Tuebner v. Cal. St. R.R.

Myrick, J. -The action was brought to abate an alleged nuisance, and to recover damages. The jury gave a verdict for the plaintiffs for $1,000 damages; and from the judgment rendered therefor, and an order denying a new trial, the defendant appealed.

[172]The case is, in substance, as follows: The plaintiffs, owners of a lot of land near the corner of Larkin and California streets, in the city and county of San Francisco, had thereon two dwelling-houses (one occupied by the family of one of the plaintiffs, the other by the family of the other plaintiff), and on the rear of the lot a two-story building, in the lower story of which the plaintiffs carried on the manufacture of show-cases, the upper story being occupied by a tenant. The defendant constructed a street railroad along California street, and for the purpose of using steam as a motive power in propelling the cars, by means of a cable, constructed a building on the corner of the streets above named, which building adjoined the property of plaintiffs. This building was used in connection with the street railroad as a car-house, and had an engine and furnace, with a smoke-stack extending to a point twenty feet higher than plaintiff’s houses. Cars were elevated from one story to another by the aid of machinery. We quote substantially from the testimony of plaintiffs, for the purpose of showing the case as presented by them to the court and jury:

“ From the time the railroad commenced running, about February 1st, 1878, to August 2d, 1878, when this suit was commenced, we were annoyed by soot, and by the machinery and the elevator running up and letting down cars. It shook the whole house ; commenced about seven o’clock in the evening, and continued until ten, eleven or twelve o’clock at night—sometimes until one and two; the noise was continuous during that time; there was a jarring and shaking of the building; the plastering was cracked some ; the elevator sometimes shook the whole house ; the soot came from the smoke-stack to our houses, and came in at the windows, and in the back yard ; in the morning I could clean up a whole pailful; if I lay my hand on the banisters, they are all black ; we were troubled every day with soot; if I open the windows, the dust comes into the whole house ; in the evenings, sometimes when I am reading the paper, they would put the cars upon a small track; I would jump up, thinking it was an earthquake ; the noise mostly is when they are elevating the cars, when the cars went in ; there was shaking and soot that troubled us all the time; sometimes it shook the house so you would have thought it was an earthquake ; as for the soot, it