Spaulding v. Wesson

24 P. 377, 84 Cal. 141, 1890 Cal. LEXIS 775

• Court: California Supreme Court
• Decided: May 12, 1890
• Docket: No. 12391
• Status: Published

Opinion

Fox, J.

A vital issue in this case is, whether or not Union Street between Larkin and Franklin streets had ever been dedicated as a public street. Upon that issue there is no finding whatever, unless it be held that the finding “ that all the other allegations of the answer of defendants (and amendments thereto) are true as therein stated ” covers that issue. If there is no finding covering the issue, the error is fatal; if the omnibus finding quoted covers it, then, in our judgment, the finding upon this point is not supported by the evidence. In either event, the order must be reversed.

The first, third, and sixth findings are mere conclusions of law. An allegation that the hoard bad no authority or jurisdiction to order the work to be done raises simply an issue of law. The facts should be alleged and specifically found. (Spaulding v. Bradley, 79 Cal. 449.) But if the finding in this case on that subject be considered as a finding of fact, it is not supported by the evidence. It appearing that two or more blocks on each side of the street had been graded, that the work had been recommended by the superintendent of streets, and that the resolution of intention had been duly passed and published, it was not necessary to jurisdiction that there should be a petition by owners. (Stats. 1871-72, pp. 804-815.)

Ueither the facts nor the questions raised in Spaulding v. Bradley, supra, are the same as those involved herein.

Order appealed from- reversed, and cause remanded for a new trial.

McFarland, J., Paterson, J., and Sharpstein, J., concurred.

Rehearing denied.