California Supreme Court, 1888

McCloskey v. Kreling

California Supreme Court · Decided June 9, 1888 · Hayne

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

Cases that cite this one

16 later published cases cite this decision.

Siskiyou Lumber & Mercantile Co. v. Rostel (Cal. 1898)
Land v. Avery (Cal. Ct. App. 1956)
Sullivan v. City of Los Angeles (Cal. Ct. App. 1953)
Baird v. Bradley (Cal. Ct. App. 1952)
People v. Oliver (Cal. Ct. App. 1948)
In re Jones (Cal. Ct. App. 1943)
Haehlen v. Wilson (Cal. Ct. App. 1936)
Biber v. O'Brien (Cal. Ct. App. 1934)
Dean v. Powell Undertaking Co. (Cal. Ct. App. 1921)
Second Church of Christ v. Tipling (Cuyahoga Circuit Court 1910)
City Store v. San Jose-Los Gatos Interurban Ry. (Cal. 1907)
Caskey v. Edwards (Mo. Ct. App. 1908)
Donahue v. Stockton Gas & Electric Co. (Cal. Ct. App. 1907)
Fellows v. City of Charleston (W. Va. 1907)
Chimene v. Baker (Tex. App. 1903)
First National Bank v. Sarlls (Ind. 1891)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

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 *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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.