Multnomah County v. Rockwood Water Dist.

• Decision Date: 09 December 1959
• Citation: 219 Or. 356,347 P.2d 110
• Parties: MULTNOMAH COUNTY, a political subdivision of the State of Oregon, Appellant, v. ROCKWOOD WATER DISTRICT, a domestic water supply corporation, Respondent.
• Court: Oregon Supreme Court

Page 110

347 P.2d 110

219 Or. 356

MULTNOMAH COUNTY, a political subdivision of the State of Oregon, Appellant, v. ROCKWOOD WATER DISTRICT, a domestic water supply corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Nov. 18, 1959.

Decided Dec. 9, 1959.

Willis A. West, Deputy Dist. Atty., Portland, for appellant. With him on the brief were Leo Smith, Dist. Atty., and C. W. Pecore, Deputy Dist. Atty., Portland.

Norman N. Griffith, Portland, for respondent.

Before McALLISTER, C. J., ROSSMAN and SLOAN, JJ., and KING, J. pro tem.

KING, Justice pro tem.

This is an action on an implied contract, brought by Multnomah County, a political subdivision of the state of Oregon, against Rockwood Water District, a domestic water supply corporation, seeking to recover $7,235.50, the sum expended in lowering the defendant's water pipes and installations on N. E. 155th and N. E. 157th Avenues, between Glisan and Halsey Streets, in Glendoveer Acres Plat No. 2115, Multnomah County, Oregon. The circuit court, sitting without a jury, found for the defendant and plaintiff appeals.

The principal question involved is whether the water district, a municipal corporation, is required to pay the cost of lowering its water pipes on the grading of a dedicated street, or whether such costs should be assessed to the adjacent property owners under ORS 371.605 to 371.660.

Many years prior to 1940 the Rockwood Water District was organized under ORS 264.110 and the following sections, for the purpose of supplying water for domestic use of the residents of that outlying district, bounded roughly from 139th to 222nd Streets, and from Division Street to the passenger track of Union Pacific Railroad, in Multnomah County, Oregon. It had pipe lines extending over considerable part of that property. These lines and installations were built at various times during the period of its existence, as need developed to supply water to the residents.

About 1941 or 1942 a fire destroyed most of the records of the district, so that it was somewhat difficult for the witnesses to testify as to the exact dates on which certain pieces of construction were started or finished.

The water mains, consisting of two-inch galvanized pipe, were laid in N. E. 155th Street and in N. E. 157th Street between N. E. Halsey Street and N. E. Holladay Street in 1941 and 1942. They were not completed south of N. E. Holladay Street to N. E. Glisan Street until 1944.

On April 3, 1942, Albert E. Bullier, trustee, declared and swore to a plat of Glendoveer Acres. This plat was approved by the county commissioners of Multnomah County on April 23, 1942, and filed of record by the county clerk on April 28, 1942. Later, on April 19, 1944, an additional plat was filed which further divided and marked off in lots the area south of N. E. Holladay Street to about N. E. Glisan Street and between N. E. 152nd Avenue and N. E. 162nd Avenue.

The streets in these two plats of Glendoveer Acres were dedicated to the public and included the streets in which defendant's pipes are laid and which are the subject of this controversy.

The defendant water company, either itself or through Ward Cook Company, started laying its pipes and had a substantial portion of them installed before the original plat was filed and before the streets were dedicated. Those north of Holladay Street were installed and in use before the original plat and dedication. Those south of Holladay Street were almost completely installed before the completed plat and dedication of that area on April 28, 1944.

There seems to be no question of the water company's authority to install their pipes in the first instance. In fact, some of them, at least, were installed by the owner of the tract and paid for by the water company from the receipts. The water service was necessary and convenient for the home owners, as well as for the promoters of the plat. The pipes and installations were properly placed according to the way the streets were then graded and used. However, Multnomah County had nothing to do with, and no supervision over, the original grading of the streets, other than approving the plats as submitted.

On April 13, 1948, abutting property owners on 155th Avenue petitioned Multnomah County to improve the street at public expense. On or about April 19, 1948, this petition was denied by order of the board of county commissioners, which indicated that there were about 400 miles of dedicated streets in the county, and if any were taken over and improved, it should be in order subdivisions first.

In 1953 the owners of abutting property on N. E. 155th Avenue between N. E. Halsey and N. E. Glisan Streets petitioned Multnomah County to improve that street under the provisions of ORS 371.605 to 371.660. After a favorable recommendation by the roadmaster, the board of county commissioners, on May 4, 1953, ordered the street improved and that the cost of the improvement be assessed against abutting property. A similar petition was filed by the property owners on N. E. 157th Avenue, and a similar order made by the commissioners on August 15, 1953.

Multnomah County had the necessary engineering done to establish the grades and also estimates made of changing and lowering the water district's pipes and installations, as well as estimates of grading costs.

Prior to the start of grading or any construction work, the county made a demand upon the defendant, Rockwood Water District, that they move and lower their pipes to conform to the grade specifications at their own expense. This the water district refused to do and had their attorneys so notify Multnomah County, and they asked that those costs be assessed against the abutting property owners as a part of the improvement costs. This the county refused to do.

Thereafter Multnomah County called for bids on lowering and changing the pipes and installations. O. L. Soule, general contractor, was awarded this contract and was paid the sum of $7,235.50 for his work and materials used. This contract was awarded July 1, 1955, and the work completed July 22, 1955. The grading and oiling on N. E. Halsey Street were completed in the fall of 1955. The work on N. E. Glisan Street was completed on May 24, 1956.

The Multnomah County Commissioners accepted that portion of N. E. 155th Avenue between N. E. Glisan Street and N. E. Halsev Street as a county road on November 8, 1955. They accepted N. E. 157th Avenue from N. E. Glisan Street to N. E. Halsey Street as a county road on June 7, 1956. Up until these dates those streets were dedicated streets of Glendoveer Acres and were not county roads.

It is an almost universal common-law rule that private utility companies are required to move at their own expense their water, electric and other lines, subject to the police power of the state, and whenever the health and public safety require this to be done, unless they are covered by special ordinance or law. Transit Commission v. Long Island Railroad Co., 253 N.Y. 345, 171 N.E. 565; New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831.

The above rule does not, however, extend so far as to put the cost of relocation upon a private utility company when the change is for the benefit of other private utility companies or for the benefit of a municipality exercising a proprietary rather than a governmental function. City of Los Angeles v. Los Angeles Gas & Electrict Corp., 251 U.S. 32, 40 S.Ct. 76, 64 L.Ed. 121; New York & Queens Electric Light & Power Co. v. City of New York, 221 App.Div. 544, 224 N.Y.S. 564.

In Transit Commission v. Long Island Railroad Co., supra, the Court of Appeals of New York in reversing the appellate division said [253 N.Y. 345, 171 N.E. 568]:

'* * * that the common-law rule, as above stated, applies to the cost of all such changes, until the Legislature provides otherwise, and this it has failed to do. * * *

'* * * The general rule is and always has been, as we have above stated, that these corporations must relocate their properties in the highway when public necessity requires.'

The plaintiff, Multnomah County, cites and relies on the case of Walker v. Township of North Bergen, 1913, 84 N.J.L. 248, 86 A. 63. In fact, they state in their brief that it...