141 P. 167 | Or. | 1914
Lead Opinion
delivered the opinion of the court.
On September 21, 1910, the plaintiff filed a petition for a writ of certiorari to obtain a review of certain proceedings of the council of the City of Portland, had in making a reassessment of the property of certain adjacent lot owners in said city, for the payment of the expenses of á street improvement; the petitioners claiming that said proceedings were illegal and void, for reasons alleged in said petition. The petition contains 27 pages, and hence it is impracticable to set it out in this opinion.
On March 23, 1910, the council of the City of Portland passed an ordinance, No. 20989, entitled “An ordinance making a reassessment for the improvement of Seventeenth Street from 58.5 feet north of the north line of Yaughn Street, to the south line of Marshall Street.” This ordinance was approved by the mayor of said city on March 24, 1910, and by this ordinance the city levied certain reassessments upon the property of the plaintiffs, amounting to $5,574.79, for the improvement of said Seventeenth Street from 58.5 feet north of the north line of Yaughn Street to the south line of Marshall Street. The plaintiffs own property adjacent to said improvement, and said reassessment was made by said city to pay for the improvement of said street, made as stated supra; the assessment originally made by said city to pay for said improvement having been held invalid, for defects in the proceedings. The reassessment was made to pay for the same improvement for which the said invalid assessment was made. The plaintiff began
After the allowance of said writ of review, the trial court allowed a motion of the defendants for an amended writ, and disallowed a motion of the plaintiffs for a further return to said writ. The rulings of the court upon these motions are assigned as error. But, in the view that we take of this case, the rulings of the court on said motions cannot materially affect our decision. Hence we will treat the questions for consideration as if the papers that the plaintiffs desired returned were in the record.
The reassessment was, in a sense, a continuation of the original assessment proceedings. There was no new improvement made, and the reassessment proceedings were had for the purpose of imposing a lien upon the lands of the adjacent property owners for the payment of the expense of said improvement, in accordance' with Section 400 of the charter of said city.
Counsel for the plaintiffs contends that said resolution is invalid, under Section 375 of the charter of Portland, which, inter alia, provides:
This clause prohibits the improvement of two or more streets or parts of two or more streets in the same proceeding, but, whether it prevents the improvement of two or more parts of the same street in one proceeding, when the parts to be improved are disconnected, need not be decided here, because the improvement in question is all on Seventeenth Street, and the portions of the street improved appear to be continuous from 58.5 feet north of the north line of Yaughn Street to the south line of Marshall Street. The fact that along a portion of the part to be improved a fill was necessary did not invalidate the improvement.
Under said Section 400, sufra, the reassessment therein authorized to be made must be “based upon the special and peculiar benefits of such improvement to the respective parcels of land assessed, ’ ’ and the assessment upon any lot or parcel should not exceed the special and peculiar benefit resulting to such lot or parcel of land from such improvement.
Section 400, sufra, provides the manner in which a reassessment shall be made, and, if the city in this case complied with said action, the reassessment made is valid.
On November 24, 1909, the auditor presented to the council of said city his preliminary reassessment of the property affected by said improvement, and it was filed on said date. Notice was given by the auditor of the making of said preliminary reassessment, and that any objections to said assessment and reassessment should be filed in writing with the auditor within 10 days from December 4, 1909, the last day of publication of said notice, and that objections to said reassessment would be heard by the council at the regular meeting thereof on December 22, 1909, etc. Said notice seems to be in proper form, and it was published and served according to law.
“I, A. L. Barbour, auditor of the City of Portland, Oregon, do hereby certify that the whole cost of said improvement was the sum of $10,762.12; that I have viewed the reassessment district and each lot, part thereof, and parcel of land therein; that the property within the reassessment district is benefited in the full sum of such cost; that I have ascertained what I deem to be the special and peculiar benefit derived by each lot or part thereof or parcel of land within said district by reason of such improvement; and I hereby apportion the cost of said improvement to the lots, parts of lots, and parcels of land within the said district, in accordance with the special and peculiar benefits derived thereby, in the amount set opposite the number and description thereof, and to the extent of their respective and proportionate shares of the full value thereof. I further certify that each lot, part of lot, or parcel of land within said district is especially and peculiarly benefited by said improvement in the amounts so set forth, and, in my judgment, said property should be reassessed in such amounts,” etc.
The foregoing certificate of the auditor shows on its face that said reassessment was properly made, and we do not find that his certificate is not true. The auditor was the proper officer to make said reassessment, and he is presumed to have done his duty properly, and his certificate stating how he made said reassessment is presumed to be true.
The record of the council shows that on December 22, 1909, a remonstrance by Anna F. Grace et ah . and Ralph R. Duniway, attorney for objecting property owners, was read in the council, and, on motion, it was referred to the committee on streets.
On February 21, 1910, said committee wrote the attorney for the plaintiffs, notifying him that the ordinance making a reassessment for the Seventeenth Street improvements, and the remonstrances against the same, would be considered by said committee at the next regular meeting of the committee, to be held on March 4,1910, at 2 o’clock P. M.
In a letter of the date of March 4, 1910, addressed to said committee the attorney for the plaintiffs acknowledges receipt of the committee’s letter to him, notifying him that the remonstrances against the proposed reassessment would be considered by the committee on March 4, 1910, at 2 o’clock P. M., and in this letter Mr. Duniway says that he does not believe that the committee had any jurisdiction or power to act on the reassessment ordinance and objections, or that the council could then legally pass upon his ob
The objections of the plaintiffs to said reassessment were referred also to the city attorney by said committee, and the city attorney reported that, if Mr. Duniway’s objection that said reassessment was an attempt to impose the cost upon the abutting property without regard to benefits, and as a mere mathematical calculation, was true, the rule of assessment should be changed.
On March 18,1910, the committee on streets reported to the council that they had considered the ordinance for the reassessment of the cost of the improvement of said Seventeenth Street, and the remonstrances against the same; that the remonstrators were called, and, no one appearing, the remonstrances were considered by the committee, and the committee recommended that the remonstrances be overruled, and the ordinance passed. Said report is dated March 18, 1910, and it was filed March 22,1910.
At a regular meeting of the council on March 23, 1910, the report of said committee was presented to the council, and, on motion, it was adopted, the said remonstrances were overruled by the council. Said ordinance was passed by the council March 23, 1910, and approved by the mayor March 24, 1910.
The city gave due notice of the making of the preliminary reassessment and of the time within which objections thereto could be made. The plaintiffs, by their attorney, filed with the auditor their written objections thereof. These objections were presented to the council and read, and, by the council, they were
There is another matter that should not be overlooked, relating to the opportunity given to persons whose lands are reassessed to have determined the amount that should be assessed against their lands to pay for such an improvement. Section 401 of the charter of Portland confers upon persons objecting to such reassessment the right to appeal from the decision of the council to the Circuit Court, and have the amount to be assessed against their property, determined by a jury trial. Hence it appears that the charter of Portland affords the adjacent land owners proper remedies against unjust reassessments by the council.
We think that the city had no right to pile earth and other material upon the abutting owners’ lands, and that, if it was done without their consent, it was a trespass, for which the land owners could recover damages in an action at law.
In Hendershott v. Ottumwa, 46 Iowa, 659 (26 Am. Rep. 182), the court says:
“It is equally well settled that if, in making changes in the natural surface of streets, the city is negligent in construction, so that the adjacent lots are injured by reason of such negligence, the city is liable for such injury.”
In Ashley v. Port Huron, 35 Mich. 301 (24 Am. Rep. 552), the court says:
“If the corporation [the city] send people with picks and spades to cut a street through it [land’] without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the other.”
In Vanderlip v. Grand Rapids, 73 Mich. 522 (41 N. W. 677, 16 Am. St. Rep. 597, 3 L. R. A. 247), the syllabus is:
“In this case the grading of a city street in such a manner as to raise an embankment upon 30 feet of the entire frontage of an abutting lot, and thereby bury a portion of the dwelling-house of the owner therein, is held to amount to a taking of private property for
See, also, Giaconi v. Astoria, 60 Or. 12 (113 Pac. 855, 118 Pac. 180), and Western Penn. R. Co. v. City of Alleghany, 92 Pa. 100.
In this case it is claimed that the city made a fill the full width of the street, and made a slope extending onto the lands of the abutting owners. We hold that the city had no right to do this without the consent of the owners. However, it is probable that the city could have obtained a right to use the property of the abutting owners by proper proceedings and paying for it.
Moore v. Albany, 98 N. Y. 406, 407, is a case closely in point, and the court there says, inter alia:
“As to the embankments outside of the street lines. In grading a street it seems to us clear that the public authorities have no right to invade private property outside of the street lines. If it becomes necessary to use or interfere with such property, they must in some way acquire the right to do so. These embankments were built for the purpose of making the street within the street lines. In order to grade the street to the full width thereof, it was necessary either to build retaining walls on the sides of the street within the street lines, or to support the street by sloping embankments upon the adjoining lands. It is evident that the latter mode was the most reasonable and economical. The lands outside of the street lines are not permanently occupied or used for the street or appropriated to public travel. They remain in the possession and occupancy of the owners thereof, subject to the burden of the earth cast thereon. These embankments are evi
In Marshall’s Appeal, 210 Pa. 538, 539, (60 Atl. 160), the court says:
‘ ‘ The only question argued is whether the city could assess against the abutting properties a part of the cost of stone walls built at places along the sides of
In the case of Davis v. Silverton, 47 Or. 177 (82 Pac. 16, 18), the plaintiff claimed that the proceedings for the street improvement were, as to the assessment against her property, invalid, and she sought to have the collection of said assessment enjoined. The plaintiff had built a stone wall on what she contended was the line between her property and the street that was improved. In said suit she contended that the city, in making said improvements, had encroached upon her land and destroyed said stone wall. In deciding the case the court inter alia says:
“If in reality there was an encroachment upon the plaintiff’s lots, it was not by design to widen the street beyond the true boundary, and it could not, by any logical course of reasoning or principle involved, invalidate the proceedings for the improvement of which the plaintiff complains.
We do not think that the encroachment upon the plaintiffs’ lands or the assessing of the expense thereof to the adjacent owners, in the manner claimed by the plaintiffs, affected the validity of the reassessment proceedings.
If said encroachment upon the lands of the plaintiffs occurred without their express or implied consent, it may be that they could maintain a suit in equity to
The plaintiffs could have prevented said encroachments upon tbeir property by a suit for injunction. They could also have maintained an action at law to recover damages for the injury to their premises by the placing of earth upon them, and to have said earth removed as a private nuisance, if it was a nuisance, under Section 341, L. O. L.
It is a general rule that the remedy by certiorari should not be granted, if efficient relief can be or could have been obtained by resort to other available modes of redress: 6 Cyc. 742.
In Burnett v. Douglas County, 4 Or. 392, Mr. Justice McArthur, says:
In Oregon R. & N. Co. v. Umatilla County, 47 Or. 208, 209 (81 Pac. 352, 355), the court says:
“When it appears in a proceeding instituted by an individual taxpayer to annul the tax assessed against his property, on account of some insufficiency or irregularity in the manner of the assessment or the description of the property, that no equitable grounds exist for the allowance of the writ, it should ordinarily be denied, leaving the taxpayer to such remedies, as the law otherwise affords him”: See, also, Woodworth v. Gibbs, 61 Iowa, 398 (16 N. W. 287); Knapp v. Heller, 32 Wis. 469.
We have examined the questions presented by this appeal, and we hold that the council of the defendant city had jurisdiction to reassess the cost of the street improvement in controversy, and that said reassessment proceedings are regular and valid, and that there was no error in the proceedings of the court below.
The judgment of the court below is affirmed.
Affirmed.
Rehearing
Denied July 14, 1914.
On Petition for Rehearing.
delivered the opinion of the court.
The writ in this case brings up for consideration only the objections to the reassessment of the cost of
We think the plaintiffs had their case fully considered at the hearing by the original opinion. The petition is denied.
Affirmed. Rehearing Denied.