I dissent. I cannot subscribe to that portion of the main opinion which holds that the city authorities had jurisdiction to institute and carry forward the street assessment proceedings in the face of the admitted fact that the improvement was to be made in part on privately owned property. Since the cases ofSpaulding v. Bradley, 79 Cal. 449 [22 P. 47], andSpaulding v. Wesson, 115 Cal. 441 [47 P. 249], the law has been uniform that private property may not be improved under a street assessment proceeding and that a proceeding which attempts to do so is void. Section 26 of the act of 1911 was amended in 1923 (Stats. 1923, p. 117), to provide that no proceedings taken under the act should be held invalid on the *Page 636 ground that the right of way on which the work is to be done has not been lawfully dedicated or acquired, "provided the same is lawfully dedicated or acquired at any time before judgment is entered in the suit involving such proceeding". The present suit unquestionably is one involving such proceeding. It is conceded on all hands that a portion of the property to be improved is privately owned property and that no dedication thereof for public use took place before the entry of judgment herein. Furthermore, section 21 of the act affords no protection to the plaintiffs if, because of the failure to acquire the necessary right of way, the plaintiffs' property be subjected to an invalid assessment. The question is one of jurisdiction and that section, in my opinion, does not afford protection or relief in such a case.
Waste, C.J., concurred.