50 Cal. 592 | Cal. | 1875
Lead Opinion
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,
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
Judgment and order affirmed.
Concurrence Opinion
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.