Appeal from Circuit Court, Union County. W. F. Brownton, Judge.
Leeroy O. Ehlers, Pendleton, argued the cause for appellants. With him on the briefs were Fabre & Ehlers, Pendleton.
Carl G. Helm, La Grande, argued the cause for respondent. With him on the brief were Helm, Wasley & Monce, La Grande.
Fort, Judge. Langtry, Presiding Judge, and Foley, Judge.
Plaintiffs are abutting landowners on Allium Street in La Grande. They brought suit in the circuit court seeking a declaration that the city has a duty to repair the street and a mandatory injunction requiring defendant to make presently needed repairs. They appeal an adverse decision.
Allium Street is platted as a 350 foot long street having a 50 foot width in the Modelaire Heights subdivision. It dead-ends part way up a sharply rising hillside. It is conceded that the street was dedicated to the use of the public in 1962 by the dedicators of the plat and that the city Planning Commission duly approved the plat prior to its filing.
Plaintiffs Paul and Fern Prosch bought a lot from the developer and built their home on it in 1964. They had their building contractor grade, widen and gravel the previously wholly unimproved road up to their lot. This was their sole access to it. The actual width of the portion of the road which they improved varied between 20 and 30 feet.*fn1
Plaintiff Rose Pointon owns a house between the Prosch's house and the point where Allium Street runs into Modelaire Drive. However, that portion of Allium Street above the Prosch's driveway which fronts upon the vacant lots owned by the Bruechers, also plaintiffs herein, has not been further improved. The Bruechers have not built upon their lots, which are farther up the hill and at the end of Allium Street as platted. Indeed their lots close off any further possible extension of that street.
Subsequently, as a result of removal of dirt by an abutting landowner on the other side of the street, the edge of the roadway across Allium Street from the Prosches began to settle and erode away. Defendant city did place some rough temporary fill material in the slide area at the request of the plaintiffs on at least two occasions, in 1967 and 1968. The condition of the road continued to worsen in that area.
Accordingly, defendant thereafter placed "caution" barricades on occasion around the slide area and placed a standard "street closed" sign at the beginning of Allium Street in October 1970. During one winter
defendant did on one occasion scatter some gravel on a portion of Allium Street because its icy condition made it ...