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About The Sunday Oregonian. (Portland, Ore.) 1881-current | View Entire Issue (Nov. 17, 1907)
lO THE SUNDAY OREGOMA.N. POKTLAMD, NOVKJIBJUK 17, 1U7. CIT1 OWNS SPACE UNDER SIDEWALKS No Rights Accrue to Property holders Through Their Ad verse Possession. OPINION OF CITY ATTORNEY He Declares In Answer to .Mayor's Inquiry That City May Vse Space for Municipal Conduit When Needed Text of Opinion. That the city owns space under side walks and that It can be reclaimed from property owners is the substance of an opinion returned yesterday by City Attorney Kavnnaugh in response BIG to a request from Mayor Lane. The opinion was requested by the special committee appointed to ascertain the advisability of laying a general sub way throughout the city to contain pipes and wires. According to Mr. Kavanaugh the city may use space un der walks for this purpose and It now devolves on the committee as a ques tion of expediency. Practically all basements in the busi ness section of the city extend under the walks. This space is used for store rooms and for other purposes. It rep resents a hirge value to the owners of buildings, but all will have to he given up if the Council takes advantage of the right that It has according to Mr. Kavanaugh. The suggestion that space under walks bo used for the subway was first made by Councilman Vaughn, chairman of the special subway committee. All plans for the subway have been await ing the City Attorney's opinion, and the committee will doubtless now pro ceed to work out the details of the scheme. An appropriation of IBOOO was made for its use in investigating the problem and authority was given to employ a competent engineer. The opinion of the City Attorney in full follows; November in, 1307. Hon. Harry Lane, Mayor, Portland. Or. Dear Sir: I am advised by your recent communication that the subway committee by resolution submitted to me for an opinion the fol lowing questions: 1. What right, if any. has the city lost to the use of its streets under the pave ments and sidewalks by reason of having permitted the use thereof for a period of ten years? 2. Whether -or not the City of Portland has the right to use the space under the sidewalks and pavements for a municipal conduit? The streets of the City of Portland em brace the area between the property lines on either side, and include the road way and sidewalks. The fee in the land Is owned by the abutting property-owners, subject to the public easement of the city. The public easement Includes the right to the use not only of the surface of the street, but also a convenient and reasonable space above and beneath the surface of the street for certain public purposes. The city lias the right to stretch, or authorize the stretching of wires above the street for lighting, for the trans mission of electrical currents or for tele phone or telegraph service. It has the right to lay pipes benoath the surface for sewers and drains, or to supplv water or gas: It may authorize the laying of pipes to convey heat or steam, and the con struction of underground conduits and subways. These are all public and bene ficial uses for the most part necessities and within the rights granted by the pub lic easement. The rights of the public in a street are paramount.-and the rights of an abutting owner are subordinate to them. An abut ting owner may excavate beneath the sidewalk or street in front of his property and utilize the area for storage or other commercial purposes so long as his pri vate and exclusive use does not Infringe upon the public use of the street. If suoh private use encroaches upon the public use. or if the street is applied to a new and improved public use which Interferes with an existing! private use. the right of an abutting owner must yield to the superior right of the public. The right of the city to the control of Its streets Is not easily divested. The easement is held in trust by the city for the benetit of the public. It cannot be contracted away or alienated, as private property. The rights of the pub lic cannot bo lost by Inattention, and they cannot be presumed, on mere Infer ences, to have been surrendered. A per missive use of the area beneath a side walk for a period of ten years, or longer, will not ripen into a vested right. The use In such case Is not adverse or hostile to the public, but is suffered temporarily while the city does not find it necessary to apply the space beneath the surface to public purposes. An abutting owner claiming a perma- ! S i jpi g " BBBBSs nont private interest in a street must establish his claim with clearness and certainty. Such claims cannot be sup ported by permissive user. It must be acquired through legislative authority The mode prescribed by the charter, and former charters of the city, is to secure the vacation of the street in accordance with the charter provisions. The city can lawfully relinquish Its control of the streets in no other way. I am aware that some authorities, while denying that prescriptive private rights can be acquired in a public way. have applied the doctrine of equitable estoppel against the municipality. But these rul ings were based upon special circum stances, and present situations that are not presented by your communication. The committee is advised (1) that the city has not lost its right to the use of the streets beneath the sidewalks by rea son of having permitted the private use thereof for a period of ten years; and, (2) that the city has the right to use the space beneath the sidewalks and pave ments for a municipal conduit. Tours truly. J. P. KAVANAUGH, City Attorney. MURDERED FOR REVENGE Chicago Policeman Shot Crowe Surrenders, but Denies Guilt. CHICAGO. Nov. 16. Policeman Robert Mackaneny was found shot to death early today at Sixty-third street and Went worth avenue, only half a block from headquarters. His revolver was found in his hip pocket, and apparently he had not been given a chance to defend him self. A man who was seen running away GOI.D SHIPMENT RECEIVED YESTERDAY BY FIRST NATIONAL BANK. Just after the shots were heard is be lieved to be the murderer. The police are searching for Freeman Caniff, who In 1886 was arrested by Po liceman Mackaneny after he had robbed a house and killed a man named Buchtel. Caniff was sentenced to 20 years' Impris onment, and he then threatened to have revenge upon the policeman. He was re leased last Spring. Pat Crowe, who was involved in the Cudahy kidnaping case in Omaha, and Is known to the police all over the United States, was sought by the police and surrendered. While there is no Indication that he is in any way involved In the murder, the police desire to question him. He denied all knowledge of the murder and told where he had been at the time. Officers were sent to substan tiate his alibi. The police think he will not be Identified with the crime. People's Forum Tonight. "The Financial Situation" will be the subject for discussion at the People's Forum tonight in the Mulkey building. Second and Morrison streets. The princi pal speaker will be C. J. McAllister. Ow ing to the timeliness of the subject, to night's meeting promises to be one of the most interesting of the season. Dr. Jo nah B. Wise will preside. The public Is cordially Invited to attend. Three Silk Mills Close. YORK. Pa., Nov. 16. Three sllkmills in this city owned by the American Silk Company were closed at noon today. Be tween 800 and 1000 employes are thrown out of work. MEMORIAL SERVICES OF ELKS LODGE TO BE HELD SUNDAY DEC. 1 Memorial services to be conducted by the local lodge of Elks are to be held this year In the First Presbyterian Church, corner of Twelfth and Alder streets, the first Sunday In December, at 2 P. M. The members of the com mittee having the arrangements In charge said yesterday that the char acter of these services seems to be misunderstood in some quarters, and in order to correct these erroneofrs im pressions It was decided to make an Innovation this year by holding them In a church Instead of a theater or In the lodgeroom. The committee members are W. A. Hart (chairman), George Otten, J. Clair Montelth, J. H. Dietz and G. B. Thomas. The present officers of the lodge are Jay H. Upton, exalted ruler; John B. Coffee, leading knight; Gus C. "Moser, loyal knight; W. R. Apper son. lecturing knight, and T. B. Mc Devltt, chaplain. The ushers appointed for the occasion are J. C. Friendly (head usher), J. H. Devlin, E. J. Daly, J. W. Blaney, Ed W. Mueller, A. D. Perkins. A. E. Jenkins, K. K. Kubll and Elof Johnson. Jay H. Upton, exalted ruler, will preside at the services, assisted by the other officers. Gus C. Moser is to de liver the eulogy on departed members, the eulogy to be general In character, referring to members of the lodge in Portland who died since it was Insti tuted. Reference to those who . died since the last memorial service will be made In the regular lodge ceremonies. Rev. Andreas Bard, an Episcopal minister, of Walla Walla, Wash., is to deliver the memorial address. Mr. Bard Is the rector of St. Paul's Church and is a member of the order of Elks. He was born In 1873 in Schwerin, Ger many. Ills father being a supreme church counsellor of Mecklenburg. He TWO TONS OP GOLD First National Bank Receives $1,000,000 Shipment. COMES FROM CALIFORNIA Double-Eagles Correspond to Con signment of British Sovereigns Received by Treasury De partment From London. Almost two tons of gold coin was re ceived by the First National Bank yes terday. The consignment is valued at $1,000,000 and was secured in London for shipment here. The money was shipped to New York on the steamer Oceanic and was in English sovereigns. It was deposited with the. United States Sub Treasury there and the Sub-Treasury at San Francisco was notified by telegraph to issue an equal amount in American double eagles. This coin was shipped by Wells-Fargo express to Portland on the Southern Pacific. The express car was guarded by a detachment of special ex press guards, each armed with a rifle. Upon arrival here, the money was trans ferred to the bank vaults in express wagons, upon which were armed guards. The arrival of this money will do a great deal of good in its bearing on the local situation. It will supply a large amount of currency to help out the cur rent stringency and will have a decidedly cheering effect on the public mind. There has been no meeting of the Clearing-House Association for the past few days, but one Is scheduled for Monday, when wheat exporters will at tend and a plan will be formulated for moving the wheat crop of the Interior and setting It afloat at Portland. rt Is proposed that farmers of the wheat growing districts shall ship their wheat to Portland upon the application of ex porters, and that they wait for their pay until the grain is loaded on ships here. Then London 60-day bills, as they are called, will be available, and as they are negotiable paper they can be realized upon at once and the grow ers paid for their crop. The railroads will co-operate fully with the exporters in hurrying the wheat crop to tidewater. There is a big fleet In the harbor waiting to be dispatched, and the demurrage bills are mounting upward because of delay in loading. Wheat men In the interior were communicated with yesterday and they were satisfied with the arranee- ment as outlined. It is believed that the proposal of the clearing-house will Rev. Andreas Bard. Who Will Deliver tbe Memorial Address. ame to the United States in 1890. Ha s the author of "Classics of Many- Lands," being literary essays on Homer, Dante, Shakespeare. Goethe and Browning. He published a volume of "Unconventional Sermonettes." and this year published a tragedy in five acts entitled "Giafar." He composed several lyrics that have been set to meet with general approval and will do much to aid the situation. It is estimated that about 45,000,000 bushels of wheat remains In the In terior to be moved. This immense crop will bring between 80 and 90 cents per bushel to the farmer. Tonnage now In the harbor will carry away 3.000.000 bushels, while 7,000.000 bushels will probably be shipped to San Francisco. Bank Examiner Claud Gatch was busy at the Merchants National Bank yesterday. His task Is a big one, but he is making as good progress as can be expected, considering the mass of I detail to De aigestea. every uum ' brings In additional matters and col lections to be made make up a big JoD. Mr. Gatch left last night to spend Sun day at his home in Salem. He will re sume his work at the Merchants Na tional tomorrow morning. ISSUES PORTLAND NUMBER Mertz' Magazine Devotes Much Space to This City. Considerable space Is devoted to Port land and its interests in the special Port land number of Mertz' Magazine pub lished this month. "Publicity for the City of Portland" Is the subject of the intro ductory article, being an address de livered before the Portland Ad Club at a recent meeting by O. C. Leiter, city editor of The Oregonian. Other articles Included in the number are: "Modern Real Estate Methods," by Rinaldo M. Hall; an account of the successful Rose Festival last June, by W. Wynn Johnson; A fort land Food Campaign," by Helen Mar Shaw; "Community Advertising." by C. C. Chapman; "Orient is Rare Field for Advertising," by David N. Mosessohn; "Combined Publicity of Portland and Ore gon," by Tom Richardson, manager Port land Commercial Club; "The Portland Ad dub," by Scott Bozorth. secretary; "Pub licity That Pays Two Examples," by A. S. Monroe. The articles are illustrated with pic tures of the Portland harbor and a num ber of the prominent buildings. There are also several short sketches of men who have had an active part in exploit ing this city, Its opportunities and ad vantages, through various advertising agencies. PROVIDES WINTER 'GYM" Juvenile Improvement Association I Reports on Work for Month. The advent of rainy weather is not to put an end to tne public gymnasium work at the old city reservoir. Arrangements were made last night at the regular monthly meeting of the Juvenile Improve ment Association whereby a space 60 feet by 80 feet may be boarded in to keep out the rain and enable the boys accustomed to using the place to continue gymnasium exercises all Winter. The necessary lum ber. It was reported, has been contributed by the Portland and Eastern & Western lumber companies. Similar arrangements1 for a public gymnasium in Columbia Park Gus C. Moser, Who Is to Deliver tbe Eulogy. music and sung by Mmmes. Sembrich and Gadskl. The committee of arrangements an nounced yesterday that the exalted ruler desired the members of the lodge to assemble at the Elks' rooms on the day of the services promptly at 1 o'clock, thence to proceed to the church in a body. Appetite None. The Woeful Reflections of a Withered Dyspeptic. No substitute for good nature has yet been found. . Smiles take root in the stomach. Without good digestion there never can be very much sunshine, for the very simple reason that the stomach and the brain are twins, and what affects one invariably affects the other. The adage that the best road to a person's heart is via the stomach, still holds good. Gorged grub and pappy pie always breed gloom and sleepless nights. They also breed dyspepsia quick dys pepsia, and dyspepsia shows itself In a Is This You? variety of ways belching, burning sensa tion, an empty feeling in the stomach, bloating after eating, brash, aversion to food, fermentation, or downright indiges tion. There are few diseases which create such misery long drawn out misery as dyspepsia. It pursues you before meals, after meals, and between meals; you take It to bed with you; It Is with you at the theater and at your desk. What is the only way to get rid of it? You don't have to stop eating, you don't have to diet. Just take something that will do the work of the stomach and let the stomach take a rest. Stuart's Dyspepsia Tablets are the most wonderful little tablets on earth for this very thing. In plain arithmetic, one of Stuart's Dyspepsia Tablets equals one good strong stomach for one time for one good hearty meal. One ingredient of Stuart's Dys pepsia Tablets will digest perfectly 3000 grains of food In just the same -way that a strong, robust, healthy stomach would do it. Stuart's Dyspepsia Tablets enrich and inchease the gastric juice in your stom ach, and that Is mostly what you need more and better gastric juice. And it gives the stomach a rest, a good long rest. In the meantime It cures the dys pepsia, and all other stomach troubles. Just a few of Stuart's Dyspepsia Tab lets will prove to you what these little cherubs of health and happiness can do. Stuart's Dyspepsia Tablets are for sale at all druggists at 50c a box. Send us your name and address today and we will at once send you by mall a sample package free. Address F. A. Stuart Ca., 150 Stuart bldg., Marshall, Mich. were made so that the boys of the Pen insula will have a Winter "gym." The meeting of last night was presided over by Circuit Judge Frazer, and the at tendance of members and those Interested In the association's work was large. Re ports of committees' showed that all de partments of the association's work are manifesting active Interest. Mrs. Thomas Halley reported on the work of the girls' club. Mrs. Charles T. Kamm told of the work of the girls' friend division. M. W. Esterley reported on the boys' club. J. R. Wilson reported on the gymnasium and playground. Miss Butler spoke on the Ju venile Court work and Miss McDonald gave a supplementary report of the work of the girls' club. This was followed by a committee meet ing at which details of the various brandies of the association's work were gone over. COURT WORK ON HOLIDAYS Legal View as to What Kind of Busi ness Can't Be Done. PORTLAND, Nov. 16. (To the Editor.) Much has been -said In the last few days through the columns of The Oregonian with reference to what business may Be legally transacted on these holidays of ours In Oregon. As showing distinction between Sun days and other legal holidays, sections 3918 and 3919 of our code set forth what days are holidays In this state, and section 946 sets forth what are non-Judicial days. This last section mentions the same days as the former sections and provides that the follow ing judicial business can be legally done on a non-Judicial day: 1. To give instructions to a Jury then deliberating on their verdict. 2. To receive the verdict of a Jury. 3. For the exercise of the powers of a magistrate in criminal actions. I take the position that no Judicial business of any nature, except as men tioned above, can be legally transacted on any holiday; but all ministerial acts performed by a court or any officers of the state, county or city which are not specifically prohibited by statute, are legal and lawful to be done on any holiday except a Sunday. Some well-known authorities sus taining this position may be found in the following cases: Sixty-seventh New Jersey Law Rep., p. 193, reads as follows: "The statutes on the subject of legal holidays enacts that the days and half-days therein named shall, for ail purposes whatever as regards the presentment for payment or acceptance and nrotest, when dishonored, of bills of exchange, bank checks nnd promis sory notes, be treated and considered as the first day of the week commonly called Sunday, and as public holidays or half-holidays." It further also enacts that there shall also be so considered "for all purposes whatever as regards the transaction of business in the pub lic offices of this state or count.es of this state." From this it would seem to be im plied that it was not the purpose of the Legislature to render Illegal the transaction of any business, public or private, on legal holidays other than that thus specially prescribed. Jus tice Magie, after a very careful exam ination of this subject. In Glenn vs. Eddy (22 Vroon). so construed the act with regard to legal holidays then ex isting, which differed from the pres ent act In that It included among the things prohibited on a legal holiday the holding of courts and the compell ing of any person to labor upon such days. He said: "When the statute de clares them to be legal holidays it does not permit a reference to the legal status of Sunday to discover Its meaning, for it proceeds to interpret Have Style Fit, and Shape in Your Clothes-Not Just Wear By A. Frank Taylor. "T X THAT is the secret of a I Great Painting what gives it its power ? It's the Intelligent Work that is in it. Now it's the same way in everything. Take the Clothes for instance that have been improperly and care lessly cut and tailored that have been merely pressed into a temporary shape semblance by Old Doctor Goose, the Hot Flat Iron Those poorly made Garments will "go to pieces" a very short time after they have been worn Whereas the Good Suit that which has had Intelligent Work put Into it, will hold its Style, Shape and Fit for a good long time. Now, how's one to tell the differ ence between the Poor and tho Good There's one sure way, so simple a child can do it. And that's to see that the label "Sincerity Clothes" is in the Gar ment you buy Each "Sincerity" Garment has the maximum amount of Skilled and Style book amnt on request. Kah, AUTOMOBILISTS! TIME'S UP! This is the last chance to get MOTOR and SUNSET MAGAZINE at Half Price SUNSET MAGAZINE MOTOR BOTH J Tfp two premiums, a beautiful pic .a.I1C1 r ICC ture of Santa Barbara Mission, and one of Yosemite Valley, both in colors; mount ed, ready for framing or hanging in your room or den Send this advertisement with $2.25, stamps, money order or check to SUNSET MAGAZINE 202 FLOOD BUILDING San Francisco, California NOTE: The subscriptions may be new or renewal, and may be sent to the same or separate addresses the phase, so far as It Is prohibitory, by an express enactment, what shall not be done thereon. What it thus expresses is prohibited, what It fails to prohibit remains lawful to be done." In Mueller vs. Ears Harbor City (26 Vroon, 245), it was held that a city ordinance might lawfully be passed on Saturday afternoon, which was a half holiday. In construing the provisions of the statute. Identical In langnnse with the one now under consideration. Justice Van Sycle, in the opinion, says: "This provision only applies to tho public officers of the state and to the public officers of the counties of this state, requiring; them to close their several offices on such legal holidays. It does not. in terms or by Implication, Inhibit municipal legislation." In Walton vs. Stafford (162 New York. p. 558). In construing a similar statute the court said: "It Is undoubt edly true that the state of the law on this subject Is likely to prove em barrassing to many, such, for instance, as find themselves obliged to tender a considerable sum of money on a day which Is just enough of a holiday to allow the banks to close, from which he must obtain to make the tender, but not enough of a holiday to avoid the necessity of a tender If lie would not breach his contract. But such faults, if faulty they be. in our busi ness laws can be corrected only by the Legislature." WALTER G. HAYES. THROW EGGS AT SPEAKER Socialist Finally Escapes Mob in Clothes of Policeman. LONDON. Nov. 9. A Brighton Social istMr. Hardy has had a lively week end experience in the Old World city of Chichester. As soon as Mr. Hardy took his stand near the market cross it was evident that trouble was brewing. A crowd of some 400 or 500 men had assem bled, and before long the speaker found himself involved in a storm of opposi tion. Interruptions greeted his first attempts to make himself heard, and for a long time he could not manage to utter a sin gle Intelligible sentence. "When are you going to make a collec tion?" some one called out. "When there is a branch in Chichester." answered Mr. Hardy. "A collection of eggs, you mean," cried a voice. Then pandempnium reigned. Rotten feggs, hags of flour, stale fruit and over ripe tomatoes. In one continuous shower, were concentrated on the unfortunate speaker. His hat was knocked off and his clothes smothered. For some minutes he went on attempt ing to talk, but was at last compelled to make a bolt for the railway station, three-quarters of a mile away. He ultimately took refuge in the police Intelligent Tailoring put into it to insure its all-around excellence Each "Sincerity" Garment is so cut and tailored that the Shape and Style are sewn permanently into the Cloth not merely "doped" in temporarily as in ordinary Suits. And the most attractive part about "Sincerity Clothes" is the fact that while they cost more to make, they do not cost a penny more to buy than the ordinary kind of Clothing that is unreliable. Gee "Sincerity Clothes" at your high-grade Clothes Shop Look for the label in the next garment you buy. Nathan A Fimchmr Co. , Chicago $1.50 per year $3.00 per year $4.50 FOR $2.25 office, where he remained until a minute before the Brighton train was due. Then he was marched across the road, dis guised In the uniform of a policeman, with officers on each side of him. The crowd was quite taken In by the ruse, and Mr. Hardy got safely back to Brighton. MONEY FAILS, THEN HEART Bankrupt Spokane Business Man Flees From Neighbors' Sneers. SACRAMENTO. Cal., Nov. 16. Joseph Reott. a well-known business man of Spokane, was found dead in this city this morning in a hotel. His clothing gave evidence that he was in financial straits. Ho arrived here on. November S and worked as a laborer. He was taken sick a few days ago and expired from heart failure. He had stated to friends that all of his funds were gone and that he could not endure the sneers of his former business associ ates. Ill-health was responsible for his losing his business. With 17 mills engaged exclusively in th business. Germany leads in the manufacture of tissue paper. ft 77 99 Seventy-seren for Grip and COLDS Guaranteed by the Manufacturer under the Food and Drugs Act. June 80, lOofl. Humphreys' Seventy-seven does not contain Morphine, Opium, Codeine, Cocaine. Chrloroform. Chroral. Pheua ccline or any habit-creating drug. Seventy-seven is made of perfcctlj pure Homeopathic remedies and ii harmless. Seventy-seven cures by acting di rectly on the sick part, without dis turbing the rest of the system. Al Druggists, 25c. Humphreys' Homeo. Medicine Co., Cor. William and John Streets, New York.