ments upon the property supposed to be benefited in excess of the benefits.

The act again came before the Supreme Court in the case of Dehail v. Morford, 95 Cal. 457. The action was brought by plaintiff, a property owner whose property had been assessed, to restrain the defendant, the superintendent of streets of the city of Los Angeles, from making a sale of plaintiff's property to satisfy the assessment against it. The proceedings to widen the street were had under this act of March 6, 1889, by the city of Los Angeles, a city having a freeholders charter adopted pursuant to the provisions of section 8 of article XI of the constitution. It was held that the plaintiff was entitled to a judgment perpetually restraining the defendant from making such sale, because the resolution of intention did not specify the exterior boundaries of the districts to be assessed to pay the cost of the improvement, as it was required to do by section 2 of the act. But, the constitutionality of the act itself, and its applicability to cities which, like Los Angeles, have freeholders charters, containing ample provisions for the opening of streets, seems to have been assumed. The act again came before the Supreme Court in the very recent case of city and county of San Francisco v. Kiernan, 33 Pac. Rep. 721. In that case, proceedings had been begun under the act of April 25th, 1863, [statutes 1863, p. 560] "an act to confer further powers upon the board of supervisors of the city and county of San Francisco," and in effect, an amendment to the consolidation act. Subsequently and pursuant to the provisions of section 24 of the street opening act now being considered,-the street opening act of March 6, 1889, [see infra, section 24] the proceedings were continued under said last named act. The constitutionality of the provisions of section 18 of the act, providing for the form of complaints, in an action to condemn, was expressly upheld, and the constitutionality of the act, in its general features, was at least assumed.

The statute again came before the Supreme Court in the still more recent case of City of Santa Ana v. Harlin, No. 19,030, decided September 13, 1893, an action by the city under this street opening act of March 6, 1889, to condemn a right of way over the property of the defendant for the opening of Second street in said city. The court assumed the act to be constitutional. It would seem therefore, that all the propositions laid down. by the four judges who concurred in the prevailing opinion in Davies v. City of Los Angeles, 86 Cal. 37, may be assumed to be settled, and that the act of March 6, 1889, is the act

under which streets are to be opened, closed, etc., in all the cities of this state, unless it has been repealed or superseded by any other act.

In 1893, the legislature passed an act approved March 23, 1893, [statutes 1893 p. 220] entitled "An act to provide for laying out, opening, extending, widening, straightening, diverging, curving, contracting, or closing up, in whole or in part, any street, square, lane, alley, court, or place within municipalities, or cities and cities and counties of forty thousand inhabitants or over, and to condemn aud acquire any and all land and property necessary or convenient for that purpose."

By section 23 of this act of March 23, 1893, it is provided that "the act approved March 6, 1889, entitled 'An act for opening, widening and extending streets,' etc., after the passage of this act, shall not apply to any city or city and county having a population of forty thousand inhabitants or over, but as to any city or city and county having a population of forty thousand inhabitants or over said act shall not apply; but said cities and cities and counties shall be subject only to the provisions of this act in all matters embraced within the purview of this act."

Whether this act of March 23, 1893, is constitutional or not, and whether it operates to confine the provisions of the act of March 6, 1889, to municipalities of less than forty thousand inhabitants, are questions that are considered in the notes to section 1 of the said act of March 23, 1893, infra.

Decisions under Street Opening Acts passed prior to the adoption of the new Constitution and prior to the passage of a General Street Opening Act. A town that has no corporate existence, e. g., because its act of incorporation is unconsti tutional, cannot exercise the power of eminent domain to open a street. [Colton v. Rossi, 9 Cal. 595.]

A street cannot be extended, so as to take in private property, without condemnation. [People v. Kruger, 19 Cal. 411.]

The legislature may determine how the expense of opening a street shall be borne. Whether the cost of such enterprises shall be borne by contiguous property to be benefited thereby, or by all the property of the city, or by a certain proportion of such, is a matter for legislative discretion. [Sinton v. Ashbury, 41 Cal. 525.]

The power to lay out or change streets is in its nature legislative and not judicial. The legislature may itself per form these acts, or it may select such agencies for that pur

March 6, 1889.

pose as it deems proper. Usually the requisite powers are conferred upon the authorities of the municipal government; but these powers, or some of them, may be devolved upon a court. In the latter case the proceedings are "special proceedings," and the court possesses jurisdiction only by virtue of the authority of the legislature, and does not derive it from any other source. Therefore if several tenants in common agree to run a street through the middle of a block owned by them, and, in pursuance of such agreement, execute a covenant by which, through mistake, the street is located at a place not in the middle. of the block, and subsequently the municipal authorities locate and establish the street, not in the middle of the block, but in the position described in the covenant, the courts, in an action by parties to the covenant, or their assigns, cannot adjudge that the street be located in the middle of the block, because, if the action be regarded as an action to change the location of the street as fixed by the municipal authorities, the reply is that, in the absence. of a statute specially delegating to the court powers to lay out or change streets, it has no such jurisdiction, and, if the action be regarded as having for its purpose an adjudication that the space through the middle of the block was dedicated as a street by the parties to the covenant, the judgment cannot be sustained because the covenant as executed does not locate the street in that position, and until the covenant is reformed, so as to express the alleged intent of the parties, there is no basis for such adjudication. [De Witt v. Duncan, 46 Cal. 343.]

Commissioners appointed to assess damages and benefits, in a proceeding to condemn land for a street, have no jurisdiction to determine questions of title. [Wilcox v. City of Oakland, 49 Cal. 29.

The act of March 28, 1878, "to provide for the opening of streets in the city of Oakland," required the petition of five or more residents and freeholders to the city council to contain, inter alia "a statement that in the opinion of the petitioners the public interests require that the improvement asked for [describing it generally] should be made." In the Matter of Grove Street, 61 Cal. 438, it appeared that the petition of the residents and freeholders to the council contained a statement that "in the opinion of the petitioners the improvement asked for should be made." Held: That the statement contained in the petition is not the same in substance as that required by the statute, and for this reason the petition of the freeholders did not give power or jurisdiction to the council. It was urged by

respondent in that case that the council had itself conclusively determined that it had jurisdiction, when it passed the res olution of intention, it being claimed that in doing so, the council adjudicated the existence of facts upon which its jurisdiction depended. On this point the court, per McKinstry, J., pages 453-4, said: "An inferior board may determine conclusively its own jurisdiction or power by adjudicating the existence of facts, upon the existence of which its jurisdiction or power depends. Where, however, the power depends, not upon the existence or non-existence. of matters in pais, to be established by evidence, but upon allegations in a petition, a portion of the record, the question is not the same."

Where the council is empowered to open or improve a street upon the petition of the owners of a majority of the frontage upon the proposed improvement, the council cannot include more than one street in one proceeding. [Boorman v. Santa Barbara, 65 Cal. 313.]

The interest which a street railroad company has in a street upon which it is authorized to lay down tracks, is an easement in the land, and is real property. The interest or estate of the company in the street is capable of being enhanced in value by the widening of the street, and by such widening a substantial benefit may accrue to the company, and the company may be assessed for its share of the expenses in widening the street. [Appeal of N. B. & M. R. R. Co., 32 Cal. 500.]

Where commissioners are appointed to assess benefits, etc., upon the lands affected by the improvement, the statutes sometimes provide that the courts shall receive the reports of the commissioners and exercise supervisory powers thereover, although in such matters it is not usual to permit an appeal to the courts while the proceedings are in fieri, and the right to supervise the acts and reports of the commissioners usually falls to the city councils or other municipal legislative bodies. Where, however, the statute thus grants these supervisory powers to the courts, the courts on appeal will not set aside the commissioners' report unless it is based upon an erroneous principle of law, or unless it is demonstrable that the commissioners have erred in respect to the facts, in fixing the values which they have arrived at. These reports, in respect to values, are in the nature of a verdict of a jury upon a ques tion of fact, which is never set aside as against evidence unless it appears affirmatively and clearly to have been unwarranted by the proofs. [Appeal of Piper, 32 Cal. 530; Appeal of Brooks et al., 32 Cal. 560.]

The benefits accrue to the lands and not to the buildings. [Appeal of Piper, supra.]

The assessment is properly chargeable to the owner of the fee, and not in part to the lessee, if it does not appear that the lessee will be benefited. [Appeal of Reese, 32 Cal. 568.]

For a very able review of some of the most important questions of constitutional law in connection with these street opening statutes, see the opinion of Mr. Justice Temple in Lent . Tillson, 72 Cal. 404, reviewing the act of March 23, 1876, providing for the widening of Dupont street in the city and county of San Francisco, and the proceedings had thereunder.

It is not within the scope or plan of this book to discuss general principles. Its sole aim is to give the general street laws of California, as the same exist to-day, with amendments up to date, and to cite, in the notes to the sections of said acts, such decisions of our own Supreme Court as will serve to illustrate the working of these statutes, and the points of law liable to arise in the course of proceedings thereunder. The decisions of our own courts. upon the street improvement acts,-i. e., acts for the improvement of streets already in existence, by grading, macadamizing, paving, or otherwise improving such streets have been so numerous that they alone suffice to shed ample light upon these street improvement acts. But this is not so in respect to acts for opening, closing, or widening streets. As to these opening and closing acts, the decisions of our own courts are meager, and, alone, do not afford much help in construing these street opening and closing acts. But, it is not the intention of this book to cite the decisions of the courts of other states-save in a few particular instances, and the reader is, therefore, referred to chapter XVI of Dillon's Municipal Corporations -chapter on eminent domain,-where the subject matter of street opening acts is considered.

In many respects, the proceedings necessary to a valid. assessment upon the property liable to be charged with the expenses of opening, extending, straightening, or closing streets, under this act,-act of March 6, 1889,-are analogous or similar to the corresponding proceedings under the Vrooman act of March 18, 1885, for the improvement of streets, and therefore the decisions, cited in the notes to that act, [supra pp. 1-216] are not cited in the notes to this act, but the reader is referred to the notes to those sections of said act of March 18, 1885, which contain provisions analogous to the corresponding sections of this