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viaduct which will require a fill does not
make the portions of the improvement on
either side of it two improvements, requir
ing separate proceedings, under a charter
providing that the improvement of each
street or part thereof shall be made under a
separate proceeding.
Certiorari

a court of equity, "yet this rule is by no means universal, and, in fact, the weight of authority supports the doctrine that evidence of this character is also admissible in an action at law." 9 Enc. Ev. 344. This rule is supported by the weight of modern authority. 17 Cyc. 702; Wigmore, Ev. §§ to review special assess2413-2415. See also Putnam v. Prouty, 24 ments - what open to consideration. N. D. 517, 140 N. W. 93; Gorder v. Hilliboe, 2. Upon certiorari to review the action supra. But, "in order that parol evidence of a municipal council in reassessing the may be admissible to show a mistake in a cost of a special improvement upon abutting written instrument, the existence of such property the court is confined to an exammistake must have been alleged in the plead-ination of the records and the proceedings of the council resulting in the assessment. ings." 17 Cyc. 703. special assessment certificates of apportionment to truth.

It is established by the undisputed evidence in this case that the crops intended to be covered by the policy were destroyed; that the loss was adjusted by the adjuster of the defendant at the amount for which the trial court rendered judgment; and it is conceded that the plaintiff suffered a loss for at least the amount of the adjustment. It is inconceivable how defendant was in any manner injured by the mistake in the application and policy. It is not contended for one moment that there was any extra hazard in township 157, range 51, which did not exist in township 158, range

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Considerable conflict is encountered as to the validity of assessments as affected by the fact that there has been an unlawful invasion of property rights in making the improvement for which the assessments are laid. This conflict seems to be due in part,

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On Petition for Rehearing. Tax- review of assessments necessity of appeal.

5. The objection that an assessment for a street improvement is void because a portion of the improvement extended upon private property without acquiring the right, and that it is not made on the theory required by statute, may be raised by review of the assessment without the necessity of an appeal. Appeal petition for rehearing — form. 6. The grounds for a petition for rehearing of an appeal should be brief and concise, and made separate from the argument. Public improvement objection to as

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sessment 7. Where the statute provides for filing objections to a municipal improvement, taxpayers waive the objection that two separate at least, to the manner in which the assessment is attacked; that is, whether the owner of the invaded premises, or other who has been assessed, is seeking to avoid his assessments, or whether the validity of the entire assessment is attacked. There is also considerable indefiniteness in the reports of the cases as to just what relief was sought.

An assessment upon the land which is unlawfully invaded in making the public improvement is invalid.

Thus, one through whose land a drain had been constructed without first compen sating him therefor cannot be assessed for the construction of the drain. Re Cheese

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trespass on adjoining property -retaining wall liability for excess of cost.

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PPEAL by plaintiffs from a judgment of

the Circuit Court for Multnomah County in defendants' favor, in certiorari proceedings to review certain proceedings of the city council in making a reassessment of property in the city for the payment of street improvement expenses. Affirmed. The facts are stated in the opinion. Mr. Ralph R. Duniway, for appellants: When objections are made by the property owners to the reassessment, the council must hear and determine them.

Hughes v. Portland, 53 Or. 383, 100 Pac. 942; Morgan v. Portland, 53 Or. 368, 100 Pac. 657; Duniway v. Portland, 47 Or. 103, 81 Pac. 945; Thomas v. Portland, 40 Or. 50, 66 Pac. 439; Portland v. Oregon Real Estate Co. 43 Or. 423, 72 Pac. 322; Kadderly v. Portland, 44 Or. 154, 74 Pac. 710,

9. The cost of extending a fill for a street improvement over onto adjoining property cannot be assessed against the property benefited by the improvement so far as it is in excess of the cost of a proper retain-75 Pac. 222; Terwilliger Land Co. v. Porting wall.

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brough, 78 N. Y. 232. It is stated that the construction of a drain through private lands without compensation to the owner for the land taken cannot be authorized; that the authorities who construct such a drain without the consent of and without compensation to the owner for the land taken are trespassers, "and an assessment to pay for the cost of the wrong cannot be legally laid. In other words, the petitioner cannot be compelled to pay for a trespass committed upon his land."

An assessment for a drain constructed without lawfully acquiring the right of way therefor is invalid. People ex rel. Williams v. Haines, 49 N. Y. 587. People ex rel. Cook v. Nearing, 27 N. Y. 306, holding that an assessment upon land for a drain improvement which was constructed without acquiring the right of way is not, for that reason, invalid, but that the remedy of the one whose property is invaded is in trespass, is overruled by the Williams Case.

land, 62 Or. 101, 123 Pac. 57; Rogers v. Salem, 61 Or. 321, 122 Pac. 314; Jones v. Salem, 63 Or. 126, 123 Pac. 1096; Cook v. Portland, 35 Or. 383, 58 Pac. 353; Oregon Real Estate Co. v. Portland, 40 Or. 56, 66 Pac. 442; Oregon Real Estate Co. v. Gambell, 41 Or. 61, 66 Pac. 441; Oregon Transfer Co. v. Portland, 47 Or. 1, 81 Pac. 575, 82 Pac. 16; Hamilton, Special Assessments, § 823; Workman v. Chicago, 61 Ill. 463; Schintgen v. LaCrosse, 117 Wis. 158, 94 N. upon one whose land had been improved for street purposes without his permission, and without condemning the same for public use, was held invalid in Baker v. Norwood, 11 Ohio C. D. 371.

A special tax to pay the cost of grading a street through private land was held invalid in Leavenworth v. Laing, 6 Kan. 274; also the objectors in this case were those through whose land the street had been graded. No statute is mentioned.

A similar decision appears in Culver v. Yonkers, 80 App. Div. 309, 80 N. Y. Supp. 1034, affirmed in 180 N. Y. 524, 72 N. E. 1141.

An assessment for improving a private way was held invalid in Speir v. New Utrecht, 121 N. Y. 420, 24 N. E. 692, on the ground that the improvement constituted a trespass for the expense of which no assessment could legally be made. No point is made as to the ownership of the property.

It

In Re Rhinelander, 68 N. Y. 105, an An assessment to pay for the cost of a application was made by the owner of land street improvement which followed a differ- assessed for the construction of a sewer, to ent line or course from that shown on the vacate the assessment. The assessment commaps, and which thereby encroached upon plained of was in part for the construction private property, upon the property thus of a sewer through private property withtrespassed upon, is invalid. Tredwell v. out the consent of the owner thereof. Brooklyn, 11 App. Div. 224, 43 N. Y. Supp. is not clear whether the entire assessment 458. The court states that an assessment is held valid, or only that part of it which to pay for the cost of the wrong cannot le- was due to the construction of the sewer gally be laid on the lands affected thereby; through the private property. The court that one cannot be compelled to pay for a states: "That the municipal authorities in trespass committed upon his lands. constructing the sewer there were tresAn assessment for a street improvement' passers, and that no assessment could legal

W. 84; Rork v. Smith, 55 Wis. 67, 12 N. | land v. Oregon Real Estate Co. 43 Or. 423,
W. 408; Allen v. Davenport, 65 C. C. A.
641, 132 Fed. 209; Dean v. Charlton, 27
Wis. 522; State ex rel. Eaton v. District
Ct. 95 Minn. 513, 104 N. W. 553; Dill v.
Roberts, 30 Wis. 178; Plumer v. Marathon
County, 46 Wis. 163, 50 N. W. 416.

There can only be a reassessment where the assessment proceedings were taken in good faith, the improvement made in substantial compliance with the contract, and where the defects in the assessment proceedings were such that the legislature could have made said defects immaterial. Thomas v. Portland, 40 Or. 50, 66 Pac. 439; Oregon Real Estate Co. v. Portland, 40 Or. 56, 66 Pac. 442; Oregon Real Estate Co. v. Gambell, 41 Or. 61, 66 Pac. 441; Port

ly be laid to pay the expense of such a trespass."

In Moore v. Albany, infra, it is stated that the assessment in this case was assailed by the owner of the land wrongfully invaded. This fact does not appear in the report of the Rhinelander Case. The court in Moore v. Albany, supra, distinguishing that case further from the Rhinelander Case, states that in the Rhinelander Case there was no law under which the title of the land used could be obtained.

No part of the cost of a retaining wall erected partly upon the street and partly on the property of an abutting owner can be collected from such abutting owner, where the owner objected at the time of the construction to such invasion of his property rights. Western Pennsylvania R. Co. v. Allegheny, 92 Pa. 100. The objection here was to the cost of the wall apart from the cost of the paving of the street.

An assessment of the cost of constructing a sidewalk upon the plaintiff's land was held invalid in Richter v. New York, 24 Misc. 613, 54 N. Y. Supp. 150.

An improvement under a statute relating solely to the drainage of lands upon which surface water remains stagnant, in the course of which the authorities not only constructed a drain, but filled the lot, such filling constituting a large part of the cost of the improvement, is irregular, and an assessment therefor will be vacated. Re Van Buren, 17 Hun, 527. Ingalls, J., takes the position that this was a substantial error which rendered the assessment void; while Brady, J., concurs in the result on account of the effect of the decision in People ex rel. Williams v. Haines, supra. Re Van Buren was affirmed in the court of appeals (79 N. Y. 384) on grounds other than those covered in the present note.

Under a statute authorizing the improvement of public streets and assessment of the cost thereof on adjoining lots, the cost of improving a private street cannot be assessed upon adjoining lots. Spaulding v. Bradley, 79 Cal. 449, 22 Pac. 47; Spaulding v. Wesson, 115 Cal. 441, 47 Pac. 249. See Naltner v. Blake, 56 Ind. 127, infra.

72 Pac. 322; Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222; Duniway v. Portland, 47 Or. 109, 81 Pac. 945; Hughes v. Portland, 53 Or. 370, 100 Pac. 942; Terwilliger Land Co. v. Portland, 62 Or. 101, 123 Pac. 57; Schintgen v. La Crosse, 117 Wis. 158, 94 N. W. 84; Hamilton, Special Assessments, §§ 823, 824.

Plaintiffs are entitled to the protection of the Constitution and courts, even when their property is attacked under the magic cry of reassessment by the defendants.

Hamilton, Special Assessments, §§ 822, 823; Workman v. Chicago, 61 Ill. 463; Schintgen v. La Crosse, 117 Wis. 158, 94 N. W. 84; Rork v. Smith, 55 Wis. 67, 12 N. W. 408; Dean v. Borohsenius, 30 Wis.

On the contrary, the validity of such assessments has been sustained.

Thus, it has been held that a lot owner cannot attack the validity of an assessment for a sidewalk across the front part of his lot for the reason that the property was never acquired by the city for such purposes, where his lot has received the benefit and advantages of such walk. Boynton v. People, 159 Ill. 553, 42 N. E. 842. It is stated that the owner has a full consideration for the assessment levied on his lot, and the question whether he has received or is entitled to receive compensation for the strip of ground upon which the sidewalk is placed is not involved in this litigation; that if he is so entitled, the law will afford him a remedy.

In Davis v. Silverton, 47 Or. 171, 82 Pac. 16, it is held that an assessment for a street improvement is not rendered invalid so that it may be enjoined by the fact that, in doing the work, the city, believing that it was grading to the street line only, and without any wilful design or purpose of encroaching upon private property, did in fact encroach upon private property. The action in this case was brought by the owner of the property invaded, but no point is made of this fact. This case was followed in Hochfeld v. Portland, Or. —, 142 Pac. 824, upon a writ of review to correct error committed by the city council in a reassessment of property for street improvements, where it was claimed that, in improving the street, there was a trespass upon the land of the abutting owners in building thereon an embankment to hold the fill of the street, without having condemned the property for public use. Apparently this action was not by the owner of the property invaded.

The fact that the authorities, in making a public improvement, unlawfully invaded private property, has been held not to invalidate an assessment made to pay for the improvement, where it is attacked by one other than the owner of the invaded premises. Moore v. Albany, 98 N. Y. 396.

The improvement involved in Moore v. Albany was a street. A part of the im

236;
Allen v. Davenport, 65 C. C. A. 641,
132 Fed. 209; Thomas v. Portland, 40 Or.
50, 66 Pac. 439; Duniway v. Portland, 47
Or. 109, 81 Pac. 945; Hughes v. Portland, 53
Or. 383, 100 Pac. 942; Morgan v. Portland,
53 Or. 368, 100 Pac. 657; Applegate v.
Portland, 53 Or. 552, 99 Pac. 890; Jones v.
Salem, 63 Or. 126, 123 Pac. 1098; Terwilli-
ger Land Co. v. Portland, 62 Or. 101, 123
Pac. 57; Oregon Real Estate Co. v. Port-
land, 40 Or. 56, 66 Pac. 442; Oregon Real

vate property, or the proceedings cannot be sustained upon review.

Jones v. Salem, 63 Or. 126, 123 Pac. 1096; Morgan v. Portland, 53 Or. 368, 100 Pac. 657; Applegate v. Portland, 53 Or. 552, 99 Pac. 890.

When the city makes a street improvement which trespasses upon the private abutting property it is a trespasser, and a trespasser cannot recover for his trespass by claiming it is a benefit to the property trespassed upon.

People ex rel. Williams v. Haines, 49 N. Y. 587; Western Pennsylvania R. Co. v. Allegheny, 92 Pa. 100; Re Cheesbrough, 56 How. Pr. 460, affirmed in 78 N. Y. 232; Re Van Buren, 17 Hun, 527; Re Rhine

Estate Co. v. Gambell, 41 Or. 61, 66 Pac. 441; Portland v. Oregon Real Estate Co. 43 Or. 423, 72 Pac. 322; Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. The records must disclose the right of the city to pass this reassessment upon pri-' lander, 68 N. Y. 105; Moore v. Albany, 98

provement consisted of excavations on the, slopes outside of the street line upon private property where the grade of the street was lower, so as to secure the full width of the street at grade. Where the grade of the street was elevated an embankment was placed outside of the street line on private property. Another part of the work upon private property outside the street line was the construction of drains; all of this work was done without the knowledge or express consent of the owners of the land, but such owners did not make any objection after they learned of the same, did not even object to the assessment upon their land, and allowed the embankments to remain for a number of years. It is stated that the improvement was completed much more cheaply than it would have been had the street been protected by a retaining wall or in any other way; so that the trespass, if one was committed, was really for the benefit of the persons assessed.

cient proof. It is further stated that it is not enough to establish that, in carrying out the improvement, the city authorities committed a trespass upon the lands of another party; that this is a matter which rests between the city authorities and the person affected, and is not a valid ground of objection by a party assessed, who has no interest in the land upon which the sewer is laid. The case was returned to the lower courts for further proof.

See Hochfeld v. Portland, supra. Property owners who have been assessed for the construction of a sewer cannot object to the confirmation of the assessment on the ground that the sewer crosses private property, where the owner of the property, who had full knowledge of the construction of the sewer, took no steps to prevent it and made no objection thereto, and consequently, under the law of the. jurisdiction, would be estopped from making claim for compensation because of the construction of the sewer through his prop erty. Hyde Park v. Borden, 94 Ill. 26.

Tax bills given in payment of sewers one of which was built over private property are valid, where the owner of the property gave his previous approval and consent to the construction. St. Joseph use of Saxton Nat. Bank v. Landis, 54 Mo. App. 315. It is stated that the owner would be estopped to question the right to occupy his lot with the city sewer, since, as owner of the property, he not only consented to the use of it by the city, but stood by and acquiescing. ly saw an expensive sewer constructed through his lot, which became a part of the public sewer system of the city.

In Re Ingraham, 64 N. Y. 310, an action to vacate the assessment made upon lots for the construction of a sewer, in which the assessment was claimed to be invalid because the title to lands on which the sewer was laid had never been acquired by the corporation, the petitioner, who claimed to own to the middle of the street, did not show that the sewer was laid on his side of the street, nor in the center of the street. He alleged in his petition that the opposite side of the street was the property of and owned by individuals, and not by the city, and by affidavit showed that this half of the street, so far as he had any knowl edge, had never been deeded to the city authorities. The court states that these al- The right of landowners who were conlegations do not interfere with the right of testing an assessment for a sewer, to raise the city to lay the sewer, that a permission the question as to the validity of the asfrom the owner or owners would be suffi- sessment on the ground that the land on cient authority for that purpose, and as it which the sewer was constructed was not is not shown that no such permission was owned by the city, was denied after an given, and as it does not appear that these appeal from the common council to the owners object, the legal presumption is that court, in McGill v. Bruner, 65 Ind. 421. the city authorities were acting under a Where the public body making the improper license, and had ample power to per-provement has received some grant or li form the work; that this must be assumed cense from the owner of the premises to use until the contrary is established by suffi- the same for the purpose of the improve

N. Y. 396; Vanderlip v. Grand Rapids, 73 | 115 Pa. 78, 8 Atl. 381; Baltimore v. Hook, Mich. 522, 3 L.R.A. 247, 16 Am. St. Rep. 62 Md. 371; Carpenter v. Hennepin County, 597, 41 N. W. 677; Hendershott v. Ot- 56 Minn. 513, 58 N. W. 295; Norfleet v. tumwa, 46 Iowa, 658, 26 Am. Rep. 182; Cromwell, 70 N. C. 640, 16 Am. Rep. 787; Broadwell v. Kansas City, 75 Mo. 213, 42 Alton v. Mulledy, 21 Ill. 76; Boston v. DisAm. Rep. 406; Ashley v. Port Huron, 35 trict of Columbia, 19 Ct. Cl. 31; Webster v. Mich. 296, 24 Am. Rep. 552; Martinsville Stewart, 6 Iowa, 401; Westerfield v. Wilv. Shirley, 84 Ind. 546; Evansville v. Decker, liams, 59 Ind. 221; Putnam v. Tyler, 117 84 Ind. 325, 43 Am. Rep. 86; Giaconi v. As- Pa. 570, 12 Atl. 43; Putnam v. Ritchie, 6 toria, 60 Or. 12, 37 L.R.A. (N.S.) 1150, 113 Paige, 390; Ford v. Holton, 5 Cal. 320; ElPac. 855, 118 Pac. 180; Elliott, Roads & lett v. Wade, 47 Ala. 456; Isle-Royale Min. Streets, 2d ed. §§ 201, 204, 490, 492, 493; Co. v. Hertin, 37 Mich. 332, 26 Am. Rep. 38 Cyc. 1035, 1036, 1043; Busch v. Fisher, 520; Pinney v. Winsted, 83 Conn. 411, 76 89 Mich. 192, 50 N. W. 788; Stewart v. Atl. 994, 20 Ann. Cas. 923; Haynes v. Tucker, 106 Ala. 319, 17 So. 385; Graham Thomas, 7 Ind. 38; Mulligan v. Kenny, 34 v. Connersville & N. C. Junction R. Co. 36 La. Ann. 50; Caldwell v. Eneas, 2 Mill, Ind. 463, 10 Am. Rep. 60; Warner v. Foun- Const. 348, 12 Am. Dec. 681; Davis v. Siltain, 28 Wis. 405; Hershberger v. Pittsburgh,' verton, 47 Or. 171, 82 Pac. 16; Kingsley city is without jurisdiction to make the improvement because of such ownership, where there is a subsequent dedication of the street. Clark v. Salem, 61 Or. 116, Ann. Cas. 1914B, 205, 121 Pac. 416.

ment, the validity of such grant to effect the purpose for which it is intended is not discussed generally herein.

The case of Chicago v. Green, 238 Ill. 258, 87 N. E. 417, denying the validity of a special assessment for a sewer where the right to construct and maintain the sewer under a canal was given only by a resolution of the canal commissioners, which was held insufficient to convey the interest necessary for the permanent maintenance of the sewer, and Berwyn v. Berglund, 255 Ill. 498, 99 N. E. 705, sustaining an assessment where there was a grant of the right to maintain a sewer, are illustrative of this class of

cases.

A few cases further illustrating this question are the following:

An assessment for a sewer running chiefly through private land the owners of which had granted to the city the right to lay the sewer through the land was sustained in Taylor v. Haverhill, 192 Mass. 287, 78 N. E. 474, where the city had power to lay such a sewer and make an assessment for its cost.

An assessment of the costs of a retaining wall erected in a street improvement partly on the street and partly on adjoining property, with the consent of the owners thereof, was held rightly assessed upon the abutting property, in Longworth v. Cincinnati, 34 Ohio St. 101, but no objection was made to the assessment on the specific ground that it was erected on private property.

The cost of a stone wall which is a necessary part of a street improvement, constructed on the sides of steep hills, built in part upon private property with the consent of the owners thereof, may be properly included in an assessment on abutting owners for the cost of the improvement. Re Perrysville Ave. 210 Pa. 537, 60 Atl. 160. None of the wall was built on the land of those objecting in this case. It is further stated in the opinion that an easement for the wall could have been obtained by adverse proceedings.

An assessment for the improvement of a street, part of which is owned by a private party, is not void on the theory that the

See St. Joseph use of Saxton Nat. Bank v. Landis, supra, as to the effect of owner not objecting.

The validity of an assessment for the construction of a public improvement, levied before the right of way on which the improvement is to be constructed has been secured, is not discussed. See Maywood Co. v. Maywood, 140 Ill. 216, 29 N. E. 704, where the validity of an assessment for a sewer under such circumstances was sustained.

It was held in Holmes v. Hyde Park, 121 Ill. 128, 13 N. E. 540, that the owner of property specially assessed for the purpose of grading and paving a street of an incorporated village could not interpose the objection, on an application to the court to confirm the assessment, that the village had not acquired title to the soil to be graded and paved as a street. Following this case, the court in Hunerberg v. Hyde Park, 130 Ill. 156, 22 N. E. 486, held that an owner of property who was specially assessed for the improvement of a street, and who claimed to be the owner of a part of the street where the proposed improvement was to be made, could not object to a confirmation of the assessment roll.

II. Theory that invalid part of assessment may be separated from valid.

With the exception of Re Rhinelander, 68 N. Y. 105 (discussed infra), the question whether the assessment can be sustained in part and held invalid in part was not considered in the foregoing cases. It will be noticed that this question was considered in REIFF V. PORTLAND. It has also been considered in other cases. The majority of the cases hold that the total assessment for a public improvement, a small part of which is built on private property without the authority or consent of the owners, is not void, especially where the part that is

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