Portland Ry., Light & Power Co. v. Oregon City

• Decision Date: 17 July 1917
• Court: Oregon Supreme Court
• Parties: PORTLAND RY., LIGHT & POWER CO. v. OREGON CITY. [a1]

166 P. 932

85 Or. 574

PORTLAND RY., LIGHT & POWER CO. v. OREGON CITY. ^[a1]

Supreme Court of Oregon

July 17, 1917

In Banc.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by the Portland Railway, Light & Power Company against Oregon City. From a judgment for defendant, plaintiff appeals. Reversed.

This is a suit to quiet title to a triangular shaped piece of land in "Mill Reserve" near the south end of Main street in Oregon City. The complaint is in the usual form, containing the allegations of ownership of a fee-simple title in the Portland Railway, Light & Power Company, and continuous possession for more than ten years under deeds of conveyance containing full covenants of warranty and seisin by plaintiff, and that defendant claims some interest therein. The answer is a general denial, except that it admits that defendant claims an interest in the premises, and for a further answer alleges that the tract is a public street and has been such for a period of more than 50 years. The reply is a general denial of the new matter in the answer, and further alleges that defendant abandoned the premises as a highway in 1890. For a second separate reply the plaintiff avers that defendant is estopped to claim the premises because of long possession and improvements made by plaintiff. The trial court found that Main street included the premises in question and rendered a decree accordingly from which the plaintiff appeals.

About the year 1842 Dr. John McLoughlin settled on what is known as the "Oregon City Claim." He began selling lots about 1843. In 1850, by an act of Congress, the United States government granted the claim to the state of Oregon for the benefit of the State University, excepting all lots sold by Dr. McLoughlin prior to March 4, 1849. The plat of Oregon City was filed in 1851 by him. He died in 1857, leaving as his heirs and devisees Eloisa Harvey, Daniel Harvey, and David McLoughlin. The Harveys, having purchased the interest of David McLoughlin, became the sole owners of Dr McLoughlin's interest in the Oregon City claim. In 1862 the Legislature of the state of Oregon granted to Eloisa Harvey and Daniel Harvey the title to the Oregon City claim upon the payment of the sum of $1,000 for the benefit of the State University fund. No other plat of Oregon City has been made, but lots and blocks therein have ever since been sold with reference to the McLoughlin map, thereby adopting the plat filed. On this map that part of the Oregon City claim south of blocks 1 and 29 and west of blocks 73, 74, 75, 76 and 77, on the east side of the river, is designated as "Mill Reserve," and in the certificate of dedication attached to the map appears the following:

"All the space in front of the blocks on Water street not covered by the width of the street (60) feet is reserved as private property. All the space below the edge of the bluff, and along and in front of blocks 73, 74, 75, 76, and 77, is reserved as private property."

The premises, title to which is involved in this suit, are situated within Mill Reserve, and are below the bluff and in front of blocks 73, 74, 75, 76, and 77. For a great number of years there has been a road leading in a southerly direction from the end of Main street through Mill Reserve to Canemah the exact location of which is in dispute, and is not shown on any official map. When plaintiff's predecessors in interest bought the Mill Reserve from the Harveys in 1865 their deed contained the following exception:

"Also saving and reserving the public highway and railroad upon said premises."

In 1861 a flood occurred in the Willamette river, which destroyed the Island Mill, the Rossi Foundry, and the McLoughlin Mill, and they have never been rebuilt. The flood also destroyed the roads leading to these mills and the foundry, and changed the surface of the property immediately east of and around Imperial Mill, which was situated west of the southerly portion of the tract in dispute, by washing away the earth and leaving a ledge of rock exposed. In 1866 the plaintiff's predecessors in interest built the basin dam or wall on the side where the present basin wall stands immediately southerly of the land in dispute. This dam or wall holds back the waters of the Willamette river in such a manner that all that property designated as "basin" on the maps in evidence herein is covered with several feet of water. In 1890 another flood occurred, which overflowed the basin wall and destroyed that part of the road to Canemah. Immediately thereafter the city built a plank road 32 feet in width east of the Imperial Mill and adjacent to the property in controversy, where the road has remained to the present time.

Plaintiff claims record title to the tract as follows: In 1865 Daniel Harvey and wife conveyed by warranty deed to the People's Transportation Company all the Mill Reserve described as above--

"save and except so much of said premises as has been conveyed by deed by said parties of the159 first part, and are now understood to be owned by the Oregon City Woolen Manufacturing Company, Savier & Co., and Moore, Marshall &amp Co., and also saving and reserving the public highway and the railroad upon said premises, and also all ferry rights, appurtenant to said premises, and also a right of way for wagons, etc., from said premises to a ferry, and from a ferry to the top of said bluff, together with all the water rights and privileges appurtenant."

Thereafter the same passed by a succession of warranty deeds from the People's Transportation Company to the plaintiff herein. During the last seven years before this suit, the Hawley Pulp & Paper Company, as tenants of the Portland Railway, Light & Power Company, have built heavy works in the form of bents and platforms for the purpose of piling and stowing pulp on the south portion of the tract, and have built a siding off the main line of the above company's railroad, expending some $2,000 in improvements on the triangle. The city authorities objected, and notified the tenant to vacate, and this suit resulted. Prior to the time of such occupancy by the Hawley Pulp & Paper Company, the lessee of plaintiff, there was a large hole in the ground down to bedrock, which was crossed by a couple of flumes. The Imperial Mill, as now constructed, extends 18 inches over the west line of Main street projected, and the Hawley Pulp & Paper Company has built an elevated structure over the highway, which is used in trucking pulp from Imperial Mill to Sulphite Mill on the east side of the highway. There is shown on the plat in evidence what is termed a private roadway 40 feet in width, commencing about one-third of the way from the northerly point of the triangle and extending from the road to Canemah across the tract in dispute to the mill on the west. That part of the tract south of this private roadway is separated by a railing on three sides from the Canemah road, the private roadway, and the walk in front of the mill on the west. There is also a railing on the north of the private roadway, extending between the Canemah road and the open space north of the private road to a point opposite the roadway leading to the Oregon Railroad & Navigation Company's dock. The so-called private roadway was granted by deed to the owner of the mill property on the west of the tract in dispute and is covered with planking upon a grade about one foot below the planking of the Canemah road. The condition of this so-called private roadway and that leading to the Oregon Railroad & Navigation dock is not involved in this suit, and only come in incidentally in mentioning travel over the same in connection with the public highway. The private roadway is maintained by the mill company for the purpose, as it claims, of ingress to and egress from the mill.

R. A. Leiter, of Portland (Leslie Craven and Griffith, Leiter & Allen, all of Portland, on the brief), for appellant. C. Schuebel, of Oregon City, for respondent.

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

The land involved is in the shape of a rightangled triangle, the base being on the west 182 feet, with a perpendicular on the south approximately 80 feet. The matter for determination is whether or not the tract has been dedicated to the public as a street or highway. The city contends: First, that the plaintiff never acquired title to the property in question by deed or otherwise; second, that the tract was dedicated as Main street by Dr. McLoughlin and recognized as such by his successors in interest, including the plaintiff; third, that the tract has been recognized by the public as a part of Main street since 1855 and prior thereto, and was traveled by the public generally from that time until the flood of 1890, when the high water...