Bernitt v. City of Marshfield

BEAN, J. — Aside from the legal questions involved, the plaintiffs claim that the improvement is unjustified and will destroy the street for residence purposes; also, that the expense of the improvement would nearly confiscate the adjoining lots. The plaintiffs claim that the Clement and Cathcart plats are identical and that the street is laid upon the ground in accordance therewith. The defendants claim that the Clement plat differs from the Cathcart plat in the location of the North and South Street lines, claiming that under the Clement plat the street lines run due north and south while under the Cathcart plat and Hall plat, made prior to 1875, they ran north one degree east. In 1905, one Polley made a survey of the street under the direction of the city council according to their con — 560 — struction of the Clement plat, making the north and south lines of the street run north one degree to the west of the street lines as laid out on the ground. The city proposes to improve this street according to the lines of the Clement plat as surveyed by Polley. Plaintiffs, over the objections of defendants, introduced testimony showing that the Clement plat was made by an architect who copied a portion of the Cathcart plat. There was not a complete survey made on the ground at the time the Clement plat was prepared. At that time John Hall, a surveyor, at the instigation of the owner of the property, laid off the lines of Pine and some other streets showing the frontage and fence lines of the lot owners. He took the base line of the Cathcart plat as the same was then established in the center of Pine Street and surveyed the lines of the street a distance of 30 feet on either side of such base line, and parallel thereto. Along these street lines he drove stakes or pegs. This information was furnished the draftsman of the Clement plat and incorporated therein, the exterior lines of the street and front lines of the lots being marked thereon by a red dotted line. There are no other bearings or field-notes on the Clement plat. The only other directions being the designation of the points of the compass ; the top of the map representing north. Apparently the lines of First Street, or Pine Street, as it was then called, run north and south, or nearly so. There is an iron pipe set in the ground at the south end of the center line of Pine Street. This is shown on the Clement plat. This point is not in dispute. The testimony shows that formerly there was such a pipe set at the north end of this line as surveyed by Cathcart and Hall. The improvements on Pine Street, such as'buildings, fences and sidewalks, have — 561 — been made to substantially conform to the Cathcart survey since about 1875. By running the lines of the street due north, according to the Polley survey, they diverge to the west of the Cathcart line about two and four-tenths feet to each 100 feet as demonstrated by the survey of Mr. A. B. Gidley, a civil engineer, and the west line of the street would intersect several dwelling-houses situated on the lots of plaintiffs. Some of these houses have been occupied where they now stand since the seventies and eighties, having been remodeled and improved. The reason of the objection of the defendants to the evidence of the Cathcart survey and plat is that parol evidence is not admissible to change a plat of a city or town, made by the owner of the property, in a collateral suit. This rule is unquestioned, but the Clement plat taken by itself is somewhat ambiguous. It is impossible to tell with the naked eye whether or not the lines of this street run exactly north and south. 1, 2. Oral evidence of the circumstances under which a writing has been made, or to explain an ambiguity, either intrinsic or extrinsic, is competent: Section 713, L. O. L., and notes. It was peculiarly appropriate to explain the Clement plat by oral evidence. Such evidence did not change that instrument. It was also competent to show the survey of the lines of Pine Street by John Hall, which were delineated on the Clement map by red lines. It is clearly shown by the evidence that in making the Clement plat, a part of the Cathcart plat was adopted. The Cathcart survey, in so far as the same related to the land embraced in the Clement plat, was for all practical purposes also adopted. No other complete survey of the land was made. The portion surveyed by Mr. Hall conformed to the Cathcart survey, and — 562 — the dotted red lines on the Clement plat representing the exterior lines of Pine Street served as monuments representing the street lines upon the Clement map. 3-6. A surveyor must have data from which to make a survey, and cannot determine lines and fix monuments according to his own ideas. For the purpose of showing lines and boundaries, it can always be proven where the survey actually ran. If a map does not agree with the survey of the same as laid upon the ground at the time of making the map or plat, then the survey must prevail in establishing the correct boundary of a lot or street if the position of the points and lines established by the survey can be proved: 2 Devlin on Deeds (3 ed.), §§ 1020 and 1020a; O’Farrel v. Harney, 51 Cal. 125. In construing, interpreting or resurveying an old map or plat, old fences, street improvements, lines of occupancy, etc., showing that the territory had for a long time been occupied under an evident and consistent survey of such plat, are. strong’ evidence of the location of the original lines: Beaubien v. Kellogg, 69 Mich. 333. When a plat is copied from another map, it is proper to consult the latter and the survey made thereunder, to locate the boundaries of the former: McLane v. Grice (Tex. Civ. App.), 66 S. W. 709. 7. The action of the city council of Marshfield in causing a survey by Polley in 1905 cannot change the property rights of the plaintiffs as they have vested under the original Clement plat as it was laid out upon the ground by John Hall, the surveyor: Sheridan v. Empire City, 45 Or. 296, 300 (77 Pac. 393). We concur in the finding of the trial court that the lines of First Street North, as surveyed by -Cathcart and Hall, are the true boundaries of the street, as represented upon the Clement map. — 563 — First Street, or Pine Street, was originally dedicated sixty feet in width. In February, 1886, the board of trustees of the town (now city) of Marshfield passed Ordinance No. 74, providing for the improvement of a portion of Pine Street. By Section 9 of this Ordinance, it was declared as follows: “That the ten (10) feet in breadth on the East and West sides of said Pine Street and not included in the forty feet heretofore mentioned be and the same is hereby vacated for the purpose of improving the appearance and breadth of said street and that the said ten (10) feet be and the same is hereby dedicated other adjoining lot owners. * * Provided, and such vacation and dedication is made with the distinct provision that no buildings shall be erected, moved on to or permitted to remain on any portion of said strip of ten feet and that nothing in the shape of a structure save and excepting a fence, not to exceed in height 4% feet shall be built thereon. And it is further provided that should any of the adjoining lot owners permit or allow any of the provisions aforesaid to be broken or in any way violated the said strip of ten (10) feet fronting his said lot shall immediately revert to and vest in said town as though the vacation and dedication therein had not been made, during the continuance of such violation and this section Is enacted subject specially to the provisions and restrictions aforesaid. ’ ’ 8. Afterward the adjacent lot owners moved their fences so as to embrace the 10-foot strip and planted lawns and shrubbery thereon. Defendants contend that the action of the city officials as to the vacation of the 10-foot strip was void. The first charter of Marshfield enacted by the legislature in 1874 authorized the board of trustees to “lay out and open streets.” No authority was given by the charter to vacate a street. Amendments to the charter were made by the lawmakers of the state in 1876 and 1880, but no power — 564 — was conferred upon the hoard of trustees to vacate a street, or dedicate a portion of such a highway. to adjoining lot owners. Moreover from the language of the ordinance quoted above, it appears to have been the real intention of the municipal officials to permit a restricted use of the 10-foot strip in question by the adjacent property owners, or to ordain, what they seemed to have termed, a temporary vacation. It does not appear by the language used that it was the purpose of the city authorities to relinquish the right to the control over that portion of the street. Ever since the passage of Ordinance No. 74, the property owners adjoining that part of the street affected, by their occupancy of the 10-foot strip have necessarily recognized, and acquiesced in, the right of the city to prevent the erection of any building or other structure thereon except a fence. In this way the municipality has held dominion over the narrow tract for street purposes during that time. The effect of Ordinance No. 74 was no more than 'a revocable permit to prepare a portion of the street as a kind of parking. In 1903, the city council of the City of Marsh-field after ordering a certain structure removed from a street declared that the pretended vacation of the strip was null and void, and revoked the same, and ordered the sidewalks to be removed to the outer line of the street. It does not appear that the 10-foot strip on each side of Pine Street was ever legally vacated. The trial court held that the city was restricted to the improvement of the street as only 40 feet in width. The contention of the plaintiffs is that the city is equitably estopped from asserting a right to the 10-foot strip as a street by reason of its laches. The rule in regard to laches in a matter of this nature is — 565 — stated by Mr. Chief Justice Bean in Oliver v. Synhorst, 48 Or. 292, at page 297 (86 Pac. 376, at page 378, 7 L. R. A. (N. S.) 243), as follows: “But, while the rule may be that the ordinary statute of limitations as such cannot be set up to defeat the right of the public to the use of a street or highway, there may grow up, in consequence of the laches of the public authorities, private rights of more persuasive force in the particular case than that of the public, and if ‘acts are done by an adjoining proprietor which indicate that he is in good faith claiming as his own that which is, in fact, a part of the highway, and is expending money on the faith of his claim, by adjusting his property to the highway as he supposes or claims it to be, the public will be estopped’ Citing authorities. 9. The plaintiffs invoke this rule, but the facts in the present case do not bring it within such announcement. The rule in regard to laches in such cases is somewhat analogous to that prescribed by the statute of limitations. The use of the street in question by the adjoining property owners was made as directed by the ordinance of the city. It was not antagonistic to the municipal rights. The improvements were made with the permission of the city, therefore the rule does not apply. The recognition of the dominion by the city government over the part of the street by the adjacent lot owners does not indicate that such property owners were claiming that part of the street as their own property, but showed the reverse. The expenditure made in adorning the “parking” or side of the street, with grass and shrubbery was in consonance with the provisions of Ordinance No. 74. We hold that First Street North, formerly Pine Street, is 60 feet in width. With the modification as to the width of the street as specified, the decree of the — 566 — lower court should be affirmed. Plaintiffs are entitled to recover their costs in this court. It is so ordered. Modified. McBride, C. J., and Benson and Johns, Jj., concur.