obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway." Section 3480 of the Civil Code defines a public nuisance as "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.". Generally speaking, a public nuisance does not furnish ground for action by a private person, but such public nuisance may inflict upon an individual such peculiar injury as to entitle him to maintain a separate action for its abatement, or to recover damages therefor. (Civ. Code, sec. 3493.) The injury to the individual must, however, be different in kind and not merely in degree from that suffered by the general public. (Aram v. Schallenberger, 41 Cal. 449; Bigley v. Nunan, 53 Cal. 403; Hogan v. Central Pacific R. R. Co., 71 Cal. 87, [11 Pac. 876].) Ordinarily, an obstruction to a highway, if unauthorized and illegal, is a public nuisance. The injury is to the right to travel upon the highway, which right resides in the public generally. Such obstruction may, however, constitute a private nuisance as well. Every owner of land abutting upon a highway has a right of access from his land to the highway and from the highway to his land. This right of access is an easement, and an obstruction to the highway which at the same time obstructs this easement is a peculiar injury to the abutting landowner and gives him a cause of action. (Hargro v. Hodgdon, 89 Cal. 623, [26 Pac. 1106].)

The plaintiff undoubtedly sought to allege such an obstruction of this easement as would constitute a peculiar injury to him. But in the complaint he does not set forth any facts which show that this right of access has been obstructed by the work already done, or will be obstructed or impaired by the work to be done. It is true that he asserts repeatedly that the construction and operation of the railroad will have such effect, but this is merely an allegation of his conclusions and opinions, and cannot be considered as stating a cause of action. The facts alleged are merely that the defendants are constructing and intend to operate a four-track railroad upon the street in front of his premises. These facts alone do not make it appear to the court that the plaintiff's right of

passage between the street and his premises will be in any degree affected. The operation of a railroad upon a street is not, as to abutting owners, a nuisance per se. It may or may not be a nuisance, according to the manner of its construction and operation and the surrounding circumstances. In the present case the complaint does not allege the width of the street, the location upon the street of the proposed ties or rails, whether or not the ties or rails when completed will project above the surface of the street, how often or in what manner cars or motors will be run upon the rails, or any circumstances showing anything more than that a railroad will be operated upon a street adjoining the plaintiff's premises. It is not even stated whether or not the proposed railroad is a street railroad. The mere fact that railroad-cars are to be operated on 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.

We do not overlook the consideration that, under the constitutional provision that "private property shall not be taken or damaged for public use without just compensation having first been made" (Const. Cal., art. I, sec. 14), damages may be recovered by an abutting owner for any public use of a street which damages his adjoining property, or his easement of access to and from the street. (Eachus v. Los Angeles Ry. Co., 103 Cal. 614, [42 Am. St. Rep. 149, 37 Pac. 750]; Kishlar v. Southern Pacific R. R. Co., 134 Cal. 636, [66 Pac. 848]; St. Clair v. San Francisco etc. Ry. Co., 142 Cal. 647, [76 Pac. 485]; Smith v. Southern Pacific R. R. Co., 146 Cal. 164, [106 Am. St. Rep. 17, 79 Pac. 868].) And, perhaps, a proposed use could be enjoined until the payment of the damage which would follow such use. But the complaint, whether seeking damages after the construction, or an injunction before, must show some actual or threatened injury to a private property right of the plaintiff, and this the present complaint fails to do. The allegation that the proposed work will "greatly lessen and diminish the value" of the property is, like other statements, a mere averment of opinion or conclusion too general and indefinite to afford a basis for relief by injunction.

So far as this is an action to recover damages for past

injury, the allegations of the complaint are open to the same criticism directed against the averments of threatened acts. All that is stated is that the defendants have already commenced digging and excavating the street, and "made a deep and wide trench therein, which greatly obstructs and impedes traffic on said street." There is no allegation that this trench is in the part of the street in front of the plaintiff's premises, nor is it averred, even by way of conclusion, that the trench obstructs the plaintiff's ingress to or egress from his premises. Even if the trench were shown to be immediately opposite plaintiff's property, its character and dimensions are not described. The words "wide and deep" convey no such definite idea as is required in a pleading of this character. Since the only fact alleged as a basis for the recovery of damages is the excavation of this trench, it follows that the complaint fails to show a cause of action for damages, as well as for an injunction.

There is abundant authority in support of the principal proposition discussed in this opinion,-i. e. that in an action to enjoin a nuisance there must be, not merely an allegation of the plaintiff's opinion or conclusion as to the effect of the proposed act, but a statement of facts from which the court may draw the conclusion that a nuisance will result. Some of the cases illustrating this rule are Payne v. McKinley, 54 Cal. 532; Dunn v. City of Austin, 11 S. W. (Tex.) 1125; Bowen v. Mauzy, 117 Ind. 258, [19 N. E. 526]; Begein v. Anderson, 28 Ind. 79; Kingsbury v. Flowers, 65 Ala. 479, [39 Am. Rep. 14]; Adams v. Michael, 38 Md. 123, [17 Am. Rep. 516]; Thebaut v. Canova, 11 Fla. 167; Reynolds v. Presidio and Ferries Ry. Co., 1 Cal. App. 229, [81 Pac. 1118]. See, also, note to Ryan v. Copes, 73 Am. Dec. 106. The judgment is affirmed.

Angellotti, J., and Shaw, J., concurred.

[S. F. No. 3786. Department Two.-January 7, 1907.]

FRED H. MEYER, Respondent, v. JOHN F. O'ROURKE, Executor of Will of Patrick O'Rourke, Deceased, Appellant.

QUIETING TITLE-SUFFICIENCY OF COMPLAINT OWNERSHIP IN FEE.-A complaint in an action to quiet title which alleges that "plaintiff now is, and for some time hitherto has been, the owner and in possession of the land described, and that "defendant claims some title or interest therein, and has none,'' states a cause of action, and is to be construed as alleging “ownership in fee' in the plaintiff. ID.-ISSUES-PLEA OF OWNERSHIP IN FEE SIMPLE-GENERAL FINDING FOR PLAINTIFF.-Where the answer took issue upon the complaint and pleaded "ownership in fee simple" in the estate of a deceased person, a general finding for plaintiff that "each and all of the allegations of plaintiff's complaint are true and are sustained by the evidence" is sufficient to support a judgment for the plaintiff, notwithstanding failure to find upon the plea of such ownership in fee simple.

ID.-COSTS - PERSONAL JUDGMENT AGAINST EXECUTOR - DISCRETION

UNNECESSARY FINDING.-The costs in an action to quiet title against an executor, which was contested by him, are an incident to a judgment for the plaintiff; and it was within the discretion of the court to award the costs against the executor personally, without any necessity of finding mismanagement or bad faith of the

executor.

ID.-GENERAL RULE AS TO COSTS AGAINST EXECUTOR INDIVIDUALLY—

APPLICATION TO PROBATE COURT.-In the absence of special statutes as to costs against an executor, the general rule is that costs should be imposed upon the executor individually, leaving him the right to seek an allowance for payment thereof from the probate court, which may allow it or not, according as his conduct in the suit may appear to it discreet or otherwise.

ID.-APPEAL BY EXECUTOR - CONSTITUTIONALITY OF STATUTE NOT INVOLVED REMEDY BY INDIVIDUAL MOTION AND APPEAL.-Upon appeal by the executor as such from the costs awarded against him, the estate is not an aggrieved party entitled to raise the question of the constitutionality of section 1509 of the Code of Civil Procedure. In order to have his objection thereto considered, he should have connected himself individually with the proceedings by motion for relief from the costs, and appeal in his individual capacity as a party aggrieved.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.

CL Cal.-12

The facts are stated in the opinion of the court.

Robert P. Troy, for Appellant.

Vogelsang & Brown, and Bertin A. Weyl, for Respondent.

HENSHAW, J.-This was an action to quiet title, brought against John F. O'Rourke as executor of the last will of Patrick O'Rourke, deceased. The complaint alleged "that plaintiff now is, and for some time hitherto has been, the owner and in possession of that certain piece of land," describing it. The answer was denial, with an allegation "that the real property in said complaint described is owned in fee simple by the said estate of Patrick O'Rourke, deceased." After trial the court found that "each and all of the allegations of plaintiff's complaint are true and are sustained by the evidence." It is urged that the findings are insufficient to support the judgment, in that there is a failure to find upon the affirmative allegation of the answer that the estate of Patrick O'Rourke owned the property in fee simple. A complaint which alleges that plaintiff is the owner and in possession of certain lands, and that defendant claims an estate or interest therein, but has none, states a cause of action. (Rough v. Simmons, 65 Cal. 227, [3 Pac. 804].) The ownership and right of possession, as unqualifiedly averred in the complaint, is an allegation of ownership in fee. (Civ. Code, secs. 680, 761, 762.) The finding of the court, therefore, that all the allegations of the complaint are true, is sufficient to support the decree which was given in plaintiff's favor.

But the principal contention on this appeal is against the award of costs. The court awarded costs against John F. O'Rourke personally. The provisions of the Code of Civil Procedure bearing upon this are sections 1031 and 1509. Upon authority of former decisions of this court, construing and applying those sections,-viz. Hicox v. Graham, 6 Cal. 167, and Stevens v. San Francisco etc. R. R. Co., 103 Cal. 252, [37 Pac. 146],-the order the court here made was within its discretion. Most of the matters presented against this award were urged in Stevens v. San Francisco etc. R. R. Co., 103 Cal. 252, [37 Pac. 146], and must be taken to have been decided adversely to the present contention. The Stevens