Tusi v. Jacobsen , 134 Or. 505 ( 1930 )

Petition for rehearing denied December 16, 1930 ON PETITION FOR REHEARING (293 P. 939) Appellants earnestly urge that the 30-foot strip was dedicated by Fairchild and his wife as a public highway and, therefore, any agreement between the parties to reduce the width of the roadway to 15 feet would be of no force or effect. The fallacy of this contention is that the record does not disclose a positive and unequivocal intention to make such dedication. Neither was there any express or implied acceptance of the road as a public highway by the county court. Blundell v. Pugh, 123 Or. 563 (263 P. 75). A gate, upon which was posted a "no trespass" sign, was maintained at the eastern terminus of the road. In the original opinion we inadvertently said this notice was posted at the western terminus of the road. A further review of the evidence convinces us that the defendants entered into a parol agreement to modify the easement granted.

The petition for rehearing is denied.

RAND, ROSSMAN and KELLY, JJ., concur.