63 P. 614 | Or. | 1901
after stating the facts, delivered the opinion of the court.
The plaintiffs’ cause of action depends upon whether the oil tank was being placed within and upon a public county road. If it was, the right of recovery is clear, the other conditions being that it must have been the proximate cause of the injury, which must have been special and peculiar, — other and greater than that sustained by the public generally: Milarkey v. Foster, 6 Or. 378 (25 Am. Rep. 531); Wakeman v. Wilbur, 147 N. Y. 657 (42 N. E. 341).
The plaintiffs, however, produced evidence tending to show that there had been an adverse and continuous user by the public, under claim of right, of a way passing over the ground occupied by the oil tank for a period of time extending from 1867 to 1880, and insist that it was competent for the jury to determine from the nature of the user whether the highway had been established thereby. If so established in 1880, the title thus acquired must be presumed to have continued up to the time of the accident, unless the contrary is shown. There was evidence, upon the other hand, from which it may reasonably be inferred that the road, as established up to 1880, had subsequently been abandoned at the point referred to by nonuser, caused, perhaps, by the encroachment of the Oregon Railway & Navigation Company in constructing the ice house within and upon the way. It was held, in Grady v. Dundon, 30 Or. 333 (47 Pac. 915), that uninterrupted obstruction of a county road for more than ten years bars the right of the public by adverse possession. But the way at this point, so^ far as the. evidence tends to show, was established, if at all, by prescription, that is, by user under claim of right. As a way may be obtained and
See note, Highways by User — Discontinuance by Nonuser.
See note of 25 pages, Highways by User.
See note, Right of Public to Use Entire Width of Highway.
See note, Highways by User and Discontinuance by Nonuser.