Engebretson v. Gay

SLOSS, J.

Appeal by defendant, Gay, from a judgment foreclosing the lien of a street assessment. Two points made by appellant against the validity of the assessment were fully considered in

Gay

v.

Engebretsen,

(L. A. No. 2455),

ante,

p. 21, [109 Pac. 876], where we held that neither afforded sufficient ground for defeating the lien. An additional question is presented in this case.

The work consisted in part of the grading of India Street in the city of San Diego. The defendant, Gay, filed a cross-complaint alleging that the plaintiff, acting under the contract for the grading of said street, had raised the level thereof about twenty feet along the frontage of Gay’s lot, and had piled dirt on a part of said lot, thereby destroying said defendant’s use of the street for ingress to and egress from sai’d property, and damaging him in the sum of five hundred dollars. Plaintiff’s demurrer to the cross-complaint was sustained.

The defendant sets up in his cross-complaint the provision of the specifications whereby the contractor was required to agree that loss or damage arising from the nature of the work to be done under the contract during the progress of the work and before acceptance thereof, should be sustained and borne

[29]

by the said contractor. A reference to our opinion in L. ,A. No. 2455,

ante,

p. 21, will be a sufficient guide to our reasons for holding that this clause has no reference to the part of the damage resulting from raising the grade of the street. Liability for such damage rests upon the city by virtue of the constitutional provision prohibiting the taking or damaging of private property for public use without compensation.

Blochman v. Spreckels,

135 Cal. 622, [67 Pac. 1061], and the cases following it, went upon the theory that this liability could not properly be imposed upon, or assumed by, the contractor under a street improvement contract. If the contractor cannot make a valid agreement to bear this liability, it would seom to follow,