Statement by Mr. Justice McKenna:
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, 76 Pac. 347.
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 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.
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. 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 considerable 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 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.'