Action to abate a nuisance and for damages. Plaintiff obtained judgment, and from this judgment and an order denying his motion for a new trial defendant appeals.

The plaintiff and defendant are neighbors and have for a long time lived in the same community. In the year 1893 the defendant erected on his own land a creamery for the purpose of manufacturing butter and cheese. This creamery is located near a public highway and in a thickly populated portion of the county of Tulare, there being many farmhouses in the vicinity and some eighty people living within a radius of three miles therefrom. After the erection of said creamery, and until after the commencement of this action, the defendant permitted the refuse—whey, milk, and debris—to accumulate in certain tanks, troughs, and ditches, and to stand so as to become sour and putrid in such manner as to throw off vile and noxious odors and gases, very offensive to the senses and dangerous to the health of plaintiff and his family, and all others living in the immediate vicinity. The plaintiff lives on his own farm only a short distance from said creamery, and nearer thereto than any other resident of the neighborhood, and therefore he and his family are more exposed to the said unwholesome and noxious gases than anyone else. The said odors and stenches pollute the air in and about the dwelling-house of plaintiff, and at times render it unfit for occupation, causing plaintiff great distress and inconvenience. There is no controversy as to the fact that the creamery, as it has been and was maintained at the time of the commencement of the action, is a nuisance, but defendant claims that it is a public nuisance, and that it affects all the people of the neighborhood, and that the nuisance is not especially injurious to plaintiff; that the damage is not different in kind or character from that suffered by the general public, and that for this reason the plaintiff in his private capacity cannot maintain the action. This question presents the main and controlling point in the case. There is no doubt but that there are many nuisances which may occasion an injury to. an individual for which an action will 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 everyone may enjoy, such as the use of a highway, or canal, or public landing-place. But this class of nuisances is confined in most eases to where there has been an invasion of a right which is common to every person in the community, and not to where the wrong has been done to private property, or the private rights of individuals, although many individuals may have been injured in the same manner and by the same means. 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. Because the nuisance affects a great number of persons in the same way, it cannot conclusively be said that it is a public nuisance and nothing more. The fact that a nuisance is public does not deprive the individual of his action in cases where, as to him, it is private and obstructs the free use and enjoyment of his private property. (Blanc v. Klumpke, 29 Cal. 160 ; Yolo County v. Sacramento, 36 Cal. 195 .) It is provided in the Code of Civil Procedure, section 731: "Anything which is injurious to health, or 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, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjojunent is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.”

It is said in Wood on Nuisances, third edition, section 671: “So, too, in the case of a noxious trade upon a highway, but away from habitations, so long as every person sustains a common injury only therefrom, as by being annoyed by its offensive and unwholesome smells, it is purely a public injury; but, if its effects extended to the dwellings or places of business of any persons to such an extent as to render • their occupancy materially uncomfortable, then it becomes a private nuisance to those whose dwellings or places of business are so affected, and they may have their action therefor, although there are many persons who are thus affected, and the result will be to promote a multitude of suits.”

In Parker and Worthington on Public Health and Safety, section 216, page 253, it is said, in speaking of offensive trades in public cities or populous districts: "At the same time, to those living upon the street and within the immediate sphere of the noxious influences, it is both a public and a private nui sanee. Those individuals, therefore, to whom the injury is real and substantial, as, for example, if it consists in impaired health of the individual or members of his family, are entitled to a private remedy for the damages sustained and for the I>rotoction of their special interests.”

In Wesson v. Washburn Iron Co., 13 Allen, 95 , 90 Am. Dec. 184 , it was held that an action could be maintained by an individual in his private capacity for a nuisance to his dwelling-house, caused by carrying on works and operating machinery in the vicinity which filled the air with smoke and cinders and rendered it offensive and injurious to health, although many persons in the vicinity had sustained similar injuries. The rule is well stated by Bigelow, C. J.; he says:

It would be useless to cite further extracts as illustrating the rule in support of our conclusion. The following additional cases are to the effect that this kind of action can be maintained: Ross v. Butler, 19 N. J. Eq. 294; 97 Am. Dec. 654 ; Cranford v. Tyrrell, 128 N. Y. 341 ; Weir's Appeal, 74 Pa. St. 230; Lansing v. Smith, 4 Wend. 9 ; 21 Am. Dec. 89 ; Knight v. Gardner, 19 L. T., N. S., 673; Lind v. San Luis Obispo, 109 Cal. 343 , and cases cited.

In view of what has been said, the special findings of the-jury are not in conflict with their general verdict.

The defendant, when on the witness stand, was asked by his counsel: “How does the management of your creamery and the-premises about it compare with the management of other creameries and the premises about them?” The court sustained an objection made by plaintiff to this question, and it is claimed the ruling was error. We think the ruling was-clearly correct. It would be no defense to defendant if he-could show that other persons were violating the law. Counsel by the question evidently desired to show that although defendant -was doing wrong, yet that many others were doing the same thing.

Counsel argue that the court erred in giving certain instructions asked by plaintiff and refusing others asked by the defendant. Without discussing the question as to the legal propositions involved in the instructions, it is sufficient to say that if error was committed in the respects claimed it would not be sufficient ground for reversing the judgment. The case was in equity. The verdict of the jury was at most only advisory to the court, and the court filed its own findings and decision. The correctness of the decision of the court, and not the propositions of law it laid down for the guidance of the jury, is the question for determination here. (Schneider v. Brown, 85 Cal. 305 ; Sweetser v. Dobbins, 65 Cal. 529 ; Richardson v. Eureka, 110 Cal. 446 ; Scheerer v. Goodwin, 125 Cal. 154 .)

It follows that the judgment and order should be affirmed, and so we advise.

Chipman, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

Harrison, J., Garoutte, J., Van Dyke, J.