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District Court of Appeal, Fourth District, California.


Civ. 2783.

Decided: August 27, 1941

Chas. Lloyd Clearman and E. H. Delorey, both of Los Angeles, for appellant. Ray L. Chesebro, City Atty., Frederick von Schrader, Asst. City Atty., S. B. Robinson, Chief Asst. City Atty., Francis H. Lindley, Asst. City Atty., G. Ellsworth Meyer, and Alfred H. Driscoll, Deputy City Attys., all of Los Angeles, for respondents.

This is an appeal from a judgment dismissing appellant's action upon the order of the court sustaining respondents' demurrers to appellant's amended and supplemental complaints without leave to amend. The case stated by the pleadings, so far as material, is substantially that the plaintiff is the owner of land in the City of Los Angeles abutting on an alley which the city council had ordered closed; that the Department of Water and Power (hereinafter called the Department) is a part of the municipal corporation, City of Los Angeles, and operates as a unit with full proprietary capacity; that the Department filed a petition asking for the vacation of a portion of the alley which touched the rear of plaintiff's property on First Street between Boylston and Corto streets; that said petition alleged that the vacation was required in order that a valuable property right of the City of Los Angeles and the Department might be utilized, and particularly that permanent buildings might be erected upon said land; that no other corporation or person, or anyone representing the public generally joined in said petition but that the requested vacation of said alley was wholly instigated by the Department; that notice of intention was published; that plaintiff filed her protest which was heard and by the council denied; that the Planning Committee of the City Council approved the passage of an ordinance providing for the vacation of said alley; that at the present time the matter is before the City Council for final passage; that defendants, without regard to plaintiff's rights, have caused an excavation to be made in said alley rendering passage along same impossible; that defendants are about to begin construction of a building over and across said alley; that ingress and egress to plaintiff's property over and on that part of the alley appropriated by defendants has been destroyed; that a valuable property right of plaintiff has thereby been destroyed; that her right to its use as a member of the public has been destroyed; that the vacation is solely for the benefit of the Department; that public interest and convenience does not require the closing of said alley; that for this reason the proceedings are void; that a legal fraud is being practiced upon plaintiff; that appraisers to assess benefits and damages have not been appointed as provided for in the Street Opening Act of 1889, p. 70, resulting in a loss to plaintiff of a valuable property right; that plaintiff was wrongfully included in the assessment district; that the Department was negotiating to purchase her land when officials became angry with plaintiff, claiming she wanted an exorbitant price; that plaintiff has offered to sell her land at a reasonable figure; that the defendants are deliberately trying to make her suffer for not capitulating to the demands of the Department; and that plaintiff's property right is being taken without due process of law and without compensation.

In the supplemental complaint plaintiff alleges that the City Council has passed the final closing ordinance; that the said ordinance is void and constitutes a legal fraud against plaintiff. Plaintiff prays for declaratory relief and injunction. A plat and exhibits are attached to the amended complaint. The plat shows that the portion of the alley to the rear and contiguous to plaintiff's property is not closed. Plaintiff is affected only as her right to the use of the alley as a means of access to Boylston Street is destroyed.

The question is whether this is a valuable property right the destruction of which gives her a cause of action. We are of the opinion that it is.

In Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, at page 617, 37 P. 750, at page 751, 42 Am.St.Rep. 149, is a statement of the law which is applicable in this case. The court points out that:

“The right of the owner of a city lot to the use of the street adjacent thereto is property which cannot be taken from him for public use without compensation; and any act by which this right is impaired is, to that extent, a damage to his property. When a city subdivides a tract of land, of which it is the owner, into blocks and streets, and sells the same, it thereby dedicates the streets to public use, and the purchaser of one of those lots acquires an easement in the street fronting upon his lot, for the purposes of ingress and egress, which attaches to the lot, and in which he has a right of property as fully as in the lot itself; and any subsequent act of the municipality by which that easement is destroyed or substantially impaired, for the benefit of the public, is a damage to the lot itself, within the meaning of the constitutional provision, for which he is entitled to compensation. Such easement is a right of property incident to the lot itself, and any damage sustained by the owner, in its destruction or impairment, is a damage peculiar to himself, and independent of any damage sustained by the public generally. For the purpose of determining this damage, it is immaterial whether he has the fee in the street, or only an easement for its use. In either case it is property, for an injury to which he is entitled to relief.”

In Brown v. Board of Supervisors, 124 Cal. 274, at page 280, 57 P. 82, at page 83, the court said:

“The property which an abutting owner has in the street in front of his land is the right of access and of light and air, and for an infringement of these rights he is entitled to compensation. This right is peculiar and individual to the abutting owner, differing from the right of passing to and fro upon the street, which he enjoys in common with the public, and any infringement thereof gives him a right of action.”

A road is primarily laid out for the benefit of the adjoining landowners. Elliott v. McCombs, 17 Cal.2d 23, 109 P.2d 329. An easement creates an interest in the land. Eastman v. Piper, 68 Cal.App. 554, 229 P. 1002. If the plaintiff had a right of passing to and fro upon the alley that right is infringed when any part of the alley is closed in a manner to prevent the exercise of that right.

“Any unlawful obstruction or interference with a highway is per se a nuisance, and an abutting owner has all the usual rights and remedies of the owner of a freehold concerning the same, including trespass, ejectment, action for damages, injunction, or an action to remove an obstruction or abate a nuisance. Hargro v. Hodgdon, 89 Cal. 623, 26 P. 1106.” Fitzgerald v. Smith, 94 Cal.App. 480, 485, 271 P. 507, 509.

If the city has a right to close one end of an alley it has a right to obstruct both ends and thus prevent any use thereof by an abutting owner. It may be that plaintiff has other means of convenient approach and access to her property. It may be that she has sustained no loss or damage by the closing. It may be that her damage is inconsequential, but in any event, she has a property right and she should be allowed to show the facts and let the trier thereof determine the question and the extent of injury. She may be able to show that the erection of a large building across the alley will cut off from her the light and the enjoyment of air. She may be able to show that the closing has diminished the value of her land. She may be able to show that the closing of the alley deprived her of access to an improved street and left her with access to an unimproved or poorly paved street. And she may be able to show that other conveniences and privileges which she has enjoyed have been taken from her by reason of the closing.

In Pennsylvania Co. v. Stanley, 10 Ind.App. 421, 37 N.E. 288, 289, petition for rehearing denied 38 N.E. 421, the court said: “We have here a lot, or several lots, one of the ordinary means of access to which was by the alley in question. This alley the appellant closed at one end, so as to cut off the entrance to it at that point, and thus the case presents a physical disturbance of the right to use the alley. This act necessarily and directly materially interfered with ordinary and usual means of access to the lots. It is a matter of general knowledge that the alleys in the rear of town or city lots are usual means of reaching the lots for many purposes, and they ordinarily add to the value and convenience of the property. In this instance, both the allegations and proof show a material diminution in the value of the lots by reason of the obstruction. In order to authorize a recovery by appellee, it is not necessary that the obstruction should have been immediately in front of or touching upon his real estate.” See, also, Horton v. Williams, 99 Mich. 423, 58 N.W. 369; Kaje v. Chicago, etc., Ry. Co., 57 Minn. 422, 59 N.W. 493, 47 Am.St.Rep. 627; Bannon v. Rohmeiser, 90 Ky. 48, 13 S.W. 444, 29 Am.St.Rep. 355; Henderson v. City of Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A.,N.S., 20; Coy v. City of Tulsa, D.C., 2 F.Supp. 411; Dries v. City of St. Joseph, 98 Mo.App. 611, 73 S.W. 723.

In Cartmell v. City of Maysville, 231 Ky. 666, 22 S.W.2d 102, the court said it is well settled that the property owners on a public way may maintain an action to open the way when by the closing of one end thereof their property is placed in a cul–de–sac.

“The constitutional rights of an owner of private property which is sought to be taken or damaged for public use are two: First, the right to compensation; and second, the right to have that compensation made or paid into court before his property is taken or injuriously affected. Either or both of these rights he may waive; that is to say, he may waive his right to any compensation, or he may waive his right to prepayment of compensation. But, where there is no such waiver, the property owner may rest secure in the protection which the constitution affords him that his property shall not be taken or damaged without compensation first made. It is not incumbent upon him to demand that the authorities shall respect his rights; the duty is theirs to work no unlawful invasion of them.” Bigelow v. Ballerino, 111 Cal. 559, 564, 44 P. 307, 309.

Respondents contend that no cause of action is stated by appellant because no injury is alleged different in kind from that sustained by the public at large. In Harniss v. Bulpitt, 1 Cal.App. 140, at page 141, 81 P. 1022, at page 1023, the court, in answering a similar contention, said:

“The nuisance complained of, being the obstruction of a public alley, is a public one. That plaintiff may have redress in a private action, it must appear by proper averment that the plaintiff will suffer some injury therefrom in its nature special and peculiar to him, and different in kind from that to which the public is subjected. Civ.Code, § 3493; Siskiyou Lumber [etc.] Co. v. Rostel, 121 Cal. [511] 513, 53 P. 1118. Applying this test to the complaint, we regard it as sufficient. The allegations that ingress and egress to and from the abutting property owned by plaintiffs upon or through the alley is prevented by the obstruction is an allegation of an injury to a private right incidental to private property. The owner of property abutting upon a street or alley owns the incidental rights to ingress and egress as completely as he does the property to which the rights are an incident. Brown v. Board of Supervisors, 124 Cal. [274] 280, 57 P. 82. An infringement upon these rights is, therefore, a private wrong.” See also Fitzgerald v. Smith, supra, where the court said:

“As abutting owners, they have the right to private easements, and may sue for damages or to enjoin the continuance of the injury thereto, regardless of the fact that the same obstruction also constitutes an injury to his public right of travel, and regardless of the number of persons who may suffer a similar injury to similar private easements appurtenant to other lots fronting on the street. [Citing cases.] The injury in so far as it affects the value of their property is a right peculiar to the owners and any interference with it constitutes a private as well as a public nuisance.”

Much is said in the briefs by both sides in this case touching the necessity of a finding by the City Council of public interest, necessity and convenience before proceedings of this kind may be had. The Act of 1889 does not require any declaration by the ordinance of intention that the vacation or abandonment of a street is required by the public interest or convenience. People v. City of Los Angeles, 62 Cal.App. 781, 218 P. 63. The statute, however, confers upon the City Council the power to open or close streets whenever the public interest or convenience may be required, and as a general rule, in the absence of fraud or collusion the determination of this question by that body is not open for review by the courts. Symons v. San Francisco, 115 Cal. 555, 42 P. 913, 47 P. 453. The adoption of the final ordinance is a determination by the City Council that the public interest or convenience requires the improvement. Brown v. Board of Supervisors, supra; People v. City of Los Angeles, supra. It may be shown, however, and the courts will review cases where the evidence shows that the intent of the legislative body is to disregard the public interest or convenience and to confer a benefit upon a private individual or a corporate body. In such cases the courts will determine the validity of the ordinance. People v. City of Los Angeles, supra.

“ ‘The true rule seems to be that a municipality cannot vacate a street or a part thereof for the sole purpose of benefiting an abutting owner, and that the power to vacate streets cannot be exercised in an arbitrary manner, without regard to the interest and convenience of the public or individual rights; but that the municipality may vacate a street on the petition of an abutter for his benefit where the vacation is also for the benefit of the municipality at large; i. e., where the use to which the vacated part of the street is to be put is of more benefit to the community than the retention of such land as a way for a street.’ ” People v. City of Oakland, 96 Cal.App. 488, 497, 274 P. 438, 442, quoting from 4 McQuillin on Municipal Corporations, 2d Ed., pp. 269, 270.

We may say here that the effect of the abandonment of the alley was to take from the public whatever advantage or convenience the use of the alley afforded and to substitute an underground headquarters building of the Department of Water and Power of the City of Los Angeles in its place. This building may or may not be of a public nature and there is a question of fact as to whether or not the closing is altogether to the advantage and benefit of the general public. The court may find that the use to which the vacated part of the alley is to be put is of more benefit to the community than the retention of such land as a way for an alley, or it may find that the closing is for the sole benefit of an abutting owner. The respondents may adduce evidence to the effect that the purpose of the closing is not to benefit a private corporation but is to comply with a public demand. The appellant, on the other hand, may be able to show that the only interest or convenience subserved by the act of the City Council in ordering the vacation of the alley was the private interest of the Department or the City acting in the exercise of proprietary rather than of police or governmental powers. If the latter could be shown, the court would have authority to maintain an inquiry into the real purpose and the result of the ordinance; it might also declare such ordinance invalid. People v. City of Los Angeles, supra; Postal–Tel.–Cable Co. v. City and County of San Francisco, 53 Cal.App. 188, 199 P. 1108; City of Los Angeles v. Los Angeles Gas & Electric Corp., 251 U.S. 32, 40 S.Ct. 76, 64 L.Ed. 121.

In Erro v. City of Santa Barbara, 123 Cal.App. 508, 11 P.2d 890, 891, the City Council had attempted by ordinance to establish a public alley and included therein the portions theretofore existing as a private alley touching plaintiffs' property. Plaintiffs brought action to have the proceedings for the opening of the alley declared void. The trial court found that the lands of plaintiffs had a perpetual easement or right of way to the existing private alley and that other lands included in the assessment district did not have any right to the use of the existing alley. The court also concluded that the proposed assessment district was of no possible public benefit to plaintiffs but was for the sole benefit of the other lands in the district. The court decreed that the proceedings leading to the opening of the public alley were void because they were not instituted for a public purpose but were instituted solely for the use and benefit of the owners of the lots which did not have an easement in the existing private alley. The City appealed and contended that the complaint was insufficient because it failed to allege that the proceedings before the City Council were the result of fraud, collusion or gross abuse of discretion. The appellate court said:

“It is true that the complaint does not use the word ‘fraud’ in any of its allegations, and collusion between the city council and the owners of the lots to be benefited by the proceedings is not alleged in express terms, but it cannot be said that the facts pleaded do not present a case of gross abuse of discretion amounting to legal fraud. If the complaint states a cause of action in equity for any one of the plaintiffs, it is sufficient against a general demurrer.” The appellate court also said:

“* * * it is alleged in this complaint, and found by the trial court, that the owners of all these lots have a perpetual right to the use of the existing alley by reason of the partition decree, and this, of course, is a right of property which cannot be taken or damaged without compensation first paid therefor under the express terms of section 14 of article 1 of the Constitution. The case comes squarely within the rule of those cases which hold that, when the assessment for a public improvement is so arbitrary and unjust as to work a confiscation of private property, it is not a legal assessment, but is in effect a legal fraud upon the owners of private property which is not conclusive upon the court.” (Citing cases.)

In the instant case plaintiff is entitled to a trial of the case on its merits for an ultimate determination of whether or not the ordinance is void; whether or not she is entitled to injunctive relief; and whether or not she has a justiciable controversy entitling her to declaratory relief under section 1060 of the Code of Civil Procedure. We deem the pleadings sufficient. Code Civ.Proc., § 452; Eachus v. Los Angeles, 130 Cal. 492, 62 P. 829, 80 Am.St.Rep. 132; Andrews v. City of Piedmont, 100 Cal.App. 700, 281 P. 78; Greenfield v. Board of City Planning Commissioners, 6 Cal.App.2d 515, 45 P.2d 219.

The judgment is reversed and the trial court is directed to overrule the demurrers.

MUNDO, Justice pro tem.

BARNARD, P. J., and GRIFFIN, J., concurred.