Myers v. Clackamas County

194 P. 176 | Or. | 1921

JOHNS, J.

The witnesses for both sides testified with .reference to maps introduced in evidence, on which they indicated different points and places by the use of their fingers or a pointer. There is nothing on the maps to identify the places concerning which they were testifying. Referring to some specific point, the word “indicating” is found at least 75 times in the record. The attorneys and the trial court saw what the witnesses did, but, without being identified on the maps, such a record is of no value to this court and has no meaning. Again, points of the compass are not shown on the maps. The proof is conclusive that the plaintiff is the holder of the record title to the land described in the complaint. Hence it devolves upon the defendants to show how and when that title was divested. They undertook to do this by introducing the record for the petition and location of Road No. 457 in 1895. The petition for this road calls for a due east course, which, if followed, would have taken the land in controversy, but, as surveyed, viewed, and located, it ran east Io 40' south, and did not cross the land in dispute. The road was thus established October 10, 1895, and as then located was continuously used as a county road until some time in 1917, when it was changed by the defendant Larkins, claiming to act by authority of the county, and placed upon a due east course and across plaintiff’s land. In the laying out and opening of a county road, upon receipt of the report of the viewers, “the court shall cause said report, survey, and plat to be recorded, and thenceforth said road shall be considered a public highway, and the court shall issue an order directing said road'to be opened.

1. The journals of the County Court of October 10, 1895, recite that—

“It is therefore ordered that said change in said road be established, and that the field-notes and plat of the survey of the same be recorded.”

It thus appears that the* County Court, on October 10, 1895, actually approved of the county road as it was then surveyed and defined by the field-notes, and as it was then located upon the ground. That order was an official public record of the County Court and entered in its journals. There is no claim or pretense that the order of October 10,'1895, was ever set aside or vacated. There is no evidence that the County Court took any official action in 1917 in changing the bed of the road, or that it ever made an official order authorizing or directing such change. So far as the record shows, the only authority is based upon conversations between the county judge, defendant Larkins, and one of the commissioners. No official action was ever taken.' From such conversations it clearly appears that the change was made upon the assumption that an error was made by the surveyor and viewers in locating the road in 1895, and that it could be corrected by a verbal order of the County Court in 1917 so as to make the actual roadbed conform to the road petition of 1895, upon which it was based. All such acts were coram non judice. They were not based upon any citation, showing or petition. In such matters the county can only speak through its journals, and no official action was ever taken, neither was any journal entry made. Under such a record, no authority has ever been cited, and none will be found, which will authorize a County Court in 1917, verbally or otherwise, to vacate or modify an order of a County Court made in 1895, without the filing of a petition, the issuance of a citation, or the making of some kind of a showing.

2. It is contended that the instant suit should have been dismissed for want of jurisdiction. No demurrer or other similar plea was filed to the complaint. The defendants met the issues, and as a further and separate answer alleged that the road was duly established, and, in legal effect, that the defendants had the right to make the change in the road. That was what the trial court found, and for such reason dismissed the suit. The defendants, having met the issues and pleaded an affirmative defense without challenging the jurisdiction, cannot at this time raise the question of jurisdiction: Kitcherside v. Myers, 10 Or. 21.

' 3. It is true that the land is of but little value, but the question involved is a constitutional right. The proof shows that the plaintiff is the owner of the land, that in 1917 the defendant Larkins, acting under the advice of the County Court, but without any official authority, entered upon said land and undertook to appropriate it, make the change and open it as a county road, and that as a result it has been used and traveled by the public ever since said date.

The decree will be reversed, and one entered here enjoining the defendants from trespassing or using the lands described in the complaint as a county road, with costs to the appellant.

Reversed. Decree Entered.

McBride, C. J., and Bean and Brown, JJ., concur.