162 P. 248 | Or. | 1917
delivered the opinion of the court.
The answer states that:
“All.of the lands included in said Oregon Avenue-street improvement are included in a public highway*483 formerly known as the Bandon-Langlois County road, later known as Abernathy Street and still later known as Oregon Avenue of the City of Bandon; that said highway is, and for more than 20 years has been 60 feet in width, and for its full width has been used during such time by the public and by the municipality of Bandon continuously, notoriously and adversely, and has during all of said time been recognized by all parties, including plaintiff, as such public highway, and has, at all times as aforesaid, been used, maintained and improved by the public authorities as such public highway; * * that said Oregon Avenue extends along the western boundary of the Catholic Church property as described in the complaint, and includes as a part of said avenue a strip off the western boundary of said Catholic Church property extending from the south line of said property in a northerly direction to the north line of Third Street in said city.”
This is denied by the reply. For the purpose of showing the authority of the city over the county road the defendants introduced the following order of the County Court of Coos County, of March 6,1913, reading thus:
“The matter of application of the City of Bandon to acquire jurisdiction and control over roads within the limits of said city: Now at this time comes on to be heard the resolution of the City of Bandon, requesting Coos County, Oregon, to relinquish to said city all jurisdiction and control over all roads lying, and being within the corporate limit of said City off Bandon, the said resolution after being duly considered, it is ordered, and this court does hereby release, and relinquish, jurisdiction and control over each and all the county roads within the corporate limits of the City of Bandon, Coos County, Oregon, to the said City of Bandon, provided that the said City of Bandon shall not, by reason of this order for obtaining control of said roads, have any claim upon*484 the county road fund, or of any road district funds, or of any part or portion thereof.”
“Plat of Belle View Addition to Bandon, Oregon, located in the NW^ SW14 Sec. 30 & the NE4 SE4 Sec. 25 Twp. 28 S. B. 14 & 15 W. Willamette Merd. The initial point of said addition is a 2" iron pipe 36" long firmly driven into the ground at the S. W. cor. of Block No. 2, whence the W% cor. of Sec. 30 Twp. 28 S. R. 14 W of the Willamette Merd. bears E. 55.8 feet and N. 933.24 feet, and the base line from which all measurements were taken is the west line of Blocks 1 and 2, marked at the N. W. cor. of Block No. 1 with a 2" iron pipe 36" long firmly driven into the ground. All angles are right angles and the distances marked on this plat were staked out on the ground as noted. Scale one inch equals fifty feet. Magnetic variation north twenty degrees thirty minutes east.”
' The dedication proper is in these words:
“Know all men by these presents, that the undersigned, the Roman Catholic Archbishop, of the Diocese of Oregon, does hereby make, establish and declare, the annexed plat of Belle View Addition to Bandon, Oregon, to be the true and correct plat of the same; that all blocks and lots are numbered and subdivided as shown on attached plat; that the streets and alleys are of the width and dimensions shown and that the streets conform to the streets of Woodland Addition*487 to Bandon and are an extension of the same. The use of all streets and alleys is hereby dedicated to the use of the public forever, without any reservations of any Mnd whatsoever. In witness whereof, the said party hereto has hereunto set his hand and seal this 22d day of September, 1909.
“[Signed] Alexander Christie.
“ [Corporate Seal.] ”
The affidavit of the surveyor required by Section 3268, L. O. L., is here set out, omitting the formal parts:
“E. H. Kern, being first duly sworn, deposes and says that he is the engineer who surveyed and platted the Belle View Addition to Bandon, Oregon; that the accompanying map is a true and correct representation of the same. Initial point, a 2"x36" galvanized iron pipe, driven 6" below surface of ground; whence the cor. sec. 30 Twp. 28 S R 14 W. W. M. bears E. 55.8 feet and N. 933.24 feet. Bounded as follows: Commencing at the initial point, thence E. 361.02 ft. N. 511.2 ft; W. 361.02 ft; S. 511.2 ft. to beginning. The base line is the W. line of blocks 1 and 2, marked at each end by 2"x36" galvanized iron pipe. All blocks, lots, streets and alleys are of the dimensions and widths as shown on attached plat and field notes and are made a part hereof. All blocks, lots, streets and alleys were properly staked and marked out on the ground.”
This is signed and duly verified by the affiant. The public, whether in the form of a municipality or otherwise, cannot acquire the real property of a private holder by dedication unless the intent of the owner thus to give his realty to the public is clearly and satisfactorily established. The map is a writing to be construed by its terms expressed therein. The limits of the land included in Belle View Addition to Bandon, together with the streets mentioned, are clearly indicated, not only on the plat itself, but also
An attempt was made by the defendants to prove dedication of that strip by acts in pais. The evidence on that point is substantially as follows: That many years ago when the county road was laid out, the vicinity of the premises in question was uninclosed, and in the winter season, when it was muddy, teams would go in almost any direction to avoid the mud, and so the travel covered a space, described by some witnesses, of as much as 80 feet when moving from the south in the general direction of Bandon, or vice versa. Later on Coos County improved the road in question by planking a portion of it and by grading up and putting crushed rock on the remainder, which
Other defects are pointed out in the municipal procedure, but it is unnecessary to consider them. At the foundation of the city’s performances is found the want of authority over the tract in question.
The decree of the Circuit Court is affirmed.
Affirmed. .