Coon v. Board of Public Works

KERRIGAN, J.

This is an appeal from a judgment, granting a writ of mandate compelling appellants, as the-hoard of public works of the city and county of San Francisco, to issue a permit for the construction of a certain one-story frame building in said city and county, to be used as a stable.

Respondent set forth in his complaint, among other provisions of the building law of the city and county of San Francisco, section 320, which reads as follows: “Permits for public livery and boarding stables, or for 'stables to accommodate more than six (6) horses, will be granted upon the-presentation of the written, consent of the owners of property within two hundred (200) feet of the stable. Buildings for-stabling animals above the first or ground floor, unless fireproof, shall not be erected nor altered.”

It is also alleged in the complaint that respondent filed and submitted to the said board of public works an application in writing for a permit to erect a certain one-story building;.

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that said building was to be used as a stable in said city and county to accommodate more than six horses; that said appellants refused to take any action looking'to the granting of said permit unless the respondent should present to said board the written consent of the owners of the property within two hundred feet of said stable proposed to be erected. The complaint further shows that respondent refused to comply with this demand of the board, and prays for a writ of mandate that appellants be required to receive and to examine the plans and specifications in the complaint described, and if found to embody all the requirements applicable to such eases, to issue the permit demanded.

Preliminarily, it should be stated that the business of running a livery-stable is not a nuisance per se. Whether a stable is a nuisance depends upon the manner in which it is conducted.

(City of St. Louis

v.

Russell,

116 Mo. 248, [22 S. W. 470]. See, also, Ruffin, C. J., in

Dargan