Mayo

Miller v. Mayo

Good Law
1891 Cal. LEXIS 734·88 Cal. 568·26 P. 364
Supreme Court of CaliforniaApril 2, 1891No. 13978California799 words

Opinion

Lead Opinion

This action was brought to foreclose a lien for a street assessment upon real property of the defendant. A demurrer was filed to the complaint, which was overruled and answer filed. Trial was had, resulting in a judgment for the plaintiff, as prayed for. From that, and an order denying a new trial, the appeal is taken.

1. The demurrer to the complaint should have been sustained. Section 7 of the act of March 18,1885, under which the work was authorized, provides that “ the expenses incurred for any work authorized by section 2 of this act .... shall be assessed upon the lots and lands fronting thereon, each lot or portion of a lot being separately assessed in proportion to the frontage.” The complaint herein alleges “ that immediately after the completion of said street work, said street commissioner proceeded to and did make an assessment upon the property benefited by said street improvement.” This was not a compliance with the statute, and although it may be a fact that the lots and lands fronting upon the improvement was the only property which was benefited thereby, yet for the purpose of alleging a cause of action, the complaint should have alleged that the assessment was…

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