Lankin v. Terwilliger

• Decision Date: 04 March 1892
• Citation: 22 Or. 97,29 P. 268
• Parties: LANKIN v. TERWILLIGER et al.
• Court: Oregon Supreme Court

29 P. 268

22 Or. 97

LANKIN v. TERWILLIGER et al.

Supreme Court of Oregon

March 4, 1892

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

Suit by J.V. Lankin against James Terwilliger and Julia Viola Richardson to restrain defendants from interfering with a right of way. From a judgment for plaintiff, defendants appeal. Reversed.

R. & E.B. Williams & Carey, for appellants.

U.S.G Marquam, for respondent.

BEAN J.

This suit is brought for the purpose of perpetually enjoining the defendants from inclosing, building upon, or otherwise obstructing what was formerly a county road adjoining plaintiff's property on the east. The plaintiff claims to have a right of way over the premises of defendants, the full width of the former county road. From the pleadings and stipulation of the parties, it appears that prior to and on the 3d day of January, 1871, the defendant James Terwilliger and his then wife, Philinda, were the owners of the donation land claim in Multnomah county, along the east side of which was located a toll-road, known as the "McAdam Road," and over and across which was located a county road leading from the town or village of Fulton to the city of Portland, and used by the public as and for a public road; that on the 3d day of January, 1871, Terwilliger and wife sold and conveyed by warranty deed to the Portland Homestead Association that portion of their donation claim west of the county road aforesaid, describing the land so conveyed by metes and bounds, commencing at a point on the west side of the county road at the south-east corner of a piece of land known as the "Old Cemetery," 5 chains south of the claim line between Terwilliger and Carruthers; thence with the meander of said road as follows: South, 1 degree west, 7.50 chains south, 12 degrees west, 7.50 chains; south, 24 3/4 degrees west, 4.87 chains, to the south-east corner of this tract of land; thence by courses and distances to the place of beginning. The deed also contained the grant of a right of way for three roads, 80 feet wide, across the intervening lands of the grantors, from the McAdam road to the land conveyed. Immediately after the purchase by the homestead association, it caused the land to be laid off into lots and blocks, and a map or plat thereof to be recorded in the proper office. As so laid off and platted, the lots in block B extend from Douglass street, as designated on the plat, to the county road. The plaintiff is now the owner by purchase and through mesne conveyances of all the right title, and interest of the homestead association in and to the east half of lot No. 3, in said block B, and has no way of egress or ingress to or from said property except over and along the road or way in controversy here. In January, 1880 the county of Multnomah having acquired by purchase or condemnation the McAdam road, the road over and across the Terwilliger place was discontinued by the proper authorities, and relocated on what was formerly the McAdam road. Subsequently the defendants, who are the successors in interest of Terwilliger and wife, took possession of the land formerly occupied by the county road, and, having inclosed the same, erected two houses thereon, and deny the plaintiff's right to use the same, or any portion thereof, as a way or otherwise. Hence this suit, which having been decided in plaintiff's favor in the court below, defendants appeal.

By the location of the county road over the lands of Terwilliger and wife, the public acquired no more than a right of way as an easement or servitude, with the powers and privileges incident thereto. The fee, and all rights of property not incompatible with the public enjoyment as a way, remained in the owners; and when the road was abandoned or discontinued by act of public authority the land covered by it immediately reverted to them, unincumbered by the easement or servitude. Elliott, Roads and S.670; Angel, Highw. §§ 301, 302; Jackson v. Hathaway, 15 Johns. 447.

But plaintiff claims that, because the land sold and conveyed to the Portland Homestead Association was at the time bounded on the east by a public highway over the lands of the grantors they and their successors in interest are estopped from setting up any claim or doing any acts inconsistent with the use of the road or way by their grantee or persons claiming under it, and that the discontinuance of the road by act of public authority only affects the rights of the public to use the road as a public highway. It seems to be a settled rule of law that where a grantor conveys land, describing it as bounded expressly on a street or way over his other lands, or by reference to a map or plan upon which a street is shown, he and those claiming under him are forever afterwards estopped to deny the existence of such street as to the grantee, his heirs or assigns, and if the way is a public highway, and by competent authority should afterwards be discontinued, such grantor or successor in interest cannot use the soil of the highway so as to defeat the right of way of the grantee, his...