City of Eugene v. Garrett, 169 P. 649

City of Eugene v. Garrett

169 P. 649 | Or. | 1918

Lead Opinion

Mr. Justice Bean

delivered the opinion of the court.

The appealing defendants pleaded and claim that the city is estopped from asserting a right to more of the street than it improved after establishing the lines in making the improvement; that to change the street at this time would destroy public and private property that is the improvement of the street and the sidewalks and the parkings along the street; that the city could not acquire a right of way across the University grounds without the consent of the state authorities.

1, 2. We will first consider that part of Agate Avenue not adjacent to the University tract. The request to establish a seventy foot street and vacate the remainder thereof came principally from the property owners on the west side of the street and north of the University tract. Prior to 1909 this street had been used but little. It was then graded to the width of 40 feet with macadam in the center of the grade 16 feet in width. Sidewalks were constructed for a portion of the distance on the west side and some five or six dwelling-houses were built and some of the lots graded and adorned with shrubbery with a view to conforming to the proposed 70 foot street. None of the houses were built within the 90 foot street line but some of them are near that line. It appears from the evidence, taking into consideration all of the proceedings relating thereto, that it was proposed by some of the city officials, and desired by some of the property owners, that a 70 foot street should be established. This was never done. Most of the lot owners who made improvements on the west side of the street *440knew that no portion of the 90 foot street had ever been vacated. All of them conld with reasonable diligence have obtained snch information. This is shown and recognized by their petition to the city council to vacate a portion of the street and establish the same seventy feet wide, as proposed by the ordinance which was vetoed by the mayor. Plainly expressed these lot owners took chances on the street being narrowed. Their request in this respect was denied. Subdivision 36 of the charter of the City of Eugene, Special Laws of Oregon, 1905, page 254, empowers the city council to provide for the vacation of any street or alley, upon the petition or with the consent of not less than three fourths of the owners of the property adjoining or abutting upon such street or alley or part thereof to be so vacated. The passage of the ordinance for the partial improvement of Agate Avenue and fixing the center line of the street, without the required petition or consent, could not have the effect of vacating a portion of the street. The municipal authorities have no right to sell or dispose of streets or alleys dedicated to the public.except in the manner provided by law: Christian v. Eugene, 49 Or. 170, 174 (89 Pac. 419). It is contended on behalf of the defendants that the city is estopped from claiming a street 90 feet wide, for the reason it has never used any portion of the street outside of the 70 foot line, and has by its acts led the property owners to improve their property to that line. It is not usually expected that a city will improve all of its streets at one time. It may also if necessity requires, with the same propriety grade a portion of a street. When this street is permanently improved or paved, the work already done will not be lost. The evidence in the case does not disclose acts done by the adjoining proprietors which indicate that they in good faith, have claimed a part *441of the highway as their own property, or have expended money on the faith of such a claim by adjusting their property to the highway as they claim it to be, so that such private rights are of more persuasive force than those of the public. In other words the city is not estopped by its acts from asserting its rights to the full width of this part of the street, under the rule adopted in this state in the cases of Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376, 7 L. R. A. (N. S.) 243); Schooling v. Harrisburg, 42 Or. 494 (71 Pac. 605); Oliver v. Synhorst, 58 Or. 582 (109 Pac. 762, 115 Pac. 594); Crusen v. Lebanon, 64 Or. 593 (131 Pac. 316), and Portland v. Inman-Poulsen Lumber Co., 66 Or. 86 (133 Pac. 829, Ann. Cas. 1915B, 400, 46 L. R. A. (N. S.) 1211).

3, 4. As to that portion of Agate Avenue between 15th Street and 18th Street, along the east side of the University tract a different situation is presented. It should be remembered that in 1895 upon the petition of the owners of University Addition the County Court' of Lane County ordered vacated all that part of the streets and alleys of the addition south of the south line of 15th Street as designated upon the plat. This affected the 34 acre tract. The order was acted upon. Thereafter the owners of the tract instituted proceedings in the Circuit Court for the purpose of quieting the title to the tract and registering the same. After due service and publication of notice a decree was passed adjudging the Lane County Investment Company a corporation to be the owner in fee simple and in possession of said tract; and that no other person or corporation had any interest or claim of any kind to said land; and confirming such title, and ordering the same registered as provided by the statute. After this the 34 acre tract, extending to the east line of the *442Fielding McMurray D. L. C. was conveyed to the Board of Begents of the University of Oregon, for University purposes.

It is contended on behalf of the city that the County Court was without jurisdiction to order a vacation of the streets and alleys for the reason that the petition therefor did not state that University Addition was not within the limits of any incorporated city or town, and did not show that the addition was outside the boundaries of the City of Eugene, in order to conform to the requirements of Sections 3276 or 3284, L. O. L. The city limits were then fixed by the legislative charter of Eugene, and the County Court could take judicial notice of the same and also of the public survey of the D. L. C. which was named upon the plat recorded and referred to in the petition: See 17 Am. & Eng. Enc. of Law (2 ed.), pp. 894, 940, and 913. However this may be we do not deem it necessary to decide as to the force of the order of vacation of the County Court. The decree of the Circuit Court precludes the city authorities from establishing Agate Avenue as 90 feet in width, along the east side of the University tract, so as to appropriate a portion of the land belonging to the state. The Board of Begents relied upon the title to the 34 acre tract according to the decree of the Circuit Court as they had a right to do. Equity does not demand that the title to the streets and alleys in that part of what was formerly University Addition should be disturbed, at the. suit of a political division of the state. Such claim is not in harmony with the agreement made by the city officials and the‘Board of Begents, as mentioned above.

The decree of the lower court will be modified so as to exclude from the declaration of a street 90 feet in width, all that portion of Agate Avenue over the' *443University tract between 15th Street and 18th Street and affirmed as to the remainder of the decree. Neither party will recover costs in this court.

(170 Pac. 731.)

On petition for rehearing.

Rehearing denied. Mr. Sjur P. Ness and Messrs. Hewitt S Dillard, for the petition. Mr. O. H. Foster, City Attorney, and Messrs. Williams & Bern, contra.

Modified. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Burnett concur.

Rehearing

Denied February 19, 1918.

Petition for Rehearing.

Department 1.

Mr. Justice Bean

delivered the opinion of the court.

In a petition for rehearing counsel for defendants urge that this is not a suit for equitable cognizance, for the reason that plaintiff has not shown that the land improved within the street is not in the possession of another. There is more than one ground for equitable interference.

It is conceded that Agate Avenue in the City of Eugene, was regularly dedicated as a public street to the width of 90 feet and that the plat and dedication were duly recorded. The fences and so forth mentioned in the answer of defendants indicate an encroachment upon this public highway.

5-7. It is also shown and unquestioned that a portion of the .street is improved and occupied by the public *444to the width of about 70 feet. Where there is possession and user of a part of the street within the well-defined limits of the dedication, record of which has been duly made, it amounts constructively to an occupation of the entire dedicated width as designated upon the plat in so far as the possession is necessary for the purposes of this suit: Joy v. Stump, 14 Or. 361 (12 Pac. 929). This rule has been applied to public highways where the question of adverse possession was involved and by analogy is applicable here: Bayard v. Standard Oil Co., 38 Or. 438, 447 (63 Pac. 614). A city as trustee of streets for the use of the public is in duty bound to remove all obstructions and encroachments which materially disturb the public user. Any course may be adopted which is consistent with fundamental law and is adequate and best adapted to effect the desired result and protect the rights of the public in the street: 28 Cyc., p. 896. An unauthorized obstruction of a public highway is a nuisance : 37 Cyc., p. 247. The application of Section 341, L. O. L., providing for the abatement of a nuisance, or a summary removal, might not be appropriate in a case of this kind, where there is a difference of opinion between city officials and some dispute between lot owners and the city. The remedy provided by the section of the Code for nuisances is not conclusive; but whenever a nuisance will cause irreparable damage or require numerous actions equity has concurrent jurisdiction with courts of law and will enjoin continuance of the objectionable conditions: Fleischner v. Citizens’ Real Estate & Inv. Co., 25 Or. 119, 129 (35 Pac. 174); Blagen v. Smith, 34 Or. 394, 402 (56 Pac. 292, 44 L. R. A. 522); Union Power Co. v. Lichty, 42 Or. 563, 566 (71 Pac. 1044); Morton v. Oregon S. L. Ry. Co., 48 Or. 444 (87 Pac. 151, 1046, 120 Am. St. Rep. *445827, 7 L. R. A. (N. S.) 344). In legal effect the encroachments upon the street in question, or trespass upon the easement, constitute a purpresture or public nuisance. One of the earliest recognized forms of public nuisance with which equity has interfered is that of purpresture. The jurisdiction of equity in cases of purpresture, as well as of public nuisances, generally rests in the necessity of preventing mischief and avoiding vexatious litigation. This remedy is more efficacious than that at law: 1 High on Injunctions (4 ed.), § 759. We therefore feel safe in holding that equitable jurisdiction in this ease is founded upon solid grounds.

The petition for rehearing proceeds at great length to discuss the questions of fact. In our former consideration of this case we carefully weighed the inconvenience of the interested property owners as compared with the rights of the public. However much circumlocution may be employed, the defense is an attempt to give the report of a committee of the city council recommending the passage of the ordinance vacating a portion of the street the same effect as the ordinance would have had if it had been regularly passed instead of culminating in defeat.

The petition for rehearing is denied.

Rehearing Denied.

Mr. Chiee Justice McBride, Mr. Justice Burnett and Mr. Justice Benson concur.