23 Or. 262 | Or. | 1892
This is a suit by Amos N. King against J. R. Brigham and C. H. Carey to quiet title to the strip of land lying immediately east of the eastern boundary of the plaintiff’s donation land claim as established by this court in the suit of A. N. King v. Brigham et al. 19 Or. 560 (25 Pac. Rep. 150), and within the contiguous donation land claim of one Lownsdale, in the city of Portland. The complaint alleges that the plaintiff has had adverse possession of the premises for ten years last past, and that the defendants wrongfully claim an interest in the same. . The answer denies that the' plaintiff is, or has been, in possession of the premises in controversy, and denies that the defendants wrongfully claim an interest or estate therein adverse to the plaintiff, but admits that they claim to own the same in fee simple adversely to the plaintiff and all others. And for a further and separate answer, the defendants plead in effect that the plaintiff ought to be estopped from alleging or claiming that he is the owner, or in possession, of the real property described in the complaint, or from maintaining this suit, because of a suit brought by the plaintiff and the North Pacific Industrial Association, as plaintiffs, against these and other defendants, to settle the boundary line between the lands owned by the plaintiff and the defendants, and which is the same line as that described as the westerly boundary of the tract mentioned in the complaint, etc.; and that in said suit it was determined and decreed that the boundary line between the plaintiff’s and defendants’ land was a certain described line (a por
Upon these issues the case was referred to a referee, who, in substance, found that the plaintiff has been in the continuous possession, and claimed to be the owner, of the property in dispute for a period of more than ten years, and that the defendants, nor either of them, have been in the open and continuous possession of the same for a period of ten years; but that the facts set up in this suit were fully heard and determined in the said suit wherein the plaintiff and the North Pacific Industrial Association were plaintiffs and J. R. Brigham and others were defendants, and that the supreme court by its decision and decree (19 Or. 560) established the line between the plaintiff’s and said defendants’ lands in that suit; and that the plaintiff King did not own the land in controversy; and as a conclusion of law, that the plaintiff is now estopped from claiming the land described in his complaint, and that the suit should be dismissed. Subsequently, upon proper proceedings had and taken, a decree was entered affirming the report of the referee and dismissing plaintiff’s suit. From this decree the plaintiff has appealed.
The contention for the plaintiff is, that the decree rendered in the former suit between these parties is no bar to the present suit to quiet, title to the land in con
1. The issuing of commissions to ascertain lost boundaries, or boundaries which, from accident or other cause, have become confused, uncertain, or obscure, is an ahcient branch of equity jurisdiction, the origin of which cannot be ascertained with exactness, and still remains uncertain and conjectural; but the books .how there are cases in which the court has granted commissions, or directed issues on no other apparent ground than that the boundaries between contiguous lands were in controversy from the fact of their being confused or incapable of being distinguished with any certainty. It appears, however, that it is a jurisdiction which has been sparingly exercised and watched with jealousy, and of late
In Wake v. Congers, 2 Cox, 360, however, Lord Northington held that it was in the case of manors that the exercise of the jurisdiction, ‘which had been assumed of late,’ was peculiarly objectionable. He refused either to grant a commission, or to direct an issue. So did Lord Thurlow in the case of two parishes: St. Luke's v. St. Leonard's, 2 Anstr, 386, 395. In the same case of Wake v. Congers, Lord Northington says that in his apprehension “this court has simply no jurisdiction to settle the boundaries even of land, unless some equity is super-induced by the act of the parties.” I concur in that opinion, and think that the circumstance of a confusion of boundaries furnishes, per se, no ground for the interposition of the court. And the general rule now adopted is, not to entertain jurisdiction in cases of confusion of boundaries, upon the ground that the boundaries are in controversy, but to require that there should be some equity superinduced by the act of the parties: Story, Eq. Jur. § 615, and note of authorities. Now the equity for the ascertainment of boundary arises, according to the chancery jurisdiction, when the boundaries between the owners of adjoining estates have been confused by the misconduct of the defendant, or those under whom he claims. The mere confusion will not create it; for the
2. As cases of disputed boundary lines between the lands cf adjacent owners are matters which concern legal estates, and are ordinarily settled in courts of law, there seems to be an impression in the profession that the Oregon statute of 1887 (Code, §§ 506-510), in conferring jurisdiction upon a court of equity to try all cases where a dispute exists as to the boundary lines of adjoining lands, and requiring each of the parties to designate such boundary line as he shall claim it to be, permits the recovery of the strip of land embraced between the lines as designated by the parties, and that necessarily the title acquired by adverse possession may be set up by the de
In the case of Love v. Morrill, 19 Or. 515 (24 Pac. Rep. 916), where this statute was first considered, neither the pleadings nor the facts disclosed any dispute as to the boundary line, except that the defendant claimed title by adverse possession to that portion of the land covered by her building, which projected over their boundary line, in consequence of which she claimed that the line should be so located as to include it. As the case was brought under the statute, and presented simply the pure legal question of the title to that portion of the land covered by the building of the defendant, it became important and necessary to ascertain the nature and extent of the jurisdiction conferred; for if such a suit could be maintained under it, nothing was plainer than that this jurisdiction might be exerted to usurp the place of an action at law to recover real property, and thereby deprive the defendant of his constitutional right to trial by jury. With these considerations in view, the court proceeded to construe the statute, and held that courts of equity were invested with jurisdiction to try cases where a dispute exists between the owners of adjoining lands concerning the boundary line or lines thereof, without any equitable grounds, or equity superinduced by the act of the parties to sustain it, but that such jurisdiction could not be extended to determine title to real property, or usurp the place of an action at law to recover real property; that the object of the jurisdiction conferred by the statute was to ascertain the true boundary between the lands of adjacent owners which had become confused, or unknown, or lost, the subject-matter of such jurisdiction or suit being the dispute concerning the boundary line, and not the title; and as a consequence, that within the purview of the statute, the Love-Morrill suit could not be maintained.
It is true that disputes in respect to the boundaries of adjacent proprietors of land is ordinarily of legal cogniz
Our statute (§§ 506-510) is predicated upon the idea that whenever a controversy exists, arising from a confusion of boundaries between the owners of adjoining lands, it is necessary, in order to put an end to such controversy, that equity should intervene and ascertain the true boundary between such estates. Under this statute the jurisdiction of equity is extended to a class of cases of disputed boundary where no equitable circumstance attaches itself to the controversy. Under it a court of equity may intervene in any case in which title is not involved, where the boundary is confused or obscure, and a controversy exists between the owners of the adjacent lands, to ascertain such boundary and fix its location. It is of no consequence, to sustain such jurisdiction, that the confusion of the boundary about which the controversy exists was not occasioned by the fraud or misconduct of the defendant, but was the result of accident or lapse of time, or was produced by natural causes, or the like — it is enough that a controversy exists concerning the boundary, which is uncertain or obscure and needs to be ascertained and located. In such case, either party
As Bean, J., said in Love v. Morrill, 19 Or. 545, “The subject matter of the suit is the dispute concerning the lines, and not the title, and the court is only authorized to determine these lines, leaving all questions of legal title to be determined in the proper forum, unless there exists some equity independent of the controversy about the lines to give a court of equity jurisdiction to try the question of title.” The object of the suit, therefore, is to ascertain the true boundary line between the contiguous estates, and not to try the question of title on either side of the boundary. It follows, then, that the statute does not undertake to transfer to the jurisdiction of equity cases of disputed boundary which involve questions of title, and belong to the common law jurisdiction. A statute of that kind would be clearly subject to the objection of violating the constitutional right of the defendant to a trial by jury; but the statute does give jurisdiction to try cases of disputed boundary between the owners of adjoining lands arising from other causes than an equity superinduced by the act of the parties. In other words, it has extended the jurisdiction of equity to a class of cases not of late years (although they may have been originally) embraced within that jurisdiction, because there was an adequate remedy at law.
3. The important question then arises — in view of the provision of our constitution, which provides that “In all civil cases, the right of trial by jury shall remain inviolate” (section 17. article I.) — whether the legislature can confer jurisdiction upon a court of equity to try and determine controversies in respect to disputed boundary between independent proprietors of. adjoining estates, where no equity has been superinduced by the act of the
By an act of the legislature of the state of Pennsylvania, there is conferred upon the supreme court and the court of common pleas, all and singular, “the jurisdiction and powers of a court of chancery in all cases of disputed boundary between adjoining lands,” etc.; and by a supplement to the act, it is declared “that the jurisdiction and powers given by the act, etc., shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining lands, etc., where such boundaries are, or shall have become, confused or rendered uncertain, either by iapse of time, by natural causes, or by the act, neglect, or default of any present or former occupant thereof.” It will be noticed that the act confers jurisdiction to try other cases of disputed boundary than those where the confusion was produced by the misconduct of the defendant. The constitution of that state provides that “trial by jury shall be as heretofore, and the right thereof remain inviolate. ”
In Norris’ Appeal, 64 Penn. St. 279, no special equity affecting the defendant, or any other ground of equitable interposition, was alleged or pretended; and it was conceded that within the rule of chancery jurisdiction, a mere dispute as to the dividing line of two adjoining estates, not held under the same title, where there is no special equity affecting the defendant, would not give jurisdiction; and the court held that the acts of the legislature must be confined to cases which are properly the subject of equitable jurisdiction; and, consequently, that the plaintiff must be remanded to his legal remedies, as the case did not come within the jurisdiction of chancery to fix the boundaries of legal estates unless some equity is superinduced by the act of the parties. Shars wood, J., examined the constitutional question at some length, and presented some strong arguments adverse to its constitutionality ; but in consideration of the fact that such a construction could be given to the acts as would not con
Other states besides our own have passed statutes providing for special tribunals, or conferring jurisdiction upon courts of equity to ascertain or fix the boundary line between the owners of adjoining lands or the boundary line between adjoining towns: Tyler, Bound. 244, 256. The Connecticut statute is based on a proceeding in equity brought in the superior court to ascertain and fix lost or uncertain boundaries, and extends such jurisdiction to many cases which it would not embrace without the statute; and in construing such statutes, it was held that the jurisdiction conferred upon the court in respect to ascertaining such boundaries, was not dependent on a want of an adequate remedy at law: Conn. Gen. Stat. 543, § 33; Perry v. Pratt, 31 Conn. 434. This is contrary to the rule that unless there is some special equity to sustain such jurisdiction, the remedy at law must prevail, and renders the statute equally vulnerable to the constitutional objection of depriving the defendant of the right of trial by jury, unless the opinion expressed by the court, that “the issuing of commissions to ascertain
In West Hartford, etc., v. The First Baptist Church, etc., 35 Conn. 120, Hindman, C. J., after repeating the language of the statute, and referring to the case of Perry v. Pratt, 31 Conn., said: “It was not the intention of this statute to withdraw cases relating to the title to land from the ordinary tribunals, assisted as they are in respect to the finding of facts by a jury. The legislature intended to guard against this abuse of the statute in the first clause of it, which limits the action of the court as a court of equity under it to the cases where the boundaries between adjoining proprietors have been lost, etc. It presupposes that such monuments once existed and have ceased to exist, or that they have become so obscure as to require the erection of new ones. It was not intended that every uncertain line of division between adjoining proprietors should be definitely fixed by a committee of the superior court. Suppose a proprietor had encroached upon an adjoining proprietor for so long a time and under such circumstances that he could not be divested of his possessions: no one would claim that he could call upon the court to fix a boundary for him up to the line he had occupied; and there is little reason,for claiming that his adjoining proprietor could call upon the court to determine by a committee where the original line really was so long as the original monuments that defined that line remained. The object is not to try the question of title on either side of the line, but to mark the place of the old line where the ancient monuments are gone.” Some
"Within the purview of the principles announced, without further reference, the jurisdiction conferred by our statute may be well maintained as a valid exercise of power for ascertaining the true boundary lines between adjacent estates which have become confused or uncertain, and do not involve the determination of legal title, although it would have been as well, or perhaps more in harmony with the chancery practice as it now exists, if the statute would have borne such a construction, to have confined its operation to cases which are properly the subject of equitable jurisdiction. It may be true in those cases where jurisdiction is acquired by some equity arising between the parties, or superinduced by the wrongful conduct of the defendant in obliterating the lines or destroying the monuments upon which the evidence of such boundary depends, that a suit in equity, although brought for ascertaining and fixing the boundary between adjacent estates, may involve the determination of conflicting titles or possessory rights; yet when such is the case a court of equity is competent to administer full and complete relief, and if necessary to grant the same kind of relief as that given at law. In such case the decree might operate as an estoppel and a bar in respect to the title involved and litigated. But there is a clear distinction between a dispute about the title to lands and a dispute about boundary lines. It is the confounding of these two questions, or regarding them as identical, that has sometimes mislead parties in seeking their remedies.
4. In the previous suit between these parties, the question determined was, not title, but the boundary line between the King and Lownsdale claims. In that case, the confusion of the boundary was occasioned by the displacement, from natural causes, of the tree or monument at the northeast corner of the King claim. It appears
To give a decree in a former suit the effect of an estoppel in the present suit, the title to the strip in question must have been directly in issue and determined. The rule is elementary that the estoppel only extends to the question directly involved in the issue, and not to any incidental or collateral matter which may have arisen. To ascertain whether a former judgment or decree is a
5. In the former case, the evidence of the plaintiff was directed to showing that the location of the line was as he alleged it, and in the present case to showing adverse possession by occupancy to the same line; and necessarily his evidence covers a great deal of the same ground in this as in that. In the former suit, to the suggestion that the plaintiff had acquired title by adverse possession, the court said that “the evidence shows that Mr. King held this possession, if at all, under mistake or ignorance as to his true line, and with no intention to claim beyond the true line when discovered,” indicating that, in the opinion of the court, his evidence was not susceptible of that effect, and that it was consistent with the theory of his suit as not intending to affect pre-existing titles, but to ascertain and locate a boundary line which was unknown or lost, and as explaining and showing that if he occupied the land up to the fence or the line, as he alleged it, he did it because he believed it to be the true line, but without any intention to claim up to it if it should turn out by the suit to be beyond the line. It did so turn out, as the court established another line. By an affirmative answer to a leading question, the plaintiff is now made ‘ ‘ to claim to own the land in controversy, whether it was covered by the patent or not. ” But claims of this sort, unless consistent with the acts of the parties and other circumstances of the case, are not very satisfactory proof to establish title by adverse possession to the lands covered by title of others.