162 P. 251 | Or. | 1917
delivered the opinion of the court.
As upon the former appeal, the only question for consideration herein relates to the sufficiency of the remonstrance against the improvement. In the prior opinion it was held that in determining the controversy the superficial area of each tract should be represented upon the remonstrance. At the second hearing it was contended by defendant that a certain large tract of land owned by Matthew Small is bisected by a street, thereby isolating the southern portion of the tract from the proposed improvement and eliminating it from the remonstrance. It is conceded by counsel that, if the remonstrants are credited with the entire tract, the city has no power to make the improvement. The plaintiffs insist that there is no street there, and that the entire area must be considered.
As gathered from the evidence, the history of this road is about as follows: On June 8, 1892, Benedict Phelps was the owner of what is referred to herein as the Matthew Small tract. He also owned the adjacent land on the west. He had previously owned land ad
“Survey of an Extention of Center or Middle Street in Phelps’ Addition to Silverton. Beginning on the east side of the county road at the west end of said Center or Middle street, which is 60 feet wide; thence west in center of extention 24.87% chs. to the west boundary of B. Phelps land and east boundary of Kittil Funrue’s land 6.25 chains south of the N. E. comer of said Funrue’s land. This extention of said Middle or Center street, is 40 feet wide and no more. I hereby dedicate the above-described extention as Public street or highway.
“B. Phelps.
“By John Newsom,
“By request of said Phelps.
“Recorded Aug. 13, 1892.
“John H. MoNary,
“Recorder.”
This “extention” was improved by simply cutting out enough second growth fir trees to enable a wagon to pass through, and there is no evidence of any further work having been done thereon in the 24 years that have elapsed since. There is a conflict in the evidence as to whether Funrue or Phelps did the work
Reversed.