Fraser v. City of Portland

• Decision Date: 27 June 1916
• Citation: 158 P. 514,81 Or. 92
• Parties: FRASER v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

158 P. 514

81 Or. 92

FRASER v. CITY OF PORTLAND.

Supreme Court of Oregon

June 27, 1916

In Banc.

Appeal from Circuit Court, Multnomah County; John S. Coke, Judge.

Suit by John J. Fraser against the City of Portland. From a decree for respondent, complainant appeals. Reversed, with directions.

John J Fraser owns a five-acre tract of land in Portland. East Twenty-Ninth street extends north and south and ends in a cul-desac at the northeast corner of the Fraser acreage. Siskiyou street extends east and west and terminates at the east line of the five-acre tract. If East Twenty-Ninth street should be extended across the land owned by Fraser, a junction would be formed with Siskiyou street, because what is now the east boundary line of the acreage would by such street extension become the east line of the extended street. The city of Portland constructed a sewer along and to the end of East Twenty-Ninth street, and then over the land of plaintiff, on a line which would be within East Twenty-Ninth street if extended, to the end of Siskiyou street, and thence east along that street. While the sewer was in course of construction, but before the work had reached the Fraser land, George A. Ries, a representative of the city, called upon Fraser on September 18, 1912, for the purpose of acquiring a right of way over his premises. The plaintiff was advised of the fact that the city had planned to lay the sewer across his land. During the interview Fraser told Ries that "he would not under any consideration give a right of way, and if the city attempted to put a sewer across there he would fight it." Prior to the interview between Ries and Fraser a proceeding was commenced for the purpose of extending East Twenty-Ninth street across the Fraser land and according to the testimony of Ries "the city expected the street would be opened in there for a sewer to be constructed across the property." The city engineer explains the delay in seeing Fraser about a right of way by saying that the municipal authorities were "expecting the city would obtain East Twenty-Ninth street as a street." The attempt to open the street was defeated while the sewer was under construction, and although the city was without a right of way when the work of construction reached the Fraser land, nevertheless a trench was dug and the sewer laid from the end of East Twenty-Ninth street across the Fraser property, to the end of Siskiyou street. The land was occupied by a tenant, and Fraser says he first knew of the sewer being laid on his property when, about a month after the talk with Ries, he "went there and found the sewer had been dug and the pipe laid across my place." Fraser did nothing, except to consult a lawyer until March 21, 1913, when he filed a writing with the city council demanding the removal or the sewer from his land and objecting to an assessment of $683.80 which the city proposed to levy on his property to pay for constructing the sewer. In the following May the plaintiff commenced this suit to restrain the defendant from collecting the $683.80 assessment and to require the removal of the sewer from his premises. A trial resulted in a decree dismissing the suit, and the plaintiff appealed.

Ralph R. Duniway, of Portland (J. H. Middleton, of Portland, on the brief), for appellant. Henry A. Davie, of Portland (Walter P. La Roche, City Atty., of Portland, on the brief), for respondent.

HARRIS J. (after stating the facts as above).

The city takes the position that the plaintiff is estopped to ask for the removal of the sewer from his land, because he had notice of the intention of the city to construct the conduit across his property, but notwithstanding such knowledge he neglected to object until after the completion of the improvement, when the rights of the public had intervened. The city cannot defeat the suit, unless an equitable estoppel can be raised as an insurmountable barrier.

When the city planned the improvement, the municipal authorities assumed that by the time they would be ready to lay the sewer East Twenty-Ninth street would be extended so as to connect with Siskiyou street. The attempt to open the street was defeated. The defendant made no move to secure a right of way over the Fraser property until after the work of constructing the sewer had commenced, and when the municipality did move it was told by Fraser that if it attempted to lay a sewer across his land "he would fight it." The city, however, laid the sewer in spite of the notice not to lay it. The trench was dug, the pipe was laid, and the conduit was completed across his property, except filling the trench, when Fraser for the first time knew that the sewer was being constructed across his land. It is true that Fraser said nothing more to the city and made no formal objection until about five months afterwards, when he served a written notice to remove the sewer.

Nearly every element essential for the creation of an equitable estoppel is wanting. Mere silence, or, in the language of previous judicial opinions, "passive acquiescence," does not by itself, create an irrevocable license or produce an estoppel. Lavery v. Arnold, 36 Or. 84, 86, 57 P. 906, 58 P. 524; Hallock v. Suitor, 37 Or. 9, 12, 60 P. 384; Ewing v. Rhea, 37 Or. 583, 587, 62 P. 790, 52 L. R. A. 140, 82 Am. St. Rep. 783, expressly overruling Curtis v. La Grande Water Co., 20 Or. 34, 23 P. 808, 25 P. 378, 10 L. R. A. 484; Carson v. Hayes, 39 Or. 97, 107, 65 P. 814; Bolter v. Garrett, 44 Or. 304, 307, 75 P. 142; wn v. Gold Coin Min. Co.,

48 Or. 277, 284, 86 P. 361; Shaw v. Proffitt, 57 Or. 192, 202, 109 P. 584, 110 P. 1092, Ann. Cas. 1913A, 63; National Fire Alarm Co. v. Portland, 59 Or. 409, 417, 117 P. 285; Booth-Kelly Lbr. Co. v. Eugene, 67 Or. 381, 383, 136 P. 29. The defendant, however, cannot even claim that Fraser remained silent. He told the city in plain words that he objected and would fight any attempt to lay the sewer across his property. The defendant was a trespasser when it constructed the sewer across the Fraser land.

The owner did not tell the city that it could lay the sewer across his property, and consequently it is not necessary to determine whether an express oral permission, if acted upon would alone be sufficient to create an irrevocable license, although the following cases may appear to give support to such conclusion: Garrett v. Bishop, 27 Or. 349, 353, 41 P. 10; McBroom v. Thompson, 25 Or. 559, 37 P. 57, 42 Am. St. Rep. 806; Kelsey v. Bertram, 63 Or. 563, 565, 127 P. 777; Dwight v. Giebisch, 150 P. 749, 752. Since Fraser did not expressly consent to the improvement, the present controversy does not call for an attempt to distinguish expressions found in the last-mentioned cases from, or to reconcile them with, the following adjudications holding that an oral permission does not result in an irrevocable license, unless a consideration is paid by the licensee or some benefit accrues to the licensor; Lavery v. Arnold, 36 Or. 84, 86, 57 P. 906, 58 P. 524; Hallock v. Suitor, 37 Or. 9, 13, 60 P. 384; Ewing v. Rhea, 37 Or. 583, 585, 62 P. 790, 52 L. R. A. 140, 82 Am. St. Rep. 783; Miser v. O'Shea, 37 Or. 231, 237, 62 P. 491, 82 Am. St. Rep. 751; Bolter v. Garrett, 44 Or. 304, 307, 75 P. 142; ...