Wilcox v. Engebretsen

This is an action by an abutting property-owner to enjoin the city council of San Diego and Engebretsen, as contractor under a street-grading contract, from proceeding to reduce the street surface in front- of the plaintiff’s property to the established grade. It is alleged that if the level of said street is made to conform to the established grade, as proposed, the plaintiff’s property, at the east end, will be fifteen feet above the level of the street and that, at the west end, the street will be eleven feet higher than the surface of his property, and that the consequence of the doing of the work will be to interfere with and impede plaintiff’s ingress and egress from the property and thereby cause great injury and damage thereto. The official grade to which the street is to be made to conform is not the grade originally established, but is a grade claimed to have been established by an ordinance of the council purporting to change the previously established grade. The effect of the change proposed is to reduce the

The proceedings to change the grade appear to be invalid. The allegations of the complaint are admitted by the demurrer to be true. The proceedings were taken under the act of March 9, 1893 (Stats. 1893, p. 89; Deering’s General Laws of 1909, p. 1307). Section 38 of this act provides that the city council shall have power to change or modify the grade of any public street, and that, before ordering such change, it shall pass an ordinance or resolution of intention to do so and shall publish the same in a newspaper for ten days and post notices thereof for five days. It then proceeds as follows: “If no objection to the said proposed change . . . shall be filed with the clerk of the council within thirty days from the first publication of the ordinance or resolution of intention hereinbefore mentioned, the city council shall have power to declare such grades to be changed and established in conformity to said ordinance or resolution; provided, that no change of an established grade shall be ordered except on petition of the owners of a majority of the property affected by the proposed change of grade.”

The resolution of intention was passed on January 20, 1908, and the first publication thereof was on January 24, 1908. The thirty days allowed for filing objections would have expired on February 23, 1908, but for the fact that that day fell on a Sunday. The time was thereby extended to February. 24th. (Pol. Code, sec. 13; Civ. Code, sec. 11; Code Civ. Proc., sec. 13.) The decision in Derby v. Modesto, 104 Cal. 522 , [ 38 Pac. 900 ], does not hold to the contrary. The plaintiff and others interested filed written objections to the change of grade on February 24, 1908. If the filing of objections were necessary to the point made in opposition to the resolution, these objections were filed within the time allowed by law for that purpose.

The objections stated were: 1. That the public interest and

The ordinance declaring the grades changed in conformity with the resolution of January 20th was passed on July <20, 1908, five months after the filing of the aforesaid objections. It is claimed by the defendants that the action of the council in declaring the grade changed was, in effect, an adjudication by it that the petition for such change was in fact signed by the necessary majority of the owners, and that such adjudication is conclusive. In support of this claim counsel cite Spaulding v. Homestead Assoc., 87 Cal. 40 , [ 24 Pac. 600 , 25 Pac. 249 ]; People v. Los Angeles, 133 Cal. 338 , [ 65 Pac. 749 ] ; German etc. Soc. v. Ramish, 138 Cal. 130 , [ 69 Pac. 89 , 70 Pac. 1067 ]; and Chase v. Trout, 146 Cal. 370 , [ 80 Pac. 81 ]. In opposition to this claim plaintiff cites Mulligan v. Smith, 59 Cal. 206 ; Kahn v. Board, 79 Cal. 396 , [ 21 Pac. 849 ] Zeigler v. Hawkins, 117 U. S. 683 , [ 6 Sup. Ct. 919 , 29 L. Ed. 1019 ], and Dyer v. Miller, 58 Cal. 585 . These apparently conflicting decisions make it necessary to deal with the question at some length.

It is necessary at the outset to state some fundamental distinctions which have not always been noted and which serve to explain some of the decisions. Where a statute requires such a petition to be filed as a condition precedent to the making of such order, the board or council has no power to make the order until a sufficient petition has been filed. This is settled by the cases of Turrill v. Grattan, 52 Cal. 97 ; Dyer v. Miller, 58 Cal. 585 ; Mulligan v. Smith, 59 Cal. 206 , and Kahn v. Board, 79 Cal. 396 , [ 21 Pac. 849 ], and as to that point there is no dispute. But the necessity for such petition is the creature of the statute. It is not required by any constitutional

In German etc. Society v. Ramish, the declaration that the

In this case, as we have seen, objections to the sufficiency of the petition in this respect were filed, but no hearing thereon was allowed. The part of the statute above quoted does not require or provide for such hearing. There is no provision declaring that any subsequent act, ordinance, or order shall be final or conclusive as to such objections. If the resolution of intention merely calls for the change of the official grade and does not declare an intention to do the work of grading the street to the proposed grade, and no claim for damage as provided in section 39 is filed, the simple making of the order, after the expiration of thirty days, terminates the proceeding and establishes the official grade. Section 39 provides for the filing-of a petition, within the thirty days, by any property-owner, claiming that his property will be damaged “by the proposed change if completed.” Thereupon commissioners must assess the benefits, damages, and costs (sec. 40)] and report the assessment to the council (see. 44).

In this state of the law, the authorities on the point in question are clear. The establishing of the official grade affects the property abutting thereon. Whatever conditions for the protection of the property-owner are prescribed by the statute, as essential to the power of the local board to make the change, must be complied with, or the power will not exist. If no mode is provided for the ascertainment of the existence of such conditions precedent and for the adjudication thereof, the jurisdictional fact must remain open for inquiry whenever the validity of the order is lawfully called in question.

Mr. Dillon states the rule as follows: “Where the power to pave or improve depends upon the consent or petition of a given number or proportion of the proprietors to be affected, this fact is jurisdictional, and the finding of the city authorities or council that the requisite number had consented or petitioned is not, in the absence of legislative provision to that effect, conclusive; the want of such assent makes the whole proceeding void, and the non-assent may be shown as a defense to an action to collect the assessment, or may, it has been held, be made the basis of a bill in equity to restrain a sale of the owner’s property to pay it,” citing a large number of authorities.

The case of Miller v. Amsterdam, 149 N. Y. 288 , [ 43 N.

Upon these authorities and for these reasons we hold that, according to the allegations of the complaint, the change of grade was not legally established. Consequently, a subsequent proceeding to grade the street to that grade would be unauthorized. As the defendant may, however, take issue on this allegation and plaintiff may not establish it on the trial, we think it necessary to consider a question arising upon the subsequent steps in the proceedings.

The commissioners to whom was referred the plaintiff’s

The statute authorizes an assessment upon the property benefited to pay the damages awarded, and provides that when the money is collected thereon, the owners to whom damages are allowed are to be notified that they will be paid accordingly, and that if any such owner refuse to accept the amount in satisfaction of his damages, the city may have the damages assessed by regular proceedings in condemnation under the Code of Civil Procedure. No money was ever tendered to plaintiff in satisfaction of the damages and no condemnation suit was begun against him. In March, 1909, the proceeding to do the work of reducing the street to the grade claimed to have been established by the aforesaid order changing the grade, was begun, and under it the defendants now propose to do that work. The theory of the defendants is that plaintiff is hound by the report of the commissioners, as confirmed by the council after he was fully heard in regard to it, declaring that he was not damaged, and that when the report, as confirmed, is to the effect that no damage will be caused by the grade established, no suit in condemnation'or payment of damages is necessary before doing the work which may cause such damage.

This theory cannot be upheld. The statute is intended to provide a mode by which the damage to private property caused by the public improvement may be ascertained to the satisfaction of the owners and paid over to them, without the delays consequent upon a suit at law. If such mode succeeds and the owner accepts the amount awarded, that is an end to the matter. The legislature, however, understood the force of the constitutional provision that “private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the

It is claimed that there is no sufficient allegation that the plaintiff’s property would be damaged by the proposed work. The actual amount of damage in money is not stated, but it does appear from the facts stated that the elevation of the street with respect to plaintiff’s property will be seven feet lower at one end and five feet higher at the other end than it would be if the street conformed to the previously established grade, and that in consequence thereof plaintiff’s ingress and egress to and from the lot will be impeded and interfered with. This sufficiently shows that the plaintiff will

The judgment is reversed.

Angelíotti, J., and Sloss, J., concurred.