115 P. 424 | Or. | 1911
delivered the opinion of the court.
We are of the opinion that the complaint stated a cause of suit, and that the interposition of a court of equity w;as properly invoked.
Section 63 of the charter of the City of Dallas (Sp. Laws 1901, p. 84) provides that no street improvement shall be undertaken or made without first giving notice thereof by publication for two weeks or by personal notice upon the owners of all property within the limits of the proposed improvement; and section 84 makes the above-mentioned provision applicable to sewer improvements.
“The council shall have the power and is authorized to lay down all necessary sewers and drains and ditches, and cause the cost of the same to be paid out of the general fund of the city, or to be apportioned and assessed on all the property directly or indirectly benefited by such sewer, drain or ditch. When the council shall direct the same to be assessed upon property directly or indirectly benefited, such expense and cost shall be apportioned, assessed, and collected as in sections 63 and 81, inclusive, of this act, provided in the case of street improvement; provided, the council shall not necessarily be limited to the property immediately adjacent thereto or abutting thereon in such apportionment and assessment.”
Sections 1 and 4 of Ordinance No. 112, which is the ordinance authorizing the improvement in question, read as follows:
“Sewers, with branches or laterals extending from such sewers to the property line of each lot, tract or parcel of ground adjacent to and abutting upon the streets or parts of streets where such sewers are to be laid, as hereinafter specified, shall be constructed and laid on each of the following described streets and parts of streets in the City of Dallas, Oregon, to wit [description of streets follows].”
Section 4:
“The sewer improvement provided for in this ordinance shall be completed within 15 days from the date of the approval of this ordinance and the cost of such sewers shall be assessed to the property abutting moon the streets or parts of streets where the same are laid and benefited thereby.”
“While this doctrine may be settled by the weight of authority, I must express the opinion that it often operates to produce a denial of justice. It leads to the strange scene, almost daily in the courts, of defendants urging that the instruments under which they claim are void, and therefore that they ought to be permitted to stand únmolested, and of judges deciding that the court cannot interfere because the deed or other instrument is void; while from a business point of view every intelligent person knows that the instrument is a serious injury to the plaintiff’s title, greatly depreciating its market value; and the judge himself, who repeats the rule, would neither buy the property while thus affected, nor loan a dollar upon its security. This doctrine is in truth based upon mere verbal logic, rather than upon considerations of justice and expediency.” 3 Pomeroy’s Eq. Jur. 437.
The decree of the circuit court is affirmed.
Affirmed.