The record-union., 1897-12-07
WOODLANDS CITY SEWAGE.
IT CAN BE DECLARED A PUBLIC
NUISANCE.
So Holds Judge Hart IN an
Order Entered Yes
terday.

Judge Hart of Department Ihree VI
the Superior Court of this county, pc
fore whom was heard the case OF L. l..
Baird and others against the clty OIL
Woodland. on demurrer, yesterday
made an order overruling the DEFEND
ants demurrer.
Baird and the other plaintiffs brought
the action to abate what they alleged
to be a public nuisance-the sewerage
system of the city of Woodland Judge
Hart says. in making his order;
The defendant interposed a demurrer
to the amended complaint in this
action upon several grounds, thus rails
ing q number of questions to be passed
upon. The first is that the complaint
does not state facts sufhclent 10 con-
stitute a cause of action.
The action is instituted for the pur-
pose of abating AN alleged public nui-
sance maintained by the defendant, in
the nature of a system of sewerage
drains constructed and maintained for
the purpose of carrying off sewerage
matter from the city of Woodland, the
defendant herein.
1t is shown by the complaint to be
a public nuisance, and contended by
the defendant that the plaintiffs do
not, in addition, allege facts sufficient
to authorize them to maintain an action
under Section 3493 of the Civil Code,
which provides that "a private person
may maintain an action for a public
nuisance, if it is especially injurious to
himself, but not otherwise"
After averring the said sewerage sys-
tenn to be such as to bring it clearly
within the description OF public nui-
sance, the complaint proceeds to al
lege:
But the same is a special injury to
plaintiffs on account of the proximity
of the premises of plaintiffs to the
premises of defendant, and said noxious
smells are injurious to the health of
plaintiffs and their families, or to any
one occupying or being upon the prem
ises of plaintiffs above described, and
that the same is offensive to the senses
and is an obstruction to the free use
of the said property of plaintiffs, and
1nterferes with their comfortable en-
Joyment of the same; that said noXious
smells, extending, as aforesaid, over
and upon the premises of plaintiffs,
greatly reduce the value of the said
property of plaintiffs, to their great
damage and injury etc.
I have no doubt that the language
quoted AYERS such a special injury TO
plaintiffs as that they are entitled to
institute and maintain this action. The
rule laid down in the case of Lind VS..
City of San Luis Obispo. 100 Cal. page
341. while appearing, at first blush. as
conflicting with previous adjudications
unquestiOnably contains a correct ex-
position of the principle of law which
should obtain in cases of this charac-
ter Upon principles of sound justice
l can conceive of no possible reason
why citizen whose property or health
Is seriously affected or damaged by
the acts of another should not have
his remedy for the redress of the
wrongs thus suffered through the agen-
cy Of the forum appropriate to the ma
ture of his complaint In the language
of the decision referred to. "the injury
which may entitle a private person to
maintain an action to abate a public
nuisance must be an injury to plaintiffs s
private property. or to private right
incidental to such private property; and
where the injury is of this nature the
injured person may maintain the action.
although the private rights of an in
definite number of other persons may
be infrinsed and injured the same way
by the same nuisance"
In support of this view, the court
quotes from the decision of Chief Jus
tice Bigelow, in the case of Wesson VS.
Washburne Iron Company. 90 Amer
lean Decisions, 1S1, as follows: - >
But when the alleged nuisance would
constitute a private wrong by injuring
property or health or creating personal
inconvenience and annoyance, for
which an action might be maintained
IN favor of the person injured, it is
none the less actionable because the
wrong Is committed in a manner and
under circumstances which would rem
der the guilty party liable to indict-
ment for common nuisance. This,
we think, Is substantially the conclu-
sion to be derived from a careful ex-
animation Of the adjudged cases.
That is to say, if the injury is such
as results in the destruction of a per-
sons health or property, such injury
is or and in itself special, for which a
private party is justified in bringing an
action. although many others may suf-
fer like injury.
Counsel for the defendant contend
that there is a misjoinder Of actions,
and in support Of their contention. cite
the case of Stark VS.. Wellman, 96 Cal
400. and the case Of Thelin VS.. Stewart.
100 Cal, 313. In the former action the
complaint contained two counts. the
first charging negligence of the de-
fendant in not taking due and proper
care Of a certain sum Of money deIfv-
cred TO him at his request of which
he agreed to take proper care. but lost
it through his gross negligence. care
lessness and improper conduct. and
failed to redeliver il upon demand. The
second count averred that plaintiff was
the owner and entitled to the possession
OF a certain package of coin worth
$3.50 which, being in the possession of
defendant, he converted to his own
use. etc.
1t viii be observed that the two
causes Of action We're entirely differ
ent in their nature, the first being for
breach of contract, and the other
upon a tort The S11prerD.a Court Of