The record-union., 1896-06-27

part OF every business day.
There the court says: "Such an ex-
tensive and continuous use of the side
walk cannot be justified. It was prac-
tical appropriation, by the defendant,
of the sidewalk in front of his store. to
his private use, in disregard of the pub
lie convenience. Even If, in some sense,
such use was necessary to the conven-
lent and profitable transaction of his
business, and if the obstruction OF the
sidewalk was no more, and even less,
than it would be by any other method
of doing the business, these clrcum-
stances do not justify the obstruction.
If the defendant cannot transact his
extensive business at that place without
thus encroaching upon, obstructlng ana
almost appropriating the sidewalk DUR
ing the business hours Of the day, he
must either remove his business to some
other place, or enlarge his premises so
as to accommodate it. 1t was lncum-
bent upon the defendant to show, not
only that the use he made OF the side
walk was necessary in his business, but
also that it was reasonable in reference
to the public convenience. That 1t was
reasonable is too clear for dispute.
He might use the bridge to load or un-
load a single truck; and this he could
do at intervals during the day, at no one
time obstructing the street for any con-
siderable length of time. But there IS
no authority and no rule OF law Whlch
would warrant such an obstruction
daily for hours, or even one hour con-
tinuously. The defendant was there
fore guilty of public nuisance"
Still further upon the question OF
special damages the court finds The
facts proved and found show special
damage from the nuisance to the plalnt-
ifs. There was some proof that some
custom was turned from the plaintlff
store on account of the obstruction, and
that pedestrians We're turned to the
north side of the street before reaching
PLAINTIFFS store That the plaintiffs
suffered some special damage not COM
mon to persons merely using the street
for passage is too obvious for reason
able dispute Direct proof of the dam
age was not needed. All the circum-
stances show it,
In the case under consideration is the
use put to the permission granted IN
the ordinance unreasonable, or is the or
Ginance itself unreasonable? If the
fault lies with the ordinance itself, and
it works to the special damage of the
private individual, then by virtue of
the authorities that / have above cited
the ordinance is invalid, and the defend
ant cannot take refuge behind it for
the purpose of injuring its neighbor.
If the ordinance is a reasonable one,
and the defendant makes an unreason-
able application of it to the injury or
its neighbor, it cannot justify its acts.
We will for moment examine the or
dinance This ordinance is for the man
ifest purpose of permitting tradesmen
to exhibit in front of their stores such of
their movable wares as they may chose
to expose to public inspection. They are
generally exposed alongside of the walls
facing the STANDARDIZATION higher
than from three to four feet, and sell
dom, if ever, do they obstruct the view
of the street so as to interfere with the
public or work private injury. To such
provision / can see no objection; and
tc such uses was the ordinance intended
to apply, 1 apprehend, when the leg
islative authority enacted it. If so, the
ordinance itself was not unreasonable.
Then, we must see if the defendant
has by the alleged obstruction put the
ordinance to an unreasonable use. 1t
has placed an obstruction extending
three feet on the sidewalk and seven
feet high in front of its property, it is
true, but on the line If extended be-
tween plaintiffs and defendants prop
erty. If it has the right to have it
seven feet high, it has the right to ex-
tend it ad coelum. If it has the right to
place the showcase there seven feet
high, it could extend a wall to the top
of it's three-story building and for the
distance of three feet on the sidewalk
and display its goods upon the sides
thereof if it so chooses. This, to my
mind, would be an unreasonable appli-
cation of the ordinance.
1t is, then, apparent that defendant
cannot make an unreasonable use of
the ordinance in question. The maxim
that every one must sol use his own as
tC not injure another applies here as
In private matters. A structure such as
the defendant maintains is an unrea-
sonable application of the ordinance, be-
cause it obstructs the view of the
street, and prevents an unobstructed
view of the street on both sides of the
obstruction
We must next consider whether
plaintiff suffers such special damage
from its use as to entitle him to the
relief which he seeks.
The obstruction complained of, as I
have repeatedly stated was of the
hight of seven feet and extended a dis
tance of three feet into the street. 1t
vas of such a hight that persons com
ing up the sidewalk on the south side
Of K street from the direction of Fourth,
unless upon the extreme outer edge of
the walk, could not see the signs upon
the plaintiffs place of business, the en-
trance to his store, nor the usual ex
hibits that he might reasonably place
upon the sidewalk in front thereof
Strangers in the city looking for his
place of business might be misled and
turn back or go into defendants or some
ether store, and he thus be deprived of
their custom. This would be a special
injury to him, and while he might suffer
in common with the public and his dam
ages be in a greater degree, still if he
is specially damaged he in his indi-
yidual capacity may maintain an action
to abate the nuisance Sullivan VS..
Roger, - Cal. 24S; Gardner VS.. Strover,
50 Cal. 26; Hargro VS.. Hodgson, 50 Cal.
G24; Lind VS.. City of San Luis Obispo,
100 Cal. 341; Sec. 3,493, Civil Code)
Then, it follows that defendants mo-
tion TO dissolve the injunction, granted
herein pending trial, will be denied.
The demurrer to plaintiffs complaint
will be overruled, with leave to answer
in fifteen days.
High-class photos. Young. 421 J.