Douglas County Road Co. v. Abraham

By the Court, McArthur, J.: This suit was instituted by the Douglas County Eoad Company against Solomon Abraham and others, to enjoin them from erecting and maintaining the toll-gate described in the complaint, and from obstructing and interfering with the road claimed by said company. The decree of the court below was based upon the following findings of fact: 1. That the road described in the complaint has been used by the public continuously twenty-five years, and is situate in Douglas County. 2. That the plaintiff is a private corporation, and incor [321] porated under tlie general incorporation laws on the 20th day of December, 1873.. 3. That the plaintiff, on the 10th of April, 1874, entered into a contract with the County Court of Douglas County for the appropriation and occupation of said road. 4. That the defendants have obstructed said road by erecting a toll-gate thereon. • The statement accompanying the transcript sets out very fully the testimony offered by the parties in the court below, and has been very carefully examined into by this Court. All the questions of law arising herein have also been fully considered. The case was fully presented and thoroughly argued. Notwithstanding all these facts, we have been unable to arrive at a unanimous conclusion. Upon the first point a majority of the Court have reached the conclusion that the road in suit has been used continuously for twenty-five years by the public. From this finding arises the question whether in this State a public highway can be thus established. That a highway may derive its existence from the dedication of the land over which it passes, is a principle too firmly fixed in our jurisprudence to be now questioned or shaken. As was said in Carter & Mason v. City of Portland (4 Or. 339), the dedication may be by grant or rest in parol. Furthermore, it may be manifested by acts inconsistent with any other inference. Where there can be no direct proof of acts of dedication, proof of actual public use, general, uninterrupted, continuing for a length of time, will be sufficient to raise a presumption of a dedication, and where the length of time of such use by the public has been greater than the period prescribed by the Statute of Limitations for the recovery of real property, that will be regarded as sufficient evidence of the existence of a highway independently of any supposed dedication. (Washburn on Easements and Servitudes, ch. 1, § 5, and cases there cited; Oustott v. Murray, 22 Iowa, 457; Ewell v. Greenwood, 26 Id. 377; Daniels V. The People, 21 Ill. 442; Lewiston v. Proctor, 27 Ill. 417.) The value and applicability of the cases cited arise from the fact that in them the law is laid [322] down independently of the statutes existing in Iowa and Illinois upon the subject of highways and county roads. The result of the authorities, therefore, is that a road or highway may be established by dedication. Washburn, in the work, and in the section above cited, after referring to eases from various States, declares this to -be the settled doctrine of the common law of this country generally. There is nothing in the road laws of Oregon which, in my opinion, renders the application of these principles of the common law to highways in this State at all improper, and in my judgment there is no force whatever in the proposition that as the laws of this State proyide for the establishment of county roads in a certain prescribed manner, therefore roads cannot be acquired in any other manner. In order to exclude the application of the principles of the common law there must be something in the statute expressly or by necessary and reasonable implication declaring or indicating their inapplicability. After a careful review of the statutes, I am of opinion that they contain no expression or implication against the doctriue which sanctions the establishment of highways by dedication and public user. I am also of opinion that a slight change in the thread of the road will not operate to defeat the rights of the public, and the same length of user will not be required to constitute'prescription or dedication as to the portions changed. (11 Met. 421; 7 John. 106; 2 Washb. on Real Prop. 175; 19 Pick. 405; 13 Wisc. 663.) No corporation has the power or legal right to appropriate a highway by user without in the first place attempting to make an agreement with the County Court in accordance with the provisions of the Miscellaneous Laws, page 530, § 26. Upon the second point I am of opinion that the testimony establishes that the Douglas County Road Company was duly organized on December 20, 1873. The fourth point found by the court below is also fully warranted by the testimony. I cannot, however, reach the conclusion that the road [323] company entered into a contract with. Douglas County-for the occupation and appropriation of the road in controversy. The testimony submitted tended to show that the county judge and one commissioner executed the instrument relied on, and that it was filed in the county clerk’s office. It was not, however, as it should have been to make it available as evidence, entered in the journal. In order to prove a contract with the county it should have been so entered. The County Court or Board of County Commissioners can speak only through the journal. (8 Ind. 504; 6 Cal. 541; 7 Ind. 6.) Had this suit been between the road company and the county it might have been otherwise, for as between those parties equity would consider that done which should have .been done. When, however, a party claims the benefit of a contract with the county in a suit with a third person and a stranger to the contract, it must be shown that the contract was duly made and entered in the journal. Conceding, for the sake of illustration, that the plaintiff has proved the alleged contract, the case then stands in a somewhat similar position of a judgment rendered and not entered of record. In such case the judgment must first be entered upon the record before it is admissible as evidence in other courts. (Freeman on Judgments, § 38.) Decree reversed. Mr. Chief Justice Bonham and Mr. Justice Burnett concurred.