rule is plain, and has always, so far as I know, been adhered to.... No special injury to their property is averred, and although from the facts stated we may conclude that the inconvenience to them will be greater than to the general public, it results simply from the more frequent occasion they may have to travel the road, and is of the same nature as would occur to any other person who might have occasion to use it."

In Jarvis v. Santa Clara Valley R. R. Co., 52 Cal. 438, the defendant had obstructed the navigation of a navigable stream. The complaint alleged that the obstruction "was a nuisance and a perpetual obstruction to the navigation of the creek, and delayed the plaintiffs in the navigation of their vessel." It was held that the facts stated did not show damage "differing in kind and character from that suffered by members of the general public having occasion to use the navigable stream," and that the action would not lie.

In Bigley v. Nunan, 53 Cal. 404, the obstruction consisted of a fence running lengthwise along the middle of the street and connected by cross-fences with the side of the street opposite to the premises of plaintiff. It was held that the action by a private individual would not lie. The court said: "The access from plaintiff's lot to the street has not been cut off or impeded, and if plaintiff or his immediate neighbors have more occasion to pass through the street than the public at large, this is an inconvenience in degree only, and is not an injury in kind different from that sustained by the public. The only damage complained of by plaintiff is that, by reason of the obstruction, his property is lessened and decreased in value. But it has been expressly held by this court that in an action to recover special damages, caused by placing an obstruction in the street opposite the residence of a plaintiff, evidence to show that the land would sell for less on account of the nuisance is not admissible."

In Hogan v. Central Pacific R. R. Co., 71 Cal. 83, [11 Pac. 876], the defendant had placed an embankment and railway track along Sacramento Street opposite plaintiff's property. It is said in the opinion: "The facilities and means of ingress and egress to and from plaintiff's land, and the free use and occupation thereof, were obstructed by the embankment and track. . . . Plaintiff suffered no injury by reason of the con

struction and operation of the railroad different in character or kind from that which other landowners fronting on the line of the street have suffered. . . . We are of opinion the judgment in favor of defendant was proper and should be affirmed."

(See, further, San Jose Ranch Co. v. Brooks, 74 Cal. 463, [16 Pac. 250]; Siskiyou Lumber Co. v. Rostel, 121 Cal. 511, [53 Pac. 1118]; Quincy Canal v. Newcomb, 7 Met. 276, [39 Am. Dec. 778]; Fogg v. Nevada etc. R. R. Co., 20 Nev. 429, [23 Pac. 840]; Baker v. Selma etc. Ry. Co., 135 Ala. 552, [93 Am. St. Rep. 42, 33 South. 685]; O'Brien v. Norwich etc. R. R. Co., 17 Conn. 372; Thompson on Highways, p. 256, and cases cited.)

The cases of Fisher v. Zumwalt, 128 Cal. 493, [61 Pac. 82], and San Francisco Sav. Union v. R. G. R. Petroleum etc. Co., 144 Cal. 134, [103 Am. St. Rep. 72, 77 Pac. 823], are not inconsistent with what has been said. In Fisher v. Zumwalt the odors and stenches from the defendant's tanks polluted the atmosphere in and about the dwelling-house of plaintiff; and the court held that the fact that it affected many other dwelling-houses did not prevent a private person from bringing his action to abate it. The court said: "There is no doubt but that there are many nuisances which may occasion an injury to an individual from which an action would not lie by him in his private capacity, unless he can show special damage to his person or property differing in kind and degree from that which is sustained by other persons who are subjected to similar injury. Among such may be mentioned the invasion of a common and public right which every one may enjoy, such as the use of a highway, or canal, or public landing place. . . . In the one case the invasion is of a public right which injures many individuals in the same manner, although it may be in different degrees. In the other case no public or common right is invaded, but by the one nuisance the private rights and property of many persons are injured."

In San Francisco Sav. Union v. R. G. R. Petroleum etc. Co., 144 Cal. 134, [103 Am. St. Rep. 72, 77 Pac. 823], the obstruction prevented the plaintiff from access to the ocean. The court said: "An obstruction to navigation, in so far as it would prevent the plaintiff from the right to the free use of

the public waters just as it would prevent every one else, would in one sense be an injury suffered alike by all the public. But the plaintiff has the right to free access from his land to the ocean. The obstruction of this right is a damage different in kind from that suffered by the general public, and in such case a private person may maintain his action." We know of no case, and none has been cited, where it has been held that an obstruction to a public highway may be abated by a suit at the instance of a private party, where the damage is not different in kind from that suffered by the public at large.

Plaintiff earnestly contends that the cases of 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]; and Smith v. Southern Pacific R. R. Co., 146 Cal. 164, [79 Pac. 868], are authority in support of this action. Those cases were all actions to recover damages, and not for the purpose of abating a nuisance.

It has long been settled that under our present constitution an abutting owner may maintain an action to recover the damage which he suffers through the occupation of a street by a railway company. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, [42 Am. St. Rep. 149, 37 Pac. 750].) These decisions are placed upon the constitutional provision that private property shall not be taken or damaged without just compensation to the owner. But the gravamen of this case is the abatement of a nuisance. It is alleged incidentally that the nuisance has depreciated the rental value of plaintiff's property to plaintiff's damage in the sum of seven thousand eight hundred dollars. It is not alleged that the value of the property has been depreciated, but its "rental value.”

The nuisance may have depreciated the rental value of plaintiff's property, and yet not have damaged the plaintiff. In an action for damages the plaintiff must show that he has sustained some injury for which he can recover damages, and the object of the action must be the recovery of such damages. We cannot, under the most liberal rules, hold that this is an action for compensation for "taking or damaging private property."

The judgment is affirmed.

Hall, J., and Harrison, P. J., concurred.

[No. 24. Second Appellate District.-June 30, 1905.]

A. MCALLISTER, Respondent, v. ISABELLA W. TINDAL, Appellant.

JUSTICE'S COURT-ACTION INVOLVING TITLE TO REALTY-INSUFFICIENT SHOWING. A mere bald allegation in an unverified answer in a justice's court that "the determination of the action will necessarily involve title to real property,'' without the statement of any fact from which such conclusion would follow, is insufficient to authorize the justice to certify the case to the superior court, and the case was not legally before it for determination.

ID. WANT OF JURISDICTION-DENIAL OF MOTION TO CHANGE VENUEThe superior court, having no jurisdiction of the action, did not err in denying a motion to change the place of trial thereof.

APPEAL from an order of the Superior Court of San Luis Obispo County denying a motion for change of venue. E. P. Unangst, Judge.

The facts are stated in the opinion of the court.

T. Z. Blakeman, for Appellant.

William Shipsey, for Respondent.

ALLEN, J.-This action was brought in a justice's court to recover a judgment for personal services and rent. An answer was filed, which, while not controverting the facts of the complaint, denied indebtedness, and by way of further answer alleged that the determination of the action would necessarily involve title to real property. This opinion in the answer was not supported by any statement of fact. The justice certified the case to the superior court, which court, on motion, remanded the cause to the justice for trial. Before such order of remand, a motion was interposed in the superior court, supported by affidavit, demanding a change of the place of trial to the city and county of San Francisco, being the county in which defendant resided. The court refused to grant a change of the place of trial, from which defendant appeals.

The verified answer filed in the justice's court did not conform to the requirements of section 838 of the Code of Civil

Procedure. The mere statement of the opinion of the affiant that the title to real estate would be brought into issue on the trial is not sufficient. Facts should be stated from which such conclusion would follow.

The action of the justice in certifying the case was unauthorized, and the case was therefore not legally before the superior court for determination. (Arroyo Ditch Co. v. Superior Court, 92 Cal. 47, [27 Am. St. Rep. 91, 28 Pac. 54].) The court having no jurisdiction of the action, it would of course follow that there was no error in denying the motion to change the place of trial.

Order affirmed.

Gray, P. J., and Smith, J., concurred.

[No. 29. Second Appellate District.-July 1, 1905.] GEORGE RENWICK et al., Respondents, v. MARGARET GARLAND, as Executrix, etc., Appellant.

ESTATES OF DECEASED PERSONS-CONTRACT BY EXECUTRIX TO DRILL WELL-ESTATE NOT LIABLE.-In an action upon a contract by an executrix to drill a well on the property of the estate, it is error to order the judgment paid out of the assets of the estate. The rule is that executors and administrators cannot by virtue of their general powers as such make any contract which will bind the estate; but on contracts for necessary matters relating to the estate they are personally liable, and must see to it that they are reimbursed out of the assets.

ID.-COMPLAINT AND JUDGMENT AGAINST EXECUTRIX AS SUCH-AMENDMENT WANT OF JURISDICTION.-Where the complaint and judgment are against the executrix, as such, payable out of the assets of the estate, the court has acquired no jurisdiction over the executrix in her personal capacity; and the proceedings cannot now be amended and a personal judgment against her entered.

APPEAL from judgment of the Superior Court of San Bernardino County Frank F. Oster, Judge.

The facts are stated in the opinion of the court.

Otis & Gregg, and Charles E. Truesdell, for Appellant.