KELLY, J.
The first assignment of error is based upon the action of the trial court in overruling defendant’s objection to the introduction of any testimony by plaintiff. The question thus presented is whether this action can be maintained against the county. It is a well-recognized principle that in the absence of a statute, either expressly or impliedly authorizing it, an action based upon tort cannot be prosecuted against a county.
It is a well-recognized rule in this state that a plaintiff may waive a tort and declare upon an implied contract. Moreover, the rule has been announced by this court that a county may be sued for trespass upon private property when such invasion practically amounts to a taking of any part of the premises without condemnation:
Theiler v. Tillamook Co.,
75 Or. 214 (146 P. 828). A careful consideration of the complaint in the case at bar leads us to the conclusion that it states facts disclosing an appropriation of property by defendant, county. Such appropriation implies an agreement to pay the damages attendant thereupon.
After alleging plaintiff’s ownership of a quarter section of land in Union county, Oregon, plaintiff further sets forth in the complaint:
“That on or about July 1st, 1927, said defendants wrongfully and unlawfully entered in and upon said premises and forcibly dispossessed plaintiff of approximately five acres thereof, and at all times since said date have unlawfully and wrongfully continued to withhold possession from plaintiff and deprive her of the use thereof; that said defendants unlawfully and wrongfully harvested a crop of oats then growing thereon and appropriated the same to their own use; that said defendants unlawfully dug two parallel ditches approximately four feet deep and about sixty feet apart diagonally across said premises and constructed an embankment between them and covered said embankment with rock and gravel, thereby permanently destroying the land contained therein for farming and dairying purposes; that said defendants unlawfully constructed a fence on either side of said ditches; that said fences were so constructed that approximately seventy acres of land was on the westerly side thereof; that said defendants scattered spools and other discarded material over various parts of the remainder of said premises and that plaintiff in harvesting a part of the crop growing thereon being unaware of the presence of such material run into one of said spools and broke and damaged a mower belonging to her.”
The characteristically original manner employed by plaintiff’s counsel in describing a highway as an embankment covered with rock and gravel between parallel ditches does not alter the obvious and admitted fact that the appropriation of the premises was for the purpose of establishing a market road thereupon. Unquestionably, this is a taking of property for which compensation must be made.
In
Gearin v. Marion County,
110 Or. 390 (223 P. 929), Mr. Justice Rand, speaking for the court, clearly indicates the distinction between those cases where the cause of action is based upon incidental damages resulting from tort and those cases where, as in the case at bar, property is alleged to have been taken within the meaning of that term as used in the constitution.
A question analogous to the one considered here Was adjudicated in the case of O.
R. & N. Co. v. McDonald,
58 Or. 228 (112 P. 413, 32 L. R. A. (N. S.) 117). That was a suit in equity instituted by the railroad company to restrain the defendants from interfering with the completion of its roadway and track through def end-ant’s premises after forfeiture of its right of way by failure to construct same within the time specified in its contract. The road was completed under the protection of preliminary injunction. When the case was tried, it was decided in favor of defendants. This court feed the amount of damages to be paid by plaintiff to defendants, thus recognizing the right of a property owner to compensation for property taken without condemnation. It is true that the case cited was not an action at law, but a suit in equity. Its decree conferred title to the right of way, while, at best, the judgment in the instant case would but constitute ground of estoppel against the assertion that the county had no easement. In the case at bar, however, we have the benefit, not available in the case cited, of the verdict of a jury.
Error is also assigned because the trial court overruled defendant’s motion to dismiss. The same reason is urged in support of this motion as that which was submitted in support of defendant’s objection to the introduction of testimony. The trial court did not err either in overruling said objection or said motion.
Error is also predicated upon the action of the trial court in sustaining plaintiff’s objection to the introduction in evidence by defendant of the record of an attempted condemnation proceeding instituted June 27, 1927, of a suit for an injunction instituted July 28, 1927, of an order of temporary injunction issued July 28, 1927, and also of a proceeding instituted December 6,1928, by means of a resolution adopted by the county court of Union county to make the road improvement in suit. The trial court did not err in that respect. As to the first condemnation proceeding, the court in which that proceeding was instituted, was without jurisdiction because of a failure to allege that a resolution was duly adopted to locate the highway in question and that notice thereof was given:
Kerns v. Union County,
123 Or. 103, 107 (261 P. 76). The record of the suit for injunction was inadmissible. The order of temporary injunction restraining plaintiff from interfering with defendant’s entry upon her land was void because no bond had been filed as provided by statute. The suit for injunction resulted in a dismissal thereof.
As to the record of the subsequent proceeding in the county court, as the learned trial judge held, there is no pleading to support its introduction in evidence. It is expressly admitted in the answer “that no damages have been paid.” In a word, the answer consists only of admissions and denials. Nothing in the nature of payment, confession and avoidance, accord and satisfaction, or res judicata is alleged.
Objections were repeatedly urged- to questions as to the amount of plaintiff’s damages. In nearly every instance, these objections were overruled. In this respect, wide latitude was given.
As illustrative of the state of the' record in this respect, we note the testimony of witness Walter Richards. This witness testified that he had lived in Union county, Oregon, for about thirty-two years and that until the last two years he had been engaged in farming in said county; that for about twenty-four years he had been closely acquainted with plaintiff’s property.
He was asked what the effect would be upon plaintiff’s farm, or any other similar farm, to divide it diagonally in substantially equal parts. To this, objection was interposed as being an effort to fix the same damages that were determined in a proceeding by which the damage to this property was determined and before which this plaintiff submitted her same cause of action.
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KELLY, J.
The first assignment of error is based upon the action of the trial court in overruling defendant’s objection to the introduction of any testimony by plaintiff. The question thus presented is whether this action can be maintained against the county. It is a well-recognized principle that in the absence of a statute, either expressly or impliedly authorizing it, an action based upon tort cannot be prosecuted against a county.
It is a well-recognized rule in this state that a plaintiff may waive a tort and declare upon an implied contract. Moreover, the rule has been announced by this court that a county may be sued for trespass upon private property when such invasion practically amounts to a taking of any part of the premises without condemnation:
Theiler v. Tillamook Co.,
75 Or. 214 (146 P. 828). A careful consideration of the complaint in the case at bar leads us to the conclusion that it states facts disclosing an appropriation of property by defendant, county. Such appropriation implies an agreement to pay the damages attendant thereupon.
After alleging plaintiff’s ownership of a quarter section of land in Union county, Oregon, plaintiff further sets forth in the complaint:
“That on or about July 1st, 1927, said defendants wrongfully and unlawfully entered in and upon said premises and forcibly dispossessed plaintiff of approximately five acres thereof, and at all times since said date have unlawfully and wrongfully continued to withhold possession from plaintiff and deprive her of the use thereof; that said defendants unlawfully and wrongfully harvested a crop of oats then growing thereon and appropriated the same to their own use; that said defendants unlawfully dug two parallel ditches approximately four feet deep and about sixty feet apart diagonally across said premises and constructed an embankment between them and covered said embankment with rock and gravel, thereby permanently destroying the land contained therein for farming and dairying purposes; that said defendants unlawfully constructed a fence on either side of said ditches; that said fences were so constructed that approximately seventy acres of land was on the westerly side thereof; that said defendants scattered spools and other discarded material over various parts of the remainder of said premises and that plaintiff in harvesting a part of the crop growing thereon being unaware of the presence of such material run into one of said spools and broke and damaged a mower belonging to her.”
The characteristically original manner employed by plaintiff’s counsel in describing a highway as an embankment covered with rock and gravel between parallel ditches does not alter the obvious and admitted fact that the appropriation of the premises was for the purpose of establishing a market road thereupon. Unquestionably, this is a taking of property for which compensation must be made.
In
Gearin v. Marion County,
110 Or. 390 (223 P. 929), Mr. Justice Rand, speaking for the court, clearly indicates the distinction between those cases where the cause of action is based upon incidental damages resulting from tort and those cases where, as in the case at bar, property is alleged to have been taken within the meaning of that term as used in the constitution.
A question analogous to the one considered here Was adjudicated in the case of O.
R. & N. Co. v. McDonald,
58 Or. 228 (112 P. 413, 32 L. R. A. (N. S.) 117). That was a suit in equity instituted by the railroad company to restrain the defendants from interfering with the completion of its roadway and track through def end-ant’s premises after forfeiture of its right of way by failure to construct same within the time specified in its contract. The road was completed under the protection of preliminary injunction. When the case was tried, it was decided in favor of defendants. This court feed the amount of damages to be paid by plaintiff to defendants, thus recognizing the right of a property owner to compensation for property taken without condemnation. It is true that the case cited was not an action at law, but a suit in equity. Its decree conferred title to the right of way, while, at best, the judgment in the instant case would but constitute ground of estoppel against the assertion that the county had no easement. In the case at bar, however, we have the benefit, not available in the case cited, of the verdict of a jury.
Error is also assigned because the trial court overruled defendant’s motion to dismiss. The same reason is urged in support of this motion as that which was submitted in support of defendant’s objection to the introduction of testimony. The trial court did not err either in overruling said objection or said motion.
Error is also predicated upon the action of the trial court in sustaining plaintiff’s objection to the introduction in evidence by defendant of the record of an attempted condemnation proceeding instituted June 27, 1927, of a suit for an injunction instituted July 28, 1927, of an order of temporary injunction issued July 28, 1927, and also of a proceeding instituted December 6,1928, by means of a resolution adopted by the county court of Union county to make the road improvement in suit. The trial court did not err in that respect. As to the first condemnation proceeding, the court in which that proceeding was instituted, was without jurisdiction because of a failure to allege that a resolution was duly adopted to locate the highway in question and that notice thereof was given:
Kerns v. Union County,
123 Or. 103, 107 (261 P. 76). The record of the suit for injunction was inadmissible. The order of temporary injunction restraining plaintiff from interfering with defendant’s entry upon her land was void because no bond had been filed as provided by statute. The suit for injunction resulted in a dismissal thereof.
As to the record of the subsequent proceeding in the county court, as the learned trial judge held, there is no pleading to support its introduction in evidence. It is expressly admitted in the answer “that no damages have been paid.” In a word, the answer consists only of admissions and denials. Nothing in the nature of payment, confession and avoidance, accord and satisfaction, or res judicata is alleged.
Objections were repeatedly urged- to questions as to the amount of plaintiff’s damages. In nearly every instance, these objections were overruled. In this respect, wide latitude was given.
As illustrative of the state of the' record in this respect, we note the testimony of witness Walter Richards. This witness testified that he had lived in Union county, Oregon, for about thirty-two years and that until the last two years he had been engaged in farming in said county; that for about twenty-four years he had been closely acquainted with plaintiff’s property.
He was asked what the effect would be upon plaintiff’s farm, or any other similar farm, to divide it diagonally in substantially equal parts. To this, objection was interposed as being an effort to fix the same damages that were determined in a proceeding by which the damage to this property was determined and before which this plaintiff submitted her same cause of action. This objection was overruled. We quote the remainder of the direct examination of this witness:
“A. It would be an awful nuisance to have that farm divided with a highway. The way it was you could harvest it any angle but now you will have to be crossing this highway and there will be some expenses to it.
“Q. What kind of farming was done on that place was there any dairying?
“A. Not then; it was in grain then all but a small piece of meadow land down about the middle of the place.
“Q. Did this strip taken through there — did that go through this meadow?
‘ ‘ A. A part of the meadow in that, but it was mostly oats.
“Q. You have been over the place many times since this strip was taken through the Kern’s place?
“A. Yes sir, along the road.
“Q. Since it has been used as a highway you have been over it?
“A. Yes sir.
“Q. What would you say as to the damage to the place resulting from the taking of that strip through there ?
“Mr. Devers: We object to that in behalf of the county and county officials for the reason that witness has not shown himself qualified; and for the further reason it is an effort to fix some other or additional damages than were determined in the tribunal that once passed upon the matter and before which this plaintiff went with her claim for damages.
“The Court: Objection is overruled.
“Mr. Devers: May we have an exception.
‘ ‘ The Court: You may.
“Mr. Fisk: And I object on the further ground it is not the proper measure of damages.
“A. It would damage the land half, if I was farming it.
“Mr. Devers: We move to strike out the answer and that the jury be instructed to disregard it.
“The Court: Motion is denied.
“Mr. Devers: We ask for an exception.
“The Court: Exception is allowed.
“Mr. Ringo: That is all.”
We also refer to the testimony of witness C. E. Lawson, who has lived in Union county eighteen years and who is engaged in stock raising in said county, who owns a 960-acre ranch there, and who was acquainted with the premises in suit, and had passed by them before the road was put through and observed the crops. This witness was asked the following questions:
“Q. What would you say as to the damages there to the property as a result of taking this strip of five acres through the center of it and dividing the place.
“Mr. Devers: Objected to on the ground that the plaintiff has not shown himself qualified to testify
on such matter and for the further reason it is an effort to establish damages, the same damages that the plaintiff sought to establish in presenting her claim to the county court and that tribunal passed upon the matter and from the findings of that court she did not appeal.
“Mr. Devers: We ask an exception.
“A. I would think from $2500 to $3000 anyway.
“Mr. Bingo: You may cross-examine.”
A similar question was propounded to several other witnesses. In one instance at least the objection interposed by appealing defendant was amplified to include as a further reason that “the answer (question) does not call for the proper measure of damages.” These objections were overruled and the amount of alleged damages stated in terms of dollars and cents by the witnesses.
We do not approve this method of eliciting testimony as to alleged damages in cases of this character. As affecting the record of this case, however, we are of the opinion that a reversal ought not to be ordered because of it.
The last assignment of error is based upon the following:
“Certificate of Official Beporter.
“I, W. L. Patterson, official reporter do hereby certify that on the morning of November 12, 1931, the Hon. C. H. McColloch, the trial judge dictated to me the following statement, requesting me to make the same a part of my official stenographic record of the trial, viz:
“The Court: After said cause was submitted to the jury the jury asked to be permitted to ask the court a question. Thereupon the foreman of the jury propounded the following question to the court:
“Jury Foreman: The jury wishes to know that if in the event the jury finds for the plaintiff in a certain sum, will the plaintiff have the right to cash the county warrant in addition to such amount stated in the verdict?
“The court answered the question by telling the jury that the plaintiff would not have such right.
“After the verdict was returned into court, counsel for defendants Union County, Oregon, U. G. Couch, W. W. Stevens and W. R. Ledbetter took exceptions to the court’s answer to said question in that he contended that it was an instruction in conflict with the issues and instructions already given, which exception was allowed by the court.
“W. L. Patterson,
‘
‘
Official Reporter. ’ ’
It has been held repeatedly that a litigant cannot sit by without objection, exception or protest until a verdict has been returned knowing that error has been committed; thus gamble upon the result of the jury’s deliberations and, then, if an adverse verdict be returned, be heard to urge such error as ground for a new trial. No exception was taken to the instruction at such a time as to allow an opportunity to correct the mistake, if any, and, hence, we decline to consider the question.
The judgment of the circuit court is affirmed.
Belt, J., not sitting.
Rehearing granted and former opinion adhered to December 20, 1932