Jennings v. Le Roy , 1883 Cal. LEXIS 475 ( 1883 )

Myrick, J.

The Act of April 1, 1878 (Stats. 1877-78, p. 931), must be construed as having the effect of changing the grade of Bay Street at the points therein designated, and of authorizing that street, between the termini named, to be graded to the line of grade thereby established, without a petition from property owners. At the time of the passage of that act there was no constitutional objection to its passage. It was competent' for the legislature to pass the act, even though it might, in effect, repeal or modify some provisions.of existing laws, and that without re-enacting the statutes as modified or changed. The purpose of the act is sufficiently stated in its title. The respondent claims that when the line of grade has once been established (the street not being in fact graded to the line), the adjacent property owners have a right of property in the line of grade as established which cannot be taken from them without compensation. We have not been referred to any case or to any' text writer which sustains the proposition. The cases are uniform, that the owner holds his property subject to the right of the legislative authority to establish and change grades; some cases, however, have stated that the owner is entitled to damages if his improvements or his right to use them are affected. The case before us is not such a one.

The court found that the resolution ordering the work to be done was not, after its introduction, published before final action thereon; that notice of the nature and character of the work to be done, with specifications, was not posted in the office of the superintendent of streets; and that no notice of the award was published. The only evidence upon that subject was the assessment, diagram, warrant, and affidavit of demand and non-payment, with the indorsements thereon showing due recording. The statute (Stats. 1871—72, p. 815, § 12) makes the warrant, assessment, and diagram prima fade evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent, and of the regularity of all the acts and proceedings of the board of supervisors, upon which they are based; therefore there was some evidence of the regularity and correctness of the proceedings, and, there being no evidence in conflict, the findings above referred to are not sustained.

We are of opinion that the general statutes concerning the improvement of streets in the city and county of San. Francisco, as modified by the Act of April 1, 1878, apply to the case before us.

The judgment and order are reversed, and the cause is remanded for a new trial.

Thornton, J., and Sharpstein, J., concurred.

Hearing in Bank denied.