7 Or. 397 | Or. | 1879
By the Court,
The common council of the city of Portland, deeming it expedient to extend laterally the lines of Second street, from the south line of A street to the south line of Madison street, on the eleventh day of July, 1876, directed the city surveyor to survey the same, make a plat thereof, with the portion of each lot or part of lot to be appropriated, which report having been made and being satisfactory, was adopted by the common council, by ordinance approved August 5, 1876. The respondents had a leasehold estate in the east seventy-five feet of lots 1 and 2, in block 20, continuing till January 1, 1885, and the absolute ownership of the buildings thereon. The improvements on the south seventy-five feet were completed prior to January 1, 1876, and those on the north twenty-five feet were commenced under a contract for full completion on July 5, 1876, and on August 21, the lower story was finished, and prior to September 19, 1876, the building was fully completed externally. On August 21, 1876, the common council appointed viewers of the proposed extension of Second street, of which respondents had notice. The viewers reported to the common council on August 31, 1876, and their report was adopted by an ordinance approved September 19, 1876, since which time the city has done nothing towards widening the street, collecting assessments or paying damages to property. Nor has the city paid or tendered the respondents any sum whatever as damages to their property.
In their report, the viewers assessed the damages to the buildings of respondents at nine hundred and thirty dollars; and from this assessment the respondents appealed to the circuit court. The case came on for trial on the thirteenth of February, 1878, when the jury found the following verdict: We, the jury in the above entitled cause, find the damages to the interest of the said defendants to the south half of lots 1 and 2, in block 20, to be one thousand six hundred and sixty-six dollars and sixty-seven cents; and we find the damages to the interests, of defendants in the north
Several exceptions were taken to the rulings of the court upon the admission and exclusion of the testimony of witnesses; but it is unnecessary to consider them, as the same questions are raised in the instructions to the jury which Avere excepted to by the appellant. The court instructed the jury in substance: “That the defendants Avere entitled tore-cover damages to their improvements by reason of the proposed widening of the street, as the improvements existed Avhen the ordinance, adopting the report of the vieAvers, was approved September 19,1876. Although the defendants had notice that this improvement was to be made by the city, they need not await the result of the decision of the common council between the giving of the first notice and the adoption of the report of the viewers. But they are entitled to compensation for all damages sustained by being required to alter their improvements put up during that time, so as to conform them to the widened street.”
This appeal was heard and determined under the provisions of sec. 9, act of December 19, 1865, of appellant’s charter, which is as folloAVS:
Sec. 9. “ Such appeal shall be deemed and be heard and determined, and the judgment thereon enforced, so far as practicable, in the same manner as an action at law. The jury shall víoav the proposed street or alley, the property to be appropriated and the property against which benefits are assessed, and proof of damages and benefits may be introduced by the city and the appellants; the city shall be considered the plaintiff. The jury shall assess and determine by their verdict how much less valuable, if any, each lot or part thereof, with the improvements, may be rendered by the laying out, establishing or Avidening such street or alley, and in case of persons having different estates and separate interests in any lot or part thereof, or of the improvements thereon, shall apportion the same between them, and shall
The appellant contends that the viewers having been appointed on the twenty-first day of August, and reported their assessment of damages on the thirty-first day of August, 1876, of which fact the respondents had notice, it was their duty to suspend work on the brick walls of their building, then in the process of construction, and await the conclusion of the city council in regard to the appropriation of their property; and that if they expended more money in completing the structure (then probably half complete), it was their own fault, for they had full notice that the property would ultimately be required for public uses, by the
We will now proceed to consider the alleged error in the charge of the court, wherein the jury were instructed that the defendants were entitled to recover damages to their improvements by reason of the widening of the street, as the improvements existed when the report of the viewers was adopted on the nineteenth of September, 1876. The court did not err in giving this instruction. Although the respondents had notice of the report of the viewers made on the thirty-first of August, they were- under no obligation to suspend work on the building. Like every other owner of property, they had complete control over it, and the right to improve and enjoy it, until it was appropriated for public use. The common council were under no obligation to adopt the report made by the viewers or pay for the property proposed to be taken. It was entirely optional wdth them whether they would go on with the widening of the street or abandon it altogether, and it would be unjust to hold that it was the duty of the respondents to cease working upon their building as soon as the viewers made their report, or go on with the improvements at the peril of losing all expenditures incurred by them while awaiting the
Another assignment of error is that the verdict of the jury is informal in this, that it does not make any findings of the benefits to the property of respondents. The ninth section of the act referred to requires the jury to “ assess and determine the value of the benefit and advantage, if any, such street * * * so widened may be to the respective owners,” etc. And this court held in the case of The City of Portland v. Kamm, 5 Or. 362, that a verdict in this form: “We, the jury in the above-entitled cause, find for the plaintiff,” was indefinite and insufficient, for the reason that it did not state how much the defendant was damaged, nor how much he was benefited by the extension of the street. This court further held in that case that the jury in their verdict must state the sum of the benefits and of the damages separately, or at least show the sum of the difference between them.” Tested by the rule here laid down, we think the verdict in this case is sufficiently'definite and certain. The jury are required by the act referred to “to determine the value of the benefit, if any,” etc. If the widening of said street was of no benefit to the leasehold estate of respondents, then there was nothing for the jury to determine, as to any such benefits. In their verdict they say that the damages to the interests of the defendants in the south half of lot 1 and lot 2 are one thousand six hundred and sixty-six dollars and sixty-seven cents, and the north half of lot 1 eight, hundred and thirty-three dollars and thirty-three cents, in all two thousand five hundred dollars. And further, they find that the damages over and above all benefits are two thousand five hundred dollars.
