Portland v. Miller

Opinion by Mr. Chief Justice McBride. 1. Upon the trial the defendants claimed, and introduced testimony which tended to show that they did not intend to dedicate that part of the street where their house was then and now is situated; but there is no pleading to sustain this testimony, and it was improperly admitted. It amounted to a collateral attempt without pleading to impeach the plat, which cannot be permitted: Christian v. Eugene, 49 Or. 170 (89 Pac. 419). 2. The city is not estopped by reason of its failure to eject the defendants at an earlier date. It is remarked in Oliver v. Synhorst, 58 Or. 582 (109 Pac. 762, 115 Pac. 594): “In the smaller towns of this state, it is not unusual for streets in remote districts to remain unopened and unimproved until they become sufficiently populous to justify levying assessments upon adjoining property to improve them. To require a city to open and improve all its streets at once, without reference to the need of such improvement, at the peril of forfeiting them, would be absurd, as a matter of public policy, and would, if carried out, prove an intolerable burden to those owning lots on remote and unfrequented streets. ’ ’ While this addition continued to be thinly populated, there was probably no occasion to use the street in question; and now that occasion has arisen for its use, [321] citizens who bought and built upon the faith of the plat should not lose their right to use the street because the city authorities did not open it before such occasion arose. If the defendants were negligent in the preparation of the plat, they should suffer the inconvenience occasioned thereby rather than those persons who purchased on the presumption of its correctness. The decree is affirmed. Affirmed. Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice McNary concur.