NUISANCE

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;
2. Annoys or offends the senses;
3. Shocks, defies or disregards decency or morality;
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

Kinds of Nuisance
1. As to the number of persons affected:
a. Public (or common) – One that 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
(Suarez, 2011); and
b. Private – one which affects an individual or few persons only

2. Other classification:
a. Nuisance per se – That kind of nuisance which is always a nuisance. By its nature, it is always a
nuisance all the time under any circumstances regardless of location or surroundings;
b. Nuisance per accidens – That kind of nuisance by reason of location, surrounding or in a manner it is
conducted or managed;
c. Temporary – That kind which if properly attended does not constitute a nuisance;
d. Permanent – That kind which by nature of structure creates a permanent inconvenience;
e. Continuing – That kind which by its nature will continue to exist indefinitely unless abated;
f. Intermittent – That kind which recurs off and on and may be discontinued anytime;
g. Attractive Nuisance – One who maintains on his premises dangerous instrumentalities or appliances
of a character likely to attract children in play, and who fails to exercise ordinary care to prevent
children from playing therewith or resorting thereto, is liable to a child of tender years who is injured
thereby, even if the child is technically a trespasser in the premises.

Nuisance per se v. PER ACCIDENS

Nuisance per
accidens PER SE
As a matter of law. As a matter of fact.
Need only be proved Depends upon its
in any locality. location and
surroundings, the
manner of its conduct
or other
circumstances.
May be summarily May be abated only
abated under the law with reasonable notice
of necessity. to the person alleged
to be maintaining or
doing such nuisance.

ATTRACTIVE NUISANCE
One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract
children in play, and who fails to exercise ordinary care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a
trespasser in the premises

Basis for liability

The attractiveness is an invitation to children. Safeguards to prevent danger must therefore be set up.

Elements of attractive nuisance

1. It must be attractive;
2. Dangerous to children of tender years.

NOTE: The doctrine of attractive nuisance does not generally apply to bodies of water, artificial as well as natural in
the absence of some unusual condition or artificial feature other than the mere water and its location.

PUBLIC NUISANCE AND PRIVATE NUISANCE

Remedies against public nuisances

1. Prosecution under the RPC or any local ordinance;
2. Civil action; or
3. Abatement, without judicial proceeding (NCC, Art. 699)

Remedies against private nuisances

1. Civil action; or
2. Abatement, without judicial proceedings (NCC, Art. 705).

NOTE: 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 extra-judicial abatement of a public nuisance by a private
person be followed (NCC, Art. 706).

Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started
by a former owner or possessor is liable therefor in the same manner as the one who created it (NCC, Art. 696).

Extra-judicial abatement (2002 Bar)

Requisites of extra-judicial abatement (BAR VID)

1. The nuisance must be specially Injurious to the person affected;
2. No Breach of peace or unnecessary injury must be committed;
3. Demand must first be made upon the owner or possessor of the property to abate the nuisance;
4. Demand is Rejected;
5. Abatement is Approved by the district health officer and executed with the assistance of the local police;
and
6. Value of destruction does not exceed P3,000

NOTE: An extra-judicial abatement can only be applied for if what is abated is a nuisance per se and not
nuisance per accidens.

Liability for damages in case of extrajudicial abatement of nuisance

The private person or a public official extrajudicially abating a nuisance is liable for damages to the owner of
the thing abated, if he causes unnecessary injury or if an alleged nuisance is later declared by courts to be not
a real nuisance (NCC, Art. 707).
The right to question the existence of a nuisance DOES NOT prescribe; it is imprescriptible.
 FARRALES v CITY MAYOR OF BAGUIO
Makalintal, J.
No. L-24245. – April 11, 1972
FACTS:
● Farrales is the holder of a municipal license to sell liquor and sari-sari goods
● To construct a permanent building, the city demolished the temporary building where she had
her stall
 Farrales was ordered to move her goods to another temporary place until the completion
of the construction
o She did not like the location she was assigned
 Farrales built a temporary shack on the cement passageway at one end of the Rice
Section of the Baguio City Market instead of installing her temporary stall at the assigned
place
o She did not seek prior permit or permission from any city official
 The police threatened to demolish the shack
● Farrales sought an injunction with the CFI of Baguio
 CFI refused to issue an injunction unless she could show proper permit
 Farrales was unable to show said permit so the police demolished her shack
o After bringing the materials and goods to Baguio City Hall, the police delivered
them to Farrales
o Farrales cited the police for contempt
● September 19, 1956: CFI of Baguio denied Farrales’ petition
 CFI’s order was final in character since no appeal was filed
 To evade the effects of res judicata, Farrales amended her complaint, so as to include the
policemen involved in the demolition as Defendants
o She argued that the proper procedure should have been for either the City
Engineer or the City Health Officer to commence legal proceedings for the
abatement of this “nuisance”, pursuant to the Charter of the City of Baguio
● The CFI held that the shack was a “nuisance”
 The police properly demolished the shack, as it was built in defiance of orders from City
Hall officials
 The police need not wait for orders from the City Engineer or the City Health Officer to
act
o They can clear the passageway on their own responsibility
● On appeal, the CA certified the appeal to the SC as only questions of law were involved
● Farrales’ Argument
 The shack put up by her inside the premises of the Baguio City Market was not a nuisance
 If it were a nuisance at all, it was not a nuisance per se
o Rather, it was a nuisance per accidens, which could be abated only after the
corresponding judicial proceeding
ISSUES/HELD/RATIO:
1. W/N Farrales’ shack was a nuisance – YES
● Farrales did not have a permit to put up the temporary stall in question in the place where she
built one
● The shack’s location on the cement passageway at the end of the Rice Section building
constituted an obstruction to the free movement of people
 ●The photographs marked as Exhibits 3, 4, 6 show that what Farrales built cannot be considered a
temporary stall
 It was merely a lean-to, improvised with pieces of used scrap iron roofing sheets
 It was not a “building” within the meaning of the Charter of the City of Baguio, which
Farrales relied upon
o It is the Charter that vests the City Engineer with the power to cause buildings,
dangerous to the public, to be made secure or torn down
2. W/N Farrales should be awarded damages due to the demolition of her shack – NO
● Article 702 of the Civil Code states that “the District Officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a public nuisance”
 However, in this case, the failure to observe this provision is not in itself a ground for the
award of damages in favor of the appellant and against the appellees
● According to Art. 707 of the same Code, a public official extrajudicially abating a nuisance shall
be liable for damages in only two cases:
 (1) if he causes unnecessary injury, or
 (2) if an alleged nuisance is later declared by the courts to be not a real nuisance
● In this case, the plaintiff is clearly not entitled to collect damages
 There was no unnecessary injury was caused to the appellant
 There was no judicial declaration that the alleged nuisance was not really so
o After conducting a hearing, the trial court found that it was in fact a nuisance
 The denial of her petition for injunction upon her failure to produce such a
permit was in effect an authority for the police to carry out the act which
was sought to be enjoined
o Thus, it may be said that the abatement thereof was not summary, but through a
judicial proceeding

DISPOSITIVE PORTION
WHEREFORE, the judgment appealed from is affirmed, without pronouncement as to costs.

RESTITUTO CALMA,  vs.

THE HON. COURT OF APPEALS (FIFTH DIVISION) and PLEASANTVILLE DEVELOPMENT
CORPORATION,

G.R. No. 78447 August 17, 1989

FACTS:

 In 1975, the spouses Restituto and Pilar Calma purchased a lot, built a house and established
residence in respondent Pleasantville.
 Fabian and Nenita Ong also purchased from PLEASANTVILLE a lot fronting that of the Calma
spouses and constructed their own buildings where they resided and conducted their business.
 Calma complaint about the utilization of Ongs residence as a lumber yard and that a "loathsome
noise and nervous developing sound" emanating therefrom disturbed him and his family and
caused them and their son to suffer nervous tension and illness.
 The Calma spouses filed a complaint for damages against the Ong spouses and
PLEASANTVILLE before the Court of First Instance of Negros Occidental.
 Petitioner also filed with the National Housing Authority (NHA), a complaint for "Violation of the
Provisions, Rules and Regulations of the Subdivision and Condominium Buyers Protective
 Decree under Presidential Decree No. 957. Petitioner prayed that PLEASANTVILLE be ordered
to abate the alleged nuisance and recover damages for their medical problems purportedly
caused by the nuisance.
 The COMMISSION (which had in the meantime taken over the powers of the NHA,)*rendered a
decision dismissing the complaint of the petitioner for lack of merit, but included a portion holding
PLEASANTVILLE responsible for the abatement of the alleged nuisance on the ground that it
was part of its implied warranty that its subdivision lots would be used solely and primarily for
residential purpose.
 Aggrieved, PLEASANTVILLE filed a petition for prohibition with preliminary injunction with this
Court assailing the portion of the COMMISSION's decision.
 PLEASANTVILLE asserted that since the COMMISSION had found that it did not violate any
provision of P.D. No. 957, the COMMISSION exceeded its jurisdiction when it ordered
PLEASANTVILLE to prevent/abate the alleged nuisance complained of.
 The Court of Appeals rendered judgment holding that the COMMISSION "acted capriciously and
in excess of its jurisdiction in imposing an obligation upon the petitioner after absolving it of the
complaint filed against it".
 Petitioner moved for reconsideration but the Court of Appeals denied his motion. Hence, the
instant petition.

ISSUE: Whether or not the Commission gravely abuse its discretion in ruling that Ongs property
constituted a nuisance.

RULING:

Yes. The COMMISSION's conclusion that the activities being conducted and the structures in the
property of the Ongs constituted a nuisance was not supported by any evidence. The Solicitor General
himself, in his comment filed in the Court of Appeals, admits that the decision of the COMMISSION did
not make any finding of a nuisance. Apparently, on the basis of position papers, the COMMISSION
assumed the existence of the nuisance, without receiving evidence on the matter, to support its order for
the prevention or abatement of the alleged nuisance.

Moreover, the spouses Ong, were not even party to the proceedings before the COMMISSION who would
be directly affected by a decision favorable to petitioner. To declare their property or the activities being
conducted therein a nuisance, and to order prevention and abatement, without giving them an opportunity
to be heard would be in violation of their basic right to due process.

Hence, no reversible error was committed by the Court of Appeals when it nullified the assailed portion of
the COMMISSION's decision, the order granting the writ of execution, and any writ of execution issued
pursuant thereto.

But all is not lost for petitioner and his family. There is still a pending civil case instituted by petitioner. In
said proceeding the factual issues can be fully threshed out and the Ong spouses, the parties who shall
be directly affected by any adverse judgment, shall be afforded the opportunity to be heard as they had
been impleaded as defendants therein together with PLEASANTVILLE.
Iloilo Cold Storage v. Municipal Council, 24 Phil 471 (1913)

Facts:

 Herein defendants allowed the petitioners to construct their ice plant but upon several
complaints by the nearby residents (smoke from the plant was very injurious to their health and
comfort), the defendant appointed a committee to investigate.

 As the complaints were found true, the defendant ordered the petitioner to elevate the
smokestacks and non-compliance will lead to suspension of operation of the establishment.

 Petitioner filed a complaint – that the resolution has no intervention of the court and that the
smokestacks be elevated to 100 feet they are compelled to construct is unnecessary and they
are not obliged to do it; hence, they will not do it. ---- a preliminary injunction was issued.   

Issue:

-          w/n the respondent has the absolute power to declare anything a nuisance. - NO

-          w/n herein petitioner is a nuisance. –  NOT YET

Held:

NUISANCES. — Nuisances may be divided into two classes: Nuisances per se and nuisances per
accidens. The former are recognized as nuisances under any and all circumstances. The latter are such
only because of the special circumstances and conditions surrounding them. 

MUNICIPAL CORPORATIONS; ABATEMENT OF NUISANCES IN EMERGENCIES — A nuisance which

affects the immediate safety of persons or property, or which constitutes an obstruction to the streets
and highways under circumstances presenting an emergency, may be summarily abated under the
undefined law of necessity. But, in any case, the declaration of the municipal council that the thing or
act is a nuisance is not conclusive. The owner of the alleged nuisance has the right to test the validity
of the action of the council in a court of law.

ABATEMENT OF NUISANCES IN OTHER CASES. — If no compelling necessity requires the summary

abatement of a nuisance, the municipal authorities, under their power to declare and abate nuisances,
do not have the right to compel the abatement of a particular thing or act as a nuisance without
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.

COST OF ABATING A NUISANCE. — A city cannot burden the property of a citizen with the cost of
abating a nuisance per accidens without a judicial hearing and judgment as to its existence.

INJUNCTION. — Injunction lies to restrain a city from proceeding with the abatement of a nuisance
per accidens before it has been judicially declared to be such.
EXPRESS AND IMPLIED POWER TO ABATE NUISANCES. — If the charter or license does not expressly
subject the business or industry to the exercise of the police power of the State, it is conceded, by the
great preponderance of authority, that such a reservation is implied to the extent that may be
reasonably necessary for the public welfare.

Fallo: order sustaining the plaintiff’s demurrer to the defendant’s answer is reversed. Record to be
returned to the court and commence trial.