De Costa v. Massachusetts Flat Water & Mining Co.

Citations

• 17 Cal. 613

Syllabus

<p>Defendant dug a ditch on plaintiff’s land, and in an action against defendant to abate the ditch as a nuisance and to have it filled up and for damages : Held, that plaintiff cannot recover as damages a sum sufficient to Jill up the ditch, because the cost of filling it up might exceed any injury resulting from it in its present condition, and hence plaintiff might never fill it up. Damages can be had for the injury sustained, and nothing more.</p> <p>In some cases prospective damages are allowed, but this is not such a case. Such damages can be allowed only when it appears that the party will be subjected to the particular loss or injury for which he demands compensation.</p> <p>The parol license plead by defendant in this case is not sustained by the evidence.</p> <p>Plaintiff having recovered judgment that the ditch is a nuisance and that it be filled up, together with two hundred and twenty-five dollars damages as the expense of filling it up, the judgment is permitted to stand when modified by plaintiff’s remitting the damages and paying costs of appeal.</p>