13 Or. 97 | Or. | 1885
The appellant was the owner of certain lands in East Portland described in his complaint. He alleged
The denial of the injunction was based on the three defenses set up by the defendant, and the sufficiency of these defenses is the question to be determined. In effect, the first defense was that the legislature had granted the premises in dispute — it being then, and at the time of such grant, a public county road — to the city as a street, and by virtue thereof it became a vested right in the corporation. Preliminarily, it may be said that the plaintiff does not deny the existence of the highway as originally established, and the authority of the city to exercise jurisdiction over it as such, but he does deny that the effect of the act was to impose any new liability -or burden by virtue of such jurisdiction upon the property holders or lands adjoining such road or highway that was not included in its original establishment.
But the fact is, the inference is otherwise; it .is rather that the “ highways therein ” shall remain as such, subject, however, to the supervision and control of the city to work and keep them in repair; and if this be not so,, what are we to do with the act of 1882 (Sess. Laws, p. 96),. repealing section 34 of the act of 1872, and reviving the jurisdiction of the County Court over the highways-within the city ? This act simply transferred the jurisdiction back to the County Court in respect to the matters of which ij; had been deprived by section 34 of the act of 1872. Does this not repel the assumption that.
The next defense is user as a street, with the consent of the plaintiff, for more than ten years. This is sought to be proved by work done by the city under the supervision of its street commissioner, and other acts on this highway, with the knowledge and consent of the plaintiff. The assumption is that these things were done on it as a street, and not as a highway, and with the full knowledge of the plaintiff. Neither the work done nor the use was inconsistent with the proper purposes of a highway over which the city had jurisdiction as such; and certainly there is nothing in the testimony to show that the plaintiff ever admitted or understood the use of the highway, or the work done on it, to be other than what belonged to it as such.
The next defense is estoppel by dedication in this, that the plaintiff had sold lots abutting upon the disputed tracts according to a recorded plat, recognizing the same as a street. As stated, this certainly would be a good defense. But the difficulty is that the plat filed and recorded, which dedicates certain streets on it to public use, contains in the conveyance connected therewith an express reservation to this effect, “ except it is expressly understood that the east half of Fourth Street, as represented in the annexed plat of this addition, is the only portion of said street intended to be released, dedicated, and appointed to the public use in this conveyance.” And to give emphasis to this reservation, and to show only that portion which is intended by the plaintiff and his wife to be dedicated as a street, red lines are marked on the map to indicate it. This utterly precludes the idea that he ever intended to dedicate the west half as a street, and it is impossible for any one to