The opinion
Denied February 19, 1918.
Petition for Rehearing.
Department 1.
Mr. Justice Bean
delivered the opinion of the court.
In a petition for rehearing counsel for defendants urge that this is not a suit for equitable cognizance, for the reason that plaintiff has not shown that the land improved within the street is not in the possession of another. There is more than one ground for equitable interference.
It is conceded that Agate Avenue in the City of Eugene, was regularly dedicated as a public street to the width of 90 feet and that the plat and dedication were duly recorded. The fences and so forth mentioned in the answer of defendants indicate an encroachment upon this public highway.
5-7. It is also shown and unquestioned that a portion of the .street is improved and occupied by the public *444 to the width of about 70 feet. Where there is possession and user of a part of the street within the well-defined limits of the dedication, record of which has been duly made, it amounts constructively to an occupation of the entire dedicated width as designated upon the plat in so far as the possession is necessary for the purposes of this suit: Joy v. Stump, 14 Or. 361 ( 12 Pac. 929 ). This rule has been applied to public highways where the question of adverse possession was involved and by analogy is applicable here: Bayard v. Standard Oil Co., 38 Or. 438, 447 ( 63 Pac. 614 ). A city as trustee of streets for the use of the public is in duty bound to remove all obstructions and encroachments which materially disturb the public user. Any course may be adopted which is consistent with fundamental law and is adequate and best adapted to effect the desired result and protect the rights of the public in the street: 28 Cyc., p. 896. An unauthorized obstruction of a public highway is a nuisance : 37 Cyc., p. 247. The application of Section 341, L. O. L., providing for the abatement of a nuisance, or a summary removal, might not be appropriate in a case of this kind, where there is a difference of opinion between city officials and some dispute between lot owners and the city. The remedy provided by the section of the Code for nuisances is not conclusive; but whenever a nuisance will cause irreparable damage or require numerous actions equity has concurrent jurisdiction with courts of law and will enjoin continuance of the objectionable conditions: Fleischner v. Citizens’ Real Estate & Inv. Co., 25 Or. 119, 129 ( 35 Pac. 174 ); Blagen v. Smith, 34 Or. 394, 402 ( 56 Pac. 292 , 44 L. R. A. 522); Union Power Co. v. Lichty, 42 Or. 563, 566 ( 71 Pac. 1044 ); Morton v. Oregon S. L. Ry. Co., 48 Or. 444 ( 87 Pac. 151, 1046 , 120 Am. St. Rep. *445 827 , 7 L. R. A. (N. S.) 344). In legal effect the encroachments upon the street in question, or trespass upon the easement, constitute a purpresture or public nuisance. One of the earliest recognized forms of public nuisance with which equity has interfered is that of purpresture. The jurisdiction of equity in cases of purpresture, as well as of public nuisances, generally rests in the necessity of preventing mischief and avoiding vexatious litigation. This remedy is more efficacious than that at law: 1 High on Injunctions (4 ed.), § 759. We therefore feel safe in holding that equitable jurisdiction in this ease is founded upon solid grounds.
The petition for rehearing proceeds at great length to discuss the questions of fact. In our former consideration of this case we carefully weighed the inconvenience of the interested property owners as compared with the rights of the public. However much circumlocution may be employed, the defense is an attempt to give the report of a committee of the city council recommending the passage of the ordinance vacating a portion of the street the same effect as the ordinance would have had if it had been regularly passed instead of culminating in defeat.
The petition for rehearing is denied.
Rehearing Denied.
Mr. Chiee Justice McBride, Mr. Justice Burnett and Mr. Justice Benson concur.