Fitzgerald v. Urton

Appeal from the Ninth Judicial District.

This was a proceeding instituted by the plaintiff Fitzgerald, in the Ninth Judicial District Court, against the defendants, Urton et al. to abate a nuisance, laying his damages at $250, * and praying for a perpetual [236] injunction against them in the commission of the same. A preliminary injunction was granted by the Court, June 1st, 1854, under the following circumstances:

The plaintiff, in his complaint, alleged that he was the owner of a lot in the town of Bidwell, Butte County, measuring 75 by 80 feet, inclosed by a fence; that he had been in the quiet and peaceable possession of the. same for more than two years; that he was engaged in the hotel or tavern business, and that the lot did not contain more ground than was necessary for the prosecution of his business; that being such owner, and whilst in the peaceable possession of the lot, the defendants, on or about May 1st, 1854, entered upon the same and commenced digging a ditch twenty feet wide, and fifteen to twenty feet deep, and had thereby undermined one of the plaintiff’s outhouses, and torn down and destroyed a portion of his inclosure, and were proceeding near, and directly for his dwelling house or hotel, “thereby injuring and destroying plaintiff’s property and premises as aforesaid, by removing the foundation of the same, and endangering their stability, and obstructing the free use of the same and their enjoyment.”

The complaint also alleged that the continuance of the excavation by the defendants, would render the plaintiff’s hotel valueless, and unsafe as a habitation, and compel him to evacuate his premises with his family, leaving him and them without a house or shelter; that the defendants persisted in trespassing, although warned off and forbidden by the plaintiff, and declared that it was their intention to dig up and remove the ground, particularly that part on which the hotel was situated. It further alleged that the injuries which the defendants threatened and declared that they would commit, would be irreparable, as they could not respond to the plaintiff in damages, laying those already committed at $250, and praying judgment for that amount, and also for an abatement of the nuisance, for a perpetual injunction, etc.

In the complaint, the trespasses committed by the defendants were designated as a private nuisance. To this complaint the defendants demurred, as follows:

[237] * “That the plaintiff ought not further to maintain his said action, in this: The complaint of the plaintiff herein filed, shows unto this Court an action of private nuisance, with a prayer for an injunction, forbidding the continuing the said nuisance; and a further prayer for its abatement, of which action of private nuisance this Court has no jurisdiction. Wherefore defendants pray that the said injunction may be dissolved, and defendants dismissed, with proper costs. ”