Grady v. Dundon

• Decision Date: 01 March 1897
• Citation: 47 P. 915,30 Or. 333
• Parties: GRADY v. DUNDON et al.
• Court: Oregon Supreme Court

47 P. 915

30 Or. 333

GRADY v. DUNDON et al.

Supreme Court of Oregon

March 1, 1897

Appeal from circuit court, Lincoln county; J.C. Fullerton, Judge.

Suit by Catherine M. Grady against Alonzo Dundon, supervisor, and others. From a decree in favor of defendants, plaintiff appeals. Reversed.

This is a suit by Catherine M. Grady against Alonzo Dundon as road supervisor, D.P. Blue as county judge, and M.L. Trapp aND J.O. stearns as county commissioners, Of lincoln countY, or to enjoin a threatened trespass. The plaintiff alleges that she is the owner in fee, and for more than 10 years prior to the commencement of this suit has been in the peaceable open, and exclusive possession, of a tract of land about 50 feet in width and 70 in length, lying south of and between the Oregon Pacific Railroad Company's right of way and Depot slough, in the town of Toledo, upon which there have been erected a store and a butcher shop; that the defendants wrongfully claiming that a county road had been laid out and established across said real property, are threatening to and unless restrained will, tear down and remove said buildings, and open the pretended highway, to her irreparable injury; and prays that the threatened trespass may be permanently enjoined. The defendants, after denying the material allegations of the complaint, allege that at its regular term in May, 1867, the county court of Benton county, which at that time had jurisdiction over the territory now included within the borders of Lincoln county, upon a petition therefor signed by 12 householders, appointed viewers and a surveyor, who viewed and surveyed a county road from a stake at the mouth of Depot slough to a point intersecting another county road, and having made a report thereof, the court thereafter, at its said term, made an order establishing a county road across said premises, in pursuance of which the road supervisor opened the same, and that it had been continuously used thereafter as a public highway until 1890, when the plaintiff, without any license therefor, obstructed the same with the said buildings; that John Graham, the plaintiff's father and grantor, was the owner of the premises in question when said proceedings were had; that he was one of the petitioners for the road, and present at and assisted in its location, and from that time until his death, in 1883, he at all times recognized it as a duly-established highway, and that the plaintiff obtained her title to the said premises with notice of its location thereon. The reply having put in issue the allegations of new matter contained in the answer, the cause was referred to E.O. Potter, Esq., who took and reported the evidence, from which it appears that the defendants introduced, over the plaintiff's objection, a copy of the order of the county court of Benton county, which recites that the viewers and surveyor had viewed and surveyed a road as prayed for in the petition, and that, no remonstrance having been filed or claims for damages presented, it was ordered that the road so surveyed be declared a public highway, and the road supervisor was ordered to open the same; but there is no finding, nor does it otherwise appear from the record, that any notice was given of an intention to apply for the location of said road. The referee having found for the defendants, the court affirmed his report, and dismissed the suit, from which decree the plaintiff appeals.

W.S. Hufford, for appellant.

J.K. Weatherford, for respondents.

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

Counsel for plaintiff contends that, the defendants having attempted to justify the threatened injury by alleging the existence of a public highway across the premises in question, the burden of proof was upon them to show that the road had been legally laid out, established, and opened while counsel for the defendants maintains that the road was viewed, surveyed, and recorded after July 1, 1866, and that under the act of the legislative assembly approved October 29, 1870 (Laws Or. 1870, p. 67), all irregularities in the proceedings were thereby validated. In Cameron v. Wasco Co., 27 Or. 318, 41 P. 160, it is said: "In the matter of laying out and establishing roads, county courts are of inferior and limited jurisdiction. Thompson v. Multnomah Co., 2 Or. 34; Johns v. Marion Co., 4 Or. 46; State v. Officer, Id. 180; Canyonville & Galesville Road Co. v. Douglas Co., 5 Or. 284. But when the record of their proceedings...