delivered the opinion of the Court:
This is an action to recover an assessment for grading a street. It is alleged in the complaint, that certain persons other than the alleged owners of the lot, “have, or claim to have, some interest in, or claim upon said described premises.” The defendants, who are the respondents here, did not disclose or set up the nature or extent of their interest or claim, in or to the premises, nor did they adduce any proof on that point. It was held, in Poett v. Stearns (28 Cal. 226), and Anthony v. Nye (30 Cal. 401), that in complaints in actions to foreclose a mortgage, the general allegations that the defendants had, or claimed to have, some interest in the premises, was sufficient, and that the defendants, if they have any interest in the premises, must set it out, if they desire to defend the action. The reason of the rule is applicable to a case of the character of the one at bar. The defendants cannot rely on the pleadings as they now stand, as admitting that they have any interest in the premises.
The findings that the defendants, Spanagel and Townsend, had, or have, an interest in the premises, cannot be sustained, as there is no evidence in the transcript tending to prove that fact.
The inquiry into the nature of their interest, becomes *392important only in its bearing upon the question, whether they are entitled to set up, by way of counter claim, the damages occasioned by the plaintiff and his assignors, by their" having deposited on the premises and an adjacent street a large quantity of earth, while they were employed in grading the street. They would not be entitled to recover damages for the alleged injury, unless they show some interest in the premises; and if they have no cause of action for such damages, they are not authorized, under the provisions of Section 47 of the Practice Act, to set up the damages by way of counter claim.
But, assuming that the defendants hold such an interest in the lots as would authorize them to recover the damages for the alleged injury to the lots, it does not necessarily follow that they are entitled to avail themselves of such damages by way of counter claim. The doctrine is well settled in this Court, in Emery v. San Francisco Gas Co. (28 Cal. 345); Emery v. Bradford (29 Cal. 75); Nolan v. Reese (32 Cal. 484), and Himmelmann v. Steiner (38 Cal. 175), that the owners of property adjacent to a street are not, in any sense, parties to the contract, for the improvement of a street, entered into by a contractor with the Superintendent of Streets. They are brought into relation with the proceeding for the first time, when the assessment is issued. The several steps in the proceedings before the Board of Supervisors, and in 'entering into and performing the contract, are averred in the complaint for the purpose of showing that they were regular and sufficient to .justify the issuing of the assessment; but the assessment is the “ transaction within the meaning of Section 47 of the Practice Act, out of which the cause of action must arise, which the defendants are authorized to set up as a counter claim. It is apparent that the alleged demand did not arise out of the assessment, nor, indeed, out of the proceedings upon which it is based, and, therefore, are not available as a counter claim.
The acts occasioning the damages complained of were mere naked trespasses, and would not be held to arise out of the contract, were the contract considered as the “transaction ” upon, or in respect to, which the action was brought.
*393A further, and we think, a conclusive answer to the defendants’ position, is, that the demand on which the action was brought, constitutes, according to the authority of the cases above cited, a tax—a municipal tax—levied by the corporation upon certain property, to defray the expenses of the improvement of a street adjacent to the property. The origin, obligatory force and whole nature of a tax, is such that it is impossible to conceive of a demand that might be set off against it, unless expressly so authorized by statute. No case has been cited, and probably none can be found, which authorizes a defendant, when sued for a municipal assessment or tax, to set up a counter claim.
Judgment reversed, and cause remanded for a new trial.