COTTLE v. CITY OF LOS ANGELES (1935)

By ordinance appellant, City of Los Angeles, proposed that Riverside drive, a public street, “be improved by certain grading by the construction of certain concrete paving.” The ordinance was adopted under the provisions of the Improvement Act of 1911 (St. 1911, p. 730, as amended). It further provided for the time and place of protest against the proposed improvement by persons who had any objections. Respondents owned property affected by the proposed improvements, but filed no protest. In the performance of work under this ordinance a change of grade resulted by reason of cuts and fills adjacent to respondents' property, which injuriously affected the use of their property. They filed a claim for damages in proper time with the city council, which rejected the same. They thereupon filed suit, and after trial recovered judgment from which this appeal is taken.

Appellant contends: (1) That by failing to file a protest as required by section 3 of the Improvement Act of 1911 (St. 1911, p. 733, § 3) respondents waived any claim for damages; (2) that the filing of a claim with the board of public works was a prerequisite, under provisions of the charter of the city of Los Angeles, to a cause of action against the city for damages; and (3) that the court erred in allowing interest on the amount of damages awarded.

Respondents concede error in the allowance of interest. This we approve and commend, as it has heretofore been decided that a claim for unliquidated damages arising from unlawful changing of a street grade could not draw interest before reduction to judgment. McNutt v. City of Los Angeles, 187 Cal. 245, 201 P. 592.

Since the lodging of the appeal in this case both the remaining contentions have been decided adversely to appellant's contentions. In the case of Musto-Keenan Co. v. City of Los Angeles, 139 Cal. App. 506, 34 P. (2d) 506, 509, it was contended that the claimant for damages resulting from a change of grade caused by performance of work under an ordinance adopted under the provisions of the Boundary Line Act of 1911 (St. 1911, p. 1018, as amended) which provided for improvement of a street “by certain grading and rolling,” had waived any claim for damages arising from a change of grade in the making of such improvement, as provided in section 4 of said act (St. 1911, p. 1019, § 4, as amended by St. 1929, p. 1716). Upon comparison of section 3 of the Improvement Act with section 4 of the Boundary Line Act, we note that they are substantially the same in language and effect. The court held that a resolution of intention under the Boundary Line Act which provided for certain grading, but which did not state there was to be a change of grade, did not import notice to owners of affected property of a proposed change of grade, and that their failure to protest at the time specified did not constitute a waiver.

Appellant seeks to distinguish the Musto-Keenan Co. Case from the one at bar, by claiming that respondents herein had actual notice that there was to be a change of the grade of the street in front of their property before the time for protest arrived, and that therefore the language of the ordinance referring to “certain grading” did not mislead them and becomes immaterial. In the case cited, the court said: “When it is recalled that the resolution of intention, when published, constitutes the only notice provided by law, and must be ‘such as may reasonably be held to afford adequate opportunity for knowledge of the designed improvement by the property owner who exercises reasonable care in the matter of his property’ (Sala v. City of Pasadena, supra [162 Cal. 714, 124 P. 539]), it is apparent that the notice shall inform an owner of any proposed change of grade, and he shall not be compelled to resort to conjecture nor to an examination of technical plans and profiles to determine if the work is to be done to the established grade or to new grades.” In harmony with the foregoing, we are of the opinion that actual notice to an affected owner of a change of grade proposed to be made under an ordinance providing only for grading does not constitute the basis of waiver of a claim for damages by such owner on failure to protest. In this same case, which was decided by the District Court of Appeal of the Third District, and also in the case of Haigh v. City of Los Angeles, 139 Cal. App. 595, 34 P.(2d) 779, decided within the same week in this court, it was held that where ordinances adopted by the city council of the city of Los Angeles inaugurated street work and ordinary street improvement, a claim for damages resulting from change of grade thereunder was properly filed with the city council, and that it was not necessary to file the same with the board of public works. In both these cases petitions for hearing by the Supreme Court were denied, and we consider them as applicable to, and determinative of, these two questions on the appeal in this case.

The judgment is modified by striking therefrom the words and figures as follows, “with interest thereon at the rate of seven per cent. (7%) per annum from March 19, 1929,” and, as so modified, it is affirmed, costs of appeal to be assessed against appellant.

WILLIS, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIL, J.