The opinion
CARTER, J.
I dissent.
Where a municipal corporation has closed a street to vehicle traffic by placing an obstruction therein, an owner of property abutting on the street may have preventive relief against the closing and is not barred by the clean hands rule or exhaustion of administrative remedies since his act in partially grading the street has no connection with the closing and he has no administrative remedy for the closing.
The majority opinion holds that plaintiff, the property owner, may not obtain equitable relief for the closing of the street because: (1) He did not have clean hands; and (2) he did not exhaust his administrative remedies, allegedly afforded by the city.
Before discussing the grounds of the majority opinion, let us examine the facts as they appear in the evidence and in the findings of the trial court. Plaintiff acquired his property in 1951. It has a house on it which fronts on 23d Street in the middle of the block between Corbett and Market Streets. Twenty-third Street, while a public street, has never been graded for use by either pedestrian or vehicular traffic because it is too steep. Hence plaintiff has no access, pedestrian or vehicular, at the front of his property and none to the rear except as hereinafter appears. The rear of his lot abuts on Argent Alley, a duly established public street, and the one here in question. It runs parallel to 23d Street. Argent is steep but passable for vehicles from Market Street to the rear of plaintiff’s lot. From there on to Corbett Street there are steps for use by pedestrians. Plaintiff, finding Argent filled with debris, obtained permission of defendant, head of the department of public works, to clean it up and had a bull *853 dozer work one day on it, pushing the debris and dirt into a hole on plaintiff’s land. Argent became muddy and defendant objected. On further conversation with men in defendant’s department, it was agreed that plaintiff would put crushed rock on the surface of Argent, and he was told by defendant he needed no further authority to do so. The rock was accordingly spread on Argent by plaintiff. Thereafter defendant tore out the ramp over the curb at the intersection of Argent with Market Street and placed a post in the middle of the entrance to Argent. Contrary to the statement in the majority opinion, Argent was used for both pedestrian and vehicular traffic from 1922 to 1939, although it was not so used thereafter until plaintiff commenced so to use it after he acquired his property. When a contractor paved Market Street in 1922, the owner of property on Market and along Argent requested the engineer in the department of public works that a ramp or gutter plug be put in so that vehicles could get over the curb and onto Argent. This was done and the city paid for it. Plaintiff apparently applied to defendant for a permit to pave Argent after he had cleaned out the debris, but his request was denied and he did not appeal to the city board of permit appeals.
We have a situation, then, in which plaintiff used Argent, a public street, as it was supposed and fixed to be used in entire good faith believing that he had the approval of defendant Duckel and his department. Defendant then proceeded to close Argent to vehicular traffic by physically making it impossible for a vehicle to enter it. Plaintiff then brought this action seeking the aid of the court to have the obstruction removed. The majority here denies him relief for the reasons heretofore stated.
Plaintiff should not be denied relief because of unclean hands as there was no connection between the transaction, grading of Argent and the closing of it, and he acted in entire good faith, having the approval of those in charge of defendant’s department. It is said in Treager v. Friedman, 79 Cal.App.2d 151, 173 [ 179 P.2d 387 ], quoting from Carman v. Athearn, 77 Cal.App.2d 585, 598 [ 175 P.2d 926 ]: “As stated in Carman v. Athearn, 77 Cal.App.2d 585 , at page 598 [ 175 P.2d 926 ]; ‘The misconduct which brings the “clean hands” doctrine into operation must relate directly to the transaction concerning which complaint is made. The misconduct must infect the cause of action before the court. *854 Relief is not denied because the plaintiff may have acted improperly in the past or because such prior misconduct may indirectly affect the problem before the court. A party may have relief in connection with a transaction itself untainted although his original title may have been tainted by improper conduct. These principles are well settled. (See Germo Mfg. Co. v. McClellan, 107 Cal.App. 532 [ 290 P. 534 ]; Bradley Co. v. Bradley, 165 Cal. 237 [ 131 P. 750 ]; Western Union Tel. Co. v. Commercial Pac. C. Co., 177 Cal. 577 [ 171 P. 317 ]; 2 Pomeroy’s Equity Jurisprudence (5th ed.), p. 94, § 399; cases collected 30 C.J.S. p. 491, § 98(c); 4 A.L.R. 44 at p. 65.) ’ ” (See also Western Union Tel. Co. v. Commercial Pac. Cable Co., 177 Cal. 577 [ 171 P. 317 ]; Watson v. Poore, 18 Cal.2d 302 [ 115 P.2d 478 ]; Hamrick v. Hamrick, 119 Cal.App.2d 839 [ 260 P.2d 188 ]; Boericke v. Weise, 68 Cal.App. 2d 407 [ 156 P.2d 781 ]; McCarthy v. City of Oakland, 60 Cal.App.2d 546 [ 141 P.2d 4 ]; Miller & Lux v. Enterprise etc. Co., 142 Cal. 208 [ 75 P. 770 , 100 Am.St.Rep. 115 ]; Germo Mfg. Co. v. McClellan, 107 Cal.App. 532 [ 290 P. 534 ]; Bradley Co. v. Bradley, 165 Cal. 237, 242 [ 131 P. 750 ]; City of Los Angeles v. Watterson, 8 Cal.App.2d 331 [ 48 P.2d 87 ].) Here the only unlawful act charged against plaintiff is that he graded Argent without obtaining a permit, but that does not mean that he cannot complain of the closing of Argent. They are unrelated transactions. If the conclusion of the majority is correct, any time a citizen commits some minor infraction with reference to public streets, he may be forever barred from objecting to the closing of a street because he has unclean hands. The closing was not the result of the grading of the street. It was an arbitrary action on defendant’s part because he thought it was unsafe to permit vehicular traffic on Argent.
The majority lumps together plaintiff’s grading of Argent with his alleged failure to exhaust an administrative remedy as showing lack of clean hands. Certainly failure to exhaust is not a showing of unclean,hands and as will later appear herein, plaintiff had no administrative remedy.
On the question of exhaustion of remedies, the majority refers to plaintiff’s failure to appeal to the board of permit appeals after his application for a permit to pave Argent was denied. No application was made for anything else and the paving would have no effect on the closing of Argent. Even if he had obtained, a permit to pave, defendant would still have closed Argent. Hence there was no administrative *855 remedy available to him which touched upon the question of closing. It is crystal clear, as it should be, that: “In all of the cases in this state in which it has been held that a party had not exhausted his administrative remedies and therefore was not entitled to relief by the court, provision was made in the governing law for a proceeding of some nature before an administrative body which the party had not pursued. (Abelleira v. District Court of Appeal, 17 Cal.2d 280 [ 109 P.2d 942 , 132 A.L.R. 715 ]; Metcalf v. County of Los Angeles, 24 Cal.2d 267, 269 [ 148 P.2d 645 ], and cases cited therein.) It is only when no mode of attacking the validity of an ordinance is provided other than by resort to the courts, that a court will take jurisdiction. Where an ordinance contains provisions looldng to the prevention of hardship upon owners in particular eases, resort to the administrative agency is required. We have not been cited to any case, and we have found none, holding that resort must be had to an administrative agency when the agency has no power to act. In a number of eases where an ordinance prohibited the doing of a particular act in a specific district, direct application to the courts for relief has been permitted and the ordinance held unconstitutional. Apparently in these cases there was no provision for a variance in the ordinance. The question whether an administrative remedy should have been exhausted was not urged or discussed. It seems clear, however, that it was not done because there was no administrative remedy to pursue.” (Bernstein v. Smutz, 83 Cal.App.2d 108, 115 [ 188 P.2d 48 ].) Here the charter and ordinances of San Francisco do not purport to give anyone the right to confer special permission to use Argent, and the paving of it, as seen, has no relation to the closing of it. There is no law which gives the defendant, director of public works, any power to close a street or to issue permits for the customary and usual use to which streets are put such as vehicular and pedestrian traffic; his power is limited to permits to use streets for purposes other than the customary ones. The charter provisions as set forth in the majority opinion only give the director superintendence and control over the streets and expressly provide that permits for using them may be granted for any purpose “other than such as ordinarily and properly belongs to the public.” There can be no question that use of streets for vehicular traffic belongs to the public and hence the director has no authority to grant or deny a permit in connec *856 tion with such use. Therefore, in arbitrarily closing Argent he usurped his power and authority and plaintiff is clearly entitled to the relief here prayed for.
I would reverse the judgment.
Shenk, J., concurred.
Appellant’s petition for a rehearing was denied August 21, 1956. Shenk, J., and Carter, J., were of the opinion that the petition should be granted.