57 Cal. 515 | Cal. | 1881
This action was brought to enforce a lien for planking Larkin street from Tyler to McAllister (except that portion required by law to be kept in order by the railroad company-having tracks thereon), and for reconstructing the sidewalks on said street. Plaintiff had judgment in the Court below. Defendant moved for a new trial, which was denied, and this appeal is taken from the judgment, and also from the order denying the motion for a new trial.
The first objection we will notice is to the sufficiency of the complaint. The pleading on behalf of the plaintiff in this proceedings is regulated by §13 of the Act of April 1st, 1872, and it is therein provided what facts the complaint must contain. The complaint in this case was sufficient, under that section of the statute, and must be so treated by the Court. It is claimed that when the Legislature undertook to provide a rule of pleading for this class of cases, it usurped judicial functions, and the act is therefore void. We cannot concur in this con
The second point relates to the resolution of intention. It is claimed, on behalf of the appellant, that the words “ except that portion required by law to be kept in order by the railroad company having tracks thereon,” destroys all certainty as to the particular portion which the board intended should be planked at the expense of the property owners. The statute imposes upon a railroad company having its track upon a street' of a city the obligation “ to plank, pave, or macadamize the entire length of the street used by its track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and make good crossings.” (Civ. Code, § 498.) This is the requirement of a general statute, of which the Court was required" to take judicial notice, and of which every citizen is presumed conclusively to have knowledge. The meaning of the exception would not, therefore, have been rendered more certain if this provision of the Code had been incorporated in it. The rule “ cerium est quod cerium, reddi potest ” is plainly applicable here.
The third point relates to the sufBciency of the demand. It is claimed that the demand was made upon a person who was only twelve or fifteen years of age, and that it should have been made upon an adult member of the family. The property in question was assessed to an unknown owner, and no personal demand was required. Section «11 of the act provides that “ whenever the persons so assessed or their agents cannot conveniently be found, or whenever the name of the owner of the lot is stated as ‘ unknown ’ on the assessment, then the said contractor, or his assigns, or some person in his or their behalf, shall publicly demand payment on the premises assessed.”
The fourth objection is, that it does not appear that Boyle, who made the demand, was the agent of the plaintiff. Boyle states positively in his affidavit that he was such agent, and there was no evidence on the trial to the contrary
In the fifth place, it is claimed that the Court below erred in excluding evidence offered in behalf of the defendant, that the lot owned in whole or in part by him was not increased in value by the work done upon the street. We are not aware of any principle of law upon which such evidence could have been considered by the Court, and in our opinion the authorities referred to by the learned counsel for the appellant fails to establish the proposition contended for by him. The act provides that the expenses incurred by the work should be assessed upon the lots and lands fronting thereon, each lot or portion of lot being separately assessed in proportion to its frontage, at a rate per foot sufficient in the whole to cover the total expense of the work. This is, perhaps, the most uniform and the least objectionable mode of assessing the property that could be adopted, and the provisions of the statute have been carried out and enforced in cases almost too numerous to mention. (See Chambers v. Satterlee, 40 Cal. 497; Burnett v. Mayor and Common Council of the City of Sacramento, 12 id. 76; People v. Lynch, 51 id. 15; Lansing v. Smith, 8 Cowen, 146; Dill, on Mun. Cor. §§ 543, 782.) .
The last point in the case is, that there is no finding upon the eleventh defense set up in the answer. That defense is, that at the time of making the assessment mentioned in the complaint, and ever since that time, he, Townsend, was and has been the owner of an undivided half of the lot of land described in the complaint, and no more, and that he does not hold the same in joint tenancy, coparcenary, or joint ownership with any of the other defendants, and he prays that if a judgment be entered against him, that it may be a separate judgment. The finding of the Court below was, that the defendants were the owners in fee of the land at the time the assessment was made, and at the date of the commencement of the action. This is a sufficient
There is no other question in the case which we deem it necessary to examine, and no error appearing in the transcript, the judgment and order arc affirmed.
Myrick, J., and Thornton, J., concurred.
