72 P. 797 | Or. | 1903
delivered the opinion.
This is an appeal from a judgment of the circuit court for Union County dismissing a writ of review. The petition for the writ, omitting the title, prayer, subscription, and verification, is as follows :
“Now at this time comes the above-named plaintiff, E. Fisher, and by this, his petition, shows to the court and alleges: That the plaintiff resides in the vicinity of the county road hereinafter described, and is one of the remonstrators against the closing and vacation of the same; that heretofore, to wit, on the fourth day of April, 1900, one T. R. Monk and some twenty-five others made application by petition to the honorable County Court of Union County, Oregon, sitting as a board of commissioners for the transaction of county business, for an order of said county court vacating a certain portion of the county road described in said petition, as follows: ‘ To vacate all that part of a certain public road as follows: Commencing at a point about 50 rods west of the S. E. corner of Sec. 2, Tp. 1 S., R. 38 E., running thence in a northwest dir. and*227 intersecting a Co. road which runs N. and S. on a £ Sec. line about 60 rods south of the N. W. cor. of E. of Sec. 2, Tp. 2 S., range 38 E., W. M.’; that said petition of said T. R. Monk, et al., did not specify the beginning, intermediate, and terminal points of the road proposed to be vacated, and no notices were posted in the vicinity of said proposed road, or upon the courthouse, as required by law, stating the time and place when the said T. R. Monk et al. would make the application for the vacation of the road described in the petition ; that the said T. R. Monk et al. did post a notice on the courthouse, and made proof that the same notice was posted in the vicinity sought to be vacated, but the road described in said notice was not the same road described in said petition; that thereafter, to wit, on the seventh day of April, 1900, this plaintiff and about 58 others filed a remonstrance in the county court, remonstrating against the closing or vacation of the road described in the petition, and filed proof that each of said remonstrators was a householder residing in the vicinity of the road sought to be vacated, which remonstrance contained more names than there were petitioners on said petition ; that thereafter, to wit, such proceedings were had in the county court as that said court appointed viewers and a surveyor to view and survey said county road, and report to the court whether the prayer of said petition ought to be granted; and on the third day of September, 1901, said viewers filed their report, recommending that a certain piece of county road described in the surveyor’s field notes and plat attached to said viewers’ report be vacated, but the road described in said plat and field notes is not the same road described in said petition or in said notice ; that, notwithstanding said defects, such proceedings were had thereafter in said county court that the said county court, by an order made on the sixth day of September, 1901, overruled and denied another remonstrance filed in said court by this plaintiff and 64 others against the vacation of said county road, and ordered that the portion of county road described in said surveyor’s plat and field notes be vacated and closed, to the injury and damage to the substantial rights of this plaintiff. And plaintiff alleges the following errors committed by said county*228 court touching the vacation of said road, to wit: The court erred in entertaining said road petition; (2) the court erred in overruling said remonstrances; (3) the court erred in appointing viewers and a surveyor to view or survey said road proposed to be vacated ; (4) the court erred in confirming and adopting the report of said viewers and in ordering said road to be closed and vacated; (5) the court erred in not dismissing said proceeding for want of jurisdiction.”
A writ of review,, allowed by the judge of the circuit court for Union County, issued and directed to G. W. Benson, clerk of said county, and served upon T. R. Monk and A. J. Colt, petitioners for the vacation of the road, was returned to the court issuing the same, with a certified copy of the proceedings in question annexed thereto, including the road petition, the descriptive part of which is as follows : “To vacate all that part of a certain public road as follows: Commencing at a point about 50 rods west of the S. E. cor. of Sec. 2, township 1 S., R. 38 E., running thence in a northwest dir. and intersecting a Co. road which runs N. and S. on a i Sec. line about 60 rods south of the N. W. cor. of E. i of Sec. 2, Town, [here appears the figure 2, over which has been made a figure, and it is difficult to determine whether it was intended for 1 or 7] S., range 38 E., W.M.” The notice thereof contains the same description, except that the places of beginning and termination are stated to be in township 7 south. The original petition and notice were sent up with the transcript, and it seems from an inspection of such notice that the copy of the number of the township as “7” is correct, though it may have been intended for “1.” Proof of the publication of notice having been made, a remonstrance was filed, but, the persons subscribing their names thereto having failed to state that they were householders, or that they resided in the vicinity of the said road, it was overruled. The plaintiff’s counsel having petitioned the county court
It is contended by plaintiff’s counsel that a material variance exists between the description of the road in the petition and that in the notice, by reason whereof the county court never acquired jurisdiction of the subject-matter, and hence the circuit court erred in rendering the judgment complained of. The defendant’s counsel maintain, on the other hand, that the petition for the writ of review does not state facts sufficient to entitle plaintiff to the relief demanded, in that it fails to show that he is specially injured, or even affected in any manner, by the vacation of said road; that the writ should have