§ 2382c. Foreclosure of liens - parties, etc. In an action to foreclose a lien upon a structure in favor of a laborer or materialman, it is proper to make both the owner and the original contractor parties defendant, and to unite a personal action against the contractor with the foreclosure suit against the owner, in order to prevent multiplicity of suits.285 All persons claiming liens should be made parties, and the contractor is a necessary party to a full and complete determination of the matters in controversy.288 A complaint in such action which makes the assignee of the estate of the person to whom the materials were furnished a party, and, without describing him as assignee, merely alleges that he has some interest in the premises, must be interpreted as directed against such party's interest in his personal capacity, and not as assignee.287 The fact that the complaint alleges that the building and structure was completed "on or about" a certain date does not subject the complaint to a general demurrer for insufficiency where the complaint alleges that the claim of lien was filed within thirty days after the completion of said building and structure.265 An action to foreclose a mechanic's lien being one triable in equity under Washington procedure, it is within the discretion of the court to grant or refuse a jury trial as to any question of fact involved in actions consolidated for purposes of trial with the action of foreclosure.289 A complaint in an action to foreclose an alleged lien for personal property taxes, arising under North Dakota Statute (Laws 1890, chap. 132, § 90), which fails to allege that the tax claimed to be a lien was ever assessed or levied, and contains no averment that the treasurer of the county in question ever received the tax-books in the years in question, is insufficient. In such actions the general presumption that public officers have done their duty will not supply the place of material averments of fact which are omitted from the complaint.270 265 Giant Powder Co. v. Flume Co., 78 Cal. 193. 266 Id. The wife is a necessary party to an action to foreclose a lien upon community real estate. Sagmeister v. Foss, 4 Wash. St. 320. 287 Quinby v. Slipper, 7 Wash. St. 475. 268 Wood v. Transit Co., 107 Cal. 500. Complaint for foreclosure of mechanic's lien against railroad company. See Helena Lumber Co. v. Railroad Co., 10 Mont. 81. 269 Wheeler v. Ralph, 4 Wash. St. 617. 270 Swenson v. Greenland, 4 N. Dak. 532. CHAPTER II. COMPLAINTS FOR NUISANCES. 2383. For erecting a nuisance. [TITLE.] Form No. 568. The plaintiff complains, and alleges: I. That he is, and at all the times hereinafter mentioned was, the owner and possessed of the house and lot number.... street, II. That the defendant was also then and there the owner and possessed of certain other premises contiguous to [or in the vicinity of] plaintiff's said premises. III. That the defendant on or about the day of 18.., erected on his said premises a slaughterhouse and cattle-pens, and furnaces and vats for making lard and tallow, and thereafter kept in his said pens, and slaughtered in his said slaughter-house large numbers of cattle and hogs, and made thereat tallow and lard, and thereby and by means of said several acts and things caused noxious and offensive smells, and loud and offensive noises, and tainted and corrupted the atmosphere so as to render the dwelling-house and premises of the plaintiff unfit for habitation, and compelled plaintiff to remove from and abandon the same, and thereby also prevent him from renting or otherwise receiving any income therefrom [if other special damage accrued, state it], to the damage of the plaintiff ... dollars. Wherefore the plaintiff demands judgment: 1. That the defendant be restrained by injunction from maintaining or using the same building as a slaughter-house, or otherwise, to the nuisance of the plaintiff, or permitting it to be so used. 2. That the plaintiff recover from the defendant dollars damages, and his costs. § 2384. For abatement of a nuisance. [TITLE.] Form No. 569. The plaintiff complains, and alleges: ... I. That he is, and at all the times hereinafter mentioned was, the owner in fee of [the house and lot No. ... II. That the defendant is, and at all the said times was, the owner in fee of [the lot No. adjoining said property]. street, day of .... 18.., the III. That on the .... defendant erected upon his said lot a slaughter-house, and still maintains the same; and from that day until the present time has continually caused cattle to be brought and killed there [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff, or as the case may be]. IV. That the plaintiff has been compelled by reason of the premises to abandon the said house, and has been unable to rent the same. Wherefore the plaintiff demands judgment, that the said nuisance be abated.1 § 2385. For abatement of a nuisance causing noise. [TITLE.] Form No. 570. The plaintiff complains, and alleges: I and II. [Allege as in form No. 568.] III. That on or about the ........ day of 18.., the defendant erected on his said lot a factory and put a steam trip hammer therein, and ever since has owned and operated said factory, for manufacturing purposes, and in so doing has used said trip hammer almost daily. IV. That the use of said trip hammer makes so loud a noise as to render it impossible, while it is being operated, to hear ordinary conversation in the plaintiff's said house, and causes great annoyance to him and his family. day of .... V. That the plaintiff, on the 18.., notified the defendant that such use of said trip hammer was a nuisance, for said reasons, and requested him to discontinue its use, but the defendant refused so to do. Wherefore the plaintiff demands judgment, that the said nuisance be abated. § 2386. Action to abate nuisance. In the absence of statutory changes, the action to abate a nuisance is "a case in equity," 1 This, in substance, is taken from the New York Code Commissioners' Book of Forms. and from judgment rendered in it an appeal lies. Under the peculiar wording of section 5, article 6, of the California statute conferring jurisdiction upon the Superior Court of actions to prevent or abate a nuisance, the court sits as a special and not as an equitable tribunal. In such actions, therefore, when a trial is had before a jury, and a general verdict for damages is given for the plaintiff, the judgment may order an abatement of the nuisance. The findings of the jury in such case are not merely advisory upon. the court.3 An action for a nuisance is not abated or barred by a subsequent abatement of the nuisance by the plaintiff. Nor does the abatement of a nuisance prejudice the right of any person to recover damages for its past existence. But as the County Court has no jurisdiction of the action for damages except as an incident to the power to abate, the abatement before suit brought deprives that court of the jurisdiction for any purpose. 6 § 2387. Definitions of nuisances. A nuisance is anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway. A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Every nuisance not included in the definition of the last section is a private nuisance.9 2 People v. Moore, 29 Cal. 427. 3 Learned v. Castle, 67 Cal. 41; Sullivan v. Royer, 72 id. 248; 1 Am. St. Rep. 51; and see Warring v. Frear, 64 Cal. 54. 4 Call v. Euttrick, 4 Cush. 345. 5 Cal. Civil Code, § 3484. 6 Grigsby v. Clear Lake Water Co., 40 Cal. 396. It was held in Stiles v. Laird, 5 id. 122, that the statute did not take away any common-law remedy for the abatement of nuisances; but see § 18, Code C. P. Section 731, id. gives an action to abate, and §§ 3495 and 3502 of the Civil Code authorize the abatement, when it can be done without committing a breach of the peace, without bringing an action. 7 Cal. Civil Code, § 3479. 8 Id., § 3480. 9 Id., § 3481. Nothing which is done or maintained under the express authority of a statute, can be deemed a nuisance. 10 The fact whether a structure is a public nuisance is a question, not for the court, but for the jury.11 All encroachments upon privileges which are open to the whole community, though they may have been uninterruptedly prolonged, are nevertheless liable to be suppressed.12 A public nuisance can never be legitimated.13 § 2388. Building adjacent. Under the civil law, if a man build a house upon land of his own and sell it, neither he nor a subsequent grantee can build on their land adjacent so as to destroy windows which were a necessary and essential part of the house.14 But if he has sold the vacant lot and kept the house, without reserving the benefit of the lights, the vendee might build against his house.15 If two men own adjoining lots, and one of them has erected a brick building on his lot, the wall of which leans so as to project over the lot of the other, and over a low wooden building thereon, so as to prevent the raising and repairing of the wooden building, the brick wall is a nuisance, and its maintenance imports damage to the other party, notwithstanding the fact the brick wall is safe and secure.16 § 2389. Bridge. The fact that a bridge is a great public benefit will not prevent its being a nuisance if it obstruct navi10 Cal. Civil Code, § 3482. 11 People v. Davidson, 30 Cal. 383. 12 Weld v. Hornby, 7 East, 194; Carter v. Murcott, 4 Burr. 2163; Knox v. Chaloner, 42 Me. 156. 13 Ang. on Water-courses, 436; Woolrych's Law of Waters, 270; Knox v. Chaloner, 42 Me. 150; Renwick v. Morris, 3 Hill, 621; Coates v. Mayor, etc., 7 Cow. 585; People v. Cunningham, 1 Den. 536; Commonwealth v. Upton, 6 Gray, 473; Woodruff v. North Bloomfield, etc., Co., 1 West Coast Rep. 183; Van Rensselaer v. Albany, 15 Abb. N. C. 457; Sullivan v. Royer, 72 Cal. 248; 1 Am. St. Rep. 51; Bowen v. Wendt, 103 Cal. 236. 14 Palmer v. Fletcher, 1 Lev. 122; Sid. 167; 1 Keble, 553; Rosewell v. Prior, 6 Mod. 116; Coutts v. Gorham, Moo. & M. 396; Compton v. Richards, 1 Price, 27; Story v. Odin, 12 Mass. 157; 7 Am. Dec. 46; see, also, Canham v. Fiske, 2 Cromp. & J. 126; 2 Tyrw. 156. 15 Tenant v. Goldwin, 2 Ld. Raym. 1093. 16 Meyer v. Metzler, 51 Cal. 142. Vol. II- 19 |