Pacific Milling & Elevator Co. v. City of Portland

• Citation: 133 P. 72,65 Or. 349
• Parties: PACIFIC MILLING & ELEVATOR CO. v. CITY OF PORTLAND et al.
• Decision Date: 24 June 1913
• Court: Supreme Court of Oregon

133 P. 72

65 Or. 349

PACIFIC MILLING & ELEVATOR CO. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

June 24, 1913

Appeal from Circuit Court, Multnomah County; R.G. Morrow, Judge.

Action by the Pacific Milling & Elevator Company against the City of Portland and others. Decree for the plaintiff, and defendants appeal. Affirmed.

This is a suit to restrain the defendants from erecting a wharf on and in front of plaintiff's premises below the line of ordinary high water in the Willamette river. The defendants appeal from a decree of the circuit court adjudging plaintiff to be the owner of the premises and of the wharfage rights in front thereof.

Plaintiff avers that it is the owner and in the actual possession of the following described real estate, water frontage, and wharfage rights situated within the corporate limits of the city of Portland, to wit: The northerly 55 feet of lot 17 all of lots 18, 19, and 20 of Watson's addition to the city of Portland, and the southerly 40 feet of lot 21 of Doscher's addition to the above city; that the lots are 200 by 100 feet, extending from Front street at a point above and westerly of the line of ordinary high water in the left bank of the Willamette river easterly to the established harbor line; that plaintiff is entitled and desires to construct a wharf on and in front of the premises, and has applied to the defendant city of Portland for a permit to do so, but has been refused the same on the ground that the city asserts that it has the exclusive right of constructing a wharf on all that part of the premises below the line of ordinary high water; and that, pursuant to such claim, the dock commissioners of the defendant city have selected the premises for a wharf site, have entered upon such river frontage, have engaged in driving spiles therein preparatory to the construction of a wharf and dock, and threaten to occupy such premises permanently and to exclude plaintiff therefrom. The defendant city and its officers deny plaintiff's title and allege, among other things, that the property described in plaintiff's complaint has never been in the actual possession of any one; that the whole thereof, including all of North Front street adjacent thereto, has at all times been below the ordinary high-water line of the Willamette river, and that the same accrued and became vested in the state of Oregon at the time the state was admitted into the United States, and that it has never sold or conveyed the same to any one; that the state of Oregon by its Constitution and through the charter of the City of Portland adopted in 1903, and a certain amendment thereto, establishing a department of public docks and making provisions with reference thereto, adopted by the people of the city of Portland November 8, 1910, pursuant to the Constitution, granted unto the city the right, power, and authority to construct and maintain wharves, docks, and all appurtenances thereto upon the property of the state of Oregon lying below the ordinary high-water line of the Willamette river, particularly upon such portions thereof as a commission of the department of public docks of the city might select; that the commission has duly selected the property described in the complaint for that purpose, and intends to erect thereon a large dock extending from ordinary high-water line out to the harbor line, and to take possession of the whole of such frontage and premises without paying plaintiff any compensation therefor. The plaintiff asks that its title to the premises be quieted, and that defendants be enjoined from erecting or maintaining any structure thereon.

The state intervened and alleges, in substance, in addition to the facts stated by the defendant city of Portland, that it is the owner of all the land between the ordinary high-water mark and the harbor line in front of and on the river side of such lands; that the city of Portland and its dock commission are fully authorized by the grant in its charter to enter upon and construct below high-water mark a public dock and wharf for the purpose of aiding and promoting the commerce and navigation of the Willamette river; that in attempting to construct a public dock the city of Portland is acting by virtue of such authority; that the plaintiff has no franchise or license to construct wharves or docks in front of such lands below ordinary high-water mark; that such license or franchise has been forfeited, abandoned, and lost for more than ten years prior to the commencement of this suit; and that plaintiff and its predecessors have in no wise attempted to use the same during such time. The state prays that it be declared to be the exclusive owner of the property, except as to the city of Portland, and that plaintiff be enjoined from driving piles in or building any structure upon the land below high-water mark or from asserting any claim to the land adverse to the intervener.

The following matters are agreed to: (1) That Watson's addition to the city of Portland was platted March 7, 1871 by A.J. Watson, the owner of all the land included within its boundaries above the line of ordinary high water. (2) That Doscher's addition to said city was platted April 11 1871, by John C. and Ann L. Doscher, the owners of all the land within its boundaries above ordinary high-water line. (3) That both of said additions were platted on a part of the donation land claim of Wm. Blockinstone, and that the easterly boundary of said claim was the Willamette river which is navigable. That said plats are contiguous Doscher's addition joining Watson's addition on the north and being a continuation thereof so far as "river block" in the latter addition is concerned; "river block No. 2" of Doscher's addition being a continuation of "river block" in Watson's addition, and both of said additions being bounded on the west by Front street. (4) That the plat of Watson's addition shows the left boundary line of the Willamette river extending northerly and southerly practically through the middle of said "river block." (5) That, according to the field notes of the survey of the donation land claim, the meander line of said claim is located about 40 feet easterly of and practically parallel with Front street. (6) That plaintiff has succeeded by mesne conveyances to whatever title Watson and the Doschers had to lots 18, 19, and 20, and the northerly 55 feet of lot 17 of said "river block," and the southerly 40 feet of lot 21 of said "river block No. 2," and, if the lots are entirely below the ordinary high-water line of the river, plaintiff has nevertheless acquired and owns all the rights of the bank or upland property to such lots and parts of lots and the frontage thereof. (7) That all such title and right as the owner of the land adjacent to the line of ordinary high water in the Willamette river might have under the law is vested in the plaintiff so far as concerns the premises in front of lots 26, 27, and 28 of terminal block in Watson's addition.

The evidence shows that there is a large area of similar land in the city, much of it occupied as private property, and all held in private ownership. D.B. Sigler, for about 14 years county assessor, testified that the land between ordinary high and low water marks has always been assessed; that there is $25,000,000 or $30,000,000 invested in such lands and structures thereon. It appears that the plaintiff paid $137,000 for the lots five years ago. Since 1909 the assessed valuation has been from $74,750 to $91,250. In 1910 the taxes amounted to $2,007.50. The land in question, in its original state, consisted of a low flat broken by a spring branch or creek, and for the last 25 years has been gradually filling up, so that much of it is now 15 feet higher than it was formerly. The lots immediately to the south, which are in the same class of property as the land in question, are occupied by a horse barn, blacksmith shop, engine house, a bridge company's plant, comprising an investment of several thousand dollars, and other buildings. The city first commenced an action to condemn the right to construct a wharf on the premises, which action was dismissed.

Frank S. Grant, F.W. Mulkey, and Lyman E. Latourette, all of Portland, for appellants.

C.W. Fulton, of Portland (Fulton & Bowerman, of Portland, on the brief), for respondent.

A.M. Crawford, Atty. Gen. (Wm.C. Benbow, of Portland, on the brief), for intervener.

J.B. Kerr and E.B. Seabrook, both of Portland (Charles H. Carey, Malarkey, Seabrook & Dibble, and Martin L. Pipes, all of Portland, on the brief), amici curiae.

BEAN, J. (after stating the facts as above).

The claims of the respective parties may be summarized as follows:

Plaintiff claims:

(1) Title in fee by patent from the government and subsequent conveyances as to the westerly 100 feet which plaintiff claims has always been above the ordinary high-water line, or is now above such line by reason of accretion.

(2) Title in fee from the state of Oregon granted by acts of the Legislature of 1874 and 1876, known as the Tide Land Acts, and subsequent conveyance to a strip about 100 feet wide east of and adjacent to the above, being between the ordinary high-water line and low-water line as claimed by plaintiff.

(3) Riparian or littoral rights and a wharf right to the portion between low water and the harbor line.

Defendants in answer to the first claim, maintained that the locus in quo belongs to the state of Oregon because it is entirely below the ordinary high-water line, which is westerly of North Front street, although the apparent line is now near the easterly line of such street. Plaintiff's second claim is based on the Tide Land Act as amended in 1874 and 1876, whereby the state purports to grant to...