[No. 5. Second Appellate District.—June 6, 1905.]

T. C. HARNISS, and MAYMIE B. CLARKE, Respondents, v. F. H. BULPITT, Appellant.

ACTION TO ABATE NUISANCE-CAPACITY TO SUE-DEMURRER.-In an action to abate a nuisance caused by obstruction of a public alley, upon which plaintiff's property abuts, where there is nothing on the face of the complaint to indicate a want of capacity of the plaintiffs to sue, a demurrer upon that ground was properly overruled. ID.-PUBLIC NUISANCE OBSTRUCTION OF PUBLIC ALLEY-CAUSE OF ACTION SPECIAL INJURY TO PLAINTIFFS.-Though the obstruction of a public alley is a public nuisance, yet where the complaint of the plaintiffs to abate it alleges that ingress and egress to and from the abutting property owned by plaintiff to and from the alley is prevented by the obstruction thereof by fences constructed thereon by the defendant, it states a cause of action for special injury to a private right incidental to the plaintiffs' property, different in kind from that sustained by the public at large.

ID.-MOTION FOR JUDGMENT UPON PLEADINGS.-A motion of the defendant for judgment upon the pleadings was properly denied where the complaint states a cause of action.

ID.-AVERMENT OF PUBLIC ALLEY.-The averment that the strip of ground obstructed was a public alley, and had been so used for twenty-five years as a means of ingress and egress to and from plaintiff's property, is a sufficient statement of fact, without an averment of the manner by which it became a public alley.

APPEAL from a judgment of the Superior Court of Inyo County. Walter A. Lamar, Judge.

The facts are stated in the opinion of the court.

P. W. Forbes, and White Smith, for Appellant.

S. E. Vermilyea, and Ben H. Yandell, for Respondents

ALLEN, J.-This is an action for damages and to procure an order for the abatement of a nuisance alleged to exist by reason of obstruction by fences at both ends of a public alley in the town of Bishop, Inyo County, this state, upon which alley plaintiffs' property abuts; by which plaintiffs are deprived of the free use of their property and from going from their property out upon said alley, or through the same to Church Street, a public street in said town.

The damages were claimed on account of the depreciation in value, and by reason of being deprived of the use of said alley.

To the complaint a demurrer was interposed upon the grounds,-1. That plaintiffs had no legal capacity to sue; and 2. That the complaint did not state facts sufficient to constitute a cause of action. The demurrer being overruled, defendant answered, denying all the material averments of the complaint, other than the construction of the fences at the places designated in the complaint. The defendant further alleges that the strip of ground denominated a public alley in plaintiffs' complaint was not an alley, but the private property of defendant.

Findings and judgment went for plaintiffs, and a decree was entered enjoining the defendant from maintaining such fences or obstructing said alley. From the judgment defendant appeals.

There being nothing apparent upon the face of the complaint as indicating plaintiff's want of capacity to sue, the demurrer upon that ground was properly overruled.

The principal contention of defendant presented in his points and authorities is, that the complaint does not state a cause of action, because no injury is alleged different in kind from that sustained by the public at large. The nuisance complained of, being the obstruction of a public alley, is a public one. That plaintiff may have redress in a private action, it must appear by proper averment that the plaintiff will suffer some injury therefrom in its nature special and peculiar to him, and different in kind from that to which the public is subjected. (Civ. Code, sec. 3493; Siskiyou Lumber etc. Co. v. Rostel, 121 Cal. 513, [53 Pac. 1118].) Applying this test to the complaint, we regard it as sufficient. The allegations that ingress and egress to and from the abutting property owned by plaintiffs, upon or through the alley, is prevented by the obstruction, is an allegation of an injury to a private right incidental to private property. The owner of property abutting upon a street or alley owns the incidental rights to ingress and egress as completely as he does the property to which the rights are an incident. (Brown v. Board of Supervisors, 124 Cal. 280, [57 Pac. 82].)

fringement upon these rights is therefore a private wrong.

"When the alleged nuisance would constitute a private wrong by injuring property, or creating personal incon. venience and annoyance for which an action might be maintained in favor of the party injured, the same is none the less actionable because the wrong is committed in a manner which would render the party liable to indictment for a common nuisance.” (Wesson v. Washburn Printing Co., 13 Allen, 95, [90 Am. Dec. 181]; Lind v. City of San Luis Obispo, 109 Cal. 344, [42 Pac. 437].)

Appellant assigns as error the action of the court in denying defendant's motion for a judgment on the pleadings. The complaint stating a cause of action, there was no error in this judgment.

Appellant's final contention is, that the complaint alleging that the strip of ground was a public alley, and had been so used for twenty-five years as a means of ingress and egress to and from plaintiffs' property, was an insufficient statement of fact, in that the manner by which it became such alley was not averred; and the finding was challenged in the same regard. There is no merit in this contention. The allegation was sufficient, and the findings support the judgment.

Judgment affirmed.

Gray, P. J., and Smith, J., concurred.

[No. 15. Third Appellate District. June 6, 1905.]

CALIFORNIA AND NORTHERN RAILWAY, Respondent, v. STATE OF CALIFORNIA et al., Defendants; HUMBOLDT RAILROAD COMPANY, Defendant and Intervener, Appellant.

EMINENT DOMAIN-CONDEMNATION OF PROPERTY OF STATE-MATURITY OF ACTION.-The right to take the private property of the state in condemnation proceedings in the superior court has been granted by subdivision 2 of section 1240 of the Code of Civil Procedure; and a proceeding therefor begun one day before the taking effect of subdivision 7 of that section cannot be abated as premature.

ID.-APPEARANCE OF ATTORNEY-GENERAL JURISDICTION OF COUBT.— Where the attorney-general appeared in the case for the state, as it was his duty to do under the provisions of section 472 of the Political Code, the state was just as much in court as though regularly summoned under section 1245 of the Code of Civil Procedure, and the jurisdiction of the court was complete.

APPEAL from a judgment of the Superior Court of Humboldt County. G. W. Hunter, Judge.

The facts are stated in the opinion of the court.

C. M. Wheeler, for Appellant.

George D. Murray, for Respondent.

BUCKLES, J.-Suit was for condemnation of land belonging to the state, for use of railway. All the defendants having been served with summons, and all having failed to answer except the state of California, default was taken against them. The attorney-general appeared on the part of the state and demurred and answered. Then the Humboldt Railroad Company intervened, filing a complaint in intervention, and also filing an answer to plaintiff's complaint. The plaintiff demurred to the complaint in intervention and to the answer of intervener. The court sustained both demurrers and dismissed the complaint in intervention, and rendered judgment for the plaintiff and against the state of California, on the written stipulation of plaintiff and the attorney-general on the part of the state of California. Judgment was also rendered against intervener.

This appeal is from the whole of the judgment, and is prosecuted as two appeals, one as a defendant in said action and one as an intervener. The points of law being the same in both, we shall consider them together. In both complaint and answer of the Humboldt Railroad Company there is a plea in abatement, and the ground for this plea is that the plaintiff began the suit against the state to condemn state lands, prematurely, and before there was any law in existence granting it authority so to do. The action was begun on March 14, 1901. Appellant claims that at that date no law existed which would authorize the plaintiff to bring such suit, and that such right was conferred by amendment to

section 1240 of the Code of Civil Procedure, which took effect March 15, 1901. The amendment is as follows, to wit:"Subd. 7. Proceedings to condemn lands belonging to this state are hereby authorized, and must be maintained and conducted in the same manner as are other condemnation proceedings provided for in this title; except, that in such proceedings the summons and copy of the complaint must be served on the governor, attorney-general, and surveyor-general of the state." In support of appellant's contention he cites section 6 of article XX of the constitution, which reads as follows, to wit: "Suits may be brought against the state in such manner and in such courts as shall be directed by law." The only question in this case, as appears from the briefs filed, is: Did the plaintiff have a right to bring its action prior to the amendment of section 1240 by adding subdivision 7?

The right to take the private property of the state in condemnation proceedings has been granted by subdivision 2 of section 1240 of the Code of Civil Procedure. The proceedings to condemn must be brought in the superior court, and we are of the opinion that this applies to the state whose property may be taken as well as to individuals. Section 1244 of the same code provides what the complaint in a condemnation proceeding shall state, and as to which no question is suggested in the briefs. Section 1245 provides for the summons and how it shall be served. The attorney-general appeared in the case for the state, and it was his duty to do so under the provisions of section 472 of the Political Code, and when he had so appeared, in a case where the state was a proper party as in this case, the state was just as much in court as though regularly summoned, and the jurisdiction of the court was complete.

The judgment appealed from is affirmed.

McLaughlin, J., and Chipman, P. J., concurred.