City of Vernon v. Los Angeles Gas & Electric Corp.

ALLEN, P. J.

Plaintiff by its action sought to enjoin the defendant from making excavations in the public streets of the city of Vernon, or laying gas-pipes therein, as well as for a mandatory injunction requiring defendant to remove certain pipes already laid.

It is conceded that defendant is a corporation engaged in supplying gas; that the city of Vernon owns and controls no public works for such purpose; that the city of Vernon had an officer performing the duties of street superintendent during all of the times mentioned in the proceedings ;■ that prior to the sixth day of June, 1910, the defendant entered upon the streets and commenced laying gas-mains therein for the purpose of distributing gas from its works at Los Angeles, the two cities being contiguous. This entry and the work of excavation and the laying of pipes were known by the street superintendent, who interposed no objection to the character of the work or the manner in which the same was being done. The city at that time had passed no ordinance regulating such work, or for the damages or indemnity for damages occasioned thereby. After having laid in the streets certain pipes of lesser diameter, on the twenty-third day of May, 1910, defendant commenced the laying of pipes having a diameter of twelve inches, and continued to lay pipes of such character for a considerable time. On the sixth day of June, 1910, the city passed an ordinance providing that all excavations should

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be done under the supervision of the street superintendent of said city of Vernon, and that a deposit of ten cents per square foot of proposed excavation in unimproved streets should be made with the street superintendent as indemnity for damages before any excavation should be made. Thereupon, after the passage of such ordinance, the defendant tendered to the street superintendent the sum of $750 as indemnity, being the amount required by said ordinance for work thereafter to be done, which sum the street superintendent refused to accept, no objection, however, being made as to the amount tendered. Upon the hearing of the action the court found that $1,200 was a sufficient indemnity for damages occasioned by the laying of pipe before the passage of the ordinance, which amount it directed the defendant to pay to the street superintendent, who refused to receive such sum, and the same was deposited in the treasury of the court for the use and benefit of plaintiff. The court finds that the laying of this twelve-inch main was necessary to supply the inhabitants of the city of Vernon with illuminating gas, and as a conclusion of law determined that under section 19, article XI, constitution of the state, the defendant had a right to enter upon the streets and lay its pipes, and that the plaintiff should be enjoined from interfering with such work. Judgment was accordingly entered, and from an order denying a new trial plaintiff appeals.