Gould & Kane, Inc. v. Valterza

STURTEVANT, J.

In an action to obtain an injunction to prevent the defendants from maintaining a nuisance the trial court awarded the plaintiff a judgment. The defendants have appealed and have brought up the judgment roll. In effect the defendants contend that the plaintiff’s complaint did not state a cause of action, that its allegations were not sustained by the proof, and that the judgment is not supported by the findings.

The plaintiff corporation owns adjoining lots located in a certain block facing Kains Avenue. The defendants own lots in the same block facing San Pablo Avenue. Said lots abut at the rear end thereof. The said block is located in the city of Albany, Alameda County. Heretofore Ordinance 351 was enacted by the city council of Albany as a zoning ordinance. The classification as made by that ordinance places said block in a class called Six Story Commercial District. The ordinance by cross-references prohibits in the Six Story Com

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mercial District “chicken or rabbit keeping or raising” and “stockyards or slaughtering of animals or fowls” and “in general those uses which may constitute a nuisance or which may be noxious or offensive by reason of emission of odor, dust, smoke, gas, or noise”. Section 16 provides: “Any building or structure erected or maintained in violation of any provisions of this ordinance is hereby declared to be a public nuisance, and may be abated in the manner provided by law.” Section 19 provides that a violation of the provisions of the ordinance is a misdemeanor. In paragraph III of its complaint the plaintiff alleged that on the lots owned by the plaintiff it has recently constructed three new dwelling houses. In paragraph IV it alleged that on the lots owned by the defendants they are proceeding to erect store and hatchery buildings for the purposes of “chicken or rabbit keeping or raising; operation of a hatchery incidental to chicken keeping or raising; operation of a hatchery as a wholesale business; stockyard or slaughtering of animals or fowl; and poultry market or store where live and or dead fowl is sold”. In paragraph VII the plaintiff alleged: “That the defendants and each of them intend to place said lots 18 and 19, and the hatchery and store building being erected thereon to the uses enumerated in paragraph IV hereof; and that if said defendants or any of them are permitted to put said lots 18 and 19 to said uses the plaintiff will suffer great and irreparable damage and injury and will be affected adversely, and the free, peaceful and undisturbed use and enjoyment of its said lots and three dwelling houses thereon will be materially hampered, interfered with and taken away in this, that said uses will have a natural tendency to and will attract and bring into and keep on said lots 18 and 19 and in the vicinity and on said land of petitioner many flies, insects, rats, mice and other rodents and pests, and will cause the emission of constant nerve racking noises of fowl, and will cause stenches and offensive smells to be carried onto the real estate of petitioner, and will cause dust, laden with offensive matter to be carried onto the lots, and upon and into the said dwelling houses of the petitioner to the extent that a person of ordinary sensibilities will find it intolerable to reside upon said premises of petitioner and in said dwelling houses; that this condition is aggravated by the existence of prevailing westerly winds, and the wetting and drying of the soil on said lots