102 P. 175 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
Plaintiff’s property is described in the complaint from the southeast corner of block 66 of Nasburg’s addition to the city of Marshfield, and plaintiff offered in evidence a copy of the plat of that addition, evidently for the purpose of identifying the property described in the complaint. This plat contains no explanation of its contents, statement of survey, or reference to any government corner by which it can be located. There is a line thereon marked as the west line of section 26, townsship 25 S., range 13 W., but only a fraction of it. We might assume that a certain small red circle indicates the intersection of that line with the meander line of the bay, and we might assume that the south line of block 66 extended east is the south line of the Fox tract; but it would only be an assumption. There is nothing on the plat which would justify it, and the complaint in no way connects the property described with the Fox tract; but this defect in description is aided by the answer in which the defendant’s property is described, evidently by reference to the same plat, and alleges that the lands described in the complaint are a portion of the lands described in the answer, and both descriptions are aided by the Whereat plat, and, in view of the fact that this is the second trial upon these pleadings, we will assume that the point of beginning of the description of the property
The answer concedes that the premises sought to be recovered are tide lands; defendant claiming title thereto by conveyance from the State, thus admitting that the premises in controversy are above low tide. The evidence therefore upon that question was immaterial, and the motion for nonsuit was properly denied.
There is another view that convinces us that Whereat’s starting point may be erroneous. By his map he locates the northwest corner of the Webster tract north 41 degrees W. on the government meander line' 261.36 feet (3.96 chains) from the second angle of the government
We have made these figurse from the map and data found in the record, but they cannot control as against an actual survey on the ground. They are the data from which the survey must be made. To establish that there is. any vacant land between the Webster and Fox tracts, it must be demonstrated that the actual measurement of the government meander line is more than 80.80 chains. This element has not been taken into account by Whereat, at least he has not given us the facts in relation thereto. Plaintiff is not entitled to recover until he has established his title, and the evidence does not justify a verdict in his favor for the whole property sued for.
Judgment will be reversed and the cause remanded.
Reversed.
Rehearing
Decided July 13, 1909.
On Petition for Rehearing.
[102 Pac. 795.]
delivered the opinion of the court.
But two points are urged in this motion: (1) That we should accept the location of the beginning point of the Webster survey upon the testimony of a witness who was present when the Webster claim was surveyed as to his recollection of its location; (2) that the court should determine the angle in the government meander line to which the Webster survey is tied, as being 7.50 chains north 17 degrees east from the northeast corner of lot 2 in section 26.
These figures add additional strength to the features mentioned in the opinion, indicating that the northeast corner of lot 2 has not been properly located in the Whereat survey, and should not be taken as the starting point from which to locate the angle referred to. The writer does not make these figures to control any subsequent survey. They are based on the figures in the record, while a correct survey may produce different results. But with the points mentioned in the opinion they indicate that Wliereat’s location of that corner should not be accepted as final. We adhere to our former opinion.
Motion is denied. Reversed : Rehearing Denied.