King v. Benton County

10 Or. 512 | Or. | 1883

By the Court,

Waldo, J.:

The county court of Benton county, at its May term, 1881, made an order establishing a county road in said county over the land of the appellant, King, which order the appellant asks to have set aside on various grounds. It is decisive of the case that the order was made on a petition on which the court had no authority to act, because of the want of legal notice of the intended application.

It is common sense that the notice should give full information of the intended proceeding. Property owners to he affected, should he made acquainted- by the notice with the parties that seek to appropriate their property to public uses. The petitioners for a county road exercise an authority which must be strictly pursued. Only those who give notice can become petitioners. A petitioner whose name is not on the notice, has no standing in court, and cannot be heard any more than can a mere stranger. The court cannot listen to a petition signed by persons whose names are not on the notice.

In Minard v. Douglas County, 9 Or., 206, the court was called upon to decide what constituted notice. It follows from that case that.it is the petitioners — not a part of them — but those making application, and those only, who are authorized by the statute to give the notice, and, consequently, a notice which does not have the names of the petitioners making the application subscribed tfo it, is fatally defective.

■ Counsel for the respondent objected to a very strict construction of the statute, because, he said, it would become a difficult matter to lay out a road over a man’s land, without his consent. It ought to be a difficult matter to lay out a road over a man’s land against his consent. Where principles of civil liberty prevail, it is no light matter to take private property for public uses, against the will of its owner. The proceedings should have been quashed.

Judgment reversed.

Watson, C. J., dissents.