Los Angeles daily herald. [microfilm reel] (Los Angeles [Calif.]) 1884-1890, 1889-10-13
STREET RAILROADS.
Steam Dummies May Not be
Used for Them.
THAT DECISION IN FULL.
What Judge Clark Said in the Case
of the Cahuenga Valley Road
Using Steam.

Reference was made in the HERALD
yesterday to decision of Judge Clarke
as to the Cahuenga Valley railroad.
This case was originally brought in the
name of the people of the State to COM
pei the removal of the track of the de-
PENDANT corporation from Temple and
other streets in the city, and to restrain
it from operating steam engines over
those streets. In view of the importance
of the case tc the residents of this city,
all of whom are interested in having
Temple street freed from this nuisance,
which has go long obstructed it, the orig
inal opinion Of the Court is given in full ::
| THE DECISION.
| This is an action brought In the name of the
people OF the State OF California against the
| Cahuenga Valley Railroad Company to abate
what is alleged to be public nuisance.
| The suit Is brought by the Attorney General,
and is upon the relation OF A. H. Merwin and
W. Z. Rogers.
| The complaint is in two counts, and alleges
| in substance that the defendant corporation
| keeps and maintains railroad track upon GER
tain public streets of the city of Los Angeles.
and causes cars propelled by steam engines to
pass over and upon the same.
| That said engines in passing along said streets
| Il
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 thu maintaining and
operation of said road hinders and obstructs
the free. use and enjoyment of said streets by
the public.
| on said streets by defendant is without license
| or authority of law, and is q public nuisance.
| The answer of defendant admits the location
and operation OF it's railroad upon the pdblic
| streets named in the complaint, and denies all
other material allegations,
1t denies that the operation of said road is
| without authority of law and sets forth 'Ordi-
nance No. 271 of the city of Los Angeles, grant
| ing right of way to John s. Mailman and
others; an assignment to James Mclaughlin of
building of said railroad by Mclaughlin under
said francnisement and assignment and that
the defendant corporation has succeeded TO
the ownership of said road and franchise. 1t
denies that the operation of said road by de-
PENDANT constitutes public nuisance.
Civil Code, sec. 3479 defines a nuisance to
be"anything which is injurious to health or in
decent or offensive to the senses or an OBJ
sruction TO the free use of property, so as to in
| terfere with the comfortable enjoyment of life
| and property, or unlawfully obstructs the free
passage or use in The customary manner of any
navigable lake or river, bay, sire am, canal or
basin, or any public park, square, street or
| 348O defines public nuisa to be one which
| affects at the same time an entire community
or neighborhood or any considerable num- Der
| of persons, although the extent of the annoy
ance or damage inflicted upon individuals may
| be unequal.
1 am Of the opinion that the allegations of
the complaint that the engines of defendant in
passing along said streets, cause great noise,
| emit large quantities of smoke and cinders.
brighten horses; end 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 operating of said road Oh
structs the free passage and prevents the use in
| the customary manner of said streets, were
| proven by prepOnderance of the testimony
adduced at the trial.
1t follows, therefore, that If the operation of
said road be withoutlawful authority it consti-
unless some Of the technical points made by de,
defendsnt are brieay as follows: s a. THAT
the Court Is without jurlsdiction ~ that
the remedy sought and the method of procedure
law: ~ that the right of the defendant corpo-
ration to operate its road under its franchise,
and the right OF the municipal corporation OF
can be inquired into by direct proceeding only,
and not by collateral attack; ~ that the de-
PENDANT corporation Is operating its railroad
under lawful aul herity, and it cannot therefore
| be deemed nuisance.
In support of his first position, defendants
counsel cites the constitution of 1879. srticle
VI, section g. That section defines the juris-
diction Of the Superior Court and reads as fol-
lows;
diction in all cases OF equity, and in all cases in
law involving the title or possession of real
property. or the legality of any tax, impost, as
sessment. toll q municipal fine, and in all
other cases in which the demand, exc, usive of
interest or the value OF the property in contro-
versy amounts to three hundred dollars; in all
criminal cases amounting to felony and in
cases OF mlsdemeanOr not otherwise provided
for; OF actions of forcible entry and detainer;
OF proceedings in insolvency; Of actions TO pre-
vent or abate nuisance etc.
The position of the defendant is that this last
provision OF the section especially comforting
upon the Court jurisdiction of actions to pre-
vent or abate nuisance, changes the nature
or d, special action; that the complaint
in this action is In the form of a
6ill in .,.. equity; that it appeals to the
| ton.
Defendant claims to, find authority for this
Pac. Rep 1913.
That case was heard first in Department, and
afterwards in Bank ,67 CAL, AZ.
The only point decided in that case was that
an action to abate nuisance brought in the old
District Court was cause in equity, and
SUPPORT iudKment GENERAL yerS 9iss oi b 70
jury being insufficient. It did not decide that
the provision of the Constitution above refer
red to. giving to this Court jurisdiction of ac-
the form of the remedy. 1t ia true that in th Q
opinion delivered by the Court in Department
The section lsec. 5, Article VII Golfers upon
the Superior Court jurisdiction in all cases in
equity, and then separately, "Of all actions to
| prevent or abate q nuisance" This last men,
toned clause can be given effect only by sup
posing an intent to confer the power to deter
mine such actions as a tribunal special and not
| equitable with reference to them" Still in
| the opinion delivered in Bank, the
Court expressly said: ut is unnecessary
to consider whether sctions commenced in the
superior Court for the prevention or abatement
| OF a nuisance under the provision which gives
| to such courts original Jurisdiction n all cases
IN equity and of actions to prevent or abate
nuisance are cases in equity or actions of law"
/ am OF the opinion that it was not the intent of
Ithe Constitution to deprive the Superior Court
OF its equitable jurisdiction over nuisaEces or,
to use the language Of the Supreme Court. to
a tribunal special, snd not equitable. More
over, / think that the case of Learned VS.
CASTLE, Supra, is an authority against, rather
than in favor Of defendants position.
This INTENT II 1t existed at all, existed at the
adoption of the Constitution Of 1868. That
District Courts original jurisdiction, ''in all
| cases In equity" and to the County Courts
(Article vi, section 81 original jurisdiction "of
actions to prevent or abate nuisance"
| Had 1t been the intent therefore to make
such actions proceedings, special and not
been vested In the County Courts; aud yet in
| the case above referred to, the Supreme Court
| held that the District Court had power to hear
| and determine such actions under its grant of
equitable jurisdiction. The intent of Article
| VI, Section 5, Constitution of 1879, was,
think, simply to combine In the Superior Court
the powers formerly possessed by the District
and County Courts
But whether the remedy be at law or in
equity, l do not consider material It ia clear
| that the Court has jurisdiction.
While 1t is true that the distinction between