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I. Nuisance

1. CONCEPT

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. (Article 694, Civil Code)

Based on case law, however, the term “”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.” (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

2. CLASSIFICATIONS

a. As to objects affected

Nuisance is either public or private. (Article 695, Ibid.)

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:

1) Public nuisance; or

2) Private nuisance. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

1) Public nuisance

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. (Article 695, Ibid.)

a) District health officer’s responsibility

The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. (Article 700, Ibid.)

The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance.(Article 702, Ibid.)

b) City or municipal mayor’s responsibility

If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. (Article 701, Ibid.)

1) Private nuisance

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. (Article 695, Ibid.)

A private nuisance is one which violates only private rights and produces damages to but one or a few persons. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

b. As to legal susceptibility to summary abatement

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary abatement (that is, corrective action without prior judicial permission). In this regard, a nuisance may either be:

1) Nuisance per se; or

2) Nuisance per accidens. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

1. Nuisance per se

a. CONCEPT

A nuisance per se is one which “affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity” (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

2. Nuisance per accidens

a. CONCEPT

A nuisance per accidens is one 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.” (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

b. NO SUMMARY PROCEDURE FOR NUISANCE PER ACCIDENS

Unless a nuisance is a nuisance per se, it may not be summarily abated. Jurisprudence has emphasized the need for judicial intervention when the nuisance is not a nuisance per se. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

3. Liabilities

a. CONTINUING LIABILITY

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. (Article 696, Ibid.)

b. RIGHTS OF PREVIOUSLY INJURED PRIOR TO ABATEMENT

The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. (Article 697, Ibid.)

4. No prescription

a. LAPSE OF TIME, NO EFFECT

Lapse of time cannot legalize any nuisance, whether public or private. (Article 698, Ibid.)

5. Criminal prosecution

a. REMEDIES AGAINST A PUBLIC NUISANCE

The remedies against a public nuisance are:

1) A prosecution under the Penal Code or any local ordinance: or

2) A civil action; or

3) Abatement, without judicial proceedings. (Article 699, Ibid.)

b. CRIMINAL LIABILITY

Criminal liability may arise under:

1) Revised penal code; or

2) Local ordinance.

6. Judgment with abatement

a. CONCEPT

One of the remedies against a public nuisance is a civil action. (Article 699, Ibid.)

Abatement may be judicially sought through a civil action therefor if the pertinent requirements under the Civil Code for summary abatement, or the requisite that the nuisance is a nuisance per se, do not concur. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

b. CUMULATIVE WITH RIGHT TO RECOVER FOR DAMAGES

To note, the remedies of abatement and damages are cumulative; hence, both may be demanded. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

7. Extrajudicial abatement

a. CONCEPT

One of the remedies against a public nuisance is abatement without judicial proceedings. (Article 699, Ibid.)

b. BY WHOM

1) Private person

Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary:

1) That demand be first made upon the owner or possessor of the property to abate the nuisance;

2) That such demand has been rejected;

3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and

4) That the value of the destruction does not exceed three thousand pesos. (Article 704, Ibid.)

2) Public officials (administrative authorities)

A private person or a public official extrajudicially abating a nuisance shall be liable for damages:

1) If he causes unnecessary injury; or

2) If an alleged nuisance is later declared by the courts to be not a real nuisance. (Article 707, Ibid.)

a) Cases of extrajudicial abatement by public officials or administrative authorities

(1) Ruinous buildings

If a building, wall, column, or any other construction is in danger of falling, the owner shall be obliged to demolish it or to execute the necessary work in order to prevent it from falling. (Article 482, Ibid.)

If the proprietor does not comply with this obligation, the administrative authorities may order the demolition of the structure at the expense of the owner, or take measures to insure public safety. (Paragraph 2, Article 482, Ibid.)

(2) Trees in danger of falling

Whenever a large tree threatens to fall in such a way as to cause damage to the land or tenement of another or to travelers over a public or private road, the owner of the tree shall be obliged to fell and remove it; and should he not do so, it shall be done at his expense by order of the administrative authorities. (Article 483, Ibid.)

c. LIABILITY IN CASE OF EXTRAJUDICIAL ABATEMENT

A private person or a public official extrajudicially abating a nuisance shall be liable for damages:

1) If he causes unnecessary injury; or

2) If an alleged nuisance is later declared by the courts to be not a real nuisance. (Article 707, Ibid.)

1) General welfare clause not a defense in case of nuisance per accidens

Public officials 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. 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. (Rana v. Wong, G.R. No. 192861, 30 June 2014)

8. Special injury to individual

a. CONCEPT

A private person may file an action on account of a public nuisance, if it is specially injurious to himself. (Article 703, Ibid.)

9. Right of individual to abate a public nuisance

a. CONCEPT

1) Judicial abatement

A private person may file an action on account of a public nuisance, if it is specially injurious to himself. (Article 703, Ibid.)

2) Extrajudicial abatement

Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary:

1) That demand be first made upon the owner or possessor of the property to abate the nuisance;

2) That such demand has been rejected;

3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and

4) That the value of the destruction does not exceed three thousand pesos.(Article 704, Ibid.)

10. Right to damages

a. RECOVERY OF DAMAGES

The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. (Article 697, Ibid.)

Aside from the remedy of summary abatement which should be taken under the parameters stated in Articles 704 (for public nuisances) and 706 (for private nuisances) of the Civil Code, a private person whose property right was invaded or unreasonably interfered with by the act, omission, establishment, business or condition of the property of another may file a civil action to recover personal damages. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

b. CUMULATIVE WITH ABATEMENT

To note, the remedies of abatement and damages are cumulative; hence, both may be demanded. (Rana v. Lee Wong, G.R. Nos. 192861 and 192862, 30 June 2014)

11. Defenses to action

a. DEFENSES

1) Unjustified condemnation

When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. (Article 436, Ibid.)

12. Who may sue on private nuisance

The remedies against a private nuisance are:

1) A civil action; or

2) Abatement, without judicial proceedings. (Article 705, Ibid.)

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.(Article 706, Ibid.)

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