145 P. 1063 | Or. | 1915
delivered the opinion of the court.
This is a companion case to Gillihan v. Cieloha, ante, p. 462 (145 Pac. 1061), just decided. The cases were tried together, and the testimony in the former case was stipulated into this case and is identical. We do not have the advantage of an actual survey upon the ground such as was made by Bonser in the former ease; but, taking the whole testimony into consideration, we believe a division responsive to the testimony will be reached by prolonging the line fixed by McQuinn’s map as the dividing line between the holdings of the Gillihans and defendant in a direction north 3 degrees east, until it reaches low water on the Columbia River.
An objection in this case and in the case of Gillihan v. Cieloha, ante, p. 462 (145 Pac. 1061), is made to the allowance of the fee of $150 to McQuinn as part of the costs of the case; but a survey was absolutely necessary in order to make any division intelligible, and his survey makes any extended survey unnecessary. It is only equitable that he should be paid for his work. While the court had no authority to make him a referee to decide the controversy, we concede that it did have authority to call in mathematical assistance to designate on the ground the points indicated so imperfectly in the evidence, and the item is allowed. Neither party shall recover costs in this court.
The decree as above modified is affirmed.
Modified.
