108 Cal. 154 | Cal. | 1895
Action to foreclose the lien of a street assessment in the city and county of San Francisco. Under proceedings properly taken therefor by the board of supervisors of the city and county of San Francisco, the superintendent of streets entered into a contract November 28, 1879, with Buckman, the plaintiff’s assignor, for grading Seventh street from the northerly line of Berry street to Channel street; and, after the work had been completed to his satisfaction, issued an assessment therefor. The following is a copy of the
The present action was brought to foreclose the lien of the assessment against lot 3. It is contended by the appellants that, upon the official map of San Francisco, Channel street runs from Third to Eighth streets at right angles with Seventh street, and parallel to and two hundred and seventy-five feet southerly from Berry street, and that, as by the above diagram Channel street-intersects Seventh street, diagonally, the assessment shows upon its face that the work contracted for has not been performed, and that the expense of the work done has not been assessed upon all the property liable to be assessed therefor. This contention is supported by the further contention that the court will take judicial notice of the location of Channel street upon the official map of the city and county.
It was held in Whiting v. Quackenbush, 54 Cal. 306, that, inasmuch as the Van Ness map had been made official by an act of the legislature (Stats. 1858, p. 56), the streets designated thereon had been “ established by
Section 1 of the act under which the proceedings were had (Stats. 1871-72, p. 804) declared that all the streets laid down on the maps in the office of the city and county surveyor, which are commonly known as the “ Brooks and Potter map” and the “ Humphreys map,” wrere public streets “for the purpose of this law”; and gave to the board of supervisors jurisdiction to order the improvement of any of these streets. By section 3 of the same act the board of supervisors is authorized to order the grading of “ the whole or any portion of the said streets.” We have seen that Channel street, as laid out upon the Brooks and Potter map, corresponds to the diagram annexed to the assessment under consideration, and that there is laid out upon the Humphreys’ map an open space corresponding to a portion of said street. The terms of section 1 of the act do not require that the streets laid down upon the map shall have been actually opened and dedicated to public use before the supervisors could order their improvement. If the supervisors should in fact attempt the improvement of a street that had not been so opened and dedicated, but which was in reality private property, their action would fail, not by reason of a want of statutory provision, but because of the inability of the legislature to confer authority to make such an improvement. No question of this character is, however, presented in the present case. It is conceded that Seventh street, upon which the grading was done, was at all times an open street dedicated to public use. The objection of the appellant rests upon the proposition that it appears upon the face of the assessment that the work contracted for had not been performed by reason of the fact that the true position of Channel street is different from its position as shown by the diagram. This objection, however, is obviated
If, however, the work ordered by the supervisors and described in the contract was not thus limited, but required that Seventh street should be graded to the line of Channel street contended for by the appellant, there is presented the simple case of the superintendent of streets having accepted the work before the completion of the contract; and in that case it was incumbent upon the owner to first appeal to the supervisors, and seek from that body a correction of the error, before he could make such defense to the enforcement of the assessment. It was for the superintendent of streets to determine in the first instance whether the contractor had completed his contract, and this included the determination by him of the line of Channel street that was intended by the board of supervisors in the description of the work ordered to be done. If the true line of Channel street were not a matter of dispute, and the superintendent had accepted the work before the grading had been completed to that point, and issued an assessment therefor, under repeated decisions of this court the error would have been one which should have been corrected on appeal. Much more is this rule applicable where the limit of the work is susceptible of different locations. The determination of this question called for the exercise of judgment by the superintendent, and, in the absence of any appeal from his decision, his judgment thereon must be accepted as conclusive. In such a case the contractor may rely upon his decision and the acquiescence of the owners therein by their failure to appeal. In Warren v. Riddell, 106 Cal. 362, the contractor had graded the street to a line entirely at variance with the official grade, and it was held that unless an appeal had been first taken to the board of supervisors, the owner could not make that defense to a
The statute does not specify the depth to which the lands fronting on the work shall be assessed, or the shape or boundaries of such lots, its language being that the expense shall be assessed upon the lots and lands fronting thereon, “each lot” being separately assessed “in proportion to its frontage.” The basis of the assessment is the frontage upon the work, and the frontage of each lot determines the amount of the assessment against that lot, irrespective of its shape, size, or depth. There is no requirement that the lots to be assessed shall be rectangular with the street on which they front, nor can this direction for the assessment impair the owner’s right to dispose of his lands as he may desire. If the superintendent does not properly delineate an owner’s lot upon the diagram, or includes with it property which should be included in another
In an action for the foreclosure of the lien of a street assessment the plaintiff must describe the land with sufficient definiteness to enable the purchaser under a decree for its sale to obtain possession thereof; and, as the description in the assessment is by reference to the diagram, it is evident that, unless the diagram contains such a delineation of the lot that a definite description thereof can be embodied in the complaint, there can be no foreclosure of the lien of the assessment. It is only the lot assessed which is subject to the lien, and the judgment directing the sale, as well as the complaint for its foreclosure, must be limited to the description of the lot as found in the assessment. The complaint in the present case alleges the making of the assessment and diagram, and the volume and page in which they are recorded in the office of the superintendent of streets, and then describes the lot of the defendant assessed thereon, and which he asks to have sold in satisfaction of the lien, as commencing at the northeast corner of Seventh and Channel streets, and, after giving its several boundaries, adds, as a further description, “and is the same lot shown as lot No. 3 on said assessment and diagram.” This was a sufficient identification of the lot assessed, and confines the particular description by streets and distances to those which are delineated upon that diagram as fully as if they had been made so by express reference. In the judgment, however, which was entered in the action the description of the property which is ordered to be sold in satisfaction of the lien is given as a lot commencing at the northeast corner of Seventh and Channel streets, with the same boundaries and distances as are given in the .com
The action is properly brought in the name of the plaintiff. Buckman had assigned the assessment to him, and in express terms had authorized him to “ demand, sue for, settle, and compromise the same, as in his judgment may be best,” This authority was not made nugatory by reason of the assignment having been made to secure an obligation from Buckman to Mrs. Borland. It was in the nature of a power of sale in a deed of trust, and could be exercised by the grantee of the power. (See Works v. Merritt, 105 Cal. 465.) Foley v. Bullard, 99 Cal. 516, has no application. In that case Lang and Buggies, to whom the owners of the assessment had assigned it as security for their indebtedness, had reassigned it to one of the owners, and it was held that by this reassignment their lien was terminated.
Other points presented in the appellant’s brief do not require any special consideration. The statute required the person to whom the contract was awarded to enter into the contract within ten days after the award. The award to Buckman was made November 17th, but, as the 27th of November was Thanksgiving Day, he had the whole of the next day in which to enter into the contract. The requirement that the superintendent shall cause the contract to be recorded in the office of
The superior court is directed to modify the judgment by changing the descriptión of the land therein directed to be sold in conformity with this opinion; and, as so modified, the judgment and order will stand affirmed.
Van Fleet, J., and Garoutte, J., concurred.
Hearing in Bank denied.