JAMES PHELAN v. CITY AND COUNTY OF SAN FRANCISCO

[No. 7,314. Department Two.] November 14, 1882. JAMES PHELAN v. CITY AND COUNTY OF SAN FRANCISCO. Construction of Order of Board of Supervisors—Sidewalk—Street Improvement — San Francisco—Acceptance of Street Improvements.—Section 22 of Chapter iv. of Order 697 of the Board of Supervisors of the City and County of San Francisco provides that: “No street or portion of a street shall be accepted by the Board of Supervisors except upon the report of the Superintendent of Public Streets and Highways and the committee of the Board of Supervisors on streets, wharves, grades, and squares, showing that such street or portion of a street is sewered with brick and paved and curbed with stone.” Conceding that for certain purposes the sidewalk is a portion of the street, this order was not intended to require the sidewalk as well as the roadway to be sewered with brick and paved and curbed with stone. Id.—Each requirement has reference to the object to be accomplished, that is, the sewer to be of brick, the roadway paved, and the sidewalk curbed. • Id.—The Board of Supervisors in accepting the street determined that the respective objects had been accomplished. Appeal by the defendant from the judgment of the Twenty-third District Court of the City and County of San Francisco, and from an order of the Superior Court of said city and county denying a motion for a new trial. Thornton, J., of District Court; Wilson, J., of Superior Court. Action upon contract to recover judgment against the City and County of San Francisco for street improvements made on a portion of one of its accepted streets. Section 22 of Chapter iv. of Order 697, referred to in the opinion, is as follows: “No street or portion of a street shall be accepted by the Board of Supervisors except upon the report of the Superintendent of Public Streets and Highways and the committee of the Board of Supervisors on streets, wharves, grades, and squares, showing that such street or portion of a street is sewered with brick and paved and curbed with stone; and no street-crossing shall be accepted except on like report showing that such crossing is so sewered, curbed, and paved with stone, and sidewalks and angular corners thereof, and suitable crosswalks, manhole and cover, cesspools, and culverts constructed. The acceptance of a street, part or portion of a street, or street-crossing, shall be by resolution.” After the work was performed the Board of Supervisors duly accepted it. The other facts are stated in the opinion. J. F. Gowdery, City and County Attorney, for Appellant. J. M. Wood and J. G. Bates, for Respondent. [MAJORITY — The Court :] The Court : Conceding that for certain purposes the sidewalk is a portion of the street, we can not say that Section 22 of Chapter 4, of Order 697 of the Board of Supervisors of the City and County of San Francisco, was intended to require the sidewalk, as well as the roadway, to be “sewered with bride and paved cmd curbed with stone.” As we understand, the sewer was to be of brick, and the roadway was to be paved, and the sidewalk curbed. These requirements appear to have been complied with. Each requirement was to have reference to the object to be accomplished; and the board, in accepting the street, determined that the respective objects had been accomplished. Judgment and order affirmed.