Gaines v. Linn County

• Citation: 21 Or. 425,28 P. 131
• Parties: GAINES et al. v. LINN COUNTY et al.
• Decision Date: 14 December 1891
• Court: Supreme Court of Oregon

28 P. 131

21 Or. 425

GAINES et al. v. LINN COUNTY et al.

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., and others, to vacate a county road. Judgment for defendants. Plaintiffs appeal.

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

The plaintiffs in this proceeding, 64 in number, duly presented a petition to the county court of Linn county, Or., praying that court to vacate a certain portion of a county road then recently located in said county. Said road had been established by said court at the May term, 1890. The petitioners represented that said part of said road was of no public benefit; that it would be a costly road to make and keep in a fit condition for travel, for the reason that it runs through a slough of about 155 feet, the whole of which would have to be filled with rocks, logs, or bridged, to be passable during the major portion of the year, and that said road runs over a hill about 187 feet long which will have to be graded the entire distance to enable the public with teams to travel over it, and then it would not be a desirable road etc. Said petition was accompanied by notice of such application, which notice appears to be in due form, and it was signed by the same names as appear upon the petition. The following proof of service of the notice was submitted at the same time, omitting the entitling referred to: "State of Oregon, Linn county--ss.: I, Louis Stringer, being first duly sworn, say that I posted four road notices in the above-entitled road matter, two of which original notices are filed herein and are hereto annexed, and that three of such road notices were posted in the vicinity of the proposed county road to be vacated, as follows: One of said notices I posted at the south end of the proposed vacated road upon a plank, said plank being nailed to a fir tree near the commencement of said proposed vacated road, the said notice fronting the traveled public road from Providence Church to Clark's sawmill, and said notice being so posted as to be in plain view of passers-by, and in a public and conspicuous place. One of said notices I posted near the center of said proposed to be vacated road, on a board, which said board I nailed to a fir tree standing in the said county road proposed to be vacated, and said notice so posted on said board so as to be in plain view of passers-by, and same being a public and conspicuous place. I also posted one notice on a plank nailed to an ash tree near the north end of the proposed to be vacated road. Said ash tree is and was standing at junction of said proposed to be vacated county road, which county road leading from Cyrus' saw-mill to Albany, Oregon, and the said notice being so posted as to be in plain view of passers-by, and same being a public and conspicuous place; and one notice at the place of holding court at the court-house in Albany, Oregon, tacked on the court-house door, in plain view of passers-by, the same being a public and conspicuous place; and that each of said four notices was so posted as aforesaid on July 31, 1890, and thirty days prior to the presentation of the petition herein to said county court, and that said four road notices were counterparts or fac similes of each other, and that each of said notices so remained posted as aforesaid in such public and conspicuous places from July 31, 1890, to September 2 1890, continuously; and that the subscribers and petitioners to said petition and notices herein are householders residing in the vicinity of the said proposed to be vacated county road. [ Signed] LOUIS STRINGER. Subscribed and sworn to before me, this 3d day of September, 1890. GEO. W. WRIGHT Notary Public for Oregon. [ Seal.]" A bond was also duly filed by the petitioners. Thereafter, and at the said September term of said county court, the said court being then held by the two county commissioners, the county judge being absent by reason of sickness, J.M. Hasler, William Tucker, and D.B. Deakins appeared by their attorney, J.K Weatherford, and filed a motion to dismiss said petition and proceedings for sundry reasons specified, among which are First. The petition and notices do not correspond, and therefore no notices were ever given. Second. The notices filed herein do not specify the place of beginning, nor the intermediate points, nor the...