Gardner v. Stroever

California Supreme Court May 4, 1891 No. No. 13776Published

Before: Belcher

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Holding. A private individual may maintain an action to abate a public nuisance if the obstruction causes special injury to their private property or business, and a mandatory injunction is an appropriate remedy to abate such a nuisance after trial.

Issues

Whether a private person may maintain an action for a public nuisance that obstructs a highway.
Whether a mandatory injunction is an appropriate remedy for an existing obstruction that constitutes a nuisance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.”

“This, we think, clearly shows that the nuisance was specially injurious to the plaintiff, and that under the well-settled rules of law he had a right in his own name to commence and maintain an action to enjoin or abate it.”

“The judgment here might have been in direct terms that the obstruction be removed and the nuisance abated; but the mandatory injunction granted was evidently intended to have, and did have, the same effect.”

Synopsis

Nuisance — Obstruction of Highway—Private Right of Action.— If the obstruction of a highway affects a person only in common with the public at large, in respect to the use of the highway, he cannot have a private action therefor; but if the free use of his private property is interfered with by the obstruction, he may bring a private action to abate the nuisance.

Id. — Preventing Access to Slaughter-house. — The owner of a slaughterhouse situated on a public highway, who is accustomed to slaughter a number of animals each day, and has no other place for slaughtering them, is specially injured by an obstruction erected in the highway for the purpose and which has the effect of preventing him from reaching his slaughter-house, and he has a right in his own name to commence and maintain an action to abate it.

Id.—Obstruction Completed before Suit — Mandatory Injunction — Abatement of Nuisance. — An obstruction to the free use of property, so as to interfere with its comfortable enjoyment, is a nuisance, and notwithstanding it existed before the commencement of the action, it may be abated by a mandatory injunction, or by a judgment that the obstruction be removed and the nuisance abated.

Id. — Preliminary Injunction. — Mandatory preliminary injunctions are seldom granted, and only in a peculiar class of cases; and, obviously, alleged nuisances ought not, in ordinary cases, to be abated by preliminary injunction.

Belcher, C. —The plaintiff brought this action to obtain an injunction restraining the defendant from maintaining an obstruction upon a public highway, and for damages.

The complaint alleges that there is, and for more than ten years has been, a public road, situate in Butte County, and about seventy rods in length, extending from the Oroville and Miner’s Ranch public road to the residence of one Nancy Cooper; that plaintiff is in possession and entitled to the possession of a slaughter-house situate on the south side of the said road, “ and that the only means of entrance and exit to and from said slaughter-house to the said public highway leading from Oroville to Miner’s Ranch, or any other public highway, is over and along [28]the said highway leading to the residence of Nancy Cooper aforesaid; that the defendant, on the twentieth day of February, 1889, wrongfully, unlawfully, and fraudulently, and for the purpose of vexing, annoying, and preventing this plaintiff from reaching his said slaughterhouse, entered upon said public highway leading from the Oroville and Miner’s Ranch road to the residence of Nancy Cooper aforesaid, at a point between plaintiff’s slaughter-house and said Oroville and Miner’s Ranch road, and caused to be erected across said public highway an obstruction, to wit, a building which completely obstructed said road, for all uses of a road, and wholly prevented this plaintiff from reaching his said slaughterhouse; that plaintiff has no other way, convenient or otherwise, by which he can reach his said slaughterhouse; that plaintiff is engaged in the butchering business in the town of Oroville, and is compelled, in order to supply the wants of his customers, to slaughter a number of animals each day; that he has no other place for slaughtering said animals than the place heretofore described; that if the defendant is permitted to maintain his said obstruction across the public road as aforesaid, plaintiff’s business will be entirely destroyed and broken up, to his damage in the sum of five thousand dollars; that by reason of the acts heretofore complained of, plaintiff has been damaged in the sum of three hundred dollars.”

The prayer was for damages in the sum of three hundred dollars, and a perpetual injunction.

The defendant demurred to the complaint, generally and specially, and his demurrer being overruled, answered denying all its averments.

After trial, the court found all the material allegations of the complaint to be true, except as to the damages sustained; and as a conclusion of law, that the plaintiff was “ entitled to damages in the sum of one dollar, and to an injunction restraining the defendant from ob

Gardner v. Stroever

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