Hitch v. Scholle

LENNON, J.

In this action, the plaintiff sought and secured a judgment decreeing the existence of a public highway over the lands of the defendant, and as an incident of the' judgment the defendant was perpetually enjoined from obstructing said highway. The action is, as the defendant contends, one to abate a public nuisance by a private person not alleged to have been specially injured thereby.

[1]

The complaint, therefore, does not state facts sufficient to constitute a cause of action and the defendant’s demurrer upon that ground should have been sustained.

[2]

It is well settled that if an obstruction which is wrongfully erected and maintained in a public highway constitutes a nuisance which injuriously affects a private person equally in common with the public at large, a private action may not be maintained to abate the nuisance.

(Blanc

v.

Klumpke,

29 Cal. 156.) It is only where the free use of the property of a private person is interfered with by such

[469]

an obstruction that he may have his private action to abate the nuisance resulting therefrom. (Civ. Code, secs. 3479, 3493;

Yolo County

v.

City of Sacramento,

36 Cal. 193, 195;

Grigsby

v.

Clear Lake Water Co.,

40 Cal. 396, 406;

Shirley

v.

Bishop,

67 Cal. 543, 546, [8 Pac. 82];