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It is a sum sufficient to found a scholarship, and it shall not exceed, in any event, $3,000. If one can be founded, within the conditions named in the will, for a less sum than $3,000, then that less sum only can be used. The discretion to be exercised by the trustees in selecting the college with which to connect the scholarship does not render the bequest void. The testator has, by this clause in his will, himself expressed his preference for Georgetown College, if the scholarship ean, be maintained in that institution, but if not, it is to be a scholarship in some medical college of the District. This, we think, is not an improper or uncertain disposition of the bequest, or an illegal placing of a discretion in the trustees under the will. See Attorney General v. Gleg, 1 Atk. 356; Attorney General v. Fletcher, 5 L. J. Eq. (N. S.) 75; 2 Perry on Trusts, 4th ed., § 721.
The last bequest objected to is that of five thousand dollars, to form a fund known as the E. Carroll Morgan fund or scholarship, to be applied as the testator might thereafter indicate to his trustees, etc. This has been declared void by both courts, and no appeal has been taken from the judgment of the Court of Appeals adjudging that item to be void. That bequest being adjudicated invalid, the fund provhled for therein forms part of the residue of the testator's estate, and passes under the residuary clause of the will.
These views call for an affirmance of the judgment of the Court of Appeals, with costs to the several parties, to be paid: out of the residuary fund, as provided for by the judgment of that court.
Statement of the Case.
MEAD v. PORTLAND.
ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.
Argued November 27, 1905.- Decided January 2, 1906.
Owners of property erected wharves on the line of an adjoining street on
the river front 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, defendants declining to plead further, and a decree was entered dismissing the bill. The decree was affirmed by the Supreme Court of the State. 45 Oregon, 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
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 wharfs 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, 1878.1
1 Ordinance No. 2273.
"SEC. 1. The owner or owners of lots 3 and 4, in block 77, 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 għades 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 south
Also an ordinance, No. 2387, entitled "An ordinance authorizing the construction of a wharf in the Willamette River in front of and opposite lots Nos. 3 and 4, in block No. 76, approved February 21, 1879.1
wardly 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 ertending 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."
1 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 ride 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} 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 casterly 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 these 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 section 1 of this ordinance
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
are hereby authorized and permitted to erect a one-story warehouse thereon to be constructed of wood with the root 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 hereto, to the contrary not withstanding."