Opinion
Rehearing Denied Jan. 9, 1929.
Hearing Granted by Supreme Court Feb. 7, 1929.
Appeals from Superior Court, Los Angeles County; Victor R. McLucas, Judge.
Suit by the People against H. W. Hawley, the Los Angeles Excavating Company, and others, and two suits by the Los Angeles Rock & Gravel Company, against the City of Los Angeles and others, were tried on the same evidence. Judgment for plaintiff was entered in each case, and defendants appeal separately on one transcript. Affirmed as to first case; reversed, with directions as to second and third cases.
COUNSEL
Charles H. Mattingly, of Los Angeles, for appellants Hawley and others.
Jess E. Stephens, City Atty., and Jerrell Babb, Deputy City Atty., both of Los Angeles, for the People and appellants City of Los Angeles, and others.
Charles H. Mattingly, of Los Angeles, for respondent Los Angeles Rock & Gravel Co.
OPINION
STROTHER, Justice pro tem.
The first named of the above actions was instituted by the city attorney of the city of Los Angeles, under the authority of section 731 of the Code of Civil Procedure, in the name of the people of the state of California, to abate and enjoin a nuisance which the defendants Los Angeles Rock & Gravel Company, a corporation, and Hawley and others, directors of the company, were alleged to be committing and maintaining. The facts of the alleged nuisance, as set out in the complaint, were that the defendants were excavating rock, sand, and gravel in the residential district of Los Angeles by means of steam shovels and that the smoke, dust, and noise resulting from its operation were a menace to the health and comfort of its inhabitants; that they were excavating sand and gravel from the company’s holdings along Arroyo Seco, or dry creek, in that neighborhood, in a manner to create pools of stagnant water detrimental to the public health, and removing the natural banks of the creek, thereby subjecting the streets of the city and residence lots in the district to the danger of damage and destruction by flood waters and depriving them of lateral support.
The defendants answered, denying the material allegations of the complaint specifically, and setting up that certain other actions were pending between the city of Los Angeles and defendant Rock & Gravel Company, involving the right of the defendant to continue its operation; that retaining walls had been built by the defendant and others were to be built to restrain any flood waters that might come down the creek; that no such waters could come down, as the Los Angeles flood control district had constructed a dam in the hills which would impound all flood water; that the purpose and object of the city in instigating the suit was to confiscate the property of defendant without compensation; that besides lands owned by it along the creek, defendant held a short-time lease on 15 acres having deposits of sand and gravel of the net value of $675,000.
The trial court found that the defendant could continue its operations on its own land with certain restrictions upon the extent and manner of its excavation and by building walls to control the flood waters and give lateral support to adjoining lands; that the leased land might be excavated along the creek channel, but that the excavation of the remainder of it would endanger streets and property adjacent which could not be protected by the building of a wall; that the net value of the deposits on the leased land was $675,000. Decree was entered accordingly, providing for excavation of defendants’ land under regulations laid down, and enjoining the excavation of the leased land. The first part of the decree was accepted by the parties, and it is from the latter part that defendants prosecute their appeal.
The only points seriously urged by appellants are: (1) That the finding that the leased lands could not be excavated, and adjacent lands protected by a wall, is not supported by the evidence; (2) that the judgment is erroneous because, in effect, a confiscation of defendants’ property for public use without compensation; (3) that the judgment, if permitted to stand, should be so amended by the court as to give judgment in favor of defendant Los Angeles Rock & Gravel Company and against the city of Los Angeles, in the sum of $675,000, the net value of the deposits in the leased land as found by the court.
As to the first point, it is conceded by appellants that the evidence was conflicting; but it is claimed that the physical facts disclosed are so inconsistent with the conclusion of the court as to make the evidence upon which it was based not worthy of credence. The physical facts adverted to are that the banks of the creek consist of loose sand, rock, and gravel, subject to erosion by the flood waters. But it further appeared that the leased land was a table-land rising some distance above the level of the creek, and it cannot be said, as a matter of fact, that the resistant power of the weight and extent of the deposit could be supplied by an artificial wall. The finding of the court being based upon substantial evidence cannot therefore be disturbed.
As to the second point, appellants’ position seems to be, though it is not precisely defined, that, their interest in the land being only to do the things which the court held to be a menace to the public welfare, they were in a different situation from the owner of the whole estate, because the result of the judgment was to destroy the whole value of their interest. If their contention were correct, the most obnoxious nuisance might by a very simple device be placed on an impregnable position. The land remains to its owner to be used for whatever lawful purpose he may see fit to use it.
The authorities to the effect that the use of property in a manner detrimental to the public health or safety may be abated, however valuable the use be to the owner, are too numerous and too uniform to require specific citation. What has just been said disposes also of the third contention of appellants; but it may be observed that they have not pointed out how this court could, in any event, render a judgment against the city of Los Angeles, which is not a party to the action.
The two other actions were brought by Los Angeles Rock & Gravel Company against the city of Los Angeles and the mayor and other officials of the city to enjoin the enforcement of two several penal ordinances of the city forbidding such operations as those of plaintiff in certain sections of the city which by ordinance had been set apart as a strictly residence district. The three actions were tried upon the same evidence and separately appealed upon one transcript, and stipulated to be and ordered heard together on appeal. In the two latter cases judgments were given in favor of the plaintiff, from which the respective defendants appeal.
The facts alleged by plaintiff pertinent to the question are that it is the owner in fee and holder under lease of lands which are chiefly valuable for their deposits of rock, sand, and gravel which can be excavated and removed for sale; that it has a very large investment in its business, many contracts for its material unfulfilled, and a great prospective profit from the operation of its business which will be destroyed if defendant is permitted to enforce its ordinances; that while the lands which plaintiff was excavating are within a residence district as defined by the city’s ordinance, the district is so thinly populated that its operations will not be detrimental to the public welfare. The tract of land involved in these two actions and upon which plaintiff was operating is the same tract as that which the court enjoined the plaintiff from excavating in the case of People v. Hawley et al., hereinbefore considered.
There are many averments in the pleadings on the part of both parties to these actions which are entirely irrelevant to the single issue which should have been presented; i. e., whether or not the ordinances complained of were void as being an arbitrary and unreasonable, and therefore unconstitutional interference with the right of plaintiff to the enjoyment of its property. The complaint sets out that under an act of the Legislature a flood control district was organized which constructed a dam in the mountains, which, it alleges, controls all but exceptional floods coming down a creek abutting upon plaintiff’s property, and that the district is authorized by law to make further provision for the control of flood waters. It also alleges that the city of Los Angeles was by law authorized to lease, operate, and own gravel beds and that it was engaged in a nefarious scheme to drive out all competition and acquire all of plaintiff’s properties and acquire a monopoly of the kind of business conducted by plaintiff.
The defendant pleaded a contract alleged to have been entered into between plaintiff and defendant by which the former agreed to build walls along the creek and around certain excavations made by it in its operations, and the defendant, in consideration of plaintiff’s agreements, agreed not to interfere with excavations which were the subject of an injunction suit between the parties-the particulars of which suit do not appear-and to permit plaintiff to do certain other things evidently relating to matters involved in that suit. Plaintiff filed an amended and supmental complaint alleging that the contract mentioned was never executed and that, if it had been, it was void as in restraint of trade.
What these various matters had to do with the issue to be tried by the court is not apparent to us, yet the bulk of the voluminous pleadings and findings of the court are devoted to them except that the court made no findings whether or not the city had the evil intent attributed to it. The pleading of such matters, with the consequent burden upon the trial court of hearing evidence and making findings, serves merely to befog the real issue and makes the task of a reviewing court almost as onerous as that of the proverbial searcher for the "needle in a haystack."
Pleading is the final test of a lawyer’s knowledge of the facts of his case and the law applicable to the facts. The injection of a great mass of irrelevant and redundant matter into a pleading is evidence that the pleader is either too ignorant to know what it is all about or too indolent to find out. Counsel state that the taking of the joint evidence in the three cases consumed seven weeks, and the size of the reporter’s transcript confirms the statement. Only an infinitesimal amount of that evidence is set forth in counsels’ briefs, but the judgment rolls in the two latter cases make a large printed volume, and in the former, a considerable part of another.
The reasonableness of any legislative act under the police power is presumed when it appears upon its face from common knowledge of its subject-matter to be reasonable. If it does not so appear, any one attacking its validity must plead and prove facts showing that it is unreasonable.
It is contended by respondent that each of the ordinances is arbitrary and unreasonable upon its face. The ordinances forbid the carrying on of operations such as plaintiff’s in residence districts established by a zoning ordinance of the city. The power of municipalities to adopt zoning ordinances has been upheld. Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A. L. R. 1479. It is not apparent that forbidding the operation of steam shovels or the excavating of deep holes in a residence district is an arbitrary or unreasonable regulation; on the contrary, it would appear that such operations might easily depreciate or destroy the value of such a district for residence purposes and render ineffective the zoning ordinance.
It was, therefore, incumbent upon the plaintiff to allege and prove such facts and circumstances as would show the arbitrary and unreasonable application of the ordinances under existing conditions. The plaintiff claims that the enforcement of the ordinance will result in the taking of its property without due process of law by prohibiting its most valuable use. The right to a beneficial use of private property, however, has always been held subject to such limitation as the state, in the exercise of its police power, may lawfully impose.
The only allegations in the complaints from which it might be inferred that the application of the ordinances to plaintiff’s business was arbitrary and unreasonable is that the district in which it was being conducted was not in fact a residence district, but that all of its land "is an uninhabited district, and the territory around it is thinly inhabited," as expressed in one complaint and by similar allegations in the other complaint. The court, however, found to the contrary of the statements in these allegations. The judgment of the court is not supported by the findings.
The judgment in the case of People v. Hawley et al. is affirmed. The judgments in the cases of Los Angeles Rock & Gravel Co. v. City of Los Angeles and the Same Plaintiff v. City of Los Angeles, Cryer et al., are reversed, with directions to the trial court to enter judgments in favor of the defendants.
I concur: NOURSE, J.