Huddleston v. City of Eugene

• Decision Date: 23 January 1899
• Parties: HUDDLESTON v. CITY OF EUGENE.
• Court: Oregon Supreme Court

55 P. 868

34 Or. 343

HUDDLESTON v. CITY OF EUGENE.

Supreme Court of Oregon

January 23, 1899

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

Action by S.A. Huddleston, as administratrix of the last will and testament of James Huddleston, deceased, against the city of Eugene. There was a judgment for defendant, and plaintiff appeals. Affirmed.

This is a suit to enjoin the marshal of the city of Eugene from selling certain real property to satisfy an assessment for an alleged street improvement. The material facts are that plaintiff, as executrix of the last will and testament of James Huddleston, deceased, is entitled to the possession of a tract of agricultural land, upon the north side of which the county court of Lane county located and constructed a county road; that subsequent to the establishment of said road the legislative assembly passed an act incorporating the city of Eugene, whereby said premises were included therein (Laws 1889, p. 273); that the common council of said city deeming it expedient to lay out a street and establish the grade thereof upon the line of said road, attempted to do so in the manner prescribed in section 90 of said act, but failed to comply strictly with its provisions. An ordinance was passed and approved, in pursuance of which said street was graded and graveled, and a strip of said land, 128 rods in length and 160 feet in width, adjoining the same, was assessed for the improvement in the sum of $315.02, and the amount thereof entered in the docket of city liens; but, the assessment becoming delinquent, a warrant for its collection was issued, and the marshal, obeying the command thereof levied upon and threatened to sell the premises assessed, to prevent which this suit was instituted. The cause, being at issue, was referred to A.C. Woodcock, Esq., who took the evidence, from which he found, in substance, that notwithstanding the council had not complied with the provisions of section 90, supra, in establishing said street section 98 of the charter authorized it to change the road into a street, and provided that, when so changed jurisdiction thereof should be thereupon transferred from the county to the city, and recommended that the temporary injunction theretofore issued be dissolved, and the suit dismissed. The court approved the report, and gave a decree in accordance therewith, from which plaintiff appeals.

L. Bilyen and J.J. Walton, for appellant.

E.R. Skipworth, for respondent.

MOORE, J. (after stating the facts).

It is contended by plaintiff's counsel that the public has an easement only in a county road, while a qualified fee in the street is dedicated to, or condemned for, the public use that a county road is laid out, built, and kept in repair by taxes collected from residents of the whole taxing district, and from property situated therein, while a street is usually established and improved by assessing the real property abutting thereon, and hence changing a county road into a city street imposes upon the premises claimed to have been improved additional burdens, and that this supplemental servitude constitutes private property, the taking of which for a public use is prohibited by the organic law of the state, except upon the payment of a just compensation (Const.Or.art. 1, § 18); that the power of a municipal corporation to exercise the right of eminent domain will not be implied, and, while section 98 of the charter authorizes the council to establish a street upon said county road, this can only be done by strictly pursuing the mode prescribed in section 90 of the act of incorporation, which is the measure of its power, but, the council having failed to observe such requirements, jurisdiction to improve said road was never acquired, and hence the assessment is void, and the court erred in dismissing the suit.

It is maintained by defendant's counsel, however, that section 90 only applies in cases where a street is to be established over premises where no highway theretofore existed, and, it being admitted that no additional land was appropriated by changing the road into a street, plaintiff sustained no injury in consequence thereof, and hence compliance with the requirements of said section was unnecessary.

The provisions of the charter to which reference has been made are as follows:

"Sec 90. Whenever the council shall deem it expedient to open, lay out, establish, widen, straighten or extend a street or alley it shall cause the city surveyor to survey such proposed new street or extension or line to which the width is to be changed or straightened, and make a report thereof containing a plat of the survey of such street or alley, of the portion of each lot or part thereof required to be appropriated for such street or alley, which report, if satisfactory to the council, shall be adopted by an ordinance embodying the same; provided, that before the adoption thereof, the recorder shall give notice of the filing of such report by publication for two weeks in some newspaper published in the city of Eugene, or by written notices posted for two weeks at three public places in said city, and at the next meeting of the council, after the expiration of such notice, present to it the said report, and attached thereto a copy of such notice, with the proof of publication or posting endorsed thereon. Thereafter and within thirty days from the adoption of such report, the council shall appoint three disinterested freeholders of the city of Eugene, no kin to any owner or person interested in any property to be appropriated, and possessing the qualifications of jurors in courts of justice in this state, to view such proposed street or alley, and make an assessment of the damages, if any, to the respective owners of the lots and parts of lots appropriated, and to report the same to the council. The said viewers shall meet at such time as may be designated by the council, and after having been duly sworn or affirmed to discharge their duties faithfully, shall proceed and view the whole distance of said proposed street or alley and ascertain and determine how much less valuable the premises of such owners, respectively, would be rendered by the opening of the same. If the council is satisfied that the amount of damages assessed by said viewers, or by the circuit court, upon appeal, as hereinafter provided, is just and equitable, and that the proposed street or alley will be of sufficient importance to the public to cause the damages so assessed and determined to be paid by the city, the council shall order the same to be paid to the said owners, respectively, out of the treasury as other claims against the city are paid; but if in the opinion of the council such street or alley is not of sufficient importance to the public to cause the damage to be paid by the city of Eugene, the council may refuse to open such street or alley or extend or widen the same, as the case may be, unless the damages, or such part thereof as the council may think proper, shall be paid by private parties."

"Sec. 98. The common council has authority and is hereby authorized, when it shall deem it expedient, to open, establish and locate streets upon the road-bed of, and upon or across any county road or public highway within the corporate limits of the city of Eugene; and when so located or established, said county roads or public highways shall be and become public streets of said city and subject to jurisdiction and control of the council the same as other streets."

It was virtually conceded at the hearing by counsel for the respective parties that if it was necessary to pursue the method prescribed in section 90, in order to establish a street upon the line of the county road, the means adopted were ineffectual to confer jurisdiction. An important question to be considered is whether a change, by authority of the legislative assembly, of a county road to a city street, imposes an additional servitude upon the real property over which the highway is constructed. In Lankin v. Terwilliger, 22 Or. 97, 29 P. 268, it is held that by the location of a county road the public only acquires an easement in the land, while the fee remains in the owner, and when the road is vacated by public authority the land immediately reverts to the owner, freed from the easement. The heirs of James Huddleston, deceased therefore had a reversionary interest in the land over which the highway was located; and plaintiff, by reason of her trust, was entitled to the possession thereof when the road should be vacated by proper authority. Phillips v. Railway Co., 78 Pa.St. 177. The statute regulating the recording of town plats and vacating streets provides, in general terms, that when a town is laid out the proprietor must record the plat thereof in the recorder's office in the county in which the same is situated. Hill's Ann.Laws Or. § 4178. Every donation or grant to the public of a street marked as such on said plat shall be considered to all intents and purposes as a general warranty to the donee or grantee for the uses and purposes intended by the donor or grantor. Id. § 4180. When a street is vacated, the land theretofore used as a highway shall be attached to the lots or ground bordering on such street, and all right or title thereto shall vest in the person or persons owning the property on each side thereof in equal proportion, according to the length or breadth of such lots or ground as the same may border on such street. Id. § 4184. In McQuaid v. Railway Co., 18 Or. 237, 22 P. 899, it is held that the fee of a street is either in the adjacent lot owner, or remains in the dedicator. Mr. Chief Justice Thayer, considering section 4180, supra, in deciding the case, and discussing the effect of...