Stotts v. Meese

STURTEVANT, J.,

pro

tem.

The plaintiff brought this action to obtain a decree that Bates, Borland, and Ayer did not hold a lien on the lands of the plaintiff by reason of certain proceedings had for the purpose of improving a street in Oakland. The authorities purported to proceed under the Improvement Act of 1911. Whether they did so proceed is the question involved in this case.

The plaintiff had judgment in the trial court, and Bates, Borland, and Ayer, the contractors, have appealed.

No attack is made except on the assessment. The assessment proceedings show that on July 8, 1914, a clerk in the office of the superintendent of streets delivered into the hands of the

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superintendent a completed form of assessment, and, believing it to be in substance as he had directed it should be, the superintendent signed it. Later it transpired that said document contained a mistake. It included charges for crossings which were not legally chargeable to the plaintiff’s property. The assessment was for $230, whereas it should have been for $60.91. When the superintendent of streets discovered his mistake one week later, July 15, 1914, he proceeded to correct the mistake by making a new assessment to conform to the true facts.

We concede at the outset that the Improvement Act of 1911 does not contain any clause expressly conferring power to reassess, but we think it contains provisions which clearly imply such power. The plaintiff contends that the assessment could have been corrected on appeal by the city council, and that it was the duty of the superintendent of streets to have taken such appeal. The statute does not contain a provision expressly imposing the duty of taking the appeal on the city authorities, nor does the statute provide that an appeal must be taken. But it will be conceded that on appeal the city council could have ordered the assessment to be corrected. (Improvement Act 1911, secs. 21, 26, [Stats. 1911, p. 730].) If, therefore, the plaintiff or the superintendent had appealed the error could have been, and doubtless would have been, corrected. When such condition exists the error or irregularity is not fatal. (Sec. 26,