31 Cal. 115 | Cal. | 1866
We think the pleadings and verdict sufficient to sustain a judgment abating defendant’s dam as a nuisance. The general verdict in favor of the plaintiff alone is sufficient, and the special findings are not' inconsistent with it. The idea of the jury is not very artistically expressed in the special findings, but the intent was evidently to find that the dam was not only a present nuisance, but would continue to be a nuisance.
There was no error in giving the first and second instructions asked by the plaintiff. The Court did not thereby instruct the jury to find a verdict in favor of the plaintiff, as assumed by appellant’s counsel, but only instructed them, that the allegations of the complaint referred to in the instructions having been admitted by the answer, they should find those admitted facts in favor of the plaintiff. The allegations specified were not sufficiently denied to put them in issue, and the complaint being verified, they were, for the -purposes of the action, admitted to be true. The allegations referred to in these instructions are compound, embracing several particulars, and are denied as a whole, in the very language of the entire allegations. This mode of denial has béen so often held to be insufficient to raise a material issue that there ought to be no further occasion to repeat it. The instructions were correct.
There was no error in refusing the sixth and seventh instructions asked by defendant in the form presented.
There was no error in the-admission of Harvey’s evidence.
These are the only points relied on in the brief of appellant.
Mr. Justice Rhodes expressed no opinion.
