Silva v. Spangler

Citations

• 5 Cal. Unrep. 277
• 43 P. 617
• 1896 Cal. LEXIS 1080

Syllabus

<p>Nuisance—Abatement—Pleading.—Under Code of Civil Procedure, section. 430, the failure of a complaint, in an action to abate an embankment, to allege any damage to plaintiff different or peculiar from that resulting to the common public, is not a ground of demurrer, though, in a proper ease, the objection may be urged, under a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Pleading—Waiver of Objections to Complaint.—Under Code of Civil Procedure, section 434, providing that if objections to a complaint are not taken, either by. demurrer or answer, the defendant must be deemed to have waived the same (with certain exceptions), the objection that a complaint is ambiguous or uncertain, that being a specific ground of demurrer, is waived, if not raised by demurrer.</p> <p>Bight of Way—Grant or Dedication.—The fact that a strip of land, over which a private right of way had been granted by the owner to two other land owners, to enable them to reach a highway from their land, is used, without objection, by others, going to and from their own lands, or the places of the two grantees, does not establish a dedication to the public.</p> <p>Nuisance.—In an Action to Abate an Embankment, thereby throwing surface water over plaintiff’s right of way, where there is no allegation that the right of way was a public one, it is unnecessary to allege any special injury differing from that resulting to the public.</p>