1 Or. 59 | Or. | 1853
In 1815, F.- W. Pettigrove and A. L. Lovejoy, as joint owners, laid out the town of Portland, and caused a plat to be made exhibiting blocks of lots, designated by numbers, with blank spaces between them, which coalesced with each other at their intersections, and with the surrounding blank spaces at the sides of the plat. Near the first row of blocks the Willamette Fiver is laid down at such a distance as to leave a narrow strip between, which, owing to the meanders of the river, is of variable width, being in some places narrower, and in others wider, than the blank spaces between the rows of blocks. The front row of blocks is, at the lower end, deflected from a right line, to conform to the bend of the river, by which means it continues of the same width as the intervals between the blocks, instead of narrowing to a point as it otherwise would. The sizes of the lots and blocks, and the width of these several spaces, are not
TJpon this strip of ground, between the river and the front row of blocks, the obstructions are being erected. The proprietors claim that the street in front does not cover the entire strip, but leaves a narrow margin along the bank, not dedicated to the public, and on which they have sold lots and erected buildings. Their right is contested by the citizens, who claim the entire strip as public ground; and whether it be public or private property, is the question to be decided.
TJpon the face of the plat there is the same evidence that this strip is a street, as that those spaces are streets which separate the rows of blocks. The cross streets terminate at its inner edge, and do not traverse it and terminate at the river; and if it be not a street, then the continuity of the streets is broken, and half the lots fronting on this strip are inaccessible without passing over private property. Indeed, it is admitted to be a street, and its eastern boundary alone is disputed. But the plat carries on its face no evidence of any other boundary than the river. As before stated, neither the width of the strip, nor the width of a street to be taken out of it, is stated ; nor is any line drawn upon it between the front lots and the water line of the river ; nor is any other intimation given that the entire strip is not as much a street as the entire strip between any two rows of blocks. It is not unreasonably wide for the quay of a commercial town, but on the whole, rather narrow for that purpose, being, in much of its extent, narrower, and but for a slight curve in the river, would be nowhere wider than the ordinary streets of the town. And yet, from its location, it must necessarily be much more used than any other, for the carting of goods, and for the ordinary uses of city streets; and besides, it must be the receptacle of all the goods imported and exported by the
The Supreme Court of the United States, in passing upon a similar case which arose in Pittsburg, appears to have considered such a plat sufficient proof that the street extended to the river. They say “ there is nothing on the plat which shows any limit to the width of "Water-street, short of the river on the south. If a line had been drawn around its southern limit, there would have been great force in the argument, that the ground between such line, and the water was reserved by the proprietors.” (Barclay v. Howell, 6 Peters, 498.) And the "Wellsville case was decided the other way by the Supreme Court of Ohio, because there was such a line, as well as a natural boundary, namely, a precipitous bluff, along the brink of which the outer line of the street was drawn upon the face of the plat. The street was bounded on the plat by two parallel straight lines, and in the open space, between them was written, “ width, 66 feet;” and the strip between this street, thus marked, and the river, from the top of the bluff to the water, was from 150 to 200 feet; nearly equal to a row of blocks in Portland. It was, therefore, evident, from the plat and topography of the place, that the street was confined to the level ground and the top of the bluff; and there being no other evidence of dedication, but rather the contrary, the strip was held to be private property. (McLaughlin v. Stephens, 18 Ohio, 94.) In Louisiana, where
Before dismissing the case as made by the plat, it is proper to notice a document which is relied on as a limitation of the street to a part only of this strip. Only a copy of the plat is in evidence admitted by both parties to be correct, except as enlarged by subsequent additions. The absence of the original, which was made for the proprietors by Brown, the surveyor, is unaccounted for. The document referred to is upon a sheet exactly like that on which the plat is copied; and the back of the plat is placed against the face of the document, and the two are pasted together at the upper edge, so as to appear like a single sheet, and so that the document, if its presence were suspected, or the duplication of the sheet discovered, is to be found by raising the plat at its lower edge. The document is in tabular form. The columns are headed, respectively, “To whom sold,” “ When sold,” “No. of block.” In this tabular exhibit of sales one entry only is made, namely: “ William Warren, January 1st, 1848, Lot 4, Block 21.” As a caption, over the top of this table of sales is written: “ All lots are 50 by 100 feet. Water-street, in front of blocks Nos. 4 and 5, is 30 feet wide, in front of blocks Nos. 1 and 8, is 60 feet wide. All other streets are 60 feet wide.”
When and by whom this copy of the plat and this private document were made, does not appear. The plat shows more
The witness, Pettigrove, after looking at this copy, states the size of the lots and width of the streets to the same effect, except that Pront-street, as he calls it, is 30 or 35 feet in front of blocks 4 and 5; and he adds, “ As will be seen by the original plat.” But the absence of that original not being explained, its contents cannot be insinuated in this illegitimate, unsatisfactory and suspicious mode; and if it could, the memory of this witness, if not his veracity, would be an unsafe foundation for a solemn decree, as will presently be seen.
But the documentary evidence is not the only nor the principal basis of the plaintiff’s claim. He insists that the proprietors, in disregard of plats, lines, memorandums and dimensions, did, in fact, set off this ground for a street and levee; and he claims to have proved this by witnesses to the original act of dedication, and to the subsequent conduct and declarations of the proprietors, repeatedly re-affirming it, and to the general belief and expectation of the citizens, thereby knowingly and intentionally produced, and to their public and notorious use of the ground for the purpose of the dedication in pursuance of that belief. The following is the substance of the testimony relied upon, so far as it relates to the acts and declarations of the original proprietors, lovejoy laid out the town jointly with Pettigrove. Commenced near where the post-office stood in 1852, and ran down the river
Here is the testimony of one of those who laid out the town, and not contradicted by the other, of an express setting apart of this ground for the use alleged. Pettigrove does not say it was not set apart, but merely that he does not remember having said so. Six witnesses, however, testify that he made that statement on more than that number of different occasions. His memory, saying nothing of his veracity, cannot, therefore, be trusted. The defendants brought this witness from Puget Sound, where his deposition could have been taken quite as well, if the facts, as they lay in his memory, were desired, and where he could have testified free from suspicion, in order to take his deposition under their personal superintendence. And yet, after that unusual proceeding, for which he declared he should be well paid, and after opportunity for private conference, they omitted to ask him the question whether, in laying off the town, “ All from the street to the river was to remain as public property, open and free;” though the object of that long journey was to disprove that very fact, to which Lovejoy had already testified, and of which he was the only remaining witness. No reason can be imagined for this omission, except the knowledge obtained by those interviews, that, with all his frailties, he could not be trusted to. answer that decisive question. It is enough, however, that Lovejoy swears positively to the act of setting it off, and the purpose for which it was done, in which act and intent both proprietors concurred; none of which is denied by Pettigrove; and that this original act of
And, without any such original dedication, the abandonment of this land, from 1845 to 1850, to the free and apparently rightful use of the public, of itself, under the circumstances, estops the proprietors from re-asserting their ownership, and render the documentary evidence, and the evidence of express dedication, of little consequence; for he who induces the public to believe his land a gift, or knowingly permits them to use and treat it as their own, until they have so accustomed themselves, and adjusted their property and accommodated their business to it, that they cannot, without detriment, be dispossessed, confers a right which he can no more resume without wrong, than he can rightfully seize what was acquired otherwise than by his gift. Turjpe est fidem fallere, “ It is base to disappoint the expectations we have authorized,” is the key-note of the common and the civil law, of which equity is compounded. It is a fundamental principle of natural justice, pervading all systems of jurisprudence, and common to all countries where man is civilized. (Rugby Charity v. Merriweather, 11 East, 372, note; Jarvis v. Dean, 3 Bingham, 447; Gamble v. St. Louis, 12 Missouri, 617.)
In the St. Louis Case, one who had left open an alley through his ground for his private use, and allowed the public also to use it and treat it as a street, for two years, without objection, was held to have dedicated it to the use of the public as a highway, and was denied the right to re-assert his title. No particular length of time is necessary to establish an abandonment of land to the public. It is sufficient if it be used by the public, with the assent of the
The concurrence of the testimony with the plat produces a degree of certainty, unusual to litigated cases, that the proprietorship came to the present owners incumbered with the public easement. Of this they had notice, both actual and constructive; for it was open and notorious; and the testimony, which is too voluminous for quotation, fully shows that they recognised and respected the public right, until, after much importunity from some of the witnesses, and, doubtless, others, who had an itching palm for this attractive property, they yielded, one of them after another, to the desire and hope of reclaiming the tempting prize. The testimony of Carter shows that he succeeded in turning the thoughts of Pettigrove wistfully in that direction. The same appliances were brought to bear upon his successors. It was the work of time for the poison to produce its effect; and then the plat, with its front street bounded by the river, had been so long before the public eye, and the public had so long used the whole street accordingly, in the full belief of their right, and the proprietors had so often encouraged that belief by declaring it destined for that use, that the time was passed when it could be rightfully or successfully reclaimed, even if it were not, as Lovejoy proves it was, originally so intended.
The wharf, on which stress is laid, and the slaughter-house, which Pettigrove explained as temporary, are not evidence of private property against such clear proofs of dedication. Even the sale of lots and the erection of permanent buildings have been held not to disprove a dedication otherwise established, as appears by the Cincinnati Case, above cited, and the Lebanon Case, 9 Ohio, 80. Neither is the state of titles in Portland material. In that respect, it is also identical with the Cincinnati Case, where the title was in the United States, who had bargained it to Symmes, and he to the town
We have passed over the question whether it was strictly regular for the plaintiff to bring this suit in his own name. If the bill had been demurred to, or the objection taken by the answer, perhaps an amendment would have obviated any real or supposed defect, and so brought the merits to judgment. As the parties appear to have waived technicalities, and to have sought the opinion of the court upon the main question, that alone has received attention.
We have also disregarded the numerous objections to testimony, found scattered through the depositions. A motion to suppress depositions, or parts of depositions, must, in equity, precede the hearing, as at law it must precede the swearing of the jury; because, .if suppressed, it may be necessary to continue the cause, or take other steps to replace the evidence thus excluded.
The ground being adjudged a highway and public levee, it becomes a question what order should be made respecting the several buildings erected upon it pending this litigation.
That they were wrongfully placed there, in violation of the injunction, is evident. Even if erected innocently, their removal would be the legitimate result of this decision, unless the public should suffer them to remain. But they occupy an inconsiderable part of a long line of front, leaving above, below and between them abundant space for the public accommodation, both for the present and for an indefinite future. Their removal is not to be ordered by way of retribution, for equity scorns revenge; and it cannot be done at present on the ground of necessity, for their place is not required for the only use to which it can be lawfully devoted.
By the Spanish law, if one erects houses on public ground they must be pulled down, “ and if the corporation choose to retain them for their own use, they may do so.” And Domat says, “If it should happen that buildings should be constructed on a public square, they might either be demolished, if found convenient, or suffered to stand, on condition of pay
A decree will, therefore, be entered, declaring the public right, and making the injunction perpetual, and authorizing the city to remove all fences and other obstructions except the permanent buildings, which may remain until the further order of the District Court; to obtain which order, the city may apply by petition for the benefit of this decree, and for further directions whenever the interests of the public shall require it.
DECREE.
This cause came on to be heard upon the bill of Complaint, and the several answers thereto, and the replications, exhibits and testimony, and was argued by counsel. And the court finds that "Water-street, in the said city of Portland, is bounded on the east by the "Willamette River, from block eight on the south, including the street on the south side of said block, to the claim of John H. Couch on the north; and that the defendants, at the commencement of this suit, were about to obstruct said street, to the special injury of the plaintiff, as stated in the bill. Therefore, it is decreed that the defendants, and all persons claiming under any of them, be, and they hereby are perpetually enjoined from erecting buildings upon, or otherwise obstructing the said street; and that the