Coopers v. Mayor & Common Council of San Jose

McKinstry, J.: Market Street in San José ran from each end of “ Market Plaza ”—an enclosed ellipse of greenery, shaded by trees and traversed by gravel walks. On the 4th day of March, 1878, the Legislature passed an act entitled “An Act to ratify and confirm the acts of the Mayor and Common Council of the City of San José.” (Stats. 1878-8, p. 163.) The body of the act is as follows:

“ Section 1. The Mayor and Common Council of the city of San José are hereby authorized and empowered to open Market Street in said city, through the plaza known as Market Plaza. Said street shall be opened to the same width as other portions of Market Street contiguous to said plaza, to wit: fifty feet on each side of a line running through said plaza, said line to commence at a point in the center line of Market Street where said Market Street forms a junction with San José Street and Guadalupe Street, on the northerly side of said plaza, and running thence southerly through said plaza to a point in the center line of said Market Street where said Market Street forms a junction with San José Street and Guadalupe Street, on the southerly side of said plaza; the whole width of the street to be opened to be one hundred feet.

“ Sec. 2. The said Mayor and Common Council, after the opening of said street, may sell the ground of the plaza fronting on either side of said street to parties who own lands around [601]said plaza and between their respective lots and said street, and said owners of land shall have the privilege of buying such portions of said plaza grounds as are in front of their lots, in preference to all others, provided they do so within the time prescribed by § 4 of this act. The price demanded for said land shall be based upon the actual value thereof, and not on the prices at which other lands belonging to said city have been heretofore sold. Said lands may be sold at either public or private sale, and the proceeds thereof shall be paid into the general fund of said city, and shall be used only for the purpose of building and maintaining public sewers in said city.

“ Sec. 8. The Mayor and Common Council shall, after the passage of this act, direct the City Surveyor to survey said Market Street through said plaza, according to the description contained in this act, and also such cross street or streets as may come into or be connected therewith, and shall make plans, diagrams, and specifications of said survey, and present the same to the Mayor and Common Council of said city. Immediately upon the receipt of the plans, diagrams, and specifications of said survey, the Mayor and Common Council shall order the Street Commissioner to proceed at once and open said street, and remove therefrom all fences and other obstructions which may hinder and impede travel thereon.