77 P. 393 | Or. | 1904
delivered the opinion.
1. The plaintiffs claim to be the owners in fee of that portion of First Street in the Town of Empire City, Coos County, Oregon, as denoted on the plat thereof filed by W. H. Harris and A. N. Foley, November 19, 1858, beginning with the southern boundary of F Street, and extending southwesterly ninety feet, and also of about fourteen feet in width of F Street, beginning at the meander line where it crosses said street, and extending westerly along the northerly boundary of block 6, and beyond to deep water
In 1891 the common council of the Town of Empire City reestablished the base line along Broadway Street, from which to determine the location of streets, lots, and blocks in the town and its additions, and on January 19, 1892, adopted an ordinance for the improvement of First Street, from the southern line of E Street to within seven feet of the southern line of F Street, by constructing an elevated roadway and decking the same With planks, the cost of which improvement was assessed against the abutting property. Among others, a portion was assessed against lots 5 and 6, in block 6, to Patrick Flanagan, the ancestor of plaintiffs, and from whom they derive their title. It will be noted that these lots lie at the southwest corner of the square formed by the intersection of First and F streets, all but seven feet of the southerly portion of which was included in the improvement. This assessment was paid, whether by Patrick Flanagan or not does not appear. Lots 5, 6, 7, and 8, in block 6, have been from time to time assessed by the county to the predecessors of plaintiffs. After obtaining title from the State, PI. P. Whitney constructed a driveway from First Street, commencing,
Evidently, when Harris and Foley dedicated the Town of Empire City in 1858, they nor neither of them owned the tideland which is indicated as lying westerly from the meander line designated by the government survey, and could not, therefore, lawfully make dedication of any part thereof to the public. How Whitney came by lot 8, in block 13, does not appear. He probably purchased with reference to the plat, however, and this holding very likely formed the basis for his purchase of tideland from the State, which includes the premises in dispute. But Whitney has not, nor have plaintiffs’ other predecessors in interest, conveyed with reference to the plat of Empire City, or in that manner adopted, approved, or ratified it. They continuously maintained the building erected by Rogers in First Street until destroyed, and the crosswalks in connection therewith, so as to exclude the public from the entire street, except upon the walk constructed by Kiley along his building, and since maintained by him and his successors in interest. As to this walk, plaintiffs’ predecessors seem never to have exercised any control over it or to have claimed any right with reference to it, and as to it the use has been adverse to plaintiffs. Plaintiffs’ predecessors have had and maintained a like use of the driveway along F Street to the bay, exclusive of the public,
2. It is further insisted by counsel for defendant that plaintiffs and their predecessors have ratified the dedication of the town plat, as made by Harris and Foley, by having paid the taxes levied from time to time on lots 5, 6, 7, and 8, in block 6, of the Town of Empire City, so described upon the assessment roll, and the assessment for street improvements heretofore alluded to ; but we do not think that such is the result or legal effect of their acts in that respect. They were not called upon to supervise or revise the acts of the officers of the county or town, if inaccurate or erroneous, and the mere payment, without objection or protest, of taxes and assessments levied and made upon realty, is an act without persuasive force as indicating an adoption or ratification of any particular plat with reference to which the levies and assessments were made.
3. Nor do we think that the act of the common council in reestablishing the base line by ordinance in 1891, from which to determine the correct location of streets, lots, and blocks in the city and its additions, had any tendency to preclude the plaintiffs as it relates to the dedication of said
Another contention advanced by defendant’s counsel is that the tideland did not extend to the meander line indicated by the government survey; but the strong weight of the testimony is against the position.
It follows from these considerations that the decree of-the trial court should be modified so as further to except from plaintiffs’ ownership in fee that portion of the square formed by the intersection of First and F streets included in tract No. 2 as described in the complaint, and in all other respects it should be affirmed, and such will -be the decree of this court. Modified.