Kirkham

The Legislature, in 1867, passed an act entitled “ An Act to authorize the City of Oakland to construct a bridge across the estuary of San Antonio, between Eighth Street and East Ninth Street,” the first and third sections of which are as follows:

The next section describes the land declared to be benefited, and the succeeding ones provide for the appointment of Commissioners, the making and enforcing of the assessments, etc. The Council of the City of Oakland caused the bridge to be constructed, and the assessments to pay for the work were made in accordance with the provisions of the act. It was to enforce the lien of the assessment against the land of the defendant that the present action was instituted.

The defendant, in his answer, set up as one ground of defense, “ that the said bridge, in part, rests on and passes over land which is private property, the right of way over which has never been granted to the City of Oakland, and which has never been dedicated to any public use whatever.” If this be true, it must be conceded, we think, on all sides, that the assessment cannot be enforced; for no one can be compelled to pay for an improvement of this nature which has been…