Gaston v. Thompson

BURNETT, J. — The chronology of events involved in this litigation may be thus set down: first, the admitted regular establishment of the county road; next, the digging of the mill-race; then the incorporation of the town under the general law of 1893; and, finally, the enactment of a new charter by the initiative process, containing the excerpt already quoted. Under the general law by virtue of which the plaintiff was first incorporated it had a right “to exercise any and all police regulations concerning the public morals, public safety, public health and public convenience of the inhabitants of any such city or town”: L. O. L., § 3229. In addition to the power assumed by the initiative charter as stated, that instrument gave the council power “to prevent and remove nuisances and to declare what shall constitute the same.” (Section 15.) By Section 1 the town was awarded the power “to sue and be sued, defend and be defended, and plead and be impleaded in all courts of justice of the State of Oregon and of the United States in all actions, suits and proceedings whatever; to purchase, hold, own, lease and acquire and possess by purchase, gift or otherwise, both real and personal property within said town for public buildings, public works and improvements and may and shall have the right of possession and control of all public parks and all tracts of land within the limits hereinafter described, which have heretofore and may be-hereafter dedicated, or in whatsoever manner obtained, for public purposes.” 1, 2. The defendant urges as a defense the statute codified in Section 5126, L. 0. L., reading thus: “Any person or persons having the right to a water privilege shall not be required to construct or .keep in repair a bridge or bridges across any race convey — 419 — ing water to or from Ms or their mill on any road or roads.” This contention is without foundation for the following reason: The section was part of an act of the territorial legislature entitled “An act fixing the rate of toll for grinding.” This legislation was had undei the authority of the congressional act of August 14, 1848, entitled, “An act to establish the territorial government of Oregon.” The last sentence of Section 6 of the enabling act reads thus: “To avoid improper influences, which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.” No proper reasoning can include in a title “fixing the rate of toll for grinding” an exemption from bridging a piill-race. So far as the latter provision is concerned it is of no force or effect and nothing can be claimed by the defendant under its provisions. Moreover, the use of all property whatever is subject to the general police power of the State, to be exercised either directly or through subordinate agencies of the government to whom the state may intrust the exercise of that prerogative. 3-5. The act of 1893 conferred this authority upon cities and towns incorporated under it and the millrace in question is not exempt from tMs delegated power. Although the defendant denies that the race was constructed without authority of the County or Circuit Court of Washington County, yet no license from either of those tribunals appears in the evidence. Indeed, no statutory sanction can be found vesting in any court the prerogative of allowing a private concern to construct a mill-race in a county road. From statutes — 420 — requiring the owner to bridge such water-ways where they cross a county road we may infer the authority for thus passing laterally over them, but not for going along them longitudinally. The result is that the ditch in question is in the county road solely by sufferance and is all the more subject to reasonable police regulation. The admitted fact that it occupies a portion of the highway longitudinally makes it a nuisance per se at common law in the absence of any authority for its being there: Joyce on Nuisances, § 214; 13 R. C. L. 186; Milarkey v. Foster, 6 Or. 378 (25 Am. Rep. 531); Roseburg v. Abraham, 8 Or. 509; Van Buskirk v. Bond, 52 Or. 234 (96 Pac. 1103). 6, 7. The statute of February 21, 1913, granting to the town the exclusive control over county roads and declaring the same to be streets is in effect an attempt to amend the general law providing for the incorporation of cities and towns so as to affect only the town of Gaston. In that aspect it cannot be considered because, for instance, it does not set out the part of the statute as amended: Constitution, Art. IY, § 22. The most that can be said of this legislation is that it amounted to an offer on the part of the State to surrender to the municipality in question the control over the county road, but the town was not bound to accept the same. In the initiative charter, however, we find that the town assumed “control over all public parks and tracts of land within the limits hereinafter described, which have been heretofore or may be hereafter dedicated, or in whatsoever manner obtained, for public purposes.” This language reasonably includes what was hitherto the county road and operated as an acceptance of the offer of the State in the act of February 21,1913. 8. Whatever may be said, here is an open water-way within the limits of the town, more or less affecting — 421 — the inhabitants thereof. It obstructs travel along a public highway over which the city rightfully assumed jurisdiction. Independent of whether the race is a nuisance or not, it is subject to reasonable police regulation. A planing-machine is not a nuisance, yet we find it required that its knives shall be protected by guards, to prevent injury to the attendant workmen. An automobile is not a nuisance, but the statute demands that it carry lights at night. Many other instances might be pointed out as illustrative of the exercise of the police power for the safety and convenience of the public, all at the expense of the private owner. He takes and uses his property subject to the right of the State or its duly constituted agencies to regulate and control his use of it, in compliance with reasonable rules designed for the safety and convenience of the public. The cases cited by the defendant to excuse him from the expense of covering the ditch are instances in which the rights sought to be regulated were acquired before the establishment of the passageway. This distinction is pointed out by Mr. Justice Moore in Mutual Irr. Co. v. Baker City, cited below. Besides obstructing the travel along the county road in question, now a street, a race of the kind, without a covering, is more or less a menace to the safety of children, who are liable to fall into the same and be drowned. 9. It is admitted that the defendant is not within the city limits and that he resides in the City of Portland. In his absence from the town of Gaston he is not subject to arrest under the city ordinances and the authority of the town over his property cannot be thus enforced. In other words, its legal remedy provided by its ordinances on the subject is not enforceable and is insufficient to work out obedience to its police regula — 422 — tions. The town has not a plain, speedy or adequate remedy at law. Acting under the initiative charter, it has proclaimed by resolution that the race in question is such an annoyance to the public as brings it within the definition of the term “nuisance.” This would not, however, exonerate it from proof thereof unless the pleadings had admitted, as they do, enough facts on which the court can draw the legal conclusion that it constitutes a common-law nuisance. In Mugler v. Kansas, 123 U. S. 623, 678 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273), the court had under consideration the thirteenth section of an act of the State of Kansas declaring, among other things, that all places where intoxicating liquors were manufactured, sold, bartered or given away in violation of the act should be common nuisances. It was contended that equity had no jurisdiction to enforce that provision without a previous judgment at law. After quoting from 2 Story’s Eq., Sections 921, 922, Mr. Justice Hablan used this language: “The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy, than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in prog'ress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury: District Attorney v. Lynn & Boston R. R. Co., 16 Gray (82 Mass.), 242, 245; Attorney General v. New Jersey R. R., 3 N. J. Eq. — 423 — 136, 139; Attorney General v. Tudor Ice Co., 104 Mass. 239, 244 (6 Am. Rep. 227); State v. Mayor etc., 5 Port. (Ala.) 279, 294 (30 Am. Dec. 564); Hoole v. Attorney General, 22 Ala. 190, 194; Attorney General v. Hunter, 16 N. C. (1 Dev. Eq.) 12; Eden on Injunctions, 259; Kerr on Injunctions (2 ed.), 168. “As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits of equity brought to .abate a public nuisance.” The opinion goes on further to hold in substance that while proof of the hurtful character of the thing in question must be afforded notwithstanding the legislative direction that such a thing shall be construed a nuisance, yet the equity tribunal is as competent to determine that matter as a court of law. It would be intolerable to hold that the owner of property could defy the proper authority of a city or town by remaining outside its territorial jurisdiction while the use of his property in the manner forbidden by the police regulations would continue indefinitely. Nor does it avail the defendant to say that he has leased the property to another, for that is merely contracting with that other to manage the defendant’s mill-race in a way forbidden by the police regulations. 10,11. The city had a right under the circumstances to resort to the equity side of the State courts for relief. It does not attempt the extreme measure of utterly destroying the ditch; it merely required that Ms mill-race for a distance, according to the pleadings, of about three hundred feet, shall be kept covered with planking sufficient for ordinary travel. In our judgment, this is a reasonable exercise of the police power committed to the town by the general statute of 1893, and reasserted in the initiative charter.. The existence of the open water-way in the principal thorough — 424 — fare of the town primarily affects the local situation and it is legitimately within the scope of the authority of cities and.towns under Article XI, Section 2, of the Constitution, empowering the legal voters thereof to enact and amend their municipal charters subject to the Constitution and criminal laws of the State of Oregon. It is also properly classified as local, special and municipal legislation, the initiative power over which is reserved to the legal voters of the municipality under Article IV, Section la, of the Constitution. That a city may resort to the courts in such an instance is further illustrated by the following precedents: Bernard v. Willamette Box & Lumber Co., 64 Or. 223 (129 Pac. 1039); San Francisco v. Buckman, 111 Cal. 25 (143 Pac. 396); Fresno v. Fresno Canal & Irr. Co., 98 Cal. 179 (32 Pac. 943); Llano v. Llano County, 5 Tex. Civ. App. 132 (23 S. W. 1008); Village of Pine City v. Munch, 42 Minn. 342 (44 N. W. 197, 6 L. R. A. 763); Coast Co. v. Borough of Spring Lake, 58 N. J. Eq. 586 (47 Atl. 1131, 51 L. R. A. 657); City of Red Wing v. Guptil, 72 Minn. 259 (75 N. W. 234, 71 Am. St. Rep. 485, 41 L. R. A. 321); Inhabitants of Houlton v. Titcomb, 102 Me. 272 (66 Atl. 733, 120 Am. St. Rep. 492, 10 L. R. A. (N. S.) 580). For instruction on many features of the instant case one may read with profit the opinion of Mr. Justice Moore in Mutual Irr. Co. v. Baker City, 58 Or. 306 (110 Pac. 392, 113 Pac. 9). The decree of the Circuit Court is therefore reversed and the cause remanded to that court with directions to enter a decree according to the prayer of the complaint, with a' proviso that the defendant be allowed a reasonable time, there to be fixed, within which to comply with the demand of the plaintiff that the race be covered with substantial planking in a manner rea — 425 — sonably safe to sustain ordinary travel over the highway in question. Beversed and Bemanded. Behearing Denied. McBride, C. J., and Harris and Bean, JJ., concur.