creek marking the south line of Seventh | equity will enjoin interference with an ownstreet. M. J. Kinney testified that he never dedicated or intended to give to the public any real property south of block 23; that he may have had an agreement with some intending purchasers as to the sale of lots, but did not think he had delivered to them any deeds until the plat was recorded; that he marked in lead pencil the prices to be demanded for lots on a plat which he gave to Mr. Crawford, who made many sales for him; that he had no surveys made, except such as are delineated on the recorded plat; and that he never intended to dedicate any part of the premises in conformity with the printed plat, in referring to which he stated upon oath: er's easement, when the injury complained of is irreparable, or the intermeddling is continuous, or the remedy at law for the recovery of damages will be inadequate. 10 Am. & Eng. Ency. Law (2d Ed.) 431; 14 Cyc. 1216; Washburn, Easements (4th Ed.) 747; Church v. Portland, 18 Or. 73, 22 Pac. 528, 6 L. R. A. 259; Morse v. Whitcomb, 54 Or. 412, 102 Pac. 788, 103 Pac. 775, 135 Am. St. Rep. 832; Gyra v. Windler, 13 Ann. Cas. 841. [2] A court of equity thus having general jurisdiction to protect an easement at the suit of an owner, any defect in a complaint, interposed for that purpose in such forum, is waived when the defendant fails to demur for lack of jurisdiction of the subject-matter "I never saw this plat until after it was print- and also joins in an application for equitable ed. Q. Do you remember when it was printed? relief. Kitcherside v. Myers, 10 Or. 21, 23; A. No; I think not. I think Mr. Crawford started out to advertise this property considera-O'Hara v. Parker, 27 Or. 156, 39 Pac. 1004; ble, and he got out this, and he got out an ad- Security Co. v. Baker County, 33 Or. 338, 54 vertisement sheet, and he got it out before I Pac. 174; State v. Blize, 37 Or. 404, 61 Pac. saw him; when I did see him, I called his at- 735; Moore v. Shofner, 40 Or. 488, 67 Pac. tention to some irregularities in it, but it was too late to stop it, because it had already been 511; Investment Co. v. Garbade, 41 Or. 123, printed." 68 Pac. 6; Killgore v. Carmichael, 42 Or. 618, 72 Pac. 637; Maxwell v. Frazier, 52 Or. 183, 96 Pac. 548, 18 L. R. A. (N. S.) 102; Bradtl v. Sharkey, 58 Or. 153, 113 Pac. 653; Carroll v. McLaren, 60 Or. 233, 118 Pac. 1034; Bowsman v. Anderson, 62 Or. 431, 123 Pac. 1092, 125 Pac. 270. The defendant by failing to demur to the complaint, and by praying for affirmative relief in its answer, thereby waived all questions of jurisdiction, since a court of equity has the right to hear and determine suits involving easements. This witness, referring to Seventh street east of the creek, testified: "I think it was my intention that there should be a street running along south of block 23 and blocks 37 and 36, but it was not dedicated." In answer to the question, "Did you ever authorize Mr. Crawford to get out this map shown as Plaintiff's Exhibit A?" he replied, "I certainly did not." On cross-examination, however, Mr. Kinney admitted he had two surveys made of the land west of the creek; but, the first having been found to be erroneous, he caused a resurvey to be made. Referring to the printed plat, to which was attached the written appointment of Mr. McCoy, the witness stated upon oath that he did not write the figures appearing in red ink upon that map, nor did he believe he authorized such notation. Alluding to the representations imputed to his agent in negotiating a sale of block 23, he further testified: "Mr. Crawford had no right to sell any property contrary to the abstracts and plats that I furnished him; if he did, he went beyond his duty. Q. Mr. Crawford was your duly authorized agent in the sale of the property, all the time from the time of platting, until when? A. He sold property during the latter part of 1890, and during the year 1891. Q. Well, wasn't he your agent in contracting for the sale of property in Gearhart Park, before you filed the plat for record? A. Limited only." The foregoing is deemed to be a fair summary of sufficient of the evidence to illustrate the legal principles involved. [1] It is argued by defendant's counsel that the plaintiff had a full, complete, and adequate remedy at law for the redress of his supposed grievances, thereby precluding a resort to a court of equity, and, such being the case, an error was committed in denying a motion to dismiss the suit. No demurrer to the complaint appears to have been interposed. Upon proper application a court of [3] The important question to be considered is whether or not the act of Mr. Kinney in appointing Mr. Crawford to sell his lots and blocks in Gearhart Park, and in knowingly permitting that agent to exhibit to intending purchasers a duplicate of the printed plat, upon which Summit avenue was represented as being 60 feet wide and Seventh street, east of Neacoxie creek, as of equal width, estops the defendant as a subsequent grantee from denying the representations so contained on the printed plat as against the plaintiff as the successor in interest of Mrs. Waite the original purchaser of block 23. The authority of an agent to bind his principal in contracts made with a third party is measured, not only by the agent's express delegation of power, but also by that which he is held out by the principal as possessing, provided, however, the third party had reason to believe and did believe the agent was acting within and not exceeding his authority, and such party would sustain a loss if the contract was not regarded as that of the principal. Hardwick v. State Insurance Co., 20 Or. 547, 26 Pac. 840; Hahn v. Guardian Assurance Co., 23 Or. 576, 32 Pac. 683, 37 Am. St. Rep. 709; Connell v. McLoughlin, 28 Or. 230, 42 Pac. 218; Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 156, 44 Pac. 390; Durkee v. Carr, 38 Or. 189, 63 Pac. 117; Neppach v. O. & C. R. R. Co., 46 Or. 374, 1 3 80 Pac. 482, 7 Ann. Cas. 1035; Rumble v. j that plat to designate particular lots and Cummings, 52 Or. 203, 95 Pac. 1111. blocks when negotiating with Mr. Waite for [4] It will be remembered that Mr. Kinney the sale of block 23, before the second plat testified Mr. Crawford possessed only limit- was filed for record. Whether or not Mrs. ed authority to represent him in selling lots Waite's deed was delivered when it was acand blocks. This statement, as between knowledged is impossible accurately to deterthem, is undoubtedly true as a matter of mine from the evidence before us. Mr. Kinfact; but as to a third person who dealt ney's testimony is to the effect that he bewith the agent such sworn declaration is not lieved no deeds were delivered to purchasers a correct expression of the law applicable to until after the plat was recorded, though the circumstances of this case. By permit- some deeds were acknowledged prior thereto. ting Mr. Crawford to exhibit to intending It is believed the printed plat antedates the purchasers a duplicate of the printed plat, making of the recorded plat, and that the entitled "Gearhart Park as laid out and re- former was used by Mr. Crawford in negocorded by M. J. Kinney, * W. I. tiating a sale of block 23, and employed in Crawford, Gen. Agent," the principal thereby pointing out on the ground the contemplated tacitly, at least, represented that the agency highways by which the premises were borwas not special and that the plat so display-dered. ed had been duly recorded. From Mr. Kin- It has been repeatedly held that when an ney's sworn statement that he marked in lead pencil the prices of lots and blocks on a plat which he delivered to Mr. Crawford, it is reasonable to infer that such map was a duplicate of the printed plat. This deduction is strengthened by the written appointment of Mr. McCoy attached to another printed plat on which were noted in red ink figures representing the prices demanded for the separate pieces of real property which were offered for sale. As to who wrote such numbers on that plat is immaterial. The conclusion seems irresistible that Mr. Kinney knowingly permitted intending purchasers to believe the printed plat had been duly recorded and also that he held out Mr. Crawford as his general agent in negotiating sales of real property in Gearhart Park. owner of land causes it to be surveyed into lots, blocks, streets, and alleys, pursuant to which measurements a map is prepared, representing the lines run upon the ground, and he exhibits that map to intending purchasers in consummating the sale of real property indicated on the plat, he thereby irrevocably dedicates to the public the contemplated highways, parks, and commons thus designated, and no acceptance by any corporate authority is essential to give validity to the donation. Lownsdale v. Portland, 1 Or. 398, Fed. Cas. No. 8,579; Leland v. Portland, 2 Or. 46; Carter v. Portland, 4 Or. 339; Meier v. Portland Cable Ry. Co., 16 Or. 500, 19 Pac 610, 1 L. R. A. 856; Hogue v. Albina, 20 Or 182, 25 Pac. 386, 10 L. R. A. 673; Steel V Portland, 23 Or. 176, 31 Pac. 479; Spencer Did Mr. Kinney, by such representations v. Peterson, 41 Or. 257, 68 Pac. 519, 1108, and conduct, make a parol dedication of Nodine v. Union, 42 Or. 613, 72 Pac. 582; Summit avenue to the width of 60 feet east Oregon City v. O. & C. R. Co., 44 Or. 165, of block 23, and of Seventh street of equal 74 Pac. 924; Christian v. Eugene, 49 Or. 170, width extending south of that block, as indi- 89 Pac. 419; Moore v. Fowler, 58 Or. 292, cated on the printed plat, notwithstanding 114 Pac. 472; Kuck v. Wakefield, 58 Or. 549, different designations of such contemplated 115 Pac. 428; Harris v. St. Helens, 72 Or. highways appear on the recorded plat? It 377, 143 Pac. 941. will be kept in mind that Mr. Kinney testi[5-7] In order to establish a parol dedicafied two surveys of land in Gearhart Park tion, evidence must be adduced tending to were made west of Neacoxie creek. From substantiate a clear intention to devote some the discovery of white stakes driven in the particularly described land to a public use. ground in parallel lines 60 feet apart, it is Lewis v. Portland, 25 Or. 133, 35 Pac. 256, believed the first survey included land east of 22 L. R. A. 736, 42 Am. St. Rep. 772; Morse that stream, and that such stakes were un- v. Whitcomb, 54 Or. 412, 102 Pac. 788, 103 doubtedly intended originally to mark the Pac. 775, 135 Am. St. Rep. 832; Parrott v. boundaries of Summit avenue. The stake re- Stewart, 65 Or. 254, 132 Pac. 523; Jones v. ceived in evidence and brought up discloses Teller, 65 Or. 328, 133 Pac. 354. A consideraon two sides at right angle the letters, "Str," tion of all the evidence tends to establish an and on the third side the letters and figures, intention on the part of Mr. Kinney to make "B137," which number corresponds with a parol dedication, to the public, as contemthat of the block designated at that place on plated highways 60 feet in width, of the parts the printed plat and indicating the south of Summit avenue and Seventh street that west corner of such block. The letters "Str" border upon block 23, as indicated upon the on both sides of the stake as indicated, desig-printed plat, though he subsequently intended nate Summit avenue on the west and Seventh that map should be superseded by the restreet on the south. It is fairly to be in-corded plat; but sales of land in Gearhart ferred that divisions of real property, as delineated on the printed plat, were made to correspond with the lines of the first survey, Park having been made by exhibiting to purchasers a duplicate of the printed plat before the other map was recorded, such cir (Or. Law Rev. 123. See, also, 2 Wigmore, Ev. { venting him from asserting any survey contrary to that evidenced by the printed plat, so far as block 23 might be affected thereby. [8] The plaintiff's counsel, without offering any testimony to explain his failure orted in receiving, over objection and exception, inability to produce the original plat of the survey of Gearhart Park, from which map it is asserted the printed copies must have been made, was permitted, over objection and exception, to submit in evidence two of such duplicates, and it is maintained that errors were thereby committed. The statute invoked to sustain the legal principle insisted upon, as far as involved herein, reads: "There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases: 1. When the original is in the possession of the party against whom the evidence is offered, and he withholds it under the circumstances mentioned in section 782. When the original cannot be produced by the 2. party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default." L. O. L. § 712. testimony relating to white stakes found driven in the ground along Summit avenue, at a distance of 60 feet from the west line thereof, since it was not disclosed by whom these posts were set, nor that Mr. Waite's attention was called to them when he examined block 23 with a view of purchasing it for his wife. When the first survey of Gearhart Park was made is not manifest from an examination of the testimony. Mr. Kinney and his wife acknowledged the deed which they gave to Mrs. Waite about two years aft er they purchased the real property. Prior examined block 23, stepped the width of the to the delivery of that deed Mr. Waite had highways bordering that block and found them to be 60 feet, saw the white stakes simi. lar to the one received in evidence, and his The clause thus referred to, in the language attention was then attracted to these posts. quoted, is as follows: "The original writing shall be produced and proved except as provided in section 712. If the writing be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in case of its loss; but the notice to produce it is not necessary where the writing itself is a notice, or where it has been wrongfully obtained or withheld by the adverse party." Id. § 782. In order to uphold the rule thus declared, reliance is placed upon the case of Jones v. Teller, 65 Or. 328, 133 Pac. 354, where it was held that a blueprint, purporting to represent the locus in quo, and which had been received in evidence, would not be considered for any purpose, since no testimony had been offered to prove that any effort had been made to produce the original. In that case the plaintiff, referring to the map so admitted in evidence, testified that his grantor had a blueprint something like that. The lack of such proper identification afforded a sufficient reason to warrant the exclusion of the blueprint. In the case at bar, however, a duplicate of the printed plat was particularly identified as being similar to that used by Mr. Crawford in effecting a sale to Mrs. Waite of block 23, and as between her and Mr. Kinney, the principal and then owner of the premises, each printed plat was an original. "It sometimes happens," says an author, "that there are a number of duplicates of the same document, as in the case of placards, newspapers, etc. In such case, to prove the contents any one of the several copies is admissible." McKelvey, Evidence (2d Ed.) § 272. "Any one of duplicate instruments may be introduced in evidence without accounting for any other. In this connection, however, the term 'duplicate' signifies more than a mere copy; the instruments must be identical not only verbally but also in legal import." 19 Harvard Such facts do not bring the case within the rule announced in Carlyle v. Sloan, 44 Or. 357, 75 Pac. 217, and no error was committed as alleged. [10] It is maintained that the proposed dedication to the public of the highways, the width and existence of which are challenged herein, cannot be considered as open for a time exceeding the statute of limitations; that such dedication was lost by nonuser, and that an error was committed in awarding to the plaintiff any relief beyond that conceded by the answer. The sale of a lot bordering upon a street that is indicated on a plat of survey, amounts to an irrevocable offer by the dedicator, that so far as he is concerned, the proposed highway, unless legally vacated, shall forever remain open to the public. [11] A formal acceptance of the donation is unnecessary, since an approval of the gift by municipal officers will be implied. Carter v. Portland, 4 Or. 339; Meier v. Portland Cable Ry. Co., 16 Or. 500, 19 Pac. 610, 1 L. R. A. 856; Hogue v. Albina, 20 Or. 182, 25 Pac. 386, 10 L. R. A. 673. dedicator may extinguish the right of the The grantees of the public in and to a street by an unlawful encroachment thereon for a term equal to the period of the statute of limitations, which purpresture raises an estoppel against the municipality on the ground of the negligence of its officers in failing to assert a right to the easement. Or. 494, 71 Pac. 605; Nodine v. Union, 42 Schooling v. Harrisburg, 42 Or. 613, 72 Pac. 582; Oliver v. Synhorst, 48 Or. 292, 86 Pac. 376, 7 L. R. A. (N. S.) 243; Portland v. Inman-Poulsen Lumber Co., 66 Or. 86, 133 Pac. S29, 46 L. R. A. (N. S.) 1211, Ann. Cas. 1915B, 400. Neither Summit avenue nor Seventh street has been improved or encroached upon, except that Woodland Park addition to Gearhart Park has been surveyed and platted so as to join block 23 on the south, and the defendant is in such construc- | as to widen Summit avenue, east of block 23, tive possession of the disputed premises as the from 25 feet to 60 feet, and in all other redelivery of its deed imports. Since there has spects to be affirmed; and it is so ordered. been no invasion of the plaintiff's right, the BURNETT and MCBRIDE, JJ., concur. statute of limitations never began to run against his remedy. [12] It is urged that though Mr. Kinney, by the acts and conduct of his agent, may have made a parol dedication of the disputed easements to such an extent as to be binding upon him, the defendant for a valuable consideration secured its title by mesne conveyances and had no knowledge of such dedication, and hence no estoppel in pais can arise as against it. In Carter v. Portland, 4 Or. 339, it was determined that whatever information, respecting a parol dedication of public parks, was sufficient to attract the attention of a purchaser to the prior rights and equities of the public in and to the premises, so as to put him upon inquiry as to the source, nature, and extent of the dedication, would operate as notice, and that when the evidence showed the purchaser had such knowledge as would induce further investigation, notice would be implied. In that case the circumstances antedating and attending the purchase of two blocks in the city of Portland by the plaintiffs were reviewed, and it was held they had acquired such knowledge of a prior parol dedication to the public of such blocks as to prompt inquiry and charge them with notice, and authorize a reversal of a decree which they had secured quieting their title. CANNON v. HOOD RIVER IRR. DIST. et al. L. O. L. § 6186, providing for the assessment of irrigation taxes upon lands within irrigation districts for the purposes therein contemplated, and directing the collection and disbursement of such taxes, is constitutional. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 8 305; Dec. Dig. 216.] 2. WATERS AND WATER COURSES COLLECTION-PLEADING. 231-IR RESTRAINING In an action to restrain the collection of an irrigation tax assessed by virtue of L. O. L. § 6186, plaintiff alleged in effect that but a small portion of his lands was susceptible of irrigation; that the assessment was made simply because the lands were within the boundaries of the district, and not according to the benefits derived; that all tracts in the district were assessed by the same standard of valuation; and that there was a difference between his lands and other tracts assessed in the district, but he did not particularize as to how many ference was between his and other lands, nor acres could be irrigated, or as to what the difdid he allege that there was any difference in the location of his property with reference to the canal, or give any reason why he would not be benefited to the same extent as other landowners subject to the tax. Held, that the complaint was general and did not state a cause of suit. Water Courses, Cent. Dig. § 320; Dec. Dig. [Ed. Note.-For other cases, see Waters and 231.] sufficient for the plaintiff to allege that the as- Cent. Dig. §8 12-282, 68; Dec. Dig. 8.] 4. TAXATION 5-LANDS OF THE UNITED The plat of Woodland Park addition to Gearhart Park shows the initial point of the survey of that tract is the southeast corner of block 23. The white stakes driven in the ground to mark the east and west borders of Summit avenue could have been found by the 3. PLEADING 8-CONCLUSIONS-Fraud. defendant's agent who had charge of the surIn an action to restrain the collection of an vey. One of these stakes, set at the south-irrigation tax assessed upon his lands, it is not east corner of block 37, and 60 feet east of the southeast corner of block 23, had thereon at right angles the letters "Str," clearly indicating the location of Seventh street immediately south of blocks 23 and 37. As these proposed highways were marked upon the ground prior to the execution of the deed Where homestead entry has been made unto the defendant, though neither Summit ave-der the laws of the United States, final proof nue nor Seventh street is referred to in such deed, the rule adopted in Green v. Miller, 161 N. C. 24, 76 S. E. 505, 44 L. R. A. (N. S.) 231, is not controlling herein. From an inspection of the white stakes mentioned the defendant could have obtained such knowledge of the original survey as to induce an inquiry as to the source, nature, and extent of the easements; and, this being so, notice of the survey as thus marked upon the ground must be implied and imputed to the defendant. Other assigned errors are deemed immaterial, and for that reason they will not be discussed. From these considerations it follows that the decree herein should be modified, so submitted, and final certificate issued, it operates to transfer an equitable estate, and imme diately renders the land liable to taxation, although the United States holds the title until the patent issues. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 17, 31-44; Dec. Dig. 5.] 5. WATERS AND WATER COURSES 231-IRRIGATION DISTRICTS-LANDS INCLUDED. Although the title to lands, embraced within the boundaries of an irrigation district at the time such boundaries were fixed pursuant to statute, was in the United States, an assessment of an irrigation tax thereon after title thereto had passed to an individual was valid, as at the time of such transfer of title the lands were embraced within the limits of the district as legally as they were within the limits of the county, and no further proceedings were neces- the same year they assessed all the tracts sary to lay a foundation for levying tax thereon. therein by the same standard of valuation [Ed. Note.-For other cases, see Waters and to an amount sufficient at 14 mills on the dolWater Courses, Cent. Dig. § 320; Dec. Dig.lar to pay the interest and expenses of the 231-IR-district; (2) that at the time of the organization of the district the title to the lands 231.] 6. WATERS AND WATER COURSES 7. WATERS AND WATER COURSES 231-IRRIGATION DISTRICTS-RESTRAINING COLLECTION OF TAXES. When plaintiff claims that his lands are not susceptible of irrigation, and that irrigation would be injurious, the equitable powers of the court cannot be invoked to relieve him from the burden of taxation without benefit until after he has demanded from the district board, and been refused, the right to have his lands set apart from the district. RIGATION DISTRICTS-PRESUMPTIONS. In a suit to restrain the collection of an on which the assessment was made was in irrigation tax, when the validity of the irriga- the government of the United States and so tion district is not questioned, it must be assumed that the district was legally organized. remained until April 11, 1907, when patent [Ed. Note.-For other cases, see Waters and issued; that no steps had been taken after Water Courses, Cent. Dig. § 320; Dec. Dig. the issuance of the patent to include the 231.] lands within the boundaries of the district prior to the assessment, therefore the same were not legally within such boundaries, and for that reason the assessment was null and void; (3) that the assessor of the district for the purpose of the assessment illegally placed a valuation of $225 an acre on 80 acres of his land, well knowing that the same was not worth to exceed $100 an acre, and that such valuation was so fixed fraudulently and capriciously for the purpose of compelling the plaintiff to pay more than his equable share of the taxes of such district; and that the assessor was unfair, in that he apportioned to plaintiff a greater number of acres of the whole area of his tract than he did to other residents of land of the same character of about the same or greater area. The defendant demurred to the complaint for the reason that the same did not state facts sufficient to constitute a cause of suit. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 8' 320; Dec. Dig. 231.] 8. TAXATION 610- RESTRAINING COLLECTION OF TAXES-CONDITIONS PRECEDENT. One invoking the .powers of a court of equity must do equity, and, before a taxpayer can be heard to urge the invalidity of a tax and enjoin the collection of an excessive levy, he must first pay or tender for payment the amount legally levied. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1244; Dec. Dig. 610.] In Banc. Appeal from Circuit Court, Hood River County; W. L. Bradshaw, Judge. A. M. Cannon, of Portland, in pro. per. E. E. Stanton, of Hood River (John Baker, of Hood River, on the brief), for respondents. Action by A. M. Cannon, as trustee for Guy W. Talbot, and others, against Hood River Irrigation District, and others, to restrain the collection of an irrigation tax. Decree for defendants sustaining a demurrer, plain- Monday in March and the first Monday in June tiff appeals. Affirmed. BEAN, J. (after stating the facts as above). [1] Section 6186, L. O. L., provides: "The district assessor must, between the first And of each year, assess all the lands situated in This is an appeal by the plaintiff from a decree sustaining the demurrer to his complaint and dismissing the suit. His pleading alleges, in substance, that he is the owner in fee simple of 120 acres of land described therein situated in the Hood River irrigation district; that the defendant was organized and is existing under the provisions of chapter 7, tit. 41, L. O. L.; that during the year 1909, under the provisions of section 6186, L. O. L., the district assessor assessed 80 acres of plaintiff's land at $18,000 for the purpose of paying interest on bonds issued by the district in 1905, to the amount of $100,000, and for construction expenditures incurred by it, the tax amounting to $252. The plaintiff seeks to restrain the collection of such tax upon unconstitutional. The law is valid and has three separate grounds: (1) That the composition of the soil and the topographical formation is such that but a small portion of the whole area is susceptible of irrigation, and the irrigation of the land is of doubtful expediency; that the officers levied the assessment simply because his lands are within the boundaries of the district, and not according to the benefit derived; and that for been upheld and action thereunder sustained by this court in several cases, namely, Board of Directors v, Peterson, 64 Or. 46, 128 Pac. 837, 129 Pac. 123; Board of Directors v. Peterson, 149 Pac. 1051; Rathfon v. Payette, etc., Irrig. Dist., 149 Pac. 1044. Laws of the same purport have been enacted and upheld by the courts in several states. [2] The complaint of plaintiff is a gen For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |