The Code of Civil Procedure, section 731, defines an actionable nuisance as follows: "Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered." In order to maintain his action, it was necessary, therefore, for the plaintiff to prove that the trees complained of constituted a nuisance within the definition above given. The court, as we have seen, found that the plaintiff's proofs were not sufficicut, and the only question is, Were the findings justified by the evidence? In the bill of exceptions found in the transcript the evidence is not set out, but it is stated that "there was a conflict of testimony as to whether either the shade or roots of the trees injured plaintiff's land, and as to whether said roots prevented plaintiff from plowing his lands as near said fence as he otherwise could, and as to whether either the shade or roots of said trees had an injurious effect upon the crops of alfalfa which plaintiff was in the habit of growing upon that part of the land where said line of trees partly shaded them." It is also stated that it appeared from the evidence, without conflict, that plaintiff's land was rich and valuable, and was used for raising vegetables and alfalfa, and that the effect of the branches and shade would be injurious to the growing of fruit-trees upon that part of his land which was overhung by the branches and shaded by the trees. It is also stated that "the plaintiff had never planted any fruit-trees adjacent to the line of trees in controversy, nor anywhere near them," and it is not stated that he ever proposed or intended to do so. It is urged for appellant that the trees were a nuisance, because they interfered with and prevented his enjoying the free and full use of his land for growing fruit-trees. But we are unable to see how it can be said that land is injuriously affected, or that its owner's personal enjoyment is lessened, because he cannot use it for a purpose which he has never attempted or wished to use it for. The cases cited in support of this point do not sustain it. In Meyer v. Metzler, 51 Cal. 142, the court said: "It is found as a fact that the projection of defendant's west wall prevents the plaintiff from raising and repairing his own building, which improvement it is also found that he is desirous of making." And it was held that this amounted to an obstruction of the free use of the plaintiff's property, and was therefore a nuisance. Grandona v. Lovdal, 70 Cal. 161, the complaint alleged direct and positive damage done to the plaintiff's land by the supposed nuisance, and the court held that it was not subject to a general demurrer. In In Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56, it was held that "one who maintained a vault so that with his knowledge filthy water habitually filters from it, whether above or below the surface of the ground, into land of a neighbor, where it injures a cellar and well, is liable in damages for the injury, without other proof of negligence." In Commonwealth v. Blaisdell, 107 Mass. 234, it was simply held that steps projecting from a house into a highway so as to obstruct it are a nuisance at common law, and under the statute of Massachusetts. It is specified that the evidence was insufficient to justify the decision, because it appeared that the trunks had crowded the division fence over and upon plaintiff's land, and thereby ousted him from a part of his land. But the plaintiff had never been called upon to repair that part of the fence, and had never been prevented from plowing and cultivating his land as near the line as he could if the trees had not been there. His property was therefore not injuriously affected, nor his personal enjoyment lessened by the crowding. Besides, the trees and the overhanging branches, in so far as they were on or over his land, belonged to the plaintiff, and he could have cut them off or trimmed them at his pleasure. This being so, we do not see how the fact that the trees had grown so that a small part of them was on plaintiff's land could give him any cause of action. It is further specified that the decision was contrary to the evidence, for the reason that defendant maintained the trees for the purpose of supplying himself with fuel and hop-poles, and thereby using plaintiff's land for his own profit and advantage. But how can this maintain plaintiff's contention? The fuel and hoppoles growing over plaintiff's land were his, and could have been claimed by him as against the defendant. And the fact that the balance of the limbs and branches were useful to defendant in no way harmed the plaintiff or gave him cause for complaint. We conclude that the judgment cannot be reversed on the ground that the decision was contrary to the evidence or the law; and as no errors of law are specified or relied upon, we advise that the judgment and order be affirmed. FOOTE, C., concurred. The COURT.-For the reasons given in the foregoing opinion, judgment and order are affirmed. [No. 12698. In Bank.-April 19, 1889.] JOHN CURTIN, RESPONDENT, v. PHENIX INSURANCE COMPANY, APPEllant. FIRE INSURANCE-DEFAULT IN PAYMENT OF PREMIUM NOTE-SUSPENSION OF POLICY-WAIVER-RECEIPT OF Part of PREMIUM.-A policy of fire insurance contained a provision that "in case the assured shall fail or refuse to pay the premium note when due, this policy shall then and thenceforward be and remain null and void, and the same cannot be revived without the written consent of the company; but this shall not prevent this company collecting, by suit or otherwise, the premium note; . . . . nor shall such attempt or suit be construed to revive this policy; but the same shall be and remain null and void during such default, and until said assured shall pay such premium note, . . . . and in such case this policy shall be revived." Held, that during the default of the assured in paying the premium note the policy was suspended, and that the receipt by the company of a part payment of the note after its maturity did not operate to waive the suspension. ID. INSUFFICIENT PAYMENT TO COMPANY.-Where the premium note provides that payment thereof should be made at a particular place, and the policy provides that no agent of the company, except the general agent at that place, should have power or authority to waive or alter any of its terms or conditions, a payment made by the assured to a local agent of the company at a different place is not a payment to the company. APPEAL from a judgment of the Superior Court of Tuolumne County, and from an order refusing a new trial. The facts are stated in the opinion of the court. Without payment of the premium there was no liability on the part of the defendant for the loss. (Bergson v. Builders' Ins. Co., 38 Cal. 541; Continental Ins. Co. v. Daly, 33 Kan. 605; Garlick v. Ins. Co., 44 Iowa, 553; Gorton v. Ins. Co., 39 Wis. 121.) The local agent of the company had no authority to accept payment of the note in lumber. (Hoffman v. Hancock Ins. Co., 92 U. S. 161; Buffum v. Fayette Ins. Co., 3 Allen, 361; Hoyt v. Mut. Ben. Ins. Co., 98 Mass. 544; How v. Union Mut. Life Ins. Co., 80 N. Y. 39; Brown v. Ins. Co., 59 N. H. 309; Dou bleday v. Kress, 50 N. Y. 415; Story on Agency, sec. 98; Mudgett v. Day, 12 Cal. 139.) F. D. & G. W. Nicol, for Respondent. The defendant, by its acts, declarations, and conduct, waived the forfeiture of the policy for non-payment of the premium. (Insurance Co. v. Norton, 96 U. S. 234; Insurance Co. v. Eggleston, 96 U. S. 573; Appleton v. Phenix Ins. Co., 59 N. H. 541; 47 Am. Rep. 220.) The receipt of part payment on the premium note was a waiver of the breach. (Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154; 49 Am. Dec. 234; Viall v. Genessee Mut. Ins. Co., 19 Barb. 440; Insurance Co. v. Norton, 96 U. S. 243; Eureka Ins. Co. v. Robinson, 56 Pa. St. 256; 94 Am. Dec. 65; McCraw v. Old North State Ins. Co., 78 N. C. 149; Meyer v. Ins. Co., 73 N. Y. 527; 29 Am. Rep. 200; North Brunswick Co. v. New England F. & M. Ins. Co., 52 Me. 336; New York Ins. Co. v. Nat. Prot. Ins. Co., 20 Barb. 468; Viele v. Germania Ins. Co., 26 Iowa, 9; 96 Am. Dec. 83; Silverberg v. Phenix Ins. Co., 67 Cal. 39; Keenan v. State Mut. Ins. Co., 12 Iowa, 126; Keenan v. Dubuque Mut. Ins. Co., 13 Iowa, 375; Mershon v. Nat. Ins. Co., 34 Iowa, 87.) WORKS, J.-Action on a policy of fire insurance. Defense that all of the premium had not been paid. Verdict and judgment for plaintiff. Defendant appeals. The policy was issued on June 30, 1884, and was for a term of five years. No part of the premium was required to be paid in cash on the issuance of the policy. It provided for the giving of a promissory note, which was given as follows: "$190. "On the first day of December, 1884, for value received, I promise to pay to the Phenix Insurance Company of Brooklyn, New York (at their office in San Francisco, California), $190.50 in payment of premium on policy No. C 3652 of said company, with seven per cent interest |