200 U.S. 148
JOSHUA ROBERTS MEAD, Anna Leocadie Lee, William Wesley Mead, and Stella Baham Meade, Trustees, etc., et al., Plffs. in Err.,
CITY OF PORTLAND et al.
Argued November 27, 1905.
Decided January 2, 1906.
Statement by Mr. Justice McKenna:
Bill in equity to enjoin defendants from closing a certain passageway in the approach of a bridge called the Morrison street bridge, in the city of Portland, Oregon. The approach leads to plaintiffs' wharves. The bill was demurred to and the demurrer sustained by the trial court, plaintiffs declining to plead further, and a decree was entered dismissing the bill. The decree was affirmed by the supreme court of the state. 45 Or. 1, 76 Pac. 347.
The bill alleges that some of the plaintiffs have been for many years owners of block 76 in the city of Portland, and other plaintiffs have been the owners of block 77. These blocks are bounded on the east by the Willamette river and on the west [200 U.S. 148, 149] by Front street. Morrison street is the north boundary of block 76 and the south boundary of block 77. Attached to the properties are valuable riparian rights and wharf rights and privileges, which entitled the owners to build, maintain, and use the same to the established wharf line of the river, and on them are warehouses, docks, and wharves of great value, which are occupied by tenants. The properties are located within the donation land claimed by one Daniel H. Lownsdale, under whom plaintiffs claim as owners. In the dedication by Lownsdale of the plat of the town of Portland it is, among other things, provided as follows:
That the common council of said city of Portland adopted an ordinance, No. 2273, entitled 'An Ordinance Authorizing the Construction of a Wharf on the Willamette River in Front and Opposite Lots Numbers 3 and 4, in Block No. 77,' approved September 26, 1878.1 [200 U.S. 148, 150] Also an ordinance, No. 2387, entitled 'An Ordinance Authorizing the Construction of a Wharf on the Willamette River in Front of and Opposite Lots Nos. 3 and 4, in Block No. 76,' approved February 21, 1879.2
[200 U.S. 148, 151] The predecessors in interest of plaintiffs constructed wharves in conformity with the provisions of the ordinances and the grades established therein, the wharf constructed pursuant to ordinance No. 2387 covering the south half of the street, and that constructed pursuant to ordinance No. 2273 covering the north half of the street. The wharves consisted of two floors or stories, with a large warehouse over the second floor. The second floors were built slightly above the level of Front street, with approaches as provided in the ordinances. The lower stories or floors of the wharves were considerable below the level of Front street, and were connected with that street by a roadway running on an incline along Morrison street from Front street down to the portion of the wharves built on Morrison street, which roadway was constructed by the respective owners of the properties. The wharves, docks, and warehouses, and the approach thereto, have been used by plaintiffs and their predecessors for more than twenty years, and have been used as landing places for boats and vessels navigating the river, and by people and teams having business at the docks and wharves, and the docks and wharves and the approach thereto have been used as a street or highway by the public. The grade of Morrison street occupied by the roadway leading from Front street and over that portion of the street upon which the wharves and docks were built has never been established except by said ordinances, and said portions of Morrison street and the roadway have been and are now improved and used, and the same are a public street and highway, and were built and have been maintained 'in reliance of the rights and privileges therein [the ordinance] maintained.'
In 1878 the legislature of the state of Oregon passed an act authorizing the Portland Bridge Company, or its assigns, to [200 U.S. 148, 152] construct and maintain a bridge crossing the Willamette river between Portland and East Portland for all purposes of travel and commerce, 'at such point or location on the banks of said river, on and along any of the streets of either of said cities of Portland and East Portland, as may be selected or determined on by said corporation or its assigns, on or above Morrison street of the said city of Portland, and in streets of said city of East Portland; . . . and provided, that the approaches on the Portland side to said bridge shall conform to the present grade of Front street in said city of Portland.'
The bridge was constructed in 1886, the west end of which was located at the east end of Morrison street. Between the west end of the bridge and Front street a plank road or approach was constructed over Morrison street, but the approach did not conform to the grade of Front street, but was constructed at an elevation of more than 2 feet above such grade at the west end of the bridge, and thence inclined to Front street, and has always been maintained at such elevation. The bridge did not cover the whole of Morrison street from Front street to the west end of bridge, but was so constructed that a portion of Morrison street, in the center thereof and leading from Front street on an incline to the lower docks and wharves of plaintiffs, was left uncovered and unchanged, the same being about 18 feet wide and extending easterly from Front street about 95 feet. The approaches constructed by the bridge company have been and are sufficient for the passage to and from the bridge for foot passengers, cars, and vehicles using the bridge. The opening was left in the decking of Morrison street to provide access to the lower floors of the wharves, and as a means of ingress and egress from them, and did not materially interfere with or obstruct the use of city roadways and the wharves and docks as they had been theretofore used.
In 1895 the city of Portland purchased, under legislative authority, the Morrison street bridge from the Willamette Iron Bridge Company, the successor in interest to the Portland Bridge Company, and subsequently, under the provision of an [200 U.S. 148, 153] act of the legislature, approved February 21, 1895, the county court of Multnomah county assumed and has since had the care and operation of the bridge and its approaches.
In 1886 the Willamette Iron Bridge Company began the construction of the bridge and built two piers in the river to support the western end of the bridge in front of the outer line of plaintiffs' wharves, in such position as to obstruct navigation and to greatly interfere with the access to the wharves, and at the same time began to construct the approach to the bridge over Morrison street in such manner as to interfere with access to the wharves. The owners of the wharves in April, 1887, protested, and a compromise and settlement was effected between the parties, whereby the bridge company agreed to forever leave an opening in the bridge approach substantially as it now is, and in consideration thereof the wharf owners agreed to permit the piers to remain as constructed, and as they have ever since remained, and to waive all objection to the construction of the approach in the manner in which it was constructed, leaving the opening forever open and unobstructed for free ingress and egress to the wharves. The parties acted upon the agreement, and the wharf owners did not begin or prosecute legal proceedings. In 1890, however, the company, notwithstanding the agreement, threatened to close up the opening, whereupon the wharf owners commenced a suit in equity to enjoin the threatened injury, and thereupon, in consideration of the dismissel of the suit, the bridge company entered into another agreement to refrain from the threatened acts, and leave the opening and approach in the condition as the same now is.
It is alleged that the city of Portland acquired the bridge and the approach thereof subject to the said agreement, and the rights vested in the plaintiffs thereby, and that the defendants are proceeding, without tendering or offering compensation therefor, to close said opening, and thereby deprive plaintiffs of their property without due process of law, contrary to the 14th Amendment of the Constitution of the United States. [200 U.S. 148, 154] And it is alleged that the ordinances of the city of Portland, hereinbefore set out, constitue a contract between the city and plaintiffs' predecessors, and the acts of the legislature of the state of Oregon which have been mentioned, so far as they undertake to confer upon defendants the power to close the opening of such bridge without payment of compensation, impair the obligation of such contract, and violate 10, article 1, of the Constitution of the United States. An injunction was prayed.
Messrs. Charles H. Carey, C. E. S. Wood, S. B. Linthicum, J. C. Flanders, and Carey & Mays for plaintiffs in error.
[200 U.S. 148, 158] Messrs. L. A. McNary, and J. P. Kavanaugh for defendants in error.
Mr. Justice McKenna 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 [200 U.S. 148, 160] 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 [200 U.S. 148, 161] 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.
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 & H. R. Co. 197 U.S. 544 , 49 L. ed. 872, 25 Sup. Ct. Rep. 522, and Lewis v. Portland, 25 Or. 159, 22 L. R. A. 736, 42 Am. St. Rep. 772, 35 Pac. 256. 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 , 27 L. ed. 359, 2 Sup. Ct. Rep. 10, 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 Or. 79, 50 L. R. A. 389, 84 Am. St. Rep. 772, 60 Pac. 390, 62 Pac. 209, 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, hawever, 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 confrom 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 [200 U.S. 148, 164] 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, 5 L. ed. 339, 340; Wabash R. Co. v. Defiance, 167 U.S. 88 , 42 L. ed. 87, 17 Sup.Ct.Rep. 748. 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.
[ Footnote 1 ] Ordinance No. 2273.
[ Footnote 2 ] Ordinance No. 2387.