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.
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.
Art. 696. 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.
Art. 697. The abatement of a NUISANCE does not preclude the right of any person injured to recover
damages for its past existence.
Art. 698. Lapse of time cannot legalize any NUISANCE, whether public or private.
Art. 699. 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.
Art. 700. The district health officer shall take care that one or all of the remedies against a public
NUISANCE are availed of.
Art. 701. 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.
Art. 702. The district health officer shall determine whether or not abatement, without judicial
proceedings, is the best remedy against a public NUISANCE.
Art. 703. A private person may file an action on account of a public NUISANCE, if it is specially
injurious to himself.
Art. 704. 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.
Art. 705. The remedies against a private NUISANCE are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
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.
Art. 707. 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.
The United States brought this suit for declaratory and injunctive relief against Arlington County,
Virginia; Arland Towers Company; Rosslyn Center Development Corporation; Twin Development
Corporation; and Theodore B. Gould, to prevent the construction of four high-rise office buildings and
one hotel in the Rosslyn section of the Countyon the grounds of illegal zoning and federal common
law NUISANCE.
The complaint alleges that the Secretary of the Interior is charged by law to conserve the scenery and
the natural and historical objects [in the parks and monuments] and to provide for the enjoyment of the
same in such manner and by such means as will leave them unimpaired for the enjoyment of future
generations and
As guardian of our national parks, the Secretary has a constitutionally and Congressionally-based
mandate to protect the rights of the public in the parks which he deems threatened by this commercial
development in Arlington County.
That through the National Capital Planning Commission the United States is charged with preserving
the historical and natural features thereof by, among other things, maintaining the open space
requirements along the Virginia shoreline that L'Enfant intended as a most important segment of the
green backdrop of the monuments of the Capital.
That the United States owns property in both Arlington County, Virginia and the District of Columbia
upon which are memorials and monuments revered by all American citizens.
That the buildings for which the site plans were unlawfully approved will soar high above the present
Rosslyn skyline.
That they will present visual intrusions to the enjoyment of such areas as the Lincoln Memorial, the
Washington Monument, the Theodore Roosevelt Memorial, the John F. Kennedy Center, and other
park lands in the District of Columbia, and the Arlington National Cemetery and the Iwo Jima Marine
*140 Memorial in Arlington County, Virginia.
That the traffic generated as a result of the density and building heights greater than permitted under
the Arlington County Ordinances will also have an adverse impact on traffic conditions on the George
Washington Memorial Parkway located, in part, in Arlington County.
That by reason of the foregoing, the interests of the United States and its people have been and will
be injured through the visual intrusion of the defendants' buildings on the memorials, monuments and
parks of our Nation's Capital, and by the increased traffic and congestion resulting from the use of the
buildings constructed under the unlawful site plans of development and in violation of the zoning
ordinance of Arlington County, and the laws of the State of Virginia.
Jurisdiction pursuant to 28 U.S.C. § 1345 was not seriously questioned.
The defendants denied all of the Government's charges and asserted numerous grounds of defense,
including standingestoppel lachesand the Virginia [zoning] statute of limitations.
After the United States' motion for a temporary restraining order was heard and deniedthe
Government dismissed the Rosslyn Center Development Corporation, as a party defendant without
prejudice (the Rosslyn Center Building was about ready to be topped out).
The test for determining whether the United States or any person has standing to sue is stated in
Arlington Heights v. Metro Housing Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). The
Supreme Court said, at page 260-261, 97 S.Ct. at 561:

The essence of the standing question, in its constitutional dimension, is "whether the
plaintiff has `alleged such a personal stake in the outcome of the controversy' [as] to
warrant his invocation of federal-court jurisdiction and to justify exercise of the court's
remedial powers on his behalf." * * * The injury may be indirect, [citation omitted] but the
complaint must indicate that the injury is indeed fairly traceable to the defendants' acts or
omissions.

The United States has alleged such a personal stake in the outcome of this controversy it is the
property of the United States, its parks, memorials and monuments held for the use and enjoyment of
the citizens of this country that will be adversely affected by defendants' actions.

Although as a sovereign the United States may not be sued * * * they may bring suits to
enforce their contracts and protect their property, in the State courts, or in their own
tribunals administering the same laws. As owner of property in almost every State in the
Union, they have the same right to have it protected by the local laws that other persons
 have. See Cotton v. United States, 52 U.S. 229, 231, 11 How. 229, 13 L. Ed. 675 (1880).

The Supreme Court in In Re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1895), made quite
clear, the United States may sue, not only to protect its property * * but also to protect the general
welfare and the interests of all.

Every government, entrusted, by the very terms of its being, with powers and duties to be
exercised and discharged for the general welfare, has a right to apply to its own courts for
any proper assistance in the exercise of the one and the discharge of the other, and it is no
sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the
matter. The obligations which it is under to promote the interest of all and to prevent the
wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to
give it a standing in court. Id., 584, 15 S. Ct. 906.

See, also, Cappaert v. United States, 426 U.S. 128, 96 S. Ct. 2062, 48 L. Ed. 2d 523 wherein the
United States filed suit to protect Devil's Hole National Monument from injury, and United States v.
Ray, 423 F.2d 16 (5 Cir. 1970), wherein the United States sought to prevent the construction of coral
reefs by private developers.
*141 Lack of express congressional authority does not bar the Attorney General of the United States
from bringing this suithe has standing to institute and conduct litigation to protect the rights and
properties of the United States.
The defendants' motion to dismiss for lack of standing is denied.
Although the Government should not have waited until the buildings in question were under
construction before bringing this suitlaches, or neglect on the part of Government officials is no
defense to a suit to enforce a public right or protect a public interest. See Utah Power and Light v.
United States, 243 U.S. 389, 37 S. Ct. 387, 61 L. Ed. 791 (1917), and Loftus v. Mason, 240 F.2d 428
(4 Cir. 1957).
Therefore, the defendants' motion to dismiss the suit on laches and/or estoppel is denied.
Although the Attorney General concedes that the United States has no constitutional or statutory right
to regulate land use in Rosslynhe claims the United States, as a Virginia property owner, has the right
to question the validity of a nearby zoning that affects its property.
The defendants contend that if the United States has such right, it is time barred by Sections 15.1-
496.1 and .3 of the Virginia Code. Those with actual notice may appeal to the Board of Zoning Appeals
within 30 days.
To prevent construction of a building in violation of zoning ordinance

Where a building permit has been issued and the construction of the building for which
such permit was issued is subsequently sought to be prevented, restrained, corrected or
abated as a violation of the zoning ordinance, by suit filed within fifteen days after the start
of construction by a person who had no actual notice of the issuance of the permit, the
court may hear and determine the issues raised in the litigation even though no appeal
was taken from the decision of the administrative officer to the board of zoning appeals.

As was said by Virginia's Court of Appeals:

[W]here . . . a special use permit has been granted under a zoning classification, a bona
fide site plan has thereafter been filed and diligently pursued, and substantial expense has
been incurred in good faith before a change in zoning, the permittee then has a vested
right to the land use described in the use permit and he cannot be deprived of such use by
subsequent legislation. See Fairfax County v. Medical Structures, Inc., 213 Va. 355, 357,
192 S.E.2d 799, 801 (1972).

Although it has been held that the United States is not subject to a state statute of limitationswe need
not decide that question because this Court has examined the Gould and Arland Towers zoning and
site plan filed, and finds that the actions of the Arlington County Board in approving the said site plans
were neither unlawful, arbitrary nor unreasonable.
The Supreme Court of Virginia has repeatedly held that zoning site plan approvals are legislative acts,
and that such actions are presumptively valid. See Byrum v. Board of Supervisors of Orange County,
217 Va. 37, 225 S.E.2d 369 (1976) and Bollinger v. Board of Supervisors of Roanoke County, 217 Va.
185, 227 S.E.2d 682 (1976).
The burden of proof is upon the United States to overcome the presumption of validity of the Gould
and Arland Towers' site plan approvalsit has failed to so do.
For additional findings in re the Gould and Arland Towers' zoning and site plan approvals, the Court
adopts and incorporates herein defendants' proposed findings and conclusions numbered 1 through 6,
8 through 17, 20 through 59, 69 through 73, and 75-75aconclusions numbered 1 through 10, 12
through 19, 23 and 24.
Further, the United States concedes a declaration of zoning invalidity would only delay the completion
of the buildingsthe same properties could be rezoned and the same site plans could again be
approved by the Arlington County Board.
*142 The question for determination in this case iswhether or not the United States can limit the height
and bulk of buildings in Rosslyn on the theory of public NUISANCE.
The Department of Justice contends that any building [in Rosslyn] over 290 feet above sea level or 20
stories would be a visual intrusion on the monumental core of the Nation's Capitalit would seriously
impair the beauty of the Nation's Capital as defined in its horizontal nature and its major vistas of
major public monumentsboth in and from the monumental core.
The material facts are not in dispute only the inferences to be drawn therefrom.
The monumental core of the Nation's Capital is located on the dominant axis of the federal city,
centering on the Mall area.
The seven major monuments, the memorials and edifices in the monumental core are the Capitol
building to the east; the Washington Monument, the Lincoln Memorial and the White House to the
north; the Jefferson Memorial to the south; and the Arlington Cemetery and the Iwo Jima Memorial to
the west.
Washington is a horizontal city; its buildings are of a relatively low, uniform height that follow the
contour of the land.
Major visual corridors were created and preserved, such as various specific avenues, the Mall, West
Potomac Park and the Ellipse area.
The McMillan Plan of 1901 proposed, in part, that the Mall concept of the L'Enfant Plan be
strengthened and expanded by the introduction of the Lincoln Memorial at the terminus of the Mall.
In 1928, the National Capital Parks and Planning Commission proposed a plan for Potomac River
parks to be implemented not only in the District of Columbia, but also on the Virginia-Maryland
shoreline.
Some forty million people visit the monuments, memorials and public buildings in the monumental
core annually.
The original ten-mile square area designated by George Washington as the place for the seat of the
national government included what is now known as Arlington Countythe land south of the Potomac
has been ceded back to Virginia.
The Rosslyn high-rise office buildings are located between Nash Street, Arlington Boulevard,
Interstate Route 66 and Arlington Ridge Road on the Virginia side of the Potomac River, facing
Georgetown and Roosevelt Island.
The nearest building is some 600 feet from the River.
I-66, Arlington Ridge Road and the George Washington Parkway lie between the high-rises and the
RiverThe AM Building is the tallest building in Rosslyn; it is 333 feet above mean sea level.
When completed, the Rosslyn Center Building will be 351 feet above mean sea level.
The office towers in the Arland Complex are 380 feet above mean sea level, and the Twin
Development Building is 362 feet above mean sea level.
The Arland Hotel will be 300 feet above mean sea level, 33 feet lower than the present AM Building,
and 51 feet below the Rosslyn Center Building.
The Arland office building will be 29 feet taller than the Rosslyn Center Building. The Twin
Development Building will be 11 feet taller.
Both sides introduced a number of photographs taken from different sections of the monumental core
looking toward the Rosslyn skylinemany were taken by long-range lenses.
Both sides called expert witnessesthe Government's experts premised their opinions on the height
and bulk of the buildings protruding over the tree line on the Virginia Ridgeone said the [high buildings]
tend to interfere with the perception of the general visitor to Washington and its immediate area in
terms of its historical role as a horizontal city dominated by the dome of the Capitol, and as a
pilgrimage site for the great national memorials of this Nation. Another said they would detract from
the enjoyment of the basic principal of the plan *143 developed over the last 100 years, which was,
essentially, the radial vistas, the radial street plan, and the horizontal nature of the Capital as a whole
within the region. Another said they would dominate the background all said they would be visual
intrusions on the monumental core.
The defendants' experts said the buildings would be unobtrusive and opined that the buildings would
not be a public NUISANCE.
All of the witnesses agreed you could see the tops of the buildings, looking west from the Kennedy
Center and Roosevelt Island looking northwest from the Lincoln Memorial, up river from the Jefferson
Memorial and north from Iwo Jima.
The Government offered no evidence to support their public NUISANCE theory, except the height and
bulk of the buildings.
They abandoned their allegations of increased traffic congestion and other environmental damage.
A NUISANCE case is a proceeding in equityeach case involves two inquiries; first, whether the
condition complained of is, in fact, a NUISANCE; and, if a NUISANCE is found, whether an injunction
is the appropriate remedy. See Harrisonville v. Dickey Clay Co., 289 U.S. 334, 53 S. Ct. 602, 77 L. Ed.
1208 (1933).
The term "NUISANCE" is incapable of an exhaustive definition which will fit all casesit is very
comprehensiveit includes everything that endangers life or health, gives offense to the senses,
violates the laws of decency, or obstructs the reasonable and comfortable use of property.
The difference between a public and a private NUISANCE is that the former affects the public at large
while the latter affects the individual or a limited number of individuals only.
A public NUISANCE has been defined as the doing of or the failure to do something that injuriously
affects the safety, health, or morals of the public, or works some substantial annoyance,
inconvenience or injury to the public generallysee NUISANCEs, 58 Am.Jur.2d.
Height alone is not enoughunsightliness or offense to the esthetic senses is not sufficient to constitute
a public NUISANCE. See City of Newport News v. Hertzler, 216 Va. 587, 221 S.E.2d 146 (1976),
where the appearance of portable toilets and other items of park maintenance distasteful to adjacent
residents was an insufficient basis to create a NUISANCE.
Florida ex rel. Gardner v. Sailboat Key, Inc., 295 So. 2d 658 (Fla.App.1974) relied on by the
Government to support their theory of esthetic NUISANCE, states only that a building could be a
public NUISANCE.
The imposition of general restrictions on the height of buildings for the safety and convenience of the
public is a valid exercise of the police power; but in some instances the erection of high buildings or
other ugly objects has been prohibited so that a park or a beautiful public building would not be
disfigured by the proximity of such structures.
To sustain such an interference with the use of private land without compensation as an exercise of
the police power has been farther than the courts have been willing to go. When, however,
compensation is provided, such restrictions may be looked upon as easements, created by statute for
the benefit of the land on which the park or public building lies, and which have been taken by the
public by eminent domain. See 2A J. Sackman Nichol's, The Law of Eminent Domain, Section 7.516[1]
at 7-239 (rev. 3d ed. 1976).
These buildings are more than a mile and a half from the Lincoln Memorial and from two-to-three and
a half miles from the White House, Washington Monument and the Capitol Building. Viewing them
from inside the monumental core, one would not see the Rosslyn high-rise buildings unless he looked
in a northwesterly direction.
He would first see the intervening buildings and parks in the District, then the broad expanse of the
Potomac and the George Washington Parkway on the Virginia shore.
*144 He could see the buildings from the Iwo Jima Memorial if he turned around and looked toward
Rosslyn.
The maximum additional height of any of these buildings over the existing Rosslyn skyline is less than
thirty feet.
The Court is satisfied from the evidence presented and from on-site views of Rosslyn from various
places in the monumental core, that these buildings would not detract from the average visitor's view
of the memorials, monuments and parks of our Nation's Capital.
The United States has failed to prove, that the visual intrusion complained of is, in fact, a public
NUISANCE.
Therefore, the suit should be dismissed, and
It Is So Ordered.
If a public NUISANCE were found, the propriety of an injunction would depend first of all on a showing
of substantial injury to the public. Often, even when substantial injury is shown, a balancing of the
harm or inconvenience to those injured by the NUISANCE with the overall harm which would occur if
the injunction is granted is undertaken by the courts. See United States v. Reserve Mining
Company, 380 F. Supp. 11 (D.C.Minn.1974), and cases cited therein.
The harm to the defendants would be great as construction on the Gould Building is well
underwayexcavation on the Arland Towers property has begun. It is debatable, to say the least,
whether an order enjoining the completion of these buildings would be the appropriate remedy.
The Constitution of the United States prohibits the taking of private land for public purposes without
just compensation.
Prior to the filing of this suit, the Court has been advised that the Department of Justice has never
attempted to control the height or bulk of the buildings erected on private land adjacent to or near the
National parks or monuments on a public NUISANCE theoryheretofore, the United States has always
controlled the height of the buildings on the Virginia side of the Potomac River by condemning scenic
easements.
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC

On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired a 7,716.60-square

meter lot in the City of Manila, located near Taft Avenue, Ermita, beside the former Manila Jai-Alai
Building and Adamson University.4 The lot was earmarked for the construction of DMCI-PDI's Torre de
Manila condominium project.
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the construction of its project. It
then obtained a Zoning Permit from the City of Manila's City Planning and Development Office
(CPDO) on 19 June 2012.5
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted DMCI-PDI a Building
Permit, allowing it to build a "Forty Nine (49) Storey w/ Basement & 2 penthouse Level
Res'l./Condominium" on the property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining the Office of the
Building Official to temporarily suspend the Building Permit of DMCI-PDI, citing among others, that
"the Torre de Manila Condominium, based on their development plans, upon completion, will rise up
high above the back of the national monument, to clearly dwarf the statue of our hero, and with such
towering heights, would certainly ruin the line of sight of the Rizal Shrine from the frontal Roxas
Boulevard vantage point[.]"7
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's City Legal Officer on
whether he is bound to comply with Resolution No. 121. 8 In his letter dated 12 September 2012, City
Legal Officer Renato G. Dela Cruz stated that there is "no legal justification for the temporary
suspension of the Building Permit issued in favor of [DMCI-PDI]" since the construction "lies outside
the Luneta Park" and is "simply too far to I be a repulsive distraction or have an objectionable effect on
the artistic and historical significance" of the Rizal Monument. 9 He also pointed out that "there is no
showing that the [area of subject property has been officially declared as an anthropological or
archeological area. Neither has it ' been categorically designated by the National Historical Institute as
a heritage zone, a cultural property, a historical landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion or the National Historical
Commission of the Philippines (NHCP) on the matter. In the letter 10 dated 6 November 2012 from
NHCP I Chairperson Dr. Maria Serena I. Diokno addressed to DMCI-PDI and the letter 11 dated 7
November 2012 from NHCP Executive Director III Ludovico D. Bado)f addressed to then Manila
Mayor Alfredo S. Lim, the NHCP maintained that the Torre de Manila project site is outside the
boundaries of the Rizal f.ark and well to the rear of the Rizal Monument, and thus, cannot possibly
obstruct the frontal view of the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila project that garnered
about 7,800 signatures, the City Council of Manila issued Resolution No. 146, reiterating its directive
in Resolution No. 121 1 enjoining the City of Manila's building officials to temporarily suspend ~MCI-
PDI's Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PIDI President Alfredo R.
Austria sought clarification on the controversy surrounding its Zoning Permit. He stated that since the
CPDO granted its Zoning Permit, DMCI-PDI continued with the application for the Building Permit,
which was granted, and did not deem it necessary to go through the process of appealing to the local
zoning board. He then expressed DMCI-PDI's willingness to comply with the process if the City of
Manila deemed it necessary. 13
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals (MZBAA) issued Zoning
Board Resolution No. 06, Series of 2013, 14 recommending the approval of DMCI-PDI's application
for variance. ;The MZBAA noted that the Torre de Manila project "exceeds the prescribed maximum
Percentage of Land Occupancy (PLO) and exceeds the prescribeµ Floor Area Ratio (FAR) as
stipulated in Article V, Section 17 of City Ordinance No. 8119[.]" However, the MZBAA still
recommended the approval of the variance subject to the five conditions set under the same
resolution.
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board Resolution No. 06-A,
Series of 2013, 15 on 8 January 2014, amending condition (c) in the earlier resolution. 16
On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of 2014, 17 adopting
Zoning Board Resolution Nos. 06 and 06- A. The City Council resolution states that "the City Council
of Manila find[ s] no cogent reason to deny and/or reverse the aforesaid recommendation of the
[MZBAA] and hereby ratif[ies] and confirm[s] all previously issued permits, licenses and approvals
issued by the City [Council] of Manila for Torre de Manila[.]"
Next, the KOR contends that the project is a nuisance per se23 because "[t]he despoliation of the
sight view of the Rizal Monument is a situation that annoy's or offends the senses' of every Filipino
who honors the memory of the National Hero Jose Rizal. It is a present, continuing, worsening and
aggravating status or condition. Hence, the PROJECT is a nuisance per se. It deserves I to be abated
summarily, even without need of judicial proceeding. "

Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-PDI reiterates that it
obtained all the necessary permits, licenses, clearances, and certificates for its construction. 37 It also
refutes the KOR's claim that the Torre de Manila would dwarf all other structures around it; considering
that there are other tall buildings even closer to the Rizal Monument itself, namely, the Eton Baypark
Tower at the corner of Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235 meters from the Rizal
Monument) and Sunview Palace at the corner of M.H. Del Pilar and T.M. Kalaw Streets (42 storeys;
250 meters from the Rizal Monument).

Torre de Manila is Not a Nuisance Per Se.

In its petition, the KOR claims that the Torre de Manila is a nuisance perse that deserves to be
summarily abated even without judicial proceedings. 87 However, during the Oral Arguments, counsel
for the KOR argued that the KOR now believes that the Torre de Manila is a nuisance per accidens
and not a nuisance perse. 88
Article 694 of the Civil Code defines a nuisance as 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.
Thy Court recognizes two kinds of nuisances. The first, nuisance perse, is on "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." 89 The
second, nuisance peraccidens, 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 in law constitutes a nuisance. "90
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre de Manila project
cannot be considered as a "direct menace to I public health or safety." Not only is a condominium
project commonplace in the City of Manila, DMCI-PDI has, according to the proper government
agencies, complied with health and safety standards set by law. DMCI-PDI has been granted the
following permits and clearances prior to starting the project: (1) Height Clearance Permit from the
Civil Aviation Authority of the Philippines; 91 (2) Development Permit from the HLURB; 92 (3) Zoning
Certification from the HLURB;93 (4) Certificate of Environmental Compliance Commitment from the
Environment Management Bureau of the Department of Environment and Natural Resources; 94 (5)
Barangay Clearance95 (6) Zoning Permit;96 (7) Building Permit;97 (8) and Electrical and Mechanical
Permit.98
Later, DMCI-PDI also obtained the right to build under a variance recommended by the MZBAA and
granted by the City Council of Manila. Thus, there can be no doubt that the Torre de Manila project is
not a nuisance perse.
On the other hand, the KOR now claims that the Torre de Manila is a nuisance peraccidens.
By definition, a nuisance peraccidens is determined based on its surrounding conditions and
circumstances. These conditions and circumstances must be well established, not merely alleged. The
Court cannot simply accept these conditions and circumstances as established facts as the KOR
would have us do in this case. 99 The KOR itself concedes that the question of whether the Torre de
Manila is a nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an authority to find facts, to estimate their force, and
to apply rules of law to the case thus made. 101 1lhis Court is no such authority. It is not a trier of
facts. It cannot simply take the allegations in the petition and accept these as facts, more so in this
case where these allegations are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The question, then, of
whether the Torre de Manila project is a nuisance peraccidens must be settled after due proceedings
brought before the proper Regional Trial Court. The KOR cannot circumvent the process in the guise
be protecting national culture and heritage.
NORTH GREENHILLS ASSOCIATION, INC., Petitioner, v. ATTY. NARCISO MORALES

Atty. Morales is a resident of North Greenhills Subdivision in San Juan City. His house is located
alongside Club Filipino Avenue and adjacent to McKinley Park, an open space/playground area owned
and operated by NGA. He also has a personal access door, which he built through a wall separating
his house from the park. This access door, when unlocked, opens directly into the park.
On the other hand, NGA, an association composed of members of the subdivision, organized to
promote and advance the best interests, general welfare, prosperity, and safeguard the well-being of
the owners, lessees and occupants of North Greenhills, is the undisputed owner of the park. It has
acquired ownership thereof through a donation made by the original owner, Ortigas &. Co. Ltd.
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.
Objecting to the construction of the restroom, Atty. Morales filed on July 23, 2003 a complaint before
the HLURB, docketed as HLURB Case No. NCRHOA-072303-309. On August 13, 2013, he amended
his complaint and additionally sought the demolition of the pavilion which was then being built.
In his Amended Complaint, Atty. Morales alleged that for a period spanning 33 years, he had an open,
continuous, immediate, and unhampered access to the subdivision park through his side door, which
also served as an exit door in case of any eventuality; that having such access to the park was one of
the considerations why he purchased the lot; that the construction of the pavilion was illegal because it
violated his right to immediate access to the park, Presidential Decree No. 957 and the Deed of
Donation of Ortigas & Co. Ltd., which required the park to be maintained as an open area; and that the
restroom constructed by NGA was a nuisance per se.
NGA, in its Answer with Compulsory Counterclaim, rejected the assertions of Atty. Morales. It
contended that as the absolute owner of the park, it had the absolute right to fence the property and
impose reasonable conditions for the use thereof by both its members and third parties; that the
construction of the restroom was for the use and benefit of all NGA members, including Atty. Morales;
and that Atty. Morales' use of a side entrance to the park for 33 years could not have ripened into any
right because easement of right of way could not be acquired by prescription. NGA likewise sought the
payment of P878,778.40 corresponding to the annual membership dues which Atty. Morales had not
been paying since 1980.
On April 13, 2003, the HLURB Arbiter conducted an ocular inspection of the park and noted that the
construction started by NGA blocked Atty. Morales' side access to the park.
On February 16, 2005, the HLURB Arbiter rendered a Decision,6 the decretal portion of which reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered ordering respondents of the
removal of the pavilion and the relocation of the common toilet in a place where it will not be a
nuisance to any resident. Respondents are further directed to remove the obstruction to the side door
of the complainant. All other claims and counterclaims are hereby dismissed for lack of merit.

IT IS SO ORDERED.7

NGA appealed to the HLURB Board of Commissioners (HLURB Board). In its November 22, 2007
Decision,8 the HLURB Board modified the ruling of the HLURB Arbiter, thus:
Further, the complaint against respondent Alviar should be dropped as no acts have been particularly
attributed to him in his personal capacity.

WHEREFORE, premises considered, the decision of the Regional Office is hereby

MODIFIED. Accordingly, respondent NGA is ordered to relocate the restroom constructed
or being constructed in the McKinley Park away from the walls of any resident and where it
will not block complainant's side door access to the park.

SO ORDERED.9

NGA appealed to the Office of the President (OP).

On February 17, 2010, the OP rendered its decision, affirming in toto the ruling of the HLURB Board.
NGA moved for reconsideration, but its motion was denied by the OP in its August 8, 2013 Resolution.
Aggrieved, NGA filed a petition for review under Rule 43 of the Rules of Court before the CA, arguing
that the OP erred in its findings.
Ruling of the CA
In its March 13, 2015 Decision,10 the CA affirmed the ruling of the OP. It found no error on the part of
the OP in affirming the characterization of the restrooms built as nuisance per accidens considering
that the structure posed sanitary issues which could adversely affect not only Atty. Morales, but also
his entire household; that even if there existed a perimeter wall between the park and Atty. Morales'
home, the odor emanating from the restroom 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; and
that the proximity of the restroom to Atty. Morales' house placed the people residing therein at a
greater risk of contracting diseases both from improperly disposed waste and human excrements, as
well as from flies, mosquitoes and other insects, should NGA fail to maintain the cleanliness of the
structures.
The CA stated that NGA's fear of being exposed to outsiders and criminals because Atty. Morales'
access was unfounded. It pointed out that the door had been in existence for more than three decades
and that if dangers truly existed, NGA should have taken immediate action and blocked the side
access years earlier. It then pointed out other ways to remedy the security concerns of NGA, such as
placing a wall strategically placed at the border of the park or additional guards to patrol the vicinity.
As to the counterclaim of NGA for association dues, the CA held that the claim was in the nature of a
permissive counterclaim, which was correctly dismissed by the OP.
NGA moved for reconsideration, but its motion was denied by the CA in its February 3, 2016
Resolution.
Hence, this petition.
WHETHER THE CA CORRECTLY RULED THAT THE RESTROOM BUILT BY NGA INSIDE THE
MCKINLEY PARK IS A NUISANCE PER ACCIDENS;

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.21
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.22 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.23
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.24

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.
CONCEPCION PARAYNO, petitioner,
vs.
JOSE JOVELLANOS and the MUNICIPALITY OF CALASIAO, PANGASINAN

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:
a) xxx the existing gasoline station is a blatant violation and disregard of existing law to wit:
The Official Zoning Code of Calasiao, Art. 6, Section 44, 1 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.
b) The gasoline station 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. Moreover, additional selling and storing of several LPG tanks in the station (sic).
c) The 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 especially children to frequent
colds, asthma, cough and the like nowadays.
d) xxx the gasoline station violated Building and Fire Safety Codes because the station has
2nd floor storey building used for business rental offices, with iron grilled windows, no firewalls.
It also endangers the lives of people upstairs.
e) It hampers the flow of traffic, the gasoline station is too small and narrow, the entrance and
exit are closed to the street property lines. It couldn't cope situation (sic) on traffic because the
place is a congested area.2
Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence, she filed a
special civil action for prohibition and mandamus with the Regional Trial Court (RTC) of Dagupan City,
Branch 44 against respondents. The case, docketed as SP Civil Case No. 99-03010-D, was raffled to
the sala of Judge Crispin Laron.
Petitioner claimed that her gasoline station was not covered by Section 44 of the Official Zoning Code
since it was not a "gasoline service station" but a "gasoline filling station" governed by Section 21
thereof. She added that the decision of the Housing and Land Use Regulatory Board (HLURB), 3 in a
previous case filed by the same respondent Jovellanos against her predecessor (Dennis Parayno),
barred the grounds invoked by respondent municipality in Resolution No. 50. In the HLURB case,
respondent Jovellanos opposed the establishment of the gas station on the grounds that: (1) it was
within the 100-meter prohibited radius under Section 44 and (2) it posed a pernicious effect on the
health and safety of the people in Calasiao.
After the hearing on the propriety of issuing a writ of preliminary prohibitory and mandatory injunction,
the trial court ruled:
There is no basis for the court to issue a writ of preliminary prohibitory and mandatory
injunction. Albeit, Section 44 of the Official Zoning Code of respondent municipality does
not mention a gasoline filling station, [but] following the principle of ejusdem generis, a
gasoline filling station falls within the ambit of Section 44.
The gasoline filling station of the petitioner is located under the establishment belonging to the
petitioner and is very near several buildings occupied by several persons. Justice dictates
that the same should not be allowed to continue operating its business on that
particular place. Further, the gasoline filling station endangers the lives and safety of
people because once there is fire, the establishment and houses nearby will be razed to
the ground.4(emphasis supplied)
Petitioner moved for reconsideration of the decision but it was denied by the trial court.
Petitioner elevated the case to the CA via a petition for certiorari, prohibition and mandamus, 5 with a
prayer for injunctive relief. She ascribed grave abuse of discretion, amounting to lack or excess of
jurisdiction, on the part of Judge Laron who dismissed her case.
After the CA dismissed the petition, petitioner filed a motion for reconsideration but the same was
denied. Hence, this appeal.
Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply to her case; (2)
the closure/transfer of her gasoline filling station by respondent municipality was an invalid exercise of
the latter's police powers and (3) it was the principle of res judicata that applied in this case.6
We find merit in the petition.
The Exercise of Police Powers
Respondent municipality invalidly used its police powers in ordering the closure/transfer of petitioner's
gasoline station. While it had, under RA 7160, 14 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. 15 The first
requirement refers to the equal protection clause and the second, to the due process clause of the
Constitution.16
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, 17 hence, it cannot be closed
down or transferred summarily to another location.
As a rule, this Court does not pass upon evidence submitted by the parties in the lower courts. 18 We
deem it necessary, however, to recall the findings of the HLURB which petitioner submitted as
evidence during the proceedings before the trial court, if only to underscore petitioner's compliance
with the requirements of law before she put up her gasoline station.
Another factor that should not be left unnoticed is the diligence exercised by [petitioner] in
complying with the requirements of the several laws prior to the actual implementation of the
project as can be attested by the fact that [petitioner] has secured the necessary building
permit and approval of [her] application for authority to relocate as per the letter of the Energy
Regulatory Board xxx.19
On the alleged hazardous effects of the gasoline station to the lives and properties of the people of
Calasiao, we again note:
Relative to the allegations that the project (gasoline station) is hazardous to life and property,
the Board takes cognizance of the respondent's contention that the project "is not a fire hazard
since petroleum products shall be safely stored in underground tanks and that the installation
and construction of the underground tanks shall be in accordance with the Caltex Engineering
Procedures which is true to all gasoline stations in the country. xxx
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,
after studying the plans and specifications of the subject proposed construction, recommended
on 20 January 1989, "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. xxx20 (emphasis supplied)
The findings of fact of the HLURB are binding as they are already final and conclusive vis-à-vis the
evidence submitted by respondents.
Respondent municipality does not contest the first, second and third requisites. However, it claims that
it was not a party to the HLURB case but only its co-respondent Jovellanos, hence, the fourth requisite
was not met. The argument is untenable.
The absolute identity of parties is not required for the principle of res judicata to apply.23 A shared
identity of interests is sufficient to invoke the application of this principle. 24 The proscription may not
be evaded by the mere expedient of including an additional party. 25 Res judicata may lie as long as
there is a community of interests between a party in the first case and a party in the second case
although the latter may not have been impleaded in the first.26
In the assailed resolution of respondent municipality, it raised the same grounds invoked by its co-
respondent in the HLURB: (1) that the resolution aimed to close down or transfer the gasoline station
to another location due to the alleged violation of Section 44 of the zoning ordinance and (2) that the
hazards of said gasoline station threatened the health and safety of the public. The HLURB had
already settled these concerns and its adjudication had long attained finality. It is to the interest of the
public that there should be an end to litigation by the parties over a subject matter already fully and
fairly adjudged. Furthermore, an individual should not be vexed twice for the same cause.27
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.
CITY OF MANILA, plaintiff-appellee,
vs.
GERARDO GARCIA

Plaintiff City of Manila is owner of parcels of land, forming one compact area, bordering Kansas,
Vermont and Singalong streets in Malate, Manila, and covered by Torrens Titles Nos. 49763, 37082
and 37558. Shortly after liberation from 1945 to 1947, defendants entered upon these premises
without plaintiff's knowledge and consent. They built houses of second-class materials, again without
plaintiff's knowledge and consent, and without the necessary building permits from the city. There they
lived thru the years to the present.
In November, 1947, the presence of defendants having previously been discovered, defendants
Felicidad Miranda (Emigdio Egipto), Modesta C. Parayno, Benedicto Diaz, Laureano Dizo, Jose
Barrientos, Elena Ramos, Estefania Nepacina, Modesta Sanchez, Honorio Beriño, Gloria Velasco,
Ana Dequis Alunan and Benedicto Ofiaza (predecessor of defendant Carandang) were given by
Mayor Valeriano E. Fugoso written permits — each labeled "lease contract" — to occupy specific
areas in the property upon conditions therein set forth. Defendants Isabelo Obaob and Gerardo Garcia
(in the name of Marta A. Villanueva) received their permits from Mayor Manuel de la Fuente on
January 29 and March 18, respectively, both of 1948. The rest of the 23 defendants exhibited none.
Epifanio de los Santos Elementary School is close, though not contiguous, to the property. Came the
need for this school's expansion; it became pressing. On September 14, 1961, plaintiff's City Engineer,
pursuant to the Mayor's directive to clear squatters' houses on city property, gave each of defendants
thirty (30) days to vacate and remove his construction or improvement on the premises. This was
followed by the City Treasurer's demand on each defendant, made in February and March, 1962, for
the payment of the amount due by reason of the occupancy and to vacate in fifteen (15) days.
Defendants refused. Hence, this suit to recover possession.2
The judgment below directed defendants to vacate the premises; to pay the amounts heretofore
indicated opposite their respective names; and to pay their monthly rentals from March, 1962, until
they vacate the said premises, and the costs. Defendants appealed.
. Let us look into the houses and constructions planted by defendants on the premises. They
clearly hinder and impair the use of that property for school purposes. The courts may well
take judicial notice of the fact that housing school children in the elementary grades has been
and still is a perennial problem in the city. The selfish interests of defendants must have to
yield to the general good. The public purpose of constructing the school building annex is
paramount.10
In the situation thus obtaining, the houses and constructions aforesaid constitute public
nuisance per se. And this, for the reason that they hinder and impair the use of the property for
a badly needed school building, to the prejudice of the education of the youth of the land.11
They shackle the hands of the government and thus obstruct performance of its constitutionally
ordained obligation to establish and maintain a complete and adequate system of public
education, and more, to "provide at least free public primary instruction".12
Reason dictates that no further delay should be countenanced. The public nuisance could well
have been summarily abated by the city authorities themselves, even without the aid of the
courts.13
4. Defendants challenge the jurisdiction of the Court of First Instance of Manila. They say that
the case should have been started in the municipal court. They prop up their position by the
averment that notice for them to vacate was only served in September, 1961, and suit was
started in July, 1962. Their legal ground is Section 1, Rule 70 of the Rules of Court. We have
reached the conclusion that their forcible entry dates back to the period from 1945 to 1947.
That entry was not legalized by the permits. Their possession continued to remain illegal from
incipiency. Suit was filed long after the one-year limitation set forth in Section 1 of Rule 70. And
the Manila Court of First Instance has jurisdiction.14
Upon the premises, we vote to affirm the judgment under review. Costs against defendants-appellants.
So ordered.
SMART COMMUNICATIONS, INC., Petitioner,
vs.
ARSENIO ALDECOA
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by
petitioner Smart Communications, Inc., seeking the reversal of the Decision1 dated July 16, 2004 and
Resolution2 dated December 9, 2004 of the Court of Appeals in CA-G.R. CV No. 71337. The appellate
court (I) reversed and set aside the Order3 dated January 16, 2001 of the Regional Trial Court (RTC),
Branch 23, of Roxas, Isabela, in Civil Case No. Br. 23-632-2000 dismissing the complaint for
abatement of nuisance and injunction against petitioner, and (2) entered a new judgment declaring
petitioner's cellular base station located in Barangay Vira, Municipality of Roxas, Province of Isabela, a
nuisance and ordering petitioner to cease and desist from operating the said cellular base station.
Petitioner is a domestic corporation engaged in the telecommunications business. On March 9, 2000,
petitioner entered into a contract of lease4 with Florentino Sebastian in which the latter agreed to
lease to the former a piece of vacant lot, measuring around 300 square meters, located in Barangay
Vira, Roxas, Isabela (leased property).Petitioner, through its contractor, Allarilla Construction,
immediately constructed and installed a cellular base station on the leased property. Inside the cellular
base station is a communications tower, rising as high as150 feet, with antennas and transmitters; as
well as a power house open on three sides containing a 25KVA diesel power generator. Around and
close to the cellular base station are houses, hospitals, clinics, and establishments, including the
properties of respondents Arsenio Aldecoa, Jose B. Torre, Conrado U. Pua, Gregorio V. Mansano,
Jerry Corpuz, and Estelita Acosta.
Respondents filed before the RTC on May 23, 2000 a Complaint against petitioner for abatement of
nuisance and injunction with prayer for temporary restraining order and writ of preliminary injunction,
docketed as Civil Case No. Br. 23-632-2000.
2. Render judgment:
- Making the writ of preliminary mandatory injunction permanent;
- Declaring the construction of the SMART tower as a nuisance per se or per accidens;
- Ordering the abatement of this nuisance by ordering the removal and/or demolition of
petitioner’s communication tower;
In the end, petitioner sought the dismissal of respondents’ Complaint; the denial of respondents’
prayer for the issuance of a temporary restraining order and writ of preliminary mandatory injunction;
the award of moral, nominal, and exemplary damages in the amounts which the court deem just and
reasonable; and the award of attorney’s fees in the sum of ₱500,000.00 and litigation expenses as
may be proven at the trial.

Whether petitioner’s communications tower is a nuisance per se/per accidens and together with its
standby generator maybe abated for posing danger to the property and life and limb of the residents of
Vira, Roxas, Isabela more particularly the respondents and those whose houses are clustered around
or in the periphery of the cell site.

Respondents likewise filed on September 21, 2000 their Opposition to petitioner’s Motion for Summary
Judgment, maintaining that there were several genuine issues relating to the cause of action and
material facts of their Complaint. They asserted that there was a need for a full blown trial to prove the
allegations in their Complaint, as well as the defenses put up by petitioner.13
In its Order14 dated September 28, 2000, the RTC indefinitely postponed the pre-trial until it has
resolved petitioner’s Motion for Summary Judgment. In the same Order, the RTC directed the
counsels of both parties to submit their memoranda, including supporting affidavits and other
documents within 30 days.
Petitioner submitted its Memorandum15 on October 26, 2000; while respondents, following several
motions for extension of time, filed their Memorandum16 on November 22, 2000. In their
Memorandum, respondents additionally alleged that:
The cellsite base station is powered by a roaring 25 KVA power generator. Operated 24 hours since it
started more than a month ago, it has sent "jackhammers into the brains" of all the inhabitants nearby.
Everyone is going crazy. A resident just recently operated for breast cancer is complaining that the
noise emanating from the generator is fast tracking her appointment with death. She can no longer
bear the unceasing and irritating roar of the power generator.
For this, the residents, led by the respondents, sought a noise emission test of the power generator of
petitioner SMART Communications with the DENR. The test was conducted on November 14 and 15,
2000 and the result shows that the petitioner’s power generator failed the noise emission test, day and
night time. Result of this test was furnished the Municipal Mayor of Roxas, Isabela (See
Communication of DENR Regional Director Lorenzo C. Aguiluz to Mayor Benedicto Calderon dated
November 16, 2000 and the Inspection Monitoring Report).
With these findings, the power generator is also a nuisance. It must also be abated.17
On January 16, 2001, the RTC issued its Order granting petitioner’s Motion for Summary Judgment
and dismissing respondents’ Complaint. The RTC ruled as follows:
What is of prime importance is the fact that contrary to the respondents’ speculation, the radio
frequency radiation as found out by the Department of Health is much lower compared to that of TV
and radio broadcast. The respondents’ counter to this claim is that the Department of Health was
misled. This is a mere conclusion of the respondents.
The respondents in opposing the Smart’s construction of their cellsite is anchored on the supposition
that the operation of said cellsite tower would pose a great hazard to the health of the alleged cluster
of residents nearby and the perceived danger that the said tower might also collapse in case of a
strong typhoon that fell the Mobiline Cellsite tower of Mobiline (sic). The structured built of the Smart’s
Cellsite tower is similar to that of the Mobiline.
Now, as to the Court’s assessment of the circumstances obtaining, we find the claim of the
respondents to be highly speculative, if not an isolated one. Elsewhere, we find several cellsite towers
scattered (sic) allover, both of the Smart, Globe, and others, nay even in thickly populated areas like in
Metro Manila and also in key cities nationwide, yet they have not been outlawed or declared nuisance
as the respondents now want this Court to heed. To the thinking of the Court, the respondents are
harping imagined perils to their health for reason only known to them perhaps especially were we to
consider that the Brgy. Captain of Vira earlier gave its imprimatur to this project. Noteworthy is the fact
that the alleged cluster of residential houses that abut the cellsite tower in question might be
endangered thereby, the respondents are but a few of those residents. If indeed, all those residents in
Vira were adversely affected for the perceived hazards posed by the tower in question, they should
also have been joined in as respondents in a class suit. The sinister motive is perhaps obvious.
All the foregoing reasons impel this Court to grant the petitioner’s motion for the dismissal of the
complaint, the perceived dangers being highly speculative without any bases in fact. Allegations in the
complaint being more imaginary than real, do not constitute factual bases to require further proceeding
or a trial. As to the claim that there is no certification or clearance from the DENR for the petitioner to
lay in wait before the construction, suffice it to say that no action as yet has been taken by said office
to stop the ongoing operation of said cellsite now in operation. There has been no hue and cry from
among the greater majority of the people of Roxas, Isabela, against it. Al contrario, it is most welcome
to them as this is another landmark towards the progress of this town.
The Petition is partly meritorious. While the Court agrees that the Court of Appeals should not have
taken cognizance of the issue of whether the locational clearance for petitioner’s cellular base station
is valid, the Court will still not reinstate the RTC Order dated January 16, 2001 granting petitioner’s
Motion for Summary Judgment and entirely dismissing Civil Case No. Br. 23-632-2000. The issues of
(1) whether petitioner’s cellular base station is a nuisance, and (2) whether the generator at
petitioner’s cellular base station is, by itself, also a nuisance, ultimately involve disputed or contested
factual matters that call for the presentation of evidence at a full-blown trial.

Ordinarily, failure to comply with the principle of exhaustion of administrative remedies and the
doctrine of primary jurisdiction will result in the dismissal of the case for lack of cause of action.
However, the Court herein will not go to the extent of entirely dismissing Civil Case No. Br. 23-632-
2000. The Court does not lose sight of the fact that respondents’ Complaint in Civil Case No. Br. 23-
632-2000 is primarily for abatement of nuisance; and respondents alleged the lack of HLURB
requirements for the cellular base station, not to seek nullification of petitioner’s locational clearance,
but to support their chief argument that said cellular base station is a nuisance which needs to be
abated. The issue of whether or not the locational clearance for said cellular base station is valid is
actually separate and distinct from the issue of whether or not the cellular base station is a nuisance;
one is not necessarily determinative of the other. While the first is within the primary jurisdiction of the
HLURB and, therefore, premature for the courts to rule upon in the present case, the latter is within
the jurisdiction of the courts to determine but only after trial proper.
On the declaration of the Court of
Appeals that petitioner’s cellular
base station is a nuisance that must
be abated
Article 694 of the Civil Code defines nuisance as:
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.31
The Court, in AC Enterprises, Inc. v. Frabelle Properties Corporation, 32 settled that a simple suit for
abatement of nuisance, being incapable of pecuniary estimation, is within the exclusive jurisdiction of
the RTC. Although respondents also prayed for judgment for moral and exemplary damages,
attorney’s fees, and litigation expenses, such claims are merely incidental to or as a consequence of,
their principal relief.
Nonetheless, while jurisdiction over respondents’ Complaint for abatement of nuisance lies with the
courts, the respective judgments of the RTC and the Court of Appeals cannot be upheld.
At the outset, the RTC erred in granting petitioner’s Motion for Summary Judgment and ordering the
dismissal of respondents’ Complaint in Civil Case No. Br. 23-632-2000.
Summary judgments are governed by Rule 35 of the Rules of Court, pertinent provisions of which
state:
SEC. 2. Summary judgment for defending party. – A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.
SEC. 3. Motion and proceedings thereon. – The motion shall be served at least ten (10) days before
the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show
that, except as to the amount of damages, there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law. (Emphases supplied.)
In Rivera v. Solidbank Corporation,33 the Court discussed extensively when a summary judgment is
proper:
For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the amount of damages; and (b) the party presenting
the motion for summary judgment must be entitled to a judgment as a matter of law. Where, on the
basis of the pleadings of a moving party, including documents appended thereto, no genuine issue as
to a material fact exists, the burden to produce a genuine issue shifts to the opposing party. If the
opposing party fails, the moving party is entitled to a summary judgment.
A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from
an issue which is a sham, fictitious, contrived or a false claim.
The trial court can determine a genuine issue on the basis of the pleadings, admissions, documents,
affidavits or counter affidavits submitted by the parties. When the facts as pleaded appear uncontested
or undisputed, then there is no real or genuine issue or question as to any fact and summary judgment
called for. On the other hand, where the facts pleaded by the parties are disputed or contested,
proceedings for a summary judgment cannot take the place of a trial. The evidence on record must be
viewed in light most favorable to the party opposing the motion who must be given the benefit of all
favorable inferences as can reasonably be drawn from the evidence.
Courts must be critical of the papers presented by the moving party and not of the papers/documents
in opposition thereto. Conclusory assertions are insufficient to raise an issue of material fact. A party
cannot create a genuine dispute of material fact through mere speculations or compilation of
differences. He may not create an issue of fact through bald assertions, unsupported contentions and
conclusory statements. He must do more than rely upon allegations but must come forward with
specific facts in support of a claim. Where the factual context makes his claim implausible, he must
come forward with more persuasive evidence demonstrating a genuine issue for trial. (Emphases
supplied; citations omitted.)
Judging by the aforequoted standards, summary judgment cannot be rendered in this case as there
are clearly factual issues disputed or contested by the parties. As respondents correctly argued in their
Opposition to petitioner’s Motion for Summary Judgment:
1. Contrary to the claim of petitioner, there are several genuine issues as to the cause of action and
material facts related to the complaint. For one there is an issue on the structural integrity of the tower,
the ultra high frequency (UHF) radio wave emission radiated by the communications tower affecting
the life, health and well being of the[respondents] and the barangay residents, especially their
children. Also, the noxious/deleterious fumes and the noise produce[d] by the standby generator and
the danger posted by the tower if it collapses in regard to life and limb as well as the property of the
[respondents] particularly those whose houses abut, or are near/within the periphery of the
communications tower. x x x34
Likewise constituting real or genuine issues for trial, which arose from subsequent events, are the
following: whether the generator subject of respondents’ Complaint had been removed; whether said
generator had been replaced by another that produces as much or even more noise and fumes; and
whether the generator is a nuisance that can be abated separately from the rest of the cellular base
station.
Furthermore, the Court demonstrated in AC Enterprises, Inc. the extensive factual considerations of a
court before it can arrive at a judgment in an action for abatement of nuisance:
Whether or not noise emanating from a blower of the air conditioning units of the Feliza Building is
nuisance is to be resolved only by the court in due course of proceedings.1âwphi1 The plaintiff must
prove that the noise is a nuisance and the consequences thereof. Noise is not a nuisance per se. It
may be of such a character as to constitute a nuisance, even though it arises from the operation of a
lawful business, only if it affects injuriously the health or comfort of ordinary people in the vicinity to an
unreasonable extent. Injury to a particular person in a peculiar position or of especially sensitive
characteristics will not render the noise an actionable nuisance. In the conditions of present living,
noise seems inseparable from the conduct of many necessary occupations. Its presence is a nuisance
in the popular sense in which that word is used, but in the absence of statute, 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. What those limits are cannot be fixed by any
definite measure of quantity or quality; they depend upon the circumstances of the particular case.
They may be affected, but are not controlled, by zoning ordinances. The delimitation of designated
areas to use for manufacturing, industry or general business is not a license to emit every noise
profitably attending the conduct of any one of them.
The test is whether rights of property, of health or of comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon
him by the condition of living, or of holding property, in a particular locality in fact devoted to uses
which involve the emission of noise although ordinary care is taken to confine it within reasonable
bounds; or in the vicinity of property of another owner who, though creating a noise, is acting with
reasonable regard for the rights of those affected by it.
Commercial and industrial activities which are lawful in themselves may become nuisances if they are
so offensive to the senses that they render the enjoyment of life and property uncomfortable. The fact
that the cause of the complaint must be substantial has often led to expressions in the opinions that to
be a nuisance the noise must be deafening or loud or excessive and unreasonable. The determining
factor when noise alone is the cause of complaint 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. If the noise does that it can
well be said to be substantial and unreasonable in degree, and reasonableness is a question of fact
dependent upon all the circumstances and conditions. There can be no fixed standard as to what kind
of noise constitutes a nuisance.
The courts have made it clear that in every case the question is one of reasonableness. What is a
reasonable use of one’s property and whether a particular use is an unreasonable invasion of
another’s use and enjoyment of his property so as to constitute a nuisance cannot be determined by
exact rules, but must necessarily depend upon the circumstances of each case, such as locality and
the character of the surroundings, the nature, utility and social value of the use, the extent and nature
of the harm involved, the nature, utility and social value of the use or enjoyment invaded, and the like.
Persons who live or work in thickly populated business districts must necessarily endure the usual
annoyances and of those trades and businesses which are properly located and carried on in the
neighborhood where they live or work. But these annoyances and discomforts must not be more than
those ordinarily to be expected in the community or district, and which are incident to the lawful
conduct of such trades and businesses. If they exceed what might be reasonably expected and cause
unnecessary harm, then the court will grant relief.
A finding by the LGU that the noise quality standards under the law have not been complied with is not
a prerequisite nor constitutes indispensable evidence to prove that the defendant is or is not liable for
a nuisance and for damages. Such finding is merely corroborative to the testimonial and/or other
evidence to be presented by the parties. The exercise of due care by the owner of a business in its
operation does not constitute a defense where, notwithstanding the same, the business as conducted,
seriously affects the rights of those in its vicinity.35 (Citations omitted.)
A reading of the RTC Order dated January 16, 2001 readily shows that the trial court did not take into
account any of the foregoing considerations or tests before summarily dismissing Civil Case No. Br.
23-632-2000. The reasoning of the RTC that similar cellular base stations are scattered in heavily
populated areas nationwide and are not declared nuisances is unacceptable. As to whether or not this
specific cellular base station of petitioner is a nuisance to respondents is largely dependent on the
particular factual circumstances involved in the instant case, which is exactly why a trial for threshing
out disputed or contested factual issues is indispensable. Evidently, it was the RTC which engaged in
speculations and unsubstantiated conclusions.
For the same reasons cited above, without presentation by the parties of evidence on the contested or
disputed facts, there was no factual basis for declaring petitioner's cellular base station a nuisance
and ordering petitioner to cease and desist from operating the same.
Given the equally important interests of the parties in this case, i.e., on one hand, respondents' health,
safety, and property, and on the other, petitioner's business interest and the public's need for
accessible and better cellular mobile telephone services, the wise and prudent course to take is to
remand the case to the RTC for trial and give the parties the opportunity to prove their respective
factual claims.
WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. The Decision
dated July 16, 2004 and Resolution dated December 9, 2004 of the Court of Appeals in CA-G.R. CV
No. 71337 are REVERSED and SET ASIDE. Let the records of the case be REMANDED to the
Regional Trial Court, Branch 23, of Roxas, Isabela, which is DIRECTED to reinstate Civil Case No. Br.
23-632-2000 to its docket and proceed with the trial and adjudication thereof with appropriate dispatch
in accordance with this Decision.