Opinion
Department Two
Appeal from a judgment of the Superior Court of San Luis Obispo County. V. A. Gregg, Judge.
COUNSEL:
Granted that the nuisance is a public nuisance, it was specially injurious to the plaintiff, and the action is maintainable. (Civ. Code, sec. 3493; Woodruff v. North Bloomfield etc. Min. Co ., 9 Saw. 441; Wesson v. Washburn Iron Co ., 13 Allen, 95; 90 Am. Dec. 181; Tuebner v. California Street R. R. Co ., 66 Cal. 171. See note to Stetson v. Faxon, 31 Am. Dec. 132.)
Wilcoxon & Bouldin, and J. M. Wilcoxon, for Appellant.
William Shipsey, for Respondent.
There can be no action for a public nuisance where the injury is merely greater in degree, but not different in kind from that suffered by the general public. (4 Blackstone's Commentaries, 167; Bigley v. Nunan , 53 Cal. 403; Hogan v. Central P. R. R. Co ., 71 Cal. 84; San Jose Ranch Co. v. Brooks , 74 Cal. 463.)
JUDGES: Vanclief, C. Searles, C., and Haynes, C., concurred. McFarland, J. Henshaw, J., concurring. Temple, J., concurred.
OPINION
VANCLIEF, Judge
Action to abate a nuisance, in which, at the close of the evidence for plaintiff, a judgment of nonsuit and for costs was rendered against him, from which he appeals on a bill of exception containing a statement of the evidence.
The defendant is a municipal corporation of the sixth class, having a population of about three thousand. Plaintiff is the owner of a lot of land within the corporate limits of the city, and a dwelling-house thereon, in which he and his family reside. His lot has a frontage of one hundred and twelve feet on Higuera street, and extends back westerly from said street to the center of San Luis Obispo creek. In August, 1892, while plaintiff owned and was residing upon said lot, the defendant constructed a system of sewerage in and for said city, by and through which all excremental and malodorous matter is conveyed to and discharged into a vault constructed for the purpose of receiving the same. This vault is vertically cylindrical, about ten feet in diameter and eleven feet in depth, and is situate in the bank at the margin of said creek about three hundred feet above plaintiff's dwelling-house. It has two openings on the side next to the creek, one at the bottom and the other near the top, the lower one being closed during the dry season of about six to seven months, during which the vault is filled with solid matter, which, during the rainy season, is flushed out through the lower opening into the creek. The vault is constructed of cemented masonry, and is ventilated through a chimney or pipe about forty feet high. The evidence shows that the stench from the vault and from the creek below for a distance of half a mile or more is so disagreeable and offensive to the residents along the creek for a distance one thousand feet or more below the vault as to make the occupancy of their dwelling-houses extremely uncomfortable, and nearly intolerable to those who reside within five hundred feet below that vault, except during times of very high water in the creek; that plaintiff and one or two of his near neighbors are most affected by the odors, but that from one hundred and fifty to six hundred of the resident population of three thousand are affected by them in the same way, but less in degrees. Also, that considerable quantities of the solid malodorous matter from the vault are annually deposited upon plaintiff's lot along the borders of the creek, which remains there during the greater part of the year and intensifies the stench arising from the vault. Such deposits, however, are limited to lots adjoining the creek and to less than twenty residences.
In granting the nonsuit the court said: "In conclusion, the facts as proven on the part of [42 P. 438] plaintiff establish the existence of a nuisance disgusting and offensive to all persons who live anywhere in the vicinity of the trap or cesspool as maintained by the defendant, and also to all persons who pass that vicinity. Divers persons who live in the vicinity have testified to the noxious odors and discharge from the cesspool, and of the discharge from the cesspool that is deposited for a long distance in the creek and left along the creek, polluting the waters and creating a stench, that it is offensive to a great number of persons. There has been but one kind of nuisance shown, and it is common to the public and vicinity of the city in which the plaintiff lives. It may be that it is more offensive to plaintiff than to others, but the nuisance is of the same kind to the plaintiff that his neighbor suffers. If plaintiff is left to maintain this action, then the city may be subject to a like action by many other persons alike situated. The testimony shows that from one hundred and fifty to six hundred persons are alike affected, and about thirty-five families in a greater or less degree than the plaintiff. The nuisance complained of is a common public nuisance as defined in section 3480 of the Civil Code. I think the motion for a nonsuit should be granted."
I think the court erred in granting the nonsuit. Section 3493 of the Civil Code provides: "A private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise."
In the case of Sullivan v. Royer , 72 Cal. 248, 1 Am. St. Rep. 51, a smokestack in the city of San Francisco, from which the smoke invaded private residences in the neighborhood of its location, to the annoyance and discomfort of the dwellers therein, was adjudged to be a private nuisance for which damages were recovered and which was ordered to be abated. To the same effect is Tuebner v. California Street R. R. Co ., 66 Cal. 171. In Gardner v. Stroever , 89 Cal. 26, it was adjudged that the owner of a slaughterhouse situated on the public highway, whose business was interrupted and injured by an obstruction of a road, was entitled to maintain an action for damages and an injunction against the maintenance of the nuisance. To the same effect is Hargro v. Hodgdon , 89 Cal. 623, where it is said: "If a substantial right has been invaded, especially if the wrong be in the nature of a continuing trespass of such a character that its continuance will create a right against the plaintiff's estate, or operate to deprive plaintiff of a substantial right incident to her property, the nuisance will be abated, although the damage is merely nominal." The substantial right mentioned in the above extract means a substantial private right, as distinguished from a public right enjoyed by plaintiff in common with the public at large. The injury which may entitle a private person to maintain an action to abate a public nuisance must be an injury to plaintiff's private property, or to a private right incidental to such private property; and where the injury is of this nature the injured person may maintain the action, although the private rights of an indefinite number of other persons may be infringed and injured in the same way by the same nuisance. The distinction here attempted to be made is more clearly expressed by Bigelow, C. J., in the case of Wesson v. Washburn Iron Co ., 13 Allen, 95, 90 Am. Dec. 181, as follows:
" The real distinction would seem to be this, that when the wrongful act is of itself a disturbance or obstruction only to the exercise of a common and public right, the sole remedy is by public prosecution, unless special damage is caused to individuals. In such case the act of itself does no wrong to individuals distinct from that done to the whole community. But when the alleged nuisance would constitute a private wrong by injuring property or health, or creating personal inconvenience and annoyance, for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance. This, we think, is substantially the conclusion to be derived from a careful examination of the adjudged cases. The apparent conflict between them can be reconciled on the ground that an injury to private property, or to the health and comfort of an individual, is in its nature special and peculiar and does not cause a damage which can properly be said to be common or public, however numerous may be the cases of similar damage arising from the same cause. Certainly multiplicity of actions affords no good reason for denying a person all remedy for actual loss and injury which he may sustain in his person or property by the unlawful acts of another, although it may be a valid ground for refusing redress to individuals for a mere invasion of a common and public right."
Beside the paragraph above quoted the opinion is very instructive on the question under consideration, and should be entirely read. (See, also, Stetson v. Faxon, 19 Pick. 147, as reported in 31 Am. Dec. 123, with notes; also Wood on Nuisances, secs. 602-5, and cases there cited.)
In the case at bar the stench arising from the nuisance not only enters plaintiff's dwelling-house through every open door and window, and deprives him and his family of the comfortable use and enjoyment thereof, and is deleterious to their health, but large quantities of the material from which the noxious odors arise are deposited upon his land near his house. Surely, all this constitutes a special injury to his private property and private rights incidental thereto, which is not common to the public generally, nor to more than one-sixth part of the populatio n of the small town in which the nuisance is [42 P. 439] located.
I think the judgment should be reversed and the cause remanded for a new trial.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded for a new trial.
CONCUR
HENSHAW
Henshaw, J., concurring. It appears by the complaint, supported by the evidence, that plaintiff suffered peculiar and special damage by reason of the deposit upon his land of quantities of offensive sewage matter. That the stench was more offensive where he resided than it was elsewhere, or that his family was exposed to greater danger of disease by reason of the nuisance, does not, in my opinion, constitute a special injury, but merely a greater injury of a general kind. But for the reason first above given, which is noted in the learned commissioner's opinion, I concur in the conclusion he reaches and in the judgment of reversal.