82 P. 640 | Cal. Ct. App. | 1905
The plaintiff is the owner of a lot of land in the city of Visalia, fronting on the east side of East Street, on which, from a date anterior to the transactions involved in this case, he had, and had been, operating a foundry and machine-shop and repair-shop for machinery. The defendant is the successor in interest of The San Francisco and San Joaquin Valley Railway Company, and is maintaining in East Street, between the main track of its road and the east line of the street, a side-track erected by its predecessor on an embankment of about two feet elevation, which prevents access to the plaintiff's premises, and has thus seriously interfered with the use of the premises for the purposes of his business. The suit was brought for resulting damages, and plaintiff recovered verdict and judgment for eight hundred dollars — being the damages suffered by the plaintiff from the commencement of the maintenance of the nuisance by the defendant to the commencement of the suit. The appeal is from the judgment and from an order denying the defendant's motion for a new trial.
The points urged by the appellant, or those that need be considered, are: 1. That the side-track and embankment were constructed by its predecessor under an ordinance of the city of Visalia authorizing their construction, and hence were not unlawful, and consequently not a nuisance; 2. That under the pleadings and evidence in the case plaintiff was not entitled to recover more than nominal damages; and 3. That demand upon the defendant for abatement of the nuisance was essential to plaintiff's action, and that such demand was not made.
1. In support of its first point the defendant relies upon the license given its predecessor by subdivision 5 of section *443
465 of the Civil Code, "to construct its road over the street," and an ordinance of the city of Visalia authorizing it to do so. But in the license pleaded it is expressly provided, as a condition of using the street, that the corporation shall restore it "to its former state of usefulness as near as may be, or so that the railroad shall not unnecessarily impair its usefulness." Under these and preceding provisions of the law, it has been held in many cases in this state that the consent of the city authorities to use its street for railroad purposes "in no wise touches the question of damages to private property on the line of the street," and that the right to a just compensation for the injuries thus inflicted is in no wise affected by the question whether such consent had been or had not been given. (Southern Pacific R. R. Co. v. Reed,
There was an exception, or apparent exception, to this principle in favor of the right of the municipality to grade its streets, by which it and its proper agents were exempted from liability, unless for negligence in the work. But in this case, the defendant's predecessor was not the agent of the city for that purpose; nor would the city itself have been authorized to raise embankments over portions of the street, except as part of the entire work of grading the street. Now, *444
by section 14 of article I of the constitution, the power heretofore vested in the municipality in this regard has been taken away, and it is provided: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner." (Reardon v. San Francisco,
2. As to damages, there is nothing in the case to take it from under the application of the general rule applying to nuisances and other injuries to land (1 Sedgwick on Damages, 267, 274, 294, citing Hatfield v. Central R. R. Co.,
This may be in some cases the deterioration in the market value of the property, as, e.g., where the nuisance is a continuing one and cannot be abated. (2 Greenleaf on Evidence, sec. 468; Wood on Nuisances, sec. 856; Eachus v. Los AngelesElectric Ry. Co.,
The case of Eachus v. Los Angeles Electric Ry. Co.,
The position of appellant in this regard seems to be that the measure of damages in the case of nuisance affecting real property is the deterioration in the market value of the land by reason of the nuisance. This, indeed, is the measure of damages established by the code in suits for the condemnation of land (Code Civ. Proc., sec. 1248); but we cannot conceive upon what principle the same measure of damages must be applied in suits for damages for nuisance or trespass; and to apply it generally would be in conflict with the very definition of nuisance as given in the codes, and with the provisions of the Civil Code as to the measure of damages in case of tort, and with the authorities on the subject. For, though under the provisions of the law, as it stood before and since the adoption of the new constitution, the right to condemn *446
the plaintiff's right in the street was accorded to the defendant, yet it has not thought fit to avail itself of this privilege, and it therefore stands, as we have already said, in the position of a mere tort-feasor. Nevertheless, the appellant's claim seems to be supported to some extent by the decision in Kishlar v. Southern Pacific R. R. Co.,
In the present case, the damage to the plaintiff's land, and to the business carried on by him on the land, was clearly proven; and under the evidence introduced the amount found by the verdict cannot be regarded as excessive. (Code Civ. Proc., sec. 657, subd. 5; Boyce v. California Stage Co.,
As to the claim of the appellant that demand to abate the nuisance was necessary to the plaintiff's action, the doctrine contended for by the appellant, if previously existing, was abrogated by section
For the reasons given, we are of the opinion that the judgment and order appealed from should be affirmed, and it is so ordered.
Gray, P. J., and Allen, J., concurred.
