21 Or. 580 | Or. | 1892
This is a suit to establish the boundary line between the lands of plaintiff and defendant, and is really to determine, so far as the parties to this suit are concerned, the east line of the donation claim of Marcus Neff, Notification No. 80, Claim 57, in Multnomah county. This claim is bounded on the east by the donation claims of Danford Balch, Notification No. 79, Claim 58, and of Peter Guild, Notification No. 325, Claim 54, plaintiff owning a part of
In September, 1850, Neff being entitled to one-half section of land under the act of congress, approved September 27,1850, known as the donation law, settled upon the unoccupied and unsurveyed public domain with the intention of acquiring title to three hundred and twenty acres thereof under the provisions of said act. On March 9, 1852, he notified the surveyor-general, as by law required, of “the precise tract claimed” by him, in which he stated that the south line of his claim, the length of which is in controversy here, extended to the line of Balch’s claim. On February 5,1856, he made final proof of his residence and cultivation, as required by law, and on December 31,1862, received his certificate for a patent, in which the land is described only by courses and distances from the initial point, and as so described contained three hundred and twenty-two and eighty-nine one-hundredths acres. Upon this certificate, a patent was issued on March 19,1866. In neither the certificate nor patent are any natural or artificial monuments referred to except the initial point at the south-west corner of section 29. By running the exterior lines of the claim according to the courses and distances given in the patent and certificate, the lines close, and the claim contains three hundred and twenty-two and eighty-nine one-hundredths acres, and the east line thereof corresponds with the admitted west line of the Balch and Guild claims as located by the government surveyor, and which defendant contends is the true location of the line in controversy. This line seems to have been recognized as the true division line by the respective owners of the property on either side thereof until 1884, when McQuinn was employed to survey the Neff claim for the purpose of partitioning it among the owners, and in so doing found what is claimed to be the original stake set by Ford and Mitchell, government surveyors, in 1854 or 1855, for the southeast corner of the claim. From this stake a blazed government line extends north to
The contention of the plaintiff is that the monuments as located by Ford and Mitchell must prevail over the courses and distances as given in the certificate and patent, and that the line as actually run by them is the true dividing line between the claims of Neff and of Balch and Guild. It was contended by counsel for the plaintiff, both at the hearing and in an able and exhaustive brief, that where a conveyance or grant is made with reference to permanent and visible or ascertained monuments, and such monuments are inconsistent with the corners and distances given in the conveyances, the former must control. As a general rule of evidence this is undoubtedly true because the primary object in all such cases is to ascertain the location of the line actually intended by the parties, and mistakes in courses and distances are more probable and more likely to occur than in visible or ascertained monuments. But this is only a rule for construing the descriptive parts of a conveyance when the construction is doubtful, and there are no other sufficient circumstances to determine it, and is therefore not an inflexible rule in all cases. There are no fixed and certain rules by which the courts can be guided in determining this question, but they must be governed by that evidence in each particular case which carries conviction to the mind.
But we think this rule has little if any application to the facts of this case. The claim of Neff was not located according to or with reference to the Ford and Mitchell survey, nor is that particular survey in any manner referred to in the certificate or patent issued by the government. The land was located and segregated from the public domain at the time Neff notified the surveyor-general of the “precise tract claimed by him,” and more than two years prior to this survey. (Fitzpatrick v. Dubois, 2 Saw. 434; Ramsey v. Loomis, 6 Or. 367.)
Under the law, it was the duty of the surveyor-general “to survey and mark the claim with the boundaries as
It was assumed at the argument by plaintiff’s counsel that the Neff claim was surveyed prior to either the claim of Balch or Guild, and therefore it was contended that the west line of the two latter claims must yield to that of Neff as actually run on the ground by Ford and Mitchell. The copy of the official plats of these claims from the surveyor-general’s office, in evidence, shows that the Guild claim is number 54, while that of Neff is number 57; and if we are correctly informed, the practice of that office was to number the donation claims in the order in which they were surveyed. If this be the case the Guild claim was surveyed before Neff’s, and certainly in that event Ford and Mitchell could not by any act of theirs take a portion of that claim and attach it to the claim of Neff. But be that as it may, it is clear, both from Neff’s notification and the official plat, that the notification of the Balch claim was prior in point of time to his; and when he designated the line of the Balch claim as the termination of the south line of his
By his certificate and patent, Neff received the evidence of title to all the land he was entitled to under the law, and all he intended to take or the government to grant. It is obvious that he did not intend to take or the government to grant any of the land east of the west line of the Balch claim, and it is equally clear that he intended to take and the government to grant only the land described in the certificate and patent. If the line as contended for by plaintiff is to prevail, Neff and his assignees will receive twenty-seven acres more than by law he was entitled to or intended to take, or the government to grant to him, and the acreage of the claims of Balch and Guild will be that number of acres less than they supposed they were getting and the government actually granted to them by patents duly issued.
Before a court would be justified in arriving at a conclusion from which such manifest injustice will result, it must be impelled thereto by the irresistible force of the facts and law in the case. The line as claimed by defendant gives to each of the parties all the land they were entitled to under
The decree of the court below is affirmed.