Buckman v. Landers

California Supreme Court Feb 25, 1896 No. S. F. No. 240Published

Before: Harrison

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Holding. The court held that the street assessment was valid and enforceable because the statutory prima facie evidence of the assessment's regularity was not overcome, and the appellants' failure to appeal the assessment to the board of supervisors precluded them from challenging the omission of certain lots.

Issues

Whether the prima facie evidence of the assessment's regularity was sufficient to support the finding of a valid demand for payment.
Whether the omission of certain lots from the assessment rendered it void on its face.
Whether the appellants were required to appeal the assessment to the board of supervisors to challenge the omission of lots.
Whether the superintendent of streets was required to indorse contract extensions before the expiration of the original time limit.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, shall be held prima facie evidence of the regularity and correctness of the assessment”

“Their failure to so appeal deprives them of the right to assign such error in an action to enforce the assessment.”

“The mere omission from the assessment of one of the lots fronting upon the street does not of itself render the assessment void upon its face.”

Synopsis

Action upon Street Assessment—Finding—Public Street.—In an action upon a street assessment, where a finding that the street upon which the work was done is a public street is not specified in the statement as unsupported by the evidence, the finding must be accepted as correct upon appeal.

Id.—Demand Made upon Lot—Prima Facie Evidence—Support of Finding—Want of Personal Demand.—The warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, are prima facie evidence, sufficient to support a finding of the court, that the agent of the plaintiff went upon the lot assessed, and while there publicly demanded payment of the assessment; and evidence that no personal demand was made upon the defendants does not impair the statement of the affidavit that the demand was made upon the lot.

Id.—Error in Assessment—■ Omission of Lots—Appeal. —The omission from the assessment of a lot fronting on the street upon which the work was done does not render the assessment void upon its face; and any error in not including lots which should bear a part of the expenses can be corrected upon appeal to the board of supervisors; and a failure so to appeal deprives the property owners of a right to object to the omission in an action to foreclose the assessment against them.

Id.—Completion of Contract—Assessment—Prima Facie Evidence— Certificate of Engineer.—The assessment is prima facie evidence that the contractor fulfilled his contract; and the prima facie character of this evidence is not overcome by the certificate of the city engineer that the grading was not done to the official line and grade.

Id.—Extension of Time — Prima Eaoie Evidence of Regularity — Indorsement of Extensions—Expiration of Time Fixed.—Where the record shows that the work was completed within the time fixed for its completion by the superintendent of streets, and the subsequent extension thereof authorized by the board of supervisors, the warraut, assessment, and diagram are prima facie evidence of the regularity and correctness of his acts in indorsing the extension upon the contract; nor is it requisite that he should indorse an extension upon the contract before the expiration of the time originally fixed therein.

Harrison, J. Action upon a street assessment in San Francisco. The finding of the court that Army street, upon which the work in question was done, is a public street is not specified in the statement as unsupported by the evidence, and the finding must therefore be accepted as correct.

Section 12 of the street law (Stats. 1889, p. 168) declares: “ The warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, shall be held prima facie evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment, and diagram are based, and like evidence of the right of the plaintiff to recover in the action.” In the absence of any other evidence, the prima facie character of this evidence was sufficient to sustain the finding of the court that the agent of the plaintiff went upon the lot assessed, and, while there, publicly demanded payment of the assessment. (Himmelmann v. Hoadley, 44 Cal. 213; Dyer v. Brogan, 57 Cal. 234.) The testimony that no personal demand was made upon the defendants did not impair the statement in the affidavit that demand was made upon the lot.

An appeal from the assessment that had been originally made for the work by the superintendent of streets was sustained by the board of supervisors, and the assess[350]ment set aside; and the assessment upon which the present action was brought was thereafter made by the superintendent in accordance with the directions of the board of supervisors. It is now contended by the appellants that this assessment is invalid, for the reason that certain lots which should bear a portion of the expense of the work are not included therein. The appellants herein could, however, have appealed from this assessment, and could have had the error, if it was such, corrected upon such appeal by the board of supervisors. (People v. O’Neil, 51 Cal. 91.) Their failure to so appeal deprives them of the right to assign such error in an action to enforce the assessment. The mere omission from the assessment of one of the lots fronting upon the street does not of itself render the assessment void upon its face. ' (McDonald v. Conniff, 99 Cal. 386; Dowling v. Conniff, 103 Cal. 75; Warren v. Riddell, 106 Cal. 352.)

The assessment was prima facie evidence that the contractor had fulfilled his contract to the satisfaction of the superintendent of streets, and, in the absence of any other evidence, the court was authorized to find in accordance therewith. The prima facie character of this evidence was not overcome by the certificate of the engineer. (Williams v. Savings etc. Soc., 97 Cal. 122.)

Buckman v. Landers

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