Nyman v. City of Eugene

• Decision Date: 30 January 1978
• Citation: 32 Or.App. 307,574 P.2d 332
• Parties: Ruth E. NYMAN, Respondent, v. CITY OF EUGENE, a Municipal Corporation, Appellant.
• Court: Oregon Court of Appeals

Page 332

574 P.2d 332

32 Or.App. 307

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

Court of Appeals of Oregon, In Banc.

Argued and Submitted Sept. 26, 1977.

Resubmitted In Banc Dec. 9, 1977.

Decided Jan. 30, 1978.

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

Terence J. Hammons, Eugene, argued the cause for respondent. With him on the brief was Hammons, Phillips & Jensen, Eugene.

BUTTLER, Judge.

This proceeding involves a controversy submitted without suit or action pursuant to ORS ch. 27. Defendant City of Eugene appeals from an adverse judgment which would have the effect of rendering void action taken by the Lane County Court (County Court) in 1952, and of requiring the city to compensate plaintiff (and perhaps all other owners involved) for a five-foot strip of land extending the length of her property abutting a public road defendant claims was widened by the action in question.

STIPULATED FACTS

Plaintiff owns real property abutting Barger Drive, a public road in Eugene, Oregon, established as a county road in 1895 with a 40-foot right-of-way. The road, which has been used continuously since that date, was only improved with gravel over a width of about 20 feet. In February, 1950, owners of property abutting Barger Drive, in consideration of Lane County's promise to blacktop the drive, signed an instrument ¹ ("agreement" herein) agreeing to give an additional five feet along the front of their respective properties abutting the road to provide a right-of-way 50 feet in width. Three pages of the agreement were found in the county road files and neither plaintiff's nor her predecessor in interest's signature appears on any of those pages. ²

On January 31, 1951, the County Court adopted Resolution 2178 declaring its intention to widen Barger Drive to 50 feet, stating that the widening was, "All as agreed to by the property owners abutting on said road." Notice of the resolution was duly posted and, on April 2, 1952, was acted upon by the County Court as evidenced by entry in the County Court Journal which "ordered established" a fifty-foot right-of-way in accordance with Resolution 2178.

In the fall of 1952, Lane County blacktopped the existing gravelled portion of the right-of-way. At the same time, the county moved a fence (approximately one-quarter mile in length) located at the edge of the original 40-foot right-of-way to a line 25 feet from, and parallel to, the center line of the right-of-way. The fence, however, was not on plaintiff's predecessor's property or on property adjacent thereto. The county maintained the road until 1966, when the area in question was annexed by the city, at which time the defendant assumed jurisdiction over Barger Drive.

Plaintiff purchased the real property in question in 1967, without actual knowledge of the additional five-foot right-of-way claimed by defendant.

In April of 1975, defendant adopted an ordinance providing for the improvement of the road, including widening of the paved portion thereof and installing curbs and sidewalks. At that time, neither defendant nor plaintiff had actual knowledge of the earlier County Court proceedings. In September of that year, defendant learned of those proceedings and commenced construction of the road improvements in the good faith belief that the right-of-way was 50 feet wide.

Questions presented are: (1) Did the described action of the County Court validly widen Barger Drive to 50 feet? (2) If not, may plaintiff attack collaterally the action taken by the County Court in 1952? (3) If so, are plaintiff's rights barred nevertheless by adverse user or by the passage of time?

I. COUNTY COURT'S 1952 ACTION

The parties agree that the County Court purported to exercise its authority under section 100-1223(f), OCLA, ³ to widen any road "by agreement." Plaintiff contends, however, that the County Court did not make a finding of public necessity for the widening, and its failure to do so constituted a jurisdictional defect rendering the action taken absolutely void, subject to collateral attack. Defendant contends that no such finding was necessary. The trial court agreed with plaintiff.

Plaintiff also contends that the proceedings were void because plaintiff's predecessor in interest did not sign the only agreement found in the public records; defendant relies on the presumption that public duty has been regularly performed, by virtue of which it must be presumed that all property owners signed the agreement.

A. Determination of Public Necessity

An analysis of the relevant statutes, which are by no means clear, leads us to the conclusion that a determination of public necessity was not essential where the effect of the widening was to acquire the real property by agreement of the abutting owners, rather than by an involuntary taking. Section 100-1203, OCLA, set forth four methods by which proceedings to establish or alter county roads could be instituted: (1) by petition of freeholders; (2) by resolution of the county court; (3) by grant of owners of necessary rights-of-way; and (4) by condemnation.

With respect to proceedings instituted by petition, it was necessary that the petitioners be "freeholders of the county residing in the road district," (§ 100-1206, OCLA), and that the petition describe the terminal points of the proposed road, the width, etc., "and the public necessity therefor." § 100-1207, OCLA. Ensuing sections set forth procedures for filing petitions for damages by persons whose lands were "directly affected," and for a hearing thereon. If the county court "does not consider the road of sufficient importance to the public," the court was required to terminate the proceedings. § 100-1218, OCLA.

Similar proceedings could be instituted by resolution of the county court under section 100-1223(a), (b), (c), (d), OCLA, ⁴ which prior to 1927 comprised the entire section, and contemplated involuntary acquisition of property for road purposes. Such a procedure was involved in Latourette v. County Court, 121 Or. 323, 255 P. 330 (1927), where it was held that the initiating resolution must include a determination of public necessity.

Condemnation proceedings, authorized by section 100-1229, OCLA, required a declaration of the necessity for the acquisition before proceedings could be commenced. All of the foregoing proceedings involve an involuntary taking and required a declaration of necessity.

Prior to the 1927 amendments, the only statutory provision relating to voluntary acquisition by the county of property for county roads was section 100-1224, OCLA, which did not require a determination of public necessity before accepting a formal deed of dedication. ⁵

In 1927, subsections (e) and (f) ⁶ were added to section 100-1223, OCLA, by Oregon Laws 1927, ch. 238, which contained an emergency clause reciting the necessity to proceed with construction of roads, then being established, during the dry season of the year. Apparently it was intended that subsection (f) permit a more expeditious method of proceeding, different from the proceedings previously encompassed by the statute. Included was a procedure for voluntary acquisition short of, and less formal than, a deed of dedication, which could be initiated by resolution of the county court "by agreement" of the property owners whose property would be affected.

Because this subsection is more analogous to dedications than it is to involuntary taking, we conclude that where the county court proceeded by agreement thereunder its resolution was not required to contain a determination of the public necessity for the acquisition.

B. Presumption of Regularity

A more difficult problem is presented by the failure of the public record to disclose the signature of the plaintiff's predecessor on any of the three pages included as part of the "agreement." We construe section 100-1223(f), OCLA, to require all of the property owners whose property would be acquired to "agree" before the county court could initiate proceedings "by agreement." There is no direct evidence that plaintiff's predecessor signed the agreement, but defendant contends that the recitation in Resolution 2178, "All as agreed to by the property owners abutting on said road" must be construed to mean that all of the owners agreed, which is supported by the presumption that official duty has been regularly performed. § 2-407(15), OCLA. (Now ORS 41.360(15)).

A county court, when transacting county business such as laying out county roads, is an inferior tribunal of special and limited jurisdiction, and all facts necessary to confer jurisdiction must appear on the face of the record of its proceedings; the presumption of regularity will not operate to support jurisdiction; Columbo et al. v. Hewitt et al., 221 Or. 121, 350 P.2d 893 (1960). However, once jurisdiction is established, the presumption applies to its acts the same as it does to courts of general jurisdiction. Morton v. Hood River County, 88 Or. 144, 171 P. 584 (1918).

It is necessary, therefore, to determine what was necessary to establish jurisdiction of the county court in the 1952 proceeding. In Morton, the court held, in denying a writ of review, that the filing of the petition to lay out a county road, coupled with the posting of notices required by law, vested jurisdiction in the county court. However, proof of posting must be in the record; a mere recitation that proof of posting has been made "to the satisfaction of the Court" is not sufficient. State of Oregon v. Officer, 4 Or. 180 (1871), quoted with approval in Columbo.

By analogy, where the county court proceeded by a resolution which was premised on there being an agreement of all of the owners of property to be acquired, it may not obtain jurisdiction to acquire the owners' property without an affirmative showing in the record that all of...