199 P. 519 | Cal. | 1921
Defendants appeal from judgments rendered against them foreclosing the lien of street assessments for the improvement of Nineteenth Avenue, in San Francisco, with all street crossings but one, between Quintara and Vicente Streets, by paving, curbing, and sewering; the latter for one block only. The appeals from the two judgments are to be considered together, and only differ for the reason that they are for assessments upon different properties and against different persons. The same points are raised as in Federal ConstructionCo. v. Wolfson, ante, p. 267, [
The lot of the defendant Newhouse has a frontage along Nineteenth Avenue greater than one-half a block. Only that part of his lot within the quarter block is liable for assessment for the improvement of the adjacent street crossing. There is a failure in the diagram and assessment to indicate the portion of the lot liable for the street crossing assessment, although that assessment is correctly computed upon the frontage of the lot within the quarter block and liable for the assessment. The error is in extending the lien thereof over the whole of the lot. To state the objection in the language of the respondent, the appellant relies upon "the failure to draw the usual red line" indicating the limit of the quarter block. The error complained of has been held fatal to an assessment under the Vrooman Act [Stats. 1885, p. 147]. (Parker v. Reay,
[2] Before discussing the effect of these errors, under the San Francisco Street Improvement Ordinance, one other alleged error appearing upon the face of the assessment may be disposed of, namely, the assessment of the cost of the sewer only along the property fronting on the same. This was the proper method of assessment as the sewer improvement was virtually a separate and independent improvement, no doubt incorporated in the plan of improvement solely because it was desirable to have the sewers laid before the street was paved. [3] The defendants, in any event, cannot complain of the invalidity of the separate and distinct sewer assessment. If invalid, that part alone was invalid. (Perine v. Lewis,
Defendants were, however, injuriously affected by the failure to include one fifty-foot lot in the assessment for curbing, and in the case of a frontage assessment under the Vrooman Act where such error appears on the face of the record, the whole assessment is void. (See authorities cited in Larsen v. SanFrancisco,
[4] If these decisions under the Vrooman. Act apply in this case we must hold invalid the crossing assessment and *289
the curbing assessment. It is to be determined, then, whether the provisions of the Street Improvement Ordinance so far differs from the Vrooman Act as to justify any other conclusion. The point of difference relied upon by respondent is the provision with reference to the remedy by appeal and the conclusive effect of a failure to appeal contained in section 21 of the Street Improvement Ordinance and section 11 of the Vrooman Act. Section 21 of the ordinance is identical in language with section 26 of the Street Improvement Act of 1911 (Stats. 1911, p. 730), considered in the recent decision in theOakland Paving Co. v. Whittell Realty Co.,
All other defects in the assessment and diagram relied on by the appellants to show its invalidity, such as the use of the customary sign to indicate feet (') and inches (") are sufficiently met by stating that the exclusive remedy therefor was likewise by appeal.
[5] There remains but one other question, and that is whether or not the failure to complete the work within the time limited in the contract is fatal to the assessment. Under the Vrooman Act it has been held that such failure invalidates the assessment. (Kelso v. Cole,
In view of this conclusion of the trial court as to the fact of completion, which is sustained by the evidence, we are not required to consider whether evidence of noncompletion is admissible under the authority last hereinabove cited (McLaughlin v. Knobloch, and other cases, supra), nor whether the curative clause of section 21 validates the assessment under the decision in Oakland Paving Co. v. Whittell RealtyCo.,
The judgments are affirmed.
Olney, J., Shaw, J., Sloane, J., Angellotti, C. J., Lennon, J., and Lawlor, J., concurred.
Rehearing denied.
All the Justices concurred, except Wilbur, J., who was absent. *292