Schulte v. North Pacific Transportation Co.

50 Cal. 592 | Cal. | 1875

Lead Opinion

By the Court :

1. East street, in front of the plaintiff’s lot, is a public street, duly established as such, and connecting across its whole width at its southerly end with Folsom street, a public traveled street. From its intersection with Folsom street, and running northerly in front of and beyond the plaintiff’s lot for a distance of several hundred feet, East street, as we understand the testimony, is planked over to its full width, and capable off being used for travel with vehicles or otherwise. In this important particular the case differs from George v. North Pacific Transportation Company, ante, p. 589, which turned upon the point that in that case the street had not been reclaimed from the water, so as to render it capable of use as a thoroughfare for travel, while, in the present case, there is a continuous street, capable of use as such, extending in front of the plaintiff’s premises, and to a distance of several hundred feet northerly, while at its southerly end it connects with Folsom, another public traveled street. Hor is it material by whom the street was improved so as to lit it for travel. By whomsoever the work was done, the plaintiffs, in common with the public, are entitled to use the street as a highway.

2. That the defendant maintains an obstruction on the street by which its use as a highway is impeded, and by means of which the plaintiffs are prevented from having access to their lot from East street, is admitted by the pleadings.

3. The lease from the State Harbor Commissioners on which the defendant relies does not, on its face, purport to confer any right to obstruct the street, but merely grants the right to use the water-front as a landing-place, and expressly provides that it shall not be so used as to obstruct the street as a thoroughfare.

4. The plaintiffs have suffered such special damage as entitles them to maintain the action. The proof shows that the defendant maintains a wall or bulkhead on the west line of East street, across the entire front of the plaintiff’s lot, and which wholly precludes all access to it from that street. This is a special damage which is not in common with that suffered by the public. By this obstruction, the plaintiff’s “property is injuriously affected” in the sense of the statute defining a nuisance. (Code of Civ. Proc., Sec. 731; former Prac. Act, Sec. 249.) At common law, the obstruction complained of here would have occasioned a special damage for which an action would lie. (Wood on Nuisance, Secs. 829 and 830, and authorities there cited.)

Judgment and order affirmed.

---

Concurrence Opinion

Rhodes, J., concurring:

I concur in the foregoing opinion and judgment. But I am also of the opinion that the right of the plaintiff to have access to and use of the street did not depend in any degree upon the fact that it had been planked, so that it might conveniently be used. A street is not the less a street because it may need excavation, filling, or piling and planking, and the public have a right to its use whatever may be its condition; and a private person who sustains a special damage by reason of an obstruction placed therein, may, in my opinion, sustain an action therefor. It might he more difficult to show special damage in such case, but if it be shown, the injured party is entitled to relief.