Heiple v. City of East Portland

• Decision Date: 07 December 1885
• Parties: HEIPLE v. CITY OF EAST PORTLAND and others.
• Court: Oregon Supreme Court

8 P. 907

13 Or. 97

HEIPLE v. CITY OF EAST PORTLAND and others.

Supreme Court of Oregon

December 7, 1885

S Huelat and Robt. McKee, for appellant, Samuel Heiple.

Cornelius Taylor, for respondent, City of East Portland and others.

LORD J.

The appellant was the owner of certain lands in East Portland described in his complaint. He alleged that of the lands so owned by him the defendant city had unlawfully and without authority taken and appropriated as a street, or part of a street, a strip 30 by 322 feet; that he had not at any time or in any manner dedicated the same as a street, and that the city of East Portland had not, by any action, suit or proceeding whatsoever, opened, laid out, widened, or extended Fourth street over said strip, but that notwithstanding this, the city authorities in the year 1883 declared the same a part of Fourth street, and proceeded under the charter, against the appellant's will, to have the same improved as a part of said Fourth street, by grading and planking a roadway, and grading and planking sidewalks thereon, and afterwards, under the provisions of said charter, the expense of making said improvement, to-wit $676.11, was charged against appellant, and declared to be a lien on his other lands abutting upon said 30 by 322 feet strip claimed and improved as a part of Fourth street; that under and in pursuance of said proceedings the common council of East Portland had caused a warrant to be issued to the marshal of the city, directing and requiring him to sell said abutting property to pay for said improvement, and that the same had been levied by said marshal upon said property, which was then advertised for sale. It is also further alleged that in 1867 the county court of Multnomah county duly laid out, established, and caused to be opened, a public county road over and along the identical 30 by 322 feet of ground now claimed and improved as a street, and that the same has since been maintained as a county road, etc.,--concluding with a prayer for an injunction. The defendant city corporation answered, admitting the establishment of the county road in 1867; alleging that the city had at all times since its incorporation in 1870 occupied and controlled Fourth street, including the portion in dispute, as a street and public highway of said city, and had at all times, at the corporate expense, repaired and kept the same in repair as such, with the full knowledge and assent of the appellant; and also specially pleaded the statute of limitations of 10 years. As a separate defense, it further pleaded that in 1882 the appellant laid off his land immediately east of and adjoining Fourth street, as claimed by the city, into lots and blocks, and had made and recorded a plat thereof, recognizing Fourth street as such at the identical point in question; and as another and further defense, it set up the act of October 25, 1872, alleging it to be a grant to the city of the right to control all county roads within its limits. The reply put in issue all the essential matters alleged by the defendant. The suit was referred, the evidence taken, the findings and conclusions of law in favor of the defendant reported to the court, and subsequently, upon motion, after argument, was confirmed by the court, and a decree entered in accordance therewith. To reverse this decree, and to secure the affirmative relief prayed for in his complaint, the plaintiff has brought this appeal.

The denial of the injunction was based on the three defenses set up by the defendant, and the sufficiency of these defenses is the question to be determined. In effect, the first defense was that the legislature had granted the premises in dispute--it being then, and at the time of such grant, a public county road--to the city as a street, and by virtue thereof became a vested right in the corporation. Preliminarily, it may be said that the plaintiff does not deny the existence of the highway as originally established and the authority of the city to exercise jurisdiction over it as such, but he does deny that the effect of the act was to impose any new liability or burden by virtue of such jurisdiction upon the property holders or lands adjoining such road or highway that was not included in its original establishment. It seems that the city of East Portland was incorporated by an act of the legislative assembly approved October 26, 1870, and that the land in question was included in its limits. By a subsequent act, October 25, 1872, the authority was conferred on the city to control the public highways within its territory, and excepted the same "out of the jurisdiction of the county court of Multnomah county." Now, say the counsel for the city, the effect of this last act was to make all county roads within the city limits streets of the city, and liable to all the consequences of jurisdiction over them as such. If this proposition is correct, the plaintiff has no case, and the decree cannot be disturbed. As relevant to this discussion, it may be said that one of the effects of the act of 1872 was to withdraw the jurisdiction of the county court over county roads within the limits of the city, and to confer it upon the municipal authorities. The county left and the city took such roads or highways just as they had been laid out and established by the county court. So far it was simply a change of jurisdiction over the same subject-matter. As a road, the property of the plaintiff was not liable to the assessment or burden sought to be enforced. To make it so liable, it must become a street; and, to effect this result, the argument is that the change of jurisdiction converted the road into a street, and thereby the property in dispute became liable to new and additional burdens, or to be assessed for the improvement made, which can only be imposed upon streets. It may be doubted that if the act declared in express words what is sought to be established by inference, thereafter such roads should be streets if the results claimed would follow. To say the least, there is involved in the assumption consequences so dangerous to the rights of private property that the right to subject the property in dispute to the burden sought to be imposed ought to be grounded in a power or authority not inferred, but expressly conferred, and, when exercised, strictly pursued. The case is different where by the act the limits of the city are extended and new territory is acquired and subjected to the laws and jurisdiction of the municipality. Here, the highway existed as a county road, and subject to county jurisdiction before and after the act of incorporation, and within the limits of the city. Subsequently, the jurisdiction was transferred over such roads to the city, and the question is whether such highways continued to retain their character as roads as contradistinguished from streets without some affirmative legislation impressing that quality upon them. There is a recognized distinction between highways or roads and streets, although they are often used in the same sense as importing a public way for passage or travel. The word "road" is uniformly taken as a public highway, and such is the common and legal acceptation of the word "road." Respublica v. Arnold, 3 Yeates, 422. It is therefore synonymous with...