73 P. 1031 | Or. | 1903
Lead Opinion
after stating the facts in the foregoing language, delivered the opinion of the court.
Rehearing
On Motion eor Rehearing.
delivered the opinion of the court.
Question is made as to the form of the judgment which should be entered against a county on an appeal from an assessment of damages in the matter of the location of a county road. Attention is called to some expressions in the opinion, from which it is inferred that the court intended that a judgment in personam, should be entered. The taking of private property, without the consent of the owner, for a county road,is by virtue of the power of eminent domain. The proceedings for that purpose are by analogy the same so far as it affects the form of the judgment as an action by any other corporation authorized to exercise the power. Its purpose is simply to ascertain and fix judicially the amount which the county should pay as a just compensation in order for it to be entitled to take the property for a county road, and no personal judgment should be entered against it for the amount of the award. The judgment against the county or other corporation in all condemnation proceedings is simply to adjudicate that the amount found due and assessed is a just compensation to be paid by the corporation for the property sought to be condemned, and should be so entered : Oregonian R. Co. v. Hill, 9 Or. 377; Oregon R. Co. v. Bridwell, 11 Or. 282 (3 Pac. 684); Florence, El. D. & W. V. R. Co. v. Lilley, 3 Kan. App. 588 (43 Pac. 857); City of Bloomington v. Miller, 84 Ill. 621. The petition is denied. Rehearing Denied.