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 4. A PRIVATE PERSON MAY MAINTAIN AN ACTION 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 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 ACTIONS TO DETERMINE CONFLICTING 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 set-off. 742. An order may be made to allow a party to survey and 743. Order, what to contain and how served. If unneces- 744. A mortgage must not be deemed a conveyance, what- 745. When Court may grant injunction; during foreclosure; 746. Damages may be recovered for injury to the possession 747. Action not to be prejudiced by alienation, pending suit. 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- 739. (§ 255.) NOTE.-If the defendant while disclaiming, denies 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. 741. |