Fay v. Reed

HAYNES, C.

Action to foreclose an assessment for street, improvements. A general demurrer to -the complaint was overruled, and the defendants answered. The court found that all the allegations of the complaint are true, and that all the allegations of the answer, except the allegation that defendant Reed is the owner of the lot sought to he charged, are untrue, and entered judgment for the plaintiffs, from which and from an order denying a new trial the defendants appeal. If the complaint does not state a cause of action its defects -are carried into the .findings, which, in such case, would not -support the judgment.

The fourth paragraph of the complaint alleges that on December 11, 18|3, the mayor and common council of the city of San Jose passed its resolution of intention to improve Market street in said city between certain intersecting cross -streets,, by excavating the roadway and portions of abutting streets “to

the building line

of Market street,

to a suitable subgrade”

constructing curbs of artificial stone set upon established curb

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lines and grades, making gutters of a defined width and material, improving the roadway to the official grade by six inches of concrete and two inches of bituminous rock; and

“suitable drains and inlets are to be constructed at all intersecting street crossings to carry the surface water of intersecting streets and of Market street

into the main branch sewer running along said Market street.” We have italicised the portions of the resolution of intention to which appellants direct special attention. The last of these only need be noticed. The others are made sufficiently clear by reference to other portions of the resolution, and if it were otherwise it would not affect the result, since we think the provision in relation to drains and inlets is fatally defective.

The number of intersecting streets crossed by the portion of Market street intended to be improved, of course, is certain; but whether there was intended to be constructed at each of these intersecting streets one, two, or three, or four inlets and drains is not fixed or determined, nor is the size of the drains specified, nor the material of which they shall be constructed, whether of wood, or cement, or brick, or stone, or iron pipe, or vitrified pipe, nor is the kind or character of the inlet by which the surface water is to be admitted to the drain in any manner described.