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from that suffered by the public at large, authorizing a private action, although some expressions in the opinion in the later case may tend to support such a view. So far as they do this they are opposed to the general current of authority. The injury to the general public is simply the deprivation of the right of passage over the streets. The additional injury to the owner of the property is the interference with the use of his land for the purpose to which it is adapted, and the suspension of his business there carried on. It cannot reasonably be said that these results are not caused by the obstructions alleged. For all practical purposes they are directly caused by the obstructions.
It has several times been declared by this court that the owner of a lot abutting upon a public street has, by reason of such ownership, a special easement in such street for the purpose of ingress and egress, which is property as fully as the lot itself: See Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 42 Am. St. Rep. 149, 37 Pac. 750; Bigelow v. Ballerino, 111 Cal. 559, 44 Pac. 307; Geurkink v. Petaluma, 112 Cal. 306, 44 Pac. 570; Symons v. San Francisco, 115 Cal. 555, 42 Pac. 913, 47 Pac. 453; Williams v. Los Angeles R. Co., 150 Cal. 592, 89 Pac. 330. See, also, McLean v.
. 123 Llewellyn Iron Works, 2 Cal. App. 346, 83 Pac. 1082, 1085. This right of property is as much invaded by obstructions which have the effect of absolutely preventing access to the premises along the street as it is by obstructions preventing access from the premises to the street immediately in front of the land. As to the latter, it is thoroughly established that the obstruction constitutes a private as well as a public nuisance. The attempted distinction between the two cases appears to us to be too technical to afford a sufficient basis for a rule granting the relief in the one case and denying it in the other. So far as the comfortable enjoyment and use of the land itself are concerned, the owner is not perceptibly advantaged by being allowed to get the portion of the street immediately in front of his property if he can go no farther. In each case there appears to us to be an invasion of his rights. as a property owner, and an interference with his use and enjoyment of his property differing in kind from the injury common to the general public occasioned by the obstruction. This view may be conceded to be in conflict with the doctrine of the two cases heretofore referred to. But it is in accord with the later expressed views of this court as to the rights of an owner of property abutting on a street, and also with the overwhelming weight of authorities elsewhere: See note
to Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123; Fossion v. Landry, 123 Ind. 136, 24 N. E. 96; Indiana etc. v. Eberle, 110 Ind. 542, 59 Am. Rep. 225, 11 N. E. 467; Venard v. Cross, 8 Kan. 248; Jackson v. Kiel, 13 Colo. 378, 16 Am. St. Rep. 207, 22 Pac. 504, 6 L. R. A. 254; Bannon v. Murphy, 18 Ky. Law Rep. 989, 38 S. W. 889; Brakken v. Minnesota etc., 29 Minn. 41, 11 N. W. 124; Wood on Nui. sances, secs. 648, 657, 680. See, also, Blanc v. Klumpke, 29 Cal. 156; Buchholz v. New York etc. R. R. Co., 148 N. Y. 640, 43 N. E. 76.
3. The contention that the evidence was insufficient to justify the verdict is principally based upon the objection to the complaint already discussed. It is further claimed that the evidence shows that the streets had not been so improved as to be capable of use by the public. It was shown that a sufficient width along the streets was open for use as a roadway and was capable of being used as such, and was in fact being used by the public. The case of George v. North Pacific
. Transportation Co., 50 Cal. 589, is therefore not in point. 124 The fact that the portion so open for use was in what would be the sidewalk portion of the streets, if ultimately sidewalks were constructed, is immaterial.
4. Under the circumstances appearing in the record, the claim that the platform construction placed in Winthrop street by defendants, covering the whole space which was open for travel or passage, was a sidewalk, and not a construction designed solely to obstruct travel by wagons and other vehicles, was, upon the record before us, so obviously a mere pretense that the trial court was perfectly justified in disregarding it altogether.
5. We have discussed the foregoing matters solely for the purposes of a new trial, as the judgment and order must be reversed because of improper evidence admitted on the question of damages.
In the face of proper objection an officer of plaintiff corporation was allowed to testify that the value of the time of himself and another officer from the time of the first obstruction, May 3, 1899, to the date of the commencement of the trial, March 26, 1900, was six thousand five hundred and sixty dollars, the theory advanced by the witness being practically that the whole of the time of himself and fellow-officer between those dates was occupied in defending the plaintiff corporation against the attacks of defendants, in consultation with plaintiff's attorney, and preparations for the trial of this action. We know of no theory upon which plaintiff could be
held entitled to a recovery for such loss of time of its officers, in addition to the whole loss suffered by it by reason of loss of profits, expenses incurred, and injury to plaintiff resulting from the obstructions, as to all of which it introduced evidence and claimed the right to recover, a claim sanctioned by the court in its rulings both in the matter of evidence and instructions. Counsel for respondent have not attempted to justify this ruling of the trial court.
6. The court erred in refusing to strike out the portion of an answer given by Mr. Phelan as to his opinion of the nature of the structure placed by defendants on Winthrop street, and also in overruling an objection to a question asked him as to what instructions he had given to subordinates after examining the structure, but it is doubtful if these errors should be held to have been prejudicial.
125 We find no other matter requiring notice.
The judgment and order are reversed and the cause remanded.
Sloss, J., Shaw, J., McFarland, J., and Lorigan, J., concurred.
The Owner of Property Abutting on a Public Street has a right and interest in the street distinct and different from that of the general public: Long v. Wilson, 119 Iowa, 267, 97 Am. St. Rep. 315; note to Wright v. Austin, 101 Am. St. Rep. 106. And where an obstruction to the street occasions him an injury differing not merely in degree but in kind from the damages sustained by the general public, he is entitled to relief: State v. Goodwin, 145 N. C. 461, 122 Am. St. Rep. 467; Sloss-Sheffield Steel etc. Co. v. Johnson, 147 Ala. 384, 119 Am. St. Rep. 89; Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 105 Am. St. Rep. 1007. An individual may maintain an action against one who constructs a building across the street some two hundred feet from his residence between it and the business part of the street: O'Brien v. Central Iron etc. Co., 158 Ind. 218, 92 Am. St. Rep. 305. A private individual may maintain a bill to enjoin the erection of a building on an adjoining lot, so as to extend into the street, and thereby obstruct his easement of view and of light and air: First Nat. Bank v. Tyson, 133 Ala. 459, 91 Am. St. Rep. 46, 32 South. 144. And a private person may sue to enjoin the obstruction of a public highway as a public nuisance where he owns a farm, orchard and nursery adjacent to the road, and there is no outlet for his products except by such highway: Smith v. Mitchell, 21 Wash. 536, 75 Am. St. Rep. 858, 58 Pac. 667. But see Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 87 Am. St. Rep. 600, 62 N. E. 341.
LOS ANGELES RAILWAY COMPANY v. CITY OF LOS
[152 Cal. 242, 92 Pac. 490.] FRANCHISE, Forfeiture of Ipso Facto.-A statute providing for the obtaining of street railway franchises, specifying certain provisions, and declaring that a failure to comply with either of the provisions or with any of the provisions of any ordinance granting the franchise works a forfeiture of the right of way and franchise, is self-executing, and no adjudication or other judicial proceeding is necessary to declare the forfeiture. (p. 56.)
STREET RAILWAYS, Forfeiture of Right to Lay Track of.Upon the breach of a condition or provision which, by the statute, has the effect of forfeiting its franchise, a street railway has no more right to lay its track than if it never had been granted such right. (pp. 56, 57.)
STREET RAILWAYS, Right of Municipality to Resist by Force.--If the right of a street railway company to lay additional track has been forfeited by the lapse of time, the municipality has the right to resist by force any attempt to lay such additional track. (p. 57.)
Bicknell, Gibson, Trask, Dunn & Crutcher, for the appellant.
W. B. Mathews, Leslie R. Hewitt, Herbert J. Goudge and Lewis R. Works, for the respondent.
243 BEATTY, C. J. This is an appeal by the plaintiff-a street railway corporation-from a judgment of the superior court denying its praver for an injunction restraining the defendant from interfering with the exercise of an alleged franchise. The record consists of the pleadings, certain stipulated facts, and the decree, from which it appears that, by an ordinance of the city of Los Angeles, duly adopted May 11, 1897, the predecessors of plaintiff were granted a franchise to construct and operate a street railway over and along certain streets of that city—the work of construction to be commenced within six months, and completed within eighteen months from the passage of the ordinance. By a subsequent
a ordinance the time of completion was extended six months, but at the end of this extended time—May 11, 1899—only one and three-quarter miles out of four and three-quarter miles of the projected road had been built, leaving one mile at one end and two miles at the other end of the route covered by the franchise entirely meant and unoccupied, in which condition it remained until May 1, 1903, a period of four years. One of the express conditions contained in the ordinance granting the franchise was the following: “If said road is not fully completed and in operation within said time, then this franchise shall be forfeited as to the portion thereof uncompleted.” The grantees of the franchise paid the city therefor the sum of five thousand dollars. No ordinance declaring the franchise forfeited was ever passed or adopted, but, on May 15, 1903, while the plaintiff was engaged in the work of extending its tracks over a portion of the route described in the ordinance which had been left unoccupied from May 11, 1899 to May 1, 1903, the defendant, by its police officers and superintendent of streets, entered upon this new construction, compelled plaintiff to suspend work, and threatened to tear up and remove the newly laid tracks.
To enjoin this proceeding the present action was commenced May 15, 1903. It appears from the decree that an injunction pendente lite was issued restraining defendant, its officers, agents, etc., from tearing up, removing, destroying or in any wise interferirg with the new portion of the track then in process of construction, and this temporary injunction remained in force until October 12, 1905, when it was dissolved by the final decree from which this appeal is prosecuted.
244 The question whether the superior court erred in dissolving the temporary injunction and denying a permanent injunction depends mainly upon the further question whether the franchise of plaintiff was forfeited ipso facto by its failure to complete the road within the time limited by the grant. The respondent claims that it was so forfeited under the provisions of section 502 of the Civil Code, while the appellant contends that without a decree declaring a forfeiture in an action by the attorney general in behalf of the state, the franchise remained unimpaired. It is argued in support of this view that nothing is involved in this controversy beyond the respective rights of the plaintiff and defendant growing out of and dependent upon the ordinance granting the franchise, which, it is contended, embraces all the terms of the co. 'ract, and which upon the received construction of grants providing for forfeitures upon breach of conditions subsequent means no more than that their breach entitles the grantor to maintain an action to enforce the forfeiture. The respondent, on the other hand, contends that section 502 of the Civil Code in force at the date of the grant is a part of the contract, and that it is self-executing in working a forfeiture for failure to complete the construction of the road within the time specified in the ordinance.
We agree with the appellant that the rights of the parties are measured by the terms of their contract, but we think the