Gamma Alpha Bldg. Ass'n v. Eugene

BENSON, J. The plaintiff’s attack upon the validity of the assessments is first based upon the fact that it includes a charge of 5 per cent of the contract price of the work for engineering expenses. The initial ordinance in the proceeding contains this clause: “And there shall be included as a part of said improvement, engineer’s charges not to exceed five (5%) per cent of the contract price and when said cost shall be assessed the same shall be a lien upon the property so benefited, etc.” 1. It appears from the testimony that the engineer was not specially employed for this particular job, but was a regularly employed and salaried official of the city, whose compensation was not dependent upon the collection of the assessments for this particular improvement. Plaintiff and defendant both cite and rely upon the cases of Smith v. Portland, 25 Or. 297 (35 Pac. 665), and Giles v. Roseburg, 82 Or. 67 (160 Pac. 543). In neither of these cases is the compensation of a regular, salaried official involved. In the former, an overseer was specially employed to oversee the construction — 84 — . of a sewer, and neither in the charter nor in the ordinance, was there any provision for such a charge, hence it was held that such expense could not properly be charged against the property benefited. In the latter case the engineer did not receive a regular salary, but was paid a stated daily compensation for the services rendered, and received his remuneration in the warrants drawn upon the general fund, and not from funds arising from the assessment for the particular work upon which he was employed. In this case, like the. first, there was nothing, either in the charter or the ordinance under which the improvement was made, authorizing such expense to be charged against the property. The latter case, therefore, holds, as did the former, that in the absence of authorization by ordinance, such expense could not be imposed by assessment. In the case at bar, however, the ordinance expressly authorizes it, and it is therefore a valid charge, unless it be excluded by reason of the fact that the engineer receives a regular monthly salary, which we' may fairly infer is paid from the general fund. If this were a new question with this court, it might be necessary to consider the authorities in other jurisdictions, but the matter is conclusively settled in the case of Irelan v. City of Portland, 91 Or. 471 (179 Pac. 286), wherein it is held that such a provision in an ordinance is valid, even where the city official is. paid a regular salary. 2. Plaintiff further contends that the assessment was invalid, because the contract for the improvement contains the following clause: ‘ ‘ The contract further agrees that the payment shall be free from any defects due to faulty workmanship or materials and that for a period of five years from its completion, the said contractor will, at his own ex — 85 — pense, repair and make good any defects arising from such faulty materials or workmanship and due to the proper use of such pavement as a roadway. ’ ’ It insisted that this- is a contract for repairs which, should not be charged to private property. This contention is not sustained by the language of the clause quoted and is completely answered in the case of Allen v. Portland, 35 Or. 420 (58 Pac. 509). 3. The next objection is, that the council exceeded its powers in delegating to the city engineer the right to decide what are necessary details of the improvement, such as inlets, retaining walls, etc. This point is not well taken. The officers of a city employ a civil engineer for the very purpose of relying upon his special training and skill, to advise them as to the necessary details of a contemplated improvement, and when, upon their request, he has prepared plans and specifications for the same, and they enter into a contract for the construction thereof, they thereby adopt and approve them and make them their own. 4. It is then argued that the cost of the improvement exceeds the benefits, and that this invalidates" the assessment. The complaint does not charge fraud; the evidence discloses that plaintiff’s property abuts upon the pavement for a distance of 240 feet, in addition to which, plaintiff petitioned the city council to make the improvement. Under these circumstances the action of the council in the premises is conclusive: Colby v. City of Medford, 85 Or. 485 (167 Pac. 487). 5. The next ground of attack upon the assessment is plaintiff’s theory that its property does not'front upon Alder Street and is therefore not liable to the burden. This theory is based upon the language of the charter, Section 71 of which reads thus: — 86 — “Each lot or part of lot abutting a street or alley graded, improved or repaired, shall be liable for the full cost of making the same upon the half of the street or alley in front of and abutting upon it; # * But when the land adjacent to said street shall not have been laid off into lots and blocks, then the cost of improving such streets shall be assessed to the owner or owners of the land lying within one hundred and sixty feet of such improved street. ’ ’ The evidence discloses the plaintiff’s land has not been laid off into lots, although it has a frontage of 90 feet on Eleventh Street and about 240 feet on Alder Street, being a comer tract. The contiguous land west of plaintiff’s tract is subdivided into lots and blocks. We cannot see how the plaintiff’s interpretation of Section 71 can.be justified. The property being a comer, at the intersection of two streets is intended, by the statute, to bear its portion of the improvement of both streets, and this would be equally true, if plaintiff’s tract extended westerly 160 feet instead of 90. Plaintiff relies upon the case of Rooney v. Toledo, Ohio C. C. 267, to support its theory. That case differs from the one at bar, in that the statute under which that decision was rendered provided for assessing the property, not by the benefits accruing, but by the front foot, and the court held that upon paving the side street, the frontage of the comer lot should be limited to that portion of its length which would equal the length of its end or front on the intersecting street. Here, the statute declares that the burden shall be borne, for one half of the paving by the property in front of and abutting upon it. In City of Springfield v. Green, 120 Ill. 269 (11 N. E. 261), the ordinance directed that— The tax shall be “levied, assessed and collected upon and from the real estate, lots, parts of lots, and tracts — 87 — of land abutting upon the line of said streets so ordered to be paved in proportion to the frontage thereof upon the streets, or parts of streets, and alleys ordered to' be paved, as aforesaid. ’ ’ The appellant there contended that since the side of his property adjoined the improvement, it was not liable to assessment. The court, in its opinion, concluded thus: ‘ ‘ The whole of the ordinance considered, we have no doubt that the word [abutting] was intended to apply to lots whose sides as well as ends were bounded by the line of the streets to be improved, and that where the streets in front and at the side were both to be paved, it was the intention of the council that the corner lot should bear one half of the expense of the improvement in front of the side as well as of the end of the lot. Any other construction of the ordinance would leave no provisions whatever for paying for the pavement of those parts of the streets directed to be improved, which lie in front of the sides of lots located on the line of said streets.” We can see no escape from the logic of this deduction and hold that in this respect plaintiff’s property was properly assessed. 6. It is further urged that the city had no right to limit the employment of laborers for more than eight hours per day, in its contract for the paving. It is enough to say, that Chapter 1, Laws of 1913, expressly forbids a municipality either directly or through a contractor to require more than eight hours per day, or forty-eight hours per week, from any employee, and inserting such a clause in the contract the defendant was simply obeying a compulsory statute. 7-9. The serious contention of the parties upon this appeal arises in regard to what plaintiff styles a “bridge abutment” and which is termed by the defend — 88 — ant a “retaining wall.” The evidence quite clearly establishes the fact that it is a retaining wall. A certain mill-race, flowing in a westerly direction, crosses Alder Street at a right angle. The street paving was extended ta the water’s edge at this mill-race and at that point a concrete retaining wall was constructed, across the street to support a fill behind it, upon which the paving was laid. The complaint pleads a decree of this court in the case of Patterson v. Chambers Power Co., 81 Or. 328 (159 Pac. 568), and Eugene v. Chambers Power Co., 81 Or. 352 (159 Pac. 576). In those cases, the one issue pertained to the right of the defendant to widen the same mill-race that crosses Alder Street as above stated. Plaintiff insists that under the decree in those cases, the defendant became a trespasser, and exceeded its power, when it constructed the retaining wall and did some paving within the limits wherein the decree authorized the owners of the canal to widen the same. Turning to the opinion of this court in the case of Patterson v. Chambers Power Co., upon which the decree in the Eugene case is founded, we find that the rights of the Chambers Power Oo. and its successors are traced to a certain warranty deed, containing a clause which reads as follows : “Together with the water-power upon said premises with the right of way over Shaw’s land claim to bring all the water that may be required to run the mills , thereon, and all other mills or machinery that may at any time or times, be placed upon the above described premises of whatever kind or nature; also the right to dig the i present raceway as' wide and deep as may be necessary, and to bank the dirt and stone on either side; also to include sufficient dirt and stone lying adjacent to the dams for the purpose of keeping them in repair.” — 89 — The decree of this court permits the owners of the mill-race to widen it so as to bring it up to fifty feet in width. Such decree has not yet been utilized by the owners, and the width of the canal remains as before, while the adjacent land owners are still using their land to-the water’s edge. As was very properly said by this court in that case: ‘ ‘ The conveyance of an easement over land does not pass the_ title or interfere with the right of the owner of the soil to occupy it for any purpose not inconsistent with the easement; Washburn, Easements (3 ed.), 3, 9; Goddard, Easements, 4. It follows, therefore, that the plaintiffs who are successors of Shaw, had a perfect right to occupy and improve their land adjoining the ditch, so long as such occupation or improvement did not interfere with the operations .of defendants. 'Defendants were never in a position to bring ejectment or trespass against them until they were in a position to show that the use of the adjoining land was necessary, and that the growth of manufacturing business upon the 23-acre tract made it essential for them to widen the ditch to procure additional power.” It follows that the city had a perfect right to extend its paving, and construct its retaining wall, where it did. It may be, that at some future time, the owners of the mill-race may require the destruction of a portion of this improvement, but that possibility cannot concern the present paving, for the city is not required to keep hands off of its streets until some uncertain time when the owners of the viaduct may see fit to enlarge their plant. 10. It is also urged that the city built more of the retaining wall than was necessary to support the paving. The evidence discloses that while the portion of the street which is paved is only 24 feet wide, the retaining wall is the full width of the street. The city — 90 — engineer testified that this was done with a view of making a permanent improvement of it, and to enable the fill to support sidewalks when they should be ordered. We think this to be a proper method of construction and not a departure from the purpose and proposed extent of the improvement. The decree of the lower court is reversed and one will be entered here dismissing the suit. Reversed and Dismissed. McBride, C. J., and Burnett and Bennett,- JJ., concur.