City of Silverton v. Brown

• Decision Date: 10 December 1912
• Citation: 63 Or. 418,128 P. 45
• Parties: CITY OF SILVERTON v. BROWN et al.
• Court: Oregon Supreme Court

128 P. 45

63 Or. 418

CITY OF SILVERTON v. BROWN et al.

Supreme Court of Oregon

December 10, 1912

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Ejectment by the City of Silverton, a municipal corporation, against Edna J. Brown and another. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action of ejectment commenced by the city to recover possession of half of a street between Water street and Silver creek, a distance of approximately 43 feet. The cause was tried before a jury, and a verdict rendered in favor of defendants. From a resulting judgment, plaintiff appeals.

Plaintiff claims that defendants have wrongfully taken possession of a portion of Main street. Defendants deny this, and allege that defendant Edna J. Brown is and has been the owner, in fee simple, of the property since December 5, 1883. They pleaded the statute of limitations, asserting that Mrs. Brown and her grantors have been in the exclusive, adverse possession of the tract since 1867, under color of title. Plaintiff joins issue by its reply, and avers that defendant Edna J. Brown is estopped from claiming that she is the owner in fee simple and in possession of the real property, for the reason that Polly L. Price, the person from whom she derived her title laid out the town of Silverton (now the city of Silverton) causing the plat thereof to be recorded, and by such plat dedicated the streets shown thereon to the public, with a statement therein that Main street was 66 feet wide extending to Silver creek; and that Mrs. Price sold lots and tracts to the public generally by reference to the plat.

There was evidence introduced tending to show substantially the following facts: The original town of Silverton was laid out about the year 1854 by Mrs. Polly Price on a part of her donation land claim. In 1865 a survey of the town was made and a plat filed, a photographic copy of which is in the record. Water street is the nearest street to the creek which runs parallel therewith, or nearly so. The land between that street and Silver creek has never been subdivided into blocks and lots, but has always been conveyed by metes and bounds. At an early day there was a road leading into the town of Silverton from the south, crossing the creek at a ford below the point where it is claimed by plaintiff that Main street intersects the creek, and where a bridge was afterwards constructed. The bridge was rebuilt from time to time, practically in the same location, until the erection of the present structure, which is wider than the earlier ones and a little downstream. The end of the bridge furthest from the part of the street in question is further up the stream than the other end, crossing the creek somewhat at an angle. There is no record of the county road from the south, or of its survey; but there is some evidence of a resurvey made of such road some time in the 70's. At the time Mrs. Brown purchased the property, there was a wooden building thereon. This was burned about September, 1885. Shortly after she erected a two-story frame building, which projected some 5 or 6 feet over the line claimed by the city, with an outside flight of stairs leading to the second story, 3 1/2 or 4 feet wide, also on the disputed tract. In 1904 the wooden building was removed and a brick one constructed, extending 11 feet over the contested tract. The remainder of the area in controversy has been used for a storehouse for wood, shingles, and other things. Of late there has been a retaining wall built near the bank of the creek, and also on a line with the northerly side of the bridge, extending near the south line of the land in controversy to a point on Water street, 13 feet and 5 inches from the corner of the brick building; thence northerly to such corner. On top of this wall there is a sidewalk leading to the approach of the bridge. For some time the sidewalk in front of the brick building on Water street has extended southerly past the line of dispute. Main and Water streets are the two principal thoroughfares in Silverton. Prior to the time of the construction of the wooden building by Mrs. Brown in 1885, there had been a butcher shop and a shoe shop on the land. The butcher shop was built near the creek in 1861 or 1862, with a sidewalk leading from it to the bridge and also to Water street. According to some of the evidence, it remained there about four years. It appears that Main street has never been used its full width to an extension of its northerly line across Water street and the tract in litigation. It is conceded that the land in dispute is described in the mesne conveyances from Polly L. Price to defendant Edna J. Brown.

Geo. G. Bingham, of Salem (L.J. Adams, of Silverton, on the brief), for appellant.

Robert H. Down and Richard W. Montague, both of Portland, for respondents.

BEAN, J. (after stating the facts as above).

The principal question presented is one of fact. The testimony extends back to the 50's, and the matters in controversy, detailed by various witnesses, are peculiarly for the jury to determine.

The court instructed the jury to the effect that continuous adverse possession of the premises by the defendant Edna J Brown and her grantors, under a claim of right, for a period of 10 years or more immediately prior to February 23, 1895, would serve to invoke the statute of limitations to such an extent that any right which otherwise might be vested in the city of Silverton in the disputed premises would be extinguished; and therefore, if that had been proven, they should find for the defendant. To this instruction plaintiff excepted, and contends that it is erroneous, for the reason that the evidence of defendant was to the effect that her first encroachment occurred when the wooden structures were built, after the 23d of September, 1885, and less than 10 years prior to the enactment of February 23, 1895 (L.O.L. § 6371), withdrawing the right to...