88 P. 899 | Cal. | 1907
This action was brought by the district attorney of Marin County in the name of the people of the state, to abate, as public nuisances, obstructions maintained by defendants in certain alleged public highways of said county. As to certain of said alleged public highways judgment was given in favor of plaintiff, declaring the same to be public highways, and the obstructions thereon maintained by defendants to be public nuisances, directing the removal of said obstructions by defendants, and enjoining defendants from maintaining on said highways any obstruction which would interfere with the right of the public to use the same as public highways. Defendants have appealed from this judgment on the judgment-roll alone.
By express provision of statute, anything which unlawfully obstructs the free passage or use, in the customary manner, of a public highway is a public nuisance. (Civ. Code, secs.
Under the express provisions of the act of March 15, 1899, authorizing the district attorney of any county in which a public nuisance may exist to bring a civil action in the name of the people of the state to abate the same (Stats. 1899, p. 103), the district attorney was empowered to commence and maintain this action without any previous order of the board of supervisors directing him to so do. The act requires him to bring such an action when directed by the supervisors, and authorizes him to do so on his own motion and without any order to that effect whenever he deems such action proper. The fact that other remedies may exist for the abatement of such public nuisances as obstructions of public highways cannot affect the power in this regard conferred upon the district attorney by the act of March 15, 1899.
The main argument for reversal of the judgment is based upon the contention that the probative facts alleged in the complaint and found by the trial court do not show that the alleged public highways are in fact public highways, and in support of this contention learned counsel urge that such probative facts tending to show a dedication of such highways by defendant to the public and acceptance of the same, are not sufficient to establish a dedication and acceptance.
If we assume this to be true, we do not see how it can avail defendants on this appeal. Independently of the probative facts alleged, it was in terms unconditionally alleged in the complaint "that each and all of such streets are public highways." The trial court, in addition to finding certain probative facts, found as a fact in express terms and unconditionally "that each and all of said streets are public highways." This was undoubtedly a finding of the ultimate fact (Bequette v.Patterson,
It is well settled in this state that a clear, specific finding of the ultimate fact must prevail over findings of probative facts, where there is no necessary conflict between the probative facts found and the finding of the ultimate fact. Thus, in Smith
v. Acker,
It is therefore clear that the finding under discussion must be treated as a finding of the ultimate fact of public highway, and must be held to be sufficient on that point regardless of the question as to the sufficiency of the probative facts found. It follows that the findings sufficiently support the judgment. In the absence of a bill of exceptions or statement showing the evidence, the question as to the sufficiency of the evidence to sustain the finding cannot of course be considered.
Complaint is made that the trial court failed to find upon certain affirmative allegations made in the answer, such as that the alleged streets were never accepted or used by the public, that the board of supervisors had refused to accept the same, and that the board of supervisors had abandoned the same as public highways. If it be conceded that any of these matters are not sufficiently embraced in the finding of public highway already discussed, it does not appear that any evidence was introduced in support of such allegations. It is well settled that a failure to find upon some issue made by the answer, a finding upon which would merely have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue. (SeeRoberts v. Hall,
The judgment is affirmed.
Shaw, J., and Sloss, J., concurred.
*201Hearing in Bank denied.