McCloskey v. Kreling

California Supreme Court

McCloskey v. Kreling

18 P. 433, 76 Cal. 511, 1888 Cal. LEXIS 921

CourtCalifornia Supreme Court

DecidedJune 9, 1888

DocketNo. 11272

StatusPublished

Cited by19 cases

This text of 18 P. 433 (McCloskey v. Kreling) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCloskey v. Kreling, 18 P. 433, 76 Cal. 511, 1888 Cal. LEXIS 921 (Cal. 1888).

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Opinion

Hayne, C.

Action by the owner of certain houses in the city of San Francisco to enjoin the continuance of an adjacent wooden building, which was built in violation of the ordinance establishing the fire limits. The court below gave judgment in favor of the defendants, and the plaintiff appeals.

We think the ordinance is a valid one. (Const., art. 11, sec. 11; 1 Dillon on Municipal Corporations, 3d ed., sec. 405; Amyx v. Taber, 23 Cal. 370; Ex parte Shrader, 33 Cal. 279; Ex parte Smith, 38 Cal. 702; Johnson v. Simonton, 43 Cal. 242; Ex parte Delaney, 43 Cal. 479; Ex parte Casinello, 62 Cal. 538; Ex parte Moynier, 65 Cal. 33; Ex parte Heilbron, 65 Cal. 610; Ex parte White, 67 Cal. 102; Matter of Yick Wo, 68 Cal. 294; 58 Am. Rep. 12; Matter of Linehan, 72 Cal. 114; Barbier v. Conolly, 113 U. S. 27.)

In the absence of this ordinance, the maintaining of a frame building in a city would not give a right of action to the owners of adjacent property, although the value of such property was thereby decreased, and the rates of insurance raised. Such circumstances are ordinary incidents to residence and ownership in a city. (Rhodes v. Dunbar, 57 Pa. St. 274; 98 Am. Dec. 221.)

If we assume that the ordinance gives a right of action by private persons, it can only be to those who suffer damage by reason of its violation. And this dam.age must be special, and not such as is common to the [513]*513public. The defendant’s building being “located in a portion of said city and county compactly built upon and densely populated” (Trans., fol. 76), would naturally cause to others more or less of the same depreciation in. value and increase of insurance rates from which it would seem the plaintiff suffers. Hence there is no damage which is special to him. Depreciation in value is not a ground of special damage. (Severy v. C. P. R. R., 51 Cal. 197; Bigley v. Nunan, 53 Cal. 404.) The injury “must be special in character, and not merely greater in degree, than that of the general public.” (Bigley v. Nunan, supra; Crowley v. Davis, 63 Cal. 460.)

We therefore advise that the judgment be affirmed.

Belcher, C. C., and Foote, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in Bank denied.

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Hayne, C.

Action by the owner of certain houses in the city of San Francisco to enjoin the continuance of an adjacent wooden building, which was built in violation of the ordinance establishing the fire limits. The court below gave judgment in favor of the defendants, and the plaintiff appeals.

We think the ordinance is a valid one. (Const., art. 11, sec. 11; 1 Dillon on Municipal Corporations, 3d ed., sec. 405; Amyx v. Taber, 23 Cal. 370; Ex parte Shrader, 33 Cal. 279; Ex parte Smith, 38 Cal. 702; Johnson v. Simonton, 43 Cal. 242; Ex parte Delaney, 43 Cal. 479; Ex parte Casinello, 62 Cal. 538; Ex parte Moynier, 65 Cal. 33; Ex parte Heilbron, 65 Cal. 610; Ex parte White, 67 Cal. 102; Matter of Yick Wo, 68 Cal. 294; 58 Am. Rep. 12; Matter of Linehan, 72 Cal. 114; Barbier v. Conolly, 113 U. S. 27.)

In the absence of this ordinance, the maintaining of a frame building in a city would not give a right of action to the owners of adjacent property, although the value of such property was thereby decreased, and the rates of insurance raised. Such circumstances are ordinary incidents to residence and ownership in a city. (Rhodes v. Dunbar, 57 Pa. St. 274; 98 Am. Dec. 221.)

If we assume that the ordinance gives a right of action by private persons, it can only be to those who suffer damage by reason of its violation. And this dam.age must be special, and not such as is common to the [513]*513public. The defendant’s building being “located in a portion of said city and county compactly built upon and densely populated” (Trans., fol. 76), would naturally cause to others more or less of the same depreciation in. value and increase of insurance rates from which it would seem the plaintiff suffers. Hence there is no damage which is special to him. Depreciation in value is not a ground of special damage. (Severy v. C. P. R. R., 51 Cal. 197; Bigley v. Nunan, 53 Cal. 404.) The injury “must be special in character, and not merely greater in degree, than that of the general public.” (Bigley v. Nunan, supra; Crowley v. Davis, 63 Cal. 460.)

We therefore advise that the judgment be affirmed.

Belcher, C. C., and Foote, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in Bank denied.

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18 P. 433, 76 Cal. 511, 1888 Cal. LEXIS 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccloskey-v-kreling-cal-1888.

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