106 P. 331 | Or. | 1911
Lead Opinion
On Motion to Dismiss.
Opinion by
This is a motion to dismiss an appeal as to some of the parties. The defendants, the city of Portland, a municipal corporation, W. Scott and T. McDougal, partners as Scott & McDougal, and M. J. Connelley, having been perpetually enjoined from trespassing on the plaintiff’s land and required to pay him damages arising from the injury thereto, jointly appealed from the entire decree. The city of Portland alone filed a brief, and because its codefendants did not join therein or file a separate brief this motion was interposed.
Denied.
Opinion on the Merits
On the Merits.
delivered the opinion of the court.
Considering the complaint in its entirety, we do not think it states a cause of suit against the city of Portland. It sufficiently appears from the complaint that the contract was let in the regular manner and without reference to what disposal should be made of the surplus dirt obtained during the cause of excavation. Nothing is alleged showing that the city contemplated or authorized the alleged unlawful acts of the other defendants, who were independent contractors whom the city had a right to expect would carry out their contract in a lawful manner. The pleading is somewhat vague, but, tak
Under these circumstances the decree of the circuit court will be affirmed as to defendants Connelley and Scott & McDougal, and reversed as to the city of Portland, but, as the city has seen fit to thrust itself into this controversy and assist the other defendants when it should have stood neutral between the parties, it will not be allowed to recover costs in this court or the court below.
Affirmed as to Connolley, Scott & McDougal.
Reversed as to City of Portland.