Cole v. City of Seaside

• Decision Date: 08 July 1919
• Citation: 93 Or. 65,182 P. 165
• Parties: COLE v. CITY OF SEASIDE ET AL.
• Court: Oregon Supreme Court

182 P. 165

93 Or. 65

COLE v. CITY OF SEASIDE ET AL.

Supreme Court of Oregon

July 8, 1919

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by R. R. Cole against the City of Seaside, E. S. Abbott, its Auditor and Police Judge, and R. H. Peeler, its City Marshal. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit to restrain the defendant city and its officers from enforcing against the plaintiff's realty an alleged lien claimed by the municipality for the expense of improving what the plaintiff maintains is a county road, in front of his premises, and the city contends is a street within its corperate limits. This is the second appeal in this cause. It first came before this court on demurrer to the complaint and the opinion is reported in 80 Or. 73, 156 P. 569. After the case was remanded for further proceedings, an issue of fact was joined on the allegation of the plaintiff that the way in question was a county road, testimony was taken and a decree rendered in favor of the plaintiff, from which the defendants appeal.

Victor J. Miller, City Atty., of Seaside, and G. C. Fulton, of Astoria (Victor J. Miller. of Seaside, and G. C. & A. C Fulton, of Astoria, on the brief), for appellants.

E. E Gray, of Astoria, for respondent.

BURNETT J.

The demurrer considered in the former opinion admitted the averment of the complaint that the way in question is a public county road, which, as we decided there on construction of the legislative charter of Seaside, the city had no jurisdiction to improve. The same doctrine was approved in Christie v. Bandon, 82 Or. 481, 162 P 248, and in Cooper v. Fox, 87 Or. 657, 171 P. 408. The law may thus be considered as settled that, although a county road may traverse land within the limits of an incorporated city or town, yet, unless the state through its legislative department, or the county as the agent of the state, employing the procedure prescribed by the statute, surrenders the authority over the county road, the city cannot assume such control.

In view of the denial by the defendants that the thoroughfare in question is a county road, it becomes necessary to examine the testimony in order to determine that issue of fact. At the trial the plaintiff introduced various records and files of the county court showing acts of control exercised by the county over the way in question. In order to save the expense of the exemplification of those records, it was stipulated by the parties that:

"The way in question described in the pleadings and evidence herein as 'Seventh street' in the city of Seaside (formerly town of Seaside), in Clatsop county, state of Oregon, was at the date of and for many years prior to the adoption of the original act incorporating the town of Seaside (now city of Seaside) had been a public highway by user, the same having been used and employed by the public as a common public highway for travel for over 20 years

prior to the adoption of the original act incorporating the town of Seaside."

It is in testimony that the county authorities caused the road to be surveyed before Seaside was ever incorporated, and that the county also expended money and labor in improving it both before and after the incorporation of the city. This amounts to a dedication of the road for public use by acts in pais coupled with an acceptance by the county, thus constituting it a regular county road. This is the doctrine taught in the cases of Bayard v. Standard Oil Co., 38 Or. 438, 63 P. 614, Nosler v. Coos Bay Railroad Co., 39 Or. 331, 64 P. 644, Ridings v. Marion County, 50 Or. 30, 91 P. 22, and Eastman v. Clackamas County (C. C.) 12 Sawy. 613, 32 F. 24. The stipulation together with the undisputed facts relating to the control exercised over the way by the county court stamp it indubitably as a county road.

Upon the facts as admitted by the demurrer, we decided in the former opinion that the county had not surrendered control over the county road, nor had the state done so by any legislation relating to the town or city of Seaside, and hence that the city had no authority to improve the same. The conclusion there reached has been stoutly contested by the defendants both in their brief and in the oral argument. They cite a number of authorities in support of their proposition which they thus state:

"Whether a certain way is a street or county road is purely a matter of geography. If beyond the boundaries of a municipality, it is a county road; if within the boundaries of a municipality, it is a street."

These precedents have had our careful consideration, and while some of them declare as a conclusion from the legislation involved that the incorporation of a road within the city limits makes it ipso facto a street, a careful analysis shows that the rule announced in those decisions rests upon a construction of the statute there under consideration. For instance, in Benton v. State, 168 Ala. 175, 52 So. 842, the legislative charter required the city to keep in repair "all bridges, public roads and streets." McGrew v. Stewart, 51 Kan. 185, 32 P. 896, depends upon a general statute giving cities control of all ways within their boundaries. In such instances the state law has visited upon the cities authority over county roads within their limits to the exclusion of the county authorities. There are instances of the kind in Oregon, but this is not one of them. County Commissioners v. City of Jacksonville, 36 Fla. 196, 18 So. 339, 29 L. R. A. 416, states the principle thus: "That whether the county commissioners had been deprived of a jurisdiction of such road within the new town organization depended upon the legislation on the subject of public roads and municipal corporations, and that the intent of the Legislature as manifested by the statute would control."

Again, Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105, uses this language:

"The state in its sovereignty over all public highways has full power over the streets as well as over public roads and unless prohibited by the Constitution the Legislature may confer on such agency as it may deem best the power of supervision and control over streets."

In the light of these authorities cited by the defendants in support of their postulate, we are brought back to the rule declared by Mr. Justice Bean in Bowers v. Neil, 64 Or. 104, 128 P. 433, that:

"Whether a county road becomes a street when included within the corporate limits of a city depends upon the intention of the Legislature as gathered from the city charter, general laws, and the whole course of legislation on the subject."

Under these circumstances it is not deemed necessary to reopen the discussion or to vary from the conclusions on the law reached in the former decision. As already pointed out by the testimony, the fact is that the way here involved is a county road as alleged in the complaint, so that thus far in the investigation both the law and the fact are with the plaintiff.

The only remaining question necessary to be considered is whether the plaintiff is estopped to resist the proposed sale of his property. The defendants rely greatly on the fact that, while the matter of the proposed improvement was under consideration by the city council the plaintiff and others lodged with that body a writing which is here quoted, after the date and address:

"We, the undersigned, property owners in the district to be assessed for the improvement of Seventh street, formerly and commonly known as Main street, from its intersection with the south boundary line of Avenue B, produced westerly formerly and commonly known as Washington street; to its intersection with the north boundary line of First avenue, east of said Seventh street, formerly and commonly known as Duane street, in the city of Seaside, Or., in the following manner, to wit: By paving said street 40 feet in width, 20 feet on each side of the center line of said street, with gravel bitulithic pavement, by constructing artificial stone curbs along each said pavement, by making the necessary excavation and fill to bring said street to the established grade as established by Ordinance No. 107 of the city of Seaside, Or.--hereby remonstrate against said improvement for the following reason: That the present street is in a good condition, and that it is an unnecessary expense to the property owners to make such improvements until such time as the sewer shall have been laid upon the said street, also the present water mains will have to be changed within a short time, and until said sewer and water mains are laid permanently it would be an unreasonable expense to put on the property owners along said street.

"Trusting that you will give this remonstrance your careful consideration, we remain, your petitioners."

Admittedly this paper was signed by the plaintiff with others. First of all, this is a remonstrance, an objection. No importance can be attached to the fact that the way is called a street in the writing. That portion of the instrument is substantially a quotation of the language used by the city authorities in framing the ordinance, and was probably used by the plaintiff and his associates to make the remonstrance correspond in nomenclature with the proceeding it was designed to oppose. The whole instrument amounts to no more than their saying:

"On the assumption of the city that this is a street we remonstrate against its improvement."

In no way do the signers submit themselves to the jurisdiction of the city or invite the municipality to incur the expense of paving.

The council had no jurisdiction over the subject-matter of improving a county road at the expense of the abutting property owners. Mere consent will not confer jurisdiction...