Barkley et Ux. v. Gibbs

• Decision Date: 21 January 1947
• Citation: 178 P.2d 918,180 Or. 647
• Parties: BARKLEY ET UX. <I>v.</I> GIBBS
• Court: Oregon Supreme Court

180 Or. 647

178 P.2d 918

BARKLEY ET UX.v.

GIBBS

Supreme Court of Oregon.

Argued November 14, 1946.

Reargued January 21, 1947.

Reversed April 1, 1947.

Private roads — Gateway

A gateway may not be used or substituted for a logging road which must be procured by following the procedure provided therefor.

                  See 17 Am. Jur. 1032; misuser of easements, etc., note, 78
                A.L.R. 1222; 50 C.J., Private roads, § 1
                

IN BANC.

Appeal from Circuit Court, Coos County.

DAL M. KING, Judge.

Harry A. Slack, of Coquille, for appellants.

Claud H. Giles, of Coos Bay, for respondent.

REVERSED AND REMANDED.

WINSLOW, J. (Pro tempore)

This is a suit for an injunction to restrain the respondent Gibbs from using a gateway for logging purposes. The gateway was established under the provisions of O.C.L.A. §§ 100-1501, 100-1502, 100-1503, 100-1504, 100-1505. A general demurrer to appellants' complaint was sustained. Appellants declined to plead further, and a decree dismissing the suit was entered by the trial court from which appellants prosecute this appeal.

The allegations of appellants' complaint are as follows:

"Comes now the above-named plaintiffs, and for their cause of suit against the above-named defendant, complain and allege:

"I. That plaintiffs are husband and wife; and are the owners in fee and entitled to the possession of the Northeast Quarter of the Northeast quarter, south half of the Northeast quarter, Northeast Quarter of the southeast quarter, all in Section 19, Township 30 South, Range 12 West of the Willamette Meridian in Coos County, State of Oregon.

"II. That said defendant Donald Gibbs, is the owner of the southeast quarter of the southeast quarter of Section 19, Township 30 South, Range 12 West of the Willamette Meridian in Coos County, Oregon, and which land is immediately adjacent to the above-described premises owned by plaintiffs, and which he operates as a farm or ranch.

"III. That said defendant Donald Gibbs is also engaged in logging operations on lands which are adjacent to the hereinbefore described land owned by him, but not on his own land.

"IV. That prior to the institution of this suit, said defendant attempted to negotiate and purchase from plaintiffs, a logging right of way over and across the hereinbefore described lands owned by plaintiffs, but failing to acquire such logging right of way, he instituted a gate-way proceeding in the County Court of said County; that among other matters the petition for said gate-way alleged `that the right to use the same for transportation of timber products has been refused him by said owners.' That thereafter and on August 23rd, 1945, said County Court made an order in said proceeding establishing a gate-way, following the course prayed for in said petition, over and across said lands owned by the plaintiffs, and allowed plaintiffs the sum of $150.00 as damage for the land used by said gate-way.

"V. That according to said petition the purpose of said gate-way was to provide a means of ingress to and egress from the farm and residence of the defendant Donald Gibbs. That since the allowance of said gate-way as aforesaid by said County Court said defendant has commenced to haul poles, ties, and other timber products over and across said gateway, from lands other than those owned by said Gibbs, against the will and without the consent of the plaintiffs or either of them, and is continuing to wrongfully and unlawfully, and without the consent of these plaintiffs, use said gate-way for the purpose of hauling, transporting, and carrying the timber products belonging to said defendant, on and over said gate-way, and in the conducting generally of his logging operations. That said defendant has also failed at certain points to follow the course of said gate-way. That the fair and reasonable value for such use and occupation of said land used by said gate-way for logging purposes is the sum of $500.00, and the plaintiffs have been damaged thereby in said sum.

"VI. That said defendant threatens to conduct other logging operations adjacent to said premises owned by plaintiffs, and threatens to convey logging products across said gateway. That if such operations proceed, they will do plaintiffs great and irreparable injury, and will deprive them of their constitutional right of property without compensation or securities tendered.

"Wherefore, plaintiffs pray that the court presently, by preliminary injunction and hereafter, by permanent injunction restrain said defendant, his agents and employees, from using said gate-way for logging purposes without just compensation or security tendered."

The question presented is of far more importance than appears at first glance. It will be noted that respondent established the gateway across appellant's land by virtue of O.C.L.A. § 100-1503. He now seeks to log from land adjoining his land and to use this gate-way across appellants' land through which to carry on this logging operation.

The question presented is: Does he have a right to make this use of the gateway? If he does, the complaint is not good. If he does not, then the complaint is good and the lower court committed error in sustaining the demurrer and in dismissing this suit.

At the very foundation of our consideration of the issue, we are confronted with the proposition as to the constitutionality of the statute. If the road is strictly a private road, the statute is unconstitutional. Witham v. Osburn, 4 Or. 318, 18 Am. Rep. 287; Towns v. Klamath County, 33 Or. 225, 53 P. 604; Anderson v. Smith-Powers Logging Co., 71 Or. 276, 139 P. 736, L.R.A. 1916B, 1089; 29 C.J.S. 831; Komposh v. Powers, 75 Mont. 493, 244 P. 298; Powers v. Komposh, 275 U.S. 504, 72 L.Ed. 396, 48 S.Ct. 156. On the other hand, if the road is a public road with all the attributes of a highway, then it follows that respondent's neighbor can use it for logging his timber. The county court can regulate load limits, O.C.L.A. § 115-389, and otherwise control and regulate respondent's gateway, O.C.L.A. §§ 100-3002 and 115-387. Our task is to ascertain if possible the legislative intent expressed in the statute involved.

Consideration of the history of this section of the statute, the several amendments that have been made thereto, and the decisions of this court construing the same are of great assistance in solving this problem.

The first act passed by the Oregon Legislature covering this matter was enacted in 1860. It provided for a strictly private road. The constitutionality of that act came before this court in 1873. In the case of Witham v. Osburn, supra, this court held the act unconstitutional. At page 324 of the opinion, this court said:

"It has been argued that many persons are so situated as to have no connection with any public highway, and that such persons will be put to great inconvenience, unless private roads can be established for the use and benefit of such persons. In answer to this argument, we would suggest that the Legislature may meet the necessity by providing for the establishment of a different class of public roads than are now provided for by law." Witham v. Osburn, supra.

In 1876 the Legislature followed this suggestion. This act provided that where a person's residence was not reached by any kind of road and where it was necessary that the public have ingress to and egress from the residence of such person, a county road or public highway could be thus established. This statute came before this court in the case of County of Douglas v. Clark, 15 Or. 3, 13 P. 511 (1887). While the constitutionality of this act was not urged, the court did state that the authority sought to be exercised was entirely of a public nature. The court said:

"Such roads can only be established when it is necessary that the public and the applicant have ingress and egress from the residence of the applicant * * *." County of Douglas v. Clark, supra.

This act was again before this court in the case of Towns v. Klamath County, supra. In this case the constitutionality of the act was directly in issue and was sustained. The court said on page 232 of the opinion:

"The principle to be deduced from the adjudged cases, bearing upon the question, seems to be that if, by a fair construction and operation of the statutes, the road, when laid out, is in fact a public road, for the use of all who may desire to use it, the law is not liable to the charge of unconstitutionality, and is valid, though the road may be laid out on the application of, paid for and kept in repair by the petitioner, and primarily designed for his benefit; but if such road is to become a mere private way, and not open to the public, the law sanctioning it is void." Towns v. Klamath County, supra.

In 1899 the Legislature amended the section. This act provided, among other things, as follows:

"Whenever it shall appear to the county court of any county of this state by the sworn petition of any person that the residence of such person is not reached by any convenient public road heretofore provided for by law, and that it is necessary that the public and such person shall have ingress and egress from the residence of such person, the county court shall thereupon appoint three (3) disinterested freeholders of the county as viewers, and cause an order to be issued directing them...