Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-24245 April 11, 1972

LEONOR FARRALES, assisted by her husband, EMILIO FARRALES, plaintiffs-appellants,

Ernesto C. Hidalgo and Pedro O. Trinidad for plaintiff-appellants.

The City Attorney for defendants-appellees.

MAKALINTAL, J.:p

This appeal by the plaintiffs from the decision of the Court of First Instance of Baguio in its Civil Case No. 622 was taken to the Court of Appeals and
subsequently certified by the latter to this Court for the reason that only questions of law are involved.

The decision appealed from states the facts and conclusions arrived at by the court a quo, as follows:

This is an action for damages. Plaintiff was the holder of a municipal license to sell liquor and sari-
sari goods. When the temporary building where she had her stall was demolished in order that the
city might construct a permanent building, Plaintiff was ordered to move her goods to another
temporary place until the permanent building was completed. She did not like the location pointed
out by city officials where she could install her temporary stall. Instead, taking the law into her own
hands, Plaintiff built a temporary shack at one end of the Rice Section, Baguio City Market (see
Exhibits 3, 4, and 6), without seeking prior permit or permission from any city official. When the
police threatened to demolish this shack, which was built on the cement passageway at the end of
the Rice Section building, Plaintiff came to this Court seeking an injunction. Before this Court would
issue an injunction, a hearing was held where this Court refused to issue the same unless Plaintiff
could show proper permit. Plaintiff could not do so, so the police demolished the shack, brought the
materials and goods to the City Hall and subsequently delivered both materials and goods to
Plaintiff. Plaintiff cited the police for contempt but this Court, in an order dated September 19, 1956,
denied Plaintiff's petition. That order was final in character — not interlocutory — and no appeal
having been made would operate as res judicata to his present suit which is based on the same act
of demolition. To evade the effects of res judicata, Plaintiff amended her complaint so as to include
as Defendants the policemen whom she claims did the demolishing. The only question to be
determined by this Court is whether the demolition of the shack was in order or not. There is no
doubt Plaintiff had not permit to build the shack and this shack was built in the passageway where
people pass when going to the hangar market building. Plaintiff insists that the proper procedure
should have been for either the City Engineer or the City Health Officer to commence legal
proceedings for the abatement of this "nuisance". This Court believes that the police officers
properly demolished the shack for it had been built in defiance of orders from City Hall officials.
Plaintiff had been assigned a place where to install her shack — she did not like this and, following
her own desires, built the shack in the middle of a passage. Should the police wait for the City
Engineer or City Health Officer to act in order to clear the passageway of this illegal construction?
This Court believes that they could clear the passageway on their own responsibility, just like they
can push a car that is parked in the wrong place without waiting for court proceedings. In fact in the
case of Verzosa v. City of Baguio, G.R. No. L-13546, Sept. 30, 1960, our Supreme Court permitted
the removal of a building built under temporary permit on Session Road without court proceedings
simply because the temporary permit had expired. In this present case, with greater reason — the
removal of Plaintiff's building is justified.
 The complaint of Plaintiff is therefore, dismissed with costs against Plaintiff.

The first error assigned by the appellant refers to the order of the trial court refusing to declare the defendants in
default and allowing them to file their answer to the complaint after the expiration of the reglementary period for
that purpose. Such action of the court was justified and indeed explained by it in an order dated September 29,
1956, denying the plaintiff's motion for reconsideration of the permission granted on August 24, 1956 to the
defendants to file their answer. The Court said:

The stenographic notes of that day show that Atty. Baclit appeared in this case on behalf of the
Plaintiffs and when the issue of the sufficiency of Plaintiffs' complaint was raised by the City
Attorney, and Atty. Baclit said he had no knowledge of the same, this Court suspended hearing to
wait for Atty. Benjamin Rillera, attorney of record of Plaintiffs and who was the one who filed the
Motion to Declare Defendant in Default. Subsequently that morning, Atty. Rillera came and
manifested to this Court his willingness to withdraw his motion and, to allow Defendants to file their
answer. This was the reason for the order of this Court dated August 24, 1956. Plaintiffs are bound
by the actuations of their Counsel. The fact that he refused to file a motion for reconsideration and
instead insisted in withdrawing as counsel for Plaintiffs would be no justification of revoking the
order of August 24, 1956. The motion for reconsideration filed by Plaintiffs personally is, therefore,
denied for lack of merit.

The other errors assigned by the appellant have to do with the merits of the case. The appellant's contention is that
the shack or temporary stall put up by her inside the premises of the Baguio City Market was not a nuisance or if it
was a nuisance at all it was one per accidens and not per se and therefore could be abated only after the
corresponding judicial proceeding. The uncontradicted evidence does not support the appellant's contention. In the
first place she had no permit to put up the temporary stall in question in the precise place where she did so. In the
second place, its location on the cement passageway at the end of the Rice Section building was such that it
constituted an obstruction to the free movement of people. As the court a quo correctly observed, this fact is shown
clearly on the photographs marked Exhibits 3, 4 and 6. Judging by these photographs it cannot even be said that
what the appellant constructed was a temporary stall. It was nothing more than a lean-to, improvised with pieces of
used scrap iron roofing sheets. It was obviously not a "building" within the meaning of the Charter of the City of
Baguio (Art. V, Section 2557 [d] Adm. Code) relied upon by the appellant and under which the power "to cause
buildings, dangerous to the public, to be made secure or torn down, is vested in the City Engineer, subject to the
approval of the City Mayor.

It is true that under Article 702 of the Civil Code "the District Officer shall determine whether or not abatement,
without judicial proceedings, is the best remedy against public nuisance;" but in this case the failure to observe this
provision is not in itself a ground for the award of damages in favor of the appellant and against the appellees.
According to Article 707 of the same Code, a public official extrajudicially abating a nuisance shall be liable for
damages in only two cases: (1) if he causes unnecessary injury, or (2) if an alleged nuisance is later declared by
the courts to be not a real nuisance.

Here no unnecessary injury was caused to the appellant, and not only was there no judicial declaration that the
alleged nuisance was not really so but the trial court found that it was in fact a nuisance. Indeed it may be said that
the abatement thereof was not summary, but through a judicial proceeding. The appellant, after having been
warned by the city police of Baguio that the lean-to she had put up without a permit would be demolished, went to
court and asked for an injunction. A hearing was then held and the court refused to issue the writ unless she
showed the proper permit. The denial of her petition for injunction upon her failure to produce such a permit was in
effect an authority for the police to carry out the act which was sought to be enjoined. And it was an authority which
was later confirmed by the same court in its decision. Under the circumstances there is absolutely no ground to
award damages in favor of the appellant.

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

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo and Antonio, JJ., concur.

Makasiar, J., concurs in the result.