Siskiyou Lumber & Mercantile Co. v. Rostel

VAN FLEET, J. The action is to abate a nuisance and for damages. The complaint alleges as the first cause of action, in-substance, that plaintiff is the owner of certain lots in blocks-27 and 30, in the town of Sisson, in Siskiyou county, upon which-there are valuable buildings, consisting of dwelling-houses, barns, warehouses and stores, and that defendant Eostel is the-owner of lot 17, in block 26, in said town, which last mentioned property is situated on the northwest corner of Walnut and Castle streets—public highways; that defendants are erecting a large building on said lot 17, which is being so constructed that the second story thereof, at a height of about twelve feet from the ground, is being extended and projected over and into said Castle street, to a width of ten feet and for a length of sixty feet, so that to that extent it overhangs and protrudes into said, public highway; and it is alleged in the sixth paragraph of said, first count that said building “will constitute a nuisance to this plaintiff by greatly endangering his property and buildings hereinbefore described, and making them more liable to be destroyed by fire, and also by materially increasing the rate of insurance upon the same, and by materially damaging their market value,” and, if allowed to be constructed as defendants now intend, will cause damage to plaintiff which cannot be estimated, etc.

In the second count the same facts, except those alleged in said sixth paragraph, are reasserted, and alleged to constitute a public nuisance.

The prayer is for an injunction, both prohibitory and mandatory, forbidding further construction, and requiring the removal of said building as to that portion which obstructs the street, and for damages and costs.

Defendants demurred to the complaint generally for want" of facts, and specially that it does not show wherein plaintiff is injured in any manner different or greater than the general public. The demurrer was overruled, and the propriety of this ruling constitutes the only question which we deem it essential to notice.

It may be inferred, although nowhere expressly so alleged, that the fact relied upon as constituting the nuisance and cause of injury to plaintiff, in the manner of constructing the obnoxious building, is its projection into and over the public highway,. [513]as described, since nothing else is alleged which may be regarded as in any way infringing upon plaintiff’s rights. Anything which is an obstruction to a public street or highway constitutes a public nuisance (Pen. Code, sec. 370; Taylor v. Reynolds, 92 Cal. 573; Marini v. Graham, 67 Cal. 130; Vanderhurst v. Tholcke, 113 Cal. 147, 150); and a private individual cannot maintain an action to abate such a nuisance unless it be made to appear by proper averment that the plaintiff will suffer therefrom some injury, in its nature special and peculiar to him, and different in kind from that to which the public is thereby subjected. (Civ. Code, sec. 3493; Lewiston Turnpike Co. v. Shasta etc. Wagon Road Co., 41 Cal. 562; Payne v. McKinley, 54 Cal. 582; McCloskey v. Kreling, 76 Cal. 511; Gardner v. Stroever, 89 Cal. 26.)