125 P. 830 | Or. | 1912
delivered the opinion of the court.
This is an appeal by the plaintiffs from a decree establishing a disputed boundary. The evidence shows that Elbridge G. Duvall, a resident of Dayton, N. J., was on April 30, 1888, the owner in fee of the donation land claim of Edward T. Warren and wife in Yamhill County, Oregon, and on that day Duvall made a testamentary disposition, subsequent to the execution of his last will, whereby after his death the defendants secured a title to land in that claim, a part of which is described in the codicil as "follows:
“Commencing at a point on the southerly line of my farm at its intersection with Deer creek, thence northerly along the westerly side of said Deer creek until it intersects with Beaver creek; thence westerly along the southerly side of said Beaver creek to the foot of the hill; thence in a southerly direction by and along the foot of said hill to the southerly line or boundary of my said farm; and thence easterly by and along said southern boundary to the said Deer creek to the point or place of beginning, containing about twenty-one .acres of land.”
The western limit of the premises thus described forms a part of the eastern border of land, in that claim, which
The plaintiffs having secured a survey of what they assert to be the boundaries of the real property thus described in the codicil, by causing the south and west banks of such streams to be meandered and a line to be run northwesterly from a point in the south boundary of the Warren donation claim to a point on the south margin of Beaver Creek, so as to include within the area 20.50 acres, allege in the complaint that the line so extended is the correct boundary between a part of their lands and a portion of the defendants’ premises. The defendants obtained a survey of what they maintain is the western border. of' the real property described in the codicil, thereby placing the line further to the west and including a larger area of land than is embraced in the plaintiffs’ measurement, and in the answer aver that the line so run constitutes the correct boundary. The decree did not adopt either of such lines, but placed the boundary between them, particularly describing the westerly limit, and including in the tract as devised by the codicil 33.57 acres.
It is maintained by plaintiffs’ counsel that, Beaver creek and Deer creek having been referred to as forming the northerly and easterly boundaries of the land, the westerly border should have been located along the foot of the hill in such a manner as to include the area specified in the codicil, and, this being so, an error was committed in not adopting the line described in the complaint as the proper limit. It is insisted by defendants’ counsel that the language of the codicil properly received a liberal construction so as to effectuate the testator’s purpose respecting the real property described, and that the testimony shows it was his intention to devise all the land within the area as found by the court.
C. E. Duvall, one of the defendants, testified that in the spring of 1888, his father, Edward F. Duvall, at the request of the testator, employed H. S. Maloney to make a survey of the line, the location of which is involved herein, and that when the measurement was completed the field notes thereof were mailed to Elbridge G. Duvall who, pursuant to the information thus obtained, executed the codicil containing the description hereinbefore given.
H. S. Maloney testified that in the year 1888 he was engaged to survey the line last referred to, but whether the measurement was made for the purpose of preparing a will or after it was executed he could not state; that ' all he remembered was that Edward F. Duvall informed him the testator had given or was to give land on the west side of Deer creek and south of Beaver creek; that the witness delivered the field notes of the survey which he made to the person employing him; and that the line which he run was nearly coincident with the description of the disputed ■ boundary as given in the answer herein. He also testified that in January, 1908, at the request of Warren & Stater, real estate agents who, as he understood, represented the estate of the testator, he again run a line for the westerly boundary and made a plat of the survey which, with the field notes thereof, was duly recorded. A copy of such record was received in evidence showing the westerly line nearly as established by the decree herein.
M. W. Potter, a witness for plaintiffs, testified that he assisted Maloney in making the survey last mentioned; that he was employed for that purpose by Warren & Stater, who as real estate agents were selling the land
The survey thus referred, to was evidently made and the plat and field notes thereof were filed for record before the deed was executed to plaintiffs who knew a controversy existed, respecting the western boundary, prior to accepting the conveyance. They did not acquiesce in Maloney’s survey, but their knowledge of the controversy respecting the boundary before securing their deed deprives them of much of the relief usually awarded to purchasers without notice.
“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 of 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. The testimony shows that the testator had never seen the Warren donation land claim, and his knowledge of the particular tracts thereof must have been obtained from information furnished by persons who understood the condition of the premises. From
5. The line established by the court, however, is not predicated on any evidence appearing in the transcript; but as the boundary thus determined is so nearly identical with Maloney’s attempted compromise line, of which the parties had notice, and as the defendants have not taken a cross-appeal, the decree should be affirmed, and it is so ordered. ' Affirmed.