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
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
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
"Neither are they entitled to any rights under the rule applicable
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
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.