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a court of equity, "yet this rule is by no viaduct which will require a fill does not means universal, and, in fact, the weight of make the portions of the improvement on authority supports the doctrine that evi- either side of it two improvements, requirdence of this character is also admissible ing separate proceedings, under a charter in an action at law.” 9 Enc. Ev. 344. This providing that the improvement of each rule is supported by the

weight of modern street or part thereof shall be made under a

separate proceeding. authority. 17 Cye. 702; Wigmore, Ev. $$

Certiorari to review special assess2413–2415. See also Putnam v. Prouty, 24

what open to consideration. N. D. 517, 140 N. W. 93; Gorder v. Hilliboe,

2. Upon certiorari to review the action supra. But, “in order that parol evidence of a municipal council in reassessing the may be admissible to show a mistake in a cost of a special improvement upon abutting written instrument, the existence of such property the court is confined to an exammistake must have been alleged in the plead. ination of the records and the proceedings ings.” 17 Cyc. 703.

of the council resulting in the assessment. It is established by the undisputed evi- Tax special assessment certificates dence in this case that the crops intended

of apportionment presumption as

to truth. to be covered by the policy were destroyed;

3. A certificate of the auditor whose duty that the loss was adjusted by the adjuster was to assess the cost of a street improveof the defendant at the amount for which ment on abutting property, that he had the trial court rendered judgment; and it made the assessment in proportion to beneis conceded that the plaintiff suffered a loss fits, is presumed to be true. for at least the amount of the adjustment. Same effect of trespass by city. It is inconceivable how defendant was in 4. An assessment for a street improvement any manner injured by the mistake in the is not invalidated by the fact that the muapplication and policy. It is not con- nicipality, in making a fill in the highway, tended for one moment that there was any without obtaining a right to do so, and

extended the slope onto abutting property extra hazard in township 157, range 51, thereby became a trespasser, although the which did not exist in township 158, range expense of the encroachment is included in 52.

the assessment. We are entirely satisfied that the judgment of the trial court, under the undis.

On Petition for Rehearing. puted facts in this case, is entirely just and

Tax review of assessments proper and should be affirmed.

It is so

sity of appeal. ordered.

5. The objection that an assessment for a street improvement is void because a portion of the improvement extended upon

private property without acquiring the OREGON SUPREME COURT.

right, and that it is not made on the theory (Department No. 1.)

required by statute, may be raised by review

of the assessment without the necessity of JOSEPH REIFF et al., Appts.,

an appeal.

Appeal petition for rehearing - form. CITY OF PORTLAND et al., Respts.

6. The grounds for a petition for rehearing

of an appeal should be brief and concise, (71 Or. 421, 141 Pac. 167, 142 Pac. 827.)

and made separate from the argument.

Public improvement objection to asHighway improvements single

waiver. proceeding.

7. Where the statute provides for filing 1. That a section of street which is to be objections to a municipal improvement, taximproved as a whole contains a wooden payers waive the objection that two separate Notc. - Public improvement: validity at least, to the manner in which the assess

of assessment as affected by unlaw- ment is attacked; that is, whether the ful invasion of property rights. owner of the invaded premises, or other who

has been assessed, is seeking to avoid his I. In general, 772.

assessments, or whether the validity of the II. Theory that invalid part of assessment entire assessment is attacked. There is may be separated from valid, 776. also considerable indefiniteness in the re

ports of the cases as to just what relief I. In general.

was sought.

An assessment upon the land which is unConsiderable conflict is encountered as to lawfully invaded in making the públic imthe validity of assessments as affected by provement is invalid. the fact that there has been an unlawful Thus, one through whose land a drain invasion of property rights in making the had been constructed without first compenimprovement for which the assessments are sating him therefor cannot be assessed" for laid. This conflict seems to be due in part, the construction of the drain. Re Cheese

neces

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sessment

portions of a street were included in one

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PPEAL by plaintiffs from a judgment of proceeding by failing to raise the question the Circuit Court for Multnomah Counat the time the statute provides.

ty in defendants' favor, in certiorari proSame - review of assessment - effect ceedings to review certain proceedings of of judgment.

the city council in making a reassessment 8. Irregularities or defects in proceedings of property in the city for the payment of for a public improvement, and the assessment of benefits therefor, which are not street improvement expenses. Affirmed. brought to the attention of the court in a

The facts are stated in the opinion. proceeding to review such proceedings, are

Mr. Ralph R. Duniway, for appellants: waived and cannot be brought forward in a When objections are made by the propproceeding to review a reassessment made erty owners to the reassessment, the counin accordance with the judgment entered on cil must hear and determine them. such review.

Hughes v. Portland, 53 Or. 383, 100 Pac. Same trespass on adjoining property 942; Morgan v. Portland, 53 Or. 368, 100 -retaining wall liability for excess

Pac. 657; Duniway v. Portland, 47 Or. 103, of cost. 9. The cost of extending a fill for a street 50, 66 Pac. 439; Portland v. Oregon Real

81 Pac. 945; Thomas v. Portland, 40 Or. improvement over onto adjoining property Estate Co. 43 Or. 423, 72 Pac. 322; Kadcannot be assessed against the property benefited by the improvement so far as it derly v. Portland, 44 Or. 154, 74 Pac. 710, is in excess of the cost of a proper retain- 75 Pac. 222; Terwilliger Land Co. v. Porting wall.

land, 62 Or. 101, 123 Pac. 57; Rogers v. Same review method.

Salem, 61 Or. 321, 122 Pac. 314; Jones v. 10. The facts upon which an assessment Salem, 63 Or. 126, 123 Pac. 1096; Cook v. for a public improvement is based and the Portland, 35 Or. 383, 58 Pac. 353; Oregon result of the assessment cannot be reviewed Real Estate Co. v. Portland, 40 Or. 56, 66 by writ of review where the statute provides Pac. 442; Oregon Real Estate Co. v. Gamför an appeal, where the facts may be passed bell, 41 Ór. 61, 66 Pac. 441; Oregon Transupon by a jury.

fer Co. v. Portland, 47 Or. 1, 81 Pac. 575, (Burnett, J. dissents.)

82 Pac. 16; Hamilton, Special Assessments,

§ 823; Workman v. Chicago, 61 Ill. 463; (April 28, 1914.)

Schintgen v. LaCrosse, 117 Wis. 158, 94 N. brough, 78 N. Y. 232. It is stated that, upon one whose land had been improved for the construction of a drain through private street purposes without his permission, and lands without compensation to the owner without condemning the same for public for the land taken cannot be authorized; use, was held invalid in Baker v. Norwood, that the authorities who construct such a 11 Ohio C. D. 371. drain without the consent of and without A special tax to pay the cost of grading compensation to the owner for the land a street through private land was held intaken are trespassers, “and an assessment valid in Leavenworth v. Laing, 6 Kan. 274; to pay for the cost of the wrong cannot be also the objectors in this case were those legally laid. In other words, the petitioner through whose land the street had been cannot be compelled to pay for a trespass graded. No statute is mentioned. committed upon his land."

A similar decision appears in Culver v. An assessment for a drain constructed Yonkers, 80 App. Div. 309, 80 N. Y. Supp. without lawfully acquiring the right of way 1034, affirmed in 180 N. Y. 524, 72 N. E. therefor is invalid. People ex rel. Williams 1141. v. Haines, 49 N. Y. 587. People ex rel. An assessment for improving a private Cook v. Nearing, 27 N. Y. 306, holding that way was held invalid in Speir v. New Utan assessment upon land for a drain im- recht, 121 N. Y. 420, 24 N. E. 692, on the provement which was constructed without ground that the improvement constituted a acquiring the right of way is not, for that trespass for the expense of which no assessreason, invalid, but that the remedy of ment could legally be made. No point is the one whose property is invaded is in tres- made as to the ownership of the property. pass, is overruled by the Williams Case. In Re Rhinelander, 68 N. Y. 105, an

An assessment to pay for the cost of a application was made by the owner of land street improvement which followed a differ. assessed for the construction of a sewer, to ent line or course from that shown on the vacate the assessment. The assessment commaps, and which thereby encroached upon plained of was in part for the construction private property, upon the property thus of a sewer through private property withtrespassed upon, is invalid. Tredwell v. out the consent of the owner thereof. It Brooklyn, 11 App. Div. 224, 43 N. Y. Supp. is not clear whether the entire assessment 458. The court states that an assessment is held valid, or only that part of it which to pay for the cost of the wrong cannot le- was due to the construction of the sewer gally be laid on the lands affected thereby; through the private property. The court that one cannot be compelled to pay for a states: "That the municipal authorities in trespass committed upon his lands.

constructing the sewer there were tresAn assessment for a street improvement' passers, and that no assessment could legalW. 84; Rork v. Smith, 55 Wis. 67, 12 N. I land v. Oregon Real Estate Co. 43 Or. 423, W. 408; Allen v. Davenport, 65 C. C. A. 72 Pac. 322; Kadderly v. Portland, 44 Or. 641, 132 Fed. 209; Dean v. Charlton, 27 118, 74 Pac. 710, 75 Pac. 222; Duniway v. Wis. 522; State ex rel. Eaton v. District Portland, 47 Or. 109, 81 Pac. 945; Hughes Ct. 95 Minn. 513, 104 N. W. 553; Dill v. v. Portland, 53 Or. 370, 100 Pac. 942; Ter. Roberts, 30 Wis. 178; Plumer v. Marathon williger Land Co. v. Portland, 62 Or. 101, County, 46 Wis. 163, 50 N. W. 416.

123 Pac. 57; Schintgen v. La Crosse, 117 There can only be a reassessment where Wis. 158, 94 N. W. 84; Hamilton, Special the assessment proceedings were taken in Assessments, $$ 823, 824. good faith, the improvement made in sub- Plaintiffs are entitled to the protection stantial compliance with the contract, and of the Constitution and courts, even when where the defects in the assessment pro- their property is attacked under the magic ceedings were such that the legislature cry of reassessment by the defendants. could have made said defects immaterial. Hamilton, Special Assessments, $$ 822,

Thomas v. Portland, 40 Or. 50, 66 Pac. 823; Workman v. Chicago, 61 II. 463; 439; Oregon Real Estate Co. v. Portland, Schintgen v. La Crosse, 117 Wis. 158, 94 40 Or. 56, 66 Pac. 442; Oregon Real Estate N. W. 84; Rork v. Smith, 55 Wis. 67, 12 Co. v. Gambell, 41 Or. 61, 66 Pac. 441; Port-'N. W. 408; Dean v. Borohsenius, 30 Wis. ly be laid to pay the expense of such a tres- On the contrary, the validity of such pass.”

assessments has been sustained. In Moore v. Albany, infra, it is stated Thus, it has been held that a lot owner that the assessment in this case was as- cannot attack the validity of an assessment sailed by the owner of the land wrongfully for a sidewalk across the front part of his invaded. This fact does not appear in the lot for the reason that the property was report of the Rhinelander Case. The court never acquired by the city for such purin Moore v. Albany, supra, distinguishing poses, where his lot has received the benefit that case further from the Rhinelander and advantages of such walk. Boynton v. Case, states that in the Rhinelander Case People, 159 Ill. 553, 42 N. E. 842. It is there was no law under which the title of stated that the owner has a full considerathe land used could be obtained.

tion for the assessment levied on his lot, No part of the cost of a retaining wall and the question whether he has received or erected partly upon the street and partly on is entitled to receive compensation for the the property of an abutting owner can be strip of ground upon which the sidewalk is collected from such abutting owner, where placed is not involved in this litigation; the owner objected at the time of the con- that if he is so entitled, the law will afford struction to such invasion of his property him a remedy. rights. Western Pennsylvania R. Co. v. In Davis v. Silverton, 47 Or. 171, 82 Pac. Allegheny, 92 Pa. 100. The objection here 16, it is held that an assessment for a street was to the cost of the wall apart from the improvement is not rendered invalid so that cost of the paving of the street.

it may be enjoined by the fact that, in An assessment of the cost of construct-doing the work, the city, believing that it ing a sidewalk upon the plaintiff's land was was grading to the street line only, and held invalid in Richter v. New York, 24 without any wilful design or purpose of Misc. 613, 54 N. Y. Supp. 150.

encroaching upon private property, did in An improvement under a statute relating fact encroach upon private property. The solely to the drainage of lands upon which action in this case was brought by the surface water remains stagnant, in the owner of the property invaded, but no point course of which the authorities not only is made of this fact. This case was folconstructed a drain, but filled the lot, such lowed in Hochfeld v. Portland, filling constituting a large part of the cost 142 Pac. 824, upon a writ of review to corof the improvement, is irregular, and an rect error committed by the city council in assessment therefor will be vacated. Re a reassessment of property for street imVanBuren, 17 Hun, 527. Ingalls, J., takes provements, where it was claimed that, in the position that this was a substantial improving the street, there was a trespass error which rendered the assessment void; upon the land of the abutting owners in while Brady, J., concurs in the result on building thereon an embankment to hold account of the effect of the decision in the fill of the street, without having conPeople ex rel. Williams v. Haines, supra. demned the property for public use. ApRe Van Buren was affirmed in the court of parently this action was not by the owner appeals (79 N. Y. 384) on grounds other of the property invaded. than those covered in the present note.

The fact that the authorities, in making a Under a statute authorizing the improve public improvement, unlawfully invaded priment of public streets and assessment of vate property, has been held not to invalithe cost thereof on adjoining lots, the cost date an assessment made to pay for the of improving a private street cannot be as improvement, where it is attacked by one sessed upon adjoining lots. Spaulding v. other than the owner of the invaded premBradley, 79 Cal. 449, 22 Pac. 47; Spaulding ises. Moore v. Albany, 98 N. Y. 396. v. Wesson, 115 Cal. 441, 47 Pac. 249. See The improvement involved in Moore v. Naltner v. Blake, 56 Ind. 127, infra.

Albany was a street. A part of the im.

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Or.-,

236; Allen v. Davenport, 65 C. Č. A. 641,, vate property, or the proceedings cannot be 132 Fed. 209; Thomas v. Portland, 40 Or. sustained upon review. 50, 66 Pac. 439; Duniway v. Portland, 47 Jones v. Salem, 63 Or. 126, 123 Pac. 1096; Or. 109, 81 Pac. 945; Hughes v. Portland, 53 Morgan v. Portland, 53 Or. 368, 100 Pac. Or. 383, 100 Pac. 942; Morgan v. Portland, 657; Applegate v. Portland, 53 Or. 552, 99 53 Or. 368, 100 Pac. 657; Applegate v.

Pac. 890. Portland, 53 Or. 552, 99 Pac. 890; Jones v.

When the city makes a street improve. Salem, 63 Or. 126, 123 Pac. 1098; Terwilli- ment which trespasses upon the private ger Land Co. v. Portland, 62 Or. 101, 123 abutting property it is a trespasser, and a Pac. 57; Oregon Real Estate Co. v. Port- trespasser cannot recover for his trespass land, 40 Or. 36. 66 Pac. 442; Oregon Real by claiming it is a benefit to the property

trespassed upon. Estate Co. v. Gambell, 41 Or. 61, 66 Pac.

People ex rel. Williams v. Haines, 49 N. 441; Portland v. Oregon Real Estate Co. Y. 587; Western Pennsylvania R. Co. v. 43 Or. 423, 72 Pac. 322; Kadderly v. Port. Allegheny, 92 Pa. 100; Re Cheesbrough, 56 land, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. How. Pr. 460, affirmed in 78 N. Y. 232;

The records must disclose the right of Re Van Buren, 17 Hun, 527; Re Rhinethe city to pass this reassessment upon pri.' lander, 68 N. Y. 105; Moore v. Albany, 98 provement consisted of excavations on the, cient proof. It is further stated that it slopes outside of the street line upon pri.! is not enough to establish that, in carrying vate property where the grade of the streets out the improvement, the city authorities was lower, so as to secure the full width committed a trespass upon the lands of of the street at grade. Where the grade of another party; that this is a matter which the street was elevated an embankment was rests between the city authorities and the placed outside of the street line on private person affected, and is not a valid ground of property. Another part of the work upon objection by a party assessed, who has no private property outside the street line was interest in the land upon which the sewer the construction of drains; all of this work is laid. The case was returned to the lower was done without the knowledge or express courts for further proof. consent of the owners of the land, but such See Hochfeld v. "Portland, supra. owners did not make any objection after Property owners who have been assessed they learned of the same, did not even ob- for the construction of a sewer cannot object to the assessment upon their land, and ject to the confirmation of the assessment allowed the embankments to remain for a on the ground that the sewer crosses prinumber of years. It is stated that the im- vate property, where the owner of the propprovement was completed much more cheaplyerty, who had full knowledge of the conthan it would have been had the street been struction of the sewer, took no steps to protected by a retaining wall or in any prevent it and made no objection thereto, other way: so that the trespass, if one was and consequently, under the law of the committed, was really for the benefit of the jurisdiction, would be estopped from making persons assessed.

claim for compensation because of the conIn Re Ingraham, 64 N. Y. 310, an action struction of the sewer through his propto vacate the assessment made upon lots erty. Hyde Park v. Borden, 94 Ill. 26. for the construction of a sewer, in which Tax bills given in payment of sewers one the assessment was claimed to be invalid of which was built over private property because the title to lands on which the sewer are valid, where the owner of the property was laid had never been acquired by the gave his previous approval and consent to corporation, the petitioner, who claimed to the construction. St. Joseph use of Saxton own to the middle of the street, did not Nat. Bank v. Landis, 54 Mo. App. 315. It show that the sewer was laid on his side is stated that the owner would be estopped of the street, nor in the center of the street. to question the right to occupy his lot with He alleged in his petition that the oppo. the city sewer, since, as owner of the propsite side of the street was the property oferty, he not only consented to the use of and owned by individuals, and not by the it by the city, but stood by and acquiescing. city, and by affidavit showed that this half ly

expensive sewer constructed of the street, so far as he had any know through his lot, which became a part of the edge, had never been deeded to the city au public sewer system of the city. thorities. The court states that these al. The right of landowners who were conlegations do not interfere with the right of testing an assessment for a sewer, to raise the city to lay the sewer, that a permission the question as to the validity of the asfrom the owner or owners would be suffi. sessment on the ground that the land on cient authority for that purpose, and as it which the sewer was constructed was not is not shown that no such permission was owned by the city, was denied after an given, and as it does not appear that these appeal from the common council to the owners object, the legal presumption is that court, in McGill v. Bruner, 65 Ind. 421. the city authorities were acting under a Where the public body making the improper license, and had ample power to per provement has received some grant or li. form the work; that this must be assumed cense from the owner of the premises to use until the contrary is established by suffi. I the same for the purpose of the improve

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N. Y. 396; Vanderlip v. Grand Rapids, 73 115 Pa. 78, 8 Atl. 381; Baltimore v. Hook, Mich. 522, 3 L.R.A. 247, 16 Am. St. Rep. 62 Md. 371; Carpenter v. Hennepin County, 597, 41 N. W. 677; Hendershott v. Ot. 56 Minn. 513, 58 N. W. 295; Norfleet v. tumwa, 46 Iowa, 658, 26 Am. Rep. 182; Cromwell, 70 N. C. 640, 16 Am. Rep. 787; Broadwell v. Kansas City, 75 Mo. 213, 42 Alton v. Mulledy, 21 Ill. 76; Boston v. DisAm. Rep. 406; Ashley v. Port Huron, 35 trict of Columbia, 19 Ct. CI, 31; Webster v. Mich. 296, 24 Am. Rep. 552; Martinsville Stewart, 6 Iowa, 401; Westerfield v. Wilv. Shirley, 84 Ind. 546; Evansville v. Decker, liams, 59 Ind. 221; Putnam v. Tyler, 117 84 Ind. 325, 43 Am. Rep. 86; Giaconi v. As- Pa. 570, 12 Atl. 43; Putnam v. Ritchie, 6 toria, 60 Or. 12, 37 L.R.A.(N.S.) 1150, 113 Paige, 390; Ford v. Holton, 5 Cal. 320; ElPac. 855, 118 Pac. 180; Elliott, Roads & lett v. Wade, 47 Ala. 456; Isle-Royale Min. Streets, 2d ed. $$ 201, 204, 490, 492, 493; Co. v. Hertin, 37 Mich. 332, 26 Am. Rep. 38 Cyc. 1035, 1036, 1043; Busch v. Fisher, 520; Pinney v. Winsted, 83 Conn. 411, 76 89 Mich. 192, 50 N. W. 788; Stewart v. Atl. 994, 20 Ann. Cas. 923; Haynes v. Tucker, 106 Ala. 319, 17 So. 385; Graham Thomas, 7 Ind. 38; Mulligan v. Kenny, 34 v. Connersville & N. C. Junction R. Co. 36 La. Ann. 50; Caldwell v. Eneas, 2 Mill, Ind. 463, 10 Am. Rep. 60; Warner v. Foun- Const. 348, 12 Am. Dec. 681; Davis v. Siltain, 28 Wis. 405; Hershberger v. Pittsburgh,' verton, 47 Or. 171, 82 Pae. 16; Kingsley ment, the validity of such grant to effect, city is without jurisdiction to make the imthe purpose for which it is intended is not provement because of such ownership, where discussed generally herein.

there is a subsequent dedication of the The case of Chicago v. Green, 238 Ill. 258, street. Clark v. Salem, 61 Or. 116, Ann. 87 N. E. 417, denying the validity of a spe- Cas. 1914B, 205, 121 Pac. 416. cial assessment for a sewer where the right See St. Joseph use of Saxton Nat. Bank to construct and maintain the sewer under v. Landis, supra, as to the effect of owner a canal was given only by a resolution of not objecting. the canal commissioners, which was held The validity of an assessment for the coninsufficient to convey the interest necessary struction of a public improvement, levied for the permanent maintenance of the sewer, before the right way on which the imand Berwyn v. Berglund, 255 Ill. 498, 99 provement is to be constructed has been se N. E. 705, sustaining an assessment where cured, is not discussed. See Maywood Co. there was a grant of the right to maintain v. Maywood, 140 nl. 216, 29 N. E. 704, a sewer, are illustrative of this class of where the validity of an assessment for a

sewer under such circumstances was sus. A few cases further illustrating this ques- tained. tion are the following:

It was held in Holmes v. Hyde Park, 121 An assessment for a sewer running chiefly Ill. 128, 13 N. E. 540, that the owner of through private land the owners of which property specially assessed for the purpose had granted to the city the right to lay of grading and paving a street of an inthe sewer through the land was sustained corporated village could not inter pose the in Taylor v. Haverhill, 192 Mass. 287, 78 objection, on an application to the court N. E. 474, where the city had power to lay to confirm the assessment, that the village such a sewer and make an assessment for had not acquired title to the soil to be its cost.

graded and paved as a street. Following An assessment of the costs of a retaining this case, the court in Hunerberg v. Hyde wall erected in a street improvement partly Park, 130 ml. 156, 22 N. E. 486, held that on the street and partly on adjoining prop- an owner of property who was specially aserty, with the consent of the owners thereof, sessed for the improvement of a street, and was held rightly assessed upon the abutting who claimed to be the owner of a part of property, in Longworth v. Cincinnati, 34 the street where the proposed improvement Ohio St. 101, but no objection was made to was to be made, could not object to a con. the assessment on the specific ground that firmation of the assessment roll. it was erected on private property.

The cost of a stone wall which is a neces- u. Theory that invalid part of assesssary part of a street improvement, con

ment may be separated from valid. structed on the sides of steep hills, built in part upon private property with the consent With the exception of Re Rhinelander, 68 of the owners thereof, may be properly in- N. Y. 105 (discussed infra), the question cluded in an assessment on abutting owners whether the assessment can be sustained for the cost of the improvement. Re Perrys- | in part and held invalid in part was not ville Ave. 210 Pa. 537, 60 Atl. 160. None considered in the foregoing cases. of the wall was built on the land of those be noticed that this question was considered objecting in this case. It is further stated in REIFF V. PORTLAND. It has also been in the opinion that an easement for the wall considered in other cases. The majority could have been obtained by adverse proceed of the cases hold that the total assessment ings.

for a public improvement, a small part of An assessment for the improvement of a which is built on private property without street, part of which is owned by a private the authority or consent of the owners, is party, is not void on the theory that the not void, especially where the part that is

cases,

It will

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