City of Dallas v. Hallock

• Citation: 44 Or. 246,75 P. 204
• Parties: CITY OF DALLAS v. HALLOCK et al.
• Decision Date: 01 February 1904
• Court: Supreme Court of Oregon

75 P. 204

44 Or. 246

CITY OF DALLAS v. HALLOCK et al.

Supreme Court of Oregon

February 1, 1904

Appeal from Circuit Court, Polk County; George H. Burnett, Judge.

Action by the city of Dallas against Mary E. Hallock and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action instituted in the exercise of the right of eminent domain to condemn certain rights of way over and upon the premises of the defendant Mary E. Hallock for conducting water from Canyon creek, a tributary of La Creole creek, to the city of Dallas; also a reservoir site and 500,000 gallons of water flowing every 24 hours in La Creole creek for the construction, maintenance, and operation of a system of waterworks in said city. The complaint sets forth the incorporation of the plaintiff as a municipality, the adoption by the common council on September 17, 1902, of Ordinance No. 23, providing for supplying the city and its inhabitants with water for public and private use, and contracting with H.V. Gates, his successors or assigns, for the construction of a water plant within and for the city and for the payment to him of $12,000, and a lease of the plant for a period of 20 years, or until terminated by agreement of the contracting parties; the adoption on March 23, 1903, of Resolution No. 17, selecting the real property water, and water rights sought to be appropriated and condemned; the adoption on April 20th following of Resolution No. 19, providing that the city shall by proper action appropriate and condemn the property, rights of way, water and water rights selected by Resolution No. 17; that the city is proceeding to construct the plant; that in the construction, maintenance, and operation thereof it is necessary for plaintiff to lay down and construct a pipe line on and above the lands of Mrs. Hallock, and for that purpose to condemn a strip 20 feet wide, particularly describing the same, with its termini and location upon the ground and a site for reservoir purposes; that it is also necessary for the purposes indicated to appropriate and condemn 500,000 gallons each and every 24 hours of the water of La Creole creek, flowing past and through her premises; and that the parties plaintiff and defendant are unable to agree upon suitable compensation for the several rights and properties involved. A demurrer interposed to the complaint was overruled, and the defendants answered, setting up, first damages on account of the appropriation of the lands, water, and water rights; and, second, that the city of Dallas can be supplied with abundant and wholesome water by appropriation from streams flowing into La Creole creek below the water power of the defendant Hallock, which can be utilized at 25 per cent. less cost than from Canyon Creek; and praying that the complaint be dismissed, but, if not, then for damages as alleged. At the trial Mrs. Hallock obtained a verdict for $600 damages, and, the plaintiff having paid the money into court, together with the costs and disbursements then accrued, a judgment was rendered in its favor, condemning the lands and water rights as prayed for, from which the defendants appeal.

Ordinance No. 23 is made a part of the bill of exceptions, and provides, among other things, that H.V. Gates, his successors or assigns, is to furnish all labor and materials necessary to construct and install a plant in the city of Dallas for a system of waterworks, with circulating mains and reservoir pressure; that the water shall be supplied from Canyon creek, or from any other source where water of equal quality can be obtained; that the contractor shall construct a masonry reservoir, with supply and waste pipes, furnish and lay the pipes, the length, dimension, and quality being designated, and as much more as from time to time may be necessary to supply actual patrons; that the city shall provide sufficient ground for a reservoir site, the right of way thereto and therefrom, the right of way for all water mains, the right to use the water of Canyon creek or other source of supply, and the right of way therefrom to the reservoir. It is further provided that, in consideration of the benefits to be derived from said plant, the city shall pay to the contractor $12,000, in two installments, the last to be when the plant is completed, at a cost to the contractor of not less than $20,000, exclusive of the rights of way, water, and water rights to be furnished by the city; that thereafter the plant shall be and remain the property of the city; that the contractor shall retain, as lessee, the use of said plant for the period of 20 years for a nominal consideration of $1 per year, he to keep the same in repair and make such extensions as are necessary to meet the demand for water; that at the expiration of 20 years, or each succeeding period of 5 years thereafter, optional with the city, the value of the plant shall be determined in manner designated; that when it is so ascertained it shall be paid to the contractor, less the $12,000, the payment of which is first provided for, and that the city shall, after the acceptance of the contract, and its election to issue bonds, at once proceed to sell as many thereof as will be necessary to procure the funds for the payment of the $12,000 stipulated to be paid on completion of the plant. Resolution No. 17 selects certain real property, rights of way, water, water courses, and riparian rights necessary to be used for the purpose of constructing, maintaining, and operating a system of waterworks in the city of Dallas, to be owned by it for the benefit of the city and its inhabitants, the same to be acquired by appropriation and condemnation through proper proceedings for the purpose, specifically describing them, and provides that the question whether the city shall acquire and make payment for and institute actions to condemn such property and rights so selected shall be submitted to a vote of the taxpayers of the city at an election to be held April 6, 1903, prescribing minutely the manner of holding such election. Resolution No. 19 authorizes and directs the appropriation and condemnation by proper actions of the property, rights of way, water, and water rights and privileges designated in resolution No. 17, and the employment of an attorney to prosecute such actions.

W.H. Holmes, for appellants.

W.T. Muir, for respondent.

WOLVERTON J. (after stating the facts).

It is first insisted that the city of Dallas is without competent authority to institute condemnatory proceedings of the nature here in progress, but it is quite apparent that section 51 of the charter, as amended in 1903 (Sp.Laws 1903, p. 671), confers ample power for the purpose.

It is next urged that the complaint does not state facts sufficient to constitute a cause of action, because (1) it is not shown that the property and rights sought to be appropriated and condemned are necessary and convenient for the purposes contemplated; (2) that the city is proceeding by resolution, and not by ordinance, as required by the charter; and (3) that it is transcending its powers in leasing the plant, instead of operating the same upon its own account. Of these in their order.

It may be premised in this connection that a motion was interposed after verdict for judgment notwithstanding in favor of defendants for a dismissal of the action, which reserves the questions suggested for our consideration. Section 51, supra among other things, authorizes and empowers the city to construct, operate, and maintain waterworks within or without its limits for the purpose of supplying the city and its inhabitants with water, and to charge tolls therefor, and to that end to purchase all real property, whether located within or without its limits, necessary for reservoirs, pumping stations, other buildings, and pipe lines, and all waters of lakes and streams and riparian rights necessary or convenient therefor, and, if unable to agree with the owner of any such property for the purchase thereof, to appropriate and condemn to its own use for the purposes aforesaid any and all such real property, waters, streams, and riparian rights; the proceedings in such action to condemn to be the same as those provided by the laws of Oregon for the condemnation of lands for railway purposes; and for the purposes indicated to issue interest-bearing negotiable coupon bonds, to the amount of $25,000, to run not more than 20 years, and to draw interest not to exceed the rate of 5 per cent. per annum. Within the intendment of this section, the complaint should undoubtedly show by appropriate allegations that the property and rights sought to be condemned were necessary, or at least convenient, for the construction, maintenance, and operation of waterworks for the city's use and benefit. The general rule applicable where it is sought to take lands or property of another and appropriate them to a public use or benefit is that the necessity therefor must not only be averred, but proved, and that it must further appear that the party seeking the appropriation has been unable to agree with the owner...