Pacific Paving Co. v. Sullivan Estate Co.

70 P. 86 | Cal. | 1902

This is an appeal from a judgment in favor of the defendant in a suit to enforce a street-assessment lien. The case as shown by the findings is as follows: —

The resolution of intention initiating the assesment proceedings in question was duly passed by the Board of Supervisors of San Francisco, April 8, 1895, — the work proposed being the improvement of Webster Street, between Oak and Page streets, in that city, a distance of one block only, the street to the north and south being already improved. Within due time a written objection to the proposed work was made by the owners of a majority of the frontage on the proposed work, and was allowed by the board; and this, it is in effect alleged and found, operated as a bar for six months, to any further proceeding. After the expiration of the six months, the board, without other resolution of intention, ordered the work to be done.

On these facts, it is claimed on behalf of the respondent, that upon the filing of the protest of the property-owners, the board was divested of jurisdiction to proceed further without a new resolution of intention; and this contention is fully sustained by the decisions of this court. (City Street Improvement Co. v.Babcock, 123 Cal. 205, since affirmed in Union Paving Co. v.McGovern, 127 Cal. 639; Pacific Paving Co. v. Reynolds, 62 Pac. Rep. (Cal.) 212, and Thomason v. Carroll, 132 Cal. 149.) Nor, as claimed by the appellant, does the case here present an exception to the rule established in the cases cited. It is indeed true, or rather it may be true, that the case comes within the provision of section 3 of the Street Improvement Act, to the effect that where not more than two blocks remain unimproved between improved portions of a street, etc., the work on the intervening part "shall not be stayed or prevented by any written or other objection, unless such council shall deem proper." But the effect of this provision seems to be, that if the objection be allowed by the board its effect will be the same as in other cases, — that is, it will have the effect not only to stay the work, but to divest the board of jurisdiction to proceed further without a new resolution of intention; and accordingly it was so held in Thomason v. Carroll, supra.

We therefore advise, on the authority of that case, that the judgment appealed from be affirmed.

Haynes, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

Harrison, J., Garoutte, J., Van Dyke, J.