133 P. 829 | Or. | 1913
Opinion by
1. This case was tried before Hon. Henry E. McGinn, who was born and has lived all his life in the vicinity of the property in dispute; and his familiarity with its location and the conditions existing upon the ground admirably qualified him to understand the testimony offered. A comparison of his findings of fact with the testimony satisfies us that he found correctly; and it only remains for us to decide whether the legal conclusions drawn by him from these facts are fairly deducible therefrom.
2. We think the city is estopped from claiming any right to use the streets in controversy. Their legal existence was a matter of grave doubt when defendants located their mill upon the premises. They did not go as trespassers or uninvited guests, but at the urgent solicitation of the city authorities of the City of East Portland, who were anxious to secure the location of the immense plant defendants proposed to erect within their boundaries. When defendants inquired in relation to the supposed streets, they were told by the mayor that Stephens, the original proprietor of Stephens ’ Addition, had so muddled the situation with plats that it was doubtful whether any legal streets existed; that, if there were any, they were of no use to the city; and that they would never be claimed by the city. Several of the blocks occupied a deep slough with banks more than 30 feet high and having an oozy mud bottom, which rendered it difficult to bridge even with piling, and which effectually obstructed travel for a great part of the distance on the north and northeast. West of this slough was a tract of unplatted
The witnesses for plaintiff were T. M. Hurlburt, Joseph Buchtel, P. Kelly, Mayor — now Senator — Lane, and George H. Hymes, all old residents of Portland and familiar with the situation; and they all practically agree that there is not at this time any necessity for the opening of these streets. It is apparent that to open them would destroy the greatest single industry in the City of Portland. The sole pretext for this suit is that the plaintiff wishes to establish its right to the streets.
3. As the statute of limitations does not run against the city, and as the improvements upon the property are practically complete, it is difficult to see how the city would be in a worse position ten years from now than it is at the present time. A fair sample of the reasons given for destroying this great industry appears in the testimony of Mr. Cellars, who, when the question of opening these streets was being mooted in the council, asked a councilman who was agitating the proposition what reason there was for opening them. The reply was: “I might want to go down to the river and spit sometime.” This case comes fairly within the rule laid down in Schooling v. Harrisburg, 42 Or. 494 (71 Pac. 605, 9 Mun. Corp. Cas. 705); Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376, 7 L. R. A (N. S.) 243). It is contended that the final decision of the case last cited, reported in 58 Or. 582 (109 Pac. 762, 115 Pac. 594), overrules to some extent our previous holdings upon this subject; but such is not the case. We expressly recognized the previous ruling of this court, but declared that upon the facts disclosed upon the final hearing of that case plaintiff had not brought herself within them. In that case nobody sought out the plaintiff and besought her to build where she did.
4. It is claimed by plaintiff that the estoppels against the city here discussed are not properly pleaded, but defendants have clearly and succinctly set forth all the facts constituting such estoppels by way of defense, and we think that, in the absence of a demurrer or motion to strike, they are sufficiently pleaded. Equity will not concern itself as to the lack of technical pleading of an estoppel, as such, when all’the facts necessary to constitute such estoppel are pleaded and no objection is made as to the form of the pleading: Carlyle v. Sloan, 44 Or. 357 (75 Pac. 217).
5. We come now to the cross-appeal of defendants. The estoppels urged by defendants are well pleaded, and are abundantly proved, but they amount to no more than that the defendants were desirous of securing site for a sawmill. The authorities of East Portland were of the opinion that a sawmill at the place in controversy would be of benefit to the city, and of such a benefit that it would be of advantage to the city to waive all possible rights to the alleged streets in order to secure a sawmill at that location. The construction and maintenance of a sawmill was the motive for the assurances of the city that defendants would not be disturbed in the occupation of the streets. It is not conceivable that defendants would have been invited to occupy these streets for purposes connected with a livery-stable, a tannery, or a candy factory.
The decree of the Circuit Court is therefore affirmed; and, as both parties have appealed and neither has prevailed here, neither party will recover costs or disbursements in this court. Affirmed.