Parrott v. Stewart

• Decision Date: 27 May 1913
• Citation: 65 Or. 254,132 P. 523
• Parties: PARROTT v. STEWART et al.
• Court: Oregon Supreme Court

132 P. 523

65 Or. 254

PARROTT v. STEWART et al.

Supreme Court of Oregon

May 27, 1913

Appeal from Circuit Court, Baker County; J.W. Knowles, Judge.

Suit by O.J. Parrott against John M. Stewart and others in which the City of Baker intervened. From a decree for plaintiff defendants and intervener appeal. Affirmed.

The defendant city of Baker appeals from a decree in favor of plaintiff.

Plaintiff brought this suit to foreclose a certificate of delinquency issued to the plaintiff for the nonpayment of certain taxes assessed against the property described in the complaint which is situated within the corporate limits of the city of Baker, and consists of a strip of land lying at the west end of Court avenue, 66 feet in width, 209 feet in length on the north side, and 167 feet on the south side. If Court avenue which is one of the principal thoroughfares of the city, were extended westerly to the right of way of the O.W.R. & N Company, it would include the strip of contested land and also a strip lying immediately to the south, 14 feet in width. The premises in controversy have been uninclosed, and together with the adjoining tracts belonging to other parties, have been accessible for public travel. This suit involves the question of whether or not the tract in dispute is a part of Court avenue. The defendant city intervened in the suit and pleaded three separate defenses: First, a dedication of the property by John Stewart and wife (former owners), as a part of Court avenue; second, conduct on the part of John Stewart and his grantees by reason of which they are estopped from claiming that the land in question is not a street; and, third, a conveyance to the Standard Oil Company, dated November 1, 1896, of a right of way over the land, and a conveyance of the same by it to the city on the 24th day of April, 1912, the latter being made after the commencement of this suit. The record title to the real estate described in the complaint is in John M. and R.L. Stewart, heirs of Barbara Stewart. The state, county, and city taxes for the year 1908 were regularly levied and assessed upon the property. John Stewart originally owned a body of land including this tract, and land immediately on the north and south. In 1882, Stewart platted the tract on the north as "Stewart's addition," with the south line of the addition even with the north line of Court avenue, and adjacent to the land in dispute, which was not shown on the plat as a street. In 1889, Stewart sold and conveyed the land on the south to Geo. Cates, describing the same by metes and bounds, without reference to Court avenue. Stewart never conveyed any part of his land by describing the same with reference to the above street. Of late years a warehouse abutting on the south of the tract near the railroad and a residence have stood upon the Cates lot. The depot grounds are located on the north side of the strip. After the O.W.R. & N. Company's railroad was built at this place in 1884, a warehouse was maintained for several years on the west side of the railroad, and freight from the interior was hauled over a crossing of the railway track and strip of land. This warehouse was burned some 20 years ago and the railroad crossing was abandoned. Immediately across the track lies private property. Later, other streets in the vicinity were opened across the railroad right of way, and tracks were laid by the Sumpter Valley Railway Company by the side of those of the O.W.R. & N. Company, making ten in all. The tract in dispute has been open from the west end of Court avenue to the railroad right of way since 1884, so that any one desiring could cross the same, as is the custom to use any vacant lot in the outskirts of such a city.

It is in evidence on behalf of defendant that there has been more or less public travel over the land involved, since the eighties; the line of travel not following exactly the strip of land claimed as a street, but verging to the north and passing over a portion of Stewart's addition and the depot grounds. There is no means of ingress to or egress from the warehouse and dwelling on the south, except over the 14-foot strip mentioned. The city widened Court avenue 14 feet on the south side, making the street that much more in width than the tract in suit, and paved the same to this lot, but not beyond. The plat of Stewart's addition shows the lots and blocks thereon and also the alleys dedicated to the public. The lots face upon an alley and not upon the strip claimed as a street. For many years the premises were regularly assessed and levied upon for taxes; the same being paid by Stewart during his lifetime, and by Mrs. Stewart after his death. The city assessed the property for storm sewer assessments, but constructed no sewer, made no improvements thereon, and assumed no authority or dominion over the same.

The pleadings and record show that on November 1, 1896, John Stewart sold and conveyed to the Standard Oil Company a tract of land across the railroad tracks and west of the premises in controversy, and at that time granted an easement to the company across the contested land, in connection with the premises conveyed, to be used by the company as a means of ingress to and egress from the property across the railroad; that the Standard Oil Company conveyed the premises to J.W. Stuchell, but in so doing failed to specially mention any right of way or easement, although it did convey the appurtenances; that Stuchell later conveyed the premises to the Sumpter Valley Railway Company in the same manner and form as they had been conveyed to him, omitting any mention of the right of way or easement over the Stewart land in controversy herein. All the defendants except the city of Baker defaulted. The circuit court found that the city had no right to the land for use as a street.

Claude McColloch, of Baker (McColloch & McColloch, of Baker, on the brief), for appellants.

Chas. P. Murphy, of Seattle, Wash. (John L. Rand, of Baker, on the brief), for respondent.

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

In determining as to a dedication, the intention of the owner is the controlling factor; but the law does not seek for his undisclosed intention. It acts upon his intention as evidenced by his acts and the circumstances which he permits or encourages. 3 Dillon on Municipal Corporations (5th Ed.) § 1079; Kuck v. Wakefield, 58 Or. 549, 115 P. 428; Hogue v. City of Albina et al., 20 Or. 182, 25 P. 386, 10 L.R.A. 673.

Where the situation of land is such as to indicate that it does not form part of the highway, although it may be alongside of the way and be used by the public, no dedication can be presumed without strong evidence of an intent on the part of the owner to...