Mahoney v. Braverman

Department No. 2, Thornton, J.: This is an action to enforce an assessment for a street improvement. The improvement referred to is the construction of a cement-pipe sewer, with flushing-hole and cover, in Willow Avenue from Octavia to the center line of Gough Street, and in Gough Street from a point opposite the center line of Willow Avenue to Eddy Street, to connect with the sewer in the crossing of Gough and Eddy Streets. The Court gave judgment for plaintiff. The defendant moved for a new trial, which was denied, and this appeal is prosecuted from the judgment and order of the Court denying the new trial.

It is urged on behalf of the appellant that the Board of Supervisors had no authority to order the doing of the above-mentioned street work, for the reason that it included two distinct and separate streets in one and the same contract and assessment ; that the order for such work is illegal and void, having been made without authority of law.

The diagram which was in evidence, shows this condition of the streets : Willow Avenue runs perpendicularly to Gough Street, the course of the avenue being east and west, while that of Gough Street is north and south. Eddy Street is south of and parallel with Willow Avenue, the north line of the former being-distant from the south side of the latter one hundred and twenty feet. Octavia Street is west of and parallel with Gough, and distant from it four hundred and twelve and a half feet. The work was to be done partly in Willow Avenue, and partly in Gough Street, which last, as we have seen, ran at right angles to the former—that is to say, the sewer referred to was to run from Octavia Street along Willow Avenue easterly to the center line of Gough Street, then turning south at right angles to run in a southerly direction along Gough Street so as to connect with the sewer in the crossing of Gougli and Eddy Streets.

It is objected that the Board of Supervisors had no jurisdiction or power to order a sewer to be constructed in Willow Avenue and in Gough Street in one and the same award and contract, inasmuch as they were two separate streets. To sustain this objection we are referred to the Act of the Legislature of April [5671]st, 1872. (See Acts of 1871-2, p. 804.) By the third section of this act, the Board of Supervisors are authorized and empowered “ to order the whole or any portion ” of the streets, lanes, alleys, places, or courts described in the first and second sections of the act, graded or regraded to the official grade, planked or re. planked, paved or repaved, macadamized or remacadamized, piled or repiled, capped or recapped, and to order sidewalks, •sewers, cesspools, manholes, culverts, curbing, and cross-walks to be constructed, and to order- any other work to be done which shall be necessary to make and complete the whole or any portion of said streets, lanes, alleys, places, or courts, and they may order any of the said work to be improved.”