Stamm v. City of Albuquerque.

Decision Date23 August 1900
Citation10 N.M. 491,62 P. 973
PartiesSTAMM et al.v.CITY OF ALBUQUERQUE.
CourtNew Mexico Supreme Court
OPINION TEXT STARTS HERE

Syllabus by the Court.

1. One claiming by prescription the right to maintain a private nuisance assumes the burden of showing that for the full period of the statute of limitations he has violated the law to the extent and with the results charged against him, with the practical acquiescence of the person injured, and to the extent that during the whole time an action would lie against him.

2. Where there is no evidence to support the findings of the lower court, they may be reviewed by this court.

3. In a suit for injunction to abate a private nuisance, which is also a public nuisance, the gist of the action is the injury to the plaintiff; and it is immaterial, where no prescriptive right to maintain the nuisance is made out, to show the injury to the public or to individuals similarly situated to plaintiff.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Suit by Martin P. Stamm and others against the city of Albuquerque. Judgment for defendant, and plaintiffs appeal. Reversed.

This is a suit brought by appellants in the court below against appellee for a mandatory injunction directing the abatement of an alleged nuisance. It appears that appellee maintains a ditch, which runs from the northeastern to the southwestern part of the city, through a populous business and residence portion thereof; that in its course it passes under several streets and blocks of business and residence buildings, and crosses the residence lots of appellants; that the ditch was originally constructed prior to the purchase by appellants of their residence lots, which are, and for more than 10 years prior to the institution of this suit have been, charged with the easement of carrying said ditch through the same. Appellants allege that said ditch has become partly filled with sediment, trash, and refuse from the factories, stables, and other buildings along its line, so that the stench and malarial fumes therefrom render appellants' dwelling unwholesome and uncomfortable for habitation. They further allege that in 1891 or 1892 appellee took steps to deepen and widen said ditch, and claimed the right to go upon appellants' premises for that purpose, which right appellants resisted; that thereupon appellee agreed to construct a substantial flume through said premises, and keep the same in repair, if appellants would consent to have the same done; that said license was given, and said flume constructed accordingly; but that, in violation of said agreement, appellee has failed to keep said flume in repair, and has allowed same to decay and fall in, so as to cause water to stand in stagnant pools on appellants' premises. They further allege that appellee now proposes to enter upon their premises, and to widen and deepen said ditch, and to let the same stand as an open ditch, which would be a menace to the health, comfort, and convenience of appellants and their family. Appellee admits that said ditch has become partly filled with sediment, but denies that the same is a nuisance to appellants as charged, or that trash or refuse from the factories, stables, or other structures along its line are permitted to accumulate therein; denies that it ever agreed to put in and maintain said flume, or that it ever did do so, and avers that same was constructed before appellants acquired the premises, and admits that same has fallen into decay, and that it has become necessary to remove same to prevent stagnant water from accumulating on appellants' premises, and which it proposes to do; denies that it has resolved to widen and deepen said ditch, but avers its intention, unless restrained, to clean said ditch, and leave the same an open ditch through appellants' premises. Evidence was introduced showing the filthy condition of the ditch, the giving off by it of offensive odors along its entire length through the settled portion of the city, and the private nuisance to appellants was fully established, there being no evidence to the contrary. Appellants showed that the allegations of the bill in regard to the construction of the flume by their consent and license were true, and there was no evidence to the contrary, further than some general statements that the ditch has been...

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11 cases
  • City of Albuquerque v. State ex rel. Village of Los Ranchos de Albuquerque, 11688
    • United States
    • Court of Appeals of New Mexico
    • January 31, 1991
    ...nuisance per se. New Mexico law recognizes two types of nuisance: public nuisance and private nuisance. See, e.g., Stamm v. City of Albuquerque, 10 N.M. 491, 62 P. 973 (1900); Padilla v. Lawrence, 101 N.M. 556, 685 P.2d 964 (Ct.App.1984). The difference between the two is governed in part b......
  • Christmas v. Cowden.
    • United States
    • Supreme Court of New Mexico
    • July 31, 1940
    ...Comp.St.1929, the one dealing with lands within land grants, and Sec. 83-122, a general statute of limitation. See Stamm v. City of Albuquerque, 10 N.M. 491, 504, 62 P. 973; Montoya v. Heirs of Vigil, 16 N.M. 349, 120 P. 676; Jenkins v. Maxwell Land Grant Co., 15 N.M. 281, 107 P. 739; Manby......
  • Hester v. Sawyers
    • United States
    • Supreme Court of New Mexico
    • September 7, 1937
    ...et al., 123 Fla. 641, 167 So. 45. This seems to have been the assumption of the Territorial Supreme Court in Stamm v. City of Albuquerque, 10 N.M. 491, 62 P. 973. Also see Trambley v. Luterman, 6 N.M. 15, 27 P. 312. Appellant, anticipating this holding, insists that if, following the genera......
  • Christmas v. Cowden
    • United States
    • Supreme Court of New Mexico
    • July 31, 1940
    ...the one dealing with lands within land grants, and Sec. 83-122, a general statute of limitation. See Stamm v. City of Albuquerque, 10 N.M. 491, 504, 62 P. 973; Montoya v. Heirs of Vigil, 16 N.M. 349, 120 P. 676; Jenkins v. Maxwell Land Grant Co., 15 N.M. 281, 107 P. 739; Manby v. Voorhees, ......
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