Christian v. Eugene

89 P. 419 | Or. | 1907

Mr. Justice Eakin

delivered the opinion of the court.

1. When the proprietor of lands lays out a town thereon in the manner provided by the statute, platting the same into blocks, streets and alleys, and the plat is duly executed, acknowledged and recorded, and he sells lots therein with reference thereto, he thereby dedicates said streets and alleys to the public, and the same is irrevocable.

2. The purchase of lots with reference to such plat constitutes a sufficient acceptance by the public of such dedication. It was held in Spencer v. Peterson, 41 Or. 257 (68 Pac. 519, 1108), that, if lots are sold with reference to such plat, no acceptance or user by the public is required. To the same effect is Meier v. Portland Cable Ry. Co. 16 Or. 500, 507 (19 Pac. 614: 1 L. R. A. 856), where it is said: “The location of the townsite, the number and extent of the streets, and the belief of the purchasers that they will remain permanent and perpetual, are material inducements to the purchase.” Therefore plaintiff is bound by the plat as executed and recorded, unless an error is shown in the plat or the public has dost its rights therein by adverse user.

3. Plaintiff seeks, however, to establish an error in the plat by parol evidence that it was not the intention of the proprietor to dedicate Twelfth Street. But the correctness of the plat cannot be collaterally attacked. The plat is as much a part of the evidence of the title of the purchaser of lots as his deed, and cannot be changed or disputed by the proprietor as his interests may suggest. In Steel v. Portland, 23 Or. 176, 183 (31 Pac. 480), it is said: “The sale and conveyance of lots according to such plan or map implies a covenant that the streets and other public places designated shall never be appropriated by the owner to a use inconsistent with that represented by the map upon the faith of which the lots are sold.” And in Meier v. Portland Cable Ry. Co. 16 Or. 500 (19 Pac. 614: 1 L. R. A. 856), it is said “that he (the proprietor) intends it to be irrevocable is beyond the possibility of a doubt.”

Section 2738, B. & C. Comp., provides:

“Every donation or grant to the public, including streets and alleys * * marked and noted as such on the plat of the town * * shall be considered to all intents and purposes as a general warranty to the said donee.”

“Warranty” is “an engagement or undertaking, express or implied, that a certain fact regarding the subject of a contract is, or shall be, as it is expressly or impliedly declared or promised to be” (Webster’s Int. Diet.), and the execution, acknowledgment, and recording of tbe plat are equivalent to a conveyance to the public of the streets and alleys, and a mistake in the description, terms or platting thereof can only be corrected or established by a proceeding in equity for that purpose, to which all persons interested in the result are parties. Hence plaintiff is bound by the dedication here as designated on the plat, and cannot be relieved therefrom in this suit upon parol evidence of a mistake.

4. To meet the defense of the dedication of Twelfth Street by Catherine and D. R. Christian alleged by defendants, plaintiff, in her reply, alleges adverse possession of the land for more than 10 years. .. The weight of the adjudged cases seems to be that since the municipal authorities have ho right to sell, alienate or dispose of streets or alleys dedicated to the public, except in some manner provided by law, the statute of limitations will not run against them: Ralston v. Weston, 46 W. Va. 544 (33 S. E. 326: 76 Am. St. Rep. 834). This court has also recognized this rule in Schooling v. Harrisburg, 42 Or. 494, 499 (9 Mun. Corp. Cas. 705: 71 Pac. 605), and Oliver v. Synhorst, 48 Or. 292 (7 L. R. A., NS, 243: 86 Pac. 376), and it is expressly adopted in this state by statute (Section 4820, B. & C. Comp, enacted in 1895, and re-enacted in 1903; Laws 1903, p. 279), so that plaintiff has acquired no rights by adverse user or the statute of limitations.

5. And neither the allegations nor the proof bring the plaintiff within the rule of estoppel in pais, as laid down in Schooling v. Harrisburg, and Oliver v. Synhorst.

6. Estoppel, to be available, must be pleaded, if there is an opportunity to plead it, and it is not pleaded here, and the proof must be something more than of the lapse of time or adverse occupancy. Some equity must have arisen in favor of one pleading such estoppel of such a character that justice requires that an equitable estoppel shall be asserted against the public. It follows that the decree of the lower court should be affirmed, and it is so ordered.

Aeeirmed.