Averill v. Superior Court

PLUMMER, J. This cause is before us upon the petition of Roger Averill praying for an order prohibiting the Supe[622]rior Court of the County of Madera, and Stanley Murray, as the judge thereof, from proceeding with the trial of a certain case pending in said court entitled, “The People of the State of California v. Paris A. Davis and Roger Averill”, numbered 5256. Upon the filing of the petition a temporary restraining order was issued, and an order to show cause why the writ should not be granted.

The record shows that action numbered 5256, pending in said court, the trial of which is sought to be restrained, is one to abate a nuisance. The complaint in the action sets forth, in substance, that the said Roger Averill and Paris A. Davis have created and are maintaining a nuisance by filling in and obliterating a certain water course in such manner as to stop up said water course and cause flood waters that would naturally flow down said course to overflow its banks and flood public highways and the lands of numerous persons in the vicinity, and to injure said lands, and to obstruct and prevent travel over said public highways. The record shows that the action does not in anywise interfere with the proceedings before the board of supervisors, having for its purpose the creating of a reclamation district which would include the lands referred to, and also the public highways.

So far as the private lands mentioned in the complaint are concerned, that is an injury for which the owners of private lands would have a right of action against the defendants named in the complaint filed in the action just referred to, if the facts stated therein are found by the court to be true. As to the public highways, the district attorney, as the law officer of the court, has a right to maintain an action to abate any act which would cause flood waters to overflow public highways, on the ground that such an act is a public nuisance.

The fact that the complaint sets out and describes large tracts of land outside of the public highway, would be a matter for the trial court to act upon if suitable motions or demurrers thereto are filed, which we need not pass upon in this proceeding. All we need to do is to state that an act which causes flood water to overflow public highways so as to render the same impassable, or to cause injury thereto, constitutes a foundation sufficient to authorize the prosecution of an action in the name of the People to abate such nuisance.