174 P. 1153 | Or. | 1918
Aside from the legal questions involved, the plaintiffs claim that the improvement is unjustified and will destroy the street for residence purposes; also, that the expense of the improvement would nearly confiscate the adjoining lots. The plaintiffs claim that the Clement and Cathcart plats are identical and that the street is laid upon the ground in accordance therewith.
The defendants claim that the Clement plat differs from the Cathcart plat in the location of the North and South Street lines, claiming that under the Clement plat the street lines run due north and south while under the Cathcart plat and Hall plat, made prior to 1875, they ran north one degree east.
In 1905, one Polley made a survey of the street under the direction of the city council according to their con
Plaintiffs, over the objections of defendants, introduced testimony showing that the Clement plat was made by an architect who copied a portion of the Cathcart plat. There was not a complete survey made on the ground at the time the Clement plat was prepared. At that time John Hall, a surveyor, at the instigation of the owner of the property, laid off the lines of Pine and some other streets showing the frontage and fence lines of the lot owners. He took the base line of the Cathcart plat as the same was then established in the center of Pine Street and surveyed the lines of the street a distance of 30 feet on either side of such base line, and parallel thereto. Along these street lines he drove stakes or pegs. This information was furnished the draftsman of the Clement plat and incorporated therein, the exterior lines of the street and front lines of the lots being marked thereon by a red dotted line. There are no other bearings or field-notes on the Clement plat. The only other directions being the designation of the points of the compass ; the top of the map representing north. Apparently the lines of First Street, or Pine Street, as it was then called, run north and south, or nearly so. There is an iron pipe set in the ground at the south end of the center line of Pine Street. This is shown on the Clement plat. This point is not in dispute. The testimony shows that formerly there was such a pipe set at the north end of this line as surveyed by Cathcart and Hall. The improvements on Pine Street, such as'buildings, fences and sidewalks, have
By running the lines of the street due north, according to the Polley survey, they diverge to the west of the Cathcart line about two and four-tenths feet to each 100 feet as demonstrated by the survey of Mr. A. B. Gidley, a civil engineer, and the west line of the street would intersect several dwelling-houses situated on the lots of plaintiffs. Some of these houses have been occupied where they now stand since the seventies and eighties, having been remodeled and improved.
The reason of the objection of the defendants to the evidence of the Cathcart survey and plat is that parol evidence is not admissible to change a plat of a city or town, made by the owner of the property, in a collateral suit. This rule is unquestioned, but the Clement plat taken by itself is somewhat ambiguous. It is impossible to tell with the naked eye whether or not the lines of this street run exactly north and south.
It was peculiarly appropriate to explain the Clement plat by oral evidence. Such evidence did not change that instrument. It was also competent to show the survey of the lines of Pine Street by John Hall, which were delineated on the Clement map by red lines. It is clearly shown by the evidence that in making the Clement plat, a part of the Cathcart plat was adopted. The Cathcart survey, in so far as the same related to the land embraced in the Clement plat, was for all practical purposes also adopted. No other complete survey of the land was made. The portion surveyed by Mr. Hall conformed to the Cathcart survey, and
We concur in the finding of the trial court that the lines of First Street North, as surveyed by -Cathcart and Hall, are the true boundaries of the street, as represented upon the Clement map.
“That the ten (10) feet in breadth on the East and West sides of said Pine Street and not included in the forty feet heretofore mentioned be and the same is hereby vacated for the purpose of improving the appearance and breadth of said street and that the said ten (10) feet be and the same is hereby dedicated other adjoining lot owners. * * Provided, and such vacation and dedication is made with the distinct provision that no buildings shall be erected, moved on to or permitted to remain on any portion of said strip of ten feet and that nothing in the shape of a structure save and excepting a fence, not to exceed in height 4% feet shall be built thereon. And it is further provided that should any of the adjoining lot owners permit or allow any of the provisions aforesaid to be broken or in any way violated the said strip of ten (10) feet fronting his said lot shall immediately revert to and vest in said town as though the vacation and dedication therein had not been made, during the continuance of such violation and this section Is enacted subject specially to the provisions and restrictions aforesaid. ’ ’
The contention of the plaintiffs is that the city is equitably estopped from asserting a right to the 10-foot strip as a street by reason of its laches. The rule in regard to laches in a matter of this nature is
“But, while the rule may be that the ordinary statute of limitations as such cannot be set up to defeat the right of the public to the use of a street or highway, there may grow up, in consequence of the laches of the public authorities, private rights of more persuasive force in the particular case than that of the public, and if ‘acts are done by an adjoining proprietor which indicate that he is in good faith claiming as his own that which is, in fact, a part of the highway, and is expending money on the faith of his claim, by adjusting his property to the highway as he supposes or claims it to be, the public will be estopped’ Citing authorities.
We hold that First Street North, formerly Pine Street, is 60 feet in width. With the modification as to the width of the street as specified, the decree of the
Modified.