284 P. 731 | Cal. Ct. App. | 1930
The plaintiff commenced an action against the defendants to abate the courthouse of Alameda County, alleging it to be a nuisance. The defendants appeared and interposed a demurrer to the plaintiff's second amended complaint. The demurrer was sustained without *356 leave to amend, and from the judgment entered thereon the plaintiff has appealed.
Among other things, it is alleged that Alameda County is a subdivision of the state; that the personal defendants are the supervisors of Alameda County; that plaintiff is an attorney at law, practicing before the courts of Alameda County, and in particular before the courts located in the courthouse; that the courthouse was built in 1868; that it consists of two stories and a basement, and that there is a cupola thereon weighing six tons; that the joists of the floor are rotten; that a portion of the roof is rotten; that the foundations of the cupola are crumbling and giving way; that the stairway is weakened; that pieces of the plaster in the ceiling are constantly falling; that the floor trembles when walked across; that the roof leaks; that the sanitary system is inadequate; that the courtrooms are dark; that the acoustic properties in the courtrooms are poor; that there is no ventilating system in the building, and that the heating system is inadequate.
The defendants assert that this plaintiff should show (1) that his special injury differs, not merely in degree but also in kind, from that sustained by other members of the public, and (2) that it affects either plaintiff's property or his personal enjoyment of a right. Answering that assertion the plaintiff asserts that the very essence of his case is that his right to practice his profession as an attorney at law is property of the highest character (Cavassa v. Off,
"It would, indeed, be strange, that any legal proceeding could be instituted in a county through which a great public work passes, by which the whole purposes of the improvement might be destroyed, upon the singular allegation, that what has been constructed under the express authority of the legislature, is a great public nuisance."
The case is particularly persuasive as it is one of the authorities on which our code section was based. (See Commissioner's note in Ann. Code 1872.) Butler et al. v.State,
Looking at the question from a different angle, we come to the same conclusion. [5] It is settled law that in the absence of express words to the contrary the state is not included within the general terms of a statute. (Whittaker v. County ofTuolumne,
[8] If we view the action as one to recover damages, the complaint is insufficient. The plaintiff's rights are defined, as against these defendants, by chapter 328, page 675, Statutes of 1923. The plaintiff has made no attempt to plead negligence or to plead the amount of his damages, if any.
We find no error in the record. The judgment is affirmed.
Koford, P.J., and Nourse, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 21, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 20, 1930.
All the Justices present concurred.