Blanc v. Klumpke

29 Cal. 156 | Cal. | 1865

By the Court, Sanderson, C. J.

We are not prepared to say that the complaint in this case does not state a cause of action in favor of the plaintiff. Had ambiguity and uncertainty been the ground of demurrer we should have been inclined to sustain the Court below; but that ground is not relied on, nor could it be, for the reason that the ambiguity, if such exists, is not specially pointed out in the demurrer.

Although the complaint in that respect is somewhat ambiguous, we regard the plaintiff as alleging an obstruction by the defendant of the highway by water, as the same existed prior to the passage of the Act of the 24th of April, 1863, and also of the highway by land established by that Act, to his private prejudice. The theory of the complaint, as we understand it, is that the defendant has no legal right to obstruct the navigation of the bay in front of the plaintiff’s water line so long as the Harbor Commissioners do not proceed to convert the space in question into a highway by land as authorized by the aforesaid Act, and that when the Harbor Commissioners have so converted the same, he then has no right to obstruct the highway by land so created and established. As already intimated, the complaint is a little obscure in this respect; but so far as the rights of the parties to this action are concerned, it can make but little difference whether we regard the space alleged to be obstructed by the defendant as a highway by water or a highway by land; since in either case, the rights of the plaintiff in the premises are the same, and are founded upon the same legal principles; and the acts of the defendant are equally obstructive to both.

The suggestion of counsel for the defendant that for aught that appears in the complaint the defendant may be engaged in converting the highway by water into a highway by land under the- direction and supervision of the Harbor Commissioners is without substantial foundation. The language of the complaint is that the defendant has appropriated the public thoroughfare in question to his private and exclusive use, and has built and constructed and is proceeding to build and construct tenements and other improvements thereon, and that he claims the same as his private property and asserts bis right and intention perpetually hereafter to hold ánd possess, and at his pleasure to occupy and build upon the same, which is entirely inconsistent with the idea suggested. That the alleged obstructions are of a character appropriate to such a change in the thoroughfare or that they are being placed there by or under the direction of the Harbor Commissioners, is therefore, in our judgment, not only negatived by the whole tenor of the complaint but by its express terns.

That the alleged acts of the defendant amount to an obstruction to the navigation of the bay at the point in question and likewise to the use of the space as a highway by land, does not, we think, admit of debate. If so, the alleged obstructions must be at least a public ,nuisance and indictable as such. This does not seem to be seriously controverted by counsel for the defendant, but it is insisted that, admitting the obstructions in question to be a public nuisance, the complaint does not demonstrate that they also constitute as to the plaintiff a private nuisance within the statute (Practice Act, Section 249) for which he may have his private action. Undoubtedly if the obstructions only affect the plaintiff in common with the public at large, although in a greater degree, he cannot have his private action, but if he is thereby obstructed in the free use of his property, and its comfortable enjoyment by him is thereby interfered with and to some extent prevented, can it be said he suffers only in common with the public at large ? Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is declared to be a nuisance, and the subject of an action; and it is further provided that such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment of the Court the nuisance may be enjoined or abated and damages awarded. (Sec. 249, supra.) Whether certain alleged obstructions amount to a nuisance or not, is not a question for the Court but for the jury to decide. (Gunter v. Geary, 1 Cal. 446.)

How it is alleged by the plaintiff in express terms, that by reason of the alleged obstructions he is deprived of- the free and unobstructed use and enjoyment of his property, and that access and egress to and from the same is obstructed and cut off on the easterly side thereof towards the Bay of San Francisco, and that the rental value thereof is greatly diminished thereby. Whether this be so or not is the thing to be tried, and we think the facts are sufficiently alleged to entitle the plaintiff to the opinion of a jury thereon.

As to whether some of the damages alleged may or may not lie too remote we express no opinion.

Judgment reversed and cause remanded for further proceedings.

Mr. Justice Rhodes expressed no opinion.