Wallowa chieftain. [volume] (Joseph, Union County, Or.) 1884-1909, 1902-02-06
VALIDITY OF NEW ROAD LAW.
Decisions Which Throw Some
Light on This Question.

| Eastern oregon, says /. Campbell
Martin, of Dayville, in recent letter
to The Oregonian. Mr.. Martin wishes
information upon the legal effect OF
this section ofthe statute, which reads
as follows:
"All Dads or tho;oughiare not here
to'ore legally established within the
State OF Ore gon that may have here
tofore been used, or may hereafter
be used for period of 10 consecutive
years more by the general public for
the purpose OF travel without inter-
ference or protest, are hereby declared
to be county roads,
The chief question in the mind of
Mr.. Martin is whether this section of
the law is constitutional in view of
the fundamental principle that priv
ate property shall not be taken for
public use without just compensation
While the Oregon Supreme Court has
not had occasion to pass upon the
section quoted, it has rendered two
decisions in road cases, which throw
some light on the question raised.
One OF the most recent decisions APP
Preaching this quest on was renderei
just year ago in the case of C. f.
Bayard against the Standard Oil
Company, appealed from Wasco
county. In discussing the subjects of
public easements the opinion written
by Judge Wolverton says
Use by the general public, under a
claim of right, adversely, and not by
mere permission of the owner, for the
period prescribed by the statutes as a
limitation beyond which actions for
the recovery of real property cannot
be maintained, will establish an ease
ment in favor Of the public. But the
use must be continuous and uninter-
rupted, and substantially by certain
and well-defned line OF travel for the
entire period.
The limitation prescribed by stat
ute is ten years; hence under this
decision, If road across mans land
has been used continuously for 10
years, adversely, under claim OF right,
and not by permission OF the owner,
the road has become a public highway
and the owner OF the land cannot
close it.
This decision was rendered prior to
the passage of the act Of 1901, and
therefore declares the rights that may
be acquired by the public regardless OF
this statute. About Is years ago the
Supreme court held that mere uses,
however long continued will not be
sufficient to create right in the pub
lie. The rule was laid down in case
in which it was shown that tINowner
OF the land maintained gate across
the road, AID persons using the road
opened and shut the gate when they
passed over the road. Thus there was
not uninterrupted uses under claim of
right. The fact that the land owner
maintained gates was sufficient to
show that he had not made full
dedication OF the road to the public.
The statute of 1901 provides that
when the public has used road for
10 consecutive years "wIthout inter
ference or protest" the road shall be
public highway. No reference is made
to any "claim OF right" on the part of
the public, and therefore if the stat
ute stands the test OF the constitution
al provision, it must be upon the the
oy that by permitting the use of the
road without interference or protest
the owner OF the land intends to dedi-
cate it to the public.
1t will be noticed that the statute
says roads mot heretofore legally es-
tablished." These words must be Civ
en- some significance, and since the
statute would cover all roads used for
10 years, without the employment of
the words mot heretofore legally es-
tablished," it is fair to presume that
the Legislature meant this act to ap-
ply only to roads which have been es-
t'blished but which are not legal
highways, owing to some defect in the
proceedings.
1t is well known that many roads
have been laid out'and are now in use
in pursuance OF proceedings which are