Daily capital journal. (Salem, Oregon) 1903-1919, 1917-05-01
FRY Wins WINS SUIT
OVER STREET PAVING
Other Paving Suits Won With
k---SeVeral Other Salem
Cases Decided


take subsequent action or to assess
the cost of the Improvement against 4
the abutting property, the Oregon su.
preme court this morning affirmed the
decree of Judge Galloway, who found
IN favor of Daniel j. and Hettie 4. Fry
IN their suit against the city of Salem
to quiet the title Of lots in the city |
against which assessments for street !
Improvement had been levied.
From the decree Of Judge Galloway. |
the city of Salem apepaled TO the su.
preme court. The case was argued on
April 13, 1917. William p. Lord and
Grant Corby appeared for the respond
ents and Bert Macy, city attorney, and
W. H~Trindle, for the city of Salem.
The decision in this case covers the
cases of Helen +. Carson against the
City of Salem, and Juliet NJ. Lord
against the City of Salem, both of
which were decided by Judge Galloway
against the city and in both cases the
city appealed.
The opinions in this case were given
by Judge Bean, with Justices Mcbride,
Benson and Harris concurring.
On April /, 1912, the city council
adopted a resolution directing that
plans for the improvement of South
High street from the south line of Mill
street to the south line of Bush street
be improved. The plans of the city
engineer were adopted on April s, 1912,
and declaration of intention to improve
made. About April IL, 1912, the record
er published for six successive days a
notice inviting bids. On April %, bids
were opened and the one submitted by
Montague-O Reilly company for slS,-
1865 accepted.
| Notice of intention to pave was pub
lished about May l, and contract en-
tered into between the city and the
construction company. The work was
done, and the council adopted ordinance
| 1906 assessing a share Of the cost of
the improvement against adjacent
property.
Judge Bean, in his opinion, states
that the plaintiffs claim the city had
no jurisdiction or authority to make
the assessment as there was dis
crepancy in the resolution and the no.
tice to the property owners of the por-
ton of the street intended to be paved.
The notice to the property owners
stated that the Improvement was to be
from the South line of Mill creek
while the resolution read "from the
south line of Mill street" Therefore
the notice was not in conformity with
the city charter and the recorder had
no authority to publish it as much o'
the street was left out Of the notice.
This omission, the judge declared
affects the substantial rights OF the
property owners interested as the reso
! luton must determine the portion OF
the street to be improved. The
recorder was not empowered to determ
inc what portion was to be improved
and the plans and specifications were
NOT referred to in the notice relatlnt
to the portion of the street to be I'm
proved. ,,..,a ,,,o,
NOT authorized by the council it did no
therefore confer any power on ina
bodv and the assessment made was ac
cordinplv invalid as the adjacent prop
ertv owners are entitled to know VIVA
norton of the street is proposed TO d.
; ;mnroved. The requirements OF tn
charter must be complied with ana 'h
decree of the lower is affirmed.
Tn the suit brought by Alice McCo'
aoainst E. A. Thompson to enJoln IN
defendant from occupying a strip o
Iva 40 feet in width which Thompsol
E cIaimed he owned and which Ahe
McCov declared is a street, Judge Gal
Iloway ound in favor of Ihompsol
: Mccoy appealed with the result Una
e tbe supreme court this morning re
+ versed Judge Galloway. The oplmo
. was nv Justice Harris and Justice
= Mcbride. Burnett, and McCamant COZ
cured. Ia, Al
y o1,nar of land makes a plat and refel
e to a "street" he does not mean
; nrivate way. The disputed premise
irore newer improved as street nc
l. formallv accepted but the well recos
c n;1pd rule is that neither formal az
:, non+ancc nor an immediate opening al
{ essential to complete an lrreVoeapi
II dodication to the public. The leglsi'
!, / tnro in 1895 declared all streets in u'
n incorporated towns public highway
Accordingly the decree or 'he io"'
v court is reversed, ..o+ :,
GA Another Marion county case that Il
volyes a suit to foreclose mortgae
oiyan % as security on lots in MORT @
Salem was decided by Judge Mool u,
$ ,TIis Tha case was that of Lola knlghtGl
y RESPONDENT, M against Joseph wen
;. [gSr rharn,berlain, respondent, and Il; ~,
s. Harrold, defendant and appellant 81 In
l. nortoage was given as security IoT !,
h noto l,lI,'e@9 F9r $500 executed by We've
chamberlain Cha and his mother. AlGt ~
- reciting the facts Of the case iiova IN -
aetrthms gs;n;nn Judge Moore said he believe
decree should be rendered fofeeios1n Nh,
a tho oeo mortgage as prayed for in the s,, con
. the them mof.gls apd also that Joseph W; Chan
! Pnrinin Pl"ini and Rosa W. Chamberlain am.
, Oeliain aaaad a recovery against the defen' 7,
% amt T. o. Herrold for any pafV u :.
snm ann they may be compelled. 10 pay Rea,
deficiency. Justices MebrAue' ~
ond McCamant concurred.
- anu M some other Opinions =.
, r;ob+ other suits were determln' NJ
|. and opinions handed down as rol,O~ ott
. anu " swank, appellant, VS. A. batt a.,
W. eooled l. from Multnomah; acu'