Spring Valley Water Works v. Fifield

[15]

GAROUTTE, J.

This action is brought to abate an alleged public nuisance. The complaint in substance states that plaintiff is the owner of the Crystal Springs reservoir; that water is furnished therefrom for the use of the inhabitants of the city of San Francisco; that the waters of San Mateo Creek flow into this reservoir; that defendants maintained, and are now maintaining and conducting, a dairy business upon the - borders of the aforesaid creek; and that the offal drainage from the dairy yards flows into this creek. As a result of the trial, this dairy business of defendants, as so conducted upon the banks of the stream, was declared a public nuisance and ordered abated. The present appeal is taken from the judgment, and also from the order denying a motion for a new trial.

The complaint does not state a cause of action against defendants which justifies plaintiff in invoking the aid of a court of equity for relief. Section 3493 of the Civil Code provides: “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” There is no allegation in this complaint which shows that the alleged nuisance is specially injurious to plaintiff. A bald allegation of that fact is insufficient, for it is a mere conclusion of law. When a private individual seeks to abate a public nuisance, he must allege specific facts showing that the maintenance of the nuisance results in special injury to him. By construing the allegations of the complaint broadly, it may be admitted that the waters of the creek are polluted by this drainage at the point where the dairy is situated ; but there is no attempt made by the pleader to allege that these waters of the creek are polluted at the reservoir by reason of the aforesaid drainage. There is no allegation even showing the distance that the dairy is situated from the reservoir. Perchance it may be twenty miles away; perchance the waters in transit between the dairy and the reservoir may become absolutely pure by reason of natural filtrations. It follows from what has been said that, in the absence of an allegation to the effect that the waters of the reservoir are polluted by reason of the location of this dairy upon the banks of San Mateo Creek, there is nothing in the pleading showing special damage to plaintiff; and for this reason the complaint does not state a cause of action in its favor.