Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-30

y northwest side Of the road and en-
t, closed the Everest tract, and which
It remained there until about the year
o 1895 when It began to disappear.
T On March l, 1883, Everest plated
b th tract into lots, blocks, streets
+ and alleys. The notes Of the survey
e OF the plating, If any, are Lot in
evidence and there is noth,ng on the
Plat to indicates tbs location of the
q southeast line OF the plated ground
All the blocks bordering on the road
{ are fractional blocks and their di-
mensions cannot be determined from
the plat, but the southeast line of
the blocks are indicated thereon bv
heavy black lines adjacent to the
road. The tracing of the survey Of
the 17-acre tract, given in evidence
by Herring, as taken from the deed
discloses that 1t included portion
OF the road as now recognized, name
ly, about 15 feet. If the blocks and
lots were staked on the ground when
the addition was plated, It was not
shown in the evidence, nor has there
been any attempt to locate the cor
ners or lines Of the blocks bordering
on the road. If Everest owned to
the center Of the road at the time he
plated the ground, we would be
Justified, from the facts appearing,
In holding that he dedicated to the
public so much of the road as is in
cluded in his tract, but as we have
before us no data as TO these facts
or the location of the road with ref
erence to the plat, 1t does not aid
us in determining the location Of the
road or rather its northwest boun-
dairy.
1t apepars that the county made
some effort in April, 1871, to lay out
and establish the road as county
road under the statute but 1t is prac-
tically conceded that what was done
in that matter was insufficient TO es-
tablish road, and the record does
not aid plaintiffs case oher than 1t
operates as color of title in the use
of the road thereafter. It is to be
noted that the building of the fence
was approximately at the time of
this attempt by the county to lay out
the road and the use by the public
will be presumed to extend to the
fence.
1t is said in Washington Borough
v, Steiner, rs Pa. Sup. CT. 392, that
Where the right to a public high
way is acquired by adverse user, an
important element in determining
the width thereof is the recognition
Of the limits Of the way by the own
ers whose lands front thereon, as in
dicated by the monuments and fences
which they themselves place upon
the ground, and the lines which they
fix for the same in making convey
ances of their property"
In Kruger v. Leblanc, 70 Mich. 70,
1t is said: Highways by user are
based upon the implied dedication by
the owner of the land; and, where
there is nothing to indicate a con-
trary intention, tho presumption is
that the owner intended to dedicate
the land to the full legal width:
Bumpus V. Miller, 4 Mich. 159. But
where the owner has placed fences
or other means, during the time the
statute Is running, within the statu.
tory width, II indicates an intention
not to dedicate to the full width, and
the public is only entitled to claim
the part which It has been permit !
ted to USE" See also Bump v. Mil /
Ter, 4 Mich. 15O. L
1t is conceded by defendant that
this road was a lesal county road !
and is now city street by user, and !
he only questions its location or the
location of its northwest boundary.
These statements eliminate all the
questions involved except the loca-
tlon of the boundary of the road as
acquired by user. Adverse possess
sion of the ground cannot aid defen- :
dant unless his possession continued
for 10 years prior to the 25th day Of
May, 1895, when the state and coun-
ty were exempted from the opera
ton of the statute Of limitations, and
defendant makes no contention of
such possession except by virtue OF
the original fence built In 1871 by ]
Everest, and plaintiff seems to admit
that the location OF that fence is the
northwest boundary of the road, and
Is the true boundary Of the road, and
we will attempt to ascertain the ori-
ginal location Of the fence, referred
to as a rail worm fence"
AT the time Of the trial there was
none of the fence remaining and
plaintiff seeks TO establish It's origl-
nal location by persons who were
familiar with it. Many witnesses
Identify an apple tree as having
stood within the %crm Of the fence
on the ground that is now part Of
defendants lot the stump of which
Ia now intact and u,ithln daeordax,4,, a