Spencer v. Peterson

• Decision Date: 14 April 1902
• Citation: 41 Or. 257,68 P. 519
• Parties: SPENCER v. PETERSON. [1]
• Court: Oregon Supreme Court

68 P. 519

41 Or. 257

SPENCER v. PETERSON. ^[1]

Supreme Court of Oregon

April 14, 1902

Appeal from circuit court, Marion county; Geo. H. Burnett, Judge.

Action by S. Spencer against V.C. Peterson. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action to recover damages for obstructing an alleged highway. Plaintiff avers that he is, and ever since May 6 1891, has been, the owner and in possession of certain real property, from which he has been accustomed to pass with vehicles and on foot along a duly dedicated highway to the county road; that such highway is the only accessible route to and from his premises; and that defendant wrongfully obstructed the same by placing a fence across it, to his damage in the sum of $1,500. The answer having denied the material allegations of the complaint, a trial was had resulting in a verdict and judgment for the plaintiff in the sum of $100, and defendant appeals.

B.F. Bonham and Carey F. Martin, for appellant.

P.H. D'Arcy and Jno. A. Carson, for respondent.

MOORE J. (after stating the facts).

It is contended by defendant's counsel that the court erred in admitting in evidence, over their objection and exception, a certified copy of the recorded plat of Waldo Hills Fruit Farms, No. 3, on the ground that it appears from an inspection thereof that the road which it is claimed was obstructed was never a public highway. The plat in question has appended thereto a written instrument, denominated a "dedication," executed as a deed of real property by W.A. and John A. Shaw and their wives, reciting that they, being the owners of certain real property, and desirous of disposing of it in small tracts, and "to assure the purchasers thereof the permanent enjoyment of the roads shown on the annexed plat, which are on the said lands, have caused the said lands to be platted and subdivided in accordance with the annexed plat, which is hereby declared to be a true plat thereof." An examination of the plat shows that the real property delineated thereon purports to have been subdivided into 26 lots, varying in area from 10 to 78 acres, and that near the east border, extending north and south, appear parallel lines, marked, "Road, 50 ft.," separating lots 1, 2, and 3, from 4, 5, and 6. It is argued that the plat and the instrument so attached show that the roads thus indicated were not intended by the proprietors to be dedicated to the public generally but were designed for the use of the purchasers of the lots, only, and that they are private, and not public, highways. It will be observed that the "dedication" does not in express terms grant an easement in the roads, but, the instrument having been acknowledged and entered in the records of Marion county, we think the proprietors intended thereby to dedicate them to the use of the public; for the rule is well settled that when an owner of real property lays out a town upon it, and divides the land into lots and blocks, with streets and alleys between, and sells any of the lots reference to such plan, he thereby irrevocably dedicates the streets and alleys to the use of the public. Carter v. City of Portland, 4 Or. 339; Meier v. Railway Co., 16 Or. 500, 19 P. 610, 1 L.R.A. 856; Hicklin v. McClear, 18 Or. 126, 22 P. 1057; Steel v. City of Portland, 23 Or. 176, 31 P. 479; Hogue v. City of Albina, 20 Or. 182, 25 P. 386, 10 L.R.A. 673. The rule in respect to the dedication of streets and alleys in a town must, upon principle, also apply to roads laid out on land in the country, which has been divided into small tracts to effect the sale thereof; and when the proprietors execute and acknowledge a map of the survey of such land, and cause it to be recorded, on which roads are noted, and sell any of such tracts with reference to the plat, the dedication of the roads is thereby established, without an acceptance or user by the public ( Land Co. v. Cranmer, 40 N.J.Eq. 81), and such dedication will be presumed to be in favor of the whole public, unless the presumption be overcome by the party denying the extent of the grant (Ang. & D. Highw. [ 3d Ed.] § 141); and hence no error was committed in admitting the plat in evidence.

Defendant's counsel, on cross-examination of plaintiff, in referring to the road alleged to have been obstructed, asked the following question, to which an objection was sustained on the ground that it was immaterial: "Has the county or any municipal authority undertaken to open or work that road?" An exception was saved, and the action of the court assigned as error. If the land so divided into tracts had been in a city and laid out into lots and blocks, with intervening streets and alleys, duly dedicated, the failure of the municipal corporation to improve such streets would not defeat the right of the public therein, unless barred by adverse user. The roads laid out on the land in question, and noted on the plat, must be subject to the same rule; for if the converse were true, and a...