Measures taken by Proprietors to Protect
Land Purchasers' Rights-The Three Causes of Litigation-Legal
Points in the Stark vs. Starr Case-Decision of the Courts-Causes of Litigation Over the Lownsdale Estate-Final
Settlement of the Case in the United States Circuit
Court-Decision of Judge Sawyer and Concurrent Opinion of
Judge Deady-Public Levee Case-Grounds of Private and
Municipal Claims to the River Front-How the City's Rights
were Lost-Legal History of the Caruthers Claim.
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 of treated of at all, enough of
the details should be furnished to state the
case with clearness and definiteness.
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 fore fend 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.
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 6,10 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 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, Barnhart, 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 Marye 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
he 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 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 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 land 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 Chap-man 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 tip 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
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 generic;
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 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 "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 land shall inure to the benefit
of any other persons ?"