Nolan v. Cook, 159 P. 810

Nolan v. Cook

159 P. 810 | Or. | 1916

Mr. Justice Burnett

delivered the opinion of the court.

The burden of the plaintiff’s contention here is that the court erred in deciding that Cook, and not Nolan, is the owner of the land involved, and that all which rightly could have been done in any event was to enter a decree dismissing the suit.

1-4. The dispute disclosed is about the location of the division line of the Talbot claim so far as the same is a boundary. The defendant contends that it is coincident with the line running east and west through the quarter-section corner common to sections 8 and 9 in township 1 south, range 1 east, Willamette Meridian, while the plaintiff maintains that it is north of that government line and substantially parallel with it. It seems that plaintiff deraigns title through quitclaim deeds from parties who conveyed to *290his predecessor in interest the land lying between those two lines. In order to qualify himself as a litigant in a suit to settle a disputed boundary, it was necessary for the plaintiff to allege that he was the owner of land bounded by the controverted line. It was proper for the defendant to deny this averment, and thus the title of the plaintiff was made the subject of a subsidiary issue in the case. If he had no title to any land abutting upon the'line in question, he had no cause of suit. Therefore it was competent for the court to pass upon this issue, and to adjudicate it at least for the purposes of this case.

As taught in Miner v. Caples, 23 Or. 303 (31 Pac. 655), equity has no jurisdiction to say which of two lines is meant by a description in a deed, for this would be determining the title to the land between them. It is because a party seeking to recover land or defending against an attempt to recover it is entitled to a jury trial that equity has no jurisdiction to settle titles, the remedy at law being complete in such instances. This is well settled by such cases as Love v. Morrill, 19 Or. 545 (24 Pac. 916), and the numerous others decided following that precedent. No one can snoop among the deed records, find and buy a lawsuit involving realty, and expect a court of equity to award him a title under guise of settling a disputed boundary.

Really, the effect of the plaintiff’s appeal is to call upon us to construe the decree rendered and to declare the extent to which it binds the parties. All we say on this point is that for the purposes of this suit it was regular for the court to decide the issue presented as to the title of the plaintiff, and consequently his right to maintain the suit. There is evidence in the record which justified the decision of the Circuit *291Court. It will be time enough for us to determine its effect upon the title when the question shall arise.

The decree of the Circuit Court is affirmed.

Affirmed.

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