Nicholas v. Title & Trust Co.

• Decision Date: 11 January 1916
• Citation: 154 P. 391,79 Or. 226
• Court: Oregon Supreme Court
• Parties: NICHOLAS v. TITLE & TRUST CO. [a1]

154 P. 391

79 Or. 226

NICHOLAS v. TITLE & TRUST CO. ^[a1]

Supreme Court of Oregon

January 11, 1916

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by H. B. Nicholas against the Title & Trust Company. From the decree, both parties appeal. Modified and affirmed.

This is a suit to determine an adverse interest in real property. The complaint alleges in effect that the plaintiff, H. B Nicholas, is the owner and in the possession of block 23 in Gearhart Park, Clatsop county, Or.; that this block is bounded on the east by Summit avenue, which is 60 feet wide and on the south by Seventh street, of the same width; that plaintiff has an easement in and a right to the use of the avenue and street mentioned to their full width bordering upon that block; that the defendant, the Title & Trust Company, a corporation, claims all that part of Seventh street so described, the east half of Summit avenue at the place specified, and also some interest in such block, which claims are without right and void.

The answer denies the material averments of the complaint, and alleges in substance that Summit avenue is only 25 feet wide and that Seventh street does not and never did extend south of the block mentioned, setting forth the facts whereby the defendant asserts a title to the land joining the block on the south, and also the premises bounded by a line 25 feet east of the east border of the block specified. The prayer of the answer is in part:

"That plaintiff be forever barred and estopped from making or asserting any claim in or to said property and the use and enjoyment of said streets, otherwise than are set forth and described in the duly recorded map and plat thereof."

The reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, resulting in a decree establishing Seventh street south of block 23 to be 60 feet wide, and Summit avenue east of that block to be only 25 feet in width, and both parties appeal.

Kenneth L. Fenton, of Portland (W. D. Fenton and Ben C. Dey, both of Portland, on the brief), for appellant. R. W. Nicholas and W C. Nicholas, both of Portland (Newton McCoy, of Portland, on the brief), for respondent.

MOORE C.J. (after stating the facts as above).

The evidence shows that in the year 1888 M. J. Kinney purchased a large tract of land in Clatsop county, Or., bordering on the Pacific Ocean, and soon thereafter caused a part of the premises to be surveyed into lots, blocks, streets, etc. A map, purporting to set forth the outlines of the survey, was prepared, and 1,000 copies were printed, and entitled:

"Gearhart Park, as laid out and recorded by M. J. Kinney, Clatsop Co., Oregon. Regular lots, 50X100. Scale, 1 inch 300 ft. W. I. Crawford, Gen. Agt. Gearhart Park, Seaside, Oregon."

The printed plat contains lines representing cross streets extending from Cottage avenue on the west to the Astoria & South Coast Railroad on the east, which streets are numbered, commencing at the north, from First to Twelfth, respectively. Block 23, as indicated, is situated immediately east of a creek and bounded on the north by Sixth street, on the east by Summit avenue, and on the south by Seventh street, each being designated by parallel lines which, according to the scale specified, represent the streets as being 60 feet wide. The map referred to depicts all the land embraced in Gearhart Park as segregated into a park, lots, blocks, streets, etc.

Mr. Kinney and his wife, on August 21, 1890, duly acknowledged a plat of Gearhart Park, whereon the east end of Seventh street is represented as terminating at the stream mentioned, which is called Neacoxie creek. Summit avenue is indicated as being the first highway east of the creek, extending south from First street to the southeast corner of block 23, and is marked by parallel lines denoting a space of 25 feet. Kinney and his wife on September 2, 1890, executed to Mrs. Winnie H. Waite a deed conveying:

"All of block number twenty-three in Gearhart Park, in Clatsop county, Oregon, as said park has been laid out by us and recorded in the office of the recorder of conveyances of said county."

The plat so acknowledged was filed for record September 11, 1890, and Mrs. Waite's deed was also filed for the same purpose November 24th of that year. Mr. Kinney, in July, 1899, appointed Newton McCoy his agent to sell lots and subscribed his name to a writing which so far as material herein reads:

"In consideration of one dollar and valuable services to be performed by said Newton McCoy, we hereby give him for three months from the date hereof the exclusive sale of the real property in Gearhart Park at the prices indicated upon the plat of said park hereto attached, marked 'Exhibit A,' and made a part hereof."

The plat thus referred to, with the memorandum attached, was duly identified and received in evidence, and is a duplicate of the printed plat, having noted thereon in red ink, between lines representing lots, various numbers ranging from 50 to 500. Kinney also conveyed away block 24, which lies immediately north of block 23, but is separated from it by Sixth street. He on January 24, 1905, executed to the Theo. Kruse Catering Company, a corporation, a deed of all lots, blocks, and tracts in Gearhart Park then remaining unsold. This conveyance included all the land in the park east of the creek, except blocks 23 and 24. The county court of Clatsop county made an order, January 3, 1906, vacating all the streets and avenues east of the creek that are noted on the recorded plat, except Sixth street and the parts of Fifth street and of Summit avenue which are north and east of blocks 23 and 24. All the unsold lots, blocks, and tracts in the Park, which were so owned by the corporation last named, were duly transferred by mesne conveyances to the defendant, which became vested with the legal title thereto March 29, 1910.

Sixth street, between blocks 23 and 24, was excavated to a depth of 15 feet or more below the surface of the ground at that place. Thereafter, to wit, on May 11, 1911, Mrs. Waite and her husband executed a warranty deed, conveying "all of block 23 of Gearhart Park, in Clatsop county, Oregon," to the plaintiff, who had paid for the land before he examined the records of that county, and without knowing that the printed plat had not been recorded. The defendant caused a survey to be made of its real property east of the creek, immediately south of block 23 when extended to the railroad, and on November 4, 1911, acknowledged a map thereof whereon the land portrayed is designated as "Woodland Park Addition to Gearhart Park," which plat was filed for record on the 13th day of that month. By the latter survey no street borders upon the south line of block 23. No improvement of any highway east of the creek has been made, except on Sixth street. Teams drawing wagons have passed back and forth along Summit avenue for some distance south of Sixth street, though much of the way is covered with standing timber. If the angle of repose be assumed as 45~, and Summit avenue is only 25 feet wide, as decreed, it would necessarily follow that, in cutting down that highway to intersect Sixth street, the bottom of the banks of the excavation would terminate in a line 2 1/2 feet above the grade immediately to the north.

The plaintiff in the summer of 1911 orally informed the defendant, and on August 29, 1912, and October 1st of the latter year, respectively, gave to it written notices, that he claimed and should attempt to establish an easement 60 feet in width on the east and south of his land. No acknowledgment of his claim having been made, this suit was instituted May 5, 1913, and terminated as hereinbefore mentioned. E. P. Waite, who negotiated the purchase of block 23 for his wife, testified that he bought the land from M. J. Kinney through the latter's agent, W. I. Crawford. In referring to the printed plat, a duplicate of which was received in evidence, the witness stated upon oath that it was similar to the one which he saw in the office of such principal and agent at the time he purchased; that in company with Mr. Crawford he personally examined block 23 before buying it and adverting to the dedicated highways by which the land was bordered he stated:

"And at the time my understanding with the agent was that there were 60-foot streets around the whole block."

Alluding to white stakes which he then saw driven in the ground to indicate the width of such streets, and comparing them with a stake which had been received in evidence, he testified:

"My remembrance is refreshed by this very stake. I particularly noticed and observed that they were rather larger than what was ordinarily put into plattings, it seemed to me. * * * Q. Do you remember any representations that were made with respect to these streets, further than what is shown by the map? A. No; I think nothing more than that I was given to understand that they were all 60-foot streets. Why I mentioned this is the fact that in buying that block, as the building portion was shortened on the west side by the stream, Neacoxie, I was distinctly informed that the streets bordering it (the block) on the south, east, and north were 60 feet, which would exclude any one building closer or encroaching on my block lines, thus making it more desirable."

On cross-examination this witness was asked:

"You bought this property more upon your own view of the premises, by going upon it and stepping the distances off, rather than by this socalled plat, here marked 'Plaintiff's Exhibit A.' A. Yes, sir; except by stepping distances off. Q. You were not guided by that to any extent? A. I am not positive but when Mr. Crawford and I went over the ground that he had one

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