Fanning v. Bohme

Searls, C. J. —This is an action to foreclose a street assessment for grading Vallejo Street from Montgomery to Kearny, in the city and county of San Francisco. Under the provisions of an act of the legislature, approved April 1, 1872 (Stats. 1871-72, p. 806), it is provided that “ where any public street shall have been graded, or graded and macadamized, or graded and paved, for the distance of two or more blocks on each side of any one or more blocks or crossings of a street which is not improved,” then and in such cases the board of supervisors were authorized, upon the recommendation of the superintendent of public streets, to order such unimproved block to be graded. Under these circumstances the board ordered the block in question graded, without a petition therefor, as is required where the adjacent blocks are not graded. The main question at the trial turned upon the fact as to whether that portion of Vallejo Street between Sansome and Battery, one of the two blocks next east of the block in question, had or had not been graded before the date of the recommendation of said superintendent. The court below found in favor of plaintiff upon all the facts essential to a recovery, except upon this one, as to which the finding [151]was, that the block of Vallejo Street between Sansome and Battery had not been graded. This finding is assailed by appellant, as being unwarranted by the evidence.

At the trial plaintiff introduced in evidence the assessment, diagram, warrant, and affidavit of demand, with proof of recordation of such documents, being in form and substance sufficient, prima facie, as is admitted, to entitle plaintiff to recover. Section 12, Statutes of 1871-72, page 815 (street law of San Francisco), prescribes the rule of evidence as follows: “The said warrant, assessment, and diagram shall be held prima facie evidence of the regularity and correctness of the assessments, and of the prior proceedings and acts of the said superintendent of public streets, highways, and squares, and of the regularity of all the acts and proceedings of the board of supervisors upon which said warrant, assessment, and diagram are based.” It must be conceded that, if the evidence adduced by defendant was sufficient to overcome the prima facie case founded upon the performance of the acts specified by statute, then the board of supervisors had no jurisdiction to order the work done. That portion of Vallejo Street involving the block in question, and being between Sansome and Battery streets, runs along the base of Telegraph Hill, and the original surface was about sixty feet above the grade of the street at Sansome, and about fourteen feet above at Battery Street. The official grade of this portion of the street, prior to 1868, was thirty feet above base at Sansome, and ten feet above at Battery Street. In the last-named year the official grade was reduced to twenty-eight feet above base at Sansome. The evidence on the part of defendant tended to show that in 1865, 1866, or 1867 the property owners on the block in question graded it by excavating and removing the hill so as to make the street passable for teams, and apparently supposed they had brought the street to the. official grade. There can