USA > Oregon > Multnomah County > Portland > History of Portland, Oregon : with illustrations and biographical sketches of prominent citizens and pioneers > Part 12
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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 up, 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. [9]
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"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 be 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 under 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 mnight 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
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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 frem 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 voluin- tarily 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 clanse requiring an affidavit of those entering lands under the Donation Act, that such land 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
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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 posses- sion of the property given him; while the bill of the Lownsdale heirs, praying for relief, was denied.
Judge Deady concurred, in the following language: "I concur in the conclusion reached by the Circuit Judge. After careful consid- eration, 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 land at the date of its passage, and from that time is deemed to have an estate
Sk Reeds
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in fee simple in his donation, subject only to be defeated by a failure on his part to perform the subsequent conditions of residence, cultiva- tion 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 Marchi 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 terins 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
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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 inade 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 15tl, 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
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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 used 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 Petty- grove 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 ininds 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 inatter 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
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.
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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 payınent. In this case, the matter was proposed to be settled the inore 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 with- drawn, 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 inap 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, having discovered during the eight years intervening that the Brady inap 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.
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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 tlie 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 southiward 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
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named the levee as one of its own properties, but in the late enumer- ations 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.1
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
1 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 particu- larly 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 frout 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.
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and son, and they came to Portland in 1850. There was some sort of mystery about their former life, and Finice lived mnuch 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 namned 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 somne 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, formned 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 be the husband of Elizabeth Caruthers. While he was trying to establish his claim, one Dolph Hannah set up a counter
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