Alpers v. Brown

Ross, J.: The plaintiffs claim the exclusive right to remove dead animals from the city and county of San Francisco, by virtue of a contract entered into between the city and county and one Wetzlar in the year 1866. The ordinance on which the asserted right is founded declares, in its first section, that “ whenever any horse, ass, swine, sheep or goat, or cattle of any kind shall die within the limits of the city and county of San Francisco, the owner thereof, or the person in whose possession the same may be at the time of its death shall dispose of the carcass in such a manner that the same shall not become a nuisance, or shall notify G. Wetzlar, or his associates or as [453] signs, within twenty-four hours, where such carcass may he found,” etc.: and a failure in this respect is declared to he a misdemeanor and punishable accordingly. The second section declares, that “ no person other than said G. Wetzlar, or his associates or assigns, or the person owning or having possession of any animal mentioned in the preceding section, at the time of its death, shall remove or dispose of the carcass of such animal, unless the said Wetzlar, his associates and assigns, shall fail to remove the same within twenty-four hours after receiving notice thereof, as herein before provided. And no person shall obstruct, hinder or in any manner interfere with the said Wetzlar, or his associates or assigns, in the removal or disposition of any such carcass.” A violation of this section is also declared to be a misdemeanor and punishable. By the provisions of this ordinance the owner, or the person in whose possession the animals should be when death occurred, was given the right to dispose of the carcass in such a manner as not to become a nuisance, at any time within twenty-four hours after death; and Wetzlar’s right to remove them did not attach until the expiration of the said period of twenty-four hours or until he should receive notice of the death and where the carcass could be found, from the owner or the person in possession. In the present case neither the findings nor the complaint show that the defendants have ever removed any dead animal from the City and County of San Francisco at any time when the plaintiffs had that right, or that the defendants threatened to do so. The findings do show that defendants have contracted for the period of one year with certain street railroad companies, livery stable keepers, and other persons, for the removal of such animals belonging to such companies and persons as should die within the City and County of San Francisco, and for the disposition of the same in such manner as not to create a nuisance in the city and county or elsewhere. But since by the ordinance the owner was given the right, up to the expiration of twenty-four hours after death, to dispose of the carcass in such a manner that the same should not become a nuisance, it was competent for him to exercise that right in any way he should see fit—by contract or other [454] wise. And since by the terms of the ordinance the rights of the plaintiffs as assignees of Wetzlar do not arise until the expiration of twenty-four hours after the death of the animals, or until the receipt of notice as aforesaid, it was incumbent upon them to show, in order to maintain the action, an interference with those rights on the part of the defendants. The fact that the latter removed certain dead animals of the character mentioned in the ordinance, from the city and county, in such a way as to prevent the creation of nuisance, under a contract with the owners, does not show such interference. Non constat but that they were so removed within the twenty-four hours allowed the owners by the ordinance for that purpose. It could hardly have been contemplated by the Board of Supervisors that the owners of such animals as should die should exercise the privilege granted of removing them within the time stated with their own hands. At all events, there can be no doubt of their right to exercise that privilege through others. Judgment reversed and cause remanded. McKinstry and McKee, JJ. concurred.