Burch v. City of Amity

180 P. 312, 92 Or. 152, 1919 Ore. LEXIS 102

• Court: Oregon Supreme Court
• Decided: April 29, 1919
• Status: Published

Opinion

JOHNS, J.

1. The defendant having denied such allegations, the burden of proof is upon the plaintiff to establish by the evidence that there was a public road or highway running through the defendant city between Blocks 4 and 11 on the north and Blocks 5 and 10 on the south, as shown upon the recorded map or plat of the town; that

“that portion thereof which is within the city limits is known or termed as Nursery Street; that the property of plaintiff forms the north line of said county road known within the limits of such municipality as Nursery Street; and that which is there known as Nursery Street is in fact the county road, which is now and has been for more than fifty years used as a county road.”

Thomas B. Jackson, a witness for the plaintiff, testified that he had lived in Amity from 1851 to 1870 and that he was familiar with the county roads in and around Amity.

“Q. Now, Mr. Jackson, you know where the public square is in Amity?

“A. Well, I can’t say that I do. We didn’t recognize any public square there when I lived there.

“Q. Do you know where the Walling Tavern used tobe?

“A. I do, yes.

“Q. Now, the thoroughfare running between where the schoolhouse and the old meeting-house used to be and the Walling Tavern, what was that?

“A. That was the road from Amity to Matheny’s Ferry, that is the one running east and west, running between the schoolhouse and the Walling Tavern; the Walling Tavern property was on the north side of the road and the church and schoolhouse were on the south side of the road.

“Q. Is the road that you were over this morning identical or similar to the road you traveled in 1851 to 1859?

“A. I regard it as identically the same road.”

Phoebe Burch testified for the plaintiff that she lives in Amity and is eighty-two years old.

“Q. Do you know — can you say whether or not the road or passageway running between the schoolhouse and where the old tavern used to be — you know that road leading to Matheny’s Ferry?

“A. Yes.

' “Q. How long has that been traveled, to your recollection?

“A. It has been traveled all my life you might say, ever since I have been there.

“Q. Was it known as the county road?

“A. Yes, sir.

“Q. Now, did this road go through what he laid out as the town of Amity? Did the road run though it? Was the land he platted on both sides of this road or was it?

“A. Yes.”

Three different plats were introduced in evidence, the first of which purports to be “a plat of the Town of Amity in Yamhill County, Oregon Territory, filed of recprd February 7, 1859,” consisting of fourteen blocks, of four lots each, without the names or width of any streets or any information as to where the ground is located. The second was filed for record September 1,1890, and apparently embraces the same and adjoining lands, designates the streets thereon, and locates Nursery Street as running east and west and lying between Blocks 4 and 11 on the north and Blocks 5 and 10 on the south of the original plat, but it does not appear from the map that any of said lands are tied to a government corner or that their exact location is described by any specific survey. The third was filed May 11, 1899, and for the first time the lots and blocks are tied to a government corner and defined by an actual survey, but there is nothing on either of said plats which shows or would tend to show where the schoolhouse, the church or old meeting-house, or the Walling Tavern were ever located- No reference is made to any one of them on either of the plats and there is no testimony in the record as to where either of them was located.

2. This court cannot go outside of the record, and while the witnesses and the litigants may, know where the schoolhouse, the church or old meeting-house, or the Walling Tavern were situated in the town of Amity fifty years ago, the court cannot take judicial knowledge of their former existence or respective locations, and, in the absence of testimony, would not have any judicial knowledge of where either of them was ever located.

' 3: Assuming, without deciding, that there was an old county road somewhere within the corporate limits of the defendant city, without proof of such landmarks there is no evidence on the part of the plaintiff as to wherq the road was actually located or as to whether it would cover or include the same or any portion of the land known and described as Nursery Street.

While it is true there is some testimony on the part of the defendant tending to show the existence of an old county road somewhere within the corporate limits of the town, yet its exact location is a matter of conjecture and speculation, upon which a court could not render a decree.

The decree is reversed, neither party to recover costs in either court. Reversed.

McBride, C. J-, and Bean and Bennett, JJ., concur.