Tillamook County v. Johnson

• Decision Date: 01 June 1920
• Citation: 96 Or. 623,190 P. 159
• Parties: TILLAMOOK COUNTY v. JOHNSON ET AL. [a1]
• Court: Oregon Supreme Court

190 P. 159

96 Or. 623

TILLAMOOK COUNTY v. JOHNSON ET AL. ^[a1]

Supreme Court of Oregon

June 1, 1920

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Condemnation proceedings by Tillamook County against Frank Johnson and others. From the judgment, defendants appeal. Affirmed.

The plaintiff, a municipal corporation, seeks to condemn a strip of land 60 feet in width, lying 30 feet on each side of the center line of the coast highway survey, through the land of the defendants Frank and Marie Johnson in Tillamook county Or. The county court of that county duly adopted a resolution declaring it necessary to acquire the strip for road purposes. The complaint states that the county court has been unable to agree with the defendants upon the price, and that the damages to said defendants for the taking thereof do not exceed $700. The state land board held a mortgage on the property involved, and for such reason its officers were made defendants.

The answer of the Johnsons admits the material allegations of the complaint except as to the amount of damages, and as a further and separate defense alleges their ownership of the land, possession of which the plaintiff had taken and held by force and arms, and declares that the land so taken including the timber thereon, has a value of $950. This pleading further alleges:

"That the said strip of land seized and held by the plaintiff so divides and severs the lands of the defendants, contizuous and adjacent thereto, incumbers the said lands with additional burdens, casts thereon timber débris and waste taken from the strip aforesaid and thrown upon said contiguous and adjacent lands, that the last mentioned are depreciated in value by reason of the plaintiff's said acts in the sum of $750.

"That in order that the defendants shall at all times have the use and enjoyment of the said land contiguous and adjacent to the said strip of land seized by the plaintiff, it will be necessary for the defendants to build two fences along each side of the strip of land taken and seized as aforesaid by the plaintiff, at an expense of not less than $450.

"That it will also be necessary for the defendants to maintain gates and passageways from one portion to the other of said adjacent and contiguous land to the defendants' further damage in the sum of $500.

"That $500 is a reasonable attorneys' fee for defending this action."

The answer concludes with a prayer for judgment for $2,650 together with $500 as attorneys' fee, and costs.

The reply admits the ownership of the premises as alleged, but "denies each and every other allegation" of the answer.

A trial was had, and the jury, after viewing the premises, returned a verdict to the effect "that the defendants Johnson are entitled to damages herein in the sum of $775, the cash market value" of the land actually taken, and to the further sum of $150 as reasonable attorney's fee, but that they should not recover on account of any other damage. Thereupon judgment was entered that--

"Upon the payment of such damages and attorney's fee the land should be condemned and appropriated by the plaintiff for a county road."

The Johnsons appealed, claiming that the trial court erred in charging the jury in effect that the maintenance of fences to be constructed by them along the boundary line of the road through their premises was not an element of damage to be considered by the jury, and in refusing to give defendants' requested instruction No. 5. They also insist that there is no evidence upon which a jury could make a finding of less than $300 as attorney's fee.

Thomas B. Handley, of Tillamook (Johnson & Handley, of Tillamook, on the brief), for appellants.

T. H Goyne and Webster Holmes, both of Tillamook, for respondent.

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

It appears from the bill of exceptions that the length of the strip of land sought to be condemned is 2,561 feet; that it would divide the lands of the appellants; that it would be necessary to fence each side of the strip; and that the cost of constructing the fences and gates would be approximately $400. After such evidence had been offered, Elmer Hall, as a witness for the defendants, testified over the objection of the plaintiff that when the fences were constructed the yearly cost of maintaining them would be about $50. In the first portion of its charge, the court instructed the jury that--

In arriving at the amount of appellants' damages, it might

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