Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.

The “ outside ” lands, so called, in the City and County of San Francisco, lie between the corporate limits of the City of San Francisco, as defined by the Act to reincorpórate said city, passed April 15th, 1851, and the Act to consolidate the government of the City and County of San Francisco, passed April 19th, 1856, and the Acts amendatory thereof. These lands were confirmed to the city and county by Act of Congress, passed March 8th, 1866. On the 14th of January, 1868, the Board of Supervisors of said city and county passed “ Order No. 800,” dividing these outside lands into blocks and lots, and laying out streets, and also a public park. These lands were then in the possession of private persons, and the order confirmed to the possessors the title, but required that an assessment should be levied on the land not taken for public use, to pay the possessors of the land taken for public use for the value of the same. This order was confirmed by two Acts of the Legislature passed in 1867-8. (See Laws 1867-8, pp. 379, 410.) The Collector of the said city and county was required to collect these assessments.

“ Order No. 800 ” will be found in the laws of 1867-8, p. 379. The first section of the order provided that “immediately after the passage of this order, the Board of Supervisors shall proceed to devise and adopt a plan for the subdivision into blocks and lots of all the lands not reserved to the United States, situated on the peninsula of San Francisco, and within the present corporate limits of said city and county, and above the natural ordinary high-water mark of the Bay of San Francisco and the Pacific Ocean, as the same existed on the 7th day of July, 1846, and without the corporate limits of the City of San Francisco, as defined in the Act to reincorporate the said city, passed by the Legislature of California on the 15th day of April, 1851, so far as said Board may deem such subdivision necessary; and to select and set apart for public uses such lots and portions of said land as said Board may deem necessary, subject to the limitations and provisions hereinafter in this order contained.”

The defendant appealed.

The other facts are stated in the opinion.