Lewis v. City of Portland

• Citation: 35 P. 256,25 Or. 133
• Parties: LEWIS et al. v. CITY OF PORTLAND et al.
• Decision Date: 26 December 1893
• Court: Supreme Court of Oregon

35 P. 256

25 Or. 133

LEWIS et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

December 26, 1893

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by C.H. Lewis and others against the city of Portland and others to enjoin defendants from appropriating to public use without compensation a certain strip of land belonging to plaintiffs. From a decree for plaintiffs, defendants appeal. Affirmed.

M.L. Pipes and J.V. Beach, for appellants.

George H. Williams, for respondents.

LORD, C.J.

This is a suit in equity to enjoin the defendants from appropriating to public use a certain strip of land for a bridge abutment and approach thereto without compensation to its owners. The complaint, inter alia, alleges that the plaintiffs are the owners in fee simple and in possession of the lots therein described, having adjacent thereto several warehouses; and also of a strip of land at the foot of Burnside street, 60 feet wide, between Front street and the Willamette river, and of the wharf located thereon, extending to the navigable water of such river; that the defendants, the bridge commission, appointed and acting under the "Meussdorffer Act," propose to construct a bridge across the Willamette river from the intersection of Burnside and North Front streets, in the city of Portland, to a point opposite thereto on the east bank of said river, and have let the contract therefor to the defendant the Bullen Bridge Company, which company is about to commence the work of its construction; that the defendants propose to place the approach to and abutment for the west end of such bridge upon said strip of land, and to appropriate the same to public use, without any compensation to its owners, and without taking any steps to acquire the title, or any right to occupy or use said land; and that, unless restrained, they will proceed with the construction of said bridge, and wholly deprive the plaintiffs of their property without compensation therefor, and also permanently obstruct the use of said wharf, and the extensions thereof north and south of the proposed site of said bridge, to their great and irreparable injury. The answer denies, on information and belief, that the plaintiffs are the owners of said property, and affirmatively alleges as a defense (1) that the strip of land in controversy is a part of Burnside street by virtue of a dedication under certain maps and plats made and filed by John H. Couch between the years 1859 [25 Or. 137] and 1869 showing the extension of said street to the Willamette river that the said John H. Couch, his wife, Caroline, and these plaintiffs, exhibited the same to intending purchasers, and sold lots and blocks with special reference to such maps and plats; that the locus in quo is a part of the wife's half of the John H. Couch donation land claim, and that his wife Caroline Couch, after his death, and the plaintiffs, after her death, sold and conveyed to divers persons sundry lots and blocks and parts thereof with particular reference to said plats and maps, and thereby approved and ratified the act of John H. Couch in making and filing the same. And alleges (2) as a further defense that the locus in quo has been constantly used by the public as a street for more than 20 years last past, with the knowledge and consent of the plaintiffs, their ancestors, predecessors, and grantors; and that the public thereby acquired a prescriptive right to use and occupy the same as a street. The reply denies the allegations in the answer, except that the locus in quo is in that half of the donation land claim set apart to Caroline Couch, etc. From this statement it will be seen that the main questions involved and to be determined are: (1) Has there been a dedication of the locus in quo as a public street? (2) Have the plaintiffs a right to erect and maintain, at the locus in quo, a wharf extending to the navigable water of the Willamette river?

To establish the first proposition the defendants introduced two plats and maps of Couch's addition to the city of Portland. The first one is a lithographic map of Portland, dated 1859, made by S.J. McCormick. It shows that Burnside street extends to the river, and thus includes the strip of land in dispute. The second map was made by John H. Couch on the 22d day of June, 1869, and purports to be an addition to Couch's addition, already laid out. It also shows that Burnside street extends to the river. On the other hand, plaintiffs have introduced two maps of Couch's addition to the city of Portland, one made by John H. Couch in 1865, and the other made by Caroline, his widow, Caroline E. Wilson, Clementine E. Lewis Elizabeth R. Glisan, May H. Couch, George Flanders, and Maria L. Flanders, on the 15th day of November, 1872. Both of these maps show that Burnside street terminates at the west side of Front street, and that the strip of land in controversy is private property. It thus appears, so far as the maps and plats are concerned, that the two introduced by the defendants show Burnside street extends to the river, while the two introduced by the plaintiffs show that it terminates at the west side of Front street. As to the lithographic map of 1859, there is no evidence to show, nor is it claimed, that John H. Couch or his wife signed or acknowledged or had anything to do with making it. The point upon which the defendants mainly rely in respect to such map as showing a dedication is that it was in general use in the city, and the only public map referring to Couch's addition from 1859 to 1865, during which time John H. Couch and his wife made certain deeds in which the lots were described by reference to Couch's addition to the city of Portland. It is argued that the reference in these deeds to Couch's addition, under the circumstances, was intended to refer such addition as platted on said map, and was therefore a recognition of it; and, in legal effect, a dedication of the streets as platted thereon. We are unable to assent to this inference. The admitted facts show that the strip of land in dispute belonged to Caroline Couch as donee of the United States, and that it was conveyed to the plaintiffs Allen & Lewis and Flanders, together with certain lots, some time in 1854, and that they are now the owners and entitled to the possession of it, unless the public has acquired an easement therein as a street. There is some evidence that there was a plat made of an addition to the city of Portland by John H. Couch in April, 1850, but there is nothing to show that the locus in quo was dedicated as a public street therein; and, even if there was, such plat having been made before the donation law was passed, it would not have the effect to constitute a dedication. Any person who should subsequently acquire the title from the government or its grantees had a right to revoke such dedication, and subject the property to his private use. Nor is there any evidence that Couch or his wife, prior to 1859,--the date of the McCormick map,--ever made any map on which the locus in quo was platted as a street. It is probable that after they acquired the title from the United States they may have continued to use such prior map, exhibiting it to intending purchasers, and selling their lots with reference to it; but there is nothing to show that Couch or his wife ever recognized the McCormick map, or that they ever saw it, or knew of its existence. In fact, it does not purport to be a map of Couch's addition to the city of Portland.

In view of these considerations, we do not think that the reference in their deeds to Couch's addition was intended to refer to their property as platted on the McCormick map. It is not this, however, but the map of 1869, upon which the defendants mainly rely as establishing a dedication of the locus in quo as a public street. It is claimed that all of the plaintiffs except Mr. Allen made deeds conveying lots with reference to this map. All that can be said in support of this claim is that these parties made certain deeds, referring therein for description to the map of Couch's addition to the city of Portland. But, inasmuch as Couch had made a map in 1865, upon which the locus in quo was not platted as a part of Burnside street, even if we assume that the map made by him in 1869 platted it as a part of such street, there is nothing to show whether the general reference in those deeds was to the map of 1865 or 1869. Mrs. Couch, during the time that she was the owner of the land in dispute, never made any maps or plats dedicating it as a public street, nor had any of the plaintiffs. The maps and plats made by John H. Couch after he and his wife had conveyed this land, as already stated, to the plaintiffs Allen & Lewis and Capt. Flanders, would not bind them, unless they accepted and acted upon such maps, and there is no evidence that they accepted and acted upon the map of 1869, other than the mere fact that they made certain deeds in which they described the property by reference to the map of Couch's addition to the city of Portland, which reference was as likely to be to the map of 1865, or to some prior map, of which there was some evidence, as to that of 1869. It is sought, however, to obviate this objection by showing that some of the deeds conveyed lots and blocks that were for the first time platted on the map of 1869, or, in other words, that such deeds conveyed lots and blocks that appear on no other map; and hence it is argued that the reference in them was necessarily to the map of 1869 which, it is claimed, shows that the property in dispute was a part of Burnside street. It is true that such lots and blocks did not appear on any other map, for the reason that the map of 1869 was intended as an addition or extension of...