Southern Oregon Co. v. Port of Bandon

178 P. 215 | Or. | 1919

JOHNS, J.

1. The purpose and intent of the act of 1909 was to promote the growth and development of inland harbors in the state, to provide funds for their maintenance and to facilitate transportation to and from the sea. With that end in view and in compliance with the act, the Port of Bandon was created and its boundaries defined by a proclamation of the County Court of Coos County on September 3, 1913. The Port of Coos Bay is also a municipal corporation, joining the Port of Bandon on the north, and was organized under the same law some time previous to the establishment of the Port of Bandon. Plaintiff’s lands, which are valuable chiefly for timber, were not included within the boundaries of the Port of Coos Bay, although it is now contended that they are within the Coos Bay watershed and for such reason should not be included within the boundaries of the Port of Ban-don. It is not claimed that any actual survey was ever made, to determine whether or not plaintiff’s lands were tributary to the watershed of the Port of Bandon, before the County Court made its order establishing that port. But it appears from the evidence that Coos Bay is indeed the true watershed of plaintiff’s lands. It is also true that all parties acted in good faith in naming plaintiff’s lands as within the boundaries of the Port of Bandon, and there is no suggestion or allegation of fraud in that particular. •

An actual survey which required quite a little time and expense was necessary to ascertain the true watershed of plaintiff’s lands, and, owing to the fact that they are on or near the divide between the watershed of the Port of Bandon and that of the Port of Coos Bay and were not included within the boundaries of the latter port, the petitioners of the Port of Bandon had a right to assume that they were tributary to that port.

Under the terms of the act, the exterior boundaries of the port must be specifically described in the petition and if the petition contains the required 8 per cent of legal voters’ names, the County Court is justified in calling the election and in ratifying the result thereof by proclamation, declaring the boundaries of the district to be as specified in the petition. Section 6 of the act declares that the portion of the county embraced within such boundaries shall then become a municipal corporation, and Section 7 defines the powers and duties of such corporation, including the levying and collecting of taxes by it for the purpose of developing and maintaining the harbor. The plaintiff is seeking to enjoin the Port of Bandon from collecting a tax which the record shows was duly levied under the authority conferred upon the port by the act under which it was incorporated.

A witness for the plaintiff testified with reference to its property:

“It is all in some port now because the Port of Coquille [Port of Bandon] took all the land that was left there. * *

‘ ‘ Q. Didn’t you investigate and find at that time that your land was included in the properties of the port?

“A. No.

“Q. Why didn’t you?

“A. I didn’t know anything about it. I didn’t know where the boundaries was until I found out my land was taxed there, and I didn’t.pay any attention to the Port of Bandon boundaries, or the Port of Coos Bay boundaries, it wasn’t any of my business.”

Donald Charleston, who was the engineer in charge of both ports, and who was called as a witness for the plaintiff, testified as follows:

“Q. Would it be possible for a person, except one familiar with the lines and lines of the quarters, making a special investigation for that purpose, to state just for certain whether these lands are in the one watershed or the other?

“A. I don’t think it would be.

“Q. It would be necessary to get down and make a careful investigation to ascertain that, perhaps?

“A. You would have to satisfy yourself, you would have to know how to run the lines, and know that you were on certain corners, at certain corners, on certain lines.”

This testimony explains the true situation.

The validity of the act of 1909 and the proceedings thereunder were sustained by this court in the case of State on Inf. v. Johnson, 76 Or. 85 (144 Pac. 1148, 147 Pac. 926). In the case of State ex rel. v. Port of Bay City, 64 Or. 139, 143 (129 Pac. 496, 497), this court said:

“This notice was sufficient to call the attention of all property owners within the proposed port to the fact that it was proposed to organize a port corporation and to establish the boundaries of the same. By the provisions of the statute the County Court was required to convene seven days after the' election, to canvass the returns, and to enter upon the journals of the court a proclamation declaring, among other things, that the port had been duly and legally incorporated as a municipal corporation. Plaintiff and all others having interests adverse to the organization of the port were, by the publication of the notice of election required by law, duly and legally apprised of the pend-ency of the proceedings, and either before the election or within the seven days intervening after the election could have appeared before the court and pointed out the alleged defects in the petition, and in a simple and inexpensive proceeding have made themselves parties to the record there, and settled by review or appeal to the Circuit Court the questions they here seek to litigate. The finding of the County Court that the port had been duly and legally organized and incorporated, and the entry of this finding in the journal, was a final adjudication of every fact necessary under the law to constitute a valid corporation, including the location of its boundaries, and the matter sought to be litigated here is res ad judicata.”

When the proceedings are completed as the act provides, the port is not only created, but its boundaries are specifically defined and the proceedings defining the boundaries become and are as valid and binding as the creation of the port itself. Pending the final establishment of the port, any interested person may appear before the County Court and make objections to the creation of such port or to the including of his lands within its boundaries and can then, upon a proper showing or petition, raise the question sought to be presented on this appeal. If proper relief is denied, the complainant is then in a position either to review or appeal the action of the County Court in creating the port and defining its boundaries. For such reason, we think that during such time the plaintiff had a complete and adequate remedy at law. That is the force and effect of the decision of this court in State ex rel. v. Port of Bay City, 64 Or. 139, 142 (129 Pac. 496, 497).

While it is true that there is some language used in the case of State on Inf. v. Johnson, 76 Or. 85 (144 Pac. 1148, 147 Pac. 926), which would indicate that, “if the owners of the property so included should refuse to pay taxes to the Port of Bandon, the courts might afford them a relief by declaring such property to be outside the limits of the port,” such language was obiter dicta and unnecessary to the opinion. To the extent that it is in conflict with the case of State ex rel. v. Port of Bay City, it is overruled. The decree of the Circuit Court is affirmed.

Affirmed. Rehearing Denied.

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