Opinion
3-2-1956
George J. LYNN, Plaintiff and Appellant, v. Sherman P. DUCKEL, Defendant and Respondent.* Civ. 16597.
John J. Dailey, San Francisco, for appellant. Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for respondent.
George J. LYNN, Plaintiff and Appellant,
v.
Sherman P. DUCKEL, Defendant and Respondent.*
March 2, 1956.
Rehearing Denied March 30, 1956.
Hearing Granted April 25, 1956.
John J. Dailey, San Francisco, for appellant.
Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for respondent.
BRAY, Justice.
Plaintiff appeals from a judgment denying him a mandatory injunction and damages. Questions Presented.
1. Is any portion of Argent Alley dedicated to vehicular use?
2. Did defendant have authority to close Argent Alley to vehicular use?
3. Does the doctrine of 'clean hands' apply? Evidence.
Defendant is Director of Public Works of the City and County of San Francisco. Plaintiff's property, purchased by him in 1951, is located on 23rd Street midway between Market Street and Corbett Avenue. The rear or back yard fronts on Argent Alley. Twenty-third Street is unimproved and probably too steep to improve for vehicular traffic, hence plaintiff's only method of getting into his property by vehicle is to use Argent Alley, which beyond plaintiff's property becomes too steep for vehicular use. The alley connects Market Street with Corbett Avenue. The alley is 10 feet wide and at its entrance there is a dwelling house abutting on one side and a retaining wall on the other. In 1951 the sidewalk at the alley entrance was about 3 1/2 to 4 feet above the level of Market Street, and was depressed towards the street 10 to 12 inches. There is an asphalt ramp from the sidewalk to the curb, which curb is 6 inches high and is unbroken in line. Thence a 'triangular apron' or 'cement plug' extends this ramp over the curb and into Market Street for some 2 feet. The grade from the street level to the property line is approximately 19 per cent and from the property line up the alley a short distance is about 10 per cent. It is then about level to a point halfway up the alley where the grade becomes too steep for vehicular use. There is a pedestrian stairway on one side of the alley from there to Corbett Avenue. Plaintiff's property fronts on the level portion.
Some time prior to 1923 a map was placed of record showing many lots, blocks, streets and alleys, including this block 2800, Argent Alley, and the surrounding streets. About 1923 or 1924 the city and county graded and paved Market Street for many blocks, including block 2800. It also constructed a concrete sidewalk approximately 9 feet wide along this block. It was at this time that the before-mentioned ramp and the apron leading from the street was constructed by the same contractor who built the sidewalk. The cost was paid by the city and county. At the time this work was done the plan called for constructing a concrete stairway from the street to the sidewalk, in front of the alley. However, instead, the apron and ramp were constructed and the stairway was built to the south of the alley and in front of private property. At that time one Zion owned the property at one corner of the alley and Market Street, as well as the property behind it now belonging to plaintiff. Mrs. Zion testified that her husband spoke to the engineering department of the city about making the change from the proposed stairway to the ramp so that they could use the alley for vehicles. For 15 years (from 1924 to 1939) the Zion family ran their automobile into the alley to their property, and at times trucks used it to deliver groceries and other merchandise to the Zion home. From 1939 to November 1, 1951, the alley was used only by pedestrians, as there was no one living in the alley who owned a car.
After purchasing the property in 1951, plaintiff remodeled the house, obtaining the necessary permits. The alley was then unsightly and difficult to go over in a vehicle or even to walk over because of trash and material which had been thrown into it. In November, plaintiff requested a permit from the city engineer's office to clean up the alley, but was told a permit was not necessary. Plaintiff hired a laborer to do the work. A city official inspected the work while it was going on and approved. Plaintiff then employed a bulldozer for one day to grade the alley. The dirt removed was deposited on plaintiff's lot and an adjoining lot, leveling off depressed areas. Several days of rain followed and the neighbors complained to defendant that the alley was so muddy and slippery that it was almost impossible to walk through it. Defendant went out to look at it and then told plaintiff the alley was for pedestrian use only. Plaintiff was ordered to restore the soil taken from the alley. He agreed instead to bring in crushed rock, which he did, covering the entire area of the alley (up to the stairway) to a thickness of 8 to 12 inches. The neighbors complained of the trucks and bulldozers going into the alley, so defendant sent a crew out to remove the apron from the street to the curb. Plaintiff put it back. Defendant then had his crew remove the paved ramp from the curb to the sidewalk. They reconstructed the sidewalk and set a 4 inch pipe in concrete in the center of the entrance to the alley so that it could no longer be used by a vehicle. Plaintiff later brought this action to have the alley opened up for vehicular use and for damages. Findings.
The court found, among other matters, that for 15 years prior to 1939 'Zion and family ran their automobile up this ramp into Argent Alley and thence into Zion's side yard * * *. Trucks delivering groceries and other merchandise to Zion's home also used the ramp and alley during this period * * *. From 1939 until November 1, 1951, Argent Alley was used exclusively by pedestrians, including children on their way to and from school,' and that Argent Alley 'is a duly established public alley' and is not and never has been 'part of the vehicular highway system of the State of California or of the City and County of San Francisco.' It is now and 'since it was established has been, unsuited to use by vehicular traffic or to combined use by vehicles and pedestrians.' The change from stairs to ramp was made, not through a change in official plans, but for the Zions' benefit. This change created a depressed area in the sidewalk hazardous to pedestrians. Plaintiff's action in removing the soil was without authorization and in violation of the San Francisco Public Works Code. Defendant's action was taken to preserve Argent Alley as a pedestrian way and to 'eliminate the dangerous condition resulting from plaintiff's unauthorized effort to transform it into a roadway for use of vehicles. Use of Argent Alley by both pedestrians and vehicles is dangerous to pedestrians and constitutes a dangerous condition of public property.' 1. Vehicular Use.
Defendant admitted and the court found that Argent Alley is 'a duly established public alley.' Just what is meant by the statement that the alley never has been a 'part of the vehicular highway system' of the state and San Francisco is not clear. A duly established public alley (or street) is one which the public has the right to use for any purpose for which it is reasonably adapted. When many years ago a map was placed of record dividing the area into lots, blocks, streets and alleys, the owners of the property shown on it offered for dedication to the public such streets and alleys for the purposes to which streets and alleys are customarily used. Acceptance of such offer is made either formally by the municipality, or by user. There is no direct evidence of a formal acceptance, although the improving of the streets and alley entrances may be evidence of such acceptance. However, here the evidence is undisputed that for over 15 years, with the knowledge of the city, the portion of the alley usable by vehicles was so used. There is and can be no contention that the whole of the alley must be so used in order to constitute an acceptance of a portion. Moreover, the city improved the entrance to the alley so that it could be so used. The fact that the change in the work making it so usable was at the request of an interested citizen and the fact that the plan was not changed on its face, cannot affect the undenied fact that the work was done by a contractor under a contract with the city (not with the property owner) and that the work was paid for by the city. Defendant testified that the depression in the sidewalk was 'put in by the city at Mr. Zion's request.' (Emphasis added.) Moreover, no change was made in the work as done from 1923 to 1951--approximately 28 years. If the finding that the alley is not a part of San Francisco' vehicular system means that it has not been dedicated to the limited vehicular use for which it is adapted, then such finding is completely inconsistent with the admitted fact and the finding that the alley is 'a duly established public alley,' and, moreover, is unsupported by the evidence.
It is important to remember that when Argent Alley was offered for dedication it was probably during the horse and buggy days and at a time when its use jointly by pedestrian and vehicular traffic could not possibly have been dangerous. The fact, if it be such, that in later years it has become dangerous would, of course, not change the fact that it was dedicated for vehicular use as well as for pedestrian use. Defendant places emphasis on the fact that there are 6 other 10 foot alleys in this general area, which are used only for pedestrian stairways. However, each of those alleys is so steep as to be inaccessible to vehicular use, and at no time has been so used. The fact that other areas have not been and cannot be devoted to vehicular use has no bearing on the situation as to Argent Alley. 2. Defendant's Authority.
Argent Alley being demonstrated to have been dedicated for both pedestrian and vehicular use, the question then is whether the evidence supports the court's finding that it has become dangerous to the general public to be so used, and if so, whether defendant has the authority to prevent that use.
The court found: (1) That the depressed area in the Market Street sidewalk was hazardous to pedestrians on Market Street. It is doubtful if this finding is sustained. For 28 years that depression existed and there is no evidence of any injury having occurred or of anyone slipping on it. As shown in the evidence there are many similar conditions along Market Street in that area where the sidewalks are similarly depressed to provide entrances from the street to home garages. It is a matter of common knowledge that in a hilly city like San Francisco such sidewalk depressions occur on many streets and likewise at the entrances to many service stations and garages. Assuming the finding to be supported, such fact did not justify defendant in making it impossible for the sidewalk at the entrance to the alley to be crossed by vehicles. As we have pointed out, Argent Alley was dedicated for and used by both vehicular and pedestrian traffic. This, of course, requires that the entrance into the alley be not obstructed. If necessary, the city could eliminate the sidewalk crossing the entrance to the alley, as is the situation at the intersection of streets and alleys all over the city. (2) The court found that the alley is unsuited for vehicular traffic or for combined use of vehicles and pedestrians. Again, here, it is doubtful if this finding is supported. It is clearly usable and has been used up to plaintiff's property for both kinds of traffic. The mere fact that the alley is narrow and that on the few times per day a vehicle would be using it, there it little clearance between a vehicle and the walls of the alley for pedestrians, does not make the alley unsuitable for use by either. Assuming that the use by both vehicles and pedestrians is dangerous, we can find no authority in defendant to determine which of the uses causing the danger is to be eliminated. A pedestrian has no greater right to the use of a public street (and a public alley is a public street--see Streets and Highways Code, § 8304) than a vehicle and vice versa. See McQuillin, Municipal Corporations, 3d Ed., vol. 11, p. 7, § 30.157. The defendant might just as well have determined that pedestrians should not use the portion of the alley and leave it entirely to vehicles. We are not dealing with a temporary closing of the alley to vehicle use because of an imminent danger. We are dealing with what constitutes a complete closing of the alley to vehicular use. This cannot be done by an official; it can only be done by the board of supervisors and then only in the manner prescribed by law. See City of Los Angeles v. Fiske, 117 Cal.App.2d 167, 255 P.2d 445; Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P.2d 839. While these cases deal with closing a street as a whole (Streets and Highways Code, § 8320 provides for the vacation by a city council of 'any street or part of any street' and § 8304 defines 'street' as including 'alley') the same rule necessarily applies to the closing of a street or alley to vehicular use, such being, in effect, a limited permanent closing. We have been cited to no authority (and we have been unable to find any) authorizing the permanent closing of a public thoroughfare to vehicular traffic by an officer rather than the legislative body of the municipality.
In Stevens v. City of Dublin, Tex.Civ.App.1914, 169 S.W. 188, it was held that even the city legislative body could not by ordinance close the portion of the street in front of a school because its use was dangerous to the school children. Quoting from McQuillin, section 893: "* * * to justify the interposition of this authority in behalf of the public, it must appear: First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. * * *" At page 191.
In Commissioner's Court v. Kaiser, Tex.Civ.App.1929, 23 S.W.2d 840, the county commissioners, by ordinance, closed the road in front of a school, to vehicular and other uses for a 7 hour period each school day, because of danger to the school children. In denying this power to the commissioners the court said at pages 841, 842: 'It is well settled that one who buys property abutting on a street or roadway acquires a property interest in the street which entitles him to its use free from obstruction. * * * The power to discontinue a public road conferred by the cited statute is restricted to abandonment by the county of its maintenance as such public highway, and does not include the right to deny its use to the owners of property situated thereon.' 3. Clean Hands.
The court found that plaintiff's grading of Argent Alley was without a written permit and in violation of the San Francisco Public Works Code, and because thereof, plaintiff did not come into court with 'clean hands.' While there is no express allegation in defendant's answer that plaintiff did not have 'clean hands,' his conduct in grading the alley without a permit was alleged as the cause of the alleged dangerous and defective condition. In the transcript we can find no claim being made that plaintiff, because of his alleged illegal conduct, came into court with unclean hands. However, the court found that he did. We deem it unnecessary to determine whether this constituted sufficient raising of the doctrine in the trial court to permit its consideration here for the reason that we do not believe the doctrine is applicable in this type of case. The owner of property abutting on a public street or alley has a private right or easement for ingress and egress and may maintain an action for the protection and preservation of that easement and for damages. See Clough v. W. H. Healy Co., 53 Cal.App. 397, 200 P. 378; Strong v. Sullivan, 180 Cal. 331, 181 P. 59, 4 A.L.R. 343. 'Any obstruction to the use of the street which impairs or destroys these easements is a private injury, special and peculiar to the owner of the lot, and different and distinct from the injury to the general public and from that which such owner suffers as a part of the general public.' Williams v. Los Angeles Ry. Co., 150 Cal. 592, 594, 89 P. 330, 331; see also Beals v. City of Los Angeles, supra, 23 Cal.2d 381, 384, 144 P.2d 839, holding that an easement in an alley cannot be taken or damaged without payment of compensation. We fail to see how the mere fact that plaintiff acted illegally in grading the alley should deprive him of the right to protect and preserve his easement. Moreover, at the same time he is preserving his easement he is also protecting and preserving the rights of the general public, for the public has a right to use so much of the alley for vehicular purposes as is usable therefor. Had plaintiff left the alley in the muddy condition in which he first placed it before defendant ordered him to restore its condition, the use of the alley by the public generally might have been impaired. But he graveled it so that it is as usable, if not more so, than when he first tampered with it. It might be that plaintiff is liable for a violation of the city ordinance, but under the doctrine of 'clean hands' the defendant here, and the city itself, were not injuriously affected by plaintiff's action.
'It is settled that the act upon which equity may refuse relief to a plaintiff because he does not come into court with clean hands must prejudicially affect the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief. Pomeroy's Equity Jurisprudence, 5th ed., vol. 2, p. 95, § 399; Germo Mfg. Co. v. McClellan, 107 Cal.App. 532, 290 P. 534. In speaking on this subject the Supreme Court, in Bradley Co. v. Bradley, 165 Cal. 237, 131 P. 750, 752, said:
"It is not every wrongful act not even every fraud, which prevents a suitor in equity from obtaining relief. His misconduct must be so intimately connected to the injury of another with the matter for which he seeks relief, as to make it inequitable to accord him such relief. It must have been conduct which, if permitted, inequitably affects the relationship between the plaintiff and the defendant, * * *." Wiley v. Wiley, 59 Cal.App.2d 840, 842, 139 P.2d 950, 951; see also Bradley Co. v. Bradley, 165 Cal. 237, 242, 131 P. 750; Tobola v. Wholey, 75 Cal.App.2d 351, 358, 170 P.2d 952. We fail to see how the conduct of plaintiff so prejudicially affected the rights as between him and the city and the defendant purporting to act for the city, as to justify a court of equity in refusing to grant him relief against the unauthorized acts of defendant.
We deem it unnecessary to express an opinion on the question of whether defendant's action was precipitated by plaintiff's alleged illegal conduct and that such conduct, although not denying him the right to assert his rights, might or might not justify a denial of damages.
The judgment is reversed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 299 P.2d 236. 1 'Entrance' as used herein means the Market Street entrance. 2 Defendant contends that plaintiff has not attacked the findings and has failed to set forth in his brief all of the material evidence with respect thereto, and that therefore under the rule of Tessyman v. Fisher, 113 Cal.App.2d 404, 407, 248 P.2d 471, and Kruckow v. Lesser, 111 Cal.App.2d 198, 200, 244 P.2d 19, he has waived his right to attack the findings. These contentions are incorrect. However, plaintiff did fail to follow Rule 15, Rules on Appeal: 'The statement of any matter in the record shall be supported by appropriate reference to the record.' Our task in determining this appeal has been made considerably heavier because of this failure. While in the interests of justice we have chosen to ignore this defect, we have not enjoyed doing so. 3 Defendant's brief, except as it discusses the doctrine of 'clean hands' hereafter mentioned, is limited entirely to his contention that Argent Alley never was anything but a pedestrian way. 4 Stone v. Lobsien, 112 Cal.App.2d 750, 758, 247 P.2d 357; Scannell v. Murphy, 82 Cal.App.2d 844, 849, 187 P.2d 790, and Watson v. Poore, 18 Cal.2d 302, 311, 115 P.2d 478, seem to imply that a finding by the trial court on the subject is sufficient even though the doctrine is not pleaded.