Page images
PDF
EPUB

see

the claim, and the contractor suffered a de- , Illinois Silver Mining & Milling Co. v. Raft,
fault, while the owner contested the claim.- (N. M.) 34 P. 544.
De Camp Lumber Co. v. Tolhurst, (Cal.) 34 P. Forfeiture-Burden of proof.
P. 438.

6. The burden of proving a forfeiture of a
Parties.

mining claim is upon the person alleging it-
35. In an action by a subcontractor to en- Johnson v. Young, (Colo. Sup.) 34 P. 173.
force a lien against a building for which he has
furnished materials, the contractor is a neces-

Misdemeanor.
sary party: -Estey v. Hallack & Howard Lum.
ber 06., (Colo. App.) 34 P. 1113.

See “Criminal Law," 1-3,
36. The fact that the property owner pro-
ceeded to trial without urging the necessity of
making the contractor a party does not waive

Misjoinder.
such irregularity.- Estey v. Hallack & Howard
Lumber Co., (Colo. . App.) 34 P. 1113.

Of parties, see “Parties," 3, 4

Mistake.
MINES AND MINING.

Validity of release, see "Release and Dis-
Improvements on mining claims, see "Mechan charge," 2.
ics' Liens." 26-28.

Mormon Church.
Location and relocation.

1. In ejectment for a mining claim there Escheat of property, see "Escheat."
was evidence that defendants entered on the
locus in quo in 1890, and that plaintiffs had
made the requisite annual expenditure on the

MORTGAGES.
claim during the preceding year. The court
charged that if the jury found such facts from See, also, “Chattel Mortgages;" "Fraudulent
the evidence, and that defendants unlawfully

Conveyances.”
entered and remained in possession under a hos- | Action by, mortgagee to enjoin waste,
tile claim of title until the action was com Waste."
menced, then plaintiffs are entitled to recover, Appointment of receiver after foreclosure and
regardless of whether defendants made a new before expiration of time for redemption, see
location of the claim in 1891 on the ground Receivers," 1, 2.
that plaintiff did not make the required ex- Claims against decedent's estate, see “Execu-
penditure in 1890. Held, that such charge was tors and Administrators,” 8, 9,
correct, since plaintiffs were entitled to the On homestead, heirs as parties to foreclosure,
whole of the year in which to make the annual

see "Homestead,” 3, 4.
expenditure.-Mills v. Fletcher, (Cal.) 34 P. Priority, see Mechanics' Liens," 29.
637.

Removal of buildings, information, see "Indict.
2. Rev. St. U. S. & 2324, provides that, on

ment and Information," 8.
failure to perform labor or make improvements
on a mining claim to the extent of $100 per

Lien.
year, the claim shall be open to relocation,

1. Where a purchaser of land verbally
provided that the original locators, their heirs agrees with another that, if the latter will loan
or assigns, do not resume work before such him the purchase price, the conveyance shall
relocation. Gen. St. $ 2409, provides that, if be made direct to the latter as security there
the locator of a mining claim be desirous of for and also for future advances, the convey-
taking in part of an overlapping claim which ance makes the lender a trustee and also a
has been abandoned, he may file an additional mortgagee, and he has a lien for the amount
certificate. Held, that territory abandoned un-

advanced for the purchase and for the subse
der the former provision may, under the latter, quent advances.-Campbell v. Freeman, (Cal.)
be taken by the owners of a junior location.—| 34 P. 113.
Johnson v. Young, (Colo. Sup.) 34 P. 173. Payment of taxes on mortgage by mort-

3. An additional location certificate, filed
by the locator of a claim for one of the pur-

gagor.
poses enumerated in Gen. St $ 2409, need not

2. Under Const. art. 13, § 5, declaring that
specify for what purpose it was filed.-Johnson contracts obligating a debtor to pay a tax on
v. Young, (Colo. Sup.) 34 P. 173.

money loaned, or on any mortgage, shall be
4. Where the owner of a claim relocates it void as to any interest specified therein and as
under a different name in order to protect his to such tax, a provision in a mortgage that, in
rights, and to preserve the claim from reloca- therein all payments made by the mortgagee

case of foreclosure, the mortgagee may include
tion by others until he can obtain title by deeds for "taxes of this mortgage, or the money here-
from the original owners, and work is done to

by secured," is void. Harralson v. Barrett,
protect the lode under both titles, such work
will inure to the benefit of the original claim, | (Cal.) 34 P. 342.
as afterwards deeded to him, - Johnson v. Rights of assignees - Priorities of as-
Young, (Colo, Sup.) 34 P. 173.

signees of different notes.
Adjoining claims.

3. Where notes payable at different times,
5. In ejectment by mine owners against and secured by a mortgage, are assigned to dif-
the owners of an adjoining mine, the main is- ferent persons, there is no priority of right un-
sue was whether or not a vein existed, having der the mortgage between the assignees, in the
its apex within the lines of defendants' claim, absence of express stipulation, but each is en-
which they had a right to follow downward titled to share pro rata in the proceeds of the
vertically under the superficial line of their mortgaged property. Miller v. Bank, 31 P.
claim, and within the lines of plaintiffs' claim. 712, 5 Wash. 200, explained.--First Nat. Bank
The evidence was that the shale cap overlying v. Andrews, (Wash.) 34 P, 913; Young v.
the ground in dispute, eroded on plaintiffs' Same, Id.
claim, continuing in a semicircular form onto Transfer of property- Personal liability
defendants' claim. contained no mineral, and
that the mineral occurred in the lime, and in a

of grantee.
few places between the shale and lime, but not 4. A grantee of land expressly described as
connected with the former. Held, that the subject to a mortgage does not assume the debt,
question as to the existence of such vein and so as to be liable to a personal judgment there
apex was for the jury. Lee, J., dissenting.-on.-Lang v. Cadwell," (Mont.) 34 P. 957.

[merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small]

Payment.

personally liable, and an execution mar isma 5. In an action to foreclose a mortgage, therefor. Held, that an executiva eBabet inde against the grantees of the mortgagor, it ap for any deficiency on a mortgage cale natin peared that the records showed a satisfaction judgment is entered therefor after the meta of the note described in the mortgage. Com- of the officer.-Russell v. Hank, (Utah) ar plainants produced the note, with payments of 245. interest indorsed thereon after the date of the Redemption-Sale and release of equity

. alleged satisfaction. The mortgagor alleged 14. Defendant in a mortgage foreclose in his answer that the note was paid at the made a compromise agreement with pleiz time satisfaction was recorded, by giving a whereby the latter agreed to accept a pet ? note to be secured on other property, but by the amount claimed if paid within 15 med mistake the new mortgage covered the same the purpose of the parties being stated to be property.

The new mortgage was on record a sale of the mortgaged premises after a ni when the defendants bought the land. Held, sonable time to extinguish the debt as fredly that the land was subject to foreclosure.--Smith the contract, and to save expenses of foreca v. Stark, (Colo. App.) 34 P. 258.

sale. The contract provided that the land by By cotonant-Enforcement against conveyed to trustecs, and be bp their secured ootenant.

in case defendant paid plaintiff witán 2 6. Where a cotenant ucd comortgagor has having the price paid to plaintii: that efte

months; that defendant might sell auf den in conveyed his interest in the land expressly sub- 12 and before 16 months plaintiff miste sa ject to the mortgage, and the other cotenant has the remainder at auction; that a decree ebare been obliged, in protecting his interest, to pay be entered for the full amount claimed, and a and take an assignment of the note and mort ceedings stayed until the expiration of the 1 gage, the latter's payment does not extinguish the mortgage, but he may foreclose it on the months, at the end of which time the trees other's interest.-Lang v. Cadwell, (Mont.) 34 might sell it under the decree, in which are the

should convey the unsold land to plaintif, ca P. 957.

agreement fixing the amount due should y Foreclosure.

void. Defendant conveyed the land to the map 7. A personal judgment on a note secured tees, and then negotiated a sale to H, but di by a valid trust deed is erroneous, since the se fects in the title delayed the closing of the se curity must first be exhausted. Barbieri v.

until after the 16 months during which the Ramelli, 23 P. 1083, 84 Cal. 154, followed.- trustees bad power to convey to a purchase Powell v, Patison, (Cal.) 34 P. 677.

and it was necessary to convey to pleistif:

order to give H. a good title. Plaintiff, ri Attorney's fees.

defendant's consent, conveyed the land to I
8. A tenant in common, who has been ob- at the agreed price. Held, that Civil Code. I
liged to take up a mortgage, and sues to en- 2889, which provides that "all contracts for the
force contribution thereon against his cotenant's forfeiture of property subject to lien, in cabin
interest, cannot, as part of the decree, be al- faction of a lien secured thereby, and all **
lowed attorney's fees stipulated in the mort: tracts in restraint of the right of redeartea
gage in case of suit thereon for the benefit of from a lien, are void," had no applicatia to
the mortgagee, but not paid by plaintiff in tak- such transaction.-Corcoran v. Hinkel, (011)
ing up the mortgage.--Lang v. Cadwell, (Mont.) P. 1031.
34 P. 957.

Motion,
Action for deficiency.

9. Code Civil Proc. $ 726, probibiting See "Practice in Civil Cases, " 2.
more than one action to recover a debt or For judgment on pleadings, see "Pleidin'
enforce a mortgage, does not prevent a new 40-42.
action on a note which was secured by a mort. For new trial, see "New Trial," 2, 3.
gage to recover a deficiency left on foreclosure
of the mortgage, as the amount realized on
foreclosure may be treated as a payment on

MUNICIPAL CORPORATIONS the note, and the action as brought to recover See, also, "Counties;” “Irrigation;" the balance.--Blumberg v. Birch, (Cal.) 34 P.

and School Districts." 102.

10. A complaint to recover a deficiency aft- Fixing water rates, see "Mandamus." 5. er foreclosure of a mortgage securing a note, Injunction against passage of ordinare, men which shows the foreclosure and the fact that

*Injunction," 4. a deficiency resulted, states a good cause of Local improvements, assessments for, me "The action, whether it is based on the note, or on

stitutional Law," 24. an indebtedness resulting from the foreclosure due

process of law, see "Constitutional and deficiency.-Blumberg v. Birch, (Cal.) 34 P. Law," 18. 102.

-power to assess property of state fer, per Personal judgment for deficiency. Special laws, see "Constitutional La77" 7, 8

“States and State Officers," 8. 11. Where, in an action to foreclose a mort- Territorial cities, limitation of indebtednes, see gage, the personal liability of one of the de

"Territories." fendants was alleged, it was error to strike out the portion of the decree providing for a Petition for formation of sanitary disdeficiency judgment if the property mortgaged trict. failed to sell for enough to satisfy the debt, though the complaint contained

po express

1. The presentation of a petition to the prayer for such relief.-Russell v. Hank, (Utah) board of county supervisors praying for li 34 P. 245. 12. In an action to foreclose a mortgage, for the formation of such a district

, 4

manifestation of the desire of the petiticent in Wisich service is made

by publication only, quired by st. 1891, p. 223, and the police the court has no jurisdiction to enter a per- need not contain an express statement of sonal judgment for a deficiency.-Blumberg v.

a . desire. -Woodward . Fruitrale Sanitary Birch, (Cal.) 34 P. 102.

Dist., (Cal.) 34 P. 239.
Execution for deficiency.

2. A petition for the formation of such a 13. 2 Comp. Laws, $ 3460, provides that district signed by 25 residents and freeboldan there shall be but one action for any debt

se of the proposed district

, as required by & cured by mortgage; and, where it appears by 1891, p. 223, is not vitiated by the addition the return of the officer' making a sale under signatures of other persons not possessing the decree that there is a balance still due, a requisite qualifications. - Woodward F. For judgment may be entered against defendant 1 vale Sanitary Dist., (Cal.) 34 P. 239.

[merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

onexation of contiguous towns. Ordinances and resolutions.

3. Act April 11, 1893, § 10, relating to the 10. Where all the members of the council
nnexation of contiguous towns and cities, is were present at a special meeting, except one,
ot obnoxious to Const. art. 10, $$ 3, 7, article and a resolution was adopted unanimously,
1, $81, 8, or article 15, § 12, relating to taxa- there is no error in admitting testimony of the
on and public indebtedness.-Town of Val- clerk of the council that he served a proper
erde v. Shattuck, (Colo. Sup.) 34 P. 947. notice of the meeting on all the members, the

notice not having been entered of record.--Gill
imendment of charter--Procedure. v. Dunlıam, (Cal.) 34 P. 68.
4. City Charter Spokane, providing that

11. The consolidation act of 1856, $ 68, re-
ny proposed amendment must be submitted quiring certain ordinances of the board of su-
The city council at one meeting, and resub- pervisors to be presented to the mayor for ap-
zitted "at the second regular meeting of the proval before they take effect, does not make
ouncil thereafter," before submission to the the mayor a member of the board of super-
lectors for adoption, does not make an amend- visors, as a “governing body."-Jacobs v. Board
nent invalid because not resubmitted till after Sup'rs City and County of San Francisco, (Cal.)
the second regular meeting of the council" | 34 P. 630.

-ubsequent to that at which it was first sub 12. The constitutional requirement that an
Taitted.-Pierce City Clerk of Spokane, ordinance fixing water rates should be passed
Wash.) 34 P. 428.

by the board "in the manner that other or-

dinances or legislative acts or resolutions are
2ncorporation under void act-Effect of passed by such body" does not render the may-
reincorporation.

or's approval of the ordinance necessary to its
5. Act March 27, 1890, provides that noth- among those required by Consolidation Act, 8 68,

validity, as such ordinance is not included
ng therein shall prevent the reincorporation to be presented to the mayor for approval.
hereunder of towns which had attempted to Jacobs v. Board Sup'rs City and County of
ncorporate under the void act of February 2, San Francisco, (Cal.) 34 P. 630.
888, and empowers such towns to incorporate
inder section 4, relating to reincorporations. Subjects of municipal legislation.
Teld, that such incorporation would not validate 13. An ordinance prohibiting the location of

prior street-grading assessment, made under a livery stable in any block in which a school
*!*he supposed sanction of the act of 1888.-Town building is situated, or in any block which is

of Melical Lake y. Smith, (Wash.) 34 P. 835; opposite to a block in which a school building is
Djame v. Landis, Id. 836.

situated, without reference to the manner in

which such stable is constructed, kept, or used,
az Method of government-Election of al- and without further specifying the distance,
derman.

is unreasonable, and cannot be upheld under a
6. The state constitution does not impera- general or incidental grant of authority to the
ively require local aldermanic representation in city:- Phillips v. City of Denver, (Colo. Sup.)
owns or cities.-Town of Valverde v. Shat- 34 P. 902.
cuck, (Colo. Sup.) 34 P. 947.

Enforcement.

14. Since Gen. St. c. 19, par. 89, authorizes
Submission of questions to voters. the commitment, by the police judge of a city

7. Acts 1891, p. 261, provides that when of the second class, of a person convicted of
1 city council deems it' advisable to borrow violating a city ordinance, until he comply
poney or create an indebtedness for municipal with the judgment and pay costs, it is imma-
purposes greater than 142 per cent of the city's terial that the ordinance under which the per-
Faxable property, it shall provide therefor by son is convicted contains no provision for such

Ordinance specifying the amount desired to be commitment.-In re McCort, (Kan.) 34 P. 456.
Threated, and the same shall be submitted to 15. Gen. St. c. 19, par. 68, provides that any

the electors of such city at a special election. person convicted of violating a city ordinance,
Held, that where such an ordinance submitted and committed for nonpayment of fine and
wo distinct propositions,-one to fund $20,000 costs, may be compelled to work on the streets
of old debts, and the other to borrow $5,000 and public grounds at such rate per day as the
for future purposes,--and only one ballot was city council may prescribe. A city ordinance
used, so that the voter had no opportunity to likewise provided that such person “may” be

express himself separately as to each, the whole compelled to do such work, for which he shall
selection was void. --McBryde v. City of Monte be credited one dollar for each day's work
sano, (Wash.) 34 P. 559.

done. Held, that there was no obligation to
6. 1 Gen. St. $ 518, provides for the sub- so employ the person committed, and he could
mission of charter amendments to the voter by not claim a credit for time during which he
numbers. City Charter Spokane provides for was not so employed.--In re McCort, (Kan.)

the submission of amendments by the city 34 P. 456.
council to the electors for adoption. Held,

that the fact that amendments voted on were Who to fix water rates.
not numbered when the city council concurred 16. Const. art. 14, § 1, providing that water
therein did not affect their salidity, they hav- rates "shall be fixed annually, by the board of
ing afterwards received from the city clerk supervisors or other governing body of such city
numbers by which they were published in the and county, by ordinance or otherwise, in the
election notices, and referred to on the printed manner that other ordinances or legislative acts
ballots, and it not appearing that the result of or resolutions are passed by such body," grants
the election was altered by the absence of the to the board of supervisors of the city and
numbers when the proposed amendments were county of San Francisco the sole power to fix
concurred in by the council.---Pierce v. City the water rates in such city and county.-Ja-
Clerk of Spokane, (Wash.) 34 P. 428.

cobs v. Board Sup’rs City and County of San
9. A recital in an ordinance submitting a Francisco, (Cal.) 34 P. 630.
proposition to bond the city for the establish-
ment of an electric lighting plant, that said Fire department-Appointment of chief.
ordinance was passed in pursuance of a certain

17. One elected chief of the fire department
act, is mere surplusage; and where the act re- of a city of the fifth class under an ordinance
cited is no longer in force, but is substantially providing that he shall be elected annually by
re-enacted by the repealing act under which the members of the department, is not entitled to
ordinance must in fact have been adopted, there hold the position for the year, an ordinance
is no ground for an injunction on the bond is having in the mean time been passed, to take
fue.-Lewis v. City of Port Angeles, (Wash.) effect immediately, providing for the appoint-
34 P, 914.

ment of the chief of the fire department by the
7.34P.--75

[ocr errors]

.

board of trustees.-Higgins v. Cole, (Cal.) 34 P. / same dimensions as the culrert built by se 678.

city. This drain became obstructed 18. Under an ordinance providing that the it dammed up the water of the creek, , chief of the fire department shall be appointed plaintiff's property, and caused damage annually by the board of trustees, to hold office that the fact that the city permitted the 1 for a year, or until his successor is appointed company to join its drain to that con: and qualified, the trustees may remove him and by the city does not render the city liste appoint a successor within the year.-Higgins v. plaintiff.-City of Kansas City v. Brady, is Cole, (Cal.) 34 P. 678.

34 P. 884. Contracts.

Public improvements. 19. The lighting of streets by electric arc 27. A resolution to pave a street, which lights placed above the intersections of streets fers by number to certain ordinances for is not *street work,” within Mun. Corp. Act, 8 manner in which the work is to be done, i: 777, as amended by St. 1891, p. 54, providing ficient, without reciting the provisions of that in the erection of public buildings, and in ordinance.-Williams v. Bisa gno, (Cal) 34 F all street and sewer work, it shall be done by 610. contract let after notice by publication.-Elec 28. Act March 14, 1889, amepding 4 tric Light & Power Co. v. City of San Ber- March 18, 1885, in relation to improveDes! nardino, (Cal.) 34 P. 819.

streets, provides (section 3) that before e Control of streets.

ing improvements the council shall pass in 20. No lapse of time can give a prescriptive and posted for two days in the manner in

olution of intention, which shall be pabib. right to maintain a ditch across a street in scribed by section 34." The latter sectin my such way as to render it unsafe or inconvenient vides that resolutions required to be puld for public travel, since under Rev. St. $ 3620, shall be published in a newspaper, etc.: puts maintaining such a ditch without a bridge or ed, however, that in case there is no new other safe and convenient way of crossing they shall be posted and kept posted for would be a nuisance, and under section 3030 no lapse of time can give a right to maintain that a resolution which is published Dees

same time as required for publication. B a nuisance.-City of Lewiston v. Booth, (Idaho,) also lie posted.-Gill v. Dunham, (Cal.) 34 P.* 34 P. 809.

29. Though acts which the statute reja Power to extend streets over tide to be performed before making a publica lands.

provenient are conditions precedent to the 21. The right given cities by Act March 24, power to levy a tax on the property of es 1890, “to project or extend” their streets over only a substantial compliance with the state tide lands is merely to continue an existing is required; and the assessment is not fi'is street in the same direction and with the same by want of technicality of expression, or per width.-Seattle & M. Ry. Co. v. State, (Wash.) cision of statement as to the work, which is 34 P. 551.

not affect the essential object in view.-G.

Dunham, (Cal.) 34 P. 68. Liability for torts.

30. Under Acts 1889, p. 159, relating to 22. A city is only liable for acts of its offi- lic improvements, and providing that plans el cers performed in the line of their duties, and specifications shall be furnished to the city coa the fact that a city engineer plans a defective cil, if required by it, by the city engineer, drain, to be constructed by private parties, not specifying the mode of requiring ther, the which caves in, and causes injury, does not im- fact that they were prepared by the egge. pose any liability on the city. --City of Kansas and were on file, and approved by the comin City v. Brady, (Kan.) 34 P. 884.

is sufficient evidence of their authenticity. -6 Defective streets.

v. Dunham, (Cal.) 34 P. 68. 23. A city permitted a lot owner to make a scribed money or gave bond to a city to e

31. The mere fact that individuals rebdangerous cellarway in a sidewalk and street in front of his house, which he subsequently tribute to the expense of laying out a stat covered with a frail trapdoor, that was defect will not vitiate the proceedings, or prove ebe: ive in construction, and around which no safe the land was taken for the accommodation guards were placed. It remained in this con private persons, and not for a public ose as dition for some time, when a pedestrian stepped of Santa Ana v. Harlin. (Cal.) 34 P. 224. upon the trapdoor, which broke down, and pre

Notice. cipitated him into the excavation below. Held, 32. Under Comp. Laws 1888, § 1800, repair that the city could not relieve itself from re- ing that the city council give notice of ico sponsibility because the opening was made and ' tion to levy taxes for public improres. covered by the lot owner, since it was its duty naming the purpose, describing the inpure to supervise the work of covering the cellarway, ment, the district to be affected, and the end and to cause the use of suitable precautions to timated cost, and designating the time for bear prevent accidents. - City of Abilene v. Cow- ing objections, a notice that the council intes perthwait, (Kan.) 34 P. 795.

ito "pave and macadamize

Tweets 24. Where a diligent performance of the Fifth street, from the west line of W. atetea duty of supervision in the construction of a to the west line of V, avenue," which shall be covering over a perilous excavation in a street known as "Paving District No. 2;" that it would bring knowledge to the officers of a city “boundaries of the district are lines runnin of the dangerous chiaracter of the same, a want 150 feet back and parallel with the outer lige of such knowledge is negligence.-City of Abi- of each side of the streets, on each and even lene v. Cowperthwait, (Kan.) 31 P. 795.

block, and for the full length thereof;" the: 25. A petition for injuries from a defective the estimated cost is a certain sum; that love sidewalk, alleging that the walk was negligent. taxes will be levied on the real estate in the Įy constructed, and that defendant city, well district for the benefits; and that it will tak: knowing this, had permitted it to remain in a objections on a certain day at a giren hour.-is defective condition until after the accident, sutlicient.--Armstrong v. Ogden City, (Utah, 84 charges the city with notice of the defect.-P. 53. Lewis v. City of Eskridge, (Kan.) 31 P. 892.

Objections by property owners. Defective drains.

33. Since the statute requiring notice by the 25. A city, in grading an avenue, built an common council of intention to levy taxes for embankment across a creek, and constructed improrements provides that if written ohia a culvert through it for the passage of the tions, signed by one-half the property ore stream. A land company also placed an em- be not filed at or before the time fised farbe bankment on its land adjacent to the avenue, bearing, the city, council shall be deemed sa through which it constructed a drain of the have acquired jurisdiction to order the iupture

.

[ocr errors]

ment, a complaint to enjoin a levy of taxes forties in the action of the city council, which do

an improvement, which alleges that objections not affect their jurisdiction.-Wilson v. City of
4 were filed by such a number of property own-Salem, (Or.) 34 P. 9; Id. 691.

ers, is not demurrable, since the demurrer ad 41. A resolution to pave and curb a street
mits the allegation, and in such case the coun- required the city engineer to furnish the coun-
cil could have no jurisdiction to order the ini- cil with estimates. The estimates, in addition
provement.-Armstrong 1. Ogden City, (Utah,) to the items of paving and curbing, stated, un.
34 P. 53.

der the head of "grading,” that 66 cubic yards
Contracts for improvements.

of excavation and 42 cubic yards of embank-

ment would be required. The grading, if taken
84. A requirement in a street-paving con. from the entire surface of the street, would in.
tract that the contractor shall keep the street volve the removal of 1 5-7 inches in depth.
in repair for five years imposes an additional Held, that it would be assumed, from the small
burden on the property owners, and so vitiates amount of the so-called "grading" required,
the assessment, unless expressly authorized by that the street had been graded, and that the
statute. Brown v. Jenks, (Cal.) 32 P. 701, grading mentioned in the estimates was merely
followed. — Excelsior Pav. Co. Leach, the removal of small inequalities in the surface,
(Cal.) 34 P. 116.
35. Testimony that the requirement of re-curbing was not invalid on the ground that it

and therefore an assessment for the paving and
pairs did not enhance the amount of the suc required grading, which was not mentioned in
cessful bid is worthless against the objection the resolution. Williams v. Bisagno, (Cal.) 34
of additional burden, since it may have en-
hanced other bids. Brown v. Jenks, (Cal.) 32 P. 640.
P. 701, followed.-Excelsior Pav. Co. v. Leach,

Enforcement of assessments.
(Cal.) 34 P. 116.

42. In an action by an assignee to enforce
Necessity of taking bond from con- an assessment for a public improvement, which
tractor.

was against a certain lot, but to an unknown
36. Under 1 Gen. St. § 2415, (Laws 1887-88, scribes the lot, also states that the assess-

owner, the fact that the assignment, which de
p. 15,) requiring municipal corporations con-
tracting with any person to do any work of not render it inadmissible, as the name of the

ment was to a certain person as owner, does
any character which, if performed for an indi- alleged owner may be rejected as surplusage.-
vidual, a right of lien would exist under the Gil v. Dunham, (Cal.) 34 P. 68.
law, or make any improvement for such mu-

43. The lien of an assessment for a public
nicipality, to take a bond conditioned for the improvement is merely an incident of the de
payment of laborers, mechanics, and material
men, a city contracting with a person to grade mand, and passes with an assignment thereof.
only required to do so where the work to be fendant, in an action to enforce a street assess-
a street is not required to take a bond, as it is -Gill v. Dunham, (Cal.) 34 P. 68.

44. A recital in the record on appeal by de-
done is such that, if done for an individual, a ment, that plaintiff produced two witnesses
lien would attach'in favor of laborers and oth: who 'testified that the notice of the improve-
ers, and no lien would attach, under Gen. St. $
1663, for labor performed on a street for an in ment "was posted at the time and in the man-
dividual, Dunbar, C. J., and Scott, J., dis- ner required by law, both as to the number
senting..-Clough v. City of Spokane, Wash.) of said notices, the place of posting, and the
34 P. 934.

time during which the same remained posted,”

sufficiently shows that the law as to posting the
Assessment of benefits.

notice was complied with.-Williams v. Bisag-
37. St. 1889, p. 157, $ 7, subd. 8, provides no, (Cal.) 34 P. 640.
that "where any work *

is done
either or both sides of the center line of any

Remedies for erroneous asso88 -
street for one block or less, and further work ments,
opposite to the work of the same class already 45. A sufficient petition was presented in
done is ordered to be done to complete the un. May, 1887, to the mayor and councilmen of
improved portion of said street, the assessment Kansas City, Kan., for the grading of a part
to cover the total expense of said work so or- of a street at the cost of the abutting property
dered shall be made upon the lots or portions
of the lots only fronting the portions of the owners, under Sess. Laws 1887. c. 99, § 4, and
work so ordered.”

on September 22, 1887, an ordinance was duly
Held, that where a street

im-
was ordered to be paved' for one block, where passed and published authorizing such
not already so paved, the assessment was prop- ed in accordance therewith, and the cost there-

provement. Subsequently the street was grad-
erly made on those lots, only, on which the of ascertained against each lot, according to
work done abutted. McDonald v. Conniff, the appraised value of the lots contained in
( Cal.) 34 P. 71.

38. St. 1889, p. 166, provides that a diagram each block separately; and notice was given
shall be attached to the assessment, "exhibit- to the owners of abutting property on the 10th
ing each street on which any work' has been of January, 1858, of such special assessment,
done, and showing the relative location of each and that it could be paid in 30 days. Like no-
lot to the work done, numbered to correspond tice was given on the 25th of August, 1888,
with the numbers in the assessments, and show- for payment of the improvement on or before
ing the number of feet fronting, or number of September 27, 1889, and the plaintiffs made
lots assessed for said work,” Held, that the no objection to such assessment, and did not
diagram need not show on what portion of the attempt to enjoin or otherwise interfere with
street the work was done.--McDonald v. Con- its collection until August, 1891, and at that
niff, (Cal.) 34 P. 71.

time only made a demand on the mayor and
39. Under a city charter making each lot councilmen for a reapportionment of the assess-
or part liable in whole or in part for the cost, ment on the whole length of the street so im-
as the council may determine, of an improve proved, according to the provisions of the stat-
ment on the half street in front thereof, and ute, delaying legal proceedings to compel such
providing that the council may assess on each reapportionment until August 22, 1892. Held,
lot or part thereof liable therefor its proportion that as plaintiffs at one time had a plain and
ate share of said cost, it is proper to make an adequate remedy by injunction to prevent the
assessment by the front foot. Wilson v. City of collection of the erroneous assessment, and as
Salemn, (Or.) 34 P. 9; Id. 691.

they were guilty of great laches in making
40. An abutting property owner, with actual their demand for a reapportionment, manda-
knowledge that the work is being done, cannot mus would not be granted to compel such reap-
wait till the completion thereof to object to portionment.--Simpson v. City of Kansas City,
the method of assessment or other irregulari. (Kan.) 34 P. 406.

[ocr errors]

on

[ocr errors]
« PreviousContinue »