Wilson v. City of Portland

• Decision Date: 11 December 1917
• Citation: 87 Or. 507,169 P. 90
• Parties: WILSON v. CITY OF PORTLAND ET AL.
• Court: Oregon Supreme Court

169 P. 90

87 Or. 507

WILSON v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon

December 11, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Suit by D. G. Wilson against the City of Portland, a municipal corporation, and the Scott-McClure Land Company, a corporation, in which one B. M. Lombard was allowed to intervene. From a decree for plaintiff on the pleadings defendant City appeals. Reversed, and suit dismissed.

Rehearing denied 171 P. 201.

In this suit against the city of Portland the plaintiff declares that he is the owner in fee simple of some realty abutting upon the east side of East Twenty-Ninth street, in that city. His initiatory pleading recites that by virtue of a certain ordinance passed by the council of that municipality his holding was assessed in certain sums for the cost of improving the half street already mentioned, and further traces the procedure to the point where it is ripe for sale of the property to satisfy the liens so created. The only objection urged by plaintiff against the action of the city in the premises is found in this allegation:

"That at the time the said proceedings for the improvement of said east half of east Twenty-Ninth street within the limits above specified were initiated said street had already been improved with bitulithic pavement, and during all of the time which had elapsed since said date said improvement of said street which had been so made continued to exist and still exists, and no improvement of any nature whatever was made by said city of Portland nor by any one after the initiation of said proceedings and up to the present time, and plaintiff's said real property has been assessed as aforesaid for an improvement which has not been made either in whole or in part."

Contending that these transactions constitute a cloud upon his title, he prays that they all be declared void, and the cloud removed.

After sundry denials the answer of the city avers, in substance that the property in question was situated in Olmstead Park which was owned by one B. M. Lombard, who was desirous of having the streets in that addition, together with the east half of East Twenty-Ninth street, improved, and requested the city to make the improvement at the expense of his property that the city, in obedience to the express desire of Lombard undertook to make the improvement, and that in the course of the proceedings one of the employés in the city engineer's office, in preparing the initiatory resolution, omitted therefrom the words "the east half of the street," which omission was not noticed by any one, either the city officials or the interested freeholders. The answer then charges that the proceedings were carried forward according to the original intention of the city and the property owners; that the street was actually improved and the work completed without a discovery of the error until the city officials came to make up assessments apportioning the cost of the undertaking, whereupon they consulted Lombard, who expressed himself as being satisfied with the improvement, and stated that the cost thereof should be paid; that plaintiff and Lombard suggested that the better course to pursue would be to take supplemental proceedings to make an assessment against the property especially benefited by the improvement, and further represented that they would not make any objection or protest against such supplemental proceedings, and that the resulting assessments would be paid or bonded.

The answer proceeds substantially to state that, relying on the representations of Lombard and the plaintiff, who, it avers is acting for the former in the premises, the city took the steps mentioned in the complaint resulting in the assessment to which objection is now made; all without any dissent on the part of any property holder. The defendant further alleges that, in reliance upon the statements and representations of the plaintiff and Lombard, and upon the validity of the proceedings which they now assail, it issued and delivered warrants for city improvements to the assignee of the contractor installing the pavement in the sum of $1,917.85, which warrants are still outstanding. It is also charged that the betterment was valuable; that it increased the worth of each of the lots in the amount assessed for its payment; and that all of the owners thereof, without making any protest, sat by and watched the improvement being made, well knowing that it was intended by the defendant city to make the same at the cost of the owners of abutting property and assess the expense thereof against the same. It seems that an order was entered permitting Lombard to intervene and file an answer, and issue was joined not only upon the...