Pacific Paving Co. v. Mowbray

HARRISON, J.

Action upon a street assessment. The city council of Stockton ordered certain improvements to be made upon Market street in that city from the west line of Hunter street to the west line of American street, and awarded the contract therefor to the plaintiff. After its completion to the satisfaction of the superintendent of streets, that officer issued to it an assessment for the cost of the work, together with a warrant for its collection, and after demand therefor plaintiff brought the present action to foreclose the lien of its assessment upon certain property belonging to the defendant. Judgment was rendered in its favor, from which and an order denying a new trial the defendant has appealed.

The plaintiff’s right of action was contested by the defendant upon the ground that the city council had no jurisdiction to order the improvement, for the reason that the owners of a majority of the frontage of the property on the line of the proposed improvement filed a protest against the same within ten days after the expiration of the publication of the notice of intention. Upon this issue the court' found against the allegation of his answer, and this finding is attacked as not supported by the evidence.

In support of his averment the defendant introduced a document, which had been filed within said ten days with the city clerk, purporting to be a protest against the improvement from certain owners of property along the line thereof. This document appears to have been originally signed by the owners of thirteen hundred and ninety-six feet of frontage, but upon its face the signatures of certain signers owning three hundred and three feet had been erased, leaving one thousand and ninety-three feet of frontage represented by the other signers. It is claimed by the appellant that the erasures were unauthorized,

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•and that by reason of the protest as originally signed the city council was barred from proceeding with the improvement. This proposition, however, depends upon whether the original signers of the document constituted the owners of a majority of the frontage. The record fails to show the amount of the entire frontage of Market street between Hunter and American streets, and we are unable to say whether thirteen hundred and ninety-six feet is a majority thereof. The superior court has found that it was not, and it was incumbent upon the appellant, if he would have that finding set aside, to have it appear from the record that it was contrary to the evidence. Error is not to be presumed, but must in all cases be made to appear before the appellant is entitled to a reversal. It is thus unnecessary to consider whether the erasures on the protest were properly made.