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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (April 6, 1911)
DAILY CAPITAL JOURXAI SALEM, OREGON, THURSDAY, APRIL 6, 1911. VABK THn El OWNER OF CITY PROPERTY OWHS EARTH OF STREET Supreme Court Holds Owner of Abutting Property Is Entitled to the Earth Removed From Street Unless Needed to Im prove Said Street Elsewhere. Shjirkf)' t'My ' Portland, et al, .tfultnoniuh County. John P- Sharkey Company, re spondent, v. The City of Portland, a municipal corporation, M. J. Connel ly, W. Scott and T. McDougal, part ners doing business under the firm nsnie of Scott & McDougal, appel lants. Appeal from the decree of the circuit court of Multnomah county. The Hon. William N. Catena, Judge. Ralph R. Duniway and A E. Clark, for respondent. W. C. Benbow (J. P. Karanaugh and Frank S. Grant, on brief) for City of Portland. Iaw rence A. McNary (on brief) for M. J. Connelley, Scott & McDougal, appel lants. Argued and submitted March 14, 1911. McBrlde, J. Affirmed as to Connelley. Scott & McDougal. Re versed as to City of Portland. j This 13 a suit to restrain the de fendants from wrongfully removing earth from an excavation being made In the improvement of Franklin street in the City .of Portland, and to compel defendants to account for and pay the value of earth which plaintiff claims lias been already unlawfully converted. The complaint, which Is too volum inous for Insertion here, alleges in substance, that W. Scott and T. Mc Dougal, defendants, are partners do ing business under the firm name of Scott & McDougal; that plaintiff, during all times mentioned In the complaint, was the owner In equity of all of blocks 23 and 24 In Waver leigh Heights, In the City of Port land; that Franklin street, between 31st and 33d streets, lies between Hocks 23 and 24; that the John P. Sharkey company is the owner In equity of all the dirt in such street, and of the title to such street, sub ject only to the easement for street purposes for the benefit of the pub lic therein; that the City of Portland lias let a contract to excavate Frank lin street, between 31st and 33d streets, lying opposite and between blocks 23 and 24, Waverleigh Heights, to the established grade, and also to , lay artificial stone sidewalks and curbs; that such contract was let to M. J. Connelley, defendant, who sub let It to defendants, Scott & McDou gal; that they are, and have been during all the time mentioned here in, fulfilling the same; that the con tract provides that the contractor shall make the excavation at an agreed price, but It is silent as to where he shall deposit the earth so excavated; that the City of Portland has provided a district, composed of property belonging to plaintiff, to pay for the excavation, because such property will be specially and pecul iarly benefited by the improvement, and that defendants are attempting to make the excavation at the ex pense and charge of plaintiff's prop rety only; that plaintiff is the equit able owner not only of blocks 23 and 24 in Waverleigh Heights, but of the soil In Franklin street between those blocks, and It has In no way disposed of its ownership, in the soil; that plaintiff has heretofore requested and demanded of defendants, and each of them, that they deposit the soil be longing to plaintiff which has been excavated out of Franklin street be tween blocks 23 and 24, Waverleigh Heights, upon block 24 thereof, so that plaintiff will not be deprived of Its use and will receive the benefit of the contract; that plaintiff has offered the most reasonable and inexpensive place for defendants to deposit the earth, on block 24, Waverleigh Heights; that plaintiff, as an equita ble owner of the property, claims the benefit of the excavated soil for the filling of its adjacent property; that the defendants and each of them are unlawfully claiming the right to take the earth belonging to plaintiff and excavated out of Franklin street be tween 31st and 33d street, and divert it to their' own use; that defendants and each of them have refused and continue to refuse to deposit the soil so excavated upon block 24, as re quested by plaintiff; that there Is still a large amount of earth to be excav ated out of Franklin street between 31st and 33d streets, and unless en joined by this court defendants will continue to excavate the same and divert It elsewhere, to the irreparable Injury of plaintiff; that defendants, by these acts are destroying plaintiff's estate in the real property, In viola tion of law, and diverting It to their own use, that then the dirt Is so tak en and diverted there will be no ade quate and complete remedy at law for the estimation of damages of the premises; that defendants are pro ceeding under a claim that they are authorized so to do by the City .of Portland; that plaintiff has no plain, speedy, or adequate remedy at law; that 'defendants, by their acts and proceedings, are taking the property of plaintiff in violation of law, of the state constitution, and of the consti tution of the United States; that plaintiff is unable to state bow much earth has been removed from Frank lin street between 31st and 33d streets, and prays the court that the defendants be required "to acquire and state the amount of earth and other material heretofore removed by the defendants and converted to their own use from Franklin street be tween 31st and 33d streets. The defendants appealed separate ly and demurred to the complaint as not stating facts sufficient to consti tute a cause of suit, and the demur er being overruled, they filed separ ate answers, admitting the formal allegation of the complaint, but deny ing the portions above set out, except as stated In their further answer. The further answer alleges, that on April 24, 1907, plaintiff's predecessor in interest in Waverleigh Addition filed a petition with the city auditor for the grading and improvement of several designated streets in 'that ad dition, including Franklin street, and that thereafter, in pursuance of an ordinance passed for that purpose, the city advertised for bids for such Improvement and that the contract for a portion of the Improvement of Franklin street was let to M. J. Con nelley & Company. Then follows the following allegations: "That between said 24th day of April, 1907, and the time of the com mencement of this suit, the City of Portland enacted resolutions, . ordi nances and proceedings for the Im provement of a large number of oth er streets in said Waverleigh Heights Addition, and being the larger por tion of said streets above mentioned, the improvement of which was peti tioned for by said H. W. Lemcke Com pany, predecessors of the plaintiff herein, and contracts were awarded by the City of Portland for the im provement of said divers streets and portions thereof in said Waverleigh Height's Addition, and said Improve ment of Franklin Street between and adjacent to blocks 17, 18, 23, 24, 31 and 32, Waverleigh Heights, and the improvement of said other streets in said addition which had been peti tioned for by said H. W. Lemcke Company, and for which contracts had been awarded, are being conduct ed and carried on as a general Im provement of streets In said Waver- At Fountains & Elsewhere Ask for 'HO RUCK'S' Thi Original and Genuint MALTED .171 ILK Ths Food-drink for All Agis. At restaurants, hotels, and fountains. Delicious, invigorating and sustaining. Keep it on your sideboard at home. Don't travel without it A quick lunch prepared in ft minute. Take no imitation. Just say "HORljrXi" In No Combine or Trust lelgh Heights and In the vicinity of said Franklin street, and all the earth which has been excavated and to be excavated out of said Franklin street under the contract between the de fendant contractors and the City of Portland, not necessary for or re quired in the improvement of said Franklin street, Is used and to be used by the defendant contractors and the City of Portland in said oth er streets being Improved and to be Improved .under said general plan of improvement of the streets in said Waverleigh Heights Addition. That it is necessary for said defendant, the City of Portland, to use all of said earth so excavated and to be excav ated from said Franklin street, in said general plan of Improvement of said streets in Waverleigh Heights and that the defendant, the City of Portland, appropriated said earth for said purpose and the same is not be ing used for any other purpose but Is being used by the City of Portland and the defendant contractors for such purpose only. That said the City of Portland, through its executive board adver tised for and received bids for the improvement of said Franklin street on the ltOh day of April, 1908, that the said bids were . advertised ac cording to law and provided that it would receive said bids for said im provement in accordance with the ordinance providing for the time and manner of the same and the plans and specifications of the city engineer therefor, and the plaintiff herein had full knowledge of all the acts and proceedings had and taken by the de fendant, the City of Portland, in the matter of said improvement and made no objection, to the awarding of said contract for the same, and the plaintiff was aware and had full knowledge of the fact that the earth so to be taken from said ' Franklin street In the Improvement thereof, had been appropriated by and did be long to the defendant, the City of Portland. That the defendant contractor, M. J. Connelley, at the time of submit ting his bid for the improvement of said Franklin street, based the said bid on the ownership of the earth of said street having been appropriated by the defendant, the City of Port land, and owned by it and that other streets in the vicinity of said Frank lin street were about to be improved under a general plan therefor and that the earth so to be taken from said Franklin street could be and was to be used in the Improvement of said streets in the vicinity of said Franklin street That his bid for said Improvement was made much lower by reason of bis said knowl edge that said earth could and was to be used in the Improvement of said streets in the vicinity of Frank lin street, and said bid was for an amount much lower than the same could have otherwise have been made without loss to the defendant con tractors, all of which facts were and are known to the plaintiff herein, and unless these defendant contrac tors are permitted to use said earth they will be subjected to and will suffer a great financial loss In the carrying out of said contracts with the City of Portland, and that by rea son of the bid of said contractors having been placed at said reduced amount, the assessment for said Im provement as to the property bene fited thereby will be greatly reduced." Plaintiff's reply denied the new matter set up in defendants' answer. Upon the trial a decree was ren dered aalgnst defendants, restraining them from further converting the earth claimed by plaintiff and fixing plaintiff's damages for that already converted at $2500. Defendants ap peal. McBride, J.: Considering the com plaint In its entirety we do not think it states a cause of suit against the City of Portland. It sufficiently ap pears from the complaint that the contract was let In the reuglar man ner and without 'reference to what disposal should be made of the sur plus dirt obtained during the cause of excavation. Nothing is alleged showing that the city contemplated or authorized the alleged unlawful acts of the other defendants who were Independent contractors whom the city had a right to expect would carry out their contract in a lawful manner. The pleading is somewhat vague but, taking It by Its four cor ners, we think that this is the only fair construction that can be placed upon it. The principal question Is whether the city, by Justifying the ac tion of the defendants and expressly alleging that it and the defendants appropriated the dirt and claiming the right so to do, has not by express aider cured the defect in the com plaint, and this undoubtedly would Children Cry for Fletcher's 5vVv IY I r. mtifi ii li (i lit The Kind You Have Always Bought, and which has teen In uso for over 30 years, has borne tho signature of yff and has heen made under his per- 'jfL JC,f&tffl-f-fu, , sonal supervision since Its Infancy. yarv. 4CC4 Allow no ono to deceive you In this. All Counterfeits, Imitations nnd "Just-ns-good" are bnt Experiments that trifle with and endanger the health of IoJants and Children Experience against Experiment. 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