Rowell

I dissent. Section 1191 of the Code of Civil Procedure is a part of the chapter of that code relating to mechanics’ liens. The provisions conferring a lien upon a lot for work done in connection therewith in the adjoining street were first incorporated into this section by the amendment made in 1885. There is much ground for the contention that there was no intention by this amendment to give a lien upon the lot for any work except for private improvements made for the benefit of the particular lot. It is a great stretch of construction to hold it applicable to public improvements such as a public sewer composing part of a general system for the town or city. But for the purposes of this -case it may be conceded that in a proper case, where the owner of a lot requests the construction of a public sewer in the street abutting upon the lot, the lot would, under this section, be subject to a lien for its proportional part, according to frontage, of the total cost of the sewer constructed at the owner’s request. If by the complaint in this action it •had been made to appear either that all of the owners of lots fronting upon the proposed system of public sewers had ..joined in the…

In this case the superior court sustained .a general demurrer to the complaint, and, upon the plaintiffs declining to amend, entered a final judgment for the defendant, from which plaintiffs appeal. It appears from the complaint that the board of trustees of the town of Emeryville adopted a plan or system of sewers for the town, and that the plaintiffs entered into a written contract with the defendant and other lotowners by which they agreed to furnish the material and construct the whole system, together with the necessary Y branches, manholes, lampholes, etc., according to the plans and specifications of the town engineer as approved by the board of trustees, and to the satisfaction. of the engineer and said board; that the defendant and other owners of lots upon their part agreed in consideration of the performance of this contract to pay to the plaintiffs the sum of forty-five cents per front foot, according to their frontages set down with their signatures to the contract and representing the amounts of their individual frontage directly along the lines of the proposed sewers. It was stipulated that said rate of forty-five cents should include all manholes, lamp-holes,…