A. C. Bohrnstedt Co. v. Scharen
| Decision Date | 19 December 1911 |
| Citation | 119 P. 337,60 Or. 349 |
| Parties | A.C. BOHRNSTEDT CO. et al. v. SCHAREN. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Lane County; Lawrence T. Harris, Judge.
Suit by the A.C. Bohrnstedt Company and others against W.J. Scharen to enjoin the obstruction of an alleged public road. From a decree dismissing the suit, plaintiffs appeal. Affirmed.
S.P Ness, for appellants.
Wm. G Martin, for respondent.
It appears from the testimony that about the year 1883 William R. Dillard held the legal title to land in Lane county. Joining a part of his premises on the east, his brothers Luther and George then owned undivided interests in land that extended east a mile to a north and south county road. The land so held in common was partitioned, and Luther Dillard obtained a strip off the north end about 59 rods wide, and George Dillard secured the remainder. In locating the boundary thus determined, it seems that the line was placed too far north. William R. Dillard having no road to his land, the brothers mentioned agreed with him that he should have a passageway along such division line, and pursuant to the stipulation, fences were built forming a lane in the center of which the boundary was supposed to have been. No deed or other writing was ever executed to evidence the way, nor did Luther Dillard or his successors in interest ever plat or sell any of the north strip with reference to the lane. The west end of the way was closed with a gate through which William R. Dillard and persons who lived west of his premises and their successors in interest passed and traveled along the lane to and from the county road for more than 10 years prior to any interference with the way, and without objection from any person or notice that the lane was private property. Several persons who thus used the lane joined in repairing it occasionally, but no public money or labor was ever expended thereon.
The William R. Dillard land is now owned by M.R. Hastings. The defendant is in possession, under a contract to purchase, of the premises formerly owned by Luther Dillard. The Bohrnstedt Company, having secured a deed of the George Dillard land caused it to be surveyed and platted into small tracts which are being cultivated, and fruit trees set out thereon with a view of selling the orchards. The corporation's entire tract has passageways extending from the south boundary on each side of double tiers of small tracts to the lane. The plaintiffs Olson, Settenrich, and Sloan have secured from the Bohrnstedt Company contracts for the purchase of orchard lands and Pirie, Gay, and Jordan had formerly traveled along the lane. A public highway has been established from the county road on the north boundary of the land of which the defendant is in possession, thence west across the premises owned by Hastings, and by other persons to and terminating at a north and south county road. The premises on which such east and west highway is located were conveyed by the respective owners to the county, the grantors agreeing with each other that, when the road was opened, they would relinquish to Scharen whatever interests they may have had in or to the lane. The cross-road was opened for travel about October, 1909, whereupon the defendant began to obstruct the lane precipitating this suit which resulted as hereinbefore indicated.
Some controversy exists as to whether or not William R. Dillard paid any consideration to his brothers for the use of the way evidenced by the lane. This question, however, is not regarded as important, for it seems to have been conceded by the defendant that the way was an appurtenant which passed by mense conveyances to Hastings, who relinquished all interest therein in consideration of securing the establishment of a public highway across his land. No evidence was offered tending to show either an express or an implied dedication of the way, or to prove any privity of contract or estate between...
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City of Clatskanie v. McDonald
...... [167 P. 562.] with the title on which defendants rely. 1 R. C. L. 704; 2. C.J. 124; Bohrnstedt Co. v. Scharen, 60 Or. 349,. 354, 119 P. 337. The evidence tends to show that no such. claim was asserted by plaintiff until 1915, ......
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Woods v. Hart
...the theory was not presented below we need not now consider it. 4 The decree of the trial court is affirmed. 1 A. C. Bohrnstedt v. Scharen, 60 Or. 349, 119 P. 337 (1911); Feldman et ux v. Knapp et ux, 196 Or. 453, 250 P.2d 92 (1952).2 For other cases see Annotation: Easement by Prescription......
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Feldman v. Knapp
...or otherwise that it was not adverse.' Coventon v. Seufert, supra, is cited in support of the prevailing rule. Also see Bohrnstedt v. Scharen, 60 Or. 349, 119 P. 337; McDougal v. Lame, 39 Or. 212, 64 P. Under the facts and circumstances of this case a presumption arose that the user by plai......
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Sipp v. Bryant
...the free right of passage, nor will it be burdened with the duty of making it safe and convenient for passage.' A. C. Bohrnstedt Co. v. Scharen, 60 Or. 349, 353, 119 P. 337. See, also, City of Clatskanie v. McDonald, 85 Or. 670, 673-674, 167 P. 560; Peters v. Robertson, 73 Or. 263, 266, 144......