Labs v. Cooper

40 P. 1042, 107 Cal. 656, 1895 Cal. LEXIS 804

• Court: California Supreme Court
• Decided: July 3, 1895
• Docket: No. 18345
• Status: Published

Opinion

Henshaw, J.

Appeal from the judgment rendered in favor of defendant in an action to foreclosure the lien of an assessment for street work.

The court found in favor of the plaintiff upon all his averments excepting that of the recordation of the diagram.

The diagram, as recorded, omitted the arrow and the initial letters N., E., S., and W., indicating the points of the compass. The court concluded that there was no sufficient description of the property contained in the recorded assessment and diagram and passed judgment accordingly.

The arguments here urged in support of the sufficiency of the diagram were with few exceptions before this court in San Francisco v. Quackenbush, 53 Cal. 52, and Norton v. Courtney, 53 Cal. 691, and there held insufficient.

The purpose of the recordation being to carry notice by an inspection of the record to the owner and all others having dealings with the property that it is subject to a lien, it follows that any variance between the original and recorded instruments which defeats this purpose is material. Per contra, if the diagram and assessment as recorded do contain a sufficient description, then, in this regard, any departure from the original form will be held trifling and immaterial.

In the diagram as recorded, in the above cases, the relative locations of the streets to each other were shown, as were also the relative locations, frontages, and dimensions in feet of the lots assessed, and the lots bore appropriate assessment numbers. No difficulty would have been experienced by any one in fixing with mathematical accuracy the precise position of any piece of land sought to be charged, if only the points of the compass had been indicated. But without this indicator an owner could not determine from an inspection of the diagram and assessment where upon the map his land was platted, nor whether, in fact, it was delineated at all. It is true, he could determine these matters by a resort to outside aids, but the rule, id cerium est, quod certum reddi potest, has no application to descriptions under proceedings in invitum. In such cases the description must be sufficient to enable the owner to determine from an inspection of it whether his land is sought to be subjected to the lien.

The doctrine of these cases has been apparently modified in the later cases of Whiting v. Quackenbush, 54 Cal. ; Williams v. McDonald, 58 Cal. 527; Brady v. Page, 59 Cal. 52; Williams v. Savings & Loan Soc., 97 Cal. 122; but the modification is 'based upon the view of the court, expressed in each case, that the diagram is sufficient because the court must take judicial notice of the streets of San Francisco, their relative locations, and the directions in which they extend. (Stats. 1858, pp. 52, 56.)

But in the case at bar the description cannot be held sufficient even upon this ground. In the assessment the land is described as “ All, Lot 6, Block D and E— 16 and 17,” and upon the diagram a lot is numbered 6. This, appellant contends, is sufficient because it contains the number of the lot according to the official map of the city of Sacramento. There is, however, nothing in the record to show this, the assessment does not refer to any official map, we cannot take judicial notice that there is such a map, and, what is of still more consequence, the property owner is not chargeable with knowledge of it.

We conclude, then, that the recorded diagram and assessment contain no sufficient description of the land to be charged, and that the omissions indicated form a material variance between the original and recorded diagram.

The judgment is affirmed.

McFarland, J., and Temple, J., concurred.