117 P. 904 | Cal. | 1911
This is an action brought by plaintiff to enforce the collection of an assessment upon the lands of the defendants and appellants. Judgment passed for plaintiff. From that judgment these defendants did not appeal, their sole appeal being from the order denying their motion for a new trial.
Upon this appeal, however, they urge certain propositions cognizable, if at all, only on appeal from the judgment, and others which in the condition of the record cannot here be considered. Thus appellants filed an amendment to their answer tendering certain new matters as a defense. This amendment was stricken out by the court. Its ruling in this regard can be reviewed only on appeal from the judgment. (Bode v. Lee,
Conceding the force of this, appellants undertake to meet it by such cases as Tynan v. Walker,
The remaining contentions of appellants which are reviewable upon appeal are, first that the assessment is levied upon lands which it is found would not be benefited by the work of reclamation and which therefore should have been exempted in the assessment levy. Even where such a state of things exists the assessment is properly levied upon the whole tract (ReclamationDistrict v. McCullah,
The second and remaining proposition is that the assessment levied upon the lands of the defendants is not in proportion to the whole expense and to the benefits which will result from the proposed works of reclamation. Herein appellants' contention is that by section 3455 of the Political Code it is the duty of the board of trustees, after the adoption of plans and specifications for the reclamation of the lands, to report to the board such plans and specifications, "together with estimates of the cost of the works necessary for the reclamation *695
of the lands of the district in pursuance of any such plan or plans" and the assessment under section 3456 is to be made upon the lands by "a charge proportionate to the whole expense and to the benefits which will result from such works." It is insisted that by the imperfections in these plans the whole of the cost was not estimated and therefore that the assessment was not in proportion to the "whole expense." It appears that the commissioners, either through inadvertence or in the belief that the district would not be called upon to pay for them, did not include in their estimate of the cost of work the acquisition of certain levees held in private ownership. At the most, this amounts to a mere defect in the plans which would not result in destroying them so completely as to deprive the supervisors of the power to order the assessment based on the cost as disclosed by them. The law itself contemplates such mistakes or imperfections when it provides in section 3455 of the Political Code for "new, supplemental, or additional plans." It is well settled that defects in the plans do not affect the jurisdiction.(Haughawout v. Hubbard,
The order appealed from is therefore affirmed.
Lorigan, J., and Melvin, J., concurred.
Hearing in Bank denied.