City of Portland v. Metzger

114 P. 106, 58 Or. 276, 1911 Ore. LEXIS 49

• Court: Oregon Supreme Court
• Decided: March 21, 1911
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Eakin.

1. The question for consideration is to determine the extent and character of plaintiff’s rights under the deed. There is very little dispute as to the facts. The grant in the deed is a right of way 33 feet wide, through and across the tract of land owned by the grantors, for the purpose of conveying water to the city of Portland by a pipe or pipes, conduit or conduits. There are three provisos in the deed, two of which are limitations upon plaintiff’s use of the way. The first proviso relates only to the depth of the trenches for the pipes. The second contains the provision upon which defendants rely in this suit:

“Provided, also, that nothing in this deed shall be construed to grant to the said party of the second part, its successors or assigns, the right to make fences along the said right of way, or to prevent the passage of stock or teams from one side to the other or in any manner to control the land occupied by said pipes or conduits, except for the purposes above specified.”

The third proviso relates only to plaintiff’s liability for damages. The second proviso does not reserve to the grantors the right to exclusive occupancy of the ground. It prohibits the city from fencing the way or controlling it, except for the purpose specified, namely, constructing the pipe line or lines, or repairing them at any time. The language of the deed is not of doubtful meaning. It grants to plaintiff free access to the whole of the right of way for the purpose for which it is granted, but it must permit the passage of stock and teams. In other words, plaintiff cannot exclude the grantors or their stock therefrom; it cannot cultivate or crop the ground, or lease it, or have any other control of it than such as is necessary for the construction or maintenance of the pipe line or lines, but the whole of the way is available to plaintiff for such purpose, and its grantors or their grantees have no right to the exclusive occupancy of it, which would be the effect of the erection of buildings thereon.

2. Defendants contend that the description of the property contained in the deed is insufficient to identify any definite property. In establishing the course of the line of the way across the premises of the grantors from the starting point, the language is “thence south SO1/]/ east,” which defendants read as “south 80' 14° east.” The original deed is before us, and it will not bear such a reading. The deed described only one line across the premises but provided for “a right of way in such direction as the city may determine.” The line given in the deed is wholly within the way selected and has been acquiesced in from the time of the execution of the deed, and there has been no controversy in this suit as to the true boundaries of the way.

At the oral argument defendants’ counsel contended that the city has no right to maintain a telephone line on the way. The uses and purposes for which the way is granted included doing any work which may be necessary for maintaining, repairing, and operating the pipe line, which will include the maintenance of a telephone line, if the same is necessary or convenient for the proper or prompt repair, maintenance, or operation of the line, which necessity is very apparent. This is the rule in cases of railroad rights of way, where the telegraph line is for the exclusive use of the railway company in the operation of the road. Lewis, Em. Dom. § 141; Western Union Telegraph Co. v. Rich, 19 Kan. 517 (27 Am. Rep. 159); American Telephone Co. v. Pearce, 71 Md. 535 (18 Atl. 910: 7 L. R. A. 200); Hodges v. Telegraph Co., 133 N. C. 225 (45 S. E. 572). And we think the rule is equally applicable for a gravity pipe line of the length and importance of this one in supplying water to a large city, and is therefore not an additional burden upon the easement.

The decree is affirmed. Affirmed.