Boire v. Yamhill County , 53 Or. 36 ( 1908 )

Opinion by

Mr. Chief Justice Bean.

There are no statements in the complaint showing in what respect the proceedings of the county court establishing the road in question, are alleged to be void and without jurisdiction. Two points are made in the brief: (1) That the intermediate points of the proposed road are not sufficiently designated in the petition; and (2) that there is a material variance between the route of the proposed road as described in the petition and that actually established. The first point does not seem to be insisted upon, and it is enough to say that the description is sufficiently, definite and certain within the rule announced by this court in Ames v. Union County, 17 Or. 600 (22 Pac. 118), and Nelson v. Yamhill County, 41 Or. 560 (69 Pac. 678). The other point is that the road selected by the viewers and actually established by the county court was not upon the route described in the petition. In the petition for the location of the road, a certain point on Otterbrook is designated as one of the intermediate points, from which the road is to run on the south side of said creek to its intersection with the west line of the Spencer donation land claim; and from thence in a northwesterly direction on the most practicable ground to a certain iron pin or stake, the terminal of the road. It is claimed that the road, as viewed out and located by the viewers and established by the county court, is on the north, and not the south, side of Otterbrook, and that, in place of running in a northwesterly direction from the west line of the Spencer donation land claim to the terminal point, it runs in a southwesterly direction for a considerable distance, thus making an obtuse angle with the route as contained in the petition. There are no allegations in the complaint upon which to base either of these contentions. Otter-brook is not mentioned in the record of the county court : except in the petition and the notice. It is not referred to in the report of the viewers nor in the field notes of the road as surveyed and located by them, and there is therefore no means of determining from the record whether it follows the south or north side of such brook. Neither is there anything in the record nor averment in the complaint to show whether the road runs in a northwesterly or southwesterly direction from the west line of the Spencer donation land claim. These are matters of fact aliunde the record, and, if relied upon by plaintiff as a ground for equitable relief, should be averred in the complaint.

There was no error in sustaining the demurrer, and the decree of the court below.is affirmed.

Affirmed.