San Francisco Paving Co. v. Egan

ANGELLOTTI, J.

This is an action to foreclose the lien of an assessment for street-improvement work. Plaintiff had judgment, and defendants appeal from an order denying their motion for a new trial.

1. It is contended by defendants that the resolution of intention to order the work dqne was invalid for several reasons. Assuming that all the objections made to the resolution are available to defendants on the record before us, we are of the opinion that there is no merit in any of them.

The property upon which jt is sought to enforce a lien fronts on Twenty-ninth Street between Noe and Sanchez streets, in San Francisco. It is claimed that the evidence introduced by defendants shows that at the date of the resolution this portion of Twenty-ninth Street had once been macadamized, and was then in good order. It also appeared that within six months prior to such date the said block, excepting only the lot of defendants, which has a frontage of fifty-five feet, had been paved with bituminous rock, and that granite curbs had been laid thereon by the property-owners under private contract. !

There is no claim that such block had ever been accepted by the city as a completed and fully constructed street. (See Street Improvement Act, sec. 20.)

Under these circumstances, t|he board of supervisors passed the resolution of intention. It included street work of various kinds upon other streets than Twenty-ninth Street, but so far as applicable to Twenty-ninth Street, it expressed the inten

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tion of the board as follows, viz.: “That granite curbs be laid on Twenty-ninth Street, between Sanchez and Noe streets where not already laid, and that the roadway thereof be paved with bituminous rock where not already paved, except that portion required by law to be kept in order by the railroad company having tracks thereon.”

It is urged that the board had no power to order a street that had once been macadamized to be paved with bituminous rock.

We find no such limitation upon the power of the city council expressed in the law relative to street improvements. By section 2 of the act, as it existed at the date of these improvements, it was provided that “Whenever the public interest or convenience may require, the city council is hereby authorized and empowered to order the whole, or any portion', either in length or width, of the streets ... of such city, graded or regraded to the official grade, planked or replanked, paved or repaved, macadamized or remaeadamized, graveled or regraveled, . . . and to order any other work to be done which shall be necessary to complete the whole or any portion of such streets . . . and it may order any of said work to be improved.” (Stats. 1891, p. 196.)