Steel v. City of Portland

Bean, J. This is a suit to quiet title to a block of land in Holladay’s Addition to East Portland, now in the consolidated city of Portland. A decree was rendered by the court below for the defendant upon the ground that the land in question had been dedicated to the public for use as a public park, and from this decree the plaintiff has appealed. The facts as we gather them from the evidence are, that the land in question is a portion of a tract of 241.94 acres, purchased by Ben Holladay in his lifetime of Jacob Wheeler and wife, and by him conveyed to George W. Weidler as trustee on the sixth day of August, 1870. Weidler had no beneficial interest in the land or any part [182] thereof, but held the same only as trustee for Holladay, subject to his orders, and to enable him to convey the same without his wife joining in the deed, she being then absent in Europe. Sometime prior to the seventeenth day of December, 1870, Holladay caused the entire tract of land to be surveyed, platted, and laid out in lots, blocks, and streets, under the name and style of Holladay’s Addition to the city of Portland, and caused to be made and executed by Weidler, on December 17, 1870, a plat 6f said addition, which was duly recorded in the records of Multnomah County on the same day. After-wards, and on the first day of February, 1871, Weidler, at Holladay’s request, and being joined therein by John H. Mitchell and Samuel M. Smith, made, executed, and acknowledged a second plat or map of said addition, intended to be in lieu of and to take the place of the former plat, which last-mentioned plat is for the purposes of this case identically the same as the former one, and was duly recorded on the first day of February, 1871. Upon each of these plats the land in controversy is reprerented as a solid block of land, equal in size to four ordinary blocks with intervening streets, and is bounded by Eleventh, Thirteenth, and Multnomah Streets and Holladay Avenue, and is itself marked “Park.” Soon after the making and recording of these plats or maps, Holladay caused the land thereon marked “Park” to be enclosed with 'a substantial fence, and continued to maintain and keep the same in repair until in the year 1888 or 1884, when the city of East Portland, its officers and agents, took possession of said property, and it and its successor in interest, the city of Portland, has continuously since that time cared for and improved the same as a public park. After the making and recording of the plats referred to, Holladay sold, and caused Weidler to convey, divers and sundry lots and blocks with reference to said plat, and among which were all the lots and blocks fronting and abutting on the streets bounding said park. The contention of plaintiff is, that the making and [183] filing of the plat of Holladay’s Addition, with the land in question marked and designated thereon as “Park,” followed by conveyance of lots by reference thereto, did not constitute a dedication of the land to the use of the public as a public park; and if there was any dedication the right to use it as a public park became barred by the statute of limitation before Holladay died. At the argument it was claimed by plaintiffs counsel that neither of the maps or plats was acknowledged in the manner provided by statute, but we regard that question as wholly immaterial in this case, because it has repeatedly been held by this court, and the law is well settled, that where the owner of land lays out and establishes a town and makes and exhibits a map or plan thereof, with lots, blocks, and streets marked thereon, and sells and conveys lots by reference to such plan or map, he thereby dedicates to the public the streets and public places thereon; and if upon such plan he has designated a space or block as a public park, such space or block is as fully dedicated to public use as are the streets delineated thereon. The sale and conveyance of lots according to such plan or map implies a covenant that the streets and other Dublic places designated shall never be appropriated by the owner to a use inconsistent with that represented by the map upon the faith of which the lots are sold: Carter v. City of Portland, 4 Or. 339; Meier v. Portland Cable Ry. Co. 16 Or. 500 (1 L. R. A. 856; 19 Pac. Rep. 610); Hogue v. City of Albina, 20 Or. 182 (25 Pac. Rep. 386; 10 L. R. A. 673). There is no difference in the principles applicable to the dedication of public streets and public squares or parks; in each case the dedication is to be considered with reference to the use to which the property may be applied or the purpose for which the dedication is made, and this may be ascertained by the designation which the owner gives to land upon the map or plat, whether he calls it a street, square, or park. It is of no consequence whether the map or plan in this case was properly executed or not if the land in question is sufficiently des [184] ignated thereon as a public park, as we think it is, for the sale and conveyance by Holladay’s direction of lots and blocks by reference to such plan operated as an irrevocable dedication of the land to the public for use as a park. In England the word park is ordinarily applied to an enclosure upon a man’s own land, -and signifies that the land enclosed is the private ground of the proprietor: 2 Bla. Com. 38. And so too in this country, a man may enclose and ornament his land and call it a park without giving to the public any right to use it as a public place, because there is no semblance of dedication. In such case the meaning of the word is determined by the circumstances surrounding its use; but when it is applied to a piece or block of land in a city or town, and so marked and designated on the map or plan, the circumstances are such as to settle its meaning as a place for the resort of the public for recreation or enjoyment. The word “Park,” written upon a block of land represented upon a map or plan of a city or town, is as significant of a dedication, and the use to which the land is intended to be applied, as the word “street,” written on such plan. The popular and natural meaning of the term when so used is a piece of ground set apart for the enjoyment, comfort, and recreation of the inhabitants of the city or town in which it is located, and this is so whether the word be used alone or with some qualifying word, as “Hyde Park,” “Regent Park,” or “Central Park”: 17 Am. &. Eng. Enc. Law, 407; Price v. Inhabitants of Plainfield, 40 N. J. Law, 608; Trustees of M. E. Church v. Hoboken, 33 N. J. Law, 13 (97 Am. Dec. 696); Archer v. Salinas City, 93 Cal. 43 (28 Pac. Rep. 839). We are therefore all agreed that when Holladay caused the land in controversy to be marked and designated on the plan or map of Holladay’s Addition as “Park,” and then sold and caused to be conveyed lots and blocks by reference to such plan, it operated as a dedication of the land for a [185] public park, and his successor in interest cannot now set up, as against the public, a different intent. Note.— The authorities on the question of whether the statute of limitations will run in such a case are collected and classified in the decisions of Fort Smith v. MelMben, 48 Am. Rep. 19, and Oit v. O’Brien, 14 Am. St. Rep. 287. — Repostes. The other question presented requires but a brief notice. Assuming that the statute of limitations will run as against the public in a case of this character, which we neither affirm nor deny, a careful examination of the entire evidence in this case has satisfied us that Holladay never at any time held adverse possession of the land in question for the purpose or with the intent of claiming the fee, but that he enclosed it for the purpose of protecting the trees and shrubbery growing thereon so that it might become, when the surrounding property should be occupied and improved, what he intended and designed it to be, — a public park. The decree of the court below is therefore affirmed.