Opinion
S. F. No. 7596.
December 7, 1917.
APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. T.W. Harris, Judge.
The facts are state in the opinion of the court.
Corbet Selby, and Snook Church, for Appellant.
Reed, Black, Nusbaumer Bingaman, for Respondents.
Plaintiffs, as tenants in common of a corner lot in the city of Oakland, brought this action against defendant to recover damages occasioned to their property by the construction and maintenance of an electric street railroad, the tracks of which were laid close to the curbing along the line of their property. They recovered judgment and defendant appeals from that judgment and from the order of the court denying its motion for a new trial.
The first contention is that the proper operation of such an electric street railroad is not an additional burden or servitude upon the street so that an abutting property owner, not owning the fee of the street, is entitled to damages. Herein appellant relies upon Montgomery v. Santa Ana R. R. Co., 104 Cal. 186, [43 Am. St. Rep. 89, 25 L. R. A. 654, 37 P. 786]. This case, however, is not in conflict with the later case of Smith v. Southern Pacific R. R. Co., 146 Cal. 164, [106 Am. St. Rep. 17, 79 P. 868], where such a right of action is recognized as a right belonging to the property owner along a street so used, if he suffers any special or peculiar damage apart from the general inconvenience which may have been worked to all property owners. This is precisely one of those rights of action for the damaging of property which, if it did not exist before, came into existence by virtue of our constitutional amendment granting a recovery for the damage as well as for the taking of property for public use. (Const., art. I, sec. 14.)
The second proposition advanced by appellant is that the ownership of the lot is not established, or at least is not established as pleaded in the complaint. With this, however, appellant has no real concern. It is sufficiently shown that all the ownership in the lot is vested in the plaintiffs. The satisfaction of the judgment relieves the appellant from any possibility of future litigation over the damage so occasioned and this is sufficient.
The evidence was sufficient to sustain the award of judgment which the court actually gave — six hundred dollars. It would be unprofitable to set forth that evidence in detail.
Mrs. Fairchild was permitted, over objection of appellant, to answer the following question: "When one of these freight trains is passing the house, what is the effect on the house itself? A. It jars it." Unquestionably the discomfort or inconvenience which a property owner sustains in common with all others in the legitimate and proper exercise of a street or steam railway is not an element of damage. ( Eachus v. Los Angeles Ry. Co., 103 Cal. 617, [42 Am. St. Rep. 149, 37 P. 750].) Under certain circumstances, as tending to show an improper construction and maintenance, this question and answer might be permissible. Upon the other hand, if it went only to a common detriment or lessening of enjoyment or comfort, not growing out of faulty or improper construction and maintenance, it would not be an element of damage. We need not stay to analyze what it was or might have been in this case, for the action was heard by the court without a jury, and it will be presumed that the court gave to this evidence the weight to which it was entitled and no more.
The judgment and order appealed from are therefore affirmed.
Melvin, J., and Lorigan, J., concurred.