Boyle v. Tibbey (1889) · DecisionDepot

Boyle v. Tibbey

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 10, 1889 No. No. 12455Published

Before: Works

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Holding. The court held that the sewer assessment on Montgomery Avenue was valid because the street was a dedicated public street under the statute, and the assessment complied with the legal requirements for property fronting the work.

Issues

Whether the sewer assessment was void due to a lack of uniformity or the omission of certain lots.
Whether the statute provided legal authority to assess property for sewer work on Montgomery Avenue.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This is not true of the street itself which is included, not only in the work that may be ordered by the board of supervisors, but in the provision of the statute authorizing and providing for the mode of assessment.”

Synopsis

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Works, J. This is an action to foreclose an assessment for the construction of a sewer on Montgomery Avenue, in the city of San Francisco.

The court below found for the plaintiff, and rendered a decree foreclosing the lien. A motion for a new trial was denied, and the defendants appeal.

[12]The only question in the case is as to the validity of the assessment. The appellants contend that the assessment on its face was void, for the following reasons:—

“1. Said assessment is not uniform, because not all the lots in the assessment district are assessed, but many are omitted.

“2. A part of block opposite, about one quarter of the sewer, not assessed at all.

“3. There is no law to assess irregular lots fronting on Montgomery Avenue.

“4. Not all the lots in the assessment district benefited for the opening of the avenue assessed, and for that reason assessment void.”

We think the first, second, and third objections are not borne out by the facts as they appear in the record. The resolution of intention and order for the work was for a sewer extending the distance of one block from the intersection of Montgomery Avenue and Lombard Street to the intersection of said avenue with- Chesnut Street, and did not include any part of the crossings of said streets, and all of the lots fronting on said block and the proposed work were assessed. This, it seems to us, is a complete answer to these objections.

It is contended, in support of the third objection, that the only provision of the law for making assessments is found in section 8 of the statutes of 1871-72, page 809, subdivision, 1 to 11 inclusive; that the statute only provides for the assessment of Market Street and other streets other than at right angles according to certain maps with crossings and spaces colored; and that, there being no method provided for assessing Montgomery Avenue, which is not specifically named or included in the general designation of streets “other than at right angles” according to certain maps, the assessment was without authority of law.

This was held to be so as to Montgomery Avenue crossings in Kelly v. Luning, 76 Cal. 311; but this was [13]

Boyle v. Tibbey

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