70 P. 704 | Or. | 1902
delivered, the opinion of the court.
This is a controversy respecting the proper location of the dividing line between the lands of th.e parties concerned. The plaintiff is the owner of the S. % of the S. E. % oí section 16 in township 9. One J. J. Blair was the original purchaser thereof from the state, and, upon an exchange of lands, assigned his certificate of purchase to the plaintiff, who subsequently completed payments thereon, and obtained a deed from the state, October 25j 1886. The defendant! is the owner of the N. E. *4 of section 21, which he acquired from the general government as a homestead. Blair haying- first entered it as a preemption, defendant purchased his right, and made a homestead entry instead. Some time thereafter, and while Blair was in possession of the land now owned by plaintiff, he employed Mr. Hammer, a competent surveyor, to locate the line between him and Blair. He testifies that Hammer showed them a post haying the surveyor’s marks upon it, which he said was set by one of the government surveyors, who surveyed to the center line of the township, and also a stone which he said was set by another government surveyor, who surveyed ¡the whole township ; explaining further that the latter failed to find the post, and consequently set the stone; that Hammer took the post as designating the original survey for his initial point, and ran due west for half a mile, and, not finding any marks, he said, “About here is your comer,” and, witness and Blair having indicated their satisfaction respecting the line ¡run, he piled up some rocks to designate the point; and that in the fall of 1877 witness built a fence on this line to the county road. It may
For the purpose of locating the true line, the plaintiff had a survey made by Herrick, the county surveyor. Herrick was not called as a witness in the case, but Taylor, who acted as one of the chain carriers, testifies, in substance, that Herrick started from a pile of rocks which was located by him from certain witness trees designated in the field notes, one of which he says he was unable to find, as the southeast corner of plaintiff’s land, and ran west to the southwest corner, which he located by a witness tree then standing, and by a stump which was assumed to have been another, and that the line surveyed ran to the south of Doke’s fence. This is the line which plaintiff is now claiming. Some time later the defendant employed Davenport and Whitlock to make another survey, and furnished them with the field notes from the land office, by which to guide them in their work. Mr. Davenport states that they commenced at the northeast corner of the south section, found what they called “bearing trees,” two in number, the same being blazed in manner as required by government instructions, but that the lettering had been effaced by fire, and from these, with the field notes, they established the corner which corresponded with that ascertained and established by Herrick, the county surveyor; that from this point they ran west 40 chains (not knowing the exact bearing), where they found a
However this may be, if defendant has occupied, as he claims, adversely to all persons whomsoever, up to the Hammer line, for more than ten years continuously, prior to the commencement of this suit, he must prevail, regardless of whether that is the true boundary line or not, according to the government survey. The defendant, testifying relative to the subject, says that he honestly believed all the while that the fence erected on the line run by Hammer was on the true line, and that his motive for holding the land was that he believed it belonged to his quarter section. In his further examination he answered, as interrogated, as follows: “ Q. Asa mat
The plaintiff went upon her place about two years after the fence was constructed, which would be about the year 1879, and occupied it without a question as to its being upon the true line until about 1897, or about eighteen years, when this controversy arose. Now it is insisted by plaintiff’s counsel that defendant’s occupancy beyond the true boundary line-between him and plaintiff has not been, according to his own testimony, adverse to the plaintiff, because it was not under a claim of right. It must be conceded that such a claim in hostility to the true owner is an essential ingredient to adverse possession, and the quo animo with which the possession was taken and held has much to do with it. Counsel for defendant contends that, although the entry may have been under a mistake of fact as to the true line, yet the holding may be adverse, if under a claim of right. The two phases of the legal principle involved find exposition in the decisions of this court. In King v. Brigham, 23 Or. 262, 281 (31 Pac. 601, 18 L. R. A. 361), the holding, if at all, was under a mistake and in ignorance of the true line, but with no intention of claiming beyond it when ascertained, and it was held that it lacked the quality of an adverse holding. But in Ramsey v. Ogden, 23 Or. 347 (31 Pac. 778), it was held that in ease of a person inclosing land of another by mistake, claiming it as his own, actual possession will work a disseizure of the owner. Caufield v. Clark,