Haner v. Eugene

McBRIDE, C. J. The contentions in regard to the retaining wall, the 5 per cent for engineer charges, and the covenant to keep in repair for five years, were dis [599] cussed and settled in Gamma Alpha Bldg. Assn. v. Eugene, 94 Or. 80 (184 Pac. 973), and that decision was adverse to the contentions made in this suit. For our views in regard to these we refer to that opinion, to which we still adhere. 1. The legality of the assessment for curbing in front of plaintiff’s property is the only objection to the assessment not disposed of in the previous opinion. The contention arises in this way: By Ordinance No. 1406 the council declared its intention to improve Alder Street. Section 1 of the ordinance is as follows: “The Common Council of the city of Eugene does hereby declare its intention to improve Alder Street from Eleventh Avenue North to the mill race by paving said street between said points with asphaltic concrete pavement twenty-four (24) feet in width. “That said street shall be paved between said points with asphaltic concrete pavement having a concrete base of four (4) inches in thickness and an asphaltic concrete wearing surface two (2) inches in thickness. There shall be spread over said concrete base a paint coat and there shall be spread on the wearing surface a quick drying bituminous flush composition. “The Common Council does hereby further declare its intention to improve said street between said points by the construction of uniform cement curbing along either side thereof, where none now exists, and the improvement of said street shall include all necessary inlets, drains, catch-basins and embankments, and excavations, and retaining walls.” In due time the required notice was published, the material parts of which are as follows: “Notice is hereby given to contractors and property owners along Alder Street from Eleventh Avenue north to the Mill race in the city of Eugene, that under the terms of Ordinance No. 1406, passed by the Common Council September 29, 1913, and approved by the [600] Mayor on the 2nd day of October, 1913, bids will be received until 7:30 o ’clock p. m. October 13, 1913, at the Recorder’s Office in the city of Eugene, at which time and place said bids will be opened and considered for the improvement of said street between said points by paving said street a width of 24 feet with asphaltic concrete pavement having a concrete base 4 inches in thickness and an asphaltic concrete wearing surface 2 inches in thickness and paint coat and quick drying bituminous flush composition and by the .construction of cement curbing along either side of said street where none now exists and by the construction of all necessary inlets, drains, catch-basins, embankments, excavations and retaining walls. Said improvement shall be completed within 30 days from the date of letting the contract therefor. All of the work required for said improvement shall be let in one contract and will be let to the lowest responsible bidder. The work shall' be done in accordance with the plans and specifications of the City Engineer filed in the office of the City Recorder and in accordance with the terms of said Ordinance No. 1406.” There is no claim that either the ordinance or the notice were in any way irregular in form or substance. Previous to this proposed pavement plaintiff’s predecessor in interest had constructed a sidewalk and curb in front of the premises now owned by plaintiff, hut such walk and curb had been constructed upon the theory that the street would be paved to a width of 34 feet, and when the paving was actually restricted to a width of 24 feet, the curbing would not be uniform with the curbing on the rest of the street. We think plaintiff’s position untenable. The manifest intention was to have a uniform curbing, that is: One adjoining the paved way, and not a curbing with a jog in front of property which had theretofore been voluntarily improved. [601] 2. The notice to owners and contractors followed the description in the ordinance, but added this important paragraph: "The work shall be done in accordance with the plans and specifications of the city engineer filed in the office of the City Recorder and in accordance with the terms of said Ordinance No. 1406.” This reference, in point of law, made these plans a part of the notice just as effectually as if they had been copied in full thereon, and on these plans is shown a curb immediately next to the 24-foot pavement. 3. The plaintiff, who resides at Bend', Oregon, testified that he had no actual notice of the .improvement, or any notice beyond that implied by the publication of these notices and the Ordinance, but there being no irregularity in these, they are of course binding upon -him. This disposes of every objection not considered in the former case, and upon the authority of that case and the finding here that the objection to the assessment for curbing is not well taken, the decree of the circuit court will be reversed and the suit dismissed. Reversed and Dismissed. Bean, Johns, and Bennett, JJ., concur. [602] Modified on petition for rehearing March 30, 1920.