erty, and the owner could rely on the invalidity |the lots in the same side of the street along in an action to enforce the assessment. which the entire sidewalk was constructed, -EVIDENCE-ADMISSIBILITY. 3. EVIDENCE 333(4)—ILLEGAL ASSESSMENT but in proportion to the number of square feet of sidewalk constructed in front thereof as compared with the number of square feet in the whole area of sidewalk constructed, which motion the court denied. In proceeding under St. 1909, p. 167, for work and construction of sidewalks and curbing, where assessment was illegal on its face, the assessment roll was not admissible in evidence. Department 2. Appeal from Superior Court, Los Angeles County; Eugene P. McDaniel, Judge. Action by the City Securities Company against Harriet Harvey and others. From decree for plaintiff and order denying motion for new trial, defendant Harvey appeals. Reversed. Hiatt & Selby, William M. Hiatt, Edward [1] The chief question involved and the only one necessary to decide is the validity of the assessment made in apportioning the cost of constructing the sidewalk on the northeasterly side of Eleventh street on which defendant's property abutted and in front of whose lot the sidewalk as authorized in the proceeding was of a width of 91⁄2 feet, while the specified width of other portions thereof on the same side of said street and in front M. Selby, and Howard R. Hinshaw, all of of other lots was 72 feet. Section 6 of the Los Angeles, for appellant. A. J. Sherer and Arthur G. Baker, both of Los Angeles, for respondent. VICTOR E. SHAW, Judge pro tem. Action to foreclose a lien based upon an assessment against a lot and parcel of land owned by defendant Harvey for the cost of constructing a sidewalk on Eleventh street, upon which said property fronted in the city of Los Angeles. A decree was entered as prayed for in favor of plaintiff, from which, and an order denying her motion for a new trial, defendant Harvey appeals. The proceedings which created, the alleged lien purport to have been had and taken by the city council of Los Angeles under and pursuant to the provisions of an act of the Legislature entitled "An act to provide for work upon and construction of sidewalks and curbing within municipalities" (Stats. 1909, p. 167), and provided for the construction of cement sidewalks varying in width on portions of both sides of Eleventh street, between Main and Figuroa streets. act provides that: * The "expense incurred for the construction of any sidewalk authorized by this act shall be assessed upon the lots and lands fronting thereon on the same side of the street where said sidewalks shall be constructed, each lot, or portion of lot being separately assessed in proportion to the frontage at a rate per front foot sufficient to cover the total expense of the work. Concededly the assessment was not so made. As shown on the face thereof, the entire cost of the work on both sides of the street, together with the incidental expense thereof, was apportioned to and assessed against the lots fronting on each side thereof in such proportion as the number of square feet of sidewalk in front of each lot bore to the entire area of sidewalk constructed, so that the assessment against lots of the same frontage was greater or less in amount, depending upon the width of the sidewalk upon which they fronted. [2, 3] It is suggested that, conceding the assessment was not made as provided by law, nevertheless the remedy of defendant, if aggrieved or objecting to the correctness or At the trial the court, over defendants' legality of the assessment, was an appeal to objection, admitted in evidence the warrant, the city council, provision for which is made assessment, and diagram made by the super-section 10 of the act, which declares the deintendent of streets, together with the cer- cision of such body to be final and conclutificate of the city engineer as to the comple- sive as to all matters therein made the subtion of the work, which under section 11 of ject of appeal. Since unauthorized by any the act, when accompanied by an affidavit law of this state, the assessment is void on of demand and nonpayment, are made prima its face, constitutes no lien on defendant's facie evidence of the regularity and correct property, and hence she is not an aggrieved ness of the assessment and the prior proceed-party within the meaning of the provision. ings upon which said assessment, warrant, As stated in Ryan v. Altschul, 103 Cal. 177, and diagram are based, and like evidence 37 Pac. 340: of plaintiff's right to recover in the action. Thereupon, plaintiff having rested, the de fendant moved for a nonsuit upon the ground, among others, that the documents offered and received in evidence were on their face illegal and void, and as made, without authority of law, for the reason that as appeared therefrom, the assessment inIcluded the work done on both sides of the street and against each lot, not in proportion to the frontage which it bore to that of all "If, however, the assessment is void upon its face, it does not constitute an apparent lien upon the property, and as its invalidity is always apparent, the owner is not 'aggrieved,' and is not required to seek its correction by an appeal, but may defend, upon this inherent invalidity whenever an attempt is made to enforce it, or any right is asserted by virtue of its existence." Where the assessment itself discloses that it is made in a manner not authorized by statute, it is void on its face. An owner of property thus assessed is not required to appeal to the city council for the correction in so far as the money recovery was conof the assessment, but may as a defense in an action to enforce the same rely upon its inherent invalidity. Pacific Pav. Co. v. Verso, 12 Cal. App. 362, 107 Pac. 590. The court erred in admitting the assessment roll in evidence, and likewise erred in denying defendant's motion for a nonsuit. cerned,, but not seeking any stay as to the portion of the judgment relative to possession of the demised premises. In the complaint it was alleged that by the judgment the tenant was required to "and did surrender possession of said premises" to the landlord. By the answer, it was denied that "the tenant was obliged to surrender" possession of the premises, "or that, he was deprived of the possession thereof by either of defendants." We concur: MELVIN, J.; HENSHAW, J. without asking for any stay, "and before the It was further alleged that Our conclusion renders it unnecessary to consider other grounds urged for a reversal. The judgment and order are reversed. BLACK v. KNIGHT et ux. (S. F. 7212.) (Supreme Court of California. Dec. 14, 1917. Rehearing Denied Jan. 10, 1918.) LANDLORD AND TENANT ~318(3)—WRONGFUL DISPOSSESSION-DAMAGES "EVICTION." The prosecution to judgment of an action of unlawful detainer by a landlord, without malice, does not constitute an eviction which would entitle the tenant, on reversal, to damages, where no writ to dispossess was issued, tenant having moved by reason of the judgment. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Eviction.] In Bank. Appeal from Superior Court, City and County of San Francisco; Jas. M. Troutt, Judge. Action by Henry Black against Robert S. Knight and Henrietta C. Knight, his wife. Judgment for plaintiff, and Henrietta C. Knight appeals. Reversed. Samuel Knight, of San Francisco, and Carl H. Abbott, of Oakland, for appellant. Arthur H. Barendt, of San Francisco, for respondent. ANGELLOTTI, C. J. This is an action for damages for the alleged unlawful eviction of plaintiff by his landlord from premises held and occupied by him as a tenant under a lease. Judgment was given for the sum of $10,449, and the appeal is from such judgment and from an order denying a motion for a new trial. All but $586 of the amount awarded was on account of the value of the unexpired term of the lease (fixed at $11,544), such $586 being for expense and damage incurred in defending the unlawful detainer action. issuance of any writ of execution or assistance whatever," the tenant "abandoned the possession of the said premises." The trial court found simply that the tenant, “in compliance with said judgment, was required to and did surrender possession of said demised premises" to the landlord. This finding is assailed as being without sufficient support in the evidence. There was no evidence whatever as to the circumstances attending the change of possession; nothing tending to show that the tenant, without the issuance of any writ and without any demand by the landlord, did not abandon possession to the landlord upon the entry of the judgment. For all the purposes of this appeal it must be assumed that he did actually abandon the premises without being compelled to do so under any process issued and served under the judgment in the unlawful detainer proceeding. On appeal, the judgment in the unlawful detainer action was reversed, and the cause remanded for a new trial. The landlord then tendered possession of the premises to the tenant for the unexpired portion of the term, but the tender was not accepted. The unlawful detainer action was then dismissed by the landlord. In view of the record it must also be assumed for all the purposes of this appeal that the unlawful detainer action was commenced and prosecuted to the end in good faith and without malice. The judgment herein was for the, amount found to be the full value of the unexpired term at the time the tenant surrendered possession, plus the amount of the expenses of the tenant in defending his possession, less certain counterclaims aggregating $1,891. The only alleged eviction found was the The theory upon which this judgment is prosecution by the landlord to judgment in sought to be sustained is that the prosecuthe superior court of an unlawful detainer tion by the landlord of the unlawful detainer proceeding on account of the alleged viola-action to a judgment in his favor, which tion by the tenant of a covenant of the judgment, by its terms, required the tenlease, the judgment entered therein declar- ant to deliver possession to the landlord, ing the lease canceled and forfeited, and adjudging that the tenant "restore" and the landlord "have" possession of the demised premises, and that the landlord recover from the tenant $2,250 damages, $200 attorney fees, and $30 costs. The tenant appealed from the judgment, staying by bond the enforcement of the judgment pending appeal entitled the tenant to treat the conduct of the landlord as a breach of the covenant of quiet enjoyment and an unlawful eviction, with the result that not only could he regard the lease upon voluntary surrender of possession as at an end and himself exempt from liability for further rent, etc., thereunder, but, also, treating the lease as still in force, recover as damages the value of the unexpired term thereunder, in the event that he succeeded on his appeal from the judgment. tion of the covenant for quiet enjoyment, to the same extent as if he had taken plaintiff's tenants by the shoulders and forcibly ejected them. But that there must be an actual depConsideration of the authorities satisfies rivation of the beneficial enjoyment of the us that such a theory finds no substantial premises to constitute an eviction was emsupport therein. It may be assumed purely phatically stated, and the case is not authorfor the purposes of this decision that if the ity for the proposition that the mere institutenant is actually ousted from possession tion and prosecution, by the landlord, even to under process issued upon such a judgment, judgment, of an unlawful detainer action, in he may treat such ouster as a breach of the good faith and without malice, can be held to implied covenant for quiet enjoyment, and constitute an invasion of the beneficial enrecover his damages in the event of a re- joyment of the premises guaranteed the tenversal of the judgment. Certain states have ant by his covenant for quiet enjoyment. statutes providing for the recovery of such This was clearly and distinctly shown in the damages, among which is New York, where later case of Agar v. Winslow, 123 Cal. 587, 56 the statute provides substantially that if the Pac. 422, 69 Am. St. Rep. 84, in which there final order in such a summary proceeding is was involved the question whether the prereversed upon appeal, the person dispossess-vious institution of an action in ejectment by ed may maintain an action to recover the the landlord constituted an eviction of the damage sustained by the dispossession. Even under such a statute it has been held that actual dispossession of the tenant by the landlord is essential to a right of recovery, and that, where the tenant removes from the premises without the taking of any steps on the part of the landlord to enforce the judg-ises, leaving them vacant." In the case at ment, he cannot maintain the action. See Halperin v. Henry, 144 App. Div. 658, 129 N. Y. Supp. 599; Coe v. Haines, 44 N. J. Law, 134. There is no such statute in this state. It seems to us that wherever the tenant's claim is based solely on an alleged deprival of actual possession, and is for the consequent damages, no other rule can logically or reasonably be applied. the essential thing in Levitsky v. Canning, sutenant. As substantially stated in that case, amounting to an eviction had the effect to pra, was "that the acts complained of as make the tenants of the lessee quit the prem bar, if the tenant had been actually ousted from possession by the landlord, under process issued upon the unlawful detainer judgment, it might well be argued that Levitsky V. Canning, supra, required a conclusion, contrary to very respectable authority, that there had been a wrongful deprival of possession by the landlord, constituting a breach of the covenant for quiet enjoyment. But, as we have seen, that element must be held to be lacking here. It is elementary that the covenant for quiet enjoyment goes only to the possession, and that to constitute a violation thereof, as said So long, certainly, as there is no disturbin Levitsky v. Canning, 33 Cal. 299, "there ance of the tenant's beneficial enjoyment of must be some act of molestation, affecting, the premises caused thereby, the right of a to his prejudice, the possession of the cov- landlord, acting in perfect good faith and enantee." It is true that a complete physical without malice, to prosecute an action in the ouster of the tenant is not always essential courts for the purpose of obtaining a deterto an eviction, and it has often been declared mination of the question whether the tenant that any wrongful act of the landlord which has not forfeited his term because of violodirectly results in depriving the tenant of tion of some covenant of the lease, without the full beneficial enjoyment of the premises making himself amenable to the tenant in is an eviction. In Levitsky v. Canning, supra, damage, cannot well be disputed. Indeed, where the tenant was never actually ousted there is much authority which goes further in from or abandoned the premises, the slander- favor of the landlord's rights in this respect. ing of the tenant's possession, the giving out It is substantially said in 2 Tiffany, Landand pretending publicly that the tenant had lord and Tenant, § 289, that the general rule no right to possession, and the bringing of is that in order to make one liable for the intwo actions at law to recover possession from stitution of a civil suit it must have been the tenant and his subtenants, under the pre- with malice ard without probable cause, and tense that the lease had expired (one of which that, under this rule, a landlord would not be actions was dismissed by the landlord, and liable to his tenant for damage to the latter the other of which resulted in judgment for arising from his wrongful institution of a the tenant), with the result that the subten- summary proceeding to recover possession, ants quit the premises by reason of their unless it was instituted maliciously and withdoubts caused thereby as to the lawfulness of out probable cause. See, also, Porter v. Johnthe tenant's possession, leaving them vacant, son, 96 Ga. 145, 23 S. E. 123; Hegan-Mantel and he was unable to let to other parties, Co. v. Cook's Adm'r et al., 57 S. W. [Ky.] 929. were held to disturb and interrupt the pos- It has been declared that an entry by the the landlord and tenant act for nonpayment | insisting that the act of the landlord in prosof rent is not an eviction (24 Cyc. 1132, note); ecuting his action to judgment shall be treatand also, substantially, that the right to dam-ed as an eviction, and the landlord held liable age in such cases exists only where the dis- to him for any loss suffered from his failure possession proceedings have been instituted to enjoy the remainder of the term. To our maliciously and without probable cause; or minds neither reason nor authority warrants where the process has been used excessively the holding that such position is correct, or for a purpose which it was not intended by where the tenant actually abandons the poslaw to effect as in cases of abuse of process: session without being compelled to do so unor when expressly provided by statute. See der any process issued and served under the 24 Cyc. 1462. But certainly there can be no judgment in the unlawful detainer proceedeviction or liability in damage on the part of ing, and the proceeding was brought and the landlord, in such a case, so long as there maintained in good faith and without malice. is no disturbance of the tenant's beneficial As we read 1 Taylor on Landlord and Tenenjoyment of the premises. The mere pendant, § 311, and 2 Tiffany on Landlord and ency of the suit constitutes no such disturb- Tenant, §§ 184, 185, we find nothing contrary ance. The claim of learned counsel for plain- to this view. tiff is based principally upon the fact that here Decisions to the effect that the establisha judgment was obtained in the superior ment of a title paramount to that of the landcourt which, by its terms, required restora- lord by decree of a court of competent juristion of the premises to the landlord. It seems diction warrants the tenant in yielding posto us that this fact does not assist, and that session to the true owner, without waiting to the utmost that may reasonably be claimed be dispossessed under a writ of possession, by the tenant under these circumstances is and in treating the judgment as an eviction that the landlord may not enforce his judg- by title paramount are, of course, not in ment by actually ousting the tenant from pos- point. In Mack v. Patchin, 29 How. Prac. session under the judgment, without making (N. Y.) 20, Id., 42 N. Y. 167, 1 Am. Rep. 506, himself liable for the damage resulting from a case strongly relied on by plaintiff, the tenthis deprival of possession, in the event of a ant was compelled to yield possession by virreversal of the judgment. Until the land- tue of a writ of assistance issued in foreclolord does so enforce the judgment, he does sure of mortgage proceedings, the mortgage not actually disturb the possession and ben- being prior in right to his interest as lessee. eficial enjoyment, and the case in this reThe writ had been issued and placed in the spect is just as it was before entry of judg-manded the possession of" the tenant. It aphands of the sheriff, who "by virtue of it dement. The landlord is not compelled to carry peared further that the landlord had expeditthe judgment into execution simply because it ed, if he did not instigate, the foreclosure of has been given and entered. He may well de- the mortgage, and was a joint purchaser on cide to withhold execution until the final de- the mortgage sale, and a joint petitioner, termination of his action-until it has been with the other purchaser, for the writ of asfinally determined that the tenant has for- sistance. In short, he had apparently actufeited his term, and that he may treat the ally connived, for his own benefit, in having term as forfeited and safely enforce his judg- the tenant dispossessed by paramount title. ment. The tenant has no right to assume from the mere entry of judgment that the landlord intends to do otherwise. Authorities are, of course, ample to the effect that the tenant may accept not only the prosecution to judgment of such an action, but also the mere institution thereof, as such an election on the part of the landlord to terminate the lease that he will be justified in treating the lease as ended, and may yield possession of the premises and be free from further liability under the terms of the lease. Such is the meaning of the declaration in section 675 of Underhill on Landlord and Tenant, relied on by plaintiff, where Jennings v. Bond, 14 Ind. App. 282, 42 N. E. 957, is cited, the same being an action for rent after a suit in ejectment maintained by him and after a subsequent offered surrender of the premises by the tenant. This, however, is an entirely different proposition from the one involved in this case. Here the tenant so yielding pos We are not interested here in determining just what acts of a landlord interfering with the beneficial enjoyment by the tenant of the premises, short of actual physical ouster, will warrant the latter in abandoning possession and treating the conduct of the landlord as an unlawful eviction, with the right to the damage consequent upon being deprived of the remainder of his term. It is sufficient for the purposes of this case to hold, as we do, that the mere prosecution to judgment by the landlord of an unlawful detainer action, in good faith and without malice, for the purpose of obtaining a judicial determination of the question whether he is entitled to possession by reason of some default or the part of the tenant, and possession in the event that the determination is in his favor, is not such an act. From what we have said it necessarily follows that, upon the record before us, the recovery against appellant cannot be sustained to consider other points made by her for a improvement proposed, and refer to said ordireversal. nance of intention for a description of the asThe judgment and order denying a new sessment district and for further particulars." trial are reversed. We concur: SHAW, J.; MELVIN, J.; SLOSS, J.; LAWLOR, J.; HENSHAW, J.; VICTOR E. SHAW, Judge pro tem. Under section 4, persons interested are authorized to file written protest within 30 days after the first publication of the notice; a time for hearing such protests is to be fixed, and the board is to pass upon the same. At the expiration of the time within which protests may be filed, or after the denial of pro FERRI et al. v. CITY OF LONG BEACH tests which have been filed, the city council acquires jurisdiction to order the improvement. et al. (L. A. 4087.) (Supreme Court of California. Dec. 11, 1917.) construction. 2. MUNICIPAL CORPORATIONS 294(3) STREET OPENING-NOTICE-REQUISITES. In proceeding for street opening under St. 1903, p. 375, § 3, as amended St. 1913, p. 430, § 2, a notice of passage of ordinance for the improvement, defective in failing to set out date thereof, was not cured by reference to the ordinance "for further particulars." Department 1. Appeal from Superior Court, Los Angeles County; Lewis R. Works, Judge. Injunction by Elizabeth Ferri and others against the City of Long Beach and others. Judgment for defendants, and plaintiffs appeal. Reversed with directions. Phil M. Swaffield and Roland G. Swaffield, both of Long Beach, for appellants. Geo. F. Kapp, of Long Beach, for respondents. From the findings of fact it appears that the ordinance declaring the intention of the council to order the improvement was passed on the 29th day of December, 1911. (It was passed on its first and second readings on the 22d day of December, 1911, but was not finally passed until December 29th, which must, of course, be taken as the date of its passage, within the meaning of the act.) The posted notice, in addition to stating that the ordinance of intention was passed on the 22d day of December, 1911, briefly described the improvement, and referred to said ordinance for further particulars. Notwithstanding the discrepancy between the actual date of the passage of the ordinance and the date recited in the notice, the court found that the proceedings had been conducted in substantial compliance with the law, and that the assessments levied were legal. Judgment fendants, and from this judgment the plainwas entered accordingly in favor of the detiffs appeal. [1, 2] We think the conclusion of the trial court cannot be sustained. Unquestionably the giving of the notice required by the act is one of the steps necessary to confer upon the council jurisdiction to order the work "Proceedings for street assessments, being in invitum, must, in order to charge the property of the owner, be based upon a compliance with assessment, in so far, at least, as those provithe provisions of the statute authorizing the sions have to do with the giving of notice or other steps precedent to the jurisdiction of the board to order the work done." Haughawout v. Percival, 161 Cal. 491, 493, 119 Pac. 649, Ann. Cas. 1913D, 115; Himmelmann v. Cahn, 49 Cal. 285; Brooks v. Satterlee, 49 Cal. 289; Dehail v. Morford, 95 Cal. 457, 30 Pac. 593. SLOSS, J. The plaintiffs, owners of prop-done. erty in the city of Long Beach, brought this action against the city of Long Beach, and the members of its board of public works, to enjoin the enforcement of a street assessment by the sale of the plaintiffs' property, and to have the assessment declared void. The proceedings which are attacked were had under the "street-opening act of 1903," as amended. Stats. 1903, p. 376; Stats. 1909, p. 1035; Stats. 1911, pp. 855, 894; Stats. 1913, p. 429. The city authorities undertook to order the widening of a street in Long Beach, and to assess the cost of the improvement upon a certain district, which included the lands of the plaintiffs. Section 1 of the act gives to the city council power to order such work to be done. Section 2 provides that before ordering any improvement to be made, the city council shall pass an ordinance declaring its intention so to do. Section 3 provides for the publication and posting of notice of the passage of said ordinance. Such notice is to be posted at certain points, and "shall state the fact and date of the passage of said ordinance and briefly describe the Where the statute prescribes a certain kind of notice, a court is not justified in saying that some other kind of notice would be equally effective. Section 3 of the act provides that the notice shall state the fact and date of the passage of the ordinance. Confessedly, the notice in this case did not state the date of the passage of the ordinance, but stated, as such date, a day seven days prior to its actual passage. It is true that the act contains a provision (section 37) that its provisions shall be liberally construed. But no liberality of construction would justify a holding that a notice which fails to state the true date of the passage of an or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |