Kutchin v. Engelbret
Before: Temple
Synopsis
Street Improvement—Contract—Amount op Work.—A contract for a street improvement calling for less work than that proposed in the resolution of intention of the common council is void.
Id.—Special Permits to Lot Owners—Resolution op Intention — Assessment.—The common council has no power, intermediate the passage of a resolution of intention to order a particularly described street improvement and the passage of the resolution ordering the work, to grant special permits to individual lot owners to do such portions of the work as are adjacent to their premises; and if it does so, a contract subsequently entered into to do the work in front of the lots of owners to whom special permits had not been granted, and an assessment therefor levied on such lots alone, are void.
TEMPLE, J.
This is an action to remove the cloud of a street assessment lien from the title of plaintiffs to several lots in the city of San Diego.
June 16, 1896, the common council of San Diego passed a’ resolution of intention to order a described portion of Eirst
[636]
street to be “sidewalked,” “excepting such portions of said First street and intersections between said points as have already been sidewalked with concrete or bituminous rock, laid to the official grade and accepted,” and also to order the same described portion of the street, with the same exceptions, to be curbed.
There were forty-eight lots between the points indicated, in front of twenty-eight of which lots the work had been done prior to the resolution of intention. The work was ordered by resolution, passed December 21, 1896, in which the work to be done, and the property, were described in the same language which had been used in the resolution of intention, but intermediate the resolution of intention and the resolution ordering the work, special permits were given to owners for sidewalking and curbing, and under these the work was done on about one-half the lots, upon which the work had not been done at the time the resolution of intention was passed. So that the same words in the resolution ordering the work would include only about one-half the lots described in the resolution of intention.
The contract entered into did not include the lots in front of which special permits had been granted to owners to do the work, nor are such lots included in the assessment. All these facts are set forth in the complaint, with other matters, and it is charged that, by reason of manifest defects, the assessment is void.
The answer expressly admits that at the date of the resolution ordering the work First street had been sidewalked and curbed as alleged in the complaint in front of all the lots for which, it is alleged in the complaint, special permits had been granted, and that the contractor did no work in front of said lots, and none of them are included in the assessment, but denies, for lack of sufficient knowledge or information to form a belief, that the work specified was done after the passage of the resolution of intention. Upon this issue the finding was for plaintiffs. '
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