Lassen v. City of Alameda

STONE, J. pro tem.

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This is a purported appeal from an order discharging an alternative writ of mandamus which was issued pursuant to a petition contesting the validity of an order of the City of Alameda for the formation of a reclamation district within said city.

The order of the city council approved a petition of Utah Construction Company, owner of a large tract of tidelands in the city for the formation of a reclamation district. The petition included Utah’s tidelands and contiguous parcels of other owners, all susceptible to reclamation by earthfill and levees. The petition contained a long description by metes and bounds of the boundary line of the proposed district, its proposed acreage and the names of the 218 owners of lands to be included in the district. At the hearing before the city council a map was introduced purporting to show the boundaries of the proposed district. Evidence was received in relation to said map. Six of the present petitioners appeared in formal opposition without presenting any evidence. Nobody pointed out that the description by metes and bounds contained two clerical errors (west written where east was meant) as a result of which the boundary so described did not conform to the map used at the hearing and

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the evidence relating thereto and that the description did not close. It also varied from the owners named in the petition and the acreage alleged to be situated within the boundaries. The description with the errors was used in the petition, the publications and in the original order approving the petition.

Appellants, all owners of land, within both the correct and erroneous boundary lines filed their petition for writ of mandamus on September 22, 1955, and in the alternative for a writ of certiorari, alleging that the evidence on the hearing related to a different boundary line than the one set out in the petition.

After the court had made its order for issuance of an alternative writ of mandate, the city council on September 29, 1955, made an “order correcting an inadvertent and clerical error” in the order forming the Reclamation District. The correct map and the correct description by metes and bounds were made part of the order. Thereafter, the city and Utah Construction Company, by way of return to the alternative writ each filed a general demurrer (for failure to state a cause of action) and a verified answer. The verified answer of the city sets out the facts concerning the map and evidence introduced before the city council, the unnoticed typographical errors in the metes and bounds description in the petition, and the correction by the order of September 29, 1955, copy of which with attestation of the city clerk is incorporated by reference in the answer. The correction order of the city also contains an extensive statement of the facts. The answer of Utah Construction Company also incorporates certain of the evidence introduced before the city council with reference to a record of the proceedings before the city council in the matter of the formation of a reclamation district, which record was filed with the trial court and ordered by it included in the record on appeal at the request of Utah Construction Company.