Bates v. Hadamson

COOPER, J.

This action was brought to obtain a judgment and decree of lien upon the lot of defendants for

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$1,038.34, besides interest and attorneys’ fees, being the amount claimed to be due from defendants as an assessment upon their lot for grading Seventeenth street between Stanyan and Ashbury streets, in the city of San Francisco. The court granted a nonsuit, and judgment was entered in favor of defendants, from which plaintiff appeals on the judgment-roll and a bill of exceptions. Upon the trial the plaintiff offered in evidence the assessment, warrant, and diagram, with affidavit of demand and nonpayment, together with the certificate of the city engineer. The defendant objected to these documents, and to each of them, upon the grounds that the assessment was not made as provided by subdivision 10 of section 7 of the Yrooman act (Stats. 1885, p. 153, c. 153), that the assessment, while correctly stating the number-of cubic yards credit to which the property owners are entitled who have performed work under private contract, does not correctly state the cash credit to which the property owners against whom assessments were made are entitled.. The court sustained the objection to these documents, and thus ruled out the evidence on which plaintiff relied to prove this case. This ruling presents the material question upon this appeal.

The assessment and diagram show that the total number of cubic yards of grading on Seventeenth street, between Stanyan and Ashbury streets, was 63,773, the expense of which was assessable on the lots fronting on said designated portion of said street, being lots 1 to 11, inclusive, as shown on the diagram. The total number of front feet of all the lots was 2,872 feet 5 inches. The owners of lots 5 and 8, having 2,323 feet 4 inches frontage, performed all the grading in front of said lots, which amounted to 51,647 cubic yards, which was 10,058 cubic yards more than the amount of the assessment on said lots would have been, and they were accordingly credited with the full amount of the assessment against said lots. The assessor credited the excess of 10,058 cubic yards on the whole sum of 63,773 cubic yards. Defendants claim that the excess should have been credited on the remaining 12,126 cubic yards, and that the cost of the remaining grading was all that was assessable against the owners of the lots other than lots 5 and 8. If defendants’ position is correct, it is evident that in all cases where owners have graded the street in front of their premises in excess of the assessment