McCoy v. Thompson

• Decision Date: 01 May 1917
• Citation: 84 Or. 141,164 P. 589
• Parties: MCCOY v. THOMPSON.
• Court: Oregon Supreme Court

164 P. 589

84 Or. 141

MCCOY v. THOMPSON.

Supreme Court of Oregon

May 1, 1917

Department 1.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Injunction suit by Alice McCoy against E. A. Thompson. Decree for defendant and plaintiff appeals. Reversed.

Alice McCoy is prosecuting this suit in an attempt to enjoin E. A Thompson from inclosing and occupying a strip of land 40 feet in width, which the latter claims to own and the former asserts is a street. The controversy arises out of the platting of an addition to the unincorporated town of Mill City. H. J. Hadley owned a considerable tract of land, which was bounded on the south by the Santiam river. Hadley platted the south end of the tract and left the remainder unplatted. The plat delineates 12 lots arranged in a single row extending east and west with lot 1 as the east end of the row. All the lots except lot No. 4 are 100 feet deep, and with the exception of lot No. 4, all have a frontage of 50 feet on Front street. The Santiam river pursues a westerly course, and the entire space between the north bank of the Santiam river and the frontage of the 12 lots is labeled Front street. In brief, the plat portrays a row of 12 lots facing Front street which runs east and west, and is parallel with and next to the Santiam river. While the plat does not expressly state that it is drawn to a scale, it nevertheless appears to have been so drawn.

The land in controversy adjoins lot No. 1 on the east. It will be recalled that lot No. 1 is the east end of the row of lots. A single line is drawn on the plat to the east of, parallel with, and approximately the same length as the east side line of, lot No. 1. The open space between this single line and the east side of lot No. 1 is labeled thus: "Street 40 feet wide bears north." The plat contains the caption "Hadley's Addition to Mill City." The plat together with a writing signed by Hadley and a jurat signed by a notary public, was recorded on February 14, 1889, by the county recorder. The writing signed by Hadley is here set out:

"Hadley's Addition to Mill City. Laid out on my land Feb. 1, A. D 1889. The southeast corner of lot No. 1 is on the north side of the Santiam river 47 links north and three chains and ten links west of the N.W. corner of the Mill lot, of the Santiam Lumbering Company, which N.W. corner aforesaid is on the W. side of section 30 T. 9 S. R. 3 E. Wil. Mer. The lots are 50 by 100 feet and the first three are to the cardinal points, No. 4 is fractional 64 feet next to the river and 34 1/2 feet, back end. The south ends of lots 4 to 12 have a bearing N. 73~ 2' W. and their sides are at right angles thereto or N. 16~ 58' E. 100 feet. Front street occupies all the land between the lots and the river not more than 50 feet, situated in Marion county, state of Oregon. I herewith submit this plot and description for record."

The jurat bears date February 4, 1889, and reads thus:

"Personally came before me a notary public in and for the aforesaid county and state, the above-named H. J. Hadley, to me personally known to be the identical person who signed this instrument and who acknowledged to me that he executed the same freely and for the uses and purposes therein mentioned."

The plaintiff owns lot No. 1, and she traces her title through mesne conveyances to a deed made by Hadley. Under date of April 18, 1889, Hadley conveyed by warranty deed to Angus Scott Shaw "Lot No. 1 one in block No. 1 one in Hadley's addition to Mill City in the county of Marion and state of Oregon as it appears on the recorded plat of said Hadley's addition to Mill City in the recorder's office at Salem in said Marion county." Shaw and his wife moved on lot No. 1 in 1889 and lived there until 1899, when they sold the property and moved away.

The defendant claims title to the disputed land by virtue of a deed from James M. Wadsworth, who had previously purchased from Hadley. On April 29, 1904, Wadsworth received from Hadley a deed describing 106 acres and also lands described thus:

"The north half (1/2) of the southeast quarter of section thirty (30) in township nine (9) south of range three (3) east, except Hadley's addition to Mill City."

Subsequently, on March 27, 1915, Wadsworth executed and delivered to the defendant a warranty deed for lands described by metes and bounds including the disputed tract as well as other land.

At some time after he purchased lot No. 1, probably about 1893, Shaw went to Hadley and, according to the testimony of the latter:

"He asked me, if I remember aright, if I thought there would be any objection, or if I objected to him putting a garden in there, and as near as I can remember the answer I gave him that I had no objections if nobody else had."

Shaw constructed a fence across the south end of the 40-foot strip on the north line of Front street, but he also provided a gate so that a team and wagon could be driven in or out of the inclosure. This fence and gate were maintained continuously until about 1910, when both the fence and gate were torn down and removed. During the entire period beginning with about 1893 and ending with about 1910, Shaw and his successors used part of the 40-foot strip for garden purposes. The disputed strip remained open and uninclosed, or as one witness said, "It lay as waste land" from 1910 until July, 1914, when the defendant rented the disputed land from Wadsworth, erected on it a tent, in which he has since lived, and inclosed it by constructing a fence along the north line of Front street. After Thompson acquired his deed in 1915, he claimed that he was the owner of the 40-foot strip, and denied that the plaintiff or the public had any right to enter upon the disputed premises. The alleged street is of no direct benefit to any persons except the plaintiff, J. W. Jackson, who owns land immediately to the east, and possibly one other person. Some of the witnesses averred and others denied that the strip had been regarded by the public as a street. Two witnesses in addition to the plaintiff and her husband testified that they had used the premises as a street without asking permission from any one; but Wadsworth insisted that the witnesses first obtained permission from him. No part of the disputed strip has ever been improved as a road or street and no public officer has ever asserted or exercised control over it.

The complaint avers that Hadley dedicated the land as a street. The answer denies the alleged dedication, and avers that the defendant and his predecessors have had adverse possession for the requisite period of time, The trial court found that the land had never been laid off or platted as a street, and that the defendant owned the premises in fee simple. The decree followed the finding, and the plaintiff appealed.

W. H. Trindle, of Salem (C. Z. Randall, of Salem, on the brief), for appellant. John H. McNary, of Salem (L. M. Curl, of Albany, and McNary & McNary, of Salem, on the brief), for respondent.

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

Although the plaintiff contends that a street extends from Front street for a distance of 160 feet, or 60 feet beyond the rear or north end of lot No. 1, yet, since there is no evidence to sustain a finding that a street extends farther than 100 feet or the length of lot 1, we shall confine our attention to the question of whether a street 40 feet wide extends from Front street along the east side of lot No. 1. If Hadley did not, by his acts and conduct, dedicate the disputed strip as a street, then plaintiff cannot prevail, and therefore the first inquiry is whether there was a dedication.

The inquiry will not be influenced by the parol testimony given by Hadley to the effect that he intended to dedicate the land as a street. We do not undertake to determine whether that testimony was competent, since it is in no wise necessary to a decision of this suit; and, while there is a contrariety of judicial opinion concerning that character of evidence, we content ourselves by merely noting some of the relevant authorities and assuming that the evidence is incompetent. Hobson v. Monteith, 15 Or. 251, 256, 14 P. 740; Spencer v. Peterson, 41 Or. 257, 260, 68 P. 519, 1108; 1 Elliott on Roads and Streets (3d Ed.) § 173; Los Angeles v. McCollum, 156 Cal. 148, 103 P. 914, 23 L. R. A. (N. S.) 378 .

Dedications are of two general kinds; statutory and common law. Nodine v. Union, 42 Or. 613, 616, 72 P. 582. Common-law dedications may either be express or implied. 1 Elliott on Roads and Streets (3d Ed.) § 133. Generally by reason of the terms of the statute, a statutory dedication operates as a grant. 8 R. C. L. p. 897. Some authorities declare that common-law dedications always operate upon the principle of an estoppel, while others go no further than to say that such a dedication is of itself a distinctive common-law doctrine based upon principles analogous to those underlying estoppels. The theory usually accepted is: That to reclaim land would be a violation of good faith to the public and to those who have acquired private property with the expectation of enjoying the use contemplated by the dedication; and in case of the sale of a lot with reference to a plat there is the added feature that an easement indicated by the plat constitutes a part of the consideration passing to the purchaser. 8 R. C. L. p. 906; 13 Cyc. 437; 1 Elliott on Roads and Streets (3d Ed.) § 125.

Upon examination of the writing accompanying the plat it will be observed that there are no words of grant, and although Front street is mentioned, no direct reference is made to any other street. Obviously it was the purpose of Hadley to comply with the requirements at that time exacted by the statute. The writing is not in the form...