Roe v. Union County

| Or. | May 23, 1890

Thayer, C. J.,

delivered the opinion of the court.

The order of the county court of April 6, 1888, was erroneous and the circuit court properly annulled the same. Said county court on March-6, 1886, had in effect determined that the proposed road would not be of sufficient importance to the public to cause the damages assessed and determined by the viewers to be paid by the county, although such was not its terms. A county court in a proceeding to lay out a public road, before attempting to establish the same, must be satisfied that it will be of public utility. It must then be satisfied that the amount of damages assessed for the opening of the road is just and equitable, and that the proposed road will be of sufficient importance to the public to cause the damages so assessed to be paid by the county, in which case it will order the same to be paid to the complainant out of the county treasury. The court may, however, where it is of the opinion that the proposed road is not of sufficient importance to the public to cause the damages to be paid by the county, establish it as a public highway; but it cannot do so in the latter case unless the expense or damages, or such part thereof as it may think proper, be paid by the petitioners. The order of the county court of the sixth of March, 1886, instead of directing “that the viewers and surveyors report and the plat of the road be recorded and established as a public highway, provided the petitioners pay the damages awarded,” should have concluded as follows: “But the court being of the opinion that the proposed road is- not of sufficient importance to the public to cause the damages to be paid by the county, it refuses to establish the same as a public highway unless the damages be paid by the petitioners. ” In that case it would have been left with, the petitioners whether or not the rood should be established; and if the petitioners then came forward and paid the damages, the court could, by a supplemental order reciting the facts, have established the road. The matter, however, should have been consummated immediately, or at least during the term of court then in session. The said order, last referred to, was not in the form suggested, but it could not have any different legal effect, as the court could only do those things which the law authorizes it to do. It was, therefore, no more in fact than an intimation from the court that it would establish the said road upon compliance with the condition therein contained, and it had no authority to do so without such compliance being made during that term of the court. The order therefore of April 6, 1888, was a nullity.

The decision appealed from will be affirmed.