Mead v. Portland

76 P. 347, 45 Or. 1, 1904 Ore. LEXIS 59

Opinion

Mr. Justice Bean,

after stating the facts in th.e foregoing terms, delivered the opinion of the court.

The only substantial difference between this case and that of Brand v. Multnomah County, 38 Or. 79 (60 Pac. 390, 62 Pac. 209, 50 L. R. A. 389, 84 Am. St. Rep. 772), is that the plaintiffs here assert that the ordinances authorizing the construction by their predecessors in interest of wharves in front of their property, and extending over and across the foot of Morrison Street, and the subsequent construction of such wharves, conferred upon them vested rights, of which they cannot be deprived without compensation, and that the agreement between them and the bridge company that the opening in the approach to the bridge on Morrison Street be forever left open is valid and binding on the defendants, as the successors in interest of the bridge company. The Brand Case decided that a change or alteration of the grade of a street in a municipality may be made by lawful authority, without liability to the abutting property owners for consequential damages, and that an act of the legislature authorizing the construction of a public bridge across the Willamette River at Portland, connecting the streets on either side of the river, and providing that the approach to the bridge on the west side shall conform to the grade of First Street, is a legislative alteration or change of the grade of the cross street from First Street to the river, for which abutting property owners have no remedy, even though the construction of such approach may entirely cut off access from the street to a wharf in front of their property. So far, therefore, as any of these questions are involved in the present controversy, they are not now open to discussion.

1. The fact that the act of the legislature authorizing the building of the Madison Street Bridge provided that it should be located on a certain street, while that under which the Morrison Street Bridge was built gave the grantee an option to locate it on any street which it might select, on or above Morrison, does not render the latter act any the less effective in establishing the grade of the street selected,, and upon which the bridge was actually built. The provisions of the two acts in regard to the approach to the bridge and the manner of its construction are substantially the same ; the only difference being that in the former the grantee was confined to a particular street, while in the latter it had the right of selection. When, however, it did locate its bridge, it was as much bound to make the approach conform to the grade of First Street as if the particular street selected had been named in the act.

2. The principal contention is that, by the ordinances granting the plaintiffs and their predecessors in interest the right to construct wharves in front of their property, and to extend the lower floors thereof across the foot of Morrison Street, and to build an incline therefrom, connecting with Front Street, plaintiffs acquired an easement or property right in the street for the maintenance of such wharves and incline, and, having expended their money in the construction thereof, they cannot now be deprived of their rights without just compensation. For the purposes of this case it may be accepted as settled law that where a municipal corporation, in pursuance of proper legislative authority, grants a valid franchise, privilege, or right to use or occupy a public street,'common, or levee, or navigable waters adjacent thereto, for a public purpose, such as the construction and maintenance of wharves in aid of commerce, water tanks for use in sprinkling streets, telegraph and telephone poles, railway tracks, and the like, and the grantee, in reliance on such grant, expends money in the prosecution of his enterprise, he thereby acquires a property interest or right, which can only be taken away under the power of eminent domain and after proper compensation: 1 Dillon, Mun. Corp. (4 ed.) §§ 110, 111; 29 Am. & Eng. Enc. Law (1 ed.) 69; Portland & W. V. R. Co. v. Portland, 14 Or. 188 (12 Pac. 265, 58 Am. Rep. 299); Savage v. Salem, 23 Or. 381 (31 Pac. 832, 24 L. R. A. 787, 37 Am. St. Rep. 688); City of Des Moines v. Chicago, R. I. & P. R. Co. 41 Iowa, 569; Phillipsburg Elec. Co. v. Phillipsburg, 66 N. J. Law, 505 (49 Atl. 445); Langdon v. Mayor of New York, 93 N. Y. 129 ; Williams v. Mayor of New York, 105 N. Y. 419 (11 N. E. 829); Kingsland v. Mayor of New York, 110 N. Y. 569 (18 N. E. 435). In such case the grantee acquires a right or easement in the street different in kind from that enjoyed by the general public, and the building or structure put therein by him is under his control, subject to the paramount authority of the municipality.

3. But as we understand the ordinances in question, neither the plaintiffs nor their predecessors in interest were granted rights or privileges, within this rule, to construct and maintain a wharf at the foot of Morrison Street. The clear purpose of the ordinances 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 graht of any right or privilege to build a wharf atthe 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 small 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.

That this is the proper construction of the ordinances, and of the rights of the grantees thereunder, is supported by the averment of the complaint to the effect that the wharves and docks constructed by the plaintiffs and their predecessors in interest “upon and over said Morrison Street, and said approach thereto from Front Street, so constructed and maintained by plaintiffs and their predecessors in interest, have been used ás a street or highway by the public,” and * * “are a public street and highway.” If the grantees acquired no other or greater rights or interests in the street than the general public, the fact that they have expended money in extending the street into the river, or building approaches therein to their wharves, or in otherwise improving it, does not give them a right to compensation for the loss or inconvenience caused by a change in the grade, any more than a change in the grade would entitle an abutting property owner to compensation because he had previously improved a street in front of his property by authority of the city. The grantees acquired no private rights under the ordinances, and the construction by them of the wharf and landing at the foot of the street was merely an extension of the street, which did not vest in them any rights other than those they may have had as a part of the general public: Hoboken L. & Improv. Co. v. Mayor of Hoboken, 36 N. J. Law, 540. The fact that, by reason of the proximity of their property to the street, they were enabled to make more use of it and its extension than others did, is a mere difference in degree, and not in kind. If the grant had been to construct a wharf at the foot of the street, to be under the control of the grantee, with the express or implied power of collecting tolls for the use thereof, an entirely different question would have been presented for consideration, and the argument of plaintiffs would then have been cogent and forceful. ' The ordinances, however, 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 conferred 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.

4. 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 Mass. 253 ; Washburn, Easements, §§ 152, 197. We agree, therefore, with the court below, that the plaintiffs have no vested rights or interests in the street under the ordinances referred to.

5. Nor do we think they can claim relief as against the defendants on account of the alleged contract between them and the bridge company that the opening in the ap proach to the bridge should forever remain open. The alleged consideration for such contract was the waiver by the plaintiffs of a right to commence proceedings to enjoin the bridge company from constructing piers to support the bridge in the river opposite the foot of Morrison Street. In view of the rights of plaintiffs under the ordinances referred to, as we have interpreted them, it is doubtful whether this was a sufficient consideration for such contract: Blackwell v. Old Colony R. Co. 122 Mass. 1; Thayer v. New Bedford R. 125 Mass. 253; President of Harvard College v. Stearns, 15 Gray 1. The bridge company, moreover, was acting under a grant from the legislature authorizing it to construct the bridge for the use and convenience of the' public as a highway, and it is far from certain that it had authority to contract away any of the rights or duties imposed upon it by the act. But however that may be, the alleged contract was not of record, and there is no averment in the complaint that defendants had notice or knowledge thereof at the time of their purchase.

There were some other questions discussed at the argument, including the effect of the act of the bridge company in leaving an opening in the approach to the bridge at the time of its construction, but they were involved in and determined by the Brand Case, and need not be further considered here.

It follows that the decree of the court below must be affirmed, and it is so ordered. . Affirmed.