83 P. 72 | Cal. Ct. App. | 1905
Action upon a street assessment in San Francisco. Judgment was rendered in favor of the plaintiff, and the defendants have appealed from an order denying a motion for a new trial.
The supervisors passed a resolution of intention "that granite curbs be laid on Sixteenth street, between Sanchez and Market streets, where not already laid and that the roadway thereof be paved with bituminous rock where not already so paved," and the work for which the assessment was made was done under a contract entered into pursuant to said resolution. *44 The improvement of Sixteenth street under this resolution for which the assessment is made is three hundred and ten feet in extent, and the assessment therefor is made upon lands of that frontage on the southerly side of Sixteenth street and upon a frontage of eighty feet on the northerly side of the street. Opening out of Sixteenth street between Market and Sanchez streets, and extending in a southerly direction to the next main street bounding the block, are Pond street and Prosper street, each being thirty-one and one-fourth feet in width, and the assessment for the work done on Sixteenth street opposite to these streets is assessed upon lots fronting upon them. The lot involved in this action fronts upon the northerly side of Sixteenth street, and the appellants contend that the assessment is void, for the reason that it appears upon its face that it is not made against all the land which the statute requires to be assessed for the improvement.
Subdivision 11 of section 7 of the street improvement act (Stats. 1891, c. 147, p. 204) authorizes the city council to except from its resolution of intention "any of said work already done upon the street to the official grade." (See, also, Williams v. Bergin,
Whether any portion of the work authorized under the resolution of intention had been "already done," as well as the extent to which it had been done, was a question of fact, to be determined by the superintendent of streets, subject to the right of appeal to the city council on the part of anyone *45
aggrieved by his determination. His act in making the assessment, though made against only a portion of the frontage on each side of Sixteenth street, was a declaration by him that the contract had been fully performed to his satisfaction, and is not open to controversy in any other tribunal. The mere omission from the assessment of one or more lots fronting upon the street does not of itself render the assessment void upon its face. (Buckman v. Landers,
The assessment does not cease to be a single assessment for the work done under the contract, notwithstanding these provisions of the act which require the superintendent to assess portions of the cost of the work done upon Sixteenth street upon districts embracing lands which do not front upon that street. The amount which, but for the intersecting streets, would be assessed upon that frontage of Sixteenth street is distributed over a larger area, but does not affect or enlarge the amount to be assessed against the lot described in the complaint or any of the lots fronting upon Sixteenth street.
The objection that the demand made upon the lot was for a greater sum than the defendants' share of the assessment for the work on Sixteenth street, or that it was increased by including therein a demand for work done at the intersections of Pond street and Prosper street, is not sustained by the record.
The appellants further object to the sufficiency of the engineer's certificate, on the ground that it does not state that the engineer or anyone measured or surveyed the work, or had estimated the cost and expenses of the work, or that the work had been done according to the contract, plan and specifications, or that it had been completed. The statute does not specify the character of the certificate which the engineer is to make (Gray v. Lucas,
The court did not err in excluding from evidence certain private contracts which the defendants had entered into with the plaintiff in May, 1897. The defendants could not oust the city council of jurisdiction to order the improvement of the street by entering into contracts of this nature, or prevent the contractor to whom a contract might be awarded by the council from enforcing an assessment for work done under such contract. If the defendants herein have sustained damage by reason of any act or omission on the part of the parties with whom they entered into the contract, their remedy must be sought elsewhere. Such damage cannot be made a defense to an act for the enforcement of the assessment. It may be added, as another reason for the inadmissibility of the contracts, that they were not for the same work as the contract under which the assessment was made, but included additional work which had never been performed.
The order appealed from is affirmed.
Cooper, J., and Hall, J., concurred.
A petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on December 18, 1905. *47