Los Angeles daily herald., 1889-06-05
DISSOLVED.
The Injunction on the First
Street Viaduct.
JUBILANT BOYLE-HEIGHTERS
The Contractors can now Finish
the Bridge Across
the River.

y
became known that Judge Shaw had de-
cided the motion of the City Attorney tc
dissolve the injunction restraining the
city from building the First'street via
duct in favor of the city. This iniunc'
ton has stopped work on the building Of
the approach to the river for some time
and now that it has been dissolved, the
bridge builders can go ahead. The ma.
terial is on hand for building the viaducl
up to the river, but it is stated that the
material for crossing the river is not on
hand, and the bridge would not have
been completed even if the injunction had
not been put on the work. Judge Shaw's
decision in the case is as follows:
This case is presented upon the hearing OF an
order for defendants to show cause why an in
junction should not be issued restraining them
from building q viaduct en- First street IN Los
Angeles city. The Gable Railroad Company
filed complaint in intervention in opposition
to the plaintiff. Both parties filed afhdavits,
which were read in connection with the plead
ings on the hearing Tho Ff9m tine compliant
me to be the facts: The plaintiff is the owner
of a lot fronting eighty feet or more on the
north side of First street at the corner OF First
First street is eighty feet wide. The com
plant does not, in terms, allege that the
plaintiff owns the fee OF the street, and the
answer AYERS that the City owns the fee. The
Santa Fe Railroad has three tracks crossing
First street, the main track crossing short
distance east Of the plaintiffs east line, and
the Los Angeles river, which is about
375 feet east of the plaintiffs lot
For the purpose of these three tracks and the
river by one bridge, the city is erecting the via
duct in question 1t begins on the natural sur
face of the street at point about IL 4 feet west
of PLAINTIFF lot, and rises 80 that 1t is about II
high at his east line. 1t is 4s feet in width and
occupies practically all of the street, except a
strip about % feet wide on the SIDE next to the
plaintiffs lot. In front of plaintiffs lot it is
elevated so that teams may go under it, and
the columns are far enough apart to allow
vehic es TO pass between them. There is room
between the viaduct and the piaintihs lot for
ample means of access to the lot for all pur-
poses for which it has been or is likely to be
used, and for light and air to enter plaintiff 8
property in reasonable quantity When the
bridge is finished there will be no means of
crossing the river, nor OF passing along First
street beyond the river bank, except by means
of the viaduct and all travel across the river to
and from the business, portion OF the city, ex-
cept on foot, will be diverted from the former
surface of the street In front of plaintiffs lot,
and will be compelled to pass over the viaduct.
so that persons crossing the river on horse back
or in vehicles wishing to stop at plainiiffs s
premises win be compelled to turn at the en-
trance to the viaduct and travel three times
along the space from there to plaintiffs
premises.
The prospect of this condition of affairs has
cause plaintiffs tenants to quit the premises,
and its continuance will materially reduce the
rents and value OF the property, chiefly from it's
being less desirable as a business location. The
City, in making the change proposed in the
bridge and street. is acting within It's powers,
Charter. At any rate, no illegality has been
called to my attention, Nor charged in the COM
plaint. No compensation to plaintiff for any
damage he has suffered or may suffer by reason
of this viaduct and bridge has been made, nor
have any proceedings in condemnation to as
sess such damages been instituted. The City
offers TO pay the amount of damages fixed by an
arbitration, which was set aside. but plaintiff
refuses to take that amount. The plaintiff asks
that an injunction issue restraining the defend
ants from continuing the works until his dam
ages are legally assessed and paid.
1. The Constitution provides that private
property shall not be taken or damaged for pub
lie use without Just compensation having been
first made to. or paid into court for, the owner.
Article /, Section IA. It is well settled that
where property is about to be taken
for public use without COMPENSATION,
an injunction may be issued on
application of the owner and the taking
restrained until compensation is made Most
constitutions which did not provide compensa'
ton for property not take n, but damaged. In a
case of this kind where there is no direct and
positive allegation that the plaintiff owns the
fee in the street, and the defendant denies such
ownership and AYERS ownership in itself, par
ticu,arly of that part Of the street OH which the
viaduc situated, iact alleged @ Dy inner
ton, if it is denied. High on injunctions, sec
ton rs There is, therefore, no taking of the
plaintiffs property as @ the Wora IS oralnsriiy
it is because his property is damaged. The
question whether an injunction VIII be granted
where property is not taken for public use, but
is only damaged by public use OF adjoining
property, is one OF some difficulty, and on
which there is some con flict OF authority.
The general rule OF equity is that where there
ia NOT an appropriation or destruction of prop
erty. but merely damage to it, an injunction
will not be granted unless the defendant is in
solvent, or some other reason exists which
would prevent recovery In an ordinary &C
ton for damages The reason of the
ruIe is that the recovery of the
damages will fully compensate the injury, and
on injunctions secs. 459, AGO, 485i 1t is not
like the case of nuisance made by private
persons which is wrong in itself and cannot be
is in itself lawful, and the only thing of which
plaintiff can complain is the failure to make
compensation. 1t is. indeed, contended by
plaintiff that the city cannot condemn private
pse is not provided for in Section 1898 of the
Code of Civil Procedure. But think viaduct
is included in the Term 5 nrages dibes IN suSdly
uses tor the benefit Of city, which "a may be
authorized by the legislature" And 1t is con-
ceded that the power 70 make sucn an imp owe
ment is given by the Charter, 80 tnat II must De
held to be lawful.
II seems reasonable, therefore, to conclude
that, as the failure of the defendants to first
asC ertain and pay the damages is the only mat
ter of which the D iaintiR can complain, and as
the defendants are conceded to be solvent, the
plaintiff can easily obtain his rights by an ac-
fiOn for damages, and is not entitled to al 1n-
junction. The plaintiff, in answer to this
Droposition in sists that under the decisions in
This state an action for damages will not lie
against municipal corporation, @ ana ,, ctes the M
cided, and Winbigler VS.. Los Angeles, 40 Cal.
81 This seems to be the rule so far
as ordinary personal injuries are concerned.
But in the case of Resrdon VS.. San Francisco,
66 Cal 492, it is directly decided that an ac-
ton for consequential damage to property own
ers caused by an appropriation OF adjoining
property to public use, will lie against mu,
Iltf al corporation because efthe constitute Al
mr. oyision am now considering. This obJec-
tion there ore, has no foundation. The follow
ing cases seem to hold that where property is
not taken, but suffers consequential damages
only the owner is confined to his action Tor
damages and cannot have an Injunction: Lorie
VS.. Nor h Chicago Railway COMPANY 90 81 NJ req
Eq 532; Zabriskie vs. Railroad Company, l3
N, ]. Eq 3l4; Osborne ys. NJ. P: r; Company,
"a Fed. Rep, 81; stetson vs.. Railroad Com,
nany rs nj IA. The cases. however, are not
as precedents, because they are not
based on provision requiring tbs damage TO
be paid in advance, as our constitution Goes.
For this reason prefer not to base the decision
upon this point.
., The pext question that arises is, whether
The plaintiff has shown such an injury as Will
entitle him to an injunction until tne aamsses M
Francisco, 66 Cal, on page 300, II Is said that
in the absence of a statutory or constitutional
provision. a consequential damage csusea
by any lawful improvement OF a street
by q municipal corporation, is not the sub
iect Of an action. And on page BOG the same
case, it is said that the provision OF our state @