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v. United R. Co. 66 Or. 50, 133 Pac. 787; | wert, 29 Ór. 583, 41 Pac. 926; High, Inj. Corvallis & E. R. Co. v. Benson, 61 Or. 359, 4th ed. $$ 578–1272, 1273–1278; Lewis, Em. 121 Pac. 418; Clark v. Portland, 62 Or. Dom. 3th ed. 88 901-904-929-931; Dyer 124, 123 Pac. 708; Salem Mills Co. v. Lord, v. Bandon, 68 Or. 406, 136 Pac. 652. 42 Or. 82, 69 Pac. 1033, 70 Pac. 832; United There can be no reassessment, as the city States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 illegally undertook to repair and improve Sup. Ct. Rep. 240; Pacific Laundry Co. v. different parts of the street in one proceedPacific Bridge Co. 69 Or. 306, 138 Pac. 221; ing, in violation of the charter, and in orWarren v. Astoria, 67 Or. 603, 135 Pac. 527; der to defeat the plaintiffs' right of remonTrotter v. Stayton, 45 Or. 301, 77 Pac. 395; strance. Bernard v. Williamette Box & Lumber Co. Oregon Transfer Co. v. Portland, 47 Or. 64 Or. 223, 129 Pac. 1039; 22 Cyc. 831-836; 1, 81 Pac. 575, 82 Pac. 16; Cook v. PortMoundsville v. Ohio River R. Co. 20 L.R.A. land, 35 Or. 383, 58 Pac. 353; Oregon Real 161, note; Lynch v. Union Inst. for Sav. Estate Co. v. Portland, 40 Or. 56, 66 Pac. 159 Mass. 306, 20 L.R.A. 842, 34 N. E. 364; 442; Oregon Real Estate Co. v. Gambell, Williamette Iron Works y, Oregon R. & 41 Or. 61, 66 Pac. 441; Portland v. Oregon Nav. Co. 26 Or. 224, 29 L.R.A. 88, 46 Am. Real Estate Co. 43 Or. 423, 72 Pac. 322; St. Rep. 620, 37 Pac. 1016; Norton v. El-'Jones v. Salem, 63 Or. 126, 123 Pac. 1096; built on private property can be recon- | the improvement was refused until the part structed at a small cost.

of the assessment, other than that for the Thus, tax bills issued to pay for the con part of the sewer constructed through pristruction of a sewer a small part of which vate property should be paid or tendered. is built on private property without the That there can be no recovery for the authority or consent of the owner are not part of a sewer constructed on private propvoid in toto, especially where the part built erty is held also in Miller v. Anheuser, on private property can be reconstructed by supra. the city at a small cost. Johnson v. Duer, In the abstract of Lorenz v. Armstrong, 115 Mo. 366, 21 S. W. 800. It is stated that appearing in 3 Mo. App. 574, it is stated there was some doubt whether the finding that where street improvements have been of the trial court that the sewer was laid made by a municipal corporation upon through private property without the knowl. property which has not been dedicated or edge or consent of the owners was justified condemned to public use there can be no by the evidence, but the finding as made recovery on a special tax bill issued for was accepted by the supreme court as a such improvement. basis of the decision.

See Athens v. Carmer, supra. Referring to this case, and stating that This seems to be the holding in Re Rhine. it holds that one other than the owner of lander, 68 N. Y. 105, where, in an action to property invaded will be relieved of the vacate an assessment upon land on the cost of that part of the work which was ground that the sewer for the construction constructed on private land, the court, in of which the assessment had been levied Springfield ex rel. Bank of Commerce v. was constructed across the private property Baxter, 180 Mo. App. 40, 165 S. W. 366, of the petitioner seeking to vacate the asholds in an action by the holder of a spe. sessment, it is stated that the place indicial tax bill to recover thereon that an in-cated was not a street, that the municipal struction to the effect that the encroach-authorities in constructing the sewer there ment on the private property did not in any were trespassers, and that no assessment way render the tax bill void was properly could legally be laid to pay the expense refused.

of such a trespass. In Athens v. Carmer, 169 Pa. 426, 32 Atl. See Western Pennsylvania R. Co. v. Alle422, where, in constructing a sidewalk which gheny, 92 Pa. 100. was about 280 feet long, a thin wedge at Where the attack is made by the owner one end of the walk an inch or 2 inches of the invaded premises, whose substantial wide at the base, and running to a point rights have been invaded, the entire assessa few feet away, was over the line of the ment is void. Thus, an assessment for the street. It was held that a recovery of the cost of the construction of a sidewalk which assessment for that part of the sidewalk encroaches upon the property on which the which involved no trespass should be al- assessment is levied is invalid in its enlowed, and that the defense that no recovery tirety where the substantial rights of the could be had because of the trespass should property owner are invaded. Springfield be restricted to that part of the whole work ex rel. Bank of Commerce v. Baxter, supra. which was in fact a trespass.

The sidewalk in this case.encroached about That there can be a recovery for the part 8 inches at one end, ran off the lot and onto

sewer regularly constructed is held the parking altogether about 140 feet from also in Miller v. Anheuser, 2 Mo. App. 168. the starting point, so that only a triangu

But so much of the cost of the improve- lar part of the sid alk, 8 inches at one ment as is due to the unlawful invasion of end, narrowing down to a point 140 feet private property is void. Johnson v. Duer, ( away, was on the defendant's lot. There supra. But an injunction to restrain the was no evidence in this case showing the collection of tax bills issued in payment of' value of the lot, or what, if any, improve

of a

Rogers v. Salem, 61 Or. 321, 122 Pac. 314; reassessment of the expense of said imThurber v. McMinnville, 63 Or. 410, 128 provement. Said judgment or order was Pac. 43; Terwilliger Land Co. v. Portland, made on July 6, 1908. 62 Or. 101, 123 Pac. 57; Macartney v. Ship- On March 23, 1910, the council of the city herd, 60 Or. 133, 117 Pac. 814, Ann. Cas. of Portland passed an ordinance, No. 20,1913D, 1257; Dean v. Charlton, 27 Wis. 989, entitled, “An Ordinance Vaking a Re522; Dill v. Roberts, 30 Wis. 178; Plumer assessment for the Improvement of Sevenv. Marathon County, 46 Wis. 163, 50 N. W. teenth Street from 58.5 Feet North of the 416; Rork v. Smith, 55 Wis. 83, 12 N. W. North Line of Vaughn Street, to the South 408; Duniway v. Portland, 47 Or. 111, 81 | Line of Marshall Street.” This ordinance Pac. 945; Hughes v. Portland, 53 Or. 383, was approved by the mayor of said city on 100 Pac. 942; Grady v. Dundon, 30 Or. 333, March 24, 1910, and by this ordinance the 47 Pac. 915; Flagg v. Columbia County, 51 city levied certain reassessments upon the Or, 172, 94 Pac. 186; Scott v. Ford, 52 Or. property of the plaintiffs, amounting to 288, 97 Pac. 99; 19 Cyc. 26.

$5,574.79, for the improvement of said SevMessrs. Frank S. Grant and Lyman E. enteenth street from 58.5 feet north of the Latourette for respondents.

north line of Vaughn street to the south

line of Marshall street. The plaintiffs own Ramsey, J., delivered the opinion of the property adjacent to said improvement, and court:

said reassessment was made by said city On September 21, 1910, the plaintiffs to pay for the improvement of said street, filed a petition for a writ of certiorari to made as stated supra; the assessment, or. obtain a review of certain proceedings of iginally made by said city to pay for said the council of the city of Portland, had in improvement, having been held invalid, for making a reassessment of the property of defects in the proceedings. The reassessment certain adjacent lot owners in said city, for was made to pay for the same improvement the payment of the expenses of a street for which the said invalid assessment was improvement; the petitioners claiming that made. The plaintiffs began this certiorari said proceedings were illegal and void, for proceeding, claiming that said reassessment reasons alleged in said petition. The peti. is invalid. tion contains 27 pages, and hence it is im- 1. After the allowance of said writ of practicable to set it out in this opinion. review, the trial court allowed a motion

On October 7, 1903, the council of the city of the defendants for an amended writ, and of Portland passed a resolution for the im disallowed a motion of the plaintiffs for provement of Seventeenth street of said city a further return to said writ. The rulings from 58.5 feet north of the north line of of the court upon these motions are asVaughn street to the south line of Mar- signed as error. But, in the view that we shall street, in said city, in the manner take of this case, the rulings of the court stated in said resolution. The improve on said motions cannot materially affect ments contemplated by said resolution were our decision. Hence we will treat the quesmade, and the city assessed the expense tions for consideration as if the papers thereof upon the property adjacent to said that the plaintiffs desired returned were in street; but the circuit court of Multnomah the record. county, upon a writ of review, prosecuted 2. The reassessment was, in & sense, a by interested parties, held that said assess- continuation of the original assessment proment was invalid, for defects in said proceedings. There was no new improvement ceedings, and directed the city to make a I made, and the reassessment proceedings ments were on it; nothing from which the property thus invaded is entirely void. appellate court could determine the value Naltner v. Blake, 56 Ind. 127. It was here of the property so that it might be deter- claimed that the owner had consented to mined whether the encroachment was sub- the erection of the wall on his property: stantial. The trial court had held under In answer to this it is stated that even had the evidence that the encroachment invaded he consented to such erection, the city was the substantial rights of the defendant, and not authorized to charge him with the ex. the appellate court stated that it was un pense of the wall. This decision is regarded willing to declare as a matter of law that in Jackson v. Smith, 120 Ind. 520, 22 N. E. the trial court's finding in that particular 432, as being in conflict with VcGill v.

See, in this connection, Bruner, 65 Ind. 421, supra, and with the Athens v. Carmer, supra.

cases generally which deny the property Or where the cost of a retaining wall owner the right to attack the assessment which was erected entirely upon an ad- on the ground that the title to the property joining owner's property cannot be separ- on which the improvement is made has not ated from the cost of grading and graveling been acquired by the body making it. an alley in the improvement of which the

W. A. E. wall is erected, an assessment upon the

was

erroneous.

were had for the purpose of imposing a, and it is not necessary to re-examine those lien upon the lands of the adjacent prop- questions in this cause. Duniway v. Porterty owners for the payment of the ex- land, 47 Or. 103, 81 Pac. 945; Hughes v. pense of said improvement, in accordance Portland, 53 Or. 370, 100 Pac. 942. with § 400 of the charter of said city. 5. Under said § 400, supra, the reas

3. The first point urged by the plaintiffs sessment therein authorized to be made is that the reassessment is invalid, because must be "based upon the special and pecuthe original resolution for the improve- liar benefits of such improvement to the rement of Seventeenth street was invalid, in spective parcels of land assessed," and the that it attempted to provide for a repair of assessment upon any lot or parcel should two separate parts of Seventeenth street, not exceed the special and peculiar benefit which had been formerly improved by resulting to such lot or parcel of land from gravel, and which parts of said street ex such improvement. tended from the south line of Marshall Section 400, supra, provides the manner street to 50 feet north of the north line in which a reassessment shall be made, and, of Marshall street, and were then separ- | if the city in this case complied with said ated by a wooden elevated bridge about 4 action, the reassessment made is valid. blocks long, where a second piece of gravel 6. In the first place, there must have street commenced, which was attempted to been an actual attempt by the council, in be repaired in said resolution, etc.

good faith, under the regular procedure proCounsel for the plaintiff's contends that vided by the charter, to make an improvesaid resolution is invalid, under $ 375 of ment, and assess the cost thereof to the the charter of Portland, which, inter alia, property benefited, in proportion to such provides: “The improvement of each street benefit. The proceeding must have failed, or part thereof, shall be made under a sep- because of an omission to comply with some arate proceeding.”

of the provisions of the charter relating to This clause prohibits the improvement such assessments. The proceeding must of two or more streets or parts of two or have been set aside by some court of commore streets in the same proceeding, but, petent jurisdiction on account of defects whether it prevents the improvement of therein, or the council must have doubts two or more parts of the same street in as to the validity of such proceedings. The one proceeding, when the parts to be im- original contract for the improvement must proved are disconnected, need not be de- have been substantially complied with, and cided here, because the improvement in the improvement must have been made in question is all on Seventeenth street, and substantial accordance with the contract the portions of the street improved appear and the proceedings authorizing it. to be continuous from 58.5 feet north of No notice to abutting property owners the north line of Vaughn street to the south need be given of the intention of the counline of Marshall street. The fact that along'cil to pass a resolution for reassessment, a portion of the part to be improved a fill and such a resolution need not contain a was necessary did not invalidate the im- finding that the original contract for the provement.

improvement had been substantially com4. Section 400 of the charter of the city plied with. See, on all these points, Hughes of Portland (Special Laws of Oregon for v. Portland, 53 Or. 383, 385, 100 Pac. 942. 1903, p. 161) provides that whenever an as- After the resolution providing for the sessment for a street improvement has been reassessment has been passed by the counor shall hereafter be set aside or amended cil, notice thereof must be given to the by any court, or when the council shall be property owners, and they must have an in doubt as to the validity of such assess opportunity to appear and object to the rement, the council may, by ordinance, make assessment, if they desire to do so. a new assessment or reassessment upon the This being a writ of certiorari, we are lots, blocks, or parcels of land which have restricted to an examination of the record been benefited by such improvement, to and proceedings of the council, and cannot the extent of their respective and propor- consider facts that are not found in the tionate shares of the full value thereof. record. Under said section, “such reassessment shall 7. The plaintiffs contend that they were be based upon the special and peculiar bene- not properly notified of the intention of fits of such improvement to the respective the council to make said reassessment, and parcels of land assessed, at the time of the given a proper opportunity to make objecoriginal making, but shall not exceed the tions thereto. The council on August 25, amount of such original assessment.” Said 1909, adopted a resolution for the making § 400 has been before this court several of said reassessment, and directed the autimes, and its validity and constitutional. ditor of said city to prepare, within ninety ity are settled by the decisions of this court, days from said date, a preliminary reassessment upon the lots, blocks, and parcels | the benefit of other property in the district,

| of land within the district benefited by and the city at large; that it was an illesaid improvement, and give due notice to gal and unjust charge upon the abutting the owners of all property affected by said property; and that the said charge upon reassessment, in the manner prescribed by the abutting property owners is greatly the charter.

in excess of the benefit to the property 8. On November 24, 1909, the auditor abutting the bridge; and that the reassesspresented to the council of said city his pre- ment upon the property of other persons liminary reassessment of the property af. is a great deal less than the benefit to fected by said improvement, and it was their property, etc. filed on said date. Notice was given by the 9. A. L. Barbour, auditor of said city, auditor of the making of said preliminary made said reassessment, and, in his certifireassessment, and that any objections to cate appended thereto, he certified as folsaid assessment and reassessment should be lows: "I, A. L. Barbour, auditor of the filed in writing with the auditor within ten city of Portland, Oregon, do hereby certify days from December 4, 1909, the last day that the whole cost of said improvement of publication of said notice, and that ob- was the sum of $10,762.12; that I have jections to said reassessment would be viewed the reassessment district and each heard by the council at the regular meet- lot, part thereof, and parcel of land therein; ing thereof on December 22, 1909, etc. Said that the property within the reassessment notice seems to be in proper form, and it district is benefited in the full sum of such was published and served according to law. cost; that I have ascertained what I deem

On December 13, 1909, the plaintiff's, by to be the special and peculiar benefit de. their attorney, filed with the auditor rived by each lot or part thereof or parcel lengthy objections to said reassessment. of land within said district by reason of In these objections the plaintiff's contended such improvement; and I hereby apportion that said reassessment was illegal and the cost of said improvement to the lots, void, for several reasons. One objection parts of lots, and parcels of land within made to said reassessment was that it was the said district, in accordance with the not made in accordance with the special special and peculiar benefits derived there. and peculiar benefits to the property by by, in the amount set opposite the number reason of said improvement, and appor- and description thereof, and to the extent tioned equitably throughout the district. of their respective and proportionable Another objection was that the city in one shares of the full value thereof. I further proceeding attempted to make a repair of certify that each lot, part of lot, or parcel two separate parts of Seventeenth street of land within said district is especially that had formerly been improved with and peculiarly benefited by said improve. gravel, and which parts of said street were ment in the amounts so set forth, and, in separated by a wooden elevated bridge iny judgment, said property should be reabout four blocks long. But the record assessed in such amounts,” etc. shows that said improvement was not in 10. The foregoing certificate of the auseparate parts of said street, but continu- ditor shows on its face that said reassessous, as stated supra. Another objection ment was properly made, and we do not was that the city, in making a fill in said find that his certificate is not true. The improvement, caused a large amount of auditor was the proper officer to make said earth and other filling material to be put reassessment, and he is presumed to have upon the private property of the people op- done his duty properly, and his certificate posite the wooden bridge, without their stating how he made said reassessment is consent and without obtaining any right to presumed to be true. do so, and that the city had attempted to In assessing or reassessing the expenses appropriate said private property to a pub- of street improvements, the officer charged lic use, in violation of the Constitution, with that duty is required to act in good and without compensation and that, in do- faith. It is his duty to estimate in good ing so, the city was violating the law, and faith, and as accurately as he can, the a trespasser. Said objections allege also that the city, in making said reassessment, amount that each parcel of land subject undertook to charge said property owners

to assessment will be specially and peculiar. for the expense of said trespassing upon ly benefited by the improvement, and in no their property, in building the slopes of instance to assess upon a piece of property said fill upon their property, and attempting an amount in excess of such special and also to charge the entire cost of the fill peculiar benefit. He has no right to sit in the street upon the abutting property, down and figure what the improvement in and that said fill was not made for the front of property has cost, or will cost, and benefit of the abutting property, but for impose that amount upon the property, un.

remon

less the property has been, or will be, bene- , March 23, 1910, and approved by the mayor fited to that extent by the improvement. March 24, 1910.

11. The record of the council shows that 13. The city gave due notice of the makon December 22, 1909, a remonstrance by , ing of the preliminary reassessment and of Anna F. Grace et al. and Ralph R. Duni. the time within which objections thereto way, attorney for objecting property own- could be made. The plaintiffs, by their aters, was read in the council, and, on motion, torney, filed with the auditor their writit was referred to the committee on streets. ten objections thereto. These objections

On February 21, 1910, said committee were presented to the council and read, and, wrote the attorney for the plaintiffs, notify. by the council, they were referred to the ing him that the ordinance making a reas-committee on streets. This committee resessment for the Seventeenth street improve- ferred said objections to the city attorney, ments, and the remonstrances against the and he made a report concerning them to same, would be considered by said commit- the committee. The committee notified the tee at the next regular meeting of the plaintiffs' attorney of the time when they committee, to be held on March 4, 1910, at would consider said objections or 2 o'clock, P. M.

strances. The attorney did not appear beIn a letter of the date of March 4, 1910, fore the committee, and the committee, after addressed to said committee, the attorney considering said objections, reported to the for the plaintiff's acknowledges receipt of council that they had considered them, and the committee's letter to him, notifying him recommended that the objections be overthat the remonstrances against the proposed ruled. This report was presented to the reassessment would be considered by the council at a regular meeting, and read to committee on March 4, 1910, at 2 o'clock the council, and the council, on motion, P. M., and in this letter Mr. Duniway says overruled said objections, and, at the same that he does not believe that the commit- session, passed the ordinance making the tee had any jurisdiction or power to act reassessment. We hold that the plaintiffs on the reassessment ordinance and objec- had due notice of said proposed reassesstions, or that the council could then legally ment, and that they filed their objeetions pass upon his objections and enact said thereto, and that those objections were ordinance. He sai? he would attend said heard, decided, and overruled by the counmeeting of the committee if it should be cil, and that the proceedings of the council possible for him to do so, but expressed were regular in this respect. doubts as to his ability to attend.

14. There is another matter that should 12. The objections of the plaintiffs to not be overlooked, relating to the opportunsaid reassessment were referred also to the ity given to persons whose lands are reascity attorney by said committee, and the sessed to have determined the amount that city attorney reported that, if Mr. Duni. should be assessed against their lands to way's objection that said reassessment was pay for such an improvement. Section 401 an attempt to impose the cost upon the of the charter of Portland confers upon abutting property without regard to bene persons objecting to such reassessment the fits, and, as a mere mathematical calcula- right to appeal from the decision of the tion, was true, the rule of assessment should council to the circuit court, and have the be changed.

amount to be assessed against their property On March 18, 1910, the committee on determined by a jury trial.

Hence it apstreets reported to the council that they pears that the charter of Portland affords had considered the ordinance for the reas- the adjacent landowners proper remedies sessment of the cost of the improvement of against unjust reassessments by the counsaid Seventeenth street, and the remon

cil. strances against the same; that the remon

15. The plaintiffs contend also that the strators were called, and, no one appearing, city, in making said improvements, made the remonstrances were considered by the a large fill along a portion of Seventeenth committee, and the committee recommended street, and, in doing so, wrongfully and

without the consent of the adjacent landthat the remonstrances be overruled and the ordinance passed. Said report is

owners, caused a large amount of earth

and other filling material to be put upon dated March 18, 1910, and it was filed the land owned by the persons along said March 22, 1910.

street, and that, in doing so, the city vioAt a regular mecting of the council on lated the law, and was a trespasser, and March 23, 1910, the report of said commit- that, for this trespass, this court should tee was presented to the council, and, on annul said reassessment. motion, it was adopted, and said remon- 16. We think that the city had no right strances were overruled by the council. to pile earth and other material upon the Said ordinance was passed by the council'abutting owners' lands, and that, if it was

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