Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-29
OREGON SUPREME COURT DECISIONS
Palmer lumber CO. '. WalIonn Conntr
FSn Text Published BY Courtesy f. A. Turner, Reporter Of the
Supreme Court

AumUCN Us Ns NallOMa county |
Decided November 20, 1911.
The Geo. Palmer Lumber Co, appel
lant' " Wallowa county, Oregon, re-
spondent Appeal from the circuit
court for Wall9Ya county. The Hon.
j. W. Knowles, Judge. Argued and
submitted at Pendleton, October 81,
1911. JnO, S. Hodgin for appellant.
D. W. Sheahan land F. S. Ivanhoe on
Drief) for respondent. Eakin, C. ].
Reversed.
Ihis is a proceeding to review the
action Of the county court of Wal
Iowa county in laying out and estab-
hshlng the county road The petition
tor the writ raises but one question,
namely: The sufficiency Of the de-
scription of the proposed road con-
tanned in the petition therefor to con-
fer jurisdiction on the county court.
Ihat part Of the petition is in the fol-
lowing words: Beginning in said
Road District No %, at a point on
the Oregon Railroad & Navigation
company's right of way, at Rondowa,
IN said county and state, two hundred
feet west and one hundred feet south
or the northeast corner of the west
halt OF the southwest quarter of sec
tion %, in township 3 north of range
40 east, W. NJ; thence on and along
the most practicable route to mile
post No l, on the county road, known,
established and recorded as the c. w.
Brown road, in the southwest quarter
OF the southwest quarter of section a,
township north, of range Al east,
w. NJ, in Road District No. IS, and
there terminating at said mile post;
said route to follow as near as prac-
ticable the line of survey heretofore
made by H. E. Merryman, county sur
veyor of said county =. The field
notes and plat of which survey were
filed in the office of the county clerk
of said county on the Goth day of
December, 1909, and are hereby re-
ferred to for a more practicable de-
scription of the route of the county
road hereby petitioned for"
The plaintiff herein, who is the
holder of large tracts of timber land
in the vicinity of the proposed road
appeared in the county court of Wal.
Iowa county when such petition came
on for hearing and objected to the
jurisdiction of the court to entertain
the petition, for the reason that the
description of the proposed road con
tanned in the petition and notice il
too vague and indefinite to give thu
county court jurisdiction of the sub
iect matter or to give the parties in
Oe Int loy
will he affected thereby. The count.
court took no notice of this demurre
or objection and after the filing o
the report of the viewers it made al
order on July 7, 1910, which, in s.
far as involved here, is: "Now ol
this day this matter came on to b
heard on the report of the count
road viewers for second reading a
provided by law, and said (order) be
ing in words as follows: (Here fol
lows copy of the viewers report
and 1t appearing to the coul
that said board Of county road viewer
report favorably thereon, and recon
mend that said proposed road be es
tablished as a county road, and b
declared a public highway tn
findings of said county board of roa
viewers is hereby affirmed, and thi
court being satisfied from said repol
of said county road viewers that sal
proposed road will be Of public uti
ity, said report being favorable there
to 1t is therefore considered an
ordered by this court that said repo
of the board of county road viewer
be and the same Is hereby in all thing
adopted and approved by this cour
that the same be placed on record
the journal of thic ourt, and that II
surveyors profile and plat of said pr
posed road and his field notes of IL
survey thereof be placed on record
Upon the review of such order in II
circuit court the writ was dismisse
Plaintiff appeals,
Eakin, C. ]. Defendant has move
to dismiss the appeal because the n
tice of appeal was not served on Il
district attorney that the ord
sought to be reviewed is not fin
order; and that the brief does n
contain specifications of errors reli'
on. The notice of appeal was direc
ed to Wallowa county and servi
thereof was accepted by the coun
clerk. 1t is settled in this state tn
the county clerk may accept seryi
for the county in proceedings
which it is interested: Read V. Be
ton County, 10 Or. 156. and 1t is e
pressly held in Butler V. Smith, 20 {
1876, 1923, that service of notice
appeal may be had on the party
his attorney, which is the expire
provision of the statute, Sec. $50 i.
L. Therefore, the notice was proper
served on the county.
The order sought to be reviewed
final order under Sec. 6288 L. 0.
which provides that if mo petition T
damages be filed the report
the viewers being favorable there
they (the court shall cause said I
ports. survey profile and plats to
recorded and from thencefor
said road shall be considered a pub
. highway" The order shows that t
I'M petition for damages was denied. A
- the order otherwise fully compli
with the requirements of that secti
and constitutes the establishment
the road and is, therefore reyiewab
The error relied upon in this
- neal is sufficiently specified in
~ brief on page 5, namely the err
b of the court in holding that the
B scription of the road in the petit
"a and notice is insufficient and the n
"a tion to dismiss the appeal is denl
The only other question for cons
Grafton is. as to the sufficiency
the description in the petition and
i notice Of the line Of the proposed 70