appeal was correctly decided by said district court of appeal. The opinion of that court in disposing of said appeal is as follows:

"The plaintiff brought this action to recover from the city and county of San Francisco the money paid by him to redeem a certain lot of land from sale made to the state of California for delinquent taxes thereon. A demurrer to the complaint was sustained, and the plaintiff has appealed from the judgment of dismissal entered thereon.

"It is alleged in the complaint that the tract of land so sold to the state, and for the redemption of which the plaintiff paid the money into the city treasury, was at the time of said sale, and had been for many years prior thereto, and is now, a portion of Caroline Street, an open public street duly dedicated to public use, and that notwithstanding it had been so opened, used, and dedicated as a public street, the city and county assessor did, in the year 1896, unlawfully and in disregard of the law in such cases, assess for state and county taxes a portion of said street one hundred feet in extent southeasterly from its terminus at the southerly line of Howard Street, as if it were private property and not a public street; that on the third day of July, 1897, said portion of said street was sold to the state of California to pay said unlawful assessment for taxes against it; that thereafter the tax-collector for San Francisco, pursuant to directions from the state controller, advertised said parcel of land for sale; that in order to prevent said sale, and while said tax-collector was threatening to sell the same, the plaintiff paid to the treasurer of said city and county the sum of $805.53 to redeem said land from the said illegal assessment, and to prevent and stop the said sale thereof; that he was compelled to pay the same to prevent said street from being closed and its use to him destroyed for two or more years, and that he paid the same under coercion and protest in writing; that the plaintiff was at the time of said payment, and had been for many years, the owner of a lot of land fronting on said Caroline Street, but not abutting on that portion thereof so assessed and sold to the state; and that his said lot would be greatly impaired in value if said portion of Caroline Street should be closed and he be thereby deprived of egress and ingress to and from his lot through the same.

"The plaintiff is not proceeding under section 3804 of the Political Code, as he did not obtain an order from the board of supervisors that the money paid by him to the treasurer be refunded. Section 3819 of the Political Code has no application. That section provides that the 'owner' of any property assessed, who may claim that the assessment is void, may pay his tax under protest, specifying the grounds of the protest; and that when so paid under protest the payment shall not be regarded as voluntary. The plaintiff herein was not the 'owner' of the land assessed nor of any land bordering or adjoining that portion of Caroline Street, and had no opportunity of egress from his lot upon that portion of the street assessed, and his interest in that portion of the street was no different from that of any other proprietor whose lot bordered upon any other portion of the street. (See Symons v. San Francisco, 115 Cal. 555, [42 Pac. 913, 47 Pac. 453].)

"The payment of the money by the plaintiff, with full knowledge of the facts under which it was made, was voluntary, and under well-established rules cannot be recovered. The assessment by the city and county assessor of a portion of an open public street was made, as is stated in the complaint, 'unlawfully and in disregard of the law in such cases,' and the plaintiff is presumed to have known that it was so made without any authority and created no lien upon the land so assessed. The sale and conveyance to the state for a delinquent tax upon such assessment transferred no title. to the state, and the threatened sale by the tax-collector in no respect affected the rights of the public to the use of the street or to have it remain open and unobstructed. A grantee from the state under such sale by the tax-collector would acquire no right in the land, or, by reason of such sale, be authorized to close the street from use by the public. There was therefore no compulsion or coercion upon the plaintiff, or any duress or threatened exercise of power over his person or property, and his protest did not have the effect to take from the payment its voluntary character. (Brumagim v. Tillinghast, 18 Cal. 265, [79 Am. Dec. 176]; Phelan v. San Francisco, 120 Cal. 1, [52 Pac. 38].) The demurrer to the complaint was therefore properly sustained. The judgment is affirmed."

We are satisfied with the foregoing reasoning of the district court of appeal in the matter and with the conclusion reached by it.

The judgment is affirmed.

[8. F. No. 3925. Department One.-January 7, 1907.]

FREDERICK BROWN, Appellant, v. JAMES REA, SAN JOSE AND SANTA CLARA RAILROAD COMPANY, and GEORGE W. ELDER, Respondents.

PUBLIC NUISANCE-RIGHT OF PRIVATE ACTION.-A public nuisance may inflict upon an individual such peculiar injury, different in kind, and not merely in degree, from that suffered by the general public, as to entitle him to maintain a separate action to abate it, and to recover damages therefor. ID.-OBSTRUCTION TO HIGHWAY-RAILROAD RIGHTS OF ABUTTING OWNERS. Ordinarily an unauthorized and illegal obstruction to a highway is a public nuisance; and it may constitute a private nuisance as well to an abutting owner, if it obstructs his easement to a right of access from his land to the highway and from the highway to his land. But the operation of a railroad upon a street is not as to abutting owners per se a nuisance. It may or may not be a nuisance, according to the manner of its construction and operation, and to surrounding circumstances.

ID. INJUNCTION NOT SUPPORTED-MERE OPERATION OF RAILROAD.-The mere fact that railroad-cars are to be operated in a street adjoining plaintiff's property does not show any such peculiar injury to him as will justify an injunction restraining the construction and operation of the railroad.

ID. PLEADING

INSUFFICIENT COMPLAINT. A complaint seeking to enjoin a railroad as an obstruction to the right of access of the plaintiff, which does not set forth any facts which show that his right of access has been obstructed by the work already done, or will be obstructed or impaired by the work to be done, but merely alleges his opinions and conclusions on that subject; and alleges that the defendants are constructing and intend to operate a fourtrack railroad upon the street in front of his premises, without stating the width of the street or the location or manner of construction of the ties and rails, or how often or in what manner cars or motors will be run upon them, or whether it will be a steam or a street railroad, does not state a cause of action justifying an injunction restraining its construction and operation.

ID. DAMAGES NOT SUSTAINED.-A complaint, whether seeking damages or an injunction, which fails to show some actual or threatened injury to a private property right of the plaintiff is insufficient to justify either. The allegation that the proposed work will "greatly lessen and diminish the value" of the property is too indefinite; and an averment that defendants have commenced excavating the street, and made a deep and wide trench therein "which greatly obstructs and impedes traffic on the street,'' is also too indefinite; and where there is no averment that the trench is in front of plaintiff's premises, or that it obstructs plaintiff's ingress and egress, the complaint fails to show a cause of action, for damages as well as for an injunction.

APPEAL from a judgment of the Superior Court of Santa Clara County. Hiram D. Tuttle, Judge.

The facts are stated in the opinion of the court.

William P. Veuve, for Appellant.

Louis O'Neal, and Owen D. Richardson, for Respondents.

SLOSS, J.-The plaintiff filed a complaint alleging the following facts: That he is the owner of a lot of land in the city of San Jose, having a frontage of 88.6 feet on North Market Street, a public street of the city; that upon this lot there is a building in which plaintiff is carrying on a wholesale grain and produce business; that in the conduct of said business it is necessary to use large drays and wagons to carry the merchandise to and from said premises, and that said trucks and wagons need free and unobstructed access and ingress in and to said premises from Market Street. The complaint alleges that the defendants wrongfully and without right threaten and intend to enter Market Street and the part thereof immediately in front of plaintiff's premises for the purpose of laying ties and rails thereon in the construction of two railroads, each of which will have double tracks, and that the defendants have actually commenced the digging and excavating of the street, and have already made a deep and wide trench therein which greatly obstructs and impedes the traffic on said street, and that the defendants threaten and intend to continue to tear and excavate the street and the part thereof immediately in front of plaintiff's premises, to lay

ties and rails thereon, and, when the same are laid, to permanently run cars and motors thereon; that the occupation and use of said street and the part thereof adjoining plaintiff's premises and business house will irreparably injure and damage plaintiff and will greatly endanger and obstruct the use of plaintiff's premises, and will particularly and irremediably impair the right and easement of access thereto and egress therefrom, and will greatly obstruct, hamper, and impede plaintiff in the carrying on of his business on said premises, and will greatly lessen the value thereof, and will irremediably impair and destroy plaintiff's rights in Market Street and his easement of access to and ingress in and to and egress from his said premises; that plaintiff has already suffered damage by reason of the premises in the sum of one thousand dollars. The prayer of the complaint is for said sum of one thousand dollars and for an injunction restraining the defendants from digging and making any excavation in Market Street, or laying ties and rails thereon, or running cars thereon for any purpose.

The railroad company and the defendant Elder demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. Defendant Rea demurred upon the same ground, and further specified certain particulars in which, as he claimed, the complaint was uncertain.

The demurrers being submitted to the court, an order was made sustaining all of them, with leave to the plaintiff to amend within ten days. No amendment having been made within the time allowed, the defendants had judgment against the plaintiff for their costs. From this judgment the plaintiff appeals.

It is unnecessary to consider any of the special grounds of demurrer urged by the defendant Rea, since we are satisfied that the general demurrers were properly sustained. Apparently the plaintiff attempted in his complaint to allege facts showing a threatened nuisance, the maintenance of which would be especially injurious to him. A nuisance is defined in the Civil Code (sec. 3479) as "anything which is injurious to health, or is 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, or unlawfully