Pac. Bridge Co. v. Kirkham

Department No. 1, Ross, J.: 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:

“ Section 1. The City Council of the City of Oakland is hereby authorized and empowered, in its discretion, to order the construction of a wooden bridge across the estuary of San Antonio, from Eighth Street, on the westerly shore of said estuary, to East Ninth Street, on the easterly shore of said estuary. Said bridge may be constructed in such manner, of such dimensions, and with such materials, as the City Council shall by ordinance direct; provided, however, that the cost, including incidental expenses of constructing said bridge, shall not exceed the sum of thirty thousand dollars.”

“ Sec. 3. The contract price of said bridge, the cost of the plans and specifications, the engineer’s fees, the cost of advertising, the expenses and salaries of the Commissioners hereinafter mentioned, and all other expenses whatsoever incidental to the building of said bridge, shall be held and be considered to be the cost of said bridge, and their sums shall be assessed on the lands mentioned and described in the following section of this [560]act, in proportion to the benefits accruing therefrom to said several lots, subdivisions, and pieces of land, respectively, which said lands are hereby declared to be benefited by the construction of said bridge.”

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 erected upon private property. The principle upon which such assessments are sustained is, that those required to pay will be benefited by the improvement and will have the use and enjoyment of it. But this benefit could not accrue if the improvement is erected on private property. In such case neither the public nor those •assessed would be entitled to its use, and it might be abated at any time by the owner of the property. The law deeming this averment of the answer denied, there arose in the case, .therefore, a material issue as to the ownership of the property upon and over which the bridge was constructed. Evidence was introduced at the trial upon this issue, and in response to it the Court below made the following finding: “ That the marsh and tide lands over which said bridge passes, were, before the building of said bridge, claimed to be owned in part by the defendant and other persons, and also by a corporation known as the Water Front Company. Before commencing to build said, bridge the defendant granted to the City of Oakland the right of way over his interest in said land. The other persons gave their permis