Hoffman v. Dorris

163 P. 972 | Or. | 1917

Lead Opinion

Mr. Justice Benson

delivered the opinion of the court.

The pleading and the contention of the litigants can be more clearly comprehended by an examination of the following drawing:

1. Plaintiffs contend that the deed describes the rig’ht of way as the rectangle marked A, and the defendant insists that the alley described in the written instrument is the ground inclosed in the rectangle B. We are wholly at a loss to comprehend defendant’s contention upon this point, for it appears to us perfectly clear that the description in the deed identifies the alley as being the ground indicated by the rectangle A and we cannot perceive any ambiguity in the description. The defendant does not plead any mistake or imperfection of the writing and it follows that we are not at liberty to consider parol evidence as to the intent of the parties at the time of the execution of the instrument.

2-4. We shall consider then the defenses of nonuser and adverse possession which may be logically discussed together. The authorities appear to be uniform in support of the doctrine that a person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land: 8 E. O. L. 810, and cases there cited. However, if the grantee of an easement- is prevented from enjoining it by the open, unequivocal, continued use by the servient owner, that is, by such a use as is incompatible with the possession and nse of the easement by the dominant owner, and such adverse possession should continue for the statutory period prescribed for acquiring an adverse interest in real property, then the easement is lost. The evidence in the case at bar is conflicting, but out of it all we conclude that the following facts are practically indisputable; that the only obstructions which have ever been placed in the alley since the grant of the easement was executed, were a gateway placed at the Ninth Street entrance by the predecessors in interest of the plaintiffs for the purpose of greater privacy in the rear of the hotel; a board fence across at the same point built by the defendant in 1912; and the occupation of the alley from September, 1913, to March, 1914, by a tenant of the defendant who occupied the ground with a peanut wagon. These facts fall short of establishing an adverse possession. Our consideration of the evidence compels the conclusion, therefore, that the plaintiffs are entitled to the use of the alley as described in the deed of August 28, 1886, and the decree of the trial court is reversed, and one entered here making the injunction permanent.

Reversed. Decree Rendered.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Burnett concur.

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Rehearing

Denied April 3, 1917.

On Petition for Rehearing.

(163 Pac. 973.)

Petition of respondent for rehearing denied.

Messrs. Thompson & Hardy, for the petition.

Messrs. Devers & Brumbaugh and Mr. W, B. Bell, contra.

Department 1.

Mr. Justice Burnett

delivered the opinion of the court.

The defendant petitions for a rehearing of this suit and challenges the doctrine of the former opinion to the effect that there is no ambiguity in the description involved and that extrinsic evidence is not'admissible in the construction thereof. The delineation mentioned is found in a deed from the defendant and his wife to the predecessors in interest of the plaintiffs and is quoted in the opinion written by Mr. Justice Benson. The specific contention of the defendant as stated in his petition is that:

“From the description in the conveyance, the conclusion is irresistible that the right of way is to be 12 feet in width and that its length cannot be ascertained from a reading of the instrument. If the description is ambiguous for one purpose, it is ambiguous for all purposes.”

In Smith v. McDuffie, 72 Or. 276, 284 (142 Pac. 558, Ann. Cas. 1916D, 947), Mr. Justice Moore said:

“In construing the language of deeds or other writings relating to real property, it has been held that the description of land therein contained was sufficient, if, with the stated instrument before him, a surveyor, either with or without the aid of extrinsic evidence, could locate the premises with resonable certainty: Willamette Falls etc. Co. v. Gordon, 6 Or. 175; House v. Jackson, 24 Or. 89 (32 Pac. 1027); Hayden v. Brown, 33 Or. 221 (53 Pac. 490); Bogard v. Barham, 52 Or. 121 (96 Pac. 673, 132 Am. St. Rep. 676); St. Dennis v. Harras, 55 Or. 379 (105 Pac. 246, 106 Pac. 789).”

In House v. Jackson, supra, the precept is laid down that:

“When a deed refers to another, or to a map, for a more specific description of the land conveyed, the deed or map to which reference is thus made is considered as incorporated in the deed itself” — citing Devlin, Deeds, § 1030.

In other words, that is certain which can be made certain.

Taking the whole description together in the instant case we find it referring to a certain lot and block of “Mulligan’s Donation to Lane County, now part of Engene City, on the corner of Willamette and Ninth Streets.” These designations .evidently refer to a public map of record from which may be ascertained the situation and dimensions of lot 4. It is said that the alley is 12 feet in width on the east side of said lot. The length of the east boundary mentioned can be discovered by reference to the map. The deed says the right of way is “through” the alley which plainly means from one end thereof to the other and not part of the way along the longest dimension. In addition to all this it is “between the hotel and the butcher-shop.” It cannot mean a strip of ground upon which those two buildings do not abut, one on each side thereof. It being easy to determine the eastern dimension of the lot by consulting the map as taught by House v. Jackson, supra, the length of the alley is sufficiently certain, as the two are coterminous. The width and length of the passage being thus defined and anchored, as it is, to the east side of the lot there is no reason for saying there is any patent ambiguity which requires extrinsic explanation.

For these reasons we adhere to the former opinion.

Reversed. Decree Rendered. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Benson concur.