Warren v. Riddell

Harrison, J. Action to foreclose the lien of a street assessment in San Francisco.

The resolution of intention for the work for which the assessment was issued, as well as all the subsequent proceedings taken by the board of supervisors, provided for the grading of Santa Clara street, between Kansas and Utah streets, “to the official line and grade”; and the contract entered into by the plaintiffs with the superintendent of streets specified that the street was to be graded “ to the official grade and line.” The grade of Santa Clara street had been officially established, and a few months prior to the inception of the present work the board of supervisors had attempted to change this [353]grade, but their action proved abortive, by reason of not having acquired jurisdiction to pass the order for the change. The plaintiffs did not grade the street to the official grade, but graded it to the line that had been proposed for a change of the official grade, and this is made the ground of the defense to the present action. The court finds, however, that the plaintiffs performed all the terms and conditions of the contract to be performed on their part under the direction and to the satisfaction of the superintendent of streets, and that the work was approved and accepted by him prior to the issuance of the assessment.

If the defendants would claim that the work required by the contract had not been fully performed, and that the act of the superintendent of streets in approving and accepting the work was erroneous, they were required by section 11 of the Street Improvement Act to appeal to the board of supervisors, and upon such appeal the error could have been remedied. The objection to the work which is here presented is one which is eminently within the functions of the board of supervisors to remedy under the provisions of this section, and unless such appeal is first taken the owner is precluded from raising the objection in an action to enforce the assessment. Whether, if an appeal had been taken and the board of supervisors had refused to direct the plaintiffs to complete the work according to the terms of their contract, the owner would be precluded from making this defense to an action upon the assessment, does not arise in the present case. The statute requires that he shall first seek relief from that body, and we cannot assume that if such appeal had been taken the board of supervisors would have disregarded the appeal, or that the plaintiffs would not have performed their contract according to its terms. The appeal in cases where the decision of the city council is not conclusive upon the owner is to be regarded in the nature of a condition precedent to the right to maintain the defense upon the grounds for which the appeal is