109 P. 762 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
When plaintiff purchased the property, which was done through her husband, who was an attorney and business man of La Grande, a sidewalk was built south of the trees, which had been plainted by plaintiff’s grantor, and an expensive fence erected several feet south of the original fence, but still extending into the street about six feet. The evidence does not satisfy us that plaintiff believed, when these improvements were made, that they were upon the lots she had purchased. Nor does plaintiff’s husband, who is the principal witness, and who was her active representative, so testify. He only claims that he did not know where the street line actually was, a fact that he could easily have ascertained in an hour’s investigation. The situation of other buildings in the same addition must have been notice to him that his wife’s improvements extended into the street, and we think that he depended more upon the probability that the street would remain unimproved than upon a belief that his improvements were upon his own property. In other words, being uncertain as to the exact line, he was willing to take the chance of an improvement
In the smaller towns of this State it is not unusual for streets, in remote districts, to remain unopened and unimproved, until they become sufficiently populous to justify levying assessments upon adjoining property to improve them. To require a city to open and improve all its streets at once, without reference to the need of such improvement, at the peril of forfeiting them, would be absurd, as a matter of public policy, and would, if carried out, prove an intolerable burden to those owning lots on remote and unfrequented streets.
The decree of the circuit court will be affirmed.
Affirmed.
Rehearing
Argued May 1, decided May 23, 1911.
On Rehearing.
delivered the opinion of the court.
The premises of the plaintiff are situated in block 74 of Chaplin’s addition to the City of La Grande, in Union County. Fourth Street in that addition runs north and south and bounds the block on the east. 0 Street runs east and west and bounds it on the north. Lot 5 is at the northeast corner of the block. Lot 6 adjoins it on the
The complaint states “that the plaintiff is, and for several years last past has been, the owner in fee simple of lots 3, 4, 5, and 6 of block 74 of Chaplin’s addition to the City of La Grande, in Union County, State of Oregon, and of all land inclosed by the fence which now incloses all of said lots 5 and 6 and most of said lots 3 and 4.” It is admitted that the plaintiff is the owner of the four lots mentioned. The allegation implies that the plaintiff owns ground in her inclosure besides the lots. Does the testimony prove her title to the additional ground ?
The plaintiff attempts to establish her allegation of title by the oral testimony of Turner Oliver and his grantor, Mrs. Remington. Objection was made to this testimony because the deeds or the records thereof were the best evidence, and, avoiding that objection, counsel for plaintiff, at the hearing, promised to produce the deeds later; but they were not produced and do not appear in the evidence.
In good reason a person acquiring property with reference to such a plat is equally bound by the plat with reference to the streets and alleys marked out. At least his conduct in thus .purchasing ought to be considered as strong evidence tending to refute his claim for additional ground lying in the street. To sustain the plaintiff’s contention she has several times stated in her complaint that her acts in improving her property were done with the consent of the City of La Grande. There is no evidence in the record that the city ever did any act or took any affirmative cognizance whatever in that behalf which would indicate any consent thereto on the part of the city.
“The right of cities and towns (whether incorporated or not), within the State of Oregon to land dedicated to or otherwise acquired for the public use for streets, highways, parks, or public place, shall not be extinguished by any adverse possession, however long continued, and no
This section is an exact repetition of the first section of the act of February 23, 1895 (Laws 1895, p. 57), and together they operate to defeat any title to ground in the street by mere prescription, for the first inclosure was made by Mrs. Remington, and, according to the pleadings, it could not have been earlier than some time in 1891. If she or her successors in interest ever had any incipient title by prescription, the statute cut it off before it ripened by lapse of time. In order, therefore, to acquire title to the land lying in the street as portrayed on the map, it is incumbent on the plaintiff to show something beyond mere possession and user on her part, / it is incumbent upon her to disclose by the evidence some conduct by the city leading the plaintiff on to do acts such as it would be against equity and good conscience to permit the city at this time to disavow./
We conclude that there is no showing of irreparable injury to the plaintiff or any act or omission of the city sufficient to amount to an estoppel or to take the case out of the effect of Section 6371, L. O. L., supra.
We adhere to the former opinion affirming the decree of the court below.
Affirmed : Decision Approved on Rehearing.