69 P. 34 | Or. | 1902
Lead Opinion
after stating the facts, delivered the opinion of the court.
Two questions arise: first, whether the plaintiff could safely and lawfully draw her award from the fund thus created by the city; and, second, whether the appropriation of the fund and the issuance of the warrants (they being in excess of her award) were operative and effective as the final and requisite acts under the charter to accomplish the appropriation of her land.
The estoppel must proceed, if at all, from a ratification of the sale on the part of the plaintiff by acceptance of the purchase price, or part of it, knowing the sale to be invalid. She has done nothing to mislead the purchaser, or to cause him to pursue a different course from that which he would otherwise have done, because of which it would be inequitable to permit her to assert her rights. The city is, however, in her debt, and proffers the fund thus accumulated in payment thereof, the city its equivalent. The city is under no obligation to refund to Noble, as he has no recourse, having purchased at his own risk; and why should a disbursement of the money to plaintiff, as a creditor of the city, work a ratification of the sale in his favor ? She takes nothing from Noble, either directly on indirectly, in satisfaction of anything that is her due from him, or, in any sense, in recognition of the purchase; and it is of no consequence to her from what source the fund is accumulated, as long as she does not become a particeps criminis to an unlawful or wrongful act herself, and so long as the purchaser takes with his eyes open, and she does nothing to induce him to part with his money, or does not enter into collusion in any way with the city whereby to raise the fund.
His case under the charter differs from that but slightly. The appropriation of the money must be made by the common council, the fund created, the -warrant drawn, and the money actually in the fund, before the appropriation of the property for public use is accomplished. 'When all this is regularly attended to, there is nothing left, except for the owner to take down the amount of compensation. There would seem to be no contingency or hazard attending the matter. The city plights its faith for payment; and, not only this, it sets aside a fund, supplies it with means, and directs the owner, by warrant, to take out of it his award. We have treated of the manner in which the money was put into the treasury, and have seen that plaintiff could make no valid objections on that account. That the appropriation and the warrants were for more than plaintiff’s award for damages, with costs added, and therefore for more than she was entitled to, do not conflict in any degree with the object of the charter to secure to her the compensation first assessed. It is amply secured, as she may go and take of the fund all of that to which she is entitled, and there is nothing to deter and hinder her. This be
Rehearing
On Motion for Rehearing.
delivered the opinion.
4. By the petition for rehearing herein it is insisted that the city, by its unlawful act in selling the property of the appellant, caused an additional expense to her of $100 or more, arising from the litigation made necessary in procuring the annulment of the sale. But that expense bears no relation to the present controversy. The cause of suit giving rise to it is entirely separate and distinct from this. Besides, having prevailed therein, it must be presumed that she has been justly and fullly recompensed for her costs and disbursements, together with all damages sustained by the city’s wrongful acts in that direction. So that there is no possible claim by which she should be reimbursed in that sum, nor does it afford any reason why the city should not prevail in this proceeding. The petition for rehearing is therefore denied.
Rehearing Denied.