Los Angeles daily herald., 1889-06-05

community at large. 1t IL not sufhcient that
the access is more difficult and inconvenient.
The public have the same difficulty ana inco :
Coming es and goins din 70 and and from his lot" THIS
is in substance the rule on this subject laid
down in the case of /. B. and W. Ry. Go. VS.:
II 81 RsP
The following cases are suostantlsIy 70 tne
samecfect, and sc mo of them are even H,rong T
against the plaintiff san IA Jose S1sm maVsh Hs seSa
ienberger. Al Cal, 451; Marine vs., Graham,
81 Csl, 131; Bigtry vs.. Nunan, 53 Cal; 4o4;
C. B. U. P. r. r. Co. VS.. A. y. Audrsns, Il Fac
r. $50: Chicago VS.. Union Building Asso-
citation 1O2. III, 379: Crowley VS.. Davis, 63
Cal, 46l; Hogan VS.. C. P. X. r. Co., II Cal, So.
The only injury which the plaintiff has M
D pointed out in mis- complaint. or established on
the hearing, is that arising from the diversion
of travel, thereby making the property less
valuable as site for business. That all the
from passing in front of plaintiffs lot. cannot
be doubted. But If such injury does occur DO
not think i5 will entitle the plaintiff to any re-
lief. He has no proprietary or vested rlght IN IN
the travel. 1t seeks its own route without MS
control, and it may be diverted without any
compensation to him. The city has the exciu-
sive right to locate its bridges where IT Will
The plaintiff has no right to have this one re-
main at First street. The diversion OF travel is
clearly not such damage as the CONSTITUTION
was intended to provide for. The plaintif mas
no direct interest in the travel, such as street
railroad has. He can charge no toll. His
benefit consists wholly in attracting travellers
in passing and causing them to turn aside A
num Der OF cases are cited for plaintiff in sup
port of the proposition that loss of business by
diversion OF travel is such a special iDinry as
will justify the recovery Of damages. Upon eX-
animation DO not find them aPpilcs pie 70 tnls 5
part of the property is taken, and where ills SO
situated as to interfere with the business car
ried on in the other part. They do not refer to
a loss of custom.
Aside from the prospective loss of business
the plaintiffs do not specifically point out any
cause of injury. "Argumentative allegations,
or iufeIences from facts stated" are not SUM c
lent High Inj. Sec. 35 1t is charged that 1t
prevents him from ren,ing the premises be-
cause the tenants say the viaduct Will inter
fere with their business. This is not an allega-
ton that it will interfere with their business.
1t IS also charged that the rental value Will be
reduced and the BUILDING will be rendered use
less for business purposes. No reason is gwen
for this fact, but the anifest inference Is that
it will be because of the diversion of travel.
1t is said that the lot will be made worthless.
This is also manifestly deduction. The facts
stated and established at the hearing do not
sustain these allegations, except SO far as the
damage may be caused by the diversion of
travel There is a space from 16 to 1S feet
wide between the viaduct and the sidewalk in
front of the plaintiffs lot. There will be no
occasion for travellers to pass in vehicles in
front of the lot, and it is clear that this space
ants. In the case of Hogan v. G. P. r. R. Co.,
II Cal, 85, q railroad 35 feet from the plain
tiffs lot was held not TO be a special injury,
though it obstructed the means OF ingress snd
In Ripley vs. Nunan, So Cal, 403, fence
cutting off one-half of the street was held not
to be special injury to lot on the opposite
side of the street. In Morris Railroad VS.. Prud-
den, 20 N j., Eq,, 532, width of twenty nine
feet next to the lot was held sufficient as a
means of access to the lot. The case OF Cohen
vs. Cleveland, 43 Ohio St., 1914 is cited by
plaintiff as case in poiot in his favor The
facts in the case are similar to the plaintiff S
case, but the Court. in deciding 1t, do not ma Ike
any distinction whktever between special in
jury and an injury in comm on with the public.
And a critical examination OF the opinion, anu
of the authorities cited in support of it, clearly
shows that the only principle the Court in
tended to decide is that cities are liable in
damages for the acts of their officers causing
an injury, although the acts were done law
fully and without malice or negligence. And
even this doctrine is admitted to be peculiar to
Ohio. 1t is undoubtedly not the law in this
State, cept where the injury is special, and
then only by virtue of the Constitution. The
New York Elevated Railroad cases, cited by
plaintiff are based on the proposition that the
use OF a street for such purpose was burden
not contemplated nor authorized by the original
dedication, and different from its use as a
street. Dsucker vs. Manhattan Railway Com
pany, IL N. E. Rep, 500. This proposition is
not tru of the viaduct in question here. 1t is
10 be used as palt of the street. The doctrine
of those cases as TO what is special injury,
different in kind from the public injury, is CON
trary in most particulars to the rule in Califor.
fornia.
do not think the plaintiff has shown such a
special injury as would entitle him to damages
under the Constitution, and that his application
for an injunction should be denied.
LUCIEN SHAW, Judge.
June 4, 1889.
At the afternoon session of the Court a
motion was made by the plaintiffs at.
torney for a stay of proceedings until
they could give bond on an appeal.
Judge Shaw denied the motion.