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 ?”