Clark v. City of Salem

• Decision Date: 20 February 1912
• Citation: 61 Or. 116,121 P. 416
• Parties: CLARK v. CITY OF SALEM.
• Court: Oregon Supreme Court

121 P. 416

61 Or. 116

CLARK v. CITY OF SALEM.

Supreme Court of Oregon

February 20, 1912

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Action by Nancy Clark against the City of Salem. From a decree for plaintiff, defendant appeals. Reversed, and suit dismissed.

In the year 1910 the city of Salem improved a portion of Fourteenth street, including that part thereof lying between Chemeketa and Center streets, by laying concrete pavement 30 feet wide. Plaintiff is the owner of the ground lying east of the proposed improvement between the two streets above named. The premises are described as follows: "Beginning at a point where the south line of Center street intersects the east line of Fourteenth street in the city of Salem, in Marion county, Oregon, and running thence southerly along the east line of Fourteenth street 370.33 feet to the north line of Chemeketa street; thence easterly along the north line of Chemeketa street 100 feet; thence northerly parallel with Fourteenth street 370.33 feet; thence westerly 100 feet to the place of beginning." And as a part of the same tract plaintiff on November 15, 1892, also owned the land now constituting the east half of Fourteenth street between Chemeketa and Center; that such property has not been platted or laid off into blocks and streets. On November 15, 1892 plaintiff conveyed by a warranty deed to the Capital City Street Railway Company the strip of ground 30 feet wide between Chemeketa and Center streets, now constituting the east half of Fourteenth street. It constructed its street railway over and across the same and such ground has remained uninclosed. On March 28, 1910, the city council, having decided to pave Fourteenth street, adopted plans and specifications therefor, and on May 2, 1910, by ordinance assessed the expense of the improvement upon the adjacent property, and, among others, assessed upon plaintiff's property, above described, the sum of $1,174.90. On May 14 1910, the council let the contract for the paving to August Kehrberger. On May 9th negotiations were commenced, and on July 19th they were consummated, whereby the city secured from the Portland Railway Light & Power Company, the successor to the Capital City Street Railway Company, the release and dedication in writing to the city of the east half of Fourteenth street between Chemeketa and Center streets for street purposes, subject to the right of the railway company to maintain its track, wires, and poles thereon for the operation of its road. On June 29, 1910 plaintiff served a notice upon the mayor and council of the city, objecting and protesting against the improvement of any portion of Fourteenth street, the cost of which is to be charged to her property, for the reason that the east half of the street between Chemeketa and Center is the private property of the street railway company, and that her property does not abut upon the street, and for that reason her property is not liable for the expense of the paving. At the time this notice was served the contractor had constructed or commenced the construction of the curbing thereon, but had done no other work in front of plaintiff's property. On the 7th of October, 1910, plaintiff commenced this suit against the city to quiet her title to the property. Defendant answered, alleging the proceedings leading up to and terminating in the paving, and the creation of the lien upon plaintiff's property for a portion of the expense thereof, as a complete defense. The reply alleged the facts as to the want of title in the city to the east half of the street, and the notice given to the defendant. Decree was rendered in favor of plaintiff, enjoining defendant from asserting a lien upon the property and defendant appeals.

Grant Corby and R.K. Page, for appellant.

Geo. G. Bingham and John A. Carson, for respondent.

EAKIN C.J. (after stating the facts as above).

It is first contended by plaintiff that, as her property did not abut upon the street as it existed at the time of the notice of intention to improve it was given, her property was not liable, relying upon the language of section 43 of the charter (Laws 1899, p. 939), which provides that "each lot or part thereof within the limits of a proposed street improvement shall be liable for the full cost of making the same upon the half of the street in front of and abutting upon it." However, section 25 of the charter provides that "the said improvements of streets *** herein provided for shall be done at the expense of the owners of adjacent property." The term "adjacent" includes property in the neighborhood of the improvement though not actually touching thereon. 25 A. & E.E. 1191. Section 43 also makes a provision for such a case as this, where plaintiff's property is not laid off in blocks, in which case "the cost of the improvement shall be assessed to the owner or owners of the tract of land lying within one hundred feet of such improvement."

Plaintiff's main contention is that the east half of what is now Fourteenth street between Chemeketa and Center streets at the time of the initiation of the proceedings to improve Fourteenth street was the private property of the Portland Railway Light & Power Company, and upon which a part of the improvement was to be laid; therefore, the city was without jurisdiction to make the improvement, and without authority to assess the...