179 P. 669 | Or. | 1919
The question in dispute involves the location of the subdivision line between the southeast quarter of the northeast quarter, and the southwest quarter of the northeast quarter of section twenty-two (22), township three (3) south, range 40 east, W. M. in so far as it borders on the west of the twenty acre tract described.
„ Defendant pleaded, to the effect, that this line was surveyed, located and established more than thirty years prior to the time defendants sold and conveyed to the plaintiff the lands mentioned and described in plaintiff’s complaint herein; and that a line fence of rails was built and constructed on the division line so surveyed, located and established between the two tracts of land and was at the time defendants sold and conveyed the lands to the plaintiff, and had been continuously for more than thirty years immediately prior thereto, maintained and standing upon the division line between the two tracts of land and that the line fence did then, ever since has, and does still stand upon the division line and marks the west boundary of the lands conveyed by defendants to plaintiff. And that defendants sold the
Plaintiff moved to strike out that portion of the answer referred to and upon the motion being denied demurred to the same and assigns the overruling of the motion and demurrer as errors. Plaintiff also assigns error in the finding of the court to the purport thát the old rail fence marked the true west line of plaintiff’s tract of land, for the reason that such finding is not supported by-the evidence. The same question is involved in each assignment of error.
Appeal prom: Judgment por Costs.
D. Lloyd, 3 days, 628 miles..................$131.60
C. M. Stackland, 3 days, 628 miles............ 131.60
C. L. Keller, 3 days, 632 miles.......>........ 132.40
Karl Stackland, 3 days, 628 miles............ 68.80
The court found that the three first-named witnesses attended by order of the court from Union County, Oregon, and more than 100 miles from the place of trial, and allowed double mileage, or twenty cents per mile for each; and that Karl J. Stackland
In the absence of any statement in the bill of exceptions in regard to the amount of disbursements complained of, we take the finding of facts of the Circuit Court as correct. An appeal is permitted from the judgment on the allowance and taxation of costs and disbursements on questions of law only. Such a finding is final and conclusive as to all questions of fact. Not so, however, as to questions of law: Section 570, L. O. L.; School District No. 30 v. Alameda Constr. Co., 87 Or. 132, 142 (169 Pac. 507 788). The findings in regard to witness fees do not support the judgment. The fees of a witness in the Circuit Court for Multnomah County allowed by law are for each day’s attendance, $2.00 (Section 3148, L. O. L., as amended by Laws of Oregon 1915, p. 86), and mileage at the rate of five cents per mile: Section 3145, L. O. L. A witness required to attend a trial in a civil action in a court of record in a county other than the one in which he resided, or is served with a subpoena and order, and more than 100 miles from his place of residence is entitled to double mileage and per diem: Section 818, L. O. L., as amended by Laws of 1915, p. 95; Burrows v. Balfour, 39 Or. 488 (65 Pac. 1062); City of Seaside v. Oregon S. & C. Co., 87 Or. 624 (171 Pac. 396). Taxed by this law, defendants should be allowed costs and disbursements as follows:
Clerk’s fee..................................$ 5.50
Attorney’s fee (statutory)................... 10.00
Court reporter ............................. 10.00
D. Lloyd, 3 days, @ $4.00-628 miles @.10____ 74.80
C. M. Stackland, 3 days, @ $4.00-628 miles @
.10..................................... 74.80
C. L. Keller, 3 days, @ $4.00-632 miles @ .10.. 75.20
Karl Stackland, 3 days, @ $2.00-628 miles @ .05 37.40
Total $287.70
The judgment for costs will be modified in accordance herewith.
Affirmed in Part. Modified in Part. Rehearing Denied.