Fraser v. Portland

Mr. Justice Harris delivered the opinion of the court. 1. The city takes the position that the plaintiff is estopped to ask for the removal of the sewer from his land, because he had notice of the intention of the city to construct the conduit, across his property, but — 95 — notwithstanding such knowledge he neglected to object until after the completion of the improvement, when the rights of the public had intervened. The city cannot defeat the suit, unless an equitable estoppel can be raised as an insurmountable barrier. When the city planned the improvement, the municipal authorities assumed that by the time they would be ready to lay the sewer, East Twenty-ninth Street would be extended so as to connect with Siskiyou Street. The attempt to open the street was defeated. The defendant made no move to secure a right of way over the Fraser property until after the work of constructing the sewer had commenced, and when the municipality did move it was told by Fraser that if it attempted to lay a sewer across his land “he would fight it.” The city, however, laid the sewer in spite of the notice not to lay it. The trench was dug, the pipe was laid, and the conduit was completed across his property, except filling the trench, when Fraser for the first time knew that the sewer was being' constructed across his land. It is true that Fraser said nothing more to the city and made no formal objection until about five months afterward, when he served a written notice to remove the sewer. 2. Nearly every element essential for the creation of an equitable estoppel is wanting. Mere silence, or, in the language of previous judicial opinions, “passive acquiescence,” does not by itself create an irrevocable license or produce an estoppel: Lavery v. Arnold, 36 Or. 84, 86 (57 Pac. 906, 58 Pac. 524); Hallock v. Suitor, 37 Or. 9, 12 (60 Pac. 384); Ewing v. Rhea, 37 Or. 583, 587 (62 Pac. 790, 82 Am. St. Rep. 783, 52 L. R. A. 140), expressly overruling Curtis v. La Grande Water Co., 20 Or. 34 (23 Pac. 808, 25 Pac. 378, 10 L. R. A. 484); Carson v. Hayes, 39 Or. 97, 107 (65 Pac. 814); Bolter — 96 — v. Garrett, 44 Or. 304, 307 (75 Pac. 142); Brown v. Gold Coin Min. Co., 48 Or. 277, 284 (86 Pac. 361); Shaw v. Proffitt, 57 Or. 192, 202 (109 Pac. 584, 110 Pac. 1092, Ann. Cas. 1913A, 63); National Fire Alarm Co. v. Portland, 59 Or. 409, 417 (117 Pac. 285); Booth-Kelly Lbr. Co. v. Eugene, 67 Or. 381, 383 (136 Pac. 29). The defendant, however, cannot even claim that Fraser remained silent.. He told the city in plain words that he objected and would fight any attempt to lay the sewer across his property. The defendant was a trespasser when it constructed the sewer across the Fraser land. The owner did not tell the city that it could lay the sewer across his property, and consequently it is not necessary to determine whether an express oral permission, if acted upon, would alone be sufficient to create an irrevocable license, although the following cases may appear to give support to such conclusion: Garrett v. Bishop, 27 Or. 349, 353 (41 Pac. 10); McBroom v. Thompson, 25 Or. 559 (37 Pac. 57, 42 Am. St. Rep. 806); Kelsey v. Bertram, 63 Or. 563, 565 (127 Pac. 777); Dwight v. Giebisch, 77 Or. 254 (150 Pac. 749, 752). Since Fraser did not expressly consent to the improvement, the present controversy does not call for an attempt to distinguish expressions found in the last-mentioned cases from, or to reconcile them with, the following adjudications holding that an oral permission does not result in an irrevocable license, unless a consideration is paid by the licensee or some benefit accrues to the licensor: Lavery v. Arnold, 36 Or. 84, 86 (57 Pac. 906, 58 Pac. 524); Hallock v. Suitor, 37 Or. 9, 13 (60 Pac. 384); Ewing v. Rhea, 37 Or. 583, 585 (62 Pac. 790, 82 Am. St. Rep. 783, 52 L. R. A. 140); Miser v. O’Shea, 37 Or. 231, 237 (62 Pac. 491, 82 Am. St. Rep. 751); Bolter v. Garrett, 44 Or. 304, 307 — 97 — (75 Pac. 142); McPhee v. Kelsey, 44 Or. 193, 200 (74 Pac. 401, 75 Pac. 713); Sumpter Ry. Co. v. Gardner, 49 Or. 412, 416 (90 Pac. 499); Falls City Lbr. Co. v. Watkins, 53 Or. 212, 215 (99 Pac. 884); Flinn v. Vaughn, 55 Or. 372, 376 (106 Pac. 642); Shaw v. Proffitt, 57 Or. 192, 204 (109 Pac. 584, 110 Pac. 1092, Ann. Cas. 1913A, 63); National Fire Alarm Co. v. Portland, 59 Or. 417 (117 Pac. 285). Fraser did not in any way aid in the construction of the sewer, and therefore a license cannot be predicated upon his participation in the enterprise: North Powder Co. v. Coughanour, 34 Or. 9, 21 (54 Pac. 223); Bowman v. Bowman, 35 Or. 279, 281 (57 Pac. 546); Hallock v. Suitor, 37 Or. 9, 13 (60 Pac. 384); Ewing v. Rhea, 37 Or. 583, 586 (62 Pac. 790, 82 Am. St. Rep. 783, 52 L. R. A. 140). Although the pendency of negotiations for a right of way would not have created a license (Falls City Lbr. Co. v. Watkins, 53 Or. 212 (99 Pac. 884); National Fire Alarm Co. v. Portland, 59 Or. 409, 413 (117 Pac. 285), still it should be remembered that the defendant was not even negotiating with the owner when the sewer was laid across the Fraser land. Moreover, there is not a word of evidence to indicate that the city relied upon any omission of the owner, or upon any act done or word said by Fraser: Flinn v. Vaughn, 55 Or. 372, 376 (106 Pac. 642); Falls City Lbr. Co. v. Watkins, 53 Or. 212, 215 (99 Pac. 884). The city was a trespasser from the beginning, and it has entirely failed to establish the elements necessary to the creation of an irrevocable license. 3, 4. The defendant argues, however, that another defense is available, if it is compelled to recede from its position that an irrevocable license was created. The remaining defense interposed by the city arises — 98 — out of the contention that the rights of the public have intervened, and the removal of the sewer would inconvenience many and convenience only one person, and that therefore a court of equity should refuse to heed the prayer of the complainant and leave him to his remedy at law. It is true that sometimes a court of equity will decline to raise its restraining arm and refuse to issue an injunction, leaving the injured party to his remedy at law, even though an admitted legal right has been violated, when it appears that the intervening rights of the public should be taken into consideration, and the issuance of an injunction would cause serious public inconvenience or loss without a correspondingly great advantage to the complainant. The rule now invoked by the city as its last defense was applied in Booth-Kelly Lbr. Co. v. Eugene, 67 Or. 381 (136 Pac. 29); but there the court dealt with a situation quite different from the one here. Fraser warned the city in time for it to make ample provision for its protection. When the defendant entered the premises of Fraser, it knew that the owner had objected, and that he would continue to object. Fraser did not even tacitly acquiesce, as the plaintiff did in Booth-Kelly Lbr. Co. v. Eugene, 67 Or. 381 (136 Pac. 29). No deception was practiced, and nobody was deceived. The city relied on nothing except its expectation that East Twenty-ninth Street would be extended. . Fraser did all that he could do, and all that could rea- • sonably be asked of him, and he is entitled to have the assessment canceled, and, unless a right of way is legally acquired within a reasonable time, to have the sewer removed. 5. A court of equity is empowered to .grant the relief asked by the plaintiff, because the act complained of produced a continuing wrong: Bernard v. Willamette — 99 — Box & Lbr. Co., 64 Or. 223, 233 (129 Pac. 1039); Bourne v. Wilson-Case Lbr. Co., 58 Or. 48, 52 (113 Pac. 52, Ann. Cas. 1913A, 245); Moore v. Holliday, 43 Or. 243, 247 (72 Pac. 801, 99 Am. St. Rep. 724); 1 High, Inj. (4 ed.), p. 663. 6. Assuming that it is within the power of the city to condemn the land, or to extend Bast Twenty-ninth Street, or in some lawful manner acquire the right to maintain the sewer, a decree should be entered requiring the city to remove the drain, unless within a reasonable time the defendant acquires a right of way for the sewer, but with directions to the Circuit Court to ascertain what would he a reasonable time, and canceling the assessment attempted to he made against the plaintiff for the improvement, without prejudice, however, to any right that the municipality may have to levy a reassessment: Iron Works v. Oregon R. & N. Co., 26 Or. 224, 234 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88); 2 Lewis, Eminent Domain (3 ed.), p. 1632. A decree will therefore be entered in conformity with this opinion.