Cohen v. City of Alameda

Citations

• 124 Cal. 504
• 57 P. 377
• 1899 Cal. LEXIS 1024

Syllabus

<p>Opening and Extending Street—Validity of Assessment—Constitutional Law.-—The act of March 6, 1889, providing for opening and extending public streets is constitutional and valid; and an assessment made therefor in proportion to the benefits to be derived from the improvement, which is confirmed by the city council without objection, cannot be complained of as unconstitutional.</p> <p>Id.—Description of Land to be Taken—Exception of Open Ways.— If the boundaries of the space over which the street is to be opened are clearly defined, and all land held in private ownership within the boundaries specified is to be taken therefor, the description of the land to be taken by metes and bounds, is not impaired by an exception of “all lands now held by said city, or the people of the state, as open ways,” without describing the exceptions.</p> <p>Id.—Amendment of Complaint—Proof of Private Ownership.—An •amendment of the complaint for the purpose of supporting proof , that all the property within the lines of the proposed street was held in private ownership, and evidence in support thereof, was unnecessary, but harmless.</p> <p>Id.—Error in Designation of Oorporate Owner.—An error in the designation of the name of a corporate electric railway in an assessment made upon its property, which was paid by the corporation owning the property assessed, must he disregarded under section 12 of the act of 1889, under which the street was opened and extended; and such error cannot sustain an objection that the assessment was not made upon all the property within the district benefited by the improvement.</p> <p>Motion for New Trial—Surprise—Appeal—Unauthenticated Affi- ■ davit.—An affidavit of surprise, printed in the transcript upon appeal, to the effect that remarks made by the court at the trial induced the defendant to withhold testimony, and that the subsequent contrary ruling of the court constituted a legal surprise, if not contained in any hill of exceptions nor authenticate