by the use of steam power. The question, then, is presented, had the defendant the right to use its own property (the lot at the corner of the streets) in a lawful business, in such a manner as to produce the results complained of? Any person may use his own property in such lawful manner as to him may seem fit, having reference always to the right of others to use their property. A person may not use his own property, even in and about a business in itself lawful, if it be used in such a manner as to seriously interfere with another in the enjoyment of his right to the use of his property. It is declared by the civil code, sec. 731, that "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 and property, is a nuisance, and the subject of an action;" and damages may be recovered. It is said by Cooley in his work on Torts, p. 600, that "where manufacturing operations are carried on with heavy machinery, in the part of a city mainly occupied by residencies, the jar of machinery may constitute a serious nuisance, injurious not to comfort merely, but to health; it is usually increased also by smoke, soot, etc." "If the smoke or dust, or both, that rises from one man's premises and passes over and upon those of another, causes perceptible injury to the property, or so pollutes the air as sensibly to impair the enjoyment thereof, it is a nuisance. But the inconvenience must be something more than mere fancy; mere delicacy or fastidiousness; it must be an inconvenience materially interfering with the ordinary comfort, physically, of human existence; not merely according to elegant and dainty modes and habits of living, but according to plain, sober and simple notions." If a business be necessary or useful, it is always presumable that there is a proper place and a proper manner for carrying it on. It can hardly be said that that is a lawful business which cannot be carried on without detriment to surrounding people; some classes of business constitute a nuisance per se, others may or may not create a nuisance, according as they shall be carried on. The keeping of a hotel or restaurant is a lawful and necessary business-equally so with running street cars; yet it could not be held that a person carrying on such business, or any other requiring a large consumption of fuel, could erect his chimney to a height that would discharge the smoke and soot into his neighbor's window. It is true, as urged by appellant, that persons preferring to live in cities, rather than the country, must accept many inconveniencies-probably all that naturally and necessarily flow from the concentration of populations; but that doctrine should not be carried too far. The law looks to a medium course to be pursued by each, for the mutual benefit of all.

Applying these principles to the facts as presented by the plaintiffs, we are of opinion that it was competent for the jury to determine whether the defendant was carrying on its business in a proper manner-whether the acts complained of were substantially offensive to the senses of the plaintiffs, or obstructed them in the

free use of their property, so as to interfere with their comfortable enjoyment of it. It may have been that a smoke stack but twenty feet high would foul the plaintiffs' premises, and that one forty feet high would not. It may have been convenient for the defendant to hoist its cars from one story to another, and yet not absolutely necessary; or, it may be that the hoisting could have been done without causing a jarring producing actual discomfort or injury.

As said above, the municipality could grant a franchise for running cars along the street, but it could not grant a franchise to materially injure the plaintiffs in their property rights. The franchise which the defendant claimed to hold did not even assume to be for that end.

We are aware of the decisions that where a franchise has been granted for the running of steam cars along a street, property owners along the line must abide the natural results of a reasonable and proper exercise of the franchise; but we are of opinion that the reason of those decisions has no application here.

The fact that the defendant had since the commencement of the suit (if such be the fact) remedied the evil complained of, would not interfere with the plaintiffs' right to recover damages for injuries sustained before the commencement of the suit.

It was not incumbent on the plaintiffs to prove their injury by value; it may have been of trivial cost to sweep up a pail full of soot, and yet the soot may have caused serious injury; it may also have been quite out of the question to prove the loss in value susstained by the jarring. If was for the jury to determine a reasonable sum to be proper compensation.

We have examined the points presented by appellant, and are of opinion that they are substantially covered by the foregoing. Judgment and order affirmed.

SHARPSTEIN, J., concurred.

THORNTON, J. I concur in the judgment. The evidence as to the amount in money of the damages accrued was very slight, yet as the damages found for the injury suffered are not excessive, I do not think the judgment should be disturbed for that reason. That the acts committed by the defendant constituted a nuisance, is clear. Nor were such acts either directly or indirectly permitted to be done by the express authority of a statute.

No 8,514.

ODD FELLOWS' SAVINGS BANK V. DEUPREY.

Department One. Filed November 28, 1884.

MOTION FOR NEW TRIAL-JURISDICTION OF COURT OVER. The jurisdiction of a court to hear and determine a motion for a new trial lies dormant until it is called into exercise by the final submission of the motion, in a legal manner, upon a bill of exceptions, statement of the case, or other papers designated in the notice of motion. And it may be called into exercise by the submission of the motion itself, or by a motion to deny or dismiss the motion for want of prosecution, upon the ground that the party moving for the new trial has failed, or neglected, to serve or file, within legal time, the statement, or other paper upon which he proposed to move; and when thus called into exercise, and the court, in the exercise of its jurisdiction, has heard and decided the motion, its order is final and conclusive; and it is not erroneous to dismiss or deny a motion afterwards made to set it aside. Such order is reviewable only on appeal. But it is otherwise if such order has been inadvertently or prematurely made.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from orders denying the defendant a new trial. The opinion states the facts.

Columbus Bartlett, for the appellant.

McClure, Dwinelle & Plaisance, for the respondent.

MCKEE, J. In this case there are three appeals: The first is from the judgment rendered the twenty-ninth of November, 1881; the second, from an order denying a motion for a new trial; and the third from an order denying a motion to vacate the order refusing a new trial.

After the decision of the case, defendant served upon the plaintiff's attorney notice that he would move for a new trial, upon a proposed statement of the case, and upon affidavits, and the minutes of the court. There was no extension of tho statutory time for him to serve and file his proposed statement and affidavits; and, in fact, he neither served nor filed any affidavits or proposed statement within the time required by law for that purpose. Upon a conclusive showing being made of that fact, the court, after argument of counsel of the respective parties, denied the motion for a new trial, "so far as the same was made upon the minutes of the court," and dismissed it for want of prosecution so far as it purported to have been made upon a statement of the case, or on affidavits. The order was entered January 6, 1882. Ten days after the entry of the order defendant moved, on notice to the plaintiff's attorney, to vacate the same. The motion was made upon affidavits which showed, that the proposed statement was not within legal time, because of a mistake by the clerks of the attorney of record for defendant, as to the date of the service of notice of the motion. But this mistake did not, and could not, change the record upon which the motion had been heard and determined. The fact still remained, that the proposed statement had not been served or filed in time; and, assuming that the court erred in denying the motion for a new trial, which had been regularly argued and submitted for a decision, and that the subsequent order, denying the motion to vacate its former order, was a

special order made after final judgment and appealable, as seems to have been held in Calderwood v. Peyser, 42 Cal., 110, we see in it nothing erroneous.

The jurisdiction of a court to hear and determine a motion for a new trial lies dormant, until it is called into exercise by the final submission of the motion, in a legal manner, upon the bill of exceptions, statement of the case, or other papers designated in the notice of motion. But it may be called into exercise by the submission of the motion itself, or by a motion to deny or dismiss the motion for want of prosecution, upon the ground that the party moving for the new trial has failed, or neglected, to serve or file within legal time, the statement or other papers upon which he proposed to move; and when thus called into exercise, and the court, in the exercise of its jurisdiction, has heard and decided the motion, its order is final and conclusive, and it is not erroneous to dismiss or deny a motion afterwards made to set it aside.

An order granting or refusing a new trial, made after the regular submission of a motion for that purpose is reviewable only on appeal: Coombs v. Hibberd, 43 Cal.,453; Waggenheim v. Hook. 35 Id., 216; Nichols v. Dunphy, 10 P. C. L. J., 193. But it is otherwise where such an order has been inadvertantly or prematurely made. If made, for instance, before the statement of the case, or bill of exceptions, upon which it was to be made, has been settled, engrossed and certified, and before the motion has been regularly submitted, the jurisdiction to hear and decide the motion was not called into exercise, the order would not be made in the regular exercise of the jurisdiction of the court, and being improvidently made it would be the duty of the court to set it aside: Morris v. DeCelis, 41 Cal., 331; Hall v. Polack, 42 Id., 218; Coombs v. Hibberd, supra; and Nichols v. Dunphy, supra.

Here, however, the power of the court to hear and decide the motion for a new trial was regularly put in motion, and the order of the court in the decision of the motion exhausted its power over it. The court became functus officio.

There was no error in overruling the motion for a new trial.
There is no error apparent on the judgment roll.

Judgment and orders affirmed.

Ross, J., and MCKINSTRY, J., concurred.

No. 8,384.

SAVINGS AND LOAN SOCIETY v. DURKIN ET AL.

Department One. Filed November 28, 1884.

JUDGMENT AND ORDER AFFIRMED upon authority of Savings and Loan Society v. Bateman, 10 Pac. C. L. J., 795.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial.

M. Mullany, for the appellant.

A. N. Drown, for the respondent.

Ross, J. In principle, this case is not distinguishable from Savings and Loan Society v. Bateman, No. 7,654, decided January 30, 1883, 10 Pac. C. L. J., 795, or the cases upon the authority of which that case was determined. In so far, however, as the judgment appealed from affects Edward Durkin and Patrick Durkin, it must be modified. As to them a non-suit was granted. On the authority of the cases herein before referred to:

It is ordered, that the order denying the motion for a new trial be and hereby is affirmed, and that the cause be and hereby is remanded with directions to the court below to modify the judgment as here indicated, and as so modified it stand affirmed.

W. C. KINSTRY and G, J. MCKEE concuraed.

No. 8,473.

TISCHLER V. CALIFORNIA FARMERS' MUTUAL INSURANCE COMPANY.

Department Two. Filed November 28, 1884.

POLICY OF INSURANCE-APPLICATION FOR INSURANCE-PLEADING.-In an action to enforce a policy of insurance, the complaint need not allege the terms of the application for insurance, when such application was merely verbal.

FIRE INSURANCE STIPULATION AGAINST GUNPOWDER-FIREWORKS.-The keeping of fire. works without the written consent of the insurer will not invalidate a policy of fire insurance, although the same provides that if gunpowder is kept on the premises without such written consent, the policy shall be void.

FIRE INSURANCE-INCREASE OF RISK-ANSWER. -In an action on a policy of fire insurance, facts showing an increase of the risk, if relied on as a defense, must be set up in the answer.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

A. W. Thompson, for the appellant.

Winans, Belknap and Godoy, for the respondent.

Ross, J. 1. Appellant claims that, upon the authority of Gilmore v. The Lycoming F. I. Co., 55 Cal., 123, defendant's motion for judgment on the pleadings should have been granted. Even if the policy involved in this case was similar to that involved in that, the decision there would not be authority for sustaining the motion here in question. But in Gilmore v. The Lycoming Company the application of the insured was expressly made a part of the policy and therefore constituted a part of the contract; and it having affirmatively appeared from the complaint in that case that all of the terms of the contract were not stated, but that a portion, which might prove material, had been omitted, the complaint, on demurrer, was held insufficient, and the demurrer sustained, with leave given the plaintiff to amend the complaint. In the present case, the ap