Chapman v. Dean

115 P. 154 | Or. | 1911

Mr. JusticeBurnett

delivered the opinion of the court.

1. The defendants avow that they are constantly making use of the premises in question as a landing place, and that they will continue to do so. At the hearing they offered no proof of their alleged license to operate a ferry at that point. The attempt to claim under a prescriptive right existing in the public is futile, for the public cannot so acquire a right to use private property bordering on navigable water as a public landing to receive and discharge passengers and freight: Post v. Pearsall, 22 Wend. (N. Y.) 425; Thomas v. Ford, 63 Md. 346 (52 Am. Rep. 513); Talbott v. Grace, 30 Ind. 389 (95 Am. Dec. 704).

2. To prevail on such a title, the defendants must prescribe in their own right and that of their predecessors. In other words, they must plead and prove title by adverse possession. To this there are five essential elements necessary : First, the possession must be hostile and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and, fifth, it must be continuous. 1 Am. & Eng. Enc. Law (2 ed.) 795; Jasperson v. Scharinkow, 150 Fed. 571 (80 C. C. A. 373: 15 L. R. A. (N. S.) 1178, and notes; McNear v. Guistin, 50 Or. 377 (92 Pac. 1075); Talbot v. Cook, 56 Or. 117 (112 Pac. 709).

3. The testimony shows that these landings are made upon plaintiffs’ premises during the several months of high water on the Columbia River, and that they have been more or less interrupted, sometimes by fences and sometimes by the stage of the water. There is no showing that this use of the bank has been otherwise than by acquiescence or permission of the landowner, constituting a mere revocable license. These essential elements of adverse possession are wholly lacking in the proof. It is claimed also by the defendants that there is a public way which has been in use for more than 20 years adjacent to the slough from which the landings in question are made, and that they are exercising a right to land upon the public highway which they are entitled to enjoy without hindrance from the plaintiffs. But the testimony shows that this road is merely adjacent to the slough, and at all points there is a narrow strip of land between the ground actually occupied by travel and the bank of the slough upon which the boats land. Hence parties leaving the boats at those points in going to the road would necessarily cross the small part of plaintiffs’ land, and hence be guilty of at least a technical trespass.

4. The principal question in the case is whether injunction will lie to prevent continued trespass. Originally, the rule was that injunction would not lie in the first instance prior to a judgment at law to prevent trespass, unless the threatened injury was such as would cause permanent and irreparable injury to the freehold, such as removing ores from mines, or cutting down choice shrubbery, or destroying dwelling houses or the like, or in the further instance that the defendant was insolvent. Smith v. Gardner, 12 Or. 221 (6 Pac. 771: 53 Am. Rep. 342); Mendenhall v. Harrisburg W. P. Co., 27 Or. 38 (39 Pac. 399); Garrett v. Bishop, 27 Or. 349 (41 Pac. 10); Moore v. Holliday, 43 Or. 243 (72 Pac. 801: 99 Am. St. Rep. 724). But later authorities establish the doctrine that, where the trespass is continued, made up of successive acts, each comparatively unimportant in itself, and the threat and intention to continue is manifest, equity will enjoin the same, for the reason that each separate trespass'forms a separate cause of action, and it would be idle to require the plaintiff to bring a distinct action for each one of the small trespasses. It would be a waste of time and serve no good purpose for the plaintiffs to bring an action at law for every different landing made by the defendants upon their land without authority. The actual damage accruing from each landing would be comparatively insignificant, and to try out each instance in an action at law would lead to a multitude of actions, the principles of which could be determined in one suit in equity. In this case the plaintiffs claim no damages, but only seek to prevent the continuation of the trespasses of which they complain. The authorities are numerous that equity will entertain their bill for that purpose, especially when persistent invasion of plaintiffs’ premises would eventually work out the establishment of an easement in favor of the defendants: Shaffer v. Stull, 32 Neb. 94 (48 N. W. 882); Poirier v. Fetter, 20 Kan. 47; Murphy v. Lincoln, 63 Vt. 278 (22 Atl. 418); Amsterdam Knitting Co. v. Dean, 162 N. Y. 278 (56 N. E. 757); Walker v. Emerson, 89 Cal. 456 (26 Pac. 968); McClellan v. Taylor, 54 S. C. 430 (32 S. E. 527); Turner v. Stewart, 78 Mo. 480; Boston v. Sullivan, 177 Mass. 230 (58 N. E. 689: 83 Am. St. Rep. 275); Lake Shore R. Co. v. Felton, 103 Fed. 227 (43 C. C. A. 189).

The decree of the circuit court is reversed, and a decree entered here according to the prayer of the complaint.

Reversed: Decree Rendered.