Schmidt

— Section 497 of the Civil Code provides that “ authority to lay railroad tracks through the streets and public highways of any incorporated city or town may be obtained, for a term of years not exceeding fifty, from the trustees, council, or other body to whom is intrusted the government of the city or town, under such restrictions and limitations, and upon such terms and payment of license tax, as the city or town authority may provide.” The ordinance of the city of San José, passed March 7, 1876, under which the defendant obtained the right to construct and maintain a street railroad in said city, contained the following condition: “Whenever any part of any street over which this road shall run shall be ordered improved or reimproved, and the work of improving such street shall be let by contract, the part of said street occupied by said track or tracks, and two feet on either side thereof, shall be let together with the rest of the street or streets; and the grantee herein named, or its successors and assigns, shall be held for the payment of the cost of said improvement, which cost shall be assessed in the proper proportion of the width of the track and two feet on either…