Burns v. Multnomah R. Co.

• Decision Date: 23 February 1883
• Citation: 15 F. 177
• Parties: BURNS v. MULTNOMAH R. CO.
• Court: U.S. District Court — District of Oregon

15 F. 177

BURNS v. MULTNOMAH R. CO.

United States Circuit Court, D. Oregon.

February 23, 1883

George H. Williams, H. Todd Bingham, and E. W. Bingham, for plaintiff.

C. B Bellinger, for defendant generally; and Joseph N. Dolph, as to the right of the county court to appropriate a public road or street for the use of a railway without compensation to the owners of the adjacent property.

DEADY J.

The plaintiff brings this suit to restrain the defendant from obstructing the way to and from the east side of the Wallamet river, at the southern end of river block 19, in the town of Albina, and just north of East Portland. On filing the bill on January 8, 1883, an order was made that the defendant show cause why a provisional injunction should not issue, and that the defendant be restrained in the mean time, as prayed in the bill. The application for a provisional injunction was heard on the bill and answer, and sundry affidavits and exhibits. From these it appears that the plaintiff is a British subject, and the defendant a corporation organized under the laws of Oregon since May 11, 1882, for the purpose 'in part,' of constructing and operating a street railway from or near East Portland or Albina to the Columbia river, opposite the town of Vancouver, Washington territory.

On May 28, 1873, George H. Williams, W. W. Page, and Edwin Russell were the owners as tenants in common of the tract of land on the east side of the river, including the premises now claimed by the plaintiff, upon which they then laid out the town of Albina, and duly platted and recorded the same-- the said Russell being then the owner of an undivided one-half of said land.

A street called River street, being 60 feet wide and running from the northern limit of East Portland, northerly, along and parallel with the river and about 180 feet distant therefrom, was duly designated on said plat; and the land between said street and the river, below the ferry landing, was divided thereon into blocks called 'River Blocks'-- the most southerly one being designated and numbered as 'Block 19.' But that portion of the tract lying to the southward of block 19, and to the westward of River street, containing about one and a half acres, was not laid off into lots or blocks.

A street called Mitchel street was also designated upon said plat as commencing at and running easterly from River street-- its width being 60 feet, and the center line thereof about 80 feet distant to the northward from the southerly side of block 19.

On August 4, 1875, a strip of land about 60 feet in width and adjoining block 19 on the southward, and extending from the water line easterly to River street, was used by the public, with the consent of the proprietors, as a way to and from the ferry which plied between Albina and North Portland; and on that day Edwin Russell and others, but who or how many others does not appear, petitioned the county court of Multnomah county 'to open a county road leading from the ferry landing in the town-site of Albina' in a north-westerly direction along the line of the new graded road to the Vancouver road; thence northerly along the said Vancouver road to the north line of section 27, of township 1 N., of range 1 E.;' thence by course and distance along and through said section 27 and sections 23 and 24 of the same township; and 'thence northerly and easterly, following, wherever practicable, what is known as the Payne road, to the Slough road;' whereupon the county court made an order appointing viewers and a surveyor 'to view and survey said proposed road.'

On September 4, 1875, said viewers filed their report, together with the notes of the survey, reciting therein that they had been appointed 'to view and locate a proposed county road, beginning at the ferry landing in Albina and running northerly and easterly to the Slough road, near the residence of Benjamin Sunderland,' and recommended 'that the prayers of the petitioners be granted, on condition that they shall open that portion of the line between the middle of sections 23 and 24' aforesaid 'at their own expense.'

On September 13th the county court made an order adopting said report, and declaring 'that the proposed road be and the same is hereby declared to be a county road, according to the survey notes thereof on file in this court, upon the condition that the petitioners for the same shall file in this court a bond, to be approved by the court, in the sum of $500; said bond conditioned that said petitioners will open that portion of said road lying between the middle of sections 23 and 24, township 1 N., range 1 E., at their own expense; and that, upon the petitioners complying with the foregoing condition said notes of survey be recorded at length in the record of road surveys, and that said road be declared to be a county road, and that the supervisor of the road district do open and work said road as other roads in his district.'

There facts concerning the application for and the view and survey of this proposed road are shown by a certified copy of the entries in the records of the county court; but the petition itself is not found. A paper purporting to be a notice of the application, dated July 6, 2875, is found among the files of the court, with an affidavit of S. S. Douglas indorsed thereon, showing that it was duly posted; but it is not signed by any one, nor does it indicate in any way at whose instance it was posted. Nor does it appear that the petitioners ever gave the bond or opened the road, as required by the order of court, or that the said 'notes of survey' were ever recorded in the 'record of road surveys,' as provided thereby.

In the year 1879, J.B. Montgomery became the owner of the undivided interests of George H. Williams and W. W. Page in said tract of land, and prior to January 5, 1883, he became the owner of the whole interest therein, at which date he sold and conveyed to the plaintiff, for the consideration of $16,000, a portion of the premises, about 80 feet wide, lying on the southerly side of block 19 and adjacent thereto, and extending from the water line to River street, together with the vendor's interest in the 80 feet of said street adjacent to the premises, and in the tide and overflowed lands in front thereof; reserving a ferry landing thereon for the ferry licensed by the county court to the vendor and Wilson on the . . . January, 1883, with 'egress to and from said landing across the said premises.'

On October 5 and December 6, 1882, the county court, upon the application of the defendant, ordered and agreed with it to the effect that it might construct and operate a railway, propelled by steam or horse power, for the transportation of passengers through the town of Albina-- 'beginning at the ferry landing at the foot of Mitchel street; thence along said street to Loring street;' and thence along sundry named streets and the county road leading to St. John to a 'gulch' nearly east of the 'coal bunkers,' below Albina-- upon the conditions following.

(1) The use of steam is confined to dummy engines, such as are commonly in use in eastern cities; (2) the cars are not to be run through Albina faster than six miles an hour; (3) the track is to conform to the grade of the streets of Albina as they are, or may be, provided such grades are practicable.

In the answer of the defendant it is alleged that it has already expended 'about $40,000 in making preparations for the construction' of its road, but it does not appear that anything has been done on the ground, towards such construction, but the erection of a trestle-work upon the land conveyed to the plaintiff for the apparent purpose of laying a track thereon as a standing or starting place for the cars, in connection with a waiting-house or station to be constructed at the easterly end and southerly side of the same. This trestle-work is constructed three feet above the grade or ground at the upper or easterly end, and nine and a half feet at the lower or westerly end. It is 60 feet long and five feet in width across the stringers, and eight feet across the caps of the bents. The center of it is 40 feet from and parallel with the southerly side of block 19, and the upper end is within 20 feet of the westerly side of River street, while the lower end is 100 feet from the water line; and it is understood that the upper end is to be extended to River street, and a waiting-house erected on the southerly side of this 20 feet, and platform constructed at the lower end with a stairway leading therefrom to the ground, with a view of facilitating the egress of passengers to and from the present ferry landing.

The plaintiff rests his right to the relief sought upon the following grounds:

(1) There is no county road between the ferry landing and River street, because the county court did not acquire jurisdiction to establish one there, for the reasons: (a) The notice of the application was anonymous-- not signed by any one; (b) the petition was not signed by 12 householders of the vicinage, as required by statute. (2) The order actually made by the court was a conditional one, to take effect when the petitioners gave a bond to open a portion of it, which was not done. (3) The notes of the survey were never recorded and therefore the road was not established, even if the court had jurisdiction. (4) Said notes were not recorded, because the court in effect directed that it should not be done until the petitioners filed the bond as required. (5) If there is a legal road between the ferry landing and River street, the defendant is not authorized to occupy or use either, because its license from the county to use the streets of Albina, in legal contemplation, begins at the foot or westerly end of...