Parrott v. Stewart
132 P. 523
Or.
1913
Check Treatment
Mr. Justice Bean

delivered the opinion of the court.

1. In determining as to a dedication, the intention of the owner is the controlling factor; but the law does not seek for his undisclosed intention. It acts upon his intention as evidenced by his acts and the circumstances which he permits or encourаges: 3 Dillon, Mun. Corp. (5 ed.), § 1079; Kuck v. Wakefield, 58 Or. 549 (115 Pac. 428); Hogue v. City of Albina, 20 Or. 182 (25 Pac. 386, 10 L. R. A. 673).

2. Where the situation of land is such as to indicate that it does not form'part of the highway, although, it may bе alongside of the way and be used by the public, no dedication can be presumed without strong evidence of an intent on the part of the owner to devote the land to the use of the public: Elliott, Roads & Streets (2 ed.), § 167.

3. In order to constitute a dedication by parol there must be some act proved ‍​​‌‌​​​​​‌​‌‌​‌​‌​‌‌​‌‌​​‌​​​​​​‌‌‌​‌‌​​‌‌​‌​​​​‍evincing a clear intention to dedicate the land to the public use: Lownsdale v. City of Portland, 1 Or. 381, 405 (Fed. Cas. No. 8578); Lewis v. City of Portland, 25 Or. 133, 155 (35 Pac. 256, 22 L. R. A. 736, 42 Am. St. Rep. 772).

4. The owner’s acts and declarations should be deliberate, unequivocal, and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public, use. If they be equivocal and do not clearly and plainly indicate his intention to permanently abandon the property tо public tise, they are insufficient to establish a dedication: *260Hogue v. City of Albina, 20 Or. 186, 187 (25 Pac. 386, 10 L.R. A. 673).

5. The evidence does not disclose that John Stewart ever made any dedication of the land to the public use. His acts, such as granting a right of way to the Standard Oil Company (whiсh indicates the reason why he did not sell the land with the Oates tract), and the payment of taxes, negative an intent to аbandon the real property. There is no evidence tending to show that the strip was intended by anyone as a permanent street, or that the property was accepted by the public as a street. The contention of dеfendant that there has been a dedication cannot be upheld.

6. The defendant city next claims the right to the use of the land as a street by prescription or adverse use by the public continuously for the statutory period of limitatiоn. To establish a highway by prescription there must be an actual ‍​​‌‌​​​​​‌​‌‌​‌​‌​‌‌​‌‌​​‌​​​​​​‌‌‌​‌‌​​‌‌​‌​​​​‍adverse public use, general, uninterrupted, continued for the period of the statute of limitations under a claim of right. Where this is established for the statutory period, the right is deеmed perfected and a permanent one: Wood v. Hurd, 34 N. J. Law, 87; Marion v. Skillman, 127 Ind. 130 (26 N. E. 676, 11 L. R. A. 55, 58). It was held in Smith v. Gardner, 12 Or. 226 (6 Pac. 771, 53 Am. Rep. 342), that mere user of a highway, however long-continued and uninterruptеd by the public, is not sufficient to give a right in the public; but such user must be accompanied by acts, such as working the road, keeping it up by the public, repairing it or removing obstructions, etc., showing the use to have been made under a claim of right, аnd not merely by permission of the land owner. A permissive use of a way by certain portions of the community constitutes а license and not a dedication, and is ordinarily something that may be revoked. And it was held in Bayard v. Standard Oil *261Co., 38 Or. 438, 445 (63 Pac. 614), that user by the general public, under a claim of right, adversely, and not by mere permission óf the owner, for the period prescribed by the statute as a limitation beyond which actions for the recovery of real property cannot be maintained, will establish an eаsement in the public.

The adverse use which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. As in the case of adverse possession, it must ‍​​‌‌​​​​​‌​‌‌​‌​‌​‌‌​‌‌​​‌​​​​​​‌‌‌​‌‌​​‌‌​‌​​​​‍be continued for a long period; it must be adverse, under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the estate .out of which the easement is claimed: 22 Am. & Eng. Ency. of Law (2 ed.) 1192; Coburn v. San Mateo County (C. C.), 75 Fed. 520; Shellhouse v. State, 110 Ind. 509 (11 N. E. 484); City of Topeka v. Cowee, 48 Kan. 345 (29 Pac. 560, 563). Where the use is merely permissive, and not adverse, there is no basis on which a right of way by prescription may rest: Elliott (2 ed.), § 175; Engle v. Hunt, 50 Neb. 358 (69 N. W. 970-972); Town of Brushy Mound v. McClintock, 150 Ill. 129 (36 N. E. 976, 977).

7. The use made of the property in question by those traveling over it does not appear from the evidence to have been at any time either adverse to the owner or under a claim of right. It does not appear thаt an action could have been maintained at any time by Stewart or his successors in interest for any act of the сity, or of anyone else, relating to the land. But, rather, the use appears as a neighborly concession. Anyonе was allowed to travel over the tract for convenience, as is often the case with a vacant lot, as it did no harm, and the use was apparently permissive in its very nature, and would not set the statute run*262ning: Altschul v. O’Neill, 35 Or. 202, 211 (58 Pac. 95); Trump v. McDonnell, 120 Ala. 200 (24 South. 353).

8. The receipt by the city оf taxes paid by the owner is inconsistent with the claim of the city to have held the same land, ‍​​‌‌​​​​​‌​‌‌​‌​‌​‌‌​‌‌​​‌​​​​​​‌‌‌​‌‌​​‌‌​‌​​​​‍on which the taxes were рaid, by prescription during the same years it received taxes thereon: Elliott (2 ed.), § 167; Illinois Cent. R. Co. v. City of Bloomington, 167 Ill. 9 (47 N. E. 318); Niles v. City of Los Angeles, 125 Cal. 572 (58 Pac. 190); Hesse v. Strode, 10 Idaho, 250 (77 Pac. 634).

All that would have been necessary for Stewart or subsequent owners to have done to have changed the condition as to travel would have been to inclose the land. This would not have conflicted with any authority exercised or claimed by the municipal authoritiеs. The city has not made out a case coming within the well-defined rules governing a prescriptive easement as аnnounced and adhered to by this court. This disposes pf the second contention of defendant.

9. As to the conveyance by Stewart and wife to the Standard Oil Company of a tract of land west of the railroad together with a right of way оver the land in dispute to be used in connection therewith, when the Standard Oil Company conveyed the lot west of the railroad, together with its appurtenances, to Stuchell on July 12, 1909, which deed was duly recorded, this right of way, being appurtenant to the tract described in the conveyance, passed to the grantee without specific mention: George v. Cox, 114 Mass. 382, 387; Spaulding v. Abbot, 55 N. H. 423; Brown v. Thissell, 60 Mass. (6 Cush.) 254, 258. Therefore the deed executed by the Standard Oil Company to the city of Baker on April 24, 1912, describing the right of way over the land ‍​​‌‌​​​​​‌​‌‌​‌​‌​‌‌​‌‌​​‌​​​​​​‌‌‌​‌‌​​‌‌​‌​​​​‍in controversy, conveyed no right thereto, as that company then had nothing to convey, and the city obtained no benefit by virtue of such deed.

The decree of the lower court was right, and it is affirmed. Affirmed.