Drainage District No. 7 OF WASHINGTON COUNTY v. Bernards

• Decision Date: 17 September 1918
• Citation: 174 P. 1167,89 Or. 531
• Parties: DRAINAGE DIST. NO. 7 OF WASHINGTON COUNTY v. BERNARDS ET AL.
• Court: Oregon Supreme Court

174 P. 1167

89 Or. 531

DRAINAGE DIST. NO. 7 OF WASHINGTON COUNTY v. BERNARDS ET AL.

Supreme Court of Oregon

September 17, 1918

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

Suit by Drainage District No. 7 of Washington County, Or., against Hubert Bernards and others. Decree for complainant, and defendants appeal. Affirmed.

S. B. Huston, of Portland (Huston & Huston, of Portland and H. T. Bagley, of Hillsboro, on the brief), for appellants. E. B. Tongue, of Hillsboro (Thos. H. Tongue, Jr of Hillsboro, on the brief), for respondent.

PER CURIAM.

This is a suit to foreclose the lien of an assessment levied by the plaintiff for the purpose of paying for a ditch which the drainage district proposes to construct. The questions to be decided can be better considered if we first give a brief account of the history of the drainage district, including a narrative of what the defendants did.

A petition signed by 31 landowners was filed with the county court on August 12, 1912, asking for the creation of drainage district No. 7 as provided for by sections 6126 to 6145, L O. L., inclusive, as amended by chapter 241, Laws 1911. The proposed boundaries embraced approximately 2,700 acres owned by about 67 persons. The defendant Hubert Bernards was the fee-simple owner of two tracts of land within the boundaries of the proposed district, but his son Herman Bernards occupied the premises. The county court fixed September 16, 1912, as the time for hearing the petition. The petition was published four weeks and was posted for the same length of time on the bulletin board in the county courthouse, and a copy was served on each record owner, including Hubert Bernards. On September 16, 1912, the petitioners and objectors appeared in the county court, and thereupon the hearing was continued until September 24, 1912. Hubert Bernards and two others reduced their objections to writing and filed the paper with the county court on September 23 1912. The remonstrance signed by Bernards alleged that the benefits will not exceed the cost, and that the Bernards' lands should be excluded from the proposed district for the reason that they would be damaged rather than benefited. On September 24, 1912, the petitioners and objectors appeared with their respective attorneys. After hearing all the evidence submitted by the parties, the county court excluded six certain tracts of land owned by different persons and also a part of the lands owned by Hubert Bernards, and then overruled the remonstrance signed by Bernards and approved the petition in compliance with section 6128, L. O. L., as amended by chapter 241, Laws 1911.

The plaintiff caused a line for a ditch to be located, surveyed, and staked out through the drainage district; afterwards the engineer prepared specifications and estimates for the proposed ditch; and then on August 18, 1914, a complete report of what had been done was filed with the county court by the board of directors. The county court approved the report and appointed viewers to assess the benefits to be derived from the ditch. After viewing the premises and making the assessments, the viewers made a report to the county court on September 4, 1914, showing the description of each tract of land, the name of the owner, the number of acres in each tract, and the amount of the assessments charged against the respective tracts of land. The court fixed October 9, 1914, as the time for hearing the report and considering any objections that might be made. Notice of the hearing was duly given. On October 9, 1914, Hubert Bernards filed objections to the assessments made against his lands, alleging that his property would not be benefited and that the assessment was unjust. The court postponed the hearing until October 15, 1914, when the plaintiff and its attorneys, Hubert Bernards and his attorneys and several other owners of land in the district, appeared and submitted their evidence to the county court. On the following day, the county court overruled the objections filed by Hubert Bernards, approved the assessment of $528.89 against his lands, and ordered the assessment to be docketed. With the exception of Hubert Bernards, all the 67 persons owning land in the district have either paid their assessments or made application under the Bancroft Bonding Act to pay the amount in annual installments. The assessment against the Bernards' property became delinquent, and, pursuant to the order of the county court, this suit was brought for the collection of the assessment as provided by section 6136, L. O. L., as amended by chapter 241, Laws 1911.

On March 14, 1914, the drainage district commenced an action against the defendants for the condemnation of a right of way for the ditch to be dug across the Bernards' lands. The action came on for trial on May 1, 1914, and, while the jury was viewing the premises, the plaintiffs and defendants entered into an agreement settling the controversy. The agreement was not formally reduced to writing. The plaintiff agreed to dismiss the action and to pay Hubert Bernards $525. The defendants agreed that Hubert Bernards would convey a right of way to the district. The plaintiff claims that Hubert Bernards agreed to "do whatever was in his power to assist in the establishment, maintenance, and carrying out of the objects of said drainage district," and that "he reserved only the right to contest the amount of any assessment that might be levied against his property."

The record does not show whether Herman Bernards was in possession as a lessee, or whether he merely occupied the premises as a hired man or otherwise in 1912. Afterwards Hubert Bernards conveyed the property to his son Herman Bernards, subject, however, to a life estate reserved by Hubert Bernards. The exact date of this transfer is not disclosed by the record, although it does fairly appear from the testimony that the conveyance was made in 1915 "before the first of March, so it would be assessed to" Herman Bernards.

Twenty-two separate sheriff's returns were made and filed prior to the hearing of the petition for the organization of the district. Some of these returns showed service of the petition upon a single person, while others recited service upon more than a single owner or person in possession; but none of the returns mentioned the name of Herman Bernards. The order made by the county court on September 24, 1912, recites that:

"It appearing to the court from the returns of" the sheriffs of four different counties "that all the record owners and persons in possession of the lands included within the district proposed to be established as said drainage district, as described in said petition, have been personally served within the county in which they reside, with a copy of the petition and a copy of the notice showing when said petition would be presented."

On April 17, 1916, the drainage district filed a motion in the county court, supported by an affidavit bearing the same date, for an order authorizing an amendment of the sheriff's return so as to show that Herman Bernards had been regularly served with a copy of the petition. The accompanying affidavit was made by O. E. Quick, who swore that during the month of September, 1912, Geo. G. Hancock was the sheriff and the affiant was a deputy sheriff of Washington county; that on September 1, 1912, the sheriff gave to the affiant for service on Herman Bernards a copy of the petition for the formation of the drainage district and a copy of the notice giving the time for the hearing, certified to by one of the attorneys for the petitioners; and that on September 4, 1912, the affiant delivered the copy of the petition and the copy of the notice to Herman Bernards personally in Washington county. On the same day, April 17, 1916, the county court made an order permitting the sheriff's return "to be amended so as to show that Herman Bernards was duly and legally and regularly served with a proper certified copy of said petition and notice of the hearing thereof within Washington county, Or., on September 4, 1912."

O. E. Quick appeared as a witness for the plaintiff in this suit, and testified that he was still serving as deputy sheriff, although Hancock's term as sheriff had expired before April 17, 1916; and that he served the petition and notice on Herman Bernards on September 4, 1912, giving a detailed account of how he went to the premises, who was with him, and where the service was made. The defendants offered contradictory evidence. The trial court made an express finding to the effect that Herman Bernards was served with a copy of the petition and notice prior to the time set for the hearing of the petition. At the very conclusion of the trial in the circuit court, the defendants agreed that the order made by the county court on April 17, 1916, "may be treated as having been entered of record"; that it was "properly made"; and "a good and valid order."

The complaint alleges that the plaintiff is a duly organized and existing drainage district, and then recites the successive steps taken in making and levying the assessment. The pleading avers that the Bernards' assessment is delinquent, and concludes with a prayer for a judgment against the property for the amount of the assessment and that the land be ordered sold for the purpose of satisfying the judgment.

Hubert Bernards and Herman Bernards and his wife answered by denying certain portions of the complaint, and by alleging that: (1) The plaintiff was not a legally existing corporation, because sections 6126 to 6145, L. O. L., and chapter 241, Laws 1911 were unconstitutional and void for the reason that the legislation attempted to provide for taking property without due...