| Or. | Apr 21, 1914
Lead Opinion
delivered the opinion of the court.
This is a motion to dismiss an appeal. A decree was rendered in this cause December 18, 1912, establishing a boundary between contiguous lands of the parties hereto, and appointing commissioners to mark upon the ground the dividing line thus ascertained. Desiring to review such determination, the plaintiff on June 2, 1913, caused to be served and filed a notice of appeal but did not serve or file an undertaking therefor until the 13th of that month. Attempting to abandon the experiment undertaken to secure a reversal of the decree, the plaintiff on June 21, 1913, caused to be served and filed another notice of appeal and an undertaking thereon. The transcript having been filed with our clerk, this motion was interposed, based on the grounds, inter alia, that the order appealed from is not final, and that the attempt to take a second appeal was not made until after the expiration of the time prescribed.
“Provided, that in all cases where the right to an appeal to the Supreme Court shall exist at the time this act shall come into force, the time for taking such appeal is hereby extended for the period of sixty (60) days thereafter.”
This later enactment contained no emergency clause, and took effect 90 days from the end of the session at which it was passed: Article IY, Section 28, of the Constitution. The session of the legislative assembly at which the amendment was passed ended March 4, 1913 (Laws Or. 1913, p. 866), and hence the act went into effect June 3d following.
It is argued by defendant’s counsel that as the first notice of appeal was served and filed prior to June 3, 1913, and as the attempt to abandon such undertaking to review the decree was not made until June 21,1913, the right to appeal did not exist when the amendment referred to took effect, and hence the enactment did not extend the time for taking the appeal, which limit
In the case at bar as the first undertaking was not filed within the time limited, the appeal was not perfected, whereupon plaintiff’s counsel properly abandoned the attempt and took another appeal, and “the right to an appeal to the Supreme Court” within the meaning of the amendment of February 28, 1913, existed until the latter effort to appeal was perfected; the extension granted by the statute not haying elasped in the meantime.
It follows that the motion should be denied, and it is so ordered. • Motion Denied.
Opinion on the Merits
Affirmed April 21, 1914.
On the Merits.
(141 Pae. 208.)
The facts in this suit are fully stated in the opinion •of the court.
For appellant there was a brief over the names of Messrs. Sinnott & Adams and Mr, George M. McBride, with an oral argument by Mr. Boring K. Adams.
For respondent there was a brief over the name of Messrs. Dillard é Day, with an oral argument by Mr. William B. Dillard.
Department 1.
delivered the opinion of the court.
This is a suit for a decree determining and settling a boundary line between lands of the plaintiff and of
The complaint prays for a decree declaring the boundary line between the plaintiff and the defendant to be as set forth in the complaint and above described. The answer denies each and every allegation of the complaint, except as admitted in said answer.
The defendant admits, by his answer, that he is the owner of all -that portion of the south half of the original donation land claim.of Abram O. Neer and wife, referred to in the complaint, excepting so much thereof as lies on the hill known as “Germany Hill”
The answer further alleges that the western boundary of his said premises, and the boundary line between his said premises and the lands so claimed by the plaintiff, is the face of a certain claim of cliffs or almost perpendicular rock bluffs, which forms the easterly border of that certain ridge known as “Germany Hill,” and cuts the south boundary of said donation land claim at a point 1,220.2 feet west of the southeast corner of said claim; thence runs almost due north in an unbroken line to a point on the northeasterly boundary line of said donation land claim, which lies north twenty-nine degrees, twenty-seven minutes west, 2,884.9 feet from the southeast corner of said claim. And the defendant claims the line of said cliffs or bluffs, and none other, to be the true boundary line between the premises of the defendant and the lands owned by the plaintiff in said county, and, as to said line, the defendant alleges that it has never been lost, obliterated or confused, except in so far as brush has been allowed to grow up and somewhat obscure the same. The answer prays that the suit be dismissed.
The new matter of the answer was denied by the reply.
The court below made findings and entered a decree in favor of the defendant, and declaring the boundary line to be as claimed by the answer, and not as alleged by the complaint. The plaintiff appeals.
The decision of this case depends upon the meaning of a deed of conveyance made by Abram C. Neer and
“All that portion of the donation land claim of Abram C. Neer and Elizabeth Neer which is upon what is known as ‘Germany Hill/ westerly of St. Helens, extending from the foot of the bluffs or rocky hill westward to the land of Frank N. Gorick, being the westerly 120 acres, a little more or less of the southerly half of said donation land claim, bounded on the northerly side by land of Jackson Peacher, on the easterly by the foot of the bluff, on the southerly by land of F. A. Lamont, on the westerly by land of F. 1ST Gorick. ”
Abe Neer, a son of the grantors, testifies that he assisted in selling said land to Judge Shattuck, and
“So I went to work. I told the judge, then, so he went to work and got the deed and leave it to me, and we kind of had no description, unless we put it in the rocky hill—foot of bluff—foot of the rocky hill, I think, is what he said; we all said that suits us first rate. ’ ’
The memory of this witness is not accurate, however, as to that transaction, as he seems to think that he signed the deed, although the deed appears to have been signed by his father and mother only.
A fence was built near the foot of the bluff by John Gum, who owned at that time part of the Neer donation land claim, and the plaintiff claims that this fence was built on the true line between the land's of the plaintiff and of the defendant. This fence was built after the conveyance referred to supra was made to Judge Shattuck.
Hez. Capíes testifies that this fence was built there by mutual agreement between his brother and John Gum.
Abe Neer testified that when Judge Shattuck read the deed to them the Judge said:
“ ‘Now to the foot of that rocky hill.’ * * We thought it was a good thing; always put the rocky hill. We didn’t think it was any good at all. ’ ’
S. A. Miles, an old resident of Columbia County, was a witness for the plaintiff. He was administrator of the estate of John Gum, and was familiar with Gum’s lands. Mr. Miles testified that there was a fence there near the bluff of Germany Hill, running north and south, and, speaking of the location of this fence, he says:
“Well, not exactly at the foot of the bluff—quite a little ways, if I recollect right; possibly, I suppose it*256 is 100 feet in one place; * * it [the fence] varies a distance from the bluff. * * There was a fence there. I don’t remember just how far from the main bluff. The hill was pretty steep in places, but I think it was farther from the bluff at this place it was farther north, in places. The fence had been put up a long time—quite a while ago; was there the last time I noticed it. I had not been at that corner you speak of—that is, the fence on the southwest—for quite a little while. I wound up the estate for the old man Gum, * * and I have been there and am acquainted with the ground and that location for 60 years. * * I was there when he (Gum) put up the fence. * * He made the fence in the timber, cleared out a fence there. ’ ’
Asked whether the fence built by Gum was on the line, Mr. Miles answered:
“No; it was not my understanding that it was on the line. He [Gum] said he fenced away from the bluff to give the cattle room to pass around. There was only one place in the bluff coming down from the old Neer residence north—I mean west of Neer residence north—and persons could pass through agreeably, and he made his fence to—so that he would not shut up the pathway of stock coming from off the hills. * * ”
On cross-examination, this witness, when asked whether John Gum built the fence referred to on his own land, answered:
‘ ‘ On his land he claimed it was, but I asked him why didn’t he run up to the bluff, and save labor running the fence north and south, and he told me the reason— one of them, there was only one or two places where stock could get down, up and down to the bluff, and he left that open, so as to give them a pathway north and south along parallel with his fence.”
This witness estimated the distance between Gum’s fence and the bluff at 100 feet.
“Well, a perpendicular bluff. * * A perpendicular bluff from the time that I say, by the county road where the two claim—by the Kelley and the Aaron Broiles claim-—comes together, it is practically a perpendicular bluff, although there is one or two places, understand, that you can walk down; get down by holding on to the brush,” etc.
This witness says that said bluff is perpendicular basaltic rock, but that there are ‘ ‘ sags ” in it that are not perpendicular, and that it is easy to distinguish this bluff, and that it extends more than a mile. He estimates that it is 75 feet from the foot of the bluff to the top.
C. T. Prescott, county surveyor, testified:
“That the eastern and southern border of that hill [Germany Hill] consists mostly of basaltic rock. In general, it is almost a perpendicular bluff on the east and south sides. The whole line of the bluff .would be fully a mile—perhaps a mile and a quarter.”
This witness made a survey for each of the parties; but he ran where the parties respectively directed him to run, and he did not attempt to decide where the true line was.
There is considerable evidence in this case. We have read and considered it carefully, but it seems to us that the controlling evidence is the deed made by Abram C. Neer and Elizabeth Neer to Judge Shat-tuck on March 16, 1868. We have set out supra the description contained in said deed. The oral evidence is valuable as showing the condition of the land referred to in the deed, so as to enable the court to apply the terms of that instrument to the premises in dispute.
“This line [line claimed by tbe plaintiff] begins 1,078.2 feet from tbe southeast corner of tbe Neer claim, and is situated about 142 feet east of tbe face or top or tbe rim rock or precipice at tbe southern boundary of the property of tbe plaintiff. Tbe side bill is very steep at that place and along from below tbe top of tbe rim to this boundary line. Tbe intervening tract between tbe face of tbe cliff and this line has grown up in brush, and any old lines, if any there were, are obliterated. Tbe old Gum fence has been obscured and covered up by tbe brush and small trees; but this Gum fence was placed there over 30 years ago. Hez. Capíes, who formerly owned land near there, says that tbe fence was put there by mutual consent. He refers to tbe consent of John Gum, tbe former owner, and Doctor Capíes, bis brother, who was tbe husband of Lucinda M. Capíes, a former owner of tbe plaintiff’s property.”
It is true that tbe witness Capíes says that the Gum fence was put there by tbe mutual consent of Gum and bis brother; but be does not say that these parties agreed that it was on tbe line between their lands. Mr. S. A. Miles says that Gum told him it was not on tbe line, and that be left tbe space between tbe fence and tbe bluff for a passage way for stock.
Tbe deed from Abram C. Neer and wife to Judge Sbattuck describes tbe land conveyed to tbe latter as “all that portion of tbe donation land claim of Abram C. Neer and Elizabeth Neer which is upon what is known as Germany Hill, westerly of St. Helens, extending from the foot of tbe bluff or rocky bill, westward to tbe land of Frank N. Gorick, being tbe westerly 120 acres, a little more or less, of tbe southerly half of said donation land claim, bounded on tbe northerly side by land of Jackson Peacber, on tbe easterly by the foot of the bluff, on tbe southerly side by tbe land of F. A. Lamont, on the westerly by land of
The plaintiff relies upon the case of Kerr v. Duvall, 62 Or. 470 (125 Pac. 830). Justice Moore, delivering the opinion of the court in that case, says, inter alia:
“It appears that from Beaver Creek and from Deer Creek the hill referred to rises very gradually for some distance, and then the ascent becomes quite steep. In referring to this acclivity, J. C. Hefty, a surveyor, who, at defendants’ request run a line for the westerly border as described in the codicil, appearing as their witness, was asked: * * ‘As a.matter of fact, the hill proper begins where the land begins to slope up ? ’ He replied: ‘No, sir; it does not. All valleys have a slope, and all bottom lands have a slope; but we don’t call them hills. The foot of a hill is defined as the beginning to an abrupt rise.’ The definition thus given is adopted as applicable to the disputed boundary herein, particularly so when construing the language of a will which locates a line by and along the foot of a hill.”
We hold that the easterly line of the plaintiff’s land and the westerly line of the defendant’s land were correctly determined by the findings and the decree of the court below, and that the said line runs as follows, to wit: That the western boundary line of the defendant’s said premises and the boundary between his said premises and the lands claimed by the plaintiff in Columbia County, State of Oregon, is the face of a certain chain of cliffs or almost perpendicular bluffs, which forms the easterly border of that certain ridge known as “Germany Hill,” and intersects the south boundary of the donation land claim of Abram C. Neer and wife, at a point south 88 degrees and 32 minutes west 1,220.2 feet from the southeast corner of said donation land claim, and thence runs along almost due north in an unbroken line to a point on the easterly boundary line of said donation land claim, which is north 29 degrees and 27 minutes west 2,884.9 feet from the southeast corner of said claim, and that said line is the true boundary line between said tracts of land owned by the plaintiff and the defendant, respectively.
We find no error in the proceedings of the court below.
The decree of the court below is affirmed.
Affirmed.