Oliver v. City of Newberg

• Decision Date: 20 August 1907
• Parties: OLIVER et al. v. CITY OF NEWBERG et al.
• Court: Oregon Supreme Court

91 P. 470

50 Or. 92

OLIVER et al. v. CITY OF NEWBERG et al.

Supreme Court of Oregon

August 20, 1907

Appeal from Circuit Court, Yamhill County, William Galloway, Judge.

Suit by A.P. Oliver and others against the city of Newberg and others to enjoin the collection of street improvement assessment. From a judgment dismissing the suit, plaintiffs appeal. Affirmed.

This is a suit brought by plaintiffs against the city of Newberg and others to enjoin the collection of an assement of the expense of a street improvement upon abutting property. The street improved is known as "First Street," and was originally a county road, laid out by Yamhill county prior to the platting of any part of the city of Newberg and prior to its incorporation. The town was originally incorporated in 1889, and afterward, in 1893, a new act of incorporation was passed, repealing the old one. In the re-enactment of 1893 the charter excepts out of the jurisdiction of the county court of Yamhill county all the territory within the city for road purposes or taxation therefor, and grants to the city the full control of all county roads within its jurisdiction. In the year 1905 the said city, by virtue of the terms of its charter with reference to the improvement of streets proceeded to grade, gravel, and erect a curb on either side of said First street for a distance of nine blocks, and after the completion of said improvements ascertained the expense of grading and graveling to be $4,449, and of the curb 45 cents per lineal foot. The city then proceeded to assess the said expense, less the street intersections, to the abutting property along the said street pro rata according to the frontage. On trial of the suit, the findings were in favor of defendants, and the suit dismissed; and the plaintiffs appeal.

Martin L. Pipes and J.S. McCain, for appellants.

Richard W. Montague and Clarence Butt, for respondents.

EAKIN J. (after stating the facts).

The plaintiff seek to avoid liability for said assessment upon the ground that the said alleged First street is a county road, and abutting property is not subject to the expense of the improvements thereof under the city charter, and that, if liable, the city should have assessed to each lot only the expense of the improvement of the half street abutting thereon. The issues as to the manner in which improvements were made and the character of the material used thereon are waived by the plaintiffs. Questions for consideration therefor are: Is the so-called First street a street within the meaning of the charter authorizing such improvements? And, if so, was the manner of the assessment of the expense of the improvement against the adjacent property within the authorization of the charter?

By the charter of 1893 the city of Newberg was created, the boundaries of which included the street in question; and by section 139 it is provided that: "The city of Newberg as created by this act, shall have full power to lay out open, work, change, and control all the highways and roads within the corporate limits thereof, and the inhabitants of said city within said limits, and all property therein shall be exempt from the payment of road taxes of any and every kind to the county of Yamhill. *** For the purpose mentioned in this section, the territory within the limits of the city of Newberg is excepted out of the jurisdiction of the county court of Yamhill county, Oregon, and full control of all roads and highways, or parts thereof, within the corporate limits of said city is hereby vested in the city of Newberg." Laws 1893, p. 316. When the city proceeded to act under the charter of its creation, it thereby accepted the relinquishment and grant of all county roads within its territory, and ipso facto they became streets. In Heiple v. East Portland, 13 Or. 97, 8 P. 907, cited by plaintiffs' counsel as holding contrary to this view, it is found that the language of the charter is very different from the one before us. The East Portland charter amendment of 1872 (Laws 1872, p. 181) only excepts the territory out of the jurisdiction of the county court and authorizes the city to collect road taxes for repairs of streets. It also appears that the act of 1872 was an amendment or addition to the East Portland charter relating to county roads, and not mentioned in the original charter. Mr. Justice Lord, in holding that the act did not make it a street, says: "The case is different where, by the act, the limits of the city are extended, and new territory is acquired and subjected to the laws and jurisdiction of the municipality." Also, in the Eugene charter, section 98 (Laws 1889, p. 296) gives authority to the city when it is deemed expedient to establish streets upon county roads within its limits; and when so located they shall become streets. In Huddleston v. Eugene, 34 Or 343, 55 P. 868, 43 L.R.A. 444, it is held that no new condemnation was required and that the ordinance for its improvement was an acceptance of the grant; and in the opinion in that case, Mr. Justice Moore cites with approval McGrew v. Stewart, 51 Kan. 185, 32 P. 896, in which it is held that, where a city extends its boundary over new territory, the highway therein was impressed with the character of a street, and subject to exclusive control by the city and to the liabilities and servitudes of all other streets within the city. To the same effect is Elliott, Roads and Streets (1st Ed.) p. 313; Id. (2d Ed.) § 450.

Whether a county road becomes a street, when included within the corporate limits of a city, depends upon the intention of the Legislature, as gathered from the city charter, general laws and the whole course of legislation on the subject. 2 Dillon's Mun. Corp. § 676 et seq.; State ex rel. v. Com'rs Putnam Co., 23 Fla. 632, 3 So. 164. Where the Legislature has expressly conferred upon the corporation control of the county roads within its boundaries, and excepted the territory within it from county control for road purposes, there is no question but that such highways become streets, and subject to all the burdens of streets. This is definitely stated in 27 Am. & Eng.Enc.Law (2d Ed.) 104, and recognized in Elliott, Roads and Streets (2d Ed.) § 116. In Railroad Company v. Defiance, 52 Ohio St. 262, 299, 40 N.E. 89, 97, the court say: "While counsel for the plaintiff concede that the parts of the county roads so brought within the defendant's corporate limits became highways of that municipality, they contend it acquired control of them, in the language of the petition, 'for police purposes only,' by which we unders...