Marini v. Graham

McKee, J. This is an application for a writ of mandate.

It appears from the record in the case that section 7 of order No. 1588, of the general orders of the board of supervisors of of the city and county of San Francisco, provides: —

“No person owning or having the control of any building, shall maintain any approach or entrance thereto from, the sidewalk except in accordance with the following provision: —

“1. No entrance which shall be a descent from the sidewalk shall occupy more than three tenths of the width of the sidewalk nor more than four feet thereof. ....

“2. No approach to a building which shall be an ascent from the sidewalk shall occupy more than three tenths of the width of the sidewalk nor more than four feet thereof, nor be more than five feet in height, and shall be protected by ballusters and railings, built to the satisfaction of the superintendent of public streets, highways, and squares.”

Dupont Street, between Union and Filbert streets, in said city and county, has a sidewalk ten feet wide. Ascending from the sidewalk to a building, Nos. 1505 and 1507, fronting on the street, there is an approach and entrance consisting of a flight of steps seven feet and eight inches high, which occupies three feet and five inches of the sidewalk. This approach having been, as alleged, maintained by the owner of the building in violation of the ordinance, demand was made upon the superintendent of public streets and highways of the city and county to “cause and compel the said approach to be maintained and constructed in accordance with the provisions of the ordinance.” This he refused to do; and, it is alleged, “his refusals have annoyed and greatly injured the petitioner,” wrho is the owner of adjacent buildings on the same street, “and other property owners in the neighborhood.” For that reason, and “because the matters involved are of public and general interest to the people of the said county, and more particularly to your affiant, who is beneficially interested herein,” and “ because the maintenance and continuance of the approach heretofore complained of, and in violation of law, will work serious mischief and irreparable injury to affiant,” he asks for a peremptory writ of mandate to compel the superintendent to remove the illegal entrance, as a duty especially enjoined upon him by law.

[132]Upon the issuance of an alternative writ the superintendent appeared, and demurred to the sufficiency of the petition, and answered that the petitioner was not entitled to the writ, because there was a plain, speedy, and adequate remedy for the removal of the objectionable entrance, provided by the ordinance itself and by the general law; and because the entrance had been legalized and suffered to continue by resolution and order No. 15814 of the board of supervisors, passed July 18, 1882, etc.