36 Cal. 193 | Cal. | 1868
The case comes here upon demurrer to the complaint, which was sustained in the Court below, with leave to amend. The plaintiff elected not to amend, and accordingly final judgment passed for the defendant.
The plaintiff sues to abate an alleged nuisance, and to
The grounds of demurrer are: First, that the facts do not constitute a cause of action; Second, that the District Courts have no jurisdiction in cases of nuisance; Third, that nuisance and damages cannot be united in the same action; Fourth, that separate causes of action are not separately stated; Fifth, that the complaint is ambiguous, unintelligible, and uncertain.
Of the particular grounds upon which the Court below based its judgment we are not advised, either by the record or by counsel. Counsel for the respondent sustain the judg
The point that the remedy is by indictment only is also untenable, for a public nuisance may also be a private nuisance, and if so, the person injured thereby may have his action. If the nuisance only affect the plaintiff in common with the public at large, it cannot have its action; but if, in addition, it obstructs it in the free use and enjoyment of its private property, it is so far a private nuisance also, and it may have its private action. (Blanc v. Klumpke, 29 Cal. 156.) For example: If the dam in question obstructs the navigation of the Sacramento River, it may be so far a public nuisance; but if it also obstructs the reclamation of Swamp Land District Humber Eighteen, it may be so far a private nuisance; or in other words, the diversion of the waters of a navigable stream may be both a public and a private nuisance.
The question of jurisdiction is answered by the case of Courtwright v. The B. R. and A. W. and M. Co., 30 Cal. 573. We there held that the District Courts have jurisdiction in actions to prevent or abate nuisances.
The ground that the complaint is ambiguous, unintelligible, and uncertain must be disregarded, for the reason that the
The ground that the complaint contains two distinct causes of action, if so, which cannot be united, is answered by the two hundred and forty-ninth section of the code, which expressly provides that a nuisance may be enjoined or abated, and damages therefor recovered in the same action. But we do not consider that the abatement of a nuisance and the recovery of damages therefor are distinct causes of action in the sense of the rule invoked by the demurrer. The nuisance is the cause of action—the abatement and damages therefor are merely the different kinds of relief to which the plaintiff may be entitled. This view is also an answer to the ground of demurrer, that the two causes of action—so called—are not separately stated.
The only question remaining is, whether the complaint states facts sufficient to constitute a cause of action.
The complaint seems to proceed upon the theory that the wingdam is both a nuisance to navigation and to Swamp Land District Humber Eighteen. It alleges that the navigation on the west side of the river is wholly obstructed by the dam. If the dam is an obstruction to the navigation, it is so far a public nuisance, for which the plaintiff cannot have a private action. In such cases the remedy is by indictment against the parties by whom the dam was built, under the one hundred and twenty-fourth section of the statute in relation to crimes and punishments, and, upon a conviction, the dam may be abated by order of the Court in which the conviction is had. Or, perhaps, if this remedy is inadequate— that is to say, if there is imminent danger of irreparable mischief before the tardiness of the law can afford relief, equity may interpose and abate the nuisance upon the information of the Attorney General. (Attorney General v. Utica Insurance Company, 2 Johns. Ch. 381; Attorney General v. The New Jersey R. & T. Company, 2 Green Ch., N. J., 136.)
On the score of private nuisance, the facts stated are very meagre. It is alleged that the dam has injured the levee to
Judgment affirmed, and remittitur directed to issue forthwith.