Opinion
Sac. No. 1107.
January 21, 1905.
APPEAL from a judgment of the Superior Court of Placer County. Albert G. Burnett, Judge presiding.
The facts are stated in the opinion of the court.
John M. Fulweiler, and Fred Searles, for Appellant.
Holl Dunn, for Respondent.
The defendant appeals from the judgment and from an order denying its motion for a new trial.
There is no misjoinder of causes of action. The plaintiff does indeed complain of what technically constitutes two distinct nuisances. One is caused by the negligence of the defendant in allowing water to escape from the banks of a ditch owned by the defendant and extending over the plaintiff's land, whereby the land is made swampy and marshy, constituting a nuisance. The other is alleged to consist of a reservoir into which water from the ditch flows, which reservoir was allowed to become filled with vegetable matter, which became rotten and decayed, and thereby caused a nuisance. This, however, does not constitute a misjoinder. Section 427 of the Code of Civil Procedure allows the joinder of two or more causes of action belonging to the same class. Plaintiff might therefore in the same complaint set up any number of separate causes of action for distinct nuisances without being guilty of a misjoinder. The fact that they are not separately stated in the complaint is not a cause of demurrer; nor do different elements of damage, arising from the same nuisance, constitute different causes of action. Under section 731 of the Code of Civil procedure, and at common law without the aid of that section, the party injured by a nuisance may in the same action obtain a judgment abating it and recover the damages caused thereby. (Yolo Co. v. Sacramento, 36 Cal. 196; 14 Ency. of Plead. Prac. 1116.)
The defendant contends that the findings are not supported by the evidence, and assigns many particulars in which it is claimed the evidence is insufficient. On an examination of the record, however, we think there is ample evidence to support all the findings. There is evidence to the contrary, it is true, but it is not the province of the court to determine questions of the preponderance of evidence.
Several rulings are complained of excluding testimony tending to show adverse use of a part of the land upon which it is alleged a nuisance existed, and which it is claimed would tend to prove title to such land in the defendant. There was no error in this ruling. There was no claim set up by the defendant to a fee-simple title to any land. The plaintiff was the grantee of the patentee of a certain subdivision of United States government land. He held the title subject to the rights of the defendant, acquired through its predecessor previous to the issuance of the patent, to maintain a reservoir thereon and carry water thereto through a ditch over the plaintiff's land. The reservoir was in part situated on plaintiff's land, and in part on other lands adjoining thereto. This alleged right was not a fee-simple title, nor anything more than a mere easement, dependent upon use. The court found, and the evidence supported the finding, that the area of land covered by the water in the reservoir, if it was filled to the brim, was some twenty-four acres, of which eight and eighty-five hundredths acres was on the land of the plaintiff. There was some contention on the part of the defendant that it had title to some land extending farther up the ditch beyond this high-water line, with a right at some time to use the same as a reservoir. There was, however, no issue of this nature tendered in the answer. The only claim set up in the answer is a mere easement consisting of the reservoir and ditch actually used, and the limit of the defendant's right under the answer is fixed by the area of land shown to be actually occupied by the reservoir and ditch, with sufficient ground for access thereto for the purposes of maintenanace and repair and use. This right to the reservoir and to the ditch connecting therewith is not disputed by the plaintiff. The precise extent and boundary of the reservoir are not important. The plaintiff's claim is based solely upon the negligent use of the easement, which it is alleged has caused the nuisances. There being no issue with regard to the title of the land outside of the reservoir, it was not error to exclude the testimony.
There was no error in refusing to strike out the answer to the question put to the plaintiff, "How much was your time worth?" Conceding that the question was improper in form, the plaintiff did not object to it, but allowed the answer in, and hereby waived his right to strike it out. It does not appear that there was no chance to object before the answer was given. There was no error in excluding testimony concerning the health of the neighborhood, or of particular persons residing in the neighborhood at a period some fifteen years and more before the trial. Even if a comparison could be made in this way to disprove the evidence of the effect of the alleged nuisance upon the health of the plaintiff and his family in 1898, when the nuisance is alleged to have been caused, the time referred to in the testimony offered to be given was too remote to furnish a safe standard of comparison. We find no error in the record.
The judgment and order are affirmed.
Van Dyke, J., and Angellotti, J., concurred.
Hearing in Bank denied.