Lais v. City of Silverton

• Decision Date: 16 January 1917
• Citation: 162 P. 251,82 Or. 503
• Parties: LAIS ET AL. v. CITY OF SILVERTON.
• Court: Oregon Supreme Court

162 P. 251

82 Or. 503

LAIS ET AL. v. CITY OF SILVERTON.

Supreme Court of Oregon

January 16, 1917

Department two. Appeal from Circuit Court, Marion County; Wm. Galloway Judge.

Suit by J. G. Lais and others against the City of Silverton to enjoin the pavement of a street. From a decree dismissing the suit plaintiffs appeal. Reversed, and decree entered restraining the city from assessing the property of the plaintiffs for any part of the cost of improvements.

This is a suit to enjoin the city of Silverton from improving McClaine street in said city. The substance of the controversy is that the charter of the city provides, inter alia, that where it is decided that an improvement shall be made, notice thereof shall be published, "and until five days after the expiration of said notice the owner or owners of two-thirds of the property next adjacent thereto may make and file with the council a written remonstrance against the proposed improvement and thereupon the same shall not be proceeded with." It is contended by the plaintiffs that they filed such a remonstrance, which the defendant is ignoring, and that unless it is restrained it will proceed to pave the street as proposed. An answer having been filed, a trial was had and a decree entered dismissing the suit. An appeal was taken to this court, which resulted in a reversal of such decree and a remand to the trial court to take further testimony as to the extent of the property represented upon the remonstrance "and make findings and decree as all the testimony on that subject shall indicate." Lais v. Silverton, 77 Or. 434, 147 P. 398, 150 P. 269, 151 P. 712. Further testimony having been taken a decree was entered dismissing the suit, and plaintiffs appeal.

R. W Montague, of Portland, and W. C. Winslow, of Salem (Robert Down, of Portland, on the brief), for appellants. Geo. G Bingham and John H. McNary, both of Salem, for respondent.

BENSON J. (after stating the facts as above).

As upon the former appeal the only question for consideration herein relates to the sufficiency of the remonstrance against the improvement. In the prior opinion it was held that in determining the controversy the superficial area of each tract should be represented upon the remonstrance. At the second hearing it was contended by defendant that a certain large tract of land owned by Matthew Small is bisected by a street, thereby isolating the southern portion of the tract from the proposed improvement and eliminating it from the remonstrance. It is conceded by counsel that, if the remonstrants are credited with the entire tract, the city has no power to make the improvement. The plaintiffs insist that there is no street there, and that the entire area must be considered.

As gathered from the evidence, the history of this road is about as follows: On June 8, 1892, Benedict Phelps was the owner of what is referred to herein as the Matthew Small tract. He also owned the adjacent land on the west. He had previously owned land adjoining the Small tract on the east which had been subdivided and platted into blocks and lots as "Phelps' addition to Silverton." Through this addition there is a roadway known as Center street, running east and west, which at the last-mentioned date terminated at the west end in what is known as Lower street, the latter being upon the eastern boundary of the Matthew Small tract. On the date referred to Phelps sold the land west of the Small tract to Kittil Funrue, with a verbal agreement to give him an easterly outlet across the Small tract which should be an extension of Center street. On August 13, 1892, there was indorsed upon the recorded plat of Phelps' addition to Silverton the following:

"Survey of an Extention of Center or Middle Street in Phelps' Addition to Silverton. Beginning on the east side of the county road at the west end of said Center or Middle

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