Beekman v. Jackson County

• Decision Date: 06 January 1890
• Citation: 22 P. 1074,18 Or. 283
• Parties: BEEKMAN v. JACKSON COUNTY.
• Court: Oregon Supreme Court

22 P. 1074

18 Or. 283

BEEKMAN v. JACKSON COUNTY.

Supreme Court of Oregon

January 6, 1890

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge.

It appears that an application was made to the county court for said county of Jackson to lay out a county road between certain points in said county, which, for a considerable distance, ran across the lands of the appellant; that the latter filed a complaint for damages for the opening of the road; that said court thereupon appointed viewers to view the route, and assess in favor of the appellant any damages to which he might thereby be entitled; that said viewers viewed the route, and reported that the appellant would be damaged in consequence of the opening of the road in the sum of $400 that, upon the said report being filed, the county court set it aside, upon the grounds that the viewers, when they viewed the route and assessed the damages, had not been properly sworn; that said county court then appointed new viewers for the same purpose; that two of the viewers last referred to met, and viewed out the route of the road, and reported to the county court that the appellant was not entitled to any damages in consequence of opening the road; that the county court, being satisfied with such report, established the said road. Whereupon the appellant took an appeal from said last-mentioned report to said circuit court, where the question as to his right of damages in the premises was tried by jury, who returned the following verdict: "Circuit court, Jackson county, Oregon. C.C. Beekman vs. Jackson County. We, the jury in the above cause, find that the benefits to the lands of the plaintiff by the construction of the road will be equal to the damages; and we therefore find that the land of the plaintiff will be equally valuable with said road as without it, and hence we find for the defendant. OWEN KEEGAN, Foreman."

(Syllabus by the Court.)

Upon an appeal to the circuit court from an assessment of damages for opening a county road across the lands of the plaintiff, the question to be tried an determined is, how much less valuable the lands will be rendered thereby.

In the assessment of such damages, the value of the land taken for the purposes of the road, the effect of the taking upon the value of the remainder, the manner of the location of the road, the necessity it may occasion for the removal of buildings or fences, and any other material inconveniences or burdens it may create, should be taken into consideration also, any special benefits which the plaintiff may derive therefrom; and the amount of the assessment of the damages less the value of the benefits, be allowed the plaintiff therefor. Such special benefits, however, must consist of some peculiar advantage which the lands will gain by means of the opening of the road.

In the assessment of damages for taking private property for public use, it is the duty of courts to exercise their powers with a view of enabling the party whose property is so taken to obtain such compensation therefor as the constitution assures to him.

Hence where it appeared from the verdict of a jury and the exception, in a case of assessment of damages for taking the lands of the plaintiff for the purpose of a county road, that the jury had evidently allowed, in reduction of the damages, benefits of a general nature, and the trial court had refused to give certain instructions requested by the plaintiff's counsel, which particularly and properly defined the character of the benefits allowable in such a case, held, that such refusal was error, although the court has in general terms properly instructed the jury upon that point.

Where the viewers are appointed by a county court to view the route of a proposed county road, and assess the damages for opening it, they must all meet for deliberation concerning the matter. Thereafter two of them may execute the authority conferred.

But where two of them attempt to execute the authority without such previous meeting of all, their act will be a nullity.

This court will not, however, consider such an irregularity upon an appeal from an assessment of damages in such a case.

P.P. Prim, for appellant.

G.W. Colvig, for respondent.

THAYER, C.J., (after stating the facts as above.)

The appellant's counsel complains in regard to the action of the county court in setting aside the report of the first viewers and appointing others in their place. I think, however, that there were more grounds for complaint against that in its acting upon the view and report of the second viewers, as it appears that only two of them met, and exercised the authority conferred upon the three. The statute specifically points out how such an authority shall be exercised in such cases. Section 518, Civil Code, provides that whenever any authority is conferred on three or more persons, it may be exercised by a majority of them, upon the meeting of all, unless expressly otherwise provided. Unless, therefore, all of said viewers met, a less number had no authority to act, and their report was a mere nullity. But questions of that character should be reviewed on writ of review, and not upon appeal.

The main question in the case is whether the jury, in considering the question of damages to the appellant in consequence of opening the road, acted upon a proper basis. Their duty was to assess and determine how much less valuable, if any, the appellant's lands would be rendered by the opening of the road. In ascertaining such fact they should, of course, take into consideration any special benefits which the lands would thereby receive. They evidently determined that...