Portland v. Inman-Poulsen Lum. Co.

133 P. 829, 66 Or. 86, 1913 Ore. LEXIS 352

Opinion

Opinion by

Mr. Chief Justice McBride.

1. This case was tried before Hon. Henry E. McGinn, who was born and has lived all his life in the vicinity of the property in dispute; and his familiarity with its location and the conditions existing upon the ground admirably qualified him to understand the testimony offered. A comparison of his findings of fact with the testimony satisfies us that he found correctly; and it only remains for us to decide whether the legal conclusions drawn by him from these facts are fairly deducible therefrom.

2. We think the city is estopped from claiming any right to use the streets in controversy. Their legal existence was a matter of grave doubt when defendants located their mill upon the premises. They did not go as trespassers or uninvited guests, but at the urgent solicitation of the city authorities of the City of East Portland, who were anxious to secure the location of the immense plant defendants proposed to erect within their boundaries. When defendants inquired in relation to the supposed streets, they were told by the mayor that Stephens, the original proprietor of Stephens ’ Addition, had so muddled the situation with plats that it was doubtful whether any legal streets existed; that, if there were any, they were of no use to the city; and that they would never be claimed by the city. Several of the blocks occupied a deep slough with banks more than 30 feet high and having an oozy mud bottom, which rendered it difficult to bridge even with piling, and which effectually obstructed travel for a great part of the distance on the north and northeast. West of this slough was a tract of unplatted land, so that on the north it was seemingly impracticable for the little City of East Portland to bear the enormous expense of opening streets which, after passing through the property now occupied, would terminate in the Willamette River. Streets running westerly toward the river, so far as here in controversy, would pass through the property of the. defendants. All the property now occupied by defendants, except the slough, was at the time defendants entered into possession of it inclosed by a fence and had been used by its owners, Clinton and McCoy, as a baseball ground, from which the public were excluded except upon the payment of admission. With the exception that Stephens had filed a plat and delineated lots and blocks upon it, and had sold land by lots and blocks, there was nothing to distinguish the tract in question from any other unplattéd land. In 1885, long before the- defendants came into possession of the property, the City of East Portland established all street grades, but did not establish any grades through this particular tract, although establishing them all around it; and neither the city of East Portland, nor the City of Portland since the consolidation, has ever established any grade upon the alleged streets within the tract in question. This neglect to establish grades, coupled with the representations of the mayor and councilmen, no doubt tended to induce defendants to believe that the city either did not intend to accept the dedication of that part of the plat upon which defendants were requested to erect their plat, or that the city did not consider it had any right to those portions of the streets embraced within the tract in controversy. Acting upon the requests and representations made to them by the city authorities, the defendants proceeded to erect their mill, and to begin the work of filling up the malaria-breeding slough on the north side of their property. The city authorities have stood hy all these years, and have permitted them, without protest, to enlarge their plant, to fill up the slough, and to make it safe, dry land. They have at great expense filled the slough where Grand Avenue crosses it, leaving it open and unobstructed for public use. They have expended about $800,000 in building and equipping one of the largest sawmills in the world; a mill employing 500 hands, and confessedly a great benefit to the community. There is not one rule of morals for a municipality and another for an individual. Should a private citizen request and induce another to enter upon his premises under assurance that he would never be disturbed, and stand by and, without protest, see him spend three-quarters of a million dollars in improvements relying in good faith upon the request made and the representation put forth, he would be spumed from the courtroom if he attempted to regain possession of the property. Judge McGinn showed a robust sense of justice when he said upon the trial of this case: “Dr. Lane admitted that there was no present necessity or use for these streets, and everybody else will admit that. And if the City of Portland, in my judgment, were to undertake after these years to put the Inman-Poulsen Company out of there, they would be guilty of a great wrong. I am about as strong a man along the lines of municipal ownership as you will find, but right is right; these people were there; they went in there when there was no use for streets and they built up a great manufacturing plant, a plant that has been a great benefit to the people of the east side. It would be a crime for the City of Portland to undertake to dispossess these people after they have been there the number of years they have been.” .There is no reason to suppose that the open ing of these streets is necessary now or will he in the near future.

The witnesses for plaintiff were T. M. Hurlburt, Joseph Buchtel, P. Kelly, Mayor — now Senator — Lane, and George H. Hymes, all old residents of Portland and familiar with the situation; and they all practically agree that there is not at this time any necessity for the opening of these streets. It is apparent that to open them would destroy the greatest single industry in the City of Portland. The sole pretext for this suit is that the plaintiff wishes to establish its right to the streets.

3. As the statute of limitations does not run against the city, and as the improvements upon the property are practically complete, it is difficult to see how the city would be in a worse position ten years from now than it is at the present time. A fair sample of the reasons given for destroying this great industry appears in the testimony of Mr. Cellars, who, when the question of opening these streets was being mooted in the council, asked a councilman who was agitating the proposition what reason there was for opening them. The reply was: “I might want to go down to the river and spit sometime.” This case comes fairly within the rule laid down in Schooling v. Harrisburg, 42 Or. 494 (71 Pac. 605, 9 Mun. Corp. Cas. 705); Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376, 7 L. R. A (N. S.) 243). It is contended that the final decision of the case last cited, reported in 58 Or. 582 (109 Pac. 762, 115 Pac. 594), overrules to some extent our previous holdings upon this subject; but such is not the case. We expressly recognized the previous ruling of this court, but declared that upon the facts disclosed upon the final hearing of that case plaintiff had not brought herself within them. In that case nobody sought out the plaintiff and besought her to build where she did. nor was there any donht as to the existence of properly dedicated and platted streets, whose location conld have been determined by an hour’s investigation. There was no long-continued possession and use of the street, and no great amount of money invested in the fence which occupied it. The good faith, enormous expenditure, and long and notorious occupation of the street which characterize this case was lacking in that one.

4. It is claimed by plaintiff that the estoppels against the city here discussed are not properly pleaded, but defendants have clearly and succinctly set forth all the facts constituting such estoppels by way of defense, and we think that, in the absence of a demurrer or motion to strike, they are sufficiently pleaded. Equity will not concern itself as to the lack of technical pleading of an estoppel, as such, when all’the facts necessary to constitute such estoppel are pleaded and no objection is made as to the form of the pleading: Carlyle v. Sloan, 44 Or. 357 (75 Pac. 217).

5. We come now to the cross-appeal of defendants. The estoppels urged by defendants are well pleaded, and are abundantly proved, but they amount to no more than that the defendants were desirous of securing site for a sawmill. The authorities of East Portland were of the opinion that a sawmill at the place in controversy would be of benefit to the city, and of such a benefit that it would be of advantage to the city to waive all possible rights to the alleged streets in order to secure a sawmill at that location. The construction and maintenance of a sawmill was the motive for the assurances of the city that defendants would not be disturbed in the occupation of the streets. It is not conceivable that defendants would have been invited to occupy these streets for purposes connected with a livery-stable, a tannery, or a candy factory. The estoppel should go no further than the purposes for which the acts and representations which induced them, and which were known by the defendants to have induced them, legitimately carry it. Therefore, the Circuit Court was right in limiting defendants’ right to occupy these streets to the purposes for which it originally occupied them, namely,, for purposes of a sawmill. It naturally follows that, when these purposes are accomplished, the city should be permitted to resume control of the'streets.

The decree of the Circuit Court is therefore affirmed; and, as both parties have appealed and neither has prevailed here, neither party will recover costs or disbursements in this court. Affirmed.

Mr. Justice Burnett dissents.