Swamp Land District No. 307 v. Gwynn
Before: Belcher
Synopsis
Swamp Land—Reclamation—View by Commissioners—Joint View not Necessary__Under section 3456 of the Political Code, the commissioners appointed to make an assessment for the reclamation of swamp land need not act jointly in viewing the lands within the district.
Id. —Sufficiency of View—Finding—Evidence.— The court found that the lands in the district, and each and every tract thereof, were viewed by the commissioners. At the time of the view, the lands were mostly covered with water, but the commissioners were at a point where they could look over the whole area of the district and see every part of it, except a few small parcels along its eastern margin, which were hidden from view by trees. Held, that the finding was sustained by the evidence, and that the view was not insufficient in point of law.
Id.—Assessment Roll—Evidence to Contradict—Arbitrary Assessment. — Conceding that the assessment roll of a swamp-land district, when properly certified by the commissioners, becomes an official record within the meaning of sections 1920 and 1926 of the Code of Civil Procedure, and evidence of all the facts recited in it, still it is only primai fade evidence, and may he contradicted by showing that the assessments were arbitrarily made without reference to the proportionate benefits to he derived to each piece of land assessed by reason of the proposed work.
Id___Satisfaction of Assessment—Tender of Warrant of District. — The defendants tendered in payment of the assessment a warrant of the district for a larger sum than the amount of the assessment. The warrant was owned by a third person, and was tendered only for the purpose of having the assessment indorsed thereon, and was not intended to he given up and canceled. Held, that the tender was not a satisfaction of the assessment under section 3465 of the Political Code.
Belcher, C. C. This is an action to enforce payment of an assessment made for reclamation of swamp lands.
The plaintiff recovered judgment, from which, and an order denying a new trial, the defendants appeal.
1. Under the provisions of the code, when an assessment for swamp-land purposes is to be made, three commissioners must be appointed, who are disinterested persons and residents of the county, “ and who must view and assess upon the lands situated within the district a charge proportionate to the whole expense, and to the benefits which will result from such works.” (Pol. Code, sec. 3456.)
Under the statutes formerly in force, the commissioners were required to jointly view the land, and failing to do that, their assessment was void. (People v. Coghill, 47 Cal. 361; People v. Hagar, 49 Cal. 229.) Now they are not required to act jointly in viewing the lands. It is sufficient if, as they did here, two go together and the other alone to view it.
But .if this be so, it is urged that they did not sufficiently view the land to enable them to make a valid assessment. The court found that they viewed all the lands in the district, and each and every tract thereof, and there was evidence, we think, tending to sustain the finding. It is true, the lands were .mostly covered with water, but the commissioners were at a point where they could look over the whole area of the district and see every part of it, with the exception of a few small parcels [568]along its eastern margin, which was hidden from view by trees. Their duty was to make such an examination of the lands of the district as would enable them to form an intelligent judgment as to the benefits which each part would receive from the completed works of reclamation, and as matter of law we cannot say that they failed to perform their duty.
2. It is alleged in the complaint that the commissioners, after viewing each tract of land, assessed upon the same charges proportionate to the entire expense and the benefits which would result to each tract from the works of reclamation, and on the same day made a list of the charges assessed by them, etc.
The defendants by their answer denied that the commissioners assessed upon the several tracts of land charges proportionate to the entire expense, and to the benefits which would result to each tract from the works of reclamation. And they alleged that the commissioners did not make any examination, computation, or estimate as to the result or effect of the proposed work of reclamation upon each tract of land in the district, but arbitrarily assumed that each and every acre of land in the district should be assessed for an equal share of the entire sum to be raised; and without considering whether some tracts would be benefited by the proposed work more or less than other tracts, arbitrarily assessed each tract at the same rate per acre, when in fact some tracts, if the proposed works should be carried out and completed, would be greatly benefited and enhanced in value, while other tracts would be benefited very little, if at all. And they further alleged that the assessment was unfair, unequal, and unj ust to the defendants, for that the lands described in the complaint would not be benefited to the same extent as other- lands of other owners in the district.
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