Oct. 11, 1862, 326. Conclusiveness of judg ment. Oct. 11, 1862, 327. Possession not' affected by or der allowing new trial. Oct. 11, 1862, $3.8. § 329. [326.] In an action to recover the possession of real property, the judgment therein shall be conclusive as to the estate in such property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the same is given, and against all persons claiming from, through, or under such party, after the commencement of such action, except as in this section provided. When service of the summons is made by publication and judgment is given for want of answer, at any time within two years from the entry thereof, the defendant or his successor in interest, as to the whole or any part of the property, shall, upon application to the court or judge thereof, be enti tled to an order vacating the judgment and granting him a new trial upon the payment of the costs of the action. Conclusiveness of judgment. of possession as between the parties, A judgment in ejectment is con- and cannot be collaterally impeached: clusive as to the legal title and right Hill v. Cooper, 8 Or. 254. § 330. [327.] If the plaintiff has taken possession of the property before the judgment is set aside and a new trial granted, as provided in section 329 [326], such possession shall not be thereby affected in any way, and if judgment be given for the defendant in the new trial, he shall be entitled to restitution by execution in the same manner as if he were plaintiff. § 331. [328.] In an action to recover the possession of real property by a tenant in dower, or his successor ment of dower in interest, if such estate in dower has not been admeas Admeasure after judg ment. 6 Or. 454. ured before the commencement of the action, the plaintiff shall not have execution to deliver the possession thereof until the same be admeasured, as follows: 1. At any time after the entry of judgment in favor of the plaintiff, he may, upon notice to the adverse party, move the court for the appointment of referees to admeasure the dower out of the real property, of which the possession is recovered by the action. The court shall allow such motion, unless it appear probable on the hearing that a partition of such property cannot be $328. Admeasure ment of dower made without prejudice to the interests of the other oct. 11, 1862, owners. In the latter case the court shall disallow the motion, and thereafter the plaintiff shall only proceed for partition or sale of such real property as provided in title V. of chapter V.; 2. If the court allow the motion, thereafter the proceedings shall be conducted as provided in such title. At any time after the confirmation of the report of the referees, the plaintiff may have execution for the delivery of the possession of the property according to the admeasurement thereof, and for the damages recovered, if any, for withholding the same, if such damages remain unsatisfied; 3. If the motion for admeasurement be made at the term at which judgment was given, the notice thereof shall be served on the adverse party at such time as the court by general rule or special order may prescribe. after judg ment. $329. Estate of donee tion law. § 332. [329.] In an action at law for the recovery of oct. 11, 1862, the possession of real property, if either party claim the property as donee of the United States under the act of under donaCongress approved September 27, 1850, commonly called the donation law, or the acts amendatory thereof, such 6 Or. 456. party from the date of his settlement thereon, as provided in said acts, shall be deemed to have a legal estate in fee in such property, to continue upon condition that he perform the conditions required by such acts, which estate is unconditional and indefeasible after the performance of such conditions. In such action, if both plaintiff and defendant claim title to the same real property by virtue of settlement under such acts, such settlement and the performance of the subsequent conditions shall be conclusively presumed in favor of the party having or claiming under the elder patent certificate or patent, as the case may be, unless it appear upon the face of such certificate or patent that the same is absolutely void. TITLE II. OF ACTIONS FOR NUISANCE, WASTE, AND TRESPASS ON § 333. Private nuisance, and action therefor; when warrant allowed to § 338. Oct. 11, 1862, $330. Action for damages for and abatement of private nuisance. 8 Or. 510. 10 Or. 392. 13 Or. 604. Actions for trespass in particular cases, and of judgment therein. § 339. Same subject. § 333. [330.] Any person whose property is affected by a private nuisance, or whose personal enjoyment thereof is in like manner thereby affected, may maintain an action at law for damages therefor. If judgment be given for the plaintiff in such action, he may, in addition to the execution to enforce the same, on motion, have an order allowing a warrant to issue to the sheriff to abate such nuisance. Such motion must be made at the term at which judgment is given, and shall be allowed of course, unless it appear on the hearing that the nuisance. has ceased, or that such remedy is inadequate to abate or prevent the continuance of the nuisance, in which latter case the plaintiff may proceed in equity to have the defendant enjoined. Nuisance; damages for and abatement of. It will be noticed that this section provides only for recovery of damages for and abatement of a private nuisance. A nuisance is said to be 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 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. A public nuisance is 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. Every nuisance not included in this definition is private: See Wood on Nuisances, sec. 1. A private nuisance results from the violation of private rights, and produces damage to but one or a few per sons. A leaning brick wall projecting over the house of an adjoining proprietor so as to prevent the raising and repairing of the house is a nuisance, although the wall is safe and secure: Meyer v. Metzler, 51 Cal. 142. So with a house the eaves of which project over the lands of another: Penruddock's Case, 5 Coke, 100. The principle is, that a person cannot use his property, even in a lawful business, so as seriously to interfere with another in the enjoyment of his property: Tuebner v. Cal. St. R. R. Co., 52 Cal. 529, a case where the defendant was compelled to build a higher smoke-stack so as to carry off the soot. A public nuisance may be a private nuisance, and a person injured thereby may have his action: Yolo Co. v. Sacramento, 36 Cal. 195; Blanc v. Klumpke, 29 Id. 156. But he can only recover if he has suffered damage peculiar to himself, and differing in kind from the public injury: Jarvis v. S. C. V. Co., 52 Id. 438; Payne v. McKinley, 54 Id. 532; Severy v. C. P. R. R., 51 Id. 194. And a complaint which does not show the fact of special or extraordinary damage in such a case is insufficient: Roseburg v. Abraham, 8 Or. 509. The facts that the parties who bring an action to abate a nuisance caused by obstructing a public road own land fronting on the road, and have no other means of access, do not show such special damage to the plaintiffs in addition to that sustained by the public as enables them to maintain the action: Aram v. Schallenberger, 41 Cal. 449. The special damage must be such as might legitimately flow from the nuisance, and must, of course, be specially pleaded: L. T. Co. v. S. W. W. R. Co., 41 Id. 564. While a party who recovers damages may have the nuisance abated (Trullinger v. Marsh, 6 Or. 356), an action cannot be maintained to abate a nuisance till it actually become such: Bear River etc. Co. v. Boles, 24 Cal. 362. The party may, however, have an injunction to stay the threatened injury to his property: Parrish Stephens, 1 Or. 73; this is the only remedy adequate to his case: Tuolumne W. Co. v. Chapman, 8 Cal. 392; Buckalew v. Estell, 5 Id. 108; Ramsay v. Chandler, 3 Id. 90; Kittle v. Pfeiffer, 22 Id. 491. v. Unless on the hearing (after recovery of damages) of the motion to abate the nuisance it appears that it has Oct. 11, 1862, ceased, or that the remedy would be $330. inadequate, the court must order the warrant provided by this section to issue. The court cannot direct defendant to abate the nuisance established on the trial, nor prescribe the mode in which it is to be done. Its jurisdiction extends to making the order allowing the warrant, leaving to the sheriff the duty to properly execute it; and the sheriff's duty is to abate the nuisance with as little injury to defendant as possible; and for any unnecessary damage he is liable to the injured party: Ankeny v. Fairview Milling Co., 10 Or. 300. In an action for damages for a private nuisance, where the plaintiff recovers a verdict, and judgment is entered thereon in his favor, and the record does not show on its face the particular nuisance established by the verdict, it is competent for the court in which the trial was had, in making the order allowing the warrant to issue for its abatement, to identify such nuisance by means of its own knowledge from the evidence introduced on the trial and applicable to the issues made in the pleadings: Ankeny v. Fairview Milling Co., 10 Or. 300. Affidavits or other documents, properly filed and considered by the court below, on the hearing of the motion for an order allowing a warrant to issue to the sheriff for the abatement of a private nuisance, constitute parts of the record of such proceeding without being made such by a bill of exceptions. There is no technical record or "judgment roll" in such cases, the statute not having prescribed of what it shall consist; therefore it includes all papers properly filed in the court below: Ankeny v. Fairview Milling Co., 10 Or. 390. § 331. Warrant, mode under. § 334. [331.] If the order be made, the clerk shall oct. 11, 1862, thereafter, at any time within six months, when requested by the plaintiff, issue such warrant directed to the sher- of proceeding iff, requiring him forthwith to abate the nuisance at the expense of the defendant, and return the warrant as soon thereafter as may be, with his proceedings indorsed thereon. The expense of abating the nuisance may be levied by the sheriff on the property of the defendant, Oct. 11, 1862, 331. Oct. 11, 1862, § 332. When defend stay. and in this respect the warrant is to be deemed an execution against property See the preceding section. § 335. [332.] At any time before the order is made, or the warrant issues, the defendant may, on motion to ant may have the court or judge thereof, have an order to stay the issue of such warrant, for such period as may be necessary, not exceeding six months, and to allow the defendant to abate the nuisance himself, upon his giving an undertaking to the plaintiff in a sufficient amount, with one or more sureties, to the satisfaction of the court or judge thereof, that he will abate it within the time and in the manner specified in such order. Oct. 11, 1862, 933. Justification of dertaking. § 336. [333.] If the plaintiff is not notified of the time and place of the application for the order provided sureties in un- for in section 335 [332], the sureties therein provided for shall justify as bail upon arrest, otherwise such justification may be omitted, unless the plaintiff require it. If such order be made and undertaking given, and the defendant fails to abate such nuisance within the time specified in said order, thereafter, at any time within six months, the warrant for the abatement of the nuisance may issue as if the same had not been stayed. Justification of sureties: See ante, §§ 117 [115] et seq. Oct. 11, 1862, § 334. Waste, actions for. § 337. [334.] If a guardian, tenant in severalty or in common for life or for years, of real property, commit waste thereon, any person injured thereby may maintain an action at law for damages therefor, against such guardian or tenant; in which action there may be judg ment for treble damages, forfeiture of the estate of the party committing or permitting the waste, and of eviction from the property. But judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion is determined in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done or suffered in malice. |