Cruson v. City of Lebanon, 131 P. 316

131 P. 316 | Or. | 1913

Mr. Justice Eakin

delivered the opinion of the court.

Plaintiff relies upon the decisions in Schooling v. Harrisburg, 42 Or. 494 (71 Pac. 605), and in Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376: 7 L. R. A. [N. S.] 243). In the former case it is said, following Judge Dillon’s statement of the law in his text-book on Municipal Corporations :

“It will, perhaps, be found that cases will arise of such a character that justice requires that an equitable estoppel shall be asserted even against the public; but, if so, such cases will form a law unto themselves, and do not fall within the legal operation of limitation enactments.”

And in the case of Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376: 7 L. R. A. [N. S.] 243), the court, following the first-mentioned case, says:

“But, while the rule may be that the ordinary statute of limitations as such cannot be set up to defeat the right of the public to the use of a street or highway, there may grow up, in consequence of the laches of the public authorities, private rights of more persuasive force in the particular case than that of the public, and if ‘acts are done by an adjoining proprietor which indicate that he is in good faith claiming as his own that which is, in fact, a part of the highway, and is expending money on the faith of his claim, by adjusting his property to the highway as he supposes or claims it to be, the public will be estopped.’ ”

When the Oliver v. Synhorst case was here on the second appeal (58 Or. 582: 109 Pac. 762: 115 Pac. 594), it was decided upon the evidence, and Mr. Justice McBride, in delivering the opinion, says:

“As was intimated by Mr. Chief Justice Bean in his previous opinion in this case, the principle of an estoppel in pais will only apply in exceptional cases, and in our judgment this is not a case of that character.”

There is a note to the case of Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376), in 7 L. R. A. (N. S.) 243, in which many cases are collated and reviewed. The annotator recognizes that the cases on this point are irreconcilable, many of which follow Judge Dillon’s statement of the law quoted in Oliver v. Synhorst, and he finds the most consistent statement of the law in the Illinois cases, which recognize the equitable estoppel stated by Dillon, but draw a close line by which to determine the conditions which will justify the estoppel, namely, where the public have long withheld the assertion of control over streets, and private parties have been induced thereby to believe the street abandoned, and have made improvements and structures in a situation where they must suffer great pecuniary loss if the street is opened. “But,” says the note, “this doctrine is of no avail where no valuable or lasting improvements have been made by the abutting owner upon the portion of the street claimed by him”-— citing Sullivan v. Tichenor, 179 Ill. 97 (53 N. E. 561), which holds that a city was not estopped from building a sidewalk on the true line of a public street by the mere fact that a portion of it was fenced in, and along that fence a sidewalk was constructed by others than the municipal authorities. The line of distinction as to what conditions will justify an estoppel is well stated in De Kalb v. Luney, 193 Ill. 185 (61 N. E. 1036), in which the court refused to hold the city estopped where it appeared that the only improvements placed upon the disputed land by the abutting owner were an inexpensive wooden picket fence, a maple tree about 10 years old, a lilac bush, a creeping vine, and growing grass; deeming that the loss of these things would not present such a case of hardship and sacrifice that right and justice demanded an estoppel against the public.

It is said that to grant such an estoppel, there must be more than the inclosure of the street with the acquiescence of the city authorities and belief in good faith on the part of the claimant that the street has been abandoned by the public; but also on the faith of that belief, and with the acquiescence of those representing the public, such private party has erected structures on the street and made improvements thereon of such a lasting and valuable character that to permit the public to assert the right to re-possess itself of the premises would entail such great pecuniary loss and sacrifice upon the private property holder that justice and right would demand that the public be estopped. See, also, Crocker v. Collins, 37 S. C. 327 (15 S. E. 951: 34 Am. St. Rep. 752). Plaintiff purchased the property described in the deed by lots, as designated upon the plat of the town of Lebanon recorded in the office of the clerk of Linn County; and that plat shows the alley. Therefore plaintiff is not brought within the language of the Oliver v. Synhorst case, namely, that the acts do not indicate that plaintiff and her grantors in good faith claimed to own the alley and expended money on the faith of their claim. Furthermore, the improvements on the alley are not of such a lasting and valuable character that the opening of the alley would entail any great pecuniary loss and sacrifice upon plaintiff. The improvements consist of lawn, lilac and rose bushes, three cherry trees, and a large and symmetrical maple tree. We think the facts here are not within the exceptional cases to which the estoppel in pais should apply.

The decree is affirmed. Affirmed.