CAYABAN, Charmaine V.

Civil Law Review I

Case Digest No. 14

DOCTRINE: Nuisance" is deemed to be "so comprehensive that it has been applied

to almost all ways which have interfered with the rights of the citizens, either in
person, property, the enjoyment of his property, or his comfort."

CASE TITLE: Linda Rana vs. Teresita Lee Wong, GR. No. 192861, 192862,
June 30, 2014

FACTS:
Teresita Lee Wong (Wong) and Sps. Ong are co-owners pro-indiviso of a residential
land situated in Peace Valley Subdivision, Lahug, Cebu City, abutting a 10-
meter wide subdivision road (subject road). On the opposite side of the subject road,
across the Wong-Ong property, are the adjacent lots of Sps Uy and Sps Rana.

Sps. Rana elevated and cemented a portion of the subject road that runs between the
Rana and Wong-Ong properties (subject portion) in order to level the said portion
with their gate. Sps. Rana likewise backfilled a portion (subject backfilling) of the
perimeter fence separating the Rana and Uy properties without erecting a retaining
wall that would hold the weight of the added filling materials.

Wong, Sps. Ong, and Sps. Uy (Wong, et al.) filed a Complaint for Abatement of
Nuisance with Damages against Sps. Rana before the RTC. 

The RTC found that: (a) Sps. Rana, without prior consultation with the subdivision
owner or their neighbors, developed to their sole advantage the subject portion
consisting of one-half of the width of the 10-meter subject road by introducing filling
materials, and rip rapping the side of the road; (b) the said act denied Wong and Sps.
Ong the use of the subject portion and affected the market value of their property; (c)
Sps. Uy have no intention of using the subject portion for ingress or egress
considering that they built a wall fronting the same; and (d) Wong, et al.'s manner of
enforcing the November 27, 1997 Order caused damage and injury to Sps. Rana and
amounted to bad faith. In view of these findings, the RTC declared that the parties all
acted in bad faith, and, therefore, no relief can be granted to them against each other.

Separately, however, the RTC found that the backfilling done by Sps. Rana on their
property exerted pressure on the perimeter fence of the Uy property, thereby
constituting a nuisance. As such, the former were directed to construct a retaining
wall at their own expense. 

The Court of Appeals affirmed the ruling of the RTC. 

ISSUE:
Whether or not the backfilling done by Sps. Rana on their property exerted pressure
on the perimeter fence of the Uy property constitute nuisance.
 
HELD:
No. Under Article 694 of the Civil Code, a nuisance is defined as "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."

Article 695 of the Civil Code classifies nuisances with respect to the object or objects
that they affect. In this regard, a nuisance may either be: (a) a public nuisance (or one
which "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"); or (b) a private nuisance (or one "that is not included in the foregoing
definition" [or, as case law puts it, one which "violates only private rights and
produces damages to but one or a few persons"]).

In this regard, a nuisance "may either be: (a) 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"); or (b) a nuisance per accidens (or that which "depends
upon certain conditions and circumstances, and its existence being a question of fact,
it cannot be abated without due hearing thereon in a tribunal authorized to decide
whether such a thing does in law constitute a nuisance.")

In the present cases, Wong, et al. availed of the remedy of judicial abatement and
damages against Sps. Rana, claiming that both the elevated and cemented subject
portion and the subject backfilling are "nuisances" caused/created by the latter
which curtailed their use and enjoyment of their properties.

WHEREFORE, the Decision dated July 13, 2005 and the Resolution dated June 18,
2010 in CA-G.R. CV No. 78463 are SET ASIDE and a new one is entered as
follows:

In Civil Case No. CEB-20893:

(a) The awards of damages in favor of each party are OFFSET against each other as
herein discussed;

(b) Linda Rana is hereby ORDERED to build, at her own expense, a retaining wall
on the property covered by TCT No. 124095 in accordance with the sketch of the
Office of the Building Official of Cebu City attached to the records of the case,
subject to the condition as shall be hereunder set;

(c) All other claims and counterclaims are DISMISSED for lack of legal and factual
bases.chanrobleslaw

In Civil Case No. CEB-21296:

(a) Spouses Rosario and Wilson Uy are DIRECTED to return to Linda Rana the 2-
square meter encroached portion as reflected in the relocation survey conducted by
court-appointed commissioner Atty. Reuel T. Pintor, after which Linda Rana shall
be OBLIGED to build the retaining wall as directed by the Court;
andChanRoblesVirtualawlibrary

(b) All other claims and counterclaims are DISMISSED for lack of merit.

SO ORDERED.

DOCTRINE: Prevailing jurisprudence holds that unless a nuisance is a nuisance per

se, it may not be summarily abated. 

CASE TITLE: Natividad C. Cruz vs. Pandacan Hiker’s Club, Inc. GR. No.
188213, January 11, 2016

FACTS:
Petitioner Natividad C. Cruz (Cruz) was Punong Barangay or Chairperson of
Barangay 848, Zone 92, City of Manila. On November 10, 2006, around five o'clock
in the afternoon, and along Central Street, Pandacan, Manila, within the vicinity of
her barangay, she allegedly confronted persons playing basketball. Then, she
allegedly gave an order to the other petitioner, Barangay Tanod Benjamin dela Cruz
(Dela Cruz), to destroy the basketball ring by cutting it up with a hacksaw which Dela
Cruz promptly complied with, thus, rendering the said basketball court unusable.

The acts of petitioners prompted the filing of a Complaint (for Malicious Mischief,
Grave Misconduct and others before the Prosecutor's Office and the Office of the
Ombudsman by the group that claims to be the basketball court's owners. Cruz
alleged that the basketball court affected the peace in the barangay and was the
subject of many complaints from residents asking for its closure. In support of her
answer, Cruz attached copies of the complaints, a "certification" and letters of
barangay residents asking for a solution to the problems arising from the disruptive
activities on the said playing venue.

The appellate court sustained the contentions of Ilao, et al. that Cruz and Dela Cruz
performed an abatement of what they thought was a public nuisance but did the same
without following the proper legal procedure, thus making them liable for said acts. It
held Cruz to be without the power to declare a thing a nuisance unless it is a
nuisance per se. It declared the subject basketball ring as not such a nuisance and,
thus, not subject to summary abatement.

ISSUE: 
Whether or not Cruz can order to destroy the basketball ring because it is a public
nuisance.

HELD:
No. Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it may
not be summarily abated.

In the case at bar, none of the tribunals below made a factual finding that the
basketball ring was a nuisance per se that is susceptible to a summary abatement. And
based on what appears in the records, it can be held, at most, as a mere nuisance per
accidens, for it does not pose an immediate effect upon the safety of persons and
property, the definition of a nuisance per se. Culling from examples cited in
jurisprudence, it is unlike a mad dog on the loose, which may be killed "on sight
because of the immediate danger it poses to the safety an.d lives of the people; nor is
it like pornographic materials, contaminated meat and narcotic drugs which are
inherently pernicious and which may be summarily destroyed; nor is it similar to a
filthy restaurant which may be summarily padlocked in the interest of the public
health. A basketball ring, by itself, poses no immediate harm or danger to anyone but
is merely an object of recreation. Neither is it, by its nature, injurious to rights of
property, of health or of comfort of the community and, thus, it may not be abated as a
nuisance without the benefit of a judicial hearing.

But even if it is assumed, ex gratia argumenti, that the basketball ring was a
nuisance per se, but without posing any immediate harm or threat that required
instantaneous action, the destruction or abatement performed by petitioners failed to
observe the proper procedure for such an action which puts the said act into legal
question.

Under Article 700 of the Civil Code, the abatement, including one without judicial
proceedings, of a public nuisance is the responsibility of the district health officer.
Under Article 702 of the Code, the district health officer is also the official who shall
determine whether or not abatement, without judicial proceedings, is the best remedy
against & public nuisance. The two articles do not mention that the chief executive of
the local government, like the Punong Barangay, is authorized as the official who can
determine the propriety of a summary abatement.

Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela Cruz, as
Barangay Tanod, claim to have acted in their official capacities in the exercise of their
powers under the general welfare clause of the Local Government Code. However,
petitioners could cite no barangay nor city ordinance that would have justified their
summary abatement through the exercise of police powers found in the said clause.
No barangay nor city ordinance was violated; neither was there one which specifically
declared the said basketball ring as a nuisance per se that may be summarily abated.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals

Decision dated March 31, 2008 in CA-G.R. SP. No. 104474 is AFFIRMED.

SO ORDERED.

DOCTRINE: Noise becomes actionable only when it passes the limits of reasonable
adjustment to the conditions of the locality and of the needs of the maker to the needs
of the listener.

CASE TITLE: AC Enterprises, Inc. vs. Frabelle Properties Corp. GR. No.
166744, November 2, 2006

FACTS: 
AC enterprises, petitioner herein, is a corporation who owns a 10-storey building in
Makati City. On the other hand, Frabelle, respondent herein, is a condominium
corporation who's condominium development is located behind petitioner.
Respondent complained of the 'unbearable” noise emanating from the blower of the
air-conditioning units of petitioner. 
On April 11, 1995, respondent wrote petitioner demanding that the latter abate the
daily continuous, intense and ''unbearable noise" and the hot air blast coming from the
36 blowers in the Feliza Building. Petitioner rejected the demand in a letter dated May
15, 1995. Respondent reiterated its demand for ACEI to abate the nuisance in a letter
dated June 6, 1995.

On June 29, 1995, respondent requested that the 36 blowers of Feliza Building be
tested by the NCR Environmental Management Bureau (EMB) of the Department of
Environment and Natural Resources (DENR). On August 11, 1995, it received a
report from the EMB that the noise generated by the blowers of Feliza Building is
beyond the legal allowable level under Section 78(b) of Presidential Decree (P.D.)
No. 984, as amended. FPC had the blowers tested anew by the EMB on December 8,
1995 and July 1, 1996 with the same results. Despite repeated demands, petitioner
refused to act on the matter.

On July 1, 2003, respondent filed a complaint for the abatement of nuisance with
damages with prayer for the issuance of a writ of preliminary and permanent
injunction before the RTC of Malabon City against petitioner.

ISSUE: 
Whether or not the “unbearable noise” in the case at bar is a nuisance as to be
resolved only by the courts in the due course of proceedings 

HELD: 
Yes. It is a nuisance to be resolved only by the courts in the due course of
proceedings; the noise is not a nuisance per se. Noise becomes actionable only when
it passes the limits of reasonable adjustment to the conditions of the locality and of the
needs of the maker to the needs of the listener. Injury to a particular person in a
peculiar position or of especially sensitive characteristics will not render the house an
actionable nuisance–– in the conditions, of present living, noise seems inseparable
from the conduct of many necessary occupations. The determining factor is not its
intensity or volume; it is that the noise is of such character as to produce actual
physical discomfort and annoyance to a person of ordinary sensibilities rendering
adjacent property less comfortable and valuable.

Article 694 of the New Civil Code defines a nuisance as follows:

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.

The term "nuisance" is so comprehensive that it has been applied to almost all ways
which have interfered with the rights of the citizens, either in person, property, the
enjoyment of his property, or his comfort. According to Article 695 of the Civil Code,
a nuisance may be either public or private:

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.

A private nuisance has been defined as one which violates only private rights and
produces damages to but one or a few persons.[34] A nuisance is public when it
interferes with the exercise of public right by directly encroaching on public property
or by causing a common injury.[35] It is an unreasonable interference with the right
common to the general public.[36]

Under Article 705 of the New Civil Code, a party aggrieved by a private nuisance has
two alternative remedies: (1) a civil action; or (2) abatement, without judicial
proceedings. A person injured by a private nuisance may abate it as provided in
Article 706:

Art. 706. Any person injured by a private nuisance may abate it by removing, or if
necessary by destroying the thing which constitutes the nuisance, without committing
a breach of the peace or doing unnecessary injury. However, it is indispensable that
the procedure for extrajudicial abatement of a public nuisance by a private person be
followed.

A private nuisance action is the remedy for an invasion of a property right. On the
other hand, the action for the abatement of a public nuisance should be commenced
by the city or municipality. A private person may institute an action for the abatement
of a public nuisance in cases wherein he suffered a special injury of a direct and
substantial character other than that-which the general public shares. The district
health officer shall determine whether or not abatement, without judicial proceedings,
is the best remedy against a public nuisance.

In the present case, respondent opted to file an action in the RTC for abatement of the
private nuisance complained of and damages under Article 697 of the New Civil Code
for its past existence.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
Costs against the petitioner.

SO ORDERED.

DOCTRINE: Nuisances are of two kinds: nuisance per se and nuisance per accidens.

The first is recognized as a nuisance under any and all circumstances, because it
constitutes a direct menace to public health or safety, and, for that reason, may be
abated summarily under the undefined law of necessity. The second is that which
depends upon certain conditions and circumstances, and its existence being a question
of fact, it cannot be abated without due hearing thereon in a tribunal authorized to
decide whether such a thing does in law constitute a nuisance.

CASE TITLE: Crisostomo Aquino vs. Municipality of Malay, Aklan, GR. No.
211356, September 29, 2014

FACTS: 
Boracay Island West Cove Management Philippines, Inc. applied for a building
permit covering the construction of a three-storey hotel over a parcel of land in
Malay, Aklan, which is covered by a Forest Land Use Agreement for Tourism
Purposes (FLAgT) issued by the Department of Environment and Natural Resources
(DENR). 
The Municipal Zoning Administrator denied petitioner’s application on the ground
that the proposed construction site was within the “no build zone” demarcated in
Municipal Ordinance 2000-131. Petitioner appealed the denial action to the Office of
the Mayor but despite follow up, no action was ever taken by the respondent mayor.
A Cease and Desist Order was issued by the municipal government, enjoining the
expansion of the resort, and on June 7, 2011, the Office of the Mayor of Malay, Aklan
issued the assailed EO 10, ordering the closure and demolition of Boracay West
Cove’s hotel. EO 10 was partially implemented on June 10, 2011. 

Thereafter, two more instances followed wherein respondents demolished the

improvements introduced by Boracay West Cove. Petitioner filed a Petition for
Certiorari with prayer for injunctive relief with the CA Alleging that the order was
issued and executed with grave abuse of discretion Contentions of West Cove: 1) The
hotel cannot summarily be abated because it is not a nuisance per se, given the
hundred million peso-worth of capital infused in the venture. 2) Municipality of
Malay, Aklan should have first secured a court order before proceeding with the
demolition. Contention of the Mayor: The demolition needed no court order because
the municipal mayor has the express power under the Local Government Code (LGC)
to order the removal of illegally constructed buildings

The CA dismissed the petition solely on procedural ground, i.e., the special writ of
certiorari can only be directed against a tribunal, board, or officer exercising judicial
or quasi-judicial functions and since the issuance of EO 10 was done in the exercise
of executive functions, and not of judicial or quasi-judicial functions, certiorari will
not lie. 

ISSUE: 
Whether the judicial proceedings should first be conducted before the LGU can order
the closure and demolition of the property in question. 

HELD: 
Petition is denied. The Court ruled that the property involved cannot be classified as a
nuisance per se which can therefore be summarily abated. Here, it is merely the
hotel’s particular incident, its location and not its inherent qualities that rendered it a
nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay
West Cove could have secured the necessary permits without issue. As such, even if
the hotel is not a nuisance per se, it is still a nuisance per accidens Generally, LGUs
have no power to declare a particular thing as a nuisance unless such a thing is a
nuisance per se. Despite the hotel’s classification as a nuisance per accidens, however,
the LGU may nevertheless properly order the hotel’s demolition. This is because, in
the exercise of police power and the general welfare clause, property rights of
individuals may be subjected to restraints and burdens in order to fulfill the objectives
of the government. Moreover, the Local Government Code authorizes city and
municipal governments, acting through their local chief executives, to issue
demolition orders. The office of the mayor has quasi-judicial powers to order the
closing and demolition of establishments. 

“In the case at bench, the due process requirement is deemed to have been sufficiently
complied with. First, basic is the rule that public officers enjoy the presumption of
regularity in the performance of their duties. The burden is on the petitioner herein to
prove that Boracay West Cove was deprived of the opportunity to be heard before EO
10 was issued. Regrettably, copies of the Cease and Desist Order issued by the LGU
and of the assailed EO 10 itself were never attached to the petition before this Court,
which documents could have readily shed light on whether or not petitioner has been
accorded the 10-day grace period provided in Section 10 of the Ordinance. In view of
this fact, the presumption of regularity must be sustained. Second, as quoted by
petitioner in his petition before the CA, the assailed EO 10 states that petitioner
received notices from the municipality government on March 7 and 28, 2011,
requiring Boracay West Cove to comply with the zoning ordinance and yet it failed to
do so. 

If such was the case, the grace period can be deemed observed and the establishment
was already ripe for closure and demolition by the time EO 10 was issued in June.
Third, the observance of the 10-day allowance for the owner to demolish the hotel
was never questioned by petitioner so there is no need to discuss the same. Verily, the
only grounds invoked by petitioner in crying due process violation are (1) the absence
of a court order prior to demolition and (2) the municipal government’s exercise of
jurisdiction over the controversy instead of the DENR. 

Therefore, it can no longer be belatedly argued that the 10-day grace period was not
observed because to entertain the same would result in the violation of the
respondents’ own due process rights. Given the presence of the requirements under
Sec. 444 (b)(3)(vi) of the LGC, whether the building constituted a nuisance per se or a
nuisance per accidens becomes immaterial. The hotel was demolished not exactly
because it is a nuisance but because it failed to comply with the legal requirements
prior to construction. It just so happened that, in the case at bar, the hotel’s incident
that qualified it as a nuisance per accidens––its being constructed within the no build
zone–– further resulted in the non-issuance of the necessary permits and clearances,
which is a ground for demolition under the LGC. Under the premises, a court order
that is required under normal circumstances is hereby dispensed with.”

WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of

merit. The Decision and the Resolution of the Court of Appeals in CA-G.R. SP No.
120042 dated August 13, 2013 and February 3, 2014, respectively, are
hereby AFFIRMED.

SO ORDERED.
DOCTRINE: A nuisance per accidens is one which depends upon certain conditions
and circumstances, and its existence being a question of fact, it cannot be abated
without due hearing thereon in a tribunal authorized to decide whether such a thing
does in law constitute a nuisance. 

CASE TITLE: North Greenhills Association, Inc. vs. Atty. Narciso Morales,
August 9, 2017

FACTS: 
Atty. Morales has been a long time resident of North Greenhills Subdivision; his
house is located alongside Club Filipino and adjacent to McKinley Park, a park/open
space/playground area owned by North Greenhills Association.  He built a personal
access door to the park, allowing him to go directly to the park.  In June 2003, NGA
started constructing a pavilion or kiosk occupying the side of the park adjacent to the
residence of Atty. Morales. Part of the design was a public restroom intended to serve
the needs of park guests and members of NGA. Said restroom was constructed
alongside the concrete wall separating the house of Atty. Morales from the park.

Disagreeing with the decision of NGA, Atty. Morales filed a complaint with the
Housing and Land Use Regulatory Board.  He complained that the restroom being
constructed by the NGA was a nuisance per accidens.  NGA disagrees, and held that
as the absolute owner of the park, it had the absolute right to fence the property and
impose reasonable conditions for its use; the construction of the restroom was for the
use of all members, including Atty. Morales; Atty. Morales’s use of his personal
access could not ripen into prescription; and sought to collect from Atty. Morales his
membership dues which the NGA alleged had been unpaid for a long time.

The HLURB ruled in favor of Atty. Morales, ordering NGA to relocate the restroom,
and the obstruction to Atty. Morales’s access door.  The HLURB Board affirmed with
modification the Arbiter’s ruling, which the Office of the President again affirmed. 
On appeal to the CA, it affirmed the OP ruling and ruled that the restroom being
constructed was a nuisance per accidens.  It opined that the construction of the
restroom not only endangered the health of Atty. Morales, but the members of his
household who may contract diseases from the waste emanating from the restroom.

NGA elevated the case to the Supreme Court.

ISSUE: 
Whether or not the CA erred in declaring the restroom constructed in the park and
adjacent to the house of Atty. Morales as a nuisance per accidens.

HELD: 
The Court partly grants the petition.

On Jurisdiction - basic is the rule that jurisdiction over the subject matter of a case is
conferred by law and determined by the allegations in the complaint which comprise a
concise statement of the ultimate facts constituting the plaintiff’s cause of action. The
nature of an action, as well as which court or body has jurisdiction over it, is
determined from the allegations contained in the complaint, irrespective of whether or
not the plaintiff is entitled to recover upon all or some of the claims asserted therein.
Once vested by the allegations in the complaint, jurisdiction remains vested
irrespective of whether or not the plaintiff is entitled to recover upon all or some of
the claims asserted therein.

Relative thereto is the rule that lack of jurisdiction over the subject matter may be
raised at any stage of the proceedings.Jurisdiction over the subject matter is conferred
only by the Constitution or the law.It cannot be acquired through a waiver or enlarged
by the omission of the parties or conferred by the acquiescence of the court.
Consequently, questions of jurisdiction may be cognizable even if raised for the first
time on appeal. 

NGA claims that the HLURB never had jurisdiction over the complaint filed by Atty.
Morales considering that there was no allegation that he was member of the
association, entitling him to claim the use of the latter’s facilities including the right
of access to McKinley Park. Citing Sta. Clara Homeowner’s Association v.
Gaston NGA asserts that for HLURB to acquire jurisdiction over disputes among
members of an association, it is a requirement that the allegation of membership must
be clear in the complaint, otherwise, no authority to hear and decide the case is vested
in the concerned agency. Membership in a homeowners’ association is voluntary and
cannot be unilaterally forced by a provision in the association’s articles of
incorporation or by-laws, which the alleged member did not agree to be bound to.

In this case, it appears that Atty. Morales, by filing his complaint as a member whose
rights have been allegedly violated, has satisfied such requirement. His status as a
member has not been questioned. It is worthy to note that NGA, in its counterclaim,
demanded the payment of association dues from Atty. Morales as he has been
refusing to pay his dues for more than three decades. In sum, there is no dispute that
Atty. Morales is a member of NGA, albeit a delinquent member. In Tumpag v.
Tumpag, the Court said:

Generally, the court should only look into the facts alleged in the complaint to
determine whether a suit is within its jurisdiction. There may be instances, however,
when a rigid application of this rule may result in defeating substantial justice or in
prejudice to a party’s substantial right. In Marcopper Mining Corp. v. Garcia, we
allowed the RTC to consider, in addition to the complaint, other pleadings submitted
by the parties in deciding whether or not the complaint should be dismissed for lack
of cause of action. In Guaranteed Homes, Inc. v. Heirs of Valdez, et al., we held that
the factual allegations in a complaint should be considered in tandem with the
statements and inscriptions on the documents attached to it as annexes or integral
parts.

Considering that the requirement of membership is present, jurisdiction over the

subject matter of the case was properly vested in the HLURB.

On the finding that the restroom was a nuisance per accidens - The CA in disposing
the case, ruled that the restroom posed sanitary issues to Atty. Morales and is,
therefore, a nuisance per accidens. Such is a finding of fact, which is generally
conclusive upon the Court, because it is not its function to analyze and weigh the
evidence all over again.

There are, however, well-recognized exceptions. These are (1) when the findings are
grounded entirely on speculations, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when
the findings of fact are conflicting; (6) when in making its findings the Court of
Appeals went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are contrary
to that of the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the petition
as well as in the petitioners main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; or (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.

NGA avers that the case falls under the said exceptions considering that no proof was
ever presented to prove that the restroom was a nuisance per accidens. Absent such
evidence, the CA’s finding was only speculative, resulting in a grave misapprehension
of facts.

The Court agrees.

A nuisance per accidens is one which depends upon certain conditions and

circumstances, and its existence being a question of fact, it cannot be abated without
due hearing thereon in a tribunal authorized to decide whether such a thing does in
law constitute a nuisance. Obviously, it requires a determination of such
circumstances as to warrant the abatement of the nuisance. That can only be done
with reasonable notice to the person alleged to be maintaining or doing the same of
the time and place of hearing before a tribunal authorized to decide whether such a
thing or act does in law constitute a nuisance per accidens.

In other words, it requires a proper appreciation of evidence before a court or tribunal

rules that the property being maintained is a nuisance per accidens.

A reading of the CA’s decision would easily reveal that its conclusions were merely
speculative. It wrote:

The said toilet, to Our mind, poses sanitary issues which could adversely affect not
only the Respondent but his entire household as well. Even if there exists a perimeter
wall between Respondent’s house and the toilet, the odor emanating from the latter
could easily find its way to the dining area, and the foul and noxious smell would
make it very difficult and annoying for the residents of the house to eat. Moreover, the
proximity of the toilet to Respondent’s house places the people residing therein at
greater risk of contracting diseases both from improperly disposed waste and human
excrements, as well as from flies, mosquitoes, and other insects, should petitioner
NGA fail to maintain the cleanliness in the said structure. Verily, the determining
factor when the toilet is the cause of the complaint is not how much it smells or stinks
but where it is located as to produce actual physical discomfort and annoyance to a
person of ordinary sensibilities.

By the use of the words “would, should, could,” it can be discerned that the CA was
not even sure that the restroom has caused such annoyance to Atty. Morales or his
family. Its declaration that the restroom is a nuisance per accidens had no basis in
evidence. There is nothing in the records which discloses that Atty. Morales had
introduced any evidence, testimonial or documentary, to prove that the restroom
annoyed his senses, that foul odor emanated from it, or that it posed sanitary issues
detrimental to his family’s health. No certification by the City Health Officer was
even submitted to the HLURB to attest on such matters.

It was improper on the part of the CA to assume those negative effects because
modern day restrooms, even those for the use of the public, are clean, safe and
emitting no odor as these are regularly maintained. For said reason, it was an error on
the part of the CA to rule that the restroom was a nuisance per accidens and to sustain
the order that it should be relocated.

Clearly, its finding was based on speculations, and not evidence.

On the finding that Atty.Morales had no access to McKinley Park - NGA claims that
the CA erred in upholding Atty. Morales’ unbridled access to the park, which
effectively constituted an easement of right of way without any basis as against the
clear statutory right of NGA, as the owner of the park, to fence and protect its
property on the basis of Articles 429 and 430 of the Civil Code.

The Court agrees with NGA.

Under the Civil Code, NGA, as owner of the park, has the right to enclose or fence his
land or tenements by means of walls, ditches, live or dead hedges, or by any other
means without detriment to servitudes constituted thereon. It also has a right to
exclude others from access to, and enjoyment of its property.

NGA’s legal right to block the access door is beyond doubt. Courts have no business
in securing the access of a person to another property absent any clear right on the
part of the latter.

The CA essentially violated the right of NGA. Atty. Morales never introduced any
evidence that he had acquired any right by prescription or by agreement or legal
easement to access the park through his side door. Moreover, he never claimed that
his side door was his only access to the park. He has other means and, being adjacent
to the park, going through other means is not cumbersome.

The conditions set forth under the Deed of Donation by Ortigas & Co. Ltd. to NGA
could not be used by Atty. Morales in his favor. Assuming that he has a right as a
member to use the park, it does not mean that he can assert that his access to the park
could only be done through his side door. Atty. Morales knows very well that he can
access the park through some other parts of the park.

WHEREFORE, the petition is PARTLY GRANTED. The March 13, 2015

Decision and the February 3, 2016 Resolution of the Court of Appeals in CA-G.R. SP
No. 131707, are REVERSED insofar as it affirmed (1) Atty. Morales’ entitlement to
an unbridled access to the park through his side door; and (2) the order to relocate the
restroom to another area.

SO ORDERED.

DOCTRINE: 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.

CASE TITLE: Concepcion Parayno vs. Jose 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
petitioner’s 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 latter’s police powers. 

HELD:
The respondent is barred from denying their previous claim that the gasoline filling
station is not under Sec 44. The Counsel in fact admitted that: “That the business of
the petitioner [was] one of a gasoline filling station as defined in Article III, Section
21 of the zoning code and not as a service station as differently defined under Article
42 of the said official zoning code;”

The foregoing were judicial admissions which were conclusive on the municipality,
the party making them. Hence, because of the distinct and definite meanings alluded
to the two terms by the zoning ordinance, respondents could not insist that “gasoline
service station” under Section 44 necessarily included “gasoline filling station” under
Section 21. Indeed, the activities undertaken in a “gas service station” did not
automatically embrace those in a “gas filling station.”

As for the main issue, the court held that the 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.

On the alleged hazardous effects of the gasoline station to the lives and properties of
the people of Calasiao, we again note: “Hence, the Board is inclined to believe that
the project being hazardous to life and property is more perceived than factual. For,
after all, even the Fire Station Commander recommended “to build such buildings
after conform (sic) all the requirements of PP 1185.” It is further alleged by the
complainants that the proposed location is “in the heart of the thickly populated
residential area of Calasiao.” Again, findings of the [HLURB] staff negate the
allegations as the same is within a designated Business/Commercial Zone per the
Zoning Ordinance.

WHEREFORE, the petition is hereby GRANTED.

The assailed resolution of the Court of the Appeals is REVERSED and SET ASIDE.
Respondent Municipality of Calasiao is hereby directed to cease and desist from
enforcing Resolution No. 50 against petitioner insofar as it seeks to close down or
transfer her gasoline station to another location.
DOCTRINE:

CASE TITLE: City of Manila vs. Judge Laguio, Jr., GR. No. 118127, April 25,
2005

FACTS: 
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and lodging
houses. It built and opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the DOT as a hotel. On 28 June 1993, MTDC filed a
Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order7 with the lower court impleading as defendants, herein
petitioners City of Manila, Hon.

Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council
of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes
motels and inns as among its prohibited establishments, be declared invalid and
unconstitutional.

Enacted by the City Council and approved by petitioner City Mayor, the said
Ordinance is entitled–

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF

BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE
AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR
OTHER PURPOSES.

Judge Laguio rendered the assailed Decision (in favour of respondent).

On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling:

(1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power;
(2) It erred in holding that the questioned Ordinance contravenes P.D. 499 which
allows operators of all kinds of commercial establishments, except those specified
therein; and
(3) It erred in declaring the Ordinance void and unconstitutional.
ISSUE: 
WON the ordinance is unconstitutional.

HELD: 
The Court is of the opinion, and so holds, that the lower court did not err in declaring
the Ordinance, as it did, ultra vires and therefore null and void. The tests of a valid
ordinance are well established. A long line of decisions has held that for an ordinance
to be valid, it must not only be within the corporate powers of the local government
unit to enact and must be passed according to the procedure prescribed by law, it must
also conform to the following substantive requirements:

(1) must not contravene the Constitution or any statute;

(2) must not be unfair or oppressive;
(3) must not be partial or discriminatory;
(4) must not prohibit but may regulate trade;
(5) must be general and consistent with public policy; and
(6) must not be unreasonable.

The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. This delegated police
power is found in Section 16 of the LGC, known as the general welfare clause.

The inquiry in this Petition is concerned with the validity of the exercise of such
delegated power.

A. The Ordinance contravenes the Constitution. The enactment of the Ordinance was
an invalid exercise of delegated power as it is unconstitutional and repugnant to
general laws.

The police power granted to LGUs must always be exercised with utmost observance
of the rights of the people to due process and equal protection of the law. Due process
requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty and property.

Requisites for the valid exercise of Police Power are not met. To successfully invoke
the exercise of police power as the rationale for the enactment of the Ordinance, and
to free it from the imputation of constitutional infirmity, not only must it appear that
the interests of the public generally, as distinguished from those of a particular class,
require an interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals.60 It must be evident that no other alternative for the accomplishment of
the purpose less intrusive of private rights can work. A reasonable relation must exist
between the purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily
invaded.

Lacking a concurrence of these two requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights a violation of the due process clause.

The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Council’s police powers,
the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.

The worthy aim of fostering public morals and the eradication of the community’s
social ills can be achieved through means less restrictive of private rights; it can be
attained by reasonable restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into businesses “allowed” under
the Ordinance have no reasonable relation to the accomplishment of its purposes.
Otherwise stated, the prohibition of the enumerated establishments will not per se
protect and promote the social and moral welfare of the community; it will not in
itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it
arrest the spread of sexual disease in Manila.

The enumerated establishments are lawful pursuits which are not per se offensive to
the moral welfare of the community. While a motel may be used as a venue for
immoral sexual activity, it cannot for that reason alone be punished. It cannot be
classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a
naked assumption.

If the City of Manila so desires to put an end to prostitution, fornication and other
social ills, it can instead impose reasonable regulations such as daily inspections of
the establishments for any violation of the conditions of their licenses or permits; it
may exercise its authority to suspend or revoke their licenses for these violations; and
it may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.

It is readily apparent that the means employed by the Ordinance for the achievement
of its purposes, the governmental interference itself, infringes on the constitutional
guarantees of a person’s fundamental right to liberty and property. Modality
employed is unlawful taking.

It is an ordinance which permanently restricts the use of property that it can not be
used for any reasonable purpose goes beyond regulation and must be recognized as a
taking of the property without just compensation.78 It is intrusive and violative of the
private property rights of individuals.
There are two different types of taking that can be identified. A “possessory” taking
occurs when the government confiscates or physically occupies property. A
“regulatory” taking occurs when the government’s regulation leaves no reasonable
economically viable use of the property.

What is crucial in judicial consideration of regulatory takings is that government

regulation is a taking if it leaves no reasonable economically viable use of property in
a manner that interferes with reasonable expectations for use. When the owner of real
property has been called upon to sacrifice all economically beneficial uses in the
name of the common good, that is, to leave his property economically idle, he has
suffered a taking.

The Ordinance gives the owners and operators of the “prohibited” establishments
three (3) months from its approval within which to “wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area.” The directive to “wind up business
operations” amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his establishment
to accommodate an “allowed” business, the structure which housed the previous
business will be left empty and gathering dust. It is apparent that the Ordinance leaves
no reasonable economically viable use of property in a manner that interferes with
reasonable expectations for use.

The second and third options to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businesses are confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of the
Ordinance is also equivalent to a “taking” of private property.

Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A

zoning ordinance, although a valid exercise of police power, which limits a
“wholesome” property to a use which can not reasonably be made of it constitutes the
taking of such property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the principles of justice as we know
them. The police powers of local government units which have always received broad
and liberal interpretation cannot be stretched to cover this particular taking.

Further, the Ordinance confers upon the mayor arbitrary and unrestricted power to
close down establishments. Ordinances such as this, which make possible abuses in its
execution, depending upon no conditions or qualifications whatsoever other than the
unregulated arbitrary will of the city authorities as the touchstone by which its validity
is to be tested, are unreasonable and invalid. The Ordinance should have established a
rule by which its impartial enforcement could be secured. Similarly, the Ordinance
does not specify the standards to ascertain which establishments “tend to disturb the
community,” “annoy the inhabitants,” and “adversely affect the social and moral
welfare of the community.”

The cited case supports the nullification of the Ordinance for lack of comprehensible
standards to guide the law enforcers in carrying out its provisions.

Petitioners cannot therefore order the closure of the enumerated establishments

without infringing the due process clause. These lawful establishments may be
regulated, but not prevented from carrying on their business.

B. The Ordinance violates Equal Protection Clause

In the Court’s view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition,
all are commercial establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and inns but not
pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly treated,
both as to rights conferred and obligations imposed. It is arbitrary as it does not rest
on substantial distinctions bearing a just and fair relation to the purpose of the
Ordinance.

The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious establishment
does not become any less noxious if located outside the area.

The standard “where women are used as tools for entertainment” is also
discriminatory as prostitution one of the hinted ills the Ordinance aims to banish is not
a profession exclusive to women. Both men and women have an equal propensity to
engage in prostitution. Thus, the discrimination is invalid.

C. The Ordinance is repugnant to general laws; it is ultra vires

The Ordinance is in contravention of the Code (Sec 458) as the latter merely
empowers local government units to regulate, and not prohibit, the establishments
enumerated in Section 1 thereof.

With respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council
to legislate relative thereto is to regulate them to promote the general welfare. The
Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments.
It is well to point out that petitioners also cannot 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. It can
not be said that motels are injurious to the rights of property, health or comfort of the
community. It is a legitimate business. If it be a nuisance per accidens it may be so
proven in a hearing conducted for that purpose. A motel is not per se a nuisance
warranting its summary abatement without judicial intervention.

Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a commercial area. The decree
allowed the establishment and operation of all kinds of commercial establishments
except warehouse or open storage depot, dump or yard, motor repair shop, gasoline
service station, light industry with any machinery or funeral establishment. The rule is
that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with or
repugnant to the general law.

WHEREFORE, the Petition is hereby DENIED and the decision of the Regional

Trial Court declaring the Ordinance void is AFFIRMED.  Costs against petitioners.

SO ORDERED.

DOCTRINE: In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the

appellant-municipality similarly argued that the terminal involved therein is a
nuisance that may be abated by the Municipal Council via an ordinance, this Court
held: "Suffice it to say that in the abatement of nuisances the provisions of the Civil
Code (Articles 694-707) must be observed and followed. This appellant failed to do."

CASE TITLE: Lucena Grand Central Terminal, Inc. vs. JAC Liner, Inc., GR.
No. 148339, February 23, 2005

FACTS:
Two ordinances were enacted by the Sangguniang Panlungsod of Lucena with the
objective of alleviating the traffic congestion said to have been caused by the
existence of various bus and jeepney terminals within the city. City Ordinance 1631
grants franchise to the Lucena Grand Central Terminal, Inc. to construct, finance,
establish, operate and maintain common bus- jeepney terminal facility in the City of
Lucena. City Ordinance 1778, on the other hand, strips out all the temporary terminals
in the City of Lucena the right to operate which as a result favors only the Lucena
Grand Central Terminal, Inc. 

The Regional Trial Court of Lucena declared City Ordinance 1631 as a valid
excercise of police power while declaring City Ordinance 1778 as null and void for
being invalid. Petitioner Lucena Grand Central Terminal, Inc. filed its Motion for
Reconsideration which was denied. Lucena then elevated it via petition for review
under Rule 45 before the Court. 

The Court referred the petition to the Court of Appeals (CA) with which it has
concurrent jurisdiction. The CA dismissed the petition and affirmed the challenged
orders of the trial court. Its motion for reconsideration having been denied by the CA,
Lucena now comes to the Court via petition for review to assail the Decision and
Resolution of the CA.

ISSUE:
Whether the City of Lucena properly exercised its police power when it enacted City
Ordinance Nos. 1631 and 1778

HELD:
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. The questioned ordinances having been enacted with the objective of
relieving traffic congestion in the City of Lucena, involve public interest warranting
the interference of the State. The first requisite for the proper exercise of police power
is thus present But the ordinances go beyond what is reasonably necessary to solve the
traffic problem.

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. In Pampanga Bus Co., Inc. v.
Municipality of Tarlac where the appellant-municipality similarly argued that the
terminal involved therein is a nuisance that may be abated by the Municipal Council
via an ordinance, this Court held: "Suffice it to say that in the abatement of nuisances
the provisions of the Civil Code (Articles 694-707) must be observed and followed.
This appellant failed to do."

As for petitioner's 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
individual's rights.

There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of one even as against
the rest of the nation who would deny him that right.

WHEREFORE, the petition is hereby DENIED. SO ORDERED.

DOCTRINE: A nuisance per se is that which affects the immediate safety of persons
and property and may be summarily abated under the undefined law of necessity.
Evidently, the concrete posts summarily removed by petitioner did not at all pose a
hazard to the safety of persons and properties, which would have necessitated
immediate and summary abatement. 

CASE TITLE: Guillermo M. Telmo vs. Luciano M. Bustamante, GR. No.

182567, July 13, 2009

FACTS:
This case arose from the Verified Complaint filed by respondent Luciano M.
Bustamante before the Office of the Deputy Ombudsman for Luzon against petitioner
Guillermo Telmo, Municipal Engineer of Naic, Cavite, Danilo Consumo, Barangay
(Brgy.) Chairman, Brgy. Halang, Naic, Cavite, and Elizalde Telmo, a private
individual.

The complaint alleged that respondent is a co-owner of a real property of 616 square
meters in Brgy. Halang, Naic, Cavite, known as Lot 952-A and covered by Transfer
Certificate of Title No. T-957643 of the Register of Deeds of Cavite. Petitioner and
Elizalde Telmo (Telmos) are the owners of the two (2) parcels of land denominated as
Lot 952-B and 952-C, respectively, located at the back of respondent's lot. When his
lot was transgressed by the construction of the Noveleta-Naic-Tagaytay Road,
respondent offered for sale the remaining lot to the Telmos. The latter refused because
they said they would have no use for it, the remaining portion being covered by the
road's 10-meter easement.

Later, petitioner and respondent filed their respective position papers upon the
directive of the Graft Investigating and Prosecuting Officer. Their position papers
reiterated the allegations made in their respective affidavits earlier submitted.

In the Decision dated October 13, 2005, the Office of the Deputy Ombudsman for
Luzon found petitioner and Danilo Consumo administratively liable, but dismissed
the charge against Elizalde Telmo for lack of jurisdiction over his person, he being a
private individual.

Petitioner filed a Motion for Reconsideration, wherein he elaborated that he just

performed his official duties when he summarily removed the concrete posts erected
by respondent to enclose the property. In the Order dated March 17, 2006, the Office
of the Deputy Ombudsman for Luzon denied the Motion for Reconsideration for lack
of merit.

ISSUE:
Whether or not petitioner should be authorized by the municipal mayor or by the court
to abate public nuisance or nuisance per se. 

HELD:
The desistance of the complainant does not necessarily result in the dismissal of the
administrative complaint because the Court attaches no persuasive value to a
desistance, especially when executed as an afterthought. It should be remembered that
the issue in an administrative case is not whether the complaint states a cause of
action against the respondent, but whether the public officials have breached the
norms and standards of the public service. Considering that petitioner admitted in his
pleadings that he summarily removed the concrete posts erected by respondent,
allegedly within the parameters of his authority as Municipal Engineer of Naic,
Cavite, it is only proper that this case be decided on its merits rather than on the basis
of the desistance of respondent.

It cannot be denied that respondent's property was taken by the National Government
thru the Department of Public Works and Highways when it constructed the Noveleta-
Naic-Tagaytay Road. What is not clear from the records of this case is whether
respondent's property was taken as part of the national road itself or only as part of the
right-of-way easement therefor. We observe that the re-survey plan of his property
attached by respondent to his complaint and the survey plan of the Noveleta-Naic-
Tagaytay Road submitted by petitioner appear to be different. Nevertheless, it is
evident from the sketch plans that respondent could not enclose his property because
it is now being used by the National Government. Therefore, whatever cause of action
respondent may have in his claim for just compensation for the taking of his property,
the same should be lodged against the National Government.

While it is settled that respondent does not have the legal right to enclose the property,
we should now determine whether petitioner indeed performed his official functions
properly.

Petitioner contends that respondent's concrete posts were in the nature of a nuisance
per se, which may be the subject of summary abatement sans any judicial
proceedings. Again, we disagree.

A nuisance per se is that which affects the immediate safety of persons and property
and may be summarily abated under the undefined law of necessity. Evidently, the
concrete posts summarily removed by petitioner did not at all pose a hazard to the
safety of persons and properties, which would have necessitated immediate and
summary abatement. What they did, at most, was to pose an inconvenience to the
public by blocking the free passage of people to and from the national road.

WHEREFORE, the Decision dated October 13, 2005 and the Order dated March 17,
2006 of the Office of the Deputy Ombudsman for Luzon finding petitioner Guillermo
M. Telmo, Municipal Engineer of Naic, Cavite, administratively culpable for
violation of Section 4 of Republic Act No. 6713, imposing upon him the penalty of
fine equivalent to his six 6-month salary, must be MODIFIED. Guillermo M. Telmo
is instead found administratively guilty of DISCOURTESY IN THE COURSE OF
OFFICIAL DUTIES and is hereby REPRIMANDED. Costs against petitioner.

SO ORDERED.
DOCTRINE: The wing walls do not per se immediately and adversely affect the
safety of persons and property. The fact that an ordinance may declare a structure
illegal does not necessarily make that structure a nuisance.

CASE TITLE: Emilio Gancayco vs. Quezon City, GR. No. 177807, October 11,
2011

FACTS:
In 1950s, retired justice Emilio Gancayco bought a parcel of land located in EDSA.
Then on March 1956, Quezon City Council issued Ordinance No. 2904 requiring the
construction of arcades for commercial buildings to be constructed.  At the outset, it
bears emphasis that at the time Ordinance No. 2904 was passed by the city council,
there was yet no building code passed by the national legislature. Thus, the regulation
of the construction of buildings was left to the discretion of local government units. 
Under this particular ordinance, the city council required that the arcade is to be
created by constructing the wall of the ground floor facing the sidewalk a few meters
away from the property line.  Thus, the building owner is not allowed to construct his
wall up to the edge of the property line, thereby creating a space or shelter under the
first floor. In effect, property owners relinquish the use of the space for use as an
arcade for pedestrians, instead of using it for their own purposes.

The ordinance covered the property of Justice Gancayco. Subsequently, sometime in

1965, Justice Gancayco sought the exemption of a two-storey building being
constructed on his property from the application of Ordinance No. 2904 that he be
exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice Gancayco’s request
and issued Resolution No. 7161, S-66, “subject to the condition that upon notice by
the City Engineer, the owner shall, within reasonable time, demolish the enclosure of
said arcade at his own expense when public interest so demands.”

Decades after, in March 2003, MMDA conducted operations to clear obstructions

along EDSA, in consequence, they sent a notice of demolition to Justice Gancayco
alleging that a portion of his building violated the National Building Code.

Gancayco did not comply with the notice and filed a petition for TRO with the RTC
Quezon City to prohibit the MMDA from demolishing his property. The RTC
rendered its Decision on 30 September 2003 in favor of Justice Gancayco. It held that
the questioned ordinance was unconstitutional, ruling that it allowed the taking of
private property for public use without just compensation. The RTC said that because
67.5 square meters out of Justice Gancayco’s 375 square meters of property were
being taken without compensation for the public’s benefit, the ordinance was
confiscatory and oppressive. It likewise held that the ordinance violated owners’ right
to equal protection of laws.

MMDA appealed with the CA. CA held that the MMDA went beyond its powers
when it demolished the subject property. It further found that Resolution No. 02-28
only refers to sidewalks, streets, avenues, alleys, bridges, parks and other public
places in Metro Manila, thus excluding Justice Gancayco’s private property. Lastly,
the CA stated that the MMDA is not clothed with the authority to declare, prevent or
abate nuisances.

ISSUE: 
Whether or not the wing wall of Justice Gancayco’s building is a public nuisance. 

HELD: 
We find that petitioner was not guilty of estoppel. When it made the undertaking to
comply with all issuances of the BIR, which at that time it considered as valid,
petitioner did not commit any false misrepresentation or misleading act.

Justice Gancayco may not question the ordinance on the ground of equal protection
when he also benefited from the exemption. It bears emphasis that Justice Gancayco
himself requested for an exemption from the application of the ordinance in 1965 and
was eventually granted one. Moreover, he was still enjoying the exemption at the time
of the demolition as there was yet no valid notice from the city engineer. Thus, while
the ordinance may be attacked with regard to its different treatment of properties that
appears to be similarly situated, Justice Gancayco is not the proper person to do so.

The fact that in 1966 the City Council gave Justice Gancayco an exemption from
constructing an arcade is an indication that the wing walls of the building are not
nuisances per se.  The wing walls do not per se immediately and adversely affect the
safety of persons and property. The fact that an ordinance may declare a structure
illegal does not necessarily make that structure a nuisance. Clearly, when Justice
Gancayco was given a permit to construct the building, the city council or the city
engineer did not consider the building, or its demolished portion, to be a threat to the
safety of persons and property. This fact alone should have warned the MMDA
against summarily demolishing the structure.

Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its
condemnation. It does 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 it authorize the
extrajudicial condemnation and destruction of that as a nuisance which in its nature,
situation or use is not such. Those things must be determined and resolved in the
ordinary courts of law.

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in

CA-G.R. SP No. 84648 is AFFIRMED.

SO ORDERED.
DOCTRINE: Respondents’ fence is not a nuisance per se.  By its nature, it is not
injurious to the health or comfort of the community.

CASE TITLE: Jaime S. Perez vs. Spouses Fortunito Madrona, GR. No. 184478,
March 21, 2012

FACTS:
Spouses are registered owners of a residential property in Green Heights Subdivision,
Marikina City. In 1989, spouses built their house thereon and enclosed it with
concrete fence and steel gate.

1999, James Perez as Chief Demolition Officer sent a letter to the spouses ordering
them to remove the fence encroaching the public drainage. As response, Madrona sent
a response letter to Perez condemning the order of demolition with the following
contention: (1) contained an accusation libellous in nature as it is condemning him
and his property without due process; (2) has no basis and authority since there is no
court order authorizing him to demolish their structure; (3) cited legal bases which do
not expressly give petitioner authority to demolish; and (4) contained a false
accusation since their fence did not in fact extend to the sidewalk.

Respondents likewise sought the issuance of TRO to enjoin petitioner and all persons
acting under him doing any act of demolition on the property. Petitioner filed a
motion to lift the order of default, but the RTC denied the motion. Perez filed a
petition for certiorari before CA assailing the default order, CA dismissed the petition
for certiorari for lack of merit.

The RTC held that respondents, being lawful owners of the subject property, are
entitled to the peaceful and open possession of every inch of their property and
petitioner’s threat to demolish the concrete fence around their property is tantamount
to a violation of their rights as property owners who are entitled to protection under
the Constitution and laws.  The RTC also ruled that there is no showing that
respondents’ fence is a nuisance per se and presents an immediate danger to the
community’s welfare, nor is there basis for petitioner’s claim that the fence has
encroached on the sidewalk as to justify its summary demolition.
ISSUE: 
Did the trial court err in reinstating the complaint of respondents?

HELD: 
(For injunction to issue, two requisites must concur: first, there must be a right to be
protected and second, the acts against which the injunction is to be directed are
violative of said right. Here, the two requisites are clearly present: there is a right to
be protected, that is, respondents’ right over their concrete fence which cannot be
removed without due process; and the act, the summary demolition of the concrete
fence, against which the injunction is directed, would violate said right.

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.

Petitioner argues that he was just performing his duties and as public officer, he is
entitled to the presumption of regularity in the performance of his official functions. 
Unless there is clear proof that he acted beyond his authority or in evident malice or
bad faith, he contends that he cannot be held liable for attorney’s fees and costs of
suit. As respondents were forced to file a case against petitioner to enjoin the
impending demolition of their property, the award of attorney’s fees and costs of suit
is justified.  Clearly, respondents wanted to settle the problem on their alleged
encroachment without resorting to court processes when they replied by letter after
receiving petitioner’s first notice.  

WHEREFORE, the March 31, 2008 Decision and September 10, 2008 Resolution of
the Court of Appeals in CA-G.R. CV. No. 83675 are AFFIRMED with
MODIFICATION. Petitioner Jaime S. Perez, Chief of the Demolition Office of
Marikina City is ORDERED to pay respondent Spouses Fortunito L. Madrona and
Yolanda B. Pante moral damages in the amount of ₱10,000.00 and exemplary
damages in the amount of ₱5,000.00.

SO ORDERED.
DOCTRINE: In a contract of sale, title passes to the vendee upon the delivery of the
thing sold; whereas in a contract to sell, by agreement the ownership is reserved in the
vendor and is not to pass until the full payment of the price. In a contract of sale, the
vendor has lost and cannot recover ownership until and unless the contract is resolved
or rescinded; whereas in a contract to sell, title is retained by the vendor until the full
payment of the price, such payment being a positive suspensive condition and failure
of which is not a breach but an event that prevents the obligation of the vendor to
convey title from becoming effective

CASE TITLE: San Lorenzo Devt. Corp. vs. CA, GR. No. 124242, January 21,
2005

FACTS:
Respondents Spouses Miguel Lu and Pacita Zavalla Lu, owned two (2) parcels of land
situated in Sta. Rosa, Laguna. On 20 August 1986, the Spouses Lu purportedly sold
the two parcels of land to respondent Pablo Babasanta, Babasanta made a
downpayment of fifty thousand pesos (P50,000.00) as evidenced by a memorandum
receipt issued by Pacita Lu of the same date. Several other payments totaling two
hundred thousand pesos (P200,000.00) were made by Babasanta. Sometime in May
1989, Babasanta wrote a letter to Pacita Lu to demand the execution of a final deed of
sale in his favor so that he could effect full payment of the purchase price. In the same
letter, Babasanta notified the spouses about having received information that the
spouses sold the same property to another without his knowledge and consent. He
demanded that the second sale be cancelled and that a final deed of sale be issued in
his favor.

In response, Pacita Lu wrote a letter to Babasanta wherein she acknowledged having

agreed to sell the property to him at fifteen pesos (P15.00) per square meter. She,
however, reminded Babasanta that when the balance of the purchase price became
due, he requested for a reduction of the price and when she refused, Babasanta backed
out of the sale. Pacita added that she returned the sum of fifty thousand pesos
(P50,000.00) to Babasanta through Eugenio Oya.

On 2 June 1989, respondent Babasanta, as plaintiff, filed before the Regional Trial
Court, of San Pedro, Laguna, a Complaint for Specific Performance and Damages
against his co-respondents herein, the Spouses Lu. Babasanta alleged that the lands
had been sold to him by the spouses. Despite his repeated demands for the execution
of a final deed of sale in his favor, respondents allegedly refused.
On 19 January 1990, herein petitioner San Lorenzo Development Corporation
(SLDC) filed a Motion for Intervention before the trial court. SLDC alleged that it
had legal interest in the subject matter under litigation because on 3 May 1989, the
two parcels of land involved, had been sold to it in a Deed of Absolute Sale with
Mortgage. It alleged that it was a buyer in good faith and for value and therefore it
had a better right over the property in litigation.

After a protracted trial, the RTC rendered its Decision on 30 July 1993 upholding the
sale of the property to SLDC.

Respondent Babasanta appealed the trial court’s decision to the Court of Appeals. On
4 October 1995, the Court of Appeals rendered its Decision which set aside the
judgment of the trial court. It declared that the sale between Babasanta and the
Spouses Lu was valid and subsisting and ordered the spouses to execute the necessary
deed of conveyance in favor of Babasanta. The appellate court ruled that the Absolute
Deed of Sale with Mortgage in favor of SLDC was null and void on the ground that
SLDC was a purchaser in bad faith.
Hence, this petition.

ISSUE:
who between SLDC and Babasanta has a better right over the two parcels of land
subject of the instant case in view of the successive transactions executed by the
Spouses Lu.

HELD: 
An analysis of the facts obtaining in this case, as well as the evidence presented by the
parties, irresistibly leads to the conclusion that the agreement between Babasanta and
the Spouses Lu is a contract to sell and not a contract of sale. 

Contracts, in general, are perfected by mere consent, which is manifested by the

meeting of the offer and the acceptance upon the thing which are to constitute the
contract. The offer must be certain and the acceptance absolute. Moreover, contracts
shall be obligatory in whatever form they may have been entered into, provided all the
essential requisites for their validity are present.

The perfected contract to sell imposed upon Babasanta the obligation to pay the
balance of the purchase price. There being an obligation to pay the price, Babasanta
should have made the proper tender of payment and consignation of the price in court
as required by law. Mere sending of a letter by the vendee expressing the intention to
pay without the accompanying payment is not considered a valid tender of payment.
Consignation of the amounts due in court is essential in order to extinguish
Babasanta’s obligation to pay the balance of the purchase price. Glaringly absent from
the records is any indication that Babasanta even attempted to make the proper
consignation of the amounts due, thus, the obligation on the part of the sellers to
convey title never acquired obligatory force.

Explicitly, the law provides that the ownership of the thing sold is acquired by the
vendee from the moment it is delivered to him in any of the ways specified in Article
1497 to 1501. The word "delivered" should not be taken restrictively to mean transfer
of actual physical possession of the property. The law recognizes two principal modes
of delivery, to wit: (1) actual delivery; and (2) legal or constructive delivery.

Actual delivery consists in placing the thing sold in the control and possession of the
vendee. Legal or constructive delivery, on the other hand, may be had through any of
the following ways: the execution of a public instrument evidencing the sale;
symbolical tradition such as the delivery of the keys of the place where the movable
sold is being kept; traditio longa manu or by mere consent or agreement if the
movable sold cannot yet be transferred to the possession of the buyer at the time of
the sale; traditio brevi manu if the buyer already had possession of the object even
before the sale; and traditio constitutum possessorium, where the seller remains in
possession of the property in a different capacity.

However, it must be stressed that the juridical relationship between the parties in a
double sale is primarily governed by Article 1544 which lays down the rules of
preference between the two purchasers of the same property. It provides:

Art. 1544. If the same thing should have been sold to different vendees, the ownership
shall be transferred to the person who may have first taken possession thereof in good
faith, if it should be movable property.
Should it be immovable property, the ownership shall belong to the person acquiring
it who in good faith first recorded it in the Registry of Property.

Admittedly, SLDC registered the sale with the Registry of Deeds after it had acquired
knowledge of Babasanta’s claim. Babasanta, however, strongly argues that the
registration of the sale by SLDC was not sufficient to confer upon the latter any title
to the property since the registration was attended by bad faith. Specifically, he points
out that at the time SLDC registered the sale on 30 June 1990, there was already a
notice of lis pendens on the file with the Register of Deeds, the same having been
filed one year before on 2 June 1989.

Did the registration of the sale after the annotation of the notice of lis
pendens obliterate the effects of delivery and possession in good faith which
admittedly had occurred prior to SLDC’s knowledge of the transaction in favor of
Babasanta?

We do not hold so.

It must be stressed that as early as 11 February 1989, the Spouses Lu executed
the Option to Buy in favor of SLDC upon receiving ₱316,160.00 as option money
from SLDC. After SLDC had paid more than one half of the agreed purchase price of
₱1,264,640.00, the Spouses Lu subsequently executed on 3 May 1989 a Deed of
Absolute Sale in favor or SLDC. At the time both deeds were executed, SLDC had no
knowledge of the prior transaction of the Spouses Lu with Babasanta. Simply stated,
from the time of execution of the first deed up to the moment of transfer and delivery
of possession of the lands to SLDC, it had acted in good faith and the subsequent
annotation of lis pendens has no effect at all on the consummated sale between SLDC
and the Spouses Lu.

WHEREFORE, the instant petition is hereby GRANTED. The decision of the Court

of Appeals appealed from is REVERSED and SET ASIDE and the decision of the
Regional Trial Court, Branch 31, of San Pedro, Laguna is REINSTATED. No costs.

SO ORDERED.

DOCTRINE: The thing sold must be placed in his control. When there is no
impediment whatever to prevent the thing sold passing into the tenancy of the
purchaser by the sole will of the vendor, symbolic delivery through the execution of a
public instrument is sufficient. 

CASE TITLE: Union Motor Corp. vs. CA, GR. No. 117817, July 20, 2001

FACTS:
Bernal spouses purchased from (petitioner) Union Motor Corporation one Cimarron
Jeepney to be paid in installments and executed a promissory note and a deed of
chattel mortgage in favor of the petitioner, and entered into a contract of assignment
of the promissory note and chattel mortgage with Jardine-Manila Finance, Inc through
Manuel Sosmeña, an agent of the petitioner, although the respondent spouses have not
yet physically possessed the vehicle, Sosmeña required them to sign the receipt as a
condition for the delivery of the vehicle. 

Spouses continued paying the installments even if the subject motor vehicle remained
undelivered inasmuch as Jardine-Manila Finance, Inc. promised to deliver the subject
jeepney. The respondent spouses have paid a total of worth of installments before they
discontinued paying on account of non-delivery of the subject motor vehicle, the
reason why the vehicle was not delivered was due to the fact that Sosmeña allegedly
took the subject motor vehicle in his personal capacity. 

Jardine-Manila Finance, Inc., filed a complaint for a sum of money, against the
respondent Bernal spouses before the then Court of First Instance of Manila.The
complaint was amended and transferred to the Regional Trial Court of Makati to
include petitioner Union Motor Corporation as alternative defendant, after the
petitioner filed its answer, the respondent spouses filed their amended answer with
cross-claim against the former and counterclaim against Jardine-Manila Finance, Inc. 

The respondent spouses presented witnesses in support of their defense and

counterclaim against the plaintiff and cross-claim against the petitioner.The trial court
deemed the presentation of the said witness as having been waived by the petitioner.
Trial court rendered a decision ordering petitioner to pay the spouses. Not satisfied the
petitioner interposed an appeal before the Court of Appeals while the respondent
spouses appealed to hold the petitioner solidarily liable with Jardine-Manila Finance,
Inc.The appellate court denied both appeals and affirmed the trial court’s decision.
Hence this petition. 

ISSUE:
Whether there has been a delivery, physical or constructive, of the subject motor
vehicle.

HELD:
The respondent Bernal spouses should bear the loss thereof in accordance with Article
1504 that when the ownership of goods is transferred to the buyer, the goods are at the
buyer’s risk. But Bernal spouses never came into possession of the subject motor
vehicle. It is but appropriate that they be reimbursed by the petitioner of the initial
payment which they made. 

The court ruled in favor of the respondent Bernal spouses. Undisputed is the fact that
the respondent Bernal spouses did not come into possession of the subject Cimarron
jeepney that was supposed to be delivered to them by the petitioner. The registration
certificate, receipt and sales invoice that the respondent Bernal spouses signed were
signed as a part of the processing and for the approval of their application to buy the
subject motor vehicle. Without such signed documents, no sale, much less delivery, of
the subject jeepney could be made. 

The documents were not therefore an acknowledgment by respondent spouses of the

physical acquisition of the subject motor vehicle but merely a requirement of delivery.
Issuance of a sales invoice does not prove transfer of ownership of the thing sold to
the buyer; an invoice is nothing more than a detailed statement of the nature, quantity
and cost of the thing sold and has been considered not a bill of sale. The thing is
considered to be delivered when it is placed in the hands and possession of the
vendee. (Civil Code, Art. 1462). 

It is true that the same article declares that the execution of a public instrument is
equivalent to the delivery of the thing which is the object of the contract, but, in order
that this symbolic delivery may produce the effect, it is necessary that the vendor shall
have had control over the thing sold that, at the moment of the sale, its material
delivery could have been made. It is not enough to confer upon the purchaser the
ownership and the right of possession. 

The thing sold must be placed in his control. When there is no impediment whatever
to prevent the thing sold passing into the tenancy of the purchaser by the sole will of
the vendor, symbolic delivery through the execution of a public instrument is
sufficient. But if, notwithstanding the execution of the instrument, the purchaser
cannot have the enjoyment and material tenancy of the thing and make use of it
himself or through another in his name, because such tenancy and enjoyment are
opposed by the interposition of another will, then the delivery has not been effected.

Inasmuch as there was neither physical nor constructive delivery of a determinate

thing, (in this case, the subject motor vehicle) the thing sold remained at the sellers
risk.The petitioner should therefore bear the loss of the subject motor vehicle after
Sosmea allegedly stole the same. 

WHEREFORE, the appealed Decision dated March 30, 1994 of the Court of
Appeals is hereby AFFIRMED with the MODIFICATION that the award of moral
damages is deleted. With costs against the petitioner.

SO ORDERED.
DOCTRINE: For civil interruption to take place, the possessor must have
received judicial summons.

CASE TITLE: Heirs of Bienvenido and Araceli Tanyag vs. Gabriel, GR. No.
175763, April 11, 2012

FACTS: 
The subject of controversy are two adjacent parcels of lann d located Taguig: Lot 1
with an area of 686 square meters was originally declared in the name of Jose Gabriel
under Tax Declaration (TD) Nos. 1603 and 6425 issued for the years 1949 and 1966.
Lot 2 with an of 147 square meters was originally declared in the name of Agueda
Dinguinbayan under TD Nos. 6418 and 9676 issued for the years 1966 and 1967.

Petitioners claimed that Lot 1 was originally owned by Benita, although it was
declared under the name of Jose in the Tax Declarations. They presented the
“Affidavit of Sale” executed by Benita in favor of Gabriel and Cornelio. Benita was
indicated as the owner of Lot 1 in the affidavit.

Florencia, who is the daughter of Benita, married the son of Gabriel, Eliseo. Florencia
was in possession of Lot1 when she sold it to Bienvenido. A deed of sale was
executed in October 14, 1964 between Florencia and Bienvenido. From thereon, the
Bienvenido possessed the land. The property was also declared for tax pupropses
under the name of Arceli, wife of Bienvenido.

As for lot 2, it was originally owned by Agueda which was later sold to Arceli.
Respondents claimed that they inherited the land from Jose Gabriel, the name
appeared in the tax declaration for the years of 1949 and 1966. As part of their
evidence, they presented the extrajudicial settlement of Jose Gabriel.

It appear on the records that the respondent have sold portions of Lot 1 to Sta.
Barbara. The respondents were able to obtain an Original Certificate of Title over the
said property in 1998. Petitioners filed a complaint for the nullity of the OCT,
reconveyance and damages before the Regional Trial Court. They alleged that
respondents never occupied the property and that the OCT was null and void. They
also argued acquisitive prescription over the property.

On the other hand, the respondents filed a counterclaim. The Regional Trial Court
dismissed the complaint as well as the counterclaim citing that the petitioners failed to
establish ownership. The petitioners appealed to the Court of Appeals which affirmed
the decision of the Regional Trial Court stressing that apart from the “Affidavit of
Sale”, there was no evidence that shows the true ownership of the petitioners.
Petitioners filed for a motion for reconsideration which was also denied by the Court
of Appeals. Aggrieved by the decision, petitioners filed a petition for review under
Rule 45 which seeks to reverse the decision of the Court of Appeals. Petitioners assail
the CA in not finding that the respondents obtained OCT in their names fraudulently
and in bad faith. They also claim to have acquired ownership of the subject lots by
virtue of acquisitive prescription.

ISSUE:
Whether or not factual issues may be raised in a petition for review on certiorari. 

HELD:
As a rule, only questions of law may be raised in a petition for review under Rule 45
of the Rules of Court. In many instances, however, the Supreme Court has laid down
exceptions to this general rule. The CA correctly observed that the only evidence of
Benita Gabriel’s supposed title was the 1944 Affidavit of Sale whereby Benita
Gabriel claimed sole ownership of Lot 1 as her inheritance from their father, Mateo
Gabriel. However, the CA did not address the issue of acquisitive prescription raised
by the petitioners.
The respondents never occupied the whole area. Furthermore, petitioners alleged that
they have been in actual, open continuous, adverse and notorious possession for more
than thirty years which is equivalent to title. Such character and length of possession
of a party over a parcel of land subject of controversy is a factual issue.

Settled is the rule that questions of fact are not reviewable in petitions for review on
certiorari under Rule 45 of the Rules of Court, as only questions of law shall be raised
in such petitions. While Supreme Court is not a trier of facts, if the inference drawn
by the appellate court from the facts is manifestly mistaken, it may, in the interest of
justice, review the evidence in order to arrive at the correct factual conclusions based
on the record.

In this case, the CA was mistaken in concluding that petitioners have not acquired any
right over the subject property simply because they failed to establish Benita Gabriel’s
title over said property. The appellate court ignored petitioners’ evidence of
possession that complies with the legal requirements of acquiring ownership by
prescription.

On the matter of prescription, the Civil Code provides:

Art. 1117. Acquisitive prescription of dominion and other real rights may be
ordinary or extraordinary.

Ordinary acquisitive prescription requires possession of things in good faith and

with just title for the time fixed by law.

Art. 1134. Ownership and other real rights over immovable property are acquired
by ordinary prescription through possession of ten years.

Art. 1137. Ownership and other real rights over immovables also prescribe
through uninterrupted adverse possession thereof for thirty years, without need
of title or of good faith. 

Petitioners’ adverse possession is reckoned from 1969 with the issuance of TD No.
1145 in the name of Araceli Tanyag, which tax declaration cancelled TD No. 6425 in
the name of Jose Gabriel. It is settled that tax receipts and declarations are prima
facie proofs of ownership or possession of the property for which such taxes have
been paid. Coupled with proof of actual possession of the property, they may become
the basis of a claim for ownership.

It was only in 1979 that respondents began to assert a claim over the property by
securing a tax declaration in the name of Jose Gabriel albeit over a bigger area than
that originally declared.  In 1998, they finally obtained an original certificate of title
covering the entire 1,763 square meters which included Lot 1.  Did these acts of
respondents effectively interrupt the possession of petitioners for purposes of
prescription?

We answer in the negative.

In the case of Heirs of Marcelina Azardon-Crisologo v. Rañon this Court citing

Article 1123 of the Civil Code held that civil interruption takes place with the service
of judicial summons to the possessor and not by filing of a mere Notice of Adverse
Claim.  Thus:

Article 1123 of the Civil Code is categorical.  Civil interruption is produced by

judicial summons to the possessor.  Moreover, even with the presence of judicial
summons, Article 1124 sets limitations as to when such summons shall not be deemed
to have been issued and shall not give rise to interruption, to wit: 1) if it should be
void for lack of legal solemnities; 2) if the plaintiff should desist from the complaint
or should allow the proceedings to lapse; or 3) if the possessor should be absolved
from the complaint.

Both Article 1123 and Article 1124 of the Civil Code underscore the judicial
character of civil interruption.  For civil interruption to take place, the possessor
must have received judicial summons.  None appears in the case at bar.  The Notice
of Adverse Claim which was filed by petitioners in 1977 is nothing more than a notice
of claim which did not effectively interrupt respondents’ possession.  Such a notice
could not have produced civil interruption.  We agree in the conclusion of the RTC,
which was affirmed by the Court of Appeals, that the execution of the Notice of
Adverse Claim in 1977 did not toll or interrupt the running of the prescriptive period
because there remains, as yet, a necessity for a judicial determination of its judicial
validity.  What existed was merely a notice.  There was no compliance with Article
1123 of the Civil Code.  What is striking is that no action was, in fact, filed by
petitioners against respondents.  As a consequence, no judicial summons was
received by respondents. As aptly held by the Court of Appeals in its affirmance of
the RTC’s ruling, the Notice of Adverse Claim cannot take the place of judicial
summons which produces the civil interruption provided for under the law. In the
instant case, petitioners were not able to interrupt respondents’ adverse possession
since 1962.  The period of acquisitive prescription from 1962 continued to run in
respondents’ favor despite the Notice of Adverse Claim. 

WHEREFORE, the petition is PARTLY GRANTED.  The Decision  dated August

18, 2006 of the Court of Appeals in CA-G.R. CV No. 81224 is MODIFIED in that
petitioners heirs of Bienvenido and Araceli Tanyag are hereby declared the owners of
686 square meters previously declared under Tax Declaration Nos. 11445, 120-014-
00486, 120-014-0085, B-014-00501, E-014-01446, C-014-00893 and D-014-00839
all in the name of Araceli Tanyag, which lot is presently covered by OCT No. 1035
issued by the Register of Deeds of Pasig, Metro Manila in the name of respondents
Salome Gabriel, Nestor R. Gabriel, Luz Gabriel-Arnedo, Nora Gabriel-Calingo, Pilar
Gabriel-Mendiola, Minerva Gabriel-Natividad and Erlinda Gabriel-Velasquez. 
Respondents are ORDERED to RECONVEY the said 686-square meter portion to the
petitioners.

No pronouncement as to costs.

SO ORDERED.