under which streets are to be opened, closed, etc., in all the cities of this state, unless it has been repealed or superseded by any other act.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 and 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 unconstitutional, 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 perform these acts, or it may select such agencies for that pur

. 1 of the

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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 partics 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 resolution 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 . 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 question 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 v. 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

street opening act, whenever the proceedings are similar or analogous.

SECTION 2. Before ordering any work to be done or improvement made which is authorized by section one of this act, the city council shall pass a resolution declaring its intention to do so, describing the work or improvement, and the land deemed necessary to be taken therefor, and specifying the exterior boundaries of the district of lands to be affected or benefited by said work or improvement, and to be assessed to pay the damages, cost and expenses thereof. [Statutes '89, p. 70.]

Section two requires the resolution of intention to specify "the exterior boundaries" of the district to be assessed to pay the cost of the improvement, and if the resolution does not specify the exterior boundaries, the council will not acquire jurisdiction over the matter, and the proceedings will be void. The following is not a description or specification of the exterior boundaries of any district, viz: "All lots and parcels of land fronting on the east side of First street, from the west side of Los Angeles street to the west line of Alameda street." In this case, the only boundaries of the district which are "specified" are the lines of First street between Los Angeles and Alameda streets, and these, instead of being the "exterior boundaries" of the district to be assessed are only the boundaries of a tract within the district which is exempted from assessment. There is nothing in the description of the district from which its extent in either direction from First street can be ascertained, or by which any one can determine the quantity of land which is to be assessed. [Dehail v. Morford, 95 Cal. 457.]

[See notes to section 3 of the act of March 18, 1885, supra, page 8 et seq.]

SECTION 3. The street superintendent shall then cause to be conspicuously posted along the line of said contemplated work or improvement, at not more than three hundred feet in distance apart, but not less than three in all, notices of the passage of said resolution. Said notice shall be headed, "Notice of public work," in letters not less than one inch in length, shall be in legible characters, state the fact of passage of the resolution, its date, and, briefly, the work or improvement proposed, and refer to the resolution for further particulars. He shall also cause a notice, similar in substance, to be published for a period of ten days in one or more daily newspapers published and circulated in said city, and designated by said city council; or, if there is no daily newspaper so published and circulated in said city, then by four successive insertions in a weekly or semi-weekly newspaper so published, circulated and designated. [Statutes '89, p. 70.]

[See notes to section 3 of act of March 18, 1885, supra, page 8, et seq.]

SECTION 4. Any person interested objecting to said work or improvement, or to the extent of the district of lands to be affected or benefited by said work or improvement, and to be assessed to pay the cost and expenses