55 P. 868 | Or. | 1899
after stating the facts, delivered the opinion of the court.
It is contended by plaintiff’s counsel that the public has an easement only in a county road, while a qualified fee in the street is dedicated to, or condemned for, the public use ; that a county road is laid out, built, and kept in repair by taxes collected from residents of the whole taxing district, and from property situated therein, while a street is usually established and improved by assessing the real property abutting thereon, and hepce changing a county road into a city street imposes upon the premises claimed to have been improved additional burdens, and that this supplemental servitude constitutes private property, the taking of which for a public use is prohibited by the organic law of the state, except upon the payment of a just compensation (Const. Article I, § 18); that the power of a municipal coi’poration to exercise the
The provisions of the charter to which reference has been made are as follows :
“Sec. 90. Whenever the council shall deem it expedient to open, lay out, establish, widen, straighten or extend a street or alley, it shall cause the city surveyor to survey such proposed new street or extension or line to which the width is to be changed or straightened, and make a report thereof containing a plat of the survey of such street or alley, of the portion of each lot or part thereof réquired to be appropriated for such street or alley, which report, if satisfactory to the council, shall be adopted by an ordinance embodying the same; provided, that before the adoption thereof, the recorder shall give notice of the filing of such report by publication for two weeks in some newspaper published in the City of Eugene, or by written notices posted for two weeks at three public places in said city, and at the next meeting of the council, after the expiration of such notice, present to it the said report, and attached thereto a copy*350 of such, notice, with the proof of publication or posting indorsed thereon. Thereafter, and within thirty days from the adoption of such report, the council shall appoint three disinterested freeholders of the City of Eugene, no kin to any owner or person interested in any property to be appropriated, and possessing the qualifications of jurors in courts of justice in this state, to view such proposed street or alley, and make an assessment of the damages, if any, to the respective owners of the lots and parts of lots appropriated, and to report the. same to the council. The said viewers shall meet at such time as may be designated by the council, and after having been duly sworn or affirmed to discharge their duties faithfully, shall proceed and view the whole distance of said proposed street or alley and ascertain and determine how much less valuable the premises of such owners, respectively, would be rendered by the opening of the same. If the council is satisfied that the amount of damages assessed by said viewers, or by the circuit court, upon appeal, as hereinafter provided, is just and equitable, and that the proposed street or alley will be of sufficient importance to the public to cause the damages so assessed and determined to be paid by the city, the council shall order the same to be paid to the said owners, respectively, out of the treasury as other claims against the city are paid; but if in the opinion of the council such street or alley is not of sufficient importance to the public to cause the damage to be paid by the City of Eugene, the council may refuse to open such street or alley, or extend or widen the same, as the case maybe, unless the damages, or such part thereof as the council may think proper, shall be paid by private parties.”
“Sec. 98. The common council has authority and is hereby authorized, when it shall deem it expedient, to*351 open, establish and locate streets upon the road-bed of, and upon or across any county road or public highway within the corporate limits of the City of Eugene ; and when so located or established, said county roads or public highways shall be and become public streets of said city and subject to jurisdiction and control of the council the same as other streets.”
It was virtually conceded at the hearing by counsel for the respective parties that if it was necessary to pursue the method prescribed in section 90, in order to establish a street upon the line of the county road, the means adopted were ineffectual to confer jurisdiction.
“The legislature of the state,” says Judge Dillon in his work on Municipal Corporations, 3 ed., § 656, “rep
Affirmed.