86 P. 376 | Or. | 1906
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
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
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
Reversed.