Humphrey v. Dunnells

JAMES, J.

Plaintiff brought this action to compel defendant to abate an alleged nuisance and for damages. The trial court granted a motion for judgment of nonsuit and plaintiff has appealed.

The facts constituting the cause of action set out in plain- ' tiff’s complaint were fully sustained by the evidence. It appears that plaintiff and defendant are the owners of property abutting upon that portion of Third Street, the same being a public street in the city of San Diego, lying

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between Redwood and Quince streets. Third Street extends north and south and it is intersected at right angles from the west by Redwood and Quince streets, Redwood Street being at the north. The distance between Redwood and Quince streets is three hundred feet. Defendant’s property is located on the west side of Third Street and extends from the corner of Redwood Street south one hundred and fifty feet. Plaintiff is the owner of the fifty feet immediately adjoining defendant’s property at the south, upon which there is a modem residence building. Plaintiff also is the owner of thp ground immediately opposite that of defendant and extending from the corner of Third and Redwood streets one hundred feet south on Third Street. Third Street between Quince and Redwood streets is admitted to be a-public street, but the same has never been graded by the municipality and at its junction with Redwood Street a fence has been placed by the city to prevent vehicles from entering Third Street toward the south. Third Street is eighty feet in width, but the ground from Quince Street northerly toward Redwood, for a large portion of its width, falls away in a sharp declivity which forms a deep cañón at the east. From a point opposite the line dividing the property of defendant from plaintiff the cañón or declivity bears toward the east and the ground constituting Third Street from that point north to Redwood Street is comparatively level. Defendant’s property fronts also upon Redwood Street, which is a graded, traveled street, and which furnishes him means of access and egress at the north line of his property. Commencing about twelve years ago, from time to time, defendant planted trees in Third Street across almost the entire width thereof and for the full length of the one hundred and fifty feet along and opposite his property. These trees were so located and grew to such a size as to make that portion of Third Street impassable to vehicles. About twenty-seven or thirty feet of the width of Third Street from Quince northerly to plaintiff’s fifty-foot lot, is passable and had been used as a driveway, but the location of the trees planted by defendant has made it extremely difficult, if not impossible, for vehicles to turn about at the point where such drive ends. Further, the trees prevent free passage for vehicles to plaintiff’s one hundred-foot lot on the opposite