COFFIN V. CITY OF PORTLAND. .
G. SAME-AcT OF 1885, CONCERNING THE LEVEE. The act of 1885, (Bess. Laws, 100,) construed to give the Portland & Wallamet Valley Railway Company the right to use and improve the public levee as a public landing, by the construction of wharves, warehouses, and terminal railway facilities thereon for the public use.
Suit in Equity to Declare and Enforce a Resulting Trust.
J. G. Chapman, for plaintiffs. A. H. Tanner, for City of Portland. Charles J. Macdougall, for Portland & W. V. Ry. Co. ,
J. This suit is brought by the plaintiffs to have declared and enforced a resulting trust in a parcel of land in Portland known as the "Public Levee." The case was heard on a demurrer to the bill on the grounds of a want of equity therein and of jurisdiction in the court. From the bill it appears that the plaintiffs are of Oregon, and the defendants are corporations existing under the laws of Oregon, -the one a municipal and the other a private corporation; that prior to September 27, 1850, Stephen Coffin, D. H. Lownsdale, and W. W. Chapman were in the occupation, as partners, of a tract of land containing about 640 acres, situate on the west bank of the Wallamet river, including said public levee, and then known as the "Portland Land Claim;" that prior to said date said occupants caused said claim to be laid off in lots and blocks, streets, public squares, and places, including a public levee on the bank of the river between the east line of Water street and low-water mark, and extending southerly from the south line of Jefferson street about 520 feet, and about 150 feet in width at the north end, and 350 feet at the south end, and a map thereof to be made, commonly known as the "Brady Map," and then and thereby dedicated said levee to the public, and for more than 20 years thereafter jointly and severally sold and conveyed lots in the town of Portland by said map; that on March 10, 1852, said occupants, in order to comply with the donation act of September 27, 1850, and hecome settlers thereunder, divided said claim between themselves, whereby said levee was included in the donation of Stephen Coffin, who, during the year 1854, received a patent certificate for the same, upon which a patent was afterwards issued to him by the United States; that at the time of said division said occnpants covenanted with each other as follows: "That he will fulfill and perform all contracts and agreements which he has heretofore entered into with the others, or with each of them, or with other persons, respecting the said tract of land, or any part thereof;" that said Coffin continued to recognize said dedication, and between the issuing of said patent certificate and January 23, 1865, sold and conveyed lots within his donation by said Brady map; that the inhabitants of Portland were incorporated by the act of January 23, 1851. and have ever since existed as a mnnicipal corporation by that name, and the common council thereof, on April 29, 1852, adopted said
Brady map, and the same was and continued to be in general use with the knowledge of said Coffin from and after the spring of 1850; that on January 23, lR65, said Coffin executed a deed to Portland, "without consideration," of said "levee tract, in trust, for the use of a public levee or landing," reserving therein to himself all rights for a public ferry thereon, but Portland had no power to take said conveyance, or execute the trust therein contained, and the same is null and void, and in the year 1871, in consideration of $2,500, Coffin executed another deed to £ortland, relinquishing the alleged ferry right. The bill then avers that the deed of 1871 gave Portland no additional right in the premises, the same having been previously dedicated by the grantor both by parol and the deed of 1865, and was only intended to extinguish said ferry right, and to enable the corporation to hold the premises "in trust for the use of a public landing or levee," discharged of such right; that in 1871 said premises were of the value of $50,000, and that in obtaining the conveyance of that year Portland "falsely and fraudulently represented" that it intended "to hold and devote said premises for the use of a public levee or landing," by reason of which representations said Coffin was induced to make the same, and Portland had no right to take said conveyance except to extinguish said ferry right, and the same is void for any other purpose; that neither Portland, the state, nor the public has ever made any use of the premises as a public levee or landing; that said dedication was made in the belief that the same would be advantageous to the public and Portland, but it is contrary to public policy for either Portland or the state to maintain a free public levee or landing at any place in the former, nor could any charge be made for the same consil:itent with the dedication; that since said dedication was 'made the unimproved shores and banks of rivers have ceased to be used as a place for the deposit and shipment of goods, and the custom is to use wharves and warehouses, in the construction of which within the limits of Portland there has already been expended $2,000,000, and there is yet river front owned by private persons that may be devoted to such purpose; that the promises cannot be used as a landing or levee unless improved, and it wonld be contrary to law and public policy for Portland to attempt to collect taxes from the owners of private wharves or other property for the purpose of constructing free wharves thereon, and to become liable for freight deposited there; that the primary purpose of the dedication was for "a public levee," which "is doubtful and uncertain, and unknown to the law, science, or history," and therefore void; that by the act of February 25, 1885, entitled" An act to provide for the construction to the city of Portland of the uncompleted portion of the narrowguage system of railways now in operation in western Oregon, and to provide terminal facilities therefor upon the public grounds in said city," the trust created by said dedication is "renonnced and abro-
COFFIN fl. CITY OF PORTLAND.
gated by the sovereign legislative power of the state," and it is now unlawful for Portland to hold said premises as a public levee, and there arises thereby a resulting trust of said premises in favor of complainants; that said railway company claims the right, under said act of 1885, to appropriate the premises to its use asa depot on making compensation to Portland for any right it may have therein, and "is striving and threatening to obtain possession" of the same for that purpose; that the premises are of the present value of $70,000, and Portland has expended $4,000 thereon; that the plaintiffs are the heirs at law of Stephen Coffin, except Albert Marvin, the husband of Lucinda Marvin, and before commencing this suit they gave notice to Portland that they were willing to repay it all sums of money expended on said levee. Wherefore they pray that a resulting trust of said premises be declared in their favor, and enforced against the defendant Portland by requiring it to convey the same to the plaintiffs, and that the railway company be declared to have no right to enter upon or use the premises. The dedication of this property, as a public levee or landing, by Stephen Coffin in 1850, and the continued recognition thereof during his life, is stated and admitted in the bill. The naked dry legal title was all that remained in him thereafter, and that passed to Portland by his deed of 1865, subject to this easement. The reservation therein of a private ferry right or landing on the premises was probably void, as being inconsistent with the prior unqualified dedication of the premises to the use of a ·public levee or landing. This being so, nothing passed by the deed of 1871, which, according to the bill, was only intended to extinguish this alleged ferry right. In short, the transaction had no other effect than to give an old pioneer a few hundred dollars, to smooth the path of his declining years, and this was all that was probably intended by those who managed it. But it is said that the original dedication is void for want of certainty, because the term "levee" is unknown, in the sense of a landing place, "to history, 3cience, or law." The word comes to us from the French, and in its primary sense signifies a rising. But its signification has been much enlarged. Among other things it is used to denote an embankment on the margin of a river to prevent inunda:ion,-particularly on the lower Mississippi. And when this embankment is used as a landing place or quay, as at New Orleans, the levee and the landing become convertible terms. From this metropolis of the sonth and south-west, this use of the word passed up the river and its tributary, the Ohio, to St. Louis, Louisville, Cincinnati, Wheeling, and Pittsburgh, where the open bank or slope of the river was used as a landing-place for the use of water-craft and the transfer of freight and passengers to and from them. And d,oubtless this is the sense in which it was used by the proprietors, Coffin, Lawnsdale, and Chapman, when this dedication was originally made, who, as it is well known, all came from the region of the Ohio river, where
the slope or rise from the river in front of the town is or was commonly left open to the public, and used as quay, landing, or levee, sometimes with the aid of wharf-boats fastened to the shore. And this is confirmed by the fact that as late as 1865 Coffin uses the terms "public levee" and "landing," in the deed of that date, a.s synonymous. And such was also the common and public understanding of the term in this country, as appears from its use by the legislature in section 10 of the act of 1851, incorporating Portland, which gives power to the council "to layout, regulate, and improve the streets, lanes, alleys, sidewalks, and public levees within said corporation," and "to provide for the removal of all · · · obstructions in the streets, lanes, or alleys, or on the public levees thereof." Here the "levees" are classed with the other highways or public easements within the corporation, and placed under its control. And the very discriminating use by the legislature of the prepositions "in" and "on" indicates a practical knowledge of the subject; an obstruction being, so to speak, in a street, which is or may be inclosed on both sides, and on a levee, bank, ·or landing that is open on the river side at least. In Parri,sh v. Stephens, lOr. 59, 73, (1852,) which was a suit involving the fact of a similar dedication of the river front of the Portland claim north of Jefferson street, the bank is characterized in the opinion of OLNEY, J., as a "highway and public levee," and in the "supplementary opinion" of WILLIAMS, C. J., as the "public levee." On the well·known map of Portland, compifed by Alex. J. Graham, from "Brady's Travalliots and City Maps," and published by S. J. McCormick in 1859, the premiRes in question are represented as open ground, without a street running through them, and designated the "Public Levee." In the litigation arising in towns on the Mississippi and Ohio rivers, qnestions relating to the dedication and use of the river bank or front as a landing for the convenience of river commerce have been considered and decided on the theory that a dedication of such ground to public use implies and vests in the public a right to use the same as a highway, quay, lauding, or levee, without any grantee being named or in existence; and that the legislature, as the representative of the general public, may regulate such use, and promote the same by the improvement of the premises, directly or through the agency of the corporation within whose limits the same are situated. Cincinnati v. White, 6 Pet. 435; Barclay v. Howell, Id. 498; New Orleans v. U. S., 10 Pet. 662; Rowan v. Portland, 8 B. Mon. 232; Godfrey v. Alton, 12 Ill. 29; Gardiner v. Tisdale, 2 Wis. 153. And when, as in this case, the dedication is unconditionally made to a public use, as a levee or landing-place, no formal acceptance of the same is necessary; nor does the existence or continuance of the easement depend on the extent of the use or improvement of the premises, or that thoyare used or improved at all; and it is even doubtful if the same
COFFIN V. CITY OF PORTLAND.
can be lost by the adverse occupation of the premises by private parties for any length of time. 2 Dill. Mun. Corp. (3d Ed.) § 675. Taking the case made in the bill, by the facts stated therein, with· out reference to the averments concerning their legal effect, which are more in the nature of argument than otherwise, it appears that the use of this property, as a highway or landing-place, was given to the public by the plaintiffs' ancestor long prior to the execution of and irrespective of the deeds of 1865 and 1871. At any.time thereafter the legislature, as the representative of this public, had the power to authorize the corporation of Portland to improve the premises as a landing, and to make regulations concerning the use of the same, or to make provision to that end directly, or to leave the property in its natural condition, subject to such use, as a landing, as could under the circumstances be made of it. It might also construct, or author· ize tile corporation or any individual to constrllct and maintain, wharves and warehouses thereon, and impose and collect a toll for the use of the same, sufficient at least to defray the cost and expense of these aids and conveniences to travel and transit thereon.· But neither the state nor Portland has any interest in this property to dispose of; nor can either of them devote or subject it to any use clearly inconsistent with the purpose of the dedication. And if the legislature should undertake to do so, the property would not therefore revert to the donor, or the easement be lost to the public, but any person injured thereby might maintain lit suit against the proper parties to enjoin the same. It follows from these premises that, so far as the plaintiffs are concerned, it matters not whether Portland has or ever had any authority to regulate the use of or improve the premises for the purpose of the dedication; or whether it could or did take any interest therein by operation of the deeds of 1865 and 1871. But it may not be amiss to refer briefly to the legislation bearing on that subject. By the act of 1851, supra, as we have seen, Port· land was authorized to regulate and improve the "public levees" within its limits, including this one, of course, as well as the bank of the river nort!:J of Jefferson street, which was subsequently (1861) found not to have been dedicated, (Lownsdale v. Portland, Deady, 2;) and to remove all obstructions therefrom. By the same act (6) the corporation was authorized "to acquire" real property for the use of the corporation. This act was superseded by the one of October 14, 1864, (Sess. Laws, 2,) which dropped the word "levee," and provided, among other things, (section 2,) that the corporation might "purchase, hold, and receive" real property within its limits for "public buildings, public works, and city improvements." This was followed by the act of October 24, 1882, (Sess. Laws, 144,) which was a mere compilation of the act of 1864, and sundry additions and amendments made thereto in the mean time, but made no change in the law in this respect; and section 2 of the act was again amended. v.27F.no.5-27