French-Glenn Co. v. Harney County

58 P. 35 | Or. | 1899

Mr. Chief Justice Wolverton

delivered the opinion.

This is an appeal from the judgment of the circuit court dismissing a proceeding by writ of review instituted to determine the sufficiency of another proceeding, whereby the County Court of Harney County, Oregon, ordered and directed the opening and establishing of a county road.

1. The first objection interposed goes to the proof of posting the notices. The affidavit of L. B. Springer makes a copy of such notices a part thereof, and shows that each of them was posted “more than thirty days previous to the presentation of said petition. ” It is insisted that this is a statement of a mere conclusion, and not of a fact or facts from which the court might determine that notice had been duly given ; that it ought to have shown when the posting was done, either by direct statement or by reference to some other date, so that the court might make its own deduction as to the length of time the notices had been posted, and thereby determine whether the law had been complied with. We think, however, this objection is obviated when reference is had to the attached copy of the posted notice, which has become a part of the proof, taken in connection with the finding and order of the court establishing the road. At the bottom of the notice the following words and figures are written, “Posted October 2, 1897,” which would seem to be indicative of the time of posting. The order of the court runs thus : “And it satisfactorily appearing to the court, from proof filed herein, that due and sufficient notice of the pend-ency of this proceeding has been given as by law required more than thirty days prior to the presentation of the petition praying for the establishment of said road, by posting notices conspicuously at the terminal points of and along the proposed line of said road, as well as on the bulletin board on the front of the county court house in Burns, Oregon, county seat of said Harney County.” Construing the record as a whole, it sufficiently appears that the posting was made at a date more than thirty days anterior to the time of the presentation of the petition : Latimer v. Tillamook County, 22 Or. 291 (29 Pac. 734); Sweek v. Jorgensen, 33 Or. 270 (54 Pac. 156).

2. It is next objected that the bond given upon filing the petition was executed by certain of petitioners without any sufficient or approved surety, and, not being such as the law contemplates, the court was without jurisdiction to establish the road. The statute provides that, upon application for a view or review of any proposed road, the court shall, before issuing an order to the viewers, require a bond to be executed by one or more of the petitioners, with surety sufficient, to be approved by the court, in such sum as it shall direct, not exceeding $200, conditioned that, if the prayer of the petitioners be not granted, the person executing such bond will pay all costs and expenses that may be incurred by reason of such view or review : Hill’s Ann. Laws, § 4074. The purpose of the bond is the protection of the county against the costs and expenses incurred, in case the court does not deem it expedient to establish the road. This requirement of the statute is not jurisdictional in its character, nor is the mode adopted the' measure of the power of the county court. The slight irregularity complained of in the execution of the statutory bond will not, therefore, invalidate the proceedings.

3. Another objection has for its basis the fact that the record does not show that the report of the viewers was publicly read on two different days of the same meeting. The court met January 5, 1898, and, the report being then read, it was ordered that the matter be continued until the next day. Thereafter, on March 10, an order was entered establishing the road, but the record does not affirmatively show a second reading of the report. The county court acquires jurisdiction to lay out and establish a county road through a valid petition, accompanied by proper notice and proof thereof : Bewley v. Graves, 17 Or. 274 (20 Pac. 322). The matter complained of is but an irregularity, and, the court having acquired jurisdiction, the record is supplied by intendment: Sime v. Spencer, 30 Or. 340 (47 Pac. 919). This disposes of all the questions presented at the argument, and affirms the judgment of the court below. Affirmed.