Fox v. Workman

This is an action brought to recover from the defendant Workman, as treasurer of the city of Los Angeles, and the sureties upon Ms official bond, damages in the sum of five thousand dollars for the refusal of Workman to comply with plaintiff’s demand that he sell a certain tract of land in order to satisfy a street-improvement bond (Stats.

From the findings it appears that the bond, and the assessment upon which it was based, described the property as follows: “Commencing at the N. W. intersecting point of Avenue 33 and the right of way of the Southern California Railway Company; thence meandering in a northerly direction 9635' to Avenue 50; thence along the S. line of Avenue 50, 62', thence meandering in a southerly direction 9566' to Avenue 33, thence W. 60' along the N. line of Avenue 33 to beginning.

“Being the Southern California Railway right of way between Avenues 33 and 50.”

Default having been made in the payment of both principal and interest, the plaintiff prepared and delivered to the city treasurer a written demand for the sale of the premises covered by the lien of said bond and the form of an advertisement for such sale. In accordance with this demand the city treasurer caused the advertisement to be published. Plaintiff demanded that, at the time fixed for sale, the property described in the advertisement be offered for sale and sold. The defendant Workman, however, failed and refused to offer or to sell said property or any part thereof, and has ever since continued to refuse to offer said property for sale. The court finds that a certain amount is due on the bond and that plaintiff has incurred certain expenses for attorney’s fees and court costs. In response to an issue raised by a separate defense of estoppel by judgment, there is a finding as follows: An advertisement identical with the one above mentioned, so far as relates to said bond, and excepting the date of sale, was published December 18, 1901, and thereupon on about the eleventh day of January, 1902, the Southern California Railway Company, a corporation, as plaintiff, brought an action in the superior court against W. H. Workman, as treasurer of the city of Los Angeles, state of California, and E. R. Fox, defendants, to restrain defendants from selling said property, and in the complaint in said action filed, said railway company prayed judgment, among other things, that said bond be decreed to be void. In said action said Workman and Fox entered their appearances,

An appeal was taken from said judgment to this court, and upon said appeal the judgment was affirmed.

From these findings the court drew the conclusions of law that the plaintiff should take nothing by the action and that the defendants are entitled to judgment against the plaintiff for their costs. The decision of the case turns upon the effect of the judgment in Southern California Railway Company v. Workman and Fox. As is stated in the findings, defendants in that action appealed to this court. The decision affirming the judgment is reported in 146 Cal. 80 , [ 79 Pac. 586 , 82 Pac. 79 ]. The contention of the appellant is that all that was determined in that case was that the right of way, i. e.. the easement, of a railroad corporation could not be assessed and sold to defray the cost of street-improvement work, whereas the only thing demanded of defendant Workman in this case was, it is claimed, that he sell, not this right of way, but the fee, subject to the easement. If it were true that the demand here made was that such fee, separate and apart from the easement, be sold, there would be much force in appellant’s position. In the opinion of the court in the former case it is said that "it is not necessary to decide in this ease as to whether or not the fee or reversion in the land can be assessed. ... It is sufficient to say that this proceeding is for the purpose of enjoining a sale of plaintiff’s right of way—that is to

The court did not, therefore, in the former decision, determine that the fee, subject to the easement, could not be, or that it had not been assessed. The judgment there affirmed merely declared that the bond created no lien upon the right of way. It could not bar plaintiff’s right to have the fee, subject to such easement, sold.

If plaintiff had, after the decision of the earlier case, made a demand for such sale, he would have been asserting rights that had not yet been litigated. But this he did not do. Only one demand—that of December 18, 1901—is averred by plaintiff. This demand was the foundation of both advertisements, the one of December, 1901, which led to the injunction suit, and the one of August, 1906, under which the treasurer refused to sell. The advertisements, except as to date, were in the same words. Now, while the judgment in Southern California Railway Company v. Workman did not adjudicate that the fee, subject to the easement, could not be sold to satisfy the bond, it certainly did determine that the sale which Workman, pursuant to Pox’s demand, had announced his intention of making, was a sale of more than this fee, and included the easement of the railway company. The opinion of the court states that “it was evidently the intention to assess and sell the right of way as described by metes and bounds in the assessment.” If such easement had not been included in the proposed sale, there would, under the views expressed by the court regarding a sale of the fee, have been nothing to enjoin.

We find, then, that what the plaintiff in this case demanded of the treasurer was exactly what he had demanded of him in 1901—that he make a sale covering both the fee and the easement. The latter the treasurer had no right to sell, and had been enjoined from selling by a judgment binding upon this plaintiff. A compliance with the demand would have been a violation of the injunction.

The judgment is affirmed.

Angellotti, J., and Shaw,-J., concurred.

Hearing in Bank denied.