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Parker v. Reay

76 Cal. 103 Court Department One. Decision date 1888-05-07 Docket No. 9844 English

Delivered by Paterson, J.

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p. 103
[No. 9844.
Department One.
May 7, 1888.]
C. H. PARKER, Respondent, v. JOSEPH W. REAY et al., Appellants.

Headnote

Street Assessment—San Francisco — Street Crossing—Assessment Levied on Lot not Chargeable is Void.— Under subdivision 3 of section 8 of the act of April 1, 1872, an assessment for work dono on a main street crossing is void if made chargeable upon a lot or part of a lot which does not form a portion of the quarter block adjoining and cornering on. the crossing.
Id. — Separate Assessments and Demands—Invalidity oe One Assessment. — Where separate assessments are made for different portions of the work, and separate demands are made for the payment of each assessment, the invalidity of one of the assessments does not render the other invalid.
Practice—Findings — Insufficiency of Evidence — Specification of Particulars. —The sufficiency of the evidence to sustain a finding will not he reviewed unless the particulars in which the evidence is claimed to he insufficient are specifically stated. A mere specification that the “ evidence is insufficient to sustain the finding” is too general.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
The action was brought to foreclose a street assessment for work done in the city and county of San Francisco, under the act of April 1, 1872. The work consisted in constructing basalt block gutter-ways on Tyler Street, from the easterly line of Scott Street to Devisadero Street, in macadamizing the roadway thereof between the gutter-ways, and in laying granite cross-walks across Scott Street and across Seymour Avenue, at their intersection with Tyler Street. The property affected by the assessments in question was marked as lot 13 on the diagram accompanying the assessment, and consisted of a fifty-vara lot, having a frontage on Tyler Street of 137£ feet, in the middle of the block between Scott and Devisadero streets, and directly opposite Seymour Avenue. The following is a copy of the diagram, showing the situation of the lot:—
p. 104
SCOTT STREET.
Separate assessments for the work were made against the whole lot, as follows: For gutter-ways and macadam, in the sum of $647.41, and for the crossing of Scott and Tyler streets, in the sum of $62.90. The act of April 1, 1872, under which the work was done, provides in section 8, subdivision 3, that “the expenses of work done on main street crossings .... shall be assessed upon the four quarter blocks adjoining and cornering on the crossings, and each lot or part of lot in such quarter blocks fronting on such main street shall be separately assessed according to its proportion of frontage on the said main street.” The court found that the sum of $710.31 was properly charged against the lot as its proportion of the total expense of the work, and rendered judgment accordingly for the foreclosure of the lien and the sale of the lot. The defendants moved for a new trial, which was denied, and appealed from the judgment and order. The further facts are stated in the opinion of the court.
p. 105
George E. Lawrence, for Appellant.
The assessment for the crossing at Scott and Tyler streets should have been against the easterly one half of the lot, and there should have been a division of the lot on the diagram showing what portion was assessed. (Act of April 1, 1872, sec. 8, subd. 3.) The demand was for too much, and plaintiff cannot recover. (Dyer v. Chase, 52 Cal. 441 ; Schirmer v. Hoyt, 54 Cal. 280 ; Donnelly v. Howard, 60 Cal. 291 .) The assessment was not made in conformity with the statute, and is therefore void. (Act of April 1, 1872, see. 9; Dyer v. Harrison, 63 Cal. 448 .)
D. H. Whittemore, for Respondent.

1. The assessments levied against lot 13 are separately made and particularly defined in the assessment list. The lot was properly assessed the sum of $647.41 for the construction of gutter-ways and macadam. The other assessment, $62.90, for the crossing on Scott and Tyler streets, should have been made against the east one half of the lot, and the diagram ought to have shown what portion was assessed. (Stats. 1871-72, sec. 8, subd. 3, p. 810.) This portion of the assessment was void, and the demand therefor was invalid; but the assessment for macadam and gutter-ways having been made separately and for the proper amount, and the proper demand having been made, as shown by the return, the motion for a nonsuit was properly denied, notwithstanding the invalidity of the assessment for work on the crossing.

2. The specifications as to the insufficiency of the evidence are too general. That “the evidence is insufficient,—1. To sustain the first finding of fact; 2. Or the second finding of fact; 3. Or the third finding of fact,” etc.,—is not a specification of “the particulars in which such evidence is alleged to be insufficient,” within the meaning of section 659 of the Code of Civil Procedure. (Eddelbuttel v. Durrell, 55 Cal. 277 .)

p. 106
We cannot, therefore, consider the point made by the appellant, that the evidence does not support the finding as to the amount due and unpaid.

3. The findings support the judgment.

Judgment and order affirmed.

Searls, C. J., and McKinstry, J., concurred.

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