Bayard v. Standard Oil Co.

63 P. 614, 38 Or. 438, 1901 Ore. LEXIS 16

Opinion

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

The plaintiffs’ cause of action depends upon whether the oil tank was being placed within and upon a public county road. If it was, the right of recovery is clear, the other conditions being that it must have been the proximate cause of the injury, which must have been special and peculiar, — other and greater than that sustained by the public generally: Milarkey v. Foster, 6 Or. 378 (25 Am. Rep. 531); Wakeman v. Wilbur, 147 N. Y. 657 (42 N. E. 341).

1. The first question of material moment arises upon the motion for a judgment of nonsuit, and has relation to the competency of the ineffectual road proceedings, as showing color of title in the public. The only way in which the record could serve the plaintiffs is to extend possession constructively tO' the whole, if there has been occupancy of any part within prescribed boundaries. User by the general public, under a claim of right, adversely, and not by mere permission of the owner, for .the period prescribed by the statute as a limitation beyond which actions for the recovery of real property cannot be maintained, will establish an easement in favor of the public. But the use must be continuous and uninterrupted, and substantially by way of a certain and well-defined line of travel, for the entire period: Elliott, Roads & Sts. (2 ed.), §§ 175, 176; Jones, Easmts., § 458; State v. Auchard, 22 Mont. 14 (55 Pac. 361); Shellhouse v. State, 110 Ind. 509 (11 N. E. 484); Manrose v. Parker, 90 Ill. 581; State v. Keokuk, etc., R. R. Co., 45 Iowa, 139.

2. It is not material to the present inquiry whether such an easement is acquired by prescription, which presupposes an establishment by competent authority, or by dedication, which implies a grant; for it is clear that such an easement may be acquired by adverse user, by whatsoever name the process of establishment may be called. As a general rule, when the highway depends solely for its establishment upon adverse and continuous user by the general public, its width and extent of servitude are measured and determined by the character and extent of the user, for the easement cannot, upon principle or authority, be broader than the user: Marchand v. Town of Maple Grove, 48 Minn. 271 (51 N. W. 606); Valley Pulp & Paper Co. v. West, 58 Wis. 599 (17 N. W. 554); Bartlett v. Beardmore, 77 Wis. 356 (46 N. W. 494); Scheimer v. Price, 65 Mich. 638 (32 N. W. 873); Western Ry. v. Alabama G. T. R. Co., 96 Ala. 272 (11 South. 483); Wayne Co. Sav. Bank v. Stockwell, 84 Mich. 586 (22 Am. St. Rep. 708*, 48 N. W. 174). Other conditions, however, may be effective to extend the exterior limits beyond the thread or course of actual travel, as where inclosures may have been permanently maintained by persons affected with reference to the highway, or the use is referable to a survey and plat recognized and adopted by owners of lands over which the way extends, or was under color of ineffectual proceedings to- establish a legal road under the statute: Whitesides v. Green, 13 Utah, 34 (57 Am. St, Rep. 740,† 44 Pac. 1032); Pillsbury v. Brown, 82 Me. 450 (19 Atl. 858, 9 L. R. A. 94‡); Sprague v. Waite, 17 Pick. 309; Bartlett v. Beardmore, 77 Wis. 356 (46 N. W. 494). Even where the highway is founded solely upon user, its width or extent of servitude is usually a question of fact for the jury. It would seem that it ought not, where the topography of the .locality will permit, to be confined exclusively to the beaten track or thread of actual travel, because of the exigency that experience has shown for' the passing and repassing of those in the use of it. And circumstances such as that the use has been with reference to natural objects or artificial obstructions, or the character of the way requires improvement, necessitating access to the wayside, are pertinent for the consideration of the jury in determining the question: Davis v. City of Clinton, 58 Iowa, 389 (10 N. W. 768); Marchand v. Town of Maple Grove, 48 Minn. 271 (51 N. W. 606).

3. It may be conceded, for the purposes of this case, that the irregular and ineffectual proceedings of the county court constituted color of title, so that a claim, of right and continuous possession and user for the statutory period would give establishment to the highway for the full width designated in the supposed proceedings. Ordinarily, there must be an entry under, and a claim of right with reference to, the colorable title, in order to set the statute of limitations running. In such a case, actual possession need not be of the whole, but may be of a part only, and it will be extended constructively to the whole, by reason of the definite description contained in the defective or ineffectual muniment. The rule must have like application to1 public highways, if it has any at all; that is to say, user by the public must have been begun and continued with reference to the supposedly valid proceedings. In such a case, if there was user of a part, within defined limits, as shown by the proceedings, it would amount constructively to an occupation of the whole, and the width of the road, when thus established, would correspond with that designated by the authorities or by the law. From the very nature of things, there must be an entry and a user with reference to the color of title, as otherwise it could not be available for any purpose. 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 unin terrupted and adverse for the statutory period, then has the right ripened into a valid title in the public. It would be fallacious reasoning, therefore, to indulge a presumption that a road as actually worked and used by the public was within and upon the way as attempted to be located, and thence to conclude that its width must be measured by that designated in the void proceedings. It must be proven that the road as used falls within the colorable title, and, when this is done, the other condition follows; that is, the possession is extended constructively to the entire designated width, or occupancy of a part is then equivalent to an occupancy of the whole. AYhere the highway as used runs without the exterior lines of that as surveyed and attempted to be located and established by lawful authority, the width must then be determined by the rules hereinbefore ascertained, and the ineffectual proceedings can have no bearing whatever upon the subject. Marchand v. Town of Maple Grove, 48 Minn. 271 (51 N. W. 606), was a case where a highway, four rods wide, had been lawfully established by competent authority, but at one point along its course, by reason of the marshy character of the soil, the travel had been diverted wholly without the limits of the road as laid, and so continued for a sufficient time to establish an easement by user, and it was held that the width of the road thus acquired should be measured by the use. If such is the rule, where there is a diversion from a road laid by valid proceedings, it must be so by a much stronger reason where the proceedings are invalid, and constitute color of title merely. So that, in order to make the easement or title available for the designated width, the road as used at the point in question must be shown to fall within the limits of the one attempted to be laid, otherwise the easement cannot be broader than the use: State v. Auchard, 22 Mont. 14 (55 Pac. 361).

4. In this view of the law, the record and files of the county court were not competent, under the evidence subse quently developed. Mr. C. Schütz, the plaintiffs’ witness, who was a surveyor, attempted to relocate the road survey, but found it utterly impossible to do so. He says, in effect, that it was not possible to locate the ground where the line would run from the field notes, and that “all of his efforts put the ice house and oil tank outside of the road, according to his survey.” Nor does the evidence of the defendant help the plaintiffs’ case. So> that there was no testimony before the jury tending to1 show that the road as used, and which traversed the immediate ground occupied by the ice house and oil tank, was within the exterior limits of the road as attempted to be laid at that point; hence the ineffectual record was not pertinent or competent, and should not have been allowed to go to the jury.

The plaintiffs, however, produced evidence tending to show that there had been an adverse and continuous user by the public, under claim of right, of a way passing over the ground occupied by the oil tank for a period of time extending from 1867 to 1880, and insist that it was competent for the jury to determine from the nature of the user whether the highway had been established thereby. If so established in 1880, the title thus acquired must be presumed to have continued up to the time of the accident, unless the contrary is shown. There was evidence, upon the other hand, from which it may reasonably be inferred that the road, as established up to 1880, had subsequently been abandoned at the point referred to by nonuser, caused, perhaps, by the encroachment of the Oregon Railway & Navigation Company in constructing the ice house within and upon the way. It was held, in Grady v. Dundon, 30 Or. 333 (47 Pac. 915), that uninterrupted obstruction of a county road for more than ten years bars the right of the public by adverse possession. But the way at this point, so^ far as the. evidence tends to show, was established, if at all, by prescription, that is, by user under claim of right. As a way may be obtained and established by user, it may also be lost to the public by nonuser. “Highways may be wholly, and there is no- reason to hold they may not be partially, -discontinued by nonuser”: Gregory v. Knight, 50 Mich. 61, 64 (14 N. W. 700). And in a later case, the court say: “It has been settled in this state that a highway can be partially discontinued by nonuser, and that it stands, as against long possession, no better than any other property”: Coleman v. Flint & P. M. R. R. Co., 64 Mich. 160, 163 (31 N. W. 47). So it was held in City of Peoria v. Johnston, 56 Ill. 45, that the public loses its right to a highway where it has abandoned it, and has accepted another instead, for such a length of time, and under such circumstances, as to give it a title to- the substituted road. “But,” say the court, “independently of this principle, conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the southeast of section 4, we are of opinion that the adverse possession of the appellee, open and exclusive as it has been, and the complete nonuser of the easement by the public fo-r more than twenty ye-ars, are a sufficient answer to the claim now made by the city.” It is said in 3 Kent (11 ed.), marg., p. 448, “that mere nonuser for twenty years affords a presumption o-f extinguishment, though not a very strong one, in a case unaided by circumstances; but if there has been, in the meantime, some act done by the owner of the land charged with the easement inconsistent with, or adverse to, the right, an extinguishment will be presumed.” To the same purpose, see, also, Beardslee v. French, 7 Conn. 125; Holt v. Sargent, 15 Gray, 97; Amsbey v. Hinds, 46 Barb. 622; Hamilton v. State, 106 Ind. 361 (7 N. E. 9); Simplot v. City of Dubuque, 49 Iowa, 630; State v. Culver, 65 Mo. 607 (27 Am. Rep. 295); Wayne County Sav. Bank v. Stockwell, 84 Mich. 586 (48 N. W. 174, 22 Am. St. Rep. 708*).

It would seem that by reason of the construction of the ice house, which was. about the year 1882, and which has probably been maintained in the same position ever since, the thread of travel was diverted from the old highway before reaching the building from the east, and, after passing close by on the south, it again approaches the' old way, and comes into it a few rods west; that this obstruction had existed, and this new way had been used, for more than ten years, and at the same time and during all the while there has been a complete nonuser of the old way between the points of divergence. Now,' if these are facts established by the proof, the jury would be warranted in finding that there was or had been an abandonment of the old way by nonuser, and an acquirement of a new way, which should be measured, as respects its width, by the rules herein previously ascertained. If, therefore, the construction of the oil tank was without the exterior limits of the newly-acquired highway, then the defendant was not liable, and no recovery of. damages could be had. The instructions of the court below, as we understand them, do not proceed under this view of the law, but, rather, upon the idea that the adverse occupancy extends no further than the space covered by the ice house, and that the construction of the tank within the limits of the old way, although not within those of the new, would constitute an obstruction for which it would be liable if injury ensued on account of it. These considerations render it necessary that the judgment of the court below should be reversed, and a new trial ordered. Reversed.

Footnotes

*

See note, Highways by User — Discontinuance by Nonuser.

†

See note of 25 pages, Highways by User.

‡

See note, Right of Public to Use Entire Width of Highway.

*

See note, Highways by User and Discontinuance by Nonuser.