Houston v. Zahm

• Decision Date: 18 April 1904
• Citation: 44 Or. 610,76 P. 641
• Parties: HOUSTON et al. v. ZAHM et al.
• Court: Oregon Supreme Court

76 P. 641

44 Or. 610

HOUSTON et al. v. ZAHM et al.

Supreme Court of Oregon

April 18, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Suit by M. Merriman Houston and others against John A. Zahm and another. Decree for plaintiffs. Defendant Zahm appeals. Reversed.

This is a suit to compel the specific performance of a contract to open and maintain a highway, made and entered into February 25, 1891, between L.D. Brown, Sherman D. Brown, and the Peninsular Real Estate Company on the one part, and the Portland University on the other. The contract, so far as it is important for consideration, reads as follows: "That in consideration of the party of the second part locating its university buildings on the southeast part of the John Waud donation land claim in T. 1 N., R. 1 E., in Multnomah county Oregon, and opening and maintaining a good highway at least 60 feet wide from the east end of Ballantyne street, in the plat of Melvin (after the said east end of said Ballantyne street shall have been moved sixty feet north of its present location, and said street extended westerly in a straight line from such east end after so removed to the present bend or crook in said street) to Spaulding street or an easterly extension thereof, the parties of the first part agree to sell and convey to the party of the second part at its option, the south half cut off by a line parallel with Spaulding street of that part of tract numbered fourteen in Melvin which belongs to the parties of the first part or either or any of them and lying north of said Ballantyne street after so moved for the price of eleven hundred dollars per acre. *** And the parties of the first part further agree to consent to and use their best endeavors to procure the vacation of Long street in Melvin from Ballantyne to Spaulding street." At the time of entering into the contract or agreement the first parties were the owners of lots Nos. 16 to 23, inclusive, and lot No. 25, in Melvin, as well as the easterly portion of tract No. 14. To indicate more clearly the situation and the holdings of the parties, a plat of a part of Melvin is subjoined, that part of tract 14 then owned by the first parties being indicated as lying easterly of the dotted line running lengthwise through it.

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The plaintiff the Tyler Investment Company has succeeded to the title to an undivided one-half of lots 16 to 20, inclusive the Columbia Real Estate Company to the title of lots 21 to 23, and M. Merriman Houston to that of lot 25. The Portland University, at the time of the execution of the contract, was not the owner of the land upon which the university building was subsequently located as shown by the plat--the tract containing 15.77 acres, and extending from Spaulding street if extended easterly, south to the southern boundary of Melvin. The university obtained the title later, however, on May 29, 1891, and it also became or was the owner of the land in Melvin lying west of said easterly portion of tract 14. On April 30, 1891, Sherman D. Brown and the Peninsular Real Estate Company conveyed the whole of said easterly portion of tract No. 14 to the Portland University by deed, with full covenants of warranty, without reservation of any kind, and by ordinance passed July 5, 1893, and approved the following day, petitioned for by the Portland University and Sherman D Brown, the whole of Ballantyne street from the angle to the easterly end thereof was vacated. About the same time or shortly afterward the university deeded to Brown a triangular tract, beginning at the angle in the south line of Ballantyne street, and running thence easterly along the south line thereof to the east boundary of Melvin; thence north along the said east boundary 50 feet; thence southwesterly to the place of beginning. Long street was also vacated, but at what time is not shown. The defendant John A. Zahm has succeeded to all the interest of the Portland University in and to all its lands and premises. Plaintiffs allege that the first parties to the contract have fully performed all the terms and conditions thereof on their part; that the Portland University subsequently, about April, 1893, allowed the premises, which would have been occupied by Ballantyne street if it had been relocated as agreed, to be used as a highway by plaintiffs and other persons, and also opened a highway 60 feet in width from the east end of Ballantyne street as agreed to be relocated to Spaulding street and streets connecting therewith; that plaintiffs and the public were in the use of the highways, and continued so to use them with the knowledge and consent of defendants, subject only to such temporary gates and fences as were satisfactory to all parties, up to the 1st day of January, 1900; that neither the Portland University nor any of its successors or assigns has ever formally dedicated or caused to be dedicated said portion of Ballantyne street agreed to be relocated or said highway upon the public records, and has latterly forbidden plaintiffs the use thereof, and threatens to close the same to plaintiffs and the public; that the Portland University is insolvent, and that John A. Zahm purchased and now owns said land, with full knowledge of the agreement and the acts done in pursuance thereof. The answer sets up an abandonment by the parties of the contract in question, and controverts the legal right of plaintiffs to a specific performance. A decree having been rendered in accordance with the prayer of the complaint, defendant Zahm appeals.

R Williams and E.B. Williams, for appellant.

Thos. N. Strong and J.V. Beach, for respondents.

WOLVERTON, J. (after stating the facts).

The questions of fact involved relate to the alleged abandonment of the contract and the opening by the university of the east end of Ballantyne street as agreed to be relocated, and a 60-foot highway to Spaulding street, or an easterly extension thereof. Sherman D. Brown testifies that the contract was entered into for the purpose of giving more space to tract numbered 25 on high ground between Ballantyne street and the edge of the bluff, the first parties being the owners at that time of the tract; that at the time the deed was executed and delivered to the Portland University the secretary of the corporation gave to him a memorandum as follows: "Sh. D. Brown &amp Peninsular R.E. Co. have this day delivered to Portland University Co. deed for land in Melvin, Ballantyne street in said tract is to be moved as agreed upon. This is part of consideration"--saying to him "that the original agreement should be carried out"; that the highway mentioned in the agreement, from the end of Ballantyne street as it was agreed to be relocated to Spaulding street, was opened nearly to the head of Olin street immediately after the deeds were executed and work was begun on the university building, and was used by plaintiffs and every one for five or six years; that the grounds were all cleared off, the highway being well grated, but that a fence and gateway were put in some two or three years ago, the recollection of witnesses being indistinct as to the time of their construction. Mr. Robert C. Huston testifies that he was over the ground about a month before he was called as a witness, and that there were some indications of an old road leading from the gate near Olin street along the top of the bluff in front of and beyond the university building. D.C. Hoyt that he has known the premises since 1881; that Mock formerly had a wood road immediately in front of where the university building now stands; that it was used by him and other parties desiring to go through that way, and to the present time it is used by people going to and from the building; that it was the only immediate highway that the Portland University people had to their grounds; that for years before the Portland University discontinued the school it put a fence along Spaulding street, but made no restrictions against any one going through. On cross-examination he continues that the way used by Mock was a private road. A.C. Fairchild that the premises that are now the university campus were inclosed by a fence about five years ago, up to which time they were open; that near the bluff, and near the road running down to Mock's wharf, there was a roadway leading in front of the university, which was used for all purposes connected with the institution; and that he knew of no restrictions put upon the use of it until the gateway was provided. John Mock testifies that he sold the land upon which the building stands to the university, and that he had a wood road, a private way, running along the bluff in front of the building in an early day; and Merriman Houston, that he lived adjoining the university premises for 11 years, that when he first knew them they were all open from Spaulding to Ballantyne street, that an old road extended from near the end of Olin street along the bluff into the grove to the rear of the site of the university building, that the university campus was inclosed in the year 1897 or 1898 and a gateway was put in from Spaulding street. P.L. Willis testifies in behalf of the defendants that the Portland University had an option (referring to the agreement of February, 1891) to buy from Brown all his interest in tract 14 lying north of a point 60 feet north of Ballantyne street; that the agreement was afterward abandoned, and that he deeded to the university the whole of the tract down to Ballantyne street; that Brown's idea in holding the remainder of the land...