Klovdahl v. Town of Springfield

• Decision Date: 11 July 1916
• Parties: KLOVDAHL v. TOWN OF SPRINGFIELD ET AL.
• Court: Oregon Supreme Court

158 P. 668

81 Or. 168

KLOVDAHL v. TOWN OF SPRINGFIELD ET AL.

Supreme Court of Oregon

July 11, 1916

In Banc.

Appeal from Circuit Court, Lane County; J. W. Hamilton, Judge.

Suit by Simon Klovdahl against the Town of Springfield and others. From an adverse decree, plaintiff appeals. Affirmed.

This is a suit in which the plaintiff undertakes to give a history of the doings of the council of Springfield resulting in building a cement sidewalk in front of his property and docketing a lien against his holdings for $580.21, whereby as he avers, a cloud was created upon his title. Contending that the proceedings of the city in that respect were void he brings this suit. He declares that the charter of the town requires notice to be given of the time when and place where the contract for making an improvement will be let, referring also to the ordinance providing for the same and the date of its passage. He then avers:

"That said notice was not given for the letting of the contract for the construction of the sidewalk and curbs referred to herein, as required by the charter of said town."

According to his statement the charter directs that, if the owners of two-thirds of the property adjacent to the proposed improvement file with the recorder a written remonstrance before the letting of the contract, no contract shall be let. He complains:

That "a remonstrance was filed on or about November 30, 1908 against the said improvement proposed to be made, and was signed by the owners of more than two-thirds of the property adjacent to the said proposed improvement," and that no notice of the same was taken by the council except that it was filed.

He asserts, also, that the city has waived its lien because it did not immediately issue its warrant for the collection of the tax when the owner failed to pay the same within 20 days after its docketing. He claims, too, that the ordinance apportioning the amount to be collected from his property for the improvement does not correctly describe his holding, in that the enactment locates it in block 21, whereas it is in block 2, in the original town of Springfield.

The defendants answered, enlarging somewhat upon the history of the proceeding. A reply was filed, challenging the new matter of the answer in some particulars, a hearing was had, and a decree entered dismissing the suit, from which the plaintiff appeals.

C. A Hardy, of Eugene (Thompson & Hardy, of Eugene, on the brief) for appellant. J. H. Bower and S. P. Ness, both of Eugene, for respondents.

BURNETT, J. (after stating the facts as above).

The chief plaint of the suitor is that the city was without jurisdiction because notice was not given of its intention to build the walk. The allegation of the complaint, however, presents no issuable statement on this subject. Good pleading requires that, instead of saying that "notice was not given as required by the charter of said town," the facts relating to that matter be averred, leaving the court to draw the legal conclusion of whether or not the requirements of the charter have been fulfilled. O'Hara v. Parker, 27 Or. 156, 39 P. 1004; Zorn v. Livesley, 44 Or. 501, 75 P. 1057; State v. Malheur County Court, 54 Or. 255, 101 P. 907, 103 P. 446; Equitable Savings & Loan Association v. Hewitt, 55 Or. 329, 106 P. 447; Morton v. Wessinger, 58 Or. 80, 113 P. 7; Long v. Dufur, 58 Or. 162, 113 P. 59; Moore v. Fowler, 58 Or. 292, 114 P. 472; Proebstel v. Trout, 60 Or. 145, 118 P. 551; McDaniel v. Chiaramonte, 61 Or. 403, 122 P. 33; Splonskofsky v. Minto, 62 Or. 560, 126 P. 15; Scholl v. Belcher, 63 Or. 310, 127 P. 968; Shipman v. Portland Const. Co., 64 Or. 1, 128 P. 989; Equi v. Olcott, 66 Or. 213, 133 P. 775; Purdin v. Hancock, 67 Or. 164, 135 P. 515; Barnard v. Houser, 68 Or. 240, 137 P. 227; Templeton v. Cook, 69 Or. 313, 138 P. 230; Farrell v. Kirkwood, 69 Or. 413, 139 P. 110. The statement of the complaint on this point is but a conclusion of law, which the authorities cited demonstrate is not issuable and does not require denial. The plaintiff has no standing to litigate the lack of jurisdiction on the part of the city council.

The provisions of the charter involved are found in the act of February 10, 1893 (Sp. Laws 1893, p. 245). Section 68 empowers the council, whenever it deems it expedient, to establish or alter the grade of or to improve or repair any street or alley, or any part thereof, and says that this authority includes the power to improve, build, or repair the sidewalk, pavement, or curbing on any street or alley, to determine and provide for everything convenient or necessary concerning such improvement, and for the construction, cleaning, and repairing of cross walks adjacent to the property by the owner thereof, or by the town at the expense of such owner, and that such expense be a lien upon such property. Section 70 says that the work of improvement by grading or graveling any street or alley shall be let by contract to the lowest responsible bidder. Section 71 declares that no contract to grade or gravel any street or alley shall be let until after the recorder, by order of the common council, shall have given 10 days' notice thereof, either by publication in a newspaper or posting the same in public places. Section 72 provides the terms of such notice. Section 73 reads thus:

"The owners of two-thirds of the property adjacent to such street or alley, or part thereof, to be improved, have the right to make and file with the recorder a written remonstrance against the proposed improvement or repair at any time before the last two preceding days stated in said notice for the letting of such contract."

Section 74 provides:

"If such remonstrance be filed as in the preceding section

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