On the Merits.
The defendants appeared separately and demurred to the complaint as not stating facts sufficient to constitute a cause of suit, and, the demurrer being overruled, they filed separate answers, admitting the formal allegations of the complaint, but denying the portions above set out, except as stated in their further answer. The further answer alleges that, on April 24, 1907, plaintiff’s predecessor in interest in Waverleigh addition filed a petition with the city auditor for the grading and improvement of several designated streets in that addition, 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. J. Connelley & Company. Then follow the following allegations: “That between said 24th day of April, 1907, and the time of the commencement of this suit, the city of Portland enacted resolutions, ordinances, and proceedings for the improvement of a large number of other streets in said Waverleigh Heights Addition, and being the larger portion of said streets above mentioned, the improvement of which was petitioned for by said H. W. Lemcke Company, predecessors of the plaintiff herein, and contracts were awarded by the city of Portland for the improvement of said divers streets and portions thereof in said Waverleigh Heights Addition, and said improvement of Franklin Street between and adjacent to blocks 17, 18, 28, 24, 31 and 32, Waverleigh Heights, and the improvement of said other streets in said addition which had been petitioned for by said H. W. Lemcke Company, and for which contracts had been awarded, were being conducted and carried on as a general improvement of streets in said Waverleigh 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 defendant contractors and the city of Portland, not necessary for or required in the improvement of said Franklin Street, is used and to be used by the defendant contractors and the city of Portland in said other 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 excavated from said Franklin Street, in said general plan of improvement of said streets in Wavefleigh Heights, and that the defendant, the city of Portland, appropriated said earth for said purpose, and the same is not being 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 advertised for and received bids for the improvement of said Franklin Street on the 10th day of April, 1908, that the said bids were advertised according to law and provided that it would receive said bids for said improvement 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 defendant, 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 belong to the defendant, the city of Portland. That the defendant contractor, M. J. Connelley, at the time of submitting 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 Portland, and owned by it, and that other streets in the vicinity of said Franklin 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 knowledge that said earth could and was to be used in the improvement of said streets in the vicinity of Franklin Street, and said bid was for an amount much lower than the same could have otherwise have been made without loss to the defendant contractors, all of which facts were and are known to the plaintiff herein, and unless these defendant contractors are permitted to use said earth they will be subjected to and will suffer a great financial loss in the carrying out of said contract with the city of Portland, and that, by reason of the bid of said contractors having been placed at said reduced amount, the assessment for said improvement as to the property benefited thereby will be greatly reduced.” Plaintiff’s reply denied the new matter set up in defendants’ answer. Upon the trial a decree was rendered against defendants, restraining them from further converting the earth claimed by plaintiff, and fixing plaintiff’s damages for that already converted at $2,500. Defendants appeal. Affirmed as to Connelley, Scott & McDougal. Reversed as to city of Portland. For appellants there was a brief over the names of Mr. John P. Kavanaugh, Mr. Frank S. Grant, city attorney, and Mr. William C. Benbow, deputy city attorney, for defendant, City of Portland, and Mr. Lawrence A. McNary for defendants M. J. Connelley, and Messrs. Scott & McDougal, with oral arguments by Mr. Benbow and Mr. McNary. For respondent there was a brief with oral arguments by Mr. Ralph R. Duniway and Mr. A. E. Clark. Mr. Justice McBridedelivered the opinion of the court.
Considering the complaint in its entirety, we do not think it states a cause of suit against the city of Portland. It sufficiently appears from the complaint that the contract was let in the regular manner and without reference to what disposal should be made of the surplus 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 a right to expect would carry out their contract in a lawful manner. The pleading is somewhat vague, but, tak*362ing it by its four corners, 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 action 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 aider cured the defect in the complaint, and this undoubtedly would be true, had not these allegations of the answer been denied by the reply.
3. The rule is that a party cannot rely upon allegations of his adversary to cure defects in his own pleadings, when in a subsequent pleading he denies such allegation. 31 Cyc. 716; Sterling v. Sterling, 43 Or. 200 (72 Pac. 741); Cohn-Baer Myers & Aronson Co. v. Realty Transfer Company, 117 App. Div. 215 (102 N. Y. Supp. 122); Mosness v. German American Ins. Co., 50 Minn. 341 (52 N. W. 932). As to the other defendants, the decree of the circuit court was correct.
4. It appeared from the testimony that the plaintiff was the abutting owner on both sides of the street where this improvement was being made, and it is settled past controversy in this State that the abutting owner is also the owner of the soil of the street in front of his lot to the center of the street, subject to the right of the city to improve the same for the purpose of travel: Parker v. Taylor, 7 Or. 435, 447; Lankin v. Terwilliger, 22 Or. 97 (29 Pac. 268); Huddleston v. Eugene, 34 Or. 343 (55 Pac. 868: 43 L. R. A. 444). Being the owner of the soil, plaintiff did not become divested of his ownership by the mere act of the defendants in excavating it, in order to improve the street. Elliott, R. & S. (2 ed.) § 692; Smith v. City Council of Rome, 19 Ga. 89, (63 Am. Dec. 298); City of Aurora v. Fox, 78 Ind. 1; Makepeace v. Worden, 1 N. H. 16; Fisher v. City of Rochester, 6 Lans. (N. Y.) 225.
*3635. The weight of authority seems to be that the city is entitled to use the earth excavated from one portion of a street to make fills required upon the same street, or upon other streets embraced in the same general plan of improvement. But in the case at bar the soil excavated was not so used, and under the charter of the city of Portland there cannot be a general plan of improvement embracing several streets. Each improvement must stand alone, be petitioned for separately, and be improved under a separate ordinance. City Charter of Portland, § 375 (Sp. Laws 1903, p. 150) ; Oregon Transfer Company v. Portland, 47 Or. 1 (81 Pac. 575: 82 Pac. 16).
6. The evidence shows that 10,000 cubic yards of earth excavated from the street was disposed of for use on other streets and for the contractors’ benefit.
7. Without discussing the somewhat conflicting authorities, we hold the law to be this: (1) That the abutting owner on a street in Portland owns the soil to the center of the street; (2) that he still owns it when it is excavated, unless needed for the improvement of the same street; (3) that he has a right to take it away, provided he does so promptly and without delaying work on the improvement; (4) that if there is a place where it is as convenient for the contractor to dump the surplus dirt as to place it elsewhere, it is the right of the owner to have it dumped at such place, if he so indicates at the commencement of the work; (5) that, in view of fact that dirt taken from such excavations is usually valueless to the abutting owner, he should be deemed to have abandoned his claim thereto, unless seasonably made as indicated above; (6) that the owner cannot require the contractor, at the latter’s expense, to place the dirt at a distant or inconvenient place, in which event he must remove the dirt promptly himself.
8. In the case at bar the evidence shows that plaintiff needed the dirt adjoining the very place where it was *364excavated, and that he so notified the defendants. It further shows that the place indicated by plaintiff was the easiest and most accessible place upon which the surplus dirt could be dumped. The evidence also shows that it will cost plaintiff $2,500 to procure other dirt to replace that wrongfully taken by defendants, and that such dirt could not then or since be obtained for less.
Under these circumstances the decree of the circuit court will be affirmed as to defendants Connelley and Scott & McDougal, and reversed as to the city of Portland, but, as the city has seen fit to thrust itself into this controversy and assist the other defendants when it should have stood neutral between the parties, it will not be allowed to recover costs in this court or the court below.
Affirmed as to Connolley, Scott & McDougal.
Reversed as to City of Portland.