Siskiyou Lumber & Mercantile Co. v. Rostel

Citations

• 121 Cal. 511
• 53 P. 1118
• 1898 Cal. LEXIS 943

Syllabus

<p>Public Nuisance—Private Action—Special Injury.— Anything which is an obstruction of a public street or highway, constitutes, a public nuisance; and a private individual cannot maintain an action to abate such nuisance, unless it is shown by proper averment that he will suffer therefrom special and peculiar injury different in kind from that to which the public is subjected.</p> <p>Id.—House Overhanging Sidewalk—Increase of Rate of Fire Insur ance—Depreciation of Property.—The increase in the rate of fire insurance upon plaintiff’s property, and the depreciation of his property in market value, alleged to have been occasioned by the construction of a house by the defendant so that the second story thereof overhangs the sidewalk of a public street, are not such elements of special damage as will give a right of action to the plaintiff. They constitute a detriment incident to the right of owning and enjoying property in a city or town, and for which there is no redress.</p> <p>Id.—Pleading—Averments as to Other Owners.—A complaint for special injury to plaintiff’s property from a public nuisance, is fatally defective, if it fails to show by proper averments that other and adjacent property owners in the town will not suffer a like injury. If no other inhabitants of the town are so situated as to be injured by the alleged nuisance, the complaint must so aver.</p> <p>Id.—Construction Against Pleader—Presumption—“Town.”—The complaint is to be construed most strongly against the pleader; and the failure to aver therein that there are other property owners, will not preclude the presumption that there are such, when the premises are designated in the complaint as being in a “town,” which implies and signifies an aggregation of inhabitants and a collection of occupied dwellings and other buildings.</p> <p>Id.—Position of Plaintiff’s Property.—The complaint must show the precise position of plaintiff’s property in relation to the alleged nuisance, and that it is not widely