The San Francisco call., 1897-05-29
SLOTS ARE NUISANCES,
Opinion Of the Attorney of the
Health Department
Filed.
The Board Is Given Advice as to the
B,st Method of Hav ng the
Nuisance Abated

Attorney Garret McEnerney's long-de-
layed opinion as to whether unused cable
road slots are nuisance within the mean
ing OF the law has been presented to the
Board of Health 1t reads as follows:
In answer to your communication of the
Goth inst, calling my attention. to previous
comm unications on the subject, relating 10
the duty of street-railroad companies, of San
Francisco in relation to the streets upon which.
they main tain their tracks, L beg toreport as
follows:
l. Ii street railroad company vol ates its
franchise or abandons the use of it an action
can be brought in the name OF the people OF
the State OF California by the Attorney
General, or with his permission, to forfeit the
franchise for misuser or aon-user, us the case
may be.
2. If railroad company maintains g nul-
sance in the form OF non-used cable roadbed
with all open slot, which allows debris to COL
lect there in manner injurious 10 the health
OF an entire community or neighborhood or
any considerable number OF persons. that con-
stitutes a public nuisance. A public nuisance
can be abated 10 an action brought in the
name OF the people of the State OF California
by or with permission OF the Attorney-Gen-
eral. would have replied to your c0mmuni-
cation OF April 2l earlier, but | desired to
satisfy myself whether an action could be
IN ain tanned to abate all the unused tracks OF
one company In one action, or whether a
separate action would have 10 be brought on
account of each franchise. l am not yet salts
fed that they can be included in one action,
anu, as dI present dQNlSeu, L JDllk lne SAFER
course would be to bring an action on each
separately.
Whether the maintenance of these unused
cable road beds constitutes a public nuisance
or not is question of fact of which the Board
OF Health Is a better judge than am.
The duty OF street railroad 10 keep the
stree is upon which its road bed is in good re-
pair is to be found in section 49S of the Civil
Code, subdivision 2, which prov des that the
municipal authorities in granting right of
way TO street railroads must require the per-
son to whom the franchise is gwen TO plank,
pave or macadamiZe the entire length OF the
street used b. their track between the rails
ana for two feet on each side thereof, and be-
tween the tracks, If there be more than one,
and to keep the same constantly in repair,
This law has been N effect since March 20,
1870 (see statutes of 1S69-70l
By reference 10 the act OF March %, 1870, 1t
VIII be seen that the railroads were required
10 pave macadamize the municipal
authorities might direct. The provisions OF
the Civil Code now IN force and above men
toned do not in terms authorize the muni-
clpal authorities to designate where IT shall
be planked, paved or macadamiZed. 1t may
be That they would be authorized in granting
the franchise TO designate whether 1t should
be planked, paved or macadamiZed. On the
other hand, ii might be claimed by the rail-
road corporations that they were authorized
TO either plank, pave or macadamize, as they
should choose, and without regard 10 the kind
OF material with which he street i'm media lately
adjacent was improved. II is nv opinion,
however, that fair construction of the stat
ute would require them to conform TO the kind
OF material used on the street or streets upon
winch their road bed was LAID.