State v. Bay City

131 P. 1038 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

This case has been so ably and fairly presented that we regret that the pressure of business in this court precludes us from a more extended discussion of the points presented. This omission is not due to the fact that they have not been carefully considered, but because other and urgent business precludes the editorial labor of discussing at greater length the argument submitted.

1. As observed in the statement of the case, we consider the correction of the journal entry, fixing the proposed boundaries so as to make them conform to the actual order of the court, was an act entirely within the power of the court and proper under the circumstances: 1 Black, Judgments (2 ed.), § 131; Allen v. Sales, 56 Mo. 28; Stevenson v. Black, 168 Mo. 407 (68 S. W. 913).

2. We see no irregularity in the inclusion of certain agricultural land and tide lands adjacent to the shores of Tillamook Bay within the boundaries of the proposed corporation. By Section 2572, L. O. L., the' whole of Tillamook Bay is included in Tillamook County. The language of this section is certainly broad enough to include all tide land situated along its shores. Section 3206, L. O. L., is as follows: “Any portion of a county in this state containing not less than one hundred and fifty inhabitants, and not already incorporated as a municipal corporation, may become incorporated under the provisions of this act, and when so incorporated shall have the powers conferred, or that may hereafter be conferred by general statutes duly enacted by the legislative assembly of this state.” It will be seen from this that the right to incorporate is not granted solely to regularly laid out and platted towns, but may be granted to the inhabitants of any part of a county, and may by necessary implication include any character of land, whether platted or agricultural. The law has wisely left with the county court the power of granting or denying petitions for incorporations, and authorized it to fix the boundaries according to its own best judgment.

3. As we observed in the case of State ex rel. v. Port of Bay City, 64 Or. 139 (129 Pac. 496), persons aggrieved or desiring to object to the inclusion of their land within the boundaries of a corporation are by the published notice of the pendency of the petition called into court to assert their rights and have an easy and simple method by review or appeal by which to correct any errors committed by the county court. Having had their day in court in the original proceeding, they will not be heard to urge, in a proceeding of this character, matters which they might seasonably have urged before the result of the election was declared.

4, 5. There is no uncertainty as to the beginning point. It appears from the record that, as originally laid out, platted, and dedicated, block 20 was included in and designated on the plat, but that subsequently,' and after the plat had been recorded, a new plat and dedication was filed purporting to be a correction of the original, from which new plat block 20 was excluded. It does not appear that any application was made to the county court for the vacation of that part of the original plat omitted in the subsequent plat, as required by Section 3276, L. O. L., and it would therefore appear that the subsequent attempted vacation was void. In any event, there is no other block 20 appearing on any plat of Bay City addition, except the block 20 described in the original plat; and the call for the southwest corner of block 20 is therefore sufficiently certain.

6. Tested by the well-understood rules of law applied to grants of real property, there is no uncertainty as to the last call in the description, which reads: “Thence south along the east line of Adams Street * * to the place of beginning. ’ ’ A literal compliance with this call would take the line 250 feet east of the place of beginning. The call preceding this takes the line to the east boundary of Adams Street. Here there is one fixed and definite monument, and the southwest corner of block 20 is another. The courses and distances must yield to these monuments, and the true course is a straight line from one to the other: Section 878, L. O. L.; White v. Luning, 93 U. S. 514 (23 L. Ed. 938); Sanders v. Eldridge, 46 Iowa, 34; Tognazzini v. Morganti, 84 Cal. 159 (23 Pac. 1085); Anderson v. Richardson, 92 Cal. 623 (28 Pac. 679). We see no good reason why a description of boundaries sufficient to satisfy the demands of the law in regard to a deed should not be sufficient to designate the boundaries of a municipal corporation. Many of the counties of this state have boundaries upon navigable streams; such boundaries being, of course, the center of the channel, which, while mathematically certain, is in fact often difficult of ascertainment. Others are bounded by the summits of mountain ranges equally indefinite in practice, but capable of mathematical determination by surveys. Here there is nothing to prevent an exact practical ascertainment of the boundary , at any time and without delay or survey.

7. It is suggested that the act authorizing the incorporation of towns (L. O. L., § 3206 et seq.) is unconstitutional; but no sound argument can be brought to sustain this contention. It has been on the statute books for many years, has been frequently invoked, and generally acquiesced in by the public and recognized by the courts. Under its provisions, many towns have been incorporated and have grown into prosperous municipalities. If there existed a reasonable doubt as to the constitutionality of the act, we would under well known and often reiterated maxims of the law, be constrained to hold it constitutional; but in this case we can well go further and say that we have no doubt as to its constitutionality.

The judgment of the Circuit Court is affirmed.

Affirmed.