FIRST DIVISION

[G.R. No. 193659. June 15, 2015.]

SPS. FERNANDO VERGARA and HERMINIA VERGARA , petitioners, vs .

ERLINDA TORRECAMPO SONKIN , respondent.

DECISION

PERLAS-BERNABE , J : p

Assailed in this petition for review on certiorari 1 are the Decision 2 dated
February 24, 2010 and the Resolution 3 dated September 2, 2010 of the Court of
Appeals (CA) in CA-G.R. CV No. 89357, which reversed and set aside the Decision 4
dated January 4, 2007 of the Regional Trial Court of Malolos City, Bulacan, Branch 19
(RTC) in Civil Case No. 900-M-2002 and entered a new one in its stead.
The Facts
Petitioners-spouses Fernando Vergara and Herminia Vergara (Sps. Vergara) and
Spouses Ronald Mark Sonkin and Erlinda Torrecampo Sonkin (Sps. Sonkin) are
adjoining landowners in Poblacion, Norzagaray, Bulacan. In view of the geographical
con guration of the adjoining properties, the property owned by Sps. Sonkin (Sonkin
Property) is slightly lower in elevation than that owned by Sps. Vergara (Vergara
Property). 5
When Sps. Sonkin bought the Sonkin Property sometime in 1999, they raised the
height of the partition wall and caused the construction of their house thereon. The
house itself was attached to the partition wall such that a portion thereof became part
of the wall of the master's bedroom and bathroom. 6
Sometime in 2001, Sps. Vergara levelled the uneven portion of the Vergara
Property by lling it with gravel, earth, and soil. As a result, the level of the Vergara
Property became even higher than that of the Sonkin Property by a third of a meter.
Eventually, Sps. Sonkin began to complain that water coming from the Vergara
Property was leaking into their bedroom through the partition wall, causing cracks, as
well as damage, to the paint and the wooden parquet oor. Sps. Sonkin repeatedly
demanded that Sps. Vergara build a retaining wall on their property in order to contain
the land ll that they had dumped thereon, but the same went unheeded. 7 Hence, Sps.
Sonkin led the instant complaint for damages and injunction with prayer for
preliminary mandatory injunction and issuance of a temporary restraining order against
Sps. Vergara, as well as Sps. Rowena Santiago and Harold Santiago, Dolores Vergara-
Orbistondo, and Rosario Vergara-Payumo, the other possessors of the Vergara
Property. 8 HCaDIS

In defense, Sps. Vergara, in their Answer with Compulsory Counterclaim, 9

claimed that Sps. Sonkin's act of raising the partition wall made the same susceptible
to breakage, which therefore cannot be attributed to them (Sps. Vergara). They likewise
claimed that when they levelled their own property by lling it with gravel and soil, they
left a distance of one (1) meter from the partition wall such that the edge of the land ll
did not breach it, asserting further that there was no valid and legal reason why they
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 should be enjoined from exercising their proprietary rights. 10
During the trial, Sps. Sonkin presented the testimony of Engineer Ma. Victoria
Mendoza, considered an expert witness, who categorically declared that in view of the
sloping terrain and the Sonkin Property being lower in elevation than that of the Vergara
Property, the Sps. Vergara were then duty bound to provide a retaining wall because
they were the ones who caused the land ll, citing Section 1202 11 of Presidential
Decree No. 1096, 12 otherwise known as the "National Building Code of the Philippines"
(National Building Code). Likewise, citing Sections 3.2.1, 3.2.3, and 3.2.4 of Section 3.2,
Rule XV of the original Implementing Rules and Regulations 13 of the National Building
Code, she explained that it was Sps. Vergara's duty to provide safety requirements for
the land ll they made on their property to prevent any danger to life or property.
Moreover, Sps. Vergara failed to provide a sewerage line to divert the ow of the water
into the adjoining property, in violation of Section 901 14 of the National Building Code.
15

Finally, the Provincial Engineer of Bulacan, Romeo S. Castro, who was appointed
as Commissioner by the RTC to conduct his own investigation, likewise found, inter alia,
that the introduction of lling materials on the Vergara Property has "affected" the
house of Sps. Sonkin. 16
The RTC Ruling
In a Decision 17 dated January 4, 2007, the RTC found Sps. Vergara civilly liable to
Sps. Sonkin for damages and directed them: (a) to scrape the earth and other lling
materials dumped in the adjacent perimeter wall of the Sonkin Property and erect a
retaining wall in accordance with the standards of the National Building Code; (b) to
install and provide an adequate drainage system in accordance with the same Code;
a n d (c) to jointly and severally pay Sps. Sonkin P300,000.00 as actual damages,
P50,000.00 as moral damages, P50,000.00 as exemplary damages, P100,000.00 as
attorney's fees, and costs of suit. It dismissed all other claims of the Sps. Sonkin, as
well as the counterclaims of Sps. Vergara, for lack of merit. 18
The RTC found that the earth dumped on the Vergara Property pushed back the
perimeter wall, causing cracks on Sps. Sonkin's bedroom wall and water to seep
through the oor of the house. Moreover, the water seepage could only have come
from the Vergara Property which was higher in elevation, as Sps. Vergara have failed to
provide any drainage to divert the ow of water. Given the foregoing, the RTC
concluded that Sps. Vergara's act of dumping earth, soil, and other materials in their
property directly caused the damage to the house of Sps. Sonkin and, thus, they should
be held liable for damages in favor of the latter. Needless to state, Sps. Vergara's co-
defendants were exculpated from liability since they were not shown to have
participated in the former's act. 19
Aggrieved, Sps. Vergara appealed 20 the entire RTC Decision to the CA. They
reiterated that they were merely exercising their proprietary rights over their property,
i.e., the Vergara Property, when they lled the area with soil and gravel, and that it was
Sps. Sonkin who transgressed the National Building Code when they failed to leave a
setback of two (2) meters between their house and the property line. 21
On the other hand, Sps. Sonkin led only a partial appeal, 22 assailing the amount
of actual, moral, and exemplary damages.
The CA Ruling
In a Decision 23 dated February 24, 2010, the CA reversed and set aside the
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 assailed RTC Decision and entered a new one: (a) ordering the Sps. Vergara to install
and provide an adequate drainage system on their property to prevent the ow of water
into the Sonkin Property, and to pay Sps. Sonkin the amounts of P50,000.00 as moral
damages and P100,000.00 as attorney's fees; (b) setting aside the directive to Sps.
Vergara to remove the land ll and build a retaining wall on their property; (c) deleting
the award of actual damages, as well as exemplary damages; and (d) dismissing the
separate appeal of the Sps. Sonkin for lack of merit. 24
While the CA concurred with the nding of the RTC that the cause of the water
seepage into the Sonkin Property was the act of Sps. Vergara in elevating their own
property by lling it with gravel and soil, it ascribed error upon the RTC in not nding
that Sps. Sonkin were likewise guilty of contributory negligence in building their house
directly abutting the perimeter wall. 25 The CA explained that despite the fact that under
Article 637 of the Civil Code, the Sonkin Property is legally obliged to receive any water
from higher estates such as the Vergara Property, it being the lower estate, the Sps.
Sonkin still built their house with parts thereof directly abutting the perimeter wall and,
in the process, violated the two (2)-meter setback rule under Section 708 26 of the
National Building Code. 27 Thus, the CA deduced that had Sps. Sonkin followed such
rule, then their house would not have sustained any damage from water coming from
the Vergara property. 28 Proceeding from such ratiocination, the CA deleted the award
of actual damages in the absence of evidence, i.e., actual receipts, showing the amount
actually spent by Sps. Sonkin in the repairs or renovation of their property. Similarly, it
deleted the award of exemplary damages, as Sps. Vergara was not proven to have
acted with gross negligence in levelling their property with the land ll and in mitigation
of their liability in light of Sps. Sonkin's contributory negligence. The award of moral
damages and attorney's fees, however, were affirmed. 29 AHCETa

Finally, the CA found the order directing Sps. Vergara to remove the land ll on
their property to be unreasonable and an interference on their proprietary rights. It
considered the order to provide an adequate drainage system on their property to be
su cient under the circumstances. Neither did it nd the need to build a retaining wall
on the Vergara Property for the purpose of containing the landfill thereon, opining that if
it was Sps. Vergara's obligation to prevent damage to Sps. Sonkin's house by erecting a
retaining wall, then it was the latter's concomitant obligation to detach their house from
the perimeter wall in order to prevent any future damage or injury. 30
Only Sps. Vergara sought reconsideration 31 from the CA Decision, which was
denied in a Resolution 32 dated September 2, 2010. Hence, this petition impleading only
respondent Erlinda Torrecampo Sonkin (Erlinda), essentially arguing that Sps. Sonkin:
(a) are not entitled to damages; and (b) should be ordered to demolish the parts of
their house directly abutting the perimeter wall in compliance with Section 708 (a) of
the National Building Code. 33 Records are bereft of showing that Sps. Sonkin made a
further appeal to the Court.
The Issue Before the Court
The issues for the Court's resolution are (a) whether or not the CA erred in
upholding the award of moral damages and attorney's fees; and (b) whether or not it
should have ordered the demolition of the portion of the Sps. Sonkin's house that
adjoins the partition wall.
The Court's Ruling
The petition is meritorious.

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 Article 2179 of the Civil Code reads:
Art. 2179. When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his negligence
was only contributory, the immediate and proximate cause of the injury being
the defendant's lack of due care, the plaintiff may recover damages, but the
courts shall mitigate the damages to be awarded.
Verily, contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own protection. 34
In the case at bar, it is undisputed that the Sonkin property is lower in elevation
than the Vergara property, and thus, it is legally obliged to receive the waters that ow
from the latter, pursuant to Article 637 of the Civil Code. This provision refers to the
legal easement pertaining to the natural drainage of lands, which obliges lower estates
to receive from the higher estates water which naturally and without the intervention of
man descends from the latter, i.e., not those collected arti cially in reservoirs, etc., and
the stones and earth carried by the waters, 35 viz.:
Art. 637. Lower estates are obliged to receive the waters which
naturally and without the intervention of man descend from the higher
estates, as well as the stones or earth which then carry with them.
The owner of the lower estate cannot construct works which will impede
this easement; neither can the owner of the higher estate make works which will
increase the burden. 36 (Emphasis and underscoring supplied)
In this light, Sps. Sonkin should have been aware of such circumstance and,
accordingly, made the necessary adjustments to their property so as to minimize the
burden created by such legal easement. Instead of doing so, they disregarded the
easement and constructed their house directly against the perimeter wall which adjoins
the Vergara property, thereby violating the National Building Code in the process,
specifically Section 708 (a) thereof which reads:
Section 708. Minimum Requirements for Group A Dwellings.
(a) Dwelling Location and Lot Occupancy.
The dwelling shall occupy not more than ninety percent of a corner lot and
eighty percent of an inside lot, and subject to the provisions on Easement on
Light and View of the Civil Code of the Philippines, shall be at least 2 meters
from the property line .
. . . . (Emphasis and underscoring supplied)
Hence, the CA correctly held that while the proximate cause of the damage
sustained by the house of Sps. Sonkin was the act of Sps. Vergara in dumping gravel
and soil onto their property, thus, pushing the perimeter wall back and causing cracks
thereon, as well as water seepage, the former is nevertheless guilty of contributory
negligence for not only failing to observe the two (2)-meter setback rule under the
National Building Code, but also for disregarding the legal easement constituted over
their property. As such, Sps. Sonkin must necessarily and equally bear their own loss.
In view of Sps. Sonkin's contributory negligence, the Court deems it appropriate
to delete the award of moral damages in their favor. While moral damages may be
awarded whenever the defendant's wrongful act or omission is the proximate cause of
the plaintiff's physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation and similar injury in the
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 cases speci ed or analogous to those provided in Article 2219 37 of the Civil Code, 38
they are only given to ease the defendant's grief and suffering and should, therefore,
reasonably approximate the extent of hurt caused and the gravity of the wrong done. 39
Anent the issue on attorney's fees, the general rule is that the same cannot be
recovered as part of damages because of the policy that no premium should be placed
on the right to litigate. They are not to be awarded every time a party wins a suit. The
power of the court to award attorney's fees under Article 2208 40 of the Civil Code
demands factual, legal, and equitable justi cation. Even when a claimant is compelled
to litigate with third persons or to incur expenses to protect his rights, still attorney's
fees may not be awarded where no su cient showing of bad faith could be re ected in
a party's persistence in a case other than an erroneous conviction of the righteousness
of his cause. 41 In this case, the Court observes that neither Sps. Sonkin nor Sps.
Vergara (thru their compulsory counterclaim) were shown to have acted in bad faith in
pursuing their respective claims against each other. The existence of bad faith is
negated by the fact that both parties have valid contentions against each other. Thus,
absent cogent reason to hold otherwise, the Court deems it inappropriate to award
attorney's fees in favor of either party. 42 ScHADI

Finally, in view of Sps. Sonkin's undisputed failure to observe the two (2)-meter
setback rule under the National Building Code, and in light of the order of the courts a
quo directing Sps. Vergara to provide an adequate drainage system within their
property, the Court likewise deems it proper, equitable, and necessary to order Erlinda,
who is solely impleaded as respondent before the Court, to comply with the aforesaid
rule by the removal of the portion of her house directly abutting the partition wall. The
underlying precept on contributory negligence is that a plaintiff who is partly
responsible for his own injury should not be entitled to recover damages in full but
must bear the consequences of his own negligence. The defendant must therefore be
held liable only for the damages actually caused by his negligence. 43
WHEREFORE , the petition is GRANTED . The Decision dated February 24, 2010
and the Resolution dated September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV
No. 89357 are hereby AFFIRMED with MODIFICATIONS . The awards of moral
damages and attorney's fees are DELETED and respondent Erlinda Torrecampo
Sonkin is DIRECTED to strictly comply with Section 708 (a) of the National Building
Code by removing or demolishing the portion of her house that occupies the two-meter
easement from the property line. The rest of the CA Decision stands.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Bersamin and Perez, JJ., concur.
Footnotes

1. Rollo, pp. 11-18. Petitioners also led an amended petition on December 12, 2011 ( id. at
160-169) which was noted by the Court in a Resolution dated January 30, 2012 (id. at
280-281).

2. Id. at 21-34. Penned by Associate Justice Ricardo R. Rosario with Associate Justices Jose
C. Reyes, Jr. and Amy C. Lazaro-Javier concurring.

3. Id. at 117-118.
4. Id. at 60-72. Penned by Presiding Judge Renato C. Francisco.

5. Id. at 22.
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 6. Id.

7. See id. at 22-23.

8. See Complaint dated December 9, 2002; id. at 35-41.
9. See Answer with Compulsory Counterclaim dated January 10, 2003; id. at 48-52.

10. See id. at 23 and 50.

11. The pertinent portion of Section 1202 of the National Building Code reads:

Section 1202. Excavation, Foundation and Retaining Walls.

xxx xxx xxx
(c) Footings, Foundations, and Retaining Walls
xxx xxx xxx

(2) Whenever or wherever there exists in the site of the construction an abrupt change in the
ground levels or level of the foundation such that instability of the soil could result,
retaining walls shall be provided and such shall be of adequate design and type of
construction as prescribed by the Secretary.
12. Entitled "ADOPTING A NATIONAL BUILDING CODE OF THE PHILIPPINES THEREBY
REVISING REPUBLIC ACT NUMBERED SIXTY-FIVE HUNDRED FORTY-ONE" (February
19, 1977).
13. The original IRR have been revised in October 29, 2004.
14. Section 901 of the National Building Code provides:
Section 901. General.
Subject to the provisions of Book II of the Civil Code of the Philippines on Property,
Ownership, and its Modi cation, all buildings hereafter erected, altered, remodeled,
relocated or repaired for human habitation shall be provided with adequate and
potable water supply, plumbing installation, and suitable wastewater treatment or
disposal system, storm water drainage, pest and vermin control, noise abatement
device, and such other measures required for the protection and promotion of health
of persons occupying the premises and others living nearby.
15. See rollo, pp. 66-68.
16. See id. 63-64.
17. Id. at 60-72.

18. Id. at 71-72.

19. Id. at 68-71.
20. See Notice of Appeal dated February 7, 2007; id. at 73-74.
21. See id. at 25.
22. See Notice of Partial Appeal dated February 15, 2007; id. at 75-76.

23. Id. at 21-34.

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 24. Id. at 32-33.

25. Id. at 26-27.

26. Section 708 (a) of the National Building Code provides:
Section 708. Minimum Requirements for Group A Dwellings.
(a) Dwelling Location and Lot Occupancy .
The dwelling shall occupy not more than ninety percent of a corner lot and eighty percent of
an inside lot, and subject to the provisions on Easement on Light and View of the
Civil Code of the Philippines, shall be at least 2 meters from the property line.
xxx xxx xxx
27. See id. at 27-28.

28. Id. at 27.

29. See id. at 30-33.
30. Id. at 31-32.
31. See motion for reconsideration dated March 18, 2010; id. at 110-114.
32. Id. at 117-118.

33. See id. at 15-17. See also amended petition dated December 6, 2011; id. at 166-168.
34. Allied Banking Corporation v. Bank of the Philippine Islands, G.R. No. 188363, February 27,
2013, 692 SCRA 186, 201, citing Philippine National Bank v. Cheah Chee Chong , G.R.
Nos. 170865 & 170892, April 25, 2012, 671 SCRA 49, 64.
35. See Paras, Edgardo L., CIVIL CODE OF THE PHILIPPINES ANNOTATED, Vol. II, Sixteenth
Edition (2008), pp. 686-687.
36. See also Article 50 of Presidential Decree No. 1067, entitled "A DECREE INSTITUTING A
WATER CODE, THEREBY REVISING AND CONSOLIDATING THE LAWS GOVERNING
THE OWNERSHIP, APPROPRIATION, UTILIZATION, EXPLOITATION, DEVELOPMENT,
CONSERVATION AND PROTECTION OF WATER RESOURCES" (December 31, 1976),
which provides:

Art. 50. Lower estates are obliged to receive the waters which naturally and without the
intervention of man ow from the higher estates, as well as the stone or earth which
they carry with them.
The owner of the lower estate can not construct works which will impede this natural ow,
unless he provides an alternative method of drainage; neither can the owner of the
higher estate make works which will increase this natural flow.
37. Article 2219 of the Civil Code reads:
Art. 2219. Moral damages may be recovered in the following and analogous instances:
(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

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 (3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this
article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action
mentioned in No. 9 of this article, in the order named.
38. California Clothing, Inc. v. Quiñones , G.R. No. 175822, October 23, 2013, 708 SCRA 420,
431, citing Carpio v. Valmonte, 481 Phil. 352, 364 (2004).

39. Id., citing Villanueva v. Rosqueta, 624 Phil. 330, 337 (2010).
40. Article 2208 of the Civil Code reads:
Article 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiff's plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and
expenses of litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.
41. See The President of the Church of Jesus Christ of Latter Day Saints v. BTL Construction
Corporation, G.R. No. 176439, January 15, 2014, citing Development Bank of the
Philippines v. Traverse Development Corporation, 674 Phil. 405, 415 (2011).
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 42. See id.
43. Bank of America NT & SA v. Philippine Racing Club , 611 Phil. 687, 702 (2009), citing
Lambert v. Heirs of Ray Castillon, 492 Phil. 384, 391-392 (2005).

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