Irwin v. City of Manhattan Beach

SHINN, P. J.

The appeal which is before us is from a judgment of dismissal following an order sustaining the demurrer of certain defendants to the complaint, as amended,

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without leave to amend. The action is brought by Sally J. Irwin, a taxpayer of the City of Manhattan Beach, for herself and on behalf of all other taxpayers of the city, against the city, certain members who constitute a majority of the city council, and certain corporations and individuals, to enjoin construction, maintenance and use of a pedestrian overpass above and across Valley Drive, a public street of the city. Also named as defendants were Manhattan Hotels, Inc., a corporation, Pen & Quill, Inc., a corporation, Robert E. Reuben and Evelyn V. Schwartz, all of whom were parties to a contract with the city, pursuant to which the city granted them a permit to construct the overpass.

Manhattan Hotels owns property on the north side of the street, where it operates a motel or hotel; defendants Reuben and Schwartz own property on the south side of the street upon which Pen & Quill, as lessee, operates a restaurant and bar. They jointly applied to the city for permission to erect an overpass to connect the two buildings at the second or third-floor levels for use as a pedestrian walkway. The structure was to be 25 feet 6 inches in exterior width and 17 feet 6 inches in interior width and was to be 14 feet above the highest point of the street at the crossing. The permit was granted, without compensation paid therefor, upon certain conditions which are not material to our consideration of the appeal. The contract was entered into July 5, 1961, and was modified by agreement December 20, 1961. The present action was filed October 4, 1961. The complaint seeks a judgment declaring that the action of the city was ultra vires, that the contract and the permit are illegal and void and granting a permanent injunction against the construction, maintenance and use of the overpass. The briefs are devoted entirely to this question, but it is one which we could not properly decide upon the present record.

It appears from the complaint and the attached contracts that the defendants, other than the city and defendant councilmen, are indispensable parties to a determination of the controversy. They are the joint permittees, and, as appears from the undisputed statement in plaintiff’s brief, have constructed the walkway and put it to use. Although named as defendants, they have not appeared and there is nothing in the record to indicate that they have been served with process.