*1 204
Argued February 11, 1958, petition rehearing June affirmed petition April 15, opinion denied to correct April 29, denied 1959 v. MILL & LUMBER MOORE COMPANY FOSTER 2d 39 P. 2d 810 P. *3 argued Tongue, the cause Portland, III, H. Thomas E. brief were William appellant. him on the With Bay. Harrington, Coos F. Robert Walsh argued the cause for Portland, Wiener, Norman J. *4 H. him brief were Frederic on the respondent. With King, Miller, and Beach, Gold Jr., Starkweather, Portland. Yerke, Nash & Anderson, Before Chief Justice, and Perry*, Rossman, Lusk, Justices. Warner, McAllister** Sloan, ROSSMAN, J. by appeals
These are two the defendant, consoli- through stipulation parties, dated from the two judgments by rendered the circuit in court favor of plaintiff in the condemnation actions. actions pursuant through were instituted 376.505 ORS only and the difference them between is the 376.540, identity they property of the Each of real affect. the challenged judgments appropriated plain- two by land tiff an feet over owned wide, easement, logging right way for for a road defendant, the plaintiff to construct. The two roads, wishes which point and will start at the same each will be if built, longer or road known as an Willow extension, fork, plaintiff and which owned which road is Creek point where the two now terminates at extensions long. begin. a mile Each fork will about If will constructed, are Willow will the extensions Creek body places at two timberland 5500 acres enter recently acquired plaintiff. One extent required plaintiff pay judgments for the ease- required and the other that action $2,700 ment in subject payment of the cases the area In one $2,300. approximately acres and in the 18.7 the easement appropriated land lies western acres. The other 20.1 county principally Curry suitable foresta- and is private corpora- grazing. is a tion under laws of this state. was formed tion logs annually, require feet of million mills Its part purchased market. After of which [**] [*] Chief Justice Chief Justice when -when the this decision was cause was argued. rendered.
209 necessity had been resolved in favor of issue by judge, question plaintiff the trial as to by payable defendant was determined amounts juries. defendant-appellant The the verdicts of the presents assignments of error. thirteen assignment first of error reads:
The finding holding and “The Court erred ‘necessity’ by appropriation for the there exists plaintiff way rights log- proposed of the ging lands.” truck road over the defendant’s assignment The fourth which we will con- error, concurrently with the reads as follows: first, sider denying following erred in mo- “The Court by tion defendant: request jury . . . that a trial ‘We be allowed including in these cases on all issues, the issue necessity.’ replied: to which the Court ”
‘Let that motion be overruled.’ assignments just A determination of the of error requires quoted to us consider facts which we will now briefly. plaintiff set forth The has a mill in Bandon Empire. and an affiliated mill in It owns timberlands vicinity general August, of the two mills. in the In acquired an additional tract of timberland contiguous already when combined with tracts which, containing formed a block of owned 5500 acres it, standing plain- million feet or more of timber. 100 secure from tiff’s desire to the tract as much as 50 annually bring logs feet million to its Bandon on December resulted, mill 26, 1956, institution two actions under consideration. Each action already sought, we have an indicated, easement parts of land owned across defendant so that can construct two or extensions, branches, thereby of the Willow road and reach the timber- Creek land we have mentioned. The tract is about miles 28% consisting southeast of Bandon if a route taken (a) proposed (b) either of the two extensions, Highway (c) Willow Creek road, TJ. S. from point where the Willow Creek connects with Highway along it. S. 101 runs the coast north and TJ. through comprising south Bandon. tract *6 Curry county, acres lies in a area in mountainous approximately High- seven miles or more east of TJ.S. way Highway general one 101. As leaves 101 in the vicinity of tract and the 5500-acre heads east foothills describing are encountered. A in the 5500- witness, cup acre stated that it “lies more or less of a tract, shape,”'that perimeter by is marked a is, its series of ridges. In near or the northwest corner of the tract ridge part consists in of an elevation known as high. Edson feet Butte, 2,786 The Willow Creek road vicinity. reaches summit of feet in that 2,200 Toward ridge the southwest corner of the tract the anis eleva- Elephant high. tion known as feet Bock, 1,512 vicinity, road Plum Tree which we will later height Logs reaches feet. secured describe, 1,200 way making from the their tract, 5500-acre part Highway will to use in Bandon, have 101 TJ. S. or which, as we have seven miles more said, west of Accordingly, log tract. trucks will 5500-acre ridge in the northwest have to cross the or southwest tract. corners of the 5500-acre northwest corner, In its 5500-acre tract abuts by defendant land owned located in Sections W.M.] and 27 [T.31S., R.14W., 22, 28, lie be tract and the eastern tween the 5500-acre end of Willow eight long, latter, road. The and a half miles Creek by plaintiff logging purposes. was constructed private plaintiff It is a road and the is its owner. The begins Highway road on U. a half mile S. 101 about community north of the known as after Denmark, and, pursuing southeasterly direction for four and a half substantially takes course miles, maining east for the re- length. four miles of its Its eastern end is in the west line of Section which we have stated is owned the defendant. Thus it ends a mile or so part west of the nearest of the 5500-acre tract. The proceedings seeks in these two condemnation easements which will it to enable extend the Willow parts Creek road in two forks across of Section 22, 23, plain- 26 and 27. If the two access roads are built, bring logs tiff will be able to which the 5500 acres produce will High- down the Willow Creek into way and on to its Bandon mill. challenges
Since the defendant the Willow Creek plaintiff’s purpose, road as suitable to the we will take notice of the evidence which discloses the road’s fitness. Creek road is a Willow mainline road and was plaintiff’s superintendent,
described *7 Walter as an “all-weather Miller, road.” He “We added, have logged year upon round” it. The same witness “adequate declared that the road has turnouts and passing Apparently areas.” it was well constructed. plaintiff plans upon to haul it to Bandon from logs per day. 5500-acre tract 100 loads of For that purpose according plain- an all-weather road, tiff’s evidence, essential. The Willow Creek road grade per has an adverse of about six to seven cent at place, per one but a witness “Six to declared, seven cent * * * very days. much adverse isn’t to a truck now weighed Nothing heavily.” to be Another witness, Bay manager Ruhmann, William forest for Coos Company, Timber testified the Willow Creek “nothing eight per road has cent” excess of adverse grade. per He a added that six cent “is considered grade.” percentage reasonable than that adds More materially operation. to the cost of large part, upon Willow Creek lies road, high ground comparatively and is, therefore, free of drainage problem which the witnesses declared rainy region is a difficult one in the with which this passes through place case is concerned. The road a length about a half mile in in which slides have oc- privately curred. Since the road is owned, it is not subject regulations govern speed to statutes and weight Being private and the of the load. road, log truck drivers who use it do not encounter the log upon public hazards which confront truck drivers roads. One of the who stated witnesses, that the chief advantage of the Willow road Creek is the fact that private thoroughfare, explained, it is “All lumber companies private keep look for route to out of the way public.” of the
The two extensions to the Willow Creek road which plaintiff seeks to construct were identified as the upper upper road and the lower road. The road, ground, grade will staked have maximum per a half quarter cent for a six distance of a grade contemplated aof mile. The lower road mentioned was not witnesses. will now review the
We evidence which describes says defendant road that the should county [public] highway, use. It is the known as the about four road, River miles south of Sixes the Willow extending easterly Highway from Creek 101. Roughly, parallels road. an all-weather It *8 although part of road, Willow Creek for a substantial length its it has more than the curves Willow Creek very- sharp, road. Some its are and curves it is places. narrow in The eastern terminus of the Sixes road is in east of the Powers, Eiver 5500-acre tract. The Sixes Eiver road does enter the 5500-acre dependent tract but lies south it one to three miles, particular point the course of the road at irregular shape tract. 5500-acre In order logs by- to haul from the tract 5500-acre Bandon way necessary of the Sixes Eiver it will be road, to have road from the tract to the Sixes acquired Eiver road. If an access road that land is logs and the are taken down the Eiver road to Sixes Highway 101 and then on to Bandon, the distance will approximately eight be about 37 or miles, miles more than if the Willow Creek road were used. testimony given by the aforementioned Walter presents following impression
Miller of the Sixes Eiver road: “* * * county the Sixes Eiver road is a
subject to shut-downs, slides; there are adverses county dangerous. on the and it road, is There people living are up in that area that travel down the road. deal of
great longer congested “Danger. # [*] haul; # road and it takes truckers time; it The second eight-mile a narrow road one, difference in longer backing up and much hauling and a operate and the time—takes more trucks to remove the same amount timber. And the fact your eight-mile that, would make difference, trip, miles sixteen round but I think the rate could computed you your not be same would on you adequate road, Willow Creek where have turn- passing outs and areas.
washouts with on the spots, “The # passes *9 # main Sixes [*] through road River road river, itself and gorges, which has numerous we are and it has slide areas also it is not confronted subject to narrow Creek road.” on the Willow plaintiff’s testified forester, Manford Martin, areas road has slide that the Sixes River you “you are tell in the wintertime whether can’t get up going not. with a truck or to back be able times, four different winter three or fact, In last get particular, were unable in we three times up of slides work on account River to Sixes Jeep you couldn’t even drive a lot of times it.” over acknowledging that the Willow after witness, through passes swore that area, slide road
Creek along preceding its had occurred winter no slide referring length, road, to the Sixes River and then, many [slide areas] ten times as “there are said that River road.” on the Sixes plaintiff’s
According whose testi- witnesses, mony challenged, operation appear does not to be log proposes to em- trucks, which removing logs ploy from the 5500-acre would tract, capacity and constitute serious overtax the road’s danger. busses use the Sixes source of School River road. grades, they road River has adverse but
The Sixes consequence than those on the are of less Willow Creek testimony of Mr. afore- However, Martin, road. rising grade of a indicates that the effect mentioned, thereby higher if the road is ameliorated achieves superior drainage gained. ground He where swore good gained drainage Willow road Creek that manner.
We have mentioned the fact that the Sixes River approaches no nearer than a mile to the 5500- plaintiff possesses log acre tract. The some of the land between tract and the the 5500-acre operations upon River road. In its Sixes those inter- vening it bnilt four roads tracts, access known as Elephant Plnm Tree Rock Mast road and road, road, Palacea Creek road, lead into those tracts from only the Sixes River road. Of the four the Plum Tree road enters the tract. It 5500-acre farthest west Elephant of the four. road is Rock two miles farther east and the other two are still farther east. All four were described witnesses “summer” *10 rainy that roads, is, unsuited for substantial use in the season. The Plum Tree road received more mention during possible trial the than the other three as a route logs for from taken the 5500-acre tract to Bandon. According Miller, to it steep sliding “is a crooked, road built on land and * * *
through swamp. very some It narrow turn-outs—quite road; no a distance between turn- outs.”
Rnhmann testified that the Plum Tree conception
“wasn’t built with the idea of a modern logging. I doubt that the road was built for logging purposes place.” in the first agreed inadequate Both he and Miller that it is to Elephant handle much traffic. The Rock road is, part, upon area, slide and a witness described it as handling logs unsuitable for which the 5500-acre produce. tract will The other roads two received little by attention the witnesses. The has used logs bringing none of the four roads for from the 5500- apparently acre tract to the market. The defendant agrees that the cannot Plum Tree road be converted it relocate
into suitable road where it now lies. To place satisfactory require an and condition will expenditure of $45,000.
Wayne Spencer, plaintiff’s was called forester, by an adverse to stand the defendant as the witness expressed “it would be belief witness. He by logs” tract from the to move 5500-acre feasible that it would but route, Plum Tree and Eiver Sixes standpoint advantageous of ex- not be “as from safety congestion pense so.” The wit- and and do with the been familiar nesses far mentioned had so many years. area and a consultant forester Porteous,
Norman W. unacquainted with the was defendant, for the witness testimony. gave he his a week before two roads until opinions part he offered He based grades computation distances made of costs, part of the record. Mr. did become others which way proper expressed that “the the belief Porteous log” Eiver tract was Sixes 5500-acre According that route “would the use of him, road. practical,” “I mean on added, but be both feasible assumption the road made, have that, which I up” By up.” be fixed the term “would would be fixed county improve would meant Mr. Porteous carry plaintiff’s volume enable it to the road and *11 plaintiff to make the business, of or authorize improvements. The witness needed alterations possibly Hnder in mind 376.305 376.390. had OES assumption be Eiver road would an the Sixes adequate, Mr. Porteous estimated that the rendered logs bringing from the 5500-acre tract cost of approximately the whether the same would be Bandon were road used. We Eiver or Willow Creek Sixes testimony: following quote from his county Assuming that wouldn’t enter “Q county such a into road contract and that the Sixes your improved, River judgment is it still road wouldn’t apd practical the most feasible route removal of timber is out from the 5500 acres the Sixes River Road?
“A No.” record contains no indication as to or whether county improve plaintiff not the will or authorize the improve the Sixes River Mr. road. Porteous acknowledged private ownership aof road log hauling important which is used for an factor in its favor. He said that in the instant case he did give weight.” that circumstance “too much given descriptions
After the witnesses had their they the two roads of which we have taken ex- note, pressed views as to or not whether it is essential that plaintiff acquire the easements which it seeks. Miller,
Walter aforementioned, testified that proposed road and Willow Creek its two extensions bring constitute the most feasible route to to Bandon logs from the 5500-acre tract. He swore that the saving use of that road would effect for the per or a thousand, total of $2.00 if the $200,000, yields tract According million feet. to his un- testimony, hauling logs contradicted the cost of con- your” logging expense, “a stitutes third of and an item “definitely significant. or $2.00 thousand is $3.00 expressing In a belief that the Willow Creek road is bringing logs the feasible route for to Bandon the ob- tained from the 5500-acre tract, Miller declared, just comparison.” following “There is no ais (1) succinct statement of the basis his belief: saving (2) the fact that $200,000; the Willow Creek eight a half miles shorter and would re- quire (3) the use fewer trucks and men; since the *12 operation
public road, cannot use the Willow Creek (4) road Willow it is less Creek hazardous; largely free and is fewer curves has better surface, private, (5) road is since the Willow Creek slides; regu- imposed speed publicly and load it is free from lations. have testi- mentioned, whom we Ruhmann,
William is the most feasible.” “The road fied: Willow Creek practical and as the most economical He deemed it (1) gave as reasons: feasible. He Ms well as the most (2) private if chief reason”; “that is the it is a road, be over- road were used “would River Sixes operation upon expense (3) and loaded”; per thousand less road would Creek Willow $2.00 River road. than on the Sixes expressed aforementioned, the be- Manford Martin, is the feasible, most that the Willow Creek lief practical route for the removal of the and economical Preceding logs to Bandon. tract from the 5500-acre opinion. paragraphs of his The witness the bases state bring possible “it but feasible” is testified explained logs He River road. over the Sixes southerly drainage toward entire area resulting slides and unstable with the Sixes River witnesses had men- that he other soil conditions tioned. opinion already taken note ex- have
We left have unmentioned wit- pressed We Porteous. supplied data that other witnesses em- who nesses ployed. foregoing suffice a review of the will proceedings transcript of the trial
evidence. accompanied pages ex- numerous covers foregoing Obviously, review omits details. hibits. testimony given After had re- the witnesses preceding paragraphs, judge viewed in the the trial ruled: *13 necessity appears “There to be reasonable for holding
condemning this land. Let the of the Court finding of fact is that, there reasonable neces- sity plaintiff for the to take this land.” judge findings later trial Still entered of fact from following which the is taken: necessity appropria- “That there exists for the by plaintiff way right tion of an of easement of logging way for a truck road or over that road,
part by of the lands owned defendant hereinabove particularly port plaintiff described to enable trans- products said raw of the forest to market. apply “That the use to which seeks to strip the fendant is a of land over and across the lands of de- public use under the Constitution and Oregon, talcing laws of the State of and that the strip necessary of in said easement said of land is to such use.” challenging finding
The defendant, in made by judge, argues: the trial
“By the constitutional amendment of 1920 and adopted following the statute in court 1921, de- holding cisions statutes for condemnation previous private logging roads to be unconstitutional, it provided was intended and that condemnation private logging permitted lands for roads should be only ‘necessity’ where such roads were in up’ sense that the timber owner was ‘bottled logs had no other access for removal of to market.” support jury, In of his contention that a and not judge, the trial should have determined the issue of necessity, the defendant states: Oregon “The Article Constitution, I, 17, Sec.
provides: by jury ‘In all remain inviolate’ civil cases of trial shall provided people Oregon further and in 1910the by VII, 8, to Article Sec. amendment constitutional that: controversy value ‘In at where the law, actions twenty right of trial dollars, shall exceed ”
by jury preserved . . .’ shall be defendant concedes *“* * Oregon that the established rule agency proceedings an in condemnation proceeding public purely as a use—such for a state Highway to condemn land Commission State necessity question public highway—the for a * * by the court to be determined Oregon, § as amended 18, Article I, Constitution as follows: reads public property shall not be taken “Private any particular man de- services of nor the use, except just compensation; nor *14 manded without compensation without such state, case of the the provided, tendered; and that the use first assessed ways necessary promote and to of mine or farm the roads of all products transportation of the raw necessary development the and wel- to forest is or public declared use.” state and is fare of the p. Oregon 5. 1921, Laws again was amended so as to add section 18 In 1924 waterways for which facilities condemnation to the conducted. could be § amendment was made to Art I, 18, the 1920
Before Logging Company, v. 71 Anderson Smith-Powers Or invalid a statute which author had held 736, P 276, 139 private property private log taking of for ized the taking by ging decision ruled that road. The com only permissible public pulsory purchase for a use. is pronouncement making the decision declared: its After changed “If in this state so as conditions have change necessary to make it have our Con- to relating taking property for stitution, remedy amending private proper the lies in uses, states.” as has done in several Constitution, been Then came the 1920 amendment. The amend- by making phraseology it ment read: altered “* * * ways waterways roads, use of all and necessary products beneficial use or promote transportation to of the raw water
of mine or farm or forest or for drainage necessary to de- * * velopment and *.” welfare of state adoption Following Oregon of the 1920 amendment, Laws 1921, ch was the title enacted, follows: “Relating log- to the condemnation of lands ging railways, necessary ways, roads or or con- promote transportation
venient to or removal products of raw of the forest.” appears pro- Section 2 of the as act, ORS 376.510, : vides “Any person, corporation such firm or has the
right acquire reasonably all own lands neces- sary logging way promote for the or road the of the transportation logs products or the raw person, corporation forests. If such firm or agree unable to with the owners of land over logging necessary, which the railroad is as to compensation paid amount be such therefor, person, corporation firm or has the to con- necessary logging demn so much the land for the may ways necessary or railroad, for the may thereof, use nation in the maintain the suit for condem- county circuit court wherein the *15 lands are located. land No shall be taken until compensation has been assessed and tendered.” Logging Boeing, Flora Co. v. 43 F2d sustained 145, validity just quoted against the charge of the act process that it the due violated clause of the federal 222 Barclay, Bay Logging v.
constitution. Coos Co. recognized exer the act as a valid P2d 672, 272, Or power Bark also, of eminent domain. See, cise of the validity ley of P2d 918. v. 180 Or Gibbs, Corpo again recognized Oregon Mesabi act the was Corporation, 166 F2d Lumber ration v. D. Johnson C. 997. assignment proceed directly fourth
We now upon a he recalled is based which it will error, necessity have issue of should been contention that the by judge. by jury and not In the determined take that contention we note that consideration of excerpt of his brief which we the defendant proceed- acknowledges quoted that in condemnation Oregon’s agencies question ings by conducted one by necessity the court before the is determined jury impaneled. grants
Accordingly, defendant that if the state purchase high- by compulsory sought to take for state strips appeals, ways involved in these the issue the two necessity by judge determined before would be why jury impaneled. The reason the state could was strips highway purposes for is that taken the have thoroughfares public (a) is deemed use of land employed § public in Art. term I, 18, “a use” property generally (b) privately can owned public “a under eminent domain for the state taken necessity provided is established and the use” process § are met. of law Article I, 18, of due demands way permits log- for a have seen, as we private party through acquired ging to be road thereby places power domain of eminent the logging category public thorough- as a same public use affects the element case. so far as the fare Highway seeks establish Commission When *16 highway pro- a it is not favored a constitutional declaring thoroughfare plans vision that the which it represent public to build “a will use.” ex rel v. State says: Hawk et al, 105 Or 208 P 319, 709, always question: public “The a What is use? is paid legis- one of law. Deference will be judgment expressed pro- lative as in enactments viding appropriation property, for an of but it will not be conclusive.” City Eugene to like
See
effect
v.
Johnson,
Or
acquisition
rights
If the defendant’s contention and necessity judge, issue not the must determine the of private party the condemnor, cases in a is this which favor or both court will have to resolve in his one following propositions: proceedings (1) Eminent domain are within the says purview § of Art which “In all civil cases I, 17, by jury right remain of trial shall inviolate” or § is to similar effect. VII, amended Art which 3, within (2) we will which have to re- statute, Some seek, necessity by quires shall be tried a that the issue jury. provisions upon which the constitutional de-
The depends § are and 17, Art amended Art I, fendant § no statute which cites directs that the 3. He VTI, necessity by jury. determined a shall be Be- issue provisions considering the constitutional fore give Application will attention possible we statutes from which the 322, 225 P de- 111, Barton, Or governed by quotes. not was That case fendant by at bar but the case which controls OKS statute authorize the establishment to 376.150 37.6.105 thoroughfares county minor court of the ways gateways necessity. or called are sometimes procedure of those for establishment roads The whereby right materially from that different may expropriated. logging way provided legislation which controlled the Barton case appeal for an to the circuit court from an order of county report court which confirmed of road and created a but did not outline the viewers road, govern procedure appeal. which should In the jury impaneled upon appeal. In Barton was case, question court no was raised this as whether or provision a statute or constitutional authorized the jury. part use of the of the decision which the merely defendant mentions held that an instruction, challenged appellant, correctly stated law. § come now I, We to Art amended Art § recognized 3. This like VII, court, has others, that con provisions just stitutional such as those cited assure by jury trial the classes of eases wherein the customary was at the time the constitution was adopted early but do not extend it into other areas. An decision to that effect is Tribou & McPhee v. Strow bridge, by jury “Trial Or 156. shall remain inviolate” expand does not jury the classes of cases in which trial merely was held available, but case, *18 preserves it was when the constitution was adopted. Bridge Dean v. The Willamette 22 Co., Or 167, expressed 29 reiterated 440, P the views in the Proceedings Tribou case. in eminent domain are not jury employed common law actions in which trial was at common law. Crane v. Hahlo, 258 142, US 42 S Ct p L66 ed 50 214, 514, Juries, CJS, 767, §60, and 18 p § Am Eminent Jur, Domain, 979, 337.
City Eugene v. Johnson, 183 Or 421, 192 P2d took note that the 251, of eminent domain has by legislative only been entrusted action, to sub- “private corporations divisions of the but to state, also public devoted to uses” which are in character. The decision held:
226 necessity property tailing
“The for the is fact question to be decided of law for the court and not one of
by jury, if it is made an and, issue, jury it should be settled the court before the impaneled.” early cases of Kendall v. 8 Post, 141, Or
Branson v. P show that the Gee, 462, 527, 25 Or provision by jury constitutional for trial does not proceedings. extend eminent domain to Those decisions legislature ruled that the is free to entrust the trial any impartial in eminent domain to issues cases provided process the demands of tribunal, due opportunity such as notice to owner and an law, respected. to be are The Branson heard, decision said: judge, jury, “A court or with or without a is an im- partial It tribunal.” continued: “* * * county In the case at bar the court— county
composed is the tribunal authorized judge commissioners-— law to determine and damages, engaged assess the when and, in the judicial transaction of such business, exercises regarded impartial functions, and must be as an tribunal.”
It took note the Kendall decision held: * *
“* party aggrieved by the acts of a supervisor who had taken.stone from his land to highway, repair the must resort for redress to the county determine and assess his transacting county court while business, damages, and that was not unconstitutional statute because it author- damages court assess the ized such without a * * *” by jury. trial recent case of Port In the Umatilla v. Rich- of we P2d said: mond, 338, Or jury a defendant is entitled “When trial jury action the condemnation function of the *19 only damages paid, to decide the amount of to be incidentally pass upon ownership or may right far as that affect land so * * *” compensation. Shortly, pointed by that statement made more was following: firmly deem it established that “We whether a
proposed taking public question is for use is for jury, jury and not for a in a the court even trial.” provisions We are satisfied that the constitutional previously quoted do not embrace eminent domain proceedings. They merely preserve that method of employed trial for the classes of cases in which it was prior adoption of to the the constitution. question turn to the
We now as to whether or not any provision statute makes for the trial of the issue necessity by jury. We have seen that the assess damages may proper subject jury ment of be a aif statute so determination declares. ORS 35.090, only 35.110 35.140 are the 35.100, sections of our procedure employ eminent domain acts which the word says “jury.” 35.090 ORS
“If motion is made before the formation of a jury, request party, court, of either * * order view of the shall lands appears 35.100 state the function OES which the jury proceedings. says: serves those It “Upon damages by the assessment of the give
jury, judgment condemning the court shall question plain or easement in land, * " * * tiff provides that the defendant shall 35.110 recover OES attorney and an disbursements fee costs, unless the equal tendered to the defendant an amount greater jury.” than “that assessed to or OES *20 says judgment a that if is reversed and 35.140 jury damages of the de new trial “the assesses the greater fendant at a sum than the court shall before,” judgment condemning land “in addition to the * * * give judgment in for favor of defendant statutory such excess.” It will be noticed that those “jury” only provisions the term with the associate damages. past as is evi decisions, assessment of Our previous paragraphs, their mention in have dent from go the aforementioned sections of our laws held that empower jury no than to to assess the further damages. remain with those decisions We satisfied of no enactment which authorizes the and are aware necessity. jury to issue of reason resolve the Good assigns justifies legislation neces which the issue of sity judge. v. Louisville & N. R. Co. Western to Telegraph F declared that Co., Union analysis conflicting present themselves for forces necessity upon an of issue “* * * flexibility judgment require a of and peculiarly adjustment within of alternatives an jury as that function is fixed either of a the function They theory by approximate precedent. at or nearly, closely, perhaps more cus- least as * * *” equity. tomary powers of a of court provision of no of our constitution are aware We requires of which issue and of no statute jury private necessity resolved when must be coming party But a final before is the condemnor. practice will take note our we conclusion Washington neighboring which authorizes a state of way logging party private condemn for Washington (Art 16) pro- §I, Constitution road. : vides private property taken shall not be for “Private ways necessity, private except and for for
use, flumes or ditches on or across the lands drains, purposes. agricultural, sanitary for others domestic or * * *” Washington (R.R.S. 936-1) statute which is way employed rights in the condemnation of for logging roads reads: “An owner or one use, entitled to beneficial land, respeet land is so situate with necessary proper of another that it is for use its enjoyment way private have and maintain necessity any or to construct and maintain drain, through or on,
flume over or ditch, across, agricultural, such other, land of or domestic *21 sanitary purposes, may condemn and lands take of such other for the sufficient area construction private way necessity, and maintenance such of of or for construction and maintenance of such may flume ditch, or as the case be. term drain, ‘private The * * * way necessity,’ of shall mean and right way through of over on, across, include or ingress egress, land of another for means of and and the construction maintenance of thereon * * logging roads, flumes roads, proceedings judge, In under the act, and not the jury, necessity. Seemingly, the issue of determines contrary no contention to the has ever been submitted Washington of the courts. Some are: cases Dreger Sullivan, 46 P2d 36, v. Wash2d 278 ex 647; State rel. Paul and v. St. Tacoma Lumber Co. Lawson, 25 Log- rel. Wash2d 171 P2d State ex 499, 189; Poison ging Superior Grays County, v. Court Harbor Co. for 11 119 P2d ex rel. 545, 694; Wash2d State Wheeler v. Superior King County, Court 154 Wash 281 117, for Stephens Superior P ex rel. v. Court 7; State for County, 111 190 Wash P 205, 234; Snohomish State Superior Kitsap County, v. ex rel. Court Carlson for ex rel. 689; 181 P State Postal Tele- 228, 107 Wash 230 Superior County,
graph-Cable Co. v. Court Grant for McCarthy 64 Wash 855. Bloedel 189,116 also, P v. See, Donovan F2d Mills, Lumber cert den 282 US 34, [governed by L 51 Ct ed 840, S the Wash- 21, ington just mentioned]. act The decision men- last citing Washington after said: statute, tioned, * * admittedly may take Under the law, only right way ‘necessary,’ is such a and the necessity question of is one for the to be court, *” * * light of all facts. determined in Telegraph-Cable Superior In v. ex rel. Postal State Co. (above County, cited) the Court Grant court said: that the correct this “We believe construction of * * * that it invests the court with the statute specific proposed power land to determine whether necessary general in view the loca- to be taken is finally question of neces- determine tion, * * specific sity taking of land for the such as we have contends, defendant seen, Oregon, § demands that the Art Constitution I, jury necessity resolved when- should be issue of expropriate private party seeks ever way logging applicable § Art road. If I, 17, why are aware of no kind, of that we reason in a case govern if the or of its not also state one it should identity agencies latter condemnor. is the *22 § The defendant not I, to Art 17. does is relevant not power delegate argue cannot the of state that the plaintiff. a concern such as the We domain eminent proceedings that eminent domain are have seen § range Art I, of cases reached 17, and, within the consequence nothing accordingly, of turns the private plaintiff party aor question the as to whether public provided that “a use” is the condemnor, the proceeding. object of resorting analysis, to further we ex
Without press § our conclusion that neither Art nor I, 17, requires § Art neces amended that issue of VII, 3, sity jury. should be we are resolved Likewise, aware should of no statute which directs issue jury. assignment be to the The fourth submitted error is without merit. assignment
The first as we have seen, error, judge when contends that the trial erred he found appropriation by rights of the two way upon necessity. was based quoted § We have Art After I, 18, OES 376.510. history the defendant’s brief forth a sets review the they of those two measures it authorize contends way logging condemnation of a for the road only up’ if timber “the owner was ‘bottled and had no logs other for access to market.” Accord- removal ing necessity must “indis- be defendant, pensable way in the sense that there is no other out by any way or that the cost of removal other would * * prohibitive He claims that in this case the plaintiff’s proves nothing evidence more than that “the proposed private logging might have been more ” ‘convenient’ or more ‘feasible.’ §
We are aware of words in no Art I, that are 18, ambiguous exception “necessary.” with of the word legislature’s implement 376.510 which OES § the administration of Art I, uses the term “rea- sonably necessary.” frequently employed The latter is proceedings seemingly in eminent domain experienced difficulty determining courts no have meaning; permanent its see 28 Words and Phrases, “necessary” p appears 226. The word as it edition, “reasonably necessary,” plain- § Art means I, 18, so the plaintiff’s says. present purpose In case tiff *23 according unless defendant, to cannot be served, “necessary” mean “conveni- is construed word meaning given argues that it cannot be ent.” He that present in- that in the insists seen, as we have and, “indispensable” “necessary” signifies “im- or stance Dictionary, perative.” International New Webster’s “necessary”: meaning gives this edition, second projected end or or to a desirable “Essential dispensed loss, without with not to be condition; necessary inefficiency, damage, tool as a the like; or ** permanent vol 28, edition, Phrases, Words proceedings p in eminent domain that indicates imply “necessary” generally an absolute does property in which the physical a situation need nor indispensable The volume shows condemnor. frequently tantamount deemed word is that necessary.” cited “reasonably the decisions A review of “reasonably compilation that the term indicates in the necessary” with no serious the courts confronted has rules of statu- Resort to the problem of construction. permitted tory to introduce is never construction language is understandable. ambiguity into synonyms that are not each words Several conception express The difference of need. other largely varying degrees in the consists them between suggested the need or want urgency that constitute implies “Needful” want that is word. the chosen “necessary” employed. pressing than when less greater urgency a want of than “Requisite” denotes “Indispensable” “necessary.” manifests a need that is indicated man’s need for peremptory, such as food. air and water, review the numerous decisions not herein shall
We upon which the defendant’s brief courts other from “necessary” means dwells its efforts establish statutory pro- “indispensable.” The constitutional or visions were were with which those cases concerned *24 not to the same as those which we are called con- § strue. As have draftsmen of Art seen, I, 18, we express right did not under a circumstances which way may by using of a be condemned word such as “indispensable,” “imperative” any or other word urgency. they denotes inexorable did a Nor select word degree suggesting a low need such of as “needful” or “required.” Seemingly they thinldng were situa- of right way tion in which the need for of could be expressed by necessity.” a term such as “reasonable any legislature At when the consti- rate, translated the provision expressed tutional into a workable statute it through “reasonably necessary.” the term need “necessary” appears § The word twice in Art 18. I, duty degree urgency It is our to determine the seeking justified In which it denotes. answer we are recognizing disputed appears word in such important an document as the state’s constitution. The by placed word was there amendment in order to con- right fer a this court had held was not available change. without constitutional is, therefore, people important thought one which the deemed necessity should be available when expressed called for it. As logging in the constitution, roads that are necessary promote development “the and welfare of public being the state” “a and constitute use.” Such point it view, the constitution’s seems reasonable people to infer that the who voted the amendment logging roads as did view facilities which serve only logger. aof If the convenience the word “neces- sary” appeared only in the constitutional amendment place meaning might at the where it first its found, appears be difficult to ascertain. But it a second time. appearance says In its second that “the use of all * * * necessary promote transportation roads logs necessary development “is of” and welfare appearance disputed of the state.” The second gives inkling meaning. an its word as to eventually maturity
All trees reach and unless logged bring logs then deteriorate. In order to their money, market and them thus convert into road may separated acquired. must be A stand timber a tract of land over which the from market grant right way. If the owner refuses stand of right way must remain uncut because a cannot timber part Oregon’s greatest natural resource will be had, may It be that the stand of timber can be be wasted. requires existing an however, which, reached *25 costly logger operator, and mill haul. saw engaged are in commercial trans all others who like feasibility promise accept test of as the actions, contemplated profit. to earn a We venture have people amending that the in Art I, reason infer no authorizing thereby private § in individuals to and 18, way, rights in acquire did not have that test mind. inserted in 376.510 front the authors OBS When “reasonably” they “necessary” qualifying word expected it would have the same effect that doubt no adjective “necessary” “reasonable” as the has appears combination with such words as when “safety” “price.” “care,” “rate,” “man,” “reasonably necessary” term believe We pertinent all factors. requires We consideration of them in enumerate them. One endeavor to not shall one the existence of an as this such a situation judicial not function does cease, route. alternate an that alternate exists. it finds when however,
335 an When individual finds himself landlocked property grantor, of his in situations akin to those depicted in Rose v. Denn, 1, 188 Or P2d 1077, Nys, P2d and Van Natta 810, v. 204, Or 278 P2d way necessity, 279 P2d 163, and seeks a his through upon legal principles efforts to break rest different from those control In this case. cases judicial of the kind now before us the function does not cease when it finds that an alternate road somewhere go exists. It must on and determine whether the alter logs nate road is suitable and will enable the to reach delay, expense, market without unreasonable effort and hazard. “necessary,”
It is our belief that the word as used “reasonably § necessary” Art I, 18, means as that employed term is 376.510. ORS We further believe meaning “reasonably necessary” of the term clarity by is indicated with sufficient its context. judge properly Evidence which the trial could have deemed reliable indicates:
(1) materially The Sixes River road, unless im- proved plaintiff’s could purposes, serve the the record contains no indication as to whether the county improve will the road or authorize user to do so.
(2) improved, The Sixes River even 8y2 route, if longer thereby miles than the Willow Creek road, re- quiring bring plaintiff’s the use of more trucks logs demanding to Bandon and likewise more time for *26 the hauls.
(3) expected IJse Willow Creek is savings per effect a of thousand feet—an $2 amount important. which
(4) public Since will not have access to the promoted safety if the will road,
Willow Creek plaintiff River road. it rather than the Sixes uses
(5) road is owned The fact that the Willow Creek speed by plaintiff to control the the latter enables operation. phases of and all other of its vehicles present (6) road does not Willow Creek drainage problems that are attend- of curves slides, upon River road. ant the Sixes findings, quoted in circuit court’s think that the
We by supported paragraph, preceding substantial are evidence. length
Although at the evidence have set forth we “reasonably necessary,” of bears the issue give proceedings to that issue domain courts eminent commonly employed is stated limited The rule review. supra: Eugene City Johnson, v. manner in this of “* * * of those matters determination And the by power grantee domain is, of eminent or of dis- faith abuse fraud, bad in the absence cretion, by subject courts. to review the final and not ^ íí if?? the route for the
The selection road constituted the Willow extensions of Creek two necessity prima for the easements. facie ease of presented could not estab- the defendant evidence only oppression necessity, or faith, bad but lack of lish plaintiff’s part power upon in the selection abuse following v. from State take the routes. We County, supra: Grays Superior Harbor Court for “* * * by M. D. of the route & The selection prima Company facie case of neces- makes Timber property, specific sity taking and in the such oppression or faith, of bad of evidence absence power, another route is evidence that abuse of enough selection show feasible *27 by sought bad route the condemnor shows such the faith, oppression power. In the ab- or abuse of proof—there oppression fraud, is none—of sence by log- route the selection of the faith, or bad by peti- company, ging tioner’s made in at bar the case will upheld. In State board of directors, Grays Company Superior Logging v. ex rel. Harbor we said: 722, 82 Wash. 144 P. Court, 503, 506, “'* * * piie went no further evidence offered was the N. of section 31 than that route over % that the road could be constructed feasible, and meet at a reasonable cost. This fell short of there requirements justify ing In rule. order to ordering change of court in location of necessary only proposed it was not show, road, practicable, was another route which and that at reasonable cost, road could be constructed thereon by necessary go show, was further and but it convincing in the selection evidence, that, clear sought route to be was bad condemned, there oppression, power. anor abuse of The evi faith, go showing does not to the extent of dence offered that the route selected the condemnor causes unnecessary damage property, the relators’ the route over section 31 would cause much less damage property than to that would the route property.’ the relators’ cause to selected general rule is condemnor has “The acquire right route it desires to to select the way, with selection the will courts except showing case of clear interfere not part making on the the condemnor in faith bad selection.” such evidence does
The defendant’s disclose fraud, plaintiff’s discretion or abuse of faith bad projected part of the two the selection extensions of judge’s finding the trial road. Since Creek the Willow given supported evidence it substantial must be We conclude of a verdict. the first the effect lacks assignment merit. of error assignment The second of error contends that the circuit court erred when it denied mo defendant’s tion to make more definite and certain an averment of complaint each which reads, “Said easement is rea sonably necessary purpose.” assign for such The third overruling ment of error claims that the court erred complaints defendant’s demurrer which con *28 pleadings tended that the did not state facts sufficient complaints allege, constitute a cause action. The reasonably necessary pur “Said easement is for such pose.” complaint plaintiff’s Each described the timber gave land and alleged the location of its mills. Each right way the logging need of an easement of a for a Specifically road across the defendant’s land. the com plaints averred:
“* * * plaintiff requires an easement of a right way logging way for a truck road, road or Curry over and across certain land situated in County, Oregon, and described on Exhibit 1 at- * * tached hereto complaints The averred that the desired road would transport logs plaintiff’s be used to the mills. quote following Oregon Corpo We from Mesabi Corporation, supra: ration v. C. D. Lumber Johnson “Nor is there merit in Mesabi’s contention that complaint evidentiary why show the should facts sought ‘reasonably necessary’ the land for the ‘reasonably road. The statement that the land is necessary’ allegation the road an of ultimate agree Judge fact and in Flora with we Cavanah’s decision Logging Boeing, v. D.Or., Co. D.C., 1930, allegation that 148, 43 F.2d is sufficient. 145, v. 44 Hallock, 246, Dallas Or. 75 P. 252, 204, Cf. v. P. Cline, 260, Sullivan 33 Or. 54 154.” “necessary properly in The averment order to re- logs” charge necessity held a sufficient move was Co. v. Lumber Tacoma rel Paul & ex St. State Linggi supra. v. Garo effect to similar See Dawson, was where the easement P2d 15, votti, Cal2d pipe. laying think sought We sewer for the properly aware and are overruled demurrer was why allowed. have been motion should of no reason assignments lack merit. of error and third The second assignment of error contends fifth the de judge a motion of overruled erred when he trial study page cost a two record to strike from the fendant plain by prepared Valentine, S. the aforementioned O. study purported to manager. The cost office tiff’s from the 5500- removed if feet is 100,000,000 show that expense will road, acre tract Willow Creek River road if the Sixes less than $226,000 $240,000 accepted employed. paper “the center of sec was length computing haul to Bandon tion 26” he had After stated either route. Valentine study employed gathered cost he for his the data which paper was received office from records in his Upon answered examination Valentine cross evidence. *29 qualified to determine whether that he was not point” haul focal was “the center of section 26 computations feet. In his entire 100,000,000 for the speed log at a would run that the trucks assumed he upon per and road hour the Willow Creek miles of 18 per River road. He stated on the Sixes 12 miles hour those estimated that he secured examination on cross speeds that are in the woods with men “consultation to strike the exhibit The motion truck foremen.” or * * * “hearsay upon part argued was based that it proper by somebody given brm opinion else as to * * * study purpose points of this for the to use speeds.” truck as to also only study non-jury served cost
Valentine’s necessity issue as to whether there was reasonable for the road extensions and was intended to indicate good acted in faith and had reasonable grounds instituting proceedings. the condemnation
Obviously, making computations, his Valentine accept single point was beginning forced to some as the of the haul from the tract to Bandon or ascertain the many places where the trucks would be loaded and then compute places. distances from those He used as the beginning point the center of section 26. The record maps, unchallenged accuracy, contains excellent as to representations per- which bear in clear outline of all (a) tinent (b) features such as the 5500-acre tract, (c) the Willow Creek and Sixes River roads, the two highway (d) (e) desired city extensions, No. 101, (f) (Plum of Bandon and the four access roads Tree, Elephant etc.). glance maps A Rock, at the enables anyone to contrast the center of section 26 with the thereby perceive rest of the tract 5500-acre computation basis of Valentine’s of distances. Valen- tine representa- used the center of section 26 not as tion him that the trucks would load there but as arbitrary point an of start. We infer from the record places where the trucks will load if the ex- dependent part upon tensions are constructed is developments during logging. that will occur It seems clear that Valentine’s resort to the center of section 26 loading point infringement as the did not constitute an upon hearsay evidence rule. Valentine made no speed log effort to estimate with which trucks upon operate question. could the roads in Based assumption they an per would travel 18 miles per hour on the Willow and 12 Creek miles hour portrayed on the River he road, Sixes the results in study *30 dollars and cents. His cost introduced into the hearsay noth It was or otherwise. evidence, record no upon computation facts ing he made more than accept figures its the court for which were before judge rejection. made a similar Had trial ance or of evidence violated no rule he would have calculation assignment judicial error re conduct. This or of Company Kaye- Distributing v. no merit. Roberts veals Corp., App2d P2d 886. Halbert Cal assignment follows: of error sixth The Roy of witness Gib- examination “The on Court following sustaining objection to the erred in son question: you figure at arrived “Q: What was necessary to be the I understand of what as the cost system existing improvement the the for extending to the ends of Road Creek Willow right-of-way existing make in order to on each roads you say, proper I understand them, use?” all-weather engineer Roy logging awas witness, Gibson, request had made a cost the defendant at the
who logs bringing showing expense study from (a) both the Willow tract to Bandon the 5500-acre plain- (b) River road. The road and the Sixes Creek ground: question objected quoted on the tiff * “* * has selected the condemnor when proved that route is feasible and he has route only judgment, then left for issues that the in his necessity question are on the determination gross bad faith or fraud, been there has whether of discretion.” abuse objection judge and there- sustained trial an extensive offer
upon counsel made defendant’s testimony explained of the witness proof. He of discretion abuse to show intended was *31 plaintiff’s part selecting necessary the extensions to correctly Willow Creek route. If we understand proof, the offer among expenses Gibson included improve- he estimated extensive alterations and ments to the Willow Creek route as well as to the proof Sixes River route. The offer of indicated that length the former would be 31 miles from the 5500- acre tract to Bandon and the Sixes River route would points. Believing 26 miles between the two per costs of construction would be $15,000 mile Gibson estimated that the Willow Creek would require outlay an and the $465,000 Sixes River road something plain- less. doWe not understand that the contemplates any tiff improvement alteration to or the Willow Creek road. Based his calculations as grade well as the factors of adverse Gibson determined per that it logs would cost thousand to haul the $11.27 by way of the Willow Creek route and $10.71 Sixes River route. All of the tabulation sheets and maps part used the witness were submitted as proof the offer of and are before us. At the close of testimony proof the witness’s and the offer of the trial judge ruled: very carefully
“I listened to the statement of Tongue proof Mr. as to his offer of toas what this testify my opinion, witness would and, it does not show bad faith fraud, or abuse of discretion. rejected.” Let the offer be ruling At the conclusion of that the defendant called as his next witness the aforementioned Norman W. testimony preceding Porteous whose is mentioned in a paragraph opinion. Although of this objected questions which asked Porteous for his opinions respective as to the merits of the Willow objections Creek Sixes River roads the were over- objections proffered ruled. The were that the testi- mony nothing fraud or abuse do with bad faith, “has ruling consider his “I will was, of discretion.” they fraud, think show as to whether or not I answers testified Porteous faith or abuse of discretion.” bad opinions partial conclusions and for his that as basis accepted computations of Defendant’s Gibson. he saying judge: acknowledged in to the trial counsel so “* * * making assumptions were Those he was proof for Mr. material in the offer based on the Gibson.” computations came before the data and
Thus Gibson’s judge although opinions were excluded; trial his *32 part computations maps formed of the offer data, proof. that it would cost estimated Porteous $11.56 logs per feet to remove the Sixes thousand were if the Creek road Eiver road and Willow $11.58 employed. proof not disclose whether Gibson offer of did
gave Willow to the fact that the Creek attention plaintiff thoroughfare private has over which the ais preference be- it indicate Nor did Gibson’s control. county developed roads if it tween the two improve road nor author- Eiver neither Sixes would proof the offer of does Likewise, to do so. ize user objections upon which attitude not reveal Gibson’s plaintiff Eiver and Plum Tree made to the Sixes they subject. are of the slides to roads on account survey” study quick as “a his described Gibson days spent explained, in the woods and then two “We topography maps maps, day on the on the or two and so forth.” necessarily who entrusted to those
There possess power domain broad discretion eminent property to the contem- essential of the in the selection plated public proposed public use. If tbe use will be represented by thoroughfare, those vested with the power of eminent domain must have broad discretion in the selection of the route. the owner However, whose may always land is under condemnation submit evi- showing dence bad faith fraud, or abuse of discretion. Frequently in eases of this Idnd the defendant offers indicating evidence that another route is available to pur- the condemnor and that it will serve the latter’s poses better. Evidence of that Idnd is not admissible merely if it shows that another route is available and qualities. go that it has attractive It must on and by indicating establish abuse of discretion that would-be condemnor’s choice of the land under con- any no demnation has basis reason and is without justification. any economic If other rule were em- ployed, the and not the court, would condemnor, make the intricate and difficult choice of route. possible
It is if evidence, Gibson’s received, questioned plaintiff’s have would conclusion that logs by removal of the the Willow Creek route would than if be more economical the Sixes River route was employed. upon did not But, rest its case safety It feature alone. stressed the and other advantages private superior road. It dwelt impeded had often the slides which movements *33 log upon the River and Plum trucks Sixes Tree roads. any of
In the absence evidence whatever show county improve ing that the would the Sixes River road rulings to do which so, or authorize user sustained testimony plaintiff’s objections to Gibson’s were clearly justified. assignment of error “The submits,
The seventh dismissing plea defendant’s in erred in abate- Court ment.”
Upon property plaintiff over which the to wishes of construct the two forks the Willow Creek proceedings road a road existed when the were filed. December for a 16, 1951, defendant, consideration, granted corporation Kronenberg Logging to a entitled Company right presently existing log to “use all rights ging way” any roads and and also roads parcels “hereafter constructed” those land. The two forks which the wishes to build will go partially way along right cross or existing road. The defendant filed in each condemna plea alleged tion action abatement in which he proposed damage condemnations would cause Kronenberg Logging Company “in that it would deprived present right be of its unlimited to the use * * * presently existing of the aforesaid and present right would also be excluded from its unlimited to the use of all new roads constructed lands, over said including the use the new road to be condemned and ** by plaintiff constructed Each of the two com plaints proceedings, seeking in these the easements plaintiff, suggested for that the easements should subject following rights the defendant: right right “The to cross and recross said way and to use the road constructed or be con- grazing logging purposes structed thereon for long unreasonably as use such or uses do way by plain- interfere with the use of said tiff, assigns.”
its successors and plaintiff’s The defendant does not contend that the Kronenberg Company Logging to have made omission prejudiced party Kronenberg Logging Com- him, sought pany proceedings. has not to intervene in these reason, our no has called attention to The defendant believing judgment challenges he Kronenberg him if would have been more favorable to *34 346
Logging Company party had defendant. been made provides: OES 13.110 any may “In or determine actions suits court
controversy parties when it can between before it, rights prejudice to the of others, be done without by saving complete rights; when a or their but controversy can not had determination of presence parties, of other the court shall without the brought in.” cause them to be Gasaway City 991, v. P Seattle, 444, 100 Wash proceedings the omission of held in condemnation proceedings proper party as does not invalidate parties. against Tulsa, v. those who were made Delfeld says: 1032, 143 ALR P2d 754, 191 Okla 541, 131 generally held a failure “Furthermore, join proceedings in a to invalidates those one owner condemnation only
proceedings as to him, joined proceedings in a condemnation one who is having complain that others some interest cannot parties. Emi- not made Nichols on land are page 937.” 2,2nd Ed., 338, nent Section Domain, Vol. § 216, ruled: Jahr, Domain, Eminent “* * * by weight authority, parties who adjudi- rights court can have their are before the cated and the absence of generally parties does not proceeding against are those who invalidate * *” * parties. made § 3rd Domain, edition, 538, Eminent Lewis, From following: we take necessary party proceedings omitted, “If a general party. nugatory But as as such will be proceed- does not vitiate an omission rule such parties,
ings nor are can the latter who to those as complain of such omission.” C.J.S., Eminent Do- is stated The same rule passage: p. § in this main, 238, authority weight join “By the failure parties persons as defendant will interested all the proceedings against per- not invalidate the such parties, they sons as were made cannot com- plain nonjoinder, rights unless or their inter- *35 * * thereby, ests are affected by do not We believe that error is this revealed assignment appropriate provision of error. An in the judgment point rights can out of the Kronen- berg Company Logging are not affected the outcome proceedings. of these two condemnation following assignment eighth is the of error: making following “The erred in find- Court ing of fact: “ prior ‘That and defendant the com- to agree of were mencement to this action unable to as compensation paid of the amount to be for the sought easement to be condemned in action’.” this adopted pursuant which 376.510, ORS was to the Oregon § Art amendment of I, of and 18, Constitution private grants parties right which to to use the power condemning rights way of eminent domain in necessary logging quoted preceding for roads, paragraph opinion. this It will be recalled that it says: * “* * * * * person agree If such to unable * * * with the owners the land as to the amount compensation paid person to be therefore, such * * * * * has the to condemn objects findings
The defendant of the trial judge parties which declares that the have been un- compensation agree payable able to the amount primarily for the easement. His contention is based plaintiff’s on the fact that the offer of for $2,000 each did not of the easements contain reservation to complaint, use of the road as defendant of the did permit only to the defendant to cross and but offered argues that since there recross the road. The defendant agreement attempt terms no to secure on the same was statutory complaint re- in the as those set forth quirements bringing met. the action had not been City part of Portland v. Kamm, cites Or He holds: 285 P 236, “* * * or a either the constitution stat- Where agree attempt requires with the that an owner ute price must made before of the land be provision instituting proceedings, the condemnation directory mandatory complied unless and, but is not be maintained. In such case, suit cannot with, the inability attempt agree so after an to do is jurisdictional the statute must made * *”* alleged proved. both challenged judgment defendant contends proceeding and the dismissed. be reversed must *36 (1) inability agree plaintiff the of to evidence As testimony presented that of one of its officers attempted agree parties and unable to do to were setting (2) final of out the offer introduced letters so, (3) plaintiff a letter from defend- and introduced was to the offer in which it in answer counsel ant’s appear it would circumstances “Under these stated: purpose a conference would be served no that useful you.” with 20, was dated December last mentioned
The letter day directors of the board of and the next on 1956, pro- plaintiff the institution of these authorized ceedings. attention to another defendant calls meeting 21, 1956, of December that of resolution negotia- to directed “continue were officers just quoted consti- that the words tions” and insists hope recognition that “all of the directors tuted negotiations The defendant had not exhausted.” been argues plaintiff’s that of his refusal offer did not willing that he not have establish would been to have negotiated agreement and to enter into an which would prospective have allowed him to use the roads. plaintiff urges that defendant’s contest of the right to condemn and its likewise contest of the amount just compensation any objections ais waiver of to plaintiff’s any, attempted if to have to failure, negotiate. only The defendant’s answer not denied the complaint way rights averments of the that plaintiff sought reasonably necessary which the were alleged they affirmatively but also were “* * * necessary reasonably neither nor neces * * sary transportation logs for the and the logging condemnation of for a said lands road would unreasonably oppressive, burdensome arbi * ** trary if 376.510—540are con O.R.S. permit strued to authorize and the condemnation * * * ** * then and in such event said statute * * would be unconstitutional support In of its contention that the defendant’s objec- contest the action constitutes waiver of his plaintiff’s any, negotiated, tion to if failure, have cites the annotation in ALR8 472 and the plaintiff particularly decisions therein cited. The men- Superior tions rel v. ex Wilson Court Chehalis State County, 269, 47 Wash 92 P where the court stated: “* * * when defendant condemnation position proceeding petitioner takes the question inability condemn, has no *37 compensation agree to thereafter as becomes im- * *” * material. in decisions cited the annotation are in The Illinois developed in rule them was summarized structive. The Chicago Chicago N. and M. R. R. Co. v. in Title S. 350 holding a 328 Ill 160 NE Co., 610, 226,
Trust judgment will not because direct testi a be reversed mony inability agree not to to if “it is was offered as parties the acts of the from the contest and evident agree compensation parties as to the cannot paid cross-petition a for the that where land,” to asking damages and a the merits, filed for contest on is agree any question to is of an effort “this a waiver petition.” filing compensation a Alton on before See NE 531, R. Ill 558, and R. v. Vandalia Co., S. v. Minnesota and N. W. R. 119 Ill Co., and Ward essence of these and similar cases NE 365. obviously dispute parties are about that where the validity rights fact or the of condemnation sought require proof additional it would be futile to dispute. directly just not reviewed do seem
"While cases Oregon language applicable Kamm due (in alleged plaintiff supra, had which the not case, operating agree was not under a stat- since it failure to precedent attempt requiring an condition such ute reasoning proceeding) bringing commends their to itself weight in our consideration and should have problem. if we this case on instance, For dismiss attempt proper ground to was made reach that no agreement, in order to enable we would do so an again negotiations right begin parties about way fact land. from the Aside over the defendant’s say will- that he would be does that the defendant negotiations participate ing an easement even think road, to use the we him a if it reserved to com- that he would demand to assume is reasonable approximately pensation $70,000 which in the sum of in his answer. When we com- demanded the amount pay pare offer with the sum this
251 jury’s finding for the of $4,000 use the land and the any of hard for is us to believe that there is $5,000, parties agreement chance that the reach an could out- side of court. require hope
The statute does not “all that of negotiations” may brought. is exhausted before a suit purpose requirement negotia The obvious legal precipitous tions is to insure that action not is too parties good and that the have made some effort agreement. faith reach to an In the face the refusal plaintiff’s the defendant the offer and the state ment a further conference would “no serve useful purpose” any why plaintiff we fail to see reason the required longer bringing should he to wait before suit. certainly require negotiations The statute does not proof ad and the infinitum, uncontradicted shows attempt agree rejection there been an had to and a attempt. jury the The verdict of the indicates that such certainly offer was not an unreasonable one and that subject charge not to of “bad faith.” Highway Further, State Commission v. Ware- Efem Company, house P2d 1101, Or indicates arguing that the defendant is foreclosed from that he might accepted provides: have other terms. ORS 81.020 person “The to whom a tender is made at shall objection may specify any
that the time he have to money, property or instrument or he shall he objection to have if it; deemed waived money, amount of the terms of the instru- property, ment or the amount or kind of must he specify requires terms or kind which he amount, precluded objecting or he from afterwards.” In Efem case issue was whether an offer in unaccepted condemnation case was $4,800 attorneys precluded recovering the defendant it from jury than the amount when the award was less fees argued the offer The defendant that since offer. warranty requiring imposed deed, condition obliged accept the offer since was defendant according Highway Commission, defendant, warranty court demand a deed. The had no had if condition 81.020, that under even held OES *39 by improper, had waived the issue the defendant been objecting the was made. to the condition when offer not distinguish attempts to In the the defendant ease at bar ground the the Efem that condemnor has case on the any impose But fail he sees fit. we to condition any bearing if has contention, accurate, to how this see party attempting upon In the is the matter. each case agree ground assign refusal to some- his to as thing in refusal of the not mentioned which was purpose to is, course, offer. OES 81.020 grounds parties their of differ- set out demand that the thereby clarity the issues between so that ence with they may brought be to an narrow and them will settlement. amenable not statute we should allow
Even absent the ground point not which was raise at this to defendant commenced pointed before the latter out plain particularly view of fact in the suit, willing grant ready apparently the de tiff was respect only price could if in this wishes fendant’s agreed agreed upon. That it could be justified judge abundantly trial was and the clear, attempt had been made holding reasonable that a assignment of error without find this failed. We had merit. assignment of reads: error ninth of witness cross examination on “The Court objection failing an to sustain erred
Keith Foster testify price question requiring to a paid by him to to the an tract the defendant for undefined grantor family being corpora- 1,000 acres, by wholly-owned tion brothers.” the defendant and his two assignment The tenth of error follows: on “The Court cross examination witness failing objection Keith Foster erred in to a to sustain an question requiring testify price him to toas paid land in the defendant and his two brothers for purchased Section 1950.” assignments We think the two of error can be together. According to considered Keith who Foster, assignments named in the two of error, the 1000- rights way tract crossed acre was which the plaintiff seeks. objection question
The defendant’s subject assignment constitutes the matter of error 9No. is: object “I It that, consideration. was in *40 begin family,
the it with, and, besides, isn’t a question paid what was for lands; these it ais question the they of what worth are before and after taking-—not they paid what for them.” says: (appellant’s) brief Defendant’s “* * * Oregon the rule has been in established price paid by and elsewhere evidence present property sought the owner for now to be condemned is admissible as evidence if it will assist jury ascertaining present the the market value * * *” property. the justified by
The defendant’s statement
Meyers,
Douglas County v.
201
P2d
59,Or
and
625,
Security Corporation
Fidelity
Brugman,
v.
ment property turning which is to this Now, “Q. right-of-way in Section this other crossed acquire you Wayne brothers Foster when did that land? In
“A. 1950. paid for that? What was
“Q. question. object to the same I “MR. WALSH: through that time and been I have “COURT: may ruling; he answer. again. Same paid for it. “A. We $6500 many ? acres How “Q. 1000 acres.” over 1000—little
“A. counsel above that defendant’s from is seen It objection. any ground Defendant mention did purchase argues which he made now point from the condemnation of time” “remote was was committed error therefore, proceedings that, plain- ruling. challenged 6, 1956, December by the pay for each of $2,000 offer to written its made tiff *41 the two 26, 1956, December easements. desired
255 proceedings filed. The trial com- condemnation were May judge trial made the menced 1957. 6, When challenged ruling nothing him indi- there was before cating price paid in 1950 did not continue any reflect true value. At the defendant rate, cash changed. made no claim at that time that had values assignments find no merit of error nine and We ten. assignment urges
The eleventh of error judge erroneously plaintiff’s trial sustained the ob jection question propounded to a defendant’s coun Roy sel to which him for Gibson asked his estimate constructing cost the two roads were upon plaintiff sought then the land over which the way. rights pre mentioned the two in a We roads paragraph. ceding of them was tract One acquired defendant it in when the 1950. The other was adjunct log built as an 1956 to its ging of some of the defendant’s timber which it had purchased. After Gibson had testified that he had constructing estimated cost the two roads he you give opinion?” “Will was us asked, At that plaintiff objected, point nothing “it has to do with Highway market and cited State value,” Commission objection 209 P2d 181. The 697, v. Or 308 Holt, was proof No offer of was made. In sustained. the absence an offer of the answer which the witness would have given, assignment of error this calls for no reversal. Schweiger v. Solbeck, 454, Or P2d 195, Dunigan, v. 187 Or P2d 567. O’Brien assignments and thirteenth The twelfth of error judge erroneously charge give that the trial failed to jury requested respec two instructions which tively assignments of underlie those error. One
256 subject requested matter
the instructions had as its fencing may the that be needed after the roads are part: in built. It states * * * you may “You are instructed consider necessity, any,
the if of of the construction the cost gates wing along of of the lands taken or fences the boundaries fences, * * plaintiff the requested given, The other if would have instruction, jury put told the that the defendant was entitled to his jury highest land to the and that the best use, lessening of should consider that in the values resulting taking of in from the action the some of the tract. any does not call attention
The defendant’s brief
to
any
constructing
evidence which discloses the cost of
gates.
transcript
needed fences or
have read the
We
testimony
nothing
found
to which
of
with care but
the
jury
help
possible
could have turned for
with the
ex-
ception of one answer
was stricken
which, however,
by ruling.
ruling
from the record
The
was not con-
assigned
appeal
on
and is not
as erroneous.
tested
The
jury upon
part
judge instructed the
trial
fencing plays
damages
in the award of
needed
ac-
Pape
County,
Linn
v.
135
430,
cord with
Or
The instruction sub highest opinion, ject use of the in our land, and best faithfully Highway complied with State Commission
257
Co.,
v.
Manufacturing
Inc.,
393,
Superbilt
Or
Com-
Highway
and State
State
Oregon
P2d
mission
believe
Burk,
v.
We have error. judgment cuit court if affirmed; parties but desire insert in the judgment provision stating rights are Kronenberg Logging Company not affected, they may do so.
Affirmed. concurs C.J., result this McAllister, opinion.
ON PETITION FOR REHEARING *44 Bay, E. William Coos Walsh, Hicks, Davis, Tongue petition. Dale, & for Portland, Before Chief Justice, Perry,* Rossman, Lusk, Justices. McAllister** Warner, Sloan, J.
ROSSMAN, rehearing petition accompanied by A a brief petition has been filed this case. The lists six grounds upon which it is based. One them is the following: opinion
“The would hold that a timber owner already using existing who and is an has means admittedly of access to his timber which is ‘feas- ‘necessity’ justifying can ible’ claim exists the condemnation of an additional means of ac- private logging judg- cess in his sole if, any advantages having there would be ment, private logging road.” according That to our statement, does not belief, correctly reflect the facts this case nor the result previous opinion. of our Neither the River Sixes road, says which the defendant should use, [**] [*] Chief Justice Justice Chief when when this decision was rendered. cause was argued. *45 plaintiff
nor the Willow Creek which the road, wishes to reaches the tract of use, acres which the 5,500 plaintiff plans log. approach to The nearest River road to Sixes the acre tract 5,500 is mile or Testimony given by more from it. the defendant’s own plaintiff required witnesses shows that if the is to use the Sixes River road will be forced an ac- to build length leading cess road a mile or more in from that part road to the nearest A 5,500 acre tract. testimony upon subject witness whose criti- cized stated that the construction of the road will single cost A belief is warranted that a ac- $45,000. cess road from the Sixes River to the acre 5,500 tract will not The record suffice. does not disclose plaintiff land whether owns the which the road or needed access roads would have to be built. According plaintiff has never record, logs brought any from the 5,500 acre tract down the Accordingly, Sixes River road. the statement in the rehearing petition for “has and is existing using an means of access” to its timber is not correct. quoted petition which we from statement rehearing refers the Sixes River road as “feas- plaintiff’s purposes. for the intended
ible” de- witnesses conceded that fendant’s Sixes River accommodating, incapable addition road is to its plaintiff’s log present one hundred traffic, trucks carry day employ logs per will which it from tract to its mill. acre The road was not 5,500 designed traffic of that volume. It handle narrow accommodating, except incapable at occasional moving opposite places, traffic passing directions. together present its volume with serve cannot It improvements plaintiff’s are made trucks unless to it. The defendant’s Norman witness, W. Porteons, testimony previous opinion quoted, which onr an- *46 question swered “no” to a which asked him whether practical he that the believed Sixes River road was a thoroughfare and feasible for the removal of the tim- improved. ber from the acre tract if it 5,500 was not pe Another of the six bases for the defendant’s rehearing tition for follows: opinion incorrectly existing
“The holds that if public improved roads must be to be ‘suitable’ for hauling logs an increased volume of there is a suf- ‘necessity’ private ficient to condemn lands for private logging roads unless the landowner can prove public perform that officials will their duty provide adequate public to roads, whereas the properly public cannot Court assume officials duty will not do their and the burden in such case logging company prove should be on the to public roads cannot and will not be made ‘suitable’ hauling logs for private an increased volume of before properly private lands can be taken for logging roads.” pointed previous out our We decision that school people along and the buses automobiles of who live log road Sixes River use the latter. Loaded trucks, as endanger more than one witness declared, other users thoroughfare. of the One witness mentioned an in- log adjacent stance which truck ran into the ditch Obviously, county the road when it met a to school bus. required perform courts are to their duties, presumes they do so; law will but we are no county that the local means certain court would order improvement of the Sixes River road for the accom- log plaintiff’s of the modation trucks when a short north of the Sixes River road distance there lies the road which is owned Creek Willow logs from haul which will for the trucks and was "built log If those trucks mill. tract acre the 5,500 endanger they will the Willow Creek use endanger they nor will road, Biver the Sixes users of pri- any road is person, Creek for the Willow other thoroughfare. vately and 376.335 376.330 OBS owned county per- mandatory court to for a do not render county improve road. mit a user upon which another basis states, The defendant following: predicated, the petition is although justify ad- result, this “In order ‘necessity’ ambiguous, as mitting to be the word Amendment, 1920 Constitutional in the used legislative ignore completely opinion would contrary history to ex- and is amendment people representations in the press made to the *47 pur- stating Pamphlet, the intended 1920 Voters provide pose to for timber amendment to be of the opportunity main lines of trans- to reach ‘an owners up’.” being portation’ or ‘bottled ‘blocked’ without to fact that seems oblivious The defendant not under review was instituted action condemnation 18) (Art § but I, amendment the constitutional under pursuant adopted to 376.510 which was OBS under pointed in amendment. As out our the constitutional opinion, “rea- previous uses the term OBS 376.510 necessary.” sonably It cited decisions of other courts difficulty ascertaining experienced had no “reasonably necessary.” meaning The term has ambiguous. no The defendant makes deemed not been ambiguous or 376.510 is uncon- that OBS contention Accordingly, there was little occasion to stitutional. argument forth in the set Voters note of take Necessity” encompasses Pamphlet. “Seasonable Pamphlet. argu- employed language in the Voters in his in the latter are not conclusive advanced ments imply. to defendant seems favor as the petition for a for the rehear- The other three bases part repetitions ing we of contentions which are in paragraphs present preceding or matters considered give remaining por- in the will attention to which we opinion. tions of this petition support of the for a rehear-
The brief ing following previous opin- imputes to our effect ion: you adjacent
“If own a farm to a tract of tim- though the owner of that tract an ber, even has ex- isting public access to it means of road which admits to be if he thinks that con- feasible, he private logging of a demnation road would be some- cheaper through can what safer he cut the heart your high-speed logging farm a he road, as pleases.” previous opinion do not believe that our
We warrants interpretation. § The amendment Art to I, 18, Constitution Oregon, legislation pursuant and the enacted easy person ap not intended to make it for one were Certainly propriate property of another. ORS 376.- designed to authorize the would be was condem pleases.” “as he Eminent domain nor to do is not a subject judi and its exercise is law, favorite part scrutiny. wishes to take One who of an cial right way acquire as to land so other’s *48 may logs according transportation to of have file, to showing proposed map route and 376.505, ORS undertaking for the benefit of an those whose also appropriate. Property property to he wishes cannot negoti condemnor the would be has taken unless be upon good the owner of the land faith with in ated subject compensation. negotiations upon of If the that subject may the would condemnor file an fail, emi- proceeding. nent domain In it that he must establish * * * taking “reasonably necessary pro- is to transportation logs.” mote the proving
In this the distinction between case, “necessity” proving of condemnation and proper complicated “selection of the route” was showing “necessity” plaintiff these facts: In en only deavored to establish that the other avail route inadequate able to it it was the sense that “bottled up” operations. showing its In an abuse of discretion, the defendant contended that the Sixes Eiver road way a better offered out and therefore the choice of plaintiff involved an In such abuse. other words, possible issues were focused on of the both one outlets plaintiff. argues However, the defendant that presented comparison the evidence he on the question was directed to “the routes of whether there necessity any to condemn was route, view of the existence of another available route.” As we have pointed previously there was no out, other available only possible route in but existence, route. Once the up” had shown it was “bottled because way practically apparent an was not available to it, prima “necessity” made out a facie it had case of judge say for the trial it was whether or not it proof, per burden of had sustained its is, suasion. necessity subject
The issue reasonable scrutiny courts cases close which do not “bottling up” present present a clear such case as the once it is shown that there one. is such However, “necessity” is incumbent the defendant *49 actually show that the chosen route is result bad or fraud, abuse of discretion. It faith, is judge’s exercise of the trial discretion in latter this phase judicial of the case that that officer will not generally undertake to interfere with the condemnor’s engineering judgment in the selection of the route may properly but take note of the if fact, such is the proposed through that truth, road will “cut your just heart quoted farm.” The words which we excerpt were taken from the of the defendant’s brief copied through which is above. If the “cut the heart your by farm” is shown evidence to be due to fraud, bad faith or pro- abuse of discretion the condemnation ceeding empowered will fail. In short, courts are analyze including by all evidence, that introduced plaintiff making “necessity,” out his case of taking which tends to show that the is the result of fraud, bad faith or will constitute an abuse of discre- tion. present represent case does not an effort plaintiff through to “cut the heart” of a farm. The plaintiff
land which the seeks take is in a mountain Highway ous area several miles distant from 101 and virtually Photographs devoid of timber. show that rocky it is predicted and a character; witness that years in a few it will be brush land, unfit even for grazing. The defendant does not contend that plaintiff undertaking deprive him of a choice argues tract of land, but should use the Sixes Eiver road. We believe that the trial judge rejected committed no error when argu he ment. disposes
The above of all contentions offered petition rehearing for a that need consideration. petition is denied.