Statement of the Case.

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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 street 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, not 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

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 to the Constitution of the United States.

Argument for Plaintiffs in Error.

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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 section 10, Article I, of the Constitution of the United States. An injunction was prayed.

Mr. Charles H. Carey, with whom Mr. C. E. S. Wood, Mr. S. B. Linthicum and Mr. J. C. Flanders were on the brief, for plaintiffs in error:

The wharf owners have vested rights which cannot be taken without compensation. They succeeded to the rights of the original townsite proprietors who had reserved "the wharves and wharfing privileges."

By the settled rule in Oregon, abutting lot owners, by virtue of their ownership of lots facing on a street, own the fee to the middle of the street, subject to the public use of the street as a highway. Banks v. Ogden, 2 Wall. 57; Huddleston v. Eugene, 34 Oregon, 243, 352; McQuaid v. Portland Ry. Co., 18 Oregon, 237.

This case does not come under the rule that a wharf built by a city at the terminus of a street is part of the street, free to the public, and not subject to a private use for which wharfage may be taken. Russell v. The Empire State, Fed. Cas. No. 12,145; The Geneva, 16 Fed. Rep. 874; Barney v. Baltimore, 1 Hughes, 118, Fed. Cas. No. 1029.

The legitimate and proper use of a street terminating at the river is a landing place, and the municipal corporation has the right to build wharves at the termini of its streets, but this does not apply where the right of wharfage is reserved. 1 Dillon, Mun. Corp., $109.

The wharves at the foot of the street are private wharves and the builders thereof have a proprietary and vested interest

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Argument for Plaintiffs in Error.

therein. Laws of Oregon, 1870, p. 125, § 38; Charter and Ordinances of Portland, Comp. 1879, p. 16.

In Oregon the owner of land abutting upon a navigable stream takes only to ordinary high water mark, the land lying below that mark being vested in the State. Bowlby v. Shively, 22 Oregon, 410; Shively v. Bowlby, 152 U. S. 1; Lewis v. Portland, 25 Oregon, 159.

Shore owners are authorized to wharf out in the stream, and the State thereby consented to the use of the submerged lands by the bank owners. Bellinger Codes, §§ 4042, 4043.

The wharves when erected under this statute are considered as aids to commerce, and lawful structures. Parker v. Taylor, 7 Oregon, 446; McCann v. O. R. & N. Co., 13 Oregon, 463.

The privilege granted by this statute was a license, which, however, became irrevocable when once acted upon. Lewis v. Portland, 25 Oregon, 167.

Even assuming that the city itself had the right to wharf out at the foot of Morrison street, it delegated the power, as it had the right to do. Simon v. Northup, 27 Oregon, 501; Farnum v. Johnson, 62 Wisconsin, 620; Railroad Co. v. Portland, 14 Oregon, 188. The power to "regulate" wharves does not include the power to confiscate them. Railroad Co. v. Joliet, 79 Illinois, 44; Langdon v. Mayor, 93 N. Y. 161; State v. Mott, 61 Maryland, 297; In re Hauck, 70 Michigan, 396; People v. Gadway, 61 Michigan, 286; McConnvill v. Mayor, 39 N. J. L. 44; Sweet v. Wabash, 41 Indiana, 7; Bronson v. Oberlin, 41 Ohio St. 476; Cantril v. Sainer, 59 Iowa, 26.

The right of the owner of land bounded by a navigable river to access to the navigable part of the stream and to make a landing wharf or pier for his own use or for the use of the public, cannot be capriciously destroyed by a municipality by change of harbor lines. Yates v. Milwaukee, 10 Wall. 497. And a city must pay for obstructing a riparian owner's access to his wharf, either from the water or from the land side of his property. Van Dolsen v. Mayor, 21 Blatch. 458; Myers

Argument for Plaintiffs in Error.

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v. St. Louis, 82 Missouri, 367; Weber v. Harbor Comm'rs, 18 Wall. 57; Demopolis v. Webb, 87 Alabama, 668; Langdon v. Mayor, 93 N. Y. 152.

The action of the city in cutting off access to the wharves is in effect a taking of plaintiffs' property without due process of law. Willamette Iron Works v. O. R. &. N. Co., 26 Oregon, 233.

The injury to the plaintiffs is not an injury common to the public, but is a private nuisance, for which an action will lie, or which may be restrained by injunction. Wilder v. DeCou, 26 Minnesota, 11; Schulte v. North Pac. Transp. Co., 50 California, 592; Parker v. Taylor, 7 Oregon, 435; Price v. Knott, 8 Oregon, 438; Garitee v. Balance Co., 13 How. Pr. 40; Gould on Waters, §§ 122, 123, 124.

The right of wharfage is a property right which can be taken only by the exercise of the right of eminent domain on making compensation to the owner of the wharfage right. Dillon, Mun. Corp., § 107; Crocker v. New York, 15 Fed. Rep. 401; Classen v. Guano Co., 81 Maryland, 258.

Even if the ordinances granted rights in the nature of a franchise, the grant was based upon ample consideration to the city, so that, if it is a license, and fully executed, it is now irrevocable. Garrett v. Bishop, 27 Oregon, 349.

Even if the bridge act is a legislative change of grade, the city cannot arbitrarily destroy the wharf rights. Seattle v. Railroad Co., 6 Washington, 370.

In Oregon, a license, after it has been exercised and expenditures have been made in reliance thereon, is irrevocable, and the right granted cannot be destroyed without compensation. Curtis v. Water Co., 20 Oregon, 34; McBroom v. Thompson, 25 Oregon, 567; Garrett v. Bishop, 27 Oregon, 352; Powder Co. v. Coughanour, 34 Oregon, 21; Bowman v. Bowman, 35 Oregon, 281; Hallock v. Suitor, 37 Oregon, 13; Savage v. Salem, 23 Oregon, 385.

The defendants cannot close this opening in Morrison street, because of an agreement with the bridge company to leave it