178 P. 379 | Or. | 1919
“The County Court of any county in this state may grant a license to any party applying therefor to keep a ferry across any lake or stream within its respective county, upon being satisfied that a ferry is neces-i sary at the point applied for. * * ”
And Section 6491 says:
“Unless otherwise provided by law, no such license shall be granted to any person other than the owner of the land embracing or adjoining such lake or. stream where the ferry is proposed to be kept, unless the landing place of such proposed ferry shall be at the end of a street in an incorporated city or town or unless the owner shall neglect to apply for such license; and whenever application shall be made for a license by any person other than such owner, the County Court shall not grant the same unless proof be made that the applicant caused notice in writing of his intention to make such application to be given; to such owner, if residing in the county, at least ten days before the term of court at which application is made. # * ”
Section 605, L. O. L., provides that a writ shall be allowed where it appears that the inferior court has erroneously exercised its functions or has exceeded its jurisdiction “to the injury of some substantial right of the plaintiff, and not otherwise.” The plaintiff would not and could not be injured by the granting of a license or the operation of a ferry across the Columbia Eiver. The license granted was based' upon the following order of the County Court:
“Now at this time comes Frank Larson by his attorney, Ernest C. Smith, and petitions the court for a license to operate a ferry between Hood Eiver and Underwood, Washington, and it appearing to the court that due and legal notice has been given, and*96 that the objections filed by W. S. Chapman is a matter to be left np to Larson, and it further appearing that $5 is a reasonable license fee per year and that 5 years is a reasonable length of time to grant said license.
“It is therefore ordered that the Clerk issue said license upon the payment of $5 in advance for the first year and upon the applicant filing a bond to' be approved by the County Judge.”
Nothing is said in this order about the place where the ferry should land at Hood River, and the effect of the order would be to give a “license to operate a ferry between Hood River, and Underwood, Washington. The granting of the license would not convey any right to the use of plaintiff’s lands by Larson or anyone else without her consent. While it is true that in the plaintiff’s remonstrance there is a recital of her ownership of certain lands, there is no specific allegation that she is such owner. But assuming that she did allege ownership, the County Court has no jurisdiction to hear and determine the title to real property. The case of Canyonville & Galesville Road Co. v. Douglas County, 5 Or. 280, is in point. On page 282 of the opinion this court said:
“It was insisted by counsel for the appellant' that when the objections were filed in the County Court, that tribunal should have entertained them and passed upon the questions raised. In cases of this character the remedy is not confined to one tribunal. Much depends upon the particular remedy sought. The County Court has power in the first instance to- lay out roads, but must make all the proceedings conform to the statute. In some cases by review, and in others by appeal, the Circuit Court may annul the proceedings in the County Court, or may correct an assessment of damages or the like. The County Court, however, has not jurisdiction to try questions of title,*97 or rights arising out of the exercise of eminent domain. These matters must be tested in a tribunal invested with fuller powers, having wider jurisdiction, one in which can be administered full relief, either by injunction or otherwise.”
Also, in the concurring opinion, Mr. Justice McArthur said:
“The best test as to the right to a writ of review, laid down by the authorities, is whether the one seeking it is a party in form or substance to the proceeding sought to be reviewed so as to be concluded by the determination therein. * # I am utterly unable to conceive of any order the County Court could have made, in the matter of laying out the county road complained of, which would or could have concluded the appellant. Besides, the writ should not be allowed where the party has any other plain, speedy and adequate remedy.”
Assuming that the plaintiff is the owner of the lands in question, any attempt of the County Court to issue a license to Larson which would authorize him in the operation of a ferry to make a landing thereon would be null and void. The County Court would not have jurisdiction to make such an order, and such license would not be a cloud upon the title to plaintiff’s lands. There is nothing to show how or in what manner the plaintiff has been or would be injured in any substantial right by the granting of the license. The judgment of the Circuit Court is affirmed.
Affirmed.
