Tooze v. Willamette Valley Southern Ry. Co.

Mr. Justice Burnett delivered the opinion of the court. It appears from the record and is a matter of general history of the state that Dr. John McLoughlin, a British subject, settled upon what is known as the Oregon City claim prior to the passage of the act of September 27, 1850, commonly known as the “Donation Law.” "While he occupied that claim, which includes all the premises involved herein, he platted a portion of it into lots, blocks, alleys and streets. On account of his nationality he was not qualified to take under the donation law. Congress, however, confirmed to his purchasers the titles which he undertook to convey, and patents were accordingly issued by the general government describing each grant by the plat. 1. It appears that the high-water line of the Willamette River is upon the western part of the platted premises here in question, and that Water Street is entirely upon the space between high and low water mark. After the admission of the state into the Union by the legislation of 1874 and 1876, described by Mr. Justice Bean in Pacific Elevator Co. v. Portland, 65 Or. 349 (133 Pac. 72, 46 L. R. A. (N. S.) 363), the state granted to upland owners along the Willamette River all the property of the state in land lying between ordinary high and low water lines on the Willamette River. This grant, of course, was subject to the previous action of the general government in recognizing Dr. McLoughlin’s plat. It seems plain that the congressional action on this subject and the conduct of the government authorities in pursuance thereof amounted [161] to an adoption of the McLoughlin plat, with the consequent dedication to the public of the streets delineated thereon. The plaintiff has become the owner in fee of the block and land mentioned by mesne conveyances from the grantees of the government. By virtue of the grant from the state he became the owner of the space included between high and low water mark in front of the municipal subdivision mentioned, subject, indeed, to the use thereof as a street, as portrayed upon the McLoughlin map. 2. The principal objection pressed upon us at the argument against plaintiff’s claim is that he must utterly fail in his contention because in his complaint he asserts himself to be the absolute owner in fee of all the property, not only that included within the block lines, but also that to the west of the same to low-water mark of the river; while in his reply he practically concedes that a street exists between the plat lines and low-water mark of the river. The position of the defendant is that the plaintiff must recover on the strength of his complaint, in which pleading alone must his cause of action be stated, and that the reply is a shifting of his ground, or, in other words, a departure. We do not so consider the pleadings. The plaintiff describes a situation upon which the court may draw the conclusion as to his rights. While he may have failed to prove the allegations of his complaint to the utmost limit, yet he has established a substantial portion of them calling for relief according to the prayer of the bill. It is analogous to a case where a plaintiff might sue upon a claim of $1,000 for services rendered and would be able to prove only $500 worth. The relief claimed here is the same in both instances, notwithstanding the defendant’s assertion that one cause [162] of suit is stated in the complaint and another in the reply. The defendant does not appear to have been misled in any manner by the pleadings of the plaintiff. 3, 4. The latter occupies the attitude of a land owner complaining of a threatened trespass upon his rights appurtenant to his holding. His title to the shore of the river between high and low water mark by virtue of the state legislation mentioned has been repeatedly recognized as valid in such cases as Pacific Elevator Co. v. Portland, 65 Or. 349 (133 Pac. 72, 46 L. R. A. (N. S.) 363), and the authorities cited in that exhaustive opinion. Considering the matter thoroughly, we conclude that the property on which the defendant intends to construct its trestle is a street. The public has an easement there for the right of passage as in all other streets. The fee of the land is in the plaintiff. Different from other members of the public, he has a right to use that street to gain access to hispther property mentioned. It is at least an appurtenance mentioned in his complaint. It is a valuable right of which he cannot be deprived by the power of eminent domain until his damages are first constitutionally determined: Article I, Section 18, Article XI, Section 4, of the Constitution; McQuaid v. Portland & Vancouver Ry. Co., 18 Or. 237 (22 Pac. 899, 40 Am. & Eng. Ry. Cas. 308). Injunction will lie to prevent the erection of a permanent structure in a street materially impeding its use as a street: Bernard v. Willamette Box & Lumber Co., 64 Or. 223 (129 Pac. 1039); Willamette Iron Works v. Oregon R. & N. Co., 26 Or. 224 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88). The authority granted by the ordinance of the common council of Oregon City protects the company from the consequences of violating public rights in the street, but it cannot and does not affect private rights con [163] nected therewith: Sandstrom v. Oregon W. R. & N. Co., 75 Or. 159 (146 Pac. 803). It cannot be admitted that any institution possessing the right of eminent domain can invade private rights and property without first regularly proceeding to assess the damages and either paying or securing the same under the provisions of our state Constitution. It is urged that the plaintiff does not make any present use of the street worth naming. It may be true that his rights there and the enjoyment of the same are small, but they belong to him and are his as much as the most important piece of property. He is as much entitled to the protection of his small rights as the plaintiffs in Willamette Iron Works v. Oregon R. & N. Co., 26 Or. 224 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88), and Pacific Elevator Co. v. Portland, 65 Or. 349 (133 Pac. 72, 46 L. R. A. (N. S.) 363). It may be that a jury would give the plaintiff small damages if he were made a defendant at the suit of the defendant here in an action to condemn the right of way on the street in front of his premises. With that, however, we have no concern. It is plain that the defendant is about to interfere seriously with the plaintiff’s enjoyment of the land over which it intends to construct its railway, although the same may be a street in which he holds the ultimate fee subject to the public easement therein. . The decree of the Circuit Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. Rehearing Denied. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.