Holland v. Grant County
| Citation | 208 Or. 50,298 P.2d 832 |
| Parties | Leslie HOLLAND, a single man, George Robert Holland, and Pauline Holland, husband and wife, Appellants, v. GRANT COUNTY, a political subdivision of the State of Oregon; O. L. Dickens, Clarence Holmes and Ernest Kimberling, as members of the County Court of Grant County, Oregon, Respondents. |
| Decision Date | 07 May 1956 |
| Court | Oregon Supreme Court |
Harold Banta, Baker, and J. R. Campbell, John Day, argued the cause for appellants. On the briefs were Yokom & Campbell, John Day, and Banta, Silven & Horton, Baker.
Michael S. Mogan, Dist. Atty., Canyon City, and A. S. Grant, Baker, argued the cause for respondents. On the brief were Michael S. Mogan, Canyon City, Grant & Fuchs, Baker, and Gene C. Rose, Baker.
Before WARNER, C. J., and TOOZE, LUSK, BRAND and PERRY, JJ.
This is a suit to enjoin the county court of Grant county, Oregon, acting for the county, from removing a bridge across the John Day river.
The trial court denied the plaintiffs the relief sought, and from the court's decree they appeal.
The facts disclose that the bridge in question was originally erected as a part of the county road system; later the county road and bridge became a part of the state highway system. In 1955 the state of Oregon abandoned a portion of the old highway, constructed a new bridge at a different point across the river, and returned the abandoned portion of the highway to the county. The plaintiffs' land abuts the old highway, and the bridge sought to be removed by the county is used by them as a connecting link between their parcels of land which are separated by the John Day river.
For greater clarity, a map showing the old and new highways and the plaintiffs' property is here set out.
Upon receiving from the state this portion of the road, the county court entered an order closing the approaches to the bridge, and began dismantling the bridge for the purpose of removing it to another location. It appears by admission, that the personnel constituting the present county court does not intend to replace this structure over the river.
The contention of the plaintiffs is that the acts of the defendants constitute an abandonment of the road without compliance with the requirements of the statutes of the state for vacation of a county road.
ORS 368.205 provides that all county roads are under the supervision of the county courts in the counties where located.
ORS 368.565 provides, in general, that the county court may vacate a county road either on the petition of freeholders residing in the district in which the road is located, or it may proceed by resolution of the county court. In the event the county court proceeds by resolution, a notice of hearing shall be given and a hearing had.
ORS 368.580 states:
'(1) On the day set for hearing the report mentioned in ORS 368.570, the county court shall consider the report, together with the petition or resolution and any objection that is made to reducing the road in width or vacating the road.
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'(3) If the road may be useful as a part of the general road system it shall not be vacated, but if the public will be benefited by the vacation then the county court may vacate the road or any portion thereof.
Reference to the map will disclose that this small piece of highway serves no useful purpose in the general road system, and is of no benefit to the public.
Adopting, for the purposes of this opinion, plaintiffs' theory of the abandonment of the roadway, it follows then that the county court is granted the authority to do what it is doing in closing the highway by removing the bridge, but is proceeding in an irregular manner.
A private party cannot enjoin a public nuisance unless he suffers an injury to himself differing in kind from the injury suffered by the general public. Lowell v. Pendleton Auto Co., 123 Or. 383, 261 P. 415; Bernard v. Willamette Box & Lumber Co., 64 Or. 223, 129 P. 1039.
Under these circumstances, an injunction will be granted...
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