Bassett v. Enwright

Norton, J. delivered the opinion of the Court Field, C. J, and Cope, J. concurring. [639] This is an action brought to recover of the defendant, as owner of a lot of land situate at the south-east corner of Bush and San-some streets, in the city of San Francisco, the amount assessed to Mm as such owner for repairs done on the north-west half of Market street, at the point where it is joined by Battery street. The complaint alleges that the space formed by the junction of Market and Battery streets had been laid out, graded and planked, and that the place formed as aforesaid is a space formed by the junction of two streets terminating at the same point, according to the provision of section thirty-seven- of the Consolidation Act. For answer to this allegation the defendant says, that the space formed by the junction of Market and Battery streets, as mentioned in the complaint, is not formed by the junction of two streets terminating at the same point, within the true intent and meaning of the thirty-seventh section of the Consolidation Act. The appellant claims, under the authority of the case of Busenius v. Coffee, (14 Cal. 91) that the material allegation of the complaint as to the manner in which the space in question is formed is not denied by this answer. But the plaintiff obviously supposed that the material allegation to enable him to maintain this action was, that the space was formed by the junction of two streets terminating at the same point. He apparently did not feel authorized to state this fact in direct terms, and therefore having stated, by way of introduction, that a certain space formed by the junction of two streets had been laid out, etc., he then avers that the space so formed is a space formed by the junction of two streets terminating at the same point, according to section thirty-seven. The answer meets this allegation. The expressions “ according to,” and “ according to the true intent and meamng of,” signify the same thing, and if a material issue is not presented, it is because the material fact was not directly alleged. The Court below finds as the fact, that Battery street intersects and terminates at Market street, but that Market street does not terminate at that point of intersection; and under this finding the space in question cannot, without violence to the meaning of plain language, be held to be such a space as is intended by that portion of section thirty-seven, which speaks of a space formed by the [640] junction of two streets terminating at the same point. It would more readily fall within the meaning of a space formed by the junction of two or more streets mentioned in the first sentence of that section; but the expression there, as is apparent by the context? is intended to be synonymous with street crossing, the expenses of which are to be defrayed by the quarter blocks cornering on it, and there being in this section no provision for charging the lots on the side opposite the intersecting street, and no authority for limiting the space formed by the junction of two streets to one-half of either of the streets. It appears, therefore, that as the law stood when these repairs were ordered, there was no provision applicable to the space in question, unless the expenses could be charged as local repairs, under section fifty-six, solely upon the lots on the south side of Market street, and which is not the location of defendant’s lot. As the defendant’s lot was not liable to be assessed at all, he was not a party directly interested in the contract, work or assessment, within the meaning of section forty-five, and was not bound to appeal from the assessment, pursuant to the' provisions of that section. Although assessed, and in that sense he might be said to be interested in the assessment, we cannot hold this section to mean that a mere stranger to the locality, and who might have no suspicion that he had been assessed until too late to appeal, should be cut off from his defense. Judgment affirmed.