89 Cal. 26 | Cal. | 1891
—The plaintiff brought this action to obtain an injunction restraining the defendant from maintaining an obstruction upon a public highway, and for damages.
The complaint alleges that there is, and for more than ten years has been, a public road, situate in Butte County, and about seventy rods in length, extending from the Oroville and Miner’s Ranch public road to the residence of one Nancy Cooper; that plaintiff is in possession and entitled to the possession of a slaughter-house situate on the south side of the said road, “ and that the only means of entrance and exit to and from said slaughter-house to the said public highway leading from Oroville to Miner’s Ranch, or any other public highway, is over and along
The prayer was for damages in the sum of three hundred dollars, and a perpetual injunction.
The defendant demurred to the complaint, generally and specially, and his demurrer being overruled, answered denying all its averments.
After trial, the court found all the material allegations of the complaint to be true, except as to the damages sustained; and as a conclusion of law, that the plaintiff was “ entitled to damages in the sum of one dollar, and to an injunction restraining the defendant from ob
Judgment was accordingly so entered, and from it the defendant appealed, and has brought the case here on the judgment roll.
It is urged for appellant that the demurrer should have been sustained, because it appeared that the obstruction complained of was a public nuisance, and it did not appear that it was specially injurious to the plaintiff, or that he had suffered or would suffer any injury therefrom, other than what was common in kind and character to himself and all others living on the road beyond the point of obstruction, though on account of his business his injury might be greater in degree than theirs.
The codes contain the following provisions: “Anything which is .... an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. 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, the nuisance may be enjoined or abated, as well as damages recovered.” (Code Civ. Proc., sec. 731.)
“A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, sec. 3493.)
In Blanc v. Klumpke, 29 Cal. 156, it was held that if a nuisance in a highway only affect the plaintiff in common with the public at large in the use of the highway, he cannot have his private action; but if the free use of his private property is interfered with by such nuisance, he may have his private action to abate the same. And this seems to be the general rule, and well supported by the authorities. (See Wood on Nuisances, secs. 811, 830, and cases cited.)
Here it was alleged in the complaint and found by
This, we think, clearly shows that the nuisance was specially injurious to the plaintiff, and that under the well-settled rules of law he had a right in his own name to commence and maintain an action to enjoin or abate it.
It is further urged that the injunction ought not to have been granted, because it appeared that the obstruction sought to be enjoined actually existed at and before the time of filing the complaint (citing Gardner v. Stroever, 81 Cal. 148.)
This position cannot, in our opinion, be sustained. An obstruction to the free use of property, so as to interfere with its comfortable enjoyment, is a nuisance, and the statute says it may be enjoined or abated. Such an obstruction must necessarily have an actual existence-before it can be a nuisance. The judgment here might have been in direct terms that the obstruction be removed and the nuisance abated; but the mandatory injunction granted was evidently intended to have, and did have, the same effect. It was therefore an authorized and appropriate remedy.
In the case cited, the appeal was from an order refusing to dissolve a preliminary injunction granted on the complaint alone. The order was reversed on the ground that the obstruction complained of already existed. The court said that “mandatory preliminary injunctions are seldom granted, and only in a peculiar class of cases, oí which this case is not one.”
It results, in our opinion, that the judgment should be affirmed.
Vanclief, 0., and Fitzgerald, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.
Rehearing denied.