NUISANCE

ART. 694

Article 699 provides for the following remedies against public nuisance:

RTC JUDGE CAMILO E. TAMIN v. COURT OF APPEALS, VICENTE

MEDINA and FORTUNATA ROSELLON, respondents.
1. A prosecution under the penal code or any local ordinance
2. civil action
3. abatement without judicial proceedings In the present case, the
municipality chose to file a civil action for the recovery of possession of the
parcel of land occupied by the PR. Under the Local Government Code, the
Sangguniang Bayan has to first pass an ordinance before summarily abate a
public nuisance.

Facts:
The complaint alleged that the petitioner is the owner of a parcel of
residential land located at Poblacion, Dumingag, Zamboanga del Sur with an
area of 5,894 square meters more or less; that the parcel of land was
reserved for public plaza under Presidential Proclamation No. 365 dated
March 15, 1968; that during the incumbency of the late Mayor Isidoro E.
Real, Sr. or in 1958, the municipality leased an Area of 1,350 square meters
to the defendants (respondents herein) subject to the condition that they
should vacate the place in case it is needed for public purposes; that the
defendants religiously paid the rentals until 1967; that thereafter, the
defendants refused to pay the rentals; that the incumbent mayor discovered
that the defendants filed a "Cadastral Answer" over said lot; that the

Considering the facts in the complaint is true then the writ of possession and
writ of demolition would have been justified. A writ of demolition would have
been sufficient to eject the private respondent.
A public plaza is outside the commerce of man and constructions thereon
can be abated summarily by the municipality. We ruled in the case
of Villanueva v. Castaeda, Jr. (154 SCRA 142 [1987]):

defendants refused to vacate the place despite efforts of the municipality;

that the national government had alloted an appropriation for the
construction of a municipal gymnasium within the public plaza but the said
construction which was already started could not continue because of the
presence of the buildings constructed by the defendants; that the
appropriation for the construction of the gymnasium might be reverted back
to the national government which would result to "irreparable damage, injury
and prejudice" to the municipality and its people who are expected to derive
benefit from the accomplishment of the project.

Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869870) where the Supreme Court declared:
There is absolutely no question that the town plaza cannot be used for the
construction of market stalls, specially of residences, and that such
structures constitute a nuisance subject to abatement according to law. Town
plazas are properties of public dominion, to be devoted to public use and to
be made available to the public in general. They are outside the commerce
of man and cannot be disposed of or even leased by the municipality to
private parties.

Issue: Whether or not the petitioner municipality is entitled to a writ of

possession and a writ of demolition even before the trial of the case
starts.

Applying this well-settled doctrine, we rule that petitioners had no right in the
first place to occupy the disputed premises and cannot insist in remaining
there now on the strength of their alleged lease contracts. They should have
realized and accepted this earlier, considering that even before Civil Case
No. 2040 was decided, the municipal council of San Fernando had already
adopted Resolution No. 29, series of 1964, declaring this area as the parking
place and public plaza of the municipality.

Held: No.
Article 694 of the Civil Code defines nuisance as follows:
Art. 694. A nuisance is any act, omission, establishment, business, condition
of property or anything else which:

If, therefore, the allegations in the complaint are true and that the parcel of
land being occupied by the private respondents is indeed a public plaza,
then the writ of possession and writ of demolition would have been justified.
In fact, under such circumstances, there would have been no need for a writ
of possession in favor of the petitioner municipality since the private
respondents' occupation over the subject parcel of land can not be
recognized by any law. A writ of demolition would have been sufficient to
eject the private respondents.

(5) Hinders or impairs the use of property.

while Article 695 provides:
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. . . .

However, we have to consider the fact that the cadastral proceedings will
ultimately settle the real owner/s of the disputed parcel of land. In case
respondent Vicente Medina is adjudged the real owner of the parcel of land,
then the writ of possession and writ of demolition would necessarily be null
and void. Not only that. The demolition of the constructions in the parcel of
land would prove truly unjust to the private respondents.

Applying these criteria, we agree with the petitioners that the complaint
alleges factual circumstances of a complaint for abatement of public
nuisance.

NUISANCE

Parenthetically, the issuance of the writ of possession and writ of demolition

by the petitioner Judge in the ejectment proceedings was premature. What
the petitioner should have done was to stop the proceedings in the instant
case and wait for the final outcome of the cadastral proceedings.

CFI of Camarines Norte, in its decision in Civil Case No. 2257, declared said
barbershop as a nuisance per-se2. But even without this judicial
pronouncement, petitioner could not have been faulted for having fenced off
said barbershop. Paragraph 3, Article 6993 of the Civil Code authorizes the
abatement of a public nuisance 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.

ART. 699
JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE
PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV
DIVISION, respondents.
G.R. No. L-62050 November 25, 1983, ESCOLIN, J. SECOND DIVISION

Petition Granted. Petitioner Acquitted of the crime charged.

Facts

ATTRACTIVE NUISANCE

On December 13, 1971, petitioner (Mayor of Daet, Camarines

Norte) together with two uniformed policemen, and six laborers, arrived in
front of the stalls along Maharlika highway. 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 Pia-Rebustillos.
These establishments had been recommended for closure by the Municipal
Health Officer for non-compliance with certain health and sanitation
requirements1. Subsequently, petitioner and the two policemen were charged
with the offense of grave coercion before the Municipal Court of Daet which
exonerated the policemen but convicted petitioner herein. The CA likewise
affirmed the decision of the lower court.

HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO BALANDAN,

ANSELMA ANILA and THE COURT OF APPEALS, respondents.
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. 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 any one could
easily enter the said factory, as he pleased. There was no guard assigned on
the gate.

Issue

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."

WON the lower court erred in convicting petitioner of grave coercion

notwithstanding the recommendation of closure by the Municipal Health
Officer and the declaration of the CFI in Civil case no. 2257 that the
barbershop is a nuisance per se.

The CA, and the CFI of Laguna, took the view ruled that petitioner
maintained an attractive nuisance (the tanks), and neglected to adopt the
necessary precautions to avoid accidents to persons entering its premises.
Both the CA and CFI applied the doctrine of attractive nuisance, of American
origin (Taylor vs. Manila Electric) which states that the 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

Held
Yes, 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." 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 In holding that the stalls are nuisances per se the lower court in Civil case no. 2257 reasoned
that 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.

The third element is absent in the case at bar, Dayaon's

barbershop was done in abatement of a public nuisance and, therefore,
under lawful authority. 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. Add such circumstance to the fact that the

1 Petitioner also filed a complaint in the CFI of Camarines Norte against Lourdes Pia-Rebustillos

3 ART. 699. The remedies against a public nuisance are: . (3) Abatement, without judicial

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.

proceedings.

NUISANCE

if the child is technically a trespasser in the premises.

credit card slip at the payment and verification counter when she felt a
sudden gust of wind and heard a loud thud. She looked behind her. She then
beheld her daughter ZHIENETH on the floor, her young body pinned by the
bulk of the stores gift-wrapping counter/structure. ZHIENETH was crying and
screaming for help. Although shocked, CRISELDA was quick to ask the
assistance of the people around in lifting the counter and retrieving
ZHIENETH from the floor. ZHIENETH was quickly rushed to the Makati
Medical Center where she was operated on. She died fourteen (14) days
after the accident.

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.

ISSUE: WON a water tank full of water (considered as a body of water) an

attractive nuisance

After the burial of their daughter, private respondents demanded upon

petitioners the reimbursement of the hospitalization, medical bills and wake
and funeral expenses which they had incurred. Petitioners refused to pay.
Trial court dismissed the complaint. It ruled that the proximate cause of the
fall of the counter on ZHIENETH was her act of clinging to it. It believed
petitioners witnesses who testified that ZHIENETH clung to the counter,
afterwhich the structure and the girl fell with the structure falling on top of her,
pinning her stomach. In absolving petitioners from any liability, the trial court
reasoned that the counter was situated at the end or corner of the 2nd floor
as a precautionary measure hence, it could not be considered as an
attractive nuisance.

RULING: 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, . . .

Private respondents appealed the decision, CA ruled in favor of respondent.

CA gave credit to the testimony of respondents witness that claimed that
when ZHIENETH was asked by the doctor what she did, ZHIENETH replied,
"[N]othing, I did not come near the counter and the counter just fell on me."

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.

Issue: Can the respondents be held liable for their unstable counter?
Held: Yes.

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:

Negligence is "the failure to observe, for the protection of the interest of

another person, that degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury."
Accident and negligence are intrinsically contradictory; one cannot exist with
the other. Accident occurs when the person concerned is exercising ordinary
care, which is not caused by fault of any person and which could not have
been prevented by any means suggested by common prudence. The test in
determining the existence of negligence is enunciated in the landmark case
of Picart v. Smith,[20] thus: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinarily prudent person
would have used in the same situation? If not, then he is guilty of
negligence.

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."
Therefore, as petitioner's tanks are not classified as attractive
nuisance, the question whether the petitioner had taken reasonable
precautions becomes immaterial.

Petitioners were personally informed by their employees of the danger posed

by the unstable counter. Yet, they neither initiated any concrete action to
remedy the situation nor ensure the safety of the stores employees and
patrons as a reasonable and ordinary prudent man would have done. Thus,
as confronted by the situation petitioners miserably failed to discharge the
due diligence required of a good father of a family.

JARCO MARKETING CORPORATION v CA

Petitioner Jarco Marketing Corporation is the owner of Syvels Department

Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo
are the stores branch manager, operations manager, and supervisor,
respectively. Private respondents are spouses and the parents of Zhieneth
Aguilar (ZHIENETH).

Petition was DENIED.

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd
floor of Syvels Department Store, Makati City. CRISELDA was signing her