Harney v. Benson
Before: Temple
Synopsis
Street Improvements—Construction of Sewer—Lack of Outlet — Jurisdiction of Municipal Board — Enforcement of Assessment —Failure to Protest.—It is the duty of a municipal board to provide means of disposing of the sewage of the city, and it is their province to determine whether sewers are needed, and what districts will be benefited thereby; and, if there can be no outlet provided into the ocean or some other permissible place, the board must dispose of it in some other mode, and may gather it for that purpose; and their determination as to the necessity of the construction of a sewer, and what district will be benefited by it, cannot be assailed in an action to enforce an assessment therefor, on the ground that no outlet was provided for the sewage, where no protest was made against the work on that ground before the board.
Id.—Assessment in Proportion to Benefits — Presumption—Method of Calculation.—An assessment for a sewer will be presumed to have been made in proportion to benefits, and the superintendent of streets will be presumed to have done bis duty in distributing the burden as the statute requires, unless the assessment shows the contrary; and it is not necessary that the assessment should disclose his method of calculation; but, if the estimate of benefits appears to be rational, it is not for the court to determine whether it is the best.
Id.—Conclusiveness of Assessment—Appeal to Board.—If the method of assessment adopted by the superintendent of streets in distributing the burden is wrong, the property owner must appeal to the hoard; and, in the absence of such appeal, the assessments made by him are conclusive, unless the board is wholly without jurisdiction, or the procedure has been departed from in some other manner.
Temple, J. This is a street assessment case, and the appeal is from the judgment, and was taken within sixty days after its rendition.
[316]The charge is for the construction of a trunk or main sewer on Fourteenth avenue. • In the resolution of intention it was declared that the work was of more than local or ordinary benefit, and the expense was made a charge upon a district which was defined by and in the resolution.
On October 20, 1890, the board had adopted plans for the sewerage of that locality, and had made a map of a system of sewers, of which the sewer in question constituted a part. The scheme contemplated a drain to the Pacific ocean through the Presidio, and it was found, and is admitted, that the board had no power to lay out streets or to' construct sewers through the Presidio reservation.
The resolution of intention was passed November 19, 1890, and the work ordered constitutes but a small part of the system which had been adopted. The portion let had no outlet, and the plan, of which it is a part, cannot be completed. By that method the city cannot furnish an outlet. It was open to the board, however, to adopt other plans, and, at the time of the trial, it was shown that the plans had been changed and contracts actually let, which, when completed, would furnish an outlet for this sewer.
In the specifications and contract it was provided that connections should not be made with the sewer until there was an outlet. The sewer was still unused at the time of the trial, some four years after the completion of the work.
It is charged that the supervisors well knew that the work would be of no value to the property in the district, and that there was fraudulent collusion between the board and the contractor. The court found, however, against all changes of fraud, and against the claim that the work had not been done according to contract.
It is contended that since the structure has no outlet, and since, as counsel claim, it is legally impossible —or was so impossible at the time the work was done— to procure an outfall, it is not a drain, and cannot be [317]
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