Hood River Lumbering Co. v. Wasco County

• Citation: 35 Or. 498,57 P. 1017
• Parties: HOOD RIVER LUMBERING CO. v. WASCO COUNTY.
• Decision Date: 10 July 1899
• Court: Supreme Court of Oregon

57 P. 1017

35 Or. 498

HOOD RIVER LUMBERING CO. v. WASCO COUNTY.

Supreme Court of Oregon

July 10, 1899

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by the Hood River Lumbering Company against Wasco county. From a judgment of the circuit court affirming a judgment of the county court condemning certain property and rights of the Hood River Lumbering Company, said company appeals. Reversed.

In 1889 an act was passed by the legislature entitled "An act authorizing the county courts of the several counties of this state to declare unnavigable streams highways for the floating of logs and timber, and provide for the improvement and use of the same." Sess.Laws 1889, p. 105. The first section provides that upon application of any individual association or corporation interested, the county court may by order, declare all or any portion of any river or stream lying within the county, which has not been declared by law to be navigable, and which is not, in fact, navigable for commercial purposes, a public highway for the floating and transportation of logs, timber and lumber, and the same shall thereupon become and be a public highway for such purpose and may, at the same time or at any time thereafter, direct the widening, deepening, and other improvement of such stream, so as to render it fit and suitable for the purposes intended. Section 2 provides that: "In case any owner of land adjacent to or across which such stream flows does not consent to the use of the stream for such purpose and the making of the improvements directed, with the right to pass along the banks of the stream for the purpose of doing the work and keeping the same in repair and properly superintending and managing the use of such highway for the purpose intended, and the taking at a fair rate of compensation of such timber and other materials along the bed and banks of the stream as may be necessary for the construction and repair of the improvements and grant the same to the county by suitable instrument in writing on application, the county court may contract for and purchase any or all of such rights, or, if the same cannot be purchased at a satisfactory price, shall, when petitioned so to do by any resident of the county, appoint three disinterested householders of the county as viewers of such stream and land adjacent thereto which is proposed to be used or appropriated for the purpose of such improvements, and it shall be the duty of said viewers appointed as aforesaid [to] visit and examine such stream and land at such points as shall be directed by the county court, and report to the county court in writing, at such time as shall be fixed in the order appointing them, as to whether damages should be allowed to the owner of the land proposed to be appropriated for the appropriation thereof to the purposes aforesaid, and if so, the amount thereof, and such report, when approved by the county court, shall be final unless appealed from as hereinafter provided, and if damages are allowed to any such owner by said county court, such damages, together with the costs of the viewers shall be paid to such owner before such stream or land can be appropriated to the purpose of such improvements. Any person who may conceive himself aggrieved by the assessment of damages as above prescribed may within twenty days after such report is adopted by the county court appeal therefrom to the circuit court of the proper county. Such appeal shall be taken to the circuit court in the same manner as appeals from justice of the peace, and if the appellant shall fail to recover a judgment more favorable than the report appealed from he shall pay all costs of the appeal." The remainder of the act has reference to the leasing of the stream by the county court, and has no bearing upon the question to be determined upon this appeal. In pursuance of the provisions of the act, the county court of Wasco county on January 16, 1896, declared Hood river and its several branches to be a public highway, and subsequently being unable to obtain the consent of the plaintiff, across whose premises the stream flows, to its use for the purposes contemplated, appointed viewers on the petition of a resident of the county to visit and examine the stream and the land of the plaintiff, and report to the courts "as to whether damages should be allowed to" it, "and if so, the amount thereof." On December 20, 1898, the viewers made their report, assessing the plaintiff's damages at $2,040, which was on the same day confirmed, and an order and judgment entered appropriating to Wasco county a right of way over the certain described property of the plaintiff "for a public highway for the floating and transportation of logs, timber, and lumber, and for the purpose of widening, deepening, straightening, removing obstructions from, building of dams and booms in, and otherwise improving, the stream of Hood river at the points hereinafter referred to, so as to render the same fit and suitable for the purpose of said highway, and with the right to pass along the banks of said stream for the purpose of doing the work, keeping the same in repair, and properly superintending and managing the use thereof, and also for the taking, at a fair rate of compensation, of such timber and other materials along the bed and banks of said stream as may be necessary for the construction and repair of such improvements." The plaintiff thereupon sued out a writ of review to the circuit court, and, the proceedings of the county court having been there affirmed, it appeals to this court.

B.S. Huntington, for appellant.

W.H. Wilson, for respondent.

BEAN J. (after stating the facts).

Several objections are made to the validity of the proceedings in the county court, but the principal one is that the provisions of the statute under which they were had is unconstitutional and void because it authorizes the taking of private property for public use without due process of law since it makes no provision for notice to the nonconsenting landowner of the proceedings for the appropriation of his property, and gives him no opportunity to be heard as a matter of right. It is universally recognized that property cannot be taken by the right of eminent domain without some notice to the owner, and some opportunity to be heard in defense of his rights. An act of the legislature arbitrarily taking private property for public use, or authorizing it to be so taken, without any notice to the owner, would not be upheld. In such case there would be an absence of that due process of law which is not only guarantied to the citizen by the fourteenth amendment of the constitution of the United States, but is founded on principles of natural justice older than written constitutions. "The power to appropriate private property to public use," says Mr. Chief Justice Moore, "is derived from the legislative assembly, which may prescribe the mode of its exercise," but "cannot dispense with notice of some kind to the owner of the property affected by the location of a public highway, for to do so would be a violation of the fourteenth amendment of the federal constitution, and tantamount to the deprivation of property without due process of law. *** Without notice of some kind, the county court can obtain no jurisdiction of the person of the owner of real property in condemnation proceedings, and any order or judgment rendered without notice must necessarily be void." Grady v. Dundon, 30 Or. 337, 47 P. 915. But, while it is everywhere admitted that one cannot be deprived of his property without due process of law, neither the federal nor state constitutions have made any attempt to define that term, nor have the courts been able to give a definition covering all possible cases; and the remark of Mr. Justice Miller in Davidson v. New Orleans, 96 U.S. 101, that it remains "without that satisfactory precision of definition which judicial decisions have given to nearly all the other guaranties of personal rights found in the constitutions of the several states and the United States" is as true to-day as it was when uttered by that distinguished jurist. The courts are still...