115 P. 428 | Or. | 1911
Lead Opinion
Opinion by
Prior to 1860 W. D. Bigelow settled upon, and afterward acquired title to, a donation land claim under the provisions of an act of Congress of date September 7, 1850, upon which a portion of Dalles City is located, including lot 7 of block 8 of what is known as “Bigelow’s
It appears that the town is not laid out parallel with the line between the two claims, the blocks being laid diagonally across that line, and that Laughlin and Bigelow exchanged fractional lots on the line so that these two additions would fit together. On November 3, 1862, Bigelow conveyed to M. M. Chipmann “lots No. seven (7) and eight (8) in block eight (8), ‘the whole in Bigelow’s addition to The Dalles, and in accordance with his map of the same,’ ” .and also the fraction of two other lots, the other portion of which is a part of the Laughlin addition. This deed is a solemn statement by him that the tract was platted into lots, blocks, and streets, and the latter description indicates that the two plats correspond as to lots and blocks at the line between them. It also appears that Bigelow conveyed various other lots in his addition, describing the property with reference to the addition as in the Chipmann deed.
A general map of the town was prepared in 1881 or 1882 by Judges L. L. McArthur and J. H. Bird, for the city, which has been recognized as an official map of the
“It is well settled that, where the owner of land exhibits a map or plat of a town thereon, showing lots, blocks, streets, and other public ways, and sells and makes deeds of conveyances by reference thereto, he thereby dedicates to the public the streets and public places shown thereon.”
The final decision in that case upholds the dedication uninfluenced by the fact that the map was recorded as it was not the map of the owners, the Harveys. They made no express dedication. They only conveyed with refer
“The argument of the counsel for the respondent in support of this construction of the plat is unanswerable. * * The circumstance that there is no line there defining the boundary of the street can have no such controlling effect as the counsel for the plaintiffs is disposed to give it.”
As already suggested, Bigelow’s map was not filed or recorded, and we are without any data as to his map except as we gather from his own acts in relation thereto, and the lines of the blocks and streets as recognized by him and the city ever since and as shown by the McArthur and Bird map. Defendant’s contention, if sustained, might as well apply to any other street or alley not
The fact that the extension of Laughlin Street south would locate it upon an abrupt rocky bluff is without force. Common observation teaches us that rocky bluffs, however abrupt, are not insurmountable to the opening of streets in cities as soon as the occasion arises for their use.
The deed from the Methodist Missionary Society to Kelly, of date April 22, 1885, can have no bearing upon this case. It appears that on December 18, 1862, Kelly had acquired an interest in the Bigelow donation claim, and the conflict between the claims of the missionary society and Bigelow was litigated in the United States Supreme Court, in which Kelly was a party defendant, and the decree upheld Bigelow’s donation land claim. The conveyance by the missionary society to Kelly is a quitclaim, really a trust to enable him “to execute and deliver confirmatory deeds to any and all persons who have heretofore received deeds for a lot or lots” from Bigelow, Kelly, Waite, or Humason, successors in interest in the donation land claim, and this deed to Kelly was evidently in recognition of the decree of the United States Supreme
We find no error in the ruling of the lower court, and the decree is affirmed. Affirmed.
Rehearing
On Petition for Rehearing.
To hold that Bigelow did not intend to dedicate the street would be to attribute to him bad faith in the sale of the lot; such intent being indicated by the conditions and the surrounding circumstances at the time of the sale, including the price named in the deed conveying lots 7 and 8, in block 8, and fractions of two other lots, which was $1,500, the ground being open and unoccupied and to all appearances a continuation of Laughlin Street. On
Considering the circumstances of this case we think the court is fully justified in the conclusions reached in the opinion, that Bigelow’s map of his addition represented Laughlin Street on the east of lot 7.
It is also claimed in the petition that defendant is a purchaser without notice of defects in his title. But the same circumstances that established the dedication are sufficient to put him upon notice, and it is augmented by the fact that the city for many years has maintained a sidewalk on the west side of the street, which has been used as a public passway by pedestrians. But that question has not been raised in this case. The only issue tendered by the pleading is as to the dedication.
The petition is denied.
Affirmed: Rehearing Denied.