O'Connor

This is an action instituted by O’Connor in the superior court of Los Angeles county to restrain the defendant from constructing its railroad on White avenue, a public street of the city of Pomona. The plaintiff O’Connor is the owner of real property abutting on White avenue, and is the owner of the fee to the center line of the street. It is alleged that the threatened use and occupation of the street by the defendant for the purpose of a steam railroad will irreparably damage plaintiff, and it is further alleged that defendant has not tendered or made any compensation therefor. The defendant, by answer, denies the allegations of the complaint as to the damage, and as an affirmative defense alleges that it has entered upon the street under a franchise granted by the municipality of Pomona.

This case is here upon appeal from the judgment without the evidence, and the only question presented is, Does the judgment find support in the findings of fact? The material findings of fact to be considered are:

As matter of law, this court cannot say that the facts set out in finding 1, under the conditions there pictured, may not have caused damage to defendant’s property, as declared by…