Hart v. City of Independence

Opinion by Mr. Chief Justice McBride. There is not sufficient evidence here to justify us in changing the lines of the streets of Independence as they have been acquiesced in and recognized for forty years before the last survey. It is evident that no survey was made when the land was originally platted, but by referring to the plat it is plain that Thorp intended to plat the northeast comer of his claim. The original field-notes are not here, and there is not a scrap of original evidence anywhere in the record to identify the location of the northeast comer. In this dilemma the surveyor attempted to locate it by reference to a description in a deed from E. A. Thorp to A. Nelson, dated March 21, 1883, conveying all his donation land claim not included in the town plat in which deed the beginning point is described as follows: “Beginning at the northeast comer of said land claim where a bottle with charcoal in it is sunk in the ground,” etc. Upon what data this description is based does not appear. Evidently it was not a “gov198 eminent comer,” because the government surveys are not marked by beer bottles buried in the ground; and it is a matter of common knowledge that in the early fifties, when these donation claims were being surveyed, Oregon was in a state of pristine purity and sobriety and beer bottles were unknown. So this beer bottle which the surveyor found and dug up and identifies as such must belong to a more recent geological period than that extending from 1850 to 1854. There is no proof of the accuracy of the survey, if there was a survey, when it was buried and no sufficient proof that it was the same bottle referred to in Thorp’s deed, though it probably was. It is not nearly so reliable as indicating the location of the streets as the acts of old settlers, including Thorp himself, who owned some of the lots now owned by one of the plaintiffs and who maintained his fences upon the street line as it is now claimed by them. If anybody on earth knew the boundary lines of Main Street Thorp was that man. He was the owner of the town site and interested in the progress of the town, and it is not probable that he would infringe upon the streets which he had laid out or allow his neighbors to do so without remonstrance. Upon the whole testimony we are inclined to the opinion that the boundaries of Main Street are as a matter of fact where the plaintiffs contend; but even if the northeast comer of the Thorp donation land claim is situated where defendant’s engineer places it, the city is estopped from claiming a right to shift the boundaries of the street which have been accepted and acquiesced in by everybody for nearly half a century, merely to attain mathematical exactness. This is not a case like Oliver v. Synhorst, 58 Or. 582 (109 Pac. 762, 115 Pac. 594), or Gruson v. Lebanon, 64 Or. 593 (131 Pac. 316), where there would have been no difficulty in [199] ascertaining the exact boundaries of the street if the parties had been reasonably diligent. Here the plaintiffs have adopted the theory of the man who laid out the town and dedicated the plat and assuming that he knew the lines of the streets he had dedicated have purchased from him and in some instances only replaced the fences placed by him upon what he evidently believed was the street line. These lots are not in an outlying and unoccupied part of the city, but upon one of its earliest occupied streets. With the acquiescence of the city and under the direction of its officials permanent sidewalks have been erected and valuable improvements made. For forty years the street has been actually used by the public upon the ground and within the boundaries claimed by plaintiffs. There it will remain. The decree is affirmed. Affirmed. Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice Harris, concur.