Turney v. Southern P. Co.

• Decision Date: 13 June 1904
• Citation: 76 P. 1080,44 Or. 280
• Parties: TURNEY v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

76 P. 1080

44 Or. 280

TURNEY v. SOUTHERN PAC. CO.

Supreme Court of Oregon

June 13, 1904

On petition for rehearing. Petition denied.

For former opinion, see 75 P. 144.

PER CURIAM.

Notwithstanding the able and forceful argument in the petition for rehearing a re-examination of the chief and controlling point in this case confirms us in the decision heretofore rendered. The other points not referred to in the opinion were carefully considered before the decision, and were deemed without merit. It was believed that they were not of sufficient importance to require a written opinion.

The evidence of user by the public of that part of the county road between the railroad track and the river, the testimony that the officers and agents of the company made no claim to an exclusive right to that part of the highway in conversations or negotiations in relation to the matter, and the cross-examination of Mr. Koehler upon that subject, were all competent as evidence of a practical construction by the public and the defendant of the orders of the county court granting to the company the right to use a part of the highway for its track, and also upon the questions of abandonment and adverse user, which were made issues in the case, and submitted to the jury. The attempted cross-examination of the witness Turney as to whether that portion of the highway in controversy had been worked or improved by the road supervisors since the building of the fence was not so connected with the direct examination of the witness as to make the ruling of the court error. Moreover, the fact sought to be elicited was testified to by other witnesses, and, as we understand the record, admitted throughout the trial. Ganong's evidence that other portions of the county road had been worked and improved by the county authorities was for the purpose of showing a highway by user prior to the construction of the railroad. The defendant company was probably estopped by its contract with the county to deny the existence of the highway, but nevertheless the evidence could have done it no injury. The testimony of Apperson, stricken out, that the fence built by the railroad company was intended to be on the line between the railroad company's right of way and the county road assumed that there was a difference between the railroad right of way and the county road--the material fact in question. Again, Apperson said that he had no knowledge on...