station, was illegally converted into dangerous factory-like site. (Exhibit "J") 6. The following year, on February 1, 1955, VELASCO filed a complaint in Civil Case No. Q-1355 of the Court of First Instance of Rizal (the NUISANCE CASE, for short) praying that MERALCO be ordered "to remove and abate the nuisances herein complained against," with damages. The trial Court dismissed the complaint but, on appeal to this Court, the dismissal was set aside and, on August 6, 1971, MERALCO was "ordered to either transfer its substation at South D and South 6 Streets, Diliman, Quezon City, or take appropriate measures to reduce its noise at the property line between the defendant company's compound and that of the plaintiff-appellant to an average of forty (40) to fifty 50 decibels within 90 days from finality of this decision;" 3 7. In the meanwhile, on November 23, 1957, VELASCO had instituted a complaint in Civil Case No Q-2716 of the Court of First Instance of Rizal (the CANCELLATION CASE, for short) for the rescission of the sale of the PROPERTY to MERALCO and to collect rentals for the use and occupation of the PROPERTY while in the latter's possession. The complaint was dismissed by the trial Court on the ground that the NUISANCE CASE and the CANCELLATION CASE had split VELASCO'S cause of action such that the CANCELLATION CASE was precluded from being instituted. On appeal to the Court of Appeals, the judgment of the trial Court was reversed on the finding that no cause of action was split, considering that abatement of nuisance was distinct and separate from rescission of the contract of sale in favor of ME RALCO Upon the recited facts, we have resolved to set aside the decision of the Appellate Tribunal, and to dismiss the complaint in the CANCELLATION CASE. The factors relied upon are: THE RIGHT OF ACTION.- The contract of sale between PHHC and VELASCO provided that only constructions exclusively for "residential purposes" shall be built on the PROPERTY. That requirement, naturally, was binding on VELASCO himself, as it is also binding on MERALCO as his assignee. Be that as it may, that contract implies that it is PHHC itself which has the right of action against any assignee of VELASCO. Cancellation of the title to the PROPERTY would be by virtue of the condition imposed in the PHHC- VELASCO contract, and not by virtue of the contract between VELASCO and MERALCO. The exact relevant wording of the contract between PHHC and VELASCO was as follows: ... the violation of any of which (inclusive of the "residential purposes" restriction) shall entitle the vendor (PHHC) to rescind this contract and seek the cancellation of the title issued as a result hereof and to repossess the property. It will be seen that if the PROPERTY were used by VELASCO himself not for "residential purposes", PHHC can rescind "this contract", which is the contract between PHHC and VELASCO, and PHHC can "seek the cancellation of the title" issued as a result "of this contract". The PROPERTY' having been transferred to MERALCO, PHHC cannot rescind the contract between VELASCO and MERALCO because PHHC was not a party to that VELASCOMERALCO contract. PHHC's redress would be to directly "seek cancellation of the title" of MERALCO, and torepossess the PROPERTY. Considering that redress for the use of the PROPERTY for nonresidential purposes is the cancellation of the title and repossession by PHHC, it should be clear that the right of action based on violation of the restriction has to be with PHHC and not with VELASCO. If title to the PROPERTY is cancelled, and PHHC repossesses, no damage will be suffered by VELASCO who had already sold and had received the value thereof. The damage will be borne solely by MERALCO. Hence, it cannot be that VELASCO can have a right of action against MERALCO for violation of the restriction. RESIDENTIAL PURPOSES.As the Court understands it, PHHC's requirement in regards to "residential purposes" has not been made particularly in reference to the three lots sold to VELASCO, but it relates to the entirety of a bigger parcel of land subdivided for sale to the public by PHHC. the term "residential purposes", therefore, should be given a meaning viewed from the standpoint of PHHC, and not from that of VELASCO. From the PHHC, or community, point of view, the construction of an electric sub-station by the local electric public service company within the subdivision can be deemed encompassed within "residential purposes" for the simple reason that residences are expected to be furnished with electrical connection. If there is no electric current because of the lack of a sub- station, the

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residences within the entire subdivision area could be valueless for residential purposes. The need for public services in residential areas is even recognized in the PHHC Deed of Sale in favor of VELASCO which provides that "the vendor ... shall have the right ... to enter the premises ... for the purpose of ... installing water pipes, gas, electric and telephone lines or any other utility for the community where the property herein involved is located" It may further be pointed out that, in respect of Quezon City as a municipal corporation, the PROPERTY was within a residential district. Notwithstanding, the authorities of Quezon City granted a permit for the construction of the sub-station, thereby conceding that a sub-station is not necessarily non-residential. CONTRACTUAL ESTOPPEL.- Even if the requirement for "residential purposes" were a condition imposed by VELASCO himself in the contract of sale between VELASCO and MERALCO, the former can no longer cancel the contract on the alleged violation of the condition. When MERALCO erected the sub-station in September, 1953, VELASCO did not object to its construction as such. In his letter, Exhibit "M", dated September 26, 1953, VELASCO merey asked for "technical assurance that your electric sub-station is not dangerous to neighbors nor would that be a nuisance". It could not be that he did not then realize that the sub-station was not a residence. He must have viewed it as for "residential purposes". According to Exhibit "J", VELASCO's letter of September 29, 1954, or one year after the sub-station had been established, he "with his family tried to tolerate (it) for a while". Actually, what was ultimately objected to by VELASCO was the noise of the substation; but there was no original and timely objection to the establishment itself of the sub-station as being not for residential purposes. If there had been no noise whatsoever from the substation, no controversy would have arisen. Contracts should be given effect as the parties construe it. "Acts done by the parties to a contract in the course of its performance are admissible in evidence upon the question of its meaning as being their own contemporaneous interpretation of , its terms". 4 Thus, VELASCO should be held as estopped from seeking cancellation of his sale of the PROPERTY to MERALCO because the sub-station, while it was built, was considered by VELASCO as not violative of the requirement for "residential purposes". Estoppel against VELASCO has set in. COLLATERAL ESTOPPEL BY JUDGEMENT-MERALCO had pleaded before the trial Court that the filing of the NUISANCE CASE "has barred the filing of the complaint in this" CANCELLATION CASE. The trial Judge dismissed the Complaint on the ground that the NUISANCE CASE and the CANCELLATION CASE had split a single cause of action and that the CANCELLATION CASE being the later proceeding was improperly instituted. We agree with the Appellate Tribunal that there was no split of a single cause of action, because the cause of action for abatement of nuisance is different from a cause of action for cancellation of contract. However, it does not mean that a judicial proceeding cannot be barred by a previous case involving another cause of action. The principle applicable would be estoppel by judgment or, more specifically, "collateral estoppel by judgment". That procedural matter is treated in 46 Am Jur 2d. pp. 563-566 as follows: 5 Although there are some cases that confine the term "res judicata" to that aspect of the doctrine which precludes the relitigation of the same cause of action the term, in its literal meaning of a "matter adjudged", is broad enough to include, in addition, the other aspect of the doctrine, which precludes the relitigation of the same facts or issues in a subsequent action on a different cause of action, and the term "res judicata" is, indeed, so used in numerous cases. In this respect, it has been declared that if a party is barred from relitigating a matter, it can make little difference to him by what name the lethal doctrine is called. On the other hand, the confusion and looseness of thought resulting from the absence of distinctive terms to describe each aspect of the doctrine has been well pointed out. The term "estoppel" has frequently been used in connection with the doctrine of res judicata, not only with respect to the relitigation of particular issues in a subsequent action on a different cause of action, but also with respect to the relitigation of the same cause of action. In some cases, the term "estoppel by judgment" has been used to described the effect of a judgment to preclude relitigation of the same cause of action, and the phrase, "estoppel by verdict", to describe the effect of the former proceeding to preclude further litigation of the particular facts on which the jury necessarily made findings in the former action. The decisions have not, however, been uniform in this respect, and in some opinions the term 'estoppel by judgment' has been used to describe the rule precluding the litigation of particular issues in a subsequent action on a different cause of action. Sometimes, the term "estoppel by record" is so used. The more recent tendency is to describe the latter aspect of the doctrine of res judicata as a "collateral estoppel" or a "collateral estoppel by judgment", as distinguished from the "direct estoppel by judgment" where the earlier and later causes of action are Identical.6 More and more, the tendency of procedural law is to obviate multiplicity of suit such that if an issue has been resolved in one cause of action, it cannot be relitigated in a subsequent case filed on a different cause of action. In Hoag v. New Jersey, 2L Ed. 2d., 913-919, the following was said by the United States Supreme Court: A common statement of the rule of collateral estoppel is that "where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action". Restatement, Judgments, #68(l). As an aspect of the broader doctrine of res judicata, collateral estoppel is designed to eliminate the expense, vexation, waste, and possible inconsistent results of duplicatory litigation. See Developments in the Law Res Judicata, 65 Hary L Rev. 818, 820. (Emphasis supplied) In a previous case, this Court has similarly stated: The basis of the judgment was the stipulation of facts submitted by the parties and their agreement fixing the liability of the defendant therein for rentals and the manner in which the same was to be paid by him. It was a final judgment on the merits, and said judgment, under the express provisions of section 44, paragraph (b) of Rule 39 of the Rules of Court, is conclusive between the parties, not only as to the question on which the parties made stipulation but also as to any other possible issue which the parties could have raised in the case. The fact that the defendant in that action, plaintiff-appellant in this, did not raise that issue in the previous case is no reason for allowing him to raise the same issue in the action he has instituted to annul the said judgment.The principle of res judicata applicable is what is known as estoppel by judgment and in the language of Mr. Justice Field in the case of Cromwell vs. Sac Country, 94 U.S., 351, cited in Pealoza vs. Tuason, 22 Phil., 303, It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. 7 When VELASCO instituted the NUISANCE CASE, he conceded, which he is now estopped to deny, that MERALCO had the right to establish the sub-station within the PROPERTY without violation of the restriction to "residential purposes". What he subsequently alleged, after the sub-station had become operative, was that the sub-station, because of the generated noise, had become a nuisance which should be abated. Although the propriety of the establishment of the sub-station was not a controverted matter in the NUISANCE CASE, it was a tacit admission on the part of VELASCO, which can form part of an estoppel within the NUISANCE CASE. It would not be good law to allow him now to take the position, even if he had the right of action, that the construction of the sub-station violated the restriction provided for by PHHC. If the present standpoint of VELASCO should be upheld, then the procedurally wrong result would be that, after this Court had decided that the sub-station can remain within the PROPERTY with reduction of the noise, the Appellate Tribunal, a subordinate tribunal, can subsequently nullify the decision of this Court and order the removal of the sub-station from the PROPERTY. WHEREFORE, considering the foregoing legal considerations, the Decision and Resolution of respondent Court of Appeals in its CAG.R. No. 30488-R are reversed, and the Complaint filed in the case at bar is ordered dismissed. Without costs. SO ORDERED. _____________ Bengzon vs. Province of Pangasinan 62 Phil. 816 Facts ; This is an action for damages for maintaining a nuisance continuously injurious to the plaintiff and his family by reason of the maintenance and operation of a stand pipe, pumping station and open reservoir for the storage of water. Plaintiff and his family lived in a two-story nipa and wooden house constructed on a lot also owned by plaintiff. He had been living there for 27 years. Defendant constructed a reinforced concrete stand pipe 28 meters high and 9 meters in diameter. Within the base of the cylindrical tank were three machines. In the side of the tank nearest the plaintiffs residence and at a distance of 3.4 meters was a chimney which rose to about the height of the gable of the house. The tank itself was 3.8 meters from plaintiffs house. Plaintiff claimed that the plant emitted smoke and a disagreeable odor; that the chimney emitted sparks which, if carried by the wind, might cause his house to catch fire; and that in case of an earthquake the tank might fall and crush his house and its occupants. The lower court decided against the plaintiff. Held ; In locating its pumping station within 3.8 meters from the house of the plaintiff, the defendant should reasonably have foreseen that the noise, vibrations, smoke, odor and sparks coming from the plant during its operation, not only during the day but during the night as well, would cause a constant annoyance,, discomfort and danger both to the property of the plaintiff and the health and comfort of himself and his family. The chimney which is just opposite the plaintiffs house at a distance of only 3.4 meters emits smoke, gases of crude oil and gasoline and occasionally sparks as well. But the evidence as a whole leaves us with the clear conviction that the construction and operation of this pumping plant in such close proximity to the plaintiffs residence has rendered the same practically uninhabitable without exposing to risk the comfort, health and in cases of fire, even the lives of the plaintiff and his family. We find from the preponderance of evidence that the fair present value of the appellants premises involved in this suit is P3,000.00;

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and as under the circumstances, the maintenance of the nuisance is practically tantamount to an expropriation, we have concluded that the defendant-appellee should be and it is hereby required and adjudged to pay the plaintiff-appellant the sum of P3,000.00. ____________ MACARIO SOLIS, FLORENTINO JOYA, JULIAN MONTANO, and GREGORIO TRIAS, plaintiffs-appellees,vs. BENEDICTA PUJEDA, VALENTIN GIONGCO, and ROMAN ARANAS, defendantsappellants. The defendant in this case was convicted of the crime of having opium in his possession without authority of law. His appeal is based solely upon the proposition that the evidence is not sufficient to support the conviction. The conviction is based upon the evidence of three witnesses of the prosecution, namely, Jose Mendoza. Alejo Hilario, and Antonio Aquino. They assert in substance that while they were on a certain street in the town of Cavite they noticed the accused, a Chinaman, who was passing along the street, acting very suspiciously. They called to him to stop, but, instead of doing so, he started to run. They thereupon pursued and overtook him and compelled him to go with them to the presidencia. Arriving there they compelled him to take everything out of his pockets. Among the things brought forth was, they claim, a small quantity of opium done up in paper. The accused denies absolutely the story told by these witnesses. He asserts that he never used opium in any way; that he did not deal in the drug; that at the time of his arrest he had no opium in his possession; that the opium, if any, found on him in the presidencia was placed in his pocket by the witnesses above named and then therefrom on the search. In support of this story he presented the testimony of three persons, members of the Constabulary, one a sergeant, another a corporal, and the third a private. They were at the time dressed in civilian clothes and were engaged under the orders of their officers in making a quite search for criminals in that locality. They assert that while standing upon the street on which the accused was arrested Jose Mendoza came to them and asked them if they did not want to make some money; that they asked him in what way he proposed that the money should be made; that he replied that he had some opium and that they should take it and put it in the pocket of some Chinaman, whereupon he would arrest the Chinaman; that in all probability the Chinaman would thereupon try to bribe them and then would come their opportunity to make the money; that he showed them the opium and the paper in which it was wrapped. These witnesses further assert that after they had rejected the proposition Mendoza took the opium and put it in his pocket. They stood there together for a short time afterwards, when they saw a policeman, Alejo Hilario, coming down the street. Mendoza ordered Hilario to arrest the accused, alleging as a reason therefor that he might show some forbidden thing in his possession. When the accused came along Mendoza ordered Hilario to stop him, which he did. Thereupon Mendoza approached the accused, took from his pocket the opium he had previously shown the witnesses and surreptitiously inserted it in the pocket of the accused. These witnesses testified that they followed Mendoza and his companions when they took the accused to the presidencia. They saw the accused when he was searched and saw the opium when it was produced at that time. They declared unhesitatingly that the opium was the same that he had seen shown them by Mendoza and was wrapped in the identical paper in which it was then inclosed. While the witnesses for the prosecution assert that the Chinaman thereupon offered them three 20-peso bills if they would let him go and say nothing about his possession of the opium, the Constabulary soldiers testified that no such thing happened. Mendoza does not deny that he was on the street at the place and time alleged by the Constabulary soldiers and admits that they were also present at the presidencia when the Chinaman was searched. He does not directly deny the story told the Constabulary soldiers. The denial results by inference from the contradictory stories told by the two sets of witnesses. The trial court based its rejection of the testimony of the Constabulary soldiers upon the ground that it was unreasonable that Mendoza should have tried to induce them to enter into a conspiracy to defraud the Chinaman, asserting that if Mendoza had thought of doing any such thing he would have kept it to himself instead of inviting others to participate with him. This is correct without doubt to a certain extent, but we do not regard it as controlling. If Mendoza had carried out the scheme according to the theory of the trial court, while he would not have exposed himself to the mercy of the Constabulary soldiers, he would, nevertheless, have been met with the proposition on the trial that he had placed the opium in the pocket of the accused, and he would have had his testimony alone against the testimony of the Chinaman; whereas, if he had succeeded in inducing the Constabulary soldiers to enter the conspiracy with him, his testimony against the Chinaman would have been supported by that of three other persons. From the record, we regard the story told by the Constabulary soldiers fully as reasonable as that told by Mendoza. Mendoza presents as the only reason why he ordered the arrest of the Chinaman that he was ating suspiciously. He did not say in what way he was acting suspiciously. He did not say in what way he was acting suspiciously or what was the particular act or circumstance which aroused his curiosity. He said in that connection: I told Alejo Hilario I had suspicions that he had some prohibited thing which he carried on his person. When asked to tell what prohibited thing he suspected, he said: There are many things which are prohibited which might be used to assault a person with, or a pointed instrument which might be used to strike with or with which a crime might be done against the government of robbery in his some house, or opium on his person. In another place he said: I just said to Alejo Hilario that I had suspicions of this Chinaman, without saying what my suspicions were. Further on he said: Yes, I followed along behind Hilario and the accused to the police station. I wanted to see if he had committed a crime. . . . This testimony of the witness does not present any clear reason why he arrested the Chinaman. He arrested him because, as he said, I wanted to see if he had committed a crime. Among free men and under constitutional and statutory guaranties of personal liberty, this furnishes no reason whatever why a person should be arrested. We believe that the testimony of these three witnesses for the defendant, given as it is by person whose reputation is apparently good and whose allegations have not been discredited in any way, is strong evidence in the case and sufficient to raise a reasonable doubt of the guilt of the accused. The trial court itself in no way impeached the credibility of those witnesses except to say that their story was unreasonable. We do not believe it to be so unreasonable that it ought to be rejected entirely. We regard it as reasonable as the story told by Mendoza and as likely to have been the true history of the occurrence as that given by the witnesses for the prosecution. For the reasons the judgment of conviction is reversed and the defendant acquitted. ______________ ARTICLE 697 RAMCAR, INC., petitioner, vs. EUSEBIO S. MILLAR, ET AL., respondents. October 31, 1962 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 defendant-appellee 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

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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. _____________ ARTICLE 697 Jose 'Pepito' Timoner vs. People of the Philippines and The Honorable Court of Appeals, IV Division (G.R. No. L-62050, November 25, 1983, 125 SCRA 830) FACTS: Petitioner is the mayor of the town of Daet in Camarines Norte. He ordered the demolition of the stalls in Maharlika Highway, even showing himself up in those stalls during the demolition, after these establishments had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the complaining witness and the store belonging to one Lourdes PiaRebustillos. Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against Lourdes Pia-Rebustillos and others for judicial abatement of their stalls. The complaint alleged that these stalls constituted public nuisances as well as nuisances per se. Dayaon was never able to reopen his barbershop business. ISSUE: Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful authority. HELD: 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: 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; (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: 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.