# Wilson v. Beville > California Supreme Court · February 8, 1957 · 47 Cal. 2d 852 URL: https://www.frixlaw.com/law-library/cases/9617138 ## Case - **Full name:** H. J. WILSON, Appellant, v. CHARLES HENRY BEVILLE Et Al., Defendants; THE CITY OF LOS ANGELES, Respondent - **Court:** California Supreme Court - **Decided:** February 8, 1957 - **Citations:** 47 Cal. 2d 852; 306 P.2d 789; 1957 Cal. LEXIS 307 - **Precedential status:** Published - **Opinion:** Dissent by Shenk - **Judges:** Carter, Shenk - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9617138 ## Opinion text SHENK, J. I dissent. In 1927 the city of Los Angeles, pursuant to street im *863 provement proceedings under the Improvement Act of 1911 (Stats. 1911, p. 730; now Sts. & Hy. Code, §§ 5000-6794) levied an assessment for benefits for street improvements on real property including Lot 195 Tract 6710. Assessments that were not paid went to bond, including the assessment on Lot 195 for $207.57, here involved. On December 28, 1927, the bond was acquired by the Municipal Bond Company. On November 25, 1927, the city commenced another street improvement proceeding pursuant to the Street Opening Act of 1903 (Stats. 1903, p. 386). This proceeding was authorized by Ordinance 58294 entitled “An ordinance ordering the laying out, opening and extending . . .” of the streets named in the ordinance. By an order of condemnation pursuant to that proceeding the city acquired an easement for street purposes across a part of Lot 195 upon which the improvement bond constituted a lien. The owner of the bond lien was not made a party to that condemnation proceeding. The assessment represented by the bond was not paid and the bond was foreclosed. On October 19, 1938, a certificate of treasurer’s sale was issued to the plaintiff’s predecessor in interest who quitclaimed to the plaintiff on April 12, 1951. This action to quiet title was commenced the following day. That the opening, widening and improvement of public streets within a chartered city is a municipal affair is the established law of this state, and there are no decisions to the contrary. Prior to 1896 municipal charters were subject to and controlled by general laws. By an amendment of section 6 of article XI of the Constitution in 1896 such charters continued to be subject to and controlled by general laws “except in municipal affairs.” In the case of Byrne v. Drain (1900), 127 Cal. 663 , this court said at page 667 [ 60 P. 433 ] : “That the matter of opening the streets of a municipality is a municipal affair is not disputable under the authorities. (Sinton v. Ashbury, 41 Cal. [525] 531; People v. Holladay, 93 Cal. 241 [ 29 P. 54 , 27 Am.St.Rep. 186 ]; Hellman v. Shoulters, 114 Cal. [136] 141 [ 44 P. 915 , 45 P. 1057 ].)” In the case of City of Los Angeles v. Central Trust Co. of New York, 173 Cal. 323 , this court stated at page 327 [ 159 P. 1169 ] : “The opening, laying out, and improvement of streets within a city, and the regulation of the manner of their use are matters of much greater concern to its inhabitants than to the people of the state at large, and they are clearly municipal affairs, the control of which has always been deemed within the proper scope of municipal powers. [Citations.]” *864 In Blake v. City of Eureka, 201 Cal. 643 , it was said at pages 657-658 [ 258 P. 945 ] : “There can he no question that the improvement of the streets of the city is a municipal affair and that where there is a conflict between the city charter and the general law in a merely municipal affair the provisions of the charter control. [Citing cases.] ” The proceeding taken under the Street Improvement Act of 1911 by which the plaintiff’s predecessor in interest acquired the lien on the property was such a street improvement proceeding and unquestionably a municipal affair. The subsequent proceeding under the Street Opening Act of 1903 was to acquire property for the improvement of a city street and was likewise unquestionably a municipal affair. If the holder of the bond lien had been made a party to the latter proceeding the amount now sought to be recovered by the plaintiff would have been paid in due course by assessment on lands benefited by the improvement or by funds otherwise under the control of the city. The matter of presenting claims against the city for money or damages is likewise a municipal affair and the city by charter sections 363 and 376 has prescribed a reasonable time within which claims must be presented before suit may be brought thereon. In the case of Bancroft v. City of San Diego, 120 Cal. 432 [ 52 P. 712 ], the plaintiff owned property in the city fronting on a street which was damaged by reason of the changing of the street grade. This court held that the damage was in a sense a taking of the property as contemplated by the Constitution. The plaintiff failed to present a claim for damages to the city within the six months prescribed by the city charter. The court held that the action should be dismissed for failure to present the claim within the prescribed time. In Crescent Wharf & Warehouse Co. v. City of Los Angeles, 207 Cal. 430 [ 278 P. 1028 ], the Bancroft case was cited wtih approval. Among other cases also cited to support the holding of the Crescent Wharf case is Western Salt Co. v. City of San Diego, 181 Cal. 696 [ 186 P. 345 ], where it was held that there is no general law on the subject of the time when such a claim must be presented to the city and that a city charter so providing is constitutional. Those cases have never been overruled or criticized and there has been and is no authority in this state to the contrary until the holding of the majority in the present case. Furthermore, the charter provision is controlling irrespective of whether it concerns a municipal affair if it is not *865 inconsistent with state law and may even provide for matters of general concern when there is no state law on the subject. (Esberg v. Badaracco, 202 Cal. 110, 116 [ 259 P. 730 ].) Here the matter of filing a claim against the city such as here involved is not only a municipal affair, but there is no state law on the subject. The state has not, as the majority holds, occupied the field to the exclusion of inverse condemnation claim filing requirements in municipal charters. In fact, there is no state legislation whatsoever on the subject, and hereafter there will be no applicable charter provisions on the subject. The majority rely on eases in which statutes specify the time for filing claims, such as cases arising under the Public Liability Act of 1923, to which Government Code, section 53052, applies. As noted, there is no statute applicable to claims arising under the circumstances here presented. In Eastlick v. City of Los Angeles, 29 Cal.2d 661 [ 177 P.2d 558 , 170 A.L.R. 225 ], a case where the Public Liability Act applied, the court stated that a municipality may adopt a charter provision regulating the presentation of claims and the terms thereof are applicable to a cause of action against the city where “there is no general law upon the subject.” There is no general law on the subject of the time of filing of inverse condemnation claims and the provisions of sections 363 and 376 of the charter of the city of Los Angeles are fully applicable to the claim here involved. I would affirm the judgment. Spence, J., concurred. Respondent’s petition for a rehearing was denied March 7, 1957. Dooling, J. pro tem., participated therein in place of McComb, J. Shenk, J., and Spence, J., were of the opinion that the petition should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9617138. Public record. Not legal advice.