diagram which is attached to the assessment, so far as the

The present action was brought to foreclose the lien of the assessment against lot 3. It is contended by the appellants that, upon the official map of San Francisco, Channel street runs from Third to Eighth streets at right angles with Seventh street, and parallel to and two hundred and seventy-five feet southerly from Berry street, and that, as by the above diagram Channel street intersects Seventh street diagonally, the assessment shows upon its face that the work contracted for has not been performed, and that the expense of the work done has not been assessed upon all the property liable to be assessed therefor. This contention is supported by the further contention that the court will take judicial notice of the location of Channel street upon the official map of the city and county.

It was held in Whiting v. Quackenbush, 54 Cal. 306, that inasmuch as the Van Ness map had been made official by an act of the legislature (Stats. 1858, p. 56), the streets designated thereon had been "established by

law," and that the court would take judicial notice of them (Code Civ. Proc., sec. 1875, subd. 2); and in Brady v. Page, 59 Cal. 55, it was further held that, in taking judicial notice of these streets, courts would take judicial notice of their relation to each other and of the directions in which they run. It has never been held, however, that a court would, by its judicial knowledge, determine whether the space set apart upon a map for a street is correctly located upon the ground, or, when the line of such street as a boundary is disputed, fix it without evidence. The owner of a tract of land in a city may offer to dedicate a portion thereof for a street, either by throwing the space open for use, or by an actual grant to the public, or by selling lots bordering thereon; or he may record a map of the tract, with streets delineated thereon. In such cases the question of dedication may be disputed, and courts do not take Judical notice of the existence and location of the streets, but determine the fact of dedication upon the sufficiency of the evidence to establish it. Neither can courts take judicial notice of the existence of a street that has been opened or adopted by a municipal ordinance, without proof of the passage of such ordinance. In the present case the defendants introduced at the trial a witness from the office of the city and county surveyor, who produced from the records of that office several maps upon which Channel street was delineated, upon no two of which was it delineated alike, and who also testified that in that office there were four different authorities for the lines of Channel street, and four sets of lines for the street. One of the maps so produced was the abovenamed Van Ness map, and although on this map there is no street designated by the name of Channel street, yet in the space to the east of Seventh street, which on other maps is designated as Channel street, there are two parallel lines which are deflected before reaching Seventh street, and across the block at that corner of Sexenth street in nearly the same direction as upon the above diagram. Between these two deflected lines are

The

written the words "Proposed Canal Channel." Brooks and Potter map, sometimes called the Engineers' map, which was adopted as the official map in 1836, represents Channel street at its intersection with Seventh in the same form in which it is represented upon the aforesaid diagram, and in the deflected portion of the street are written the words "Channel street." Upon the map of 1870, usually called Humphreys' map, Channel street is delineated as lying parallel with Berry street, and as projecting beyond Seventh as far as Eighth street; but, as it approaches Seventh street from the east, it is delineated with two lines which deflect in the same manner as on the Brooks and Potter map, and are projected beyond Seventh street in the line of the deflection. There is no designation given to it after it leaves Seventh street. Upon the assessor's map the street is delineated in the same manner as on the diagram. It was shown by the witness that upon these several maps the distance along the easterly line of Seventh street, from Berry to its intersection with Channel street, was as follows: On the Brooks and Potter map, 181 feet; Humphreys' map, 209 feet; block book, 185 feet; assessor's book, 192 feet. And on the westerly side of Seventh street the distances from Berry to its intersection with Channel street are as follows: Brooks and Potter map, 110 feet; Humphreys' map, 138 feet; block book, 114.6 feet; assessor's block book, 121 feet 11 inches. These distances are not the result of an actual survey upon the ground, but are measurements made upon the several maps with a scale. It does not appear that either Berry or Channel street was ever located by monuments upon the ground, and at the time of the proceedings for the improvement of this street the whole of this region was covered with water. From these items of evidence it is seen that if the actual location of Channel street, as an official street, is an essential fact in determining the validity of the assessment, the conflict of evidence which was presented by the appellant himself is so great the finding of the court cannot be disturbed.

We do not, however, consider that the determination. of this question is essential to the determination of the validity of the assessment; that the correctness of the judgment appealed from must rest upon the consideration of other facts and legal propositions.

Section 1 of the act under which the proceedings were had (Stats. 1871-72, p. 804) declared that all the streets laid down on the maps in the office of the city and county surveyor, which are commonly known as the "Brooks and Potter map" and the "Humphreys map," were public streets "for the purpose of this law"; and gave to the board of supervisors jurisdiction to order the improvement of any of these streets. By section 3 of the same act the board of supervisors is authorized to order the grading of "the whole or any portion of the said streets." We have seen that Channel street, as laid out upon the Brooks and Potter map, corresponds to the diagram annexed to the assessment under consideration. and that there is laid out upon the Humphreys' map an open space corresponding to a portion of said street. The terms of section 1 of the act do not require that the streets laid down upon the map shall have been actually opened and dedicated to public use before the supervisors could order their improvement. If the supervisors should in fact attempt the improvement of a street that had not been so opened and dedicated, but which was in reality private property, their action would fail, not by reason of a want of a statutory provision, but because of the inability of the legislature to confer authority to make such an improvement. No question of this character is, however, presented in the present case. It is conceded that Seventh street, upon which the grading was done, was at all times an open street dedicated to public use. The objection of the appellant rests upon the proposition that it appears upon the face of the assessment that the work contracted for had not been performed by reason of the fact that the true position of Channel street is different from its position as shown by the diagram. This objection, however, is obviated

when it is shown that the work "contracted for" is not to be determined by the actual location of Channel street upon the ground as it may have been originally laid out and dedicated to public use, but by its location as intended by the board of supervisors. The section of the statute above referred to gave the supervisors authority to order the grading of "any portion" of Seventh

While the declaration in the statute that the streets laid down upon the designated maps are open, public streets, "for the purpose of this law," did not of itself make them in fact public streets if they were not so already, yet these spaces upon the maps were thereby identified as objects of reference by which to describe the limits of any improvement which might be made. The "portion" of a street which the supervisors could order improved was entirely within their discretion. It would have been within their power to order that Seventh street be graded for a distance of 200 feet southerly from Berry street, or to a point 200 feet distant upon the easterly side, and 100 feet distant upon the westerly side, of Seventh street. They had also the power to limit the portion of the street to be graded by the line of Channel street as laid down upon these maps, and this, it must be held, is what they intended to do. If the resolution ordering the work had been in terms to grade Seventh street from the northerly line of Berry street to Channel street, as said streets are laid down upon the Brooks and Potter map, referred to in section 1 of the statute, their power to order that portion of Seventh street to be graded could not be questioned, and we are of the opinion that the resolution adopted by them should receive the same construction as if it had been thus expressed. The proposition of the appellant that only the streets which are laid down upon the Brooks and Potter map and upon the Humphreys' map are subject to be improved by the supervisors cannot be maintained. This construction would exclude from their jurisdiction. every street that is on the Humphreys' map which had not been previously delineated upon the Brooks and

CVIII. Cal.-11