Palmer v. Burnham

HARRISON, J. Action upon a street assessment. A demurrer to the complaint was sustained, and the plaintiff has appealed from the judgment thereon. The sufficiency of the demurrer is presented by the respondents upon two propositions:

1. In the resolution of intention the city council described the, work to be done in the improvement of the street as follows, viz: [365]“That Broadway (describing the portion thereof) he graded to the official subgrade for macadamizing”; and it is objected that by this resolution no jurisdiction to order the work was obtained, for the reason that section 2 of the street improvement act only empowers the city council to order any portion of a street to he “graded or regraded to the official grade.” By the first section of this act the city council is empowered to establish the grades of the streets, but is not precluded from establishing a “sub-grade,” in order that it may properly and systematically cause the streets to he prepared for use, and it is alleged in the complaint that at the passage of this resolution an official subgrade for macadamizing had been established by the city council (describing the same). The grade of a street is the degree of its inclination from a horizontal line, and, as used in the street improvement act, includes the height of its surface above the line of the established base; hut it is entirely consistent with the establishment of the grade of a street that there he also established a subgrade for macadamizing, i. e., a line of elevation above the base to which the street is to be reduced prior to laying thereon the material with which it is to he macadamized, since such sub-grade may he upon the same line of inclination as the grade itself. If such subgrade has been established, it is an official grade for that purpose, and the work of grading the street to the suhgrade may he ordered by the city council. Such an order indicates by its terms that it is only a portion of the work necessary for preparing the street for use, and that it is the purpose of the council to cause the street to be macadamized, upon the completion of which the whole surface of the street will he at the official grade. The establishment of a suhgrade for this purpose is in harmony with the purposes of the statute, and is more consistent with its spirit than to require the street to be filled in to the official grade and then have a portion thereof removed for the purpose of preparing it for macadamizing. The expression in Warren v. Riddell, 106 Cal. 352, is to he read in the light of the question then before the court, viz., that a contract to grade a street to the line of the official grade was not satisfied by grading it to a different line.