95 P. 913 | Cal. Ct. App. | 1908
This is an appeal from a judgment, granting a writ of mandate compelling appellants, as the board of public works of the city and county of San Francisco, to issue a permit for the construction of a certain one-story frame building in said city and county, to be used as a stable.
Respondent set forth in his complaint, among other provisions of the building law of the city and county of San Francisco, section 320, which reads as follows: "Permits for public livery and boarding stables, or for stables to accommodate more than six (6) horses, will be granted upon the presentation of the written consent of the owners of property within two hundred (200) feet of the stable. Buildings for stabling animals above the first or ground floor, unless fireproof, shall not be erected nor altered."
It is also alleged in the complaint that respondent filed and submitted to the said board of public works an application in writing for a permit to erect a certain one-story building; *762 that said building was to be used as a stable in said city and county to accommodate more than six horses; that said appellants refused to take any action looking to the granting of said permit unless the respondent should present to said board the written consent of the owners of the property within two hundred feet of said stable proposed to be erected. The complaint further shows that respondent refused to comply with this demand of the board, and prays for a writ of mandate that appellants be required to receive and to examine the plans and specifications in the complaint described, and if found to embody all the requirements applicable to such cases, to issue the permit demanded.
Preliminarily, it should be stated that the business of running a livery-stable is not a nuisance per se. Whether a stable is a nuisance depends upon the manner in which it is conducted. (City of St. Louis v. Russell, 116 Mo. 248, [22 S.W. 470]. See, also, Ruffin, C. J., in Dargan v. Waddill, 9 Ired. (N.C.) 244, [49 Am. Dec. 421]; Kirkman v. Handy, 11 Humph. (Tenn.) 406, [54 Am. Dec. 45].)
In our judgment, section 320 of the ordinance is unreasonable and void, because it vests in private individuals the arbitrary power to determine whether the owner of real property may use it in the pursuit of a lawful occupation.
In the case of Ex parte Sing Lee,
The case of City of St. Louis v. Russell, 116 Mo. 248, [22 S.W. 470], involved the validity of an ordinance of the city of St. Louis, which provided that no livery-stable should be located in any block of ground in St. Louis without the written consent of owners of one-half of the ground of that block; and it was held that the city had no right to delegate to the owners of one-half the ground in any block in which a livery-stable was proposed to be erected the power to say whether it should be done or not, or to require any person desiring to construct such stable, before a building permit would be granted him for its erection, to obtain the consent in writing of the owners of one-half the ground of such block.
The building law of San Francisco provides that when the proposed building is to cost more than $1,000, plans and specifications shall be filed; that when the building is to cost less than $1,000, a written statement of the character of the improvement shall be filed. The averments of the complaint do not show whether the estimated cost of the building was over or under $1,000; but the complaint does aver that the permit was refused solely on the ground that the consent of the adjoining property owners had not been obtained. It is virtually conceded that if the building was to cost more than $1,000 the complaint is sufficient, but it is claimed that as the estimated cost of the building may have been less than $1,000 the complaint is defective. The demurrer was general only, and the defect is one that could easily have been remedied had it been pointed out or relied upon in the trial court. The record indicates quite clearly that the building was to cost in excess of $1,000. The permit was refused, as stated, on the single ground of want of consent of adjoining property owners, and the case was heard and submitted on this theory only. Under these circumstances we think the point is wholly without merit.
The judgment is affirmed.
Hall, J., and Cooper, P. J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 22, 1908. *765