Dorland v. Bergson

Paterson, J.— Action to foreclose the lien of a street assessment. The assessment was for redwood curbs, furnished and laid on Eighteenth Street, from the easterly line of Castro Street to Diamond Street, and for the macadamizing of the roadway thereof.

The defendant relied upon the defense stated in his answer, that the grade of the street had never been officially established.

[638]The court found that the grade of that portion of Eighteenth Street which forms the crossing of Eighteenth and Castro streets had been duly established, but that the grade of Eighteenth Street from the westerly line of Castro Street to Diamond Street had never been officially determined or established. Plaintiff had judgment for the sum of $36.33, being the amount due for work done on the crossing, together with costs, and the land described in the complaint was adjudged to be subject to the lien in favor of the plaintiff for the amount due. It was further adjudged that as to the remainder of the sum demanded in the complaint, namely, for the work done on Eighteenth Street between Castro and Diamond streets, the plaintiff was not entitled to recover any portion thereof.

To sustain the allegations of her complaint, the plaintiff read in evidence the original assessment, diagram, warrant, and affidavit of demand and non-payment mentioned in the complaint, together with the indorsements thereon, showing that the same had been recorded. These documents were sufficient in form, and made a prima facie case in favor of the plaintiff. The plaintiff then rested her case. The defendants offered evidence “tending to show that the grade of Eighteenth Street, from Castro to Diamond streets, had never been officially or otherwise established.” The clerk of the board of supervisors testified tbatf herbad made diligent search among the records of the board, and could find no order or ordinance of the board fixing or establishing the grade of the crossing of Eighteenth and Sherman streets, and that Sherman Street, according to the assessor’s books, is a street forming one of the boundaries of a block. Order No. 684, passed January 30, 1866, was produced by the witness (this order established the official grade of the crossing of Eighteenth and Castro streets), and order No. 972, approved November 9, 1870, establishing the official grade of the crossing of Eighteenth and Dia[639]