Barrett v. Union Bridge Co.

• Decision Date: 06 April 1926
• Citation: 117 Or. 566,245 P. 308
• Parties: BARRETT ET AL. v. UNION BRIDGE CO.
• Court: Oregon Supreme Court

245 P. 308

117 Or. 566

BARRETT ET AL. v. UNION BRIDGE CO.

Supreme Court of Oregon, En Banc.

April 6, 1926

Appeal from Circuit Court, Linn County; L. H. McMahan, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 243 P. 93.

J. M. Devers, of Salem, and J. P. Winter, of Portland (Winter & Maguire, of Portland, and J. M. Devers, of Salem, on the brief), for appellant.

Gale S Hill, of Albany, and E. B. Seabrook, of Portland (Malarkey, Seabrook & Dibble, of Portland, and Hill & Marks, of Albany, on the brief), for respondents.

RAND, J.

Plaintiffs have filed a petition for rehearing, in which they assert that the decision rendered in this case is erroneous in the following respects: (1) That it fails to give effect to section 4562, Or. L., which they claim is a remedial statute that was enacted to avoid the harshness of the rule that, in the absence of some constitutional provision or statute authorizing it, an abutter whose property has been consequentially damaged by a municipal change of the grade of a public street cannot recover such damage. (2) That under the provisions of sections 3196, 4718, and 4719, the county court is the only agency of the state having the power to erect an approach to a bridge upon a public street in an incorporated city. (3) That the building of the bridge was a matter calling for the exercise of judgment and discretion upon the part of the county court in inviting bids, and in the letting of the work, and, not having exercised this discretion in respect to these matters, the contract between the state highway commission and defendant, under which the bridge was constructed, was void, and the structure built thereunder was itself unauthorized and illegal, making the use of the street immediately in front of plaintiff's premises, an illegal and unauthorized use. (4) That the rule which should have been followed is that announced in Less v. Butte, 72 P. 140, 28 Mont. 27, 61 L. R. A. 601, 98 Am. St. Rep. 545, and McGavock v. Omaha, 58 N.W 543, 40 Neb. 64, and, finally that the effect of our decision is to overrule Twohy Bros. Co. v. Ochoco Irr. Dist., 210 P. 873, 216 P. 189, 108 Or. 1, and Springfield, etc Co. v. Lane County, 5 Or. 265 without even citing them. These contentions will be considered in their order.

Section 4562 reads as follows:

"Whenever it is necessary that any county of this state shall require or damage any real property, water, water courses, or any right or interest therein for public uses hereinbefore set forth, the necessity for such acquisition shall be declared in the first instance by a resolution of the county court or board of county commissioners of said county, and if the owner thereof and said county court or board of county commissioners cannot agree upon the price to be paid for the amount of or interest in his said real property, water or water courses required, and the damages for the taking thereof, said county court or board of county commissioners may and is hereby authorized to request the district attorney for the county, and he shall, when so requested, commence and prosecute in the circuit court of said county, in the name of the county, any necessary or appropriate suit, action or proceeding for the condemnation of said amount of or interest in said real property, water, or water courses, so required for said purpose, and for the assessment of damages for the taking thereof."

Chapter 295, Laws 1917, of which the above section was a part, comprises, as codified, sections 4563-4576, Or. L. sections 4561-4563 are the only sections which provide for condemnation by counties of property for county roads, and until the enactment of said chapter there was no statute under which a county could institute condemnation suits for the purpose of appropriating property for county roads. The enactment of these three statutes, therefore, was obviously to enlarge the powers of the county courts, and there is nothing in the statute to indicate any legislative intent to change the rule concerning the recovery of consequential damage. A careful consideration of the title of the act, as well as the entire act itself, will show that the act refers only to things pertaining to or in some way related to a county road, and that the act has no application to the establishment of a city street, or to any public street, after it has once been established. The remedy provided by the three sections just referred to is a remedy which can be invoked only on behalf of a county, and by a county only for some purpose connected with a county road. It cannot be invoked by a city for the purpose of condemning property for a street or other public use, nor by a county for the purpose of condemning any part of a public street for road purposes, or otherwise. To hold that these statutes are remedial statutes, and that their application should be extended to cases similar to the situation involved here, would require the reading into the statutes of terms not contained in them.

Section 715, Or. L., directs that the courts, in the construction of statutes, are "simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, nor to omit what has been inserted." We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the Legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the Legislature, unless the words to be imported into the statute are, in substance at least, contained in it.

Section 3196 provides:

"Whenever any county of this state shall construct across any stream any bridge which shall be wholly or in part within the limits of any incorporated city within such county, such county shall have and is hereby granted the power and authority to use as approaches for such bridge such portions as may be necessary of any street or streets of such city leading to such bridge; and the power, dominion and right of control over such portions of said street or streets as shall be so used, and the right to improve and maintain the same, are hereby granted exclusively to such county."

This section confers upon counties, without their being compelled to institute any condemnation suit, or to pay an abutter for any consequential damage, the right to use and occupy as an approach to a bridge which is being constructed by the county over a stream, wholly or in part within the limits of an incorporated city, such parts of the public streets of the city the use of which is necessary for that purpose, and, when so used by the county, vests in the county the exclusive dominion and control over the part used. The specific thing which for the purpose of this statute is taken from the city and vested in the county is the control and dominion over a part of a public street which has already been established and dedicated to the use of the public. It is not privately owned property, nor a part of a street which has not yet been established. Under this statute, nothing is to be taken but a part of the public street itself. The power of the county to use the street for that purpose is expressly granted, and is not dependent upon the condemnation of any property rights whatsoever. The statute itself contains no provision which would permit the county to pay any consequential damage to abutting owners for cutting off their access to the street. Such payment in such case would be unauthorized and illegal. If, however, in the construction of such approach, it would be necessary for the county to take any part of the abutting owner's property, compensation therefore would, of course, have to be made for such taking. Hence, if as contended for by plaintiff, the county alone had the power to construct this approach, and failed to comply with any provisions of the statute prescribing the manner and mode of exercising the powers of the county court, plaintiffs would not be injured thereby, since in neither event could they recover any damages from the county.

Plaintiffs' assertion that the decision in Towhy Bros. Co. v. Ochoco Irr. Dist., supra, and Springfield, etc., Co. v. Lane County, supra, are applicable to this case, and have been overruled by our former decision in this case, is based upon the contention that Linn county was the only governmental agency having authority to construct this approach upon the streets of Albany, and that sections 3196, 4718, and 4719 prescribed the only mode in which the power of the county could be exercised, and that, since the mode prescribed was not followed, the approach is an unlawful structure and entitles plaintiffs to have it abated, so far as it cuts off their access to the street from their premises.

Before considering the question of the agency of the county, and of the effect of the three sections referred to, we will discuss the two cases referred to. In the first case, a contract had been entered into by Twohy Bros. Company with the Ochoco irrigation district, a municipal corporation, for the construction of a system for the irrigation of the lands of the district, without competitive bidding as required by the statute, and plaintiff was attempting to recover in an accounting suit, its claim against the district, for the work and services performed, and it was held that under a statute requiring competitive bids for public contracts, that mode is exclusive, and must be followed or else the contract is void. Upon rehearing (216 P. 191, 108 Or. 43), it was held that--

"When the mode of

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