Hickey v. Daniel
195 P. 812
Or.
1921
Check Treatment
BEAN, J.

1. An examination of the record discloses that there was no error in refusing to grant the motion of plaintiff for a directed verdict. The real question at issue was whether the land in dispute was a part of lot 5 or a part of lot 6.

The plaintiff claims that the field-notes and official plat of plaintiff’s land indicate that the boundary line between the land of plaintiff and defendant runs due east and west; and that, while plaintiff never took actual possession of the land in dispute until within the last few years, she and her predecessors being in the actual possession of a part of the land covered by patent from the United States, this actual possession drew to them the constructive possession of the land up to and including the tract in dispute regardless of any testimony offered as to the actual location upon the ground of the opposite quarter-section corner, a straight line between which would constitute the true boundary between the subdivisions. The record discloses that there was a dispute or difference between the witnesses as to the location of the *530section corner at the southeast corner of section 6, the section in which the land in dispute is located; that, while the field-notes of the survey indicate that the boundary line between the property would run practically east and west, the monuments established on the ground and the lines actually run by the surveyor do not coincide with the field-notes, but indicate that the line, starting from the west, would run to the south of an east and west line. It was therefore proper to submit the disputed question to the jury.

2. The plaintiff maintains that the east and west line had been recognized by the parties as the dividing line between their lands for thirty years, and upon that evidence the request for a directed verdict in her favor was made. The testimony tended to show that there had been no line established, and that what Hickey actually claimed was lot 6. The brush fence that served to keep the stock on the different tracts separated, being irregular, it does not appear that Hickey claimed any other land than that embraced in lot 6, or to the true boundary of the lot.

3. It is the rule of law that in establishing a boundary line monuments control courses and distances: Section 878, Or. L.; Section 3437, Or. L.; Goodman v. Myrick, 5 Or. 65; Van Dusen v. Shiveley, 22 Or. 64 (29 Pac. 76); Kanne v. Otty, 25 Or. 537 (36 Pac. 537); Albert v. Salem, 39 Or. 474 (65 Pac. 1068, 66 Pac. 233); Schmidtke v. Keller, 44 Or. 23 (73 Pac. 332, 74 Pac. 222).

4. The law requires that boundary lines which have not been actually run and marked shall be ascertained by running straight lines from the established corners to the opposite corresponding corners: Pierce’s U. S. Code 1910, § 10,144); Schiffmann v. Youmans, 95 Or. 511, 518 (187 Pac. 630). The present case arises out *531of the same state of facts as those involved in the latter case, which was in equity. It transpires that the jury came to the same conclusion as to the facts that the court did in Schiffmann v. Youmans. The case turns on the question we have already referred to.

5. The plaintiff also claims that the court erred in refusing to give an instruction to the effect that the evidence of the actual location of the line upon the ground does not conform to the requirements of law, must be clear and satisfactory. The court, by the charge, to which we have alluded to a portion, sufficiently informed the jury as to the quantum of proof. The issues were all clearly defined by the charge, and the question as to whether the tract in dispute was a part of lot 6 or a part of lot 5 was fairly presented to the jury, in accordance with the authorities above cited.

6. Error is claimed in the refusal of the court to give an instruction requested by plaintiff to the effect that Daniel Hickey entered into possession of the land in controversy under color of title, and his possession of any portion of said land would extend his possession to the boundaries of his patent. If the disputed tract was not a portion of lot 6, then the court could not tell the jury that Hickey entered into possession of the land in controversy. His possession as claimed by plaintiff might extend to the limits of lot 6. The matter for determination in this case is whether or not the property in controversy was a part of lot 6 or lot 5. This requested instruction, if it had been given by the court, would have determined the issue and usurped the functions of the jury. The disputed question in regard to the adverse possession *532of plaintiff for the statutory period was plainly submitted to and passed upon by the jury.

7. It is urged by plaintiff that the court should have instructed the jury that the burden was on the defendant to prove that the “surveyor did not set this quarter-section post 40.60 chains from the northeast corner of the section, but set it some 26 chains farther south, or 66.60 chains from the corner.” This matter is explained in Askay v. Maloney, 92 Or. 566, 575 (179 Pac. 899, 902), in an opinion of this court by Mr. Justice Burnett in the following language:

“In connection with the duty of producing evidence which may devolve upon one or the other party by turns during the progress of the trial, the court, in deciding a motion for nonsuit or for a directed verdict, has authority to rule that the one or the other party has or has not made a sufficient case to require his opponent to proceed, but it does not give to the judge the right or duty to say to the jury that the party holding the affirmative of the issue has sustained the burden of proof at any stage of the case and that it then shifts to the other party."

The position of the plaintiff is not in harmony with this announcement.

The rule in regard to monuments indicating a boundary, and the actual survey made upon the ground, was followed in this case. It may be that the rule in certain cases will work a hardship. As this township was surveyed after the adjoining one, it may be there were incongruities in the survey. The disputed questions have been set at rest by the verdict of the jury. We find no reversible error in the record.

The judgment of the lower court is therefore affirmed. Affirmed. Rehearing Denied.

Burnett, C. J., and Johns and Brown, JJ., concur.