Yocom v. City of Sheridan

• Decision Date: 23 December 1913
• Citation: 68 Or. 232,137 P. 222
• Parties: YOCOM ET AL. v. CITY OF SHERIDAN ET AL.
• Court: Oregon Supreme Court

137 P. 222

68 Or. 232

YOCOM ET AL. v. CITY OF SHERIDAN ET AL.

Supreme Court of Oregon

December 23, 1913

Department 1.

Appeal from Circuit Court, Yamhill County; Wm. Galloway, Judge.

Suit by Allyn Yocom and others against the City of Sheridan and others. From a decree dismissing the suit, plaintiffs appeal. Reversed and rendered.

This is a suit to enjoin the sale of real property for an alleged delinquent street assessment. The facts are that in the year 1910, the county court of Yamhill county caused to be rebuilt the main span of a bridge across the Yamhill river at Bridge street in the City of Sheridan. Thereafter the entrances of the bridge becoming out of repair and the county court refusing to put them in condition, the common council of Sheridan, in the manner prescribed for making street improvements, caused the approaches to be rebuilt at an expense of $2,326.58, and assessed the cost thereof upon the abutting property of the plaintiffs. The sums so charged were entered in the docket of the city liens, but, not having been liquidated, the defendant Joseph F. Scott, as city marshal was proceeding to collect the same by sale of the lands whereupon this suit was instituted. The case being at issue was tried, resulting in a decree dimissing the suit, and the plaintiffs appeal.

James McCain and W. T. Vinton, both of McMinnville (McCain, Vinton & Galloway, of McMinnville, and Simpson & Lewis of Sheridan, on the brief), for appellants. W. O. Sims, of Sheridan, for respondents.

MOORE J. (after stating the facts as above).

It is maintained by plaintiffs' counsel that the approaches to the bridge are a part of that structure, the erection and maintenance of which are enjoined by law upon Yamhill county that the city of Sheridan has no authority to assess abutting property for any part of the expense of constructing the approaches, and, such being the case, errors were committed in dismissing the suit and in failing to grant the relief sought.

Section 133 of the present charter of Sheridan (Laws 1891, p. 386), as amended by an act of the legislative assembly approved February 12, 1895, reads: "The said city of Sheridan to have control of all the streets and bridges and roads within the corporate limits of said city, except the bridge (over) the Yamhill river at Bridge street in the City of Sheridan, said bridge to be the property of the county of Yamhill, state of Oregon, 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, state of Oregon, and the city marshal, under the direction of the city council, is hereby invested with the sole power of collecting annually from each male inhabitant of said city within said limits between twenty-one and fifty years of age, except a public charge or active or exempt fireman and persons who are too infirm to perform labor, the sum of three dollars as a poll tax; provided, that any person in lieu of paying three dollars may do two days' work on the streets of the said city, at such a time and place as the marshal may direct. All taxable property within said limits shall be liable to assessment for the road or street work in the ratio of one day's work for each and every thousand dollars; provided, that any person may in lieu of each day's work pay to the city marshal the sum of one dollar and fifty cents. The marshal in said city is hereby authorized to collect said road tax and assessment for road and street work, and for that purpose shall possess the same power and authority and have the remedy granted by the general laws of the state to road supervisors for collection of road taxes. The common council shall by ordinance fix the time within which the said tax and assessment shall be collected." Laws Or. 1895, p. 247.

Section 57 of the charter as amended February 11, 1901, authorizes the council to lay out, establish, vacate, widen, extend, and open streets or parts of streets, but the city shall not be liable to damage to any person for an injury which he may sustain by reason of a defect in any bridge, unless the city shall have had actual notice of such defect and a reasonable time to repair the same. Special Laws 1901, p. 209.

It is maintained by defendant's counsel that these clauses of the charter evidence an intention on the part of the legislative assembly to place upon the city the obligation to build and maintain the approaches, for which purpose the power to levy and collect road taxes from persons residing in and from property situate within the municipality, is given to it, and that when the span of the bridge was built across the channel of the river by the county it had discharged the whole duty devolving upon it.

The word "bridge" has generally been construed to mean the structure spanning a hollow which was erected as a means of crossing a deep gap, and includes the approaches whereby a passageway to, from, and across the bridge is acquired. 1 Words and Phrases, 871, and cases cited; 4 Am. & Eng. Ency. Law (2d Ed.) 919; 5 Cyc. 1052; Savannah Florida & W. R. Co. v. Daniels, 90 Ga. 608, 17 S.E. 647, 20 L. R. A. 416.

The obligation to build and maintain adequate public highways, including bridges to be erected thereon over ravines or other obstructions to travel, devolves primarily upon the state, which sovereignty, unless prohibited by the fundamental law, may itself discharge the trust, or delegate the duty to a municipal or a quasi municipal corporation. Cooley, Con. Law (6th Ed.) 725; Bank of Idaho v. Malheur Co., 30 Or. 420, 45 P. 781, 35 L. R. A. 141.

Whether the laying out or opening of a rural road is under the jurisdiction of a county court, or the establishing or maintaining of a city street is...