Petition of Reeder

• Decision Date: 05 February 1924
• Citation: 110 Or. 484,222 P. 724
• Parties: PETITION OF REEDER ET AL.
• Court: Oregon Supreme Court

222 P. 724

110 Or. 484

PETITION OF REEDER ET AL.

Supreme Court of Oregon

February 5, 1924

Department 2.

Appeal from Circuit Court, Multnomah County; H. H. Belt, Judge.

Petition by J. L. Reeder and others for locating and establishing a county road on Sauvies Island, No. 911, in which landowners appeal from the order of the circuit court awarding damages. Affirmed.

This is an appeal by landowners from an order of the circuit court for Multnomah county, Or., upon the verdict of the jury awarding damages by reason of the laying out of a county road through their lands.

J. L Reeder and 16 other averred freeholders, residents of the same road district, petitioned the board of county commissioners of Multnomah county, Or., for the purpose of having a county road established in their district, which road was described in their petition. The petition, with accompanying proof that notice had been given by advertisement, was presented by the board of commissioners for action.

The record shows that E. B. Gardner, S. Hutchinson, Kittie T Hutchinson, J. S. Crumbley, and J. N. T. McIntire filed a remonstrance with the board and protested against the laying out and establishment of the road described in the petition. Thereafter, viewers were appointed who reported, in part:

"* * * As an offset to the damages demanded by some of the owners of said property, we recommend that the said road be fenced at the public expense."

Petitions for damages were filed as follows: E. B. Gardner, in the sum of $10,000; Kittie T. Hutchinson, in the sum of $3,500; J. N T. McIntire, in the sum of $7,500; J. S. Crumbley, in the sum of $2,500; Mary C. Crumbley, in the sum of $600. Thereafter the board of commissioners entered an order reciting, among other things:

"* * * There have been filed various claims for damages on the part of property owners through whose property the proposed road will be laid out and opened. * * *

"The board of county commissioners hereby finds that the said road will be a public utility.

"Ordered further that the said report of the board of county road viewers be, and is hereby, adopted, save and except * * * 'that the said road be fenced at the public expense,' which said recommendation is hereby disallowed. * * *

"Ordered further, * * * all of the claims for damages * * * are hereby denied and disallowed. * * *

"Ordered further that the said remonstrance * * * is hereby overruled.

"Ordered further that the said road be finally surveyed and opened."

Within 20 days thereafter, appeal from the order of the board of commissioners was taken to the circuit court by the appellants, where each recovered a judgment more favorable than the order appealed from. In that court, five cases were consolidated and tried as one action. The order of the circuit court recites:

"This cause coming on for hearing upon the appeal of appellants * * * the court having submitted to the jury the question of the amount of damages sustained by appellants by virtue of the establishment of said road, * * * and the jury having returned a separate verdict in the case of each appellant and assessed their damages and benefits, * * *

"And it appearing to the court * * * that appellants are entitled to their costs and disbursements, and evidence of a reasonable attorney's fee having been submitted to the court by appellants, the smallest sum being $2,000 and the largest sum $2,500,

"And it appearing to the court that in proceedings of this character appellants cannot claim a reasonable attorney's fee to be taxed as part of their costs and therefore no attorney's fee can be allowed herein, * * *

"It is therefore ordered that the amount of just compensation awarded to appellant E. B. Gardner for damages to his land, resulting from the establishment of said proposed road, is $1,706."

Damages were likewise awarded to the other appellants in the following amounts: J. S. Crumbley, $369; J. N. T. McIntire, $2,482.70; Kittie T. Hutchinson, $457; Mary C. Crumbley, $165.

On appeal to this court, appellants assign as error the court's ruling: (1) In refusing appellants' offer to show that notices were not posted in public places in the vicinity of the proposed road; (2) in giving certain instructions and refusing to give other instructions requested by appellants; (3) in refusing to fix attorneys' fees, and in entering an order fixing the amount of just compensation to be awarded to appellants.

George S. Shepherd, of Portland, for appellants.

Samuel H. Pierce, Deputy Dist. Atty., and Jay Stockman (Stanley Myers, Dist. Atty., and Wm. H. Hallam, Deputy Dist. Atty., on the brief), of Portland, for respondents.

BROWN, J. (after stating the facts as above).

The appellants challenge the validity of the establishment of the county road described in these proceedings, and likewise appeal from the assessment of damages awarded them upon the verdict of the jury by order of the circuit court.

If the board of county commissioners has exercised its judicial functions erroneously, or has exceeded its jurisdiction in the matter of the establishment of the county road involved in this proceeding, the appellants' remedy for that wrong is by the writ of review. Or. L. §§ 602-611.

But appellants, relying upon the provisions of the act of 1917, contend that upon an appeal from an assessment of damages questions affecting the jurisdiction of the board to establish the highway may likewise be tried to the jury. With this contention we cannot agree. Beekman v. Jackson County, 18 Or. 283, 22 P. 1074.

The proceedings had to establish the county road involved herein are governed by the provisions of chapter 295, General Laws of Oregon 1917, codified as Oregon Laws, §§ 4536-4576. The act is entitled:

"An act to provide for laying out, opening, establishing, constructing, improving, maintaining, altering, repairing, widening, grading, straightening, locating, * * * and vacating county roads. * * *"

The term "county court," as used in the road law, includes the "board of county commissioners." Or. L. § 4536.

Among other methods provided by that act for the laying out of county roads is the familiar proceeding by petition of resident freeholders. Or. L. § 4538. This was the procedure pursued in the case at bar. Applications for locating, laying out, or establishing county roads by petition of freeholders of a road district shall be signed by 12, or a majority, of the freeholders of the county residing in the district or districts where such road is to be established. Or. L. § 4540. The necessary descriptive matter is defined by section 4541. A bond for costs is required by section 4542. When a petition for the establishment of a county road by freeholders is presented to the county court for action, it shall be accompanied by satisfactory proof of notice given by advertisement, posted in four public places. The notice shall be posted at the place of holding "county court," and at three public places in the vicinity of the proposed road to be located. Or. L. § 4543. Section 4544 provides for a board of county road viewers, and the succeeding three sections relate to their qualification, the location of the road by viewers, and the procedure of that board. Section 4549 relates to petitions for damages and remonstrances. Section 4550 provides for the consideration of the reports, remonstrances, and claims for damages, and prescribes when the court may find that the road is of public utility.

In the instant case the board dismissed the petition for damages, found the road to be of public utility, and ordered it opened.

"If the petition for damages be denied, the county court shall enter an order adopting said report and establishing said road, but no such order shall be final, or operate to establish said road, unless the time for taking an appeal to the circuit court, as set forth in section 4553 hereof, shall have expired and no appeal shall have been taken, or, in the event such an appeal has been taken, unless the county court shall, by an order entered in its journal, find the immediate opening of said road to be of great public necessity, and direct that upon the final determination of the appeal, the county clerk draw a warrant payable to the appellant for the full amount of all damages determined, together with costs if the appellant recover a judgment more favorable than the order appealed from, and that said order direct the county treasurer to set aside and hold sufficient moneys on hand and available for such purpose and not otherwise appropriated, to pay all damages claimed and costs." Or. L. § 4551.

Section 4552 relates to the payment of damages.

Section 4553 reads:

"* * * Any person whose lands are directly affected by such proceeding may, within twenty days after such report is adopted by the county court, appeal therefrom to the circuit court of said county. Such appeal shall be taken to the circuit court in the manner provided by law for the appeals from the justice of the peace to the circuit court, and if the appellant shall fail to recover a judgment more favorable than the order appealed from, said appellant shall pay all costs of said appeal."

Most of the foregoing has been road law of this state for many years, and its re-enactment in 1917 is but a continuation of the former law. Renshaw v. Lane County Court, 49 Or. 526, 89 P. 147. The following provision is peculiar to the act of 1917:

"No final order establishing, altering or relocating any road or highway shall be set aside, or annulled upon appeal or review, nor shall any county court refuse to render any such final order, for or on account of any defect or irregularity in the petition or resolution, or notice thereof, which does not materially effect [affect] the

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