majority">Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.

The town of Yreka was incorporated on the fifth of May, 1854, under the act of the Legislature of March 27,1850. On the fourteenth of June, 1854, the board of trustees passed an ordinance for the opening of a street through the premises of defendants. The board appointed appraisers, who estimated the value at §750. This sum was tendered to defendants, but the same was refused. The defendants afterwards brought suit against the corporation to recover the damages occasioned by the appropriation of their property, in which they obtained judgment for §1050. An order was drawn upon the treasury of the town for the whole amount, including the costs; and the sum of §270 was paid, and endorsed upon the order as a payment. The remainder not having been paid, the defendants took possession of the street. This suit was brought by the- plaintiffs, who owned property upon the street, to restrain defendants from erecting buildings, which would close up the street and obstruct the approach to plaintiffs’ house of business. Upon this state of the case, the Court below decided that the plaintiffs wore not entitled to any relief, and the plaintiffs appealed.

In the case of McCann v. The County of Sierra, (7 Cal. R., 121,) wo held “ that compensation must be made in advance, or a fund must be provided, out of which compensation must be made so soon as the amount can be determined. The property of the citizen can not be taken from Mm without ample means of remuneration are provided.”

The compensation in this case was not made in advance, and there was no fund provided out of which the same could be paid when the amount was'determined. The town was incorporated under an act decided by this Court to bo unconstitutional; and the incorporation was void. (The People v. The Town of Nevada, 6 Cal. R, 143.) The defendants had no power to obtain payment, as their judgment against a supposed corporation, having no legal existence, was a mere nullity. The fund supposed to be provided, had no legal existence, as the authority creating it *600had none. The only thing the defendants could do was to take possession of the property.

Judgment affirmed.

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