
    J. P. O. Lownsdale v. The City of Portland.
    
      United States District Gourtfor the District of Oregon.—In Equity.—Bill for Injunction.
    
    Adjourned term op September Term,
    December, A. D. 1861.
    1. A dedication to public uses by an occupant of public lands in Oregon, prior to the 2'7th of September, 1850, does not bind or estop a subsequent occupant.
    2. The exhibition or publishing of a map of a town, with certain spaces marked as streets and public squares, is evidence of a dedication to public uses.
    3. Where a dedication to public uses is attempted to be established by proof of casual conversations and remarks by the proprietor, susceptible of various constructions, such proof should be closely scrutinized, and, unless in harmony with the admitted circumstances of the case, but little heeded.
    4. A dedication to public uses, is not to be presumed as against the owner of the land, but must be shown by acts and declarations of the proprietor of such a public and deliberate character, as makes it generally known, and not of doubtful intention.
    5. The adoption, by the corporate authorities, of a map showing that Front street is bounded by two parallel lines, and does not include the strip of land east of it, and between it and the Willamette River, is a recognition and solemn acknowledgment that said strip of land is not a part of said street, and binds said corporation and its successors.
    6. A release, without warranty or covenants, by persons having no estate in the land, but simply the possession, does not bind an after-acquired estate in the same lands.
   Deady, J.

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. On tlie 10th instant, the motion for an injunction was allowed until the further order of the court. On the 30th November, 1860, the defendants, Robbins and others, being the mayor, common council, recorder, and marshal of said city of Portland, answered the amended bill of the, complainant, and disclaimed any right, title, or interest or claim of such to the premises in controversy, for themselves as individuáis, and prayed to be dismissed. On the 3d of December, 1860, the city attorney filed an answer for the defendant, and moved to dissolve the injunction, which motion was disallowed. On the 22d of December, 1860, the defendant had leave to file an amended answer, which was then done. On the Yth of January, 1861, the complainant filed exceptions to the amended answer. On the 6th of February, 1861, on motion of the defendant, the hearing of the exception was continued until February 11. On last date, on motion of defendant, the hearing of exceptions continued until 11th of March, with leave to the defendant to file a second amended answer by said date, at its option. March 11th, second amended answer filed. Defendant' also filed three motions: first, to dismiss the bill, because the original was not verified before a proper officer, and the amended one not at all. Second, to dissolve the injunction, because allowed by the judge at chambers. Third, same prayer, because injunction allowed without reasonable notice to the defendant. .On the 30th March said motions were argued by counsel, and disallowed. On the 1st of April complainant filed exceptions to the second amended answer. On the 6th of May the complainant had leave to file amended exceptions. On the 8th of June, after argument by counsel, the first, second, third, fourth and sixth of the exceptions were allowed, and .the fifth disallowed. On the 1st of July the complainant filed a replication. At the September term following, the cause being on the docket for hearing, the defendant moved to strike the same from the docket, which motion was disallowed. Then, on motion of defendant, the cause was continued for hearing at the next adjourned term. At an adjourned term, on the 2d of December, tbe defendant moved that a jury be impannelled to try the issues, no testimony having yet been taken; and the court, unadvised as to the necessity thereof, the motion was disallowed. At the same term, on the 5th of December, the defendant moved to continue the cause, on account of an absent witness, which motion was disallowed. The testimony was then heard, and, on motion of defendant, with consent of complainant, the parties had a day to file written arguments, which was afterwards done. No oral arguments were heard.

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 law. That the defendant falsely alleges that the city of Portland has some right or title in and to said lots adverse to the complainant, and by means thereof the defendant makes said threats, and will execute them, unless restrained. That said defendant has not any right, title, or estate in said lots, or the appurtenances in any way, either at law or in equity. That if the defendant be permitted to execute said threats, said lots will be valueless to the complainant; that said improvements will be of no value, and that the complainant will suffer great and irreparable damage. That said defendant, by reason of the false and wrongful representations aforesaid, has caused many persons to suspect that complainant’s title is invalid, and have thereby impaired the value of said lots. That said lots are worth about twelve thousand dollars. That the defendant be required to answer, with a prayér for a perpetual injunction on the final hearing.

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 adjoining thereto at enhanced prices. That the people of Portland have always had the free use of the same, except where private claimants have wrongfully deprived them of the same. That D. H. Lownsdale has never paid any taxes on such lots for the support of the city government, or that of the county, State, or territory. That said D. H. L. claims to have acquired title to said lands since the dedication aforesaid. That the premises in controversy are within said dedication. That the complainant claims through said D. H. L., and therefore is barred from asserting any interest in said lots against said defendant. And for further answer the defendant says, that the corporation is authorized, by its charter, “to prevent and remove all nuisances; to prevent and remove all obstructions from the streets, cross and side-walks; to provide for the prevention and removal of all obstructions in the Willamette Liver, within the city, and the throwing therein of ballast or other things.” That the common council of said corporation, on the second day of August, 1860, passed an ordinance, entitled “ An ordinance to prevent and remove obstructions from Willamette Liver and the levee between Washington and Main streets.”

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 as to them individually. The bill is substantially against the corporation; and although somewhat ambiguous in this respect, it may be well doubted whether such disclaimer was really necessary. The second amended answer, although it speaks in the name of the persons of the corporation, and in part professes to be the individual answer of the recorder and marshal, will be considered by the court, as it has been treated by counsel, as the answer of the corporation.

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 2, I860, asserted the strip of land east of Front-street to he a public levee, and provided for removing all obstructions therefrom. (Ex. A. amend, ansi) That the common council, by an ordinance of Jun¿ 14,1861, repealed said last mentioned ordinance. (See Ex. D. p. 9, Ev.) That said council, by an ordinance of August 6,1861, asserted said strip of land to be private property, and authorized and permitted the holders thereof to build wharves, wharf-houses and docks thereon. (Ex. E.p. 9, Ev.) That the corporation assessed the premises in 1854 for city revenue, and that on the 10th of April, 1855, the same was paid to “ Thomas J. Holmes, city collector,” with the incidental expenses caused by the delay, by D. H. L. (Ex. G.p. 10, Ev.) That the same tax was collected for the year 1858 by “ Z. N. Stansbury, city collector,” and paid by D. H. L. for complainant. (Ex. H.p. 11, Ev.) That D. H. L., by a notice in the weekly Oregonian, on the 20th of April, 1851, and for six successive weeks thereafter, claimed the land east of Front-street as private property, and warned all persons from trespassing thereon. (Ex. I.p. 11, Ev.)

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 property. They had upon it a private wharf and slaughterhouse, used as such. (See Ev. Robinson, p. 8; Ev. of King, p. 11.) But if the fact were otherwise, and it appeared, beyond doubt, that P. and L. did make such dedication, it would be immaterial. They had nothing in the land to dedicate. They were mere occupants; held only the naked possession, which terminated with such occupancy, and could not, by any act of theirs, charge the land in the hands of any subsequent occupant with any easement or incumbrance whatever. This subject was fully discussed and decided in the opinion on the exceptions for impertinence. But the defendant goes further, and alleges that D. H. L., after he came into possession of the land claim, ratified and confirmed said dedication by general representations, and particular ones' to persons to whom he sold lots lying contiguous to said levee. This allegation is unsupported by any evidence whatever. From the fact that D. H. L., at the commencement of this suit, had been in possession of the claim only twelve years, and no proof being adduced of such confirmation, special and general representations, although, if made, they must be within the memory of many of the residents of that date, now living, and within convenient reach of the process of the court, I infer that the allegation is absolutely and unqualifiedly untrue, as well as unproved.

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 circumstances of the case, but little heeded. The security and certainty of the title to real estate are among the most important objects of the law in any civilized community. Around it the law has thrown certain solemnities and formalities, so that the fact may be known and read of all men. What a man once has he is not to be presumed to have parted with, but the fact must be shown beyond conjecture. And although, in the case of streets and public grounds in towns, from the nature of the case a dedication may be shown by acts resting on parol, they must be of such a public and deliberate character as makes them generally known, and not of doubtful intention. Of this character are the exhibition, or publishing of a map of the town, with certain spaces marked as streets or public squares.

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 parallel with the west side, making the street the usual width of the streets in the town, and allowing the streets that crossed it at right angles to extend to the water’s edge. After all this, in July of 1850, while a building was going up on one of these blocks east of Front-street, Parish commenced a suit against the builders to enjoin them. At this time, D. U. 1. was in San Francisco. He came home soon after and said to Chapman, who had been acting as his agent in his absence, that he had not intended to have that piece of ground luilt upon, but intended it for wharves. This is the only word of Lownsdale’s apart from the written release that the defendant has shown,pro or con., on the subject of the dedication. Does it imply that a dedication had been made, or make one? Certainly not, even when considered by itself; but when coupled with his continued acts of ownership and occupation, before or since, it would be preposterous so to conclude. The words are those which would naturally come from the owner of the land, who found that, in his absence, his agent had in some way authorized a house to he built upon it, while he had reserved it, or set it apart, for the purpose of building a wharf upon it. The words plainly imply a private ownership on the part of D. H. L., and an intention to have used it in a special manner, which he could not do if he had dedicated it to the public. However, in the language of the witness, Chapman, for the purpose of “ buying peace,” and getting rid of the suit which would disparage the reputation of the new town, and prevent its settlement, a compromise was made, by which Lownsdale, Coffin and Chapman agreed to release to the public .a certain portion of said strip of land, that is, between Maine and "Washington streets, on condition that said suit should be dismissed. This condition was never performed, and,, therefore, the release never took effect.

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. But the suit was not dismissed. It was kept hanging over the town, and retarding its growth, to the special injury of the releasors. "Whatever the reason was, it was no fault of Lownsdale, and. the public took nothing by the release. I have been induced to state what appears to be the history of the transaction which is now sought to be distorted into an absolute dedication, by keeping out of sight the release itself, and showing the general impression of the public, and the casual conduct of the releasors after it was made, and before it was not known that its conditions would not be complied with, more for the purpose of showing that the claim of the defendant is without any merit, than for the purpose of determining its legal consequences. The court has already decided, in the opinion on the exceptions, that if the release had been unconditional, being a mere quit-claim without covenants, from one having no title, nothing but the naked possession, it could not be set up against an after-acquired title from the United States. Upon this question, as a rule of law, there can be no doubt. The authorities go in one unbroken current to that effect. But not only has the defendant failed to prove a dedication to the public, as it was bound to do, but the evidence, taken together, shows quite conclusively that there never was any such dedication, or intention to make it, apart from the proceedings connected with the release, which have been disposed of. The map drawn by John Brady, from the surveys of Short, is in evidence. He recognizes and identifies, and says that it was made from his surveys. It is without date, but his surveys were made in the spring of 1850, and he says he saw the Brady map in Portland in 1850. From an inspection of that map, it plainly appears that Front-street is bounded by two parallel lines. That the strip of land between the east line of said street and the river is laid off into fractional blocks, and lots varying in depth with the meanderings of the river. This, of itself, is sufficient to decide the controversy, nothing being shown to the contrary. (See map drawn l>y John B. Brady accompanying Ex. ofEv.) But this is not all; the defendant, by its solemn act, adopted and recognized this map by resolution of the common council of April 29th, 1852. (See Ex. F. p. 9, Ev.) In the year 1854 the corporate authorities assessed the premises in controversy as private property, and collected the tax in 1855. The same thing was done in Í858. D. H. L. has always claimed this property as private property, and constantly asserted his right to it, by notice to the public, by sales, by such acts of actual occupation from time to time as it was susceptible of, and by payment of taxes to the defendant. And again, since the commencement of this suit, the defendant, by two different ordinances of its corporate authorities, have deliberately and solemnly admitted that the levee was private property. (See Ex. _Z>. and E. p. 9, Ev.) .

Williams, Page da- Gibbs, for complainant.'

Cartier ds Miiehel,. for defendant.

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.  