15 F. Cas. 1036 | D. Or. | 1861
The original bill in this canse was filed on the 9th day of November, 1860. On the same day the parties appeared before the judge at chambers, and the complainant moved for an injunction. An order was made postponing the consideration of the motion until the 10th instant, and allowing the complainant to file an amended bill, which was then done, and restraining the defendant, according to the prayer of the bill, until the further hearing of the motion.
The questions to be decided arise upon the amended bill, and such portions of the second amended answer as remains after the allowance of the exceptions for impertinence. These are substantially as follows: The amended bill alleges that the complainant is a citizen of Indiana; that he is the legal owner, and entitled to the exclusive possession of lots one, two and three, in block seventy-four, as described in the recorded plat of the city of Portland. That he has been seized in fee of the same, and had possession thereof since about the first day of January, 1853, and that he is now entitled to the quiet and exclusive possession thereof. That in pursuance of a long contemplated purpose, about the first of July “ last past,” at a great expense, he caused piles to be driven, and the framework for certain wharves and wharf-houses to be erected on said lots. That the value of said improvements is about one thousand dollars. That said improvements were made without objection or hindrance on the part of defendant. That afterwards, and while complainant was causing said improvements to be finished, the city of Portland, her common council, recorder and marshal, wrongfully and fraudulently conspired together to prevent the completion of said wharves and wharf-houses. That the defendant, by its corporate authorities, have threatened to remove, tear down and destroy the improvements aforementioned; that the defendant has attempted to execute said threats, by arresting the agents and employees of complainant engaged in making said improvements, and now hold them in custody without authority of
The second amended answer avers, that the complainant is not the legal owner, and entitled to the sole absolute and exclusive possession of said lots. That he is not seized thereof in fee, and that he has no right, title or interest whatever, legal or equitable, to said lots. That complainant has not been in the possession of said lots since 1853 ; that he has never been in the possession of them, and is not entitled to the possession of them, or any part thereof. What is denominated the “ fifth count,” in the said answer, avers, that in the year 1845, the present site of Portland was laid off in blocks, lots, streets, squares, and a levee, by Francis W. Pettigrove and Abbott L. Lovejoy; that said blocks, lots, streets, squares and levee were dedicated to the public by said Pettigrove and Lovejoy, forever. That the people of said town did accept such dedication, and occupy and possess the same up to the.year 1849, when the said P. and L. transferred all their right and title to the land claim to Daniel H. Lownsdale. That said Daniel H. Lownsdale recognised and affirmed said dedication, and did particularly represent and state, that what is now called the levee, and then Water street, was public property, and, by reason of such representations, did sell lots
O. Lisley, the recorder, for himself, says, that by virtue of the provisions of that ordinance, he issued a warrant for the arrest of the agents and employees of the complainant engaged in erecting said improvement on said lots.
James H. Lappeus, the marshal, for himself, says, that by virtue of said warrant, he did arrest and bring before the recorder the agents and employees aforesaid. A copy of the ordinance of August 2, 1860, and a printed copy of the city charter, without date, are annexed to the second amended answer, and marked Exhibits A. and L. respectively.
To this second amended answer, or so much ¡thereof as exceptions for impertinence were not taken and allowed to, there is a general replication.
In considering this cause on the pleadings, the court will consider the disclaimer of the mayor and others, the common council, recorder and marshal, as determining the controversy
Certain facts appear from the pleadings and proofs, which it will be well to state in their chronological order, before investigating those that _ are controverted and about which doubts may exist. These are, that some time in the year 1845, Pettigrove and Lovejoy took up the land claim upon which the town of Portland is now built, and occupied it until the fall of 1848. That the claim comprised the usual amount of such claims, 640 acres, and that during the time P. and L. occupied it, they laid out some portiona of it in blocks, lots and streets. That P. and L. held the possession of the claim under what were called the land laws of the provisional government of Oregon' the title being in the United States, That in the month of September,'-1848, said P. and L. abandoned or transferred their possession to Daniel H. Lownsdale. That some time in 1849, Chapman and Coffin became interested in the possession with D. H. L. That said D. H. L., under the donation act of 27th of September, 1850, became a settler upon the one-third of said land claim, including the premises in controversy, and by virtue of the necessary residence and cultivation thereon, as evidenced by the donation certificate, (Ex. A. p. 1, Ev.) became the legal owner thereof. That said D. H. L. and wife did convey to complainant lots one and two in block seventy-foux-, by deed executed on the first day of January, 1853 ; also, lot three in said block, by deed executed on the twentieth day of Septembci’, 1851. (Ex. B. and O.p. 1 and 2, Ev.) That on the 29th day of April, 1852, the common council, by resolution, adopted the plot of the city, “ drawn by John Brady, as the city plot.” (Ex. F.p. 9, Ev.) That the common council, by an ordinance of August
The complainant claims through D. H. i. by a paper title, and the defendant claims of the same person by a dedication to public uses. Both parties admit the title of D. H. L. The paper title of the complainant has been shown beyond question. He is shown to have been in the actual possession of the premises at the commencement of this suit, and from the July previous. To what extent, if any, the premises were actually occupied by him before this time, does not distinctly appear; but the title draws to it the possession, and he would be presumed to have it, if material to his rights, unless the contrary were shown.
The defendant alleges that the dedication was originally made by P. and L., but the allegation is not supported by any evidence whatever; but, on the contrary, the evidence, so far as it shows the condition of this property, called the levee, during the time it- was occupied by P. and L., indicates that it was held and occupied by them as private pro
This disposes of the question so far as it strictly arises on the pleadings; but on the hearing, an attempt was made to show a special and original dedication by D. TL L., jointly with Chapman and Coffin, whom he had admitted into the possession with him. In considering the effect of this evidence, it may be well to premise, that the original title being shown and admitted to be in D. H. L., that the burden ■of proof rests on the defendant to show" a dedication. It must be clear and satisfactory; and where it consists of casual conversations and remarks, frequently indifferent in themselves, and susceptible of various constructions and colorings, owing to the prepossessions of the witness, it should be closely scrutinized, and, unless in harmony with the admitted circum
But to recur to this attempt to show an original dedication on the part of I). H. L. It is too apparent to be doubted, that this was an indirect attempt on the part of the defendant to avail itself of the release, which was decided to be invalid on the exceptions to that portion of the answer for impertinence. The only witnesses, Chapman and Norris, that speak to this alleged dedication in the summer of 1850, upon inquiry, say, that it was the controversy which resulted in the release that they spoke of. Now, the nature of that transaction appears to have been this. D. H. L., from the time of his occupation of the claim up to July, 1850, appears to have been in the undisputed possession of the strip of land east of Front-street, now called the levee, as much so as any other part of the claim undisposed of. No one has been produced ■who ever heard even pf any dedication of it by any one,> let alone him, to the public. In the fall of 1848 he is shown to have kept a private wharf upon it, and charged and received wharfage. The witness who attended the whai’f swears to it. It was afterwards carried off by accident. In April, 1850, D. H. L. had the town surveyed by Short. This strip of land was then laid off into fractional blocks and lots, and openly sold to the public. By this survey, Front-street, instead of extending to the river, was bounded on the east by a line
From that time until the fall term of the court in which the suit was pending, and could be dismissed, the understanding of all parties was, doubtless, that, according to the terms of that compromise, the above-mentioned portion of said strip of land was to be public. This period was about a month.
To conclude, the complainant is the legal owner of the premises; the defendant did, and was, threatening and- proceeding to do the trespasses complained of, without right or authority of law. So far as appears from the proofs and the pleadings the land was never dedicated to the public by any one, much less the grantor of the complainant. A decree will be rendered, perpetually enjoining the city of Portland, or its corporate authorities, of whatever name or hind, from asserting any right, title or interest in .said premises, or in any way trespassing-upon them-, or molesting the complainant in the possession or- occupation thereof, and that he recovers his costs of the defendant.