Schooling v. Harrisburg

71 P. 605 | Or. | 1903

Mk. Chief Justice Moore,

after stating the facts, delivered the opinion of the conrt:

1. It is contended in limine by defendant’s counsel that at the time this suit was instituted the title to the streets involved was not in the plaintiff, and hence the court erred in granting the injunction complained of. It is alleged in the complaint that plaintiff is the owner in fee simple of the streets and alleys in dispute herein. The transcript, however, shows that on June 23, 1890, he executed to his wife, Martha R. Schooling, a deed to the north half of blocks 2 and 5 in May and Nixon’s Addition to Harrisburg, and also the streets involved in this suit, and that she, on January 10, 1894, reconveyed to him the real property so received, except said streets. Mrs. E. A-Thomas, a witness called by the defendant, testifies that in October, 1881, she called upon plaintiff’s wife, saying, “It was during her lifetime. ’ ’ From this statement it is reasonable to infer that Mrs. Schooling is dead, and, though plaintiff may not have been her heir, he is at least a tenant by the courtesy, and has a life estate in and is entitled to the possession of the real property of which she died seised (B. & C. Comp. § 5544), and for this reason he is authorized to maintain this suit to prevent any interference with such right.

2. Considering the case upon its merits, the question presented by this appeal is whether the doctrine of equitable estoppel is applicable to the facts involved. Our statute prescribes a penalty for disposing of, or offering for sale, any lot or lots in a town or city, or in any addition thereto, until the plat thereof has been duly acknowledged and recorded (B. & C. Comp. § 2736), and also contains the following provision: “Every donation or grant to the public, including streets and alleys, or to any individual or individuals, religious society or societies, or to any corporation or body politic, marked or noted as such on the plat of the town wherein such donation or grant may have been made, shall be considered to all intents and purposes a general warranty to the said donee or donees, grantee or grantees, for his, her, or their use for the purposes intended by the donor or donors, grantor or grantors, as aforesaid”: B. & C. Comp. 2738. The recording of the plat of said addition and the sale of lots therein by its proprietors constituted a dedication by them to the public of the streets and alleys marked on the plat.

3. The transcript, however, fails to show that the common council of Harrisburg, as the agent of the public, everaccegted the donation, formally or otherwise, until April 16,1901, when the streets were_03^ured_gpened. It is unnecessary to inquire whether or not the dedication, under the circumstances adverted to, was revocable, for, if the plaintiff; can successfully invoke the doctrine of an estoppel in pais, he is entitled to the relief which the application of that equitable principle affords. In the ease at bar, the streets involved have never been opened, and for nearly thirty years prior to the comrhencement of this suit plaintiff and Nixon, his grantor, have kept the premises inclosed and made valuable improvements thereon. “As a way, ” says Mr. Justice Wolverton, in Bayard v. Standard Oil Co. 38 Or. 438 (63 Pac. 614), “may be obtained and established by user, it may also be lost to the public by nonuser. ’ In Baldwin v. Trimble, 85 Md. 396 (37 Atl. 176, 36 L. R. A. 489), it was held by the Court of Appeals of Maryland that an evident and notorious abandonment of a public road and the physical closing thereof, with the knowledge of the municipal authorities, on the faith of which private parties have expended money in improvements, constitute an estoppel against the reassertion of the public easement. In Orr v. O’Brien, 77 Iowa, 253 (42 N. W. 183, 14 Am. St. Rep. 277), it is held by the Supreme Court of Iowa that the entire nonuser of a highway for a period of ten years, and the actual, open, notorious, and adverse possession thereof by a party for the same length of time, will estop the public from thereafter claiming any right therein against such party or those claiming under him. In Chicago & N. W. Ry. Co. v. People ex rel. 91 Ill. 251, the authorities of a city having acquiesced for nineteen years in the maintenance of an arch over a public street by a railroad company, and then made a written agreement whereby the right so to use the street was continued until it should be necessary to rebuild the arch, it was held that the city, by these acts of recognition and acquiescence, was estopped from compelling the company to remove it until it should become necessary to rebuild the same. In Hamilton v. State, 106 Ind. 361 (7 N. E. 9), a public highway having been maintained for more than twenty years, substantially of uniform width, but less than that at which it was originally laid out and established, and fences built in good faith on the appearance of the way, it was held that the law presumed an abandonment of so much of the highway as was thus occupied, and the public was estopped from asserting its rights by means of criminal prosecutions against adjoining landowners for obstructing the highway by so narrowing; it. In Paine Lum. Co. v. Oshkosh, 89 Wis. 449 (61 N. W. 1108), a plat óf a city, dedicating a street, having been recorded, the common council refused to' open it, whereupon the owners of the fee, relying upon such action of the council, filled up the land in and adjoining such street and erected buildings thereon, and it was held that the city was estopped from exercising, as against such owners, the rights acquired by the recorded plat.

The principle announced in the cases to which attention has been called probably had its origin in a remark made by Judge Dillon, and found in his work on Municipal Corporations (3 ed. § 675), in which the learned author, conceding that the statute of limitations may run against a municipal corporation in its private character, says: “But such a corporation does not own and cannot alien public streets or places, and no laches on its part or on that of its officers can defeat the right of the public thereto; yet there may grow up, in consequence, private rights of more persuasive force in the particular case than those of the public. It will, perhaps, be found that cases will 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. The author cannot assent to the doctrine that, as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle. But there is no danger in recognizing' the principle of an estoppel in pais as applicable to such cases, as this leaves the courts to decide the question, not by mere lapse of time, but by all the circumstances of the case, to hold the public estopped or not, as right and justice may require. ’ ’ The language quoted is criticised by the Supreme Court of West Virginia in Ralston v. Weston, 46 W. Va. 544 (33 S. E. 326, 76 Am. St. Rep. 834), and in a note to the case of Northern Pac. Ry. Co. v. Ely, 25 Wash. 384 (65 Pac. 555, 54 L. R. A. 526, 87 Am. St. Rep. 766), referring to the principle spoken of by Judge Dillon, it is said: “Many states have, however, followed Dillon in this regard, and, influenced undoubtedly by the apparent injustice of depriving individuals of property which they have occupied for years, aided by the negligence and laches of public officials and of the public courts, have applied the doctrine of equitable estoppel to such cases.” In the ease at bar the officers of the defendant knew that the streets and alley in question were inclosed, and must also have known that plaintiff, for more than twenty-five years, had been 'making valuable improvements thereon, and, these officers having permitted him to use the property without objection in a manner inconsistent with the assertion of any right thereto on the part of the city, such tacit permission and use evidence an abandonment of. the highway byjhe municipality, which qperates_t.o,_estop_it fro_m.flsserting the_rightjigw insisted upon, and, this being so, no error was committed in restraining the opening of such streets and alley, and hence the decree is affirmed. Affirmed.