Henderson v. City of Sheridan , 97 Or. 149 ( 1920 )

McBRIDE, C. J.

The object of requiring notice of the proposed improvement, and of incorporating therein a description of the improvement with convenient certainty, is to enable the property owners abutting the street to be improved to make a reasonable estimate of the probable cost, so as to determine whether or not he will remonstrate against the proceeding. Of course, such description is not required to be technically accurate, but only as nearly so as the circumstances will reasonably permit. Such a description, with plans and specifications, must be made in any event, before the contract is let; and a preliminary estimate and description can usually be made before giving the notice of intention to improve, without materially adding to the expense. • While this is not required by the charter, and no technical preliminary estimate is required in any event, yet there should be something approaching reasonable certainty in the description of the main characteristics of the proposed improvement.

Here the property holder is left entirely in the dark as to the thickness or depth of the improvement which was upon the street, upon which the grade had been established, and which had been theretofore improved only by the voluntary act of the property owners. What are the uncertainties here?

(1) The street is to be improved “by resurfacing it from curb to curb with a wearing surface- of asphaltic concrete pavement.” How thick is this wearing surface to be? The notice does not state and in the absence of such statement how is the property owner to be enabled to make any estimate of the cost.

(2) The improvement is to be further continued “by bringing said surface to the proper grade, crown, thickness and wearing surface.” What is to he the proper grade, crown, thickness, and wearing surface?

What is a “proper” grade? Certainly not the lawful grade, because none had been established. It is clear, therefore, that what was to be the proper grade, thickness, crown, and wearing surface were matters left still in the breast of the council or city engineer, and not disclosed to the abutting property owners, so that they might estimate the expense they were likely to incur, and determine their course in relation to making or not making a protest.

We are of the opinion that the notice was not sufficiently definite to give the city jurisdiction to make the improvement. This exact question in its present form has not been passed upon by this court, but this opinion follows the reasoning of the decisions in Ladd v. Spencer, 23 Or. 193 (31 Pac. 474); Clinton v. Portland, 26 Or. 410 (38 Pac. 407); Bank of Columbia v. Portland, 41 Or. 1 (67 Pac. 112); Rubin v. Salem, 58 Or. 91 (112 Pac. 713); Jones v. Salem, 63 Or. 126 (123 Pac. 1096); Dyer v. Bandon, 68 Or. 406 (136 Pac. 652).

The decree of the Circuit Court is affirmed.'

Affirmed.

Bean, Johns, and Bennett, JJ., concur.