Clark v. City of Portland

123 P. 708 | Or. | 1912

Mr. Justice Burnett

delivered the opinion of the court.

1. The crux of the litigation here lies in the construction to be given to section 358 of the charter in the computation of the nine-month period within which the city must collect the assessments and draw its warrants in settlement of damages and costs, under pain of rendering void its whole proceeding to open the street. The time within which an appeal could have been taken from the judgment of the circuit court began to run from February 2, 1910, the date of its rendition, and expired on August 2d of that year. Section 550, subd. 5, L. O. L. Plaintiff, not having appealed, maintains that, so far as he is concerned, the term of nine months referred to began to run at the latter date, and expired May 2, 1911. On the other hand, the defendant contends that, even as against the plaintiff here, the calculation of the nine months is controlled by the termination of all the appeals by whomsoever taken in the proceeding to open the street, so that the city had until that length of time after the right to appeal had lapsed in the last case in which to collect the assessments and draw the warrants and thus complete the appropriation of the property.

In extending a street under the procedure required by its charter, the city develops at least two classes of opponents with whom it must reckon; one consisting of those who suffer damage by the taking of the land included in the new street, and the other comprising those upon whose holdings are assessed the benefits supposed to result from the enterprise. These two classes are adverse to each other in interest. The individual in the first class will naturally be concerned in getting as much as possible for his land; while the man of the other class will strive to lighten, not only the burden of his assessment for benefits, but also that of his general taxation for any amount the city may pay directly in the condemnation of the land.

In prescribing who may appeal the charter recognizes not only these adverse interests, but also the separate appeal of the individual. Section 351 says:

“The owner (singular) or owners of any lot or part thereof so to be appropriated as aforesaid, or of the improvements thereon or any person having an interest therein or any person against whom an assessment of benefits has been made may appeal.”

In the very inception of the project, the viewers are rquired to segregate individual interests by assessing damages in favor of the respective owners whose property is taken and benefits to those whose property is enhanced in value. That the proceeding to open a street, including the incident of appeal, is not one jointly against all those concerned is further shown by the fact that in the circuit court .the jury is forbidden to reassess any damages not appealed from. The undertaking of the appellant is conditioned for the payment of the costs and disbursements that may be awarded against him alone, and not jointly with another; and they are made to depend upon whether he obtains a more favorable result or not on appeal. While the enterprise may be single in the respect that it contemplates the opening of but one street, yet, in the prosecution of the undertaking, the city is perforce compelled to deal with the individual as such. True enough it is said that any number of persons may join in an appeal; but the natural import of that language renders it applicable only to those who have interests alike or in common, and then only permissively. It would be a strained construction which would require an appellant to join with one or many interested in defeating his appeal or lessening the compensation he would receive for his land. Moreover, in this particular proceeding, instead of moving to consolidate the appeals as it ought, if the theory of its counsel is correct, the city litigated the three appeals separately, and ought not afterwards to be allowed to mend its hold, so as to make the rights of the present plaintiff depend upon the actions of those with whom he has no interest in common. The conclusion is that, not only by the terms of the charter, but also in sound reason, in the procedure involved, it is a question between the city and each individual as adverse parties litigant; and the rights of the single property holder are not to be affected by the litigation of others, unless he chooses to join with them on appeal. The proceeding is inaugurated against individuals to affect the holding of each in severalty. There is no point throughout the course where this attitude changes; and the matter must logically be carried to its legitimate conclusion as one operating against each individual, unaffected by others holding diverse or adverse interests.

Great reliance is put in the case of Shannahan v. City of Waterbury, 63 Conn. 420 (28 Atl. 611), by the defendant as sustaining its position here that all persons affected by the proposed street extension are joint parties in one proceeding, so that the city may finish its litigation with all of them before béing concluded as to any of them by the nine-month limitation mentioned. That case is distinguishable from the one at bar in these material particulars: The charter there in express words postpones the opening of the street “until all applications * * for relief against acts done in reference to the laying out of such public improvements shall be finally disposed of by said superior court”; while such language is not found in the Portland charter. Again, the Waterbury charter provided “that in case of any appeal being made from the doings of the board of compensation * * in making any assessment of damages or benefits, * * and no appeal is taken from the lay-out, nothing in said charter shall be construed to prevent said city from opening, occupying and working the same during the pendency of the appeal from the doings of said board.” It seems that the city there was authorized to take the property first and pay afterwards; while our constitution requires the compensation to be first assessed and tendered (Constitution, Article I, § 18), or at least secured, when the taker is a corporation. Constitution, Article XI, § 4. Still further, in that case, the court held that the city had no option to abandon the improvement after the assessment of damages on appeal; while here, as we shall presently point out, the city retains the option to appropriate or not, even until the warrants are drawn to pay the assessed damages. In addition to State v. Board of Park Commissioners, 33 Minn. 524 (24 N. W. 187), cited by plaintiff, the case of Stipp v. Claman, 123 Ind. 532 (24 N. E. 131), is instructive on this point.

There is some testimony in the record and much has been said about the great increase in the value of plaintiff’s property since the inauguration of the proceeding to condemn it. This, however, in our opinion, is not necessarily involved here. It ’furnishes a convenient reason for plaintiff’s suit, for, if Portland’s phenomenal progress had suddenly ceased, with a consequent slump in prices of realty, he might not be here complaining; but, so far as value is concerned, in this case, it was fixed by the condemnation proceedings. When the city would acquire property for public use by the exercise of the right of eminent domain, it is impracticable to settle upon the compensation in a day, especially if litigation becomes necessary. In the very nature of things, the process should be flexible enough to permit of its practical application. In discussing proceedings of this nature in State Park Commissioners v. Henry, 38 Minn. 266 (36 N. W. 874), the court there said:

“A reasonable opportunity may be given to abandon the proceedings, or reject the offer, if the price be found to be such as to render it inexpedient to go on with the projected enterprise. And where the property is taken directly by the State or a municipal corporation, the fact that payment is postponed for a reasonable time to make an assessment and collect a tax to pay the amount ascertained, or to enable the legislature to decide finally, or make an appropriation, does not make a law authorizing condemnation proceedings unconstitutional.”

In respect to the condemnation of the land, the object to be attained by the viewers in the first instance and by the appeal afterwards is to fix the price at which the city may, at its option, acquire the property or decline it. By positive terms, as late as the judgment on appeal, the option is yet with the city; for section 357 empowers the council at that stage to authorize the entry of the benefit assessments upon the lien docket, “if it shall deem it advisable to open, lay out, establish or change said street in pursuance of said judgment.” Negatively the option is shown to be still with the city under section 358, although the assessments have been collected; for while the opening clause says that warrants shall be drawn to pay damages for taking the property whenever the full amount of the assessments is collected, yet in the same section it is “provided that no process of any court shall issue to compel any appropriation for damages or the issuing of warrants for the same.” The terms of that and the following section expressly fix the appropriation of the property at the time when the warrants are drawn and ready for delivery.

The price having been fixed on appeal, the question then is, How long does the option of the city continue to take the property or leave it? The charter answers it in the conclusion of section 358:

“And unless such assessments are collected, and said warrants so drawn and ready for delivery within nine months after the termination of the time limited for appeal, if no appeal be taken, or within nine months from the date of the rendition of final judgment on appeal, if an appeal be taken, all acts find proceedings under such survey and view shall be null and void.”

This provision is a fixed boundary, beyond which the city cannot pursue the individual and virtually sequester his property pendente lite. It is a protection to the single owner with whom, we have seen, the city must deal. This plain provision is not overcome by the earlier clause of the section, saying that -the warrants shall be drawn whenever the full amounts of the assessments are collected, because the property holder is expressly denied the right to compel the issuance of the warrant or the appropriation of money to pay his damages. As he cannot enforce the assessment of his damages, his only resource is in the nine-month limitation, which warns the city from the beginning as to the measure of diligence it must exercise in the pursuit of its remedy. In subordination to the power of eminent domain vested in the municipality, the property holder, in a regular proceeding, is compelled to sell his land to it at the ascertained price, whether he is willing or not. But the city cannot sleep on its right to buy. Its option does not continue indefinitely. For a time, it may say to the householder: “You must sell to me your holding at such a price. Here is the warrant on my treasurer for the money. I have appropriated your land. Vacate the premises.” The charter, however, has imposed restraint on this quasi arbitrary power. There are many decisions where courts have dismissed such proceedings, independent of any statute, because the option was not exercised in a reasonable time. In this instance, though, there comes a day, foretold by the municipal constitution, declaratory in terms of what is such reasonable time, when the private owner may answer the city, and say, “I decline your offer to buy at the price named.” It may be that the nine months mentioned is too brief for the purpose; but that is a legislative question with which courts have nothing to do.

2. It is argued that, if plaintiff is sustained in this suit, it will be impossible for the city to open any street, because it cannot be expected that all the property holders will agree to it on the terms fixed by the viewers. On the other hand, to uphold the city in its contention would be to sanction a Fabian policy that would embarrass the freeholder indefinitely in the enjoyment and management of his property. If the public interest requires it, the legal voters of the municipality have power, under Section 2, Article XI, of the State Constitution, to amend the charter and devise a less cumbersome and more practical procedure, subject to constitutional guaranties in favor of owners. The individual, however, has no such power. He must endure what the statute visits upon him, if constitutional; but he is entitled to rely upon its provisions which are in his favor on the principle that statutes authorizing condemnation of private property must be strictly construed, being in derogation of vested rights of the citizen.

3. The delay in winding up the affair until after the lapse of the statutory period renders the condemnatory proceeding void, at least as against the plaintiff. He is entitled to enjoin the destruction of his estate, when attempted under a void proceeding. If the title to his property has been, so to speak, slandered or his enjoyment of it impaired to his hurt by the abortive action of the city, the law courts are open to him for a redress of his grievances.

It follows that the decree of the circuit court is reversed, and one here entered, enjoining the defendant from taking plaintiff’s property under the proceedings mentioned in the pleadings, and for costs and disbursements, but without damages. Reversed.