the circum

Plaintiff's counsel lays much stress stance that no vegetables were raised on lot 14 in the year 1882, in which the levy and sale were made. We think this immaterial, in view of the fact of the use of the lot for other purposes. The pump from which water was procured for use by the family was on the lot, and there were trees growing on it, fruit-trees, we infer, from the testimony of Mrs. Mace. It is clear that this lot was used with lot 15 by the family. If a lot had been used as this one had been, for a year or two just prior to the filing of the homestead, for a garden, the circumstances that vegetables were not grown on it during the year in which the filing was made would, in our judgment, be entitled to but little weight on the question whether such lot, after the filing, constituted a part of the homestead, especially where other uses of the lot are shown.

When the homestead filing was made, lot 15 was the separate property of the wife, and lot 14 was common property, and it is argued by plaintiff that a valid homestead could not be created on land a part of which was the separate property of the wife and the other part common property.

The statute provides that "if the claimant be married the homestead may be selected from the community property, or the separate property of the husband, or with the consent of the wife from her separate property." (Civ. Code, sec. 1238.)

In this case the filing was by the wife, and such filing by her must be regarded as a consent to the filing on her separate property. Under the statute she can certainly create a homestead on her own or separate property.

We see no valid reason why a homestead cannot be created on a lot of land consisting in part of separate and in part of common property, as was done in this

case.

We do not intend by what is said above to hold that a husband can, by adopting the course pursued in this case, create a homestead on the separate property of the wife.

In accordance with the foregoing, the judgment and order must be reversed, and the cause remanded for a a new trial.

So ordered.

MCFARLAND, J., and SHARPSTEIN, J., concurred.

[No. 11115. Department Two.-May 29, 1888.]

A. C. DIGGINS, RESPONDENT, v. MORRIS BROWN APPELLANTS.

ET AL.,

STREET ASSESSMENT IN SAN FRANCISCO-APPORTIONMENT OF BURDEN.The San Francisco street law does not provide that each lot in the district assessed shall pay for the work done in front of it.

ID. DISTRICT ASSESSED.-Where the board of supervisors order "that plank sidewalks be constructed on Olive Avenue between Laguna and Buchanan streets where not already constructed, and that the roadway be macadamized where not already done," the district to be assessed is the block between the streets mentioned, subject to the provision of subdivision 10 of section 8 of the consolidation act as to work done on one side of the center line of the street. ID. OMISSION OF LOT FROM ASSESSMENT.-Where a lot within the district to be assessed and liable to assessment is omitted, the whole assessment is void.

APPEAL from at judgment of the Superior Court of the city and county of San Francisco, and from an order 1efusing a new trial.

The action was brought to foreclose a street assessment for work done on a street in the city and county of San Francisco. The work was done under the act of April The further facts are stated in the opinion.

1, 1872.

J. C. Bates, and Naphtaly, Friedenrich & Ackerman, for Appellants.

J. M. Wood, for Respondent.

HAYNE, C.-Action to foreclose the lien of a street assessment. The only point made is, that the assessment shows upon its face that it was not made in accordance with the statute.

The order under which the work was done provides "that plank sidewalks be constructed on Olive Avenue, between Laguna and Buchanan streets where not already constructed, and that the roadway thereof be macadamized where not already done."

The diagram attached to the assessment is as follows:

120 feet.

137 feet 6 inches.

137 feet 6 inches.

100 feet.
3

OLIVE AVENUE.

The items of the work, as shown by the assessment, are

as follows:

3,937 5-10 square feet of macadam, at $0.10....

375 front feet of sidewalks, at $1.15..

Printing, $18.90; engineering, $33..

Total

Number of front feet assessed...
Rate per front foot.....

.$393 75

431 25

51 90

.$876 90

.375 .$2.3384

The distribution of the burden was as follows:-

It thus appears that the lots designated as a and b upon the above diagram were not assessed at all, although they fronted on Olive Avenue between the streets mentioned.

In making the assessment in this way, the officer doubtless acted under what we conceive to be a mistaken construction of the provisions of the act of 1871-72, under which the proceedings were had. There are two provisions of that act which are relied upon by respondent as justifying the assessment, viz., subdivisions 10 and 1 of section 8. The former is as follows:

"Subd. 10. When any work mentioned in section 3 of this act is done on one side of the center line of said street, . . the lots or portions of lots fronting on that side only in front of which said work is done shall be assessed to cover the expenses of said work," etc. (Laws 1871-72, p. 811.)

In view of this provision, the officer was justified in assessing the lots on one side of the street for the work done on that half of the street, and the lots on the other side for the work done on the other half. But this does not meet the difficulty, even if we assume in favor of the assessment (as we think should be done), that no work was, in fact, done on the half of the street in front of lots a and b. That is simply saying that they should not be assessed (and were not assessed), for work done on the opposite side of the street. But this is a different thing from saying that they should not be assessed for work done on their own side of the street. And the difficulty

here is, that the work done on one side of the street was not apportioned to all the lots on that side.

It appears from the assessment itself that this is the case. For it is certain that work was done on the side of the street upon which lot b is situated, because lot No. 3 on that side was assessed, and under subdivision 10 it could only have been assessed for work done on its side of the street; and it is equally certain that lot b on the same side was not assessed at all. And the same applies mutatis mutandis to lot a on the other side of the street.

The practical result of the course which the officer pursued is, that No. 3 (which is the one involved in this suit), was assessed for the work done in front of it, and that this burden was not shared by the adjoining lot on the same side (lot b), nor by the lot opposite (lot a).

This can only be justified upon the theory that the act requires each lot to be assessed for the portion of the work which was done upon the half of the street in front of it, and for no other work. And although the statement of respondent's position in this regard is somewhat vague, we understand him to go to this extent.

In support of his position the counsel refers us to subdivision 1 of section 8 of the act of 1871-72. 1871-72, p. 809-10), which is as follows:

(Laws

"Subd. 1. The expenses incurred for any work authorized by section 3 of this act shall be assessed upon the lots and lands fronting thereon."

The words "fronting thereon," says the counsel, "refer to the work done. It requires the assessment to be imposed upon the lands fronting on the work."

It is not clear in what sense the counsel uses the word "work." But as above mentioned the argument would not justify the assessment unless it goes to the extent stated. In order to save the assessment it is necessary to construe the provision so as to read substantially as follows:

"Subd. 1. The expenses incurred for any portion of the

LXXVI. CAL-21