Bou v. Willits

TYLER, P. J.

This action was one brought by a property owner to enjoin the doing of certain street work in the city of San Bruno, county of San Mateo, under the Improvement Act of 1911. Judgment went for defendant city officials, and the owner appeals.

The facts giving rise to the controversy are as follows: On the twenty-fifth day of May, 1921, the board

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of trustees of the city of San Bruno passed its resolution of intention to order certain street improvements. The resolution described the work to be performed on “Hensley Avenue, Green Avenue, Easton Avenue, Masson Avenue, Mills Avenue, Huntington Avenue and . . . Euclid Avenue. ...” By subsequent proceedings a contract for such improvements was awarded to respondent Municipal Improvement Company. Prior thereto and on the twenty-ninth day of May, 1917, the United Railroads of San Francisco, a corporation, had executed to the city a deed purporting to convey to it a right of way over the land designated in the resolution of intention as “Huntington Avenue.” This deed contains a recital to the effect that the city, in consideration of the dedication of the right of way, had by resolution of its council agreed that the company should not be called upon to pay any portion of the cost of any paving or other street improvements whenever it might be deemed necessary to cause work of -that character to be done under the local assessment plan, but that in such case any assessments which might be levied against the property would be paid by the city. Further recitals are to the effect that in consideration of the premises and of the benefits to accrue therefrom the company dedicates the land to the city for the purpose and use of a public highway.

Under these conditions appellant contends that the agreement on the part of the city that the company should not be called upon to pay any portion of the cost of the work on the strip of land dedicated was void for the reason that there is no provision of law which permits such an exemption, but, on the contrary, the covenant is in direct violation of subdivision 10 of section 20 of the Street Improvement Act, requiring the land to be assessed in proportion to the benefits to be received. From these premises it is argued that the deed is void as against public policy, and that there never was a dedication of the land to public use, from which the conclusion is drawn that the work provided by the resolution of intention to be performed on Huntington Avenue was ordered to be done on private property not dedicated to public use, for which no valid assessment can be levied. (Citing