Opinion
Department One
Appeal from the judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
William & George Leviston, for Appellants.
Stewart & Herrin, for Respondent.
JUDGES: Foote, C. Belcher, C. C., and Hayne, C., concurred.
OPINION
FOOTE, Judge
[18 P. 428] This action is to compel the removal of an obstruction, in the shape of a stairway, placed by the defendants in an alley through and over which the plaintiff has the right of way as an appurtenance to the lot upon which stands his dwelling-house. The plaintiff had judgment as prayed for, and from that and an order denying a new trial the defendants have appealed.
The alley over which the right of way is alleged to exist in favor of the plaintiff is ten feet wide, and is a cul-de-sac, running easterly eighty-seven feet from Taylor Street, near Sutter. The land on which the alley is laid out was originally a fifty-vara lot belonging to a single individual. He sold the easterly fifty feet of this lot to a man named Hagerman, and divided the other part of it into six lots in such a way as that they all abutted on this alley. As these six lots were sold to different parties, the right of way over this alley was reserved to each of the purchasers in the several deeds of conveyance made thereto.
Stallard, the plaintiff, by and through mesne conveyances from the original owner of all the lots, became the possessor of one of them so abutting on the alley, and the defendants also of another such lot. The plaintiff's lot is further down in the alley from Taylor Street where the alley debouches than is that of the defendants, so that the stairway of the defendants very materially obstructs the ingress and egress of the plaintiff to and from his lot on Taylor Street.
From the evidence it is very clear to us that the alley was never dedicated to the use of the public as a highway. There is an absence of all appearance of any intention so to dedicate it on the part of the man who first laid it out and opened it, and there does not appear to have been any acceptance of it as a street or public highway for the general public. To the contrary, it seems to have been intended for and used as a means of approach to the lots and houses there situate, for the private use only of those few persons who might dwell there, and those who approached them to minister to their wants.
Being a private way, to the unobstructed use of which the plaintiff was entitled, and which use was peculiarly his own and that of the few persons only who dwelt on the lots which had formerly comprised the fifty-vara lot, the injury which the plaintiff suffered was not one in any way common to the general public, and he was entitled to have it abated as a nuisance, as its existence violated his legal rights, which could only be maintained by an injunction ordering its discontinuance, or a resort to a multiplicity of suits for damages, which last alternative action rather than the first the law does not force him to take. (Wood on Nuisances, secs. 782, 783.)
There is no prejudicial error shown by the record, and the judgment and order should be affirmed.
The Court. -- For the reasons given the foregoing opinion, the judgment and order are affirmed.