City Store v. San Jose-Los Gatos Interurban Ry.

[278]

LORIGAN, J.

This action was brought to permanently restrain the defendant from constructing, operating, and maintaining a street railroad over Market Street, a public street in the city of San Jose.

A general demurrer to the complaint having been sustained and plaintiff declining to amend, judgment was entered for defendant, and from this judgment plaintiff appeals.

The only point presented on the appeal is as to the correctness of the ruling of the lower court upon the demurrer.

The plaintiff alleged the corporate existence of plaintiff and the defendant railway company; that plaintiff is the owner in fee of real estate on the east line of South Market Street in the city of San Jose, adjacent and contiguous to and abutting upon the line of said street; that said city of San Jose is a municipal corporation, and South Market Street is a public .street within the corporate limits thereof; that the defendant “without right so to do is about to commence the construction in and upon and over the said South Market Street, and, without right so to do, maintain and operate a double-track street railway” thereon, and that the line of said proposed railway is in front of, adjacent to, and contiguous to said real estate of plaintiff; that in the event of tho construction, maintenance, and operation of said double-track street railway as proposed to be constructed “the property of plaintiff and the property rights of plaintiff will be irreparably injured and damaged in this that the value of said property will be greatly diminished, free access in and to the said property will be irreparably impaired and the rental value of said property greatly and permanently decreased:” that plaintiff has no adequate remedy at law.

These are the material allegations of the complaint, and it is quite manifest that the theory upon which the complaint" was framed was that the construction of said street railroad on the public street, without right, as alleged, would constitute a public nuisance, the creation of which would be specially injurious to the plaintiff.

Undoubtedly a railroad constructed on" a public street without authority would constitute a legal obstruction, and hence be a public nuisance