This is а condemnation proceeding brought by the Port of Newport to acquire real property from the defendant Marguerite Hаydon. She was the owner of a small parcel of real property situated on the north shore of Yaquina Bay lying above the mean high water line of that bay. The purpose of the trial was to determine the amount and value of the land. The jury returned a verdict аwarding defendant $3,000 as just compensation for the taking of her land. Subsequently, the trial court allowed plaintiff’s motion for a judgment notwithstanding the verdict, denied defendant’s motion for a new trial, and entered judg *239 ment against plaintiff for $1,500. It is from this judgment notwithstanding the verdict that defendant appeals.
The controlling issue of the trial was the location of the mean high water line of Yaquina Bay, the southern boundary of the рroperty. The trial court ruled that the jury’s consideration of the evidence of the size and boundaries of the property should be limited to that presented by one witness, the Lincoln County surveyor, and that testimony as to the value of the property would be limited to thе piece of land described by that witness from a survey he made. The defendant cites this rating as her principal assignment of error. The defendant also challenges the court’s instruction that the testimony of the surveyor
* * is competent testimony introduced in this case as to the correct location of the property boundaries, and you may consider this testimony in your consideration of value.”
The trial court in effect decided that the testimony of the Lincoln County surveyor was conclusive evidence of the location of the mean high water line which formed the southern boundary of defendant’s property, and of the size of that property. Such a ruling, though contrary to the basic rules that issues of fact and the effect or value of evidence related thereto are within the sole province of the jury (QB.S 17.240, 17.250), is proper under certain circumstances. The test to be applied in determining the propriety of such a decision is set out in
Rickard v. Ellis,
“ ‘ * * Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradiсted, uneontroverted or even undisputed, evidence of such a *240 character is for the jury. * * * [Citing cases]. But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experiеnce, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbeliеf of the story could not reasonably arise in the rational process of an ordinary intelligent mind, then a question has been presеnted for the court to decide and not the jury. * * * [Citing cases].’”” (Emphasis supplied.)230 Or at 51 .
Applying the test to the evidence in this case we must cоnclude that the trial court exceeded its authority.
Bud Burdett, the Lincoln County Surveyor, was called as a witness for both parties. During the cоurse of his testimony he identified two exhibits: one a copy of a map of a 1912 survey which purports to be the official survey of the mean high water line of Yaquina Bay; the other a map of the Port of Newport as surveyed by the witness in 1967 and 1969. The county surveyor testified that thе 1912 survey map indicates on its face that there is approximately 40 feet of land along the eastern boundary of the property in issue above the mean high water line. He subsequently testified that his own survey showed that there was only slightly more than 21 feet of upland at thаt location. Mr. Burdett gave additional testimony, the purpose of which was to explain this apparent discrepancy and to support the results of his survey. It was that portion of Burdett’s testimony concerning his own survey which the court concluded was conclusive еvidence of property boundaries and size.
Mrs. Haydon, the defendant-owner, testified that prior to the beginning of port improvements in the vicinity of her property there was 40 to 50 feet of *241 land above the mean high water line. Her son gave somewhat similar testimony.
During thе course of Mrs. Haydon’s testimony six aerial photographs of her property and the surrounding area were marked and identified as exhibits. Drawn on these photos were red lines allegedly depicting the exact location of the property. Subsequently Waltоn Haydon, the husband of the owner and himself a retired hydrographic surveyor, described the method he used in plotting these lines upon the photos. All six exhibits were admitted into evidence.
Property boundaries and dimensions may be proved by every type of evidence generally admissible to establish any fact.
McDowell v. Carothers,
One other assignment of error deserves mention to prevent a dispute upon retrial. The plaintiff apparently caused stakes to be рlaced along what it alleged to be the boundary lines of the property. Defendant contends that it was error for the court to permit these stakes to remain in place during a jury view of the property.
The defendant is correct in stating that a jury view is not evidence but rather a tool for the jury to use in gaining a better understanding of the issues involved and the evidence actually adduced during the trial. The court so cautioned the jurors prior to their viewing the property. In order for the view to be of any assistance the plоt of land in issue had to be located, at least generally, and pointed out to the jurors. The stakes served that purpose. There was no error in the view.
Reversed and remanded for a new trial.