143 P. 1111 | Or. | 1914
delivered the opinion of the court.
The purpose of this suit is to enjoin the defendants from establishing and maintaining a perpetual trespass by the construction, of an elevator landing, to be used in connection with the transportation of passengers between the business and residential sections of Oregon City. The only problem presented for our solution concerns the ownership of a strip of land lying between JLots 3 and 4 in block 34, and the right of way
In 1851 the legislative assembly of Oregon took similar action by confirming the title in the donees of Dr. McLoughlin. The Donation Act of 1850 provided that the Oregon City claim, excepting the Abernethy Island, should be set apart and be at the disposal of the legislative assembly, and that the proceeds accruing from the sale of the property be applied to the establishment of a university, thereafter to be located and designated.
‘ ‘ The space between the edge of the bluff and blocks numbered thirty-three (33), etc., is donated for a promenade for the inhabitants of Oregon City.”
Beyond question, it was thought by Dr. McLoughlin and his surveyor that all the lots in block 34 were shortened by the bluff, this being due either to the want of accuracy in the survey or in the preparation of the plat of the city. In the Preston map, a strip of land varying from 9 to 21 feet in width is shown to subsist between the edge of the bluff and lots 3 and 4 in block 34.
“In October, 1862, the state legislature formally accepted the government’s grant of the ‘Oregon City claim’ for university purposes, and at the same time conveyed and confirmed title thereto to Daniel Harvey and his wife, Eloise Harvey, the heirs and legatees of Dr. McLoughlin, for the consideration of $1,000: Gren. Laws 1862, p. 90. After thus becoming the owners of the property, the Harveys did not make a new map or plat of Oregon City, but sold and conveyed by deed lots and blocks therein by reference to the map or plat made and filed by McLoughlin in 1851, and from the date of the filing of such map to the present the McLoughlin map has been used and considered as the only plat of the city. * * McLoughlin never acquired title to the land in question, but his map or plat of Oregon City was recognized by the government of the United States and the State of Oregon in confirming title to the purchasers from him, and by Harvey and wife after they had acquired the title, by selling and disposing of lots and blocks as laid out and platted thereon. * * When, therefore, the Harveys, after acquiring title from the state, without making any change or alteration in the McLoughlin map, sold and conveyed lots with reference thereto, they thereby ratified, ap*532 proved, and dedicated to the public the streets, alleys and public places shown thereon as completely and fully as if they had themselves made and formally acknowledged the map.”
Thus it will be seen that the McLoughlin map must be looked to as the sole interpreter of the intention of the dedicator, as well as those holding title through the medium of the State of Oregon. In the dedication made by Dr. McLoughlin, we observe this statement:
“All lots in that part of the town surveyed by Jesse Applegate, are at least sixty-six (66) feet front and one hundred (100) feet back.”
As explanatory thereof, it is worth while to remark that this pioneer civil engineer surveyed all the town lying between Washington Street and the Willamette River, in which zone is located the property embraced by this litigation. We find no statement in the dedication limiting the number of feet that may be in a block, and for that reason it was the apparent intent of the dedicator that each lot should be as large as indicated by its boundary lines.
It seems clear to us that Dr. McLoughlin and his successors in interest both supposed and desired to include within lots 1, 2, 3 and 4 of block 34 all the land lying between High Street fronting the block and the top of the bluff to the westward thereof.
Let the decree of the lower court be modified conformably to this opinion.
Modified.