Healdsburg Electric Light & Power Co. v. City of Healdsburg

CHIPMAN, P. J.

Action for damages alleged to have been caused by the oppressive, malicious and violent acts of defendant resulting in the destruction of parts of plaintiff’s plant and with intent to compel it to discontinue business. A general and special demurrer was sustained, and plaintiff failing to amend, judgment passed for defendant, from which plaintiff appeals.

It is alleged in the amended complaint: That plaintiff is a corporation formed under the laws of this state for the purpose of supplying electric light and power to the residents of the city of Healdsburg, and that plaintiff ever since March 15, 1899, has been and on that day was lawfully so engaged; the complaint then describes the property and apparatus constituting plaintiff’s plant; avers, in paragraph 7, that the said plant was not injurious to health or offensive to the senses, or in anywise interfered with the comfortable enjoyment of life or with the free use and passage of the public parks and streets of said city, and in no manner constituted a nuisance,

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public or private; that on February 6, 1899, defendant, “well knowing the premises, but solely with the design and intent to oppress this plaintiff, and to compel it to discontinue its business aforesaid, duly gassed an ordinance designated ‘Ordinance No. 81’ in the words and figures as follows”; then follows the ordinance which purports to describe the kind and character of the material to be used in the construction, maintenance and repair of electric lighting plants, or systems now in use in the city of Healdsburg, or to be hereafter erected therein. The amended complaint next charges that with like intent the said city on the same day duly passed ordinance No. 82, which declared certain described electric poles and wires to be a nuisance. It is next alleged that with like intent defendant, on March 10,1899, served written notice upon plaintiff directing it “within four days from the hour of 7 o’clock of the forenoon of the eleventh day of March, 1899,” to abate and remove all its unpainted electric poles now standing, etc., and all wires conducting electricity not properly insulated; defendant was further directed to comply with the provisions of said ordinances Nos. 81 and 82, copies of which were attached to said notice. It is then alleged that on March 14, 1899, all the trustees of defendant met and with like design and intent to oppress plaintiff and compel it to discontinue its business, passed a resolution, which is set forth in full, and which in substance recited the notice given plaintiff of March 10th; that the time in which plaintiff should comply therewith would expire at 7 o’clock A. M. of March 15, 1899; that said plaintiff has not abated or removed said nuisances, etc.; therefore, resolved ‘ ‘ that the street commissioner ... be, and he is hereby instructed, to abate and remove said nuisances, commencing at 7 o’clock A. M., March 15, 1899, and that he employ sufficient assistance to accomplish that purpose.” It is then averred that, “Thereupon said defendant, ... on the 15th day of March, A. D. 1899, wantonly and willfully intending and devising to oppress this plaintiff, and to compel it to discontinue entirely its business at the City of Healdsburg, forcibly and violently cut, uprooted, threw down, broke and so injured divers parts of the plant and property of the plaintiff as to prevent the plaintiff entirely from continuing its business aforesaid at Healdsburg” ; that “by reason of said acts” the plaintiff was obliged to wholly discontinue its business to its damage in the sum