City of Berkeley v. Gordon

Plaintiff, the City of Berkeley, appeals from a judgment denying it a mandatory injunction sought

The Record

The facts are undisputed. University Avenue is a public street in the City of Berkeley running in an east-west direction, is of great importance and is constantly used by numerous vehicles and pedestrians. Defendants Gordon, Bell, and Merritt are the owners in trust and defendant Grodin is the lessee of the property situated at the southeast corner of the intersection of University Avenue and Bast Shattuek Avenue. The property is improved by a commercial building constructed approximately 65 years ago; the basement of this building extends northerly beyond the building under University Avenue for about 16 feet, which is the width of the sidewalk at that location.

Plaintiff has commenced the reconstruction of University Avenue. The plans call for narrowing the sidewalk abutting defendants' property from 16 to 14 feet and putting three street trees and a street light in the reduced sidewalk area. In order to carry out these plans, it will be necessary to remove the existing north wall of the basement of defendants’ building, to build a new north wall behind the proposed construction area, to do other necessary work to protect the structural integrity of the building, and to back-fill and grade the area north of the new wall, where a new curb and gutter and part of a new sidewalk will be constructed. The cost of this work is estimated at $15,000. Plaintiff has notified all defendants to remove that portion of the basement underneath the sidewalk area where the City wishes to renovate, and defendants have refused to undertake the proposed work but have offered the City possession so that it may undertake the construction. Defendants do not dispute plaintiff’s paramount right to use the subsurface area of the street for the proposed reconstruction. Defendants Gordon, Merritt and Bell have requested defendant Grodin, the lessee, to assume whatever legal responsibilities are due to the City, and Grodin has rejected that demand.

The trial court found that plaintiff’s right to the use and enjoyment of the subsurface of the sidewalk area is paramount to any rights of defendants, but found that the existence of the basement under the sidewalk did not constitute a public nuisance within the meaning of Civil Code section

Is the Encroachment a Public Nuisance f

No. The Penal Code (§370) and the Civil Code (§3479) both define a nuisance as follows: “Anything which . . . unlawfully obstructs the free passage or use, in the customary manner, of any . . . public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.) The test of a nuisance under these statutes is whether the structure in question unlawfully obstructs free passage of the public street or use of the street in the customary manner. (Elm v. McKee, 139 Cal.App.2d 353 , 361 [ 293 P.2d 827 ]; see Bright v. East Side Mosquito etc. Dist., 168 Cal.App.2d 7 , 10 [ 335 P.2d 527 ].)

All the reported cases under the foregoing statutes hold to be nuisances only actual obstructions of traffic (Tucker v. Watkins, 251 Cal.App.2d 327 , 331 [ 59 Cal.Rptr. 453 ] [gate or barrier across a road]) ; surface or overhanging structures on a public way (People v. Henderson, 85 Cal.App.2d 653 , 656-657 [ 194 P.2d 91 ] [shed on unpaved portion of public roadway] ); Curtis v. Kastner, 220 Cal. 185 , 188 [ 30 P.2d 26 ] [eaves and rafters projecting into alley five to six feet above ground]) ; structures that are illegal in that they encroach upon a street or road without required permission (Laura Vincent Co. v. City of Selma, 43 Cal.App.2d 473 , 476-477 [ 111 P.2d 17 ] [awnings erected over sidewalks without required permit are a public nuisance whether or not they materially interfere with public travel]) ; or other encroachments that actually interfere with or obstruct traffic (City & County of San Francisco v. Buckman, 111 Cal. 25 , 30 [ 43 P. 396 ] [grading of a street, obstructing passage] ; Bright v. East Side Mosquito etc. Dist., supra, 168 Cal.App.2d 7 , 10-11 [thick chemical fog]). None of the foregoing cases hold that a sub

We conclude, therefore, that although plaintiff has the paramount right to use the subsurface area of the street for its renovation project, that fact per se does not establish that defendants’ encroaching basement is a public nuisance. Since it is neither illegal nor an actual obstruction to pedestrian and vehicular traffic, the determination as to whether th« basement was a nuisance was one of fact for the trial court.

Did the Trial Court Err in Denying Plaintiff Injunctive Belief?

No. Plaintiff contends that it was incumbent upon the trial court to grant injunctive relief. This contention is untenable because the subject encroachment is not a nuisance. We note, moreover, that none of the authorities cited by plaintiff stand for the proposition that an injunction must issue in all nuisance cases, but hold, rather, that injunctive relief is permissible in such eases regardless of the availability of other remedies. (See, e.g., City & County of San Francisco v. Buckman, supra, 111 Cal. 25 , 30-31; Boise City v. Sinsel, supra, 241 P.2d 173 , 178; see also People v. Stafford Packing Co., 193 Cal. 719 , 728 [ 227 P. 485 ]; Randall v. Freed, 154 Cal. 299 , 302 [ 97 P. 669 ]; 10 McQuillin, Municipal Corporations

In California, one remedy available to plaintiff to remove an encroachment is self-help followed by an action against the owner of the encroachment for the reasonable costs of its removal. (See, e.g., People ex rel. Dept. of Public Works v. Henry, 193 Cal.App.2d 476 [ 14 Cal.Rptr. 456 ], an action to recover the costs of moving the defendant’s wrongfully installed water main from a county highway.) In Airways Water Co. v. County of Los Angeles, 106 Cal.App.2d 787 [ 236 P.2d 199 ], on which plaintiff relies, the plaintiff utility had already relocated its water mains pursuant to county orders and then sought reimbursement from the county, which the court denied on the ground that the company must pay the cost of relocation itself. In Fallon v. City & County of San Francisco, supra, 44 Cal.App.2d 404 , it was held that the reduction in width of the sidewalk of Market Street, necessitating setting back the plaintiff’s basement, was not a taking. In that case nothing was said about who should do the setting back. Plaintiff here has cited no case except Boise City v. Sinsel, supra, 241 P.2d 173 , that granted a mandatory injunction against the owner of the encroachment, forcing him to take the initiative in its removal. As already noted, Boise involved a traffic hazard. Moreover, although the court there ordered that an injunction issue to abate the public nuisance, that case does not hold that an injunction is mandatory in all cases.

In the light of the foregoing, the granting of an injunction in the instant ease was, at best, a permissible remedy. Accordingly, the trial court had discretion to refuse injunctive relief. Further, it does not appear to have abused its discretion. The record indicates that the construction work required may be quite complicated, and that plaintiff is in a better position, than defendants, in view of the nature of the work, to have it done and to supervise it. Further, once the work is completed it will be easier to ascertain what the reasonable costs of removal of the encroachment are in an action for such costs against defendants. In such an action the court may be in a position to apportion the costs as between those expenses strictly attributable to the presence of the encroachment (such as setting back the wall) and those which may really be a part of the reconstruction work on the street and. which should therefore be borne by plaintiff (as possibly the compacting and grading necessary to construct the gutter, curb and part of a new sidewalk). It seems manifestly unfair to place on'

Liabilities of Separate Defendants for Costs of Removal

Although the lease between the parties was received in evidence and the issue of defendants’ respective liabilities was apparently tendered to the court, since the court had before it the question as to against whom the injunction should issue if an injunction were ordered, the record is clear that once the court determined that an injunction would not issue it deemed it unnecessary to determine whether all the defendants or only some of them are liable for the costs of removing the encroachment. No findings, conclusions of law or judgment touching upon the respective liabilities of defendants were made by the trial court, nor does it appear from the record that such findings or determination were requested by defendants. It is apparent that this matter has been reserved for future determination since it is dependent upon such factors as whether the encroachment is in fact removed, and if it is removed, the amount of the costs and the apportionment of such costs to those expenses strictly attributable to the presence of the encroachment. Accordingly, we need not here discuss the liabilities of defendants as between themselves.

The judgment is affirmed.

Sims, J., and Elkington, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 25,1968.