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
by the act of November 25, 1885, (Sess. Laws, 102,) without being altered in this particular. From this it appears that since October 14, 1864, if not before, Portland has been authorized "to purchase, hold, and receive" real property for "city improvements." This is a general and comprehensive provision; and unless limited in its operation by some other enactment, to which attention has not been called, it includes property intended for a public square, park, landing, levee, or the like. 2 Dill. Mun. Corp. (3d Ed.) §§ 562-564. And under the grant of power contained in section 37, subds. I, 2, of the act of 1864, and the following ones, to levy and collect taxes for general municipal purposes, and for "any specific object" within the authority of the corporation, it is not apparent why Portland is not authorized to improve such square, park, landing, or levee in any way that may be calculated to promote its usefulness or improve the city. The fact that the river front is generally in the hands of private parties, on which wharves and wa.rehouses are maintained by private enterprise, has no: bearing on the question of "the authority of Portland in the premises, or the power of the legislature to confer, withhold, or withdraw the same at pleasure. What is a wise or the best policy in the premises is a matter for the legislature in the first instance, and the corporation in the second. Under the circumstances, it would be sheer assumption for the court to say that it is contrary to public policy for Portland to have a public landing or levee on the river bank, or to improve and maintain the same, either directly or through the agency of third persons. The act of February 24, 1885, (Sess. Laws, 100,) which the plaintiffs allege is a "renunciation" by the state of the trust arising from the dedication of this property to public uses, is largely a mass of senseless and redundant verbiage; but so far as this case is concerned, it may be shortly stated as a grant or license to the defendant the Portland & Wallamet Valley Railway Company, then and now engaged in constructing a road between Portland and Dundee, the use of a levee for a depot, and the wharves and warehouses necessary and convenient for receiving, storing, and shipping freight, on condition, among others, that said company shall not charge any vessel for "dockage" while receiving or discharging cargo at auy wharf on the premises. The act also contains a provision to the effect that nothing therein shall be construed "to take away any pecuniary (?) or property rights" that Portland may have in the premises, and which the state cannot "lawfully appropriate;" nor to deprive the same of any "legal claim or remedy it may have to (?) damages in consequence of the appropriation of said public levee;" and that the company shall not sell or assign "the premises or rights" thereby granted, otherwise than as an "appurtenant" of said railway. As the state has no power to "appropriate" or "grant" this property otherwise than to provide for and