Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-29

suance thereof constitute an ire
vocable dedication to the public of
the streets and alleys delineated on
the plat and further acceptance by
the public is unnecessary. Spencer
" Peterson, Al Or. 257; Moore v.
Fowler, ia Pac. 472. The principle
sustaining these decisions is that the
dedicator, by sale with refertnce to
a plat, is estOpped from thereafter
claiming any title or interest in the
streets or alleys designated on the
plat.
In good reason person acquiring
property with reference to such
plat is equally bound by the plat
with reference to the streets and al
leys marked out At least his con-
duct in thus purchasing ought to be
considered as strong evidence tend
ing to refute his claim for additional
ground lying in the street. To sus-
tain the plaintiffs contention she
has several times stated in her COM
plant that her acts in improving her
property were done with the consent
of the City of LaGrande. There is
no evidence In the record that the
city ever did any act or took any af-
firmative cognizance whatever in
that behalf which would indicate any
consent thereto on the part of the
city.
1.-THE right of cities and towns
whether incorporated or not), with
in the State Of Oregon to land dedi-
Gated to or otherwise acquired for
the public use for streets, highways,
parks, or public place, shall not be
extinguished by any adverse posses
sion, however long continued, and no
title to such lands as against any
city or town whether incorporated
or not), shall be hereafter acquired
In this state through the operation
Of the statute of limitations" L. o.
L., Case 6371. This section is an eX-
act repetition of the first section of
the Act of February 23, 1895, Laws
1895, p. 81, and together they oper-
ate to defeat any title to ground in
the street by mere prescription for
the first enclosure was made by Mrs.
Remington and, according to the
pleadings, 1t could not have been
earlier than some time in 1891. If
she or her successors in interest ever
had any incipient title by prescrip-
tlon the statute cut it off before it
ripened by lapse of time. In order,
therefore, to acquire title to the land
lying in the street as portrayed on
the map 1t Is incumbent on the
plaintiff to show something beyond
mere possession and user on her
10 hi nj -
disclose by the evidence some con-
duct by the city leading the plaintiff
on to do acts such as it would be
against equity and good COINCIDENCE
TO permit the city at this time to dis
avow.
Much is claimed by the plaintiff
for the fact that the city council
came to her premises to view cess
pool in use there and that at the time
the new fence and walk were in con-
temptation and in process of con-
struction. There is no testimony
however, about the then condition of
the proposed new fence or what was
said to the city authorities about the
plaintiffs contemplation of that i'm
provement. The premises were so
much out of joint with the rest of
the town as to give pause to plaintiff
and her husband, managing for her,
so that they moved their fence in
from the place where the former
fence stood and even if the council
on the occasion referred to saw the
fence in process of construction they
might well have thought that the
plaintiff was about to put the fence
on the true line. The PLAINTIFFS
husband, her grantor and managing
agent often saw the recorded plat
Of the addition in question and was
familiar with its lines. He knew
that all its lines we're straight and all
its angles right angles. The prem
J ises in question as incosed by the
fence plainly did not correspond with
the plat, for its angles included by
the fence were very plainly not all
right angles, nor was its 80" street
boundry straight line. In the
course of her improvement of the
property the plaintiff built a wall
. along the south side of her premises
on the alley line Her own measure
ment across the east end of lots )
and 6 along fourth street shows that
she has ia feet within her inclosure
whereas the dimension of the two
lots abutting upon that street Is only
l10 feet. The commonest kind of
observation with respect to the i'm
provements on adjacent lots and
blocks would have shown the plain
tiff that her inclosure was encroach-
ing upon the street. The general
trend of the testimony shows that
the plaintiff acted without trying to
dicover the true line In fact, her
husband avows as much, and states
substantially that he never did know
where the true line Of the street was
There Is evidence in the record tend
ing to show that his attention was
called to the fact that his fence en-
croached upon the street. The
plaintiff Is presumed to know what,
with ordinary care she might have
discovered by searching the records
or causing a survey to be made.
This case is easily distinguishable
from the cases of Schooling v. Har-
risburg, AZ Or. 494, and Nodine V,
Union, AZ Or 61S. In those cases
! the plaintiffs claimed the ground in
the alleged streets not only by virtue
of adverse possession and the max
ing of permanent improvements but
also by deeds from the original
owners of the title, thus giving the
plaintiffs coior of title to support
their claims. Here neither plaintiff
nor her grantors have any color OF
title to the already open ground
within the street lines. The incep.