172 P. 488 | Or. | 1918
“The court erred in failing to decree the said assessments void; and in failing to remove the cloud thereof from the title of plaintiffs’ real property described in the complaint.”
This assignment is sufficient within the rule announced in 2 R. C. L. 163; 3 C. J. 1349, and Hayden v. Astoria, 84 Or. 205, 210, 211 (164 Pac. 729).
“Section 49. No grade or improvement mentioned in the preceding section can be undertaken or made without ten days ’ notice thereof being given by publication in some newspaper published in the City of Marsh-field, or by posting notices thereof in three public places in said city, except as herein otherwise provided.
“Section 50. Such notice must be given by the Recorder or order of the Council, and must specify with convenient certainty the street or part thereof proposed to be improved, or of which the grade is proposed to be established or altered, and the kind of improvement which is proposed to be made.”
“The said ordinance also provided for the improvement of the said street for the entire width thereof, whereas the same was and is improved only for a portion of the width and certain of the property owners owning property abutting thereon have been permitted to cause their property to be approached by a gradual slope from a point about twenty feet from the west line of the street, to the great damage of these plaintiffs and other persons owning property abutting upon said Fourth Street South.”
The answer denies all portions of the complaint which are not affirmatively admitted. The admission applicable to the foregoing allegations is as follows:
‘ ‘ That the said ordinance provided for the improvement of the said street for the entire width thereof and that certain of the property owners owning property abutting thereon have been permitted to cause their property to be approached by a gradual slope.”
Plaintiffs have offered no' evidence to sustain the issue raised by this branch of the case and rely wholly on the admissions of the pleadings. The answer does not admit that the street has been improved for a portion only of the prescribed width. It appears that the street in question is eighty feet wide. The smooth sur
We think the relief granted plaintiffs falls short of that to which they are entitled. The decree empowers the city to keep the proceeding in its present situation indefinitely. While the city cannot collect these assessments, the title of plaintiffs remains clouded by them. They interfere with the sale and encumbrance of plaintiffs ’ property. The record in the suit brought by Southern Pacific Company is not before us. If the claims of this litigant are meritorious they are based on some error or mistake for which the city is responsible. If by reason of such error or mistake the city is unable to complete the improvement called for by its ordinance and by the notice posted pursuant thereto, it should be held to have abandoned the portion of the improvement not carried out. In any event it was the duty of the city to litigate the injunction suit with the Southern Pacific Company within a reasonable time. The courts are open for the transaction of business and it was within the power of the city to press this suit to decree without undue delay. The city is also chargeable with the duty of completing the improvement promptly on the removal of the legal obstacles thereto. If the city is in default in either of these respects it should be held to have abandoned the improvement south of Kruse Avenue. If this portion of the improvement has been abandoned, plaintiffs are entitled to the cancellation of the assessments. No reason is suggested by the record which would excuse the city from disposing of the injunction suit and completing the work within the time which elapsed between