Grady v. Dundon
47 P. 915
Or.
1897
Check Treatment

Opinion by

Mr. Chief Justice Moore.

This is а 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 trespаss. 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 рossession of a trkct of land about fifty feet in width and seventy feet in length, lying south oi' *335and between the Oregon Pacific Railroad Company’s right of way and Depot Slough, in the town of Toledo, upоn which there have been erected a store and a butcher shop; that the defendants, wrongfully claiming that a county road had been laid out and established across said real property, are threatening to, and, unless restrained, will, tear down and remove said buildings, and open the pretended highway, to her irreparable injury; and prays that the threatened trespass may be permanently enjoined. The defendants, after denying the material allegations of the complaint, allege that at its regular term in May, 1867, the County Court of Benton County, which at that time had jurisdiсtion over the territory now included within the borders of Lincoln County, upon a petition therefor signed by twelve householders, appointed viewers and a surveyor, who viewed and surveyed a сounty road from a stake at the mouth of Depot Slough to a point intersecting another county road, ‍‌‌‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​​‌‍and, having made a report thereof, the court thereafter at its said term made an order establishing a county road across said premises, in pursuance of which the road supervisor opened the same, and that it had been continuously used thereafter as a public highway until 1890, when the plaintiff, without any license therefor, obstructed the same with the said buildings; that John Graham, the plaintiff’s father and grantor, was the owner of the premises in question when said prоceedings were had; that he was one of the petitioners for the road, and present at and assisted in its location, and from that time until his death, in 1883, he at all times recognized it as a duly estаblished highway, and that the plaintiff obtained her title to the said premises with notice of its location thereon. The reply having put in issue the allegations of new matter contained in the answеr, the cause was referred to E. O. Potter, Esq., who took and reported the evidence, from *336which it appears that the defendant introduced, over the plaintiff’s objection, a copy of the order of the County Court of Benton County, which recites that the viewers and surveyor had viewed and surveyed a road as prayed for in the petition, and that, no remonstrance hаving been filed or claims for damages presented, it was ordered that the road so surveyed be declared a public highway, and the road supervisor was ordered to open the sаme; but there is no finding, nor does it otherwise appear from the record, that any notice was given of an intention to apply for the location of said road. The referee hаving found for the defendants, the court affirmed his report, and dismissed the suit, from which decree the plaintiff appeals.

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 procеedings 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 оf their proceedings as prevail in courts of *337general jurisdiction: State v. Myers, 20 Or. 442 (26 Pac. 307); Bewley v. Graves, 17 Or. 274 (20 Pac. 322).”

The record offered in evidence failing to show that any notice whatever was given of the intention of the petitioners to apрly 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 vаlidity 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 vacаtion 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 alsо 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 apprоpriate 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 determinatiоn 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 procеeding which was void for want of jurisdiction. Mr. *338Endlich, in his work on Interpretation of Statutes, § 291, in discussing this subject, says: “It is a proposition too well settled by authority to admit of dispute, or call for extended discussiоn, that curative acts, especially upon matters of public concern, are to be allowed the retroactive effect they are clearly intended to have, evеn though vested rights and decisions of courts be set aside by them, so long as they do not ‍‌‌‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​​​​‌‍undertake to infuse life into proceedings utterly void for want of' jurisdiction.” The rule seems to be well settled that thе legislative assembly may, by a subsequent act, validate a departure from a prescribed procedure when it could have adopted such a course in the-first instance, but it cannot make good retrospectively acts which it had no power to permit or sanction in advance (Cooley on Constitutional Limitations, 382; Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656); and hence it cannot by a subsequent act give life to any judicial proceeding that was void for want of jurisdiction over the parties: Israel v. Arthur, 7 Colo. 5 (1 Pac. 438); Lane v. Nelson, 79 Pa. St. 407; Richards v. Rote, 68 Pa. St. 248. Without notice of some kind, the County Court can obtain no jurisdiction of the person of the owner of real property in condemnation proceedings, and any order or judgment rendered without notice must necessarily be void, and, as the jegislative assembly cannot validate а judicial proceeding void for want of jurisdiction, it follows that no rights can be predicated upon the order of the County Court declaring the route surveyed a public highway.

The evidencе 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 mаy be, we think they are rendered inoperative by reason of an adverse user by the plaintiff and her predecessors in inter*339est. The evidence also tends to show that the premises bоrder upon Depot Slough, a navigable stream, and that they are submerged thereby at high tide; that John Graham erected on the land a small warehouse, which remained there several years; that his son Joseph built a sidewalk provided with a rail and banisters across the upper end of said premises, about from two to five feet above the surface of the ground, and that this walk has been constantly maintained thereon more than ten years prior to the commencement of this suit. It is true, the evidence tends to show that this walk has been taken up a few times to permit persons to drive to the slough, but otherwise there has been an uninterrupted obstruction to travel. It may well be doubted that the road was ever opened across the pi*emises, though it appears that about twenty years ago some persons landed horses and cattle from a scow, which were driven over the same, and that some wood and hay had been landed in the same manner and hauled across; but there has not been,in our judgment, such a use of the premises as to indicate that a public road had ever been established there. The stоre and butcher shop have not been built ten years, but we think there has been such an adverse user as to bar the right of the public, and for this reason the decree is reversed, and one will be entered here perpetually enjoining the defendants from trespassing upon said premises.

Reversed.