Hogan v. Central Pacific Railroad

Searls, C. This is an action by the plaintiff, the owner of a house and lot, situate upon Sacramento Street, [84]Stockton, to recover damages, to abate as a nuisance, and enjoin defendant from maintaining, an embankment and railway track upon and along said Sacramento Street.

The cause was submitted to a jury upon special issues, and upon the findings of such jury, which were adopted by the court, and upon certain other findings made by the court, judgment was entered in favor of the defendant. The appeal is by plaintiff, from the final judgment, and the cause comes up on the judgment roll.

From the findings it appears, among other things, that Sacramento Street prior to March 31, 1869, was a public street and used as such, and was eighty feet in width and two miles in length; that plaintiff since said date has been the owner of the east half of block 199, described in the complaint, bounded on the east by the west line of Sacramento Street, upon which lot of land he had a dwelling-house which he was accustomed to let for a rental of about thirty dollars per month.

In 1869 it is admitted the defendant or its grantor constructed its railroad upon and through Sacramento Street, consisting of an embankment five and one half feet high and some thirty feet in width at the base, upon which its .railroad track is laid, and over which it runs its cars, etc.

The railroad company obtained no .authority or permission from the board of supervisors of the county of San Joaquin, or from the city council of the city of Stockton, to construct or maintain its road upon Sacramento Street.

A space of say thirty-five feet in width is left on the west side of the embankment along Sacramento Street for the passage of wagons, carriages, vehicles, etc., which is found to be room for their passage.

The railroad was so constructed as to afford security to life and property, and so as not to unnecessarily obstruct or impair the passage of the street in front of plaintiff’s premises.

[85]The facilities and means of ingress and egress to and from plaintiff’s land, and the free use and occupation thereof, were obstructed by the embankment and track.