Lauderback v. Multnomah County

BROWN, J. The term “County Court,” as used in the road law, includes the “board of county commissioners” of Multnomah County: Section 1, Chap. 295, Laws 1917 (§ 4536, Or. L.). Hereafter, in this opinion, we will refer to that board as the “County Court.” The proposed road is about 3% miles in length and affects the premises of at least thirty-two persons. Of this number, twenty-two were awarded damages by the board of viewers in the sum of $1, and two were awarded nothing. The plaintiffs are numbered among those who were awarded $1. Defendant, in support of its demurrer, asserts that the plaintiffs’ complaint failed to state a cause of suit. — 687 — Plaintiffs averred that the defendant failed to post “true copies of the resolution of the said board of commissioners, certified to as such by the county clerk, at either end of said road, or in any conspic - uous place along said proposed road, or as directed by the county court. Neither did said board direct where such notices should be posted.” It was unnecessary that notices be posted at either end of the proposed road, or on that road, nor was it essential that the board direct where the notices should be posted. The law directs that advertisement be given by posting notices consisting of true copies of the resolution, in four places, — one at the place of holding County Court, and three in public places in the vicinity of the proposed road. 3. But at paragraph 9, the plaintiffs alleged total failure of the defendant to cause true copies of the resolution adopted by the county authorities to be posted at all, and, upon trial, offered proof in support of that allegation. Furthermore, the allegations of the answer aid the statement of the cause of suit alleged in the complaint. “It is a general and well-established rule that the failure of a complaint to state a cause of action may be cured by an answer or other pleading in which the omitted facts are stated; for facts alleged by one party need not be pleaded by the other.” 21 R. C. L. 492. Again: “If a necessary allegation is omitted from a pleading, and the missing allegation is either alleged or admitted by the pleading of the adverse party, the defect is cured.” 31 Cyc., p. 714. In the case of Treadgold v. Willard, 81 Or. 658 (160 Pac. 803), it was urged on behalf of the defendant that the complaint did not with sufficient particu — 688 — larity describe the premises alleged to have been leased. A demurrer thereto was overruled. In that case, as here, the defendant answered. It was urged on appeal that the defect in the complaint was not waived or remedied by answering after demurrer, and this court, after quoting the above excerpt from Cyc., said: “To the effect that omitted averments may be supplied by the allegations of an adverse party, see, also, Turner v. Corbett, 9 Or. 79; Ferrera v. Parke, 19 Or. 141 (23 Pac. 883); State ex rel. v. Downing, 40 Or. 309 (58 Pac. 863, 66 Pac. 917); Catlin v. Jones, 48 Or. 158 (85 Pac. 515); Hornefius v. Wilkinson, 51 Or. 45 (93 Pac. 474).” To like effect is Siverson v. Clanton, 88 Or. 261 (170 Pac. 933, 171 Pac. 1051). Exhibit “B,” which purports to be proof of posting of notice whereby jurisdiction was obtained to establish the proposed road, is made a part of the defendant’s answer. The affidavit describes the posting of notices as follows : “One of said notices I so posted oh said day at the place of holding county court in said county, to wit: at a conspicuous place on the bulletin board in the county court house of said county and state; another of said notices I so posted on a fence on the south side of Powell Valley Road, where the proposed road intersects the Powell Valley Road. Another of said notices I so posted on a telephone pole on the east side of the Boring Road, where the proposed road intersects the Boring Road. Another of said notices I so posted on a telephone pole on the north side of the Powell Valley Road, where the proposed road intersects the Powell Valley Road.” This affidavit does not conform to the statutory requirement that notice shall be given “by advertisement, posted at the place of holding County Court, — 689 — and also at three public places iu the vicinity of the proposed road to be located.” Section 4543, Or. L. Hence, the pleadings show that the County Court never acquired jurisdiction. The demurrer also averred that the Circuit Court had no jurisdiction of the cause. Section 4549, Oregon Laws, relates to the filing of a petition for damages. It provides: “Failure to file a petition for damages within the time herein allowed shall be a waiver of all rights thereto by every person interested therein, except minors or other persons under disability.” Section 4553 provides: “Any person whose lands are directly affected by such proceeding may, within twenty days after such report is adopted by the county court, appeal therefrom to the circuit court of said county.” Because of the alleged absence of notice, the plaintiffs were deprived of the right to file a petition for damages or to appeal to the Circuit Court from the award made by the viewers and adopted by the court. This suit was instituted prior to the construction of the proposed highway, and its commencement followed close upon the receipt of knowledge by plaintiffs that their property was sought for a public use. “It is now almost universally held that an entry upon private property under color of the eminent domain power will be enjoined until the right to make such entry has been perfected by full compliance with the constitution and the law. If the just compensation has not been paid, or deposited as required by law, or if the proceedings under which the right to enter is claimed are invalid for any reason, an entry will be enjoined.” 2 Lewis, Eminent Domain (2 ed.), §631. — 690 — See, also, extensive list of authorities cited under note 1. “It is most essential to the preservation of the rights of private property, to the protection of the citizen, and to the preservation of the best interests of the community, that all who are invested with the rig’ht of eminent domain, with the extraordinary power of depriving persons, natural or artificial, without their consent, of their property, and its possession and enjoyment, should be kept in the strict line of the authority with which they are clothed, and compelled to implicit obedience to the mandates of the constitution. A court of equity will intervene to keep them within the line of authority, and to compel obedience to the constitution, because of the necessity that they should be kept within control, and in subjection to the law. * * The owner of the land has a right to say that, unless they keep within the strict limits prescribed by law, they shall not disturb him in the possession and enjoyment of his property. The power is so capable of abuse, and those who are invested with it are often so prone to its arbitrary and oppressive exercise, that a court of equity, without inquiring whether there is irreparable injury, or injury not susceptible of adequate redress by legal remedies, will intervene for the protection of the owner.” 5 Pomeroy’s Equitable Remedies (2 ed.), § 1879. In Stafford v. Multnomah County D. Dist. No. 1, 103 Or. 197 (204 Pac. 158), we sustained an injunction issued by the lower court restraining the defendant drainage district from interfering with plaintiff’s possession of his land. The district was claiming that the land had been condemned for right of way. In that case we approved the following from 10 R. C. L., §193, p. 228: “When an illegal entry upon private land under color of eminent domain is undertaken or threatened, — 691 — it will be restrained by a court of equity without regard to the customary requirements of equitable jurisdiction. * * The equitable jurisdiction in such a case is based upon the attempted misuse of the sovereign power, delegated by the legislature, and upon the inequality of the parties by reason of the grant of a prerogative right to one of them.” The United States Supreme Court, in speaking through Mr. Chief Justice Fuller, said: “Equitable jurisdiction may be invoked in view of the inadequacy of the legal remedy where the injury is destructive or of a continuous character, or irreparable in its nature; and the appropriation of private property to public use, under color of law, but in fact without authority, is such an invasion, of private rights as may be assumed to be essentially irremediable, if, indeed, relief may. not be awarded ex debito justitiae." Osborne v. Missouri Pac. By., 147 U. S. 248, 258 (37 L. Ed. 155, 13 Sup. Ct. Rep. 299, see, also, Rose’s U. S. Notes). See, also, Christensen v. Lane County, 90 Or. 401 (175 Pac. 845). The defendant’s demurrer is without merit. The question here involved is one pertaining to the jurisdiction of the County Court to establish the road in question. No other point averred in the complaint is considered in this opinion. It is fundamental that— “Private property shall not be taken for public use * * without just compensation * * .” Section 18, Art. I, Or. Const. Defendant could not lawfully deprive plaintiffs of their land against their will in the absence of due process of law, which includes notice and a right to be heard in order that they might defend and enforce their rights. — 692 — For the purpose of providing a procedure within the guaranty of the federal and state Constitutions, the legislature enacted by statute certain methods for the establishment of county roads. At Section 21 of Chapter 295, Laws of 1917 (§ 4556, Or. L.), we read, concerning the procedure attempted to be followed by the County Court in the instant case: “Sec. 21. Establishment by Resolution. The county court of any county at any regular term may, by resolution, declare its intention to locate, establish, alter, widen, straighten, or change the direction of any road, and such notice shall thereupon be given as is provided for upon the filing of a petition for such purposes, and like proceedings shall be had by such county court as in the case of the filing of a petition before it, asking for such improvement, except as hereafter particularly specified: “(a) The notices to be posted shall consist of true copies of the resolution of the county court, properly certified to as such by the county clerk, and the same shall be posted by the county roadmaster, or county surveyor, or a duly qualified deputy, as directed by the county court; * * “(c) If any objections or remonstrances shall be presented or filed, the county court shall hear the same, and the county court shall have the power, in its discretion, for good and sufficient reasons, to overrule and deny the same * * .” The foregoing provisions of law should be read in connection with Section 8 of Chapter 295, because like procedure is to be followed in the establishment of a road by resolution “as in the case of the filing of a petition before it.” It will be observed that jurisdiction is obtained by advertisement by posting notice and proof thereof. “Sec. 8. Proof of Notice; Board of Viewers. When such petition shall be presented to the county — 693 — court for action, is (it) shall he accompanied by satisfactory proof that notice has been given by advertisement, posted at the place of holding’ county court and also at three public places in the vicinity of the proposed road to be located, * * thirty days previous to the presentation of said petition to the county court, notifying all persons concerned that such application will be made to said court at its next term. Upon presentation of the petition aforesaid, with satisfactory proof of notice, the county court shall, by order, direct the board of county road viewers, on a day named in said order, or on their failure to meet on said day, within ten days thereafter, * * to * * locate * * and assess the damages and file its report on or before the day specified in the order of said court * * .” The law not only requires notice, but proof that notice has been given in four public places, before the “County Court” can acquire jurisdiction to establish a highway. Our statute contemplates that the owners of property shall have the privilege of exercising their free American right to remonstrate against the laying out of a highway, or, in the event of the establishment of the road, that they shall receive compensation for all lands taken from them for public use. The law is well settled that— “When it is sought to conclude a party by constructive notice by publication, a strict compliance with the statute is required, and every act necessary to the exercise of a court’s jurisdiction based on this mode of service must affirmatively appear in the mode prescribed by statute.” 29 Cyc., 1122. A comprehensive definition is as follows: “Notice may, I think, be correctly defined as the information concerning a fact actually communicated to a party by an authorized person, or actually de — 694 — rived by Mm from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent in its legal effects to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge. * * In dealing with the subject, great care should be taken to distinguish between notice and the evidence by which it is established. * * Whenever the notice is inferred by a conclusive or prima facie presumption from certain facts, the office of evidence is to prove the existence of those facts. Notice is either actual or constructive; but the legal effect of each kind, when established, is exactly the same.” 2 Pomeroy’s Equity Jurisprudence (3 ed.), § 594. The plaintiffs allege a number of irregularities unnecessary for us to notice. After a “County Court” has acquired jurisdiction by a lawful resolution, and has given due notice of the proceedings to establish a public highway, mere irregularities in subsequent proceedings will not nullify them: French-Glenn Co. v. Harney County, 36 Or. 138 (58 Pac. 35); Jensen v. Curry County, 55 Or. 54 (105 Pac. 96); Heuel v. Wallowa County, 76 Or. 354 (149 Pac. 77). We will not again allude to error other than that affecting the jurisdiction of the “County Court.” We will now examine the evidence relating to the situation of plaintiffs. M. J. Lauderback, one of the plaintiffs, testified: “Our land lies here. This is * * where we hold our stock, and the highway will cut off this piece. We have our slaughter-house buildings here (indicating). “Q. TMs road cuts the slaughter-house off from the stock? “A. Yes, sir, and also cuts the stock off from the water, and then every time we go to butcher, it takes several men to put one across there. To be safe you — 695 — would have to have about four men to put an animal across. * * We have spent a good many dollars putting up the slaughter-house and getting it equipped. It is all we have got. We have been ten years in the business. We started in with nothing and have just got where we can make a decent living. It takes out two or three acres of land that the county assessor assessed at almost one hundred dollars an acre, and leaves us a fence to build on either side. “Q. How much do you say you are damaged? “A. $3,000.00. We would have to find a new location. You see my brother lives up on this road and we live down here (indicating). It is very handy.” According to the plaintiff’s evidence, neither they nor the other persons similarly situated had notice or information of the proceedings to establish the road until the proceedings were over and the county had entered upon the premises for the purpose of constructing the road. One of the plaintiffs testified: “I never saw any notices until after they started work on our place, and I looked for notices after I found at the courthouse that they had been posted, and I found that notice on the fence not more than 2% feet from the ground. That was after they were working on our place and I went out to look for the notice. * * I found it on the south side of the Powell Valley Eoad * * . It was just on a fence and there was a cedar hedge there and I sold meat to a meat customer within a couple of- hundred feet of them notices twice every week and never saw it and passed it three or four times a day, as well as my brother passed it almost every day. “Q. Was it in a conspicuous place? “A. When I found it the fern had grown up past it and the limbs from a Japanese cedar hedge came through the fence and the notice could not be seen from the middle of the road. ‘ ‘ The Court: The witness states he knew there were notices posted? — 696 — “A. Not until after they went to work and they told me they had been posted. When I asked them what right they had on our place they told me. * * I know I would have seen them if they had been posted in a conspicuous place. I saw all the auction sales and things like that posted.” The notice found by the witness was received in evidence and marked “Plaintiffs’ Exhibit A.” It purports on its face to be a true copy of an unsigned resolution. Ralph Johanson testified: “Q. Ton live within a few feet of where they say they posted ‘Plaintiffs’ Exhibit A’? “A. I am built about 30 feet off the road, and it would be across the road 60 feet, — would be 90 feet. * * “Q. Were you very frequently along in the place pointed out on the map where they said they found this notice, ‘Exhibit A’? “A. I was along there all the way from six to twelve times a day. “Q. Did you ever see that notice? “A. I did * * after they were working there. * * I had to go over there and brush the stuff aside to see the notice. * * It was just shortly before Lauder-backs found it.” The road viewers assessed plaintiffs’ damages at $1.00, notwithstanding their land adjoined two county roads already established and constructed. Mrs. Mary Peterson, a resident of the vicinity, testified: “I knew nothing of any proceedings * * until they began to work on Mr. Lauderback’s place. “Q. Then there was a big row? “A. Telephones worked night and day. * * About 25 or 30 of us along the line got terribly excited * * . After they began work on Mr. Lauderback’s place it was common conversation for a few days with we people interested, by wondering how they succeeded — 697 — in getting by without some of us knowing something about it. ’ ’ Like testimony was given by John Larson, Frank Gustafson, Edwin Simonson, and S. T. Lind, a cattle buyer, who says he was on the lookout for notices. It was stipulated that Mrs. H. C. Unis, Mrs. Edwin Simonson, Samuel Peterson, G. W. Kenney and J. M. Ferris, if called, “will testify to substantially the same testimony as that given by the witnesses who have already been called.” The defendant met plaintiffs’ case with the testimony of an assistant roadmaster, who testified: “The first thing I did was to post one notice on the bulletin board on the ground floor of the courthouse; * * then I posted three notices out on the road; one at the intersection of the Powell Valley and the proposed road, near the easterly end; and one at the intersection of the Boring Road and this proposed road, and one at the intersection of this proposed road with the Powell Valley Road just about a mile or three quarters of a mile east of Gresham." A map was offered in evidence showing the place of the posting of the notices. Witness identified “Plaintiffs’ Exhibit A” as one of the notices posted by him, and he testified that he had seen the notices in place since he had posted them. A deputy clerk identified the notice, and testified that his name was partially obliterated from the same on account of the elements. The county roadmaster testified that he had seen at least two of the notices that he could certify to, but one he merely glanced at. “Q. Was it prior or subsequent to the establishment of the road by the county board? — 698 — “A. It was subsequent to the establishment of the road. The notices were posted notifying people that that is where the road would go.” The testimony of a number of witnesses, owners of real property affected by the road, is to the effect that they saw no notices. On the other hand, the deputy roadmaster testified that he posted the notices, and his testimony is corroborated by that of other witnesses who said they saw the notices after they were posted. The deputy county surveyor testified that he saw the notices and that two of them were properly signed, but that he didn’t recall as to the third. As a general rule, purely negative testimony is entitled to no weight, for— “One single positive weighs more, You know, than negatives a score. M. Prior, — Epistle to Fleetwood Shepherd.” 2 Moore on Pacts, Weight of Evidence, p. 1333. However, if witnesses testify that they did not see something that they probably would have seen if it ' had occurred, their testimony may be strong evidence. In the case at bar, the negative testimony is material and has value, because it was given by witnesses who resided in the immediate vicinity of the proposed road, who traveled to and fro along the way where it is claimed the notices were posted, two of whom say that they were on the lookout for notices, and all of whom were interested in the matter of the establishment of the public road. If the notices were properly posted, it is an unusual situation that thirty-two persons, whose property was being taken from them for the purpose of constructing a public highway, never learned of the matter until the defendant commenced the construe — 699 — tion of the road by entering- upon the premises condemned. But, should we admit, for the purpose of this opinion, that the notices were posted as asserted by defendant’s witnesses, proof by advertisement as required by the statute falls far short of the mart set by statutory requirements. The notice introduced in the record is demonstrative evidence. Referring to the weight of evidence: “The highest proof of which any fact is susceptible is that which presents itself to the senses of a court or jury.” 2 Moore on Facts, Weight of Evidence, § 1206. “Plaintiffs’ Exhibit A” is before us. It is claimed by plaintiffs, and admitted by defendant, that it is one of the four “true copies” of notice that the “County Court” ordered posted. It purports to be a copy of the resolution adopted and signed by the members of the court. The notice is typewritten and does not appear to be weatherbeaten; the language of the resolution is plain and distinct to the eye; but the names of the authorities who adopted the resolution are lacking. The plaintiffs made a prima facie case. The defendant has not overcome that case. Its proof has failed to place the signatures of the commissioners on their alleged resolution. The exhibit is dumb, but as evidence it is most effectual. Recurring again to the proof of advertisement of the notice contained in the record: The “County Court” never acquired jurisdiction to establish the road. It adopted the resolution hereinbefore described, and it ordered it published by posting. But a prerequisite to the court’s acquiring jurisdiction was the publication by posting of the notice according to law, and the filing of proof thereof with the court. The proof fails to show that the notice was posted in — 700 — three public places in. the vicinity of the road, but, in lieu thereof, the affidavit of proof says that it was posted “in a conspicuous place.” Again, from a perusal of the affidavit itself, the natural inference would be that two of the notices were posted sixty feet apart, in virtually the same place, but on opposite sides of the road. He says: “I posted a notice on the south side of Powell Valley road where the proposed road intersects the Powell Valley road. * * Another of said notices I so posted on a telephone pole on the north side of the Powell Valley road where the proposed road intersects the Powell Valley road.” The purpose of notice is to inform interested persons, and the spirit of the law is not complied with by posting notices sixty feet apart for the location of a road three and one-half miles in length. Concerning the necessity of requiring strict proof in the matter of acquiring jurisdiction, this court has said: “If the County Court, in the matter of locating county roads, was a court of general jurisdiction, and entitled to have every intendment construed in its favor, the rule might be otherwise; but in view of its limited powers we do not feel like extending the rule beyond that announced in Latimer v. Tillamook County, 22 Or. 291 (29 Pac. 734). The proof shows that the notices were posted in the vicinity of the proposed road, but it nowhere appears that the places at which they were posted were public. Such service is constructive, and in all eases rests upon the presumption that the party affected thereby has seen the notice (Wade on Notice, §1029), but this presumption cannot be invoked unless the proof shows that the notices have been posted in public places, and in such manner as to afford the parties affected thereby an opportunity of seeing and reading them. There is — 701 — nothing to show that these notices were posted in such a manner as to he seen and read by the public, and thus presumptively bring the knowledge of their contents home to the parties affected thereby. So far as the proof is concerned they may have been, like the laws of Caligula, written in very small characters, and hung upon high pillars, the more effectually to ensnare the people: 1 Blackstone’s .Commentaries, 46.” Cameron v. Wasco County, 27 Or. 318, 325 (41 Pac. 160). In the case of McMillan v. Mason, 70 Or. 133 (140 Pac. 445), the affidavit of posting was insufficient. While it particularly described the places where the notices were posted, it omitted to state that such places were public places in the vicinity of the road. However, the County Court, in its journal, made the usual entry, as did the court in the instant case, that notice “has been given by advertisement in manner provided by law by posting at the place of holding County Court, and also at three public places in the vicinity of said proposed road.” This court held, in that case, that the finding was not based upon any proof of record; that the proof of notice failed to show that notice had been posted in public places, and that no proof other than the defective affidavit was offered the court for consideration. In effect, it held that such finding must be based upon some showing of record. In the matter of supplying evidence to aid a defective affidavit, see In re Riggs, 105 Or. 531 (207 Pac. 175, 1005, 210 Pac. 217). A journal entry aiding proof by affidavit which contains insufficient facts must be based upon some competent evidence of record. We have heretofore referred to the resolution adopted and the order made by the court involving the location of the road. — 702 — The County Court is a court of record and, therefore, speaks through its journal. The defendant pleads the adoption of the resolution and the order of the County Court in directing the giving of notice thereof. The answer shows that the record of the proceedings alluded to above was regularly signed by two members of the County Court. A “true copy” of that journal entry constijtutes the “true copy” of the resolution required by statute to be posted. The names of the commissioners then and there constituting the County Court and signing the recorded proceedings thereof are essential to the sufficiency of the notice: Minard v. Douglas County, 9 Or. 206. The posted notice received in evidence in this cause purports to be a resolution that was adopted and ordered posted by “Board of County Commissioners of Multnomah County, Oregon, by -, Chairman, by -, Commissioner, by-, Commissioner.” Such a notice is insufficient, for “an unsigned notice is not a notice”: In re Willow Creek, 74 Or. 592 (144 Pac. 505, 146 Pac. 475). The plaintiffs are entitled to all rights guaranteed them by our fundamental law. It clearly appears from the record that, if the proceedings of the County Court are held valid, plaintiffs have been deprived of two acres of valuable land and greatly damaged in their use of the remainder of their 40-acre tract, without compensation, and without a hearing. This case is affirmed. Affirmed. Rehearing Denied. The purported notice was posted in such manner that it covered the clerk’s attestation that such notice was a certified copy of the resolution adopted — 703 — by the board of county commissioners. Because of the concealment of the clerk’s certificate in posting the notice, McBride, C. J., and McCourt, J., concur in the result.