Gaines v. Linn County

• Decision Date: 14 December 1891
• Citation: 28 P. 133,21 Or. 430
• Parties: GAINES et al. v. LINN COUNTY.
• Court: Oregon Supreme Court

28 P. 133

21 Or. 430

GAINES et al. v. LINN COUNTY.

Supreme Court of Oregon

December 14, 1891

Appeal from circuit court, Linn county; R.P. BOISE, Judge. Reversed.

Action by one Gaines and others against the county of Linn, Or., to vacate a county road. Judgment for defendant. Plaintiffs appeal.

The other facts fully appear in the following statement by STRAHAN, C.J.:

On the 7th day of November, 1890, a petition was presented to the circuit judge of the third judicial district for a writ of review for the purpose of reviewing the proceedings of the county court of Linn county in the matter of laying out a county road in said county; upon which application an order was made directing the writ to issue. The petition for the writ alleges that the road runs across the lands of the plaintiffs herein, who are householders residing in the vicinity of said road. Said writ was duly issued and served and the county clerk duly returned the same to the circuit court, accompanied by the record in said road matter from the county court. At the next succeeding term of the circuit court the district attorney filed a motion to dismiss the writ for several reasons, among which was this: "That the court has no jurisdiction in this cause, for the reason that the plaintiffs herein were not parties to the original proceedings in the county court now sought to be reviewed and cannot question the jurisdiction of that court." The circuit court allowed said motion for the reasons assigned in this specification, and dismissed the writ, and entered a judgment for costs against the plaintiffs, from which they have appealed.

George W. Wright and W.R. Bilyen, for appellants.

Geo. G Bingham, Dist.Atty., and J.K. Weatherford, for respondent.

STRAHAN C.J.

The sole question presented by this record is whether a person who is neither a petitioner for a county road nor a remonstrator against its location may prosecute a writ of review to question the jurisdiction or regularity of the proceedings of the county court. Section 583, Hill's Code, provides: "Any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this title prescribed, and not otherwise." It therefore becomes necessary to determine whether these plaintiffs were parties to the proceedings in the county court establishing said county road in such sense that they may prosecute this writ. Section 4062 requires all applications for laying out, altering, or locating county roads to be by petition to the county court of the proper county, signed by at least 12 householders of the county residing in the vicinity where said road is to be laid out altered, or located, which petition shall specify the place of beginning, the intermediate points, if any, and the place of termination of said road. Section 4063 in effect requires when any such petition shall be presented to the county court it shall be accompanied by satisfactory proof that notice has been given by advertisement posted at the place of holding county court, and also in three public places in the vicinity of said road or proposed road, 30 days previous to the presentation of said petition to the county court notifying all persons concerned that application will be made to the said county court at their next session for laying out, altering, or vacating such road, as the case may be. Other succeeding sections make provision for the appointment of viewers, and for the survey and marking of such road, and for the payment of damages to aggrieved land-owners who make complaint, etc. This question was involved in Road Co. v. Douglas Co., 5 Or. 280, but not decided. PRIM, J., wrote for affirmance on other grounds, with whom concurred SHATTUCK, J. MCARTHUR, J., wrote an opinion concurring specially, but for the sole reason that the plaintiff did not sign either the petition or remonstrance, and was therefore not a party. BONHAM, C.J., dissented, but expressed no opinion, and BURNETT, J., in a separate, dissenting opinion, maintained that the plaintiff had sufficient standing to sue out and prosecute the writ. The plaintiffs' property was attacked by the proceedings in the county court, and that of itself would give the plaintiffs a right to the writ. Minard v. Douglas Co., 9 Or. 206, is a case where the writ of review was sustained by this court in favor of one who was neither a petitioner nor remonstrator. The opinion in that case states "that on the 7th day of April, 1880, the appellant, a land-owner, a portion of whose land had been taken for the use of the road, presented his petition for a writ of review," etc., thus clearly recognizing his right to the writ. Before considering some authorities from other states on this subject, a more particular reference to the statute itself may aid us somewhat in the inquiry. Section 4063, supra, requires notice to be given to all persons concerned. An individual through whose land a proposed road is about to be located, and which necessarily appropriates the land taken to public use, is a person concerned within this statute, and the fact that he is a person...