Spaulding v. Wesson
Before: Fox
Synopsis
Street Assessment—Issue as to Dedication of Street — General Finding— Evidence. — In an action for the foreclosure of a street assessment, if the court finds generally that all the allegations of the answer are true, without passing specifically upon an issue tendered as to whether the portion of tlie street upon which the work was done had ever been dedicated as a public street, and the evidence shows that it had been so dedicated, an order refusing a new trial must be reversed. Id.—Jurisdiction of Supervisors to Order Work—• Conclusions of Law — Pleading — Findings.—An allegation in the answer that the board of supervisors had no authority or jurisdiction to order the work done upon a street, for which an assessment is sought to be foreclosed, and findings responsive to such allegation, are mere conclusions of law. The facts should he alleged and specifically found.
Id. — Street Improvement in San Francisco — Completing Grade — Necessity of Petition. — It appearing that two or more blocks on each side of a street in San Francisco have been graded, and that the work of further grading upon the same street had been recommended by the superintendent of streets, and the resolution of intention of the supervisors to do the work had been duly passed and published, it is not necessary to jurisdiction that there should be a petition by the owners.
Fox, J. A vital issue in this case is, whether or not Union Street between Larkin and Franklin streets had ever been dedicated as a public street. Upon that issue there is no finding whatever, unless it be held that the finding “ that all the other allegations of the answer of defendants (and amendments thereto) are true as therein stated ” covers that issue. If there is no finding covering the issue, the error is fatal; if the omnibus finding quoted covers it, then, in our judgment, the finding upon this point is not supported by the evidence. In either event, the order must be reversed.
The first, third, and sixth findings are mere conclusions of law. An allegation that the hoard bad no authority or jurisdiction to order the work to be done raises simply an issue of law. The facts should be alleged and specifically found. (Spaulding v. Bradley, 79 Cal. 449.) But if the finding in this case on that subject be considered as a finding of fact, it is not supported by the evidence. It appearing that two or more blocks on each side of the street had been graded, that the work had been recommended by the superintendent of streets, and that the resolution of intention had been duly passed and published, it was not necessary to jurisdiction that there should be a petition by owners. (Stats. 1871-72, pp. 804-815.)
Ueither the facts nor the questions raised in Spaulding v. Bradley, supra, are the same as those involved herein.
Order appealed from- reversed, and cause remanded for a new trial.
McFarland, J., Paterson, J., and Sharpstein, J., concurred.
Rehearing denied.
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