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Nerio v. Maestretti

154 Cal. 580 Court Department Two. Decision date 1908-12-08 Docket S. F. No. 4787 English

Judges Lorigan, J., and Melvin, J., concurred.

Delivered by HENSHAW, J.

Contents

Majority

p. 580
[S. F. No. 4787.
Department Two.
December 8, 1908.]
VALENTINE NERIO et al., Appellants, v. FRANK A. MAESTRETTI et al., Respondents.

Headnote

Public Nuisance — Obstruction or Public Street1 — Removal or Buildings. — The continued occupation and obstruction of a public street by private buildings is a continuing public nuisance which no lapse of time can legalize. Such a nuisance may be abated by the public authorities, and the buildings removed.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.
The facts are stated in the opinion of the court.
Charles S. Peery, and Jas. G. Conlan, for Appellants.
Percy V. Long, City 'Attorney, and ¥m. G. Burke, City Attorney, for Respondents.

This action was brought by plaintiffs, seeking to enjoin the defendants, constituting the board of public works of the city and county of San Francisco, from an alleged unlawful interference with their property. The facts found by the court are that plaintiffs had erected houses upon a part of a public street of the city and county of San Francisco; that the board of public works had given notice to the plaintiffs to remove these structures and abate the nuisance created by them; that upon plaintiffs’ failure and refusal so to do, the board of public works entered and proceeded to remove the obstructions, using no more force than

p. 581
was necessary so to do; that the board of public works, in so demolishing plaintiffs’ buildings, was authorized and empowered so to do by the laws of the state of California, wherein and whereby the said board of public works was charged with the duty of removing obstructions from the public streets of the city and county.

The appeal here is from the judgment and upon the judgment-roll alone, and the appeal is entirely without merit. The findings abundantly support the judgment. The continued occupation by plaintiffs of a portion of the public street was but the continuance of a nuisance. No lapse of time can legalize a public nuisance amounting to an actual obstruction of a public right. (Civ. Code, sec. 3490.)

The judgment appealed from is affirmed.

Lorigan, J., and Melvin, J., concurred.

Hearing in Bank denied.

Statutes and regulations cited