RUDKIN, Circuit Judge.
Upon the original submission of this ease an opinion was prepared by Judge DIE.TRICH, but after his death the ease was restored to the calendar for reargument and has been resubmitted to the court by stipulation of the parties. Upon full consideration the opinion of Judge DIETRICH, which follows, is adopted as the opinion of the court.
“By the decree below the appellant is enjoined from enforcing an assessment-made by •its officers upon property constituting a portion of appellee’s terminal facilities in the city of San Diego, to cover the expense, in part, of opening a street in the vicinity thereof. The total cost of the proposed work was determined to be $54,565.83, of which $12,-607-12 was assessed against appellee’s property. The decree followed a finding that the projected improvement, if not detrimental, would at least be of no benefit to appellee.
“Appellee’s depot and appurtenances are at the eornér of Broadway and Kettner streets) with entrances from both streets. •Broadway is a wide thoroughfare, running east and west, and easterly from the depot penetrates the main business section of the city. Kettner street, not so wide, extends indefinitely north and south at right angles with Broadway. North of appellee’s premises, and approximately 600 feet from Broadway, is B street, which, in its easterly reaches,' also passes through the main business section. It will thus bé seen that appellee’s station may be entered on the south side from Broadway and on the east side from Kettner street, which connects with Broadway and other east and west streets to the south and with B and other streets to the north. Immediately across Kettner street, east of appellee’s grounds, lies a vacant block, bounded .by B street on the north, Broadway on the south, and on the east by India street, which is parallel with and.about 200 feet from Kettner street. Extending east from India street ■is C street, midway between and parallel with Broadway and B streets. The projected work contemplates the extension of this C street westerly from India street to Kettner, whereupon it will terminate directly in front of the easterly depot entrance. The expense is to be. imposed under what is known as a local or 'district assessment plan. The improvement district established as the area to be assessed •is a. rectangular tract 'with the longer boundary lines thereof 90 feet on either side of the .center line of C street, actual or projected, and extending in, length from a line nine blocks easterly from India street to a line 225 feet west from the westerly line of Kettner street, thus including, of appellee’s property, a tract 180 by 225 feet. By the city council the railway company’s protest, on the ground that the assessment was unjust and arbitrary, was overruled. Whereupon this suit was instituted.
“That the court below did not err touching the general principles of law applicable in such a case is disclosed by the following excerpt from its well-considered opinion, 34 F.(2d) 293:
“ 'The Street Improvement Act of the State of California, under which, it is asserted, the city proceeded (sees. 4, 5, p. 70, Stats, of Cal., 1889, and Amendatory Acts [Deering’s Gen. Laws, 1923, Act 8195]), provides for the hearing of objections to the proposed work and to the assessments made, and declares that the decision of the City Council allowing or disallowing protests “shall be final and conclusive.” It is admitted by defendants that the finality which attends the determination of the City Council when it acts upon the protest of a property owner assumes eases where that body acts within a fair and reasonable discretion upon the matter before it (which is presumed, prima facie), but that the protestan! is not concluded if he is able to show that no fair rule of uniformity was adopted in making the assessment (Schaffer v. Smith, 169 Cal. 764, 147 P. 976), or that the assessment was made without regard to benefits to accrue to the property taxed (Spring Street Company v. City of Los Angeles, 170 Cal. 24, 148 P. 217, L. R. A. 1918E, 197).
“ 'The question to be answered in such eases is: Did the municipal body use the judicial judgment which the law requires of it, and determine the amount of the assessments upon the basis of benefits to property assessed? Where it is plain that the Council, upon a showing of valid, supporting facts, has ruled that benefits accrue to the property assessed to pay the cost of the work, that determination may not be overthrown by witnesses produced in court who testify that the assessment is. for too large an amount. The law has established the agencies, which shall settle the question of the amount of damages and benefits: first, the commissioners appointed for that purpose; second, the municipal Council, with full power to revise, correct and annul the commissioners’ report. Counsel for defendants have cited a number of California decisions on the question, all showing the limited power which the courts have in these matters. There is no real dif[13]*13ference between respective counsel as to the law.
“ ‘An assessment of the kind here to be considered will be deemed arbitrary and illegal if, upon examination of the record of proceedings had, together with other evidence offered to show fully plain conditions which the assessing officers are presumed to have had before them, the conclusion is inescapable that the property assessed could not be benefited by the contemplated work, or that, if benefited, the benefit necessarily would be trivial or inconsequential. * * *
“ ‘The State law authorizing the segregating of the property of a limited number of taxpayers within a district, and placing the cost of improvement work, the use of which will be equally shared in by the general public, as a charge upon the property within the district, rests, as the Supreme Court of California said in Spring Street Company v. City of Los Angeles, supra, upon the compensating benefit resulting to the included property as “its solo warrant.” ’
“Not only is appellee’s property now devoted exclusively to railroad purposes, and so improved as to make wholly probable the permanency of such use, but by the deeds conveying title to its immediate predecessor in interest it was expressly provided that the grantee must construct and maintain thereon a passenger station, with reversion of title in case of failure to comply with this condition. We aré, therefore, of the opinion that in making the assessment appellant was bound to assume the measurable permanency of such use and to make assessment accordingly. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 S. Ct. 581, 41 L. Ed. 979; City of Oakland v. Schenck, 197 Cal. 456, 241 P. 545; Southern Pac. R. Co. v. S. F. Savings Union, 146 Cal. 290, 79 P. 961, 70 L. R. A. 221, 106 Am. St. Rep. 36, 2 Ann. Cas. 962; Naugatuck R. Co. v. City of Waterbury, 78 Conn. 193, 61 A. 474; New York Bay R. Co. v. Newark, 82 N. J. Law, 591, 83 A. 962; In re East 136th Street, 127 App. Div. 672, 111 N. Y. S. 916; City of Barre v. Barre & Chelsea R. Co., 97 Vt. 398, 123 A. 427, 37 A. L. R. 207; Federal Construction Co. v. Ensign, 59 Cal. App. 200, 210 P. 536; Road Improvement Dist. No. 1 v. Missouri Pac. R. Co. (C. C. A.) 2 F.(2d) 340 ; Kimama Highway Dist. v. O. S. L. R. Co. (C. C. A.) 298 F. 431; Kankakee v. Illinois Cent. R. Co., 257 Ill. 298, 100 N. E. 996.
“In its discussion of the facts the lower court said:
“ ‘The proposed opening of C street does not touch either side of the depot property.
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RUDKIN, Circuit Judge.
Upon the original submission of this ease an opinion was prepared by Judge DIE.TRICH, but after his death the ease was restored to the calendar for reargument and has been resubmitted to the court by stipulation of the parties. Upon full consideration the opinion of Judge DIETRICH, which follows, is adopted as the opinion of the court.
“By the decree below the appellant is enjoined from enforcing an assessment-made by •its officers upon property constituting a portion of appellee’s terminal facilities in the city of San Diego, to cover the expense, in part, of opening a street in the vicinity thereof. The total cost of the proposed work was determined to be $54,565.83, of which $12,-607-12 was assessed against appellee’s property. The decree followed a finding that the projected improvement, if not detrimental, would at least be of no benefit to appellee.
“Appellee’s depot and appurtenances are at the eornér of Broadway and Kettner streets) with entrances from both streets. •Broadway is a wide thoroughfare, running east and west, and easterly from the depot penetrates the main business section of the city. Kettner street, not so wide, extends indefinitely north and south at right angles with Broadway. North of appellee’s premises, and approximately 600 feet from Broadway, is B street, which, in its easterly reaches,' also passes through the main business section. It will thus bé seen that appellee’s station may be entered on the south side from Broadway and on the east side from Kettner street, which connects with Broadway and other east and west streets to the south and with B and other streets to the north. Immediately across Kettner street, east of appellee’s grounds, lies a vacant block, bounded .by B street on the north, Broadway on the south, and on the east by India street, which is parallel with and.about 200 feet from Kettner street. Extending east from India street ■is C street, midway between and parallel with Broadway and B streets. The projected work contemplates the extension of this C street westerly from India street to Kettner, whereupon it will terminate directly in front of the easterly depot entrance. The expense is to be. imposed under what is known as a local or 'district assessment plan. The improvement district established as the area to be assessed •is a. rectangular tract 'with the longer boundary lines thereof 90 feet on either side of the .center line of C street, actual or projected, and extending in, length from a line nine blocks easterly from India street to a line 225 feet west from the westerly line of Kettner street, thus including, of appellee’s property, a tract 180 by 225 feet. By the city council the railway company’s protest, on the ground that the assessment was unjust and arbitrary, was overruled. Whereupon this suit was instituted.
“That the court below did not err touching the general principles of law applicable in such a case is disclosed by the following excerpt from its well-considered opinion, 34 F.(2d) 293:
“ 'The Street Improvement Act of the State of California, under which, it is asserted, the city proceeded (sees. 4, 5, p. 70, Stats, of Cal., 1889, and Amendatory Acts [Deering’s Gen. Laws, 1923, Act 8195]), provides for the hearing of objections to the proposed work and to the assessments made, and declares that the decision of the City Council allowing or disallowing protests “shall be final and conclusive.” It is admitted by defendants that the finality which attends the determination of the City Council when it acts upon the protest of a property owner assumes eases where that body acts within a fair and reasonable discretion upon the matter before it (which is presumed, prima facie), but that the protestan! is not concluded if he is able to show that no fair rule of uniformity was adopted in making the assessment (Schaffer v. Smith, 169 Cal. 764, 147 P. 976), or that the assessment was made without regard to benefits to accrue to the property taxed (Spring Street Company v. City of Los Angeles, 170 Cal. 24, 148 P. 217, L. R. A. 1918E, 197).
“ 'The question to be answered in such eases is: Did the municipal body use the judicial judgment which the law requires of it, and determine the amount of the assessments upon the basis of benefits to property assessed? Where it is plain that the Council, upon a showing of valid, supporting facts, has ruled that benefits accrue to the property assessed to pay the cost of the work, that determination may not be overthrown by witnesses produced in court who testify that the assessment is. for too large an amount. The law has established the agencies, which shall settle the question of the amount of damages and benefits: first, the commissioners appointed for that purpose; second, the municipal Council, with full power to revise, correct and annul the commissioners’ report. Counsel for defendants have cited a number of California decisions on the question, all showing the limited power which the courts have in these matters. There is no real dif[13]*13ference between respective counsel as to the law.
“ ‘An assessment of the kind here to be considered will be deemed arbitrary and illegal if, upon examination of the record of proceedings had, together with other evidence offered to show fully plain conditions which the assessing officers are presumed to have had before them, the conclusion is inescapable that the property assessed could not be benefited by the contemplated work, or that, if benefited, the benefit necessarily would be trivial or inconsequential. * * *
“ ‘The State law authorizing the segregating of the property of a limited number of taxpayers within a district, and placing the cost of improvement work, the use of which will be equally shared in by the general public, as a charge upon the property within the district, rests, as the Supreme Court of California said in Spring Street Company v. City of Los Angeles, supra, upon the compensating benefit resulting to the included property as “its solo warrant.” ’
“Not only is appellee’s property now devoted exclusively to railroad purposes, and so improved as to make wholly probable the permanency of such use, but by the deeds conveying title to its immediate predecessor in interest it was expressly provided that the grantee must construct and maintain thereon a passenger station, with reversion of title in case of failure to comply with this condition. We aré, therefore, of the opinion that in making the assessment appellant was bound to assume the measurable permanency of such use and to make assessment accordingly. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 S. Ct. 581, 41 L. Ed. 979; City of Oakland v. Schenck, 197 Cal. 456, 241 P. 545; Southern Pac. R. Co. v. S. F. Savings Union, 146 Cal. 290, 79 P. 961, 70 L. R. A. 221, 106 Am. St. Rep. 36, 2 Ann. Cas. 962; Naugatuck R. Co. v. City of Waterbury, 78 Conn. 193, 61 A. 474; New York Bay R. Co. v. Newark, 82 N. J. Law, 591, 83 A. 962; In re East 136th Street, 127 App. Div. 672, 111 N. Y. S. 916; City of Barre v. Barre & Chelsea R. Co., 97 Vt. 398, 123 A. 427, 37 A. L. R. 207; Federal Construction Co. v. Ensign, 59 Cal. App. 200, 210 P. 536; Road Improvement Dist. No. 1 v. Missouri Pac. R. Co. (C. C. A.) 2 F.(2d) 340 ; Kimama Highway Dist. v. O. S. L. R. Co. (C. C. A.) 298 F. 431; Kankakee v. Illinois Cent. R. Co., 257 Ill. 298, 100 N. E. 996.
“In its discussion of the facts the lower court said:
“ ‘The proposed opening of C street does not touch either side of the depot property. The depot now has access furnished on its southerly side from Broadway and along its easterly side from Kettner. Already B street, at the maximum of 300 feet from the easterly center line of the depot, furnishes a way for traffic to enter or depart to or from Kettner. The block lengths in the city are short, none exceeding 300 feet. It would seem to be beyond denial that if Kettner were a private way, and the railroad company were allowed the exclusive use of it as far as B street, for loading purposes, passenger and express, its interests would bo advanced. Any condition which would divert general traffic, having no business at the depot of complainant, from Kettner, would facilitate the handling of the railroad business, both as to the railroad itself and the public who make use of its service. With as ample means, of ingress and egress as could be desired already enjoyed by it, quite apparent it is that any change in conditions which will have the effect of increasing general traffic along the depot frontage on Kettner boulevard can bo of no eoneeivable benefit to the railroad, but rather a detriment. The greater the general traffic the greater the obstruction to complainant’s business. The opening of C street will not only bring into Kettner a new line of miscellaneous traffic, but will create a corner turning-point directly opposite that side of the depot used by cabs and vehicles brought there on business with the railroad. How this condition eould result in advantage to complainant or enhance the value of the property for railroad uses cannot reasonably be explained. This conclusion results from a consideration of fixed conditions, all necessarily apparent, as a fact and by presumption, to the street-opening commissioners and to the municipal Council.’
“Upon an examination of the evidence we discover no reason for disturbing these findings and conclusions, and, therefore, the decree will be affirmed.”