McCall v. Marion County

• Decision Date: 19 October 1903
• Citation: 73 P. 1030,43 Or. 536
• Parties: McCALL et ux. v. MARION COUNTY.
• Court: Oregon Supreme Court

73 P. 1030

43 Or. 536

McCALL et ux. v. MARION COUNTY.

Supreme Court of Oregon

October 19, 1903

Appeal from Circuit Court, Marion County: George H. Burnett, Judge.

Action by Samuel A. McCall and wife against Marion county. From a judgment in favor of plaintiffs for less than the relief demanded, they appeal. Reversed.

During the year 1902, proceedings were instituted in the county court of Marion county for the location and establishment of a county road across the lands of the appellants. At the proper time they filed a claim for damages in the sum of $1,105.18, and the county court thereupon appointed three disinterested householders to view the premises and assess the damages. The viewers reported that the appellants' premises would not be injured by the location or opening of the road. The report was approved by the county court, and an order made "that the said road be, and the same is hereby, established in accordance with the survey and plat submitted herein." Thereafter, and within the time allowed by law, the appellants appealed to the circuit court from the assessment of damages, and upon such appeal the jury returned a verdict finding "that the real property of the appellants would, by the establishment of the proposed county road described in the pleadings, be rendered less valuable in the sum of three hundred and eighty dollars." The appellants moved for judgment on the verdict and against the county, and for their costs and disbursements. This motion was overruled, and a judgment or order entered reciting "that appellants' premises will be rendered less valuable in the sum of $380 by the opening and establishment of the proposed road," remanding the cause to the county court "for such further proceedings as may be lawful and proper," and ordering and adjudging that neither party recover costs or disbursements. From this judgment the present appeal is taken.

John A Jeffrey and R.J. Fleming, for appellants.

J.N Hart, Dist. Atty., for respondent.

BEAN J. (after stating the facts).

If any person, through whose lands any county road may be viewed and marked out, shall feel that he would be injured by the opening of the road, he may make complaint thereof in writing to the county court at the time the report of the viewers is received. The county court is thereupon required to appoint three disinterested householders, who shall proceed to view the proposed road through the premises of the complainant, and assess and determine "how much less valuable such premises of the complainant would be rendered by the opening" of the road. B. & C. Comp. § 4787. If the county court is satisfied that the damages so assessed are just and equitable, and that the proposed road will be of sufficient importance to the public to cause the damages to be paid by the county, it shall order the same to be paid to the complainant out of the treasury. If, in the opinion of the court, however, such proposed road is not of sufficient importance to the public to cause the damages to be paid by the county, it may refuse to establish the same as a highway unless the damages, or such part thereof as the court may think proper, shall be paid by the petitioners. B. & C. Comp § 4788. If the claimant conceives himself aggrieved by the assessment as made by the viewers and the county court, he may appeal therefrom to the circuit court. Such appeal shall be taken "in the same manner as appeals from justices of the peace, and if the appellant shall fail to recover a judgment more favorable than the report appealed from, he shall pay all costs of the appeal." B. & C. Comp. § 4789. An appeal to the circuit court from the assessment of damages, in proceedings for the establishment of a county road, under the statutes referred to, merely brings up the question of damages, and does not involve the regularity of any of the other proceedings. Hammer v. Polk County, 15 Or. 578, 16 P. 420; Fanning v. Gilliland, 37 Or 369, 61 P. 636, 62 P. 209, 82 Am.St.Rep. 758. It does not affect the right of the county court to locate and establish the road, nor challenge its regularity. The sole...