71 P. 446 | Cal. | 1903
This is an appeal from a judgment in favor of the plaintiff, in a suit for the foreclosure of a street-assessment lien. The work to be done, which is in San Francisco, is described in the notice of intention as follows: "That granite curbs be laid where not already laid on Perry Street between Third Street and the northwestern termination of Perry Street, and that the roadway of said portion of Perry Street be paved with basalt blocks where not already paved." At the time of the passage of the resolution — as appears from the pleadings and findings — granite curbs had already been constructed in front of the defendant's property; and it also appears "that the specifications for said paving required gutterways, and a concrete foundation for said gutterways." *366 It is also alleged in the answer that no curbs were constructed in front of defendant's lot by the plaintiff, and that the specifications required a concrete foundation, not only for the gutterways, but for the street generally. The grounds urged by the defendant in support of his appeal are, that, under the resolution of intention, the superintendent of streets had no jurisdiction to assess the defendant's lot for curbs or for gutterways; and that, as the assessment for the latter cannot be segregated from the assessment for paving the street, the whole assessment is void.
With regard to the gutterways, the objection is, we think, untenable. These, properly speaking, constitute part of the roadway of the street, and hence there is no occasion to distinguish them, unless the intention be that they are to be constructed differently from the rest of the street. (Partridge
v. Lucas,
With regard to the curbing, however, it is clear that the board acquired no jurisdiction to order the work in front of defendant's lot, which by the express terms of the order is excluded. Still less could the street superintendent, without such an order, have jurisdiction to do so. To hold otherwise would be in effect to hold that a resolution of intention to lay curbs on a street where not already laid is in effect a resolution to lay curbs along the whole street, except where the street superintendent shall determine otherwise, thus delegating to him the power to determine the work to be done, which it is well settled the board cannot do. (Bolton v. Gilleran,
We advise that the cause be remanded, with instructions to the court below to modify the judgment as above stated, and that the judgment, as thus modified, stand affirmed.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the cause is remanded, with instructions to the court below to modify the judgment as above stated, and the judgment, as thus modified, is affirmed.
McFarland, J., Henshaw, J., Lorigan, J.