Potter map, and thereby prevent the public improvement of a large portion of the streets in the city and county of San Francisco. The word "and" is in this connection to be construed as "or." (Sutherland on Statutory Construction, sec. 252.)

If, however, the work ordered by the supervisors and described in the contract was not thus limited, but required that Seventh street should be graded to the line of Channel street contended for by the appellant, there is presented the simple case of the superintendent of streets having accepted the work before the completion of the contract; and in that case it was incumbent upon the owner to first appeal to the supervisors, and seek from that body a correction of the error, before he could make such defense to the enforcement of the assessment. It was for the superintendent of streets to determine in the first instance whether the contractor had completed his contract, and this included the determination by him of the line of Channel street that was intended by the board of supervisors in the description of the work ordered to be done. If the true line of Channel street were not a matter of dispute, and the superintendent had accepted the work before the grading had been completed to that point, and issued an assessment therefor, under repeated decisions of this court the error would have been one which should have been corrected on appeal. Much more is this rule applicable where the limit of the work is susceptible of different locations. The determination of this question called for the exercise of judgment by the superintendent, and, in the absence of any appeal from his decision, his judgment thereon must be accepted as conclusive. In such a case the contractor may rely upon his decision and the acquiescence of the owners therein by their failure to appeal. In Warren v. Riddell, 106 Cal. 362, the contractor had graded the street to a line entirely at variance with the official grade, and it was held that unless an appeal had been first taken to the board of supervisors, the owner could not make that defense to a

suit upon the assessment. When the assessment in the present case is examined in connection with the statute authorizing the work and the maps therein referred to, it cannot be said that "upon its face" the work contracted for had not been performed. Neither does it appear upon the face of the assessment that any property liable to be assessed for the expense of the work has been omitted. The appellant does not contend that if Channel street is properly located on the diagram any other property than that designated therein is assessable. His contention in this respect is based upon his claim that Channel street is erroneously located thereon. The precise distance from Berry street at which Channel street is laid down on the maps named in the statute has never been officially declared, and the different distances given at the trial were reached by measurement with a scale. One of these distances was less and the others more than is shown upon the diagram. These discrepancies, however, do not of themselves invalidate the assessment. They are ascertained only by evidence outside of the assessment itself, and in such a case the assessment is not felo de se, but, if defective, is to be remedied upon an appeal.

The statute does not specify the depth to which the lands fronting on the work shall be assessed, or the shape or boundaries of such lots, its language being that the expense shall be assessed upon the lots and lands fronting thereon, "each lot" being separately assessed "in proportion to its frontage." The basis of the assessment is the frontage upon the work, and the frontage of each lot determines the amount of the assessment against that lot, irrespective of its shape, size, or depth. There is no requirement that the lots to be assessed shall be rectangular with the street on which they front, nor can this direction for the assessment impair the owner's right to dispose of his lands as he may desire. If the superintendent does not properly delineate an owner's lot upon the diagram, or includes with it property which should be included in another

lot, his act can be corrected on an appeal to the supervisors; but an owner cannot be said to be "aggrieved" merely because the superintendent, while correctly giving the frontage of his lot and assessing the proper amount thereto, has incorrectly delineated its interior lines, since the amount of the assessment is in nowise affected thereby.

In an action for the foreclosure of the lien of a street assessment the plaintiff must describe the land with sufficient definiteness to enable the purchaser under a decree for its sale to obtain possession thereof; and, as the description in the assessment is by reference to the diagram, it is evident that, unless the diagram contains such a delineation of the lot that a definite description thereof can be embodied in the complaint, there can be no foreclosure of the lien to the assessment. It is only the lot assessed which is subject to the lien, and the judgment directing the sale, as well as the complaint for its foreclosure, must be limited to the description of the lot as found in the assessment. The complaint in the present case alleges the making of the assessment and diagram, and the volume and page in which they are recorded in the office of the superintendent of streets, and then describes the lot of the defendant assessed thereon, and which he asks to have sold in satisfaction of the lien, as commencing at the northeast corner of Seventh and Channel streets, and, after giving its several boundaries, adds, as a further description, "and is the same lot shown as lot No. 3 on said assessment and diagram." This was a sufficient identification of the lot assessed, and confines the particular description by streets and distances to those which are delineated upon that diagram as fully as if they had been made so by express reference. In the judgment, however, which was entered in the action the description of the property which is ordered to be sold in satisfaction of the lien is given as a lot commencing at the northeast corner of Seventh and Channel streets, with the same boundaries and distances as are given in the com

plaint, but there is no reference to the assessment or diagram, or to any map upon which those streets are delineated. As one of the main issues in the case was the proper location of Channel street, and as there was evidence before the court tending to show that Channel street on the official map of the city is not located as it is delineated upon the diagram, and as it was also shown that the land at the northeast corner of Seventh street and the line of Channel street, as contended for by the appellant, is owned by him, the court in its judgment should have given such a description of the lot to be sold as would identify it with the lot assessed, and thus prevent any controversy between the purchaser under the judgment and the appellant regarding the property purchased.

The action is properly brought in the name of the plaintiff. Buckman had assigned the assessment to him, and in express terms had authorized him to "demand, sue for, settle, and compromise the same, as in his judgment may be best." This authority was not made nugatory by reason of the assignment having been made to secure an obligation from Buckman to Mrs. Dorland. It was in the nature of a power of sale in a deed of trust, and could be exercised by the grantee of the power. (See Works v. Merritt, 105 Cal. 465.) Foley v. Bullard, 99 Cal. 516, has no application. In that case Lang and Ruggles, to whom the owners of the assessment had assigned it as security for their indebtedness, had reassigned it to one of the owners, and it was held that by this reassignment their lien was terminated.

Other points presented in the appellant's brief do not require any special consideration. The statute required the person to whom the contract was awarded to enter into the contract within ten days after the award. The award to Buckman was made November 17th, but, as the 27th of November was Thanksgiving Day, he had the whole of the next day in which to enter into the contract. The requirement that the superintendent shall cause the contract to be recorded in the office of

the county recorder is an official duty imposed upon that officer, but his failure to perform this duty does not impair a valid contract previously entered into. The statute of 1878 (p. 231) is irrelevant to the proceedings for the improvement of the street, except to deprive the owners of any right of protest.

The superior court is directed to modify the judgment by changing the description of the land therein directed to be sold in conformity with this opinion; and, as so modified, the judgment and order will stand affirmed.

VAN FLEET, J., and GAROUTTE, J., concurred.

Hearing in Bank denied.

[No. 15689. Department One.-July 18, 1895.] L. C. WILLIAMS ET AL., RESPONDENTS, v. THOMAS I. BERGIN, APPELLANT.

STREET ASSESSMENT JURISDICTION OF STREET SUPERINTENDENT— CHANGE OF JUDGMENT.-The act of the superintendent of streets in making a street assessment is in the nature of a judgment by a tribunal of special jurisdiction, whose power is exhausted after its judg ment has once been exercised, and, in the absence of statutory authority for its revision, the judgment cannot be changed.

ID. INCREASE OF AMOUNT OF LIEN-NOTICE TO OWNER.-If the lien charged upon the land of the owner for a specified sum is to be increased it is essential that the owner shall have notice thereof, and an opportunity to be heard thereon. ID.-APPEAL BY CONTRACTOR TO SUPERVISORS-NOTICE-JURISDICTION. -Upon an appeal by the contractor to the supervisors for an increase of the amount of the lien the notice to the owner is in the nature of process by which the board of supervisors may acquire jurisdiction to act upon the appeal and change the assessment, and the means provided by the law to warn the owner of an intended increase of the lien upon his property must be followed in order to effect an increase thereof.

ID.-MODE THE MEASURE OF POWER-REVISION OF ASSESSMENT.The mode which the statute prescribes for a revision of the assessment is the measure of the power, and, unless that mode is followed, any attempted revision will be nugatory.

ID. NOTICE NOT THE EQUIVALENT OF KNOWLEDGE.-Notice, when required by statute, is not the equivalent of knowledge, and the supervisors gain jurisdiction to act upon the appeal only by giving the no