Kemp v. Polk County

Mr. Justice Bean delivered the opinion of the court. 1. The principal question on this appeal is whether a county court can refuse, to confirm the report of viewers appointed to assess damages to a landowner in the matter of the location of a road of public easement on the ground that, in its opinion, the damages assessed'are inadequate, when that fact does not appear from the face of the report, but must be shown by evidence aliunde. This same question was presented and decided in Fanning v. Gilliland, 37 Or. 369 (61 Pac. 636, 62 Pac. 209, 82 Am. St. Rep. 758), and that decision is controlling here. That, like this, was a proceeding for the location of a road of public easement. On the- coming in of the report of the viewers appointed to assess'damages to the lands- over which the road was to be located, the landowners appeared and objected to the confirmation of the. report, and asked that they be allowed to produce evidence that it was unjust. This was denied, and on appeal to this court the‘decision was affirmed; the court saying:- “Nor do we think that the objectors were entitled to a hearing upon the justice [justness] of the viewers’ report. That is a matter to be determined from the report itself, and it cannot be disputed by any method not prescribed by statute.” The Fanning case was based on a consideration of Section 4077 of Hill’s Ann. Laws of Oregon of 1892, but that section was subsequently embodied in the road law of 1903, without amendment or change, so far as the question involved is concerned, and therefore must receive the same construction. A significant fact in this connection is that by the act of 1903, the legislature provided or attempted to provide for an appeal to the county court from the assessment of damages by the road viewers in the location of a public county road, but omitted to do so in roads of public easement, thus indicating an intention not to disturb in that class of eases the rule laid down in the Fanning case. 2. Objection is made to the sufficiency of the petition for the location of the road, because it is said that it does not appear that [549] the premises of the petitioner are not accessible from some public thoroughfare, or that the gateway petitioned for is on the most accessible or desirable route. The petition conforms to the requirements of the statute. It describes the location of the residence of the petitioner, states that such residence is not reached by any convenient public road heretofore provided for by law and that it is necessary that the public and the petitioner should have ingress to and egress from the residence of such petitioner, described the route of the proposed road, the land over which it is to be located, and the ownership of such land. This is as much as the statute requires, and is sufficient: Section 20, Laws 1903, pp. 262, 269; Towns v. Klamath County, 33 Or. 225 (53 Pac. 604). 3. Nor is it necessary that the report of the viewers show that the road located by them is on the most accessible or desirable route. They are required by law to locate a road “so as to do the least damage,” and this fact appears from the report. Affirmed.