Oliver v. Synhorst

• Decision Date: 12 July 1910
• Parties: OLIVER v. SYNHORST, Street Superintendent, et al.
• Court: Oregon Supreme Court

109 P. 762

58 Or. 582

OLIVER v. SYNHORST, Street Superintendent, et al.

Supreme Court of Oregon

July 12, 1910

Appeal from Circuit Court, Union County; H.J Bean, Judge.

Suit by Anna Oliver against Fred Synhorst, Street Superintendent of La Grande, and others. From a decree for defendants plaintiff appeals. Affirmed.

This is a suit to restrain the defendant, as street commissioner of the city of La Grande, from removing plaintiff's fence and destroying certain shrubs and trees upon lands inclosed by plaintiff, under the claim that such premises are situated upon a public street in the city of La Grande. The contentions of the parties are fully set forth in Oliver v. Synhorst, 48 Or. 292, 86 P. 376, 7 L.R.A. (N.S.) 243 and will not be restated here.

Turner Oliver, for appellant.

J.F Baker, for respondents.

McBRIDE J.

This case was before this court upon a previous appeal ( Oliver v. Synhorst, 48 Or. 292, 86 P. 376, 7 L.R.A. (N.S.) 243, and the law applicable to the contention of the parties, having there been declared, has become the law of this case, and it only remains to apply the principles therein enunciated to the facts proved on the trial. Upon the former trial Mr. Chief Justice Bean used the following language: "But, while the rule may be that the ordinary statute of limitations as such cannot be set up to defeat the right of the public to the use of a street or highway, there may grow up, in consequence of the laches of the public authorities, private rights of more persuasive force in the particular case than that of the public, and if 'acts are done by an adjoining proprietor which indicate that he is in good faith claiming as his own that which is, in fact, a part of the highway, and expending money on the faith of his claim, by adjusting his property to the highway as he supposes or claims it to be, the public will be estopped.' "

The evidence tends to show that, about 1891, plaintiff's grantor built a house on the land and planted shade trees in front of it, and actually in the street, which was then entirely unimproved. She testifies that she intended to inclose her own property but there is no evidence that she took any measures whatever to ascertain the exact lines of her lot, and the rough and almost inaccessible nature of the land was such as to warrant the belief that the street north of there would not be improved in the near future.

When plaintiff purchased the property, which was done through her husband, who was an attorney and business man of La Grande, a sidewalk was built south of the trees, which had been planted by plaintiff's...