Oliver v. Synhorst
86 P. 376
Or.
1906
Check Treatment
Mr. Chief Justice Bean

delivered the opinion.

The evidence does not accompany the transcript, and the only question for our consideration is whether the court erred in striking out the matter pleaded in the complaint as an estoppel. From these averments it appears, in brief, that Chaplin’s Addition to La Grande was laid out and platted in 1884, and 0 Street thereon dedicated to the public. The street, however, was never opened or improved by the city, and it never assumed authority or control over it until the fall of 1904. In 1891 the plaintiff’s grantor bought lots 4, 5 and 6 in block 74, abutting on 0 Street, and, with the consent and knowledge of the city, built a fence along what he claimed and believed to be the north line of such property, erected a large dwelling house on lot 5 with reference to such supposed line, and planted .shade trees and shrubbery and otherwise improved the property for a residence site, claiming in good faith to be the owner of the same. In 1897, after the plaintiff had purchased the property, she constructed an iron fence at the place where the former fence stood, and afterward hauled earth and filled up the lot to such fence, and otherwise improved the property by planting shade and ornamental trees along the fence, making a rose garden inside of the inclosure near the fence, building a sidewalk just outside the fence, and otherwise improving the property at great cost, all of which was done in good faith with the consent and knowledge of the city authorities and under the belief that she owned the property so inclosed. Several years before the commencement of this suit she blasted out and excavated a part of lot 3 at great cost and constructed a barn thereon, leaving sufficient room between it and the supposed street line for a drive*297way. The plaintiffs dwelling house is within 16 feet of the iron fence and the architectural effect thereof and the beauty and value of her home would be materially impaired if the fence is now removed, and her approach to her barn would be entirely cut off. The occupancy and improvement of the property as referred to was made by the plaintiff and her grantor under the belief that the true north line is where the iron fence is now located and with the knowledge and consent of the city authorities. It thus appears that for more than 13 years the plaintiff and her grantor have been in the open, exclusive and peaceable possession of the strip of land now in controversy, and that they have made, without objection from the city authorities, valuable and permanent improvements thereon in good faith, believing that they were the owners thereof. The question for decision is whether, by reason of these facts, the city is now estopped to assert that the true street line is other than where the plaintiff’s fence is located.

There is irreconcilable conflict in the cases as to whether the right of the public to use land dedicated for a street or highway may be extinguished by nonuser or adverse possession, due to the laches, negligence or nonaction of municipal authorities. The weight of the adjudged cases seems to be that since such authorities have no right to sell, alienate or dispose of the highways, except as provided by law, the statute of limitations will not run against them, and such is the rule now in force in this State by a recent statute: Laws 1895, p. 57. The authorities on the question are so fully collated and commented upon in the notes to Orr v. O’Brien, 14 Am. St. Rep. 278, and Northern Pac. Ry. Co. v. Ely, 54 L. R. A. 526, 87 Am. St. Rep. 775, that a mere reference to them is all that is essential in this connection. 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 *298that 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:” Hamilton v. State, 106 Ind. 361 (7 N. E. 9); Chicago, etc., Ry. Co. v. Joliet, 79 Ill. 25; County of Piatt v. Goodell, 97 Ill. 84; Baldwin v. Trimble, 85 Md. 396 (37 Atl. 176, 36 L. R. A. 489); Paine Lumber Co. v. Oshkosh, 89 Wis. 449 (61 N. W. 1108). Although Mr. Dillon is unwilling to assent to the doctrine that as respects public rights municipal corporations are within the ordinary limitation statutes, he says: “It will, perhaps, be found that cases sometimes 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 that “there is no danger in recognizing the principle of an estoppel in pais as applicable to exceptional cases, since this leaves the courts to decide the question, not by the mere lapse of time, but upon all the circumstances of the cases to hold the public estopped or not, as right and justice may require”: 2 Dillon, Mun. Corp. (4 ed.), § 675.

This principle was applied by this court in Schooling v. Harrisburg, 42 Or. 494 (71 Pac. 605). May and Nixon had laid out an addition to the town of Harrisburg and duly acknowledged and recorded a plat thereof in 1871. At that time the tract of land was inclosed with a fence which was thereafter maintained. None of the streets or alleys shown were opened except a portion if one street, although the proprietors sold lots with reference to the plat. Notwithstanding the making and recording of the plat dedicating the streets and alleys to the public, Nixon continued to occupy and cultivate one of the streets and subsequently sold the lots abutting thereon and conveyed his interest in the street. His grantee occupied and cultivated the street and erected a shed to his barn extending out over an alley. It was held that upon these facts the municipal authorities were estopped from opening the street because of their laches in permitting Nixon and his grantee to improve *299the same as a part of their premises. This ease is decisive of the one at bar. Indeed, the facts call more strongly in the present case for the application of the doctrine of equitable estoppel than in the Schooling ease. In that case Nixon and his grantee knew that the land occupied by them had been dedicated to the public and acted with full knowledge of that fact. Here, on the contrary, the plaintiff and her grantor supposed and believed that the portion of the street occupied by them was a part of their property and was included within the boundaries of their lots. Again, in the Schooling case the opening of the street would not have seriously injured the plaintiff, while here the removal of the fence to what the defendant claims to be the true street line would, according to the allegations of the complaint, practically destroy the plaintiff’s property for residence purposes and would work irreparable injury to her. She has, with the knowledge and consent of the city authorities, inclosed a part of the street and improved the same in good faith to such an extent that (if the allegations of the complaint are true) she would be seriously injured and damaged if she is now required to remove her fence and throw open that portion of the street occupied by her to the public, and is therefore entitled to invoke, as against the city, the doctrine of estoppel. The decree of the court below will be reversed, and the cause remanded, with directions to overrule the motion to strike out, and for such further proceedings as may be right and proper.

Reversed.