Leland v. City of Portland

2 Or. 46 | Or. | 1862

Boise, C. J.

So much of the evidence, reported in this case, has been given as above, in order to a more full and clear understanding of the question of the propriety of admitting the maps to the jury. As to the Short map it is impossible to tell from the evidence furnished in the bill of exceptions, whether or not it was recognized and acted on by Lownsdale, subsequent to September 27, 1850. If it were so recognized and acted upon, it was properly admitted; if not, then I think its admission improper — and the question whether or not Lownsdale did recognize and approve said map was a proper question for the jury under the instructions of the court. If the map was relied on to show a dedication, that dedication must be shown to have been made since the act of September 27th, 1850, for any acts before that time, affecting the disposal of lands in Oregon, were simply void, for the want of any title to them at that time in the citizens of the then territory of Oregon, the title yet being in the United States, and consequently unaffected by the acts of private citizens. (Parrish v. Lownsdale et al., 21 Howard, U. S. S. C., p. 290.) As to the Brady map I think it was improperly admitted, unless there was evidence tending to show that Lownsdale examined and approved of it in respect to its designation of the block, which does not appear. The map made by Henry, as far as appears, was never acknowledged by Lownsdale, or the defendants, to be correct, and was simply evidence which plaintiff made for itself, and should not have been admitted. The next question presented is, did the court below err in refusing to instruct the jury, that a dedication of the property in question to be binding, and to divert the title from the donor to the public, must have been since the 27th of September, 1850. I regard this question as settled by the case in 21 Howard, above, which case arose on the question of the dedication of the levee in this same city of Portland, and by these same proprietors of the town site, and was governed by the same considerations in this respect, as governs this case, where it was held that a dedication, made prior to the act of 27th September, 1850, was void for want of any title in the donors at the time of dedication, the title then being in the United States.

There is one other question in the assignment of errors, which is, can the city of Portland recover in this form of action, the possession of this property, provided, the same was dedicated as claimed % It is insisted that the city should go into chancery to vindicate the claim of the city corporation to the public squares of the city. The statutes, under which this suit was brought, provides in the first section “that any person having a valid subsisting interest in real property, and a right to the immediate possession thereof, may recover, &c., in this form of action.” It seems to me there can be no question but the corporate authorities of the city of Portland are the proper possessors of its public squares, and may maintain suit for the recovery thereof; and the allegations that the plaintiff has a fee in the premises is qualified by the statement in the complaint of the uses for which the city authorities claim the land.

Judgment is reversed, and new trial ordered.