Fanning v. Gilliland

• Citation: 37 Or. 369,61 P. 636
• Parties: FANNING et al. v. GILLILAND et al.
• Decision Date: 02 July 1900
• Court: Supreme Court of Oregon

61 P. 636

37 Or. 369

FANNING et al. v. GILLILAND et al.

Supreme Court of Oregon

July 2, 1900

Appeal from circuit court, Umatilla county; Stephen A. Lowell Judge.

Writ of review by C.O. Fanning and others against J.M. Gilliland and another. From an order dismissing the writ, plaintiffs appeal. Affirmed.

This is a proceeding by writ of review to test the legality of the establishment by the county court of Umatilla county, Or., of a road of public easement across the lands of the plaintiffs. The sworn petition presented for the location and establishment of the road shows that F.B. Clopton, one of the petitioners, is the owner of 40 acres of land situate in township 2 N., range 32 E. of the Willamette meridian; that he has a dwelling house situated thereon, which is occupied by J.M. Gilliland, the other petitioner, under a lease; that said dwelling is situate immediately south of the Umatilla river, which becomes so swollen in the winter and spring as to render it impassable; that McKay creek, which flows on the south and west of said dwelling, is also impassable during the same seasons, and there is no public highway across either of the streams, accessible to petitioners' residence; that there has been a road from their residence to the city of Pendleton, but that about January 31, 1899, C.O Fanning, upon whose lands it was located, closed it up and refused to permit petitioners to use it; that petitioners' residence is not reached by any convenient public road or otherwise; that it is necessary that petitioners and the public have ingress and egress to and from such residence, and that by reason of the closing of said road all such means of ingress and egress have been cut off; that a good road, convenient to petitioners' residence, can be laid out, constructed, and established upon the line of the old road so closed, without doing unnecessary damage. The prayer of the petition is that a county road and public highway, 30 feet in width, be laid out and established, commencing at the gate in the dooryard fence of the petitioners' residence, and running thence upon the line of the old road, as nearly as practicable, to a designated point, "at which commences county road No 430," and that viewers be appointed to locate and establish the same, and to assess the damages, if any accruing to the individuals over whose lands it passes. To this petition an answer was filed by the objectors, the plaintiffs herein, protesting that the court had no jurisdiction over the subject-matter, and putting in issue all the material allegations thereof, which, after argument and hearing, was stricken out upon motion of the petitioners. In pursuance of the petition the county court made an order reciting the facts therein stated as being shown under oath, and appointing viewers, with directions to meet at the beginning of the said proposed road on the 22d day of March, 1899, and lay out, locate, and establish a 30-foot road, in accordance with the petition, and to assess the damages sustained to the parties through whose premises it should be located, according to law, and to report their proceedings to the court at the May term following; and the court further directed that a copy of the order be served upon the persons affected. In due time the viewers made a report, to which objections were filed, with a prayer that the objectors be allowed to produce evidence to show that it was not just. These were stricken out, and, a motion subsequently filed to vacate the same being overruled, the court entered an order confirming the report and establishing the road; and a writ of review to the circuit court having been thereupon sued out by plaintiffs, and there dismissed, they appeal to this court.

J.H. Raley and J.J. Balleray, for appellants.

James A. Fee, for respondents.

WOLVERTON C.J. (after stating the facts).

The respondents moved to dismiss the appeal for the reason that the plaintiffs had appealed to the circuit court from the assessment of damages, it being contended that by prosecuting such appeal they have waived the right to prosecute their remedy by writ of review. In this contention we cannot concur, for two reasons: (1) It was not the purpose of the statute, in giving the appeal from the assessment of damages, to permit the regularity of the proceedings for the establishment of the road to be questioned therein; and (2) by section 585, Hill's Ann.Laws Or., as amended by the act of 1889 (Sess.Laws 1889, pp. 134, 135), the writ of review is made concurrent with the right of appeal, so that an appeal from the assessment of damages does not waive the right to have the proceeding to lay out and establish the road reviewed at the same time. As bearing upon the question whether the remedies are concurrent, see Hill v. State, 23 Or. 446, 32 P. 160; Kirkwood v. Washington Co., 32 Or. 568, 52 P. 568. The motion is therefore denied.

It is urged that it was error to strike out the answer to the petition for the location and establishment of the road, because it tendered issues upon matters of law and fact essential to be established before the prayer of the petition could be granted. Among them were (1) that the use for which it was proposed to appropriate the plaintiffs' lands was not a public use; (2) that the residence of the petitioners was at that time reached by a convenient public road; and (3) that the road proposed by the petition was not located so as to do the least damage to the premises of the plaintiffs. It was sought to produce evidence upon all these questions, and to obtain a hearing upon them as questions of fact, and it is urged that the court was powerless to proceed without it, issues thereon having been tendered. The law has made no provision for any such hearing, although it requires notice to be given of the appointment of viewers to lay out the road, and assess the damages accruing by reason of its location and establishment. It cannot be doubted but that all these questions are matters for judicial determination. The first two must be adjudicated and determined before the viewers can be appointed, but the latter is to be resolved with their assistance, when authorized to act.

As it pertains to the first question or issue, the proposition is advanced that private property cannot be taken for private use, even with compensation, and therefore it must be first determined that the proposed taking is for a public use before damages can be legitimately assessed; hence, that an adjudication of the fact that the use is public, without an opportunity of being heard, is the taking of...