Booth v. Prineville ( 1914 )

Mr. Justice Moore

delivered the opinion of the court.

This is an appeal by the plaintiff from a decree dismissing his suit instituted to determine an adverse title to real property and establishing the defendant’s easement in and right of possession of a part of Third Street in Prineville, Oregon, 49 feet along that highway and 80 feet across it. The plaintiff’s alleged title to the tract, as against the defendant’s is asserted to have been secured by adverse possession for more than 10 years prior to May 24, 1895, when the statute went into effect, prohibiting the right of cities and towns in Oregon to land dedicated or otherwise acquired for public use for streets, etc., to he extinguished by mere prescription: Laws 1895, p. 57. See, also, Section 6371, L. O. L.

It appears from the transcript herein that Monroe Hodges secured from the United States a grant of public land in what is now Crook County, Oregon. He thereafter caused a part of the premises to he surveyed and platted as the town of Prineville. Attached to the plat, a copy of which was received in evidence, is a sealed instrument executed by him and his wife, hut not containing any grant to the public of the use of the streets and alleys delineated on the map. The certificate of the notary public taking the acknowledgment, however, is to the effect that Hodges and his wife executed the instrument “for the purpose of making the same a public record, and to dedicate to the public use the streets and alleys therein mentioned, and to fix the boundaries of the streets, blocks and lots in said town.” The plat was duly recorded July 31, 1883. On the west side of the land so surveyed is block 7, which is separated from block 14, immediately north thereof, by Third Street.

Lucy S. Booth, the plaintiff’s wife, in the fall of 1891, secured the legal title to the north one third of block 7, and thereupon with her husband established a residence on the premises. At that time the north boundary of the land so obtained by her was fenced. Hodges then owned block 14 and had a fence on the south line thereof. He had also built a fence across the street where it is now obstructed, from his south line to the north boundary of the land secured by Mrs. Booth. Soon after moving on block 7, the plaintiff, in consideration of $50, purchased from Hodges the land in controversy herein and an adjoining tract about 30 or 40 feet in length to Crooked River, but no attempted conveyance of the title was máde until January 31, 1898, or more than 2 years after the statute prohibiting the extinguishment of the public use to streets became operative, when Hodges and his wife executed to him a warranty deed therefor, wherein the premises were described as follows:

“Commencing at a point one hundred and ninety-one feet west of the southeast corner of block 14 of M. Hodges’ plat of Prineville, Oregon; thence west to the east bank of Crooked River to low-water mark; thence south along said east bank of Crooked River to a point due west of the northeast corner of block 7, of said M. Hodges’ plat; thence east to a point due south of the point of beginning; thence due north to point of beginning. ’ ’

This deed was recorded February 5, 1898.

The south boundary of block 14 as platted is divided by the survey into three lots, each 80 feet wide, so that by measuring west from the southeast corner of the block 191 feet, as specified in the deed, 49 feet of the street remains. The defendant’s original easement therein for the use of the public as a highway is conceded, so it will not be necessary to consider the effect of any conveyance made by Hodges of land in the town of Prineville by reference to lots and blocks indicated on the plat from which a dedication of the streets may be implied. It remains, therefore, to be seen' whether the defendant’s right of possession has been lost by the- occupation of the plaintiff and his grantors.

The testimony conclusively shows that from some time prior to the year 1889 to the trial of this cause the premises described in the deed executed by Hodges and his wife to Booth have been inclosed and constantly used as a corral for horses in the winter months and for the growth of potatoes and other vegetables during most of the summers. Plaintiff testified that until the year 1906 he did not know that any part of the land so conveyed to him was included in the street, and that all that he had ever done was to keep up the fences inclosing the tract. No permanent improvements whatever have been made upon any part of such premises. The doctrine of equitable estoppel, which in some jurisdictions is enforced against municipal corporations, is based upon the assumed injustice which would result to private parties who, relying for many years upon the tacit acquiescence of public officers to assert a right to the use of a street, have made permanent and valuable improvements therein, if they were deprived thereof by opening the highway would sustain great pecuniary loss: Schooling v. Harrisburg, 42 Or. 494 (71 Pac. 605); Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376, 7 L. R. A. (N. S.) 243, and notes); Cruson v. City of Lebanon, 64 Or. 593 (131 Pac. 316). In the latter case the improvements made on the line of an alley consisted of putting out three cherry trees, planting flowers and shrubbery, and growing a large maple tree, and it was held that they were not of sufficient value or importance to authorize an application of the rule of an estoppel in pais. The authorities there cited are so much in point, and the reason given for the legal principle asserted is so cogent, that it is unnecessary to refer to them. The decision in that case is controlling herein.

It follows that the decree should be affirmed, and it is so ordered.

Affirmed.