Branson v. Gee
| Decision Date | 17 April 1894 |
| Parties | BRANSON v. GEE. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Yamhill county; George H. Burnett, Judge.
Action by Eli T. Branson against Henry Gee for damages for trespass. Judgment for defendant. Plaintiff appeals. Affirmed.
J.J. Spencer, for appellant.
O.H. Irvine, for respondent.
This is an action to recover damages alleged to have been caused by the defendant's entering upon the plaintiff's lands described in the complaint, digging and taking gravel therefrom, and leaving the fences open, so that cattle entered upon and destroyed his pasture. The defendant after denying the allegations of the complaint set up as a separate defense thereto that Yamhill county was and is a duly-organized county of the state of Oregon; that during all of the time mentioned in the complaint the defendant was the duly appointed, qualified, and acting supervisor of the road district in which plaintiff's lands are situated, and that two legally established county roads ran over and upon said lands; that the laying down of the fences as alleged was for the purpose of obtaining access to a bed of gravel situated on such lands; that the gravel therein was necessary to repair said county roads, and that such entry was for the purpose of securing it to be used thereon; that the gravel alleged to have been dug and hauled away was so used; that the laying down of the fences, and the digging and carrying away the said gravel, was done in a prudent and careful manner, without unnecessary damage; and that Yamhill county is liable for such damage as the plaintiff may have sustained thereby, and not the defendant. To defendant's separate defense the plaintiff demurred alleging that it did not state facts sufficient to constitute a defense to the action. The demurrer being overruled by the court, the plaintiff refused to plead further, whereupon the court rendered a judgment dismissing the action, and awarding the defendant costs and disbursements, from which judgment the plaintiff has brought this appeal.
Our statute makes it the duty of supervisors to keep the roads in their districts open and in good repair, and to enable them to do so they are authorized by section 4092 Hill's Code, "to enter upon any lands adjoining or near the public road and gather, dig and carry away any stone, gravel or sand *** necessary for the making and repair of any public road in their district;" and section 4093 provides that, "if any person shall feel aggrieved by the act of any supervisor cutting or carrying away timber or stone as aforesaid he may make complaint thereof in writing to the county court at any regular meeting within six months after the cause of such complaint shall exist, and such court shall proceed to assess and determine the damages, if any, sustained by the complainant, and cause the same to be paid out of the county treasury." The plaintiff contends that these provisions of the road law are unconstitutional and void, because (1) they do not provide for giving notice to the owner whose property is taken, nor (2) for his participation in the selection or formation of the tribunal upon which is devolved the duty of assessing his damages. Lands for highways, as well as timber, stone, and gravel with which to make, improve, or repair them, are taken by right of eminent domain. Cooley, Const. Lim. 657. By the constitution of this state it is provided that private property shall not be taken for public use without just compensation, and, except in case of the state, without such compensation first assessed and tendered. Article 1, § 18, Const. Or. Under this provision the private property of the citizen cannot be taken against his will for any purpose other than a public use, nor, except in case of the state, without just compensation first assessed and tendered. With the state it is not a condition precedent that the compensation should precede or be concurrent with the taking of private property for public use. It may appropriate such property without compensation being first assessed and tendered, but it must make provision by which the party whose property has been seized can obtain just compensation for it. Nor is this all. When the public exigencies demand the taking of private property for...
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Holden v. Pioneer Broadcasting Co.
...for the loss of his specific property. E. g., Hood River Lumbering Co. v. Wasco County, 35 Or. 498, 57 P. 1017; Branson v. Gee, 25 Or. 462, 36 P. 527, 24 L.R.A. 355; Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135; Backus v. Fort Street Union Depot Co., 169 U.S. 557, 18 S.Ct. 445, 4......
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Moore Mill & Lumber Co. v. Foster
...it should be settled by the court before the jury is impaneled.' The early cases of Kendall v. Post, 8 Or. 141, and Branson v. Gee, 25 Or. 462, 36 P. 527, 529, 24 L.R.A. 355, show that the constitutional provision for trial by jury does not extend to eminent domain proceedings. Those decisi......
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Smith v. Cameron
... ... power, in any state in the Union." ... Under ... our Constitution "the private property of the citizen ... cannot be taken against his will for any purpose other than a ... public use." Branson v. Gee, 25 Or. 462, 466, ... 36 P. 527, 528 (24 L. R. A. 355). See, also, Pennsylvania ... Mutual Life Insurance Co. v. Philadelphia, 242 Pa. 47, ... 88 A. 904, 49 L. R. A. (N. S.) 1062 ... If it ... is assumed, as we do, that the Legislature intended to ... ...
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Schrader v. Third Judicial Dist. Ct. in and for Eureka County
... ... time of taking possession (Joslin Co. v ... Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 67 L.Ed ... 1167; Hanson Lumber Co. v. U.S., 261 U.S. 581, 587, 43 S.Ct ... 442, 67 L.Ed. 809)." ... See, ... also, Branson v. Gee, 25 Or. 462, 36 P. 527, 24 ... L.R.A. 355; Holt v. Somerville, 127 Mass. 408; ... State v. Jones, 139 N.C. 613, 52 S.E. 240, 2 L.R.A ... (N.S.) 313; Zimmerman v. Canfield, 42 Ohio St. 463; ... People v. Smith, 21 N.Y. 595, 597; Lent v ... Tillson, 72 Cal. 404, 412, 14 P. 71; State ... ...