Lauderback v. Multnomah County

BEAN, J.,

Dissenting. — The plaintiffs, by this suit, instituted a collateral attack upon the proceedings of the County Court in laying out and establishing a county road, known as the Mt. Hood Loop road in Multnomah County, through the land of plaintiffs, and seek the extraordinary remedy of an injunction to restrain the county from constructing the road which it is proceeding to do. Defendant appeals from a decree in favor of plaintiffs.

Plaintiffs allege that the proceedings by the board of county commissioners in establishing such road “have not been done in accordance with the law and as in Chapter 295 of the 1917 Session Laws of Oregon, in the following particulars”:

“(1) Said H. B. Chapman, appointed by the defendant, to give notice of said proposed road by posting, neglected and failed to post true copies or any copies of the resolution of the said Board of Commissioners, certified to as such by the County Clerk, at either end of said road or in any conspicuous place along said proposed road, or as directed by the County Court. * *
“(2) That the viewers appointed failed to take an oath.
“(3) That the viewers failed to state the practicability of the proposed road, or the necessity or reason tiaerefor.
“(4) That the viewers assessed the damages to plaintiff’s premises to a former owner of the land instead of the plaintiffs.”

*704A demurrer to the complaint was interposed on the ground of a want of jurisdiction, and failure to state facts sufficient to constitute a cause of suit. The demurrer was overruled and such ruling is assigned as error. The date and a copy of the resolution of the county commissioners, the description of the proposed road, the dates of the orders appointing the viewers and the filing of their report and the adoption of the same, and the description of the plaintiffs’ land are set out in the complaint. It is also alleged that the plaintiffs did not see the notices. The alleged invalidity of the proceeding is based upon the facts first referred to.

It is conceded, that in order for plaintiffs to successfully attack the proceedings in establishing the county road in this suit, it must be shown that the county commissioners failed to obtain jurisdiction of the matter. It goes without saying, that the facts showing a want of such jurisdiction must first be stated in the complaint. The main thing, in the complaint, relied upon is in regard to the posting of the notices, which we quote above. Where proceedings for establishing a county road are initiated by resolution of the County Court, under Section 4556, Or. L., that section provides that after the resolution, notice shall be given as provided for upon filing of a petition for such purposes, and like proceedings shall be had by such County Court as in the case of the filing of a petition before it, asking for such improvement, except as hereinafter particularly specified. Subdivision (a) provides:

“The notices to be posted shall consist of true copies of the resolution of the county court, properly certified to as such by the county clerk, and the same shall be posted by the county roadmaster, or county *705surveyor, or a duly qualified deputy, as directed by the County Court.”

It will be seen that the specification of illegality in regard to posting of the notices is, that the officer failed “to post true copies or any copies of the resolution of the said board of commissioners certified to as such by the county clerk,” and then proceeds in regard to the place. It is not indicated wherein the copies of the resolution were not true copies; for aught that appears in the complaint, it may be a lack of crossing a “t” or dotting an “i,” or some word like “and” or “or” omitted or interchanged. Or, looking further at the assertion, it might be held that a perfect resolution was not properly “certified” to as such by the county clerk. It is not suggested wherein the certificate of the county clerk is wanting; whether it is a mere matter of form or something connected with the substance. This is the most that can be claimed from the complaint.

In the specification in regard to the notices not being true certified copies, it is also stated that such copies were not posted at either end of said road, or in any conspicuous place along said proposed road. It is not alleged and it cannot be claimed that no notices were published along the line of the proposed road, or in the vicinity of the proposed road. It certainly is not the law that such notices should be posted at either end of the proposed road. Neither is it the law that the notice sould be posted along said proposed road. Section 4543, Or. L., requires such notices to be “posted at the place of holding county court and also at three public places in the vicinity of the proposed road.” There might be no public places along the line of a proposed road where such notices could be posted. The statute would be com*706plied with, by such posting in the vicinity of the proposed road. Therefore, there is no material fact stated in the complaint to show that the proceedings establishing the county road in question were invalid, or that the County Court did not acquire jurisdiction of the matter. In order for plaintiffs to obtain the remedy for which they seek, that ought to be shown by their complaint. Positive averments of facts must be made showing that plaintiffs are entitled to the equitable relief prayed for in order to entitle them to the harsh remedy of an injunction; legal conclusions are insufficient: High on Injunction, § 34.

The plaintiffs did not appear in the County Court when the proceedings were had, they say, for the reason that they were not informed regarding the same. They did not contest the proceeding by an appeal to the Circuit Court, or upon a writ of review, and in order for them to successfully maintain a collateral attack upon the proceedings of the County Court establishing the county road, they ought, at least, to specify wherein such proceedings were invalid with as much particularity as though they had brought proceedings for a writ of review.

The second specification, upon which they based this suit, is that the viewers, appointed by the County Court in the matter, failed and neglected to take an oath. This is not a legal objection to the proceedings. Section 4545, Or. L., provides for the purpose of the act the county surveyor, roadmaster or any duly qualified deputy or assistant of whom an oath of office shall be required by law, shall be considered sworn upon qualifying for the duties of their office. It is not suggested that the viewers were not surveyors or roadmasters, or duly qualified deputies or assistants so as to necessitate their taking an oath.

*707There is mild criticism that the board of viewers, so appointed, failed to state the practicability of the proposed road or the necessity thereof. Whether this means they are divided in their opinion, and two of them recommended the road, giving their reasons therefor, or whether it is some informal matter, does not appear.

The plaintiffs also, as a reason for invalidating the county road in question, and laying the foundation for questioning the validity of one half of the county roads in the state, assert that the viewers failed to assess and determine how much less valuable were the premises through which the road is to be located in favor of the plaintiffs, but assessed the damages in favor of the former owner. The law in regard to this matter is contained in Section 4547, Or. L., and requires the board of viewers' to “assess and determine how much less valuable the premises through which the said road is located, or is to be located, are, and set forth the same in their report.” It is plain that the viewers are to assess the damages to the premises through which the road is proposed to be located. Any description of the premises which would indicate what damages thereto the viewers found would undoubtedly be sufficient.

The complaint is insufficient tó warrant the granting of an extraordinary remedy of an injunction to the plaintiffs, and the demurrer thereto should have been sustained. The complaint of the plaintiffs, touching the proceedings relating to the county road in question, suggests no more than mere irregularities, which do not go to the jurisdiction of the County Court; all else therein are mere conclusions: See Wingate v. Astoria, 39 Or. 603, 604 (65 Pac. 982, 6 *708Munic. Corp. Cas. 815); Wilson v. City of Salem, 24 Or. 504 (34 Pac. 9); Barkley v. Oregon City, 24 Or. 515 (33 Pac. 978). After a County Court has once acquired jurisdiction in such proceedings mere irregularities in subsequent proceedings will not render them invalid: Heuel v. Wallowa Co., 76 Or. 354, 360 (149 Pac. 77); French-Glenn Co. v. Harney Co., 36 Or. 138 (58 Pac. 35); Jensen v. Curry Co., 55 Or. 54 (105 Pac. 96); Morton v. Hood River, 88 Or. 144 (171 Pac. 584).

The construction of plaintiffs’ complaint, which we have given, is not only authorized by law, but also by the claim made by plaintiffs in the complaint itself. In the next paragraph (No. 9) after the one construed, plaintiffs assert:

“That on account of the failure of the defendant to cause to be posted true copies of the resolution of said Board of County Commissioners, properly certified to as such by the County Clerk, and by failure to post such notices or any notice, at either end of said proposed road or at any point along the line of said proposed road, the plaintiffs never obtained notice nor had actual notice thereof prior to the time of the first reading of said resolution * * ”

If we tread upon forbidden ground and look beyond the complaint to ascertain the cause of plaintiffs’ criticism of the copies of the resolution posted as notices, or why they were not “true copies,” we find that plaintiffs assert that all of the copies of resolution did not contain the names of the commissioners. Here again, the plaintiffs would require something to be done in the matter that the law does not. Section 4556 provides that “the County .Court of any county at a regular term may by resolution declare its intention to locate, establish” or change any road. *709It is for the County Court to adopt such a resolution. The statute does not require the County Court to sign such resolution. The orderly procedure would be for the same to be entered in the journal of the court. It is not averred by plaintiff that this was not done. Under the law, as enacted by this section, the copies of the resolution to be posted as notices are to be signed by the county clerk or authenticated by the certificate of the county clerk. Indeed, in paragraph III of their complaint, plaintiffs aver that the county commissioners “adopted the following resolution”; then, they set out what they alleged to be a copy of the resolution, which does not have appended thereto the names of the commissioners.

Tke defendant set fortk tke proceedings taken establisking tke road. It appears tkat tke record proof of posting tke notices, wkick was before tke County Court, consisted of tke affidavit of H. B. Ckapman, tke duly qualified deputy county roadmaster for Multnomak, skowing tkat on tke tkirteentk day of January, 1922, and more tkan tkirty days prior to time of tke order of tke County Court directing tke viewers to view, survey and locate tke road, ke personally posted tke notices, a copy of wkick was attacked to tke affidavit, at tke following places. (Tke remainder of tke affidavit reads tkus:)

“One of said notices I so posted on said day at the place of holding County Court in said county, to wit: at a conspicuous place on the bulletin board in the county courthouse of said county and state. Another of said notices I so posted on a fence on the south side of Powell Valley Road where the proposed road intersects the Powell Valley Road. Another of said notices I so posted on a telephone pole on the east side of the Boring Road, where the proposed road intersects the Boring Road. Another of said notices *710I so posted on a telephone pole on the north side of the Powell Valley Road where the proposed road intersects the Powell Valley Road.
“That each and all of said notices were so posted by me on said day in a conspicuous place in such a manner that it could be easily read by passersby.”

The affidavit, while it does not use the same language as found in the statute, clearly shows that one of the notices was posted at the place of holding the County Court. This is not questioned. The other three notices were each posted on the side of a public traveled road, which is unquestionably a public place. The affidavit also plainly shows that each notice was posted in a conspicuous place in such a manner that it could be easily read by passersby. The statement that the notices were posted where the proposed road intersects the other roads named, shows that thé notices were each posted in the vicinity of the proposed road. In other words, the facts showing proper posting of the notices are stated in the affidavit so that the court could see and find that three notices were posted, “at three public places in the vicinity of the proposed road.” This was a strict compliance with Section 4543, Or. L., which governs the matter.

The proposed county road is about 3% miles long. It intersects two county roads. The map in evidence shows that it intersects the Powell Valley road near the east end of the proposed road and also at the west end. It is objected that one of the notices was posted on the south side of the Powell Valley road where the proposed road intersects the Powell Valley road, and another on the north side of the Powell Valley road where the proposed road intersects the Powell Valley road, claiming they were only 60 feet apart. Mr, H. B. Chapman, deputy county roadmas*711ter, was a witness upon the trial in the Circuit Court and testified in explanation of the affidavit of posting, to the effect that one of the notices was so posted at the intersection and on the south side of the Powell Valley road, about 2,000 feet from the eastern terminus of the proposed road. Another, at its intersection of the Boring road, and a third on the north side of the Powell Valley road at the westerly terminus of the new road: Smith v. Jefferson, 75 Or. 179, 193 (146 Pac. 809).

We fail to see how it can be claimed that two of the notices were posted only 60 feet apart. The language of the affidavit quoted does not indicate that the two notices were posted at the same intersection of the new road with the Powell Valley road. It appears that both the Boring road and Powell Valley road are heavily traveled highways. One of the certified copies of the notices posted, which had been subjected to the elements for some time, was introduced in evidence. It contained all of the information required by the statute and is sufficient to inform a reader thereof that the County Court intended to establish a county road, as particularly described in the resolution, and fixed a definite time and place for hearing objections and remonstrances against the establishment of the road. The following is appended thereto:

“Board of County Commissioners of Multnomah County, Oregon.
“By-,
“Chairman.
“By-,
“Commissioner.
“By- — -,
"Commissioner."

*712To this copy is attached the proper certificate of the county clerk signed thus:

“Jos. W. Beveridge, County Clerk of Multnomah County,
“By-,
“Deputy.”

The signature of the deputy clerk appears to have been nearly obliterated. The deputy county road-master testified that when posted, the copy contained the names of the commissioners where there are blanks therefor, and that the signatures had been “washed off.” As heretofore pointed out, the notices were legally sufficient: Giesy v. Marion County, 91 Or. 451, 453 (178 Pac. 598); Lord v. County Commrs., 105 Me. 556, 561 (75 Atl. 126, 18 Ann. Cas. 665). The proceedings of the County Court in the road matter in question were stronger from a legal standpoint than is the pleading of plaintiffs.

I am unable to concur in the findings of Mr. Justice Brown that the testimony of plaintiffs makes a prima facie case.

In order that a different kind of a notice for the establishment of a county road be given, it would be necessary for the lawmakers to change the statute. Plaintiffs had constructive notice of the road proceedings and were constructively in court when the report of the viewers was adopted. The record does not suggest anything unfair in the proceedings. It appears from the record that the plaintiffs entered into a contract with Sarah B. Abernathy for the sale by the plaintiffs and the purchase by Mrs. Abernathy of the land of which plaintiffs complain the road passes over. A part of the purchase price was paid. It is alleged that Mrs. Abernathy was the owner of the premises at the time of the road proceedings in *713question. This question is disposed of by the opinion in Morton v. Hood River County, 88 Or. 144 (171 Pac. 584), in which this court, at page 147 of the Or. Report, said:

“The court obtained jurisdiction by the filing of the petition and proof of posting the notices as required by law. Thereafter, it was the duty of the appellants, who claim to be the landholders along the route of the proposed road, to have seasonably presented their claim for damages, stating the facts as to ownership. It is no part of the road viewers’ duties to settle or even investigate conflicting claims to the lands through which the road passes. In a general way they assess the damages to the tracts, and the owners being constructively in court by reason of the posting of the notices of the application, should file their claim for damages in the County Court, or by appeal to the Circuit Court, litigate the question of ownership, as well as the amount of damages.”

For the foregoing reasons I am unable to concur in the opinion by Mr. Justice Brown. The judgment of the Circuit Court should be reversed and the suit dismissed.