delivered the opinion of the court.
1. This case was before this court upon a previous appeal (Oliver v. Synhorst, 48 Or. 292: 86 Pac. 376: 7 L. R. A. [N. S.] 243), and the law applicable to the contention of the parties, having there been declared, has become the law of this case, and it only remains to apply the principles therein enunciated to the facts proved on the trial. Upon the former trial Mr. Chief Justice Bean used the following language: “But, while the rule may be that the ordinary statute of'limitations as such cannot be set up to defeat the right of the public to the use of a street or highway, there may grow up, in consequence of the laches of the public authorities, private rights of more persuasive force in the particular case than that of the public, and if ‘acts are done by an adjoining proprietor which indicate that he is in good *584faith claiming as his own that which is, in fact, a part of the highway, and expending money on the faith of his claim, by adjusting his property to the highway as he supposes or claims it to be, the public will be estopped.’ ”
2. The evidence tends to show that, about 1891, plaintiff’s grantor built a house on the land and planted shade trees in front of it, and actually in the street, which was then entirely unimproved. She testifies that she intended to inclose her own property but there is no evidence that she took any measures whatever to ascertain the exact lines of her lot, and the rough and almost inaccessible nature of the land was such as to warrant the belief that the street north of there would not be improved in the near future.
When plaintiff purchased the property, which was done through her husband, who was an attorney and business man of La Grande, a sidewalk was built south of the trees, which had been plainted by plaintiff’s grantor, and an expensive fence erected several feet south of the original fence, but still extending into the street about six feet. The evidence does not satisfy us that plaintiff believed, when these improvements were made, that they were upon the lots she had purchased. Nor does plaintiff’s husband, who is the principal witness, and who was her active representative, so testify. He only claims that he did not know where the street line actually was, a fact that he could easily have ascertained in an hour’s investigation. The situation of other buildings in the same addition must have been notice to him that his wife’s improvements extended into the street, and we think that he depended more upon the probability that the street would remain unimproved than upon a belief that his improvements were upon his own property. In other words, being uncertain as to the exact line, he was willing to take the chance of an improvement *585being made in the future. This comes far from the good faith required in these cases to constitute ground upon which to predicate an estoppel.
In the smaller towns of this State it is not unusual for streets, in remote districts, to remain unopened and unimproved, until they become sufficiently populous to justify levying assessments upon adjoining property to improve them. To require a city to open and improve all its streets at once, without reference to the need of such improvement, at the peril of forfeiting them, would be absurd, as a matter of public policy, and would, if carried out, prove an intolerable burden to those owning lots on remote and unfrequented streets.
3. There is nothing in the fact that the council visited the property and made no objection to the location of plaintiff’s improvements. The testimony shows that they visited the premises to investigate the location of a cesspool, and their attention was not called to the fact •that plaintiff’s fence intruded upon the street.
4. Nor does the fact that the mayor told plaintiff’s husband that “there could be no objection to the construction of plaintiff’s fence along the Remington line, as no one could be injured thereby,” estop the city. The mayor cannot vacate a street by the most solemn act of authority, much less by a mere casual expression of opinion. As was intimated by Mr. Chief Justice Bean in his previous opinion in this case, the principle of an estoppel in pais will only apply in exceptional cases, and in our judgment this is not a case of that character.
The decree of the circuit court will be affirmed.
Affirmed.
Mr. Justice Eakin did not sit in this case. *586[115 Pac. 594.] Statement by Mr. Justice Burnett. The pleadings and the law of this case were settled by the decision of this court reported at 48 Or. 292 (86 Pac. 376: 7 L. R. A. [N. S.] 243). Much of the complaint had been stricken out on motion in the circuit court, and the propriety of that ruling was the only question considered here on the first appeal. The effect of our decision on that appeal was to reinstate the matter thus excluded and allow the plaintiff to prove the same, if she could, at a new trial in the court below. The second hearing in that court resulted in a decree dismissing the suit, and on the second appeal in an opinion by Mr. Justice McBride (109 Pac. 762) the disposition of the case by the circuit court was affirmed. A rehearing in this court having been granted, we have listened to exhaustive arguments on the facts and have carefully studied the testimony reported in the record, and it remains to determine anew whether the complaint is substantially proven. Affirmed. Decision Approved on Rehearing. On rehearing' there was an oral argument by Mr. Turner Oliver for appellant. For the respondent there was an oral argument by Mr. Charles E. Cochran.