Whitney v. Crittenden

229 P. 378 | Or. | 1924

COSHOW, J.

At the time the road involved in this suit was dedicated the law controlling that procedure was expressed in Chapter 70, Laws of 1909. Section 3 of that Chapter required that—

‘ ‘ The dedication, affidavit of the surveyor, approval by the county assessor and county court, and the drawings and inscriptions, shall be made upon the same sheet of paper upon which said plat, drawing, or diagram is made,” before the same shall be recorded.

The plat in question was prepared in every particular as prescribed by statute. By its language it expressly dedicated to the public forever the roads delineated thereon.

Conceding that it is necessary for a dedicated road to be accepted by the proper authorities before becoming irrevocably dedicated, we believe that the road involved in this suit was accepted. It is conceded that the County Court is the proper tribunal for formally accepting the dedication of a road or highway not within an incorporated city. The statute then in force prescribed the particular method for preparing a plat and dedicating the same with the roads or highways to the public use. The County Court presumably satisfied itself that the land offered for highways by dedication was suitable for that purpose. The statute required the approval of the County Court to be inscribed on the face of the plat. We can conceive of no object for the approval by the County Court except to accept the dedicated highways. Another consideration moving us to this conclusion is that the laws then in force provide for vacating highways of all kinds. It would seem that it was the legislative intent that a dedication made, approved and recorded in accordance with the statute, was a. grant irrevocable by the grantor. In case the land platted did not improve and the alleys and streets dedicated were of no public use, the grantor could, by following the procedure provided by the law, have the plat including the highways vacated.

No steps were taken by the defendants to vacate the plat or the roads involved in these proceedings.

If this had been merely a common-law dedication and no tracts had been sold with reference to the plat, even though the plat might have been recorded, but was not properly certified and approved, then the defendants probably would have been permitted to say that the implied dedication, by reason of the recordation of the plat, had been revoked by the conduct of the defendants. But here, the defendants formally, under their hand and seal, duly acknowledged and certified, dedicated the road to the public forever. The plat was certified as required by statute, was approved by the assessor and the County Court, which we believe constituted a formal acceptance of the dedication.

In none of the authorities relied upon by the defendants have we been able to find a contrary view where a statute like ours was in force. On the contrary, there are numerous authorities holding' that under a statute like ours formal acceptance is not required.

“In a number of jurisdictions the rule is that where a dedication is made in compliance with the statutes relating to the subject no acceptance is necessary to complete the dedication, and that when title has once become vested in a municipality by dedication it cannot be impaired by any inaction or delay of public officials in devoting the property to the use for which it has been dedicated.” 18 C. J. 73, § 68, par. 2, notes 86 and 87.

“A distinguishing* difference between a statutory and common law dedication is said to be that the former operates by way of a grant, and the latter by way of an estoppel in pais rather than by grant. In many of the states a valid statutory dedication operates to vest the fee in the city, or the county, as the case may be, and this has been held to dispense with acceptance on the part of the public.” 1 Elliott, Roads and Streets (3 ed.), 141, § 125. See also p. 185, § 165, and p. 187, § 166.

Interstate Iron & Steel Co. v. City of East Chicago, 187 Ind. 506 (118 N. E. 958); City of Denver v. Clements, 3 Colo. 472; Meacham v. City of Seattle, 45 Wash. 380 (88 Pac. 628); Osage City v. Larkin, 40 Kan. 206 (19 Pac. 658, 10 Am. St. Rep. 186, 2 L. R. A. 56); Fulton v. Mehrenfeld, 8 Ohio St. 440; Wallace v. Cable, 87 Kan. 835 (127 Pac. 5, 42 L. R. A. (N. S.) 587); Reid v. Edina Board of Education, 73 Mo. 295; Keyes v. Excelsior, 126 Minn. 456 (148 N. W. 501); Dillon’s Municipal Corporation (5 ed.), pp. 1727-1731, §1087.

In the instant case the deed of dedication is complete and formal. The tribunal, having jurisdiction of roads in the county, has formally expressed its approval in writing, which has been duly placed of record. We believe that formal approval and acceptance by the County Court constituted an acceptance for and in behalf of the county. The County Court constitutes the agent of the public having charge of the roads. That this is the interpretation of the legislature is very convincingly indicated by a later provision of the Code expressly providing that unless dedicated roads

“shall be expressly accepted by the county court as a county road, no funds of the county shall be expended in the improvement or repair of such road, highway, street or alley, nor shall the county, or any of its officers, be liable for the failure to improve or keep said highway in repair.” Section 4558, Or. L.

This clearly indicates that the act of approving and accepting the plat by the County Court constitutes an acceptance on the part of the public of the highway in the opinion of the legislature. In order to protect the county from being overburdened with numerous highways, the quoted part from said Section 4558, Or. L., was enacted. A highway may become an irrevocably dedicated highway and yet the county not be liable for its upkeep, repair, damages or for injuries resulting from the highway becoming out of repair. No question involving the county’s liability arises in this suit.

Notwithstanding the defendants filed no affirmative answer, the plaintiff filed a reply setting up an alleged estoppel. This irregularity was harm-' less. The same facts are alleged in the complaint. The substance of the reply is that the plaintiff had a way of necessity to her 12-acre tract; that the defendants had dedicated this highway connecting her said 12-acre tract with the county road; that the defendants had closed the way of necessity theretofore used by the plaintiff in traveling to and from her said 12-acre tract to the county road; that by reason of the acts of the defendants in preventing her from using the said way of necessity the defendants should be estopped from denying that the said dedicated road was a public road or highway. We think the facts stated in this reply are not sufficient to constitute estoppel, but the reply was not moved against and is supported by the evidence. Taken with the complaint it discloses sufficient interest in the plaintiff to enable her to maintain this suit: Bakke v. Johnson, 102 Or. 496, 500 (202 Pac. 1091).

Since the way of necessity has been closed to the plaintiff, the dedicated highway is the only method that plaintiff has to reach her said 12-acre tract. For a short distance the way of necessity and the dedicated highway occupy the same ground. The defendants concede that the plaintiff is entitled to the way of necessity. But the defendants having dedicated a highway, which we believe to have been irrevocably dedicated and duly accepted, eliminates any further need of a way of necessity. The plaintiff has elected to utilize the dedicated highway. For this reason the decree of the Circuit Court must be affirmed and it is so ordered. Affirmed.