Lockwood v. City of Portland

• Decision Date: 02 April 1923
• Docket Number: 3962.
• Citation: 288 F. 480
• Parties: LOCKWOOD v. CITY OF PORTLAND et al.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F. 480

LOCKWOOD v. CITY OF PORTLAND et al.

No. 3962.

United States Court of Appeals, Ninth Circuit.

April 2, 1923

Isham N. Smith, of Portland, Or., for appellant.

Frank S. Grant and H. M. Tomlinson, both of Portland, Or., for appellees city of Portland and its officers.

Stanley Myers, Dist. Atty., and Sam'l H. Pierce, Deputy Dist Atty., both of Portland, Or., for appellees School District No. 1, and its officers.

Section 362 of the charter of the city of Portland provides that whenever any person or corporation interested therein shall desire the vacation of a street or part thereof, such person or corporation shall give notice by advertisement in the city official newspaper that a petition will be presented to the city council at a regular meeting at a time stated in such notice, praying for the vacation of such street or part thereof. The petition shall set forth a description of the part of the street proposed or sought to be vacated, the purpose for which the ground is proposed to be used, and the reason for the vacation, and shall be accompanied by the consent of the owners of at least two-thirds of the real estate fronting on both sides of the street, within certain prescribed limits. Upon presentation of the petition and the filing of proof of publication, the city council shall fix a date for hearing the petition and the objections filed thereto, if any. At the time fixed for the hearing the city council shall ascertain and determine whether the consent of the owners of the requisite number of front feet has been obtained, and such finding shall be made a matter of record and shall be conclusive of the facts as found in all collateral proceedings, and shall be prima facie evidence of the facts in all direct proceedings. If upon the hearing the city council shall find that the public interest would not be prejudiced by the vacation of the street, or part thereof, applied for, and that the consent of the owners of the requisite number of front feet has been obtained, the council may grant the prayer of the petition in whole or in part, and may vacate the street sought to be vacated by such petition, and cause such vacation to be made a matter of record. The next section provides that, upon the vacation of a street, the street shall be attached to the lots or ground bordering on same, and all right and title thereto shall vest in the owners of the property on each side thereof in equal proportions, except where the street was originally dedicated wholly by the owner or owners of the property abutting upon one side only, in which case the title to the street shall vest in the owner or owners of the property bordering upon that side.

On August 3, 1922, school district No. 1, Multnomah county, Oregon, presented two petitions to the city council of the city of Portland, praying for the vacation of parts or portions of certain streets therein described. The purpose for which the ground was proposed to be used, and the reason for the vacation, were thus stated: 'That the purpose for which the ground is proposed to be used which your petitioner herein seeks to have vacated is for general private purposes, the same as the adjacent ground, and particularly for residential purposes and school purposes. That the reason for such vacation is that school district No. 1, Multnomah county, Oregon, owns the adjacent property on the north, being blocks 77 and 96, and the said school district contemplates the purchase of blocks 95, 97, and 98, of Holladay addition, and on which the proposed new Holladay School is to be located, and the vacation of that portion of said street will add to and be beneficial to the public in connection with the said school.'

Later two ordinances were introduced in the city council, vacating the streets as prayed, and passed to their third reading, but before their final passage the present suit was instituted by a property owner to restrain the school district, the city of Portland, and their respective officers, and the Oregon Real Estate Company from passing the ordinances or otherwise attempting to vacate the streets. From a decree of dismissal the present appeal is prosecuted.

Before GILBERT and RUDKIN, Circuit Judges, and VAN FLEET, District judge.

RUDKIN Circuit Judge (after stating the facts as above).

The following propositions are so firmly established as to require no citation of authority in their support: First subject to the limitations contained in the...