Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-20
GiaeOni '. City of Astoria.

] - N-NS " @ANNN-h@
Decided October 10, 1911.
Joseph Giaconi, plaintiff and re-
spondent, V. The City of Astoria, de-
fendant and appellant Appeal from
the circuit court for Clatsop county
Hon. J. A. Eakin, Judge. Argued and
submitted September 6, 1911, on re-
hearing. G. c. Fulton for respondent.
F. H. Hamilton and "a. W. Norblad
on the brief for appellant Burnett
]. Affirmed.
This is an action at law brought 20
recover damages for the injury alleged
to have been caused to the plaintiffs
real property by the negligence of the
defendant in grading a street within
the municipal boundaries. The answer
pleaded the general issue and alleged
affirmatively that the work was done
by the city in a careful manner
through the agency of its contractor
and that what happened was the re-
suit of a pure accident without fault
or negligence on the part of the defen-
dant This new matter was in turn
traversed by the reply. BY consent
of the parties the cause was tried be
fore the court without a jury The
substance of the findings of fact re-
turned by the court is here given:
The defendant is a municipal corpOr-
alton having power to improve and
repair streets within its boundaries.
Irving avenue has been and at all the
times mentioned was a duly dedicated
street, accepted by the defendant as
such but has never been improved. IT.
runs practically east and west throuGh
that portion of the city laid out by
John NJ. Shively and generally known
as "Shiyely's Astoria" North of Irv-
ing avenue, parallel Herewith and di-
yided therefrom and from each other
| by tiers of city blocks are Grand
avenue and Franklin avenue in the
order named. Crossing Irving avenue
and running practically north and
south, and parallel with each Others
and divided by tiers of blocks are
Eighteenth and Nineteenth streets,
both of which lie on steep and pre-
cipitous hillside, between which and
including a portion of each was
gulch or canyon from which water
| flowed in perennial springs and in
which the earth was soft, swampy and
unstable, of all which the defendant
city had at all times notice and
! knowledge.
Plaintiff owned real property lying
in the second tier of blocks northerly
from that part of Irving avenue in
cluded between Eighteenth and Nine
teenth streets and had and maintained
thereon, prior to the occurrences de-
scribed, in the pleadings, three dwell
ings. All that part of Irving avenue
included in and lying east of Eight
eenth street was wholly unimproved
and was in a state of nature. Except
that portion included in the gulch,
already mentioned, the same lay on
the steep, precipitous hillside at an
elevation of about one hundred and
eighty feet above plaintiffs real prop
erty. The part in the gulch was about
| fifty feet in depth below the ordinary
elevation of ground surrounding it.
and was fully thirty-five feet below
the established grade of the avenue
in question. The gulch was about
two hundred and fifty feet in width,
its surface being comparatively level
east and west, but sloped to Grand
avenue, a distance Of about three
hundred feet, where it met an abrupt
descent of about fifteen feet to the
level of plaintiffs property. By rea-
son of the fact that the soil in the
gulch was of such unstable character
and by reason of the steep slope
thereof it was incapable of sustaining
any weight and was wholly insuffic-
| lent as foundation for the fill for
| Irving avenue and it was wholly un-
safe to attempt to fill in that avenue
at that place. An examination of the
| same would have disclosed to any
careful and prudent person that those
grounds were thus insufficient and
| that an attempt to make a fill in the
| gulch, to bring the same up to the
established grade of the street, would
cause it to sink and slide, and force
and drive the soft soil down upon the
| blocks in which plaintiffs real prop
erty was situated. The defendant,
| however, did not make any examina-
ton of the land whatever, but adopted
and passed a resolution declaring it's
! intention to improve Irving avenue by
/ grading the same to full width of the
avenue to the established grade and
directed the city surveyor to prepare
plans and specifications for the con-
! struction of the improvement in ac-
cordance Herewith. Pursuant to said
resolution the city surveyor, without
making any examination of the ground
whatever and without any request on
the part of the defendant that he
would make an examination, prepared
and filed such plans and speclfica-
tions for the proposed Improvement
by which it was provided that the
gulch between Eighteenth and Nine
teenth streets should be filled with
earth to the established grade of Irv-
ing avenue at said point and to the
full width thereof, requiring a fill in
said gulch of thirty-five feet in height
I by fifty feet in width and about two
hundred and fifty feet in length, which
plans and specifications were adopted
| by the city. The defendant did not
provide for taking care of or confin-
ing any of the waters in the soft and
swampy ground in the gulch and made
no provision for draining the same,
but simply required the fill to be
placed on top of the unstable, soft
soil already mentioned without pro-
] op,y fn,,pIaffor for ba ~.