Sipp v. Bryant
Sipp v. Bryant
Opinion of the Court
This suit was brought to secure a decree enjoining the defendant from obstructing the use by the plaintiffs of a road which passes over the defendant’s property. Damages were also claimed. The circuit court entered a decree denying the relief prayed for, and plaintiffs have appealed.
The evidence shows that the road was established by the defendant and her predecessors in interest for their own use. It was used by others for a period of 20 years or more. The question is whether such use was adverse and under a claim of right or by permission of the owners. The circuit court, after listening to the testimony of the witnesses and viewing the locus in quo, found that use of the road by members of the general public was “permissive only.”
In a similar case we quoted with approval the following from Elliott, Roads and Streets (3d ed) § 5:
“* * * if the use by the public is not clearly declaratory of the right to use it as a highway, and is not so understood by the owner of the fee, the public will not acquire the free right of passage, nor will it be burdened with the duty of making it safe and convenient for passage.”
A. C. Bohrnstedt Co. v. Scharen, 60 Or 349, 353, 119 P 337. See, also, City of Clatskanie v. McDonald, 85 Or 670, 673-674, 167 P 560; Peters v. Robertson, 73 Or 263, 266, 144 P 568; 2 Thompson on Real Property (Perm ed) § 521.
Our examination of the record convinces us that the circuit court’s finding is amply supported by the
The decree is affirmed.
Reference
- Full Case Name
- SIPP v. BRYANT
- Status
- Published