Crim v. City & County of San Francisco

McFARLAND, J.

Defendant- interposed a general demurrer to the complaint. The demurrer was sustained and plaintiffs declining to amend, judgment was entered for defendant. From this judgment the plaintiffs appeal. In its demurrer the defendant also pleaded the two year statute of' limitations—section 339, Code of Civil Procedure.

It is averred in the complaint that during the times therein mentioned plaintiffs were the owners of certain land situated in the city and county of San Francisco and partly bounded' by a street called J Street; that from about the month of' January, 1897, until about the month of January, 1902, the defendant was the owner of certain land in the vicinity of plaintiffs’ said land and known as the Almshouse Tract; that during said period defendant maintained a sewer over and across the Almshouse Tract of land, but did not connect the same with any main sewer having a proper outlet until a short time before the commencement of the action; that for want of a proper outlet the sewer conducted and conveyed all the-sewerage and drainage of said Almshouse Tract and from all the buildings thereon, “to and at a point immediately north of said J Street between Tenth and Eleventh avenues in said city and county; and that from about the month of January, A. D. 1897, until about the month of January, A. D. 1902, the-

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discharge from said sewer was continuously washing and carrying away the soil from the said point of discharge of said sewer through a gully or bed which it made for itself westerly along said J Street and through and upon the said properties of said plaintiffs fronting thereon and hereinbefore described; that the said discharge from said se'wer has washed and carried away large quantities of the soil from the said properties of said plaintiffs hereinbefore described and from said J Street where it passes in front of, and between the same, and has. rendered said J Street impassable in front of and between the said properties; and that in consequence of the destruction of said street at that point so caused by the said sewer and by the aforesaid devastation and washing and carrying away of said plaintiffs’ said lands thereby caused as aforesaid, said plaintiffs have been damaged in the sum of three thousand dollars ($3,000.00) in United States gold coin.”

Defendant makes several points in support of the ruling sustaining the demurrer and of the judgment; but it is necessary to notice only one of said points, namely, that plaintiffs do not allege that the claim for damages alleged therein was presented to the board of supervisors for payment previous to suit brought as required by section 8 of chapter 2 of article II of the charter of said city. (See