City of Portland v. Whittle

Upton, J. instructed as follows: If you find that the whole premises enclosed, including blocks 53 and 54 and the space between them, marked on the map “Main street,” is one public square, not subject to a right of way from east to west through the middle of it, the plaintiff is entitled to a verdict. If you find there are two public squares within the enclosure, and that Main street is a public street, leading through the premises in question, your verdict should be in favor of the defendant. When a man or company of men own land, and lay it off into blocks and streets, and sell lots abutting on a street so laid off, so that the street is a convenience to the purchasers of the lots, those acts amount to a dedication of the land so laid off into streets, and the persons so laying it off can not recall it or in any manner prevent its being used as streets. Such persons are barred or estopped by their acts, and all persons or corporations subsequently claiming under them are equally bound. If the city derives its title from Lownsdale, Coffin and Chapman, or from either of them, and that part of the premises on which the gate was placed was dedicated as a street before or at the time the city became owner of the blocks 53 and 54, the city can not now claim that it is not a street. If the owners of the soil once dedicated it, and it became a street, their subsequent assent that it should be used for a public square, would not change its character from that of a street. If the place in question was a public square and not a street, the acts of the city council in regard to it are valid. But if it was a street, the council had no authority to order [129] it fenced up, and in that case, any order of the city council directing it to be fenced up is void. Tbe jury rendered a verdict for tbe defendant. The plaintiff moved for a new trial,' and, after argument, the motion was overruled and judgment rendered in favor of the defendant.