Austin v. Tillamook City

BEAN, J. The proceedings for the improvement of the street in question were commenced in March, 1920, and the improvement was made during that year. It appears that the matter had been under consideration for some time and different kinds of improvement had been considered, such as the width of the pavement. It was finally proposed to lay a thirty-six foot concrete pavement with an unimproved eight-foot parking strip in the center, making the total width of the actual pavement twenty-eight feet. The plaintiff, Austin, appears to have favored a sixteen-foot pavement and protested to the individual members of the common council of the city against the improvement as finally proposed. As the trial court found, no remonstrance was filed against the improvement. At the proper time a regular apportionment of the ácost of the improvement was made and the plaintiff was duly notified and given an opportunity to make objections to the apportionment of the assessment to his lots. He made no such objections, and the assessment was made and docketed in the city lien docket. On August 1, 1922, plaintiff filed the complaint in this suit, which is a collateral attack upon the proceedings taken by the city authorities for the improvement. We concur in the findings of the learned trial judge, to the effect that the proceeding’s were regular and valid, except as to the notice of sale of the property by the city marshal. We are not able to concur in the opinion of the trial court that the cost of the improvement largely exceeded the benefits to plaintiff’s property so as to render the same confiscatory or *395 void; or that the improvements adjacent to and abutting upon tbe plaintiff’s property did not benefit tbe same in excess of tbe sum of $200. Before referring to tbe testimony, it may be helpful to notice the well-settled rule of law pertaining to tbe question. Tbe better doctrine deducible from adjudged cases, both state and federal, is that in such matters tbe assessment will be upheld whenever it is not patent and obvious from tbe nature and location of the property involved, tbe district prescribed, the condition and character of tbe improvement, tbe cost and relative value of the property to tbe assessment, that tbe plan or method adopted has resulted in imposing a burden in substantial excess of the benefits, or disproportionate within tbe district as between owners. When tbe common council of a city has exercised its legislative discretion and prescribed a district and adopted a method, it- ought to be plain and indisputable that it has exceeded its constitutional authority before tbe court would undertake to set at naught its declared will. Such announcement, in effect, was made after a very thorough discussion by Mr. Justice Wolverton in the case of King v. Portland, 38 Or. 402, 429 (63 Pac. 2, 55 L. R. A. 812, 5 Mun. Cor. Cas. 158). This case was affirmed in 184 U. S. 61 (46 L. Ed. 431, 22 Sup. Ct. Rep. 290). In Hughes v. City of Portland, 53 Or. 370, at page 394 (100 Pac. 942), Mr. Justice B. S. Bean records the following language: “Tbe extent to which tbe property is benefited and tbe proportionate share of tbe cost of tbe improvement which shall be charged against it is left to tbe judgment of tbe council, and, when it has exercised its judgment, its decision — in tbe absence of fraud or demonstrable mistake of fact — is conclusive, except *396 as a right of appeal may be given by the charter or unless it has proceeded upon an erroneous principle of law. Lincoln v. Street Commissioners, 176 Mass. 210 (57 N. E. 356).” In the case of Colby v. City of Medford, 85 Or. 485, at page 540 (167 Pac. 487), we find the language of Mr. Justice Harris as follows: “It is now too late to object to the amount of the assessment against the Stailey property. The council levied the assessment after first finding ‘that the special and peculiar benefit accruing upon each lot * * and in just proportion to benefits’ to be the amount so assessed. There is no charge of fraud. Stailey admits that Ms property has received some benefit from the improvement; and this admission coupled with the fact that there is no charge of fraud renders the finding of the council conclusive in this suit.” Citing many authorities. In Giles v. Roseburg, 96 Or. 453, at page 467 (189 Pac. 401, 1119), Mr. Justice Burnett uses the following language: “Afterwards, and before the property to be assessed was directly affected in any way, or any lien fastened upon it, the council was required to specify the property to be assessed, and to give the owners notice and opportunity to be heard. This gave such owners their ‘day in court’ and opportunity to be heard, and fully satisfied all their constitutional rights. It seems to be conceded that this also was done. There is no provision of the charter, and no constitutional provision, requiring anything more.” See, also, 25 E. C. L., p. 94, § 14. The findings of the trial court refer to the fact that the city attempted to sell the lots involved for the sum of $900. It is at once apparent that such sale is no criterion of the market value of the lots after the improvement of the street, as the city could *397 only sell what it purchased at the sale for the assessment, and litigation was to he expected, or at least was possible. It was in the nature of a forced sale. It was like purchasing any tax title. In order to support his contention the plaintiff Austin testified in his own behalf, fixing the valuation of lot 7, before the improvement, at $350 and the valuation after the improvement at $800, an increase in valuation of $450. As noted above, the assessment against it was $549.59, or only about $100 more than the plaintiff estimates the benefit, which he admits he received from the improvement. He named the valuation of the other lot (8) before the improvement at $400, and its valuation after the improvement at $850, an increase of valuation of $450. The assessment against this lot was also $549.59, or only $100 more than the amount of the benefit which the plaintiff admits that he received from the improvement. The testimony of the plaintiff must be considered from the language he used in testifying, as fixing the valuation of the lots after the improvement at the time he testified, or at least as greatly influenced by the conditions at that time. He testified in February, 1924, or more than three years after the improvement. It is a well-known fact that in 1920, when the improvement was made, prices of everything including real estate were high, and that they depreciated rapidly during a few years thereafter. There is but little competent impartial testimony fixing the value of these lots. There were two other suits instituted by properly owners similar to the case at bar, and they are dependent upon the result in this case. The plaintiffs in the three cases testified regarding *398 the value of the lots, to the effect that the improvement of the street did not increase the value of the adjacent lots any, or but little. The difference in the estimates of the value of the lots, before the improvement, and after the pavement was laid, ranged from nothing to about $150 to $200. This testimony is not convincing. The county assessor was called as a witness for plaintiff and testified as to the assessed valuation of plaintiff’s lots, which does not establish the market value of the same. If this testimony of the assessor should be taken as indicating anything, it will show that the assessed value after the improvement was more than two and one-half times as much as it was before the street was improved. The value of the lots seem to be referred to by the witness as separate and distinct from the buildings thereon. Plaintiff’s witness estimated the value of the house and barn on the lots at $1,500. The defendant did not introduce testimony as to the comparative values of the lots before and after the street improvement, but from the plaintiff’s figures the city submits in its brief that taking the two lots together with the buildings, before the street improvement the property was worth $2,250, and after the improvement it was worth $3,150, the total assessment against the property being $1,099.18, leaving a net value of $2,050.82, after deducting the assessment. An assessment of this kind will not be set aside on account of a difference in judgment as to the benefits derived between the common council and a property owner whose property is abutting upon the street and is affected by the assessment. The determination by the common council as to the amount of the benefit derived from such an improvement, in the absence of *399 fraud or mistake, is conclusive: Houck v. Roseburg, 56 Or. 238, 244 (108 Pac. 186); Wagoner v. La Grande, 89 Or. 192, 201, 202 (173 Pac. 305); Killingsworth v. Portland, 93 Or. 525, 529 (184 Pac. 249); Withnell v. Ruecking Const. Co., 249 U. S. 63, 71 (63 L. Ed. 479, 39 Sup. Ct. Rep. 200). Plaintiff contends that the resolution of the common council, declaring its intention to' improve the street did not conform to the city charter in that it “was based upon plans, specifications and estimates” which were never made or filed. The city engineer was a civil engineer of about twenty years’ experience. He was requested by the council to make the plans and specifications, for the improvement and estimates of the cost thereof. He testified that such plans, specifications and estimates were made and left in the recorder’s office. The resolution of the council recites that they were made and duly approved and filed with the recorder. They were used and followed by the contractor in doing the work. It appears that the lady who was then the recorder and who is now deceased did not place filing marks on the document, and the plaintiff, who states he is a civil engineer, could not find the plans and specifications. Such failure to mark the instruments “filed,” or that they were misplaced later, did not vitiate the proceedings: 28 Cyc. 1012; Smith v. Jefferson, 75 Or. 179, 187, 188 (146 Pac. 809); Giles v. Roseburg, 96 Or. 453, 463 (189 Pac. 401); Wagoner v. La Grande, 89 Or. 192, 207 (173 Pac. 305). Plaintiff did not inquire of the contractor for the plans and specifications. They were probably being used in doing the work when sought by plaintiff. *400 Plaintiff also challenged the resolution for the reason that it calls for improvement to be made, in part, by establishing the grade of the street, but the same was not done in these proceedings. The common council by its resolution declared its intention to improve a portion of Third Street, “by establishing the grade of said street”; by rolling the roadway thereof; “by laying thereon a concrete, asphaltic concrete, or asphaltic cement roadway.” It is clear that the words in the resolution “by establishing the grade of said street,” has reference to establishing the lines of the street to guide in the construction thereof, or, in common parlance, in marking the grade. See City of Little Rock v. Citizens’ Co., 56 Ark. 28 (19 S. W. 17); 4 Words & Phrases, 3142, “Grade of Street.” Plaintiff also complains that the resolution did not specify the thickness of the pavement and did not state sufficient specifications. The resolutions referred to the plans and specifications on file in the office of the recorder and contain the following recitation : “All of said improvements to be made in accordance with the charter, resolutions and ordinances of Tillamook City, and in accordance with the plans and specifications and estimate of work therefor, made and prepared by the City Engineer of Tillamook City, Oregon, filed in the office of the City Recorder of said Tillamook City.” Plaintiff alleges that the notice calling for bids did not call for more than one kind of improvement. The notice calls for bids for the improvement of the street, “in accordance with the plans and specifications thereof now on file with the city recorder,” consisting of grading and paving the same. The notice is sufficient. *401 Plaintiff was not at the time actively engaged in civil engineering. He made a survey of the grade and lines of the street, which differs from that made by the city engineer. We cannot decide from the record that the work of the city engineer was wrong. There was a substantial compliance with the city charter. The council in good faith accepted the work as being in accordance with the contract. Such acceptance is binding upon the property owners: Chance v. Portland, 26 Or. 286 (38 Pac. 68); Duniway v. Portland, 47 Or. 103, 113 (81 Pac. 945); Rubin v. Salem, 58 Or. 91, 96, 97 (112 Pac. 713); Hendry v. Salem, 64 Or. 152 (129 Pac. 531); Lawrence v. Portland, 85 Or. 586, 594 (167 Pac. 587); Ukase Inv. Co. v. Portland, 95 Or. 176, 179 (186 Pac. 558). The plaintiff does not show that his assessment was increased by any error or alleged errors in establishing the grade of the street upon the ground, or in any of the proceedings herein. See Wingate v. Astoria, 39 Or. 603, 606 (65 Pac. 982, 6 Mun. Cor. Cas. 815). Proceedings for the improvement of the street cannot be collaterally attacked after the improvement has been made upon the ground that some of the prior proceedings were merely irregular. The plaintiff asserts that Section 5, Article VII of the Charter requires more than one bid to be submitted. A reference to this section above quoted does not bear out this contention. No fraud is shown on the part of the city council in the proceedings. . The decree of the Circuit Court will be modified as follows: The decree quieting plaintiff’s title to the lots will be reversed. The sale of the lots by the city marshal will be set aside and a resale ordered. The assessment against plaintiff’s two lots for the street *402 improvement is declared valid and the amount thereof a lien upon the plaintiff’s lots. In view of the erroneous sale of the lots by the city and the circumstances of the case, neither party will be awarded costs in this suit. Modified. Behearing Denied. Burnett, C. J., and McBride and Brown, JJ., concur.