63 P. 1083

DAVID ADAMS and ELLA ADAMS, Respondents, v. CITY OF MODESTO, Appellant.

Sac. No. 659.Supreme Court of California, In Bank.
February 4, 1901.

APPEAL from a judgment of the Superior Court of Stanislaus County and from an order denying a new trial. William O. Minor, Judge.

The facts are stated in the opinion of the court.

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P.J. Hazen, for Appellant.

Needham Dennett, for Respondents.

THE COURT.

Appeal from a judgment in favor of the plaintiff for the abatement of a nuisance and for damages, and from an order denying a new trial. The plaintiffs are owners of a tract of land in the city of Modesto, on which, until a short time before the commencement of the suit, they resided with their families. The nuisance complained of is an open wooden trough, passing about three hundred yards from the plaintiff’s house, and constituting part of the sewerage system of the city, through which, for a distance of about four hundred and fifty yards, the sewerage matter of the city is passed. This the court found was a nuisance, interfering with the comfortable enjoyment and obstructing the free use of the plaintiff’s property, and that the plaintiffs were damaged thereby in the sum of six hundred and fifty dollars.

That the use of the open sewer by the city in the vicinity of the plaintiff’s land constituted a nuisance, and that the plaintiffs were entitled to have it abated, is too clear to require discussion. (Civ. Code sec. 3479; Peterson v. City of Santa Rosa, 119 Cal. 387, 392; Lind v. City of San Luis Obisqo, 109 Cal. 340; Wood on Nuisances, sec. 781, note 1.)

With regard to damages it is objected that the demand was not presented to the board of trustees as required by the provisions of section 864 of the municipal corporation act (Stats. 1883, p. 266 et seq.), applying to cities of the sixth class, of which the city of Modesto is one; which provides that “all demands against such city or town shall be presented and audited by the board of trustees,” etc. But we do not think this provision was intended to apply to cases of this kind. The term “demands” is indeed sufficiently broad to include all claims, whether arising from contract or tort; but when used in this connection the term does not usually include demands of the latter class. (15 Am. Eng. Ency. of Law, 1194.) That the term is here used in the narrower sense as referring only to demands arising from contract and for determinate amounts is shown by the purpose for which they are required to be presented, which is that they may be “audited” — a

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term that is not applicable to demands arising from torts. (Law Dictionaries of Anderson, Abbott, Black, Wharton, etc.; Century Dictionary.)

We do not think, however, that the finding as to damages is sustained by the evidence. In the complaint it is alleged not only that the sewerage matter of the city was conducted through the trough, but that it was habitually discharged upon and spread over the land toward the land of the plaintiffs; and the damages claimed were alleged to proceed jointly from both causes — that is, not only from the use of the sewer, but from “running the sewage on the ground”; and the testimony of the plaintiff, David Adams, is to the same effect. But the finding of the court refers only to the running of the sewage through the trough, and nothing is said about the discharge of the sewage on the ground, and there is nothing in the testimony to determine how much proceeded from the latter and how much from the former cause. The testimony of the plaintiff is also otherwise indefinite. He speaks of sickness in his family caused by the nuisance, which “entailed doctor bills and medicine bills,” but no amounts are given. He says also he “lost the use of the place for two years,” and that he could have rented it for two hundred and fifty dollars a year if it hadn’t been for the sewer. But the place contained about twenty acres of land and its use — except as a dwelling place — could not have been lost by reason of the nuisance complained of, and, indeed, the witness expressly says he “lost the use of it because [he] didn’t care to improve it.” The plaintiffs were undoubtedly damaged, but the evidence fails to show they were damaged in the amount found or in any other ascertainable amount. A new trial must, therefore, be granted, unless the plaintiffs prefer to release the damages.

The order denying the defendant’s motion for a new trial is, therefore, reversed, unless the plaintiffs, within thirty days after notice of the filing of the remittitur, file their stipulation in writing agreeing that the judgment be modified by striking therefrom the part thereof that relates to damages. Upon the filing of such stipulation the judgment shall be modified accordingly, and as thus modified shall stand as affirmed.

Rehearing denied.

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