TOPIC: NUISANCE

Hidalgo Enterprises Inc. vs Balandan

G.R. No. L-3422
June 13, 1952

Facts:
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 anyone 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."

Issue:
Whether or not petitioners tanks are classified as attractive nuisance.

Ruling:
No. 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.
Doctrine of attractive nuisance: 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.

Estate of Gregoria Francisco vs CA,

GR No. 95279,
July 26, 1991

Facts:
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. Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal.
Issue:
Whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building.

Ruling:
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.
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

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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.

Parayno v. Jovellanos
GR No. 148408
July 14, 2006

FACTS:
Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some residents of Calasiao petitioned the Sangguniang Bayan
(SB) of said municipality for the closure or transfer of the station to another location. The matter was referred to the Municipal Engineer, Chief of Police,
Municipal Health Officer and the Bureau of Fire Protection for investigation. Upon their advise, the Sangguniang Bayan recommended to the Mayor the
closure or transfer of location of petitioners gasoline station. In Resolution No. 50, it declared that the existing gasoline station is a blatant violation and
disregard of existing law. According to the Resolution, 1) the gasoline filling station is in violation of The Official Zoning Code of Calasiao, Art. 6, Section
44, the nearest school building which is San Miguel Elementary School and church, the distances are less than 100 meters. (No neighbors were called as
witnesses when actual measurements were done by HLURB Staff, Baguio City dated 22 June 1989); 2) it remains in thickly populated area with
commercial/residential buildings, houses closed (sic) to each other which still endangers the lives and safety of the people in case of fire; 3) residents of
our barangay always complain of the irritating smell of gasoline most of the time especially during gas filling which tend to expose residents to illness,
and 4) It hampers the flow of traffic. Petitioner moved for the reconsideration of the resolution but was denied by the SB. Hence she filed a case before
the RTC claiming that the gasoline filling station was not covered under Sec 44 of the mentioned law but is under Sec 21. Case was denied by the court
and by the CA. Hence this appeal.

ISSUE:
Whether or not the closure/transfer of her gasoline filling station by respondent municipality was an invalid
exercise of the latters police powers

HELD:
Respondent municipality invalidly used its police powers in ordering the closure/transfer of petitioner's gasoline station. While it had, under RA 7160, the
power to take actions and enact measures to promote the health and general welfare of its constituents, it should have given due deference to the law
and the rights of petitioner. A local government is considered to have properly exercised its police powers only when the following requisites are met:
(1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State and (2) the means
employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive.The first requirement refers
to the equal protection clause and the second, to the due process clause of the Constitution. Respondent municipality failed to comply with the due
process clause when it passed Resolution No. 50. While it maintained that the gasoline filling station of petitioner was less than 100 meters from the
nearest public school and church, the records do not show that it even attempted to measure the distance, notwithstanding that such distance was
crucial in determining whether there was an actual violation of Section 44. The different local offices that respondent municipality tapped to conduct an
investigation never conducted such measurement either. Moreover, petitioner's business could not be considered a nuisance which respondent
municipality could summarily abate in the guise of exercising its police powers. The abatement of a nuisance without judicial proceedings is possible
only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property, hence, it cannot be
closed down or transferred summarily to another location.

Lucena Grand Central Terminal, Inc vs Jac Liner Inc

GR NO. 148339
February 23, 2005

Facts:
Respondent assailed, via a petition for prohibition and injunction against the City of Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena
before RTC City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that the same constituted an invalid exercise of police power, an
undue taking of private property, and a violation of the constitutional prohibition against monopolies. Ordinance No. 1631: AN ORDINANCE GRANTING
THE LUCENA GRAND CENTRAL TERMINAL, INC., A FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A COMMON BUS-
JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA; Ordinance No. 1778: AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY
OF LUCENA OF ALL BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS PURPOSE, AMENDING ORDINACE NO. 1420,
SERIES OF 1993, AND ORDINANCE NO. 1557, SERIES OF 1995. These ordinances, by granting an exclusive franchise for twenty five years, renewable
for another twenty five years, to one entity for the construction and operation of one common bus and jeepney terminal facility in Lucena City, to be
located outside the city proper, were professedly aimed towards alleviating the traffic congestion alleged to have been caused by the existence of
various bus and jeepney terminals within the city, as the Explanatory Note-Whereas Clause adopting Ordinance No. 1778 states: WHEREAS, in line with
the worsening traffic condition of the City of Lucena, and with the purpose of easing and regulating the flow of the same, it is imperative that the Buses,
Mini-Buses and out-of-town jeepneys be prohibited from maintaining terminals within the City, but instead directing to proceed to the Lucena Grand

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Central Terminal for purposes of picking-up and/or dropping off their passengers.

Respondent, who had maintained a terminal within the city, was one of those affected by the ordinances. Petitioner claiming legal interest as the
grantee of the exclusive franchise for the operation of the common terminal, was allowed to intervene in the petition before the trial court.

Issues:
1. whether the trial court has jurisdiction over the case, it not having furnished the Office of the Solicitor General copy of the orders it issued therein
2. whether the City of Lucena properly exercised its police power when it enacted the subject ordinances.

Held:
1. SEC. 4. Local government ordinances. In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney
of the local government unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor
General shall also be notified and entitled to be heard.

Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor General about the action is a jurisdictional defect. In fact,
Rule 3, Section 22 gives the courts in any action involving the validity of anyordinance, inter alia, discretion to notify the Solicitor General. More
importantly, however, this Court finds that no procedural defect, fatal or otherwise, attended the disposition of the case. For respondent actually served
a copy of its petition upon the Office of the Solicitor General on October 1, 1998, two days after it was filed. The Solicitor General has issued a
Certification to that effect. There was thus compliance.

2. Respecting the issue of whether police power was properly exercised when the subject ordinances were enacted: As with the State, the local
government may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests of the public
generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary
for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a concurrence
of a lawful subject and lawful method. That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In enacting said law,
therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve
congestion of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the
state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. The questioned
ordinances having been enacted with the objective of relieving traffic congestion in the City of Lucena, they involve public interest warranting the
interference of the State. The first requisite for the proper exercise of police power is thus present.

Respondents suggestion to have this Court look behind the explicit objective of the ordinances which, to it, was actually to benefit the private interest of
petitioner by coercing all bus operators to patronize its terminal does not lie. This leaves for determination the issue of whether the means employed by
the Lucena Sangguniang Panlungsod to attain its professed objective were reasonably necessary and not unduly oppressive upon individuals. With the
aim of localizing the source of traffic congestion in the city to a single location, the subject ordinances prohibit the operation of all bus and jeepney
terminals within Lucena, including those already existing, and allow the operation of only one common terminal located outside the city proper, the
franchise for which was granted to petitioner. The common carriers plying routes to and from Lucena City are thus compelled to close down their
existing terminals and use the facilities of petitioner. A due deference to the rights of the individual thus requires a more careful formulation of solutions
to societal problems. From the memorandum filed before this Court by petitioner, it is gathered that the Sangguniang Panlungsod had identified the
cause of traffic congestion to be the indiscriminate loading and unloading of passengers by buses on the streets of the city proper, hence, the
conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the city streets.

Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright proscription against the existence of all terminals,
apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court has not been enlightened. If
terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets instead of inside the terminals, then
reasonable specifications for the size of terminals could be instituted, with permits to operate the same denied those which are unable to meet the
specifications. In the subject ordinances, however, the scope of the proscription against the maintenance of terminals is so broad that even entities
which might be able to provide facilities better than the franchised terminal are barred from operating at all. Petitioner argues, however, that other
solutions for the traffic problem have already been tried but proven ineffective. But the grant of an exclusive franchise to petitioner has not been shown
to be the only solution to the problem.

While the Sangguniang Panlungsod, via Ordinance No. 1557, previously directed bus owners and operators to put up their terminals outside the
poblacion of Lucena City, petitioner informs that said ordinance only resulted in the relocation of terminals to otherwell-populated barangays, thereby
giving rise to traffic congestion in those areas. Assuming that information to be true, the Sangguniang Panlungsod was not without remedy. It could
have defined, among other considerations, in a more precise manner, the area of relocation to avoid such consequences. Absent any showing, nay
allegation, that the terminals are encroaching upon public roads, they are not obstacles. The buses which indiscriminately load and unload passengers
on the city streets are. The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to terminals. Neither
are terminals public nuisances as petitioner argues. For their operation is a legitimate business which, by itself, cannot be said to be injurious to the
rights of property, health, or comfort of the community. But even assuming that terminals are nuisances due to their alleged indirect effects upon the
flow of traffic, at most they are nuisance per accidens, not per se. Unless a thing is nuisance per se, however, it may not be abated via an ordinance,
without judicial proceedings, as was done in the case at bar. As for petitioners claim that the challenged ordinances have actually been proven effective
in easing traffic congestion: Whether an ordinance is effective is an issue different from whether it is reasonably necessary. It is its reasonableness, not
its effectiveness, which bears upon its constitutionality. If the constitutionality of a law were measured by its effectiveness, then even tyrannical laws
may be justified whenever they happen to be effective. The Court is not unaware of the resolutions of various barangays in Lucena City supporting the
establishment of a common terminal, and similar expressions of support from the private sector, copies of which were submitted to this Court by
petitioner. The weight of popular opinion, however, must be balanced with that of an individuals rights.

Perez vs Sps. Madrona

GR No. 184478
March 21, 2012

Facts:
Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of a residential property located in Lot 22, Block 5, France

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Street corner Italy Street, Greenheights Subdivision, Phase II, Marikina City. In 1989, respondents built their house thereon and enclosed it with a
concrete fence and steel gate. Respondents received a letter dated May 25, 1999 from petitioner Jaime S. Perez, Chief of the Marikina Demolition Office
which in essence says that the construction of their fence and gate was illegal and that the respondents are given 7 days to remove such structure and
failing to remove such within the said grace period will be ground for its demolition. Another letter was sent by petitioner on February 28, 2001 with the
same contents as the May 25, 1999 letter. This prompted the respondents to file an injunction against the petitioner. Petitioner claims that it is clear
from the records of the case that respondents concrete fence was constructed on a part of the sidewalk in gross violation of existing laws and ordinance
and thus, they do not have absolute right over the same. According to petitioner, the encroachment is clearly apparent in the Sketch Plan of the
government geodetic engineer as compared to the Location Plan attached to respondents complaint. He likewise contends that the clearing of the
sidewalks is an infrastructure project of the Marikina City Government and cannot be restrained by the courts as provided in Presidential Decree No.
1818.

Issue:
Whether petitioner Perez can summarily abate the fence and gate of the respondents

Held:
No. he cannot because its not a nuisance per se. If petitioner indeed found respondents fence to have encroached on the sidewalk, his remedy is not
to demolish the same summarily after respondents failed to heed his request to remove it. Instead, he should go to court and prove respondents
supposed violations in the construction of the concrete fence. Indeed, unless a thing is a nuisance per se, it may not be abated summarily without
judicial intervention. Respondents fence is not a nuisance per se. By its nature, it is not injurious to the health or comfort of the community. It was built
primarily to secure the property of respondents and prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still
exists. If petitioner believes that respondents fence indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary abatement without judicial intervention is unwarranted.