Fay v. Reed , 128 Cal. 357 ( 1900 )

Action to foreclose an assessment for street improvements. A general demurrer to the complaint was overruled, and the defendants answered. The court found that all the allegations of the complaint are true, and that all the allegations of the answer, except the allegation that defendant Reed is the owner of the lot sought to be charged, are untrue, and entered judgment for the plaintiffs, from which and from an order denying a new trial the defendants appeal. If the complaint does not state a cause of action its defects are carried into the findings, which, in such case, would not support the judgment.

The fourth paragraph of the complaint alleges that on December 11, 1893, the mayor and common council of the city of San Jose passed its resolution of intention to improve Market street in said city between certain intersecting cross streets, by excavating the roadway and portions of abutting streets "to thebuilding line of Market street, to a suitable subgrade," constructing curbs of artificial stone set upon established curb lines and grades, making gutters of a defined width and material, improving the roadway to the official grade by six inches of concrete and two inches of bituminous rock; and"suitable drains and inlets are to be constructed at allintersecting street crossings to carry the surface water ofintersecting streets and of Market street into the main branch sewer running along said Market street." We have italicised the portions of the resolution of intention to which appellants direct special attention. The last of these only need be noticed. The others are made sufficiently clear by reference to other portions of the resolution, and if it were otherwise it would not affect the result, since we think the provision in relation to drains and inlets is fatally defective.

The number of intersecting streets crossed by the portion of Market street intended to be improved, of course, is certain; but whether there was intended to be constructed at each of these intersecting streets one, two, or three, or four inlets and drains is not fixed or determined, nor is the size of the drains specified, nor the material of which they shall be constructed, whether of wood, or cement, or brick, or stone, or iron pipe, or vitrified pipe, nor is the kind or character of the inlet by which the surface water is to be admitted to the drain in any manner described.

"The foundation of plaintiffs' right to maintain the action rests upon the resolution of intention, passed by the board of city trustees, to do the work for which the assessment sought to be foreclosed was made." (McBean v. Redick, 96 Cal. 192.) "We have repeatedly held that proceedings by which the citizen is to be divested of his property in invitum must be strictly pursued."(Stockton v. Whitmore, 50 Cal. 554.)

The statute requires that the city council, before ordering any work done, shall pass a resolution of intention so to do, "describing the work." This resolution is required to be published, and notices thereof posted, and the owners of a majority of the frontage on the proposed work may, by a written objection delivered to the city clerk, bar any further proceedings in relation to the doing of said work for the period of six months, and if no objection be made within the time limited the city shall be deemed to have acquired jurisdiction to order the work to be done. The resolution of intention is, therefore, the basis of the jurisdiction of the city council to proceed to order the work, and the requirement that the resolution shall "describe" the work proposed to be done is for the purpose of enabling the owners of property, which would be liable for the cost of the improvement, to determine whether they will file written objections and so postpone the work. If the same or a similar indefiniteness existed in the resolution of intention in regard to the curbing, the construction of the gutters and the improvement of the roadway of the street, no one would doubt the insufficiency of the description of the work intended to be done; but the requirement of the statute that the work be "described" applies to all and each of its material parts. If, for example, the curbing, the construction of the gutters, and grading and paving of the street had been done under some previous resolution of intention, and it was afterward desired to construct the drains and inlets here spoken of, no one would contend that a resolution of intention to construct "suitable drains and inlets at all intersecting street crossings to carry the surface waters of intersecting streets and of Market street into the main branch sewer" would comply with the requirement of the statute that the resolution must describe the intended work. We cannot regard the drains and inlets as having been eliminated from the resolution of intention and from the contract with the plaintiffs, and permit a recovery for that part of the work which was sufficiently described, since the bid and the contract included the drains and inlets. In McBean v. Redick, supra, the resolution of intention was for the construction of a sewer along a certain street for a specified distance, but the distance to be sewered, as specified in the advertisement calling for bids and in the contract, was less by a whole block than the resolution of intention called for. It was held that the contract was void, and that the work done thereunder created no lien on the property benefited thereby.

In San Jose Imp. Co. v. Auzerais, 106 Cal. 498, the resolution of intention to improve a certain street described the improvement thus: "Said improvement to consist of the construction therein of granite or artificial stone curbing on both sides thereof to the official curb grade, excepting therefrom any laid upon the grade," also excavating the roadway, etc., giving description of pavement to be laid upon the street. It was held that the council did not acquire jurisdiction to order the work because the requirement of the statute as to "describing the work" was not observed; that "it was the duty of the city council to determine in the first instance whether the curbs to be constructed along the line of the street should be of granite or of artificial stone." (See Schwiesau v. Mahon, ante, p. 114.)

We do not hold that the description of the improvements in the resolution of intention are required to be so minute and precise as would be proper in plans and specifications; but whether plans and specifications shall be prepared at all is optional with the council, and when prepared should conform to and be consistent with the description in the resolution of intention. Respondents argue, however, that the mayor and common council, before ordering the work done, required the city engineer to prepare plans and specifications of the work to be done, that they were furnished, and were approved and adopted by the council. It is so alleged in the complaint; but what was shown by the plans and specifications is not alleged, nor in any manner disclosed in the record, and we cannot assume that the defect in the resolution of intention was cured by the plans and specifications, even if it were possible thus to remedy the defect; a question which is not presented by the record, and need not be considered.

I advise that the judgment and order appealed from be reversed.

Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.

Temple, J., McFarland, J., Henshaw, J.

Hearing in Bank denied.