Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-30

the renee. Respecting the deQlcatlOn
the allegation of the answer is
THAT there was duly laid out and
dedicated to the public for street
and highway strip 80 feet in width
off of and along the entire west side
or end of the land belonging to said
plaintiff and her grantors" 1t is
permissible in pleading a judgment
of court to say that it was duly
given or made or in pleading the
performance of conditions precedent
in contract it may be stated gener-
ally that the party duly performed
all the conditions on his part, a.. o.
L. Sections S7-8S) but it is not suffi-
cient to say that a street was duly
laid out and dedicated to the public
The pleader should state facts from
which the court could determine for
itself on a construction of the plead
ing whether or not the street was
duly dedicated In this case there
is no dedicator mentioned or person
who had any authority or right to
give this land to the public for a
street. Moreover, there is no allega-
tion of an acceptance on the part of
the public Although under our
statute of limitations no lapse of
time will prevent the county from
accepting the dedication and opening
the highway, yet as against individ-
uals the reservation in the deed as
above quoted amounts only to an Of
fer on the part of the grantor to
dedicate the roadway to public uses
and there can be no dedication under
such circumstances until the same is
accepted by the county. Tillman v.
People, 12 Mich. 4O1; Littler " Lin
coin, 1O6 Ill. 353; Bethel v. Pruett,
215 Ill. 1852; Bauman v. Boeckeler,
119 Mo. 1S9; Baker '. Squire, n Mo.
App 329.
The cases on dedication cited by
the defendants are such as Carter "
Portland, Or. $780, and similar pre-
cedents down to and including Chris
tian V. Eugene, 49 Or ITO. These
decisions turn upon the principle that
when land owner plats his land
into streets or roads and lots or
blocks and sells property with refer
ence to a map made from such sur
vey, it amounts to a dedication at
once of the streets and alleys to pub
lie uses and it is not necessary under
such circumstances to show an ac-
ceptance by tlr7 public. The accept
ance is at ono. presumed when the
owner makes sales of his property
with reference to such a map. In
this instance no map was ever made
of the 10 acres in question so far as
the record discloses. 1t appears in
evidence and is admitted that this 10
acre parcel abuts upon lands which
were plated under the designation
of Little Homes" in which defen-
dant's holdings are situated, but the
plat Of the latter tract introduced in
evidence does not in any way delin-
cate the 10 acres of plaintiff. We
conclude that neither by the plead
ings nor by the evidence is there suf-
ficient to show dedication of the
SO-foot strip reserved in the Murtha
deed.
Yet further, conceding that the
dedication has been shown and that
the fence in question was upon the
dedicated roadway, which would
make it public nuisance, the de-
PENDANTS by their answer have not
shown in themselves a right to abate
this nuisance, AS against a public
nuisance the courts will not interfere
on behalf of an individual unless he
sustains some damages differing in
kind from those suffered by the gen.
eral public. Luhrs v. Sturtevant, 10
Or, 40; Van Buskirk v. Bond, So Or
234. The defendants do not allege
that they have suffered any inconven-
ience or hurt on account of the fence
in question peculiar to themselves
and not experienced by the public at
large, In proper case one affected
by nuisance has two remedies;
! first, by suit or action for damages;
and, second, by his own act in abat-
ing the nuisance, provided it can be
done without breach of the peace.
The two remedies, however, are
founded on the same right; that is,
the right to recover damage sus-
tanned by the individual for an in
Jury to himself not common to the
general public. The foundation of
the two remedies being the same, If
he cannot sustain an action at law he
cannot take the law into his own
hands and so abate the nuisance. If
the one remedy by suit or action
does not exist neither does it's con-
current remedy of abatement by the
act of tn party. So far as the an
swer Of the defendants is concerned,
1t shows no right to justify them in
tearing down the fence in question,