Mr. Chief Justice Wolverton,
after stating the facts, delivered the opinion of the court.
1. The respondents moved to dismiss the appeal for the reason that the plaintiffs had appealed to the circuit court from the assessment of damages, it being contended that by prosecuting such appeal they have waived the right to prosecute their remedy by writ of review. In this contention we cannot concur, for two reasons : (1) It was not the purpose of the statute, in giving the appeal from the assessment of damages, to permit the regularity of the proceedings for the establishment of the road to be questioned therein ; and (2) by Section 585, Hill’s Ann. Laws, as amended by the act of 1889 (Sess. Laws 1889, pp. 134, 135), the writ of review is made concurrent with the right of appeal, so that an appeal from the assessment of damages does not waive the right to have the proceeding to lay out and establish the road reviewed at the same time. As bearing upon the question whether the remedies are concurrent, see Hill v. State, 23 Or. 446 (32 Pac. 160); Kirkwood v. Washington County, 32 Or. 568 (52 Pac. 568). The motion is therefore denied.
It is urged that it was error to strike out the answer to the petition for the location and establishment of the road, because it tendered issues upon matters of law and fact essential to be established before the prayer of the petition could be granted. Among them were (1) that the use for which it was proposed to appropriate the plaintiffs’ lands was not a public use ; (2) that the residence of the petitioners was at that time reached by a convenient public road; and (3) that the road proposed by the petition was not located so as to do the least dam[373]*373age to the premises of the plaintiffs. It was sought to produce evidence upon all these questions, and to obtain a hearing upon them as questions of fact, and it is urged that the court was powerless to proceed without it, issues thereon having been tendered. The law has made no provision for any such hearing, although it requires notice to be given of the appointment of viewers to lay out the road, and assess the damages accruing by reason of its location and establishment. It cannot be doubted but that all these questions are matters for judicial determination. The first two must be adjudicated and determined before the viewers can be appointed, but the latter is to be resolved with their assistance, when authorized to act.
2. As it pertains to the first question or issue, the proposition is advanced that private property cannot be taken for private use, even with compensation,.and therefore it must be first determined that the proposed taking is for a public use, before damages can be legitimately assessed ; hence, that an adjudication of the fact that the use is public, without an opportunity of being heard, is the taking of property without due process of law, and inimical to the national constitution. This is a question which challenges the jurisdiction of the court; for, if it be true that a road of public easement such as is provided for by statute is not the taking of property necessary to its establishment for a public use, then the courtis without authority to act, and the proceeding ought to stop whenever attention is called to it. This court has, however, decided that the taking of property for such a purpose is a taking for a public use. Mr. Justice Bean, in Towns v. Klamath County, 33 Or. 225, 232 (53 Pac. 604), says : “The principle to be deduced from the adjudged cases bearing upon the question seems to be that if, by a fair construction and operation of the statute, the road, [374]*374when laid out, is in fact a public road, for the use of all who may desire to use it, the law is not liable to the charge of unconstitutionality, and is valid, though the road may be laid out on the application of, paid for and kept in repair by, the petitioner, and primarily designed for his benefit; but if such road is to become a mere private way, and not open to.the public, the law sanctioning it is void. * * * Within this principle, the act in question is valid. The road provided for is an open, public way, thirty feet in width, which may be traveled by any person who desires to use it. The fact that it may accommodate but a limited portion of the public, or even but a single family, is no objection to the validity of the law providing for its location. The test is whether it is an open, public way, or one for the exclusive use and benefit of the petitioner.”
We are aware that the question whether the use is in fact public is one for ultimate determination, under the constitution, by the judiciary; that while the legislature usually takes the initiative, and, in its adoption of laws looking to the purpose, necessarily passes upon their constitutionality, it is yet within the exclusive and peculiar functions of the courts to determine the question, whenever appropriately brought to their notice : Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205 (60 Am. St. Rep. 818 46 Pac. 790, 34 L. R. A. 368); Apex Transportation Co. v. Garbade, 32 Or. 582 (52 Pac. 573, 54 Pac. 367, 882); Chicago, etc. R. R. Co. v. Wiltse, 116 Ill. 449 (6 N. E. 49); Lewis, Em. Dom. § 158 ; 10 Am. & Eng. Enc. Law (2 ed.), 1069b. The question being one of jurisdiction, it may be heard at any stage of the proceeding, as well in the circuit as in the county court; and, under the settled rulings of this court, it may be heard here for the first time. There is no issue of fact to be joined upon the question. The statute has prescribed what may be [375]*375done, and the matter of determination whether the appropriation of the lands necessary to the establishment of the road is for a public use is capable of being solved, und,er the statute, from the record. No facts that may be proven can present a different issue than such "as the law itself has tendered, and the notice which is required to be given by a service of the order- of appointment of the viewers gives ample opportunity for hearing upon this jurisdictional question, so that it cannot be said that the taking is without due process of law. In reality the county court passed upon the question when it entertained cognizance of the cause against the protests of the plaintiffs that it was without jurisdiction over the subject-matter.
3. The next question, viz., whether the residence of the petitioners could be reached by any public highway, and another closely allied to it, whether it is necessary that such persons and the public shall have ingress and egress to and from the residence of such persons, are political or legislative in their character, and the mode and manner of their ascertainment and determination are matters wholly within the authority of the legislature to devise : Towns v. Klamath County, 33 Or. 225 (53 Pac. 604); Zimmerman v. Canfield, 42 Ohio St. 463 ; People v. Smith, 21 N. Y. 595. The legislature having provided that, upon a sworn petition of the person whose residence is not reached by a convenient public road, the court may appoint viewers, the law has prescribed that this is sufficient to set the court in motion. These facts are not issuable, because not made so by statute, and are sufficient when appearing by the petition, because it fulfills or constitutes the mode of procedure pointed out by the law. As was said in Towns v. Klamath County, 33 Or. 225 (53 Pac.
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Mr. Chief Justice Wolverton,
after stating the facts, delivered the opinion of the court.
1. The respondents moved to dismiss the appeal for the reason that the plaintiffs had appealed to the circuit court from the assessment of damages, it being contended that by prosecuting such appeal they have waived the right to prosecute their remedy by writ of review. In this contention we cannot concur, for two reasons : (1) It was not the purpose of the statute, in giving the appeal from the assessment of damages, to permit the regularity of the proceedings for the establishment of the road to be questioned therein ; and (2) by Section 585, Hill’s Ann. Laws, as amended by the act of 1889 (Sess. Laws 1889, pp. 134, 135), the writ of review is made concurrent with the right of appeal, so that an appeal from the assessment of damages does not waive the right to have the proceeding to lay out and establish the road reviewed at the same time. As bearing upon the question whether the remedies are concurrent, see Hill v. State, 23 Or. 446 (32 Pac. 160); Kirkwood v. Washington County, 32 Or. 568 (52 Pac. 568). The motion is therefore denied.
It is urged that it was error to strike out the answer to the petition for the location and establishment of the road, because it tendered issues upon matters of law and fact essential to be established before the prayer of the petition could be granted. Among them were (1) that the use for which it was proposed to appropriate the plaintiffs’ lands was not a public use ; (2) that the residence of the petitioners was at that time reached by a convenient public road; and (3) that the road proposed by the petition was not located so as to do the least dam[373]*373age to the premises of the plaintiffs. It was sought to produce evidence upon all these questions, and to obtain a hearing upon them as questions of fact, and it is urged that the court was powerless to proceed without it, issues thereon having been tendered. The law has made no provision for any such hearing, although it requires notice to be given of the appointment of viewers to lay out the road, and assess the damages accruing by reason of its location and establishment. It cannot be doubted but that all these questions are matters for judicial determination. The first two must be adjudicated and determined before the viewers can be appointed, but the latter is to be resolved with their assistance, when authorized to act.
2. As it pertains to the first question or issue, the proposition is advanced that private property cannot be taken for private use, even with compensation,.and therefore it must be first determined that the proposed taking is for a public use, before damages can be legitimately assessed ; hence, that an adjudication of the fact that the use is public, without an opportunity of being heard, is the taking of property without due process of law, and inimical to the national constitution. This is a question which challenges the jurisdiction of the court; for, if it be true that a road of public easement such as is provided for by statute is not the taking of property necessary to its establishment for a public use, then the courtis without authority to act, and the proceeding ought to stop whenever attention is called to it. This court has, however, decided that the taking of property for such a purpose is a taking for a public use. Mr. Justice Bean, in Towns v. Klamath County, 33 Or. 225, 232 (53 Pac. 604), says : “The principle to be deduced from the adjudged cases bearing upon the question seems to be that if, by a fair construction and operation of the statute, the road, [374]*374when laid out, is in fact a public road, for the use of all who may desire to use it, the law is not liable to the charge of unconstitutionality, and is valid, though the road may be laid out on the application of, paid for and kept in repair by, the petitioner, and primarily designed for his benefit; but if such road is to become a mere private way, and not open to.the public, the law sanctioning it is void. * * * Within this principle, the act in question is valid. The road provided for is an open, public way, thirty feet in width, which may be traveled by any person who desires to use it. The fact that it may accommodate but a limited portion of the public, or even but a single family, is no objection to the validity of the law providing for its location. The test is whether it is an open, public way, or one for the exclusive use and benefit of the petitioner.”
We are aware that the question whether the use is in fact public is one for ultimate determination, under the constitution, by the judiciary; that while the legislature usually takes the initiative, and, in its adoption of laws looking to the purpose, necessarily passes upon their constitutionality, it is yet within the exclusive and peculiar functions of the courts to determine the question, whenever appropriately brought to their notice : Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205 (60 Am. St. Rep. 818 46 Pac. 790, 34 L. R. A. 368); Apex Transportation Co. v. Garbade, 32 Or. 582 (52 Pac. 573, 54 Pac. 367, 882); Chicago, etc. R. R. Co. v. Wiltse, 116 Ill. 449 (6 N. E. 49); Lewis, Em. Dom. § 158 ; 10 Am. & Eng. Enc. Law (2 ed.), 1069b. The question being one of jurisdiction, it may be heard at any stage of the proceeding, as well in the circuit as in the county court; and, under the settled rulings of this court, it may be heard here for the first time. There is no issue of fact to be joined upon the question. The statute has prescribed what may be [375]*375done, and the matter of determination whether the appropriation of the lands necessary to the establishment of the road is for a public use is capable of being solved, und,er the statute, from the record. No facts that may be proven can present a different issue than such "as the law itself has tendered, and the notice which is required to be given by a service of the order- of appointment of the viewers gives ample opportunity for hearing upon this jurisdictional question, so that it cannot be said that the taking is without due process of law. In reality the county court passed upon the question when it entertained cognizance of the cause against the protests of the plaintiffs that it was without jurisdiction over the subject-matter.
3. The next question, viz., whether the residence of the petitioners could be reached by any public highway, and another closely allied to it, whether it is necessary that such persons and the public shall have ingress and egress to and from the residence of such persons, are political or legislative in their character, and the mode and manner of their ascertainment and determination are matters wholly within the authority of the legislature to devise : Towns v. Klamath County, 33 Or. 225 (53 Pac. 604); Zimmerman v. Canfield, 42 Ohio St. 463 ; People v. Smith, 21 N. Y. 595. The legislature having provided that, upon a sworn petition of the person whose residence is not reached by a convenient public road, the court may appoint viewers, the law has prescribed that this is sufficient to set the court in motion. These facts are not issuable, because not made so by statute, and are sufficient when appearing by the petition, because it fulfills or constitutes the mode of procedure pointed out by the law. As was said in Towns v. Klamath County, 33 Or. 225 (53 Pac. 604), touching the question of the exercise of eminent domain, “it is sufficient for the protection of his [376]*376constitutional rights if he has notice, and is given opportunity at some stage of the proceedings to be heard upon the question of compensation for his land so appropriated.”
4. The third question, viz., whether the road proposed by the petition was located thereby so as to do the least damage to the premises over which it passes, is one to be ascertained by the viewers for the advisement of the court. This is not a preliminary question, as are the preceding ones, to be determined by the court, and essential to the exercise of the power and authority to proceed, but is an issue subsequent to the acquirement of jurisdiction, and constitutes but a method of procedure in laying the road. The procedure must be substantially followed in the establishment of the road ; but the objectors thereto are not permitted to form an issue touching the fact of ‘ least damage ” to be tried in any other way than by the report of the viewers. This they try without issue being made upon the pleadings, and make report of their findings under the law. Like the last preceding questions, it is legislative in its character, and the procedure adopted for the ascertainment of the fact may be pursued without an opportunity for a hearing, where provision is made therefor, upon the ultimate question of damages as compensation for the taking. Nor do we think that the objectors were entitled to a hearing upon the justice of the viewers’ report. That is a matter to be determined from the report itself, and it cannot be disputed by any method not prescribed by statute.
There is another question presented by the record, upon which much stress was laid at the argument. The petition asking for the establishment of the road described the proposed course with some particularity, and the order of the court directed the viewers to lay it out in accordance with the petition, and to assess the damages [377]*377sustained by reason of its establishment. The viewers made report that, “in accordance with the prayer of the petition and the direction and orders of the county court, we proceeded to and did * * * lay out, locate, and establish a road thirty feet in width, commencing,” etc., which follows the line designated in the prayer of the petition, and “ that said road was laid out on the most practical route from the point of commencement to the termination, and upon the route designated in said order appointing us as viewers, and in accordance with the prayer of the petition, and we so laid out said road as to do the least possible damage to the land over which it passed.” It is urged that the order of the county court left no discretion with the viewers in the selection of the route of the road so as to do the least damage to the land over which it passed, and therefore that the court exceeded its powers. True, the order directs that the road shall be located in accordance with the petition, and this is the language of the statute. But the report of the viewers would indicate that they have located it so as to do the least possible damage to the lands over which it passes, while at the same time they show that they located it upon the line designated in the petition. This is equivalent, in our opinion, to saying that the line designated in the petition is the one which, after carefully viewing the situation, in the judgment of the viewers would do the least damage to the property owners, and this is the fulfillment of the statute.
5. It was intimated in the case of Sullivan v. Cline, 33 Or. 260 (54 Pac. 154), that it was probably not the intendment of the statute that the petitioner should set out the exact course on which it is desired the road should be laid, but that it is sufficient if the petition shows the place of residence, that it cannot be reached by any public road, and that it is necessary that the public and himself shall [378]*378have ingress to and egress from such residence. The petition in this case has gone further, however, and has designated the exact route ; and while the.court has directed that the road be located according to the petition, which may imply that it should be located upon the route therein defined, yet the report of the viewers shows that the road so laid out was located-so as to do the least damage to the land through which it passes. The ultimate result was therefore in full accord with the intendment of the statute, and, while it may have'proceeded somewhat irregularly, the purpose of the statute has been sub-served, and the order establishing the road will therefore not be disturbed. The judgment of the court below will be affirmed, and it is so ordered. Affirmed.