Nicholson

— This appeal is from a judgment entered upon demurrer to the complaint, the plaintiff having declined to amend. The action is for a mandatory injunction to prevent defendant from maintaining a certain breakwater which had already been built. Practically, the action is to abate the breakwater as a nuisance.

The demurrer is general, on the ground that the complaint does not state a cause of action. It is claimed that the complaint does not state facts which show probable damage, but only an opinion of the pleader that damage will ensue.

It is averred that the parties own land on opposite sides of Jacoby Creek, which is their common boundary; that the channel of the stream is about sixty feet wide, and makes a sharp curve into the land of plaintiff, and away from the land of defendant. On plaintiff’s side of the stream, at the curve, the bank is abrupt and the soil loose, .while on the other side the bank slopes gently.

The breakwater, or bulkhead, it is averred, consists of posts driven firmly into the ground three feet apart and planked to the height of about four feet from the ground, the upper end resting against defendant’s land, and extending down stream and out toward the…