170 P. 310 | Or. | 1918
delivered the opinion of the court.
It is contended that the municipality was without jurisdiction to make the improvement, or to levy a special assessment for any part of the cost thereof upon adjacent land only, because the highway undertaken' to be benefited is a county road and subject to the control of the County Court of Clatsop County, Oregon. No reference to any of the provisions of the charter of the City of Seaside, adopted at a special election held February 28, 1912, will be made, nor will the proceedings undertaken by the council of that municipality, to initiate and make the improvement be alluded to, since it is conceded that the clauses of the organic law of that city and of the ordinances and resolutions enacted and adopted pursuant thereto were strictly obeyed, except in one instance hereinafter mentioned.
Broadway Street is represented on the map of the City of Seaside, which was received in evidence, as commencing on the east at 0 ’Hanna Creek, thence west crossing the Necanicum Biver to the Pacific Ocean.
The evidence shows that E. M. Grimes, C. C. Grimes and S. K. Stanley and the wife of each respectively, on June 29,1892, executed to the public a deed conveying as a highway a strip of land 30 feet wide, being 15 feet on each side of a center line, beginning at a point in the middle of the county road (Seventh Street) opposite the middle of the east end of the bridge across Necanicum River; thence west to the middle of the east end of such bridge; thence crossing the river to a post on the west bank thereof about 80 feet north of the west end of the bridge; thence west 200 feet; thence north 100 feet, more or less, to the intersection of the middle of Pine Street extended eastward; and thence westward along the latter street to low-tide line of the Pacific Ocean. Such conveyance was made upon condition that Clatsop County would, within a specified time, build a substantial bridge across the Necanicum River on the designated line.
C. A. McGuire and his wife on July 5, 1892, also executed to the public a deed to a strip of land 15 feet in width bordering upon Broadway Street, but as this tract is situate east of the Necanicum River, no attention need be paid to such conveyance. The 30-foot strip of land described in the deed executed by E. M. Grimes and others to the public was surveyed June 8, 1893, as appears from copy of the field-notes and a blueprint of the map thereof, which show that the middle line of the bridge across the Necanicum River and for a distance of about 150 feet from the west bank of that stream was run south 83° 50' west; thence west 200
The records of the County Court of Clatsop County show that on July 6,1892, a firm of contractors offered to build a bridge across that river for the sum of $1,630, which bid was accepted and it is conceded that the structure was thereafter completed.
By reason of the uncertainty of the point of beginning of the highway at Seventh Street, a resurvey of the line west thereof was completed April 20, 1905. Field-notes and a map of the survey were filed in the office of the county clerk six days thereafter. A blueprint of that map was received in evidence, and from an examination of such duplicate the course from the beginning point is indicated as N. 89° 58' west to the east end of the bridge on the Neeanicum River; thence N. 77° 30' W. 456.12 ft. thence N. 89° 29' W. 146.4 ft. to the former line which extending north intersected Pine Street. The County Court on May 6, 1909, ordered that the dedicátion and plat of such survey be recorded and that the bridge be changed as soon as possible.
The plaintiff, Gf. M. Grimes, his wife and others on June 1, 1908, executed conveyances, dedicating an extension of Bridge Street west of the Neeanicum River upon condition however, that the county road should be vacated. It was the purpose of these grants to give to the public a right to the use of Broadway Street, as indicated on the plat of Seaside, extending west of the stream to the Pacific Ocean. An examination of the courses' noted on the blue-print, evidencing the resurvey, discloses that commencing at the west end of the bridge the line extends northwesterly, while the street as dedicated runs west, and that one tract of the plaintiff’s land which was assessed for the improvement lies south and two other parcels are situate north of Broad
By resolution of the Common Council of the City of Seaside, it was. determined to grade and improve Broadway Street with “Gravel Bitulithic” pavement, making the necessary artificial stone curbs on each side, installing catch basins and providing for surface drainage. Warren Brothers Company, a corporation, the owners of the patent right for mixing and using bitumen and crushed rock or gravel, according to a prescribed formula for road building and surfacing, and also the owner of the copyright name “Gravel Bitulithic” mailed to the proper officer of Seaside a “license agreement” permitting any contractors having adequate machinery, to use its patent right and trademark upon equal conditions, which authority is of similar import as set forth in the case of Johns v. City of Pendleton, 66 Or. 182 (133 Pac. 817, 134 Pac. 312, Ann Cas. 1915B, 454, 46 L. R. A. (N. S.) 990). Thereafter plans and specifications of the proposed improvement were duly made and filed and notice published that the contract would be let to the lowest responsible bidder, and
It is argued that the entry of the assessment for the improvement of the street in the Docket of City Liens was insufficient to create an encumbrance upon the plaintiff’s land, and this being so, no authority existed for decreeing a foreclosure of the alleged claim. Section 42 of the organic law of Seaside declares:
“When a special assessment shall be confirmed, the Auditor and Police Judge shall indorse a certificate thereof upon the roll, showing the date of confirmation. When any special assessment shall be confirmed by the Council, it shall be final and conclusive. All special assessments from the date of confirmation thereof, constitute a lien upon the respective lots or parcels of land assessed, and shall also be a charge against the person to whom assessed until paid. Upon the confirmation*262 of such assessment it shall be the duty of the Auditor and Police Judge to enter a statement thereof in the Docket of City Liens.”
Section 43 of the charter defines such docket and prescribes that there shall be entered therein
“the following matters in relation to assessments for the improvement of streets. 1. The name of the owner thereof, or that the owner is unknown. 2. The number or letter of the lot assessed and the number or letter of the Block and the town or addition in which it is situated, or, if a tract of land, a description of the tract of land. 3. The sum assessed upon such lot or tract of land and the date of entry. 4. The time and manner in which the assessment is to be paid.”
A copy of that record was received in evidence, and as far as material herein, reads:
“Lien Docket Town of Seaside. Assessment of Bitulithic Pavement on Broadway West 1716.6 ft. Street Assessment No. 15 due and payable the 29th day of Sept. 1914, * * Gr. M. Crimes. Beginning at the intersection of the north line of Broadway with the east line of Third Street; thence east 176.47 feet to the west line of Fourth Street; thence North 86.94 feet; thence west to the east line of Third Street; thence south 86.84 feet to the place of beginning, $798.82.”
Two other tracts of land are assessed to him in the same manner, describing the premises with equal particularity and imposing a charge on each parcel respectively of $867.35 and $20.60, amounting to $1,686.77.
A certificate appended to the docket states:
“That the above and foregoing Assessment Boll No. 15 was accepted and confirmed by Ordinance No. 212, duly passed and approved on the 29th day of Septemhpr 1914 ”
“(Signed) J. L. Berry.
“Auditor and Police Judge.”
“The City of Seaside shall have power to bring suit in the Circuit Court of the State of Oregon for Clatsop County against the owner or owners of lot or lots, block or blocks, parcel or parcels of land upon which the cost of such improvements or repairs might or could have been charged or imposed, and which were benefited thereby. * * In any such suit so instituted all persons whose property is, or would he, so liable for the payment of any such proportion of the assessment aforesaid, shall be joined as parties defendant in one action, and the judgment rendered therein shall be a several judgment’m rem against each of said lots or parcels of land owned by each of the several defendants for its proportion of the cost of the improvement and costs*264 and disbursements, and the lien therefor shall be decreed upon the premises. The g’eneral laws of the State of Oregon governing suits in equity, service of summons, and other process, shall apply to any such suit.”
The trial court was thus clothed with ample authority to declare that the lien subsisted, to order a foreclosure thereof, and to direct a sale of the land. It follows that the decree should be affirmed and it is so ordered.
Affirmed.