Castle v. Smith

Citations

• 4 Cal. Unrep. 561
• 36 P. 859
• 1894 Cal. LEXIS 1298

Syllabus

<p>Nuisance—Liability of Grantee—Notice.—In an Action against the grantee of land for the continuance of a nuisance erected by his grantor, notice to defendant that the erection was a nuisance is essential to plaintiff’s cause of action, and it is not for defendant to show want of such notice. Such notice is not dispensed with by Civil Code, section 3483, making a grantee liable “in tne same manner as the one who first created the nuisance,” as the liability of the creator is based on the presumption that he has notice that it is a nuisance, which presumption does not arise against the grantee.</p> <p>Nuisance—Liability of Grantee—Notice.—There is No Presumption that a grantee knows that a dam erected by his grantor on the land was erected without the consent of others affected thereby.</p> <p>Nuisance.—In an Action for Damages Caused by the erection of a nuisance, and to compel defendant to abate the same, plaintiff may waive the equitable relief, and thereby render a finding of facts by the court unnecessary.</p> <p>Judgment.—Where the Complaint Contains Two Counts, one of which does not constitute a cause of action, and the error in rendering a judgment thereon can be cured by a modification of the judgment, the verdicts on each count having been returned separately, a new trial will not be ordered.</p>