Owners of property erected wharves on the line of an adjoining
street on the riverfront in Portland under ordinances adopted by
municipal authorities. They made an agreement with a private bridge
as to keeping the street open. The city, having bought the bridge,
proceeded under legislative authority to change the approaches, and
in so doing affected the access to the wharves. The owners sought
to enjoin on the ground that it took their property without
compensation and impaired the obligation of their contract with the
bridge owners. The state court held the ordinances were merely
permissive, and that the persons constructing the wharves had no
interest or easement in the streets and the proposed change was
merely a change of grade of street for which consequential damages
were not allowed under the law of the state.
Held
that:
While the interpretation of a local ordinance by the highest
court of the state is not indisputable, and, even though it may
conflict with other decisions of the courts of the state, if it
does not conflict with any decision made prior to the inception of
the rights involved, this Court will lean to an agreement with the
state court.
Burgess v. Seligman, 107 U. S.
20.
The power to grade streets given by a statute is not necessarily
exhausted by one exercise thereof, and, where no federal question
is involved, this Court must accept the interpretation of the
highest court of a state of a local statute as to the extent of the
power under a statute authorizing a municipality to change the
grade of streets.
Bill in equity to enjoin defendants from closing a certain
passageway in the approach of a bridge called the Morrison Street
Bridge in the City of Portland, Oregon. The approach leads to
plaintiffs' wharves. The bill was demurred to and the demurrer
sustained by the trial court, plaintiffs declining to plead
further, and a decree was entered dismissing the bill. The decree
was affirmed by the supreme court of the state. 45 Or. 1.
The bill alleges that some of the plaintiffs have been for many
years owners of Block 76 in the City of Portland, and other
plaintiffs have been the owners of Block 77. These blocks are
bounded on the east by the Willamette River and on the west
Page 200 U. S. 149
by Front Street. Morrison Street is the north boundary of Block
76 and the south boundary of Block 77. Attached to the properties
are valuable riparian rights and wharf rights and privileges, which
entitled the owners to build, maintain, and use the same to the
established wharf line of the river, and on them are warehouses,
docks, and wharves of great value, which are occupied by tenants.
The properties are located within the donation land claimed by one
Daniel H. Lownsdale, under whom plaintiffs claim as owners. In the
dedication by Lownsdale of the plat of the Town of Portland, it is,
among other things, provided as follows:
"The wharves and wharfing privileges are specially reserved to
the owners of the claim, and never (except by deed) subject to any
but the laws of the Territory of Oregon or ordinances of the town
or city corporation, as other town (private) property. . . . "
That the Common Council of said City of Portland adopted an
ordinance, No. 2273, entitled "An Ordinance Authorizing the
Construction of a Wharf on the Willamette River in Front and
Opposite Lots Numbers 3 and 4, in Block No. 77," approved September
26, 1878. [
Footnote 1]
Page 200 U. S. 150
Also an ordinance, No. 2387, entitled "An Ordinance Authorizing
the Construction of a Wharf on the Willamette River in Front of and
Opposite Lots Nos. 3 and 4, in Block No. 76," approved February 21,
1879. [
Footnote 2]
Page 200 U. S. 151
The predecessors in interest of plaintiffs constructed wharves
in conformity with the provisions of the ordinances and the grades
established therein, the wharf constructed pursuant to ordinance
No. 2387 covering the south half of the street, and that
constructed pursuant to ordinance No. 2273 covering the north half
of the street. The wharves consisted of two floors or stories, with
a large warehouse over the second floor. The second floors were
built slightly above the level of Front Street, with approaches as
provided in the ordinances. The lower stories or floors of the
wharves were considerably below the level of Front Street, and were
connected with that street by a roadway running on an incline along
Morrison Street from Front Street down to the portion of the
wharves built on Morrison Street, which roadway was constructed by
the respective owners of the properties. The wharves, docks, and
warehouses and the approach thereto have been used by plaintiffs
and their predecessors for more than twenty years, and have been
used as landing places for boats and vessels navigating the river,
and by people and teams having business at the docks and wharves,
and the docks and wharves and the approach thereto have been used
as a street or highway by the public. The grade of Morrison Street
occupied by the roadway leading from Front Street and over that
portion of the street upon which the wharves and docks were built
has never been established except by said ordinances, and said
portions of Morrison Street and the roadway have been and are now
improved and used, and the same are a public street and highway,
and were built and have been maintained "in reliance of the rights
and privileges therein [the ordinance] maintained."
In 1878, the Legislature of the State of Oregon passed an act
authorizing the Portland Bridge Company, or its assigns, to
Page 200 U. S. 152
construct and maintain a bridge crossing the Willamette River
between Portland and East Portland for all purposes of travel and
commerce
"at such point or location on the banks of said river, on and
along any of the streets of either of said cities of Portland and
East Portland, as may be selected or determined on by said
corporation or its assigns, on or above Morrison Street of the said
City of Portland, and in streets of said City of East Portland; . .
. and provided, that the approaches on the Portland side to said
bridge shall conform to the present grade of Front Street in said
City of Portland."
The bridge was constructed in 1886, the west end of which was
located at the east end of Morrison Street. Between the west end of
the bridge and Front Street a plank road or approach was
constructed over Morrison Street, but the approach did not conform
to the grade of Front Street, but was constructed at an elevation
of more than two feet above such grade at the west end of the
bridge, and thence inclined to Front Street, and has always been
maintained at such elevation. The bridge did not cover the whole of
Morrison Street from Front Street to the west end of bridge, but
was so constructed that a portion of Morrison Street, in the center
thereof and leading from Front Street on an incline to the lower
docks and wharves of plaintiffs, was left uncovered and unchanged,
the same being about eighteen feet wide and extending easterly from
Front Street about ninety-five feet. The approaches constructed by
the bridge company have been and are sufficient for the passage to
and from the bridge for foot passengers, cars, and vehicles using
the bridge. The opening was left in the decking of Morrison Street
to provide access to the lower floors of the wharves, and as a
means of ingress and egress from them, and did not materially
interfere with or obstruct the use of city roadways and the wharves
and docks as they had been theretofore used.
In 1895, the City of Portland purchased, under legislative
authority, the Morrison Street bridge from the Willamette Iron
Bridge Company, the successor in interest to the Portland Bridge
Company, and subsequently, under the provision of an
Page 200 U. S. 153
act of the legislature, approved February 21, 1895, the County
Court of Multnomah County assumed and has since had the care and
operation of the bridge and its approaches.
In 1886, the Willamette Iron Bridge Company began the
construction of the bridge and built two piers in the river to
support the western end of the bridge in front of the outer line of
plaintiffs' wharves, in such position as to obstruct navigation and
to greatly interfere with the access to the wharves, and at the
same time began to construct the approach to the bridge over
Morrison Street in such manner as to interfere with access to the
wharves. The owners of the wharves in April, 1887, protested, and a
compromise and settlement was effected between the parties whereby
the bridge company agreed to forever leave an opening in the bridge
approach substantially as it now is, and in consideration thereof
the wharf owners agreed to permit the piers to remain as
constructed, and as they have ever since remained, and to waive all
objection to the construction of the approach in the manner in
which it was constructed, leaving the opening forever open and
unobstructed for free ingress and egress to the wharves. The
parties acted upon the agreement, and the wharf owners did not
begin or prosecute legal proceedings. In 1890, however, the
company, notwithstanding the agreement, threatened to close up the
opening, whereupon the wharf owners commenced a suit in equity to
enjoin the threatened injury, and thereupon, in consideration of
the dismissal of the suit, the bridge company entered into another
agreement to refrain from the threatened acts, and leave the
opening and approach in the condition as the same now is.
It is alleged that the City of Portland acquired the bridge and
the approach thereof subject to the said agreement, and the rights
vested in the plaintiffs thereby, and that the defendants are
proceeding, without tendering or offering compensation therefor, to
close said opening, and thereby deprive plaintiffs of their
property without due process of law, contrary to the Fourteenth
Amendment of the Constitution of the United States.
Page 200 U. S. 154
And it is alleged that the ordinances of the City of Portland,
hereinbefore set out, constitute a contract between the city and
plaintiffs' predecessors, and the acts of the legislature of the
State of Oregon which have been mentioned, so far as they undertake
to confer upon defendants the power to close the opening of such
bridge without payment of compensation, impair the obligation of
such contract, and violate § 10, Article I, of the Constitution of
the United States. An injunction was prayed.
Page 200 U. S. 159
MR. JUSTICE McKENNA delivered the opinion of the Court.
If we determine what rights plaintiffs had in Morrison Street
and the river, we shall be able to determine their contentions.
Plaintiffs claim a contract with the city based on the ordinances
which authorize plaintiffs to construct their wharves, but they
also claim rights which they say were attached to the property and
reserved to it by Daniel H. Lownsdale, "of the wharves and wharfing
privileges." The rights so reserved are made especially dominant.
Indeed, the rights obtained from the city are somewhat minimized
and depreciated. All the city
Page 200 U. S. 160
could do, it is said, and all the city attempted to do by its
ordinances, was to authorize the riparian owners to build their
wharves. Why authority from the city was necessary in view of the
reservation in the Lownsdale dedication, if it was as extensive as
contended, seems to call for explanation, and explanation is given
by saying that the ordinance was but the exercise of the authority
to regulate the manner in which the wharves were to be built by the
riparian proprietors. And plaintiffs, to point their reliance on
the reservation in the Lownsdale dedication, say:
"Whether the ordinances do or do not purport to grant a
privilege or right to use or appropriate the street or an extension
thereof for wharfing purposes, the right exists, and it existed
because of the reservation in the plat, long before the ordinances,
and it exists independent of any action of the city. This right is
different in kind from the right of the public to use the street.
And it is a valuable right, which cannot be taken away or destroyed
without compensation."
Plaintiffs, however, in other parts of their argument, claim, by
reason of the ordinances an irrevocable license, and in the
pleadings give prominence to nothing else but the rights conferred
by the ordinances. On account of this, probably neither the trial
court nor the supreme court commented on the Lownsdale dedication.
But we will not consider plaintiffs precluded by that omission. It
is very clear to us that their contention under the Lownsdale
dedication is not sound. The purpose of the dedication was an
addition to the city. Streets were contemplated and power of the
city over them, and this purpose and power is as clear and definite
in the dedication as the reservation of rights to lot owners. This
was the view of plaintiffs' predecessors when they applied for the
ordinances. Therefore the fundamental proposition in the case is
the power of the city over its streets, and how far that power was
limited or could be limited by the ordinance upon which plaintiffs
rely.
It will be observed that the wharves were constructed on
Morrison Street and "used as, and the same are, a public street and
highway." In other words, the bill alleges that the wharves
Page 200 U. S. 161
on Morrison Street formed a part of the street, and were open to
general and public use.
What power the City of Portland had to grant rights in its
streets depends upon its charter, and interpreting the ordinance
upon which plaintiffs rely, the Supreme Court of Oregon decided
that neither the plaintiffs nor their predecessors in interest were
granted rights or privileges in the street different in kind from
that enjoyed by the public.
"The clear purpose of the ordinances," the court said,
"was to authorize and regulate the construction of wharves in
front of private property. It is so expressly stated in the title,
and the granting part of the ordinances provides that the owner or
owners of certain described property are authorized and permitted
to construct a wharf in the river, 'on and in front of' such
property. There is nowhere, in either of the ordinances, a grant of
any right or privilege to build a wharf at the terminus of Morrison
Street. In the ordinance adopted in 1878, there is scarcely an
inference that the lower floor of the wharf was to extend into
Morrison Street, and, as regards the upper floor, the provision is
that it should not extend beyond the line of the Block, except for
passageway of a certain described width and over the north side of
the street. The grantee was required to construct and maintain
pontoons in the river at the foot of the street for the landing of
small boats, with steps leading therefrom to the lower floor of the
wharf. It was expressly provided that the whole of the passageways
along the street and those portions of the wharf extending over and
into the street 'shall be subject to regulation by the common
council as a part of said street and sidewalks,' thus manifesting
an intention to preserve the public character of the street, and
not to vest in the grantee any rights or privileges therein not
enjoyed by the general public. The ordinance of 1879, in describing
the dimensions of the wharf authorized to be erected, says that it
shall extend a certain distance south from 'the center line of
Morrison Street,' and indicates that the wharf constructed by the
property owners on the opposite side of the street extended
Page 200 U. S. 162
to that point. The grant, however, is confined to the
construction of a wharf 'on and in front of' private property,
there being a provision like the one in the former ordinance
requiring the grantees to construct pontoons in the river for the
landing of small boats, while the right is reserved to the council
to regulate the passageways along the street and any part of the
wharves extending therein 'as a part of the street and sidewalk.'
The reasonable interpretation of these ordinances is that they were
intended to regulate the construction of wharves by the property
owners on either side of the street in front of their property,
with permission, perhaps, to extend the lower floors of such
wharves over and across the foot of Morrison Street, for the
purpose of affording access from the street to the wharves. There
is, however, no grant of any privilege or right to use or
appropriate the street or an extension thereof for wharfage
purposes. On the contrary, the street and any improvements which
may be put there by the abutting property owners were reserved to
the use of the entire public, and the grantees had no greater
rights under the ordinances than those enjoyed by the general
public."
And this construction, the court observed, was supported by the
averments of the complaint. It was therefore decided that
plaintiffs acquired no greater rights in the street than the
general public, nor a right to compensation for loss or injury
caused by a change in the grade any more than a change in the grade
would entitle an abutting owner to compensation because he had
improved the street in front of his property. And decided also that
the ordinances
"did not give to the plaintiffs or to their predecessors in
interest authority to build a wharf at the foot of the street for
commercial purposes, but rather conferred the right to improve the
street by extending it into the river, so that they could the more
readily reach their own property therefrom, and the fact that their
improvements have been rendered valueless on account of the
subsequent change in the grade of the street does not entitle them
to compensation."
"Neither are they entitled to any rights under the rule
applicable
Page 200 U. S. 163
to an executed parol license. Their occupation of the street and
construction of the wharf and landing at the foot thereof were
permissive, under ordinances of the city, defining their rights.
They could not acquire any interest or easement in the street not
conferred by the ordinances, because their use could not, in law,
be adverse.
Thayer v. New Bedford Railroad, 125 Mass. 253;
Washburn on Easements, §§ 152, 197."
Against these conclusions, plaintiffs cite other Oregon cases.
We are, however, not called upon to reconcile the cases. Plaintiffs
point to no case decided prior to the construction of the wharves
which interprets the ordinance as they now contend for, which might
bring the case within the ruling of
Muhlker v. New York &
Harlem R. Co., 197 U. S. 544, and
Lewis v. Portland, 25 Or. 159. And if we could say that
the construction of the ordinances by the supreme court is not
indisputable, yet we are required by the rule expressed in
Burgess v. Seligman, 107 U. S. 20, and
the many cases which have followed it, to incline to an agreement
with the state court.
In accordance with the doctrine announced in
Brand v.
Multnomah County, 38 Or. 79, the supreme court decided that a
change or alteration of the grade of a street may be made by lawful
authority, without liability to abutting property owners for
consequential damages, and that the Act of October 18, 1878, was a
legislative change of the grade of Morrison Street for its full
width. Plaintiffs do not deny that the legislature has such power.
They make, however, two contentions: (a) that the act of 1878 was
not intended to change the grade of the street, and did not do so;
(b) if it did change the grade at all, it changed it as to those
portions of the street only which were actually made use of on the
new grade as an approach to the bridge, the remainder not being
affected by the act. As to the latter point, it is contended that
the power given to the bridge company to build an approach to the
bridge on Morrison Street to conform to the grade on Front Street
was exhausted with the exercise of the right, and that the
defendants have no power under the act, after a lapse of twenty
years, to extend the
Page 200 U. S. 164
approach of the bridge to cover the opening in Morrison Street,
and change the grade where it was not changed when the approach was
built.
The act of 1878 is a local statute, and in its interpretation
involves no federal question, nor does it become such by the
circumstances of this case. It expresses the legislative authority,
and its interpretation by the supreme court of the state we must
accept. And the power to grade was not exhausted by one exercise.
Goszler v.
Georgetown, 6 Wheat. 593,
19 U. S. 597;
Wabash R. Co. v. Defiance, 167 U. S.
88. It is a phase of the same contention that the bridge
company was given the right of election of the manner of
constructing the approaches, and, being bound by that election, the
city, its successor, is also bound.
Judgment affirmed.
[
Footnote 1]
"
Ordinance No. 2273"
"SEC. 1. The owner or owners of lots 3 and 4, in Block 77, in
the City of Portland, are hereby authorized and permitted to
construct a wharf of piles and timber in the Willamette River, on
and in front of the lots above mentioned, the easterly line of said
wharf to run parallel with the east line of Front Street from a
point 100 feet north of the north line of Morrison Street, the
lower floor of said wharf to be as near ten feet above the base of
grades as practicable; provided, that the owner or owners of said
above-described property shall construct and maintain at their own
expense, a pontoon suitable for the landing of small boats, with
suitable steps leading from the pontoon to the lower floor of the
wharf, said pontoon to be constructed at the foot of Morrison
Street, and to be in accordance with plan on file in the office of
the auditor and clerk."
"SEC. 2. The upper story or floor of said wharf shall not extend
easterly beyond the lines of the lower wharf or beyond the lines of
the block southwardly, except for a passageway, 15 feet in width
along and over the north side of Morrison Street to within 28 feet
of the easterly margin of said wharf, and for said distance of 28
feet said passageway shall not extend southwardly into said street
for a greater distance than six feet; provided, that the whole of
said passageway and all of those portions of said wharf extending
over and into the street shall be subject to regulation by the
common council as a part of said street and sidewalk, and provided
further, that a suitable trap for fire purposes shall be placed in
the lower roadway, to be kept clear and in order by the owners of
said wharf."
"SEC. 3. The owners of the property described in section 1 of
this ordinance are hereby authorized and permitted to erect a
one-story warehouse thereon, to be constructed of wood, with the
roof covered with tin, anything contained in ordinance No. 1140,
entitled 'An Ordinance Providing for the Prevention of Fires and
the Protection of Property Endangered Thereby,' and the several
amendments thereto, to the contrary notwithstanding."
[
Footnote 2]
"
Ordinance No. 2387"
"SEC. 1. The owners of Lots 3 and 4, in Block 76, are hereby
authorized and permitted to construct a wharf of piles and timber
in the Willamette River on and in front of the above-described
lots. The easterly side of said wharf to commence at a point 147
feet east of the east line of Front Street, and running from the
center line of Morrison Street extended in a direct course to a
point 130 feet south of the center line of Morrison Street extended
at a distance of 137 1/2 feet from the east line of Front
Street."
"The lower floor of said wharf to conform to the grade of
Coulter and Church's Wharf at its connection therewith; provided,
that the owner or owners of the above-described property shall
construct and maintain at their own expense a pontoon suitable for
the landing of small boats, with suitable steps leading from the
pontoon to the lower floor of the wharf, said pontoon to be
constructed at the foot of Morrison Street, and to be in accordance
with plan in auditor's office."
"SEC. 2. The upper story or floor of said wharf shall not extend
easterly beyond the lines of the lower wharf or beyond the lines of
the Block northwardly, except for a passageway, 15 feet in width,
along and over the south side of Morrison Street to within 28 feet
of the easterly margin of said wharf, and for said distance of 28
feet said passageway shall not extend northwardly into said street
for a greater distance than six feet; provided, that the whole of
said passageway, and all those portions of said wharf extending
over and into the street, shall be subject to regulation by the
common council as a part of said street and sidewalk, and provided
further, that a suitable trap for fire purposes shall be placed in
the lower roadway, to be kept clear and in order by the owners of
said wharf."
"SEC. 3. The owners of property described in § 1 of this
ordinance are hereby authorized and permitted to erect a one-story
warehouse thereon, to be constructed of wood with the roof covered
with tin, anything contained in ordinance No. 1140, entitled 'An
Ordinance Providing for the Prevention of Fires and the Protection
of Property Endangered Thereby,' and the several amendments
thereto, to the contrary notwithstanding."
