47 P. 915 | Or. | 1897
Opinion by
This is a suit by Catherine M. Grady against AlonzoDundon as road supervisor, D. P. Blue as county judge, and M. L. Trapp and J. O. Stearns as county commissioners, of Lincoln County, Oregon, to enjoin a threatened trespass. The plaintiff alleges that she is the owner-in fee, and for more than ten years prior to the commencement of this suit has been in the peaceable, open, and exclusive possession of a trkct of land about fifty feet in width and seventy feet in length, lying south oi'
Counsel for plaintiff contends that, the defendants having attempted to justify the threatened injury by alleging the existence of a public highway across the premises in question, the burden of proof was upon them to show that the road had been legally laid out, established, and opened; while counsel for the defendants maintain that the road was viewed, surveyed, and recorded after July i, 1866, and that under the act of the legislative assembly, approved October 29, 1870 (Laws 1870, p. 67), all irregularities in the proceedings were thereby validated. In Cameron v. Wasco County, 27 Or. at page 321 (41 Pac. 160), it is said: “In the matter of laying out and establishing roads, County Courts are of inferior and limited jurisdiction: Thompson v. Multnomah County, 2 Or. 34; Johns v. Marion County, 4 Or. 46; State v. Officer, 4 Or. 180; Canyonville Road Company v. Douglas County, 5 Or. 284; but when the record of their proceedings shows that jurisdiction has been obtained of the subject-matter and of the parties interested in locating and establishing a county road, the same intendments obtain in favor of the regularity of their proceedings as prevail in courts of
The record offered in evidence failing to show that any notice whatever was given of the intention of the petitioners to apply to the County Court for the location and establishment of a county road across the premises in question, it cannot be said that jurisdiction was obtained to make the order upon the validity of which the defendants rely (Latimer v. Tillamook County, 22 Or. 291, 29 Pac. 734); for the law then and now in force provides that “when any petition shall be presented for the action of the County Court for laying out, alteration, or vacation of any county road, it shall be accompanied by satisfactory proof that notice has been given by advertisement, posted at the place of holding County Court, and also in three public places in the vicinity of said road or proposed road, thirty days previous to the presentation of said petition to the County Court, notifying all persons concerned that application will be made to the said County Court at the next session for laying out, altering, or vacating such road, as the case may be”: Hill’s Code, § 4063. The power to appropriate private property to public use is derived from the legislative assembly, which may prescribe the mode of its exercise, and must provide a judicial tribunal for the determination of certain facts as a prerequisite to the exercise of such power (2 Kent’s Commentaries, 340), but the legislative assembly cannot dispense with notice of some kind to the owner of the propert}'- affected by the location of a public highway, for to do so would be a violation of the fourteenth amendment of the federal constitution, and tantamount to the deprivation of property without “due process of law.”
The question is, therefore, presented whether the legislative assembly can by an act give life to a judicial proceeding which was void for want of jurisdiction. Mr.
The evidence tends to show that John Graham, the plaintiff’s grantor, admitted, while holding the legal title, that a county road had been established across the premises, but, whatever the effect of such admissions may be, we think they are rendered inoperative by reason of an adverse user by the plaintiff and her predecessors in inter
Reversed.