Buckman

This is an appeal from an order denying the defendant’s motion for a new trial.

The action was brought to obtain a decree restraining the defendant, his agents, servants, and employees from digging into, tearing up, or in any way interfering with the roadway, roadbed, sidewalks, or grade of Market street, between the points of its junction with Valencia street and Seventeenth street, in the city and county of San Francisco.

The defendant, by his answer, admitted that he had commenced, with a large force of men, to grade a portion of Market street between the points named; and to justify his right to do so he set up an order, No. 2318, passed by the board of supervisors of said city and county in December, 1890, “changing and establishing grades on Market street, southwesterly from Valencia street,” and a resolution, No. 4498 (third series), passed *28 by the said board in January, 1891, granting permission to certain property owners on Market street, between Valencia and Seventeenth streets, to grade said street in front of their property to the center line thereof. And he alleged that, under a contract with the said property owners, and a permission duly obtained from the…