Sweet v. Irrigation Canal Co.

• Decision Date: 04 March 1953
• Parties: SWEET et al. v. IRRIGATION CANAL CO.
• Court: Oregon Supreme Court

Page 700

254 P.2d 700

198 Or. 166

SWEET et al. v. IRRIGATION CANAL CO.

Supreme Court of Oregon.

Argued and Submitted at Pendleton Oct. 28, 1952.

Decided March 4, 1953.

Charles R. Cater, of La Grande, for appellants.

George T. Cochran, La Grande, Cochran & Eberhard, of La Grande, on the brief, for respondent.

Before BRAND, ^* C. J., and ROSSMAN, LUSK, LATOURETTE ^** and WARNER, JJ.

LUSK, Justice.

Plaintiffs brought this suit as an abutting owner to obtain a decree enjoining the maintenance by the defendant of an irrigation ditch in a county road as an open ditch which interferes with the plaintiffs' right of ingress and egress to and from their land.

Defendant, in its amended answer, denies that the ditch is in the county road, and sets up certain affirmative defenses which may be summarized as follows: (1) Adverse possession. Defendant alleges that the ditch was constructed in April, 1937, upon lands belonging to plaintiffs' predecessors in interest, who, for a valuable consideration paid to them by the defendant, granted to the defendant an oral right of way to construct and maintain such ditch over said lands, and that ever since April, 1937, defendant has owned and operated said ditch for the transportation of water to water users openly, notoriously and in full view and under a claim of right, and that it was so owned and operated at the time plaintiffs acquired an interest in the premises, as the plaintiffs well knew. (2) Estoppel, based upon the fact that plaintiffs, after they acquired the land with such knowledge, changed the use of it by engaging in a business to which the public is invited. (3) A counterclaim for damages based upon plaintiffs' alleged unlawful obstruction of the waters of the ditch by building a culvert across it. (4) Written consent of Union County to the construction of said ditch.

After a hearing the court entered findings of fact and conclusions of law and a decree in favor of the defendant. Plaintiffs appeal. By its fifth finding of fact (which is evidently the basis of the decree) the court found that the plaintiffs had failed to prove that a common boundary exists between the county road and the plaintiffs' property. Whether that finding is correct is the vital question in the case because, if plaintiffs' premises do not abut on the county road, they have no standing to maintain this suit.

Plaintiffs acquired their land by warranty deed dated June 13, 1946, executed by Bernard W. Wise and wife and containing the following description of the premises conveyed:

'Buginning at the southeast corner of Lot 1 of block 73 in Riverside addition to La Grande, Union County, Oregon, and running thence north 88~ 49' west along the north line of the alley in said block, a distance of 200 feet to the north line of the old county road; thence following the north line of said old county road north 68~ 23' west 189.45 feet to a point 592.42 feet north and 1320.0 feet west of the southeast corner of southwest quarter of section 31, in township 2 south, range 38 east of Willamette Meridian; thence continuing along the north line of said county road north 70~ 43' west, 333 feet; thence north 30~ 34' west 150.2 feet; thence north 1~ 11' west 47.24 feet to the center of the channel of Grande Ronde River; thence north 70~ 54' east along said river channel, 475.0 feet; thence south 1~ 11' east 163.0 feet; thence south 89~> 22' east 138.2 feet; thence south 45~ 21' east 87.7 feet; thence south 79~ 59' east 111.0 feet; thence south 1~ 11' east 270.5 feet to the place of beginning.

'Containing 5.30 acres, more or less, and situated in the SE 1/4 of SW 1/4 and in the SW 1/4 of SW 1/4 of section 31, township 2 south, range 38 EWM.

'Being the same premises conveyed by L. J. Walls and Millie Walls, his wife, to Bernard W. Wise and Nancy G. Wise, his wife, by deed dated October 22nd, 1942.'

Roughly, the deed describes a tract of land triangular in shape, bounded on the north by the Grande Ronde River and the southwesterly line of which is 'the old county road,' which is the road in dispute.

In addition to this deed there are in the record the following instruments: Deed from Grande Ronde Meat Company to Elizabeth Bushnell dated December 2, 1935; deed from E. N. Bushnell to L. J. Walls et ux. dated April 23, 1941; deed from L. J. Walls and wife to Bernard W. Wise and wife dated October 22, 1942. These are all general warranty deeds. There is also in evidence a quitclaim deed from F. A. Epling and wife to W. H. Sweet and wife dated June 13, 1946, being the date of the deed executed by Bernard W. Wise and wife to the plaintiffs. These deeds are in the chain of title of the premises in question, and all describe the land as bounded on the south by the old county road with the exception of the quitclaim deed from the Eplings to the plaintiffs, which contains as a part of the description the following:

'Beginning at a point on the North line of the old county road 592.42 feet north of the southeast corner of southwest quarter of southwest quarter of section 31, in township 2 South, range 38 east of Willamette Meridian; thence along the north line of said old county road north 70~ 43' west a distance of 333 feet.'

By reference to the description in the deed from Wise and wife to the plaintiffs it will be seen that, beginning at the southeast corner of block 73 in Riverside Addition to La Grande, the southerly line of the tract runs west 200 feet to the north line of the old county road, thence it follows the line of the old county road in a general northeasterly direction a distance of 672.25 feet, thence north 47.24 feet to the center of the Grande Ronde River. A bridge known as the Orodell bridge spans the river near the west line of plaintiffs' property, the distance from the middle of the bridge to plaintiffs' line being 30 feet.

The accompanying sketch illustrates the locus in quo except that it does not show the beginning point in the description in plaintiffs' deed and shows only a part of the first course. The small circle marked I. P. near the circled 73 at the right-hand side of the map indicates an iron pipe placed there by S. B. Morgan, county engineer, road master and official surveyor for Union County, in April, 1946, when he surveyed the premises. This pipe marks the change from the first course to the second one, to wit, 'thence following the north line of said old county road north 68~ 23' west 189.45 feet', etc.

Southwesterly from plaintiffs' land and roughly paralleling it for a distance of 500 feet or more, is the right of way of the Union Pacific Railway. The right of way widens as it approaches the city of La Grande to the east, bringing the northeasterly line thereof 20 feet nearer to plaintiffs' southwesterly property line. Distances between the parallel lines of plaintiffs' property and the right of way vary from approximately 65 to 100 feet.

In 1894 proceedings were instituted to establish a county road to commence at the south end of the Orodell bridge and run in a southeasterly direction along the north side of the right of way of the Oregon Railway and Navigation Company (now the Union Pacific Railway) to the west corporate limit of the city of La Grande at a definitely located point, such road being approximately half a mile in length. This road would have run between the railroad right of way and plaintiffs' land. It is practically conceded that, owing to defects in the proceedings, they were ineffectual to establish a road. Plaintiffs claim, however, that the road was established by prescription under color of title of the void proceedings and to the full statutory width of 60 feet, and that the exterior northeasterly line is the southwesterly line of plaintiffs' land. Defendant does not deny the existence of the road and could not well do so because the evidence shows, without contradiction, that for many years in excess of the prescriptive period (which is 10 years in this state: § 1-202, O.C.L.A.), such a road, leading from the Orodell bridge and passing between plaintiffs' property and the railroad right of way, has been used by the general public and has been improved and kept up by the county. But the width of the highway so used and improved--the graveled portion--is approximately only 25 feet. It is designated 'County Road' on the map, between the broken lines which indicate the exterior boundaries of the improved highway. The northeasterly boundary of the graveled portion at no place touches the southwesterly line of plaintiffs' land, but is south of it, the distance varying from 25 to 30 feet. Defendant's irrigation ditch, which was constructed in 1937 under circumstances to be later detailed, is located in this strip between the plaintiffs' land and the road as improved and used. It is defendant's position that such user determines the width of the road.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The contention that its width may be determined by reference to the ineffectual proceedings for the location of a road may be at once laid out of view. It is true that such proceedings are 'evidence of color of title, and that a subsequent user by the public of the road attempted to be located, for the statutory period, if begun and continued with reference to the proceedings of the county court, is proof of a legal highway, the full width designated in such proceedings.' Nosler v. Coos Bay R. R. Co., 39 Or. 331, 334, 64 P. 644, 645; Bayard v. Standard Oil Co., 38 Or. 438, 447, 63 P. 614, 615. But, as stated in the Bayard case:

'* * * Colorable title forms the basis upon which a prescriptive right to the full width of the defined limits is founded. The next step in logical course of establishment is an entry and a user with reference to it, and, when this has been continuous and uninterrupted and adverse for the statutory period, then has the right ripened into a valid title in the public. It would be fallacious reasoning,...