Byers v. City of Sheridan

191 P. 351, 97 Or. 154, 1920 Ore. LEXIS 223

Opinion

McBRIDE, C. J.

In its principal features this case is subject to the same objections as were noted in the case of Henderson v. Sheridan, ante, p. 149 (191 Pac. 350), The notice simply described the proposed improvement as a hard-surface pavement 16 feet in width. The word “pavement” is defined as “a hard, solid surface covering of stone, brick, concrete, asphalt or wood”: Standard Diet., title “Pavement.” Any one of these, including wood blocks, will answer the description of a “hard-surface pavement.” It is well known that these differ in cost; that different kinds of concrete, bitulithic, and asphalt differ in cost, and that the base and thickness of the material to be put down are important elements in their durability, and in the expense of the improvement as a whole.

1. While technical accuracy in detail is not required, the property holder is at least entitled to be informed, in a general way, by city officials who are proposing the improvement, whether it is in the contemplation of the city to pave with brick, stone, bitulithic, concrete, asphalt, or some other material, as, under the notice given, any one of these mentioned— and perhaps others — might be employed. Unless this is done a property holder has practically no data from which to make even a reasonable guess as to what he may be called upon to pay when the improvement is completed. These general characteristics of an improvement ought certainly to be considered by the authorities before they determine to initiate it, and it is comparatively easy to specify them, and only justice to the ratepayer that he should be apprised of them before being called upon to determine whether or not he mil remonstrate.

2. The plea of estoppel is not well taken; the lack of reasonable certainty in the notice goes to the jurisdiction of the city to make the improvement, and as demonstrated in the able opinion of the late Justice Moore, in Strout v. City of Portland, 26 Or. 294 (38 Pac. 126), this objection is not waived by failure to object while the improvement was in progress.

The decree of the Circuit Court is reversed, and a decree will be entered here, enjoining the collection of the alleged assessments; but as the plaintiffs could have proceeded earlier, and thereby have prevented the improvement, they will not be allowed costs in either court. Reversed. Decree Rendered.

BeáN, JohNS and Bennett, JJ., concur.