Houck v. City of Roseburg

Mr. Justice Eakin delivered the opinion of the court. 1. But one question is raised by the brief of appellants, viz.: Is the assessment of the cost of the construction of the sewer upon the property on the south side of the street void because it does not include all the property directly benefited? It may be stated as a rule in proceedings for the levy of an assessment for a street improvement that, if the council has acquired jurisdiction, equity will not grant an injunction to prevent the collection of the assessment for irregularities occurring in the subsequent proceedings on the complaint of the owner of property benefited by the improvement, who, with knowledge of its progress, permitted its construction without objec [243] tion. Smith, Law of Munic. Corp. § 1263; Wilson v. City of Salem, 24 Or. 504 (34 Pac. 9, 691); Barkley v. Oregon City, 24 Or. 515 (33 Pac. 978); Strout v. Portland, 26 Or. 294 (38 Pac. 126); Clinton v. Portland, 26 Or. 411 (38 Pac. 407); City of Denver v. Dumars, 33 Colo. 94 (80 Pac. 114); Klepsch v. Donald, 18 Wash. 150 (51 Pac. 352.) 2. The proceedings necessary to jurisdiction are that the council, having determined to construct ,a. sewer at some designated location, shall declare by ordinance whether the cost thereof shall be assessed to the property directly benefited, the appointment of the council of disinterested viewers who shall view the street and location of the proposed sewer and ascertain and determine what property is directly benefited thereby and the extent and proportion of such benefits, and publication by the recorder of the notice provided by Section 100 of the charter. Laws 1895, p. 548; Clinton v. City of Portland, 26 Or. 411 (38 Pac. 407.) 3. In Wingate v. Astoria, 39 Or. 603, 604 (65 Pac. 982, 983), Mr. Justice Bean says: “It is the settled law of this State, supported by the weight of authority, that, where the municipal authorities have jurisdiction to improve a street, a property owner who, with knowledge of such improvement, makes no objection until after the work has been completed, cannot enjoin the collection of the assessment on the ground that the proceedings have not been regular.” As there stated, the objection that the local assessments were not in fact made according to the benefits does not go to the jurisdiction of the council to make the improvement, and therefore cannot be the basis of a suit to enjoin the collection of the assessment after the improvement has been made. It is immaterial that the plaintiffs did not have actual notice. The construction notice provided for by Section 100 of the charter is all that is required. This gave plaintiffs ample opportunity to be heard as to any irregularities in the proceedings, and, not having [244] taken advantage of that opportunity until after the work has been done, they are precluded thereby from asking equitable relief. Barkley v. Oregon City, 24 Or. 515, 520 (33 Pac. 978); King v. Portland, 38 Or. 402 (63 Pac. 2: 55 L. R. A. 812); Paulson v. Portland, 16 Or. 450, 463 (19 Pac. 450: 1 L. R. A. 673). 4. It is further alleged in the complaint that the action of the viewers and the council in omitting from the assessment the lots on the north side of the street and assessing the whole cost of the sewer upon the property above described, was willful, arbitrary, and intentional, and purposely done. Such conduct on the part of the viewers or the council, if unreasonable, oppressive, and subversive of the rights of the plaintiffs, would amount to a fraud upon plaintiffs and render the proceedings void and ground for equitable relief. Masters v. Portland, 24 Or. 161, 165 (33 Pac. 540; Beckett v. Portland, 53 Or. 169, 172 (99 Pac. 659.) 5. But in an equity proceeding the findings of the council as to the amount the property is directly benefited by the improvement and the proportionate share thereof to be charged to each lot are conclusive in the absence of fraud. Duniway v. Portland, 47 Or. 103, 112 (81 Pac. 945); Hughes v. City of Portland, 53 Or. 385 (100 Pac. 942.) 6. The evidence in this case does not substantiate that allegation of the complaint. It also appears that Geo. E. Houck, the husband of plaintiff Mary E. Houck, and his attorney, Buchanan, appeared before the council and asked for the construction of this sewer, representing that all the owners of the property on the south side of Oak Street were anxious to have the sewer constructed. There is a conflict in the evidence as to whether there was a petition presented or not, but that is immaterial as the council is authorized to act in such cases upon its own motion; and the evidence offered, tending to show the con [245] tents of the petition, does not establish that the petitioners thereby agreed to pay the' cost of the construction of the sewer. However, it appears that the members of the council were of the opinion that the sewer would not directly benefit the property on the north side of the street, and were opposed to the construction thereof if the expense was to be assessed equally upon the property on both sides of the street, and the matter wás held in abeyance until, as the members of the council understood, it was agreed by Geo. E. Houck for himself and the other owners of the lots on the south side of the street that the sewer was to be constructed on the south side of the street and at the expense of the property on that side. Several members of the council testified that it was the understanding between Houck and Buchanan, his attorney, and the council, that the sewer should be constructed on the south side of the street, the property owners on that side would pay for it, and that it would not have been constructed otherwise. They are corroborated in this to some extent by evidence tending to show that Gregory at least objected to the city permitting the property on the north side of the street to be connected with the sewer, on the ground that it was the private sewer of the property on the south side of the street. Without determining that Leona Abraham knew that the council was constructing the sewer with the understanding that it was to be paid for by the lot owners on the south side, it is disclosed that the- council and viewers were not acting arbitrarily or willfully, or from any improper motive in so assessing the cost of the sewer against the property on the south side of the street, nor were they seeking or taking any undue advantage of plaintiffs or any of them. The council had a right to assume that plaintiffs were acquiescing in the assessment of the cost as made by the viewers or they would have filed with the recorder objections thereto within the time fixed by the charter, viz., February 16, [246] 1905, being 10 days, from the date of the last publication of the notice, and, if they had done so, the council might then have abandoned the improvement if they saw fit. Albert Abraham, the husband of plaintiff Leona Abraham, and plaintiff M. C. Gregory, were consulted by Geo. E. Houck as to the need of the sewer at the time it was brought before the council, and they favored its construction. Geo. E. Houck was acting for his wife, with her knowledge and consent, in securing its construction, and the action of the council in relation thereto was not an unreasonable or oppressive exercise or abuse of its powers, and therefore the case is not one of equitable cognizance. 7. The objection that the viewers were appointed by the mayor, and not by the council, is without merit. The record shows that at a council meeting the viewers were appointed by the mayor in which the council acquiesced, and such appointment is recognized and recorded as part of the transactions of the council. The decree of the lower court is affirmed. Affirmed.