Moore Mill & Lumber Co. v. Foster ( 1959 )

ON PETITION FOR REHEARING

William E. Walsh, Coos Bay, Hicks, Davis, Tongue & Dale, Portland, for petition. Before Perry,^* Chief Justice, and Rossman, Lusk, Warner, McAllister^** and Sloan, Justices.

ROSSMAN, J.

A petition for rehearing accompanied by a brief has been filed in this case. The petition lists six grounds upon which it is based. One of them is the following:

“The opinion would hold that a timber owner who already has and is using an existing means of access to his timber which is admittedly ‘feasible’ can claim that a ‘necessity’ exists justifying the condemnation of an additional means of access by a private logging road if, in his sole judgment, there would be any advantages in having a private logging road.”

That statement, according to our belief, does not correctly reflect the facts of this case nor the result of our previous opinion. Neither the Sixes River road, which the defendant says the plaintiff should use, nor the Willow Creek road, which the plaintiff wishes to use, reaches the tract of 5,500 acres which the plaintiff plans to log. The nearest approach of the Sixes River road to the 5,500 acre tract is a mile or more from it. Testimony given by the defendant’s own witnesses shows that if the plaintiff is required to use the Sixes River road it will be forced to build an access road a mile or more in length leading from that road to the nearest part of the 5,500 acre tract. A witness whose testimony upon the subject is not criticized stated that the construction of the road will cost $45,000. A belief is warranted that a single access road from the Sixes River road to the 5,500 acre tract will not suffice. The record does not disclose whether the plaintiff owns the land upon which the needed access road or roads would have to be built. According to the record, the plaintiff has never brought any logs from the 5,500 acre tract down the Sixes River road. Accordingly, the statement in the petition for rehearing that the plaintiff “has and is using an existing means of access” to its timber is not correct.

The statement which we quoted from the petition for rehearing refers to the Sixes River road as “feasible” for the plaintiff’s intended purposes. The defendant’s witnesses conceded that the Sixes River road is incapable of accommodating, in addition to its present traffic, the plaintiff’s one hundred log trucks per day which it will employ to carry the logs from the 5,500 acre tract to its mill. The road was not designed to handle traffic of that volume. It is narrow and incapable of accommodating, except at occasional passing places, traffic moving in opposite directions. It cannot serve its present volume together with the plaintiff’s trucks unless improvements are made to it. The defendant’s witness, Norman W. Porteons, in testimony which onr previous opinion quoted, answered “no” to a question which asked him whether he believed that the Sixes River road was a practical and feasible thoroughfare for the removal of the timber from the 5,500 acre tract if it was not improved.

Another of the six bases for the defendant’s petition for rehearing follows:

“The opinion incorrectly holds that if existing public roads must be improved to be ‘suitable’ for hauling an increased volume of logs there is a sufficient ‘necessity’ to condemn private lands for private logging roads unless the landowner can prove that the public officials will perform their duty to provide adequate public roads, whereas the Court cannot properly assume that public officials will not do their duty and the burden in such a case should be on the logging company to prove that the public roads cannot and will not be made ‘suitable’ for hauling an increased volume of logs before private lands can properly be taken for private logging roads.”

We pointed out in our previous decision that school buses and the automobiles of people who live along the Sixes River road use the latter. Loaded log trucks, as more than one witness declared, endanger other users of the thoroughfare. One witness mentioned an instance in which a log truck ran into the ditch adjacent to the road when it met a school bus. Obviously, county courts are required to perform their duties, and the law presumes that they will do so; but we are by no means certain that the local county court would order improvement of the Sixes River road for the accommodation of the plaintiff’s log trucks when a short distance north of the Sixes River road there lies the Willow Creek road which is owned by the plaintiff and was "built for the trucks which will haul logs from the 5,500 acre tract to the mill. If those log trucks use the Willow Creek road they will not endanger the users of the Sixes Biver road, nor will they endanger any other person, for the Willow Creek road is a privately owned thoroughfare. OBS 376.330 and 376.335 do not render it mandatory for a county court to permit a user to improve a county road.

The defendant states, as another basis upon which the petition is predicated, the following:

“In order to justify this result, and although admitting the word ‘necessity’ to be ambiguous, as used in the 1920 Constitutional Amendment, the opinion would completely ignore the legislative history of the amendment and is contrary to express representations made to the people in the 1920 Voters Pamphlet, stating the intended purpose of the amendment to be to provide for timber owners ‘an opportunity to reach main lines of transportation’ without being ‘blocked’ or ‘bottled up’.”

The defendant seems oblivious to the fact that the condemnation action under review was not instituted under the constitutional amendment (Art I, § 18) but under OBS 376.510 which was adopted pursuant to the constitutional amendment. As pointed out in our previous opinion, OBS 376.510 uses the term “reasonably necessary.” It cited decisions of other courts which had experienced no difficulty in ascertaining the meaning of “reasonably necessary.” The term has not been deemed ambiguous. The defendant makes no contention that OBS 376.510 is ambiguous or unconstitutional. Accordingly, there was little occasion to take note of the argument set forth in the Voters Pamphlet. “Seasonable Necessity” encompasses the language employed in the Voters Pamphlet. The arguments advanced in the latter are not conclusive in his favor as the defendant seems to imply.

The other three bases for the petition for a rehearing are in part repetitions of contentions which we considered in preceding paragraphs or present matters to which we will give attention in the remaining portions of this opinion.

The brief in support of the petition for a rehearing imputes the following effect to our previous opinion:

“If you own a farm adjacent to a tract of timber, even though the owner of that tract has an existing means of access to it by a public road which he admits to be feasible, if he thinks that the condemnation of a private logging road would be somewhat cheaper and safer he can cut through the heart of your farm a high-speed logging road, as he pleases.”

We do not believe that our previous opinion warrants that interpretation.

The amendment to Art I, § 18, Constitution of Oregon, and the legislation enacted pursuant to it were not intended to make it easy for one person to appropriate the property of another. Certainly ORS 376.-510 was not designed to authorize the would be condemnor to do “as he pleases.” Eminent domain is not a favorite of the law, and its exercise is subject to judicial scrutiny. One who wishes to take a part of another’s land so as to acquire the right of way for the transportation of logs may have to file, according to ORS 376.505, a map showing the proposed route and also an undertaking for the benefit of those whose property he wishes to appropriate. Property cannot be taken unless the would be condemnor has negotiated in good faith with the owner of the land upon the subject of compensation. If the negotiations upon that subject fail, the would be condemnor may file an eminent domain proceeding. In it he must establish that the taking is “reasonably necessary * * * to promote the transportation of logs.”

In this case, the distinction between proving the “necessity” of condemnation and proving that the “selection of the route” was proper is complicated by these facts: In showing “necessity” the plaintiff endeavored to establish that the only other route available to it was inadequate in the sense that it “bottled up” its operations. In showing an abuse of discretion, the defendant contended that the Sixes Eiver road offered a better way out and therefore the choice of the plaintiff involved such an abuse. In other words, both issues were focused on one of the possible outlets of the plaintiff. However, the defendant argues that the evidence he presented on the comparison of the routes was directed to “the question of whether there was necessity to condemn any route, in view of the existence of another available route.” As we have previously pointed out, there was no other available route in existence, but only a possible route. Once the plaintiff had shown that it was “bottled up” because an apparent way was not practically available to it, it had made out a prima facie case of “necessity” and it was for the trial judge to say whether or not it had sustained its burden of proof, that is, of persuasion.

The issue of reasonable necessity is subject to the close scrutiny of the courts in cases which do not present a clear case of “bottling up” such as the present one. However, once it is shown that there is such “necessity” it is incumbent upon the defendant to show that the chosen route is actually the result of fraud, bad faith, or abuse of discretion. It is in the exercise of the trial judge’s discretion in this latter phase of the case that that judicial officer will not generally undertake to interfere with the condemnor’s engineering judgment in the selection of the route but may properly take note of the fact, if such is the truth, that the proposed road will “cut through the heart of your farm.” The words which we just quoted were taken from the excerpt of the defendant’s brief which is copied above. If the “cut through the heart of your farm” is shown by evidence to be due to fraud, bad faith or abuse of discretion the condemnation proceeding will fail. In short, the courts are empowered to analyze all evidence, including that introduced by the plaintiff in making out his case of “necessity,” which tends to show that the taking is the result of fraud, bad faith or will constitute an abuse of discretion.

The present case does not represent an effort by the plaintiff to “cut through the heart” of a farm. The land which the plaintiff seeks to take is in a mountainous area several miles distant from Highway 101 and is virtually devoid of timber. Photographs show that it is rocky in character; and a witness predicted that in a few years it will be brush land, unfit even for grazing. The defendant does not contend that the plaintiff is undertaking to deprive him of a choice tract of land, but argues that the plaintiff should use the Sixes Eiver road. We believe that the trial judge committed no error when he rejected that argument.

The above disposes of all contentions offered by the petition for a rehearing that need consideration. The petition is denied.