In re Beale Street

Wallace, J., delivered the opinion of the Court, Temple, J., and Sprague, J., concurring:

The first question presented upon this appeal is, whether or not the Act of March 28, 1868 (concerning the change of street grades in San Francisco), permits an award of damages to any person who "shall not have filed his petition, claiming such damages within twenty days after the first publication of notice of the intention of the Board. There is no doubt, at least upon authority, that the Act might have clothed the Board with the power to change the grades of the streets without awarding compensation to any property owner—such change not being a taking of private property for public use, within the meaning of the Constitution. The Legislature, however, considering that it" would be unjust that one class of property holders should obtain all the benefits and another class suffer all the disadvantages supposed to be occasioned by the proposed alteration, saw fit to provide a method by which • such, a result would be avoided. . Accordingly the Act has afforded the means by which those who are to be benefited may be compelled to, in some measure, make up the losses of those who are to be damaged by the alteration.. It requires .that ‘within, twenty days after the first publication of such notice any person claiming that he or she would sustain damage by reason of such change shall file a petition with the County Clerk, addressed to the County Court, setting forth the fact of his or her ownership, the description and situation of his or her property, its market value, and the amount óf damages over and above all benefits which he or she would sustain by reason of the proposed change, if completed, asking the appointment of Commissioners to assess such damages, which petition shall be verified by the oath of the petitioner or las or her agent.”

We think it was the purpose of the Legislature to confine the award of damages to those who should thus petition for their, allowance. It will be seen that the petition must ncrt only set forth with great minuteness and precision as well the fact of ownership as the description and situation of [499]the property alleged, to be injured; but it must, upon the oath of the petitioner, state the amount of damages resulting after deducting all benefits which the particular lot of land will derive from the proposed change. A sworn estimate or calculation by the petitioner himself is thus afforded as a basis upon which the Commissioners are to proceed, and are “to visit and inspect * the premises for which damages are claimed, ” etc. We think that a careful examination of the various provisions of the Act will show that it was not its purpose to provide for the payment of damages to those who, not claiming them, might fairly be supposed to intentionally waive them; or who could not, upon their consciences, state that they thought themselves entitled to receive them. Upon the filing of the required petition by a party supposing himself about to be damaged, all other property owners within the designated limits, who possibly might be thereafter assessed as beneficiaries, must be considered as defendants denying the statements of the petitioner, interested, of course, in reducing the amount of damages claimed by him, and they should be afforded an opportunity to produce witnesses to disprove his allegations. But if no claim for damages be placed on file by the owner of a particular lot, the defendants are without the notice to enable them to prepare to resist it; and for much the same reason, we think that the Commissioners, in their award of damages to any petitioner should not exceed the amount claimed by him in the petition itself, since those adversely interested may fairly be supposed to have acquiesced in the correctness of the amount claimed in the petition itself.