
    [L. A. No. 4933.
    Department Two.
    May 31, 1919.]
    J. W. HITCH, Respondent, v. IGNAS SCHOLLE, Appellant.
    
       Public Nuisance—Obstruction of Public Highway—Abatement by Private Person—Pleading—Insufficient Complaint.—In an action to secure a judgment decreeing the existence of a public highway over the lands of the defendant and to enjoin the defendant from obstructing the same, the complaint fails to state a cause of action where it is alleged that the way in question is a public highway, and there is a failure to allege that the highway eonsti-. tutes the only mode of ingress and egress to and from plaintiff’s lands.
    
       Id.—Abatement of Public Nuisance—'Private Action.—If an obstruction which is wrongfully erected and maintained in a public highway constitutes a nuisance which injuriously affects a private person equally in common with the public at large, a private .action may not be maintained to abate the nuisance. It is only where the free use of the property of a private person is interfered with by such an obstruction that he may have his private action, to abate the nuisance resulting therefrom.
    
       Id.—Special Injury—Evidence—Highway as Only Convenient Route.—In, such action, evidence to the effect that the highway constituted plaintiff’s only convenient mode of ingress and egress, but that there was another route available over other public highways which he sometimes used), is not sufficient to support a finding of special injury.
    APPEAL from a judgment of the Superior Court of Ventura County. Merle J. Rogers, Judge. Reversed.
    The facts are stated in the opinion of the court.
    Chas. F. Blackstock for Appellant.
    Bowker and Sheridan and W. E. Shepherd for Respondent.
   LENNON, J.

In this action, the plaintiff sought and secured a judgment decreeing the existence of a public highway over the lands of the defendant, and as an incident of the' judgment the defendant was perpetually enjoined from obstructing said highway. The action is, as the defendant contends, one to abate a public nuisance by a private person not alleged to have been specially injured thereby. The complaint, therefore, does not state facts sufficient to constitute a cause of action and the defendant’s demurrer upon that ground should have been sustained.

It is well settled that if an obstruction which is wrongfully erected and maintained in a public highway constitutes a nuisance which injuriously affects a private person equally in common with the public at large, a private action may not be maintained to abate the nuisance. (Blanc v. Klumpke, 29 Cal. 156.) It is only where the free use of the property of a private person is interfered with by such an obstruction that he may have his private action to abate the nuisance resulting therefrom. (Civ. Code, secs. 3479, 3493; Yolo County v. City of Sacramento, 36 Cal. 193, 195; Grigsby v. Clear Lake Water Co., 40 Cal. 396, 406; Shirley v. Bishop, 67 Cal. 543, 546, [8 Pac. 82]; Gardner v. Stroever, 89 Cal. 26, 29, [26 Pac. 618].)

The complaint herein alleged in substance that the plaintiff was the owner of certain farming land in the county of Ventura, upon which he raised lima beans, hay, and other crops commonly grown and harvested in that particular vicinity; that ingress and egress to and from this land was necessary in order to take his crops to market and for other purposes; that the defendant owned certain land in the vicinity subject to an easement' of way in the public; that the defendant had obstructed this public highway by building and maintaining a fence across it and was threatening to plow up the said highway, and that the plaintiff would suffer great and irreparable injury if these acts were not enjoined. The allegations of one of the paragraphs of the complaint were stricken out upon the motion of the defendant upon the ground that they were redundant, irrelevant, and immaterial. These particular allegations did no more than declare that the plaintiff’s land was devoted to farming purposes and that for these purposes ingress and egress to and from the land was necessary. Neither these allegations nor any other allegations in the complaint averred that the highway in question affords the only mode of ingress and egress to and from the plaintiff’s land.

The complaint cannot be considered as attempting to state anything more or less than a cause of action to abate a public nuisance. The allegation that the way in question is a public highway is necessarily inconsistent with the existence of any private right therein in the plaintiff. So considered, the complaint is vitally defective for the reason that it fails to allege that the highway in question constitutes the only mode of ingress and egress to and from the lands of the plaintiff. (Houck v. Wachter, 34 Md. 265, [6 Am. Rep. 332]; Scrutchfield v. Choctaw etc. R. R. Co., 18 Okl. 308, [9 L. R. A. (N. S.) 496, 88 Pac. 1048].) There is, indeed, an allegation of irreparable injury, but it is unsupported by the allegation of any fact showing wherein that injury would differ in kind from the injury which would be suffered by the public in general.

The defendant did, in his answer, deny that the plaintiff would suffer special injury, but that portion of the answer was stricken out upon motion before the trial. Nor can it be said that the issue of special injury was raised at the trial itself. There was no finding on the question of special injury, although a finding that the plaintiff would suffer such injury by reason of an obstruction of the highway was essential to support the judgment, inasmuch as it was found that the said highway was in fact a public highway.

The evidence adduced on behalf of the plaintiff was to the effect that the highway in question constituted his only convenient mode of ingress and egress, but that there was another route available over other public highways which he sometimes used. This evidence would not, we think, be sufficient to support a finding of special injury. The weight of authority is to the effect that in actions of this character it should clearly appear from the pleadings and by the proof that the way in question constitutes the only means of ingress and egress to and from the land of the plaintiff. In short, there is no ground for an action by a private person to abate a public nuisance resulting from the obstruction of a public highway where it merely appears that the person would be subjected to personal inconvenience by the obstruction or placed under the necessity of traveling by a much more circuitous route to reach his destination. (Houck v. Wachter, supra.)

This view of the case makes it unnecessary to decide whether the evidence supports the finding that the way in controversy was in fact a public highway.

The judgment appealed from is reversed.

Melvin, J., and Wilbur, J., concurred.  