Citations
- 160 Cal. 9
Full opinion text
SHAW, J.
This is an appeal by the defendants .from an order denying their motion for a new trial. The action was one to quiet title to two lots in the city of Hanford. The defendants claim a lien on the property by virtue of their ownership of certain bonds for street improvements issued under the provisions of the act of 1893 and amendments of 1899 thereto, entitled “An act to provide a system of street improvement bonds . . . etc.” (Stats. 1893, p. 33; Stats. 1899, p. 40.) The court below held that the proceedings leading up to the issuance of the bonds were void, and gave a judgment for the plaintiffs, declaring that the defendants had no interest in the land.
The resolution of intention, and the resolution ordering the work done, described the proposed improvement as follows: “That Eighth Street ... be paved with asphaltic pavement on an asphalt concrete foundation, and curbed with granite curbing, all in accordance with the plans and specifications on file in the office of the city clerk of the city of Hanford ...” The specifications referred to were those contained in a general ordinance (No. 131) prescribing specifications for the construction of the several varieties of improvements of streets and sidewalks in the city of Hanford, whether paved by means of special assessments upon private property, or out of the general funds of the city.
The principal objection to the.validity of the proceedings upon which the bonds were issued is based upon the provisions of section 6 of the ordinance. Section 1, which is introductory in character and is given under the sub-head “Declaration,” provides that “all work or materials required in grading, paving or improving any street . . . shall be performed, or furnished in accordance with these specifications and plans.” Section 6 is as follows:
“safeguards.”
“The contractor shall use all necessary precautions to prevent accidents to persons and property by providing sufficient fences, guards, barriers, temporary bridges, lights, etc., and shall be responsible for all loss, damage or injury to persons, property or the work due to the nature of the work or the action of the elements.”
It is contended that this specification is identical in effect with those declared to be fatal to the validity of such assessments by the decisions in Blochman v. Spreckels, 135 Cal. 662, [57 L. R. A. 213, 67 Pac. 1061]; Goldtree v. Spreckels, 135 Cal. 666, [67 Pac. 1091]; Woollacott v. Meekin, 151 Cal. 701, [91 Pac. 612] ; Hatch v. Nevills, 152 Cal. 16, [95 Pac. 43]; Van Loenen v. Gillespie, 152 Cal. 222, [96 Pac. 87]; Stansbury v. Poindexter, 154 Cal. 709, [129 Am. St. Rep. 190, 99 Pac. 182], and True v. Stansbury, 155 Cal. 534, [102 Pac. 263].
We cannot agree with this contention. The portion of the specification which was held fatal to the assessment in Blochman v. Spreckels, 135 Cal. 662, [57 L. R. A. 213, 67 Pac 1061], was as follows: “All loss or damage arising from the nature of the work to be done under these specifications shall be sustained by the contractor.” It was said that the other specifications might reasonably be held to refer exclusively to damage occurring from acts done in the progress of the work and to make the contractor responsible merely for damages caused by his negligence in prosecuting the work. But as to the clause above quoted, the court said that it had a “broader meaning and looked to damage which might arise out of and subsequent to the completed work—practically any damage for which the city would be liable which might originate in ‘the nature of the work to be done.’ ” It is perfectly clear from a reading of the opinion that if this meaning had not been attributed to the clause quoted, the assessment there considered would not have been held to have been invalidated by the specification in question. The specifications involved in the other eases above cited were each and all held to be the same, in effect, as that considered in the Blochman case. We think the specification here under consideration contains language which, when taken in connection with the introductory clause and considered in the light of the purpose for which such specifications are made, must be construed to refer exclusively to damages arising during the progress of the work and not to damages arising subsequently thereto caused by the nature of the work when completed. The introduction to the ordinance prescribing the specifications and plans declares in effect that they are adopted as a guide for the performance of the work. There is nothing in the ordinance anywhere which indicates any intention to provide anything with respect to liabilities accruing after the work is performed in the way of damages to property or persons arising from the nature or character of the pavement when completed. The sub-head of specification No. 6 consists of the word “Safeguards.” This of itself indicates an intention to provide for the safety