Appeal of Piper

32 Cal. 530, 1867 Cal. LEXIS 98

• Court: California Supreme Court
• Decided: July 1, 1867
• Status: Published

Opinion

By the Court, Sawyer, J.:

This is an appeal from the order of the County Court of the City and County of San Francisco, confirming the report of the Commissioners appointed by said Court to appraise the damages sustained by the respective ¡oarties, portions, of whose lots were taken for the purpose of widening Kearny street, and to assess the benefits and apportion the expenses of the work upon the property benefited. For the purpose of the several appeals, we shall, without deciding the point, consider the questions raised as properly arising on the record. The first two points presented are, that the appellant’s lot is shown by the proofs taken before the County Court to have been assessed for benefits far beyond what are likely to accrue; but if mistaken in this, that it is assessed too high, as compared with the assessments for benefit to other lots; and we are asked to set aside the report as being against the weight of evidence on these points. This Court exercises appellate jurisdiction only, and reviews the action of two other bodies, which have passed upon the same questions of fact.

When the verdict of a jury, or finding of the Court, is based upon evidence in which there is a substantial conflict, this Court will not set it aside on the ground that it is contrary to the evidence. (Lyle v. REollins, 25 Cal. 440 ; Ellis v. Jeans, 26 Cal, 273; Doe v. Vallejo, 29 Cal, 390; Rice v. Cunningham, Ib. 495.) The rule is not peculiar to this Court; it is an established principle in the practice of all appellate Courts. The reasons upon which this rule of appellate Courts is founded apply with even greater force, to proceedings of the kind now in question, than to verdicts. The law, in the first place, requires three Commissioners to be appointed, to make the appraisement and assessment. They are not, like jurors, selected by lot out of all citizens possessing the statutory qualifications—good, bad, and indifferent, and of every grade of capacity and intelligence—but are selected, after the parties interested are heard upon the question, with special reference to their fitness to discharge the particular duties devolved upon them by law, in the given case. After having been sworn to faithfully discharge their duties “ without favor or partiality,” they are required to “ proceed to view the lands and tenements mentioned and described in the notice, ordinances, resolutions and maps aforesaid [of the designated district], and may examine witnesses on oath,” etc. In case of “ doubt respecting any legal principle involved in these proceedings,” they are authorized, and required “ to apply to the said County Court for instructions.” It is their duty to investigate the subject thoroughly; examine witnesses if deemed important; obtain all the information within their power; reflect upon the subject, and finally embody the result of their investigation and reflection in their report. Their own observation, their own knowledge, their own reflections and judgment, as well as the testimony of witnesses, constitute important elements in .the conclusions attained. The result of their investigations and deliberations having been embodied in a report and filed, a day is appointed by the Court to hear objections against its confirmation, and all parties interested are entitled to be heard, and to “ take proof in relation thereto.” Upon the facts' reported, the report itself would make something more than a mere prima facie case, and it would devolve upon the attacking party to overthrow it by proofs, and the proofs should be clear beyond all reasonable doubt or controversy. The report is something more than the testimony of three intelligent and respectable witnesses. It is the judgment of three men selected under the law, in view of their peculiar fitness, after a thorough investigation of the matter committed to them, and embodies the result of their own experience, observation and reflection, as well as the information received from others. But this question has been fully discussed by eminent jurists, and we shall adopt what they have so well said, rather than attempt to discuss the subject anew.

In the Matter of Pearl Street, 19 Wend. 652, Mr. Justice Cowen said: “ I do not deny that cases may arise in which a reconsideration of the report should be awarded, upon the mere weight of evidence; but to induce to such a course, the facts should be of a very decisive character, and border strongly on the conclusive. I am not prepared to say that, in reviewing the decision of these Commissioners, even a prima facie case against their award, derived from proofs independent of their opinion, should be listened to as a valid objection. It must, in general, be enough to sustain their estimates and assessments, that no positive rule of law has been violated. If we do not find that the legal interest of the tenant, owner, etc., has been misapprehended, their decision then stands as a matter of opinion on the value of an article in the market. So many considerations of time, locality and other circumstances enter into the estimate, that the only means of finally settling the question is an appraisal. That is committed by the statute to Commissioners appointed, by this Court and carefully selected. (2 R. L. of 1813, p. 409, Sec. 178.) They have power and it is made their duty to view the premises, if necessary, examine experts, to whom they may administer an oath, and explore all the best sources of information. (Ib. 410; Statutes Sess. of 1818, p. 196, Sec. 2.) With these means they generally combine a considerable degree of previous local knowledge. Great differences of opinion may and frequently do exist among witnesses. It is hardly ever safe to disturb the decision of such a question, or any other question of fact made by the tribunal to whom it is primarily committed. Whether it come from a jury, a master, referees or Commissioners, we must be governed by the same principle. The very circumstance that it is open to difference of opinion should lead us to conclude that the first decision can rarely be bettered by a reversal founded on the partial and refracted light of an appellate tribunal.” Much more is very forcibly said upon the subject in the same case. After much doubt and great hesitation, on what appeared to be a perfectly clear case, Mr. Justice Coweir recommitted the matter to the same Commissioners, but he was afterwards, evidently, dissatisfied with this determination. (19 Wend, 671.)

Again. ■ In the Matter of John and Cherry Streets, 19 Wend. 669, the same distinguished jurist says: “Admitting the Commissioners to have acted on correct principles, and that they proceeded regularly (which is denied in respect to the receiving of an unsworn appraisal, made under their direction, a very material paper which I shall hereafter notice more particularly,) I am not satisfied that I ought to remit this report for reconsideration upon any of the objections founded on value. All the proofs mentioned having been regularly before the Commissioners, I would presume that they received due consideration ; and so far as they tended to increase the demands of the claimants beyond what was allowed, were not met with proper grounds of qualification. With the opportunity of viewing the premises, a local knowledge of the business and character of the street, of the market value of lots and buildings, and, indeed, all the elements which go to make up an opinion; or, at least, the most advantageous means of acquiring the requisite knowledge in all particulars from the best sources; and then the full means of applying their knowledge on consultation, the Commissioners have come to conclusions differing from those of the deponents whose affidavits were before them, and are now before me. The Commissioners, too, were sworn and had power to examine experts on oath—merchants, surveyors, mechanics, etc., adepts in commerce, values, mensuration, removing, building, repairing, etc., and I .must intend that, whenever such examination was necessary to solve doubts it was had. Men of ordinary capacity can hardly go through with such a laborious estimate and assessment and re-estimate and re-assessment as the one before me without becoming themselves expert in all the departments of Imoivledge necessary to the business they are about. In regard to a few of the obligations, I admit that the affidavits go into particulars derived from skilful men and other satisfactory sources, which, under my limited means of judgment, lead me somewhat to doubt the accuracy of the Commissioners in the values which they arrived at, but I want more to enable me to disturb their report. I repeat, that the estimate and assessment of values belong peculiarly to them and I cannot set aside their report on the ground of error in this respect without a case is made against them clear, strong and indubitable. I admit that it is very difficult to make out such a case upon ex parte affidavits, which are the sort of proof usually before us in street causes, and I believe it has seldom been done. The proof is, in its own nature, open to much observation, and in common experience calls for great reduction, especially when it comes in the form of mere opinion as to price or benefit or damage in respect to a projected improvement. The most candid and skilful entertain opinions on these subjects widely different, and I cannot in this case place the results thus stated by witnesses, or such as I might myself draw from particulars thus stated, in successful opposition to what I must think the more enlightened views of the Commissioners. Mr. Justice Bronson remarked, In the Matter of Furman Street, 17 Wendell, 663, ‘ that the reviews on appeal can, for the most part, extend to error in principle only. When a right rule for making the estimate has been settled, it must very often be impracticable for this Court to ascertain whether too much or too little has been awarded to any individual for damages. In the case under consideration, many of the witnesses differ one half in relation to the true value of the land which has been taken for the street, and the Court has no adequate means of arriving at a true estimate. We can only interfere with the report where, upon the proof as it appears by the affidavits, there is a plain and decided preponderance of evidence against the judgment of the Commissioners.’ What Judge, Commissioner or juror ever sat, what lawyer ever practiced in a Court of original jurisdiction where these questions of damage and benefit are daily heard, without witnessing the same conflict and arriving at the same conclusion ? The right rule is seldom mistaken. It is the present and future value in cash, of lands, rents, materials and labor. But the premises from which that value is to be drawn are often so complicated, and above all, the views of witnesses so imperfect, their language so obscure and the subject itself lying so much in the region of conjecture, that an oral examination and cross examination and all other, the best means of judgment are necessary. (Vide, Commonwealth v. The Justices, etc., of Norfolk, 5 Mass. 435, 437; Commonwealth v. The Justices, etc., of Middlesex, 9 Id. 388; Commonwealth v. Coombs, 2 Id. 489, 492; Callender v. Marsh, 1 Pick. 418, 432, 433.) * * * These reports of .Commissioners, in respect to values, are in the nature of a verdict of a jury upon a question of fact, which is never set aside as against evidence unless it appear affirmatively and clearly to have been unwarranted by the proofs. There is more difficulty in showing this against the Commissioners’ report, because from the nature of the proceeding they must make a more free use of their private knowledge than juries are warranted in doing. The lattter are confined to action upon their general knowledge, and cannot go on their knowledge of particular facts without being sworn and communicating them as witnesses. (Rex v. Rosser, 7 Carr. & Payne, 648.) Admitting everything, therefore, to have been regular, I should hardly deem the report impeached upon its merits in any matter of valuation.” (671.)

And In the Matter of William and Anthony Streets, 19 Wend. 694, Mr. Justice Bronson said: “ Courts seldom set aside the verdict of a jury on the sole ground that they may think it against the weight of evidence. And yet there is much less difficulty in such a review than there is in the case under consideration. Jurors do not act upon particular facts within their own knowledge, but upon written documents and the testimony of witnesses submitted to their consideration. The evidence upon which they form conclusions may be put upon paper and submitted to the Court for consideration. But it is not so, or at most only to a very limited extent, in relation to the proceedings of these Commissioners. They are selected not only with reference to their integrity and general capacity for business, but on account of the knowledge which they are supposed to possess concerning the particular duty which they are appointed to discharge. Such information as they have in relation to the value of the property taken, and the probable effect of the improvement upon other property in the same neighborhood—in whatever way the information may have been obtained—they are at liberty to use. The very first thing which is required of them by law, after taking the oath of office, is to view the premises affected by the improvement. (Sec. 178.) They are thus to acquire information, and that, too, of the most important character, which there are no means of bringing before this Court. And beyond this, I entertain no doubt that the Commissioners may take the opinion of others, in whose integrity and judgment they have confidence, without swearing them as witnesses. They may converse with all classes of men concerning the business in hand, and collect information in all the ways which a prudent man usually takes to satisfy his own mind concerning matters of the like kind, where his own interests are involved in the inquiry. The Commissioners must exercise their own .judgment at the last, but they may first seek light from other minds, the better to enable themselves to arrive at just conclusions. When the original jurisdiction is exercised in this manner, it is impossible that there should be anything like a regular judicial review.

“We cannot regará the Commissioners as witnesses merely, and then suffer their judgment to be balanced by the opinions expressed in three opposing affidavits, and to be outweighed when a fourth is added. For aught that we can know, the judgment expressed by the Commissioners upon questions of value, may combine the opinions of a hundred men who are in all respects as well qualified to form just conclusions as those who make opposing affidavits. In settling questions of value the Commissioners do not sit as a Court and jury and decide upon the evidence of witnesses examined before them. ¡Nothing of this kind was contemplated by the Act of 1813, nor can it be justly inferred from the Act of 1818, which authorized them to administer oaths. (Stat. of 1818, p. 196, Sec. 2.) Estimates from mechanics and builders may become important in the discharge of the duties of the Commissioners, and in these and other cases they may require the sanction of an oath to the estimates which they receive. If, in any case, they make the opinions of others the basis of action without exercising their own judgment, those opinions should be given upon oath. But when they only seek information for the purpose of enlightening their own judgments, they may obtain it in any of the ways in which men usually acquire knowledge. They need not, and in point of practice they do not, sit as a Court. If in any case they take the testimony of witnesses in relation to value, it is but an item in the account, which may go to qualify, but cannot control their own opinions. How then is it possible that we can disturb the report, upon mere questions of value, on the single ground that five, ten or even twenty respectable men have sworn to opinions at variance with the judgment of the Commissioners?

“A review was given to this Court for the purpose of seeing that the Commissioners exercise their authority in the forms prescribed by law, and for the correction of any error in the principle upon which they have proceeded in making their awards. After what has been done in other cases, I will not say that we cannot go beyond this and examine questions of value. But there must be something more than the opinions of witnesses against the judgment of the Commissioners. We must have facts. There must be something like demonstration that the Commissioners have fallen into error.” And in Pryor’s Appeal, 5 Abb. 275, Mr. Justice Mitchell expresses similar views.

We have to start with, in this case, the report of the three Commissioners selected with reference to their peculiar qualifications for the important and delicate duties intrusted to them, and there is no objection raised as to their fitness. They spent some seven months in their investigations and deliberations, and enough of their doings is shown by the record to make it apparent that they carefully considered the subject, compared one lot with another, and thoroughly studied the various influences which have combined during the last few years to affect the value of the property in the district to be charged with the expense of the work. Upon the filing of the report, several parties out of the large number affected filed objections, and, so far as the records now before us show, they all selected the same two or three lots as standards of comparison, and relied mainly on the fifty vUra lot of Main & Winchester, corner of Post and Kearny streets. If there is any inequality in the assessment, it may fairly be presumed, that it will be more apparent between that lot and those of the appellants than anywhere else. An investigation was had before the County Court upon these objections, and the evidence was directed mainly to the lots selected by appellants for the comparison. Evidence was introduced both against and in favor of the report, and the County Judge, after an elaborate review of the testimony, in an opinion evincing a critical and thorough consideration of the whole subject, sustained and confirmed the report of the Commissioners; and it is by no means clear to our minds that the reasoning of the County Judge, in his opinion in this case, is satisfactorily answered by the counsel of appellant. However this may be, as a matter of reasoning, there is a manifest and substantial conflict in the evidence introduced upon the two points now under discussion, viz : as to whether the amount of the benefits assessed exceeds the benefits likely to accrue from the widening of the street; • and as to whether the amount of benefits assessed is relatively too high. On both points there is a wide difference in the opinions of appellant’s own witnesses, as there necessarily must be in such matters. Some of them evidently do not accurately distinguish between the enhanced value of the property on the south end of Kearny street, resulting from numerous other causes, and that which results alone from the widening of the street; while the latter, only, is to be regarded in assessing the amount of benefits. Some of the testimony is manifestly wild, but if we were to take the testimony of the appellant alone, and carefully scrutinize it, without reference to the report of the Commissioners, or the testimony on the part of the respondent, it would appear from it, upon the whole, that there is‘a large enhancement of value in consequence of the widening of the street— as much at least as the benefits assessed; while the testimony of the witnesses on the part of the city shows a still greater enhancement of value, and strongly supports the report of the Commissioners, both as to the amount of the enhancement, and the equality of the assessment; and some of it is based upon an actual sale of the property of the appellant claimed to have been assessed too high. It is plain, from all the testimony,'that, at the south end of Kearny street, within the last few years, there has been a very large enhancement in the value of property from other causes having no reference to the widening of the street—much more so than at the north end; and if we carefully analyze the appellant’s testimony, it will be found, that the great discrepancy in the testimony lies almost purely in the domain of conjecture rather than in the domain of facts; that it relates to the cause of the enhancement of value, as whether due to the widening of the street, or other causes, rather than to the fact, or extent of the enhancement. Testimony as to value must necessarily consist very much of opinions and often be of a very unsatisfactory character, but this is true to a much greater extent with reference to the amount of the enhancement of values, which is due to each of several causes combining to produce a given result. Those witnesses of appellant who attempt to fix the value of the property at the date of their testifying do not vary so much; for some seven of them estimate the then value of Main & Winchester’s lot, at from eight hundred dollars to one thousand one hundred dollars per front foot; or an average of about nine hundred eighty-five dollars ; five of them putting it at one thousand dollars per foot, and six of them, the value of the appellant’s lot, at from seven hundred to one thousand dollars per foot, or an average of nine hundred twenty-six dollars per foot. Tested by an actual sale at auction, the value of the latter seems to have been about nine hundred sixty dollars per foot. But when they come to estimate how much of this value is due to the contemplated widening of Kearny street, the testimony lies almost entirely in the field of conjecture; and as might be expected, there is a wide difference in the views of different parties. The Commissioners, in valuing the property for the purpose of obtaining a basis for estimating the.benefits, fixed the then value of Main & Winchester’s lot at about seven hundred seventy dollars, and appellant’s lot at about seven hundred forty dollars per front foot—each being somewhat lower than appellant’s witnesses placed the value at the time they testified, and relatively about the same. To this, as we understand it, the benefits are added. Thus, it is seen, that the great discrepancy in the testimony of the appellant’s witnesses, and between them and the witnesses of respondent, and the report of the Commissioners, relates, not to the value of the lands, but to the proportion which should be credited to the widening of the street, and that which is due to other causes, and the real contest arises upon testimony necessarily conjectural.

From considerations before stated, the peculiar qualifications sought in the appointment of the Commissioners, their long personal investigation of the subject, etc., the Commissioners, it would seem, must, in the nature of things, be better qualified to estimate these benefits than witnesses called to the stand for the occasion from among men engaged in active business requiring all their attention, to give, upon the spur of the moment, and upon less comprehensive views of the subject, their ideas, even though such witnesses may be dealers in real estate, and generally well informed as to its value. A careful examination of the testimony in the record cannot fail to show, that very much of that portion relating to the enhancement of value resulting from the widening of the street, as compared with that resulting from other causes, consists of crude and hastily formed opinions.

It is further insisted, that the assessment on Kearny street is erroneous for the reason that it is made upon the hypothesis, that all the lots on Kearny street will be benefited by the improvement in the ratio of their values, whereas the proof shows the fact to be otherwise. This point is really necessarily involved in the second, but it is discussed in the briefs as a separate point and requires more particular notice. We are not authorized, nor are we asked, to assume as a legal proposition that the benefits to the several lots fronting on the street will not be in the same ratio as that of their value. It is a question of fact, and must be determined as such on evidence. And so the appellant treats it. But it is, also, one of those facts which lie almost wholly in the field of conjecture. Keither the senses nor our intellectual faculties can fully appreciate it. It cannot be exactly seen, or felt, or weighed; nor can its dimensions or boundaries be accurately measured and defined. It is a fact which the Commissioners were called upon to determine, and after a survey of the entire field, and giving the question the best consideration they could, they did determine that the benefits resulting to the owners of the property from the improvement would be in this case in the "same ratio as that of the value of the property. On the hearing of objections, before the County Court, this was one of the grounds, arid the main ground of objection to the report. Testimony was taken upon the precise point, and witnesses, so far as we can judge, equally reputable, and equally competent, differed in their opinion upon the question. Two of the Commissioners, Webb and Torrey, testified that in their opinion the benefits resulting to property along the whole line of Kearny street would be in the ratio of its value, and the testimony of Sherman and Burr is to the same effect. If these opinions are correct, as to the equality of ratios between the enhancement of value by improvement, and the value of the property before the widening of the street, the basis upon which the benefits are apportioned on that street is the proper one. It may be true that the repetition of their opinion by the Commissioners upon the stand as witnesses adds nothing to the force of the report. If this be conceded, it still detracts nothing from the weight of their opinions upon the point, whether regarded as their evidence, or their finding upon the question based upon inspection and information' obtained, as well as their own judgment. It shows, at least, that they still adhered to the opinion, after it had been controverted and counter testimony taken, and the matter had been reconsidered in the light of such objections and testimony. By way of argument, it is said, that any one acquainted with the topography of the city, must see at a glance that the south end of the street must be benefited far more, in proportion to its value, than the north end, and such was our first impression, but, the more we reflect upon the matter, the more difficult we find it to establish the conclusion by any satisfactory course of reasoning.

The street is simply widened. Every foot of ground upon the entire street to be widened has already been occupied for years. It will open into the same street, after it is widened, that it did before. The same streets cross it—no more and no less—and at the same points as before. The hills at the north and west were there before. The improved portion of the street will occupy the same relative position to the rest of the city, and to the localities toward which the business and population are tending, that it did before. The testimony does not show that the tendency of the population and business spoken of toward the south, has heretofore been owing to the widening of this street. It has manifestly, to a great extent, at least, been owing to other causes A better class of business, requiring better and finer buildings, and inducing greater travel, will undoubtedly seek the street when widened, and it is not easy to see why the better class of business should not seek the entire street. It is said that toward the northern end the main travel comes down Washington and Clay streets, crossing Kearny into Montgomery. This is at present, doubtless, equally true of the streets crossing south of Clay. But if the anticipations of the projectors of the widening of Kearny street are realized, Kearny street, opening into Third, will become the great thoroughfare through the very heart of the city, from north to -south, on the line of greatest travel, and the business of the fashionable world, to a great extent, transferred, or extended from Montgomery to Kearny street, and the travel which now comes to Montgomery instead of crossing will pass into Kearny. This is the result, to some extent, anticipated by the Commissioners, as appears in the testimony of one of them. There is, it is true, as stated in the argument, a rise of ground from Pacific to Broadway, but it is not so great but that a street railroad passes over it, and when Broadway is reached Kearny street opens into the most spacious avenue in the northern part of the city, extending westward with a grade easier than any other, and far lighter than on Washington. Can it be for a moment doubted that when Kearny street is widened, broad sidewalks constructed, and first class buildings erected, the favorite line of travel from the north and northwest part of the city will be down Broadway into and through Kearny street, or that the anticipations of the Commissioners as to this street becoming the leading thoroughfare of the city from north to south are within the bounds of reasonable probabilities? When Kearny street is widened into the most spacious street in the heart of the city running in that direction, and the present structures on it are replaced by firstclass commercial buildings from Market to Broadway, can it be doubted that much of the travel now coming down Geary, Post, Sutter, Bush and Pine streets, crossing into Montgomery, will pass into Kearny and northward on that street toward, and eventually, to a considerable extent, to Broadway ? Or that the building up and occupation for fashionable shops of the southern half of Kearny street thus widened will of itself create a demand for similar structures toward the north, and gradually, at least, force such improvements forward until they reach Broadway ? One of the Commissioners testifies that, after obtaining all the information they could in respect to travel, “ they found the amount of travel about equal at all the crossings from Market to Washington; that the conclusion was, that property opposite the Plaza would be as much benefited as any south of-it.” The property of the appellant is opposite the Plaza, within the district between Washington and Market, and somewhere in the neighborhood of midway between the two termini of the portion of Kearny street to be widened. Should the widening of Kearny street result as anticipated, in making it the leading thoroughfare of the city from north to south, taking much of the travel that now crosses to Montgomery, the appellant’s lot must be greatly benefited, and it is not easy to satisfactorily show why it should not be relatively as much benefited by the improvement as any other. Much may be said on both sides of the question, but we do not propose to discuss it at greater length. While we are not entirely satisfied that the rule adopted works with perfect equality, it is not entirely clear from the testimony or argument that it does not; and the question was one peculiarly in the province of the Commissioners to determine. It must, also, be admitted, we think, that they both had better opportunities of arriving at a correct conclusion, and that they were personally better qualified to determine the question than we. The matter was re-examined by the County Judge and further testimony taken —the witnesses appearing in person before him—and, after a laborious consideration of the case, the report of the Commissioners was confirmed. The testimony is so much in conflict, and consists so entirely of matter of opinion, that we should not be justified in holding that the Commissioners and County Court erred.

It is argued that if the apportionment on Kearny street is made upon a correct principle, then the apportionment on Third street, and the cross streets within the district determined to be benefited, which was made upon a different hypothesis, must necessarily be erroneous. But this conclusion does not necessarily follow. These streets occupy an entirely different relation to the improvement made. It is supposed that the widening of Kearny street will make it the great thoroughfare north and south through the heart of the city, as Montgomery street now is, and the benefit to the cross streets will result solely from the fact of their close proximity to this great thoroughfare. As the benefit to property on those streets results from its proximity to, and not from the fact of its bordering on, the improvement, the nearer a lot on the cross streets approximates this thoroughfare, the greater will necessarily be the benefit derived. It is upon that very theory that the Board of Supervisors fixed upon the limits of the district determined to be benefited by the improvement for the purpose of assessing the expenses to be incurred in making it. As the locality recedes from the great artery of travel and business on the cross and secondary streets, the population tributary to it, and the travel upon it, gradually diminish till it becomes very small, and the value of the property diminishes in about the same ratio till it becomes valuable only for the purposes of husbandry. On the cross streets this gradual receding from the proximity of the improvement takes place; but it is not so on that portion of Kearny street widened. The diminishing scale of benefits as the property recedes from Market street along Kearny would not furnish the proper rule, for the very obvious reason that the improvement which it is supposed will work the great revolution in the line of travel and business is not at Market street, and there is no receding from it, as the advancement is made northward along Kearny street; but, on the contrary, the advancement is on the very line of the improvement, and the line of the increased travel and business, throughout the entire distance to Broadway. There is nothing in the testimony tending very strongly to show that the mode of apportionment adopted by the Commissioners for the cross streets and Third street does not operate equally. The Commissioners found upon examination four different classes of lots and property within the district, differently situated with reference to the contemplated improvement: Firstly—Kearny street, the street to be widened. Secondly—Third street, on the south side of Market, and virtually an extension of Kearny street southward from the point where the widened street terminates. Thirdly—The North Beach and Mission Railroad; and Fourthly— Streets crossing Kearny. The whole amount to be raised was first apportioned among these four classes—a certain amount to Kearny street, and a certain amount to each of the other classes. No complaint is made that the proper portions have not been assigned to each of these divisions or classes, if the property on Third and the cross streets is liable to be assessed at all. It being assumed that the proper amount has been assigned to Kearny street, the owner of property on Kearny street is thenceforth interested no further than to have the part assigned to Kearny street equally apportioned among the property holders on that street according to the benefits. He cannot claim that an error has been made in apportioning the amount assigned to cross streets among the property holders on those streets; or that the Commissioners adopted a different mode of arriving at the apportionment on those streets. The statute prescribes only one rule of apportionment, and that is according to benefits. But, to ascertain the benefits, it may be necessary to apply different principles to property having a different relative situation to the improvement, and presenting different elements affecting the questions of value and benefits. The Commissioners, in this instance, found it necessary to consider different elements in making the apportionments according to the benefits, and it rests with the objectors to show conclusively that they erred in their estimate of the effect of these various elements.

It is next claimed that the Commissioners erred in not assessing the buildings on the lots, as well as the lots, and that the buildings were not considered in the assessment. The law does not say that the buildings, as such, shall be assessed separately from the lots. The assessment is to be in proportion to the benefit which the owners and occupants of lands and houses shall acquire, and is made a lien, upon and collected out of, the lands through which the benefit is derived. The property enhanced in value, and through which the benefit accrues is the thing in respect to which the assessment is made, and the basis on which it rests. Section seven says that the Commissioners “ shall apportion and assess the whole amount * * * upon all the owners and occupants of lands and houses within the territory deemed * * * benefited by sucli improvement, as near as may be in proportion to the benefits which each shall be deemed to acquire by the making thereof.” And section sixteen provides: “ The expense of any public improvement herein authorized shall be defrayed by assessment on the owners and occupants of houses and lands, corporations and companies, that may be benefited thereby.” And by section eight the report must specify “the sums of money which each and every owner or occupant of houses and lands, corporation or company, deemed to be benefited by such improvement * * * should pay toward the expense of making the same, and the lands [not lands and houses] in respect to which he shall be deemed by them to be benefited.” Section fifteen requires the assessment roll to contain, in proper columns, “ the names of all persons * * * assessed when known; ” “ the description of the land [not lands and houses] in respect to which they are assessed; ” “ the amount to which such person shall respectively be assessed,” and the amounts are to be collected in the same manner as taxes are collected in said city and county, “ and shall in like manner be a lien upon the respective tracts or parcels of land,” etc. [not lands and houses]. Thus it appears that when reference is made to the property “in respect to which he shall be deemed by them benefited” as in the eighth section, or “ in respect to which they are assessed,” or upon which the amount assessed “ shall in like manner be a lien ” as in section fifteen, land only is mentioned. Nothing is said about houses. And houses are only mentioned in those sections by way of descripüo persones in connection with lands to indicate the person who is to pay the assessment upon the lands through which the benefit is acquired. Lands include the houses erected on them. The owner and occupant is to pay an assessment in proportion to the benefits received—not upon the valuation of the entire property, including buildings. If he is assessed in proportion to the entire benefit received, it can make no possible difference whether a part of the benefit is credited to the land and a part to the house erected on it, or all credited to the land. It is all taken into consideration somewhere. Nor do the injunctions of the statute require in terms, or by necessary implication, that it should be so distributed.

The land, in the strictest sense of the term, is the only thing of a permanent character. It cannot be removed, enlarged, diminished or destroyed, and we do not see why the benefit should not all be regarded as accruing to the land alone. It is so regarded in theory by writers upon political economy. Adam Smith, in his great work on the Wealth of Nations, says: “ The building rent is the interest or profit of the capital expended in building the house. In order to put the trade of a builder upon a level with other trades, it is necessary that this rent should be sufficient first, to pay him the same interest which he would have got for his capital if he had lent it upon good security; and, secondly, to keep the house in constant repair, or, what comes to the same thing, to replace, within a certain number of years, the capital which had been employed in building it. The building rent, or the ordinary profit of building, is, therefore, everywhere regulated by the ordinary interest of money. * * Whatever part of the whole rent of a house is over and above what is sufficient for affording this reasonable profit naturally goes to the ground rent; and when the owner of the ground and the owner of the building are two different persons, is, in most cases, completely paid to the former. The surplus rent is the price which the inhabitant of the house pays for some real or supposed advantage of the situation. In country,houses, at a distance from any great town, where there is plenty of ground to choose upon, the ground rent is scarce anything, or no more than what the ground which the house stands upon would pay if employed in agriculture. In country villas in the neighborhood of some great town it is sometimes a good deal higher; and the peculiar conveniency or beauty of situation is frequently very well paid for. Ground rents are generally highest in the Capital, and in those particular parts of it where there happens to be the greatest demand for houses, whatever be the reason of that demand, whether for trade and business, for pleasure and society, or for mere vanity and fashion.” (Vol. III, Lon. Ed., 1805, pp. 294-5.)

Thus, that profound thinker arrives at the same conclusion upon this subject, that the Commissioners in this case—three practical business men—attained, after investigating the subject in a practical way, and which, it seems to us, must be attained by every reflecting mind. It would seem that it must be so from the nature of things. How could it be possible that a building, wherever situate, should be worth any more ,tban it would cost to put another there like it, and, say, the rent, or that portion of the net rent over wear and tear, during the period of time required to erect it, and put it in a condition for occupancy ? If it were destroyed to-day, another could be erected at actual cost to-morrow, and the destruction and restoration might be repeated ad infinitum. If any value accrues in consequence of changes in the surrounding circumstances, it necessarily attaches to the land—to the location. Should the building be destroyed by fire the land would sell for as much without, as with it, less the cost o'f erecting another like it, and the net rents during the period required to put it in a condition to occupy—in practice probably for more. It would make no difference whether the land was in the hands of the owner in fee, or under lease | for, in the latter case, the enhanced value would, during the term, go to the leasehold estate in the land. The building would actually be worth no more annexed to a leasehold estate, than to the fee. It could be replaced for the same money in one case as in the other. In this case, the Commissioners did take into consideration the entire benefits to buildings, as well as lands. This presumption would arise on the report itself. But one of the Commissioners, Torrey, was called to testify upon the point, and said: “ We took into consideration the benefits to buildings and lands. The usual way of assessing is on lands and improvements [probably referring to valuation for purposes of ordinary taxation]. This differs—it was the benefit to the property we were looking for.” And that is precisely what the statute required them to look for. Upon the views before presented, the only enhancement of value to buildings in consequence of the improvement that could in any event take place, would be the increased rents during the time it would take to erect such a building, or put a building already there in a suitable condition. A party having a suitable building on his land would hold this advantage—no more. The Commissioners found, that on one side of the street throughout its entire length, it was necessary to cut away the buildings for a distance of over twenty-nine feet—the width added to the street—and that, as a mattter of absolute necessity, all the buildings on that side would have to be rebuilt, or greatly remodeled. On the other side they found a class of third and fourth rate buildings, some of brick and some of wood, none of which, it is conceded on all hands, are suitable to the condition, or contemplated business of the widened street. All, therefore, would either have to be entirely remodeled or torn down and new ones, erected in their place, or else the owners could not reap the full benefits which would otherwise accrue to their lands. Either the change must be made sooner or later, or the benefits resulting from the widening would not practically accrue. The Commissioners found that it would take about the same time to remodel, so as to adapt these buildings to the new condition of things, as to construct new buildings; and that the owners would therefore, sooner or later, all alike lose about the same amount of time in the interruption of the use of the buildings, and that the only element which could possibly give additional value to the building, as such, was therefore wanting. They determined that, under the circumstances of the case, the only benefit accruing to the owners and occupants of the houses and lands accrued in respect to the lands; and we see nothing in the testimony or arguments that would justify us in setting aside the report of the Commissioners, and the order of the County Court confirming it, on that point. There is much less plausibility in this objection than in the second and third.

The fifth point is, that the Board of Supervisors had no constitutional authority to include Third and Market streets, and portions of the several cross streets in the district supposed to be benefited, and, therefore, to be assessed for the payment of the expenses of the improvement. And the sixth point is, that the expense should have been borne by the whole city ; and the Board of Supervisors had no constitutional power to impose the burden upon a specific portion of the city supposed to be peculiarly benefited. These points seem to be necessarily inconsistent with each other. But the question has been settled against the appellant in this State, and, by , what may be regarded as a uniform line of decisions in the other States. (Emery v. San Francisco Gas Company, 28 Cal. ; People v. Mayor of Brooklyn, 4 Comst. 430, and cases cited.)

If the facts are correctly ascertained by the Commissioners, no positive rule of law appears to have been violated, and upon the facts there is a manifest and substantial conflict in the evidence on the points in contest. We are of opinion that the order confirming the report of the Commissioners must be affirmed, and it is so ordered.

Neither Mr. Justice Rhodes nor Mr. Justice Sanderson expressed any opinion.