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mentioned": Seelers v. Bell, 94 Fed. 801, 36 C. C. A. 502. If a register in bankruptcy allows a bankrupt, who is engaged in commerce, a watch of small value as exempt, this is proper, as such watch is a necessary article of wearing apparel: In re Steele, 2 Flip. 324, Fed. Cas. No. 13,346.

Articles of jewelry belonging to a bankrupt do not come under the description of wearing apparel, and if not set apart by the assignee, must be surrendered by him, but articles of a similar nature, belong ing to the wife of the bankrupt, if belonging to her before her marriage, do not vest in the assignee or, if presented to her after her marriage, and are suitable to her condition and circumstances in life, may likewise be retained by her: In re Kassen, 4 L. R. 489, Fed. Cas. No. 7616. If the statute exempts from exemption all wearing apparel of the debtor, a bankrupt is entitled to claim as exempt a diamond stud valued at two hundred and fifty dollars habitually worn by him for years past in the front of his shirt, and for the purpose of fastening it together when there is no circumstance connected with its acquisition or use tending to show fraud or bad faith toward his creditors: In re Smith, 96 Fed. 832; contrary to the holding in Towns v. Pratt, 33 N. H. 345, 66 Am. Dec. 726. A bosom pin worn by the widow of a deceased is deemed wearing apparel and exempt, and should be set off to her: Sawyer v. Sawyer, 28 Vt. 249. On the other hand, it has also been decided that the breastpin of the wife of a bankrupt cannot be considered as wearing apparel or necessaries and as such exempt: In re Ludlow, 1 N. Y. Leg. Obs. 322, Fed. Cas. No. 8599,

CASES

IN THE

SUPREME COURT

OD

CALIFORNIA.

CUSHING-WETMORE CO. V. GRAY.

(152 Cal. 118, 92 Pac. 70.] NUISANCE, Action to Recover Damages for.-An action at law may be maintained for damages caused by a nuisance without seeking its abatement. (p. 48.)

PRACTICE-Findings, Want of.-In an action wherein find. ings by the court are essential, if the record does not show that they were not waived, it will be presumed that they were made so far as required. (p. 48.)

NUISANCE, Public, Special Injury Warranting the Maintain. ing of an Action for Damages.-One who owns real property fronting upon public streets and maintaining a business on his property may sustain an action for damages resulting from the obstruction of such streets at points not opposite his property, but so situated as to prevent all ingress and egress to and from his property and business. (p. 50.)

EASEMENT in Public Street.—The owner of property abutting on a public street bas, by reason of such ownership, a special easement in such street for purposes of ingress and egress, which is property as much as the lot itself. (p. 51.)

NUISANCE, When Both Public and Private.—An obstruction in a public street which has the effect of preventing access to the premises along the street is a private as well as public nuisance, to the same extent as one which prevents access from the premises to the streets immediately in front of the land. (p. 51.)

STREETS, Public, When Open Sufficiently to Sustain an Action for Obstructing.-If it appears that a sufficient width along a street was open for use as a roadway, and was in fact so used, an action is sustainable for obstructing the street, although the part 80 used was where the sidewalk would be if any were constructed. (p. 52.)

DAMAGES for Obstructing Public Street-Value of the Time of the Plaintiff's Officers.-In an action by a corporation to recover damages for the obstructing of a public street so that plaintiff's access to its property and business was cut off and its business destroyed, it cannot recover for the value of the time of its officers on the ground that such time was wholly occupied in defending the corporation against the attacks of the defendant and in preparation for the trial of the action, where there is also a recovery for loss of profits, expenses incurred, and the injury to plaintiff resulting from the obstruction. (p. 52.)

Fisher Ames and J. E. Manning, for the appellants.
Wright & Lukens, for the respondent.

119 ANGELLOTTI, J. These are appeals from a judgment in favor of plaintiff for five thousand dollars' damages and from an order denying defendants' motion for a new trial.

1. Counsel for the respective parties differ as to the character of the case made by the complaint, counsel for plaintiff claiming that the action is one at law for damages for injury to plaintiff's business, caused by malicious and oppressive conduct of defendants deliberately intended to injure such plaintiff and “drive plaintiff out of the field as a competitor with the defendants," while counsel for defendants claim that the action is one in equity for the abatement of an alleged nuisance, and incidentally for the damage caused thereby. We regard this question as immaterial on these appeals, even if it be conceded that an action for the abatement of a nuisance is, under our present constitution, an action within the equitable jurisdiction of the court, and to be governed by the principles prevailing in that jurisdiction: See McCarthy v. Gaston etc. Co., 144 Cal. 542, 78 Pac. 7. The case was tried upon the theory that it was solely an action at law for damages, and the judgment given was one for damages only, no abatement of any nuisance being decreed. It is, of course, not disputed that one may maintain an action at law 120 for damages caused by a nuisance, without seeking an abatement of the nuisance. We are satisfied from the record before us that this must be treated as such an action. Under these circumstances the objection that no findings of fact were made and filed by the judge, and that the judgment was wholly based on the verdict of the jury, is without force. In this connection, however, it is proper to say that if findings by the court were essential, the record does not affirmatively show that such findings were not waived, and, under such circumstances, the presumption is that findings were made so far as required: See Richardson v. City of Eureka, 110 Cal. 441, 42 Pac. 965; Baker v. Baker, 139 Cal. 626, 73 Pac. 469; . Tomlinson v. Ayres, 117 Cal. 568, 49 Pac. 717.

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2. It is contended that the complaint failed to state a cause of action. This contention is based on the fact that the alleged acts causing the injury to plaintiff were the placing of obstructions in certain public streets of the city and county of San Francisco. The obstruction of a public street or highway constituting a public nuisance, and the law authorizing a private person to maintain an action for a public nuisance only where it is specially injurious to himself (Civ. Code, sec. 3493), it is urged that the complaint fails to show any cause of action in favor of plaintiff.

The complaint shows plaintiff to be the owner of certain real property on Lombard and Winthrop streets (the obstructed streets), on which it was engaged in the business of quarrying, crushing and selling rock, and that the obstructions alleged, while not immediately in front of plaintiff's property, and therefore not impeding plaintiff in the right to go upon the obstructed streets from its property, or upon its property from the obstructed streets, were so placed upon said streets at other points as to prevent all ingress to and egress from plaintiff's quarries by plaintiff's wagons, teams, carts and appliances of its business. It is alleged that plaintiff had for several years been engaged in its business on this property, operating a rock-crusher and reduction works with a capacity of one hundred and eighty tons of rock per day, and delivering therefrom to customers an average quantity of seventy-five tons each day; that defendants, on May 3 and 5, 1899, wantonly and maliciously, and for the purpose of 121 injuring plaintiff's business, obstructed said Lombard street in such a way as to totally obstruct all passage and access of plaintiff's wagons, etc., to and from its quarry, and that plaintiff having thereupon procured a private right of way leading from Winthrop street, defendants for the same purpose, on May 20, 1899, and again on July 30, 1899, obstructed said Winthrop street, with the same result, thus totally stopping the business of plaintiff. It is further alleged that by reason of such obstruction plaintiff has been compelled to repair and reopen the roadways, and to purchase rights of way over private lands and purchase rock and material, to its damage in the sum of five thousand dollars, has been prevented from fulfilling contracts, lost custom and trade, and been deprived of profits in the further sum of ten thousand dollars, and that the credit and business of the plaintiff has been injured in the further sum of ten thousand dollarg.

Am. St. Rep., Vol. 125%

We are of the opinion that this shows such special injury to plaintiff as authorized the maintenance of the action by it. The case is practically the same as that made by the complaint in the case of Gardner v. Stroever, 89 Cal. 26, 26 Pac. 618, where the injury complained of was an obstruction in a public highway between the plaintiff's slaughter-house and a connecting highway, which completely prevented plaintiff, maintaining a meat market in the town of Oroville, from bringing his meat to town to supply his customers, to the injury and destruction of his business. It is said that this decision is in conflict with the doctrine of the earlier cases of Aram v. Schallenberger, 41 Cal. 449, and San Jose Ranch Co. v. Brooks, 74 Cal. 463, 16 Pac. 250, wherein it was held that allegations simply to the effect that the plaintiff had no means of access to his land except over and along the obstructed road did not show such special injury, in addition to that suffered by the public, as would authorize the maintenance of the action. The former of these cases was an action for an injunction to prevent a proposed obstruction of a highway affording the only means of access to the plaintiff's property. The only allegation of damages was that plaintiffs had no other means of access, neither injury to the property nor interference with any use plaintiffs were making or desired to make of the land being averred. In San Jose Ranch Co. v. Brooks, 74 Cal. 463, 16 Pac. 250, the allegation was simply that the 122 obstruction prevented the plaintiff “having ingress or egress to and from a tract of land which it owned situated at a point in a canyon above the place where the obstruction is placed, and which prevents it from making any use of its land which it desires.” It did not affirmatively appear that an use was then being made of the property, or that any particular use was then contemplated. The theory upon which these decisions is based is that the only injury done in such a case is the obstruction of the party in his right of passage over the highways, and that this injury is the same in kind as that suffered by all of the general public who may have occasion to travel over the road, although the inconvenience may be greater in degree in the one case than in the other. Neither of these cases goes to the extent of holding that an obstruction in a public highway absolutely preventing all access to and egress from one's land may not cause such an interference with the use of the land for the purposes to which it is devoted, and the injury to, and suspension of, a business there established and carried on as will constitute special injury to the owner of the property different in kind

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