The San Francisco call., 1896-01-21
THAT FENCE MAY STAND,
Supervisors Have No Power to
Remove the Crocker
Structure.
The Supreme Court Has Decided Par.
allel Cases in Favor of the
Builder.

II the Board of Supervisors heeds the ad-
vice given by City and County Attorney
Creswell the fence built during the life
time of Charles Crocker about the property
of the late Captain Yung at the rear OF
the Crocker mansion on Mob Hill will be
allowed to stand, even though it hid les the
lot from the light of day and makes it use
less asa building site.
The deceased railroad magnate tried to
buy the lot from Captain Yung, but their
negotiations never came to anything, the
price asked being based on the prin-
ciple of all the traffic would bear. Rather
than have the prospect of barren build
ing lot continually before his eyes, Mr..
Crocker built a twenty-foot fence about the
three sides that joined his property and
had vines trained against the structure to
hide it from view. Recently Mrs. Rosina
Yung, the widow, petitioned the Super
visors to order the fence removed, as it
rendered her property valueless, and the
/ board was about to grant her request when
/ Supervisor Taylor warned them that suit
/ for big damages might result and pre-
! vailed upon them to seek the ADVICE of the
/ City and County Attorney before proceed
! ing in the matter. Mr.. Creswell's opinion
fled yesterday, is as follows:
To the Honorable the Board Of Supervisors of
the CITY and County OF San Francisco; l am in
receipt OF the communication OF The board
asking my opinion OF the power of the board
TO pass resolution, copy of which has been
forwarded 70 me, empowering and directing
the superintendent OF Streets to cause the re-
moval of high fence on the south side OF Sac
ramento street 761a feet west of Taylor. which
is on three sides OF lot claimed by Mrs.
ROsind Yung.
There can be no object in passing such reso-
luton if it cannot be made effective.
The proposed resolution recites as follows,
to wit: ''That number of years ago g valua-
bic dWelling-house was erected upon said lot
and the erection of said fence excluded air
light and the necessary adiuncts to habitable
life, thereby making said house uninhabitable
and the ground valueless, which resulted in
her having the house removed, leaving the lot
unoeeupIed, thus working great injury to her
The questions involved here were passed
upon by the Supreme Court of the State of
California in the case OF Western, etc. Com
pany VS.. knickerbocker, 103 Cal, page Ill
The facts in that case were as follows: The
Western Granite and Marble Company, the
plaintiff in said action, and Eugene Knicker-
booker, the defendant therein, were owners of
adjoining lots in the city of San Jose The
plaintiff had building on its lot used for
offices, which had six windows in the northerly
wall, through which only light and air could
be admitted into that portion of the building
and if such light and air were materially OBJ
structed that portion of the building would be
useless.
The defendant occupied his adjoining lot as
q residence and in 1891 built along the
division line solid board fence twenty feet
high in such manner as TO prevent the
passage of light and air into the said windows
OF the house owned by plaintiff.
The plaintiff contended that, under the act
of the Legislature of March 9, 1855, entitled
Gan act regulating the height of division
fences and partition walls in cities and towns,
the defendant could not build such fence in
excess OF ten feet in height without plaintiffs
permission: The defendant contended that he
had the right to build the fence on his own
land to any height he saw fit without the con-
sent of any adjoining owner; and if the act of
1885 attempted to take that right from him, it
was unconstitutional.
The court said as follows: seThe doctrine
that proprie tor may by user acquire an ease
ment over adjoining land for the passage of
light and air does not prevail in this country"
and again Merely owning the adjoining lot
does not give the proprietor an easement over
the property OF another for the passage of light
and air. Nor is it competent for the Ieeis-
lature to vest in such proprietor the power to
prevent his neighbor from building such
structure as he pleases, provided it is not a
nuisance, ana it is not such merely because if
obstructs the passage of light and air
''The Legislature cannot thus create an ease
ment in favor of certain proprietors over the
| lands of another nor declare the usual and
ordinary use of property nuisance when
such use intringes upon the local rights OF no
one.
'eThe court found in this case that the plant
/ ifs windows open toward defendants lawn
That this portion of his premises shall be Sc
cluded and private may be matter of great
importance to defendant. That he has the
right to secure such privacy, If he can, by
building distractions on his own land has
always been recognized by the courts"
This decision clearly recognizes the legal
right of a property-owner to build wholly on
his own ground a solid wall, even though 1t
should be so close to the house of an adjoining
property-owner and of such height as to de-
stroy his enjoyment of light and air.
The Board of Supervisors have no power to
interfere with this legal right.
HARRY T. CREswELL,
Attorney and Counselor.
On the strength of this opinion the
board has refused to order the removal of
other structures against which protests
have been lodged.