a.) G.R. No.
No. L-18390 August 6, 1971 After trial, as already observed, the court below dismissed the claim of the plaintiff, finding that the sound
PEDRO J. VELASCO vs. MANILA ELECTRIC CO.
REYES, J.B.L., J.:
The present case is direct appeal (prior to Republic Act 5440) by the herein plaintiff-appellant, Pedro J.
Velasco (petitioner in L-14035; respondent in L-13992) * from the decision of the Court of First Instance
of Rizal, Quezon City Branch, in its Civil Case No. 1355, absolving the defendants from a complaint for
the abatement of the sub-station as a nuisance and for damages to his health and business in the
amount of P487,600.00.
In 1948, appellant Velasco bought from the People's Homesite and Housing Corporation three (3)
adjoining lots situated at the corner of South D and South 6 Streets, Diliman, Quezon City. These lots are
within an area zoned out as a "first residence" district by the City Council of Quezon City. Subsequently,
the appellant sold two (2) lots to the Meralco, but retained the third lot, which was farthest from the
street-corner, whereon he built his house.
In September, 1953, the appellee company started the construction of the sub-station in question and
finished it the following November, without prior building permit or authority from the Public Service
Commission (Meralco vs. Public Service Commission, 109 Phil. 603). The facility reduces high voltage
electricity to a current suitable for distribution to the company's consumers, numbering not less than
8,500 residential homes, over 300 commercial establishments and about 30 industries (T.s.n., 19
October 1959, page 1765). The substation has a rated capacity of "2 transformers at 5000 Kva each or a
total of 10,000 Kva without fan cooling; or 6250 Kva each or a total of 12,500 Kva with fan cooling"
(Exhibit "A-3"). It was constructed at a distance of 10 to 20 meters from the appellant's house (T.s.n., 16
July 1956, page 62; 19 December 1956, page 343; 1 June 1959, page 29). The company built a stone
and cement wall at the sides along the streets but along the side adjoining the appellant's property it put
up a sawale wall but later changed it to an interlink wire fence.
It is undisputed that a sound unceasingly emanates from the substation. Whether this sound constitutes
an actionable nuisance or not is the principal issue in this case.
Plaintiff-appellant Velasco contends that the sound constitutes an actionable nuisance under Article 694
of the Civil Code of the Philippines, reading as follows:
A nuisance is any act, omission, establishment, business condition of property or anything else which:
(1) Injuries or endangers the health or safety of others; or
(2) Annoys or offends the senses; xxx xxx xxx
because subjection to the sound since 1954 had disturbed the concentration and sleep of said appellant,
and impaired his health and lowered the value of his property. Wherefore, he sought a judicial decree for
the abatement of the nuisance and asked that he be declared entitled to recover compensatory, moral
and other damages under Article 2202 of the Civil Code.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary that such
damages have been foreseen or could have reasonably been foreseen by the defendant.
of substation was unavoidable and did not constitute nuisance; that it could not have caused the
diseases of anxiety neurosis, pyelonephritis, ureteritis, lumbago and anemia; and that the items of
damage claimed by plaintiff were not adequate proved. Plaintiff then appealed to this Court.
The general rule is that everyone is bound to bear the habitual or customary inconveniences that result
from the proximity of others, and so long as this level is not surpassed, he may not complain against
them. But if the prejudice exceeds the inconveniences that such proximity habitually brings, the neighbor
who causes such disturbance is held responsible for the resulting damage, 1 being guilty of causing
nuisance.
While no previous adjudications on the specific issue have been made in the Philippines, our law of
nuisances is of American origin, and a review of authorities clearly indicates the rule to be that the
causing or maintenance of disturbing noise or sound may constitute an actionable nuisance (V.
Ed. Note, 23 ALR, 2d 1289). The basic principles are laid down in Tortorella vs. Traiser & Co., Inc., 90
ALR 1206:
A noise may constitute an actionable nuisance, Rogers vs. Elliott, 146 Mass, 349, 15 N.E. 768,
4 Am. St. Rep. 316, Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371, Ann. Cas. 1915B,
1954,Stodder v. Rosen Talking Machine Co., 241 Mass. 245, 135 N. E. 251, 22 A. L. R. 1197, but it must
be a noise which 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 specially sensitive characteristics
will not render the noise an actionable nuisance. Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768, 4
Am. St. Rep. 316. 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. Beane v. H. J. Porter, Inc., 280 Mass. 538, 182 N. E.
823, Marshal v. Holbrook, 276 Mass. 341, 177 N. E. 504, Strachan v. Beacon Oil Co., 251 Mass. 479,
146 N. E. 787. 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. Bean v.
H. J. Porter, Inc..280 Mass. 538, 182 N. E. 823. 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. Stevens v.
Rockport Granite Co., 216 Mass. 486, 104 NE 371, Ann. Cas. 1915B, 1054.
With particular reference to noise emanating from electrical machinery and appliances, the court,
in Kentucky & West Virginia Power Co. v. Anderson, 156 S. W. 2d 857, after a review of authorities, ruled
as follows:
There can be no doubt but that 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. It is no defense that skill and care have been exercised and the most improved
methods and appliances employed to prevent such result. Wheat Culvert Company v. Jenkins, 246 Ky.
319, 55 S. W. 2d 4; 46 C.J. 683, 705; 20 R. C. L. 438; Annotations, 23 A. L. R. 1407; 90 A. L. R. 1207. Of
course, the creation of trifling annoyance and inconvenience does not constitute an actionable nuisance,
and the locality and surroundings are of importance. 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. Usually it was shown to be of that character. The
determinating 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. 20 R. C. L. 445, 453; Wheat Culvert Company v.
Jenkins, supra. There can be no fixed standard as to what kind of noise constitutes a nuisance. It is true
some witnesses in this case say they have been annoyed by the humming of these transformers, but that
fact is not conclusive as to the nonexistence of the cause of complaint, the test being the effect which is
had upon an ordinary person who is neither sensitive nor immune to the annoyance concerning which
the complaint is made. In the absence of evidence that the complainant and his family are supersensitive
to distracting noises, it is to be assumed that they are persons of ordinary and normal
sensibilities. Roukovina v. Island Farm Creamery Company, 160 Minn. 335, 200 N. W. 350, 38 A. L. R.
1502.
xxx xxx xxx
In Wheat Culvert Company vs. Jenkins, supra, we held an injunction was properly decreed to stop the
noise from the operation of a metal culvert factory at night which interfered with the sleep of the
occupants of an adjacent residence. It is true the clanging, riveting and hammering of metal plates
produces a sound different in character from the steady hum or buzz of the electric machinery described
in this case. In the Jenkins case the noise was loud, discordant and intermittent. Here it is interminable
and monotonous. Therein lies the physical annoyance and disturbance. Though the noise be
harmonious and slight and trivial in itself, the constant and monotonous sound of a cricket on the earth,
or the drip of a leaking faucet is irritating, uncomfortable, distracting and disturbing to the average man
and woman. So it is that the intolerable, steady monotony of this ceaseless sound, loud enough to
interfere with ordinary conversation in the dwelling, produces a result generally deemed sufficient to
constitute the cause of it an actionable nuisance. Thus, it has been held the continuous and monotonous
playing of a phonograph for advertising purposes on the street even though there were various records,
singing, speaking and instrumental, injuriously affected plaintiff's employees by a gradual wear on their
nervous systems, and otherwise, is a nuisance authorizing an injunction and damages. Frank F.
Stodder, et al. v. Rosen Talking Machine Company, 241 Mass. 245, 135 N. E. 251, 22 A. L. R. 1197.
The principles thus laid down make it readily apparent that inquiry must be directed at the character and
intensity of the noise generated by the particular substation of the appellee. As can be anticipated,
character and loudness of sound being of subjective appreciation in ordinary witnesses, not much help
can be obtained from the testimonial evidence. That of plaintiff Velasco is too plainly biased and
emotional to be of much value. His exaggerations are readily apparent in paragraph V of his amended
complaint, signed by him as well as his counsel, wherein the noise complained of as fearful hazardous
noise and clangor are produced by the said electric transformer of the MEC's substation, approximating
a noise of a reactivated about-to-explode volcano, perhaps like the nerve wracking noise of the torture
chamber in Germany's Dachau or Buchenwald (Record on Appeal, page 6).
The estimate of the other witnesses on the point of inquiry are vague and imprecise, and fail to give a
definite idea of the intensity of the sound complained of. Thus:
OSCAR SANTOS, Chief Building Inspector, Department of Engineering, Quezon City ____ "the sound
(at the front door of plaintiff Velasco's house) becomes noticeable only when I tried to concentrate ........"
(T.s.n., 16 July 1956, page 50)
SERAFIN VILLARAZA, Building Inspector ____ "..... like a high pitch note." (the trial court's description
as to the imitation of noise made by witness:"........ more of a hissing sound) (T.s.n., 16 July 1956, pages
59-60)
CONSTANCIO SORIA, City Electrician ____ "........ humming sound" ..... "of a running car". (T.s.n., 16
July 1956, page 87)
JOSE R. ALVAREZ, Sanitary Engineer, Quezon City Health Department ____ "..... substation emits a
continuous rumbling sound which is audible within the premises and at about a radius of 70 meters." "I
stayed there from 6:00 p.m. to about 1:00 o'clock in the morning" ..... "increases with the approach of
twilight." (T.s.n., 5 September 1956, pages 40-44)
NORBERTO S. AMORANTO, Quezon City Mayor ____ (for 30 minutes in the street at a distance of 12 to
15 meters from sub-station) "I felt no effect on myself." "..... no [piercing noise]" (T.s.n., 18 September
1956, page 189)
PACIFICO AUSTRIA, architect, appellant's neighbor: "..... like an approaching airplane ..... around five
kilometers away." (T.s.n., 19 November 1956, pages 276-277)
ANGEL DEL ROSARIO, radiologist, appellant's neighbor: "..... as if it is a running motor or a running
dynamo, which disturbs the ear and the hearing of a person." T.s.n., 4 December 1956, page 21)
ANTONIO D. PAGUIA, lawyer ____ "It may be likened to the sound emitted by the whistle of a boat at a
far distance but it is very audible." (T.s.n., 19 December 1956, page 309)
RENE RODRIGUEZ, sugar planter and sugar broker, appellant's neighbor ____ "It sounds like a big
motor running continuously." (T.s.n., 19 December 1956, page 347)
SIMPLICIO BELISARIO, Army captain, ____ (on a visit to Velasco) "I can compare the noise to an
airplane C-47 being started - the motor." [Did not notice the noise from the substation when passing by,
in a car, Velasco's house] (T.s.n., 7 January 1957, pages 11-12)
MANOLO CONSTANTINO, businessman, appellant's neighbor ____ "It disturbs our concentration of
mind." (T.s.n., 10 January 1957, page 11)
PEDRO PICA, businessman, appellant's neighbor: "..... We can hear it very well [at a distance of 100 to
150 meters]. (T.s.n., 10 January 1957, page 41)
CIRENEO PUNZALAN, lawyer ____ "..... a continuous droning, ..... like the sound of an airplane." (T.s.n.,
17 January 1957, page 385)
JAIME C. ZAGUIRRE, Chief, Neuro-Psychiatry Section, V. Luna Gen. Hospital ____ "..... comparatively
the sound was really loud to bother a man sleeping." (T.s.n., 17 January 1957, page 406)
We are thus constrained to rely on quantitative measurements shown by the record. Under
instructions from the Director of Health, samplings of the sound intensity were taken by Dr. Jesus
Almonte using a sound level meter and other instruments.
Within the compound of the plaintiff-appellant, near the wire fence serving as property line between
him and the appellee, on 27 August 1957 at 11:45 a.m., the sound level under the sampaloc tree
was 46-48 decibels,
While behind Velasco's kitchen, the meter registered 49-50 ;
 at the same places on 29 August 1957, at 6:00 a.m., the readings were 56-59 and 61-62 decibels,
respectively ;
on 7 September 1957, at 9:30 a.m., the sound level under the sampaloc tree was 74-76 decibels;
and
on 8 September 1957 at 3:35 in the morning, the reading under the same tree was 70 decibels,
while near the kitchen it was 79-80 decibels.
Several measurements were also taken inside and outside the house (Exhibit "NN-7, b-f"). The
ambient sound of the locality, or that sound level characteristic of it or that sound predominating
minus the sound of the sub-station is from 28 to 32 decibels . (T.s.n., 26 March 1958, pages 6-7)
Mamerto Buenafe, superintendent of the appellee's electrical laboratory, also took sound level samplings.
On 19 December 1958, between 7:00 to 7:30 o'clock in the evening, at the substation compound near
the wire fence or property line, the readings were 55 and 54 and still near the fence close to the
sampaloc tree, it was 52 decibels; outside but close to the concrete wall, the readings were 42 to 43
decibels; and near the transformers, it was 76 decibels (Exhibit "13").
Buenafe also took samplings at the North General Hospital on 4 January 1959 between 9:05 to 9:45
in the evening. In the different rooms and wards from the first to the fourth floors, the readings varied
from 45 to 67 decibels.
Technical charts submitted in evidence show the following intensity levels in decibels of some familiar
sounds:
average residence: 40;
average office: 55;
average automobile, 15 feet: 70;
noisiest spot at Niagara Falls: 92 (Exhibit "11- B");
average dwelling: 35;
quiet office: 40;
average office: 50;
conversation: 60;
pneumatic rock drill: 130 (Exhibit "12");
quiet home average living room: 40;
home ventilation fan, outside sound of good home airconditioner or automobile at 50 feet: 70
(Exhibit "15-A").
Thus the impartial and objective evidence points to the sound emitted by the appellee's substation
transformers being of much higher level than the ambient sound of the locality. The measurements taken
by Dr. Almonte, who is not connected with either party, and is a physician to boot (unlike appellee's
electrical superintendent Buenafe), appear more reliable. The conclusion must be that, contrary to the
finding of the trial court, the noise continuously emitted, day and night, constitutes an actionable
nuisance for which the appellant is entitled to relief, by requiring the appellee company to adopt the
necessary measures to deaden or reduce the sound at the plaintiff's house, by replacing the interlink
wire fence with a partition made of sound absorbent material, since the relocation of the substation is
manifestly impracticable and would be prejudicial to the customers of the Electric Company who are
being serviced from the substation.
Appellee company insists that as the plaintiff's own evidence (Exhibit "NN-7[c]") the intensity of the
sound (as measured by Dr. Almonte) inside appellant's house is only 46 to 47 decibels at the
consultation room, and 43 to 45 decibels within the treatment room, the appellant had no ground to
complain. This argument is not meritorious, because the noise at the bedrooms was determined to be
around 64-65 decibels, and the medical evidence is to the effect that the basic root of the appellant's
ailments was his inability to sleep due to the incessant noise with consequent irritation, thus weakening
his constitution and making him easy prey to pathogenic germs that could not otherwise affect a person
of normal health.
In Kentucky and West Virginia Co., Inc. vs. Anderson, 156 SW. 857, the average of three readings along
the plaintiff's fence was only 44 decibels but, because the sound from the sub-station was interminable
and monotonous, the court authorized an injunction and damages. In the present case, the three
readings along the property line are 52, 54 and 55 decibels. Plaintiff's case is manifestly stronger.
Appellee company argues that the plaintiff should not be heard to complain because the sound level at
the North General Hospital, where silence is observed, is even higher than at his residence. This
comparison lacks basis because it has not been established that the hospital is located in surroundings
similar to the residential zone where the plaintiff lived or that the sound at the hospital is similarly
monotonous and ceaseless as the sound emitted by the sub-station.
Constancio Soria testified that "The way the transformers are built, the humming sound cannot be
avoided". On this testimony, the company emphasizes that the substation was constructed for public
convenience. Admitting that the sound cannot be eliminated, there is no proof that it cannot be reduced.
That the sub-station is needed for the Meralco to be able to serve well its customers is no reason,
however, why it should be operated to the detriment and discomfort of others. 2
The fact that the Meralco had received no complaint although it had been operating hereabouts
for the past 50 years with substations similar to the one in controversy is not a valid argument.
The absence of suit neither lessens the company's liability under the law nor weakens the right of
others against it to demand their just due.
As to the damages caused by the noise, appellant Velasco, himself a physician, claimed that the noise,
as a precipitating factor, has caused him anxiety neurosis, which, in turn, predisposed him to, or is
concomitant with, the other ailments which he was suffering at the time of the trial, namely,
pyelonephritis, ureteritis and others; that these resulted in the loss of his professional income and
reduced his life expectancy. The breakdown of his claims is as follows:
Loss of professional earnings P12,600
Damage to life expectancy 180,000
Moral damages 100,000
Loss due to frustration of sale of house 125,000
Exemplary damages 25,000
Attorneys' fees 45,000
A host of expert witnesses and voluminous medical literature, laboratory findings and statistics of income
were introduced in support of the above claims.
The medical evidence of plaintiff's doctors preponderates over the expert evidence for defendant-
appellee, not merely because of its positive character but also because the physicians presented
by plaintiff had actually treated him, while the defense experts had not done so. Thus the evidence
of the latter was to a large extent conjectural. That appellant's physical ailments should be due to
infectious organisms does not alter the fact that the loss of sleep, irritation and tension due to excessive
noise weakened his constitution and made him easy prey to the infection.
Regarding the amount of damages claimed by appellant, it is plain that the same are exaggerated. To
begin with, the alleged loss of earnings at the rate of P19,000 per annum is predicated on the Internal
Revenue assessment, Exhibit "QQ-1", wherein appellant was found to have undeclared income of P8,338.20 in
additional to his declared gross income of P10,975.00 for 1954. There is no competent showing, however, that the
source of such undeclared income was appellant's profession. In fact, the inference would be to the contrary, for his
gross income from the previous years 1951 to 1953 [Exhibits "QQ-1 (d)" to "QQ-1 (f)"] was only P8,085.00, P5,860.00
and P7,120.00, respectively, an average of P7,000.00 per annum. Moreover, while his 1947 and 1948 income was
larger (P9,995.00 and P11,900.00), it appears that P5,000 thereof was the appellant's annual salary from the Quezon
Memorial Foundation, which was not really connected with the usual earnings derived from practice as a physician.
Considering, therefore, his actual earnings, the claimed moral damages of P100,000.00 are utterly disproportionate.
The alleged losses for shortening of appellant's, life expectancy are not only inflated but speculative.
As to the demand for exemplary or punitive damages, there appears no adequate basis for their award. While the
appellee Manila Electric Company was convicted for erecting the substation in question without permit from the Public
Service Commission, We find reasonable its explanation that its officials and counsel had originally deemed that such
permit was not required as the installation was authorized by the terms of its franchise (as amended by Republic Act
No. 150) requiring it to spend within 5 years not less than forty million pesos for maintenance and additions to its
electric system, including needed power plants and substations. Neither the absence of such permit from the Public
Service Commission nor the lack of permit from the Quezon City authorities (a permit that was subsequently granted)
is incompatible with the Company's good faith, until the courts finally ruled that its interpretation of the franchise was
incorrect.
There are, moreover, several factors that mitigate defendant's liability in damages. The first is that the noise from the
substation does not appear to be an exclusive causative factor of plaintiff-appellant's illnesses. This is proved by the
circumstance that no other person in Velasco's own household nor in his immediate neighborhood was shown to have
become sick despite the noise complained of. There is also evidence that at the time the plaintiff-appellant appears to
have been largely indebted to various credit institutions, as a result of his unsuccessful gubernatorial campaign, and
this court can take judicial cognizance of the fact that financial worries can affect unfavorably the debtor's disposition
and mentality.
The other factor militating against full recovery by the petitioner Velasco in his passivity in the face of the damage
caused to him by the noise of the substation. Realizing as a physician that the latter was disturbing or depriving him of
sleep and affecting both his physical and mental well being, he did not take any steps to bring action to abate the
nuisance or remove himself from the affected area as soon as the deleterious effects became noticeable. To evade
them appellant did not even have to sell his house; he could have leased it and rented other premises for sleeping
and maintaining his office and thus preserve his health as ordinary prudence demanded. Instead he obstinately stayed
until his health became gravely affected, apparently hoping that he would thereby saddle appellee with large
damages.
The law in this jurisdiction is clear. Article 2203 prescribes that "The party suffering loss or injury must exercise the
diligence of a good father of a family to minimize the damages resulting from the act or omission in question". This
codal rule, which embodies the previous jurisprudence on the point, 3 clearly obligates the injured party to undertake
measures that will alleviate and not aggravate his condition after the infliction of the injury, and places upon him the
burden of explaining why he could not do so. This was not done.
Appellant Velasco introduced evidence to the effect that he tried to sell his house to Jose Valencia, Jr., in September,
1953, and on a 60 day option, for P95,000.00, but that the prospective buyer backed out on account of his wife
objecting to the noise of the substation. There is no reliable evidence, however, how much were appellant's lot and
house worth, either before the option was given to Valencia or after he refused to proceed with the sale or even during
the intervening period. The existence of a previous offer for P125,000.00, as claimed by the plaintiff, was not
corroborated by Valencia. What Valencia testified to in his deposition is that when they were negotiating on the price
Velasco mentioned to him about an offer by someone for P125,000.00. The testimony of Valencia proves that in the
dialogue between him and Velasco, part of the subject of their conversation was about the prior offer, but it does not
corroborate or prove the reality of the offer for P125,000.00. The testimony of Velasco on this point, standing alone, is
not credible enough, what with his penchant for metaphor and exaggeration, as previously adverted to. It is urged in
appellant's brief, along the lines of his own testimony, that since one (1) transformer was measured by witness,
Jimenez with a noise intensity of 47.2 decibels at a distance of 30.48 meters, the two (2) transformers of the
substation should create an intensity of 94.4 decibels at the same distance. If this were true, then the residence of the
plaintiff is more noisy than the noisiest spot at the Niagara Falls, which registers only 92 decibels (Exhibit "15-A").
Since there is no evidence upon which to compute any loss or damage allegedly incurred by the plaintiff by the
frustration of the sale on account of the noise, his claim therefore was correctly disallowed by the trial court. It may be
added that there is no showing of any further attempts on the part of appellant to dispose of the house, and this fact
suffices to raise doubts as to whether he truly intended to dispose of it. He had no actual need to do so in order to
escape deterioration of his health, as heretofore noted.
Despite the wide gap between what was claimed and what was proved, the plaintiff is entitled to damages for the
annoyance and adverse effects suffered by him since the substation started functioning in January, 1954. Considering
all the circumstances disclosed by the record, as well as appellant's failure to minimize the deleterious influences from
the substation, this Court is of the opinion that an award in the amount of P20,000.00, by way of moderate and moral
damages up to the present, is reasonable. Recovery of attorney's fees and litigation expenses in the sum of
P5,000.00 is also
justified the factual and legal issues were intricate (the transcript of the stenographic notes is about 5,000 pages,
side from an impressive number of exhibits), and raised for the first time in this jurisdiction. 4
The last issue is whether the City Engineer of Quezon City, Anastacio A. Agan, a co-defendant, may be held solidarily
liable with Meralco.
Agan was included as a party defendant because he allegedly (1) did not require the Meralco to secure a building
permit for the construction of the substation; (2) even defended its construction by not insisting on such building
permit; and (3) did not initiate its removal or demolition and the criminal prosecution of the officials of the Meralco.
The
record does not support these allegations. On the first plea, it was not Agan's duty to require the Meralco to secure a
permit before the construction but for Meralco to apply for it, as per Section 1. Ordinance No. 1530, of Quezon City.
The second allegation is not true, because Agan wrote the Meralco requiring it to submit the plan and to pay permit
fees (T.s.n., 14 January 1960, pages 2081-2082). On the third allegation, no law or ordinance has been cited
specifying that it is the city engineer's duty to initiate the removal or demolition of, or for the criminal prosecution of,
those persons who are responsible for the nuisance. Republic Act 537, Section 24 (d), relied upon by the plaintiff,
requires an order by, or previous approval of, the mayor for the city engineer to cause or order the removal of
buildings or structures in violation of law or ordinances, but the mayor could not be expected to take action because
he was of the belief, as he testified, that the sound "did not have any effect on his body."
FOR THE
FOREGOING REASONS, the appealed decision is hereby reversed in part and affirmed in part. The defendant-
appellee Manila Electric Company is hereby ordered to either transfer its substation at South D and South 6 Streets,
Diliman, Quezon City, or take appropriate measures to reduce its noise at the property line between the defendant
company's compound and that of the plaintiff-appellant to an average of forty (40) to fifty (50) decibels within 90 days
from finality of this decision; and to pay the said plaintiff-appellant P20,000.00 in damages and P5,000.00 for
attorney's fees. In all other respects, the appealed decision is affirmed. No costs.
b.) JUAN BENGZON vs. THE PROVINCE OF PANGASINAN
BUTTE, J.:
In this case the motion for reconsideration of the decision promulgated on October 26, 1935, was
granted and the case set for re-argument on December 17, 1935. The court having had the benefit of the
oral argument of counsel on the issue of their present value of the premises of the plaintiff-appellant
involved in this suit, its decision of October 26, 1935, is amended to read as follows:
This is an appeal from a judgment of the Court of First Instance of Pangasinan in action for damages
for maintaining a nuisance continuously injurious to the plaintiff and his family by reason of the
maintenance and operation of a stand pipe, pumping station and open reservoir for the storage of
water upon the premises immediately adjacent to the plaintiff's residence.
It appears from the stipulation of facts that the plaintiff owns a house constructed of wood and covered
with nipa on Avenida Rizal, municipality of Lingayen, Province of Pangasinan; that he had and his
family have resided there for twenty-seven years, his family being composed of eight members. Their
house is two stories constructed upon a lot which contains 720 square meter. Upon the adjacent lot the
defendant, during the years 1924 and 1925, constructed a reinforced concrete stand pipe 28 meters
high and nine meters in diameter. Within the base of this cylindrical tank there are three machines:
One electrical, one gasoline and one crude oil. On the side of the tank nearest the plaintiff's residence
and at a distance of 3.4 meters is a chimney which rises to about the height of the gable of the house.
The tank itself is 3.8 meters from the house of the plaintiff.
In March, 1927, the plaintiff protested to the governor of the province for the manner in which the plant
was being operated and asked that he be indemnified for the value of his house and lot so that he
might move his family and his effects to another residence. In this protest he stated:
"Expide humo y olor desagradable que penetran en el interior de mi casa, aun cerradas sus ventanas,
molestos y perjudiciales a nuestra salud. La chimenea de la maquina, que esta en en el lado del
tanque, contiguo al alero de mi casa, aunque esta envuela en la cabeza como una red de acero
chispea en ocasiones en que detro de la red se ha acumulado por el humo bastante suciedad
inflamable, y si algumas tiguo de mi casa, techada de nipa, ella naturalmente nada de su contenido.
"El tangue nos asusta y ponne en en peligro de ser aplastadoos por el, siempre que ocurre un tembor
como ya ha ocurrido varias veces desde su levantamiento, por sus porciones y condiciones
mencionadas, y la circunstancia de estar plantado sobre terreno blado, bajo y anegadizo. No es
improbable, ni menos increible, que este tanque volcara o se tumbra, si ocurriera en Lingayen un
temblor tan fuerte como el ocurrido el ao 63 u 80 en Manila, o el occurrido en Japon en 1923, o en la
fecha 7 de estee mes, que derrumbo muchas casas, matando a millares de personas. Ninguna
personans, por sabia que sea, puede dar certidumre y seguridad de que no se tumbaria, por cualquier
terremoto fuerte que occuriera aqui en Lingayen, maxime, estado cargada de CIEN MIL galones de
agua en su parte superior. Y si en ocasion en que yo mi familia estuvieramos dormidos, ocurrienran el
temblor y el volacamiento del TANQUE hacia mi casa ay de nosotros!"
After making an ocular inspection of the plant and hearing the testimony of the witnesses, the trial
court came to the conclusion that although the operation of the pumps and the tank creates some
annoyance and discomfort to the plaintiff, these are but ordinary and incidental to the reasonable
conduct of the defendant's water system . The court further held that inasmuch as the plaintiff did
not protest till after the plan was constructed, his action is barred for laches.
For this later conclusion of law the trial court cites no authority and we are not aware of any. It is to be
noted that this is not a suit for equitable relief but an action for damages. The doctrine that one who
consents to permits or acquiesces in the erection of structure with knowledge of the purpose for which
it is to be put and the consequences of its uses are productive of a nuisance, is not applicable here, for
the plaintiff neither consented to, permitted or acquiesced in the erection of the structure; nor could it
fairly be said that he had knowledge in advance of all the consequences of the erection and the
manner of operation of the plant here in question. The amended complaint in this case was filed on
January 4, 1930, from which we infer that the suit was instituted some time before that date. But there
is nothing in the record which warrants the inference of an estoppel by acquiescence.
The learned trial judge, in his decision of January 27, 1934, made a careful and exhaustive
analysis both of the law and the evidence in this case. But after a careful examination of the entire
record, we cannot accept his conclusion that the evidence a case of actionable nuisance.
In locating its pumping station within 3.8 meters from the house of the plaintiff, the defendant
should reasonably have foreseen that the noise, vibrations, smoke, odor and sparks coming from the
plant during its operation, not only during the day but during the night as well, would cause a constant
annoyance, discomfort and danger both to the property of the plaintiff and the health and comport of
himself and his family. The chimney which is just opposite the plaintiff's house at a distance of only 3.4
meters emits smoke, gases of crude oil and gasoline and occasionally sparks well. The plaintiff
testified that at times the smoke blinds him and his family affecting their lungs and their eyes and that
the noise and vibrations affect their sleep. As against the testimony of the plaintiff, who is exposed day
in and day out to these conditions, and of his neighbors who corroborate him, the brief ocular
inspection made by the court on one day, although conducted with eminent fairness, seems to us to be
entitled to less weight. The witnesses for the defendant, its employees, naturally minimize the harmful
effects to the plaintiff of the operation of the machines in the pumping plant. But the evidence as a
whole leaves us with clear conviction that the construction and operation of this pumping plant in
such close proximity to the plaintiff's residence has rendered the same practically
uninhabitable without exposing to risk the comfort, health and, in case of fire, even the live of
the plaintiff and his family.
We find from the preponderance of the evidence that the fair present
value of the appellant's premises involved in this suit is P3,000; and as, under the circumstances, the
maintenance of the nuisance is practically tantamount to an expropriation, we have concluded that
the defendant-appellee should be and it is hereby required and adjudged to pay by him to it of a
valid conveyance of the premises, free of liens and incumbrances, reserving to the plaintiff-
appellant the right to remove his improvements therefrom within three months from the date of
payment of the said P3,000.
The judgment appealed from is reserved and the cause is
remanded for further proceedings in accordance with this decision. No special pronouncement as to
costs in this instance.
e.) G.R. No. L-17760 October 31, 1962
RAMCAR, INC. vs. EUSEBIO S. MILLAR, ET AL.
REYES, J.B.L., J.:
Petitioner Ramcar Inc., operates and maintains an auto repair and body building shop at No. 1241
(formerly No. 1377) General Luna Street, Ermita, Manila, while the seven private respondents reside near or
around the shop. Respondents brought an action before the Court of First Instance of Manila to abate the said
establishment as a nuisance. That Court, after trial, dismissed the complaint, and not satisfied with the
decision, the plaintiffs (respondents now) appealed the case to the Court of Appeals. The appellate court
reversed the trial court's decision and entered judgment against Ramcar, Inc. as follows:
WHEREFORE, the decision of the lower court is hereby reversed and another one rendered declaring that
the operation and maintenance of the establishment of the defendant corporation at No. 1241 (formerly No.
1377) General Luna St., Ermita, Manila, is a public nuisance and violates the provisions of Zonification
Ordinance No. 2830, as amended by Ordinance No. 2906, of the City of Manila; ordering the defendants-
appellees to remove the said establishment and all buildings and structures built therein within 30 days from
the finality of this judgment; and, condemning defendant-appellee Ramcar, Inc., to pay plaintiffs-appellants
the sum of P10,000.00 as special damages and P2,000.00 as attorney's fees, without costs in this instance.
Whereupon, Ramcar, Inc. petitioned this Court for a review on certiorari.
Petitioner has been engaged in the auto repair and body building business since 1938 up to the
present, except when it was interrupted during the Japanese occupation. It transferred its place of business to
its present site from 1049 R. Hidalgo Street, Manila, on December 20, 1951 because the old location was
within the 100-meter radius from the Jose Rizal College, in violation of City ordinances. As found by the
Appeals Court, the nature of the corporation's activities, actually engaged in, consists in repairing and building
bodies of motor vehicles, and involves the use of tools and machinery that give rise to much noise and
annoyance during all hours of the day up to nighttime; and its employees oftentimes work on Sundays and
holidays. At the time of the transfer, respondent Eusebio S. Millar and his family were already residing on his
own land adjacent to that of Ramcar, Inc. He and his co-respondents repeatedly petitioned the city authorities
for the closure of the shop to no avail, because city authorities were "at loggerheads as to whether the
immediate vicinity where the business of Ramcar, Inc. is located is a residential or a commercial zone". The
Court of Appeals, however, found that the place is a commercial zone, as the business would not be permitted
in a residential zone.
It further appears that Ramcar, Inc. has been granted a license and permit to operate a garage; and it
claims that such license entitles it to conduct its body building business, and that Section 5 of Ordinance No.
2830, as amended by Ordinance No. 2906 of the City of Manila, allows it to conduct its business at the present
site. The said ordinance restricts the kinds of business, buildings and establishments that may be built on
commercial zones and the enumeration of permitted activities includes "6. Garage and gasoline service
stations". A body building shop is not within the purview of "garage", which designates a shop for storing,
repairing and servicing motor vehicles, being merely a modern substitute for the ancient livery stable (Legum
vs. Carlin, 99 ALR, 536) The Court of Appeals correctly held on this point:
It is clear that the business of Ramcar, Inc. is not a mere garage or automobile repair and painting
shop, much less, a gasoline service station, within the contemplation of Section 5 of the City Ordinances.
Besides the usual services of vehicle storage, of supplying gas, and of making repairs, the shop also
assembles and rebuilds car and truck bodies which require more than ordinary labor and skill and involves
the use of tools and machinery with the concomitant noise created by the use of those tools and machines.
While repair work may be considered as a necessary incident of a garage or gasoline service station for
purposes of goodwill when they involve minor repairs, body assembling or rebuilding certainly makes such
kind of business more than a mere garage and gas service station and, for zonification purposes, should not
be confused with and must be separated from a garage or gas service business.
In fact, it has been held in Uy Chao vs. Aguilar, G.R. No. L-9069, 28 March 1958, that to repair presupposes
decay, dilapidation, injury, or partial destruction of the repaired element, i.e., broken or damaged parts of a
structural whole to their original condition. Clearly, the term can not apply to the building or remodeling of
bodies or structures.
The second assigned error refers to the appreciation of documentary and testimonial evidence on
record, and incorporates certain testimonials of some neighbors of petitioner attesting to their non-molestation
by the shop in question; and, proceeding therefrom, petitioner argues that its business is not a nuisance in its
present location. Whether a particular thing is or is not a nuisance is a question of fact (Iloilo Cold Storage Co.
vs. Municipal Council, 24 Phil. 471; 61 C.J.S. 864) and is properly within the jurisdiction of the Court of
Appeals, whose findings of fact are conclusive. Under this same assignment of error, petitioner argues that it is
only the City, under its Charter, that can determine whether a business, occupation, act, or building is a
nuisance or not, and suggests that the remedy is an action against the City of Manila only for a determination of
whether or not the subject matter thereof is a nuisance. While Section 18 of Republic Act 409 grants
legislative powers to the municipal board to declare, prevent, and provide for the abatement of nuisances,
inaction by the board does not preclude the ultimate power of courts to determine the existence of a nuisance
in a particular case tried before them (Rutton vs. City of Camden, 23 Am. Rep. 203, 209; Iloilo Cold Storage
Co. vs. Municipal Council, supra).
The decision appealed from condemns the petitioner to pay P10,000.00, as "special damages", and P2,000.00
as attorney's fees to the respondents,
For the annoyance and discomfort caused by the constant noise emanating from the corporation's shop, as
well as to counsel fees where the defendant's (herein petitioner) acts or omissions have compelled them to
litigate . . . .
As last assignment of error, petitioner vehemently asserts that the award of damages has no sanction in law,
and because its business was covered by a valid license, the decision tends to punish a citizen who acted with
diligence and in accordance with law. In disposing of this assigned error, it is enough to point out that the
zoning ordinance prohibited the body building operations of petitioner. Contrary to petitioner's pretense that
nowhere in the Civil Code is the award of damages arising from a nuisance authorized, said Code provides:
ART. 697. The abatement of a nuisance does not preclude the right of any person injured to recover
damages for its past existence.;
and, in the general provisions on Damages, the same Code states:
ART. 2196. The rules under this Title are without prejudice to special provisions on damages formulated
elsewhere in this Code . . .
However, the business of the petitioner is not a nuisance per se. It is only on account of its location
that it is a public nuisance. To abate it, it is not necessary, as the appealed decision decrees, to remove all
building an structures built in the place where it is presently located as these, or parts thereof, may be utilized
for pursuit that are not forbidden by law or ordinance.
WHEREFORE, the decision appealed from is modified by permanently enjoining the petitioner only
from operating its body building operations or activities in its present location, without requiring the demolition
of the existing building in all other respects, the judgment below is affirmed. Costs in this instance against
petitioner Ramcar, Inc.