Opinion
Appeal from the District Court of the First Judicial District, County of Los Angeles.
The plaintiff brought this action to abate a sewer and sink, alleging it to be a nuisance. Defendant had judgment, and plaintiff appeals.
COUNSEL
Smith, for Appellant.
Brunson, for Respondent.
OPINION
By the Court:
Whether or not the overflowing of the sewerage complained of is injurious to health, or offensive to the senses, or obstructs the plaintiff's property, or interferes with its enjoyment, is a question of fact. (People v. Davidson , 30 Cal. 379; Blanc v. Klumpke , 29 id. 156.)
The complaint alleges that the overflow gave rise to noxious and offensive smells and tainted the atmosphere so as to render the dwelling house and premises of the plaintiff unfit for habitation, and in that way obstructed the use of plaintiff's property, and injured the health, and offended the senses of the plaintiff, his family, and visitors. These allegations are denied by the answer.
The trial of the issue of fact thus joined was had before the Court sitting without a jury, and the findings of fact were for the defendant. It being thus ascertained that in point of fact the overflow did not, under the circumstances, amount to a nuisance, the judgment for the defendant must be affirmed under the general rule, unless the evidence was insufficient to support the findings in these particulars. On looking into the statement, upon which the motion for a new trial was based, we are satisfied, without delaying here to analyze the evidence in detail, that it clearly preponderates in favor of the defendant.
Judgment and order affirmed.