Los Angeles daily herald., 1889-08-24
ABATING A NUISANCE.
The CahuenEa valley Railroad
Declared one.

Declared one.
Judge Clark OF the Superior Court
on Thursday, handed down decision fol
the plaintiff in an action brought in the
name of the people of the State of Cali.
fornia against the Cahuenga Valley
Railroad Company, to abate a
public nuisance. The suit is brought by
the Attorney-General and is upon the
relation of A. II. Merwin and w. E.
Rogers. The complaint alleges that the
defendant keeps and maintains railroad
track upon certain public streets of the
city of Los Angeles and causes cars pro-
PEELED by steam engines to pass over and
upon the same. That said engines in
passing along said streets cause great
deal OF noise, emit volumes of dense
black smoke and great quantities OF
cinders. That the rails of said road
project in places from three to five
inches above the grade of said streets,
and that the maintaining and operation
of said road hinders and obstructs the
free use aud enjoyment of said streets by
the public. 1t is also alleged that the
operation of said road on said streets by
defendant is without license or authority
of law and is public nuisance.
The answer OF defendant denies that
the operation of said road is without au-
thority of law, and sets forth Ordinance
No. 27l of the City of Los Angeles, grant
ing right-o way to John S. Mailman
and others; an assignment to James Nc
Laughlin of the franchise granted by said
ordinance; the building of said railroad
hx, Mol opnb1;p ,,y,dar coi5 fronoh;so I'D
assignment, and that the defendant has
and franchise. 1t denies that the opera
ton of said road by defendant constitutes
nuisance.
The decision treats principally the
points of law raised by the pleadings in
and form of remedy. Judge Clark holds
and that the remedy is by equitable pro-
ceedings: He says:
81 ana Of the opinion that the allega-
tions of the complaint that the engines
of the defendant, in passing along said
streets, cause great noise, emit large
quantities of smoke and cinders, frighten
horses, and that the iron rails of said
road project in places from three to five
inches above the grade of said streets,
and that the maintaining and operation
of said road obstructs the free passage
and prevents the use in the customary
manner of said streets, were proven by
a preponderance of the testimony ad-
duced at the trial. 1, follows, therefore,
that if the operation of said road be
without lawful authority, it constitutes q
public nuisance, and must be abated,
unless some of the technical points made
by defendant be well taken. The points
made by defendant are briefly as follows
First-That the Court is without juris-
diction.
Sscond-That the remedy sought and
the method of procedure taken is inn
proper and without authority of law.
Third-Thst the right of the defendant
to operate its road under its franchise,
and the right of the municipal corpora
ton Of the city of Los Angeles to grant
said franchise can be inquired into by
direct proceeding only, and not upon
collateral attack,
Fourth-That the defend ant is operat-
ing its railroad under lawful authority,
and it cannot, therefore, be deemed a
nuisance.
The decision is that the ordinance (271)
granting the franchise is a nullity, be-
cause the city has no power to grant
franchise for railroad to be operated by
steam, and that the operation of the Ca
huenga Valley railroad is a nuisance
which must be abated. The plaintiffs
are directed to draw the findings and
iudgmeut,p The case will be appealed