Jurisdiction of County Court, in Grigsby vs. The Clear Lake Water Co., 40 id., p. 396; see Sec. 731 (2 249), Co. Civ. Pro. Cal.; Stone vs. Bumpus, 40 id., p. 428." See, also, Secs. 3480, 3481, Civil Code.

2. NOTHING DONE UNDER EXPRESS AUTHORITY OF STATUTE IS A NUISANCE.-Civil Code of California, Annotated Edition, Vol. II, p. 481, Sec. 3482:

"Harris vs. Thompson, 9 Barb., p. 350; Plant vs. Long Island R. R. Co., 10 id., p. 25; Leigh vs. Westervelt, 2 Duer, p. 618; Williams vs. N. Y. Central R. R. Co., 18 Barb., p. 222; compare Renwick vs. Morris, 7 Hill, p. 575; Clark vs. Mayor, etc., of Syracuse, 13 Barb., p. 32. A municipal corporation may commit a nuisance.-2 Hilliard on Torts, p. 405. Particular instances are enumerated in the following cases: Delmonico vs. New York, 1 Sandf., p. 222; Brower vs. New York, 30 Barb., p. 254; Stein vs. Burden, 24 Ala., p. 130; Akron vs. McComb, 18 Ohio, p. 229; Howell vs. Buffalo, 15 N. Y., p. 512; Ross vs. Madison, 1 Cart., p. 381; Dayton vs. Pease, 4 Ohio (N. S.), p. 80; Stone vs. Augusta, 46 Me., p. 227; Conrad vs. Trustees, etc., 16 N. Y. (2 Smith), p. 158; Weightman vs. Wash ington, 1 Black, p. 39; Loyd vs. New York, 1 Seld., p. 369; Lacour vs. New York, 3 Duer, p. 406. On the other hand, the general rule is stated to be, that an action does not lie against a municipal corporation for neglect of duty imposed by a general law and not by its charter, unless authorized by statute, etc.-See 2 Hilliard on Torts, p. 406, Sec. 2a, text and notes with cases; see, also, 1 Hilliard on Torts, pp. 550-52, Secs. 4-4a. The principle is laid down, that if one carry on a lawful business in such a manner as to prove a nuisance to his neighbor, he is answerable for the damages.-Fish vs. Dodge, 4 Denio, p. 311. But it is also said, that which is authorized by an Act of the Legislature cannot be a nuisance.'-Per Hand, J.; Trustees, etc., vs. Utica, etc., 6 Barb., p. 313; Stoughton vs. State, 5 Wis., p. 291; Hatch vs. Vermont, etc., 2 Wms., p. 142; see Corn vs. Reed, 34 Penn., p. 275; Samuel vs. Mayor, etc., 3 Sneed, p. 298; People vs. Law, 34 Barb., p. 494; Call vs. Allen, 1 Allen, p. 137; Butler vs. State, 6 Ind., p. 165; and other notes there to be found."

3. SUCCESSIVE OWNERS-WHO NEGLECT TO ABATE A CONTINUING NUISANCE LIABLE.-Civil Code of California, Annotated Edition, Vol. II, p. 481, Sec. 3483:

"1 Hilliard, p. 572, Sec. 15a, it is said: 'One who demises premises for carrying on a business

1

necessarily injurious to adjacent proprietors, is liable as
the author of the nuisance.'-Fish vs. Dodge, 4 Denio,
p. 311; Brady vs. Weeks, 3 Barb., p. 157. Writs of
nuisance held in New York to be obsolete.-Krutz vs.
McNeal, 1 Denio, p. 436. The action must be brought
against the party erecting the nuisance, or if he has
transferred the land to another, then against both these
parties. An action against the alienor alone for keep-
ing up and continuing a nuisance erected by his
grantor was unknown to the common law.-Brown vs.
Woodworth, 5 Barb., p. 550, and note (a), p. 572; 1
Hilliard on Torts. In this respect, however, the text
changes the common law rule. It is sufficient to show
the nuisance was caused by authority of the defendant,
or that, having acquired the title to the land after the
nuisance was erected, he has continued it.-2 Greenleaf
Evidence, p. 527, Sec. 472; (2) Pennruddock's Case, 5
Co., p. 100; Davenport vs. Lamson, 21 Pick., p. 72.
So, if the injury is caused by a wall erected partly on
defendant's land, case lies for the nuisance, though the
wall is erected partly on plaintiff's land, by an act of
trespass.-Wells vs. Ody, 1 M. & W., p. 452; Winter
vs. Charter, 3 Y. & J., p. 308. See cases in point:
Brown vs. Cayuga and Susquehanna R. R. Co., 12 N.
Y., p. 486; compare Terry vs. Mayor, etc., of N. Y.,
8 Bosw., p. 504."

4. A PRIVATE PERSON MAY MAINTAIN AN ACTION
FOR A PUBLIC NUISANCE, IF IT IS SPECIALLY INJU-
RIOUS TO HIMSELF; BUT NOT OTHERWISE.-Civil Code
of California, Annotated Edition, Vol. II, p. 484, Sec.
3493: "When injurious to himself (Pierce vs. Dart,
7 Cow., p. 609), but not otherwise.-Davis vs. Mayor,
etc., of N. Y., 14 N. Y., p. 506; Dougherty vs. Bunt-
ing, 1 Sandf., p. 1; Myers vs. Malcolm, 6 Hill, p.
292; see Lansing vs. Smith, 8 Cow., p. 146; 4 Wend.,
p. 9; First Baptist Church vs. Schenectady and Troy
R. R. Co., 5 Barb., p. 79; same vs. Utica and Schenec-
tady R. R. Co., 6 id., p. 313; Pierce vs. Dart, 7 Cow.,
p. 609; Yolo County vs. Sacramento, 36 Cal., p. 195;
Grigsby vs. Clear Lake Water Co., 40 Cal., p. 396."

actions for

732. (§ 250.) If a guardian, tenant for life or Waste, years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.

Trespass for cutting

away trees,

for.

NOTE.-Chipman vs. Emeric, 3 Cal., p. 283. Demand for triple damages must be inserted in the complaint.-Chipman vs. Emeric, 5 Cal., p. 239; Rees vs. Emeric, 6 S. & M., p. 288; Newcomb vs. Butterfield, 3 Johns., p. 342; Livingston vs. Platner, 1 Cow., p. 175; Benton vs. Daleu, 1 Cow., p. 160. Injunction to restrain waste.-Hicks vs. Michael, 15 Cal., p. 116.

733. (§ 251.) Any person who cuts down or caror carrying ries off any wood or underwood, tree, or timber, or etc., actions girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, village, or city lot, or cultivated grounds; or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed there for, in a civil action, in any Court having jurisdiction. NOTE.-Sampson vs. Hammond, 4 Cal., p. 184; Buckelew vs. Estell, 5 Cal., p. 108.

Measure of
damages
in certain
cases under
the last
section.

Damages

734. (§ 252.) Nothing in the last section authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public highway or bridge upon the land, or adjoining it.

NOTE.-Chipman vs. Hibberd, 6 Cal., p. 162.

.735. (§ 253.) If a person recover damages for a for forcible forcible or unlawful entry in or upon, or detention of

in actions

entry, etc., may bo

trebled.

any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed.

NOTE. It is the duty of the Court to treble the damages, although treble damages are not demanded in the complaint.-Tewksbury vs. O'Connel, 25 Cal., p. 262. But mandamus will not lie to compel the Court to treble the damages. The remedy is by appeal.-Early vs. Mannix, 15 Cal., p. 149.

CHAPTER III.

CLAIMS TO REAL
RELATING

ACTIONS TO DETERMINE CONFLICTING
PROPERTY, AND OTHER PROVISIONS
ACTIONS CONCERNING REAL ESTATE.

SECTION 738. Parties to an action to quiet title. 739. When plaintiff cannot recover costs.

ΤΟ

740. If plaintiff's title terminates pending the suit, what he
may recover, and how verdict and judgment to be.
741. When value of improvements can be allowed as a

set-off.

742. An order may be made to allow a party to survey and
measure the land in dispute.

743. Order, what to contain and how served. If unneces-
sary injury done, the party surveying to be liable
therefor.

744. A mortgage must not be deemed a conveyance, what-
ever its terms.

745. When Court may grant injunction; during foreclosure;
after sale on execution, before conveyance.

746. Damages may be recovered for injury to the possession
after sale and before delivery of possession.

747. Action not to be prejudiced by alienation, pending suit.
748. Mining claims, actions concerning to be governed by
local rules.

an action to

738. An action may be brought by any person Parties to against another who claims an estate or interest in quiet title. real property adverse to him, for the purpose of determining such adverse claim.

NOTE.-Sec. 380 of this Code provides that "in an action brought by a person out of possession of real property to determine an adverse claim of an interest or estate therein, the person making such adverse claim and all persons in possession must be joined as defendants." Sec. 381 provides that "persons claiming an interest in lands under a common source of title may unite as plaintiffs in an action against any person claiming an adverse interest therein, for the purpose of determining such adverse claim, or of establishing such common source of title, or of declaring the same to be held in trust, or for removing a cloud thereon." And Sec. 384, ante, that "all persons holding as tenants in common, joint tenants or coparceners, or any number less than all, may jointly or severally commence or

When

plaintiff

cannot recover costs.

If plaintiff's title

pending the suit, what

he may recover, and how

defend any civil action or proceeding for the enforce-
ment or protection of the rights of such property."
See, also, Ross vs. Heintzen, 36 Cal., p. 313. This sec-
tion enlarges the class of cases in which equitable relief
could be formerly sought to quiet title.-Curtis vs.
Sutter, 15 Cal., p. 259. This action does not lie to de-
termine an adverse claim to the use of water.-Nevada
County & S. C. Co. vs. Kidd, 37 Cal., p. 283. But
does lie to determine an adverse claim to mining claims.
Merced Mining Company vs. Fremont, 7 Cal., p. 319.
The "adverse claim, estate, or interest" need not be of
a legal or equitable title; the terms include every de-
scription of claim whereby the plaintiff might be
deprived of the property, or its title be clouded, or
value depreciated, etc.-Head vs. Fordyce, 17 Cal., p.
149. The test by which the question whether a deed
would cloud title, is this: would the owner of the prop-
erty, in an action of ejectment brought by the adverse
party, founded upon the deed, be required to offer evi-
dence to defeat a recovery? If such proof would be
necessary the cloud would exist; otherwise, not.-Pix-
ley vs. Huggins, 15 Cal., p. 128. If it is adjudged that
the defendant has no title, the judgment will not be
reversed, because it restrains the defendant from setting
up the title or claim declared invalid.-Brooks vs. Cal-
derwood, 34 Cal., p. 563.

739. (§ 255.)
($ 255.) If the defendant in such action
disclaim in his answer any interest or estate in the
property, or suffer judgment to be taken against him
without answer, the plaintiff cannot recover costs.

NOTE.-If the defendant while disclaiming, denies
the possession of plaintiff and compels him to prove it,
plaintiff is entitled to costs.-Brooks vs. Calderwood,
34 Cal., p. 563.

740. (§ 256.) In an action for the recovery of real terminates property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover damages for withholding the property.

verdict and judgment to be.

NOTE.-Moore vs. Tice, 22 Cal., p. 513; Moss vs.
Shear, 30 Cal., p. 467; Gee vs. Moore, 14 Cal., p. 472.

741.