Portland v. Postill

McBRIDE, J. The main question presented here is as to the method of awarding damages, it being claimed by the appellant that, in making the award of damages with respect to any lot or parcel of land, the city engineer and the council must ascertain and declare the rights of all parties interested, and make a sepárate award of damages for each person with respect to his rights in the property and *588 damages thereto. On the other hand, it is claimed by the respondent that such a course would be impracticable and that it is not required by the charter or statute; that both the charter and statute contemplate a making of the award of damages in a lump sum with respect to each parcel of land, or that part of which is taken, leaving to future action the ascertainment of the exact rights of various parties interested in the property, and making a distribution of the award money when the money is raised and ready for distribution. While the question is not free from doubt, and both the charter and the statute are somewhat ambiguous, we are inclined to hold with the respondent in regard to this part of the case. The provisions for distributing the fund seem to indicate that it was the intent of the charter to provide for ascertaining in gross the damages of all interested in the property and to defer the segregation until after such gross sum had been ascertained and deposited with the city treasurer. The following excerpt clearly indicates that such is the intent of the charter. “The auditor shall notify the persons who are supposed to be entitled to or interested in any portion of such fund that such fund has been provided and is ready for distribution and that a warrant will upon demand, be drawn in favor of each person entitled thereto. Before drawing any such warrant the auditor shall inquire into the matter of city liens, and other liens, incumbrances and claims with reference to such property to the end that the title be cleared before or upon the payment of the award, and, in case he be in doubt or uncertain as to the right of any person, he shall lay the matter before the council which shall inquire into and determine the same, subject to the right of appeal to the circuit court of the state of *589 Oregon for Multnomah Comity as from an appeal from a judgment in the district court, and for the purpose of • such inquiry, the council may summon parties and subpoena witnesses and grant a hearing and the comicil’s determination shall be final if not reversed on appeal, or the council may direct that a suit ■ of interpleader or other proceeding be instituted.” (The italics are ours.) Here, we have, first, a proceeding to ascertain the value of the particular tract, or interest in a particular tract with a right of appeal in the first instance to the Circuit Court from the award of the council; second, a fund in gross deposited with the city treasurer for distribution by warrant drawn by the auditor; and, third, a proceeding by which various claimants of the fund can settle among themselves their particular interests and the amount which each is entitled to; and, unless this has been changed by the statute heretofore referred to, it was the correct procedure to have been adopted in the present instance. "We do not infer that it was the intention of the legislature to enact any provision which was to be in effect broader than the title of the act. This act, as will appear by the title, was to authorize appeals to be taken in certain cases from the action of municipal authorities in appropriating property for streets or other purposes, and, should not be construed beyond its intent so expressed. The reason for the passage of this act was, no doubt, because a question has been raised as to the right of the city by its charter to provide for an appeal to the Circuit Court, the theory being that, while it could legislate upon its own internal affairs, it was not within the power of the city, by charter or otherwise, to confer jurisdiction upon or take jurisdiction from the Circuit Courts *590 of the state, and, to clear np this doubt, was evidently the principal intent of the enactment referred to. It seems clear to us that the charter contemplated the award of damages, in a lump sum, to parties interested, or claiming to be interested, in the property sought to be condemned. There is an evident intent on the part of the lawmakers not to interfere with charter provisions. The question particularly raised here is as to the procedure upon appeal. The charter gives a right of appeal from the decision of the council to award a lump sum, which we have seen was authorized by the charter, leaving the distribution of the amount awarded to further • consideration by the auditor and the council subject to the right of appeal. We do not think that it was the intent of the statute to take away this right or that it has done so by the terms of the act itself. It gives an appeal from the ordinance or other authorities fixing the amount to be paid and assessed against the property concerning which the appeal was taken. It is evidently in aid of the charter, instead of attempting to repeal it, or that portion of it, which states further that the notice of appeal shall describe the property as to which an appeal is taken. This was done, and it could only be done when it described the lot or parcel which the Sechtem Investment Company owned and upon which appellant had a lease; the rights of these parties being so intermingled that it would be impossible to describe one without referring to the other. Counsel for appellant contends that the effect of the award of the city council was to award $15,150 to the lessee and nothing to the lessor. The fact is that it was an award in gross, and appellant’s real grievance is, that it was insufficient in amount to cover his damages and those of his lessor, inasmuch as he claims *591 $25,000 and the whole award by the council covering the property was only $15,150. It is ably and plausibly argued that he should have had a separate trial and a separate appeal for the special amount of his damages; but it is clear that this cannot now be had in the absence of the lessor, who did not appeal in this case, but who was practically content with the gross award. It may well be that a statute, which would have given him a separate appeal as to his own property and required a separate award by the council as to his own individual damages, would have been a simpler proceeding; but it is not unusual for statutes to provide for a gross sum to be paid as compensation leaving separate claimants to litigate between themselves as to the amount that each is entitled to. That is what we think is provided for in this case. We will not pretend to say what might have been the effect of the jury’s finding if appellant had served a notice of appeal upon the lessor and thereby brought him into court. The statute does not provide for such a procedure, but probably does not prohibit it. The failure to so provide in case of several claimants to different interests in the property would seem to indicate an intent in the legislative mind that questions, between different claimants as to their share in the gross award, should be litigated between themselves and not with the condemning party. The law authorizes in effect, as we take it, an investigation and trial as to the gross amount of damages to all interested in the property and then says to the claimants: ‘‘Gentlemen here is a fund in money deposited with the treasurer sufficient to cover all damages which any one of you may sustain. If *592 you differ among yourselves as to your individual shares, we have left you a remedy as to each other, hut permit the improvement to go on.” Any other method would appear to he impractical in a case where there were many claimants to different interests in the same property. As to this branch of the case, we are of the opinion that the procedure adopted by the court was in accordance with the charter and the statute, and notin violation of any prescription of the Constitution. The appellant offered testimony tending to show the amount of profit he was making by reason of his restaurant business and also by reason of a cardroom, which he claims brought him in a profit of $25 a month. We think that the authorities are in favor of the proposition, that evidence of profits of this character is not admissible to show substantive damages, although in certain instances it may be admitted as indicating to some extent the rental value of the premises. The court overruled these offers, but subsequently withdrew its ruling and offered to allow appellant to introduce that evidence for the purpose of indicating the rental value of defendant’s leasehold estate. Defendant declined to take advantage of the offer of the court on that subject so he is not in a position to complain here. Yarious other rulings of the court on the admission or rejection of testimony are interposed and urged; but on the whole we think the trial was fair and that the defendant had ample opportunity to show everything that really went to enhance his damages. In view of all the testimony, the amount of award seems to be smaller than .the writer himself would consider proper, but the jury had one advantage *593 which he has not. Section 401 of the original charter, which is still in force as a method of procedure, provides that the jury shall view the property, and it appears from the record that this was done in this case. In ordinary cases, a view of the premises is within the discretion of the court, and it has no other effect than to enable the jury to judge the testimony; .but where the statute expressly provides that they shall view the property, the conclusions arrived at from such a view are part of the evidence in the case, and it may well be that having thus seen the property and had an opportunity to inspect it, observe the kind of a restaurant, the situation of the premises and to estimate for themselves the difficulties involved in making changes, their view of the testimony of the witnesses might have been modified thereby and we cannot say as to how such a view may have affected their verdict. An interesting case on this subject is Wakefield v. B. & M. R. R. Co., 63 Me. 385. It may be said that the ease at bar fairly bristles with difficulties and the temptation to write an extended opinion is great, and the views presented here are by no means commensurate in length with the labor involved in this research; but taking the case as a whole, we think that the judgment of the lower court should be affirmed, and that if any controversy should arise between the lessee of the premises and the lessor as to their respective shares of the award, it should be settled in the manner provided in Section 327 of the amended charter of 1919. Affirmed. Bossman, J., not sitting.