Symons v. City & County of San Francisco

Henshaw, J. Upon consideration in Bank the opinion heretofore rendered in department is adhered to and adopted.

A taxpayer is permitted to maintain an action to restrain the improper diversion or use of the public funds, or to compel an official to do some act whose omission would increase his burden as a taxpayer. In both cases the ultimate object is the same—to escape the imposition of an increased taxation, which, except for his right of action, would be by direction or indirection illegally thrust upon him. No such consideration is here presented. It is not made to appear that any additional burden or expense is to he imposed upon plaintiffs as taxpayers, or that any expense at all attends the proposed vacation.

While plaintiffs show that they are property owners, they show also that they are not owners of property abutting upon the streets proposed to be closed. Owners of abutting property have a special easement, which is ■ property, upon the fronting street. (Eachus v. Los Angeles Ry. Co., 103 Cal. 614; 42 Am. St. Rep. 149; Bigelow v. Ballerino, 111 Cal. 559.) But it is well settled that owners of other realty have no such property in a street as entitles them to damages for its vacation. Whatever detriment or inconvenience they may suffer by the closing of the street, they bear in common with the community at large for the public convenience and welfare, as decreed by the proper legislative authorities in ordering the vacation. (Coster v. Mayor, 43 N. Y. 414; King’s County Fire Ins. Co. v. Stevens, 101 N. Y. 411; Smith v. Boston, 7 Cush. 254; Castle v. County of Berkshire, 11 Gray, 26; East St. Louis v. Flynn, 119 Ill. 200; 59 Am. Rep. 795; Heller v. Atchison etc. R. R. Co., 28 Kan. 625; Kimball v. Homan, 74 Mich. 699.)

In Heller v. Atchison etc. R. R. Co., supra, the court refused, at the instance of an owner of nonabutting property, to enjoin proceedings looking to the vacation of a street, holding that there was no such special inter[558]est or property in plaintiff as would entitle her to maintain the proceeding. In Kimball v. Homan, supra, the precise question here presented was considered and determined. The proceeding was in certiorari, and it was declared that the only persons who can seek a review of proceedings to discontinue a highway in whole or in part are the owners and occupants of land through or adjoining which it proposed to discontinue the road, which adjacency is confined to the part discontinued.

If, as plaintiffs contend, the proceedings of the supervisors looking to the vacation of the streets are void, there is no occasion for the interposition of equity (Oakland v. Carpentier, 21 Cal. 642, 666); for plaintiffs would have adequate remedies at law for any illegal and improper obstructions of the streets.