Chapter § 62.6 DEDICATION OF PRIVATE LAND FOR PUBLIC USE

• Jurisdiction: Oregon

§ 62.6 DEDICATION OF PRIVATE LAND FOR PUBLIC USE

§ 62.6-1 History, Scope, Definition, and Distinctions of Dedications of Private Land for Public Use

For the purpose of this chapter, the term dedication is defined as a relinquishment of land to a public use made by the landowner and accepted for such use by or on behalf of the public. Harris v. City of St. Helens, 72 Or 377, 386, 143 P 941 (1914).

Dedication can be accomplished by following statutory procedures. However, it is frequently accomplished under common-law principles and most relevant case authority is based on common-law dedication. This chapter covers the methods by which a dedication can be made, including a faulty or incomplete statutory dedication used as the foundation of a common-law dedication.

Historically, common-law dedication was limited to the use of land for highway purposes and was further confined to land that was intended to be used by the whole public. That early English rule, however, has been expanded to include more limited segments of the public as beneficiaries. For variations on this theme, see Sheldon W. Parks, The Law of Dedication in Oregon, 20 Or L Rev 111 (1941).

Although the bases for a true dedication are a permissive use by the public and an intent on the owner's part to devote land to a public use, the public can acquire the same or substantially similar rights in a variety of ways. For example, dedication should be distinguished from a donor's gift of the fee for charitable, public, or quasi-public purposes because a true dedication does not pass fee title to the land from the dedicator. Similarly, dedication should be distinguished from condemnation of land for public purposes, in which the fee or an easement is taken by eminent domain. Nevertheless, the effect is the same: the public is permitted to use the land acquired by gift or condemnation. The public can also acquire the same or substantially similar rights by prescription, adverse possession, estoppel, and custom.

Circumstances under which dedication must be distinguished from a license (especially in terms of its revocability) are considered in Smith v. Gardner, 12 Or 221, 6 P 771 (1885) (landowner used gates to obstruct his road, which neighboring landowners removed so they could use the road; no evidence was admitted that proved the road was ever an open and unobstructed highway or that the owner intended to dedicate it for public use as opposed to merely permissive use). See Sunset Lake Water Serv. Dist. v. Remington, 45 Or App 973, 609 P2d 896 (1980) (distinction between dedication and easement). These alternatives to dedication are discussed in this chapter to the extent necessary to clarify the principles, procedures, and requirements for statutory and common-law dedication of private land to public use.

A dedicator may attach reasonable restrictions to the dedication as long as the restrictions are consistent with the purpose of the dedication. Abuse or misuse of dedicated property generally will not cause a termination of the dedication or a reversion of the dedicated land. Note, however, that dedicated property can be abandoned by conscious, affirmative acts. Douglas Cnty. v. Umpqua Valley Grange, Inc., 45 Or App 739, 745, 609 P2d 415 (1980).

In City of Salem v. Furlott, 149 Or App 336, 942 P2d 872, rev den, 326 Or 68 (1997), the city sought a mandatory injunction to require property owners to remove the portion of a building that encroached on a road. The court of appeals held that the city was not estopped from seeking a mandatory injunction when neither party had knowledge of the correct boundary of the street until after a survey had been conducted for a street-widening project.

§ 62.6-2 Who May Dedicate Private Land for Public Use

Only the landowner, or a person acting under authority of the owner, can dedicate land to public use. Herbert Thorndike Tiffany, 4 The Law of Real Property § 1100, at 572 (3d ed Sept 2014) (citation not verified by publisher). The word owner probably includes a person who owns the entire equitable estate (e.g., the purchaser under a land sale contract). Sheldon W. Parks, The Law of Dedication in Oregon, 20 Or L Rev 111, 155 (1941). In Chase v. Oregon City, 72 Or 527, 531, 143 P 1111 (1914), the court stated: "Undeniably, as a legal precept, a dedication is void which is made before the dedicator acquires title to the property, unless he ratifies it after acquiring title." In Chase, the court examined the case of Oregon City v. Oregon & C.R. Co., 44 Or 165, 74 P 924 (1904), in which Oregon pioneer, John McLoughlin, recorded a map of Oregon City and attempted to dedicate property, based on that map, to which he had no title. However, his heirs, when they acquired title from the state, made sales with reference to his plat, and "they thereby ratified, approved, and dedicated to the public the streets, alleys, and public places shown thereon as completely and fully as if they had themselves made and formally acknowledged the map." Chase, 72 Or at 531-32 (quoting Oregon & C.R. Co., 44 Or at 176).

See Leland v. City of Portland, 2 Or 46 (1862); Lownsdale v. Portland, 1 Or 381 (D Or 1861); Lewis v. City of Portland, 25 Or 133, 35 P 256 (1893). These three cases involve attempted dedications of land settled under the Donation Land Act but attempted before the patent had been issued. For a statement of the general principle that after-acquired title will support a common-law dedication "by public acts and declarations," see Lownsdale, 1 Or at 395.

The dedicator does not necessarily bind others having an interest in the land at the time of dedication (e.g., mortgagees and cotenants) unless they also acquiesce in the dedication in some manner. These other parties would probably be bound by the dedication if they later ratified it, for example, by a conveyance with reference to the plat. See Tiffany, 4 The Law of Real Property § 1112 at 638-39. In a statutory dedication, the owners of all such interests, including mortgagees, join by executing the formal declaration.

A city or a county may dedicate to public use land that it owns. The city made a common-law dedication of a road in Mid-Cnty. Cemetery Dist. v. Thomason, 267 Or 637, 518 P2d 174 (1974). In State Highway Comm'n v. Bauman, 16 Or App 275, 517 P2d 1202 (1974), the court indicated that the county could have dedicated beach land that it held by virtue of tax foreclosure. Instead, the county sold the land to private persons, who, the court found, did not dedicate it for public recreational purposes.

§ 62.6-3 Statutory Dedication of Private Land for Public Use

§ 62.6-3(a) In General

Some statutory procedure for dedication of land to public use has existed in Oregon hand-in-hand with common-law dedications since early days. A number of provisions in the dedication statutes have been enacted to alleviate problems brought to light by court decisions based on common-law dedications. Some of these provisions are addressed in § 62.6-3(b) to § 62.6-3(d).

§ 62.6-3(b) Dedication in Conjunction with Subdividing or Partitioning Land

Dedication is most commonly made to create streets and roads for public use or to create other public facilities, such as parks, greenways, and open space, in conjunction with subdividing or partitioning land.

No person may subdivide land or, under some circumstances, partition land except in accordance with ORS 92.010 to 92.192. ORS 92.012. Procedures for statutory dedication in conjunction with subdividing and partitioning land are also set forth in ORS chapter 92. Property owners have three methods for dedicating land to public use: (1) by dedication on the subdivision plat; (2) by dedication on the partition plat, if the city or county "indicates acceptance of the dedication on the face of the plat"; and (3) by a separate "dedication or donation document" provided by the government agency having jurisdiction over the land. ORS 92.175(1). The most common approach is by dedication on the subdivision plat.

ORS 92.175 also allows utility easements to be granted, "without an acceptance from the governing body having jurisdiction," in "condominium plats" as well as in the allowed "partition plats." ORS 92.175(2). The scope of easements that may be granted without an acceptance from the governing body was expanded to include "other regulated utility purposes" in addition to previously allowed "public utilities." ORS 92.175(2).

ORS 92.014 provides as follows:

(1) A person may not create a street or road for the purpose of subdividing or partitioning an area or tract of land without the approval of the city or county having jurisdiction over the area or tract of land to be subdivided or partitioned.

(2) Notwithstanding ORS 92.175, an instrument dedicating land to public use may not be accepted for recording in this state unless the instrument bears the approval of the city or county authorized by law to accept the dedication.

Any street or road held for private use must be clearly indicated on the tentative plat, and all reservations or restrictions relating to these private roads and streets must also be set forth. ORS 92.090(2)(b). The city or county must approve private streets or roads. ORS 92.090(3)(b). Streets and roads for public use must be dedicated without any reservation other than reversionary rights if the street or road is vacated. ORS 92.090(3)(a). Granting easements for public utility purposes is allowed without affirmative acceptance by the government. ORS 92.175(2). Although ORS 92.090 speaks specifically to dedication of streets and roads, there is no indication that the same procedures cannot be followed for dedication of land for other public uses.

The county or city must approve the subdivision or partition plat before recording. Procedures and standards for approval are detailed in ORS 92.040 to 92.179. When the plat has been approved, it is recorded in the record of town plats, indexed therein, and the declaration is also indexed in...