Lucas v. Banfield et al.

• Decision Date: 11 February 1947
• Parties: LUCAS <I>v.</I> BANFIELD ET AL.
• Court: Oregon Supreme Court

180 Or. 437

177 P.2d 244

LUCASv.

BANFIELD ET AL.

Supreme Court of Oregon.

Argued February 6, 1947.

Affirmed February 11, 1947.

States — Consent to be sued

1. A proceeding for declaratory judgment as to right of abutting landowner to construct a means of access between his land and state highway could not be maintained against the state without its consent.

States — Consent to be sued

2. Suit for declaratory judgment as to abutting landowner's right to construct means of access between his land and state highway notwithstanding deed by which plaintiff's predecessor in title granted to state easement of access between land conveyed to state for highway and land retained except at designated point sought relief against state by way of adjudication as to validity of such grant and restriction on land retained and could not be maintained even against members of state highway commission individually without state's consent to be sued.

                  See 16 Am. Jur. 331; declaratory judgments, validity of
                statute, note, 114 A.L.R. 1366; 59 C.J., States, § 464
                

Appeal from Circuit Court, Linn County.

L.G. LEWELLING, Judge.

H.E. Slattery, of Eugene, for appellant.

G.W. Neuner, of Salem (J.M. Devers, of Salem, on brief), for respondents.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.

AFFIRMED.

ROSSMAN, C.J.

This is an appeal by the plaintiff from a decree of the circuit court which dismissed his suit. The complaint sought a declaratory decree holding that a tract of land, 1.93 acres in extent, which is owned by the appellant and which abuts upon the Pacific Highway, is entitled to direct ingress to and egress from that thoroughfare. The complaint alleges that "in the east side of the said highway next to plaintiff's said land there is a ditch that prevents ingress into and egress from the said land." It avers that the land is improved with an automobile service station and that two roadways, each 50 feet wide, leading across the ditch, are necessary to afford convenient ingress to and egress from the highway. According to the complaint, it will be necessary in the construction of the roadways to build bridges across the drainage ditch or place culverts in it. That pleading avers:

"* * * the defendants fail and neglect to construct the said means of access and each of the said defendants individually and as said highway commission refuse to permit plaintiff to construct the same and threaten to resist plaintiff's constructing the same and will resist plaintiff's constructing the same unless enjoined from so doing; and there is a dispute between this plaintiff and each of the said defendants as individuals and as said highway commission as to whether or not that this plaintiff has the right to construct either of the said means of access; and that in order to prevent a breach of the peace it is necessary for the court to determine the rights of the parties relative to the plaintiff's constructing the said means of access; * * *."

The prayer seeks a decree holding that the plaintiff

"has the right to construct a means of access between the said highway and said land; that the court will make a decree determining the respective rights of the parties hereto; and that the court will decree unto plaintiff such other and further relief as shall in the premises be equitable."

The plaintiff's land lies in Linn County near the city of Halsey.

The complaint described the Pacific Highway as a "state highway" and named as defendants T.H. Banfield, Arthur W. Schaupp and Merle Chessman "as individuals." It also named as defendants "the State of Oregon by and through its State Highway Commission consisting of the said T.H. Banfield, Arthur W. Schaupp and Merle R. Chessman."

Section 100-110, O.C.L.A., makes provision for a highway commission of three members. After service of the summons the Attorney General appeared specially and moved that service upon the State and upon the three members of the highway commission be quashed "upon the...