Bar Due v. Cox

[714]

WASTE, P. J.

The plaintiff brought this action to have a certain fence, wholly erected and maintained upon the premises of the defendant, declared a private nuisance and removed forthwith, or reduced to a height not exceeding ten feet. He also prayed that the defendant be enjoined and restrained from preventing or interfering with plaintiff, should plaintiff undertake to abate and remove the fence, or go upon the property of the defendant for that purpose. The action was predicated upon the alleged ground that said fence was maliciously erected and maintained to annoy plaintiff, and any of his tenants who might occupy his flats, and upon the theory that the fence excluded the light and air of plaintiff’s tenants, to the annoyance and prejudice of plaintiff, and to the damage of plaintiff [s property. At the conclusion of plaintiff’s testimony, defendant moved for a nonsuit, which was denied. Defendant then introduced considerable testimony. On submission of the case judgment was rendered for the plaintiff and the defendant appeals.

The action is brought by the plaintiff under the provisions of the act of the legislature of May 28, 1913 (Stats. 1913, p. 342), which provides that any fence or other structure in the nature of a fence, unnecessarily exceeding ten feet in height, maliciously erected or maintained for the purpose of annoying the owner or occupants of adjoining property, shall be deemed a private nuisance, for the abatement of which such owner or occupant may enforce the remedies prescribed in the sections of the Civil Code.

[1]

Appellant in his opening brief specifies some eleven points as “questions involved in this action.” He presents, however, but two with that particularity which invites our consideration. The remaining objections to the judgment and action of the trial court are merely stated without citation of authority, or any argument beyond the bare statement of the point. As an example we cite appellant’s sixth point: “Errors of law in denying defendant’s motion for a nonsuit.” In his brief, under the title “Motion for Non-suit,” he merely quotes

verbatim

the reporter’s transcript of the motion made in the court below and the court’s ruling, without a single comment. At another point in the brief appellant inserts the heading “Insufficiency of the evidence to sustain the findings of fact, conclusions of law