The herald., 1898-05-27
A SEWAGE NUISANCE
IN ORDER TO ABATE IT PRIVATE
PARTIES
SEEKING RELIEF FROM SMELL
And Noisome and Decayed Matter
Must Show Ownership Of Lands
Upon Which the Stuff Flows

Judge Allen yesterday sustained gen.
eral demurrer to the complaint in the
suit of Chris Arnold and eight other
plaintiffs against the South Side Irriga-
ton company. They alleged that the cor
poration causes sewage from the city Of
Los Angeles to flow from its pipe lines at
two points, distant about 1000 feet from
each other, from which points, through
open bitches and otherwise. such sewage
is discharged upon body of land aggre-
eating 1900 acres, upon which the bitches
and pipe lines are situated; that such sew
age Is allowed to stand exposed upon the
surface in pools and depressions; that 1t
emits noxious vapors, fumes and nois-
ONE smells, nauseating and offensive
gases, exceedingly offensive to the senses
and of the most disagreeable and danger
Gus character; that plaintiffs. with their
families, reside at different points in the
vicinity of the lands so flooded; that the
health and comfort of plaintiffs and their
families is injured. destroyed and dis
eases are ocoasioned thereby, endanger-
ing the health of plaintiffs and that of
their families; that defendant, with full
knowledge of its effect, continues to dis
charge the sewage, and that the damages
are Of such nature as to be incapable of
compensation and of adjudication at law.
A perpetual injunction was prayed for.
The principal contention of defendants 8
demurrer was that the complaint showed
the nuisance to be a public nuisance,
which could not be interfered with at the
suit of private parties. After quoting the
sections of the civil code dealing with the
matter, the court says: 1t is conceded that
II the nuisance be public one, not shown
to be specially injurious to plaintiffs, it
becomes a matter to be redressed by the
publci authorities; while. on the other
hand, If, under the allegations of the COM
plant, 1t be a private nuisance, or pub
lie one specially injurious to the plaintiffs,
It may be abated and its continuance re-
strained at the suit of private parties in
jured thereby.
The primary question, therefore, Is:
Does 1t appear from the complaint that
the injury complained Of affects an entire
community, neighborhood or large num-
ber of persons: and, if so, are there suffl
cient allegations showing that plaintiffs
are specially injured? The large number
of persons joining in the complaint, all of
whom reside upon and adjacent to the
1900 acres overf1owed by the sewage, even
assuming that they are all of the persons
30 residing in the vicinity, together with
the character of the acts complained of,
indicate to my mind that the nuisance is
q public one. If 1t be public nuisance,
however, the injury which may entitle q
private person to maintain an action to
abate a public nuisance must be an in
Jury to plaintiffs private property, or to
q private right incident to such property,
and where the injury is of this nature the
injured person may maintain the action,
although the private rights of an indef-
Unite number of other persons may be in
Jured or infringed upon by the same nuis-
ance.
Where a nuisance is public in its char
acter, to entitle an individual to maintain
an action to abate the same, he must al
lege and prove that there has been an in
vasion of private rights in excess of the
inconvenience and injury to the general
public.
The weakness of the complaint at bar is
that the only allegation in relation to the
rights of plaintiffs to the property affected
by this nuisance is that they reside there
on. There is no allegation of ownership,
but If it had shown that they were the
owners or possessed private rights in the
property upon which they reside, and that
there was a deposit thereon of the par
ticles which caused and created an odor
offensive to the senses and injurious to the
health, and interfering with the legiti-
mate use of such private property,
1t would, in my opinion, bring the
case within the rule that substantial pri-
vate right has been invaded and an injury
different in character from that suffered
by the general public inflicted