Jacobus v. City of Oakland

By the Court, Sprague, J.: This is an appeal from the judgment of the County Court, on review upon certiorari of the proceedings of the Council of the City of Oakland, in the matter of extending and opening Eighth' street, in said city, under and by virtue of an Act of the Legislature entitled “An Act to authorize the Council of the City of Oakland to lay out, open, and improve streets in said city,” approved January 31st, 1870. (Stats. 1869-70, p. 38.)

It is alleged by the applicant for the writ that the Commissioners elected by the City Council to assess the damages and benefits to be caused by the opening and extension of said street did not perform their duties in that behalf according to law, but exceeded the authority conferred upon them [in this], “ that they did not first ascertain the amount of damage sustained by affiant and others for property taken for said street, as by law they were required to do, but estimated and charged them for all the benefits resulting from said improvement to their remaining lands, and offset the same against the value of the land so taken, and allowed them only the difference as damages.”

The return of the Council to the writ abundantly demonstrates. that the principle upon which the Commissioners proceeded in making their award of damages and benefits, in reference to each particular lot by them adjudged to be affected by the improvement, was to award damages only when, in their judgment, the damages, including the value of that portion of the lot or parcel of land taken for the street, exceeded the benefits resulting from the improvement to the residue of such lot or tract, and then only for the excess of such damages over the benefits, and to award benefit only to the extent of the excess of benefit over dam[24]ages, including the value of the parcel of the tract taken, if any was taken; and if the damages and benefits were, in their judgment, equal, no award of damages or benefits was by them returned as to that particular lot or tract of land.

It seems to be admitted by counsel for the city that such was the principle upon which the Commissioners proceeded in making their award of damages and benefits, and in arriving at a basis for their assessments upon the parcels of land by them thus adjudged benefited, to meet the aggregate damages thus adjudged to other parcels, and the expenses of the Commissioners; and this mode of procedure is claimed by counsel for the city to be a strict compliance with the statute under which the proceedings were had.