Rasmussen v. Winters

162 P. 849 | Or. | 1917

Mr. Justice Burnett

delivered the opinion of the court.

The position of the plaintiffs in this court is that, although the suit was tried as one to quiet title, yet the complaint did not state enough to give the Circuit Court jurisdiction thus to determine the issue, and that now they are entitled to urge on appeal that it is really a proceeding to determine a disputed boundary; while the defendants contend that the complaint is sufficient as for a suit to quiet title, and that, having been tried as such by the plaintiffs, they cannot now change front or mend their hold, but must be bound by the same theory in this court.

, 1. As “said in Talbot v. Cook, 57 Or. 535 (112 Pac. 709), quoting from 1 Am. & Eng. Enc. Law (2 ed.), 795:

“There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be hostile and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and, fifth, it must be continuous. If any of these constituents is wanting, the possession will not affect a bar of the Legal title.”

See, also, Jasperson v. Scharinkow, 150 Fed. 571 (80 C. C. A. 373, 15 L. R. A. (N. S.) 1178, and notes); McNear v. Guistin, 50 Or. 377 (92 Pac. 1075).

We apply this canon to the first-quoted excerpt from the amended complaint. We find the plaintiffs state that they have had possession of all the lands indicated by the Bennett survey under “color of right” and by “hostile adverse possession.” This satisfies the first element of the rule. They also say they have been in “actual occupancy of all of the lands.” This meets the second requirement. They assert that they have held the land “by open, plain and notorious adverse possession” covering the third ingredient, and “against the entire world” which amounts to the exclusive possession under the fourth head, and that they have been in “continuous possession” complying with the last condition of the test. The prayer already noted indicates that it is a suit to quiet title; and, lastly, at the close of the direct examination of Harold Basmussen, the first witness on behalf of the plaintiffs, their counsel said to the court:

“I want to freely admit these questions of mine were intended to be merely incidental. I certainly do not want to prove a boundary line. This is not a boundary line case in any way or purpose.”

The allegations of the bill plainly show that, in part at least, the plaintiffs are claiming title by prescription not only to the realty actually included in the government survey of the legal subdivision they mention, but also to outside lands which were in their occupancy. The only grievance they state against the defendants is that the latter claim some interest in the holdings of the plaintiffs which they sought to have declared.

2. We hold, therefore, that not only was there sufficient in the complaint to constitute an assertion of title by prescription, but also that the case was tried on that theory. This being true, the plaintiffs cannot now make a different attack and try the case in this court on some other basis: Wyatt v. Henderson, 31 Or. 48 (48 Pac. 790); Anderson v. Portland Flouring Mills Co., 37 Or. 483 (60 Pac. 839, 82 Am. St. Rep. 771, 50 L. R. A. 235); Mattis v. Hosmer, 37 Or. 523 (62 Pac. 17, 632); Larch Mountain Investment Co. v. Garbade, 41 Or. 123 (68 Pac. 6); State v. Davis, 42 Or. 34 (71 Pac. 68, 72 Pac. 317); Durning v. Walz, 42 Or. 109 (71 Pac. 662); Ward v. Queen City Fire Ins. Co., 69 Or. 347 (138 Pac. 1067).

3. Moreover, if we should consider this as a case to establish a disputed boundary, the testimony of the plaintiffs is not sufficient to establish the line as they claim it should be, for, as the surveyor noted on the map attached to the complaint and likewise offered in evidence:

“The lines shown on this plat do not purport to be established in accordance with the legal subdivisions of quarter-sections.”

He stated as a witness, in substance, that in the vicinity of the northwest comer of section 9 there were two stakes some distance apart, one north of the other, and that at the instance of the plaintiff, Harold Rasmussen, he began the survey at the south stake, when there was quite as much evidence of the other being at the true corner. As their contention is based expressly on this survey it is not sufficient to prove the correctness of the line contended for by the plaintiffs.

The decree of the Circuit Court is affirmed.

Affirmed.