City of Portland v. Schmid

• Decision Date: 19 December 1916
• Citation: City of Portland v. Schmid, 82 Or. 465, 161 P. 560 (Or. 1916)
• Parties: CITY OF PORTLAND v. SCHMID ET AL. [a1]
• Court: Oregon Supreme Court

161 P. 560

82 Or. 465

CITY OF PORTLAND v. SCHMID ET AL.^[a1]

Supreme Court of Oregon

December 19, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Condemnation proceedings by the City of Portland against Charles Schmid and others.From a judgment for defendants, plaintiff appeals.On motion to dismiss appeal.Motion granted, and appeal dismissed.

Harrison Allen and J. R. Latourette, both of Portland (Griffith, Leiter & Allen, Latourette & Latourette, and Ralph R. Duniway, all of Portland, on the brief), for the motion.L. E. Latourette, of Portland (W. P. La Roche, City Atty., of Portland, on the brief), opposed.

BENSON J.

This was a proceeding by the city of Portland to condemn a portion of lot 1 in block 315 for the purpose of widening Washington street.Upon a trial the jury returned a verdict in favor of the defendants fixing the amount of damages to be recovered in excess of benefits to be derived from the improvement.A judgment was subsequently entered thereon, from which the plaintiff perfected its appeal.Thereafter the city authorities took possession of the premises, erected a sidewalk thereon, and opened the same to the public for its use.About a month later, at the request of the city attorney, the sidewalk was again set back to the old line and the defendants now move to dismiss the appeal upon the ground that the plaintiff has forfeited its right of appeal by accepting the fruits of the judgment and entering upon and occupying the premises sought to be condemned.Plaintiff while admitting that the pavement was laid up to the newly established line and that the sidewalk was constructed upon the premises and used by the public, insists that these acts were inadvertently performed by the city's agents and employés without authority, and that therefore the city ought not to be held to have waived its right of appeal.We do not deem it necessary to enter into any discussion of the evidence as to this question, and it is enough to say that, in our judgment, the evidence satisfactorily discloses that the city authorized the occupation and use of the land, and that its inadvertence consisted in a failure to hold a timely consultation with its legal advisers.

There remains then a consideration of the question as to whether or not the taking and occupation of the land constitutes a waiver of the appeal.It may be said at the outset that it is so well established as to be regarded as elementary law that a litigant cannot accept the benefits of an adjudication and afterward appeal...