Thе facts upon which this appeal is based are stated in the opinion of the district court of appeal for the first appellate district, division one. We adopt that . opinion in part as follows:
“This is an appeal from a judgment'for defendants, entered after the granting of their motion for nonsuit, in an action wherein plaintiffs sued as the owners of certain lands lying to the north and northeast of Richmond Avenue in the city of Richmond; and the defendants are said city, its . *153 councihnen, street superintendent, and treasurer, certain street improvement corporations and the John Nicholl Company, which is the owner of the land lying to the south and southwest of Richmond Avenue, and of a narrow strip to the north and northeast thereof as well. The suit involves the validity of the proceedings for the improvement of Richmond Avenue taken by the city under the provisions of the Street Improvement Act of 1911 (Stats. 1911, p. 730), and the relief sought by plaintiffs is an injunction to restrain the city’s treasurer from selling their property to satisfy the lien of certain street improvement bonds issued thereon. Plaintiffs also pray for" a decree declaring invalid the proceedings for the creation of the street improvement district, and canceling the assessments on plaintiff’s property on the ground that the same was not made in proportion to benefits received. . . .
“Plaintiffs urge upon the court with particular emphasis a contention that the Street Improvement Act of 1911 is not applicable to the city of Richmond, and that the city was without power to рroceed to improve its streets under the terms of that act. The city of Richmond is governed by a charter approved by the legislature of 1909, and in that charter power is granted to the city to establish, open, pave, and otherwise improve its streets, and to levy special assessments to defrаy the cost thereof. Plaintiffs claim that under the provisions of section 6 of article XI of the state constitution, that ‘cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general, laws,’ any street laws adopted by the legislature subsequent to- the approval of the city’s charter are inapplicable to it.[1] Plaintiff’s contention is not tenable in the present instance, because the charter of Richmond is wholly silent as to the mode of the exercise of the authority to do street work; and the city council in their resolution of intention to do the work in question expressly provided that ‘this resolution of intention is adopted under the provisions of the Improvement Act of 1911, approved April 7, 1911.’ This amounted to an adoption of all of the provisions of the аct in question as to the mode of executing the power granted, and was clearly authorized by law. (Clouse v. San Diego, 159 *154 Gal. 434, [114 Pac. 573 ]; Park v. Pacific Fire Extinguisher Co.,37 Cal. App. 112 , [173 Pac. 615 ] ; City of Petaluma v. Hughes,37 Cal. App. 473 , [174 Pac. 336 ].) ” (See, also, Cole v. Los Angeles,180 Cal. 617 , [182 Pac. 436 ].)
The plaintiffs present a number of points concerning the claimed invalidity of the resolution of intention, alleged defects in the postings and in the contract. While these points are argued at great lеngth and with much detail and in a variety of form, the answer to them all is, we think, to be found in the fact pleaded by the answer of the defendants and adduced in evidence at the behest of the plaintiffs that, after the execution of the contract for the doing of the work and while said work was in progress, the plaintiff entered into a written agreement with the defendant, Worswick Street Paving Company, which recited the fact that the plaintiff was the owner of certain lands abutting upon the portion of Richmond Avenue which was to be improved; that the Paving -Company had, pursuant to the terms and conditions of the resolution of intention, entered into a contract with the city of Richmond for the improvement of Richmond Avenue; that plaintiff, as the owner of property on Richmond Avenue, was desirous of having the improvement of said avenue completed without unnecessary delay, and therefore expressly waived “any right of protest against the performance of said work by the party of the second part [defendant Worswick Street Paving Company] under said contract [for the doing of the work] or against the assessment district created under said resolution of intention No. 105.”
The only questions remaining to be discussed are those relating to plaintiff’s contention that the granting of the motion for a nonsuit was error by reason of the presence in the record of evidence indicating that the assessment of the property of the plaintiff cоrporation was not made in accordance with benefits received, but was, on the contrary, made on a purely arbitrary basis. In maMng this contention plaintiff is met by a difficulty arising from the terms of section 26 of the Street Improvement Act of 1911. That section provides for an appeal to the city cоuncil by persons interested in determining the validity of an assessment made pursuant to the terms of the act, and also provides that the decision of the council upon the questions presented upon such appeal shall be final. Pursuant to the provisions of this act an appeal was taken to thе city council in the instant case. That body considered the appeal very seriously, witnesses were examined, arguments were made, and all of the formalities of a full hearing were observed. The city attorney and all of the trustees composing the council were present. At the conclusion of the hearing, the council duly entered its resolution upholding the assessment and overruling the appeal. The resolution recited that the council had heard and considered the evidence in relation to the appeal and the clerk certified that the resolution had been duly passed and аdopted by a unanimous vote of all of the councilmen. Plaintiffs attack this resolution upon two grounds.
It is first contended that the resolution should be disregarded for the reason that there is some evidence in the record to the effect that the council, not realizing the finality of its decision, and believing that thе case would have to go ,to the courts in any event, may, for this reason, have upheld the assessment as a matter of form. This contention is based upon testimony to the effect that during the course of the hearing one or more of the councilmen expressed an
*156
opinion that the assessment wаs unjust, hut that, as the matter would
go
to the courts in any event, it would he fairer to the contractor to uphold the assessment. The contention is without merit.
It is next insisted that it appears from the record that there was a clear failure to assess the property according to benefits, and that, therefore, under the rule announced in
Spring Street Co.
v.
Los Angeles,
It appears that the property in the improvement district with which we are here concerned was assessed at a uniform rate per square foot. It is claimed that this amounted to an arbitrary assessment by reason of the fact that much of the land of the plaintiff corporation is swampy and lies below the level of the street, while the land assessed to the John Nicholl Company is upland. "While it is true that the evidence shows that plaintiff’s land is in part only swamp and ovеrflowed land, it is also true that the evidence shows that much of the land of the John Nicholl Company is made up of precipitous cuts and steep hills. While the expense of making use of either parcel of land for any purpose would be considerable, there is evidence to the effect that the expense of filling in the swamp-land would be no greater, if as great, as that of grading down the upland. Such being the state of the record, we cannot sáy that the evidence is clear and convincing’ to the effect that under no'conceivable conditions could the lowland have derived a benefit from the street work substantially less per square foot of land assessed than that derived by the upland.
The same answer must be made to the complaint that the narrow strip separating plaintiff’s land from Richmond Avenue for a portion of its length was assessed at the same
*158
rate per square foot as the lаnd whose .frontage it obstructed and that the plaintiff’s lots, which are situated between one and two hundred feet distant from the avenue, were assessed at the same rate per square foot as the lots bordering on the avenue itself. It might indeed be plausibly argued that the land „cut off from the highway should have beеn assessed at a lower rate than the narrow strip which lies between it and the avenue. It might just as well be argued, however, that, on account of its shape and size, the strip could be put to no valuable use, and did not, therefore, receive the substantial benefit from the improvement received by plаintiff’s land. Upon this view of the matter it seems a fairly debatable question as to whether the assessment of plaintiff’s lots was unduly high in comparison with the narrow strip assessed to the John Nieholl Company. Likewise, it cannot be said that the mere fact that the land situated between one and two hundred feet from the avеnue was assessed as much per square foot as the land fronting on the highway in itself incontestably establishes a patent failure to make the assessment in accord with benefits. When it is remembered that Richmond Avenue was designed not merely to create an outlet for the immediately adjacent land, but to serve as a main artery of travel directly benefiting a large territory, and when it is further considered that the relative benefit derived by the various parcels of land depends not only upon mere proximity to the improvement, but largely, also, upon their availability for use resulting from relative topographical advantages, it is certainly not inconceivable that the whole of plaintiff’s land may have received a substantially uniform benefit from the improvement. Not only do we find no evidence in the record which is necessarily inconsistent with this conclusion, but we find that the decision of the court was based, in part at least, upon the facts gained from a view of the premises. Such a view, as held in
Hatton
v.
Gregg,
Upon these considerations we are of the opinion that none of the various differences claimed to exist between the several parcels of land included in the assessment district afford con
*159
vincing and conclusive evidence thаt under no conceivable circumstance could the assessment have been made in proportion to benefits. In the absence of such evidence it is impossible to hold that the city council of the city of Bichfiiond were guilty of an abuse of discretion in overruling plaintiff’s appeal so clear and convincing as to bring the ease within the rule laid down in
Spring Street Co.
v.
Los, Angeles,
The judgment is affirmed.
Shaw, 'J., Wilbur, J., Lawlor, J., Kerrigan, J., pro tem., Olney, J., and Angellotti, C., J., concurred.