Mietzsch v. Berkhout

BELCHER, C. Proceedings were regularly instituted for the widening of Mission street, in the city and county of San Francisco, and for the condemnation for that purpose of a strip of land sixteen and one-half feet wide, along the southeasterly side of said street. The proceedings resulted in a judgment of condemnation and in assessments upon certain lots of land owned by the plaintiff, to help pay the expenses of the improvement. The assessments not being paid, the said lots were sold thereunder to one William Kreling, who received certificates of purchase therefor, and assigned the same to the defendant Amelia Berkhout. There was no redemption of any of the property so sold, and at the proper time the said assignee served on the plaintiff the. usual and required notice, that she would apply for deeds of the lots pursuant to the said sales. The defendant James Gilleran, the then superintendent of streets in and for.the said city and county, was about to execute and deliver the deeds so applied for, and thereupon the plaintiff commenced this action to obtain a decree restraining the execution and delivery thereof. A summons was duly issued and served on each of the defendants, but they failed to appear, and their defaults were entered. Thereafter, the case was submitted to the court below for decision, and after consideration the court made and filed its [421]findings of facts and conclusions of law, to the effect that all the allegations of the complaint were true, but that the plaintiff was not entitled to the relief demanded, and that judgment should be entered in favor of defendants. Judgment was accordingly so entered, from which the plaintiff appeals.

In the proceedings for condemnation above referred to, the appellant here was a party defendant; and from the judgment entered in the case and an order denying a new trial an appeal was taken by the defendants to this court, where the judgment and order were affirmed: City and County of San Francisco v. Kiernan, 98 Cal. 614, 33 Pac. 720. Most of the questions involved in this ease were involved in that, and were decided against the contention of appellant. They must therefore, upon this appeal, be treated as settled, and need not be further considered.

It is claimed, however, that one of appellant’s lots was assessed for a larger portion of the costs, damages and expenses resulting from the proceedings to effect the widening than it should have been, and hence that the entire proceedings, as to him, were invalidated. The order of the board of supervisors, under which the proceedings were initiated and carried on defined the district to be benefited by the widening, and upon which the costs, damages and expenses thereof should be assessed, as the land extending along each side of Mission street as widened, from Twenty-sixth street to the San Mateo county line, and having a uniform width of one thousand feet on each side of the street; and it declared that after deducting from the total costs, damages, and expenses of the widening the amount assessed to the railroad company occupying the street, the remainder should be assessed as follows: One-fourth upon the lands and improvements thereon lying within a uniform distance of one hundred feet easterly from the southeasterly line of the street, as widened; one-fourth upon the lands and improvements lying between one hundred feet and one thousand feet easterly from the southeasterly line of the street; and the other two-fourths upon the lands and improvements similarly described on the northwesterly side of the street: “provided, that all lots or parcels of land within one hundred feet of the southeasterly or northwesterly lines of Mission street, .... not fronting directly on the line of said street, shall, for the purposes of this assess