City & County of San Francisco v. Safeway Stores, Inc.

BRAY, J. Plaintiff sued to have defendant’s use of a certain traffic easement for ingress to and egress from its property upon which its store is located, by its customers and others, declared a public nuisance and enjoined. Defendant appeals from a judgment in plaintiff’s favor.

Questions Presented

1. Is the use of a traffic easement in a residential zone for purposes of ingress and egress to a parking lot on mercantile store premises by the general public, delivery trucks, etc., a violation of the zoning restrictions?

2. Is such a violation a public nuisance ?

Facts

There is no conflict in the evidence, the facts having been mostly stipulated. The Stonesons prior to and on March 13, 1940, owned a tract of land in San Francisco, bounded by 19th Avenue, Ocean Avenue, Eucalyptus Avenue and a municipal right of way. It was divided into lots. Lots 9 to 16, both inclusive, front on 19th Avenue. On March 13, 1940, they were zoned by a San Francisco ordinance as first residential zone. Lots 8, 17 and 18 constitute the easterly portion of said tract. By said ordinance Lots 17 and 18 were zoned as commercial zone. In 1948 most of Lot 8 was so zoned “with stipulations” limiting it to use for parking only. Defendant maintains its store on Lot 18, with an extension thereof on a portion of Lot 8 which portion was zoned “commercial” for that purpose in 1950. March 15, 1940, the Stonesons recorded a “Declaration of Easement,” which after reciting that they were the owners of the above entire tract, described a portion of said tract and then stated: “Now Therefore, the undersigned, Henry Stoneson and Ellis L. Stoneson, do hereby create and declare and there is hereby created and there shall hereafter exist a traffic easement upon and over that portion of said property herein lastly described, and which said easement shall be kept open and unobstructed at all times.”

[329]Lots 9 to 16, both inclusive, are held in separate ownerships. Lots 8, 17 and 18 belong to defendant. Prior to May, 1953, the line between the easement and defendant’s property was fenced, thus preventing access from the easement to that property. In that month defendant removed a portion of the fence near Eucalyptus Avenue, thereby connecting the parking lot with the traffic easement. While there is an “exit” sign at this point, it is ignored as cars go both in and out of the parking lot there. Moreover, some drivers now use the easement as a cutoff, coming off 19th Avenue into Eucalyptus, thence through the easement into the parking lot and on to Ocean Avenue. Defendant’s customers desiring to go from the parking lot to Ocean Avenue use the driveway of the residents on the easement in order to make the turn. In so doing they damage property. Trucks and suppliers of service to Safeway frequently use the easement for both ingress and egress. Since defendant’s property was opened for parking through the easement, the traffic has increased immensely. The easement is now used as a thoroughfare.