100 P. 1107 | Or. | 1909
delivered the opinion of the court.
The defendant, Miss Talbot, in her testimony states, in answer to the question:
“Q. ‘Miss Talbot, you say that at the time you first became acquainted with the donation land claim of your mother and father that they had agreed, or soon thereafter agreed, upon the division line between the north and south half, and set a monument?’
“A. T don’t know as they particularly agreed, but in the division of the claim at the very commencement of that taking up of the claim and surveying it around there, I don’t think I was old enough to remember it.’ ”
And in defendant’s Exhibit 8, W. B. Marye, county surveyor of Multnomah County, on May 8, 1885, at the request of Sarah A. Talbot, established certain corners of the claim. He was not making a survey, but identifying old corners and placing permanent monuments. He says he found the northeast corner of the claim and at which he set a stone 24 inches in length and 6 inches square, and squared off at the top and running to a point, with the letter “T” sunk thereon on the south side.
“I then went to the corner stake, the same being at the intersection of the division line of said Talbot donation land claim, where the same intersects the east boundary line of said claim. Said stake was set by*35 Leland, a Government surveyor. I replaced this stake with a stone monument, the same lengón and width as a stone monument heretofore mentioned, with the letter T facing west.”
This is corroborated by Miss Talbot:-
“Q. ‘Now, about the boundaries with this northeast corner of the tract of land that was mortgaged to the company, do you know when that corner was established where the stone monument now is?’
“A. ‘Yes, sir. * * ’
“Q. ‘When was it?’
“A. ‘Well, as far back as I can remember, there was a stake there. Then, when Mr. Burch made the survey oí the claim for the Ford tract, he ran through the claim and drove another stake, and it was a cherry and the cherry — a cherry stake does not last very long. It decays and it was then getting to be, when the stone monument was set there — it was getting to be a pretty well decayed stake, and for that reason my mother had the monument set both at the northeast corner and that division and at the southeast corner. The witness trees at the northeast corner had been chopped down by men who had been put in there to cut cordwood, and there was nothing but stumps left, and there was virtually the same intention to obliterate that line, and for that reason we had this monument set, and we always called that line the line between the north and south half of father’s and mother’s tract.’
“Q. ‘Up to 1885 or 1886 was there ever any other line known to you -or to the family, so far as you knew, on the dividing line between your father’s and mother’s part, except the one running to the stone marked ?* * *
“A. ‘No. The line in the claim was established, the center of the claim line was established after we had a suit in court, establishing the eastern boundary of the claim. Then the commissioners drove an iron rod, and after that time we considered that the center of the claim, but all deeds prior to that were made from the old claim line from the center of the claim.’
“Q. ‘And that was marked at that point by the .stone ?’
“A. ‘That was marked at that point by the stone marked “T,” turned west. That was the only' monument my mother saw set.’ * *
*36 “Q. ‘That was the suit with Judge Marquam?’
“A. ‘Yes. Then after that the surveyors squabbled, and had so many fusses over that line, between that and in making her mortgages on her half of the claim, she took that line through the center of the claim as the section line.’ ”
This is further corroborated by defendant’s statement in her answer describing the north line of the tract she now claims as “thence north to the division line between the John B. Talbot half and the Sarah A. Talbot half of the donation land claim of said John B. and Sarah A. Talbot; thence east, along said dividing line between the said John B. Talbot and the said Sarah A. Talbot half of said donation land claim, 428.11 feet, more or less, to a stone marked ‘T,’ which is set on the eastern extremity of said dividing line between the north and south half of said claim.” So we conclude there can be no doubt but-the stake, replaced by a stone marked “T” turned west by Marye in 1885, was the monument set at or about the time of the survey of the claim as marking the point in the eastern boundary of the claim, indicating the boundary between the part inuring to the husband and that to the wife, as designated by the Surveyor-General, and has been acquiesced in for many years by both parties thereto, and is conclusive now as indicating the intersection of the middle boundary line with the east line of the claim.
“Commencing at a point * * marked by a stone, the same being the middle point in the east line of said donation land claim and also the northeast corner of the south (or Sarah A. Talbot) half of said donation land claim.”
The third and fourth courses are described as:
“Thence north 160 rods to a point in the division line between the John B. Talbot half of said claim and the Sarah A. Talbot half thereof; thence east along said division line 110 rods, and to the point of commencement.”
We find no ambiguity in this description, and we conclude that the description includes the ground in controversy in this suit.
The decree will be affirmed.
Affirmed: Rehearing Denied.