Perine v. Erzgraber

California Supreme Court Apr 19, 1894 No. No. 15344Published

Before: Searls

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Holding. The court held that a street work notice substantially complied with the statute despite minor omissions in the description of the work, as the notice provided sufficient information to identify the project and referred interested parties to the resolution for further details.

Issues

Whether the posted notice of the resolution of intention sufficiently described the proposed street work under the statute.
Whether an assessment levied upon a lot on only one side of the street is void.
Whether the plaintiff's introduction of the warrant, assessment, certificate, and diagram established a prima facie case for recovery.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statute does not require an accurate and full description of the work to be contained in the notice.”

“This was a substantial compliance with the terms of the statute, and was sufficient.”

“When he introduced the “warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment,” he in fact introduced what the statute has made prima facie evidence of all the necessary acts”

Synopsis

Street Improvement—Notice of Street Work—Description—Omission —Reference to Resolution of Intention.—Under the act of March 18, 1885, as amended by the act of March 14, 1889, the notice of street work may refer to the resolution of intention for the particulars of the work contemplated; and where the notice is precise as to the specific facts required by the statute, and accurately described the portion of the street to be improved, and contains such brief description of the work as, with reference to the resolution of intention, cannot fail to inform all parties in interest, the statute is substantially complied with, and any omission of words which may be supplied with reference to the resolution of intention will not vitiate the notice of street work.

Id.—Work on One Side of Street—Validity of Assessment.—Where the assessment and diagram showed that the work was all done on one side of the street only, and in front of the lot in controversy, the assessment on the lot on one side of the street only is authorized by the statute.

Id.—Action Upon Assessment—Evidence—Prima Faoie Case—Findings.—In an action to recover a street assessment, and to foreclose a lien therefor, the introduction in evidence of the warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, makes a prima facie case; and, if the defendant fails to impeach such prima facie case, the court is justified in finding all the allegations of the complaint to he true.

Searls, C. Action to recover a sum of money due upon a street assessment, and to foreclose the lien thereof upon a lot of land in the city and county of San Francisco.

Plaintiff had judgment, from which and from an order denying a motion for a new trial defendant appeals.

The proceedings alleged in the complaint were based upon the act of March 18, 1885 (Stats. 1885, p. 147), as amended by the act of March 14, 1889 (Stats. 1889, p. 157).

The resolution of intention passed by the board of supervisors described the work intended to be ordered as follows:

“That granite curbs belaid on Locust avenue, between Larkin and Polk streets, where not already laid; that bituminous rock sidewalks be laid thereon, where not already laid, and except where artificial stone sidewalks are now laid, and that the roadway thereof be paved with bituminous rock, where not already so paved.”

The only evidence offered by defendant to impeach the prima facie case made by plaintiff related to the notice of the resolution of intention which was posted upon the street, and which the evidence showed was in the following words:

[237]“ NOTICE OE STREET WORK.

“ Public notice is hereby given that the board of supervisors of the city and comity of San Francisco passed, on the twenty-third day of March, 1891, a résolution of intention, No. 4894 (third series), providing that granite curbs be laid on Locust avenue between Larkin and Polk streets, where not already laid; that bituminous rock sidewalks belaid thereon, where not already laid, and except where artificial stone sidewalks are now laid, and that the roadway where not already so paved crossing.

“And all parties interested are referred to said resolution for further particulars.

“James Gilleran,

“ By E. Owens, Deputy.”

The only objection urged to the notice as posted is that it does not sufficiently describe the work or improvement proposed.

The statute (section 2 of act of 1889) requires the notice to “ state the fact of the passage of the resolution, its date, and briefly the work or improvement proposed, and refer to the resolution for further particulars.”

Perine v. Erzgraber

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