Appellants appeal from a judgment denying them an injunction and awarding respondents, as cross-complainants, damages both compensatory and exemplary for the commission of a nuisance. The nuisance charged in the cross-complaint is that of directing offensively loud noise, by means of loud-speakers, towards respondents' home and property. The evidence clearly sustains judgment on the cross-complaint. According to the evidence, appellant husband had announced his intention to blast respondents off their property by the noise. His statement that what he had said was but jest was rejected by the trial judge, as appears from the award.
The appeal from the judgment denying injunction is based on these propositions: (1) the boundary between a private owner's property and the state's at the shore of a navigable lake (Clear Lake) is at low water mark; (2) respondents have built a fill which extends beyond the low water mark; (3) appellants are specially injured; they are the owners of parcels at each side of respondents' land.
We affirm the judgment on our conclusion upon the third of these propositions.
A description of appellants' property and its uses is first in order, because, as is held in authorities cited below, appellants had the burden, in the trial court, of showing substantial injury in order to entitle them to injunction; and, of course, on appeal their burden is weightier by reason of applicable principles which need no citation of authority. Appellants own a large parcel of land on the south shore of Clear Lake, on which there is a summer resort. They own a home, too, on the lake, the two properties being separated by respondents' parcel. The shoreline of the resort property consists of a fill for a length of about 600 feet. The fill is similar to that used by respondents. Appellants' fill ends with a wall of rock on the lake front just as does the fill of which appellants complain. There is one place on the filled shoreline of the resort parcel where descent to the lake is possible without the need for clambering down the steep and rocky wall, that is, a boat ramp at the end of the resort parcel adjacent to respondents' property. There are piers and floats into the lake opposite the resort parcel. There is a pier projecting into the lake from appellants' home parcel. No beach exists along the resort parcel because of the fill and its rocky retaining wall. Nor, it would appear from the photographs, is there a particularly usable beach on the home parcel owned by appellants. Landward of the small beach, there is a stone wall on this parcel.
The fill which respondents have constructed extends some three feet into the bed of the lake beyond the ramp on appellants' resort property, but, because of the curvature of the shoreline, it extends about 15 feet into the lake bed beyond the margin of appellants' home property.
Admittedly, respondents' fill does not encroach on lands of appellants, nor does it lie upon land directly lakeward to appellants' property, as in San Francisco Savings Union v. R.G.R. Petroleum & Min. Co., 144 Cal. 134 [77 P. 823, 103 Am.St.Rep. 72, 1 Ann. Cas. 182, 66 L.R.A. 242].
Asserted Special Injury
Appellants assert two kinds of special injury: (1) to their right to navigation; (2) to use of that part of the lake which has been filled, for purposes of fishing, wading and walking in the shallow water or along the beach.
Passage: Woods testified that before respondents constructed the fill, he would wade and walk in the water while going between his two lots. He could not say whether the guests in the resort used the property which is now covered by the fill. There has been, however, no obstruction along the county road which runs along the upland margin of both of appellants' parcels.
We deem it inappropriate for the court in this case to review the sufficiency of the evidence, which is rather complicated, to sustain the trial judge's finding that the Johnson fill does not extend beyond the low water mark or to define the law relating to the extent of the littoral owner's domain as against the state, because the state is not a party to the cause and because decision on these matters would involve a multitude of property rights of other persons.
Draper, P.J., and Salsman, J., concurred.