Torts · MBE-tested
REQUENA v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF LOS ANGELES
45 Cal. 55·Supreme Court of California·1872·CA
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Opinion
[No. 3,312.]
REQUENA v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF LOS ANGELES.
Nuisance a Question oe Fact.—Whether or not the overflowing of sewerage is injurious to health or otherwise offensive, is a question of fact. Findings oe Fact.—Unless the evidence be insufficient to support the finding of a Court, the judgment will not be disturbed on a question of fact.
Appeal from the District Court of the First Judicial District, County of Los Angeles.
The .plaintiff brought this action to abate a sewer and sink, alleging it to be a nuisance. Defendant had judgment, and plaintiff appeals.
Smith, for Appellant.
Brunson, for Eespondent.
[MAJORITY — By the Court:]
By the Court:
Whether or not the overflowing of the sewerage complained of is injurious to health, or offensive to the senses, or obstructs the plaintiff’s property, or interferes with its enjoyment, is a question of fact. (People v. Davidson, 30 Cal. 379; Blanc v. Klumpke, 29 id. 156.)
The complaint alleges that the overflow gave rise to noxious and offensive smells and tainted the atmosphere so as to render the dwelling house and premises of the plaintiff unfit for habitation, and in that way obstructed the use of plaintiff’s property, and injured the health, and offended the senses of the plaintiff, his family, and visitors. These allegations are denied by the answer.
The trial of the issue of fact thus joined was had before the Court sitting without a jury, and the findings of fact were for the defendant. It being thus ascertained that in point of fact the overflow did not, under the circumstances, amount to a nuisance, the judgment for the defendant must be affirmed under the general rule, unless the evidence was insufficient to support the findings in these particulars. On looking into the statement, upon which the motion for a new trial was based, we are satisfied, without delaying here to analyze the evidence in detail, that it clearly preponderates in favor of the defendant.
J udgment and order affirmed.