Spencer v. City of Portland

• Decision Date: 21 April 1925
• Citation: 114 Or. 381,235 P. 279
• Parties: SPENCER v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

235 P. 279

114 Or. 381

SPENCER v. CITY OF PORTLAND.

Supreme Court of Oregon

April 21, 1925

In Banc.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by Elizabeth I. Spencer against the City of Portland. Judgment for defendant, and plaintiff appeals. Affirmed.

Bean and Burnett, JJ., dissenting.

The plaintiff brought this suit to enjoin the defendant city of Portland from appropriating certain of her lands for the purpose of widening East Broadway and East Larrabee streets as approaches to the Broadway bridge spanning the Willamette river.

In the proceedings to condemn plaintiff's real property, her damages were determined to be $13,550, and the benefits inuring to her were fixed at $450. She does not complain as to the assessment of benefits, but she avers that the appropriation of her property by the city would damage her in the sum of $18,000. Plaintiff admits that the city, in its attempt to exercise the right of eminent domain, is proceeding in conformity with its charter; but she attacks the right of the city to condemn her land other than by the method authorized by Oregon Laws, § 7088, and the special condemnation procedure for cities as prescribed by Oregon Laws, §§ 7108-7112, and bases her objections to the proceeding had upon the ground "that it constitutes a taking of plaintiff's property without due process and without just compensation."

The cause comes here from a final judgment entered upon the overruling of plaintiff's demurrer to the defendant's answer. The plaintiff assigns error of the court: First, in overruling plaintiff's demurrer and dismissing her complaint; second, in holding that the circuit court had jurisdiction to review plaintiff's damages; third, in holding that the city of Portland conferred jurisdiction upon the circuit court by a charter amendment; fourth, in holding that the condemnation proceedings under the charter constituted due process.

Among other things, the charter under which the city is proceeding provides:

"Sec 322. Whenever the council shall deem it expedient to lay out, establish and open any new street or streets, or to change any existing street or streets by extending widening or altering the same, it shall by resolution direct the city engineer to make a survey and plat of such proposed street or streets, or change thereof, and a written report. The city engineer shall make such survey plat and report, and file such plat and report with the auditor within sixty days from the date of such resolution unless the council shall grant an extension of time. Such report shall contain a full description of such proposed street or streets, or change of an existing street or streets, a description of each lot, tract or parcel of land, or portion thereof, to be appropriated, the amount of damages which, in his judgment, should be awarded for such appropriation, with the name of the owner or owners and other persons whom he may find to have any interest in or lien upon said property, a description of the boundaries of the district benefited and to be assessed for such improvement, and a description of each lot, tract, or parcel of land (other than land taken) in such district with a just assessment of benefits thereto. The city engineer shall include in such report a summary showing the excess of benefits and excess of damages relative to lots tracts or parcels of land a part of which is embraced within such proposed street or streets or change, which damages and benefits may be offset pro tanto. The engineer's report shall be deemed a proposed award of damages and assessment of benefits.

"Sec. 323. Within thirty days after the filing of such report the auditor shall cause a notice to be published for a period of ten successive publications in the city official newspaper, stating that such report is on file in his office subject to examination, giving the date when the same was filed, the probable cost of such proposed street or streets or change, a statement of the district embracing the property proposed to be assessed therefor and notifying all persons interested to present in writing their objections to said report, if any they have, and that said objections, if any there be, together with said report, will be heard by the council on a date specified in such notice, not less than ten (10) days after the date of the first publication of said notice. It shall also be the duty of the auditor forthwith to send by mail postpaid to each of those designated in the engineer's report a notice stating the probable total cost of such street or streets, or change, a brief description of the property in which such person is interested, a statement of the amount proposed to be assessed against such property, the time within which written objections may be filed against such proposed appropriation and assessment, and the date when the council will hear such report and objections, and, if such person be named as owner or party interested in land to be taken, the amount of damages proposed to be awarded for such property. If the address of any such person be unknown to the auditor and if such person have an agent whose name and address is known to the auditor, he shall mail such notice to such agent; otherwise, he shall mail it to the owner addressed at Portland, Or.

"Sec. 324. If the council, after hearing the objections, if any there be, find such report to be reasonable and just, it may adopt the same by ordinance, embodying such report. If it appear to the council that the damages allowed or benefits assessed are unreasonable, unjust or improper in any respect, it shall make what it may deem to be a reasonable, just and proper award of damages and assessments of benefits, and for that purpose it may require a supplementary or further report from such city engineer. When the council, after such hearing, shall have ascertained what it deems to be a fair, just and proper award of damages and assessment of benefits, it may pass an ordinance specifying in detail such award and assessment, which ordinance may be passed at any time after the hearing hereinbefore specified. But if the council deem it just and proper to reduce the amount of any award embraced in the engineer's report or increase the amount of any proposed assessment against any parcel of land embraced in said engineer's report, it shall fix a time for a further hearing and shall cause the auditor to mail a notice to the owner of each parcel of land so affected, stating what is proposed in the way of an award of damages or an assessment with respect to the property in which such person is interested, the time within which objections may be filed in writing with the auditor and the time when such objections will be heard by the council. After holding such hearing the council may pass an ordinance making an award of damages and assessment of benefits. No findings or conclusions need be entered relative to objections.

"Sec. 325. The owner or owners of any lot, tract or parcel of land, all or part of which is to be appropriated for a street, streets, or change, the owner of the improvements thereon, any person having an interest in such land or improvements, and any person against whom an assessment of benefits is made by such ordinance, shall have a right of appeal, within the same time, in the same manner and with the same force and effect as is provided by sections 401 and 402 of the 1903 charter of the City of Portland, which sections are contained on pages 163 and 164 of the Special Laws of Oregon for the year 1903. * * *

"Sec. 326. The council, after the expiration of the time limited for an appeal to the circuit court, * * * shall, if it deem it advisable to lay out * * * such street, * * * adopt a resolution directing the auditor to enter in the docket of city liens a statement of the respective amounts of benefits assessed upon each particular lot * * * in like manner as assessments * * * are entered in said lien docket.

"In cases where a part of a lot or tract of land is taken for such street * * * and an award made for the part taken, and an assessment made against the residue, credit shall be made so that, if the award exceed the assessment, the assessment shall be canceled and the balance of the award paid to the owner, and if the assessment exceed the award the amount of the award shall be applied on the assessment. * * * All moneys arising from such assessments of benefits shall be kept in a separate fund and shall be applicable to a satisfaction of the amount to be paid for damages. * * *

"Sec. 328. If such fund for the payment of damages be not collected and ready for the drawing of warrants within nine (9) months from the termination of the time limited for appeal, * * * or within nine (9) months from the date of the rendition of final judgment on appeal * * * all acts and proceedings for the laying out, establishing, opening, or changing of such street or streets shall be null and void. But in case of two or more appeals being taken, the time shall start to run from the date of the final judgment which is last."

The next two sections relate to proceedings upon the determination of an appeal.

John W. Kaste, of Portland (Kaste & Rand, of Portland, on the brief), for appellant.

Frank S. Grant, City Atty., and L. E. Latourette, Deputy City Atty., both of Portland, for respondent.

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

Eminent domain is the offspring of necessity. Public necessity, or urgent public policy, is the only justification for seizing the property of a law-abiding citizen against his will. In all cases of this character, the law not only requires a sufficient procedure for condemnation, but likewise demands that such procedure be strictly pursued. Fur...