This is an action brought by plaintiff to enjoin the continuance of a nuisance alleged to have been created and maintained by defendants in growing and feeding hogs upon garbаge produced and gathered in the city of Los Angeles, from whence it was transported in cars to a railroad switch adjacent to the lots and pens of defendants, which covered an area of about two hundred acres, where they, at all times, kept approximately thirty thousand head of swine upon a daily ration of some *64 three or four hundred thousand pounds of city garbage hauled out and fed to them.
The appeal is by defendants from a judgment in favor of plaintiff granting a permanent injunction as prayed for, thе effect of which is to prevent defendants from shipping to said switch and distributing as feed to said hogs at the place in question garbage or similar material of a partially fermеnted, decayed or decaying character, and from maintaining at said place, or in the vicinity thereof, hog-pens where such material shall be kept and fed in a mannеr to pollute and befoul the atmosphere with noxious, unwholesome, and offensive odors, in consequence of which plaintiff and his family shall be deprived of the free use and enjoyment of his home, or which shall injuriously affect his property.
The court made findings from which it clearly appears that the effect of the operations, conductеd at a place less than a mile distant from the plaintiff’s home, was to create vile and noxious odors, offensive to the senses, and which reached and polluted the air in the vicinity of and in plaintiff’s residence, at times rendering it unfit for occupation, thus interfering with the enjoyment thereof and causing his family great inconvenience and physical distress.
Appellants insist that there was not sufficient evidence introduced to justify the action of the court as to some of the findings made. This objection is not directed so much to the substanсe of the findings as to the exaggerated and superlative form of language used by the court in describing the alleged variety of offensive odors and disagreeable conditions created by the acts of defendants which, in a number of ways, as found by the court, interfered’ with the plaintiff and his family’s comfort and health and their right to the enjoyment of his home, so allеged to be impaired and destroyed by the conditions to which he and his family were subjected. Not only was there direct testimony of witnesses in support of the findings, but inferences fairly deduсible from facts proved, and the manner in which the defendants conducted the business, tend strongly to establish the material facts found by the court, and upon which the judgment is based. The faсt that, as claimed by appellants, such witnesses “compared notes with plaintiff” and in testifying exhibited a partisan feeling, while a subject for consideration by the trial judge, is not one with which this court is concerned. An examina *65 tion of the record discloses no just ground for the attack made upon the findings.
In their answer defendants, as a separate defensе, alleged that a large number of persons, by reason of living and having homes in the vicinity of the place where the hogs were kept and fed, were equally with plaintiff affectеd by the operations which it was claimed constituted a nuisance, and if found to be a nuisance, then it was of a public nature as defined in section 3480 of the Civil Code, and since plaintiff suffered no special injury, he could not, by reason of section 3493 of the Civil Code, maintain an action to enjoin the same. Notwithstanding such defense was, on motion, stricken frоm the answer, it nevertheless appears that evidence was received upon the issue so assumed to have been raised, from which the court found: “That there are a considerable number of other persons living as near to the said hog ranch as does plaintiff, and some nearer, and in almost a direct line between plaintiff’s home and sаid hog ranch, and the odors which arise from the hog ranch and permeate the atmosphere as heretofore described, at times, affect the other persons residing in that community in the same manner and nearly to the same degree as plaintiff.”
The ruling of the court in striking from the answer the matter set up as a separate defense is assigned as error, upon which, and the findings quoted, appellants strenuously insist upon a reversal of the judgment. The contention is based upon the claim that not only, as shown by the allegations оf the answer made the subject of the motion to strike out, but as shown by the quoted finding of the court, the nuisance was of a public nature as defined by section 3480 of the Civil Code, as to whiсh, as provided by section 3493 of the Civil Code, a private person may not maintain an action unless the nuisance is
“specially injurious to himself.”
The facts of the case are practically identical with those involved in that of
Fisher
v.
Zumwalt,
Counsel for appellants, in support of his claim for reversal, has cited a number of authorities to the effect that where a considerable number of persons sustain a common injury оnly as a result of the nuisance the injury is public—illustrations
*67
of which are found in cases involving obstructions to highways and navigable streams, or offensive odors and unwholesome smells free frоm habitations and which affect those only traveling upon highways or in public places. Such cases are not in point and are readily distinguished from those where the disagreeable odors and smells pollute the air in and about the dwellings and places of business of persons to such an extent as to render them uninhabitable, and cause the occuрants thereof inconvenience and physical distress. (See Wood on Nuisances, 3d ed., sec. 671;
Adams
v.
City of Modesto,
While conceding some apparent conflict of decisions upon the question, we are of the opinion that the correct rule to be applied is stated in the Zumwalt case, supra, and upon the authority thereof the judgment is affirmed.
Sloss, J., and Shaw, J., concurred.