17 Or. 532 | Or. | 1889
This is an action to recover 120 acres of land, situate in Multnomah County.
The answer denied the allegations of the complaint, — ■ which was in the usual form, — and then alleged that the defendants owned the demanded premises as tenants in common. The answer further alleged an adverse possession by the defendants for more than ten years next
The first and fifth assignments of error need not be further noticed than to say they are too general and indefinite to present any question for review on this appeal. The others will be noticed in their order.
1. The plaintiff’s bill of exceptions does not present, in a clear or satisfactory manner, the questions which he seeks to litigate in this court. The second assignment of error is the one mainly relied upon on this appeal. The court gave numerous instructions on the subject of adverse possession; but this assignment does not point out, or in any manner make certain, the particular instruction which is claimed is erroneous. Under such a state of the record, it is not perceived how we can apply the assignment of error to any particular instruction on that subject. The proper rule of practice is, that the appellant must put his finger on the error complained of. He cannot be permitted to make a general assignment, and then, upon the argument, select some particular portion
The entire charge of the court on the subject of the statute of limitations, adverse possession, disseisin, color of title, and other kindred subjects, is as follows:—
“The statute has provided that in this state no action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appearsthat the plaintiff, his ancestor,predecessor,or grantor, was seised or possessed of the premises in question within ten years before the commencement of the action. Therefore, gentlemen of the jury, the issue is this: Upon the record title introduced here, the plaintiff has the title to this property, unless the defendants shall make out title and ownership under the adverse possession for ten years. So the question for you to determine is, whether or not the defendants have made out their claim of ownership of this property, under a claim of adverse possession for ten years. The legal title draws after it the possession, and the right of entry is not varied unless there has been a decennory [disseisin?], followed by actual, notorious, continuous, adverse possession for ten years next prior to the commencement of the action.
“To.be an adverse possession, it must be an occupancy
“It is not essential that a party who takes possession of land, and holds adversely to the owner, should enter .under a deed, or other written title, to cause the limitation of ten years to run in his favor. It is sufficient if the party took possession under a claim of ownership, and held adverse possession, as explained in the instructions, for the period of ten years.
“The court instructs the jury that in order to maintain a defense in this action, it is not necessary that the defendants had a deed or written evidence of their title; but if, under a claim of ownership, the defendants took
“The court further instructs the jury that when a party-enters into the possession of land which is vacant and unoccupied at the time, claiming it ás his own, such possession is hostile in its inception to the owner, and if he continúes in possession adversely for a period of ten years', and is adversely, notoriously, and exclusively in possession during that period of time, such fácts, if proved by the defendants, are a legal defense in an action of ejectment'. If the jury find from the evidencé that the defendants entered upon the land in question, claiming to be the owners, and continuing to be in possession of the same for ten years under claim of ownership; then the plaintiff is not entitled to recover.
“The court instructs the jury that it is not necessary that the land should be inclosed with a fence, or that á house should be erected upon it, or that it should be reduced to cultivation, to constitute possession; and such acts of dominion as are well known to persons residing in the neighborhood, as to who has the exclusive control and management of the land, will be sufficient to constitute possession; that the land is appropriated to such uses constitutes ownership [possession?] of it, and the manner in which it is established by the person claiming title is such as to notify the public that such person has asserted dominion. This will constitute possession.
“The jury are instructed that actual possession of land may arise in any of the different ways of occupying it which are not atrocious [tortious?] in their character, and which intention to appropriate to certain uses áñd purposes indicate an e'xclúsive use and control óf the property by the person claiming possession.
“I charge you that where the party has title or color of title to the land, and uses the land for the purpose of obtaining wood for fuel, or for liis own farm under a claim of ownership, this would constitute possession. If a person holding a deed to land enters and clears off and breaks up or occupies a part, that need not be followed by other improvements to the land. This will be a possession of the whole.
“If you find from the evidence that the land in controversy was rough, Uncultivated timber land, unsusceptible of cultivation or of being utilized for purposes of husbandry without large expense; that the defendants, or either of them acting for both* took possession of such land, or any part of it, openly or publicly under a claim of ownership, or went upon said lám'd, or any part, openly and publicly, Claiming then and there to take possession; that the defendants or either of them, after such formal act, maintained such attitude, even though not remaining upon the land in person openly, continuously, and adversely to all persons, and exclusively, without interruption from others for a period of ten years, — that would establish title in the defendants, and your verdict must be for them'.
“The proof of title in the defendants, ’moreover, w’ould be strengthened, if you find that the defendants, or either of them, exercised acts of ownership over said property by cutting timber, whether by themselves or under their authority or that of either of them, by paying taxes on the land, or by any similar acts. Besides, you may consider as further 'evidence of defendants’ title the general
“To be adverse possession, it must be under a claim of ownership, though it need not be under color of title. It is sufficient if a party goes upon the land, and declares to the world by his acts and conduct that he is the owner of it, and maintains that attitude the requisite period. Where he occupies under color of title, I charge you that the deed introduced here by the defendants from Hendrie would constitute such as to the land included in it; if he actually occupied a part of it, such occupancy will be extended by construction to the boundaries specified in the instrument under which they claim.”
At the end of each of these paragraphs of the charge are written the words, “excepted to; exception allowed”; but it nowhere appears by whom such exceptions were taken. If these paragraphs had' been numbered, or in some manner identified, so that the assignment of error in the notice of appeal pointed out and made certain each particular error relied upon, I have no doubt the assignments would have been sufficient; or if the change contained but a single proposition, and the assignment of error clearly identified and pointed it out, it would have been good. But where the charge contains' numerous propositions of law on the same subject, some of which may be good law and others questionable, an assignment of error covering all in the charge on a particular subject, without further identifying the part relied upon, and particularly when there are numerous exceptions on the same subject, some of which were argued on the appeal and others were not, such assignment does not impose the
Some portions of the charge may be open to criticism, and we must not be understood as affirming its correctness in every particular. Nor do we mean to intimate that, as applied to the facts of the particular case, it is an erroneous statement of the law; but simply that in the form in which the exceptions were taken, and error assigned thereon, we cannot undertake to review particular portions of the charge. We announce this conclusion with the less reluctance, for the reason that we are, in the main, satisfied that the court below stated the law correctly to the jury on the point under consideration.
3. Counsel for appellant suggest in their brief that such possession as is shown by this evidence cannot amount to adverse possession, such as is necessary to enable the defendants to maintain this defense. All of the evidence given upon the trial is not before this court, and we cannot therefore determine as a matter of fact, were it otherwise competent for us to do so, whether such possession was sufficient or not. But in addition to this, where there is any evidence or disputed point, though it be but slight and inconclusive, it is for the jury to determine the fact, and it is generally beyond our province to interfere. The defendant might have embodied his views, in instructions defining more particularly and clearly the
4. As no particular error in the. charge of the court, on the subject of the running of the statute of limitation during the plaintiff's minority, was-pointed out upou the argument, the court. repeated to the jury the substance of the statute on that subject.
Neither party asked more, and the cause went to the jury under.that charge. It left to the jury all the questions of fact as. to the plaintiff's age when his cause of action accrued, .and when he obtained his majority. These and other facts of a like-nature, all growing out of the plaintiff’s claim of the disability of infancy, properly went to the jury, and the verdict being against the plaintiff, while it stands the fact is not open to inquiry here or elsewhere.
The appellant’s .contention on the point is one, not of law, but of fact. It is-superfluous to add that we do not ■re-examine questions of fact in this class of actions. "There are two or-three clerical errors in the charge of the court, but they are apparent, and;it was not claimed "upon the argument that they imany-manner affected the result; besides, the words which should have been used, and probably were, are readily supplied from the context. ' But nothing was claimed on account of these clerical mis■-takes, and it is unnecessary to notice them.