Harniss v. Bulpitt
Before: Allen
Synopsis
Action to Abate Nuisance—Capacity to Sue—Demurrer.—In an action to abate a nuisance caused by obstruction of a public alley, upon which plaintiff’s property abuts, where there is nothing on the face of the complaint to indicate a want of capacity of the plaintiffs to sue, a demurrer upon that ground was properly overruled.
Id.—Public Nuisance—Obstruction op Public Alley—Cause op Action—Special Injury to Plaintiffs.—Though the obstruction of a public alley is a public nuisance, yet where the complaint of the plaintiffs to abate it alleges that ingress and egress to and from the abutting property owned by plaintiff to and from the alley is prevented by the obstruction thereof by fences constructed thereon by the defendant, it states a cause of action for special injury to a private right incidental to the plaintiffs’ property, different in kind from that sustained by the public at large.
Id.—Motion for Judgment upon Pleadings.—A motion of the defendant for judgment upon the pleadings was properly denied where the complaint states a cause of action.
Id.—Averment of Public Alley.—The averment that the strip of ground obstructed was a public alley, and had been so used for twenty-five years as a means of ingress and egress to and from plaintiff’s property, is a sufficient statement of fact, without an averment of the manner by which it became a public alley.
ALLEN, J.
This is an action for damages and to procure an order for the abatement of a nuisance alleged to exist by reason of obstruction by fences at both ends of a public alley in the town of Bishop, Inyo County, this state, upon which alley plaintiffs’ property abuts; by which plaintiffs are deprived of the free use of their property and from going from their property out upon said alley, or through the same to Church Street, a public street in said town.
[141]
The damages were claimed on account of the depreciation in value, and by reason of being deprived of the use of said alley.
To the complaint a demurrer was interposed upon the grounds,—1. That plaintiffs had no legal capacity to sue; and 2. That the complaint did not state facts sufficient to constitute a cause of action. The demurrer being overruled, defendant answered, denying all the material averments of the complaint, other than the construction of the fences at the places designated in the complaint. The defendant further alleges that the strip of ground denominated a public alley in plaintiffs’ complaint was not an alley, but the private property of defendant.
Findings and judgment went for plaintiffs, and a decree was entered enjoining the defendant from maintaining such fences or obstructing said alley. From the judgment defendant appeals.
There being nothing apparent upon the face of the complaint as indicating plaintiff’s want of capacity to sue, the demurrer upon that ground was properly overruled.
The principal contention of defendant presented in his points and authorities is, that the complaint does not state a cause of action, because no injury is alleged different in Mnd from that sustained by the public at large. The nuisance complained of, being the obstruction of a public alley, is a public one. That plaintiff may have redress in a private action, it must appear by proper averment that the plaintiff will suffer some injury therefrom in its nature special and peculiar to him, and different in kind from that to which the public is subjected, (Civ. Code, sec. 3493;
Siskiyou Lumber etc. Co.
v.
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)