Monteverde v.

Generoso 52 Phil 123; 29 September 1928; Malcolm, J Nature: Appeal from a judgment of the Court of First Instance of Davao Facts: Tomas Monteverde is the owner of a parcel of land in Davao. He possesses a Torrens title, obtained in 1921. The parcel of land is bounded by the Agdao River. The Tambongon Creek is a branch of the river and runs through the Monteverde land. For fishpond purposes, Monteverde constructed 2 dams across the Agdao River and 5 dams across the Tambongon Creek. The 2 dams across the Agdao River were destroyed by order of the district engineer of Davao. The provincial governor also threatened to destroy the other dams in the creek. The motive behind the destruction was to safeguard the public health. To prevent the contemplated action with reference to the dams in the Tambongon Creek, Monteverde sought in CFI of Davao an injunction to restrain the respondents from destroying the dams. Monteverde was unsuccessful in the lower court, hence this appeal. Issue: 1. Is a provincial governor, district engineer, or a district health officer authorized to destroy private property consisting of dams and fishponds summarily without any judicial proceedings whatsoever under the pretense that such private property constitutes a nuisance? Held: 1. No. Ratio: It should be added that the fishponds were constructed in 1921 and 1922, and did not exist as a result of a concession in Spanish times. The Tambongon Creek is navigable and as such is of public ownership. The reason for the contemplated action by the governor and the legal authority on which he relied are apparent in the letter sent by the governor to Monteverde. (Gist of letter: We have received complaints about you closing branches of the river and creek for fishpond purposes without prior authorization from authorities, obstructing water flow and causing development of stagnant water which becomes breeding ground of mosquitos. For public sanitation and by virtue of section 24 of Water Law, you are ordered to remove the dams. Comply promptly or the district engineer will be ordered to effect the work.) Admin Code grants the municipal council the power by ordinance or resolution to declare, prevent, and abate nuisances. Water Law Sec 24, on the other hand, says any person may construct on his property ponds for bathing, commercial or recreative purposes with notice to the governor. The governor will have the power to suspend work if after consultation with experts, it appears the construction will be prejudicial to public interests. Private party may appeal to the government.

There are 2 classes of nuisances. Nuisances per se and nuisances per accidens. The first, since they affect the immediate safety of persons and property, may be summarily abated under the law of necessity. But if the nuisance is nuisance per accidens, even the municipal authorities would not have the right to declare the abatement of a particular thing or an act as a nuisance without reasonable notice to the person alleged to be doing or maintaining the same of the time and place of hearing before a tribunal authorized to decide whether such a thing or act does in fact constitute a nuisance. (Iloilo Ice and Cold Storage v. Municipal Council of Iloilo) It is obvious that a dam or fishery constructed in navigable waters is not a nuisance per se. But if it impairs the health or depreciates property, it can be found to be a nuisance. The public health may be conserved but conserved only in the legal manner. Due process must be observed before a private citizen s property may be interfered with. The US case of Lawton v. Steele makes a good point. it is not easy to draw the line where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as public nuisance, and the owner would have good reason to complain of such act, as depriving him of his property without due process of law. But where the property is of a trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the Legislature to order its summary abatement. Like cards of chips in a gambling room for it would be belittling to the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. In contrast with Lawton v. Steele, (1) there is no law authorizing the summary abatement of nuisances by the governor and (2) the dams are not of trifling value. Decision of CFI denying injunction is REVERSED. Dispositive: CFI decision denying the petition for injunction is REVERSED. Injunction granted. No pronouncement as to costs.