Diggins v. Brown

Hayne, C. —Action to foreclose the lien of a street assessment. The only point made is, that the assessment shows upon its face that it was not made in accordance with the statute.

The order under which the work was done provides “that plank sidewalks be constructed on Olive Avenue, between Laguna and Buchanan streets where not already constructed, and that the roadway thereof be macadamized where not already done.”

The diagram attached to the assessment is as follows:—

The items of the work, as shown by the assessment, are as follows:—

3,937 5-10 square feet of macadam, at §0.10.......................§393 75

375 front feet of sidewalks, at §1.15...............................431 25

Printing, §18.90; engineering, §33................................ 51 90

Total......................................................$876 90

Number of front feet assessed........................................375

Rate per front foot..............................................$2.3384

[320]The distribution of the burden was as follows:—

It thus appears that the lots designated as a and b upon the above diagram were not assessed at all, although they fronted on Olive Avenue between the streets mentioned.

In making the assessment in this way, the officer doubtless acted under what we conceive to be a mistaken construction of the provisions of the act of 1871-72, under which the proceedings were had. There are two provisions of that act which are relied upon by respondent as justifying the assessment, viz., subdivisions 10 and 1 of section 8. The former is as follows: —

“Subd. 10. When any work mentioned in section 3 of this act .... is done on one side of the center line of said street, .... the lots or portions of lots fronting on that side only in front of which said work is done shall be assessed to cover the expenses of said work,” etc. (Laws 1871-72, p. 811.)

In view of this provision, the officer was justified in assessing the lots on one side of the street for the work done on that half of the street, and the lots on the other side for the work done on the other half. But this does not meet the difficulty, even if we assume in favor of the assessment (as we think should be done), that no work was, in fact, done on the half of the street in front of lots a and b. That is simply saying that they should not be assessed (and were not assessed), for work done on the opposite side of the street. But this is a different thing from saying that they should not be assessed for work, done on their oim side of the street. And the difficulty