Sievers v. City & County of San Francisco

Henshaw, J. Plaintiff brought his action to recover of the defendant damages for injury occasioned to his property by the grading of Van Ness avenue at the crossing of Chestnut street. The work as done dammed a well-defined channel through which surface water was wont to flow, and backed the water upon the land of plaintiff.

It was developed upon the trial that a contract had been let, after regular proceedings by the authorities, to grade Van Ness avenue to the “official grade” at a stipulated price per cubic yard of filling. The official grade was seventy-five feet above base. An attempt had been made by the supervisors to change the grade to eighty-three feet above base. This attempt, however, was admittedly abortive, as in Warren v. Riddell, 106 Cal. 352, and during all of the time the official grade remained established at seventy-five feet.

The city engineer and surveyor, whose duty it was to furnish grade lines and levels (Stats. 1891, p. 206), assumed eighty-three feet to be the official grade, and the contractor filled in accordingly. It is conceded that filling to the true grade would have occasioned plaintiff no damage, and that the injury which befell him was caused by the extra eight feet of superimposed earth. Plaintiff averred that the city caused and procured the crossing to be filled with soil, sand, and rock to a height of eighty-three feet above base. Upon the showing above indicated he suffered a nonsuit, and appeals from the judgment.

[653]His charge is, that the city procured the work to be done. Unless the proofs support this averment, the nonsuit was properly granted.

It does not appear that the supervisors, in any of their proceedings, called for any grading except “ to the official grade and line.” The bids were received under this call, and the contract ran in the same language. Precisely as in Warren v. Riddell, supra, the contractors, through error induced by the city surveyor, or superintendent of streets, or by both, graded six or eight feet above the line called for by the contract. The extra six or eight feet of filling, which alone it is admitted caused the injury, were not placed under any contract with, or directions from, the city. The case, then, differs radically from the many cited and relied upon by appellant, where the injury has resulted from work done for, and as directed by, the municipal authorities. Thus, in Reardon v. San Francisco, 66 Cal. 492, 56 Am. Rep. 109, the injury resulted from street filling done exactly in accordance with the contract. In Conniff v. San Francisco, 67 Cal. 45, Montgomery avenue was graded as the city directed. But the work dammed a natural watercourse, and the city was held responsible for the resulting injury to property. In Spangler v. San Francisco, 84 Cal. 12, 18 Am. St. Rep. 158, the city had diverted the waters flowing in a natural waterway into a sewer, and had negligently permitted the sewer to fall into a defective condition, whereby the escaping waters caused damage, for which the city was held liable. In Eachus v. Los Angeles Ry. Co., 103 Cal. 614, 42 Am. St. Rep. 149, the grading was properly done to the official grade, but, for resulting damages, defendant was held responsible. In Tyler v. Tehama County, 109 Cal. 618, a bridge was built as and where the supervisors directed. But it was constructed upon private property, for the injury to which the owner received compensation.