72.

Rana vs Wong
FACTS:
Teresita Lee Wong (Wong) and Spouses Shirley and Ruben Ang Ong (Sps. Ong) are co-owners pro-indiviso of
a residential covered by Transfer Certificate of Title (TCT) No. 139160 (Wong-Ong property), abutting a 10-
meter wide subdivision road (subject road).

On the opposite side of the subject road, across the Wong-Ong property, are the adjacent lots of Spouses Wilson
and Rosarlo Uy (Sps. Uy) and Spouses Reynaldo and Linda Rana (Sps. Rana), respectively covered by TCT
Nos. 124095 (Uy property) and T-115569 (Rana property). The said lots follow a rolling terrain with the Rana
property standing about two (2) meters higher than and overlooking the Uy property, while the Wong-Ong
property is at the same level with the subject road.

Sometime in 1997, Sps. Rana elevated and cemented a portion of the subject road that runs between the Rana
and Wong-Ong properties (subject portion) in order to level the said portion with their gate. Sps. Rana likewise
backfilled a portion (subject backfilling) of the perimeter fence separating the Rana and Uy properties without
erecting a retaining wall that would hold the weight of the added filling materials. The matter was referred to
the Office of the Barangay Captain of Lahug as well as the Office of the Building Official of Cebu City (OBO),
but to no avail.

RTC rendered a Decision in the consolidated cases.

In Civil Case No. CEB-20893, the RTC found that: (a) Sps. Rana, without prior consultation with the
subdivision owner or their neighbors, developed to their sole advantage the subject portion consisting of one-
half of the width of the 10-meter subject road by introducing filling materials, and rip rapping the side of the
road; (b) the said act denied Wong and Sps. Ong the use of the subject portion and affected the market value of
their property; (c) Sps. Uy have no intention of using the subject portion for ingress or egress considering that
they built a wall fronting the same; and (d) Wong, et al.'s manner of enforcing the November 27, 1997 Order
caused damage and injury to Sps. Rana and amounted to bad faith. In view of these findings, the RTC declared
that the parties all acted in bad faith, and, therefore, no relief can be granted to them against each other.
Separately, however, the RTC found that the backfilling done by Sps. Rana on their property exerted
pressure on the perimeter fence of the Uy property, thereby constituting a nuisance. As such, the former were
directed to construct a retaining wall at their own expense.

In Civil Case No. CEB-21296, the RTC, despite having adopted the findings of Atty. Reuel T. Pintor (Atty.
Pintor) a court-appointed commissioner who determined that Sps. Uy encroached the Rana property by 2 sq. m-
dismissed both the complaint and counterclaim for damages because of the failure of both parties to substantiate
their respective claims of bad faith against each other.

Dissatisfied with the RTC's verdict, the parties filed separate appeals with the CA.
On July 13, 2005, the CA rendered a Decision affirming the RTC.

ISSUES:
In G.R. No. 192861 WON RTC erred in not finding Wong and Sps. Uy guilty of malice and bad faith both in
instituting Civil Case No. CEB-20893 and in erroneously implementing the November 27, 1997 Order, -and (b)
failing or refusing to grant the reliefs initially prayed for, among others, the reconveyance of the encroached
property.
In G.R. No. 192862, WON RTC erred in (a) applying the in pari delicto doctrine against them and failing to
abate the nuisance[45] which still continues and actually exists as Sps. Rana caused the same to be reconstructed
and restored to their prejudice, and (b) not finding Sps. Rana guilty of bad faith in instituting Civil Case No.
CEB-21296 and ordering them to pay damages to petitioners Wong, et al.
Ruling:
A. Civil Case No. CEB-20893
For Abatement of Nuisance and Damages.
Under Article 694 of the Civil Code, a nuisance is defined as "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." Based on case law, however, the term "nuisance" is deemed to be "so comprehensive that
it has been applied to almost all ways which have interfered with the rights of the citizens, either in person,
property, the enjoyment of his property, or his comfort."[48]

Article 695 of the Civil Code classifies nuisances with respect to the object or objects that they affect. In this
regard, a nuisance may either be: (a) a public nuisance (or one which "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"); or (b) a private nuisance (or one "that is not included in the foregoing definition" [or, as case
law puts it, one which "violates only private rights and produces damages to but one or a few persons"]).[49]

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary abatement (that is,
corrective action without prior judicial permission). In this regard, a nuisance "may either be: (a) a nuisance per
se (or one which "affects the immediate safety of persons and property and may be summarily abated under the
undefined law of necessity");[50] or (b) a nuisance per accidens (or that which "depends upon certain conditions
and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in
a tribunal authorized to decide whether such a thing does in law constitute a nuisance.")[51]

It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it may not be summarily
abated. In Lucena Grand Central Terminal, Inc. v. Jac Liner, lnc.,[52] the Court, citing other cases on the
matter, emphasized the need for judicial intervention when the nuisance is not a nuisance per se, to wit:

In Estate of Gregoria Francisco v. Court of Appeals, this Court held:

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances
without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate
safety of persons and property and may be summarily abated under the undefined law of necessity. The
storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious
to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so
proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement
without judicial intervention.

In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellant-municipality similarly argued that the
terminal involved therein is a nuisance that may be abated by the Municipal Council via an ordinance, this
Court held: "Suffice it to say that in the abatement of nuisances the provisions of the Civil Code-(Articles
694-707) must be observed and followed. This appellant failed to do."[53] (Emphases supplied; citations
omitted)

Aside from the remedy of summary abatement which should be taken under the parameters stated in Articles
704.[54] (for public nuisances) and 706[55] (for private nuisances) of the Civil Code, a private person whose
property right was invaded or unreasonably interfered with by the act, omission, establishment, business or
condition of the property of another may file a civil action to recover personal damages.[56] Abatement may be
judicially sought through a civil action therefor[57] if the pertinent requirements under the Civil Code for
summary abatement, or the requisite that the nuisance is a nuisance per se, do not concur. To note, the remedies
of abatement and damages are cumulative-; hence, both may be demanded.[58]

In the present cases, Wong, et al. availed of the remedy of judicial abatement and damages against Sps. Rana,
claiming that both the elevated and cemented subject portion and the subject backfilling are "nuisances"
caused/created by the latter which curtailed their use and enjoyment of their properties.

With respect to the elevated and cemented subject portion, the Court finds that the same is not a nuisance per
se. By its nature, it is not injurious to the health or comfort of the community. It was built primarily to facilitate
the ingress and egress of Sps. Rana from their house which was admittedly located on a higher elevation than
the subject road and the adjoining Uy, and Wong-Ong properties. Since the subject portion is not a nuisance per
se (but actually a nuisance per accidens as will be later discussed) it cannot be summarily abated. As such,
Wong, et al. 's demolition of Sps. Rana's subject portion, which was not sanctioned under the RTC's November
27, 1997 Order, remains unwarranted. Resultantly, damages ought to be awarded in favor of Sps. Rana
particularly that of (a) nominal damages[59] - for the vindication and recognition of Sps. Rana's right to be
heard before the court prior to Wong, et al. 's abatement of the subject portion (erroneously perceived as a
nuisance per se) - and (b) temperate damages[60] - for the pecuniary loss owing to the demolition of the subject
portion, which had been established albeit uncertain as to the actual amount of loss.

Sps. Rana's entitlement to the above-mentioned damages, however, only stands in theory. This is because the
actual award thereof is precluded by the damage they themselves have caused Wong, et al. in view of their
construction of the subject portion. As the records establish, Sps. Rana, without prior consultation with
Wong, et al. and to their sole advantage, elevated and cemented almost half[61] of the 10-meter wide subject
road. As homeowners of Peace Valley Subdivision, Wong, et al. maintain the rights to the unobstructed use of
and free passage over the subject road. By constructing the subject portion, Sps. Rana introduced a nuisance
per accidens that particularly transgressed the aforesaid rights. Thus, for the vindication and recognition of
Wong, et al. 's rights, Sps. Rana should be similarly held liable for nominal damages. Under Article 2216 of
the Civil Code,[62] courts have the discretion to determine awards of nominal and temperate damages without
actual proof of pecuniary loss, as in this case. Assessing the respective infractions of the parties herein, the
Court finds it prudent to sustain the CA's verdict offsetting the damage caused by said parties against each
other. The Court can, however, only concur with the CA in result since the latter inaccurately applied,[63] as
basis for its ruling, the in pari delictoprinciple enunciated in the case of Yu Bun Guan v. Ong[64] (Yu Guan). In
said case, the Court discussed the in pari delicto principle with respect to the subject matter of inexistent and
void contracts, viz.:

Inapplicability of the in Pari Delicto Principle

The principle of in pari delicto provides that when two parties are equally at fault, the law leaves them as they
are and denies recovery by either one of them. However, this principle does not apply with respect to inexistent
and void contracts. Said this Court inModina v. Court of Appeals:
"The principle of in pari delicto non oritur 'actio denies all recovery to the guilty parties inter se. It applies to
cases where the nullity arises from the illegality of the consideration or the purpose of the contract. When two
persons are equally at fault, the law does not relieve them. The exception to this general rule is when the
principle is invoked with respect to inexistent contracts."[65] (emphasis supplied; citations omitted)

Clearly, no void or inexistent contract is herein at issue, hence, the Court's disagreement with the CA's
invocation of Yu Guan in this respect.

As for the subject backfilling touching the perimeter fence of the Uy property, records show that the said fence
was not designed to act as a retaining wall[66] but merely to withhold windload and its own load.[67] Both the
RTC and the CA found the subject backfilling to have added pressure on the fence,[68] consequently
endangering the safety of the occupants of the Uy property, especially considering the higher elevation of the
Rana property. With these findings, the Court thus agrees with the courts a quo that there is a need for Linda
Rana to construct a retaining wall[69] which would bear the weight and pressure of the filling materials
introduced on their property. The Court, however, observed that neither the RTC nor the CA specified in their
respective decisions the backfilled areas which would require the retaining wall. Due to the technicality of the
matter, and considering that the due authenticity and genuineness of the findings/recommendation[70] of the
OBO and the accompanying sketch[71] thereto were not specifically denied by Sps. Rana,[72] the required
retaining wall shall be constructed in accordance with the said sketch which showed the area backfilled.

B. Civil Case No. CEB-21296 For Recovery of Property.

Now, with respect to Civil Case No. CEB-21296, the Court finds that the CA erred in affirming the RTC's
dismissal thereof considering that it was determined that Sps. Uy had actually encroached upon the Rana
property to the extent of 2 sq. m.

Settled is the rule that in order that an action for the recovery of property may prosper, the party prosecuting the
same need only prove the identity of the thing and his ownership thereof.[73] In the present cases, the report[74] of
the court-appointed commissioner, Atty. Pintor, who conducted a relocation survey[75] of the Rana and Uy
properties identified and delineated the boundaries of the two properties and showed that Sps. Uy's perimeter
fence intruded on 2 sq. m. of the Rana property.[76] Both the RTC and the CA relied upon the said report; thus,
absent any competent showing that the said finding was erroneous, the Court sees no reason to deviate from the
conclusions reached by the courts a quo. Having sufficiently proven their claim, Sps. Rana are, therefore
entitled to the return of the 2 sq.m. encroached portion. Corollary thereto, compliance by Linda Rana with
the directive in Civil Case No. CEB-20893 to build a retaining wall on their property shall be held in abeyance
pending return of the encroached portion.

In Civil Case No. CEB-20893: Linda Rana is hereby ORDERED to build, at her own expense, a retaining wall
on the property covered by TCT No. 124095 in accordance with the sketch of the Office of the Building Official
of Cebu City attached to the records of the case, subject to the condition as shall be hereunder set; and

In Civil Case No. CEB-21296: Spouses Rosario and Wilson Uy are DIRECTED to return to Linda Rana the
2-square meter encroached portion as reflected in the relocation survey conducted by court-appointed
commissioner Atty. Reuel T. Pintor, after which Linda Rana shall be OBLIGEDto build the retaining wall as
directed by the Court.