*1
16,3
ping-distances
offer
chart was offered into evi-
appellants
No.
to which
tion
event,
respondents;
court admit-
the record
dence
objection.
In
no
and,
only
page
particular
im-
ted
this one
clearly
that Bell was
shows
Schwartz’s
time,
failure
ruled that sufficient foundation
supervisor, and
to
mediate
Bell’s
speed
(in
form of evidence of
skid
right
control over
exercise his
Schwartz
negli- marks) had
laid to
admission
been
warrant
may
independent
have constituted
that the trial
to
chart. We conclude
gence on
which contributed
Bell’s
court,
exhibit,
admitting
did not
injuries
accident
in the
he sustained
legal
in it.
abuse
discretion vested
Siburg
which thereafter ensued.
v. John-
son,
249 Or.
appealed
The order
from is affirmed.
Lines, 49
v. Tacoma
Veek
Suburban
respondents.
Costs
(1956). The
gent right to con- failing exercise his negli- driving in a
trol a driver who
gent manner. contention appellants’ final admitting erred in
is that
trial court
showing
exhibit
into
as an
a chart
evidence
P.2d 326
published
average
distances,
stopping
municipal corporation
CITY,
BOISE
publication
known as
Idaho Driver’s
By
Through
May
State
its
admissible,
to be
Handbook.
In order
or, Jay
al.,
AMYX,
Plaintiffs-Appel
et
S.
material;
evidence must be relevant
lants,
of the trial
but it is within the discretion
sufficient
court
whether
determine
FAILS,
Mabel C.
widow
and Charles R.
laid
admit such
foundation
Parks,
Parks and
husband and
Joan E.
Keller,
Dewey
chart.
wife, Defendants-Respondents.
;
Fawcett
see
to admit the stop-
bar, only page containing the jecting occupants to an unreasonable reads instruction No. 16 3. The court’s or, injury, occupants know, risk of follows: ordinary care, ought circumstances, “Every person in the exercise under all they unreasonably exposing know, pleasure, must on business and whether safety. danger, ordinary themselves to such are then for his own care exercise up required, self-protection applies to the duty in order to measure ordinary only person care their own an standard of who is the driver to a protection, person automobile, to conduct themselves who is but ordinary person guest pas- merely intel- occupant manner that a such as a an ligence prudence him- senger. conduct would under the same similar circum- self stances. the driver the conduct of “Whenever herein, Conduct, operation as used of the car becomes his action, protest inaction, negligent respect negligent con- involve and such passenger.” degree danger or silence of the of sub- duct creates *2 Gass, Boise, plaintiffs-ap- Elbert for E. pellants. Millar, Boise,
Z. for Reed Fails. Roden, Boise, for William Parks. C. McFADDEN, Justice.
Plaintiff Boise instituted this action Fails, defendant, against who Mabel C. property in- was the record owner of the herein, against volved also Charles R. wife, Parks, Parks E. con- and his Joan purchasers tract property. the Fails sought enjoin the action to respondents encroaching ob- from on and structing designat- (formerly street Illinois Summary street). judgments ed as Ash sought appellant city both the respondents. Summary judg- respondents ment for was entered judgment city appealed. which virtually dispute The facts without issue before this the sole Court provisions whether I.C. § prior as it read to amendment in 1963 are applicable under the facts of this case.
Briefly,
record discloses that in 1902
Joseph
tract
one
H. Gallaher subdivided a
lots,
streets, desig-
blocks and
land into
“Rosedale,
nating
tract as
Gallaher’s
subdivision,
Filing,”
which
Second
recorder
filed in the office
desig-
April
Ash street
nated
of the streets in the subdivi-
as one
time, the
sion.
at some undisclosed
Later
“Illi-
changed
street
name of Ash
high
years
ceases
“I.C.
40-104.—Abandonment of
or used for
ways.
purpose
road not
what-
worked or used for
to be a
—A
high
ceases to be a
ever.”
way
purpose
p. 680,
S.L.1963,
further
Ch.
whatever.”
particulars
S.L.1963,
6, p. 17,
Ch.
amended this section
amended
pertinent
here.
Highways.
“Abandonment of
road es-
—A
by prescription
tablished
and not worked
Street,”
street, adjacent
street
along
nois
the four listed
action.
lots
Block 7.
*3
Illinois street
has never been
filing
plat,
Subsequent to the
by
by
city.
worked
the
the
sold lots to a number of individu
Gallaher
by
2688,
1964
appellant
Ordinance No.
the
describing
property
als
the
in the various
City
Boise
property
annexed the
encom-
conveyances by lot and
as re
block number
passed in the
to the City.
subdivision
plat.
by
ferred
into
the
of such lots
Sales
following
reference
to lot and block
appellant
The
provi
contends that
the
recording of a
constitutes a dedication
inapplicable
sions of
are
I.C.
40-104
§
public
of the streets and
use.
I.C.
by
filing
streets dedicated
the
of a subdivi
(1967 act);
§
§
plat.
respondents
sion
The
assert that this
amendment,
(prior to
first
1967
enacted S.
statutory provision
controlling
is
1893,
127,
97,
p.
L.
now I.C.
93§
p.
Respondents
case here.
contend that
the
50-1312);
Hon,
Boise
v.
14
easterly
street,
half of Illinois
which has
272,
(1908);
Johnston,
pertaining
plats
and their
County.
city
not annex
did
legis- with Ada
The
of the
it was the intent
it clear that
majority
The
prac-
the subdivision until 1964.
a
it could
establish
best
lature to
as
does
opinion holds
orderly growth of
that I.C.
to foster the
tical means
had so in-
apply
legislature
because
villages
this state.
cities,
of
towns and
tended,
legis-
for the
purpose
there
nowas
recognized that
legislature had
to have
pertaining
to enact
vaca-
lature
laws
subdivisions
plats
of
for
the mere
struction,
Ed.,
1930, 1932.”
3rd
Vol.
streets and
§§
or of
of
tion
4,at
P.2d at 361.
merely
plats.
I would
alleys laid out
purpose
that
is
out that one obvious
point
adopt this inter-
reason to
further
One
quicker and
provides a much
California,
this method
pretation is
that
States
vacating streets,
surer method
Utah,
Washington,
iden-
with statutes
etc.,
having
than
to wait for
identical to that
tical or almost
pos-
years
having to face the
and then
case,
held that the failure
in this
have
as
sibility of
determination
to when
a court
a
open
a road within
five-
period
if the
of limitation
run.
year period
it was dedicated as
operated
there-
as an abandonment
addition,
feel
the 1963 amend-
In
I
that
California, the
case was that
of.
In
first
my interpre-
ments to
sustain
Daubenbiss,
Myers
1, 23 P.
84 Cal.
tation.
In
the legislature amended
(1890). This
followed
this
so that it
“A
section
road estab-
Ferroggiaro
Board of Pub-
the case
or used
by prescription
lished
not worked
Works,
Cal.App.
lic
P.
period
(5)
ceases
of five
(1921).
case,
In the latter
the California
whatever.”
purpose
court,
statute,
an identical
interpreting
construing statutes,
generally
it
held
In
said:
“change
in a
language
that a
statute
sufficient dedi-
“But even if this was a
legisla-
change
amendment indicates a
maps
when the
cation at the times
* *
tive intent
Statutes
C.J.S.
filed,
as such
failure to use the streets
Court, in
at
case
an
years worked
for a
McNearney,
McKenney
provisions of
under
abandonment
spoke
point,
(1967),
Code, which
the Political
section 2620 of
stating:
repeal
in 1883.
in force
until
its
“
amended,
pre-
statute
it is
‘When a
“Thus,
the law
while this statute was
sumed
intended it
that
applicable
state,
meaning
ac-
have
different
elsewhere,
county of
Francisco
San
corded
before the amendment.’
five-year
nonuser worked
Marcum,
Wellard v.
street,
and re-
an abandonment
* *
'*
spondent having
been in
adverse
Legislature
whenever
declares
during
pe-
possession
land
an
“to
existing statute is to be amended
thereafter,
continuously
riod and
follows,” etc.,
thereby
read as
evinces
found,
judgment
trial court
must be
an
a sub-
intention to make the new act
affirmed.” 198 P.
that so much
the old one and
stitute
Utah,
similar to Idaho’s
a statute
repeated
only
original act as is
*8
Salt
the case
Sowadzki v.
force,
continued
one is
new
127,
numerous cases is in the hands Commis- King Howell v. sioners, same result. In the case of as where a County, 16 Wash.2d pe- road is not for a worked used sim- (1943), involved a statute which also years, provided by riod of five ours, Washington Supreme amended, ilar (before S.L. Court held: Ch. at 267).” 90 Idaho “ * * * ours). at (emphasis the statute effected a platted tracts vacation of streets recogni- seem to indicate a would unopened pub which had remained by tion the statute would Court space years prior lic use for a non-usage. permit by abandonment supra Crowley, Tamblin Ada, my opinion County It is that the So, 982], Wash. 168 P. we [99 by non-usage for a of more than appel are constrained to hold after the dedication of Illinois lants are the the va Sandell owners of Street, right to the dedi- abandoned its portion cated avenue in con Hume long cated street before the area an- troversy by ownership virtue of by City Boise; nexed that I.C. § it, abutting freed from lots self-executing; and that 40-104 was easement created open right Boise has no P. dedication Kenwood Park.” it desires to claim abandoned street unless 2d 81-82. right-of-way eminent domain. con- 40-104 has never been While I.C. § courts, strued the Idaho Su- BAKES,
preme J., concurs the dissent. Court in the case of Mosman v.