Johnson v. Crawford

171 P. 568 | Or. | 1918

Me CAM ANT, J.

1, 2. When the owner of land plats •it and sells lots with reference to the plat he thereby dedicates the streets marked on the plat: Carter v. Portland, 4 Or. 339, 345; Spencer v. Peterson, 41 Or. 257, 259 (68 Pac. 519, 1108); Christian v. Eugene, 49 Or. 170, 172 (89 Pac. 419); Silverton v. Brown, 63 Or. 418, 424 (128 Pac. 45); Nicholas v. Title & Trust Co., 79 Or. 226, 240 (154 Pac. 391, Ann. Cas. 1917A, 1149). In such case the purchaser of lots with reference to the plat constitutes an acceptance of the grant made by the owner to the public: Christian v. Eugene, 49 Or. 170, 173 (89 Pac. 419).

Such of the plaintiffs as are admitted to own land in the platted tract west of defendant’s property are entitled to use the streets dedicated by De Lashmutt and Oatman when they recorded the plat. But these parties could not dedicate what they did not own. The strip of land in dispute was not owned by De Lashmutt and Oatman in 1889 when they recorded this plat. They had parted with title to it when they conveyed the ten acre tract to Hattie Murtha in 1885.

The only ground on which the strip in controversy can be held to be a roadway is the reservation above quoted, which is found in the deeds to Hattie Murtha and her successors in interest. It was held by Mr. Justice Burnett, in Moore v. Fowler, 58 Or. 292, 297 (114 Pac. 472), that “the reservation in the deed as above quoted amounts only to an offer on the part of the grantor to dédicate the roadway to public uses, and there can be no dedication under such circumstances until the same is accepted by the county.” It appears affirmatively in this case that there has been no such acceptance.

3. There is another reason why plaintiffs have failed to make out a case. They are not entitled to enjoin the acts of defendant in blocking the alleged roadway without showing special damage to plaintiffs as the result of the acts complained of. They allege such special damage, but this allegation is denied and they have furnished no evidence to maintain their contention on this issue. The pleadings admit that three of the plaintiffs own property in the vicinity, but it does not appear that they have occasion to travel the alleged road.

It follows that the decree of the lower court is reversed and a decree will be entered here dismissing the suit. Reversed. Suit Dismissed.