Bayard v. Standard Oil Co.

• Decision Date: 14 January 1901
• Citation: 38 Or. 438,63 P. 614
• Parties: BAYARD et al. v. STANDARD OIL CO.
• Court: Oregon Supreme Court

63 P. 614

38 Or. 438

BAYARD et al. v. STANDARD OIL CO.

Supreme Court of Oregon

January 14, 1901

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by C.E. Bayard and another, as administrators of the estate of Perry Watkins, deceased, against the Standard Oil Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

By this action plaintiffs seek to recover damages for injuries resulting in the death of one Perry Watkins, alleged to have been caused by placing an unlawful obstruction in a public highway. Prior to June 27, 1896, the defendant had constructed a foundation of brick, by the side of or near the beaten track of a publicly traveled highway, and on that day was engaged in placing an oil tank thereon, 10 1/2 feet in diameter, and 30 feet in length, cylindrical in form, and of a red or light brown color. When the tank was nearly in place, one Julian was driving by, and as he came opposite his team became frightened, and ran upon the deceased, who was in a hack, driving ahead, causing his death. The theory of the plaintiffs is that the highway was a public county road; that the tank constituted an obstruction and a public nuisance within such road; and that the frightening of Julian's team thereat was the proximate cause of the injuries complained of. To sustain their contention, they introduced in evidence the records of the attempted establishment by the county court of Wasco county, Or., in 1867, of a county road from The Dalles to the Lower Deschutes bridge, consisting of the original papers on file and record proceedings relating to the matter. These were not offered for the purpose of showing a valid establishment of the highway, but to show color of title merely, to be followed by proof that it had been opened up and used by the public for about 28 years regularly and continuously, prior to the accident. Other evidence was produced, tending to show that between the years 1867 and 1880 there was a road leading from The Dalles to the Lower Deschutes bridge, commonly known as "The Dalles and Deschutes Road," which was regularly traveled by the public; that it was worked by the road supervisor from time to time; and that the thread or beaten track thereof passed over the ground where the oil tank was being placed. The defendant produced evidence tending to show that one Mary Laughlin was the donee from the general government of the locus in quo; that on July 12, 1881, she deeded to the Oregon Railway & Navigation Company a strip of land, comprising the premises, upon which the oil tank was placed; that the Oregon Railway & Navigation Company, sometime about the year 1882 constructed an ice house near the west end thereof, and a few feet to the east of where the oil tank was subsequently erected; that since said time the traveled track turned to the south, but in close proximity to the ice house, after passing which it gradually bears back, until it connects with the old way, several rods further west. The tank extends south, even with the ice house, but not upon the beaten track of the road as now used, and the defendant claims to have the authority of the Oregon Railway & Navigation Company for erecting it at that point. There was a motion for a nonsuit at the close of the plaintiffs' testimony, and again at the close of the trial, both of which were overruled, and the final judgment being favorable to the plaintiffs, the defendant appeals.

H.M Cake and W.D. Fenton, for appellant.

A.S. Bennett, for respondents.

WOLVERTON, J. (after stating the facts).

The plaintiffs' cause of action depends upon whether the oil tank was being placed within and upon a public county road. If it was, the right of recovery is clear, the other conditions being that it must have been the proximate cause of the injury, which must have been special and peculiar,--other and greater than that sustained by the public generally. Milarkey v. Foster, 6 Or. 378; Wakeman v. Wilbur, 147 N.Y. 657, 42 N.E. 341.

The first question of material moment arises upon the motion for a judgment of nonsuit, and has relation to the competency of the ineffectual road proceedings, as showing color of title in the public. The only way in which the record could serve the plaintiffs is to extend possession constructively to the whole, if there has been occupancy of any part within prescribed boundaries. User by the general public, under a claim of right, adversely, and not by mere possession of the owner, for the period prescribed by the statute as a limitation beyond which actions for the recovery of real property cannot be maintained, will establish an easement in favor of the public. But the use must be continuous and uninterrupted, and substantially by way of a certain and well-defined line of travel, for the entire period. Elliott, Roads & S. (2d Ed.) §§ 175, 176; Jones Easem. § 458; State v. Auchard (Mont.) 55 P. 361; Shellhouse v. State, 110 Ind. 509, 11 N.E. 484; Manrose v. Parker, 90 Ill. 581; State v. Keokuk, C., St.J. & C.B.R. Co., 45 Iowa, 139.

It is not material to the present inquiry whether such an easement is acquired by prescription, which presupposes an establishment by competent authority, or by dedication, which implies a grant; for it is clear that such an easement may be acquired by adverse user, by whatsoever name the process of establishment may be called. As a general rule, when the highway depends solely for its establishment upon adverse and continuous user by the general public, its width and extent of servitude are measured and determined by the character and extent of the user, for the easement cannot, upon principle or authority, be broader than the user. Marchand v. Town of Maple Grove, 48 Minn. 271, 51 N.W. 606; Paper Co. v. West, 58 Wis. 599, 17 N.W. 554; Bartlett v. Beardmore, 77 Wis. 356, 46 N.W. 494; Scheimer v. Price, 65 Mich. 638, 32 N.W. 873; Western Ry. v. Alabama G.T.R. Co., 96 Ala. 272, 11 So. 483; Bank v. Stockwell, 84 Mich. 586, 48 N.W. 174. Other conditions, however, may be effective to extend the exterior limits beyond the thread or course of actual travel, as where inclosures may have been permanently maintained by persons affected with reference to the highway, or the use is referable to a survey and plat recognized and adopted by owners of lands over which the way extends, or was under color of ineffectual proceedings to establish a legal road under the statute. Whitesides v. Green (Utah) 44 P. 1032; Pillsbury v. Brown, 82 Me. 450, 19 A. 858, 9 L.R.A. 94; Sprague v. Waite, 17 Pick. 309; Bartlett v. Beardmore, supra. Even where the highway is founded solely upon user, its width or extent of servitude is usually a question of fact for the jury. It would seem that it ought not, where the topography of the locality will permit, to be confined exclusively to the beaten track or thread of actual travel, because of the exigency that experience has shown for the passing and repassing of those in the use of it. And circumstances such as that the use has been with reference to natural objects or artificial obstructions, or the character of the way requires improvement, necessitating access to the wayside, are pertinent for the consideration of the jury in determining the question. Davis v. City of Clinton, 58 Iowa, 389, 10 N.W. 768; Marchand v. Town of Maple Grove, supra.

It may be conceded, for the purposes of this case, that the irregular and ineffectual proceedings of the county court constituted color of title, so that a claim of right and continuous possession and user for the statutory period would give establishment to the highway for the full width designated in the supposed proceedings. Ordinarily, there must be an entry under, and a claim of right with reference to, the colorable title, in...