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Decision of
Judge Sawyer and Concurrent Opinion of Judge Deady
Following is the agreement referred to so
often in the foregoing decision, and may be regarded as the
palladium of the Portland land 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 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 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 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 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 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, having 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.
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 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 and son, and they came to
Portland in 1850. There was some sort of mystery about their
former life, and Pinice 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 be the husband of
Elizabeth Caruthers. While he was trying to establish his
claim, one Dolph Hannah set up a counter 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 N. 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.
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 Test 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.
