Strome v. Lane County

183 P.3d 237

219 Or. App. 519

Lela STROME, Plaintiff-Appellant, v. LANE COUNTY, Defendant-Respondent.

160600476.

A133090.

Court of Appeals of Oregon.

Argued and Submitted on January 3, 2008.

Decided April 30, 2008.

George B. Heilig argued the cause for appellant. With him on the briefs was Cable Huston Benedict Haagensen & Lloyd, Portland.

Marc Kardell, Lane County Office of Legal Counsel, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

SCHUMAN, J.

Plaintiff sought a judgment declaring that a road running through her property was owned by her and not by defendant Lane County, and an injunction barring the county from proceeding with the process of "legalizing" the road — that is, the process of conducting a survey and issuing an order to eliminate doubts as to the road's location and its lawful establishment as a county road. See ORS 368.201-368.221 (describing process); Shotgun Creek Ranch, LLC v. Crook County, 219 Or.App. 375, 182 P.3d 312 (2008). Plaintiff argued that the county had no jurisdiction to proceed with legalizing the road until the circuit court had determined that the road was, in fact, a county road. The trial court disagreed, and so do we. We conclude that the county had statutory authority to proceed with legalization, and we therefore affirm.

The relevant facts are not in dispute. Plaintiff's land abuts a road in Lane County known as Hulbert Lake Road. In June 2005, the county, believing that Hulbert Lake Road was a road originally laid out in 1855 as County Road Number 160, undertook the legalization process in order to eliminate doubts as to the establishment and location of that road. The statute authorizing legalization of county roads provides:

"A county governing body may initiate proceedings to legalize a county road under ORS 368.201 to 368.221 if any of the following conditions exist:

"(1) If, through omission or defect, doubt exists as to the legal establishment or evidence of establishment of a public road.

"(2) If the location of the road cannot be accurately determined due to:

"(a) Numerous alterations of the road;

"(b) A defective survey of the road or adjacent property; or

"(c) Loss or destruction of the original survey of the road.

"(3) If the road as traveled and used for 10 years or more does not conform to the location of a road described in the county records."

ORS 368.201. We have described the process as follows:

"Once a county decides to initiate the legalization process, it must authorize a survey `to determine the location of the road.' ORS 368.206(1)(a). The survey is then filed with the county governing body, which, after notice, holds a legalization proceeding. ORS 368.206(1)(c). The proceeding is conducted by the county's governing body and, although that body must allow `any person' to present relevant information, ORS 368.206(2), and that information must be `considered,' the governing body can decide either to abandon or complete the legalization guided only by `whether legalization of the road is in the public interest.' ORS 368.216(1). If the governing body chooses to complete the legalization, it must `enter an order' to that effect and cause the order to be recorded. ORS 368.216(1), (2); see also ORS 368.106(1). That order establishes that the road `exists as shown on the order legalizing' it. ORS 368.216(4)(b). The county governing body, however, must compensate the owner of any structure that is encroached upon by the legalized road, if that owner meets certain requirements. ORS 368.211. In short, the legalization process begins with uncertainty as to the establishment or location (or both) of a county road, then moves to a statutory process involving surveys and public hearings, and ends with either a decision not to legalize, or a definitive order declaring the existence and location of the county road."

Shotgun Creek Ranch, LLC, 219 Or.App. at 378, 182 P.3d 312.

Plaintiff believed that Hulbert Lake Road and County Road 160 were not the same road; Hulbert Lake Road, she believed, was a private road unlawfully taken by the county. After the county announced its intention to legalize the road pursuant to ORS 368.206(1)(a), but before the hearings called for in ORS 368.206(1)(c), plaintiff filed an action in circuit court seeking, first, a declaration "that County Road 160 is not the same road as Hulbert Lake Road and that legalization under ORS 368.201 through 368.221 is barred" and, second, an injunction to stop the county "from continuing to pursue legalization under the statute." The county filed a motion for summary judgment; after a hearing, the trial court denied that motion and issued a temporary restraining order (TRO) prohibiting the county from continuing with the legalization process. Subsequently, after a hearing to determine whether the TRO should be continued, the court (presided over by a different judge) concluded that it did not have jurisdiction.¹ It dissolved the TRO, denied plaintiff's motion for an injunction, and dismissed the case. Subsequently, a judgment was entered in favor of the county. This appeal followed.

The issue in this case is not entirely clear from the parties' arguments below or their briefs in this court. In her complaint, plaintiff alleged only that the county was attempting to legalize the wrong road; she sought a declaration to that effect and an injunction against continuing the process. The county's answer properly characterized the issue as one of statutory authority, arguing that the county's governing body had authority under ORS 368.201 to initiate and carry out the legalization process. Thereafter, however, the parties began to refer to the issue as one of "jurisdiction." At the TRO hearing, that characterization provided the background to, and justification for, the court's decision. The court issued the TRO on the ground that the circuit court had exclusive "jurisdiction" to determine whether plaintiff owned Hulbert Lake Road and that, by continuing with the legalization process, the county would interfere with the court's determination. The court, in ruling from the bench, stated,

"I will grant a TRO saying the county isn't going to do anything until I make a decision or some other judge has made a decision on the seminal issue on the declaratory judgment. They have a right to go forward on the declaratory judgment as to whether or not the county has any jurisdiction whatsoever over this matter. Because if it's not the right road, the county has no jurisdiction on this matter. * * * And this is a matter for the circuit court to determine, and not for the county to go ahead and try to go around our back."

The court's written order reflected this thinking: "The reasons for granting this temporary restraining order are that Lane County's action with regard to the legalization proceedings * * * tend to render the judgment of the Court in this matter ineffectual." When, after another round of arguments the second judge reached a different conclusion and dismissed the case, he did so without explanation except to state that the court "found that it lacked subject-matter jurisdiction in this case." As a result of that dismissal, the county was able to proceed with the...