Reiff v. Portland

Mr. Justice Bamsey delivered the opinion of the court. On September 21, 1910, the plaintiff filed a petition for a writ of certiorari to obtain a review of certain proceedings of the council of the City of Portland, had in making a reassessment of the property of certain adjacent lot owners in said city, for the payment of the expenses of á street improvement; the petitioners claiming that said proceedings were illegal and void, for reasons alleged in said petition. The petition contains 27 pages, and hence it is impracticable to set it out in this opinion. — 425 — On October 7, 1903, the council of the City of Portland passed a resolution for the improvement of Seventeenth Street of said city from 58.5 feet north of the north line of Yaughn Street, to the south line of Marshall Street, in said city, in the manner stated in said resolution. The improvements contemplated by said resolution were made, and the city assessed the expense thereof upon the property adjacent to said street; but the Circuit Court of Multnomah County, upon a writ of review, prosecuted by interested parties, held that said assessment was invalid, for defects in said proceedings, and directed the city to make a reassessment of the expense of said improvement. Said judgment or order was made on July 6,1908. On March 23, 1910, the council of the City of Portland passed an ordinance, No. 20989, entitled “An ordinance making a reassessment for the improvement of Seventeenth Street from 58.5 feet north of the north line of Yaughn Street, to the south line of Marshall Street.” This ordinance was approved by the mayor of said city on March 24, 1910, and by this ordinance the city levied certain reassessments upon the property of the plaintiffs, amounting to $5,574.79, for the improvement of said Seventeenth Street from 58.5 feet north of the north line of Yaughn Street to the south line of Marshall Street. The plaintiffs own property adjacent to said improvement, and said reassessment was made by said city to pay for the improvement of said street, made as stated supra; the assessment originally made by said city to pay for said improvement having been held invalid, for defects in the proceedings. The reassessment was made to pay for the same improvement for which the said invalid assessment was made. The plaintiff began — 426 — this certiorari proceeding, claiming that said reassessment is invalid. After the allowance of said writ of review, the trial court allowed a motion of the defendants for an amended writ, and disallowed a motion of the plaintiffs for a further return to said writ. The rulings of the court upon these motions are assigned as error. But, in the view that we take of this case, the rulings of the court on said motions cannot materially affect our decision. Hence we will treat the questions for consideration as if the papers that the plaintiffs desired returned were in the record. The reassessment was, in a sense, a continuation of the original assessment proceedings. There was no new improvement made, and the reassessment proceedings were had for the purpose of imposing a lien upon the lands of the adjacent property owners for the payment of the expense of said improvement, in accordance' with Section 400 of the charter of said city. 1. The first point urged by the plaintiffs is that the reassessment is invalid, because the original resolution for the improvement of Seventeenth Street was invalid, in that it attempted to provide for a repair of two separate parts of Seventeenth Street, which had been formerly improved by gravel, and which parts of said street extended from the south line of Marshall Street to 50 feet north of the north line of Marshall Street, and were then separated by a wooden elevated bridge about 4 blocks long, where a second piece of gravel street commenced, which was attempted to be repaired in said resolution, etc. Counsel for the plaintiffs contends that said resolution is invalid, under Section 375 of the charter of Portland, which, inter alia, provides: — 427 — “The improvement of each street or part thereof, shall be made under a separate proceeding.” This clause prohibits the improvement of two or more streets or parts of two or more streets in the same proceeding, but, whether it prevents the improvement of two or more parts of the same street in one proceeding, when the parts to be improved are disconnected, need not be decided here, because the improvement in question is all on Seventeenth Street, and the portions of the street improved appear to be continuous from 58.5 feet north of the north line of Yaughn Street to the south line of Marshall Street. The fact that along a portion of the part to be improved a fill was necessary did not invalidate the improvement. 2. Section 400 of the charter of the City of Portland (Sp. Laws Oregon, 1903, p. 161) provides that whenever an assessment for a street improvement has been or shall hereafter be set aside or amended by any court, or when the council shall be in doubt as to the validity of such assessment, the council may, by ordinance, make a new assessment or reassessment upon the lots, blocks, or parcels of land which have been benefited by such improvement, to the extent of their respective and proportionate shares of the full value thereof. Under said section, ‘ ‘ such reassessment shall be based upon the special and peculiar benefits of such improvement to the respective parcels of land assessed, at the time of the original making, but shall not exceed the amount of such original assessment.” Said section 400 has been before this court several times, and its validity and constitutionality are settled by the decisions of this court, and it is not necessary to re-examine those questions in this cause: Duniway — 428 — v. Portland, 47 Or. 103 (81 Pac. 945); Hughes v. City of Portland, 53 Or. 370 (100 Pac. 942). Under said Section 400, sufra, the reassessment therein authorized to be made must be “based upon the special and peculiar benefits of such improvement to the respective parcels of land assessed, ’ ’ and the assessment upon any lot or parcel should not exceed the special and peculiar benefit resulting to such lot or parcel of land from such improvement. Section 400, sufra, provides the manner in which a reassessment shall be made, and, if the city in this case complied with said action, the reassessment made is valid. 3. In the first place, there must have been an actual attempt by the council, in good faith, under the regular procedure provided by the charter, to make an improvement, and assess the cost thereof to the property benefited, in proportion to such benefit. The proceeding must have failed, because of an omission to comply with some of the provisions of the charter relating to such assessments. The proceeding must have been set aside by some court of competent jurisdiction on account of defects therein, or the council must have doubts as to the validity of such proceedings. The original contract for the improvement must have been substantially complied with, and the improvement must have been made in substantial accordance with the contract, and the proceedings authorizing it. 4. No notice to abutting property owners need be given of the intention of the council to pass a resolution for reassessment, and such a resolution need not contain a finding that the original contract for the improvement had been substantially complied with: See, on all these points, Hughes v. City of Portland, 53 Or. 383, 385 (100 Pac. 942). — 429 — 5. After the resolution providing for the reassessment has been passed by the council, notice thereof must be given to the property owners, and they must have an opportunity to appear and object to the reassessment, if they desire to do so. 6. This being a writ of certiorari, we are restricted to an examination of the record and proceedings of the council, and cannot consider facts that are not found in the record. 7. The plaintiffs contend that they were not properly notified of the intention of the council to make said reassessment and given a proper opportunity to make objections thereto. The council on August 25, 1909, adopted a resolution for the making of said reassessment, and directed the auditor of said city to prepare, within 90 days from said date, a preliminary reassessment upon the lots, blocks, and parcels of land within the district benefited by said improvement, and give due notice to the owners of all property affected by said reassessment, in the manner prescribed by the charter. On November 24, 1909, the auditor presented to the council of said city his preliminary reassessment of the property affected by said improvement, and it was filed on said date. Notice was given by the auditor of the making of said preliminary reassessment, and that any objections to said assessment and reassessment should be filed in writing with the auditor within 10 days from December 4, 1909, the last day of publication of said notice, and that objections to said reassessment would be heard by the council at the regular meeting thereof on December 22, 1909, etc. Said notice seems to be in proper form, and it was published and served according to law. — 430 — On December 13, 1909, the plaintiffs, by their attorney, filed with the auditor lengthy objections to said reassessment. In these objections the plaintiffs contended that said reassessment was illegal and void, for several reasons. One objection made to said reassessment was that it was not made in accordance with the special and peculiar benefits to the property by reason of said improvement, and apportioned equitably throughout the district. Another objection was that the city in one proceeding attempted to make a repair of two separate parts of Seventeenth. Street that had formerly been improved with gravel, and which parts of said street were separated by a wooden elevated bridge about four blocks long. But the record shows that said improvement was not in separate parts of said street, but continuous, as stated supra. Another objection was that the city, in making a fill in said improvement, caused a large amount of earth and other filling material to be put upon the private property of the people opposite the wooden bridge, without their consent and without obtaining any right to do so, and that the city had attempted to appropriate said private property to a public use, in violation of the Constitution, and without compensation, and that, in doing so, the city was violating the law, and a trespasser. Said objections allege also that the city, in making said reassessment undertook to charge said property owners for the expense of said trespassing upon their property, in building the slopes of said fill upon their property, .and attempted also to charge the entire cost of the fill in the street upon the abutting property, and that said fill was not made for the benefit of the abutting property, but for the benefit of other property in the district, and the city at large; that it was an illegal and unjust — 431 — charge upon the abutting property; and that the said charge upon the abutting property owners is greatly in excess of the benefit to the property abutting the bridge; and that the reassessment upon the property of other persons is a great deal less than the benefit to their property, etc. 8. A. L. Barbour, auditor of said city, made said reassessment, and, in his certificate appended thereto, he certified as follows: “I, A. L. Barbour, auditor of the City of Portland, Oregon, do hereby certify that the whole cost of said improvement was the sum of $10,762.12; that I have viewed the reassessment district and each lot, part thereof, and parcel of land therein; that the property within the reassessment district is benefited in the full sum of such cost; that I have ascertained what I deem to be the special and peculiar benefit derived by each lot or part thereof or parcel of land within said district by reason of such improvement; and I hereby apportion the cost of said improvement to the lots, parts of lots, and parcels of land within the said district, in accordance with the special and peculiar benefits derived thereby, in the amount set opposite the number and description thereof, and to the extent of their respective and proportionate shares of the full value thereof. I further certify that each lot, part of lot, or parcel of land within said district is especially and peculiarly benefited by said improvement in the amounts so set forth, and, in my judgment, said property should be reassessed in such amounts,” etc. The foregoing certificate of the auditor shows on its face that said reassessment was properly made, and we do not find that his certificate is not true. The auditor was the proper officer to make said reassessment, and he is presumed to have done his duty properly, and his certificate stating how he made said reassessment is presumed to be true. — 432 — 9. In assessing or reassessing the expenses of street improvements, the officer charged with that duty is required to act in good faith. It is his duty to estimate in good faith, and as accurately as he can, the amount that each parcel of land subject to assessment will be specially and peculiarly benefited by the improvement, and in no instance to assess upon a piece of property an amount in excess of such special and peculiar benefit. He has no right to sit down and figure what the improvement in front of property has cost, or will cost, and impose that amount upon the property, unless the property has been, or will be, benefited to that extent by the improvement. The record of the council shows that on December 22, 1909, a remonstrance by Anna F. Grace et ah . and Ralph R. Duniway, attorney for objecting property owners, was read in the council, and, on motion, it was referred to the committee on streets. On February 21, 1910, said committee wrote the attorney for the plaintiffs, notifying him that the ordinance making a reassessment for the Seventeenth Street improvements, and the remonstrances against the same, would be considered by said committee at the next regular meeting of the committee, to be held on March 4,1910, at 2 o’clock P. M. In a letter of the date of March 4, 1910, addressed to said committee the attorney for the plaintiffs acknowledges receipt of the committee’s letter to him, notifying him that the remonstrances against the proposed reassessment would be considered by the committee on March 4, 1910, at 2 o’clock P. M., and in this letter Mr. Duniway says that he does not believe that the committee had any jurisdiction or power to act on the reassessment ordinance and objections, or that the council could then legally pass upon his ob — 433 — jections and enact said ordinance. He said lie would attend said meeting of the committee if it should be possible for him to do so, but expressed doubts as to his ability to attend. The objections of the plaintiffs to said reassessment were referred also to the city attorney by said committee, and the city attorney reported that, if Mr. Duniway’s objection that said reassessment was an attempt to impose the cost upon the abutting property without regard to benefits, and as a mere mathematical calculation, was true, the rule of assessment should be changed. On March 18,1910, the committee on streets reported to the council that they had considered the ordinance for the reassessment of the cost of the improvement of said Seventeenth Street, and the remonstrances against the same; that the remonstrators were called, and, no one appearing, the remonstrances were considered by the committee, and the committee recommended that the remonstrances be overruled, and the ordinance passed. Said report is dated March 18, 1910, and it was filed March 22,1910. At a regular meeting of the council on March 23, 1910, the report of said committee was presented to the council, and, on motion, it was adopted, the said remonstrances were overruled by the council. Said ordinance was passed by the council March 23, 1910, and approved by the mayor March 24, 1910. The city gave due notice of the making of the preliminary reassessment and of the time within which objections thereto could be made. The plaintiffs, by their attorney, filed with the auditor their written objections thereof. These objections were presented to the council and read, and, by the council, they were — 434 — referred to the committee on streets. This committee referred said objections to the city attorney, and he made a report concerning them to the committee. The committee notified the plaintiffs’ attorney of the time when they would consider said objections or remonstrances. 1 The attorney did not appear before the committee, and the committee, after considering said objections, reported to the council that they had con-' sidered them, and recommended that the objections be overruled. This report was presented to the council at a regular meeting, and read to the council, and the council, on motion, overruled said objections, and, at the same session, passed the ordinance making the reassessment. We hold that the plaintiffs had due notice of said proposed reassessment, and that they filed their objections thereto, and that those objections were heard, decided, and overruled by the council, and that the proceedings of the council were regular in this respect. There is another matter that should not be overlooked, relating to the opportunity given to persons whose lands are reassessed to have determined the amount that should be assessed against their lands to pay for such an improvement. Section 401 of the charter of Portland confers upon persons objecting to such reassessment the right to appeal from the decision of the council to the Circuit Court, and have the amount to be assessed against their property, determined by a jury trial. Hence it appears that the charter of Portland affords the adjacent land owners proper remedies against unjust reassessments by the council. 10,11. The plaintiffs contend also that the city, in making said improvements, made a large fill along a portion of Seventeenth Street, and in doing so, wrongfully and without the consent of the adjacent land — 435 — owners, caused a large amount of earth and other filling material to be put upon the land owned by the persons along said street, and that, in doing so, the city violated the law, and was a trespasser, and that, for this trespass, this court should annul said reassessment. We think that the city had no right to pile earth and other material upon the abutting owners’ lands, and that, if it was done without their consent, it was a trespass, for which the land owners could recover damages in an action at law. In Hendershott v. Ottumwa, 46 Iowa, 659 (26 Am. Rep. 182), the court says: “It is equally well settled that if, in making changes in the natural surface of streets, the city is negligent in construction, so that the adjacent lots are injured by reason of such negligence, the city is liable for such injury.” In Ashley v. Port Huron, 35 Mich. 301 (24 Am. Rep. 552), the court says: “If the corporation [the city] send people with picks and spades to cut a street through it [land’] without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the other.” In Vanderlip v. Grand Rapids, 73 Mich. 522 (41 N. W. 677, 16 Am. St. Rep. 597, 3 L. R. A. 247), the syllabus is: “In this case the grading of a city street in such a manner as to raise an embankment upon 30 feet of the entire frontage of an abutting lot, and thereby bury a portion of the dwelling-house of the owner therein, is held to amount to a taking of private property for — 436 — the public use, within the inhibitions of the Constitution; and that in such a case the law does not require such owner to wait until his property is completely destroyed, and then turn him over to an action of trespass to recover his damages, but equity, when appealed to, will interfere and restrain such threatened destruction. ’ ’ See, also, Giaconi v. Astoria, 60 Or. 12 (113 Pac. 855, 118 Pac. 180), and Western Penn. R. Co. v. City of Alleghany, 92 Pa. 100. In this case it is claimed that the city made a fill the full width of the street, and made a slope extending onto the lands of the abutting owners. We hold that the city had no right to do this without the consent of the owners. However, it is probable that the city could have obtained a right to use the property of the abutting owners by proper proceedings and paying for it. Moore v. Albany, 98 N. Y. 406, 407, is a case closely in point, and the court there says, inter alia: “As to the embankments outside of the street lines. In grading a street it seems to us clear that the public authorities have no right to invade private property outside of the street lines. If it becomes necessary to use or interfere with such property, they must in some way acquire the right to do so. These embankments were built for the purpose of making the street within the street lines. In order to grade the street to the full width thereof, it was necessary either to build retaining walls on the sides of the street within the street lines, or to support the street by sloping embankments upon the adjoining lands. It is evident that the latter mode was the most reasonable and economical. The lands outside of the street lines are not permanently occupied or used for the street or appropriated to public travel. They remain in the possession and occupancy of the owners thereof, subject to the burden of the earth cast thereon. These embankments are evi — 437 — dently not injurious to the adjoining owners, as it is for their interest to have their lands filled up to the grade of the street. It cannot he presumed that they will dig away and remove these embankments, and, if they should, the street would still remain, and the city could support its sides in some other way. The only practical remedy for the owners of lands thus invaded is to sue the city or those who placed the earth upon his lands without his consent, express or implied, for the wrong, and in such an action he can recover his entire damage for a permanent appropriation of his land for the embankment: Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423. It does not appear that any of the owners of the land thus invaded make any objection to the embankments. They could, if they had desired, have restrained the deposit of earth upon their lands by an equitable action. That they did not do. They could have objected to the deposit of the earth, and it does not appear that they did that. They did not even object to the assessment made upon their lands on account of these embankments when they appeared before the board of contract and apportionment, and before the common council, in reference to the assessment. These embankments have remained there since the early part of the year 1877, and they have not been disturbed, and there is the highest probability that they never will be. If any attempt should be made by the land owners to disturb them, there is ample power under the city charter to vest the title to the lands in the city for the purpose of the street: Laws 1870, c. 77, tit. 7, par. 1. These embankments are not the street, but are there simply for the support of the street which is upon the land acquired for the purpose thereof, and. their cost was a necessary and proper expense in the construction of the street.” In Marshall’s Appeal, 210 Pa. 538, 539, (60 Atl. 160), the court says: ‘ ‘ The only question argued is whether the city could assess against the abutting properties a part of the cost of stone walls built at places along the sides of — 438 — the avenue. * * Some of these walls were built in part, and some of them wholly, on the adjoining properties. None, however, were built on the land of the appellants. The determination of the plan and manner of improving the avenue rested with the municipal authorities, and the abutting properties were liable to assessments to the extent to which the local improvement was a permanent benefit to them. If the walls were a necessary part of the street improvement, and the right to maintain them on private property was secured by the city, their cost was properly included in the assessment.” In the case of Davis v. Silverton, 47 Or. 177 (82 Pac. 16, 18), the plaintiff claimed that the proceedings for the street improvement were, as to the assessment against her property, invalid, and she sought to have the collection of said assessment enjoined. The plaintiff had built a stone wall on what she contended was the line between her property and the street that was improved. In said suit she contended that the city, in making said improvements, had encroached upon her land and destroyed said stone wall. In deciding the case the court inter alia says: “If in reality there was an encroachment upon the plaintiff’s lots, it was not by design to widen the street beyond the true boundary, and it could not, by any logical course of reasoning or principle involved, invalidate the proceedings for the improvement of which the plaintiff complains. We do not think that the encroachment upon the plaintiffs’ lands or the assessing of the expense thereof to the adjacent owners, in the manner claimed by the plaintiffs, affected the validity of the reassessment proceedings. If said encroachment upon the lands of the plaintiffs occurred without their express or implied consent, it may be that they could maintain a suit in equity to — 439 — enjoin the collection of that part of the assessments that could be shown to have been incurred to pay the expense of putting the earth on the plaintiffs’ said premises; but we do not decide whether such a suit could be maintained or not. But said encroachment upon the lands of the plaintiffs, and the assessing of the expense thereof to the adjacent owners, do not invalidate said reassessment proceedings. The council had jurisdiction to make said reassessment, and its action was not rendered invalid by the encroachment complained of. The plaintiffs could have prevented said encroachments upon tbeir property by a suit for injunction. They could also have maintained an action at law to recover damages for the injury to their premises by the placing of earth upon them, and to have said earth removed as a private nuisance, if it was a nuisance, under Section 341, L. O. L. 12. As stated, supra, the plaintiffs had a right to appeal from the decision of the council to the Circuit Court, and have the amount that was properly assessable to their lands for said improvements determined by a jury. They had ample remedies for the redress of their grievances without resorting to certiorari proceedings. It is a general rule that the remedy by certiorari should not be granted, if efficient relief can be or could have been obtained by resort to other available modes of redress: 6 Cyc. 742. 13. It is also a general rule that the granting of relief by certiorari rests in the sound discretion of the court (6 Cyc. 748), and this is especially so where the matters in controversy are of a public nature. In Burnett v. Douglas County, 4 Or. 392, Mr. Justice McArthur, says: — 440 — “In all cases where the proceeding sought to he reviewed involves a matter of public interest affecting a great number of persons, the allowance of the writ is in the sound discretion of the court, and, if refused, the refusal is not subject to review or appeal.” In Oregon R. & N. Co. v. Umatilla County, 47 Or. 208, 209 (81 Pac. 352, 355), the court says: “When it appears in a proceeding instituted by an individual taxpayer to annul the tax assessed against his property, on account of some insufficiency or irregularity in the manner of the assessment or the description of the property, that no equitable grounds exist for the allowance of the writ, it should ordinarily be denied, leaving the taxpayer to such remedies, as the law otherwise affords him”: See, also, Woodworth v. Gibbs, 61 Iowa, 398 (16 N. W. 287); Knapp v. Heller, 32 Wis. 469. We have examined the questions presented by this appeal, and we hold that the council of the defendant city had jurisdiction to reassess the cost of the street improvement in controversy, and that said reassessment proceedings are regular and valid, and that there was no error in the proceedings of the court below. The judgment of the court below is affirmed. Affirmed. Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Eakin concur.