Bassett v. Enwright
Before: Norton
Synopsis
Where the complaint avers that “the space formed by the junction of Market and Bush streets had been laid out, graded and planked, and that the space formed as aforesaid is a space formed by the junction of two streets, terminating at the same point, according to the provision of section thirty-seven of the Consolidation Actand the answer avers, that “the space formed by the junction of Market and Bush streets, as mentioned in the complaint, is not formed by the junction of two streets terminating at the same point, within the true intent and meaning of the thirty-seventh section of the Consolidation Act:” Held, that the answer meets the allegation of the complaint as to the manner in which the space is formed, and that if no material issue is made on tins point, it is because the material fact, to wit: that the space was formed by the junction of two streets terminating at the same point, is not directly alleged.
The expressions “ according to ” and “ according to the true intent and meaning of,” as here used, mean the same thing.
That part of section thirty-seven of the Consolidation Act of San Erancisco, which speaks of a “space formed by the junction of two streets terminating at the same point,” does not mean a space formed by the intersection of. two streets; or the space formed where one street intersects and stops at another street which continues on—as where Battery intersects and stops at Market street; and for repairs to such space all the lots in the block adjoining the space cannot be assessed—the latter part of section thirty-seven not applying to such a case, and the provision therein for assessing all the lots where the streets are not parallel, and hence the blocks are of irregular shape, also being inapplicable.
Eor repairs to the space formed by the intersection of Battery and Market streets, the Consolidation Act makes no provision, unless the expenses of such repair's could be charged as local repairs under s iction fifty-six, solely upon the lots on the south side of Market street; and this question is not raised.
Where a lot is not liable to be assessed for repairs under the Consolidation Act, the owner thereof is not a party directly interested in the contract, work or assessment within the forty-fifth section, and is not bound to appeal from the assessment. This section does not mean that a mere stranger to the locality must appeal from the assessment to the Board of Supervisors, or be cut off from his defense.
Norton, J. delivered the opinion of the Court Field, C. J, and Cope, J. concurring.
[639]This is an action brought to recover of the defendant, as owner of a lot of land situate at the south-east corner of Bush and San-some streets, in the city of San Francisco, the amount assessed to Mm as such owner for repairs done on the north-west half of Market street, at the point where it is joined by Battery street. The complaint alleges that the space formed by the junction of Market and Battery streets had been laid out, graded and planked, and that the place formed as aforesaid is a space formed by the junction of two streets terminating at the same point, according to the provision of section thirty-seven- of the Consolidation Act. For answer to this allegation the defendant says, that the space formed by the junction of Market and Battery streets, as mentioned in the complaint, is not formed by the junction of two streets terminating at the same point, within the true intent and meaning of the thirty-seventh section of the Consolidation Act. The appellant claims, under the authority of the case of Busenius v. Coffee, (14 Cal. 91) that the material allegation of the complaint as to the manner in which the space in question is formed is not denied by this answer. But the plaintiff obviously supposed that the material allegation to enable him to maintain this action was, that the space was formed by the junction of two streets terminating at the same point. He apparently did not feel authorized to state this fact in direct terms, and therefore having stated, by way of introduction, that a certain space formed by the junction of two streets had been laid out, etc., he then avers that the space so formed is a space formed by the junction of two streets terminating at the same point, according to section thirty-seven. The answer meets this allegation. The expressions “ according to,” and “ according to the true intent and meamng of,” signify the same thing, and if a material issue is not presented, it is because the material fact was not directly alleged.
The Court below finds as the fact, that Battery street intersects and terminates at Market street, but that Market street does not terminate at that point of intersection; and under this finding the space in question cannot, without violence to the meaning of plain language, be held to be such a space as is intended by that portion of section thirty-seven, which speaks of a space formed by the [640]
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