Williamson v. Tobey

Hayne, C. The complaint in this action was for an injunction to restrain the defendant from operating his foundry in such a manner as to constitute a nuisance to the adjoining dwelling, and for damages. The case was submitted to a jury, and a general verdict in favor of plaintiffs for five hundred dollars was rendered. The judgment did not award any injunction, but was for the damages only. The appeal is by the defendant.

1. It is contended that the court erred in refusing to instruct the jury as requested by the defendant.

As we construe the transcript, the defendant requested one instruction involving several distinct propositions. The transcript is not substantially clear upon this point. But it is incumbent upon the appellant to show error, and we do not think that upon this record the court [498]would be justified in saying that each proposition in the paragraph referred to was requested as a separate instruction. This being the case, if any one of the propositions contained in the request ought not to have been given, the court was justified in refusing the whole instruction. (Smith v. Richmond, 19 Cal. 485; Preston v. Keys, 23 Cal. 194.) And we think that at least one of such propositions was in this category.

The plaintiffs alleged that they were at all times the owners of the premises described in the complaint. And the evidence was, that they bad been in possession for about thirty years. The house in which they lived was of that age, and its foundations had not been changed since it was built. From this the presumption certainly arose that the plaintiffs were the owners of the said premises.

This presumption was not rebutted by the general statement of the defendant that the “ house described in the complaint is nine inches over on my own property.” And there is no other evidence on the subject. In this condition of the evidence it certainly would have been improper for the court to have instructed the jury that “if the plaintiffs’ building stands nine inches, or any other distance, over upon the property leased by Mr. Tobey, and if the shaking of the house, claimed by the plaintiffs to exist, is produced because of the fact that the plaintiffs’ house stands lipón Mr. Tobey’s ground, aud if the Williamsons’ house was upon their own ground said shaking would not occur, then the plaintiffs cannot recover damages caused by the said shaking.” And, as above stated, it was not incumbent upon the court to separate the improper part of the instruction from the remainder, even if it be assumed that the remaining propositions were correct and applicable.