City of Eugene v. Garrett

• Decision Date: 19 February 1918
• Citation: 170 P. 731,87 Or. 435
• Parties: CITY OF EUGENE v. GARRETT ET AL.
• Court: Oregon Supreme Court

170 P. 731

87 Or. 435

CITY OF EUGENE v. GARRETT ET AL.

Supreme Court of Oregon

February 19, 1918

Department 1.

Appeal from Circuit Court, Lane County; F. M. Calkins, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 169 P. 649.

S. P Ness and Hewitt & Dillard, all of Eugene, for appellants. O. H. Foster, City Atty., and Williams & Bean all of Eugene, for respondent.

BEAN J.

In a petition for rehearing counsel for defendants urge that this is not a suit for equitable cognizance, for the reason that plaintiff has not shown that the land improved within the street is not in the possession of another. There is more than one ground for equitable interference.

It is conceded that Agate avenue in the city of Eugene was regularly dedicated as a public street to the width of 90 feet, and that the plat and dedication were duly recorded. The fences and so forth mentioned in the answer of defendants indicate an encroachment upon this public highway.

It is also shown and unquestioned that a portion of the street is improved and occupied by the public to the width of about 70 feet. Where there is possession and user of a part of the street within the well-defined limits of the dedication, record of which has been duly made, it amounts constructively to an occupation of the entire dedicated width as designated upon the plat, in so far as the possession is necessary for the purposes of this suit. Joy v Stump, 14 Or. 361, 12 P. 929 ard v. Standard Oil Co.,

38 Or. 438, 447, 63 P. 614.

A city, as trustee of streets for the use of the public, is in duty bound to remove all obstructions and encroachments which materially disturb the public user. Any course may be adopted which is consistent with fundamental law and is adequate and best adapted to effect the desired result and protect the rights of the public in the street. 28 Cyc. p. 896.

An unauthorized obstruction of a public highway is a nuisance. 37 Cyc. p. 247. The application of section 341, L. O. L providing for the abatement of a nuisance, or a summary removal, might not be appropriate in a case of this kind where there is a difference of opinion between city officials and some dispute between lot owners and the city. The remedy provided by the section of the Code for nuisances is not conclusive; but whenever a nuisance will cause irreparable damage or require numerous actions, equity has concurrent jurisdiction with courts of law, and will enjoin continuance of the objectionable conditions. Fleischner v. Citizens' Inv. Co., 25 Or. 119, 129, 35 P. 174; Blagen v. Smith, 34 Or. 394, 402, 56 P. 292, 44 L. R. A. 522; Union Power Co. v. Lichty, 42 Or. 563, 566, 71 P. 1044; Morton v. O. S. L. Ry....