4th ed. §§ 578-1272, 1273-1278; Lewis, Em. Dom. 3th ed. §§ 901-904-929-931; Dyer v. Bandon, 68 Or. 406, 136 Pac. 652.

There can be no reassessment, as the city illegally undertook to repair and improve different parts of the street in one proceeding, in violation of the charter, and in order to defeat the plaintiffs' right of remonstrance.

v. United R. Co. 66 Or. 50, 133 Pac. 787; | wert, 29 Ór. 583, 41 Pac. 926; High, Inj. Corvallis & E. R. Co. v. Benson, 61 Or. 359, 121 Pac. 418; Clark v. Portland, 62 Or. 124, 123 Pac. 708; Salem Mills Co. v. Lord, 42 Or. 82, 69 Pac. 1033, 70 Pac. 832; United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Pacific Laundry Co. v. Pacific Bridge Co. 69 Or. 306, 138 Pac. 221; Warren v. Astoria, 67 Or. 603, 135 Pac. 527; Trotter v. Stayton, 45 Or. 301, 77 Pac. 395; Bernard v. Williamette Box & Lumber Co. 64 Or. 223, 129 Pac. 1039; 22 Cyc. 831-836; Moundsville v. Ohio River R. Co. 20 L.R.A. 161, note; Lynch v. Union Inst. for Sav. 159 Mass. 306, 20 L.R.A. 842, 34 N. E. 364; Williamette Iron Works v. Oregon R. & Nav. Co. 26 Or. 224, 29 L.R.A. 88, 46 Am. St. Rep. 620, 37 Pac. 1016; Norton v. El-Jones v. Salem, 63 Or. 126, 123 Pac. 1096;

built on private property can be reconstructed at a small cost.

Thus, tax bills issued to pay for the construction of a sewer a small part of which is built on private property without the authority or consent of the owner are not void in toto, especially where the part built on private property can be reconstructed by the city at a small cost. Johnson v. Duer, 115 Mo. 366, 21 S. W. 800. It is stated that there was some doubt whether the finding of the trial court that the sewer was laid through private property without the knowledge or consent of the owners was justified by the evidence, but the finding as made was accepted by the supreme court as a basis of the decision.

Oregon Transfer Co. v. Portland, 47 Or. 1, 81 Pac. 575, 82 Pac. 16; 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; Portland v. Oregon Real Estate Co. 43 Or. 423, 72 Pac. 322;

the improvement was refused until the part of the assessment, other than that for the part of the sewer constructed through private property should be paid or tendered.

That there can be no recovery for the part of a sewer constructed on private property is held also in Miller v. Anheuser, supra.

In the abstract of Lorenz v. Armstrong, appearing in 3 Mo. App. 574, it is stated that where street improvements have been made by a municipal corporation upon property which has not been dedicated or condemned to public use there can be no recovery on a special tax bill issued for such improvement.

See Athens v. Carmer, supra.

Referring to this case, and stating that This seems to be the holding in Re Rhineit holds that one other than the owner of lander, 68 N. Y. 105, where, in an action to property invaded will be relieved of the vacate an assessment upon land on the cost of that part of the work which was ground that the sewer for the construction constructed on private land, the court, in of which the assessment had been levied Springfield ex rel. Bank of Commerce v. was constructed across the private property Baxter, 180 Mo. App. 40, 165 S. W. 366, of the petitioner seeking to vacate the asholds in an action by the holder of a spe- sessment, it is stated that the place indicial tax bill to recover thereon that an in-cated was not a street, that the municipal struction to the effect that the encroachment on the private property did not in any way render the tax bill void was properly refused.

In Athens v. Carmer, 169 Pa. 426, 32 Atl. 422, where, in constructing a sidewalk which was about 280 feet long, a thin wedge at one end of the walk an inch or 2 inches wide at the base, and running to a point a few feet away, was over the line of the street. It was held that a recovery of the assessment for that part of the sidewalk which involved no trespass should be allowed, and that the defense that no recovery could be had because of the trespass should be restricted to that part of the whole work which was in fact a trespass.

That there can be a recovery for the part of a sewer regularly constructed is held also in Miller v. Anheuser, 2 Mo. App. 168. But so much of the cost of the improvement as is due to the unlawful invasion of private property is void. Johnson v. Duer, supra. But an injunction to restrain the collection of tax bills issued in payment of

authorities in constructing the sewer there were trespassers, and that no assessment could legally be laid to pay the expense of such a trespass.

See Western Pennsylvania R. Co. v. Allegheny, 92 Pa. 100.

Where the attack is made by the owner of the invaded premises, whose substantial rights have been invaded, the entire assessment is void. Thus, an assessment for the cost of the construction of a sidewalk which encroaches upon the property on which the assessment is levied is invalid in its entirety where the substantial rights of the property owner are invaded. Springfield ex rel. Bank of Commerce v. Baxter, supra. The sidewalk in this case.encroached about 8 inches at one end, ran off the lot and onto the parking altogether about 140 feet from the starting point, so that only a triangu lar part of the sidewalk, 8 inches at one end, narrowing down to a point 140 feet away, was on the defendant's lot. There was no evidence in this case showing the value of the lot, or what, if any, improve

reassessment of the expense of said improvement. Said judgment or order was made on July 6, 1908.

Rogers v. Salem, 61 Or. 321, 122 Pac. 314; Thurber v. McMinnville, 63 Or. 410, 128 Pac. 43; Terwilliger Land Co. v. Portland, 62 Or. 101, 123 Pac. 57; Macartney v. Ship- On March 23, 1910, the council of the city herd, 60 Or. 133, 117 Pac. 814, Ann. Cas. of Portland passed an ordinance, No. 20,1913D, 1257; Dean v. Charlton, 27 Wis. 989, entitled, "An Ordinance Making a Re522; Dill v. Roberts, 30 Wis. 178; Plumer assessment for the Improvement of Sevenv. Marathon County, 46 Wis. 163, 50 N. W. teenth Street from 58.5 Feet North of the 416; Rork v. Smith, 55 Wis. 83, 12 N. W. North Line of Vaughn Street, to the South 408; Duniway v. Portland, 47 Or. 111, 81 Line of Marshall Street." This ordinance Pac. 945; Hughes v. Portland, 53 Or. 383, | was approved by the mayor of said city on 100 Pac. 942; Grady v. Dundon, 30 Or. 333, March 24, 1910, and by this ordinance the 47 Pac. 915; Flagg v. Columbia County, 51 city levied certain reassessments upon the Or. 172, 94 Pac. 186; Scott v. Ford, 52 Or. property of the plaintiffs, amounting to 288, 97 Pac. 99; 19 Cyc. 26. $5,574.79, for the improvement of said SevMessrs. Frank S. Grant and Lyman E. enteenth street from 58.5 feet north of the Latourette for respondents.

Ramsey, J., delivered the opinion of the

court:

On September 21, 1910, the plaintiffs filed a petition for a writ of certiorari to obtain a review of certain proceedings of the council of the city of Portland, had in making a reassessment of the property of certain adjacent lot owners in said city, for the payment of the expenses of a street improvement; the petitioners claiming that said proceedings were illegal and void, for reasons alleged in said petition. The petition contains 27 pages, and hence it is impracticable to set it out in this opinion.

north line of Vaughn street to the south line of Marshall street. The plaintiffs own property adjacent to said improvement, and said reassessment was made by said city to pay for the improvement of said street, made as stated supra; the assessment, originally made by said city to pay for said improvement, having been held invalid, for defects in the proceedings. The reassessment was made to pay for the same improvement for which the said invalid assessment was made. The plaintiffs began this certiorari proceeding, claiming that said reassessment is invalid.

1. After the allowance of said writ of review, the trial court allowed a motion of the defendants for an amended writ, and disallowed a motion of the plaintiffs for a further return to said writ. The rulings of the court upon these motions are assigned as error. But, in the view that we take of this case, the rulings of the court on said motions cannot materially affect our decision. Hence we will treat the questions for consideration as if the papers that the plaintiff's desired returned were in the record.

On October 7, 1903, the council of the city of Portland passed a resolution for the improvement of Seventeenth street of said city from 58.5 feet north of the north line of Vaughn street to the south line of Marshall street, in said city, in the manner stated in said resolution. The improvements contemplated by said resolution were made, and the city assessed the expense thereof upon the property adjacent to said street; but the circuit court of Multnomah county, upon a writ of review, prosecuted 2. The reassessment was, in a sense, a by interested parties, held that said assess- continuation of the original assessment proment was invalid, for defects in said pro- ceedings. There was no new improvement ceedings, and directed the city to make a made, and the reassessment proceedings ments were on it; nothing from which the property thus invaded is entirely void. appellate court could determine the value Naltner v. Blake, 56 Ind. 127. It was here of the property so that it might be deter- claimed that the owner had consented to mined whether the encroachment was sub- the erection of the wall on his property. stantial. The trial court had held under In answer to this it is stated that even had the evidence that the encroachment invaded he consented to such erection, the city was the substantial rights of the defendant, and not authorized to charge him with the exthe appellate court stated that it was un-pense of the wall. This decision is regarded willing to declare as a matter of law that the trial court's finding in that particular was erroneous. See, in this connection, Athens v. Carmer, supra.

Or where the cost of a retaining wall which was erected entirely upon an adjoining owner's property cannot be separated from the cost of grading and graveling an alley in the improvement of which the wall is erected, an assessment upon the

in Jackson v. Smith, 120 Ind. 520, 22 N. E. 432, as being in conflict with McGill v. Bruner, 65 Ind. 421, supra, and with the cases generally which deny the property owner the right to attack the assessment on the ground that the title to the property on which the improvement is made has not been acquired by the body making it.

W. A. E.

were had for the purpose of imposing a and it is not necessary to re-examine those lien upon the lands of the adjacent prop-questions in this cause. Duniway v. Porterty owners for the payment of the ex- land, 47 Or. 103, 81 Pac. 945; Hughes v. pense of said improvement, in accordance Portland, 53 Or. 370, 100 Pac. 942. with § 400 of the charter of said city. 3. The first point urged by the plaintiffs is that the reassessment is invalid, because the original resolution for the improvement of Seventeenth street was invalid, in that it attempted to provide for a repair of two separate parts of Seventeenth street, which had been formerly improved by gravel, and which parts of said street extended from the south line of Marshall street to 50 feet north of the north line of Marshall street, and were then separated by a wooden elevated bridge about 4 blocks long, where a second piece of gravel street commenced, which was attempted to be repaired in said resolution, etc.

.

sessment upon the lots, blocks, and parcels of land within the district benefited by said improvement, and give due notice to the owners of all property affected by said reassessment, in the manner prescribed by the charter.

the benefit of other property in the district, and the city at large; that it was an illegal and unjust charge upon the abutting property; and that the said charge upon the abutting property owners is greatly in excess of the benefit to the property abutting the bridge; and that the reassessment upon the property of other persons is a great deal less than the benefit to their property, etc.

9. A. L. Barbour, auditor of said city, made said reassessment, and, in his certificate appended thereto, he certified as follows: "I, A. L. Barbour, auditor of the city of Portland, Oregon, do hereby certify that the whole cost of said improvement was the sum of $10,762.12; that I have viewed the reassessment district and each

that the property within the reassessment district is benefited in the full sum of such cost; that I have ascertained what I deem to be the special and peculiar benefit derived by each lot or part thereof or parcel of land within said district by reason of such improvement; and I hereby apportion the cost of said improvement to the lots, parts of lots, and parcels of land within the said district, in accordance with the special and peculiar benefits derived thereby, in the amount set opposite the number and description thereof, and to the extent of their respective and proportionable shares of the full value thereof. I further certify that each lot, part of lot, or parcel of land within said district is especially and peculiarly benefited by said improvement in the amounts so set forth, and, in my judgment, said property should be reassessed in such amounts," etc.

8. On November 24, 1909, the auditor presented to the council of said city his preliminary reassessment of the property affected by said improvement, and it was filed on said date. Notice was given by the auditor of the making of said preliminary reassessment, and that any objections to said assessment and reassessment should be filed in writing with the auditor within ten days from December 4, 1909, the last day of publication of said notice, and that objections to said reassessment would be heard by the council at the regular meet-lot, part thereof, and parcel of land therein; ing thereof on December 22, 1909, etc. Said notice seems to be in proper form, and it was published and served according to law. On December 13, 1909, the plaintiff's, by their attorney, filed with the auditor lengthy objections to said reassessment. In these objections the plaintiff's contended that said reassessment was illegal and void, for several reasons. One objection made to said reassessment was that it was not made in accordance with the special and peculiar benefits to the property by reason of said improvement, and apportioned equitably throughout the district. Another objection was that the city in one proceeding attempted to make a repair of two separate parts of Seventeenth street that had formerly been improved with gravel, and which parts of said street were separated by a wooden elevated bridge about four blocks long. But the record shows that said improvement was not in separate parts of said street, but continuous, as stated supra. Another objection was that the city, in making a fill in said improvement, caused a large amount of earth and other filling material to be put upon the private property of the people opposite the wooden bridge, without their consent and without obtaining any right to do so, and that the city had attempted to appropriate said private property to a public use, in violation of the Constitution, and without compensation and that, in doing so, the city was violating the law, and a trespasser. Said objections allege also that the city, in making said reassessment, undertook to charge said property owners for the expense of said trespassing upon their property, in building the slopes of said fill upon their property, and attempting also to charge the entire cost of the fill in the street upon the abutting property, and that said fill was not made for the benefit of the abutting property, but for

10. The foregoing certificate of the auditor shows on its face that said reassessment was properly made, and we do not find that his certificate is not true. The auditor was the proper officer to make said reassessment, and he is presumed to have done his duty properly, and his certificate stating how he made said reassessment is presumed to be true.

In assessing or reassessing the expenses of street improvements, the officer charged with that duty is required to act in good faith. It is his duty to estimate in good faith, and as accurately as he can, the amount that each parcel of land subject to assessment will be specially and peculiarly benefited by the improvement, and in no instance to assess upon a piece of property an amount in excess of such special and peculiar benefit. He has no right to sit down and figure what the improvement in front of property has cost, or will cost, and impose that amount upon the property, un

less the property has been, or will be, bene- | March 23, 1910, and approved by the mayor fited to that extent by the improvement. March 24, 1910.

11. The record of the council shows that 13. The city gave due notice of the makon December 22, 1909, a remonstrance by ing of the preliminary reassessment and of Anna F. Grace et al. and Ralph R. Duni- the time within which objections thereto way, attorney for objecting property own- could be made. The plaintiff's, by their aters, was read in the council, and, on motion, torney, filed with the auditor their writit was referred to the committee on streets. ten objections thereto. These objections On February 21, 1910, said committee were presented to the council and read, and, wrote the attorney for the plaintiffs, notify- by the council, they were referred to the ing him that the ordinance making a reas- committee on streets. This committee resessment for the Seventeenth street improve-ferred said objections to the city attorney, ments, and the remonstrances against the same, would be considered by said committee at the next regular meeting of the committee, to be held on March 4, 1910, at 2 o'clock, P. M.

In a letter of the date of March 4, 1910, addressed to said committee, the attorney for the plaintiffs acknowledges receipt of the committee's letter to him, notifying him that the remonstrances against the proposed reassessment would b. considered by the committee on March 4, 1910, at 2 o'clock P. M., and in this letter Mr. Duniway says that he does not believe that the committee had any jurisdiction or power to act on the reassessment ordinance and objections, or that the council could then legally pass upon his objections and enact said ordinance. He said he would attend said meeting of the committee if it should be possible for him to do so, but expressed doubts as to his ability to attend.

12. The objections of the plaintiffs to said reassessment were referred also to the city attorney by said committee, and the city attorney reported that, if Mr. Duniway's objection that said reassessment was an attempt to impose the cost upon the abutting property without regard to benefits, and, as a mere mathematical calculation, was true, the rule of assessment should be changed.

and he made a report concerning them to the committee. The committee notified the plaintiffs' attorney of the time when they would consider said objections or remonstrances. The attorney did not appear before the committee, and the committee, after considering said objections, reported to the council that they had considered them, and recommended that the objections be overruled. This report was presented to the council at a regular meeting, and read to the council, and the council, on motion, overruled said objections, and, at the same session, passed the ordinance making the reassessment. We hold that the plaintiffs had due notice of said proposed reassessment, and that they filed their objections thereto, and that those objections were heard, decided, and overruled by the council, and that the proceedings of the council were regular in this respect.

14. There is another matter that should not be overlooked, relating to the opportunity given to persons whose lands are reassessed to have determined the amount that should be assessed against their lands to pay for such an improvement. Section 401 of the charter of Portland confers upon persons objecting to such reassessment the right to appeal from the decision of the council to the circuit court, and have the amount to be assessed against their property On March 18, 1910, the committee on determined by a jury trial. Hence it apstreets reported to the council that they pears that the charter of Portland affords had considered the ordinance for the reas- the adjacent landowners proper remedies sessment of the cost of the improvement of against unjust reassessments by the counsaid Seventeenth street, and the remon- cil. strances against the same; that the remonstrators were called, and, no one appearing, the remonstrances were considered by the committee, and the committee recommended

that the remonstrances be overruled and the ordinance passed. Said report is dated March 18, 1910, and it was filed March 22, 1910.

15. The plaintiffs contend also that the city, in making said improvements, made a large fill along a portion of Seventeenth street, and, in doing so, wrongfully and without the consent of the adjacent landowners, caused a large amount of earth and other filling material to be put upon the land owned by the persons along said street, and that, in doing so, the city violated the law, and was a trespasser, and that, for this trespass, this court should annul said reassessment.

At a regular mecting of the council on March 23, 1910, the report of said committee was presented to the council, and, on motion, it was adopted, and said remon- 16. We think that the city had no right strances were overruled by the council. to pile earth and other material upon the Said ordinance was passed by the council' abutting owners' lands, and that, if it was