Buckman v. Cuneo
Before: Fitzgerald
Synopsis
Street Improvement—Extension of Time—Power of Board of Supervisors.—Under section 6 of the act of March 14, 1889, the city council, or hoard of supervisors of the city and county of San Francisco, has power to grant extensions of time for the performance of a contract for street improvement, which power is not limited either as to the number or time of such extensions; and it is within its power to grant an additional extension before an extension previously granted has taken effect, provided the work, up to the time of the making of the application, is shown to have been prosecuted diligently in accordance with the requirements of the statute.
Id.—Presumption as to Showing of Diligence—Operation of Extension.—In the absence of a showing to the contrary, it will be presumed that the action of the board, or council, in the granting of the extension,was based upon a proper showing, and an extension begins to operate from the expiration of the previous extension, and not from the time that it was granted.
Id.—Recording of Engineer’s Certificate—Diagram Part of Certificate—Void Lien.—By the act of March 14, 1889, the recording of the engineer’s certificate was made an additional prerequisite to the creation of a lien thereunder, and where a diagram was drawn on the hack of the engineer’s certificate, which was referred to in the certificate, and showed to what extent the work was performed under the contract, and to what extent it was left unperformed, such diagram is a material part of the certificate, and it must be recorded in the office of the superintendent of streets, and, upon failure to record it, no valid lien attaches to the property assessed.
Fitzgerald, J. Action to foreclose an alleged street assessment lien upon the defendant’s lot.
Defendant had judgment, and plaintiffs appeal therefrom, and from the order denying their motion for a new trial.
The facts necessary to be stated with reference to the points upon which this decision must rest are as follows:
On March 7,1890, the board of supervisors of the city and county of San Francisco, in pursuance of the act of March 18, 1885, and the act amendatory thereof, approved March 14, 1889, passed a resolution of intention, declaring “ that Jones street from the southerly line of Chestnut street to Montgomery avenue be graded to the official line of grade.”
On August 13, 1890, the superintendent of streets contracted with one C. D. Vincent to do the work, the contract providing that the work should be completed within ninety days from the date thereof. After five extensions of time had been granted for the performance of the contract, the first four of them for ninety days, and the last for thirty days, the work, except that part of it shown by the engineer’s certificate, was completed about the 16th of November, 1891, at which time the assessment was issued therefor, whereby plaintiffs’ lot was assessed, as alleged in the complaint.
It further appears that as the work progressed the city engineer made certificates from time to time in relation to its performance, the last of which is in the words and figures following, to wit:
“No. 552. San Francisco, Oct. 29, 1891.
“ I certify I have examined the work of grading Jones street from Francisco to Montgomery avenue, and find work to official lines and grades, except per line as shown on back of this certificate. Emb. 6,760 cubic yards. $40.00. A. E. Buckman, Contractor.
“ C. S. Tilton, City Engineer.”
On the back of this certificate was a diagram made by [64]the city engineer, showing the easterly and westerly lines of Jones street between Francisco street and Montgomery avenue, and showing that the embankment and filling necessary to complete the grading of Jones street between the streets referred to had not been filled and graded up to the easterly line of Jones street, as required by the terms of the contract, by reason of the projection of a house into the easterly side of Jones street, and beyond its easterly official line westwardly to a depth of two feet, and of the length of twenty feet.
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