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LAND TITLE CONTROVERSIES.
It seems necessary to give in this work some account of the troublesome litigation which rested for a number of years over the city and retarded its growth. It is not a matter of very general interest, but mention of the subject cannot well be omitted, and if treated of at all, enough of the details should be furnished to state the case with clearness and definiteness. [page 118]
From the way in which Portland was settled, it may be surmised that she had a world of legal difficulties and vexatious questions as to the titles of property. Such difficulties were clearly forseen by the founders and proprietors, and everything possible was done to forefend and guard against them. In point of fact, the measures adopted at the very first to give validity and permanency to all titles conveyed were eventually confirmed by the highest courts in the nation, but this did not prevent a long, tedious, expensive and, as it seemed at length, a useless controversy.
When Portland was laid off, in 1845, the ownership not only of her site, but of the whole territory was in hot dispute between the United States and Great Britain. Nobody knew whether the Union Jack or the Stars and Stripes ought to be run up at the gable peak of the old hewed log store and at the little wharf on the river bank. Of course, the Americans expected that Oregon would be held by their National Government, and the existing authority in the land, such as it was, was vested in a local Government which boasted a Governor, a Legislature, supported an army and established courts. It also had recognized the necessity of some sort of land legislation, and had passed a law that any one might hold the “section@ of land upon which he was living by right of actual possession. But, in its very nature, this Government at Oregon City was provisional--having stated in its preamble that it was intended to hold the reins of government only until such time as the United States should extend her authority over Oregon. It was, therefore, uncertain how the land legislation and land titles would stand when that time should arrive. Such legislation and titles might be confirmed or supplanted by something else.
From 1845, the time Portland was started, until 1848, the time that the Territorial Government was set up, was a period of three years of uncertainty, and it was two years longer before the Donation Act was passed, which substantially recognized and confirmed the land system of the Provisional Government; and it was not until 1852 that, any exact or absolute title was obtained for the town site of Portland. [page 119]
To obviate the difficulties that might spring up, the proprietors took all the precautionary steps that honest and conscientious men could devise. When Lownsdale, in 1848, purchased the town site and obtained a partner in the person of General Coffin, an agreement was made that all lots which had been sold hitherto should be confirmed to the purchasers; that Coffin should obtain as quickly as possible a United States patent to the tract, and that good deeds should then be given to all those who had bought or should buy. When, in 1849, Chapman became a partner, the same agreement was continued. When, in 1852, it was decided that the property could be obtained only by a division of interests so that Lownsdale should take one portion, Chapman a second, and Coffin the third, they all signed an agreement with an enormous bond attached, that so soon as they obtained legal title they would at once issue deeds to all previous purchasers confirming their certificates.
But, in spite of all these precautions, it was a matter of certainty that titles would be contested. It was beyond peradventure that somebody, at some time, would desire to push the question beyond simple private agreement, or the transient legislation of the Provisional Government to the hard and fast decree of the Supreme Court of the United States. The contest came early and was exceedingly hot, but perhaps was just as well decided then as at any other time. There was considerable temporary feeling generated, and those who were put to expense to maintain what they considered their honest rights naturally felt some exasperation at those who contested them.
There were, in general, three main questions to be decided. These arose first, from the claims of Benjamin Stark; second, from the claims of the heirs of D. H. Lownsdale; and third, from the disposition by the proprietors of what was called “the levee.”
As to the claims of Stark, he, as we have already recorded, had purchased Lovejoy’s interest in the 640 acres of land which then constituted Portland, but when he went to San Francisco not long after, leaving his interest to the care of Capt. Couch, it seems to have been supposed by Lownsdale that he had abandoned his claim. Nevertheless, while yet in California, and upon returning from the gold mines, he asserted his rights and it was finally agreed as the [page 120] most equitable settlement that his claim should be conceded to that triangular strip which now constitutes the central portion of the city, namely: the piece bounded by Stark and A streets and the river. But from previous agreements which appear to have been entered into by the proprietors when they supposed that their rights extended down to Couch’s line, there arose a number of cases which had to be settled in equity before the United States District Courts. One of these, as a specimen, may be introduced here. This was the case of Stark vs. Starr. It appears that as early as 1850 certain lots 1, 2, and 4, in block 81, had been occupied by persons who had what they regarded as deeds as good as were to be obtained at the time. To be sure these deeds were not given by Stark. The deed to lot 1 had the following genealogy: One Eastman had possession of it, although it does not appear by what legal authority, and gave a deed thereto to Hutchins and Hale, who passed on the same to A. M. Starr and A. P. Ankeny. There was one other link by a certain man, Bamhart, who at one time had a certificate on execution to enforce a judgment of Norton vs. Winter and Latimer, but L. M. Starr was unable to trace his deed to Barnhart. As to lot 2, of the same block, a deed was found from Chapman for the south half, and from Butler to McCoy and also from Mare to McCoy. Lot 4 was found to have been passed in 1850 from Chapman to Powell; in 1856 from Powell to A. M. Starr, and in 1865 from A. M. Starr to L. M. Starr. None of these deeds were traced to Stark, who got his title direct from the United States, and was the first recorded owner. There was a statement by Stark that lie never gave a deed to these lots on account of the fact that Chapman had never paid him for them--thus showing quite clearly that all the lots had at some time been held in some sort of an unwritten agreement between Starr and Chapman, but whatever that agreement or understanding might have been nothing of it was at first produced before the Court.
In this situation it appears that Stark concluded to establish what rights he might possess in this quarter, and consequently instituted suit in equity before the District Court at Portland to recover possession. It was decided by the Court that the land had never been conveyed away from Stark, and that whatever understanding [page 121] there was prior to his acquirement of title under the Donation Act was not material. It was held, however, that the Starrs were holding this property under color of title and in good faith, and they were allowed compensation for their improvements, estimated to be worth $2,000. The possession of the lots, however, was awarded to Stark, and he was also found entitled to rent, which amounted to $5,312.50.
But while Stark thus carried through his case in the United States District Court, in action on the law side of the Court, Starr had been instituting suit on the equity side of the Circuit Court of Oregon for the County of Multnomah as early as 1864, claiming the lots on two grounds: first, that there had been issued a patent to the city of Portland from the United States Land Office, in accordance with the townsite law of 1844, giving it the section upon which the town was built, in trust for the residents of the city, with due regard for the interests and titles of Stark, Lownsdale, Chapman and Coffin; and second, on the ground that Stark received his patent under the Donation Act to the lots in question in trust for Starr. By the Circuit Court of Oregon it was decided that but one of these causes could be pleaded in one suit, and at plaintiff’s option the former was chosen. The lots were awarded by this Court to Starr; upon appeal to the Oregon Supreme Court, this decision was reaffirmed; but upon appeal thence to the United States Supreme Court, the title given to the City of Portland, in accordance with the townsite law of 1844, was declared void, and Starr’s claim to his lots fell with it.
But, not being discouraged by an adverse decision, and remembering that he still had cause of action left behind, Starr went back then to that second cause, instituting suit on the equity side of the United States Circuit Court to recover possession of the lots on the ground that when Stark got a patent from the United States covering the ownership of the lots, 1, 2 and half of 4, in block 81, it was simply in trust for himself, in pursuance of certain promises and transactions given and consummated long before. The case came up before Judge Sawyer, of the United States Circuit Court, and Judge Deady, of the United States District Court. In the trial the [page 122] facts which were not shown in the case of Stark vs. Starr, as mentioned above, were developed, and they explained how Chapman happened to be selling laud which appeared only under Stark’s patent, as follows: Stark and Lownsdale were both in San Francisco early in 1850, the former leaving Couch as his attorney at Portland, and the latter investing Colonel Chapman with the same powers. While there, Stark and Lownsdale talked over their rights and claims in the Portland townsite, the former urging that he had a half interest on account of his purchase of Lovejoy’s interest, (although, as it is said, Mrs. Lovejoy never signed the deed), while Lownsdale spoke of his purchase of the whole site for $5,000 from Pettygrove. But, it was finally agreed in writing to make a division whereby Lownsdale should relinquish to Stark all that portion of the claim north of a certain line which coincides very nearly with the present Stark street; and Stark was to relinquish all south of that line to Lownsdale. It was provided, however, by the latter, that the consent of certain other persons (by which he meant his partners Chapman and Coffin), must be obtained. But, in the meantime, while the two were making this arrangement in San Francisco, Colonel Chapman, acting in his own right and also as attorney for Lownsdale, and not knowing of the agreement, had bought of the company of which he was a member, this block on Stark’s portion; and at the same time arranged to sell two other blocks, respectively, to Lownsdale and Coffin. About a month after this Lownsdale came up to Portland and told his partners of his arrangement with Stark. They refused at once to agree to it, but upon condition that block 81 and the other blocks which had been sold since March 1st, or the time of the agreement between Stark and Lownsdale in San Francisco, be left as it had been agreed by the sales of Chapman, the arrangement was ratified and signed by Couch as attorney for Stark. In June, Stark also came back to Portland and made no objection to the arrangement of April 13th, by which block 81 was secured to Chapman; and he received from Chapman a list of all lots sold out of the part assigned to him north of Stark street.
In view of these facts it was held by Judge Sawyer that Colonel Chapman had received a valid title from Stark to the block, good [page 123] against all parties but the United States, and that when Stark got a title to this block from the United States it was as in the nature of a trust for Chapman, or his assigns, of whom Starr was the latest at that time. It appeared, therefore, that Chapman gave his deeds to the property in good faith and had never been required to pay anything to Stark, other than that Stark was to be left in peaceable possession of the whole tract north of Stark street, to which Chapman had color of one-third interest. This Chapman gave and Stark received without complaint; the ownership of block 81 being the consideration, or offset, for which Chapman relinquished all claim to that portion of the townsite.
The details of the case, which was thus consummated, are best studied, however, with the second series of cases which arose from the claims of Lownsdale’s heirs, to which we now invite the attention of the reader. Indeed, we do not know but that we owe an apology for going minutely into the legal subtleties of these very subtle cases, which Judge Sawyer declared to be sui generis; or like nothing else in the world.
Lownsdale respected all the agreements by which he and his partners were selling town lots, but upon his death his heirs very naturally desired to find out the exact limits of his estate and what were their own rights and interest in it. He left many heirs, most of whom were residents of Indiana, or some other eastern State. These were John R. Lamb, Emma S. Lamb, and Ida Squires, children of Sarah Squires, deceased daughter of D. H. Lownsdale; Mary E. Cooper, J. P. O. Lownsdale, Millard O. Lownsdale and Ruth A. Lownsdale.
They found that D. H. Lownsdale had sold, together with his partners, many lots from the claim to which he was afterwards awarded a title without any reservation by the United States Land Office. They found that he had given no title to such lots connecting with this patent. There appeared nothing upon any legal record to show that he had given a fee of permanent right and title to any portion of the land which appeared to have been alienated, and they wished to know whether the lots that now appeared to be in the [page 124] possession of various Portland people were so by legal title, or simply by way of temporary occupancy which ceased as soon as Lownsdale obtained his patent.
The question also naturally arose, First, how could Lownsdale give title for anything more than mere possession to land to which he had no title except of mere possession, as was the case with him before he received a patent in 1852? Second, how could a title to Lownsdale for land which he entered in 1852 give any title in the same land, or parts of it, to those who purchased mere possession before that date? Third, after Lownsdale got a title to the whole claim without any legal reservations, did he not own the whole of it without reservation? Or by what compulsion could any one obtain from him or his heirs, title to land in every part of which he held a perfect and complete title from the United States, to the exclusion of all others? Fourth, even supposing that he had made promises to give title to certain lots which he had sold for valuable considerations, when he should get a title himself, was he not prevented, or barred out from doing so, by the clause in the Donation Act providing that affidavit must be made by all who filed upon land under this act that the land claimed A is for their own use and cultivation, and that they have made no sale or transfer, or any arrangement, or any agreement of sale * * * by which the laud shall inure to the benefit of any other persons?@
In looking over all the facts in the case, it seemed to them and to eminent counsel, that the sales made by Lownsdale before lie acquired his legal title were wholly illegal and invalid and without binding force in law, and could extend only to simple temporary possession and use which the purchasers had already enjoyed; and they determined to enter suit to recover all property which was included under the specifications of the patent issued to D. H. Lownsdale by the United States. This would of course, dispossess a large number of Portland’s property holders who supposed that they had titles to their land, and in this faith had built upon and improved their property. and were confidently expecting to reap their millions of profit when the great growth of the future should come. The legal possibilities of the case were so great as to attract universal attention and to elicit a multitude [page 125] of opinions from lawyers and others acquainted with law and judgments. Sympathies of all kinds, this way and that, were excited, and the prospect was that many innocent purchasers would be thrown out of their valuable holdings; for the difficulties in the way of establishing a legal right to the persons then holding lots were confessedly very great.
It was evident from the start that the courts must proceed in one of two ways--either to stick to the letter of the law and follow a strict and narrow construction, and recognize no title except that conferred by the United States Patent; or else to take a general view of the circumstances and necessities of the case and decide upon the general equities and common understanding of all parties, and to let possession count for all that it was worth.
So far as the heirs of Lownsdale were concerned, it could be very properly claimed for them that they were entitled to all the property and wealth that had been accumulated by him, and that those who had been enjoying the use of his property for so many years without rent or other burden, and for a considerable part of which they had paid but nominal prices, should now be willing to relinquish it to the rightful owners. On the other hand, on the part of the people of Portland, it could be claimed that they had bought these lots with the expectation of permanent possession; that they had cleared them of timber, reduced them to order, built upon them commodious houses, had made for themselves and families permanent homes, and had by their toil and self-denial at least assisted Lownsdale in creating a metropolis, and by their very living and working here had multiplied the value of Lownsdale’s remaining property so that what was left to his heirs was now many times as valuable as it would have been if they had not incurred all this effort and expense.
As attorney for the lot-owners Colonel Chapman was retained. His legal abilities and acumen were well recognized and he was specially prepared to conduct such a case as this, all the details of which he had known most thoroughly and kept account of most diligently. Dr. Davenport was selected as the one against whom the complainants, or heirs at law, should move, and by whose claims the equities in the case should be determined. District Judge M. P. [page 126] Deady, of our city, most readily agreed to the suggestion that Judge Sawyer of the United States Circuit Court should be present from San Francisco, and the case on both sides was conducted with the utmost good spirit and with conspicuous ability, and the final decision of the Court was so careful, cogent and just, as to pass finally without exceptions through the Supreme Court of the United States.
Without following the argument of the lawyers, which was very voluminous, it is possible to give here a brief abstract of the decision itself. It may be premised in a general way that the Court followed a liberal construction, not exactly of the law, as but little law was involved, but rather of the necessities and circumstances of the case. It recognized the validity of the agreements entered into by the proprietors before any United States patents were issued. After giving due attention to the facts in the case, Sawyer’s opinion proceeds as follows (First Sawyer, 619) AThe decision of this action. I am satisfied, must turn upon the validity, construction, and effect of the said various contracts and conveyances * * * and these must be construed in the light of the condition of things existing at the time and with reference to which they were executed.
“It is a matter of public history, of which the Court can take notice, that Oregon was settled while the sovereignty of the country was still in dispute between the United States and Great Britain; that subsequently, a provisional government was organized and put in operation by the people, without any authority of the sovereign powers; that laws were passed temporarily regulating and protecting claims made upon public lands; and that afterwards, the territorial government was established under the authority of Congress and put in operation was means by which the long before there any law or real title to any portion of land in Oregon could be obtained. The title to the lands in Oregon were vested in the United States from the moment that the right of sovereignty was acquired, and the first law that was passed, by which the title in fee could in any way be acquired from the government was the said Act of September 10th, 1850, called the Donation Act. Long before that time, however, an organized community had existed; lands had been taken up and [page 127] improved; towns laid out, established and built up, having a considerable population and a growing commerce. It was necessary, in the nature of things, that some right of property should be recognized in lands, in the dealings of the people among themselves, and laws were adopted by the provisional government regulating the subject. Tracts of land were taken up and claimed by the settlers within the limits, as to quantity allowed; towns laid off, and lands and town lots sold and conveyed from one to another, in all respects as though the parties owned the fee, except that every party dealing with the lands, necessarily knew that he did not, and could not, under the existing laws obtain the fee from the real proprietor. * * *
“But between man and man possession is evidence of title in fee, as against everybody but the true owner. The law protects in his possession the party who has once possessed himself of and appropriated to his use a piece of unoccupied land until he has lost his possession and right of possession by abandonment, as against everybody but the true owner. Such possession and right of possession are recognized as property by the common law, and the right is protected and enforced by the Courts. * * * * * * Prior appropriation is the origin of all titles. Prior discovery and an actual or constructive appropriation is the origin of title even in governments themselves. For communities situated like that in the early settlement of Oregon, no rule could be adopted which would better subserve the public interest than to treat prior occupancy as giving a provisional title to lands in reasonable quantities and under proper restrictions, and thereafter, until the real title can be obtained from the Government, deal with it as between individuals in all respects as if the prior occupancy originated and vested a title in fee. This is the natural order of things, and affords a rule of conduct consonant with the ordinary course of dealings, and the common experience of mankind in organized communities.”
Proceeding upon this broad basis, the Judge cited the circumstances of the case in hand; the Portland Land Claim was taken tip, lots sold, improved and lived upon. The party thus occupying acquired possession as against all but the true owner--the United States. This right could be transferred by sale like any other. [page 128]
“Lownsdale was, on March 30th, 1849, in possession of the six hundred and forty acres, except certain lots already sold. On that day two instruments were executed, each evidently a part of one and the same transaction, between Lownsdale and Coffin, forming a partnership, by which the legal title was to be vested in Coffin, but to be held in trust for the joint benefit of the two. All profits of sale to he were divided, every exertion made to acquire title, each paying half of expenses, and upon dissolution Coffin, is to convey one-half to Lownsdale of whatever he may have tinder title. In this agreement Lownsdale and Coffin were to own each a half interest in all the six hundred and forty acres, except certain lots already sold to various parties as town property; but every exertion was to be made to gain a title to the whole six hundred and forty acres, not excepting those lots--showing that they claim no further interest in those lots, but were to get title to them for the benefit of those to whom the lots had been sold.
“When, in 1849, Chapman was admitted, the three partners were to have an equal interest in the property, excepting town lots already sold previous to this date as town property; and, in 1852, when the section had to be divided up in severalty, so that the proprietors might obtain a title on their own individual account, as provided by the Donation Act, they make an agreement in which they set forth the fact that they have already obligated themselves to make to their grantees a general warranty deed whenever they, as grantors, shall obtain title from the United States, and bind themselves again to make such deeds to the original grantees, their heirs, assigns, etc., whenever they should get the patents for which they were then taking steps to obtain.
“Whenever a new partner was admitted it was expressly provided that the lots already sold should be excluded from the use of the partners, but that the title must be got for all. Whence it follows that acquisition of title was for the benefit of the purchasers, and not of the vendors--partners--only.”
It was also further held by Judge Sawyer that although Lownsdale only promised to give the deed when he got a title, and was under no compulsion by that promise to get a title, yet nevertheless that [page 129] when he did proceed to obtain a patent, although voluntarily, he was not thereby relieved of the trust which rested in his promise or covenant, but that the trust, having passed from the covenant, now rested in the title, which he procured, and the title thus acquired was in pursuance of the covenant, and therefore for the benefit of the parties designated in the covenant. Moreover, it could not be allowed that Lownsdale was receiving any new valuable consideration from the vendees when he agreed to acquire for them a deed for lots previously purchased and paid for, since the only possible value derivable to him from such deed, or promise of it, would be to prevent purchasers going forward to make a claim to their lots in their own name under the Donation Act, and thus allow him an opportunity to file on the whole claim and get legal title to the whole of it, to the exclusion of the owners or purchasers, of the lots. But that would be a presumption of bad faith and fraud, which should not be admitted. The fact that Lownsdale proceeded voluntarily to get title, and not under compulsion of his covenant, or that he received no valuable consideration for procuring this title, would not, therefore, make any difference with the binding nature of his covenant, which was legally fulfilled by the very fact of his obtaining title.
Still further, it was held that the clause requiring an affidavit of those entering lands under the Donation Act, that such laud was for their own use and they had made no contract to sell it, should be decided, or interpreted, in the same liberal spirit. It was held that the law was enacted with a view to the existing state of things, contemplating the fact that many settlers had been living long on their claims, had already sold and bought; and that to confirm sales already made, in the course of business in the past, was no “future contract” such as was contemplated and prohibited by the law. At all events, the clause must be construed so as to work both ways: if it were held to prevent those who had bought land from Lownsdale from holding their lots, it must also be held to prevent Lownsdale from perfecting his title; since it was no more an infraction of the law for them to buy than for Lownsdale to sell. But Lownsdale had been permitted to obtain title, in spite of his former promise to grant titles to [page 130] purchasers, and upon the validity of his patent must the whole validity of the claim of the plaintiffs be made to rest. But, if his title was valid, in face of his covenant, that covenant was not invalidated by the clause in the Donation Act prohibiting future contracts.
The above is but a brief abstract of this most valuable document which brought peace to a large number of Portland lot holders. To sum it up, Judge Sawyer held that in the conditions of the case, and of society, and since a town could have been built in no other way at that stage in the development of Oregon, the promises, agreements and covenants of the proprietors before they got a legal title were still valid after they got that title, and that there was nothing in the Donation Act, or any United States law, to prevent their execution. The cross bill of Dr. Davenport was, therefore, allowed and possession of the property given him; while the bill of the Lownsdale heirs, praying for relief, was denied.
Judge Deady concurred, in the following language: A I concur in the conclusion reached by the Circuit Judge. After careful consideration, and not without some doubt and hesitation, I have become satisfied that by force of the agreement of March 10, 1852, and the subsequent action of Lownsdale, Coffin and Chapman, under and in pursuance of it, each of them took and obtained from the United States a separate portion of the Land Claim in trust for the purchasers or vendees of any lots situated therein, and before that time, sold by any or all of these parties.
“From the passage of the Donation Act--September 27, 1850--and prior thereto, Lownsdale, Coffin and Chapman had held this land claim in common, and made sale of lots throughout the extent of it; but on March 10, 1852, by means of this agreement, and with intent to conform to the provisions of said act and obtain the benefit thereof, they partitioned the claim between themselves so that each was thereafter enabled to proceed for himself, and notify upon and obtain a donation of a separate portion of the whole tract.
“The Donation Act was a grant in praesenti. Each of these settlers--Lownsdale, Coffin and Chapman--was upon the laud at the date of its passage, and from that time is deemed to have an estate [page 131] in fee simple in his donation, subject only to be defeated by a failure on his part to perform the subsequent conditions of residence, cultivation and a proof thereof. This being so, it follows that at the date of this agreement either of these parties could impress a trust upon his donation in favor of any one. And, even if it be considered that the settlers acquired no interest in the land until the partition and notification before the Surveyor General, still each one having acquired a separate portion of the common claim in pursuance and partly by means of this agreement, so soon as he did so acquire it, the trust provided for in it became as executed at once, and might be enforced by the beneficiary thereof; although a mere volunteer, from whom no meritorious consideration moved.@
He doubted, however, whether the purchaser of lots could be shown to have contributed in any way to the acquisition of the land from the United States, thinking the taking of portions in less quantities than the smallest legal sub-division, forty acres, was unknown, if not illegal; and that lot holders at Portland would not, in those days of change, think of serving four years to secure simple lots, the value of which was then very problematical. Nor was it likely that any one of the citizens was living upon and cultivating such lots in accordance with the Donation Act. The lot-owner had no right, except to bare possession, and must look to the settler for perfect title, relying upon the written obligation which, in most instances, was given.
He summed up the case thus: “I think the agreement of March 10th, 1852 a valid instrument, and not within the prohibition entered in section four of the Donation Act, against > All future contracts,= > for the sale of land,= granted by the act. By its terms it appears to be a contract concerning the making of title to the parcels or lots of land already sold, and, for aught that appears before the passage of the Donation Act. But if this were doubtful good policy, it seems to me it requires that the instrument, as between the parties to it, and in favor of those intended to be benefitted by it, should be so construed and upheld.”
Following is the agreement referred to so often in the foregoing decision, and may be regarded as the palladium of the Portland land [page 132] titles, and the end of controversy to all contestants. It was made in March, 1852, when the proprietors found that it was impossible to secure a title jointly to the land which they had been holding and selling as partners. Each covenants that
“First, He will fulfill and perform all contracts and agreements that he has entered into with the others, or each of them, or with other persons, respecting the said tract of land or any part thereof.
“Second, That he will never abandon or remove from the claim which he, simultaneously with the signing and sealing hereof, shall make with the said Surveyor General, to a portion of the said Portland tract, until he shall obtain a patent from the government of the United States, that is to say:
“Third, That he will use all due diligence to procure a patent for the same and that to this end, he will in all respects fulfill and perform the requisition of the law upon this subject: and
“Fourth, That when patent should be so obtained he will make good and sufficient deeds of general warranty for all lots or parts of lots in the part or tract so patented to him, which may heretofore have been sold or agreed by said parties jointly; or any of them separately, to be sold; that said deed, of course, is in all cases, to be made to the original grantee, etc.”
For the faithful performance of this covenant, the proprietors bound themselves in the sum of three hundred thousand dollars.
Lownsdale filed his notification, in pursuance of the above covenant, with the Surveyor General, March 11th, 1852, dating his settlement back to September 22nd, 1848. His certificate was issued on October 17th, 1860; and the patent was obtained January 15th, 1865. The period covered by the contests in the courts was from about 1863 until the final decision by the United States Supreme Court some ten years later. By this, Judge Sawyer’s opinion was sustained.
The third set of cases arose out of contests about the public levee, the possession of which was contested by the city and private individuals alternately--the strip of land on the river bank between the shore line and Front street. The proprietors, who had become familiar with river transportation on the Mississippi, where the [page 133] dykes and levees were used for, a sort of depot and point of lading for the flat boats and steamers that traversed the river, seem to have entertained the idea that the city front might be need in the same manner here, and that the public interests of the city and community would be conserved by dedicating this to the people as public property, like a street or park. Coffin, Lovejoy and Pettygrove were regarded as having set this aside as a public levee, and the whole front of the original claim was included. Nevertheless, while it was understood by the public generally that the water front was reserved for the free use of the people, it was never shown in court that any proprietor, either before or after the land was acquired under the U. S. Patent had made any dedication, and in opposition to the general understanding, the proprietors made from time to time private use of it as if they still regarded themselves as owners. Pettygrove and Lovejoy kept upon the levee a private wharf and slaughter-house. When Lownsdale came into possession of the townsite he also held a wharf on the levee as private property.
Nevertheless, the Portland people had firmly imbedded in their minds the idea that they collectively owned the levee, and asserted in court that they paid higher prices for their lots because they were assured that they should have free use of the river front. The matter was brought into court in 1850. (1) In that year Mr. Lownsdale had a building erected upon the fractional block east of Front street, between the river and a lot owned by J. L. Parrish. The latter claimed that his free use of the river was impaired thereby, that the understanding in accordance with which he had purchased his lot was violated, and he therefore sued to have the obstruction removed. While the case was pending, a compromise was agreed upon that if Parrish would withdraw the suit, the river front from Washington to Maine street should be dedicated as a public levee for the free use of [page 134] the people. The fact that the proprietors made any such concession shows plainly that they recognized the popular idea as at least partially correct, and was an admission that they had given the people some right to suppose that they might use the river bank without rent or other payment. In this case, the matter was proposed to be settled the more willingly by the proprietors, because a vexatious law suit as to title of any considerable portion of the town tended to retard growth, and to derange business.
But the people of the city took no wise steps to secure their rights if they had any. The suit to remove obstructions was not withdrawn, and therefore, Lownsdale was released from his part of the promise. The common council of Portland acted in a manner peculiar and contradictory. They either forgot for a time that they had any rights to protect and secure for the city, or deemed these of little importance. In 1850, Lownsdale had had the city surveyed by one R. V. Short, and from this survey a map was made by John Brady. According to this map, Front street--then called Water--was bounded on the east side by a line parallel with the western boundary, and the land on the river bank east of the street was laid off in lots and blocks according to the meanderings of the river. In 1852, the common council seemed to consider it a good plan to adopt some map as an authoritative diagram of the city, and probably because the Brady map was most convenient they declared it to be the correct plat of Portland. By this stroke they signed away whatever right they had to the levee. In 1860, however, another council revived the old matter, haying discovered during the eight years intervening that the Brady map made no account of the levee, and they now declared that the river front was public property. A crusade was made against those who had put buildings upon the levee, and it was ordained that all such obstructions be removed. About this time, if report is not at fault, Mr. Geo. W. Vaughn, one of Portland’s early mayors and the proprietor of the Portland flouring-mill, was ousted from his holding on the levee, by order of the council, and, in disgust, took up his residence for a time in the rival city of Vancouver. A wharf that was in process of construction according to the directions of J. P. O. Lownsdale, was proceeded against. His agents and builders were arrested, and it was threatened to tear down the structure. [page 135]
After these vigorous measures, however, a great hubbub having been raised, the Council changed its course, repealed its former declaration and ordained that the levee was private property, and that taxes must be paid upon it. The suit brought by Mr. J. P. O. Lownsdale to enjoy the use and possession of his property was decided in his favor--the Court finding that there was no proof that Lovejoy, Pettygrove, Chapman, Coffin or D. H. Lownsdale had ever given the levee to the public; that they had no power to give anything of this property before 1850, since there was no title before that date; that Lownsdale’s donation certificate gave him title to the levee; that he claimed all proprietary rights upon it, using, renting’ and selling portions, and that the city had twice publicly admitted his claim, and had compelled him to pay taxes upon it. Nevertheless, it will always be understood by many that at the beginning, or in the early days, Portland supposed she owned the water front for the public, and that the proprietors had some intention of facilitating commerce and providing against extortion of wharfingers by having a free front for the use of boatmen, farmers and shippers. But, whatever rights she had, she allowed to slip through her fingers.
There was, however, a levee still left. General Coffin dedicated to the city a strip from Jefferson street southward along the river bank to Clay street. He reserved for himself only the right of using it for purposes of ferriage, but afterwards sold this right to the city, giving at that time a quit claim to the whole tract. The question what to do with the property was variously agitated at different times before the City Council. Recommendations for leasing it for the benefit of the city were incorporated in municipal reports, and suggestions for improvements so as to make it of service to the public were occasionally made. But it was, for the most part, neglected for years. In 1885 the Portland & Willamette Valley Railway, having for some time labored to obtain the use of the property, was favored with a bill passed by the Oregon Legislature granting them the premises for the purposes of a depot. This was held not to be inconsistent with its use as a public levee, on the ground that the dedication having been made in favor of the public, the State rather than the city was the beneficiary. Formerly the city [page 136] named the levee as one of its own properties, but in the late enumerations it has disappeared, and, as a matter of fact, the whole river front is in private possession, and the city or the public makes claim to no adverse rights.
Of course, all this was not consummated without litigation and legislative pressure. It would seem that such a property as the river front, or that donated by Coffin, was too valuable for the city to lose, and history must call those officials who, by neglect, forfeited the gift, to a severe account. The intention of Coffin was good and his policy correct, and if by constructing a suitable wharf, and charging reasonable rates for the use of it, or by leasing the privilege and fixing wharf rates at a reasonable price, the city had carried out his idea, Portland would always have had the ability to make the best terms for wharfage, stowage and shipping. Nevertheless, it was an idle thought to place any such trust in the hands of men chosen at municipal elections. Special trustees, apart from all political interests and persuasions, should have been appointed and the property managed much as are the City Water Works at present.(2)
With this we may dismiss the cases that grew out of the actions of the original claimants and their heirs, and remember that the first disposition of property by Lownsdale and the other proprietors, was confirmed by judicial decisions, except that the contemplated levee, for the use of the public, was, principally by the inefficiency of the city authorities, suffered to fall into private hands.
In respect to the claim of Finice and Elizabeth Caruthers, on the south side of the city, there was also much litigation, which at the close took a somewhat ludicrous turn. The Caruthers were mother [page 137] and son, and they came to Portland in 1850. There was some sort of mystery about their former life, and Finice lived much alone, never marrying. The two, upon arriving here, bought the land belonging to William Johnson, who lived south of town. On the side hill amid the fir trees, they built a cabin, putting one part of the structure on the claim that the mother decided to take, while the other extended upon the land of Finice. In this retreat, far from the world, and separate from their former life, whatever it was, they lived quietly and happily. The old lady was peculiar, and pleasant stories of her sayings and doings went around the neighborhood. In one of these it is related how a caller found her in a sad and pensive frame of mind, from which his best sallies of wit could not arouse her. At length she revealed the cause of her melancholy. “There will be war,” she said.
“Ah indeed; why do you think so?”
“My old hen” she replied “laid an egg with letters on it; and there it was as plain as fire >W’, >O’, >R’, War.”
Whether it was by some such prescience that she named the last of her race Finice (finis) does not appear. Her life of omens and hard work, and sorrows, whatever they had been, came to an end and the State began to afflict her son with a suit to claim her half of the donation, on the ground that he was not a legal heir, but the case was finally dismissed. Caruthers was a quiet upright man, much interested in education, and gave liberally for the erection of the first schoolhouse, and performed all his public duties cheerfully. He laid off some twenty blocks on the north side of his claim, calling it Caruthers’ Addition to Portland. Upon his death there was no will and no heirs appeared. While his property was in the hands of an administrator, a second addition was laid off and property was sold.
Various parties in the city seeing the value of the land left by Caruthers, formed a company and sent East for an heir. In St. Louis there was found a man who went by the name of Thomas, or at least was so introduced in Portland, but was more familiarly known as “Wrestling Joe.” He appeared in Court as heir, claiming to he the husband of Elizabeth Caruthers. While he was trying to establish his claim, one Dolph Hannah set up a counter [page 138] claim. The case involving almost endless possibilities, and, by its notoriety, inviting the appearance of other sporadic heirs, a company was formed to buy up the rights and the claims of the two contestants. Hannah and Thomas were well paid, and the former withdrawing left the property with Thomas, who turned it over to the company. Their title was confirmed by the Courts, and they proceeded to sell off lots and blocks. Upon the appearance of Villard, and the formation of the Oregon and Transcontinental Railway Company, the stocks of this Caruthers Company was bought for the O. R. & N. R. R., and it was at first proposed to make the terminal works of this road on the west side of the river, near the present site of the Powers’ Manufactory. Maps of the city made at that time show the O. R. & N. road crossing the Willamette at Ross Island, and there was at first considerable preliminary work done at this place. The depot and terminal works were finally located, however, on the east side of the river below the city, but the railroad is understood to still own what remains unsold of the original Caruther’s claim--illustrating once more how loose property gravitates toward railways.
The records of the Courts have also teemed with litigation as to property on surrounding tracts, as of King, Terwilliger and Balch; while the Holladay case, of more recent years, on the east side has long afforded items for the press. Into the circumstances or merits of these, however, it will not be necessary to enter here. [page 139]
(1) It is stated by an early resident of Portland that in 1850 a lot on the levee was sold to Captain Norton, who began to make improvements. His right to the water front was disputed by those owning behind him, on the ground that this, like a street, was dedicated to the public. In a meeting of the proprietors, c. H. Reed sitting as representative and attorney in fact for Coffin, who was absent, it was decided to compromise by leaving Norton in possession of his lot. but to allow the public to use the rest as public property.
(2) Colonel Chapman states that in the first years all the owners and proprietors at Portland were acquainted with the levee system of the Western cities, and particularly with the commercial methods of Cincinnati. When, however, Couch improved his claim, and built a covered wharf, in the style of the New England sea ports, it was seen that the great convenience of this method would make his place the terminus of vessels, and to induce them to land or load above, it was necessary to build docks and have regular warehouses. It was, therefore, decided to abandon the idea of a levee, and by selling the water front encourage the building of proper shipping facilities. The legal difficulties and contests that followed were regarded as unimportant. The proprietors regarded themselves as merely making the best disposition of their own property for the good of the city.