Dillon v. Beacom

Mr. Justice Bean

delivered the opinion of the conrt.

The questions thus raised are so similar that to quite an extent they may he considered togéther. Counsel for defendants contend that the facts set forth in the complaint which are challenged by the demurrer are insufficient to permit plaintiff to recover or to show a valid lien on the real property conveyed for the reason: (1) That the resolution of intention to make the improvement did not fix a time and place for hearing objections thereto; (2) that the complaint does not aver that the notice required by statute was given.

1. Section 110 of the charter of Medford authorizes the council to construct a system of waterworks for the city. Section 116 of the charter provides, among other things, as follows: “Whenever the city council shall intend to lay any water-mains in any street of the City of Medford, the cost of which is to be assessed to tbe property fronting on said street, it shall by resolution declare such intention, * * describe the size of the proposed main and shall designate the portion of the street along which the same is to be laid; it shall declare the intention of the council to assess the cost thereof to the property fronting on said street in proportion to the frontage of said property, and shall fix a time and place at which the council will meet and hear all protests against the laying of said water-mains and the assessment of the cost thereof on the property fronting said street” — and requires the notice to be published three times in a daily newspaper and posted for a period of ten days in five public places in the city. Under this charter notice of an intended improvement must be given to the property owners in accordance therewith in order to authorize the city council to levy an assessment for the expense of laying a water-main: Rogers v. City of Salem, 61 Or. 321 (122 Pac. 308); Paulson v. City of Portland, 16 Or. 450 (19 Pac. 450, 1 L. R. A. 673), 149 U. S. 30, 40 (37 L. Ed. 637, 13 Sup. Ct. Rep. 750).

2, 3. Did the proceedings in question conform to the requirements of this statute? The plaintiff’s complaint sets forth the notice of intention to lay the water-main and to make the assessment and, as permitted by Section 90, L. O. L., pleaded the ordinance declaring the water-main to be a benefit to the land, by reference to its title and date of approval. The complaint showed in substance the record of proceedings taken by the council to establish the lien. The ordinance recites that the resolution of intention was published as provided by Section 116 of the charter; that a meeting of the council was held at the time and place fixed by the resolution for the purpose of» considering any protests against the improvement and assessment; but that no such protest was made. The defendants did not at any time contest the propriety or right of the city to construct the water-main and to make the assessment. This action is collateral to the proceedings of the municipal authorities in the matter. After notice given as required by statute, and after the council has acquired jurisdiction, made the levy, and performed the work, defendants cannot take advantage of mere irregularities in making the assessment. Their only available defense is that the lien is wholly void. All reasonable presumptions are in favor of the record of the proceedings, which, in the absence of allegations and proof to the contrary, must be taken to be true: Wilson v. Salem, 24 Or. 504 (34 Pac. 9, 691); Clinton v. Portland, 26 Or. 410 (38 Pac. 407); Houck v. City of Roseburg, 56 Or. 238 (108 Pac. 186.)

4. While the allegations of the complaint as to notice are not so clear and specific as might have been desired by defendants, yet their remedy was to move to make the same more definite. Regarding the averments of a notice in such proceedings, Page and Jones, Taxation by Assessment, Section 1237, states, in substance, that averments showing that notice was given in substantial compliance with the terms of the statute are sufficient. It is sufficient if the complaint shows that some notice was given and that the court regarded it as sufficient before taking action upon the petition for the improvement, indicating that, if the notice is defective, snch defect must be set np by the answer. Defendants conld not ignore the notice, suffer the work to be done, and then raise such objection in a collateral proceeding. The pleading setting out the ordinance, stating the substance and effect thereof, and detailing the proceedings of the city council was good upon general demurrer: Green v. Tidball, 26 Wash. 338 (67 Pac. 84, 55 L. R. A. 879). Defendants’ answer consisted of a general denial and did not point out any defect in the proceedings.

5. It is urged by defendants’ counsel that the resolution of intention is defective in not fixing a time and place for hearing protests. This, in the face of the declaration of the council that such time and place were fixed and notice thereof published, amounts to nothing more than an objection that the resolution was divided into two parts, which at most would only be an irregularity. The city recorder was a witness upon the trial, and, upon his stating to the effect that all of the parties interested had an opportunity to be heard in the matter, defendants did not question the correctness of the assertion by cross-examination or otherwise, but for brevity’s sake counsel made an admission as to the resolution.

6. The only evidence offered by defendants was in regard to what had already been shown, namely, that when Mrs. Dillon paid the tax on the land, the city authorities, pursuant to custom, issued to her a water certificate entitling her to a like amount of credit for water, to be used solely upon the premises conveyed. Counsel for defendants assert that, by reason of this, plaintiff was not damaged to the full extent of the payment of the tax; that the question of damages was one for the jury; and that the court erred in directing a verdict. Counsel for plaintiff maintain that this was a matter of the regulation of the fees for the use of the city water, which was subject to change and not compulsory on the part of the city. We thiuh the right to the use of the water furnished through the water-main upon the land purchased by plaintiff from defendants, under the favorable conditions which might be allowed by the municipal authorities, was one of the incidents of the improvement of the street and real estate by laying the water-main, which plaintiff is presumed to have purchased and paid for, and that such right passed by the conveyance of the property. The privilege granted by the water certificates was solely for the benefit of the occupant of the premises and in the nature of a right to the use of the water-main: Page and Jones, Taxation hy Assessment, § 1072, p. 1777. As somewhat analogous, see, also, Ford v. Oregon Elec. Ry. Co., 60 Or. 278 (117 Pac. 809, Ann. Cas. 1914A, 280, 36 L. R. A. (N. S.) 358). The right of plaintiff to the use of water by virtue of the water certificates would be the same as to the unused portion of the water credited by such certificates, in so far as defendants are concerned, as if the whole amount of the tax had been paid by defendants. The city might thereafter double the water rate or diminish the same. Therefore the question of damages was not affected by the evidence of the issuance of the water certificates.

There being no material disputed question of fact in the case, it was proper for the trial court to direct a verdict. It follows that the judgment of the lower court should be affirmed. It is so ordered.

Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.