Quinn v. Willamette Pulp & Paper Co.

126 P. 1 | Or. | 1912

Mr. Justice Bean

delivered the opinion of the court.

It is shown by the evidence that Peter Pacquet, former owner of the land, claimed the land to the edge of the water; claimed that the corner of the Weston tract was right at the river. Each of the different owners of the adjacent land claimed and believed that they owned to the water’s edge. In 1906 defendant refused to pay rent for the use of the river front. Pacquet then rented the same to the Crown. Paper Company. It would take an expert civil engineer to determine whether or not the limits of the land, as conveyed to plaintiff by the description in the various conveyances, extend to the river. It is unnecessary to speculate as to the real reason for making the description or survey of the land as made in the early ’60’s.

1. The defendant is shown to have obtained its quitclaim deed after having been a tenant of the plaintiff and his predecessors in interest for more than 10 years prior to the commencement of this suit. The possession of the company during all that time was the possession of the lessors, under whom the company held, and inured to the lessors’ benefit for the purpose of perfecting title. 1 Cyc. 1004; Anderson v. McCormick, 18 Or. 301, 303 (22 Pac. 1062) ; Rowland v. Williams, 23 Or. 515, 523 (32 Pac. 402) ; Stephenson v. Van Blokland, 60 Or. 247 (118 Pac. 1026).

At the time of the company’s taking the deed from the Hedges’ heirs, it had full knowledge of plaintiff’s claim thát the tract constituted a part of what was known as the “Pacquet Place.” The defendant should not now be permitted to contradict such possession and claim of ownership on the part of the plaintiff. Pacquet lived in a house across the railroad from the river bank for a long time. Henry Hedges, son of A. F. Hedges, deceased, testified that his father, after selling the tract to Pacquet, never claimed any right to the portion next to the river.

2. It is fairly deducible from the evidence in the case that plaintiff and his predecessors in interest have been in the actual, visible, notorious, hostile, exclusive, and adverse possession of the land in question continuously since 1864. Counsel for defendant claims that the use of the land was not sufficient to amount to an adverse possession. Such use was possibly not so notorious as it would have been, had the tract been more extensive or susceptible of more important uses. The use thereof as a boat yard and wood yard, as a means of ingress and egress to and from the river for the purposes of landing and loading boats, in connection with the adjacent tract, the plain assertion of the right of Pacquet to receive pay for mooring logs in the river adjacent thereto, and the long use made by defendant,' as tenant of Pacquet and plaintiff, Quinn, for such purpose, and the payment of taxes thereon, we think amounts to an adverse possession, within the meaning of the law. Fencing, building, and cultivation upon the land did not appear to come within the natural uses made thereof. The river served as a line of demarcation upon one side of the strip, and the railroad on the other.

3, 4. When the statute is relied on as a bar to the remedy merely, it must be specially pleaded.- But, where the title to real estate is in question, the operation of the statute is found to have a higher range. It is capable of conferring an absolute title. Hill v. Bailey, 8 Mo. App. 85, 87; 1 Cyc. 1140.

It was said by Mr. Chief Justice Bean, in McNear v. Guistin, 50 Or. 377, 380 (92 Pac. 1075, 1076), that: “There is no particular- manner by which such possession may be indicated or made manifest; and no particular act or series of acts are required to be done on the land. There must, however, be actual use and occupancy, continuous for the necessary length of time, of such an unequivocal character as will indicate to the owner an assertion of an exclusive appropriation and ownership.”

5. What is an adverse and exclusive possession depends very much upon the character of the land and the purposes to which it is adapted and for which it is intended and for which it is used. Bowen v. Guild, 130 Mass. 123. See Dorr v. School Dist. No. 26, 40 Ark. 237, 243.

We also quote from the case of Ewing v. Burnet, 11 Pet. 41, at page 52 (9 L. Ed. 624), as follows: “So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule, adapted to all cases.” See, also, Bell v. Denson, 56 Ala. 444, 449.

6. There had been time for the statute of limitation to have run three times before the defendant ever had anything to do with the land in dispute; and the title of Pacquet, plaintiff’s grantor, was perfected before that time. Since then there has been nothing to divest him or his grantee of such title.. On the other hand, the occupancy of defendant, under his lease, inured to the benefit of plaintiff and his grantor. Again, the statute of limitations has had time to run, and, we.think, did run, as against Absalom F. Hedges or any one claiming under him. In such a case the possession must be suitable to the character of the land. It is a mixed question of law and fact. Every case in which it is involved should be determined by the circumstances of -that particular case. What is adverse possession is one thing in a densely settled country, another thing in a sparsely settled region, and still a different thing in or near a town or village, especially where property is involved, of which peculiar use is made. Deeper v. Baker, 68 Mo. 400, 407; Brumagim v. Bradshaw, 39 Cal. 24.

The plaintiff and his predecessors in interest exercised acts of ownership over this strip of land by using it for the purposes for which it was peculiarly adapted. Their possession of the tract was as visible and notorious as it could well have been, considering the condition and the use made of the land.

It is a satisfactory presumption, unless overcome by evidence, that an uninterrupted adverse possession of real property for 20 years or more has been held pursuant to a written conveyance. Section 799, subd. 38, L. O. L.

The use of the water front by defendant, for more . than 10 years, for the purpose of booming its rafts of logs, by means of a cable extending to a tree on the land, and from that to a “dead man” near the land, was as plain an assertion of dominion over the tract itself as if a wharf with warehouses had been constructed at this place.

Defendant did not experience any difficulty in finding out who claimed the land when it first tethered its rafts along the shore. Pacquet, the owner of adjacent land, soon hove in sight and demanded compensation therefor. We think the evidence clearly supports the findings of the trial court. With marked ability it is contended by counsel for defendant that the use of the land and adjacent river during the time, as shown by the evidence, did not rise to the dignity of adverse possession, so as to ripen into a title. With this conclusion we are unable to agree.

The decree of the lower court will be affirmed.

Affirmed.

Mr. Justice McBride took no part in the consideration of this case.