Wason v. Pilz

48 P. 701 | Or. | 1897

Me. Justice "Wolveeton,

after stating the facts, delivered the opinion of the court.

By the record, the defendant Schmeer can claim no interest whatever in the north half of the premises, as the decree of July 20, 3887, precludes her in favor of John Schmeer, Jr., and Sophia Kirchoff, and this decree is later than the deed from Rudolph Schmeer to her. Subsequent to the date of this decree, John Schmeer, Jr., and Sophia Kirchoff gave a deed to Rudolph to said north half, and a little later he deeded to the defendant Robert Pilz, who now disclaims all interest in the premises; so that, as it concerns the north half, the plaintiff must be held to be the owner in fee simple, unless the defendant Annie C. Schmeer has obtained title by adverse possession. As it pertains to the south half, the decree of the court of December 31, 1881, in the case of Northup againt Rudolph Schmeer and wife, precludes her in so far as she may claim title through Rudolph. The deed brings her into privity with him, and, having been executed subsequent to the decree, leaves the decree as effective against her as it is against him. But in so far as she may claim through devise from John Schmeer, Sr., and through deed from John Schmeer, Jr., and Sophia Kirchoff, she is not thus precluded. This claim is by independent title, coming direct from the source of Rudolph Schmeer’s title, and the question comes to this: Which of these is the better title, assuming that the plaintiff has the Rudolph title? The deed from John Schmeer to Peter Schmeer, under which Rudolph claimed, conveys only an easement. The description is: “ A parcel of land for road purposes. * * * The said strip of twenty feet so herein conveyed for a road as above stated is to be inclosed,” etc. Language of similar import was held in Robinson v. Railroad Company, 59 Vt. 426, (10 Atl. 522) to create an easement. In that case the estate was described as “a strip of land four rods in width, across my land, and being the same land now occupied by the St. Albans and Richford Plank Road Company for their road, for the use of a plank road.” The words “for the use of a plank road” seem to have been decisive of the estate carved out, although the deed-otherwise purported to be an absolutue grant. See, also, Sanborn v. City of Minneapolis (Minn.) 29 N. W. 126. So, in this case, the words “ a parcel of land for road purposes ” are indicative of an easement only, and are controlling as the measure of the estate granted; but the title which Annie O. Schmeer obtains through the devise is a fee-simple title. We have been unable, after a very careful consideration of the testimony, to find that either party has made out a title by adverse possession, except as it concerns the occupancy of the brick building. So we conclude that the plaintiff is the owner in fee simple of the north half of the premises in dispute, and also all that portion of the south half which is covered by said building; that she is the owner of an easement in the remaining portion of the south half for road purposes, and to that end is entitled to possession; but that the defendant Annie C. Sclimeer is the owner of such remaining portion of the said south half in fee simple, subject, however, to such easement. The decree of the court below will therefore be modified in accordance with these conclusions, neither party to recover costs on the appeal.

Modified.