Lesley v. Klamath County

75 P. 709 | Or. | 1904

Mr. Justice Wolverton

delivered the opinion.

This is an appeal from the judgment of the circuit court dismissing a writ of review from the county court of Klamath County from a proceeding entitled “ In the Matter of the Petition of Caleb T. Oliver, for a Road of Public Easement.” Some questions are made as to the regularity of the appeal and of the service of the writ of review from the county court so as to give the circuit court jurisdiction in the premises, but these may be passed over, and the case disposed of on its merits, as in either view the result would be the same.

1. The first objection insisted upon by the appellants is that the county court was only authorized and empowered to entertain the proceeding upon a petition addressed to the county court of Klamath County, whereas the one in question was addressed to Hon. L. F. Willits, county judge, Fred Melhase and H. T. Anderson, county commissioners. By a stipulation of the parties, which accompanies the record, it appears that the petition was entitled “ In the County Court of the State of Oregon, County of Klamath.” Being so entitled, it is immaterial whether it was addressed to the county court or to the individual members thereof, or in either capacity, as at most it could constitute an irregularity only, not affecting the jurisdiction of the court to entertain the proceeding.

2. The petitioner prayed that viewers he appointed to view out and locate a county road thirty feet in width from the residence of the petitioner to the county road theretofore established along the west line of sections 12 and 13, township 41 south, range 10 east, so as to do the least damage to the land through which the road is located, and to assess damages, etc. The order of the court appointing the viewers followed the prayer of the petition, directing them to view out and locate a countjf road thirty feet in width. The second objection is directed to this order, because it did not leave it discretionary with the viewers to locate either a county road or a gateway. The question presented depends upon the provisions of Sections 4966 and 4967, B. & C. Comp. Properly construed, the petitioner is authorized to petition for either a road or a gateway, and it is not optional with the viewers to establish which they may choose, but they must view out the easement prayed for, and as directed by the county court, so as to do the least damage to the land through which it may pass.

3. The order appointing viewers directed them to meet at the residenc of Caleb T. Oliver, or the northwest corner of the east half of the west half of section 13, township 41 south, range 10 east, and view out and locate a county road thirty feet in width from the residence of said Caleb T. Oliver to the county road specified in the petition. The viewers report that they located the road, beginning at the said northwest corner of the east half of the west half of section 13, and running thence west 10 chains on Lesley’s land ; thence north 1.25 chains ; thence west 10 chains on land occupied by Bert Davis to an intersection with the county road. A plat accompanies the report, which indicates that the beginning point of the road is not at the residence of Caleb T. Oliver, but is distant therefrom an eighth of a mile, if not further. Upon this state of the record it is contended that the county court was unauthorized to approve the report and direct the establishment and opening of the road as laid, because, it is argued, the road does not extend from the residence of the petitioner to some public road. It was the intendment of the statute (Section 4966, B. & C. Comp.) to provide a road of public easement to and from the residence of the petitioner. This is for the benefit of the public as well as for the petitioner, and any road that does not afford this privilege is without the purview of the law. It is not believed, however, to be necessary to a practical and full exercise of the privilege that the road should begin at the very dooryard of the residence of the petitioner. It is sufficient for the purpose that it gives convenient entrance to the premises of the petitioner in proximity to the residence, so that access to and from the same by the public is assured. This is apparent when the succeeding section is read in connection with this one.

4. There is some controversy as to the distance of the residence from the point of beginning, the plat of the viewers showing it to be an eighth of a mile or more, but no measurement appears to have been made by the surveyor. Upon the other hand, the petition represents that it is near the point of beginning. The county court was in a position to determine as to this matter, it being one of fact, and, having directed an establishment of the road, we must presume that the conditions of the law have been fulfilled in that particular.

5. It is next and lastly contended that the petition was, in effect, for the vacation of the former road, as well as for the establishment of this one. The petition simply shows that a roadway was kept open, leading from the northwest corner of petitioner’s premises to the county road, but it is nowhere alleged that this was a road of public easement, or a public road of any nature, or that it was closed by authority of the county court; so that the inference is that it was but a private way, which had been otherwise closed to the petitioner and the public. The point is without force.

These considerations lead to an affirmance of the judgment of the court below, and it is so ordered.

Affirmed.