Sperry v. City of Albina

Thayer, C. J-. The question to be determined in this case is as to the sufficiency of the appellants' complaint. The suit appears to haVe been predicated upon the ground that the proceedings to improve the street were irregular, and that the respondents would undertake to charge the expense of it upon their property abutting upon the street. The apprehension that such an attempt would be made -seems to have arisen from the fact that the city council passed the ordinance numbered 37, declaring the costs, accepting the work of the contractor, and directing an entry of the assessment to be made in the docket of city liens, as the -appellants term it. But if their view of the affair is Correct, they are in no imminent danger -Of having to pay the expense of the improvement of the [485] street. They allege, in effect, that no notice had been' published or given of an intention upon, the part of the, said council to cause the improvement to be made at the-, expense of the property adjacent thereto, as required by; subdivision 6, section 18, of the charter. That subdivision provides, as will be seen by a reference to the charter, as follows: “The council have power and authority within, the corporate limits .... to construct, clean, and repair-sidewalks and cross-walks, or provide for the construction, cleaning, and repairing of said walks adjacent to real property by the owners of such property, and also for- the making, cleaning, and repairing gutters; to grade, gravel, pave, plank, or otherwise improve and keep in repair highways, streets, and alleys; provided, that no property shall be assessed for the construction of such improvement for more than one half of its last county assessed valuation; provided further, that if two fifths of the property on such streets and adjacent thereto shall oppose such improve-: ment by remonstrance, then such improvement shall not be ordered; provided further, that no property shall be taxed more than once for such improvements; and provided further, that in case of proposed street improvements, where the improvements proposed are to be made: at the expense of the property adjacent thereto, thirty, days’ notice of such intention shall be given, by posting, three notices thereof in public places of said city.” Now* if this provision requires the notice to specify that the proposed street improvement is to be made at the expense of the property adjacent thereto- in order to render it liable for the expense of the improvement, as the appellants seem to claim, and which I am inclined to believe is correct, then certainly no harm can come to the appellants on account of the proceedings herein. The city council, not having given any such notice, as required by the provision, will not be likely to proceed to enforce payment of [486] the pretended liens against the property, or disturb the several titles of the appellants thereto; and if it should attempt to do so, its proceedings would be a nullity. At all events, the city council has not attempted to cause the property to be sold to satisfy the cost of the improvement, and until it takes some decided step in that direction, the appellants’ rights in the premises will not be in such jeopardy as to demand the issuance of an injunction; and whether the appellants would then be entitled, under the rule adopted by courts of equity, to invoke such a remedy, is very doubtful. Mr. Pomeroy, in his work on equity jurisprudence, volume 3, page 437, says: “In the absence of statutes giving prima facie validity to deeds or other proceedings, the following doctrine seems to be sustained by the great majority of American decisions: Where the instrument or proceeding constituting the alleged cloud is absolutely void on its face, so that no extrinsic evidence is necessary to show its invalidity, and where the instrument or proceeding is not thus void on its face, but the party claiming under it, in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity and destroy its efficacy, in each of these cases the court will not exercise its jurisdiction either to restrain or to remove a cloud, for the assumed reason that there is no cloud.” The learned author indulges in a degree of criticism upon the rule as thus laid down which may be eminently just; but it is very questionable whether the court would be willing to disregard it in any case, unless some very extraordinary circumstance intervened. It will be observed by an examination of the charter of the city of Albina that it makes no provision concerning the validity of a tax deed, or deed given upon the sale of property for street improvements. The validity of such a [487] deed under the provisions of the charter of that city must depend entirely upon the regularity of the proceedings authorizing the sale of real property for the non-payment of a tax or street assessment; and the party claiming under it is required to prove the regularity of the proceeding before the deed can be considered as having any force or effect. Neither does the said charter provide for any docket of city liens; hence the allegation in the complaint in regard to the assessment for the improvement of said Helm Street, standing upon the respondents’ “lien docket,” or being entered in the “lien docket of the respondents,” amounts to nothing. The city authorities may have devised such a book, and caused the pretended assessments to be entered therein, but that would not give them the apparent effect of a legal lien. Such act would no more create a cloud upon title than a memorandum in an ordinary account-book. It would not be admissible as proof of a lien upon the property without showing that the various steps prescribed in the charter had been taken which would constitute a lien. I am unable to perceive any tenable ground for the suit, and in my opinion the circuit court properly sustained the demurrer to the complaint. The decree appealed from will therefore be affirmed.