Canyonville & Galesville Road Co. v. County of Douglas

[281] By the Court, Prim, J.: This is an appeal from a judgment dismissing a writ of review, and affirming the action of the County Court of Douglas County, in the matter of laying out and locating a county road. It appears, from the return on said writ, that on December 4, 1873, at the December term of said County Court, a petition was presented, praying for the location of a county road “from a point five miles south of the south line of the city of Roseburg, from a stake on the northeast corner of school lot, in school district No. 5, in said county, * * * to the summit of Cow Creek Hill, the same being the southern line of Douglas County.” Upon the filing of the petition, viewers and a surveyor were appointed to locate and survey the said road, and they proceeded to view and locate the same, for a portion of the distance, upon the line and route surveyed and adopted by the Canyonville and Galesville Road Company, as its road. This company was a private corporation, organized for the purpose of locating and constructing a toll-road through the canyon, in the southern part of Douglas County. At the January term, 1874, of said County Court, the report of the viewers, together with the surveyor’s return of the survey, were received. The road company then appeared, by its attorneys, and opposed the location and establishment of so much of the said county road as occupies the line and route selected and adopted by said company for its toll-road. At the March term, 1874, these objections were overruled, and it was ordered that the said county road be established and opened according to the report and the survey. The notice of appeal contains a great many assignments of error, but the only points upon which appellant appears to rely are: First. That the Circuit Court erred in holding that the County Court could locate a county road upon the line or route already appropriated by appellant for its toll-road, there being no provision made by law for compensation for taking this species of property. Second. That the petition was insufficient to give the County Court [282] jurisdiction to locate and lay out the road, because it does not sufficiently specify the termini. It was insisted by counsel for the appellant that when the objections were filed in the County Court, that tribunal should have entertained them and passed upon the questions raised. In cases of this character the remedy is not confined to one tribunal. Much depends upon the particular remedy sought. The County Court has power in the first instance to lay out roads, but must make all the proceedings conform to the statute. In some cases by review, and in others by appeal, the Circuit Court may annul the proceedings in the County Court, or may correct an assessment of damages or the like. The County Court, however, has not jurisdiction to try questions of title, or rights arising out of the exercise of eminent domain. These matters must be tested in a tribunal .invested with fuller powers, having wider jurisdiction, one in which can be administered full relief, either by injunction or otherwise. This company had a right to seek in the County Court, and also by this writ of review from the Circuit Court, such remedy as the County Court could grant. It could call in question the jurisdiction of, or the regularity of, the proceedings in the County Court, by remonstrating and reviewing all matters going to the jurisdiction in the Circuit Court. It could not, however, by remonstrating, block the exercise of jurisdiction on the part of the County Court, for if jurisdiction is once fully obtained, objection to its exercise cannot be heard. The objection urged to the jurisdiction might be heard, if well taken, but in this casé it is not well taken. The statute requires that “all applications for laying out or locating county roads shall be by petition, * * * which shall specify the place of beginning, the intermediate points and the place of termination of said road.” The petition herein prays for the location of a county road “from a point five miles south of the south line of the city of Rose-burg, from a stake on the northeast corner of school lot in school district No. 5 in said county, * * * to the summit of Cow'Creek Hill, the same being the southern [283] line of Douglas County.” Thus it will be seen that it specifies the place of beginning, the intermediate points (which are also mentioned, in the petition), and the place of termination of the proposed road.* It is not within the rule in Johns v. Marion County (4 Or. 46), and is sufficient. The court went to the extreme verge of the law in that case, and we are not inclined to go farther. The judgment herein should be affirmed. Mr. Justice Shattuck concurred. Mr. Chief Justice Bonham dissented.