Stamm v. City of Albuquerque

PARKER, J. Statute of limitations: prescription: private nuisance. 1. The first proposition presented by this record is as to the acquisition of a right to maintain a private nuisance by prescription. Theoretically, the right may be thus acquired, but practically there are very few cases in which it can be established. Wood’s Law of Nuisances, (2nd Ed.) Sec. 712. Thus one claiming such a right assumes the burden of showing that for the full period of the statute of limitations he has asserted and exercised the right to violate the law to the extent and with the re-suits charged and proved against him (Id. Sec. 713) with the practical acquiescence of the person injured (Id. Sec. 718), and to the extent that during the whole time an action would lie against him (Id. Sec. 715, 716). Applying these principles to the case at bar, it seems clear that no prescriptive right to maintain a private nuisance has been made out. The most that is claimed by ap-pellee is that it has a prescriptive right to maintain the ditch in question over the premises of appellants, and that it has been maintained in practically its present condition for more than ten years. On the other hand appellants show that in 1891 or 1892 upon their refusal of permission to go upon their premises to enlarge said ditch, appellee with their permission, constructed a covered flume through which the ditch was carried across said premises, and that after said flume decayed and fell in. they notified appellee to repair same, which it failed to do; that the proposed tearing out of the flume and leaving of the ditch open will greatly increase and aggravate the injury. There is no proof that the nuisance in its present or proposed form, or otherwise, has' existed for more than ten years. It will thus be seen that the proofs fail in every particular to establish a prescriptive right to maintain the ditch so as to be a nuisance to appellants. Appem-ate practice: review of finding by trial court. 2. It appears from the evidence that a private nuisance to appellants is made out, and there is no evidence to the contrary. This case involves no discussion of the effect of findings by a trial court upon conflicting evidence, for we find no evidence nor any attempt to produce any in the record to dispute that of appellants on this subject. There was manifest error, therefore, in the finding of the court that the allegations of the complaint on this subject were not sustained. Private nuisance: abatement: gist of action. 3. As before stated, there was much controversy -in the court below whether the question as to the ditch being a public nuisance was in issue, and this was made the basis of most of the objec-ti°ns on the part of appellee to the introduction of testimony. But it will be seen that the true distinctions were lost sight of. The gist of this action, as it would be in an action for damages, is the injury to the appellants. The public right of the community through which the ditch runs, the private right of the inhabitants similarly situated to the appellants, and the rights of appellants have nothing to do with each other. Wood’s Law of Nuisances, Secs. 676, 681. It is a matter of no concern to appellants in this proceeding that the public generally, or the inhabitants along the line of the ditch in particular, suffer injuries from the same, so long as the injury to appellants be removed. It was, therefore, perfectly immaterial in this case for the appellants to show that the ditch was a menace to the health of the public generally, or that other persons living along its line suffered injuries similar to those experienced by them. We think the court properly excluded this testimony. We do not wish to be understood as denying that in a proper case of this kind it may become material to show that a private nuisance is also a public nuisance, so that the prescriptive right to maintain the nuisance may be thus defeated. But no such necessity arose in this case. It was, however, material for appellants to show, if they could, that the ditch, by reason of its character and situation was inherently a nuisance and incapable of maintenance by appellee so as not to be a nuisance to appellants. The question was not whether it would be kept in a harmless condition by the city, but whether it could be so kept with reference to appellants. We have examined the testimony and the assignments of error, and find no offer of such testimony which was excluded, and there was much testimony to the effect that with proper care as to cleanliness the ditch could be maintained without danger or offense to the inhabitants along its line, including appellants. The court passed upon this testimony and found against appellants, and there is no reason to disturb his finding. For the reasons stated the cause will be reversed and' remanded with instructions to set aside the decree of dismissal and enter a decree in favor of appellants, prohibiting-the maintenance of said ditch over appellants’ premises in any manner other than by a covered flume of a size not to exceed the present flume, and from otherwise so maintaining the same as to continue the nuisance complained of, and it is so ordered. Mills, C. J., and McFie, J., concur; Leland and Crum-packer, JJ., did not participate in this decision.