Adams v. City of Modesto

THE COURT.

Appeal from a judgment in favor of the plaintiff for the abatement of a nuisance and for damages, and from an order denying a new trial. The plaintiffs are owners of a tract of land in the city of Modesto, on which, until a short time before the commencement of the suit, they resided with their family. The nuisance complained of is an open wooden trough, passing about three hundred yards from the plaintiff’s house, and constituting part of the sewerage system of the city, through which, for a distance of about four hundred and fifty yards, the sewerage matter of the city is passed. This the court found was a nuisance, interfering with the comfortable enjoyment and obstructing the free use of the plaintiff’s property, and that the plaintiffs were damaged thereby in the sum of six hundred and fifty dollars.

That the use of the open sewer by the city in the vicinity of the plaintiff’s land constituted a nuisance, and that the plaintiffs were entitled to have it abated, is too clear to require discussion. (Civ. Code, sec. 3479;

Peterson v. City of Santa

Rosa, 119 Cal. 387, 392;

Lind v. City of San Luis Obispo,

109 Cal. 340; Wood on Nuisances, sec. 781, note 1.)

With regard to damages it is objected that the demand was not presented to the board of trustees as required by the provisions of section 864 of the municipal corporation act (Stats. 1883, p. 266 et seq.), applying to cities of the sixth class, of which the city of Modesto is one; which provides that “all demands against such city or town shall be presented and audited by the board of trustees,” etc. But we do not think this provision was intended to apply to cases of this kind. The term “demands” is indeed sufficiently broad to include all’claims, whether arising from contract or tort; but when used in this connection the term does not usually include demands of the latter class. (15 Am. & Eng. Ency. of Law, 1194.) That the term is here used in the narrower sense as referring only to demands arising from contract and for determinate amounts is shown by the purpose for which they are required to be presented, which'is that they may be “audited”—a term that is

[503]