Nyman v. City of Eugene

• Decision Date: 03 April 1979
• Docket Number: No. 76-4147,76-4147
• Citation: Nyman v. City of Eugene, 593 P.2d 515, 286 Or. 47 (Or. 1979)
• Parties: Ruth E. NYMAN, Respondent, v. CITY OF EUGENE, a Municipal Corporation, Petitioner. ; CA 7443; SC 25808.
• Court: Oregon Supreme Court

Page 515

593 P.2d 515

286 Or. 47

Ruth E. NYMAN, Respondent, v. CITY OF EUGENE, a Municipal Corporation, Petitioner.

No. 76-4147; CA 7443; SC 25808.

Supreme Court of Oregon.

Argued and Submitted Nov. 3, 1978.

Decided April 3, 1979.

Stanton F. Long and John B. Arnold, Eugene, argued the cause for petitioner. With them on the briefs were Johnson, Harrang & Mercer, Eugene.

Terence J. Hammons, of Hammons, Phillips & Jensen, Eugene, argued the cause and filed a brief for respondent.

Before DENECKE, C. J., and HOLMAN, TONGUE, HOWELL and LINDE, JJ.

HOWELL, Justice.

The primary issue here is the effect to be given to a recitation in a county court record that certain property owners agreed to the widening of a county road. The Court of Appeals, sitting in banc, held that the recitation was insufficient to confer jurisdiction on the county court "without an affirmative showing in the record that all of such owners signed the agreement." 32 Or.App. 307, 315, 574 P.2d 332, 337 (1978). We granted review, 283 Or. 235 (1978). ¹

The parties submitted this controversy without suit or action pursuant to ORS chapter 27. ² The facts were stipulated as follows.

Plaintiff is the owner of real property adjacent to a road in the City of Eugene known as Barger Drive. Barger Drive was originally established as a county road in 1895 by Lane County with a right-of-way 40 feet wide. The public has used the roadway at all times since.

On or about January 31, 1951, the Lane County Court adopted Resolution 2178 declaring its intention to widen Barger Drive to 50 feet. The resolution stated that the widening was "All as agreed to by the property owners abutting on said road." However, the parties to the present proceeding have failed to find any record that plaintiff's predecessor in interest agreed to the widening. The parties located County Road File 2178 as it now exists and found in that file an agreement to the widening of the road, consisting of three unnumbered pages which were executed in February, 1950. The agreement contains the signatures of certain owners of property abutting Barger Drive at that time, but the signature of plaintiff's predecessor in interest does not appear on any of the pages.

Pursuant to Resolution 2178, notice of the widening was posted and a return of that notice was made on or about February 5, 1951. On April 2, 1952, the County Court decided to establish a 50-foot right-of-way and made an entry in the county journal to that effect. ³

In the fall of 1952, Lane County blacktopped Barger Drive. The blacktop was within the boundaries of the original 40-foot right-of-way, but the county moved then existing fences to a line 25 feet from and parallel to the center line of the right-of-way. The fences ran approximately one-quarter mile along Barger Drive but did not traverse the property of plaintiff's predecessor. Lane County maintained the roadway until 1966, when the City of Eugene assumed jurisdiction.

On April 14, 1975, the City adopted an ordinance providing for the improvement of Barger Drive, including the widening of the roadway. In September, 1975, the City commenced construction of the Barger Drive improvements on that portion of the right-of-way that Lane County sought to acquire in 1952. That portion includes a strip of the property owned by plaintiff.

Plaintiff contends that no actions of Lane County or the City of Eugene have operated to widen the right-of-way and that she is entitled to compensation for the taking of the strip on her property. The City contends that plaintiff's rights are subject to a right-of-way in the public because: (1) the 1952 Lane County order lawfully extended the right-of-way to include the strip on plaintiff's property; (2) plaintiff cannot now collaterally attack the 1952 resolution because her predecessor in interest failed to seek a writ of review and because of passage of time; and (3) plaintiff's rights to the disputed property are barred by the doctrine of adverse user.

I. Validity of the 1952 Order

Plaintiff contends that the 1952 order is invalid because the resolution on which it was based contained no statement of public necessity or, alternatively, because the signature of her predecessor in interest does not appear on any of the documents found in the public records. The trial court agreed with plaintiff's first contention, concluding that the statement of public necessity is "jurisdictional" and that the failure to include such a statement rendered the 1952 order "void." The Court of Appeals rejected plaintiff's first contention. However, it agreed with her alternative position, concluding that in order for the county court to acquire "jurisdiction" to widen a road by agreement, the signatures of all affected property owners had to appear in the record.

It is important to observe at the outset that the characterization of a statutory mandate as "jurisdictional" simply states a conclusion. In the context of a case such as this, it means that this court has concluded that failure to comply with the statutory requirement renders the government action void as to this particular party. The characterization is, therefore, the ending point in our analysis, not the starting point. In a number of cases, however, this court has characterized statutory requirements as "jurisdictional" with little or no analysis. Thus, in various challenges to the establishment or alteration of roads, we have held that the county court acted without "jurisdiction" when it relied on an earlier non-final order by the same court, Columbo et al. v. Hewitt et al., 221 Or. 121, 350 P.2d 893 (1960); when no statement of public necessity appeared in the authorizing resolution, Latourette v. County Court, 121 Or. 323 255 P. 330 (1927); when an affidavit disclosed that notice was not posted according to statutory requirements, Lauderback et al. v. Multnomah County, 111 Or. 681, 226 P. 697 (1924); when a recitation in the record did not disclose the manner in which notice had been posted, State of Oregon v. Officer, 4 Or. 180 (1871); when the petition to establish the road did not describe the road's terminal points, Johns v. Marion County, 4 Or. 46 (1870); and when there was no recital in the record that notice had been given to affected landowners, Thompson v. Multnomah County, 2 Or. 34 (1861). At the same time, we have dismissed challenges on the ground that the alleged defects were not "jurisdictional," holding that once "jurisdiction" is established, the county court proceedings are "presumed" regular. See Morton v. Hood River, 88 Or. 144, 171 P. 584 (1918); French Glenn Co. v. Harney County, 36 Or. 138, 58 P. 35 (1899).

It is difficult, if not impossible, to determine from these cases why certain statutory requirements are considered "jurisdictional" and others not. Our decisions also seem to apply the concept of jurisdiction indiscriminately without distinguishing "legislative" or policy-making functions from "quasi-judicial" or fact-determining functions. Cf., Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973). We are now of the opinion that clear analysis in this area requires that we establish criteria for determining what statutory requirements are indispensable to the validity of the challenged action. We are also of the opinion that our analysis will be facilitated if we abandon the use of the label "jurisdiction" in cases such as this and focus instead on the specific statutory language that permits the government to affect the rights and obligations of its citizens.

ORS 368.405 ⁴ provides that proceedings for the establishment and alteration of public roads may be instituted by petition of freeholders, by resolution of the county court, by grant of owners of necessary rights of way, or by condemnation proceedings. The mechanics of establishing a road by petition are described in ORS 368.430-.465, and the mechanics of establishing a road by resolution are described in ORS 368.470. Because ORS 368.470 requires that the county court, when establishing a road by resolution, give notice "as provided for upon the filing of a petition for such purposes" and that it follow "like proceedings * * * as in the case of the filing of a petition," the procedures are basically the same whether the court acts under a petition or a resolution.

ORS 368.470(7) also allows the county to "procure right of way" by "agreement." Subsection (7) was apparently designed to permit the county to dispense with some of the formalities described below when all the affected property owners agree to the action. However, the subsection must be read to mean that absent agreement of all the property owners affected, the same proceedings must be followed as in the case of the filing of a petition.

ORS 368.445(1) provides that when the petition authorized by ORS 368.430 is presented to the court:

" * * * (I)t shall be accompanied by satisfactory proof by affidavit that:

"(a) Notice has been posted at the place of holding county court and at three public places in the vicinity of the proposed road to be located, laid out, relocated or changed, 30 days previous to the presentation of the petition, notifying all persons concerned that the application will be made to the court at its next term.

"(b) Notice has been forwarded by mail, postage prepaid, not less than 30 days prior to the date of presentation of the petition, to each record owner of land, on or over which the proposed road or portion thereof is to be laid out, relocated or changed, at the last-known post-office address of the owner."

ORS 368.445(2) provides:

"If the address of the owner is unknown to the person mailing the notice mentioned in paragraph (b) of subsection (1) of this section, it may be mailed to the address given on the latest tax roll in the office of the tax collector of the county. If the address is unknown to the person mailing the notice, cannot with reasonable diligence be ascertained and cannot...