MEAD v. PORTLAND

MR. JUSTICE McKENNA, after making the foregoing statement, delivered the opinion of the court.

If we determine what rights plaintiffs had in Morrison street and the river, we shall be able to determine their contentions. Plaintiffs claim a contract with the city based on the ordinances which authorize plaintiffs to construct their wharves, but they also claim rights which they say were attached to the property and reserved to it by Daniel H. Lownsdale, "of the wharves and wharfing privileges." The rights so reserved are made especially dominant. Indeed, the rights obtained from the city are somewhat minimized and depreciated. All the city could do, it is said, and all the city attempted to do by its ordinances, was to authorize the riparian owners to build their wharves. Why authority from the city was necessary in view of the reservation in the Lownsdale dedication, if it was as extensive as contended, seems to call for explanation, and explanation is given by saying that the ordinance was but the exercise of the authority to regulate the manner in which the wharves were to be built by the riparian proprietors. And plaintiffs, to point their reliance on the reservation in the Lownsdale dedication, say: "Whether the ordinances do or do not purport to grant a privilege or right to use or appropriate the street or an extension thereof for wharfing purposes, the right exists, and it existed because of the reservation in the plat, long before the ordinances; and it exists independent of any action of the city. This right is different in kind from the right of the public to use the street. And it is a valuable right, which cannot be taken away or destroyed without compensation."

Plaintiffs, however, in other parts of their argument claim, by reason of the ordinances, an irrevocable license, and in the pleadings give prominence to nothing else but the rights conferred by the ordinances. On account of this probably neither the trial court nor the Supreme Court commented on the Lownsdale dedication. But we will not consider plaintiffs precluded by that omission. It is very clear to us that their contention under the Lownsdale dedication is not sound. The purpose of the dedication was an addition to the city. Streets were contemplated and power of the city over them, and this purpose and power is as clear and definite in the dedication as the reservation of rights to lot owners. This was the view of plaintiffs' predecessors when they applied for the ordinances. Therefore the fundamental proposition in the case is, the power of the city over its streets, and how far that power was limited or could be limited by the ordinance upon which plaintiffs rely.

It will be observed that the wharves were constructed on Morrison street and "used as and the same are a public street and highway." In other words, the bill alleges that the wharves on Morrison street formed a part of the street and were open to general and public use.

What power the city of Portland had to grant rights in its streets depends upon its charter, and interpreting the ordinance upon which plaintiffs rely the Supreme Court of Oregon decided that neither the plaintiffs nor their predecessors in interest were granted rights or privileges in the street different in kind from that enjoyed by the public.

"The clear purpose of the ordinances," the court said, "was to authorize and regulate the construction of wharves in front of private property. It is so expressly stated in the title, and the granting part of the ordinances provides that the owner or owners of certain described property are authorized and permitted to construct a wharf in the river, `on and in front of' such property. There is nowhere, in either of the ordinances, a grant of any right or privilege to build a wharf at the terminus of Morrison street. In the ordinance adopted in 1878 there is scarcely an inference that the lower floor of the wharf was to extend into Morrison street, and, as regards the upper floor, the provision is that it should not extend beyond the line of the block, except for a passageway of a certain described width, and over the north side of the street. The grantee was required to construct and maintain pontoons in the river at the foot of the street for the landing of small boats, with steps leading therefrom to the lower floor of the wharf. It was expressly provided that the whole of the passageways along the street and those portions of the wharf extending over and into the street `shall be subject to regulation by the common council as a part of said street and sidewalks,' thus manifesting an intention to preserve the public character of the street, and not to vest in the grantee any rights or privileges therein not enjoyed by the general public. The ordinance of 1879, in describing the dimensions of the wharf authorized to be erected, says that it shall extend a certain distance south from `the center line of Morrison street,' and indicates that the wharf constructed by the property owners on the opposite side of the street extended to that point. The grant, however, is confined to the construction of a wharf `on and in front of' private property; there being a provision like the one in the former ordinance requiring the grantees to construct pontoons in the river for the landing of shall boats, while the right is reserved to the council to regulate the passageways along the street, and any part of the wharves extending therein `as a part of the street and sidewalk.' The reasonable interpretation of these ordinances is that they were intended to regulate the construction of wharves by the property owners on either side of the street in front of their property, with permission, perhaps, to extend the lower floors of such wharves over and across the foot of Morrison street, for the purpose of affording access from the street to the wharves. There is, however, no grant of any privilege or right to use or appropriate the street, or an extension thereof, for wharfage purposes. On the contrary, the street and any improvements which may be put there by the abutting property owners were reserved to the use of the entire public, and the grantees had no greater rights under the ordinances than those enjoyed by the general public." And this construction, the court observed, was supported by the averments of the complaint. It was, therefore, decided that plaintiffs acquired no greater rights in the street than the general public nor a right to compensation for loss or injury caused by a change in the grade any more than a change in the grade would entitle an abutting owner to compensation because he had improved the street in front of his property. And decided also that the ordinances "did not give to the plaintiffs or to their predecessors in interest authority to build a wharf at the foot of the street for commercial purposes, but rather confer the right to improve the street by extending it into the river, so that they could the more readily reach their own property therefrom, and the fact that their improvements have been rendered valueless on account of the subsequent change in the grade of the street does not entitle them to compensation.

"Neither are they entitled to any rights under the rule applicable to an executed parol license. Their occupation of the street and construction of the wharf and landing at the foot thereof, were permissive, under ordinances of the city defining their rights. They could not acquire any interest or easement in the street not conferred by the ordinances, because their use could not, in law, be adverse. Thayer v. New Bedford Railroad, 125 Massachusetts, 253; Washburn on Easements, §§ 152, 197."

Against these conclusions plaintiffs cite other Oregon cases. We are, however, not called upon to reconcile the cases. Plaintiffs point to no case decided prior to the construction of the wharves which interprets the ordinance as they now contend for, which might bring the case within the ruling of Muhlker v. New York & Harlem R.R. Co., 197 U.S. 544, and Lewis v. City of Portland, 25 Oregon, 133, 159. And if we could say that the construction of the ordinances by the Supreme Court is not indisputable, yet we are required by the rule expressed in Burgess v. Seligman, 107 U.S. 20, and the many cases which have followed it, to incline to an agreement with the state court.

In accordance with the doctrine announced in Brand v. Multnomah County, 38 Oregon, 79, the Supreme Court decided that a change or alteration of the grade of a street may be made by lawful authority, without liability to abutting property owners for consequential damages, and that the act of October 18, 1878, was a legislative change of the grade of Morrison street for its full width. Plaintiffs do not deny that the legislature has such power. They make, however, two contentions (a) That the act of 1878 was not intended to change the grade of the street and did not do so. (b) If it did change the grade at all, it changed it as to those portions of the street only which were actually made use of on the new grade as an approach to the bridge, the remainder not being affected by the act. As to the latter point, it is contended that the power given to the bridge company to build an approach to the bridge on Morrison street to conform to the grade on Front street was exhausted with the exercise of the right, and that the defendants have no power under the act, after a lapse of twenty years, to extend the approach of the bridge to cover the opening in Morrison street, and change the grade where it was not changed when the approach was built.

The act of 1878 is a local statute and in its interpretation involves no Federal question, nor does it become such by the circumstances of this case. It expresses the legislative authority and its interpretation by the Supreme Court of the State we must accept. And the power to grade was not exhausted by one exercise. Goszler v. Georgetown, 6 Wheat. 593, 597; Wabash R.R. Co. v. Defiance, 167 U.S. 88. It is a phase of the same contention that the bridge company was given the right of election of the manner of constructing the approaches, and, being bound by that election, the city, its successor, is also bound.

Judgment affirmed.