67 P. 131 | Cal. | 1901
Appeal from an order granting the plaintiff a new trial. The case is similar to the case of the same title just decided(Blanchard v. Ladd, ante, p. 212), except in the following particulars: —
In this case — which is for an assessment on the same lot for work on a different part of Farallones Street — it is found by *215 the court, not only that the width and grade of the street was never established, but, in effect, that the diagram accompanying the assessment was never recorded; and it appeared from the evidence offered by the plaintiff to make his prima facie case, that there is in fact a variance from the original in the copy of the diagram in the record, consisting in the position of the arrow indicating direction, which in the recorded copy is at right angles to Farallones Street, and in the original parallel with it. The question presented, therefore, — in addition to the question considered in the former case, which need not be again discussed, — is whether this is a fatal variance. In considering this question, it is to be observed that it appears, from the description of the land assessed in the complaint, and the undenied allegations with reference thereto, that Farallones Street runs east and west, as indicated by the arrow in the recorded copy of the diagram, and, consequently, that the error in the direction of the arrow is in the original, and also that the lot of the defendant, as described, was in fact assessed as alleged.
It follows that the variance must be regarded as immaterial. "The purpose of the recordation being to carry notice by an inspection of the record to the owner and all others having dealings with the property, it follows that any variance between the original and recorded instruments which defeats this purpose is material; per contra, if the diagram and assessment as recorded do contain a sufficient description, then, in this regard, any departure from the original form will be held trifling and immaterial." (Labs v. Cooper,
Hence, — as is claimed by the respondent, — the real defect in the assessment complained of is the error in the original diagram, — i.e. in the erroneous direction of the arrow; and this, it is further claimed, was cured by the failure to appeal to the board of supervisors. (Dyer v. Parrott,
The question, then, to be considered is as to the sufficiency of the original diagram and assessment to identify the land. Or, rather, on the record before us, the question is, Does it appear from the record that the description in the original diagram and assessment was insufficient? For, en familiar principles, the order of the court below cannot be disturbed, unless error affirmatively appears. But, obviously, we think, such is not the case. An arrow is not an essential part of an assessment diagram, though it may, when used, be, in some cases, an essential part of the description. Thus, if the work be for the grading of a crossing of two streets, — as in the former case, — it is obvious that a diagram showing the streets in the vicinity of the crossing, and these streets only, and representing the lot assessed as at one of the corners, would be insufficient, without an arrow, scroll, or something equivalent to show direction; for, otherwise, the lot, as represented, might be in either of the corners. (San Francisco v. Quackenbush,
These considerations dispose of the case as presented by the present record. But on the new trial the question of the *217
sufficiency of the diagram to support the record will necessarily be presented, and it will therefore be proper to say that we are not to be understood as holding that it is essential that the points of the compass should be indicated correctly on the diagram, either by arrow or otherwise. On this point the authorities conflict. (Labs v. Cooper,
We advise that the order appealed from be affirmed.
Gray, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
McFarland, J., Henshaw, J., Temple, J.
