Oregon City v. Oregon & Cal. Railroad

Mr. Justice Bean, after stating the facts in the foregoing terms, delivered the opinion of the court. 1. McLoughlin never acquired title to the land in question, but his map or plat of Oregon City was recognized by the Government of the United States and the State of Oregon in confirming title to the purchasers from him, and by Harvey and wife after they had acquired the title, by selling and disposing of lots and blocks as laid out and platted thereon. It is well settled that, where the owner — 176 — of land exhibits a map or plat of a town thereon, showing lots, blocks, streets, and other public ways, and sells and makes deeds of conveyance by reference thereto, he thereby dedicates to the public the streets and public places shown thereon: Leland v. Portland, 2 Or. 46; Carter v. Portland, 4 Or. 339; Meier v. Portland Cable R. Co. 16 Or. 500 (19 Pac. 610, 1 L. R. A. 856); Hogue v. Albina, 20 Or. 182 (25 Pac. 386, 10 L. R. A. 673); Steel v. Portland, 23 Or. 176 (31 Pac. 479). When, therefore, the Harveys, after acquiring title from the State, without making any change or alteration in the McLoughlin map, sold and conveyed lots with reference thereto, they thereby ratified, approved, and dedicated to the public the streets, alleys, and public places shown thereon, as completely and fully as if they had themselves made and formally acknowledged the map. 2. The question, then, is whether the strip of land in controversy was, as shown by the McLoughlin map, dedicated to the public or reserved as private property. As to that portion on top of the bluff the case is .clear. In the donation as acknowledged by McLoughlin and recorded it is stated that it “is donated for a promenade for the inhabitants of Oregon City,” and on the map as made and filed by him and subsequently adopted by the Harveys that it is “donated for a public promenade.” There is therefore no room for controversy as to the intention of the donors so far as this particular part of land in controversy is concerned. As to that below the bluff, the case is not so clear. In our opinion, however, it is very apparent that it was designed and intended to be dedicated to the: public as a street or public way. It extends almost through the town north and south, dividing it into two parts, and is parallel with, and one tier of blocks distant from, Main Street. It is not inclosed by lines at either end, nor where it is intersected by cross-streets pr alleys. In short, it appears upon the map in such a manner as to be entirely in — 177 — consistent with any other theory than that it was intended as a street or public way, notwithstanding its easterly line follows the irregular course of the bluff, making a street of varying width, and that there appears on the map no word or mark which can be construed as naming the tract as a street. The cross-streets and alleys all open into it, and four lots on each block, from 20 to 29, inclusive, front upon it in the same manner as lots in other portions of the town front upon their streets. Two of the inside lots of each of these blocks are otherwise inaccessible from the public street. Unless it was intended as a street or way, there would be no connection between the upper and lower town, except over private property, or by a roundabout course. The fact that it is not named as a street is by no means conclusive evidence of a lack of intention to donate it as such: Arnold v. Weiker, 55 Kan. 510 (40 Pac. 901); Sanborn v. Chicago & N. W. R. Co. 16 Wis. 21; Weisbrod v. Chicago & N. W. R. Co. 21 Wis. 609; Indianapolis v. Kingsbury, 101 Ind. 200 (51 Am. Rep. 749). Indeed, the presumption is that, as it was not expressly reserved for private purposes, it was intended for public use. “If the owner of the soil,” says Mr. Angelí, “throws open a passage, and neither marks, by any visible distinction, that he means to preserve all his rights over it, nor exclude persons from passing through it, by positive prohibition, he shall be presumed to have dedicated it to the public”: Angelí, Highways (3 ed.), § 143. And Mr. Elliott says: “We think it a safe general rule to resolve doubts in such case against the donor, and, within reasonable limits, to construe the dedication so as to benefit the public, rather than the donor. Naturally, the presumption is that one who records a plat, and marks upon it spaces that appear to form no part of any platted lots, dedicates the land represented by the spaces thus excluded to a public use”: Elliott, Roads & — 178 — Streets (2d ed.), § 119. It must be presumed, therefore, that it was the intention of McLoughlin and the Harveys to donate the strip of land in controversy to the public. This presumption is confirmed by the fact that the space below the bluff immediately south of and adjoining that in controversy and the space between Water Street and the river are expressly reserved as private property, thus indicating an intention to donate all other vacant spaces shown on the map to the public. This seems also to have been the understanding of Harvey, because he stated to the witnesses Apperson' and Ganong that the space below the bluff was a public highway. 3. It may be argued that neither the dedication of the promenade on the bluff nor that of the strip of land below it had been accepted by the city prior to the execution of the deeds to the defendant from the Leahys, because the former has never been improved nor the latter opened to wagon and carriage travel lengthwise. No formal acceptance of the dedication was necessary. The record shows that ever since the town has been laid out the public have uninterruptedly used the upper tract for a promenade or pleasure ground, and the lower as a passageway to reach stairs or steps which the citizens of the town have constructed, leading from the lower to the upper town, and that the plaintiff municipality has exercised authority over the property by passing resolutions and ordinances concerning the same and by granting a right of way to the defendant and permitting it to place its depot thereon. The fact that the city has not heretofore deemed it wise or prudent to spend money in improving or beautifying the promenade or in removing the. disintegrated rock below the bluff so that the space adjoining it can be used for wagon and carriage travel, cannot be taken as evidence of a failure to accept the dedication. The dedication is binding on the donors and their successors in interest, and can only be — 179 — revoked by them when the purpose for which it was made has entirely failed. “It would be unreasonable and unjust,” says Mr. Chief Justice Thayer, “to allow a town proprietor to revoke the dedication of any street indicated upon the plat of the town fox the reason that the corporate authorities of the town had not specially accepted it as a street, nor the public actually entered upon and used it as such. The proprietor proposed to the public in the outset that the ground represented as the street should forever remain open to be used for that purpose, and upon a sale of lots and blocks by reference to such plats he precluded himself from making any other or different disposition of it”: Meier v. Portland Cable R. Co. 16 Or. 500, 505 (19 Pac. 613, 1 L. R. A. 856). We are of the opinion, therefore, that there was a valid dedication of the land in controversy to the public by the Harveys and their predecessors in interest—the upper part for a public promenade, and the lower for a street or way; and that the rights of the defendant acquired from the Leahys are subject thereto. . 4. Nor has the defendant acquired a title to the property, or any part thereof, by adverse possession. Its entry was by permission and acquiescence of the city, and, having so entered and occupied, it cannot claim that its occupancy has been adverse to the city, or that it is now entitled to exclude the public from the use of the property: Indianapolis R. Co. v. Ross, 47 Ind. 25. By the decree of the court below, however, the defendant is confined in its use of the street to that portion now occupied by its “ main track, depot building, roadbed, water tank, switches, and side tracks.” This, in effect, determines its rights under the ordinances of the city—a quéstion not presented by the pleadings nor discussed in the briefs. There never having been, so far as the record discloses, any dispute between the city and the defendant on this point, it would be manifestly unwise to attempt to — 180 — construe the ordinances or to define the defendant’s rights thereunder at this time. The decree of the court below will therefore he modified in this respect, and in all others affirmed. Modified.