FRANCIS P. JARVIS and HOWARD S. JARVIS v. THE SANTA CLARA VALLEY R. R. COMPANY and H. BARTLING, 52 Cal. 438

The allegations of the complaint are not sufficient to constitute a cause of action upon which a judgment can be founded. The only theory upon which the judgment in this case can stand is that the complaint sufficiently alleges either a private nuisance, or a public nuisance, from which the plaintiffs sustain some private injury peculiar to themselves,.and not in common with any one else. ( Yolo County v. The City of Sacramento, 36 Cal. 194; Blanc v.

JTlumpke, 29 Cal. 156.) It is not* pretended or claimed by the respondents that the erection of the bridge by the appellants is a private nuisance—indeed, the complaint alleges that the estuary or arm of the bay in question is “ a navigable stream, and has been used as such for upwards of twenty years,” any obstruction of which would, as a matter of course, constitute per se a public and not a private nuisance. (Aram v. Schallenberger, 41 Cal. 449; L. T. Co. v. 8. & W. W. R. Co. Ibid. 562. A. M. Crane, for the Respondents.

By the Court : The complaint does not contain a statement of facts showing that plaintiffs have suffered such damage (peculiar to themselves, and differing in kind and character from that suffered by members of the general public having occasion to use the navigable stream) as will authorize the maintenance of an action like the present. Judgment reversed, and cause remanded.