San Jose Ranch Co. v. Brooks

Foote, C. This action was brought to abate an alleged nuisance, to obtain a perpetual injunction for certain purposes, and for one thousand dollars’ damages. The amended complaint was demurred to as not stating facts sufficient to constitute a cause of action, and an answer filed at the same time.

A motion was made to dissolve a preliminary injunction which had been granted, and affidavits were filed upon both sides. That motion was submitted to the court upon the amended complaint, answer and demurrer; afterward that tribunal made an order sustaining the demurrer and dissolving the injunction, and the plaintiff declining to amend, judgment was entered that the action be dismissed and that the defendants recover their costs. From the judgment and order the plaintiff has appealed.

The facts stated in the complaint upon which the plaintiff based its contention are, that the defendants have obstructed a public highway in" such a manner as to prevent the plaintiff having ingress or egress to and [465]from a tract of land which it owns situated at a point in a cañón above the place where the obstruction is placed, and which prevents it from making any use of its land which it desires.

There is no special injury averred as accruing to the' property of the plaintiff, beyond the statement of such facts as go to show that it perhaps will suffer more inconvenience from the alleged nuisance than the general public, and the injury thus alleged, although it results-from the necessity the plaintiff is under, perhaps, to travel the road oftener than that of the general public, is of the same nature as would fall to the lot of any other person who might be obliged to make use of the road.

It is held that a private individual may bring an action of the kind here instituted and maintain it, when he is able to show some special damage to himself in addition to that received by the public. (Aram v. Schallenberger, 41 Cal. 450.)

Judge Shaw, in Quincy Canal v. Newcomb, 7 Met. 276, says: “ Where one suffers in common with all the public, although from his proximity to the obstructed way,, or otherwise from his more frequent occasion to use it„ he may suffer in a greater degree than others, still he-cannot have an action, because it would cause such a. multiplicity of suits as to be itself an intolerable evil.” A similar principle was announced in Seeley v. Bishop, 19 Conn. 128.