City & County of San Francisco v. Buckman

Belcher, C. This is an appeal from an order denying the defendant’s motion for a new trial.

The action was brought to obtain a decree restraining the defendant, his agents, servants, and employees from digging into, tearing up, or in any way interfering with the roadway, roadbed, sidewalks, or grade of Market street, between the points of its junction with Valencia street and Seventeenth street, in the city and county of San Francisco.

The defendant, by his answer, admitted that he had commenced, with a large force of men, to grade a portion of Market street between the points named; and to justify his right to do so he set up an order, No. 2318, passed by the board of supervisors of said city and county in December, 1890, “changing and establishing grades on Market street, southwesterly from Valencia street,” and a resolution, No. 4498 (third series), passed [28]by the said board in January, 1891, granting permission to certain property owners on Market street, between Valencia and Seventeenth streets, to grade said street in front of their property to the center line thereof. And he alleged that, under a contract with the said property owners, and a permission duly obtained from the superintendent of streets, he was proceeding to grade the street to the official grade for and on behalf of the property owners, and was lawfully performing said work when restrained by the order of the court below.

The case was tried, and the court found that at all the times mentioned Market street was and still is one of the public streets of the city and county of San Francisco; that at the time of the commencement of the action the defendant was engaged, with a large force of men in his employment and under his control, in digging, tearing up, removing, and otherwise destroying and obstructing the roadway of said street, between Valencia and Seventeenth streets, in such a manner as to obstruct the free passage and use of the same, and to destroy the roadway thereof for the use and purposes of a street and thoroughfare, and threatened to continue said acts; that all of said acts of defendant were done without the consent or permission of plaintiff or any of its officers or agents, and contrary to the express commands of plaintiff; and, as conclusions of law, that the said acts of defendant constitute a public nuisance, and plaintiff is entitled to a writ of injunction to restrain the further continuance thereof. A decree was accordingly entered granting the plaintiff the relief prayed for.