Bigelow v. City of Los Angeles

85 Cal. 614 | Cal. | 1890

Paterson, J.

This is an action to restrain the city of Los Angeles and the California Bridge Company from erecting a bridge and viaduct across the Los Angeles River, on First Street, within the city limits. The hearing of the application for a preliminary injunction was had upon the pleadings and affidavits. Thereupon the court denied the application, and vacated the preliminary order which it had made, restraining the defendants from further proceedings pending the hearing of the motion. The material allegations of the complaint are denied in the answer of the city, and also in the complaint of intervention which the court allowed to be filed on behalf of the Los Angeles Cable Railway Company; and the affidavits used on the hearing are very conflicting as to the size, height, and effect of the structure.

The showings made by all parties evidently left the court in doubt as to the probable effect of the viaduct upon the property of the plaintiff; and as the plaintiff had stood by until the greater part of the work had been completed, and was endeavoring only to secure the amount .of damage occasioned to her property, before the work was completed, and disclaiming any intention of perpetually enjoining the defendants from constructing the bridge, the court deemed it best to let the work go on, there being no claim that the defendant is unable to respond in damages. In this conclusion we think the court was right; but whether right or wrong, there was no such abuse of discretion as would warrant us in setting aside its order. “ It accords with the theory of our system that the supreme court shall have the benefit of the judgment of the district [now superior] court at the final hearing below, and, except in a clear case, we ought not to anticipate the final judgment, .... by our action on appeal from the order granting [or denying] the preliminary injunction.” Patterson v. Supervisors, 50 Cal. 345; Middleton v. Franklin, 3 Cal. 238; White v. Nunan, 60 Cal. 406.

The fact that the work sought to be enjoined is one of a public nature, one which affects the public convenience, and that there is no doubt of the ability of the defendant to respond in damages, are important matters to be considered in determining the right to an injunction. (Real Del Monte Consolidated G. & S. Min. Co. v. Pond G. & S. Min. Co., 23 Cal. 84; Logansport v. Uhl, 99 Ind. 531; 50 Am. Rep. 109; Payne v. English, 79 Cal. 540; Crawford v. Bradford, 23 Fla. 404; Omaha Horse R’y Co. v. Cable Co., 32 Fed. Rep. 727.)

Counsel for appellant seems to fear that unless the city is compelled to make compensation before the work is completed, plaintiff will be left without a remedy for the damages sustained by her, the provisions of the code with respect to eminent domain being the only procedure prescribed for assessing the damages. In Reardon v. San Francisco, 66 Cal. 506, 56 Am. Rep. 109, the court said: “If compensation has not been had in condemning the land for the street under the statute for such condemnation, it can be recovered in an action.” The question as to what damages are recoverable by abutting owners in cases of obstructions in public streets by muliicipal corporations acting in behalf of the state for the better convenience of the public is not necessarily before us on this appeal. The subject, we may say, however, in thus passing over the point, was thoroughly and carefully considered in Reardon v. San Francisco, 66 Cal. 506; 56 Am. Rep. 109. Other points made by appellant do not require notice.

Order affirmed.

Fox, J., McFarland, J., and Sharpstein, J., concurred.

Thornton, J., concurred in the judgment.

Rehearing denied.