Scott

delivered the opinion of the Court.

This suit was originally instituted by complaint before the City Recorder against the defendant for obstructing Commercial street. This street was extended through the property of the defendant and other citizens, by an ordinance of the Common Council of San Francisco. In conformity with the requirements of the charter, assessments were made of the damage to each individual, caused by the opening of the street. Price, who is the real party defendant, was in possession of a portion of the land so appropriated, and an award of $1,925 was made for the damage done to his possession.

Shortly after such award the street was opened. The agent of Price removed a house which was partly in the line of said street, at the same time declaring that he did not intend to surrender or give up any right to the premises until he was paid for them.

The lot remained open and was used as a public thoroughfare for four or five months. After the expiration of this time the defendant, as agent of Price, entered upon the lot and obstructed the street, alleging the city had never paid the assessments made, and claimed, on behalf of his principal, the right to…