167 P. 560 | Or. | 1917
delivered the opinion of the court.
In 1885 a county road thirty feet in width was laid out on the site of what is now Bridge Street in Clatskanie. The land included in and abutting on this road was platted in April, 1902, but the road does not
Defendants’ hotel was the first building constructed on this part of the street, but in 1904 Barbara H. McKiel constructed a building about fifty feet northerly from that of defendants and the same year Ben Berkenfeld built on property which adjoined the defendants on the south. The front of the McKiel building was in line with the front of defendants’ hotel. Berkenfeld had intended to extend his house five feet farther into the street than the defendants’ property, but in consideration of some privileges granted to him by the defendants in the use of their hotel for twenty-five years he more nearly conformed to their building line; his building juts out two feet beyond the hotel.
“To establish a highway by prescription there must be an actual adverse public use, general, uninterrupted, continued for the period of the statute of limitations under a claim of right. * *
“A permissive use of a way by certain portions of the community constitutes a license and not a dedication, and is ordinarily something that may be revoked. * *
“Where the use is merely permissive, and not adverse, there is ño basis on which a right of way by prescription may rest.”
To the same effect see Peters v. Robertson, 73 Or. 263, 266 (144 Pac. 568). Plaintiff has failed to establish that the use of the premises by the public was hostile or adverse to the title asserted by defendants. The sidewalk was constructed originally for the use of defendants and those doing business at their hotel.
The maintenance by defendants of the roof over the sidewalk is some evidence that they continued to claim the property in dispute. The roof was also a porch used in connection with the second story of the hotel. These circumstances are each of slight evidentiary value, but taken in connection with the inadequacy of plaintiff’s proof on the main issue, they satisfy us that there was no dedication.
“He who induces the public to believe his land a gift, or knowingly permits them to use and treat it as their own, until they have so accustomed themselves, and adjusted their property and accommodated their business to it, that they cannot without detriment be dispossessed, confers a right which he can no more resume without wrong than he can rightfully seize what was acquired otherwise than by his gift.”
Plaintiff contends that the defendants by constructing their hotel as above indicated and permitting the public to travel in front of it have induced other property owners to build on substantially the same line and that injustice would be done them if defendants were now permitted to claim as their own the property in dispute. On this issue the case is not free from doubt, but the burden of proof rests on plaintiff. The title to real property cannot be divested by estoppel without clear and satisfactory evidence: Urquhart v. Belloni, 57 Or. 314, 321, 322 (111 Pac. 692).
There is evidence that the defendant J. W. McDonald requested MeKiel and Berkenfeld to conform to his building line in constructing their buildings, but there is no evidence that this defendant made any
In order to sustain the estoppel contended for, the city should have proved that other property owners were induced to construct their buildings substantially in line with defendants’ hotel by a belief induced by defendants that the strip of land in front of these buildings could be used as a sidewalk without claim thereto by defendants. The evidence fails to establish these facts. There is no evidence that 'other property owners constructed their buildings on the line selected because of their belief that they could use the sidewalk in front of defendants ’ hotel.
Plaintiff’s claim of estoppel is predicated in part on the contribution by defendant J. W. McDonald of $40 to a fund to pay the expense of widening the street. The street was widened by moving back the houses o a the opposite side from that with which we are concerned in this case. The defendants ’ part in the mat • ter do'es not estop them from claiming title to the property in dispute.
The decree is affirmed.
Affirmed. Rehearing Denied.