Barnhart v. Ehrhart

• Decision Date: 13 August 1898
• Citation: 33 Or. 274,54 P. 195
• Parties: BARNHART v. EHRHART.
• Court: Oregon Supreme Court

54 P. 195

33 Or. 274

BARNHART v. EHRHART.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Umatilla county.

Trespass by George A. Barnhart against George Ehrhart. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover damages for an alleged trespass. It is alleged in the complaint that about July 1, 1896, plaintiff was the owner and in the possession of lots 3 and 4 of section 21, and lots 5, 6, 7, and 8 of section 22, in township 3, of range 33 E. of the Willamette meridian, in Umatilla county; that about July 1, 1896, defendant wrongfully entered upon said premises, broke down the inclosures thereof, trampled upon the grass, dug up the soil and erected a building thereon, to plaintiff's damage in the sum of $250. The answer having put in issue the allegations of the complaint, a trial was had, resulting in a verdict and judgment for plaintiff in the sum of five dollars, from which defendant appeals.

J.H Raley, for appellant.

J.J Balleray, for respondent.

MOORE C.J. (after stating the facts).

The evidence tends to show that plaintiff is the owner in fee simple of said lots, as evidenced by patents from the United States to William H. Barnhart and Robert A. Batty from whom he derives title, either directly or by mesne conveyances. It also appears that Wild Horse creek flows in a southwesterly direction through said sections and township, and forms the northern boundary of a part of the Umatilla Indian reservation. The township was originally surveyed in November, 1864, and the field notes thereof show that the dry bed of a creek crosses the east boundary of section 22 at a point 25 chains and 80 links north of the southeast corner of said section; that it crosses the line between sections 21 and 22 at a point 20 chains and 40 links north of the south boundary of said sections; and also crosses the south boundary of section 21 at a point 36 chains and 50 links west of the southeast corner of said section. A plat of this survey, prepared from the field notes, was approved by the surveyor general January 24, 1865, but this plat was amended from the field notes of a survey made in June, 1871, of the exterior boundaries of the Umatilla Indian reservation, and a line, representing this survey, is traced on the original plat of said township, which crosses said sections at the points indicated in the original field notes as "the dry bed of a creek," on the north side of which the territory is represented as being divided into lots which are numbered as described in the complaint, and contain the quantity of land stated in the grants from the United States. This plat, as amended, was reapproved June 21, 1872, and a tracing therefrom, containing said sections, certified to by the surveyor general, being in evidence, tends to show that it is the "official plat of the survey of said lands, returned to the general land office by the surveyor general," as recited in said patents. The course of Wild Horse creek was meandered in September, 1887, and from the field notes of the survey thereof another plat was made, which was approved June 14, 1890; and a tracing therefrom, showing said sections, certified to by the surveyor general, was introduced in evidence, and tends to show that said meander line crosses the section lines at the points indicated as "the dry bed of a creek," but there is quite a divergence between these plats as to the location of said creek and the exterior boundary of the reservation at all other points. The line representing the boundary of the reservation on the amended plat commences at the east boundary of section 22, and runs thence in a northwesterly direction to the center of said section, thence in a southwesterly direction until it crosses the line between sections 21 and 22, thence west and thence south to the south boundary of section 21; while the meander line of said stream as represented on the last plat begins at the same point as on the preceding plat, but curves in opposite directions; then, converging, intersects the lines at the points indicated. J.W. Kimball, the county surveyor of said county, appearing as a witness for the defendant, testifies, in substance, that he resurveyed that part of the exterior boundary line of the Umatilla Indian reservation running through section 22, as shown by the field notes from which the plat approved June 21, 1871, was prepared, and that he also retraced the meander line of Wild Horse creek through said section 22, as appears by the field notes which formed the basis of the plat approved June 14, 1890, and that these lines were situated in places from a quarter to a third of a mile apart; and that, if the south boundary of the lots described in the complaint, which contain 134.14 acres, was extended to said creek, the land so included would be 152.76 acres more than is indicated on the official plat, and recited in the patents. This witness, however, does not say that he found any evidence of the survey of the exterior boundary of said reservation, the field notes of which formed the basis of the amended plat. Plaintiff testifies that the lots described in the complaint are bounded by Wild Horse creek, and that he has been in possession of the tract of land lying north of said creek about 30 years.

It will be observed from this testimony and other evidence that plaintiff contended at the trial that the lots described in the complaint extended to Wild Horse creek, while defendant maintained that lying between these lots and said creek was a tract of government land upon which he sought to perfect a homestead entry. Under the theories advanced by the respective parties, the location of the line as it was run upon the ground in 1871 became important, and was necessarily decisive of the action. If plaintiff had described the several lots by metes and bounds in such a manner as to make Wild Horse creek the southern boundary thereof, the evidence of...