davidaulloa/AmericanStories huggingface dataset:
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06
OWNER OF CITY PROPERTY
OWNS EARTH OF STREET
Supreme Court Holds Owner of Abutng Property Is Entitled
to the Earth Removed From Street Unless Needed to I'm
prove Said Street Elsewhere.

during all the time mentioned here
in, fulfilling the same; that the con-
tract provides that the contractor
shall make the excavation at an
agreed price, but it is silent as to
where he shall deposit the earth so
excavated; that the City of Portland
has provided district, composed of
property belonging to plaintiff, to pay
for the excavation, because such
property will be specially and pecul-
iarly benefited by the improvement,
and that defendants are attempting
to make the excavation at the ex-
pense and charge of plaintiffs prop
rety only; that plaintiff is the euuit-
able owner not only of blocks 23 and
"a in Waverleigh Heights, but of the
soil in Franklin street between those
blocks, and it has in no way disposed
of its ownership. in the soil; that
plaintiff has heretofore requested and
demanded of defendants, and each of
them, that they deposit the soil be-
longing to plaintiff which has been
excavated out of Franklin street be-
tween blocks 29 and "a, Waverleigh
Heights, upon block "a thereof, so
that plaintiff will not be deprived of
its use and will receive the benefit Of
the contract; that plaintiff has offered
the most reasonable and inexpensive
place for defendants to deposit the
earth, on block "a, Waverleigh
Heights; that plaintiff, as an equita-
BILE owner of the property, claims the
benefit of the excavated soil for the
filling of its adjacent property; that
the defendants and each of them are
unlawfully claiming the right to take
the earth belonging to plaintiff and
excavated out of Franklin street be-
tween 31st and 99d street, and divert
1t to their own use; that defendants
and each of them have refused and
continue to refuse to deposit the soil
so excavated upon block "a, as re-
quested by plaintiff; that there is still
a large amount of earth to be excav-
ated out of Franklin street between
S1st and 9Sd streets, and unless en-
Joined by this court defendants will
continue to excavate the same and
divert it elsewhere, to the irreparable
injury of plaintiff; that defendants,
by these acts are destroying PLAINTIFF S
estate in the real property, in viola
tion of law, and diverting it to their
own use, that then the dirt is so TAX
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06

en- and diverted there will be no ade-
quate and complete remedy at law
for the estimation Of damages of the
premises; that defendants are pro-
ceeding under a claim that they are
authorized so to do by the City of
Portland; that plaintiff has no plain,
speedy, or adequate remedy at law;
that defendants, by their acts and
proceedings, are taking the property
of plaintiff in violation of law, of the
state constitution, and of the consti-
tuition Of the United States; that
plaintiff is unable to state how much
earth has been removed from Frank
lin street between 31st and 3Sd
streets, and prays the court that the
defendants be required ito acquire
and state the amount of earth and
other material heretofore removed by
the defendants and converted to their
own use from Franklin street be-
tween S1st and 33d streets.
The defendants appealed separate
ly and demurred to the complaint as
not stating facts sufficient to consti-
tute a cause of suit, and the demur-
er being overruled, they filed separ-
ate answers, admitting the formal
allegation of the complaint, but deny
ing the portions above set out, except
as stated in their further answer.
The further answer alleges, that on
April "a, 1907, plaintiffs predecessor
in interest in Waverleigh Addition
filed a petition with the city auditor
for the grading and improvement of
several designated streets in that ad-
dition, including Franklin street, and
that thereafter, in pursuance Of an
ordinance passed for that purpose,
the city advertised for bids for such
improvement and that the contract
for a portion of the improvement Of
Franklin street was let to M. ]. Con-
nelley G Company. Then follows the
following allegations:
"That between said Oath day Of
April, 1907, and the time of the COM
mencement Of this suit, the City of
Portland enacted resolutions, ordi-
nances and proceedings for the i'm
provement of large number of 9TH
er streets in said Waverleigh Heights
Addition, and being the larger por-
tion of said streets above mentioned,
the Improvement Of which was petit
toned for by said H. w. Lemcke Com
pany, predecessors of the plaintiff
herein, and contracts were awarded
by the City of Portland for the i'm
provement of said divers streets and
portions thereof in said Waverleigh
Heights Addition, and said improve
ment of Franklin Street between and
adjacent to blocks II, 1S, 23, "a, 81
and 80, Waverleigh Heights, and the
improvement of said other streets in
said addition which had been petit
toned for by said H. w. Lemcke
Company, and for which contracts
had been awarded, are being conduct
ed and carried on as a general i'm
provement of streets in said Waver-
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06

leigh Heights and in the vicinity Of
said Franklin street, and all the earth
which has been excavated and to be
eXcavated out of said Franklin street
under the contract between the de-
fendant contractors and the City Of
Portland, not necessary for or re-
quired in the improvement of said
Franklin street, is used and to be
used by the defendant contractors
and the City of Portland in said 9TH
er streets being improved and to be
improved under said general plan Of
improvement of the streets in said
Waverleigh Heights Addition. That
it is necessary for said defendant, the
City of Portland, to use all of said
earth so excavated and to be excav-
ated from said Franklin street, in
said general plan of improvement of
said streets in Waverleigh Heights
and that the defendant, the City of
Portland, appropriated said earth for
said purpose and the same Is not be-
ing used for any other purpose but
is being used by the City of Portland
and the defendant contractors for
such purpose only.
That said the City of Portland
through its executive board adver-
tised for and received bids for the
improvement of said Franklin street
on the 1t0h day of April, 1908, that
the said bids were advertised ac-
cording to law and provided that it
would receive said bids for said i'm
provement in accordance with the
ordinance providing for the time and
manner of the same and the plans
and specifications of the city engineer
therefor, and the plaintiff herein had
full knowledge of all the acts and
proceedings had and taken by the de-
fendant, the City of Portland, in the
matter of said improvement and
made no objection. to the awarding of
said contract for the same, and the
plaintiff was aware and had full
knowledge of the fact that the earth
so to be taken from said Franklin
street in the improvement thereof,
had been appropriated by and did be-
long to the defendant, the City of
Portland
That the defendant contractor, M.
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06

]. Connelley, at the time of submit
ting his bid for the improvement Of
said Franklin street, based the said
bid on the ownership of the earth of
said street having been appropriated
by the defendant, the City of Port
land, and owned by it and that other
streets in the vicinity Of said Frank
lin street were about to be improved
under a general plan therefor and
that the earth so to be taken from
said Franklin street could be and
was to be used in the improvement
of said streets in the vicinity Of said
Franklin street That his bid for
said improvement was made much
lower by reason of his said knowl-
edge that said earth could and was
to be used in the improvement of
said streets in the vicinity of Frank
lin street, and said bid was for an
amount much lower than the same
could have otherwise have been made
without loss to the defendant con-
tractors, all of which facts were and
are known to the plaintiff herein,
and unless these defendant contrac-
tors are permitted to use said earth
they will be subjected to and will
suffer great financial loss in the
carrying out of said contracts with
the City of Portland, and that by rea-
son of the bid of said contractors
having been placed at said reduced
amount, the assessment for said i'm
provement as to the property bene-
fitted thereby will be greatly reduced" :"
Plaintiffs reply denied the new
matter set up in defendants answer.
Upon the trial decree was rem
dered aaignst defendants, restraining
them from further converting the
earth claimed by plaintiff and fixing
plaintiffs damages for that already
converted at $25OO. Defendants ap-
peal.
Mcbride, j.: Considering the COM
plant in its entirety we do not think
it states a cause of suit against the
City of Portland. 1t sufficiently ap-
pears from the complaint that the
onntroof Huao 1af II, Tho ra,,aIor ,,,on
ner and without reference to what
disposal should be made of the sur
plus dirt obtained during the cause
of excavation. Nothing is alleged
showing that the city contemplated
or authorized the alleged unlawful
acts of the other defendants who
were Independent contractors whom
the city had right to expect would
carry out their contract in lawful
manner. The pleading is somewhat
vague but, taking it by its four cor
ners, we think that this is the only
fair construction that can be placed
upon it. The principal question is
whether the city, by justifying the ac-
ton of the defendants and expressly
alleging that it and the defendants
appropriated the dirt and claiming
the right so to do, has not by express
alder cured the defect in the COM
plant, and this undoubtedly would
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06
sharkey '. City OF Portland, ct al
MultnOmah County.

John P. Sharkey Company, re-
srondent. V. The City of Portland, a
nunieipal corporation, M. ]. Connel-
lev W. Scott and T. McDougal, part
nsrs doing business under the firm
name of Scott & McDougal, appel
lauts. Appeal from the decree of the
cireuit court of Multnomah county.
The Hon. William N. Gatens, Judge.
Ralph R. Duniway and A. E. Clark,
for respondent. W. c. Benbow q. P.
Kayanaugh and Frank S. Grant, on
brief) for City of Portland. Law
rance A. McNary ION brief) for M. ].
Connelley Scott & McDougal, appel
lants. Argued and submitted March
a. 1911. Mcbride, ], Affirmed as to
Connelley Scott & McDOugal. Re-
yersed as to City of Portland.
This is a suit to restrain the de-
PENDANTS from wrongfully removing
earth from an excavation being made
in the Improvement of Franklin
street in the City of Portland, and to
compel defendants to account for and
nav the value of earth which plaintiff
claims has been already unlawfully
converted.
The complaint, which is too volum-
inous for insertion here, alleges in
substance, that w. Scott and T. Nc
Dougal defendants, are partners do
ing business under the firm name of
Scott & McDougal; that plaintiff,
during all times mentioned in the
complaint, was the owner in equity
of all of blocks 20 and "a in Waver-
leigh Heights, in the City of Port
land; that Franklin street, between
S1st and 33d streets, lies between
blocks 90 and "a; that the John P.
Sharkey company is the owner in
equity of all the dirt in such street,
and of the title to such street, sub
ieCt only to the easement for street
purposes for the benefit of the pub
lie therein; that the City of Portland
has let a contract to excavate Frank
lin street, between 31st and 33d
streets, lying opposite and between
blocks 29 and "a, Waverleigh Heights,
to the established grade, and also to
lay artificial stone sidewalks and
curbs; that such contract was let to
N. ]. Connelley, defendant, who sub
let it to defendants, Scott & McDou-
gal; that they are, and have been
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06

be true had not these allegations of
the answer been denied by the reply.
But the rule is, that party cannot
rely upon allegations of his adver-
sary to cure defects in his own
pleadings, when in a subsequent
pleading he denies such allegation
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06
WE HAVE TO LAUGH
E. c. CROSS & SON
Phone 1880

81 Cyc. ZIG; Sterling v. Sterling, 4S
Or. 200; Cohn-Baer-Myers & Aronson
Co. v. Realty Transfer Company, 102
N. Y. Supp. 1872; Mosness v. German
American Ins. Co.; so Mimi S41; 50
Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-06

tcOntinued on Page s.)
The Washington herald., 1911-06-25
NEW YORK BANK STATEMENT.
COTTON MARKET.

Quotations furnished BY ". B. HIbks q Co, mem
bes of the New YORK Stock Exchange. HIbts Build
ing.
New YorE. June M.-The cotton market vas ssrons
to-day. though the trading IN small lots and
confined 10 unimportant speculative interests. It il
generally believed that at recent low levels %
around Is cents for the new crop the worlds spin
neFs have, enlarged their commitments particularly
fn October. Even should the crop prove 6 Iargs
one spinner requirements for September and 90
tober VIII probably prove fully efectnal 70 the
celpts from the new crop.
The Liverpool market was closed to-day and the
weather map favorable In showing more lighf
showers for parts Of Texas and Oklahoma and con
timed moderate precipitation over the Eastern
belt There has been decided relief to large areas
Of the Western cotton belt In the way of rain. The
last week Of June finds the crop as . whole IN
good condition. but all of the next two months
must be faForable In view "a the lack of moisture
during the season up to this time, and this q
why the market shows steadlnes now.
In the cotton goods division os the dry goods
market the tendency Of buyers Is to restrict then
purchases to Immediate future necessities. Business
for fall and winter delivery is much lighter than
usually transacted at this period Of the year.
Prices are firm and stocks light General expect
ancy Of manufacturers and jobbers Is that prices
viii be lower with the opening q the new cotton
year as . result of moss rrberal yield of raw
material.
According 70 the Fnanci>a Chronicle The worlds
stocks Of American cotton are now lst4o 900 bales.
compared with 1lsl 900 bales for the same period
last year. The price Of middling cotton IN New
YORK on Friday night was 1901 against $50 the
same day last year
The Washington herald., 1911-06-25
REAL ESTATE LOANS
Made st Lowest Rates Of interest.
W. q. WALKER, 729 10Th St. NV.
s.Ou. years. per cent. semi-annunIly.

S0W years. per cent, seTni-annually.
Moore Barbour's Second Addition-LOt IL, block
6; Bertha Dixon to Paul V. Mitchell and ].
- Clinton Tribby. trustees. TO secure Charles Z.
Trbby. $1,000. years. per cent. semi annually.
Square lO45-Lot So; William H. Potter ct ux. to
Horatio NJ Taplin and Walter L Hilton. trus-
tees. to secure Frank w. Dolbey. sl.00, month
ly payments. per cent per annum-
Square l66-Lots 8. q, and "A; Edward II. Everett
ct ux. to the National Savings and Trust Com
pany, trustee, to secure the American Security
and Trust Company. trustee, $s5.60o, years.
"a per cent, semfannually
Square H-Part Of lot -; Edward GarTey and Ed
ward GarTey. IT., to James Berry and william
MICK. Clayton. trustees. to secure the Perpetual
Building Association. 500.
Square 69-Part of original lot 10; Israel RosenfeId
ct ux. to Algernon s. Gardiner and W. Gilbert
Dent, trustees, to secure Charles L. Ferry $50
to 81 months. per cent per snnum-
Square f97-Lot Is; Frank r. Wheater et VI. to
the National Savings and Trust Company, trus-
tee. TO secure the American Security and Trust
Company and Amos H. Plumb, trustees. & L96,
as years and to 90 months, per cent, semi
annually.
Mount Pleasant-Part Of lot 2; Mary 7. Jones to
B. Francis Saul and James F. Shea trustees,
to secure the Home Savings Bank. 5000 ,
years, "a per cent, seri-annually.
The Washington herald., 1911-06-25

New York, June 2A-On account OF the
lethargy OF yesterdays stock market.
the tendency IN banking and brokerage
ofaces was light to-day. On account OF
the coronation. which has attracted many
Americans Of market importance and had
engrossed the attention of EngIishnien
this week. there was no expectation Of
business OF any account from London.
But the market was more acttve than m
any other two hours since the day Inn
mediately following the decision OF the
American Tobacco case, sales In the
short session exceeding those In the full
fve-hour session yesterday, and it was
as strong and baoyant IS It was weak
and depressed ON the day after the to-
bacco announcement.
To-day, shortly after the opening aud
most Unexpectedly, came the news that
for once the prosecution had failed Inder
the Sherman act and failed. moreover,
In the suit against the Hartman lines
which begun In the Roosevelt admins
tration after q most vigorous and bitter
investigation had been proclaimed by
politicians more notorious than even the
Standard Oh and Tobacco cases. The
suit carried reminders of the sharp per-
sonal controversy between former Presi-
oenI hoOSeNelL ana the late 4. ID. harfi-
man. and, as concerns railroad conbana-
tons, was the most important under
taking by the government under the
Sherman act, for the Union Pacific Com
pany under Mr. Harriman's ambitious
domination, had acquired directly, con-
troll over a greater mileage than govern
ed by any other company at any time
and had by stock purchases secured In
fuence In many other important systems.
Great Combination Not Illegal.
If It were impossible for big business
TO exist under the law there could have
been no doubt Of the decision in the
case. The Union Pacific influence was the
biggest Of ell railroad businesses, and
were great combinations, per Sc illegal.
the Judges Of the United States Circuit
Court could have been but of one mind
In ordering the dissolution of the COM
pany. In that respect the decision sup
plies substantial reinsurance to whatever
investors have been alarmed by the re-
cent attacks upon the United States Steel
Corporation and the evident effort OF
politicians at Washington TO bring on a
prosecution Of that company.
Evidently the court took into considera-
ton the fact that the dominant company
mad expended immense sums in improv-
The Washington herald., 1911-06-25
ANACOSTIA.

The following officers have been elected
by the Knights of the Maccabees Tent,
No. 2, Of Anacostia, to serve for the
coming year: Louis N. Burch, COM
mander; c. r. Brooks. lieutenant COM
mander; Richard A. Estep, keeper of
records; James NJ. England, chaplain;
DIR. Thomas D. Mudd, physician; Ben
Jamin N. Estep, sergeant; E w. Eu-
bank, first master Of the guard; Concie
White, second master OF the guard;
Henry Stehr, sentinel; Arthur A. Pre-
vost, picket, and E. A. Parker, past COM
mander. A committee is making ar
rangements for an entertainment to be
held at the first meeting In July, at
which time these newly elected officers
win be installed.
Rev. Charles A. Sontag, formerly rec
tor Of Grace Protestant Episcopal
Church, Washington, will continue to
Memorial Episcopal Chapel at Congress
Heights, according to the present plans
OF the vestry OF the parish.
Plans are being prepared by the Broth
erhood of the Garden Memorial Presby-
terian Church. OF Anacostia, for an
elaborate celebration OF the Fourth OF
July.
The Ladies' Aid Society, Of the Ana
costa Baptist Church, elected the fol-
lowing officers at a meeting held the
past week in the church. Mrs. Edgar
r. Balderson, president Mrs. John
Payne, first vice president: Mrs. Ida
Boswell, second vice president; Mrs.
Alexander Mayhem. third vice president;
Mrs Louis Weigel. fourth vice president;
Mrs. William Carter, financial secretary:
Mrs. Jesse Green. recording secretary;
Mrs Norvall Greer, treasurer; Mrs. Ida
Boswell. purchasing agent. John T.
Dent has also been chosen to serve as
superintendent Of the Sunday school for
his tenth successive term and Ladue
McGilI as secretary for the third time.
Miss Edna Goodman has been chosen
president Of the Young Peoples Union.
with Samuel Dameron as vice president.
Mrs. william Carter as treasurer, and
Miss Lenora Keifer. secretary.
The Washington herald., 1911-06-25
REAL ESTATE TRANSFERS.


Anacossia-Lot lsI: Augusta A. MOrelsnd to George
Girls PUrtion-Part; william W. Grinaso ct ux. to
Gorgianna Tucker, 500.
Sixteenth Street Highands-West Of square "a lots
ls and ID; Holmes Central Realty Corporation 10
villa Park-Square Es5, lot 50; Clara A. Marden ct
Vir to Joseph NJ. Beatty. <5o.2.
l0 street northweet-Square 54. part o. 01E1na
lot 2; Katherine J. FSlconer to Louis v. DE
Chillum Castle Manor-A. Robert Derickson to the
Washington Land and MORTGAGE Company. u
Tenth street northwest, between l. and III streets
Square %, part of original lot 10; CnAries Il
Ferry Ct w. TO Israel Rosenfeld. SO
vIrla Park-sQuare lss. lot q; Clara A. MArden
ct vir to John D. Beatty. DoA.
stree4s-Square >. lot 81; James J. Keans to
Maxy 8. Milton. So
In Nineteenth street northwest-SQuare IS, lot
Mary A. o'Bren and MarEzrst A. oBrten 70
II street northwest near ThirJ1third street-Squale
md parts Of lots % and a James A. Davis
to Harriet Lambert 80
LES II street northwest-6quare 166 lots q, z
ZAnerican Security and Trust Company. trustee.
to Edward H. Everett, sls3. .26
Ingleside-Lot n. block a; Lewis Z. BreuninsG
ct ny. to Flora B. Klein. so
street northwest. between Eighth and Nantn
streets-Squars 90. 'one-haf interest IN part O
original lot i; John B. LArnr and PerciIai d.
Marshall trustees to ]. Fred Kelley. -.
Massachusetts Asenue Heights-Square 1871, lot %:
American Security and Trust Company and
Amos II. Plumb. trustees. to Frank Z. Wheat
e. et ux.. SIC 10y
Northwest corner Seventeenth and sreefs-Square
1es lots 2 and ei; the Richmond Hotel Company
(Inc) TO Edward H Everett, 80
Thirteenth street northwest between Potomac ave
uue and Pennsylvania avenue scutheast-Squaso
loH. Iot s. /; Ffank w. Daibey e W. to William
II. Potter ct ux-, 80
Mount Pieassnt-Lot 3 oloz :; Miliiam ~ n hila =
ux to CafheFn II. MarkHnrd. sd
rncloasrc Ohethird interest In part; Josephtne W.
Hesler to Thomas J. Lane and John l. Lane,
Twenty fourth street northwest, between and D
strcets-sausre IS part q original lot ?; valen-
tine McNally ct W. to Lee Brown. so,
Ianedon Park-Eot 1s block IL parts q lcta !, 2
ana 5 bleck 2: John Bond ct NJ. % Henry c.
Newell et ux.. SO
onr-fpnfh infsrsst Ia part Of lots q Har5 W.
Orutt e ux. to George W. Ofutt. 80