72 P. 637 | Or. | 1903
delivered the opinion of the court.
This is a suit to ascertain and establish a controverted boundary between adjacent lands. It is alleged in the complaint that plaintiff is the owner of the southeast quarter of section 33, in township 5 north of range 35 east of the Willamette Meridian, and that defendant owns the southwest quarter thereof; that a controversy exists between the parties hereto concerning the line dividing these tracts of land; that for more than twenty years prior to 1898 the line was marked by a fence beginning at the southwest corner of plaintiff’s land,' and running thence to the northwest corner, thereof, but in that year the defendant moved the fence, and rebuilt it, from plaintiff’s southwest corner, in such manner that the north end thereof extends 2.85 chains too far east; and that the boundary should be established on the line occupied by the fence prior to its removal. The answer admits the existence of a dispute concerning the boundary, denies the other material allegations of the complaint, and avers that the dividing line begins at the quarter post on the south side of said section and runs thence north, parallel with the east boundary thereof; until it intersects the line dividing the section into north and south halves. For a further defense it alleges that the fence rebuilt in 1898 was constructed wholly upon defendant’s premises, and is now thereon. A reply having denied the allegations of new matter in the answer, a trial was had, resulting in a decree as prayed for in the complaint, and that plaintiff is the owner and entitled to the immediate possession of the land lying between the
The witness Walker, who about 1879 had a possessory right tc the northeast quarter of section 33, says that he commenced at said mound, and built fences along the west and north boundaries of the land so claimed by him. The witness Kay, having thereafter secured the right of possession of the east half of section 33, desired to build a fence along the west border of his claim that would turn hogs, but because the persons who claimed the west half of the section would not join in making such improvement, he put up a new fence, which was placed six feet east of the one so built by Walker. The defendant secured possession of the southwest quarter of section 33, and, in order to ascertain the east boundary thereof, employed a surveyor, who, being unable to find any relic of the quarter post in the line indicated by the fences built by Derrick and Walker, located it midway between the northwest and the northeast comers of the section, from which he extended a line to the quarter post on the south. The defendant, in August, 1898, tore down the south half of the fence erected by Kay, and rebuilt it upon the line located by the surveyor so employed by him. In March, 1899, several persons digging