Clark v. City of Salem

Opinion by Mr. Chief Justice Ea-kin. 1. It is first contended by plaintiff that, as her property did not abut upon the street as it existed at the time of the notice of intention to improve it was given, her property was not liable, relying upon the language of section 43 of the charter (Laws 1899, p. 939), which, provides that “each lot or part thereof within the limits of a proposed street improvement shall be liable for the full cost of making the same upon the half of the street in front of and abutting upon it.” However, section 25 of the charter provides that “the said improvements of streets * * herein provided for sháll be done at the expense of the owners of adjacent property.” The term “adjacent” includes property in the neighborhood of the improvement though not actually touching thereon. 25 Am. & Eng. Enc. Law, (2 ed.) 1191. Section 43 also makes a provision for such a case as this, where plaintiff’s property is not laid off in blocks, in which case “the cost of the improvement shall be assessed to the owner or owners of the tract of land lying within one hundred feet of such improvement.” 2. Plaintiff’s main contention is that the east half of what is now Fourteenth street between Chemeketa and Center streets at the time of the initiation of the proceedings to improve Fourteenth street was a private property of the Portland Railway Light & Power Com [120] pany, and upon which a part of the improvement was to be laid; therefore, the city was without jurisdiction to make the improvement, and without authority to assess the expense thereof upon the adjacent property, and that a subsequent dedication of the street cannot validate the proceedings so as to make the lien enforceable, relying upon the authority of Spaulding v. Wesson, 115 Cal. 441 (47 Pac. 249), which supports plaintiff’s contention. But the better rule seems to be that, although the city has no jurisdiction to place its improvement upon the private property and hold the property owners liable for the expense thereof, yet, if before the proceeding is completed the city condemns or secures the dedication of the street, the 'property owners cannot complain. 2 Elliott, Roads & Streets (3 ed.) § 681. The same author, in discussing this question, at section 605, casts doubt upon the soundness of the holding in Spaulding v. Wesson, 115 Cal. 441 (47 Pac. 249), saying that it is an extreme case: “It has been held that a contract for the improvement of a street is not ultra vires and void simply because condemnation proceedings have not been fully consummated before the passage of the order for the improvement.” And in Keough v. City of St. Paul, 66 Minn. 114, 118 (68 N. W. 843), it is held that the fact that the condemnation or dedication of the street has not been completed cannot be urged against the assessment after these things are' completed. In Holmes v. Village of Hyde Park, 121 Ill. 128 (13 N. E. 540), it is held that an assessment for á proposed street improvement made prior to the acquiring of the right to the street by condemnation or otherwise is not void, but may be enforced after the dedication of the street. To the same effect is People v. Common Council of Rochester, 5 Lans. (N. Y.) 142, 146. In Village of Hyde Park v. Borden, 94 [121] Ill. 26, it is held that the collection of a' special assessment for the construction of a sewer cannot be resisted because at the time of the adoption of the ordinance for the proposed improvement and of the making of the assessment permission was not obtained to make the improvement through the lands of another. The permission may be obtained afterwards, and it will be good. To the same effect is City of St. Joseph, etc. v. Landis, 54 Mo. App. 316. In Edwards v. Cooper, 168 Ind. 54, 67 (79 N. E. 1047), it is held that the mere fact that the resolution for the improvement was adopted before the street was opened was but a mere irregularity of which the property owner cannot complain, if regularly opened before the final hearing. See, also City of Toledo, etc. v. Barnes, 2 Ohio S. & C. P., Dec. 590; 2 Elliott, R. & Sts. (3 ed.) § 681; 28 Cyc. 1108. Therefore we conclude that the assessment was not void and is enforceable after the completion of the opening of the street, and, that being true, plaintiff cannot complain that her property does not abut upon the improvement, as it does touch upon it as dedicated and improved. 3. Plaintiff further contends that the defendant has offered no evidence to establish the existence of the lien upon the property. The answer alleges that the assessment was entered in the lien docket of the city, and ever since has been and is a lien against the property. This is denied by the reply. No evidence was offered upon that issue', but defendant relies here upon the presumption “that official duty has been regularly performed.” Section 799, subd. 15, L. O. L. By this statute it may be unnecessary to allege a fact, the existence of which the law will presume. However, that presumption is not conclusive. In this case the lien is alleged, and, being denied it became an isshe of fact, the burden of proving which was thereby cast [122] upon defendant. It was so held in School Dist. No. 2 v. Lambert, 28 Or. 209, 220 (42 Pac. 221). See, also, National Bank v. Herold, 74 Cal. 603 (16 Pac. 507: 5 Am. St. Rep. 476). Therefore that presumption cannot aid defendant. 4. However, the purpose of the lien is to establish the order of the priority of claims to the property and to operate as notice to other creditors as well as purchasers and incumbrancers, but the assessment is not lost or barred or rendered void because not entered on the lien docket at any particular time. 5. A judgment is vaild, and the lien will be created by the levy of the execution even though the judgment is not entered on the lien docket. 17 Cyc. 1060; 23 Cyc. 1351; Smith v. Farmers’ & Merchants’ Nat. Bank, 57 Or. 82 (110 Pac. 410) ; Wood v. Fisk, 45 Or. 276, 278 (77 Pac. 128, 738) ; Budd v. Gallier, 50 Or. 42 (89 Pac. 638) ; Rice v. Warren, 91 Ga. 759 (17 S. E. 1032) ; Hastings v. Cunningham, 39 Cal. 137. • 6. The warrant for the collection of a street assessment by the terms of section 38 of the charter shall have the force and effect of an execution against real property and shall be executed in like manner, except as in the charter specially provided, and therefore it may be enforced even though the assessment is not entered on the lien docket. The assessment having been found to be regular and valid, plaintiff is not entitled to have it canceled or decreed void, even though it has not been entered on the lien docket. The decree will be reversed, and the suit dismissed. Reversed. Mr. Justice Burnett took no part in this decision.