Church v. City of Portland

• Decision Date: 21 October 1889
• Parties: CHURCH v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

22 P. 528

18 Or. 73

CHURCH v. CITY OF PORTLAND.

Supreme Court of Oregon

October 21, 1889

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

(Syllabus by the Court.)

In dedicating lands to the public, the dedicator may attach such reasonable restrictions to its use by the public as he may see fit; but he cannot dedicate to the public the lands of another person, for public use, without the latter's consent.

Where L. S. C. and W. W. C. were joint occupants of a tract of public land which had been settled upon under the regulations of the provisional government, and upon which they had laid off a town, which became the city of Portland, made a plat thereof, sold lots to each other, and to third persons, with covenants for further assurance, and had referred to such plats for description of the lots sold, but which plat was unrecorded at the time; and subsequently, ascertaining that they could not enter the land under the provisions of the donation act of September 27, 1850, said parties made an agreement, under their hands and seals, in which they designated a part of the tract which should belong to each and covenanted therein that each should fulfill and perform all contracts and agreements he had therefore entered into with others, or with either of them, or of other persons respecting the said tract of land, or any part thereof; and subsequently, and on the 16th day of December, 1852, the said L. caused the said plat to be recorded, with a dedicatory writing, under his hand and seal, attached, which was to the effect that any public square on the plat should be subject to the by-laws of a city corporation for one-half of the public square shown upon said plat was upon the part of the tract agreed to be set apart to the said W. W. C eld, in view of the said agreement, and of the facts that the parties were jointly engaged in the enterprise of laying out the town, and had a common interest in its growth and development, and the recording of the plat and dedicatory writing being in furtherance of their common design, and the plat and writing having stood upon the record for more than 36 years, and no dissent thereto on the part of the other parties, or of the city, appearing to have been made, that the act of L. should be considered as the act of all, and that the writing should be regarded as cogent proof of the conditions upon which the public squares were dedicated.

Held, further, that the building of a city hall upon such public squares, to be used for the transaction of city business, with a jail in the basement thereof, would be a use of them foreign to the purpose for which they were dedicated; and that the owners of a lot which had been purchased from the town proprietors, or either of them, and which would be affected by such appropriation, had a remedy in equity to inhibit such use.

Held, also, that a general dedication of the land for public squares implied that they were to be enjoyed by the public at large, and could not rightfully be appropriated by the city authorities for the use of the city in the management and conduct of its economic affairs.

W.T. Muir, for appellant.

W.H. Adams, for respondent.

THAYER C.J.

In this case the appellant filed his complaint to enjoin the respondent, a municipal corporation, from entering upon and building a city hall, with a city jail in the basement thereof, upon block 54, in the city of Portland, claiming that said block, and also block 53, adjacent thereto, were both dedicated to, and accepted by, the city as a "public square," for the use of the inhabitants thereof, and the public generally, as an open plaza; and it was to be kept and maintained as open ground, to be planted with trees and otherwise ornamented, as a place for public gatherings and outdoor recreation. It is alleged in the complaint that said blocks are a part of a certain tract of land which was formerly in the joint occupation of Daniel H. Lownsdale, Stephen Coffin, and W.W. Chapman, who claimed to be the owners thereof, and who subsequently obtained a patent to it in severalty from the United States under the act of congress of September 27, 1850, known as the "Donation Law" That said Lownsdale, Coffin, and Chapman, while in possession of said tract of land as aforesaid, caused a survey thereof to be made into blocks, lots, streets, parks, and other public grounds, and caused a map or plat thereof to be made, commonly known as the "Brady Map," and sold lots and blocks by reference to that map. That the appellant is a resident of said city, and is now the owner of lot 4, in block 59, which is a part of said tract of land. That said lot is upon the opposite side of the street from said block 53, and was for a valuable consideration sold and conveyed by said Lownsdale and others to Charles Hubbard on or about the 12th day of February, 1850, under and through whom, by regular and mesne conveyances, the appellant has become, and now is, the owner thereof. That said city of Portland is situated, in large part, on said tract of land. That at a meeting of the common council of said city, held on the 29th day of April, 1852, among other business transacted, the following resolution was passed: "Resolved, that the city council of Portland adopt the plat of said city drawn by John Brady as the city plat; and that the mayor appoint a select committee, with instructions to call upon the proprietors of the city of Portland, and obtain from them a bond or deed of all the public streets in said city, and a deed of trust for all the land donated to benevolent societies, public schools, public squares," etc. And by an ordinance approved February 27, 1869, entitled "An ordinance adopting a map showing the plan of the streets, blocks, and public property in the city of Portland," it was recited and ordained as follows:

"Whereas, the common council of the city of Portland, at its regular meeting held April 29, 1852, adopted the map commonly known as the 'Brady Map' as the plan of streets, blocks, and public property; and whereas, since that date, several additions have been made to the city; and whereas, a complete plan of all the streets, blocks, and public property has been made by order of the common council by C.W. Burrage, and submitted at a meeting of the common council held July 18, 1866: Now, therefore, the city of Portland does ordain as follows: Section 1. That the map of the city of Portland surveyed and drawn by order of the common council by C.W. Burrage, city surveyor, 1866, be, and is hereby, adopted as the official map of this city, showing the plan of the streets, blocks, and public property within the city limits. Sec. 2. That the auditor and clerk be, and is hereby, directed to attach to said map a certified copy of this ordinance, and cause said map and ordinance to be recorded in the records of deeds in the office of the county clerk of Multnomah county, Oregon."

That upon said Burrage map said blocks 53 and 54 were each marked and designated by the words "Public Square," and recognized by said city as having been set apart and dedicated by said Lownsdale and Chapman to the use of the public, as aforesaid; and that said city had planted trees therein, and otherwise improved the same, as and for public parks and open plazas. That all of the said improvements were made by the said city in pursuance of ordinances duly passed by its common council, and approved by its mayor, in which ordinances the said blocks 53 and 54 were referred to and designated as the "Public Square," and as the "Plaza." That neither of said blocks has ever been built upon, or made use of, otherwise than as a public park or open plaza, having said shade trees growing thereon, and as ground devoted to public use and adornment, and as a place for public meetings and for outdoor recreation on the part of such of the inhabitants of said city, and of the public generally, as might choose to resort thereto for such purposes; and that appellant, and each of his predecessors in title to said lot 4, in block 59, bought said lot, and took a conveyance thereto upon the faith, and in the expectation and belief, that said blocks 53 and 54 were each so dedicated to and accepted by, said city. But that, notwithstanding, the common council of the city, on the 19th day of April, 1889, resolved to build and erect a city hall on the west half of said block 54, and authorized and empowered the committee on ways and means to act in breaking ground thereon for the foundation of said building, and that said committee were threatening and intending so to do, and had caused the city surveyor to make a survey thereof, and set stakes preparatory to digging up and excavating the ground for the construction and erection of such city hall; and, unless enjoined from so doing, the city will cut down the shade trees on said west half of said block 54, and will proceed immediately to erect thereon a building for a city hall. That the plans and specifications for said building, adopted by said city, provide...