Coffin v. City of Portland

• Decision Date: 12 May 1886
• Citation: 27 F. 412
• Parties: COFFIN and others v. CITY OF PORTLAND and another.
• Court: U.S. District Court — District of Oregon

27 F. 412

COFFIN and others v. CITY OF PORTLAND and another.

United States Circuit Court, D. Oregon.

May 12, 1886

J. G Chapman, for plaintiffs.

A. H Tanner, for City of Portland.

Charles J. Macdougall, for Portland & W.V. Ry. Co.

DEADY J.

This suit is brought by the plaintiffs to have declared and enforced a resulting trust in a parcel of land in Portland known as the 'Public Levee.' The case was heard on a demurrer to the bill on the grounds of a want of equity therein and of jurisdiction in the court.

From the bill it appears that the plaintiffs are citizens of Oregon, and the defendants are corporations existing under the laws of Oregon,-- the one a municipal and the other a private corporation; that prior to September 27, 1850 Stephen Coffin, D. H. Lownsdale, and W. W. Chapman were in the occupation, as partners, of a tract of land containing about 640 acres, situate on the west bank of the Wallamet river, including said public levee, and then known as the 'Portland Land Claim;' that prior to said date said occupants caused said claim to be laid off in lots and blocks, streets, public squares, and places, including a public levee on the bank of the river between the east line of Water street and low-water mark, and extending southerly from the south line of Jefferson street about 520 feet, and about 150 feet in width at the north end, and 350 feet at the south end, and a map thereof to be made, commonly known as the 'Brady Map,' and then and thereby dedicated said levee to the public, and for more than 20 years thereafter jointly and severally sold and conveyed lots in the town of Portland by said map; that on March 10, 1852, said occupants in order to comply with the donation act of September 27, 1850, and become settlers thereunder, divided said claim between themselves, whereby said levee was included in the donation of Stephen Coffin, who, during the year 1854, received a patent certificate for the same, upon which a patent was afterwards issued to him by the United States; that at the time of said division said occupants covenanted with each other as follows: 'That he will fulfill and perform all contracts and agreements which he has heretofore entered into with the others, or with each of them, or with other persons, respecting the said tract of land, or any part thereof;' that said Coffin continued to recognize said dedication, and between the issuing of said patent certificate and January 23, 1865, sold and conveyed lots within his donation be said Brady map; that the inhabitants of Portland were incorporated by the act of January 23, 1851, and have ever since existed as a municipal corporation by that name, and the common council thereof, on April 29, 1852, adopted said Brady map, and the same was and continued to be in general use with the knowledge of said Coffin from and after the spring of 1850; that on January 23, 1865, said Coffin executed a deed to Portland, 'without consideration,' of said 'levee tract, in trust, for the use of a public levee or landing,' reserving therein to himself all rights for a public ferry thereon, but Portland had no power to take said conveyance, or execute the trust therein contained, and the same is null and void, and in the year 1871, in consideration of $2,500, Coffin executed another deed to Portland, relinquishing the alleged ferry right.

The bill then avers that the deed of 1871 gave Portland no additional right in the premises, the same having been previously dedicated by the grantor both by parol and the deed of 1865, and was only intended to extinguish said ferry right, and to enable the corporation to hold the premises 'in trust for the use of a public landing or levee,' discharged of such right; that in 1871 said premises were of the value of $50,000, and that in obtaining the conveyance of that year Portland 'falsely and fraudulently represented' that it intended 'to hold and devote said premises for the use of a public levee or landing,' by reason of which representations said Coffin was induced to make the same, and Portland had no right to take said conveyance except to extinguish said ferry right, and the same is void for any other purpose; that neither Portland, the state, nor the public has ever made any use of the premises as a public levee or landing; that said dedication was made in the belief that the same would be advantageous to the public and Portland, but it is contrary to public policy for either Portland or the state to maintain a free public levee or landing at any plane in the former nor could any charge be made for the same consistent with the dedication; that since said dedication was made the unimproved shores and banks of rivers have ceased to be used as a place for the deposit and shipment of goods, and the custom is to use wharves and warehouses, in the construction of which within the limits of Portland there has already been expended $2,000,000, and there is yet river front owned by private persons that may be devoted to such purpose; that the premises cannot be used as a landing or levee unless improved, and it would be contrary to law and public for Portland to attempt to collect taxes from the owners of private wharves or other property for the purpose of constructing free wharves thereon, and to become liable for freight deposited there; that the primary purpose of the dedication was for 'a public levee,' which 'is doubtful and uncertain, and unknown to the law, science, or history,' and therefore void; that by the act of February 25, 1885, entitled 'An act to provide for the construction to the city of Portland of the uncompleted portion of the narrow-gauge system of railways now in operation in western Oregon, and to provide terminal facilities therefor upon the public grounds in said city,' the trust created by said dedication is 'renounced and abrogated by the sovereign legislative power of the state,' and it is now unlawful for Portland to hold said premises as a public levee, and there arises thereby a resulting trust of said premises in favor of complainants; that said railway company claims the right, under said act of 1885, to appropriate the premises to its use as a depot on making compensation to Portland for any right it may have therein, and 'is striving and threatening to obtain possession' of the same for that purpose; that the premises are of the present value of $70,000, and Portland has expended $4,000 thereon; that the plaintiffs are the heirs at law of Stephen Coffin, except Albert Marvin, the husband of Lucinda Marvin, and before commencing this suit they gave notice to Portland that they were willing to repay it all sums of money expended on said levee. Wherefore they pray that a resulting trust of said premises be declared in their favor, and enforced against the defendant Portland by requiring it to convey the same to the plaintiffs, and that the railway company be declared to have no right to enter upon or use the premises.

The dedication of this property, as a public levee or landing, by Stephen Coffin in 1850, and the continued recognition thereof during his life, is stated and admitted in the bill. The naked dry legal title was all that remained in him thereafter, and that passed to Portland by his deed of 1865, subject to this casement. The reservation therein of a private ferry right or landing on the premises was probably void, as being inconsistent with the prior unqualified dedication of the premises to the use of a public levee or landing. This being so, nothing passed by the deed of 1871, which, according to the bill, was only intended to extinguish this alleged ferry right. In short, the transaction had no other effect than to give an old pioneer a few hundred dollars, to smooth the path of his declining years, and this was all that was probably intended by those who managed it.

But it is said that the original dedication is void for want of certainty, because the term 'levee' is unknown, in the sense of a landing place, 'to history, science, or law.' The word comes to us from the French, and in its primary sense signifies a rising. But its signification has been much enlarged. Among other things it is used to denote an embankment on the margin of a river to prevent inundation,-- particularly on the lower Mississippi. And when this embankment is used as a landing place or quay, as at New Orleans, the levee and the landing become convertible terms. From this metropolis of the south and south-west, this use of the word passed up the river and its tributary, the Ohio, to St. Louis, Louisville, Cincinnati, Wheeling, and Pittsburgh where the open bank or slope of the river was used as a landing-place for the use of water-craft and the transfer of freight and passengers to and from them. And doubtless this is the sense in which it was used by the proprietors, Coffin, Lownsdale, and Chapman, when this dedication was...