Plaintiff brought the action to abate a nuisance and for damages. He had judgment abating the alleged nuisance and for fourteen hundred and sixty-nine dollars damages.
It appears from the findings, supported by the evidence, that plaintiff was engaged in manufacturing a machine called a stump-puller, in San Francisco, in the vicinity of the corner of Zoe and Bryant streets; his shop was destroyed by fire July 4, 1898; in the latter part of July he purchased a lot adjoining defendant's lot, on Zoe Street, not far from his former place of business, on which to erect a building for the purpose of resuming the said business therein; early in August he commenced the construction of a building on this lot in which to manufacture said machines; he soon discovered that defendants' buildings on her adjoining lot leaned over his lot in some places as much as three inches, although the foundations of her buildings did not encroach on plaintiff's lot; upon being notified of the obstruction defendant promised to remove it, and plaintiff built the foundations for his new building, which he completed about August 29th, but could go no further without yielding three inches of his lot to defendant; and as she then refused to remove the obstruction, plaintiff elected a temporary building on the rear of his lot, set his machinery in this building, and had it in place ready for business September 27, 1898.
Among other items of damage allowed by the court was forty-five dollars per day for twenty days as profits of the business which plaintiff would have made had defendant not obstructed plaintiff in the erection of the permanent building.
The principal point in the case, raised on demurrer and on objections to the evidence, was, that such damages were speculative, conjectural, uncertain, and too remote. The view we take of the evidence makes it unnecessary to consider this question. *Page 40
Plaintiff testified that the foundations to his permanent building were about finished on August 29, 1898, when he was stopped from further proceeding with the building. He intended to erect a two-story building, and he testified that he could have finished it in sixty days, so as to be ready for occupancy about November 1st. He said his intention was to finish the lower portion so as to utilize it for a shop, and that the temporary building on the rear of the lot would not interfere with the proposed main building, and that he did not intend to remain in the temporary building.
"The Court. — Your building was burned on the 4th of July, was it not? — A. Yes, sir. — Q. And you began the erection of this new building on the 28th day of August? — A. 29th. . . . — Q. Suppose you had not been obstructed in the erection of this building, when would you have been ready to begin business again? — A. I think about in six weeks; a month or six weeks, we could have got the building far enough along to put the machines in and commence to work there before the building was complete; that was my intention." Again he answered: "I think in about six weeks we would have been able to get things straightened out to commence business." It thus appears that plaintiffs could not have been prepared to manufacture his machines short of forty-two days from August 29th, even if defendant had interposed no obstructions to the work, and this would have brought the time later than September 27th, when plaintiff resumed work in his temporary building. Under such a state of facts it cannot be said that the delay in the manufacture of his machines — between August 29th and September 27th — was caused by defendant. He did in fact fully resume his business, not only within the time but sooner than he could have done so had there been no obstruction offered by defendant. We can find no warrant in the evidence for allowing for profits for twenty days or any other number of days, even if it be admitted, which is stoutly denied, that the damages could be measured by the loss of profits in the business. The evidence showed that defendant is maintaining a nuisance by which plaintiff is denied the free use of his property, and the judgment that the obstruction be removed and the nuisance abated was justified. But the court erred in its finding and judgment as to the damages. That plaintiff is entitled to some damage must be conceded; but as we cannot foresee what the *Page 41 evidence will disclose in another trial we are not in a position to suggest the true measure of damage to which plaintiff is entitled.
Rehearing denied.