Spaulding

This is an action to recover on a street assessment for grading Union street from Larkin street to west line of Franklin street, in the city and county of San Francisco, under a contract made on the fourth day of October, 1877, with plaintiff’s assignor, J. S. Dyer. Plaintiff had judgment, and defendants appeal therefrom and from an order denying their motion for a new trial. The cause has been here before, upon an appeal by the plaintiff, and the decision is reported in 84 Cal., at page 141, 24 Pac. 377 .

Was Union street, from Larkin street to the west line of Franklin street, on the twenty-fifth day of June, 1877—the date of the resolution of the board of supervisors to order the grading thereof—a public street of the city and county of San Francisco? This is practically the sole question in the case. It needs no argument to demonstrate that, if that portion of said street was not in fact and law a public street, the board of supervisors was without jurisdiction to order the improvement for the payment of which the assessment involved in this action was made. This question was made an issue in the case, and was solved in favor of the plaintiff by the- eighth finding of the…