Thurman v. Multnomah County

140 P. 626 | Or. | 1914

Lead Opinion

Mr. Justice Eakin

delivered the opinion of the court.

1. The ground attempted to be included in the boulevard is not affected by the dedication of St. Johns Heights by Hartman, Thompson & Powers on the 17th day of February, 1902, for the reason that the ground platted extended south only to the north line of Willamette Boulevard, and does not dedicate the boulevard or any ground included in it. The only question that might be considered open for discussion in regard thereto is whether Hartman, Thompson & Powers, having marked upon its plat some of the lines of blocks 21, 22, 23, and 24, and the intervening streets, and the Willamette Boulevard as bounding or adjoining the ground platted, and at the time of filing the plat owning, also, the ground south of the St. Johns Heights, are bound to a dedication of such boulevard or street. The deed of dedication of St. Johns Heights has no relation to said boulevard, nor does it affect any land .except that bounded by its terms. There was no purpose to affect the original dedication or plat of A. L. Miner’s Addition south of the north line of Sixth Street, and the court cannot now give it such effect. Plaintiffs’ deed from Hartman, Thompson & Powers describes the property in question in this case by the original plat, upon which plaintiffs have a right to rest their title.

2, 3. What effect the vacation of the ground now covered by the St. Johns Heights and the dedication thereof by Hartman, Thompson & Powers has on the portion of the lots extending south of the north line of the boulevard, namely, to the north line of Sixth Street, is immaterial here, and we do not decide; but it has no effect upon the lots in block 22 of A. L. Miner’s Addition. Therefore no part of lot 1, block 22, was dedicated to the public as a street, and the record shows that the whole of lot 1, block 22, has at all times remained in the exclusive possession of plaintiffs and their grantors. It has not been acquired by the city by adverse user, and the question to be determined is whether the lot has been acquired by the public by the exercise of eminent domain, which was attempted by the City of Albina under Section 82 of its charter, of date February 20, 1889, page 258, and Section 83 thereof, as amended February 20,1891, page 945. Said Section 82, in relation to widening streets and condemning private property therefor, provides that within 60 days from the adoption of the surveyor’s report the council .shall appoint viewers to assess damages accruing to the owners of the ground taken and benefits resulting to the owners, and “shall assign a day and place for them to meet, and shall cause a notice to be given * * and the police judge shall send by mail postpaid a copy of such notice to each owner of property affected by such proceeding.” There is no provision in the charter as to what notice must be given to the owner, that is, for what length of time before the meeting of tbe viewers; but tbe record is entirely silent as to tbe giving of any notice by tbe police judge to owners, and therefore Miner was not bound by the attempted condemnation of a portion of lot 1, block 22. When Hartman, Thompson & Powers conveyed to plaintiffs, they simply conveyed the lot as platted in Miner’s Addition. Therefore plaintiffs took the whole lot, and are entitled to have it quieted as prayed.

4. The city in eminent domain proceedings is an inferior tribunal, and must strictly comply with every prerequisite of the statute. If it does not, its acts are void: Northern Pacific Terminal Co. v. Portland, 14 Or. 24 (13 Pac. 705, 708).

The decree of the trial court is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.

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Rehearing

Denied May 26, 1914.

On Petition for Rehearing

(141 Pae. 1015.)

Mr. Justice Eakin

delivered the opinion of the court.

Neither plaintiff’s property nor the deed therefor has any relation to the plat and dedication of St. Johns Heights, nor has the plat or dedication of the latter anything to do with the Willamette Boulevard, other than it is referred to as a boundary thereof, not being included in the platted ground or dedication. Plaintiff’s property or deed therefor has no reference to blocks 18, 19, and 20 thereof, nor have the parties interpleading any rights or interest in the subject of the litigation, other than to sustain the contention of the defendant Multnomah County for a 100-foot street. The authorities cited by defendant’s counsel are not in point, as those cases refer to streets disclosed by the plat under which the grantee claimed. Plaintiff’s deed makes no reference to the Willamette Boulevard, and there is nothing shown in this case that amounts to an estoppel against plaintiff.

The petition is denied.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.