Andrews v. Brown

108 P. 184 | Or. | 1910

Mr. Justice McBride

delivered the opinion of the court.

1. For the sake of brevity we have omitted a full statement of the contentions of the parties. We think that the answer, taken as a whole, denies that there is now any dispute or uncertainty as to where the original lines, dividing the land of the parties, actually existed upon the ground: nor is there any substantial dispute in the evidence. The original lines called for by the deeds are practically where plaintiff claims them, and if defendant has any right to any of the land east of the line claimed by plaintiff it is by virtue of adverse possession, or by an agreement between the parties. The surveys made .at the instance of the respective parties are practically identical, and there is no contention as to where a survey, according to the original conveyances, would place the line. Defendant’s answer, taken as a whole, denies any present dispute or uncertainty as to the boundary lines, except that defendant claims to a conventional line and by adverse possession. The objection taken by plaintiff to the trial of either of these issues was well taken: Love v. Morrell, 19 Or. 545 (24 Pac. 916); Dice v. McCauly, 22 Or. 456 (30 Pac. 160.)

2. The question whether there was a dispute or any uncertainty as to the actual boundary was the only matter left to try, and the court, properly concluding that there was none, dismissed the suit.

3. It is suggested by appellant that he is willing to waive his objection to the jurisdiction of the lower court to take cognizance of defendant’s attempted defenses, and allow the whole matter to be tried out here. But if the lower court had not jurisdiction to consider these, we will not assume it on appeal, but leave the parties to their remedy at law.

This case is so similar to Love v. Morrill, 19 Or. 545 (24 Pac. 916), that we deem an extended opinion unnecessary. The decree of the lower court is affirmed.

Affirmed.