The opinion
The opinion of the court was delivered by
Garrison, J.
The excuse of the city for levying the assessment in question in the face of the condition of dedication which it had accepted is that it had no power to accede to the condition upon which the land for Sheridan street was given by its owners to the public. Tlie claim of the city is that the dedication should stand, but that the condition upon which it was made should be ignored. We cannot take this view of the legal situation. The condition, so far as it affected Sheridan street, being limited to a single expenditure for a specific purpose, was in effect the price the city was willing to pay for the land. If the city had power to buy the land at such sum, it had power to agree to expend such sum upon the land as the condition of its perpetual dedication to public uses. After the expenditure of the sum thus required the public have no more standing to exact payment from the abutting owners than the owners have to exact damages from the public for taking the land. Dill. Mun. Corp. (3d ed.), § 632, and cases cited in the notes.
The presence in the deed of dedication of conditions not involved in the present controversy does not militate against the views that have been expressed and need not, in our judgment, be further considered in the present proceeding. The assessment brought up by this writ of certiorari is set aside, with costs.