City of San Francisco v. Scott

Mr. Cli. J. Murray delivered the opinion of the Court.

Mr. J. Heydeneeldt and Mr. J. Wells concurred. This suit was originally instituted by complaint before the City Recorder against the defendant for obstructing Commercial street. This street was extended through the property of the defendant and other citizens, by an ordinance of the Common Council of San Francisco. In conformity with the requirements of the charter, assessments were made of the damage to each individual, caused by the opening of the street. Price, who is the real party defendant, was in possession of a portion of the land so appropriated, and an award of $1,925 was made for the damage done to his possession.

Shortly after such award the street was opened. The agent of Price removed a house which was partly in the line of said street, at the same time declaring that he did not intend to surrender or give up any right to the premises until he was paid for them.

The lot remained open and was used as a public thoroughfare for four or five months. After the expiration of this time the defendant, as agent of Price, entered upon the lot and obstructed the street, alleging the city had never paid the assessments made, and claimed, on behalf of his principal, the right to reappropriate the same to private use.

The question submitted for the determination of this Court is: Has there been such a dedication of the [116] premises to the *public use as a street or thoroughfare as to render the defendant liable for obstructing it?

Our Bill of Rights provides that private property shall not be taken for public use, without just compensation being made therefor, and it is now the better opinion that such compensation must be made before the citizen can be divested of his rights. It is not sufficient that the law points out the mode by which the damage may be ascertained, and provides the party with a remedy to enforce his rights; no such obligation can be imposed upon him; he is entitled to the- damages which he has sustained, without [117]resorting to a legal tribunal to enforce the payment. The law watches the exercise of this prerogative of sovereignty with a zealous regard for the rights of the citizen.

Admitting all the steps for opening this street were properly and legally taken (a proposition denied by the appellant’s counsel), it is evident the premises in question did not become a public street by virtue of such ordinance, until the city had paid or tendered the amount of the assessment to the defendant; in otner words, a city ordinance would not divest the title to private property, and ex profirió vigore operate a dedication to the public use.