dissenting.
Contrary to the majority, I am of the opinion that plaintiff cannot at this late date maintain an action to recover possession of the five-foot strip fronting her premises. Briefly stated, plaintiffs action is barred by ORS 12.050, which provides:
"An action for the recovery of real property, or for the recovery of the possession thereof, shall be commenced within 10 years. No action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within 10 years before the commencement of the action.”
Further, ORS 368.405(2) expressly recognizes the acquisition of public ways by adverse user.
As explained below the central flaw in the rationale of the majority and specially concurring opinions in my view is that both completely disregard Oregon decisions involving the doctrine of constructive occupancy in road cases, which I think are dispositive here. As a result each opinion ends up with an incorrect and equally untenable legal conclusion.
The essential facts are as follows:
(1) Lane County established Barger Drive as a 40-foot-wide county road in 1895. In 1952 the county court expanded it to a 50-foot-wide road by agreement of the abutting property owners, although the record does not show that plaintiffs predecessors in title actually signed the agreement. (2) Since 1952 the public has been in constructive, if not open, notorious and undisputed possession of the entire right of way under color of right, including the portion now claimed by plaintiff. (3) In 1966, Lane County surrendered jurisdiction of that portion of Barger Drive involved here to defendant City of Eugene. (4) Plaintiff purchased her property on contract in June 1967 and recorded her deed in July 1974. (5) According to the stipulated facts, neither plaintiff nor her predecessors in title asserted any claim to the strip until April 1975.
*328Based upon the above I conclude:
First, the taking possession by the county of the strip in issue under color of title, duly recorded in the County Court Journal, the boundaries being defined, was constructive notice to plaintiffs predecessor of the extent of the claim, making the occupancy of part include the occupancy of the entire designated width of the road. Bayard v. Standard Oil Co., 38 Or 438, 63 P 614 (1901); Swift v. Mulkey, 14 Or 59, 12 P 76 (1886); Joy v. Stump, 14 Or 361, 12 P 929 (1887). Accord: Nosler v. Coos Bay R.R. Co., 39 Or 331, 64 P 644 (1901); Sweet et al. v. Irrigation Canal Co., 198 Or 166, 254 P2d 700, 256 P2d 252 (1953). See also, Annotation, Width and boundaries of public highway acquired by prescription or adverse user, 76 ALR2d 535 et seq (1961).
Second, notice to plaintiff’s predecessors of the widening of Barger Drive is further shown by (a) the legal notices posted by the county prior to the road proceedings, (b) the county court’s order establishing the road, (c) the moving back of the fences along the proposed new right of way on property which was adjacent to, although not directly abutting, the property in issue, and (d) the subsequent paving and expanded use of Barger Drive. This was adequate notice to plaintiffs predecessors that the five-foot strip in issue was about to be burdened with a public servitude unless they took proper action to prevent it. See, Doyle Milling v. Georgia-Pacific, 256 Or 271, 473 P2d 135 (1970).
Third, under Oregon law a public road may be established by adverse user of the public for the statutory period "independently of any supposed dedication.” Douglas Co. Road Co. v. Abraham, 5 Or 318, 321 (1874); Bayard v. Standard Oil Co., supra. If the public may acquire an entire roadway by prescription, a fortiori, it may acquire a portion thereof in the same manner. A road which has been used by the public and maintained by the county for more than 10 years *329becomes part of the county road system even though it has not been dedicated for road purposes. ORS 12.050 and 368.405(2); Huggett et ux. v. Moran et ux., 201 Or 105, 266 P2d 692 (1954); Ridings v. Marion County, 50 Or 30, 91 P 22 (1907). According to Huggett, it is unimportant whether the right arising by prescription is based on a presumption of antecedent regular and lawful exercise of established authority or by prior dedication.
The conclusion is inescapable that the public has acquired a prescriptive easement over the five-foot strip in issue and that plaintiffs action is barred by ORS 12.050.
Therefore, I respectfully dissent.