Keane v. City of Portland
| Decision Date | 28 April 1925 |
| Citation | 115 Or. 1,235 P. 677 |
| Parties | KEANE ET AL. v. CITY OF PORTLAND ET AL. [*] |
| Court | Oregon Supreme Court |
In bank.
Appeal from Circuit Court, Multnomah County; G. F. Skipworth, Judge.
Suit by George F. Keane and another against the City of Portland and others. From a decree of dismissal, plaintiffs appeal. Reversed.
This is a suit to enjoin the defendant city of Portland from widening Ladd avenue and East Harrison street, and to have declared null and void an ordinance appropriating certain land for the purpose above stated. The proposed improvement involves the taking of the greater part of lot 28, block 25, in Ladd's Addition, owned by plaintiffs, and upon which there is now located a store building erected at a cost of approximately $15,000. The property in controversy is located between Ladd avenue and East Harrison street where the same converge toward what is designated in the record as "Central Park," which is 200 feet in diameter and surrounded by a circular paved street 36 feet in width. Central Park may be likened to the hub of a wagon wheel, and the eight streets radiating therefrom in all directions, to its spokes. Ladd avenue is one of the main arteries of traffic leading to the heart of the city.
Plaintiff George F. Keane, upon application to the city, was issued a building permit on January 8, 1923, and soon thereafter commenced construction of a store building, which he had contracted to lease for a period of five years at a rental of $200 per month. About three days after commencing excavation for the foundation of the building, and while the same was in progress, the city caused a "Stop Work" sign to be posted on the premises, and work was suspended, while negotiation for settlement of the controversy was pending. However, all effort at compromise came to naught, and the city, on January 23, 1923, by resolution, declared its intention to widen the streets above mentioned "on account of the dangerous traffic conditions existing thereon," and, pursuant to its charter, directed the city engineer to make a survey, plat, and report showing among other things, a description of the property sought to be appropriated, the name of the owner or owners thereof, the amount of damages that should be awarded for such appropriation, and the boundaries of the district benefited and to be assessed for such improvement. Notwithstanding this action on the part of the city, plaintiffs resumed construction of the building and completed the same on March 28, 1923. On April 14, 1923, the city engineer filed his report as directed, making an award of $2,735 for damages sustained and offsetting against that amount the sum of $6 as special benefits. In this report, which was adopted by ordinance June 20, 1923, Ladd Estate Co., plaintiffs' grantor, was named as reputed owner of the land to be appropriated.
Plaintiffs do not question the power of the city under its charter to appropriate private property for public use, but assert that while the proceedings instituted are ostensibly for the purpose of widening the above-mentioned streets, the real purpose or motive of the city is to prevent the operation of a grocery store in a residential district, regardless of the fact that all restrictions in reference thereto expired in 1917. It is further contended by the plaintiffs that no notice was given to them, prior to the passage of the above ordinance, of any hearing relative to the taking of their property or the award of damages therefor, and that the proceedings had by the city are null and void on account of thus failing to obtain jurisdiction. Finally, it is alleged that the amount of damages awarded by the city as of the date of the passage of the resolution is not that just compensation contemplated by law, and that the value of the property taken should be determined as of the time the ordinance was passed, and after completion of the building. The city denies the charge of bad faith, and claims that the necessity, extent, and expediency of the appropriation sought to be made are legislative and not judicial questions, and that plaintiffs, after notice of the adoption of the resolution, continued construction of the building at their peril, and should not thus be permitted to enhance damages. As to the amount of the award, it is also contended by defendants that it is not reviewable in this proceeding, and can be considered only on appeal to the circuit court, as provided by charter. Concerning the matter of notice defendants challenge the sufficiency of the complaint, and also contend that the proof fails to substantiate the pleading in that respect. As a further answer defendants allege:
"That the plaintiffs herein, on December 27, 1922, obtained a deed for said lot 28 in said block 25 from the Ladd Estate Company, which was then the owner of said property, but plaintiffs failed to record said deed until April 19, 1923 that the city engineer at the time of the preparation of said report and the filing of the same was ignorant of the plaintiffs' rights in and to said property, and prior to April 19, 1923, there was no record officially disclosing the rights of the plaintiffs thereto, but such records indicated that said Ladd Estate Company was the owner thereof, and by reason thereof said engineer in said report entered the name of said Ladd Estate Company as the reputed owner of said property, and failed to enter the names of the plaintiffs, and in consequence thereof the auditor failed to mail any notice to the plaintiffs, but said matter was a matter of general public notoriety in said city and greatly discussed by the property owners in said Ladd's Addition, and in the public press, and plaintiffs well knew of said proceedings and of the filing of said report, and the proceedings thereafter taken in time to have filed their objections thereto and taken an appeal from the action of the council upon said report."
The pleadings also put at issue the question as to whether the building erected violated certain alleged building line restrictions. Plaintiffs, in their reply, aside from denying the existence of any such restrictions, allege that the defendants are estopped from charging a violation thereof for the reason that the building was constructed strictly in accordance with the plans and specifications submitted to and approved by the city.
On the issues thus briefly stated the lower court dismissed the suit and awarded costs and disbursements to defendants. Plaintiffs appeal.
W. H. Powell, of Portland, for appellants.
Frank S. Grant and L. E. Latourette, both of Portland, for respondents.
BELT, J. (after stating the facts as above).
It is fundamental that a municipality, in the exercise of the sovereign power of eminent domain, is a tribunal of limited and special jurisdiction, and must comply strictly with the terms of its charter in respect thereto. When its proceedings are challenged by direct attack as in the instant case ( Acton v. Lamberson et al., 102 Or. 472, 202 P. 421, 732; Christensen v. Lane County, 90 Or. 401, 175 P. 845; Lieblin v. Breyman Leather Co., 82 Or. 22, 160 P. 1167; Morrill v. Morrill, 20 Or. 96, 25 P. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95), it should affirmatively appear from the record that jurisdiction was acquired by giving the notice in the manner and method prescribed by statute. Chapman v Hood River, 100 Or. 43, 196 P. 467; Jones v. City of Salem, 63 Or. 126, 123 P. 1096; Bank of Columbia v. Portland, 41 Or. 1, 67 P. 1112; Northern P. Terminal Co. v. Portland, 14 Or. 24, 13 P. 705. It is immaterial whether this proceeding be considered a collateral attack, as contended by counsel for defendants, if it affirmatively appears that jurisdiction was not obtained. Northern P. Terminal Co. v. Portland, supra. Defendants claim the benefit of presumption that its proceedings were regular, and that notice was published and mailed as by charter provided, but it is elementary that jurisdiction cannot be acquired by indulging in presumptions.
It is urged that the following allegations in reference to notice are insufficient "That previous to the passage of the aforesaid...
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