107 P. 480 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
“The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there is no other sufficient circumstance to determine it. * * (2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurements either of lines, angles, or surfaces, the boundaries or monuments are paramount.”
The decree of the circuit court is affirmed.
Affirmed.
Rehearing
On Petition for Rehearing.
[108 Pac. 125.]
delivered the opinion of the court.
By the motion it is suggested that the court is in error in stating that it may be taken as conceded that the descriptions in the deeds include the ground claimed by plaintiff. That the 160 rods south from the north line of the claim, which the deeds designate as the south line of the Watson and Beal tracts, extends to the south line of the land claimed by plaintiff, there is certainly not one word of controversy. Not a witness was called to show where the courses and distances of the descriptions in the deeds would locate the south line of these tracts, and as the donation claim is just a mile square, it must be on the middle line of the claim, and there would be no room for controversy here if such measurements do not extend south of the north line of the tract plaintiff is contending for. Defendants only claim the ground described in their deeds.
Again, it is suggested that Miss Talbot fixes the time of the Henry survey as the time of the sale to Watson. Miss Talbot testified on May 22, 1907, that, “I was 54 years old day before yesterday.” The Watson deed was made November 28, 1856, so that she was just 31/2 years old ,at that time. Her recollection now of the time and circumstances of a survey made when she was 3% years old can hardly be depended on to determine whether it was made before or after the execution of the deed to Watson, for the purpose of contradicting or controlling the description contained in the deed. However, she testified that the survey was made in 1858, but if she meant 1856 yet she says the survey followed the making of the deed to Watson. Therefore the description in the deed has no reference to that survey or its stakes, and such stakes did not become monuments in any manner affect
As to the description in the deed by Watson to Beal, the point of beginning is: “A stake or corner” identified by courses and distances, but plaintiff is not relying upon this stake or corner, nor is it shown to be a monument controlling the measurements. The description places the south line 160 rods south of the north line of the claim,
The motion is denied.
Affirmed : Rehearing Denied.