Meier v. Portland Cable Ry. Co.

• Decision Date: 05 November 1888
• Citation: 19 P. 610,16 Or. 500
• Parties: MEIER v. PORTLAND C. RY. CO.
• Court: Oregon Supreme Court

19 P. 610

16 Or. 500

MEIER v. PORTLAND C. RY. CO.

Supreme Court of Oregon

November 5, 1888

Appeal from circuit court, Multnomah county.

Action by Aaron Meier against the Portland Cable Railway Company to recover possession of real property. Judgment for defendant and plaintiff appeals.

(Syllabus by the Court.)

Where the owner of land lays it off into blocks, lots, and streets platting it as an addition to a city, and causes the plat although not acknowledged so as to entitle it to record, to be recorded in the book of deeds in the office of the clerk of the county in which the land is situated, and sells and conveys any of the lots or blocks by a reference, in the description thereof, to such plat, it constitutes an irrevocable dedication to the public of the streets shown upon it; and where the limits of the city are subsequently extended so as to include such addition, the corporate authorities thereof have the right, at any time when the public necessities require it, to use such streets as public thoroughfares. It is not essential in such cases, to the validity of the dedication, that the city authorities formally accept it, or proceed at once to have the streets opened and improved. The dedication only implies that the streets will be used as such when the public exigencies require it; and, until they are opened and improved, they remain in abeyance. A party making a dedication of streets in such manner can only reclaim their use when the object and purpose of making it have utterly failed. ^[1]

Where T.C. and M.C., owners of land, sold and conveyed a portion thereof to one F., which was described in the deed of conveyance as a part of a certain block in a certain addition to the city of P., and referred in the description thereof to a plat of said addition as recorded in a certain book of deeds in the office of the clerk of the county of M., that being the county in which the land was situated; and the evidence in the case disclosed that the plat was recorded as referred to in the deed, and the other deeds were shown to have been executed to lots in such addition by reference thereto, and that the records failed to show that any other plat of said addition had been recorded at the time; held, that said references amounted to a recognition that the plat was real, and that the evidence was sufficient to authorize the jury to find that T.C. and M.C. made it and caused it to be recorded. Held, further, that the transaction amounted to a dedication of the streets shown upon such plat, and that neither the said T.C. and M.C., nor their grantees, had any authority to revoke it as to any of them.

Held, that the grantees from the parties making such dedication had no authority to make a new map or plat, substituting a new street or way in place of an old one, without the consent of the purchasers of blocks and lots under the former plat, and of the public.

Held that, although a common-law dedication of land does not pass the legal title thereto out of the party making it, yet that it is sufficient to defeat an action at law for the recovery of the possession of the property as against those who are using it in accordance with the object and purpose for which it is dedicated.

Held that, where a plaintiff in an action for the recovery of the possession of real property, and damages for wrongful withholding of it, seeks to aggravate the damages by showing a special injury to the freehold, the defendant has a right to show that the acts consisted in the erection of a structure thereon; that the plaintiff would succeed to the title to it in case of recovery; and that it would be valuable to him.

Mitchell, McDougall, Tanner & Bower, for appellant.

Dolph, Bollinger, Mallory & Simon, W. Bronough, and Mr. Northrup, for respondent.

THAYER C.J.

The appellant commenced an action in the said circuit court against the respondent, a private corporation, to recover the possession of certain real property described as "Lot No. 2, block No. 44, in Carter's addition to the city of Portland, in the county of Multnomah and state of Oregon, as laid out on the duly recorded map and plat of said addition." The appellant alleged in his complaint: Ownership of the property in fee-simple; his right of possession to it; a wrongful entry and withholding by the respondent, and damages in consequence thereof in the sum of $500. The respondent, in its answer, denied the said allegations of the complaint, and averred that the said property was at the time referred to, and still continued to be, a public street, duly dedicated as such by the original donee thereof from the United States, and through whom the appellant derived his alleged title; that it is a part of Fifteenth street in the city of Portland; and that the respondent was duly authorized by said city to enter upon and use the said street and property for the cable railway. The appellant, in his reply, denied the dedication, and the authority from the city to use the property as alleged. The cause was tried by jury, and the main point of contention was as to whether the locus in quo had been dedicated as alleged in the answer.

The appellant gave in evidence a chain of mesne conveyances from Thomas Carter and Minerva Carter, donees of a land claim from the United States, including said Carter's addition to the city of Portland, down to himself; also a plat of Carter's addition to the city of Portland, dated November 2, 1871, executed and acknowledged by J.S. Smith and wife L.F. Grover and wife, C.M. Carter and wife, and T.J. Carter and wife; recorded in book of records of deeds of Multnomah county, at pages 488 and 491, inclusive. He then introduced evidence tending to show that respondent, on the 26th day of October, 1887, against the protest of the appellant, entered upon said premises, tore down and removed the fences therefrom, dug numerous trenches from 5 to 10 feet deep, and erected thereon trestle-work from 60 to 70 feet in height, upon which to operate its cable road. The respondent, to maintain its defense, gave in evidence a plat marked, "Plat of Carter's addition to the city of Portland," recorded May 28, 1868, in Book H, of record of deeds of Multnomah county, at pages 708, 709, thereof. Said plat was not acknowledged, nor did it appear by whom it was recorded; but respondent's counsel, in connection therewith, gave in evidence a deed executed by the said Thomas Carter and Minerva Carter, his wife, and T.J. Carter to one John Flinn, dated February 24, 1871, which purported to convey to said Flinn, in consideration of $400, certain premises referred to therein, as that certain piece or parcel of land known and designed on the plat of Carter's addition to the city of Portland, recorded in records of deeds for Multnomah county in Book H, page 708, as the "N.W. 1/4 of Block C," according to said map or plat, and which reference was followed by a description of the premises conveyed by metes and bounds. Said counsel also gave in evidence deeds executed by said T.J. Carter and C.M. Carter to other parties, prior to the date of said plat of November 2, 1871, which contained, in the description of the premises conveyed, reference to said Carter's addition to the city of Portland, but did not mention any plat. Evidence was also given, on the part of the respondent, tending to show that the plat of Carter's addition to the city of Portland, recorded in Book H of deeds, at pages 708 and 709, was the only plat of Carter's addition to the city of Portland recorded in said records of said county, prior to the 2d day of November, 1871, and that "Fourteenth Street," as designated on said plat of May 28, 1868, included the premises in controversy, and corresponds with "Fifteenth Street, as designated on the plat of November 4, 1871. It further appeared in proof that in the conveyance from Thomas Carter and Minerva Carter, his wife, to T.J. Carter, C.M. Carter, and J.S. Smith, bearing date October 29, 1870,--one of the mesne conveyances through which the appellant derived his alleged title,--and in the conveyance from the last-named grantees and their wives to L.F. Grover of an undivided one-fourth interest in the premises conveyed to them by said Thomas and Minerva Carter, bearing date the 3d day of November, 1870,--another of said mesne conveyances,--blocks 1, 12, 13, 14, 11, 2, 36, 33, 34, 35, 39, and 40; also blocks A, B, C, D, and E, all in Carter's addition to the city of Portland; also a parcel of ground abutting on the south side of blocks 33 and 34, being 460 feet in length from east to west, and 260 feet wide, were expressly excepted. It appears that the premises in controversy were not within the city of Portland until 1885, when its limits were so extended as to include them; nor does it appear that the city ever attempted to exercise authority or control over said street at or near said premises, until July 20, 1887, at which time the common council of the city adopted an ordinance that was approved by the mayor on the 30th day of July following, authorizing the respondent and its assignees to construct, maintain, and operate a street railway upon and along said street, from the middle line of Market street southerly to Spring street, passing over and across the said premises; and under the authority of which ordinance the respondent entered thereon, and did the acts alleged in the appellant's complaint. The appellant's counsel attempted at the trial to prove damages in consequence of said act above mentioned; and the respondent's counsel, in response thereto, introduced evidence tending to show that the value of the timber in the trestle-work put upon the premises was greater than the amount of the damages claimed by the appellant. This evidence was objected to by appe...