Menstell v. Johnson

• Decision Date: 10 April 1928
• Citation: 125 Or. 150,266 P. 891
• Parties: MENSTELL ET AL. v. JOHNSON ET AL.
• Court: Oregon Supreme Court

266 P. 891

125 Or. 150

MENSTELL ET AL. v. JOHNSON ET AL.

Supreme Court of Oregon

April 10, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

On petition for rehearing. For original opinion, see 262 P. 853. Former opinion modified, and petition for rehearing denied.

Frank H. Reeves, of Portland, for appellants.

J. P Winter, of Portland (Winter & Maguire, Johnston Wilson, Cake & Cake, and L. A. Liljeqvist, all of Portland, on the brief) for respondents.

ROSSMAN, J.

The petition for a rehearing is accompanied with a brief on behalf of the defendants, which presents an extensive review of the principles of law applicable to the facts of this case. Counsel for the Ladd Estate Company, appearing amicus curiæ, has presented the court with a brief which also analyzes the law appertaining to dedications and the creation and operation of various restrictions. The consideration thus given to this case by counsel, and the importance of this matter, leads us to believe that a further presentation of our views may be of some service.

Let us first consider some of the provisions of our Code applicable to dedications of streets, parks, and other public places. As we proceed, it will be well to bear in mind the difference in the principles of law applicable to a statutory dedication as distinguished from a common-law dedication. The former operates by way of grant; the latter depends largely upon the principles of estoppel for its efficacy.

The framers of our Code attached such importance to plats that in 1864 they enacted into law what is now section 3807, O. L making it a penal offense for "any person or persons who shall dispose of or offer for sale, * * * any lot or lots in any town or addition to any town or city, * * * which has been or shall be hereafter laid out, until the plat thereof has been duly acknowledged and recorded in the recorder's office. * * *" Section 3809 of the Code provides:

"Every donation or grant to the public, including streets and alleys, or to any individual or individuals religious society or societies, or to any corporation or body politic, marked or noted as such on the plat of the town wherein such donation or grant may have been made, shall be considered to all intents and purposes as a general warranty to the said donee or donees, grantee or grantees, for his, her, or their use for the purposes intended by the donor or donors, grantor or grantors, as aforesaid."

Section 3824, O. L., provides:

"In cases where any person interested in any corporated town in this state, the corporate functions of which shall be in active operation, may desire to vacate any street, alley, or common, or part thereof, it shall be lawful for such person to petition the common council or other body in like manner as persons interested in towns not incorporated are authorized to petition the county court; and the same proceeding shall be had thereon before such common council or other corporate body having jurisdiction as authorized to be had before the county court, and such common council or other corporate body may determine on such application, under the same restrictions and limitations as are contained in the foregoing provisions of this act."

Section 3826 provides:

"In all cases where two or more persons have laid out or shall hereafter lay out a town, or lands contiguous and adjoining to each other, and such town does not improve, either of the individuals holding all the legal rights, title, and interest in all the lots laid off by such party and attached may have the same vacated as in case of a lot, street, or alley on application of the party laying out such addition or part of said town, or on the application of such person as may acquire or derive the legal title to the land and lots in such addition; and in no case shall persons purchasing lots in other additions of said town be capable of making any valid objection to said vacation if such vacation does not obstruct any public road or highway laid out and established by law."

Section 3827 provides:

"If any person shall lay off an addition to any town, which does not improve, and shall be the legal owner of all the lots contained in such addition, such person, or any other person who shall become the legal owner thereof, may have such addition or any part thereof vacated in like manner as provided in the last preceding section."

Section 3828 provides:

"Whenever the county court or city council shall refuse the application of any person or persons, made as provided in this chapter for the vacation of any part of any town or city, such person or persons may appeal from such order refusing such application to the circuit court of the county where such town or city is situated."

These legislative enactments became the law of this state with the session of 1864; they constitute a complete method for the filing of plats, the dedication of streets, alleys, and public places, and the vacation of the public places shown on the plat. In 1909 (Laws 1909, cc. 70, 144) the Legislature amplified the foregoing by requiring that the plat shall show the initial point of the survey; that the affidavit of the surveyor shall be attached to the plat; that all plats offered for recording shall be filed in a plat book; and that whenever a plat or any portion is vacated the proper notation shall be made upon it. The 1913 (Laws 1913, c. 111) and 1919 (Laws 1919, c. 15) Legislative Assemblies further amplified some of these provisions. Thus in 1891, when W. S. Ladd filed the plat of Ladd's addition, the law had made provision for filing the plat, and also for vacating any public places shown on the plat, should that seem desirable. The amplified features of these acts came into operation in 1909 when the sale of lots began to become active, and this is the period of time when the defendants say the blue lines were eliminated by the act of the purchasers in accepting deeds which contained building restrictions and warranties against all other incumbrances.

It is conceded by all that the dedication was accepted. The streets were improved, the park areas were adorned with shrubbery, and, though the evidence is silent, we believe that the record warrants the assumption that even the alley ways have been accepted by the public. The general acceptance of the easement for light, air, and vision, afforded by the building lines, is alone in dispute. Not only do the defendants dispute the acceptance of this convenience, but they deny that the dedicator intended to offer such an easement; they say that he had taken a step in that direction, but had not taken the final one.

Let us once more address ourselves to the task of ascertaining Mr. Ladd's intention. Our original decision quotes the words of the plattor as found in the acknowledgment. In approaching this problem, it may be worthy of notice that a man of Mr. Ladd's prudence and business acumen would not be likely to incorporate into the plat and acknowledgment the building line feature, unless he intended that some present significance should be attached to it. The plat bears to the subdivision somewhat the same relationship that a charter does to a city; that is, it sometimes becomes the repository of all those basic features which are common to the whole. Hence one is likely to deliberate carefully before incorporating something of a public significance into a plat which will affect his entire tract of land. We thus have a man of unusual business ability who places a building line upon his property, and makes express reference to it in his acknowledgment to the plat; both are filed in the public records; a copy is kept in the dedicator's office; two years pass, and then the plattor dies; this is followed with the passage of a few years more in which many lots are sold with reference to the plat which showed the blue lines. In the meantime, although the statutes of the state afforded a simple method for vacating portions of the streets, no action in that direction was taken. Still later several hundred lots were sold, and to each buyer was presented a copy of the plat showing the blue lines, as a portion of his abstract. Our problem is, What legal effect attaches itself to this situation? A canon of interpretation which may be of some assistance is thus stated in 8 R. C. L., "Dedication," § 20:

"In the interpretation of maps and plats all doubts as to the intention of the owner should be resolved most strongly against him; but the plat should be considered as a whole, and the maker's real intention sought therefrom."

In Corpus Juris, "Dedication," § 127, we find the rules of interpretation stated as follows:

"Plats by which dedications are made are to be interpreted by the court as any other writing would be, and are to be construed as a whole in order that the intention of the party may be ascertained; and every part of the instrument be given effect; no part of the plats are to be rejected as meaningless, if it can be avoided; and lines as well as words are to be considered. All doubts as to the meaning of the plat and any conflict on its face will be construed most strongly against the dedicator. Reservations in a plat dedicating land will not be extended by construction. The court is not authorized to add a line to the plat which was not placed there when the original survey was made, nor to take any such from it unless perhaps where there is a conflict in the boundaries or in some cases where the plat is shown not to be in accord with the original survey." 18 C.J. § 127.

Elliott on Roads and Streets, § 130, states:

"Dedications by maps and plats are sometimes so made as to render it difficult to determine their nature and extent. We think it a safe general rule to

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