Chapman v. City of Hood River

• Decision Date: 29 March 1921
• Citation: 100 Or. 43,196 P. 467
• Parties: CHAPMAN v. CITY OF HOOD RIVER ET AL.
• Court: Oregon Supreme Court

196 P. 467

100 Or. 43

CHAPMAN v. CITY OF HOOD RIVER ET AL.

Supreme Court of Oregon

March 29, 1921

Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge.

Application for writ of review by E. E. Chapman against the City of Hood River and H. L. Howe, Recorder of the City of Hood River. A motion to set aside an order and judgment quashing the writ was denied, and plaintiff appeals. Reversed and remanded.

This is a proceeding by writ of review instituted in the circuit court of the state of Oregon in and for Hood River county. Its purpose is to review the action taken by the common council of the city of Hood River in undertaking to lay out and establish two certain streets within the corporate limits of said city.

The charter of the city of Hood River granted by the Legislative Assembly of 1901 (see Special Laws, p. 817) contains two chapters relating to streets: Chapter 8, concerning streets the grade and improvement thereof, and chapter 9, relating to opening streets.

Section 49, ch. 8, provides:

"The common council shall have power and authority, whenever it deems it expedient, to establish or alter the grade of, and to improve or repair any street or alley, or any part thereof, now or hereafter laid out. * * *"

Section 75, ch. 9, provides:

"Whenever the council shall deem it expedient to open, lay out establish, * * * or extend a street or alley, it shall cause the city surveyor to survey such proposed change or new street or alley, and make a report thereof containing a plat of the survey, * * * and the portion of each lot, * * * or tract required to be appropriated for such * * * new street or alley, * * * which report, if satisfactory to the council, shall be adopted by ordinance embodying the same Provided, that before the adoption thereof the recorder shall give notice of the filing of such report, by publication for two weeks in some newspaper published in the city of Hood River, or by written notices posted for two weeks at three public places in said city, and at the next regular meeting of the council after the completion of131 such notice, present to it the said report, and attached thereto a copy of such notice, with the proof of publication or posting indorsed thereon. Thereafter, and within sixty days from the adoption of such report, the council shall appoint three disinterested freeholders of the city of Hood River, not related by consanguinity or affinity to any owner or person interested in any property to be appropriated, and possessing the qualifications of jurors in courts of justice for Wasco county, to view such proposed street or alley, and make an appraisement of the damages, if any, to the respective owners of the property required to be appropriated, and report the same to the common council. * * *"

Section 80 of said chapter is as follows:

"In estimating the damages to the premises of any person pursuant to this chapter, the viewers and jurors shall be governed by the differences in the market value, if any, of the premises of such persons, before and after the opening widening, extending or straightening of such street or alley; and may consider any use of the premises for which it is adapted, including the platting of the same into lots and blocks, and they shall consider only such damages or conveniences caused by such street or alley as affects the use of said premises for the purpose for which it is the most valuable in the market."

Section 84 provides:

"* * * The common council shall * * * order a warrant drawn * * * for damages, or damages and costs, awarded to the owner * * * of the property appropriated, * * * if it shall determine to open, lay out, establish, widen, straighten or extend said street or alley, and cause such report, survey and plan to be recorded in the record of city surveys, and from thenceforth said street or alley shall be considered laid out established, * * * or extended, as the case may be, and the council shall cause an order to issue directing said street * * * to be so opened."

Section 87 is as follows:

"The common council has authority * * * to open, establish and locate streets upon the roadbed of and upon or across any county road or public highway within the corporate limits. * * *"

Sections 49 to 87, inclusive, relate to grading, the improvement, and opening of the streets of the city of Hood River.

The petition for the writ is full, and alleges, among other errors, the following:

"That the resolution of said common council of the city of Hood River adopted April 15, 1918, declaring the expediency of * * * establishing * * * said streets and directing the survey thereof included two separate streets. * * *

"That * * * the common council appointed three viewers to view said two streets and appraise the damages to the owners of the lands taken by said streets, before the resolution * * * had gone into effect."

"In appointing E. A. Franz, J. Wickham, and James Stranahan as viewers, for the reason that at the time of making said view and appraisement * * * they were not disinterested freeholders of the city of Hood River * * * and were not qualified viewers."

"In applying an unlawful measure of damages in fixing compensation for the land condemned."

"That the said proposed River street and Hood street were not designed or intended as public streets of the city of Hood River, and that the said streets, as surveyed, platted, and laid out, are over navigable waters of the Columbia river, where it is impracticable to construct a roadway. * * *

"That no notice or information of any kind was given to the plaintiff of the award of said viewers, or of the amount awarded her."

Upon the plaintiff's giving an undertaking, the court ordered a writ of review, which was returned and filed July 7, 1919. Defendant moved the court for an order dismissing plaintiff's petition and quashing the writ of review and return thereon, upon the following grounds:

"That the plaintiff's said petition and the said return show that all proceedings taken and had relative to the opening of River street and Hood street were regular and lawful and in full compliance with the charter of the city of Hood River and with the laws pertaining to such proceedings, and that said petition for a writ of review does not state facts sufficient to constitute a suit or to show that the plaintiff is entitled to a writ of review or to any relief from this court, and this court has no jurisdiction to review any order, decision, proceeding, or thing. * * *

"That the said petition and application of plaintiff for a writ of review was not filed or made herein within 60 days from the date of the decision or the determination complained of, and not within the time required by law for the filing and making of petitions and applications for writs of review. * * *"

Thereafter, and on the 26th day of December, 1919, the court ordered and adjudged:

That "said motion to quash and dismiss be * * * granted and allowed, and * * * that the petition for the writ of review be * * * dismissed, and that said writ of review be * * * quashed and dismissed."

On February 2, 1920, plaintiff, by her attorney, filed a motion to set aside and open the order and judgment heretofore made sustaining the motion to quash the writ of review, which was on February 14, 1920, denied by the court.

Thereafter plaintiff appealed to this court, assigning errors as follows:

"That the court erred:

"In sustaining the motion of respondent to quash the writ of review, and in quashing the writ and dismissing the petition.

"In refusing to sustain the writ. * * *

"In denying appellant's motion for an amended return to the writ."

H. H. Riddell, of Portland, for appellant.

E. C. Smith, of Hood River, for respondents.

BROWN, J. (after stating the facts as above).

The plaintiff's right to review the proceedings of the common council of the city of Hood River in attempting to lay out and open a street through her land is based upon the provision of our Code reading:

"Any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this chapter prescribed, and not otherwise. Upon a review, the court may review any intermediate order involving the merits and necessarily affecting the decision or determination sought to be reviewed." Or. L. § 603.

The right to review dates from the final order of the common council wherein it decided to lay out, establish, and open said streets as provided by section 84 of the charter, because:

"This writ does not lie from an interlocutory order, but from the determination of the matter." Holmes v. Cole, 51 Or. 483, 94 P. 964.

Did the council of Hood River exceed its authority by including two streets in one proceeding? 1 Elliott on Roads and Streets (3d Ed.) § 382, holds:

"It is perhaps irregular to include and describe more than one proposed highway in the same petition, and it is certainly safer and better, ordinarily at least, to file a separate petition in each case; but such irregularity is not jurisdictional. * * * If the petition is sufficient as to one of the proposed highways, we see no good reason why the proceedings might not be carried on as to that one, even though it would be improper to establish more than one in a single proceeding."

In 37 Cyc. p. 75, it is said:

"In the absence of express statutory authority, some decisions lay down the rule that several distinct highways cannot be prayed for in the same petition, unless they connect with one another or are closely identified and designed to form a system of roads. On the other hand, it has been held that, while such a proceeding is doubtless irregular, and

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