Latimer v. Tillamook County

• Citation: 29 P. 734,22 Or. 291
• Parties: LATIMER et al. v. TILLAMOOK COUNTY.
• Decision Date: 26 April 1892
• Court: Oregon Supreme Court

29 P. 734

22 Or. 291

LATIMER et al. v. TILLAMOOK COUNTY.

Supreme Court of Oregon

April 26, 1892

Appeal from circuit court, Tillamook county; R.P. BOISE, Judge.

Petition of L.G. Freeman and others on behalf of Tillamook county to vacate a county road. Judgment was entered in the county court pursuant to the prayer of the petition, and J.W Latimer and others, remonstrants, appealed to the circuit court. From a judgment reversing the judgment of the county court the county appeals. Affirmed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

This controversy arises out of an application to vacate a certain county road in Tillamook county. The petition, among other things, states, in effect, that the petitioners are householders in said county and state, and reside in the vicinity of the road proposed to be vacated. Said petition contained about 200 names. The notice is in proper form, and has appended to it the same names that appear on the petition. The proof of notice is as follows: "I, L.G Freeman, being duly sworn, say that on the 6th day of December, 1890, that being more than thirty days preceding the time for the sitting of county court aforesaid, for the transaction of county business, at its regular meeting in January, 1891, I posted four notices, exact copies of the one hereto attached, and all of such notices contained the names of the persons signing the petition herein, and were signed by the petitioners, and the names and signatures are genuine and in the handwriting of the persons purporting to sign the same. Three of said notices were posted in public places in the vicinity of the said road sought to be vacated, to wit one each at the terminus of said road, and one posted in full view of the public on the bridge on the Wilson river commonly known as the 'Freeman Bridge,' and one of such notices was by me, on the date herein stated, posted by me on the bulletin board at the court house, or the place of holding county court in said county and state; all of which notices were placed in plain view of the public, and were written in plain handwriting." This affidavit was properly verified. On the 8th day of January, 1891, the county court of Tillamook county made an order appointing viewers, after reciting in the record the necessary jurisdictional matters. On the 4th day of March, 1891, a remonstrance, signed by a large number of persons, was presented, remonstrating against the proposed vacation. The remonstrance also contained the same recital as to the qualifications as is contained in the petition relative to the qualifications of the petitioners. Numerous objections were filed to the petitioners, as well as to the remonstrators, pending which the matter was continued to the 6th day of April, 1891. On said 6th day of April, 1891, another remonstrance was filed by 21 other persons, who recite that they are householders, and reside in the vicinity of the road proposed to be vacated. At the same time counsel in behalf of the petitioners moved that said last-named remonstrance be not received, for the reason it was not filed in time, which motion was allowed by the court; the report of the viewers having been filed, recommending that the road be vacated as prayed. The journal, in substance, recites that, it appearing to the court that there is not a greater number of names on said remonstrance than petitioners on the petition, which petitioners are legal signers of said petition as by law provided, it was ordered that the report of the viewers be recorded, and the road be vacated, the court having found that there were two more names on the petition than on the remonstrance. Thereafter, on the 11th day of August, 1891, the circuit judge allowed a writ of review to...