JlURNS V. !dULTNOJU,H R. 00.
177
BURNS
v.
MULTNOMAH
R. Co. ,
(l'h'rcuit Oo'Urt; D. Oregon. February 23.1883.) 1. COUNTY RoAD-JURISDICTION TO EsTABLISH.
The county court has no jurisdiction of an application to establish a county road, except !upon the petition of 12 householders of the vicinage, and notice to the persons,concerned. M prescribed in seQtjons and 3 of the road law. , Oregon Laws, 72], :&. SAME-ORDER
An order esiablishing a countyrriil.d mustditect the surveythereono be recorded; land where the,oroer. provided thM the s1AA"rey shOUld be recl,lrQ.ed when the gave, a ,J;>ond,yc>ppen a of the proposed roa!!:, wIlich was ' never done, and the record never ,p,ade, the roal! was not established:, 8. LiriGfSLATURE"",;PoWka OF, TO LEa'ALIZE ACTS
dF
COUNTY COURT.
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The legislature may legalize:the act of a COUi1ty ciourt in establishing a road not. without, nl>ticC:!t!> the persons concerned. without a legilJ' petition, 4. TAKING PRIVA,TlllPROl'ERTY FOn,PUBLIC USES. .'
(O'r:' Const. art. 1, § 18) from ,taking private property for' pubif6 uSe Without j'uJt' compensation therefor, it is' necessarily eo.tak<en shall have notice of implied theteby that the owner of the. the proceeding for appropriation, and an opportunity to be heard 5. FOURTEENTH AMuDQNT..... PROCESS ,OF ,LAW. " "
, ' UndertJ;1e fourt.eenth amendment a'Btatecannotappropriate private property for'any purpose without due proceSs oflaw, whibb. includes notice of the proceedinglt'Ild a prescribed :opportunity to. be heard upon the question involved. 6. OF THE USE OF A STREET TO A RAILWAY
A grant by a county court, under sectiOn 26 of the corporation set, (Or J"8WS, S30,) of the use of a street to a railway corporation for the purpose 'of constructing and operating a railway thereon, is a grant ofa franchise, and the order or agreement making the same must most strongly against the cor· poration and in favor of the public, so that nothing shall pass thereby but what clearly' appears to have been intended. ' 7. Sum-CAsE iN JUDGMENT. Where the agreement authorized a corporation proposing to construct a railway from Albina to Vancouver, to la,Yits track through the former place upon c!Jrtain streets therein, "beginning at the ferry landing at the foot of Mitchel street," and it appearing thatllaid ferry landing and Mitchel street were different and not contiguous places, held, that the ambiguity must be resolved against the corporation, fl,ud the agreement construed as if it read, tile foot of Mitchel street." simply, 8. ApPROPRIATION OF STREET 01\ HIGHWAY BY RAILWAY.
A railway corporation> cannot be authorized under section 26 of the corporation act aforesaid to. appropriate a public street or road to its use, unless 9uch road or street has beeu legally accordinjt to some mode ' " prescribed by statute.
Suit for an Injunction. George II. Williams, II.' Todd Bingham,' and E. W. Bingham, for nlaintiff. v.15,no.3-12
o. B. Bellinger, for defendant generally; and Joseph N. Dolph, as to the right of the conbty C:Ol1rtto appropriate 'Rr public road or street for the use of 8., to, the, owners of the adj acent property. DEADY,J· . to iIledefendant from obstructing the way to and from the east side of the Wallamet river, at the southern endaf river block 19,'in the town of Albina, and just north of East Portland. On filing the bill, on January 8, 1883, an order was'made that thede{endantshow cause why a pr9vWonal injunction should not iSBue,and that the defendant oe restrained in the melin time, as bill'.';rhe application 'for a provisional was heard on, the bill and answer, a.nd sundry affidavits and ,exhibits, 'From these it' appears that the plaintiff is a British 8ubjedt, and the'defendant a corporation organized under the laws of OrE;lgon sincl3 May 11, 1882, for the purpose,' "in part," of con·' structing railw.ay from or,near E'ast Portland or Albina to the Columbia river, opposite the town of Vancouver, Washington territory. ', ' On May 28, 1873, GeorgeH. Williams, W.W. Piiga, and Edwin Russell were' tract of land on the east side of the river" inc1uding the premises now claimed by the plaintiff, upon which they then laid out the town of AlbiM, 'and and said Russell being th'enthe o\vuerqf said laud.' .', , , Astreet: called Rivel .:street, .being 60 feet wide and running from thE! northern limit of East Portland', northerly, arong and parallel with the river and'about 180 feet'distant therefrom, was,MIy designl1ted on said plat; and the land between said street aI\dt4a below the ferry landing, was divided thereon into blocks called southerly one being designated and 'numbered as 19." But ,the to the southward of block 19, and to the westward of River street, containing about one alld a half aCi'es, wti:s 'not laid off into lots or blocks. ' A street called Mit?hel!;ltreet was also upon said plat as commencing at and; 1=HoniD:g, easterly s,treet-its width being 60 feet,' and the centerline thereof abQut80 feet distant to the north ward from· the soath'erly side' of, blook 19. ' On August 4, 1875, a strip of land about 60 feet in widtli and adjoining block 19 on the southward, and extendtingfrom the water line toBi"e:r stteet",Was used"bythe piIblici,tw:ith the consent of the proprietors, as a way to and from the ferry which plied between
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It. 00.
179
Albina and North:Po!lUand,; and·'On that and others, but who or how.many oth'ers does not appM:r, petiti()ned the county court of Multnomah county "to open a county road leading·from the in a direction ferry bnding in the town-site of along the line .of tHe new .graded road'fto the Vancouver road ; thence northerly along the:said Vancouver road td the north line of section 27, of townsbi,pl range 1 E', ;:"'.theqceby course and along andthrdugh said sections 23.and24 of the same -township ; and "thenee northerly and easterlY',.follbwing, whereverpracticable, what is brown as the Payne road, to:the Slough road;" whereupon the comity doutt·.made an order appointing viewers and a surveyor "to vieW and: survey said pi'oposed road;" On September 4:,1875, said viewers:filed their report, together with .the notes of the StlTvey, reciting therein that they had been appointed and· looate., a proposedcountyrroad\ beginning at the ferry landing in Albina and running northerly and easterly to the Slough road, 'near. the residence of Benjamin Srinderlnind/'aDQ recommended "that the 'prayersof the petitioners be grlmted,on oonditionthat'they shall open althe line:between the middle of sections 93 expehse." .andr24" : :. On Septembel' 13th the rco:tlntyc:ourt made said J:'eport, anddecla.ringl'f that:the;prQposed ifoltdbe and·the same' is hereby declared, to ,be a couhty road, accQrding to. the thereof on file ,in Jhis court,npon the condition that the. petitioners for the same shall file in this court a bond, to be approved by the court;, in the sum of $560.; said b<md con,ditionedtha.t said petitionerswill. openthllit portion ofsa.id road lying between the middle of 'Sections 23 and 24, township l' N., range 1 E.! at their own expense; with' the fore8mng cbndition and tllat,upon said notes of survey be length in: the record of rt>ad surveys, and that said road be declared to be a. county road, and that the supervisor cifthe rciaddistrict 'do open and, work ,said road as .", other roads in hisrdistrict/' These fa6ts concerniilgthea.pplwation for 'and the view and sur;vey of this proposed road are shown by:s. certified copy;: of the entries in' the records. of the countyc()Urt;but the, petition ,itself is not :the a.pplieaAiion, dated found. A paper :purporiing tobea eottrt,with 'a.n affidavit July 6,1875, is found8tmong,the files .of Douglas indorsed ;the1!eon; showing: tha:t fit duly posted; but .itds not signed,by' ,any uoe,riordoe$it in a:ny way ,at .Jwllose instadce'Jit. :was potted.., '; N01'vdoes it,a.ppear that the petition-
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180
FEDERAL RJ:PORTElR...
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ers ever gave the: bond opened the'road, as required by the order of court, or that the said "notes of survey" were ever recorded in the "record of road.surveys," as provided thereby. In th year 1879, J. B. Montgomery became the owner of the undivided interests of George H. Williams and W. W. Page in said tract of land, and prior to January 5, 1883, he became the owner of whole interest therein, at which date he said and conveyed to the plaintiff, for the consideration of $16,000, a portion of the premisAs, about 80 feet wide., lying on the southerly side of block 19 and adjacent theretO', and extending from the water line to River street,together with the vendor's interest in the 80 feet of said street adjacent to the premises, and in the tide and overflowed lands in front thereof; reserving a ferry landing thereon foi· the ferry licensed by to the' vendor and: Wilson on the January, 1883, with "egress to andfromsMd landingaoross the saidpremises.':' On October 5 and December 6, 1882;, the county court, upon the application of the defendant, ordered and agreed with it to the effect that it might cOllstructand operate a railway, propelled by steam or horse power, for the transportation ofpasseng.ers through the town of Albina-'-"beginriingat the ferryla.nding.at the,foot of Mitchehtreet; thence along said street to and thence along sundry named streets and the Dounty road leading to St. John to a "gulch" nearly eal;lt olthe" coal bunkers," below Albina-upon the conditions following ·. '(i) The of steam is confined todutnmy engi·nes, such as are commonly in use in,eastetn cities; (2) the cars rare not to be run Fhrough'Albina-faster than six: .miles all bj>ur; (3') the tvaok is to 'conform tothe,gl'lJ.dl!' o(the streets of Albina as or, may such
or
Inthe,ans\fer'o;f the defendant (it is alleged that it h818 already expanded ua.ooutJlI40,OOO in ror the construction" of its road, but it ,does .notappelir th'!lt anything hssbeen done on the ground, towards such construction, but the trestle-work upon the land conveyed to the':a,pparerrtpurpo.se of :asa .starting place for the 'cars-, in laying connection with, a, w.aiting.;house: or station ta.be constructed at the easterly end: sind solitherlyside dof This trestle-work is . constructed ,three'feet -above ,the: grade '01", ground at the .upper' or . antic a ,ha.lfi ;·feet at ;the .lower or westerlyerid. It is 60 feet IO:l1g .and nve,feet in width across the stringers, and t3ight feet across the oapsofthe bents.. '0 enter of it is 40 feet
BURNS, V ·. MUr"TNOMAB B. CO.
181
from and parallel with the southerly side of block 19, and, the upper end is within 20 feet of the westerly side of River street, while the lower end is 100 feet from the water line; and it is understood that the upper end is to be extended to River street, and a waiting-house erected on the southerly side of this 20 feet, and a platform constructed, at the lower end with a stairway leading therefrom to the ground, with a view of facilitating the egress of passengers to and from the present ferry landing. The rests his right .to the relief sought upon the following grounds: I
(1) There is no comity, road between the ferry landing and River street, },o.
cause the county court did not acquire jurisdiction to establish one there, fur the reasons: (a) The notice of the,application wasanonymous--not signed by any (Jne: (h) the petition was not signed by ,12 householders of the vicinage, as required by statute. (2) The order actually ,made by the court was a conditional one; to take effect wkenthe petitionel's, gave a'bond ,to open a1pot. tion of. it" which was not done. (3) The notes of the survey were never. Iecorded and therefore: the road was Dot established, even if the court had jurisdiction. (4) Said notes were not recorded, because the cl)urt in effect directed that it should not be dODe untiL th,e petitioners! filed the bontlas required. (5) If a legal road between the ferry landing and defendant is,not to oqcu,Py its licen,se from the county to use tbe streets of Albina, in legal contemplation, begins at the foot orwesterly endoi- MitChel street, on the easterly side of ltiver street,and not at the ferry landing. (6)'!And if'thelicense to defendant authorized it to begin its track at the ferry landing, it is not thereby authorized to occupy or use the road Ol'street withatrestle-'work andwai.ting-house, which not otllyobstruct the use of'therilas highways, butshlltoff any aooessto! them from the plaintiff''S adJoiriing property. 'And (7) the not anthorize the d-efendant to appropriate any portion of a pUblic'toaefor,street to its'use for the l'Ul'po86of a l'ailway' track without ·first making'compensation to' the adjacent property holders,lnoluding the plaintiff, for the additional burden imposildon ,such road 01' street. ' I '
The defendantsllbstantially: admits that, the proceedings had in thf) county court .on the vetitioqs of Edwin Russell,eoncemipg .this the legal rtbtice and petitidn', but maintain,s ."its. rig,ht to' ,the sam.e, sons following: . .., .. , . , ',' , i'L , , , .. wayto public p;ropJ,'ietors of. tpe, property before the applica,tionto .thll county road there; (2) Edwin 'Russell,underwliJom plaintiff claims" h,ayiI)g instituted the proceeding ih the county court 'f'orJthe establishment Is estopped 'to deny lUI 'talidity,ahd the plainti1f is sO (3) that by the prov,is"Oct& section 4 of: the road laow, (01'. Laws·. 721,), as amended
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182
FEDmRAL BEPOBTE&
by the act.tof.Octobk24,'fSlB2,,(Sess. Lawsj'60,) whiChrea<.ls, ., that all roads viewed, ,8j.)ryeyed, l\lll;! :recOJ;,ded by order of any cQunty court of thi.s state to 0ftoJ:>erI2p, lS70, and the said road has been defeated by remonstran.ce, as now provided by law, Qr has not been made or declared vacant by ex!shhg"laws, shall be al1d the same are hereby" declared public road is as a public highway according to the survey thereof; (4) that by section 26 of the corporation act (Or. Laws, 530) the county court was authorized to agree with the defendant for the use of any public road or street in the county, and not within the limits of any mnnicipal; to 10Gla.te and construct its rail way, and that in pursuance thereof it did authorize the -defenaant, by the order and agreement above mentioned, to use the road leading from tile ferry landing to River street, and said street from there to the foot of Mitchel street, for said purpose; and that the establishment or dedication of a road or street as a common highway, either by public authority or the act of the owner of the property, is, since the passage of the corporation act aforesaid, October 11, 1862, impliedly! made subject to the power of the county, court under section 26 thereof, aforesaid, to impose upon such road or street a further publicuse by authorizing the location and operation of a railway thereon, without any 00mpensation therefor being made to the owners of the adjacent property.
Thepl9iitlt.iff, replying to the proposition of the defendant that by the,heaHngopeiation,of thepi'oviso to section 4 of the road law, as above quoted:: this way has'become a valid county road, says. " ' " r .' ,
(1) This prov!&<>, is void, the subject of it is not expressed in the title of the act. in ,which it is contained, as required by aection20 of article 4 of the constitution of the state; (2), it is not applicable on its face to roads which have, deel!l\redvacated "or void" by existing laws," as this one had in feet;. then been,by the decision ,of the supreme court of the state in Minard v. VQuglas 206; (3) the proviso as claimed by the defendant is an exercise of jutlicial ppwer by the legislature contrary to sect:on 1 of article 3 of the ronstitution of.the state, and therefore void; and (4) it is also void because thereby the atate undertakes to deprive persons of their property without due process of law, contrary to section 1 of article 14 of the national constitution, which, among other things, provides: "Nor shall any state deprive any person of life, Uberty, or property without due process of law."
Havipg the and the. grounds of the contention between,'the at some length, as developed o,n the argument, I will briefly the same 80 far as may be necessary to dispose of the motion for a provisional injunction. And,.M:8t,the 'proviso in the ,act of 1882 cannot have the effect to validil.te tlle road in,ql1estion. 'A road "viewed, surveyed, and the order of without the petition of 12 hOOlseholders, and due notice of the application to persons inother words, upon its terested therein and to be affected
BURNS,'t>. MULTNOMAHB. ·CO.
183
own motion,-is void and illegal. This is 'n1pon both reason and authority. See Minard v. Do'llglas Co. 90r;'206. 'Can the legislature make it legal by 'declaring it to be so, notwithstanding? Clearly not, unless it, had the established " it in that manner in the first place. It may be admitted that the' legislature can authorize or provide for the establishment of a high.. way without a petition from anyone, and therefore it may legalize one which has been otherwise dlily established by the couritycourt But the legislature cannot tl.ike private property for public use without "just compensation." . Article '1, § 18, Or. Const. And how can it ascertain or ma.ke such compenaationnniess thiBownat of the property has reasonable notice cjf the proceeding and an 'o'pportunity to be heard upon the question? . It isti'ne that taken by the state, as"in this case, the constitution does not require the compensation to be "assessed and tendered" before the' property is taken. But, even in that case, the law which provides tor :the taking mugt also provide for the assessment and, pa:yment'ofthe at some: time-in tbe 'proceeding, and be· done ex parte, which I --very much doubt" legishHurs' cannot authorize the appropriation pi'iV'atepropertyto' ptiblio 11IMs "without hOtice to the owner, and.therefore cannot legalize-a.pliooeeding for that purpose when it has been had witliOut such notice. B.ut under the fourteenth amendment it is' too pfainf@r'argument.that the' lltate cannot, by the agency' bf either its legisla.tive 'or: judicial department, take the property of any person, for theestablishm&nt of a highway or other purpose; :«lw ithoutdueproc8sB Of law.'! And, this,it is generally agreed, includes at least legal notIeebf the proceedingand a prescribed beard nponthe question involved therein. The Rail1.iJay,:Tax Oases, 18 FED. RJl:p.,FIELD, J., 748, SAWYER, J., 762; Stuart v. Palmer, 74: N. Y. 183; Davidson --v'. New Orlealls,'96 U.S. 99; This provision of the common constnution of the ,oountry was' intended, as was said by this court, (In re Ah' Lee,6 SaWY'. U4;-)as a "bulwark against local tyranny and 'oppression;" tecting operation, this proviso, a's toatfyl'ottdWhich has been "viewed, sUTveyed, and rec6rded" by the order of any county cou11, 'Without notice to the owner of the'jpropm-tyapipropriated tHerefOr, !is:sil:l1ply void. But',' aveh if this 'prOVISO vllllid, this road' is' not 1vithin' its purview. it was never :byordet of tl1el:eounty' court,'or '81$:
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184
FEDERAL REPORTER.
all. ln fact, H! record was postponed by order of the county court. until the petitioners should give bond for the opening of a portion of the proposed road, whioh it seems thElY never did. And, further, by the Vel"y terms of seotion 5 of the road law, (Or. Laws, 723,) until tt? report of the viewers, the survey, and plat of the surveyor were recorded by the order of the oounty court, a proposed road is not considered eatablisl:ied as a public highway. Neither WitS Edwin Russell estopped by his petitioXl for the establishment of this road to deny ItS legality, or. that it ever was established. It is not claimed that any one else was estopped by the proceeding. Certainly the public were not, iXlcludinghis co-tenants, George H. Williams and W. W. Page. Estoppels, to ,be effectual, must be mutual. But, so fat:,ns appears,RuBsell dec.lined to accept the road upon the terms' propoSed in the Qrder of the court, and therefore, it may be, felltbrolilgh. Nor is the plaintiff est9Pped forthisl'eason'if Rlissell is, for he dges not appear. to claim under Russell for mQretha.nan undividcnl Pl1e-half of his property, and he may assert any right pertaining to his ownership oUhe otb,er half as if that was the whole of interest.. does the show It dedica. tion of the road by the. the public as a highway. So far as appears, it is not shown or designated.on the town plat as a way of any kind; and there is no other evidence of dedication worth mentioning or con'siderb;lg. It is admitted that there has been a user of the'premises as a way for seven or eight years with the knowledge and consent of the proprietors. But that is not sufficient to establish an adverse right in the public. as against the owner. To have this effeet, the use must have the duration and character necessary to establish the bar of the statute of limitations against an action for the possession. It must have been adverse under a claim of right. The agreement between the defendant and the county court for the use of certain streets in Albina is uncertain and ambiguous 8.S to the point or place where the former is authorized to commence the laying of its track. So far 8S Albina is concerned, the petition is spoken of in the order as an application fortheuse of "streetB," and the road or way between the ferry landing and River street is not mentioned direotly or indireotly. The license is to lay a railway track and "to operate thereon a railway" "through the town of AI· bina," "beginning at the ferry landing at the foot of Mitohelstreet." But there is no "ferry landing" at the foot of Mitchel street. The "ferry landing" and "the foot of Mitchel street" are different
BURNS V. MULTNOMAB R. CO.
185
places. Neither are they contiguous; and there is no mention of or reference in the agreement to River street, which must be used for or road about 100 feet to connect the upper end of the ferry with the foot of. Mitchel Iltreet. The first call may well include the land from low to high water mark, opposite' the landing, and this it . is understood will carry it up to River street and beyond. The second one is a more limited and definite point, though there is probably a well-grounded contentiona,s to whether the end-of . Mitchel street is at the easterly or westerly line of· River street. This agreement is the grant of a. franchise or special privilege by the public to the defendant, and must be construed most strongly against it. Any material doubt or ambiguity in it must be resolved in favor of the public. In Stourbridge Canalv. Wheeley, 2 Barn. & Adol. 793, the court of king's bench sa;y: .. The canal having been made under an act of parliament, the rights of the plitintiff are entirely from that act. 'rhis, like many other cases, isa bargain between a company ofadventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this:. That any ambiguity in the terms of the contract must operate against the adventurers and in favor of the pUblic, and the plaintiffs can claim nothing that is not clearly given them by the act."
In the Charlts River BridgeCa8e, 11 Pet. 544, this langl!age \Vas cited by Mr. Chief Justice TANEY with approbation, and the rule of construction contained therein applied by the court to the ease un· der consideration. As the agreement is so ambiguous if not contradictory as to the place of beginning, it must stand) if at all, as a license for the lesser privilege and more particular designation ratrher than the greater and more general one-as if it read, "Beginning at the ferry landing, to-wit, at the foot of Mitchel street." And this, I think, was what the court contemplated in making the grant; for it is not reason· a request to lay a track through the able to suppose that in "streets" of Albina in the construction of a railway from that place easterly to Vancouver, that the court ever thought of authorizing a track to be laid upon the "road" leading down from River street westerly to the river. Neither do I think that the license of the defendant authorizes it to construct such trestle-work as this, or plat. formsior. the use of cars or waiting-houses for the convenience of passengers, on any road or street. It it wants property for any such exclusive use or purpose as that, it must obtain it elsewhere than on
186
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lfEDERAII
REPOR'l'EB.
a public road or street, and 'by purchase from those to whom it belongs. Its license is to lay: ,8. track on the grade, of the streets as they are or. may be, so that it will not materially interfere with their use for the purposes of ordina.rytravel. The erection of awarehQuse or a roundhouse upon this ground would not more materially interfere withlthis.use than the. trestle-work and waiting-house which the dElfendant is engaged in co:qstructing·. Upon this.view:of the matter It provisional injunction must issue. Therefore it is unMe.eflsQ,ry tO'decide whether the defendant can be authorized by theco-untycoul't to appropriate a public or street for the construction:8ind:operation of a, railway without compensation tO the. o.wners of· the adjacellJf;, property for ,the new and additional burden thus imposed on the land. The.que13tion,'h(i,s; beEl:nthoroughly argued by counsel and I have a decided impression upon it. But it is one upon which I prefer not to ,the decision of the court of the state if I can avoid there is Eluggestion whi?h may. not be amiss ..here,and,thatiill,' that the p;ro;vision oithe corporation act, authorizing the,;ooimtyoourt to allow tbe use of a "public road or street" for "thaloeationand construction "of It railway or other road, only applies to .. rO/td or,' street legally established according to sottle mode not toone that exists merely as a offact.·a.nd by sufferance of the owner of the proper.ty., or by mere parohladicatioI;l. .or .. Let the prQvisional injunction on the plltintiff's giving bond, to the approval of the master of this court, in the sum of $10,000, restraining 'as, prayed for in the bill until the finding or further order of this court. l
TRAVER and others v. BAKER. (Oircuit Oourt, D. Oregon. February 16, 1888.) 1. PARTITION OJ' LANDS.
'A partition :of a tract of land, by a judicial decree, between part owners of the tract, does not challgethe character or origin of the title of any of the parties, but the portion which each takes in severalty under the decree is, in contemplation 0'[ law, the very portion which belonged to him as tenant in common, liiidhe holds' it thereafter ·under the same title and subject to the same obligations, covenan.ts, and contI'acts as before.