Latimer v. Tillamook County

22 Or. 291 | Or. | 1892

Strahan, C. J.

The questions made on this appeal which we deem material will be separately noticed.

The first is as to the sufficiency of the proof of notice. The affidavit recites that three of said notices were posted in public places in the vicinity of said road sought to be vacated, to wit, one each at the terminus of said road, and one posted in full view of the public on the bridge on the Wilson river, commonly known as the Freeman bridge, and one notice on the bulletin board at the court house, or the place of holding court in said county and state. It wras suggested that this proof tended to show that the two notices were posted at the terminus, but we think this is hypercritical. The expression in the affidavit is not free from criticism; but properly understood, we think it may be construed that a notice was posted at each terminus of the road. In addition to this, the journal entry in the county court recites that proof of posting notices was made showing that one notice was posted at the court house and one each at the termini of said road proposed to be vacated, and one on the Freeman bridge across Wilson river, all of which notices were in public places in the vicinity of said proposed road, and that these facts were made to appear satisfactorily to the court. We can have no doubt that the proofs on file with the findings in the journal sufficiently show that the county court acquired jurisdiction. (Daugherty v. Brown, 91 Mo. 26; Supervisors v. The People, 12 Brad. 210; Forsythe v. Krenter, 100 Ind. 27.)

The main fact relied on by the respondent in support of the ruling of the circuit court in reversing the action of the county court, was the rejection of the remonstrance filed April 6,1891. This remonstrance contained twenty-one names, and the same was stricken from the files on motion of counsel for the petitioners for the reason that it was filed too late to be considered. Section 4065, Hill’s Code, defines very fully the duty of the viewers and surveyor, as well as the county court, when the report is filed. By the latter part of the section, it is made the duty of the court, on receiving the report of the viewers aforesaid, to cause the same to be publicly read on two different days of the same meeting, and if no remonstrance with a greater number of remonstrators than there are names on the petition, (the names on the remonstrance to be confined to the vicinity of the proposed road,) or petition for damages be filed, * * * the court shall issue an order directing the road to be opened.

The report of the viewers was read the first time March 4,1891, and the second time on the sixth of April, which was an adjourned term of the county court. Conceding without deciding that this meeting in April was the same meeting at which the report of the viewers was read the first time, which, may be well doubted, the right to remonstrate continued and existed until after said report was read the second time, and was not lost at the time the second remonstrance was filed. The county court ought to have read the report a second time at its meeting in March before proceeding to consider the remonstrance then filed. Instead of following the plain requirements of the statute, however, it proceeded to receive objections to the qualifications of the petitioners and remonstrators, respectively, and was proceeding to consider the same without having read the report a second time. This necessarily put the petitioners at great disadvantage in the contest. The remonstrators knew the strength of the petition, and they knew their own strength on the remonstrance, and the oversight of the court gave them the opportunity to utilize whatever additional strength they might have in reserve, which they proceeded to do by bringing in another remonstrance. We think the right to remonstrate continued until after the second reading of the report; and though in this particular instance it may have operated as a hardship and a surprise to the petitioners, still they might have avoided it by calling for the second reading of the report in March if the court continued in session two days, which was its plain duty to have done.

There being no error in the judgment appealed from, the same must be affirmed. '