Hassell v. City & County of San Francisco

EDMONDS, J.

The City and County of San Francisco has been enjoined from constructing above the surface of the ground a public convenience station in Marina Park. The trial court, in effect, found that if the building were constructed in the manner proposed it would be a nuisance. This finding is challenged by the city, which contends that it is not supported by the evidence.

Marina Park is a strip of land about a block wide and five blocks long. It is bordered on the north by San Francisco Bay and on the south by Marina Boulevard, a public street.

[170]

The respondent owns residential property of substantial value located on Marina Boulevard and almost directly opposite the site of the proposed building. The area has been zoned as a first-class residential district.

As planned by the city park commission of San Francisco the building would be 70 feet long, 18 feet wide, and would stand about 12 feet above the surface of the ground. Its position in the park would be wholly within the prolonged lines of Fillmore Street, which extends southerly from Marina Boulevard. The site chosen is approximately one hundred and twenty yards from the respondent’s property.

In determining whether a present or proposed use of property is a ’ nuisance, many factors must be considered. “The law relating to private nuisances is one of degree. A use that would be reasonable under one set of facts might be unreasonable under another.”

(McIntosh

v.

Brimmer,

68 Cal. App. 770, 777 [230 Pac. 203], See note to

Motoramp Garage Co.

v.

Tacoma,

42 A. L. R 891.) Although the extent to which the proposed building would be “indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property” (see. 3479, Civ. Code), cannot be definitely measured, a number of witnesses testified that the structure would substantially depreciate the value and desirability not only of plaintiff’s property, but also of all the property similarly situated along Marina Boulevard. As the only building along a narrow strip of parkway it would draw unusual attention, no matter how artistic its design and construction might be. It was further shown that unsanitary conditions usually prevail in such buildings, resulting in disagreeable odors which would sometimes blow across the park toward the respondent’s home. This evidence, considered as a whole, sufficiently shows that a building erected at the place and in the manner proposed would be a nuisance, and supports the finding of the trial court. Therefore, unless the appellant can show that in appraising the consequences which would result from the maintenance of the convenience station as it is now planned, the rights of the city have not been adequately considered and protected, the judgment should be affirmed.