Dougherty v. Miller

By the Court, Sawyer, C. J. : This is an action to recover a street assessment on a portion of Fifty Vara Lot Humber One Thousand One Hundred Thirty-two, in the City of San Francisco. Said fifty vara lot lies at the southeast corner of Clay and Leavenworth streets, fronting one hundred thirty-seven and a half feet on each street. The improvement for which the assessment is levied is on Clay street, in front of said lot; and the portion upon which the assessment sought to be recovered was levied is the whole of said fifty vara lot, except a small lot on the easterly side thereof, fronting twenty-five feet on Clay street, by seventy-five feet in depth. The proceedings for making said improvement were instituted on the 18th of May, 1863, and were regularly followed up till the contract for the work was duly and legally entered into, on the 3d of July, 1863. The contract was in due time fulfilled, and the assessment in all respects regularly made, so far as the prescribed forms are concerned, and the assessment is valid upon such property as was liable to be assessed for the work.

Fifty Vara Lot One Thousand One Hundred Thirty-two is one of the official subdivisions of lots in the city, and there are no smaller official subdivisions of lots in the city where said lot is situate. Six months after the letting of said contract and the beginning of said work, defendant, [86]Thomas S. Miller, was in possession, claiming the whole of the lot described in the complain; but the legal title was in the Commissioners of the Funded Debt. During the progress of the work, and a considerable time before the assessment, to wit: in June, 1865, the said Thomas S. Miller conveyed ' to defendant, C. W. Miller, a narrow strip fronting one hundred twelve and a half feet on Clay street, being the whole frontage of the lot described in the complaint on the improvement, by three feet deep, thus leaving unconveyed in the possession of Thomas S. Miller all the remainder of said lot, none of which portion fronted on the improvement. Afterward, in April, 1866, and before the date of the assessment, the Commissioners of the Funded Debt conveyed to said G. W. Miller the said strip fronting one hundred twelve and a half feet on the improvement, by three feet deep, being the same before conveyed to him by said Thomas S. Miller, and to the said Thomas 8. Miller the remainder of the lot described in the complaint; but no apparent change was thereafter made in the possession of said lot, or of any portion thereof. During all the time of the prosecution of the work, the lot described in the complaint was occupied by three houses belonging to defendant, Thomas S. Miller; and two of said houses fronted on Clay street, and stood thirty feet back therefrom, and were approached and entered both from Clay and Leavenworth streets; and persons going to and from said houses passed over said narrow strip fronting one hundred twelve and a half feet on Clay street, by three feet deep; and during the progress of said work, and at the time of said assessment, the whole lot described in the complaint was unfenced, and there was nothing upon the premises indicating a subdivision of said lot, and two of the houses thereupon fronting toward, and approached from, Clay street, were occupied by tenants of said Thomas S. Miller. Upon this state of facts, the District Court adjudged a lien upon, and directed a sale of, the said narrow strip, fronting one hundred twelve and a half feet on Clay street, by three feet deep only, and dismissed the action as to said