Perrin v. Mountain View Mausoleum Assn.

LANGDON, J.

is an appeal from a judgment dismissing an action brought to secure a permanent injunction, restraining defendants from continuing to construct, maintain and operate upon property owned by the defendant association tombs, crypts and niches for the interment and burial of bodies of dead human beings and for the recovery of five thousand dollars damages alleged to have been caused to the adjoining property of plaintiff because of the partial erection of a mausoleum upon the property of said defendant association.

Objection was made to the introduction of any evidence on behalf of the plaintiff on the ground that the complaint did not state a cause of action and after this objection was sustained the court dismissed the action.

An examination of the complaint reveals that plaintiff pleads certain ordinances of the county of Los Angeles purporting to establish a residence district in Altadena, where the property of both the plaintiff and defendant, involved here, is situated; that defendants have been convicted in a criminal prosecution against them of violating these ordinances by the erection in such district of the mausoleum referred to and that, notwithstanding such conviction, the defendants intend to continue to violate said ordinances, and that the acts constituting such alleged violation have injured plaintiff by depreciating the value of his property. It thus appears that, primarily, plaintiff is seeking the enforcement of the ordinances referred to by injunctive proceedings.

[671]

Section 3369 of the Civil Code provides.: “Neither specific nor preventive relief can be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case.” This statutory enactment is but the expression of the fundamental rule that courts of equity are not concerned with criminal matters and they cannot be resorted to for the prevention of criminal acts, except where property rights are involved. (5 Pomeroy’s Equity Jurisprudence, 2d ed., pp. 4291, 4292.) The text just cited, at pages 4294, 4295 thereof, contains the following pertinent language: “It is a general principle of law that an individual cannot maintain a suit to abate or to recover damages for a public nuisance unless she suffers some exceptional damage different and other from that suffered by the rest of the community. . . . Where the injury resulting from the nuisance is, in its nature, irreparable, as when loss of health, loss of trade or destruction of the means of subsistence or permanent ruin to property will inure from the wrong act or erection, courts of equity will interfere by injunction in furtherance of justice and the violated rights of property. Thus a party exceptionally injured may enjoin the maintenance of a house of ill-fame, although it be a crime to use property for such a purpose. Likewise, a person who would suffer a special injury by an explosion, may obtain an injunction to restrain the criminal storage of nitroglycerine within the limits of a city. Again, an injunction will be granted to a person expressly injured to prevent the removal of a wooden building from outside to within the fire limits of a town in violation of an ordinance, or to restrain the erection of such a building within the fire limits where the act, if carried out, would amount to a nuisance; but the mere violation of the ordinance is no ground for relief unless the acts themselves actually constitute a nuisance.”